In the United States Court of Federal Claims 

No. 17-1875C 

(E-Filed: May 1, 2018)1

GLOBAL DYNAMICS, LLC, 

 Plaintiff, 

 v. 

THE UNITED STATES, 

 Defendant, 

and 

GIACARE and MEDTRUST JV, LLC,

and 

MEDTRUST, LLC, 

 Intervenor-defendants. 

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Bid Protest; Sole-Source Bridge 

Contract; 10 U.S.C. § 2304(c)(1) 

(2012). 

Craig A. Holman, Washington, DC, for plaintiff. Michael E. Samuels and Alexandra L. 

Barbee-Garret, of counsel. 

Tanya B. Koenig, Trial Attorney, with whom appeared Chad A. Readler, Acting 

Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Patricia M. 

McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United 

 

1

 This opinion was issued under seal on April 25, 2018. Pursuant to the ordering 

language of the court’s opinion, the parties were invited to identify source selection, 

proprietary, or confidential material subject to deletion on the basis that the material was 

protected/privileged. No redactions were proposed by the parties. Thus, the sealed and 

public versions of this opinion are identical, except for the publication date and this 

footnote. 
2 

States Department of Justice, Washington, DC, for defendant. Jessica E. Hom and Evan 

C. Williams, United States Army Legal Services Agency, of counsel. John T. Harryman 

and Eugene J. Smith, United States Army Medical Command, of counsel. 

Jacqueline K. Unger, Washington, DC, for intervenor-defendants. 

OPINION AND ORDER 

CAMPBELL-SMITH, Judge. 

 This bid protest involves a dispute related to the award of a contract for registered 

nursing (RN) services for the San Antonio Military Healthcare System (SAMHS). See 

ECF No. 1 at 7-8 (complaint). On February 27, 2018, the court issued an opinion and 

order in which it ruled on two of the three counts that plaintiff alleges in the complaint. 

See ECF No. 61. The court remanded the matter to the United States Department of the 

Army (agency) for additional development of the factual record with regard to the 

second, and only remaining, count. See id. The agency has now completed remand 

proceedings, and the parties have submitted supplemental briefs to address its findings. 

See ECF No. 74 (plaintiff’s supplemental brief); ECF No. 75 (intervenor-defendants’ 

supplemental brief); ECF No. 76 (defendant’s supplemental brief). 

 For the following reasons, as to the second count in the complaint, plaintiff’s 

motion for judgment on the administrative record, ECF No. 43, is GRANTED; 

intervenor-defendants’ cross-motion for judgment on the administrative record, ECF No. 

50, is DENIED; and, defendant’s cross-motion for judgment on the administrative 

record, ECF No. 51, is DENIED. 

 

I. Background 

 The court recounted the detailed history of this case in its previous opinion. Given 

the narrower scope of this post-remand opinion, the court will address only the facts 

necessary to evaluating the second count of the complaint. 

 The relevant solicitation was first issued by the United States Army Medical 

Command (MedCom) on September 14, 2012, as a small-business set aside. See ECF 

No. 47-1 at 774-886. Plaintiff submitted its initial proposal on October 16, 2012. See 

ECF No. 47-2 at 1-241. As a result of a myriad of protest actions challenging agency 

decisions related to the solicitation, defendant has issued five sole-source awards to 

incumbent contractor MedTrust, LLC. See ECF No. 61 at 2-5. Only the fifth sole-source 

award is challenged in the present litigation. See ECF No. 1 at 20-23. 

 On December 30, 2016, MedCom undertook corrective action as a result of the 

Government Accountability Office’s (GAO) decision in one of the protest actions. See 
3 

ECF No. 48-9 at 965-66. MedCom anticipated that a period of 120 days would be 

sufficient to comply with the GAO’s recommendations. See id. at 965. The agency later 

advised the GAO that the corrective action was continuing as of May 11, 2017, and 

represented that it expected to complete the process within forty-five days. See id. at 

974-75. 

 One hundred and seventeen days later, on September 5, 2017, MedCom stated its 

intention to award a fifth sole-source contract to MedTrust. See id. at 1004-15. In its 

justification and approval document (J&A) supporting this decision, MedCom stated: 

“The Government has awarded a follow contract . . . [to plaintiff]; however due to 

Government Accountability Office (GAO) protests on the follow-on RN contract, it is 

necessary to award a bridge contract to ensure continuity of services until the Contracting 

Officer completely resolves the protest.” See id. at 1007. 

