EOD Technology, Inc. v. United States

82 Fed. Cl. 12, 2008 WL 2154108
CourtUnited States Court of Federal Claims
DecidedMay 15, 2008
DocketNo. 08-283C
StatusPublished
Cited by8 cases

This text of 82 Fed. Cl. 12 (EOD Technology, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
EOD Technology, Inc. v. United States, 82 Fed. Cl. 12, 2008 WL 2154108 (uscfc 2008).

Opinion

OPINION AND ORDER1

LETTOW, Judge.

EOD Technology, Inc. (“EODT”) seeks review of an override determination issued by the Department of the Army to nullify the stay that automatically arose when a timely protest was filed by EODT with the Government Accountability OfSce (“GAO”) of a contract awarded by the Army to provide canine, or contract working dog (“CWD”), services to the Army’s Special Forces operating in [* * *] Afghanistan. Contract working dogs are used by Special Forces teams to detect improvised explosive devices (“IEDS”) and narcotics and to deal with terrorists and other combatant forces. EODT first applied for a temporary restraining order and now has sought a preliminary injunction against the Army’s override of the statutory stay of contract performance imposed by the Competition in Contracting Act of 1984, 31 U.S.C. § 3553(e)(1). The underlying contract is a short-term, six-month, sole-source contract awarded to intervening defendant American K-9, Inc. This override action is complicated by the fact that the contractual award to American K-9 followed a sequence of events in which EODT twice won contracts for the same CWD services in [* * *] Afghanistan, only to have each award terminated for the convenience of the Government after American K-9 and another offeror protested those awards. In addition, this action is heavily infused with national-security concerns, of an immediate tactical nature.

Because of the urgent need to resolve the dispute over the override as rapidly as possible, the parties and the court arranged to truncate proceedings and provide exception[14]*14ally expedited briefing of the issues on EODT’s motion for a preliminary injunction. In that connection, the parties have bypassed supplying the court with a formal record of the Army’s action in entering the override and have instead provided relevant documents and records as attachments to their briefs. The court has agreed to treat those documents and records as if they were the formal administrative record that would ordinarily be filed with the court in accordance with Rule 52.1(a) of the Rules of the Court of Federal Claims (“RCFC”).2

FACTS

The Army has used CWD services in Afghanistan for some time. Recently, the Army sought to award a new contract for such services in [* * *] Afghanistan. American K-9 was the incumbent contractor providing CWD services to the Army’s Special Forces in [* * *] Afghanistan, and its services have remained in place throughout the events recited here.3

On October 23, 2007, the Army’s [* * *] Regional Contracting Center (“[* * *] Center”) issued Solicitation No. W91B4L-08-R-0001 for CWD services in [* * *] Afghanistan. Pl.’s Mem. at 3. EODT, American K-9, and RONCO Consulting Corporation (“RON-CO”) made offers in response to the solicitation. Id. In December, 2007, after determining that EODT’s proposal provided the best value to the government, the Army awarded the CWD contract to EODT. Id. at 3 and Ex. C (cover sheet of contract award). American K-9 and RONCO protested the award to GAO. Pl.’s Mem. at 3. After the Army announced its intent to take corrective action, the GAO dismissed the protests of American K-9 and RONCO on January 16, 2008. Id. at 4. See Protest of RONCO, B-311008 (notice of dismissal) and Protest of American K-9, B-311008.2 (notice of dismissal). The Army terminated the contract awarded to EODT for convenience, and cancelled the underlying solicitation. Pl.’s Mem. at 4.

Promptly thereafter, on February 10, 2008, [* * *] Center issued Solicitation No. W91B4L-08-R-0013, requesting proposals for canine teams to be used in Afghanistan in support of U.S. combat operations, specifically for [* * *] and the NATO International Security Assistance Force Regional Command [* * *] Area of Operation (“NATO [* * *j»)# Def.’s Opp’n at 2; see also Pl.’s Mem. at 4. The request for proposals sought two trained and certified Patrol/Narcotics Detector Dogs and [* * *] Explosives Detector Dogs (“EDD”), as well as trained and certified handlers and staff to conduct operations at [* * *], NATO [* * *], and the [* * *] Operations Area. Def.’s Opp’n Br. at 2 (citing Pl.’s Mem. Ex. H). The contractor was to be responsible for planning and executing the fielding of CWD teams to [* * *], Afghanistan, which serves as a base of operations for CWD services at Forward Operating Bases (“FOBs”) and Provincial Reconstruction Teams (“PRT”) throughout [* * *] Afghanistan. Id. at 3 (citing Pl.’s Mem. Ex. H). The contractor was to also match the CWD teams to missions, and to coordinate with the Force Protection Officer, NATO Forces, [* * *] Provost Marshal, as well as field commanders and soldiers. Id. (citing Pl.’s Mem. Ex. H). The request for proposal established February 20, 2008 as the closing date for proposal submissions. Id.; Pl.’s Mem. at 4.

[* * *] Center evaluated the proposals of four offerors, including that of intervening defendant American K-9. Def.’s Opp’n at 3. Based on the Center’s evaluation, EODT offered the best overall value in services, and [* * *] Center awarded Contract No. W91B4L-08-M-0232 to EODT on February 28, 2008. Id. (citing Pl.’s Mem. Ex. D (cover [15]*15page of contract award)); see also Pl.’s Mem. at 4 (citing Ex. D).

On March 11, 2008, American K-9 filed a protest with the GAO respecting the second award of a contract to EODT. Def.’s Opp’n at 3. In light of that protest, [* * *] Center issued a stop-work order to EODT pursuant to Federal Acquisition Regulation (“FAR”) [48 C.F.R.] § 52.233-3 on March 16, 2008. Id. at 3. The government avers that after receiving the protest, [* * *] Center re-examined the award to EODT and “became aware of several problematic issues which threatened the viability of the solicitation” and award. Id. at 3 (citing Pl.’s Mem. Ex. E (Request for Authorization to Continue Performance) at 10).[* * *] Center terminated Contract No. W91B4L-08-M-0232 for convenience on March 26, 2008; the Army also cancelled the underlying solicitation on that date. Pi’s. Mem. at 4; see also Pl.s’ Mem. Ex. F (Mem. for Record (Apr. 2, 2008) (explaining basis for termination for convenience) (“Termination Mem.”)).4

On March 28, 2008, [* * *] Center requested that American K-9 submit a proposal on RFP No. W91B4L-08-R-0016 for a sole-source, six-month bridge contract to provide canine detection services at [* * *] and outlying Forward Operating Bases. Def.’s Opp’n at 3. In support of that action, [* * *] Center entered a Justification and Approval for Other Than Full and Open Competition, issued pursuant to FAR § 6.302-2(a)(2), which stated:

[T]o implement corrective action regarding the [American K-9] protest[,] a bridge contract must be awarded to ensure continuity of service. This bridge contract will serve as a stop-gap measure while the [[* * *] Center] office conducts a re-acquisition for services.
The intent of a six-month bridge allows three months for competitive sourcing of the new contract and three months for transition and mobilization concerns.
The current contract did not fully address the requirements for: 1) a net increase of [* * *] teams (one handler and one canine); 2) delineation of armed personnel; and 3) security clearance specifications.

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Cite This Page — Counsel Stack

Bluebook (online)
82 Fed. Cl. 12, 2008 WL 2154108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eod-technology-inc-v-united-states-uscfc-2008.