Maden Tech Consulting Inc. v. United States

74 Fed. Cl. 786, 2006 U.S. Claims LEXIS 403, 2006 WL 3838244
CourtUnited States Court of Federal Claims
DecidedDecember 29, 2006
DocketNos. 06-585C, 06-612C
StatusPublished
Cited by1 cases

This text of 74 Fed. Cl. 786 (Maden Tech Consulting 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
Maden Tech Consulting Inc. v. United States, 74 Fed. Cl. 786, 2006 U.S. Claims LEXIS 403, 2006 WL 3838244 (uscfc 2006).

Opinion

MEMORANDUM OPINION AND FINAL JUDGMENT

BRADEN, Judge.

This post-award bid protest concerns a procurement for security services by the Defense Advanced Research Project Agency (“DARPA”). An earlier procurement for these services was the subject of litigation in the United States Court of Federal Claims in a case assigned to the Honorable Victor J. Wolski. See Beta Analytics Int’l v. United States, 67 Fed.Cl. 384 (2005) (“Beta Analyt-ics I”); Beta Analytics Int’l v. United States, 69 Fed.Cl. 431 (2005) (“Beta Analytics II”). In the prior litigation, the court ruled that DARPA acted arbitrarily and capriciously in awarding a contract to Maden Tech Consulting, Inc. (“Maden Tech”) and ordered a new procurement. See Beta Analytics I, 67 Fed. Cl. at 408. This case involves Maden Tech’s challenge to DARPA’s second procurement for these services.

I. RELEVANT FACTS AND PROCEDURAL HISTORY.1

A. Maden Tech Consulting, Inc. v. United States, No. 06-585C.

[787]*787On February 13, 2006, DARPA2 issued Solicitation No. HR0011-06-R-0001 (“the Solicitation”) to procure “support services [for the] Security and Intelligence Directorate3 ... under the Office of Management Operations[J” AR 659-739; see also Beta Analyt-ics II, 69 Fed.Cl. at 434-35 (“The United States shall conduct a re-procurement ... upon a time schedule that will allow the new contract to be awarded and a start date of April 10, 2006[J”). The Solicitation provided that the “contractor shall provide and manage personnel and equipment ... to safeguard DARPA, U.S. Government, and other resident property, personnel, and information and to assure continuity of the DARPA work effort.” Id. at 666. The Solicitation was for a Cost-Plus-Award-Fee contract, with a single-year base term, and four one-year options. Id. at 697, 701, 720. Initially, the Solicitation anticipated an award/start date of April 10, 2006, however, DARPA amended the Solicitation on April 17, 2006, changing the award/start date to June 1, 2006. Id. at 697. The Solicitation again was amended on May 31, 2006, changing the award date to June 15, 2006 and the start date to July 1, 2006. Id.

On July 19, 2006, DARPA notified Maden Tech, the incumbent contractor, that Beta Analytics International, Inc. (“BAP or “In-tervenor”), was awarded the contract. See Compl. H12. At Maden Tech’s request, on July 28, 2006, DARPA conducted a procurement debriefing. Id. It 13. On July 31, 2006, Maden Tech filed a bid protest (No. B-298543.2) with the Government Accountability Office (“GAO”). Id. 1Í14. On July 28, 2006, another bidder, STG, Inc., also filed a GAO protest (Nos.B-298543, 298543.3). Id. H15.

On August 1, 2006, DARPA issued a Determination and Finding (“Initial D & F”) overriding the statutory stay of performance, allowing BAI to commence performance of the contract. See PI. Mot. Ex. A; see also 31 U.S.C. § 3553(d)(3)(A) (“If the Federal agency awarding the contract receives notice of a protest in accordance with this section ... the contracting officer may not authorize performance of the contract to begin while the protest is pending[.]”); 48 C.F.R. § 33.104(c)(1) (“When the agency receives notice of a protest from the GAO ... the contracting officer shall immediately suspend performance or terminate the awarded contract.]”). In the Initial D & F, the Acting DARPA Director determined that “urgent and compelling circumstances significantly affecting the interests of the United States will not permit waiting for the decision of the Comptroller General.” PI. Mot. Ex. A at A-4; see also 31 U.S.C. § 3553(d)(3)(C) (allowing an agency head to override the mandatory stay in contract performance upon determination that “performance of the contract is in the best interests of the United States” or “urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting” for the GAO’s resolution of the bid protest).

The August 1, 2006 Initial D & F set forth three bases for overriding the automatic stay. First, the scope of DARPA’s and SID’s missions. Id. at A-2, A-3. Second, the procedures DARPA followed in this particular procurement. Id. at A-3. Third, DAR-PA’s conclusion that it “cannot have the previous contractor, Maden [Tech], ... continue performance, because the [United States] Court of Federal Claims determined that the award to Maden [Tech] was arbitrary and capricious.” Id. at A-3 (referencing Judge Wolski’s decision in Beta Analytics I.)

On August 4, 2006, DARPA issued a Supplemental Determination and Finding (“Supplemental D & F”) elaborating on DARPA’s mission, citing additional organizational responsibilities, and concluding that:

[788]*788[i]n fulfilling these nationally important responsibilities, it is absolutely critical to the agency’s mission for security services to be in place. The award to [BAI] requires the contractor to be responsible for supplying critical security services to DARPA and in turn to the national security. I determine that urgent and compelling circumstances significantly affecting the interests of the United States will not permit waiting for the decision of the Comptroller General.

PL Mot. Ex. B at A-7.4

On August 11, 2006, Maden Tech timely filed a Complaint in the United States Court of Federal Claims requesting that the court: (1) declare that DARPA’s decision to override the stay on contract performance was invalid; (2) enjoin DARPA from allowing BAI to perform the contract during the pen-dency of the GAO protest; and (3) grant requested attorneys fees and costs. See Compl. (Request for Relief) 1I1Í1-3. The case was designated as Docket Number 06-585C and assigned to the undersigned judge.5 On that same day, Maden Tech filed a Motion for a Temporary Restraining Order, Preliminary Injunction, and Declaratory Relief. On August 11, 2006 and August 14, 2006, the court convened telephone status conferences with the parties. On August 14, 2006, the Government filed a Notice of Proposed Schedule.

On August 15, 2006, BAI filed an unopposed Motion to Intervene and an unopposed Amended Motion to Intervene. On that same day, the court issued a Scheduling Order and an Order granting BAI’s Amended Motion to Intervene. On August 16, 2006, Maden Tech filed a Motion for a Protective Order, which the court entered. On August 18, 2006, the court issued an Order Amending the Protective Order. On August 18, 2006, the Government filed the Administrative Record. On August 22, 2006, the Government filed a Response to Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction. On that day, Inter-venor BAI also filed a Response to Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction. On August 23, 2006, Plaintiff filed a Reply to the Government’s and Intervenor’s Responses. On August 23, 2006, Plaintiff filed a witness list.

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74 Fed. Cl. 786, 2006 U.S. Claims LEXIS 403, 2006 WL 3838244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maden-tech-consulting-inc-v-united-states-uscfc-2006.