 In its order remanding this matter to the agency, the court stated: “[t]his protest is 

remanded to the agency for the purpose of identifying any further available facts 

underlying its decision to award a fifth sole-source contract, in accordance with the 

analysis in this opinion.” ECF No. 61 at 16. The agency responded by filing a 

memorandum for the record providing the requested facts, and attaching supporting 

exhibits. See ECF No. 73-1. 

 The memorandum provides a detailed timeline of the agency’s actions between 

November 2, 2016, when the GAO issued its protest decision, and September 14, 2017, 

when the agency approved the fifth sole-source contract. See id. at 4-6. Defendant, in 

turn, offers three primary reasons for the delay in completing the corrective action. First, 

defendant explains that several unexpected matters arose during the period in which it 

was working on the corrective action that interfered with its ability to allocate resources 

to the effort. The agency’s memorandum identifies three “unexpected contract actions 

[that] required immediate attention,” during the pendency of the corrective action, 

specifically: (1) a Department of Labor wage determination proceeding; (2) resolution of 

an agency protest; and (3) the solicitation and award of an interim award, also relating to 

nursing services. Id. at 3. In its supplemental brief, defendant also notes a fourth matter, 

stating that the contracting officer was further “delayed in working on the corrective 

action . . . due to a large dental services acquisition.” ECF No. 76 at 7. 

 Second, defendant asserts that “because of three retirements, the Health Readiness 

Contract Office responsible for processing these procurements had only one contracting 

officer available to work on the corrective action as well as other routine and unplanned 

contract actions.” Id. at 7. According to defendant, the office is “normally staffed by 

five contracting officers.” Id. Defendant does not explain the fate of the fifth contracting 

officer. 
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 And finally, defendant highlights the fact that on July 13, 2017, the contracting 

officer received “unofficial notification that the requirement for Registered Nurses (RN) 

may increase.” Id. at 8. These changes required additional work on cost estimates, 

which was requested on August 17, 2017. See id. Shortly thereafter, the agency 

determined that a fifth sole-source contract was necessary. See ECF No. 48-9 at 1007. 

II. Legal Standards 

 The Tucker Act grants this court jurisdiction 

to render judgment on an action by an interested party objecting to a 

solicitation by a Federal agency for bids or proposals for a proposed contract 

or to a proposed award or the award of a contract or any alleged violation of 

statute or regulation in connection with a procurement or a proposed 

procurement . . . without regard to whether suit is instituted before or after the 

contract is awarded. 

28 U.S.C. § 1491(b)(1) (2012). 

 

 The court’s analysis of a “bid protest proceeds in two steps.” Bannum, Inc. v. 

United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First, the court determines, 

pursuant to the Administrative Procedure Act’s standard of review, whether the 

“agency’s action was arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with [the] law.” Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 

F.3d 901, 907-08 (Fed. Cir. 2013) (citing 28 U.S.C. § 1491(b)(4)). An agency’s decision 

is improper when the agency has “entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs counter to the evidence before 

the agency or [the decision] is so implausible that it could not be ascribed to a difference 

in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In making this evaluation, the court 

considers “whether the agency has examined the relevant data and articulated a 

satisfactory explanation for its action including a rational connection between the facts 

found and the choice made.” Cybertech Grp., Inc. v. United States, 48 Fed. Cl. 638, 646 

(2001) (citations omitted). 

 If the court finds that the agency acted in error, the court then must determine 

whether the error was prejudicial. See Bannum, 404 F.3d at 1351. To establish 

prejudice, “the protester must show ‘that there was a substantial chance it would have 

received the contract award but for that error.’” Alfa Laval Separation, Inc. v. United 

States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting Statistica, Inc. v. Christopher, 102 

F.3d 1577, 1582 (Fed. Cir. 1996)). “In other words, the protestor’s chance of securing 

the award must not have been insubstantial.” Info. Tech. & Applications Corp. v. United 

States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). 
5 

 Given the considerable discretion allowed contracting officers, the standard of 

review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 

1054, 1058 (Fed. Cir. 2000). As the Supreme Court has explained, the scope of review 

under the “arbitrary and capricious” standard is narrow. See Bowman Transp., Inc. v. 

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). “A reviewing court must 

‘consider whether the decision was based on a consideration of the relevant factors and 

whether there has been a clear error of judgment,’” and “‘[t]he court is not empowered to 

substitute its judgment for that of the agency.’” Id. (quoting Citizens to Preserve Overton 

Park v. Volpe, 401 U.S. 402, 416 (1971)); see also Weeks Marine, Inc. v. United States, 

575 F.3d 1352, 1368-69 (Fed. Cir. 2009) (stating that under highly deferential rational 

basis review, the court will “sustain an agency action ‘evincing rational reasoning and 

consideration of relevant factors’”) (citing Advanced Data Concepts, 216 F.3d at 1058). 

III. Analysis 

 For ease of reference, the court will reiterate the relevant portion of its previously 

issued analysis relating to MedCom’s award of a fifth sole-source contract, which is the 

subject of the second count of the complaint. In its motion for judgment on the 

administrative record, plaintiff contends that MedCom’s “fifth sole source bridge contract 

to MedTrust is improper and prejudicial.” ECF No. 43-1 at 35. The circumstances under 

which the government is permitted to award contracts outside of the competitive process 

is governed here by 10 U.S.C. § 2304 (2012). The statute identifies seven circumstances 

in which such contracts are permissible, two of which plaintiff asserts are implicated in 

this case. The two relevant provisions state: 

The head of an agency may use procedures other than competitive procedures 

only when— 

(1) the property or services needed by the agency are available from only 

one responsible source or only from a limited number of responsible sources 

and no other type of property or services will satisfy the needs of the agency; 

(2) the agency’s need for the property or services is of such an unusual 

and compelling urgency that the United States would be seriously injured 

unless the agency is permitted to limit the number of sources from which it 

solicits bids or proposals[.] 

10 U.S.C. § 2304(c)(1)-(2). Plaintiff argues that defendant’s decision to award a solesource bridge contract in September 2017 fails to meet either standard set forth in these 

provisions. See ECF No. 43-1 at 35-40. Defendant states that it specifically relied on the 

first of the provisions, 10 U.S.C. § 2304(c)(1), in making the fifth award to MedTrust. 

See ECF No. 51 at 41; ECF No. 48-9 at 1004. The court, in turn, will accordingly limit 
6 

its review of defendant’s decision to consider whether it meets the requirements for 

awarding a contract outside of the competitive process for the reason that “only one 

responsible source” and “no other type of . . . services” would meet defendant’s needs. 

See 10 U.S.C. § 2304(c)(1). 

 The Federal Circuit has instructed that a sole-source contract may be set aside if: 

“(1) the sole-source award lacked a rational basis; or (2) the sole-source procurement 

procedure involved a violation of a statute, regulation, or procedure.” Emery Worldwide 

Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2001) (citing Impresa 

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 

2001)). In evaluating the propriety of a sole-source contract award, the court must 

“determine whether the contracting agency provided a coherent and reasonable 

explanation of its exercise of discretion.” Impresa, 238 F.3d at 1333 (citation omitted). 

As this court has observed, “sole-source procurements may not be used when the 

circumstances justifying the award were due to the agency’s own lack of advanced 

planning.” Innovation Dev. Enters. of Am., Inc. v. United States, 108 Fed. Cl. 711, 727-

28 (2013) (holding that the “[f]ailure to account for transition periods between an 

incumbent contractor and a new contractor is . . . [a] form of lack of advanced 

planning”); 10 U.S.C. § 2304(f)(4)(A) (“In no case may the head of an agency . . . enter 

into a contract for property or services using procedures other than competitive 

procedures on the basis of the lack of advanced planning.”); 48 C.F.R. § 6.301(c)(1) 

(2017) (“Contracting without providing for full and open competition shall not be 

justified on the basis of . . . a lack of advanced planning by the requiring activity.”). 

 The court’s February 27, 2018 order remanding this matter to the agency was 

founded on the court’s conclusion that defendant had not adequately explained the delay 

in completing the corrective action. As the court previously observed: 

MedCom’s acknowledgement that it has not timely conducted its corrective 

action gets to the root of the problem in this case. As outlined above, 

MedCom undertook the most recent corrective action on December 30, 2016. 

See ECF No. 48-9 at 965-66. MedCom’s initial estimate was that 120 days 

would be sufficient to complete the correction. See id. at 965. One hundred 

and twenty days from December 30, 2016, was April 29, 2017. The 

corrective action was not completed by that date. In fact, MedCom notified 

the GAO that the action was continuing as of May 11, 2017, and further 

represented that it expected to complete the process within forty-five days. 

See id. at 974-75. Forty-five days from May 11, 2017, was June 25, 2017. 

The corrective action was, however, still ongoing 117 days later when 

MedCom stated its intention to award MedTrust a fifth sole-source bridge 

contract, on September 5, 2017. See id. at 1006. 
7 

None of the parties involved in this case have identified any place in the 

voluminous administrative record where MedCom purports to explain why 

these delays extended so far beyond even its own estimates. Nor have the 

parties identified any intervening developments or obstacles that arose to 

account for the originally estimated 120 days increasing to more than 250 

days, with still no result. 

ECF No. 61 at 9. 

 In its supplemental brief, defendant argues that the agency’s decision to award a 

fifth sole-source contract was rational because there were three good reasons for its delay 

in completing the most recent corrective action: (1) three retirements in the relevant 

agency department resulted in a personnel shortage; (2) available personnel were working 

on a number of other matters instead of the subject corrective action; and, (3) in July 

2017, the expected value of the contract was significantly increased, requiring additional 

work. See ECF No. 76 at 10. See also ECF No. 73-1 at 3-7 (agency’s memorandum). In 

the court’s view, these explanations are unpersuasive. 

 First, defendant fails to explain the circumstances of the three retirements that 

apparently resulted in a drastic reduction of available contracting officers. The court has 

no reason to doubt either that three retirements, in fact, occurred, or that losing three of 

five contracting officers had a significant impact on the department’s ability to complete 

its duties in a timely fashion. Indeed, the court is itself painfully aware of the 

consequences of limited resources. The problem, however, is that defendant gives the 

court no reason to believe that the retirements were sudden or unexpected. There is also 

no indication that the agency was unable to fill the vacancies. Moreover, the agency was 

presumably aware of the vacancies when it set the various deadlines it did for completing 

the corrective action. In the post-remand administrative record, the agency representative 

simply states that the relevant department was typically “staffed by five Contracting 

Officers. However, due to three retirements, there was only one Contracting Officer 

available to work the corrective action, as well as the other routine contract actions.” 

ECF No. 73-1 at 3. 

 Defendant’s subtraction skills notwithstanding, in the court’s view, the fact that 

three officers retired is not enough to excuse the agency’s failure to ensure it was 

properly staffed. As plaintiff notes in its supplemental brief, the GAO has sustained a 

protest in which the agency sought to justify a sole-source award on the basis of similar 

personnel issues. See ECF No. 74 at 13 (citing Service Contractors, B-243236, 91-2 

CPD ¶ 49, 1991 WL 135563 (Comp. Gen. July 12, 1991). Service Contractors involved 

a sole-source contract award for grounds maintenance at properties for which the 

Department of Housing and Urban Development (HUD) was responsible. In the protest 

action, in which the protestor alleged that a non-competitive award was improper, the 

agency alleged that “personnel turnover and inexperience” sufficiently explained the need 
8 

for a sole-source award. Service Contractors, 1991 WL 135563, at *1. The GAO 

disagreed, and held that the agency’s defenses related to inadequate personnel 

“essentially recognize the lack of advance planning and merely provide an excuse based 

on the limitations of the agency procurement personnel.” Id. at *3. The court agrees 

with this reasoning, and concludes based on the evidence in the record, that the agency’s 

inadequate staffing was due to its failure to plan for staffing needs in the relevant 

department. 

 Defendant also claims that unexpected, unrelated matters required the agency’s 

attention, contributing to the delay in completing the corrective action. See ECF No. 76 

at 10. The agency’s memorandum explaining the facts underlying the decision to award 

a fifth sole-source contract includes a list identifying three “unexpected contract actions 

[that] required immediate attention,” during the pendency of the corrective action: (1) a 

Department of Labor wage determination proceeding; (2) resolution of an agency protest; 

and (3) the solicitation and award of an interim award, also relating to nursing services. 

See ECF No. 73-1 at 3. In its supplemental brief, defendant also notes a fourth matter, 

stating that the contracting officer was further “delayed in working the corrective action 

. . . due to a large dental services acquisition.” ECF No. 76 at 7. 

 Again, the court has no reason to doubt the veracity of the agency’s assertions that 

it spent its time on these other matters. The court also recognizes that all business before 

the agency is important. This recitation of the agency’s time management, however, does 

not supply a justification for its failure to allocate adequate time to the corrective action 

at issue here. The correspondence attached to the contracting officer’s memorandum in 

the supplemental administrative record does not indicate that the other matters before the 

agency were especially urgent. In other words, defendant does not explain why these 

other matters needed to be prioritized over resolving the issues relating to the contract for 

nursing services at SAMHS. The absence of such an explanation is problematic, 

particularly given the numerous, self-imposed deadlines that the agency did not meet. 

 The court also notes that defendant’s representation that the agency was simply 

unable to complete the corrective action due to personnel and workload constraints is at 

odds with its previous admission that the agency could have accomplished the corrective 

action more quickly. See ECF No. 59 at 19 (“Could MedCom have conducted the 

corrective action in less time? Yes.”). 

 The final reason defendant offers to establish the rationality of the sole-source 

award is that “the initial notice of an increased requirement for RNs in July 2017, and the 

development of that number through August 2017, necessarily affected the corrective 

action because of its potential impact on the procurement.” ECF No. 76 at 10. As the 

court previously explained, the agency’s first self-imposed deadline for completing the 

corrective action was April 29, 2017, and was later moved to May 11, 2017, and finally 

was set at June 25, 2017. See ECF No. 61 at 9. Even by defendant’s own version of 
9 

events, the agency failed to meet any of those deadlines well before it received any notice 

of an increase in the required number of nurses. As such, the need for additional nurses 

identified in July cannot serve to justify the agency’s failures to act in April, May, or 

June. 

 Defendant offers no separate explanation of its failure to award a competitive 

bridge contract. The court finds the reasons offered with regard to the delayed corrective 

action no more persuasive in that context. In addition, the intervenor-defendants’ 

arguments, see ECF No. 75, are largely in line with defendant’s arguments, and therefore 

have not been separately addressed herein. 

 The court concludes, for the foregoing reasons, that the fifth sole-source award 

lacked a rational basis, and therefore, the agency’s decision to make the award did not 

comport with the requirements for awarding a contract outside of the competitive 

process. See 10 U.S.C. § 2304(c)(1). The court also finds that plaintiff was prejudiced 

by the agency’s error. In the long history of this procurement, plaintiff has been awarded 

the contract three times. See ECF No. 61 at 3-4. Thus, had the agency timely completed 

the corrective action and awarded the contract, there is good reason to believe plaintiff 

had a substantial chance of being the awardee. See Alfa Laval, 175 F.3d at 1367 (stating 

that in order to establish prejudice, “the protester must show ‘that there was a substantial 

chance it would have received the contract award but for that error’”) (quoting Statistica, 

102 F.3d at 1582). 

 As a remedy for the improper award of the fifth sole-source contract, plaintiff asks 

that the court enjoin performance of the contract after June 30, 2018, and direct defendant 

to either complete the corrective action and transition the contract by that time, or award 

a competitive bridge contract. See ECF No. 74 at 24. In its supplemental brief, plaintiff 

does not address the factors for injunctive relief as they apply specifically to the second 

count of the complaint. Instead, it simply “reiterates its prior request for declaratory and 

permanent injunctive relief.” Id. Given the changes in the posture of this case from the 

time plaintiff made its initial argument, this statement does not assist the court with the 

task of determining what relief is appropriate. 

 Plaintiff has prevailed on the merits of its claim, but in fashioning the proper 

remedy, the court is sensitive to the agency’s need to ensure the continuity of critical 

medical services. The patients of SAMHS should not be made to suffer for the agency’s 

procurement error. To that end, the court will extend plaintiff the opportunity to submit 

further analysis of whether permanent injunctive relief is appropriate here, and how that 

remedy would be implemented given the unique constraints of this case. Defendant and 

intervenor-defendants will be heard in response. 
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IV. Conclusion 

 For the foregoing reasons, as to the second count in the complaint, plaintiff’s 

motion for judgment on the administrative record, ECF No. 43, is GRANTED; 

intervenor-defendants’ cross-motion for judgment on the administrative record, ECF No. 

50, is DENIED; and, defendant’s cross-motion for judgment on the administrative 

record, ECF No. 51, is DENIED. 

 On or before May 9, 2018, plaintiff shall FILE a renewed motion presenting to 

the court its analysis of why permanent injunctive relief, in addition to a declaratory 

judgment, is appropriate to remedy the error alleged in the second count of the complaint. 

Defendant and intervenor-defendants may FILE their responses to plaintiff’s renewed 

motion, on or before May 16, 2018. 

 In addition, on or before May 9, 2018, the parties shall CONFER and FILE a 

joint proposed redacted version of this opinion, with any competition-sensitive or 

otherwise protectable information blacked out and enclosed in brackets. 

 IT IS SO ORDERED. 

 s/Patricia Campbell-Smith 

 PATRICIA CAMPBELL-SMITH 

 Judge