United States Court of Appeals 

for the Federal Circuit 

__________________________ 

TURNER CONSTRUCTION CO., INC., 

Plaintiff-Appellee, 

v. 

UNITED STATES, 

Defendant, 

and 

MCCARTHY/HUNT, JV, 

Defendant, 

and 

B.L. HARBERT-BRASFIELD & GORRIE, JV, 

Defendant-Appellant. 

__________________________ 

2010-5146 

__________________________ 

Appeal from the United States Court of Federal 

Claims in case no. 10-CV-195, Senior Judge Bohdan A. 

Futey. 

__________________________ 

Decided: July 14, 2011 

__________________________ 

SCOTT M. MCCALEB, Wiley Rein, LLP, of Washington, 

DC, argued for plaintiff-appellee. With him on the brief 
TURNER CONSTRUCTION v. US 2

were WILLIAM A. ROBERTS, III and NICOLE J. OWRENWIEST. Of counsel was BRIAN G. WALSH. 

DAVID A. EDELSTEIN, Asmar, Schor & McKenna, 

PLLC, of Washington, DC, argued for defendantappellant. With him on the brief were LAURENCE SCHOR, 

SUSAN L. SCHOR and DENNIS C. EHLERS. 

__________________________ 

Before BRYSON, CLEVENGER, and PROST, Circuit Judges. 

PROST, Circuit Judge. 

The United States Army Corps of Engineers (“Army”) 

awarded Appellee Turner Construction Company, Inc. 

(“Turner”) a contract for the construction of a government 

hospital. Turner’s two rival bidders for the contract, 

Appellant B.L. Harbert-Brasfield & Gorrie (“HarbertGorrie”) and McCarthy/Hunt, each filed a bid protest with 

the Government Accountability Office (“GAO”). The GAO 

recommended that the contract be re-procured without 

Turner’s participation. In due course, the Army announced that it would follow the GAO’s recommendation 

and terminated Turner’s contract. Turner then filed the 

present action in the United States Court of Federal 

Claims to contest the termination and re-procurement. 

Because we agree with the trial court that the Army’s 

decision to follow the GAO’s recommendation was unreasonable, we affirm the judgment of the Court of Federal 

Claims. 

BACKGROUND

At issue is a potential organizational conflict of interest (“OCI”) that arose during the Army’s procurement for 

the construction of a government hospital at Fort Benning, Georgia. The relationship underlying the potential 
3 TURNER CONSTRUCTION v. US

OCI is an attenuated one—intermittent merger discussions that occurred during the procurement process 

between Turner’s design subcontractor and the parent 

company of the Army’s design consultant. 

A 

In June 2007, the Army contracted with the joint venture of Hayes, Seay, Mattern & Mattern (“HSMM”) and 

Hellmuth, Obata, and Kassbaum (“HOK”) (collectively, 

“HSMM/HOK”), to prepare the design requirements for 

the hospital and to assist with the technical review of the 

proposals that would be submitted. At all times relevant 

to this case, one member of the joint venture, HSMM, was 

owned by AECOM Technology Corporation (“AECOM”). 

After selecting HSMM/HOK as its design consultant, the 

Army proceeded with the procurement in two phases. In 

Phase l, potential offerors submitted performance and 

capability information. Selected offerors then received 

the Phase II technical requirements package for the 

hospital and were invited to provide technical and cost 

proposals. HSMM/HOK’s involvement was limited to 

providing materials and advice during Phase II. 

HSMM/HOK was not involved with preparing materials 

for Phase I or selecting offerors to proceed to Phase II. 

In June 2008, the Army issued the Phase I solicitation 

for the hospital contract. Four firms responded to the 

Phase I solicitation in October 2008, and three firms were 

selected in December 2008 to advance to Phase II: Defendant-Appellee Turner, Plaintiff-Appellant Harbert-Gorrie, 

and McCarthy/Hunt. Turner’s design partner and proposed subcontractor for the project was Ellerbe Becket 

(“EB”). The work that EB was to perform constituted 

about 1.5% of Turner’s bid. 
TURNER CONSTRUCTION v. US 4

HSMM/HOK finished preparing the final Phase II 

technical requirements package by April 2009. The 

offerors’ Phase II proposals were due several months later 

on July 7, 2009. Shortly thereafter, the Army’s thirtyfour member technical review board, which included four 

consultants from HSMM, reviewed the proposals and 

prepared comments. On August 24, 2009, the Source 

Selection Authority determined that Turner represented 

the best value for the Army. The Army awarded Turner a 

$333,359,000 contract on September 28, 2009. 

B 

At various times during the procurement process, 

Turner’s design partner EB was in merger talks with 

HSMM’s parent company AECOM. Specifically, in May 

2008, one month before the Phase I solicitation, AECOM 

and EB executed a confidentiality agreement regarding 

AECOM’s possible acquisition of EB. Some twenty-five to 

thirty AECOM employees were involved with the due 

diligence investigation of EB. None of these employees 

was part of the HSMM/HOK joint venture team assisting 

the Army with the hospital project. 

AECOM was not the only company pursuing the acquisition of EB. By June 2008, four other firms had 

expressed interest in buying EB, and EB decided to 

conduct a multi-party auction. Three firms, including 

AECOM, submitted bidding letters of interest to EB in 

late August and early September. AECOM’s bid was not 

the highest offer. EB pursued negotiations with AECOM 

and the highest bidder, but failed to successfully negotiate 

mutually acceptable terms with either firm. In November 

2008, EB terminated negotiations with all bidders. 
5 TURNER CONSTRUCTION v. US

AECOM’s negotiations with EB terminated before 

HSMM/HOK provided the Army any advice or materials 

for the Phase II solicitation. In December 2008, 

HSMM/HOK submitted draft technical provisions for 

Phase II to the Army. The Army sought comments from 

all three participating offerors, and HSMM/HOK revised 

the provisions in response to this input. The final revised 

Phase II technical provisions, which were twice as long as 

the draft version, were released in April 2009. 

In May 2009, after the Phase II solicitation materials 

were complete, AECOM reopened negotiations with EB. 

This round of negotiations ultimately led to a successful 

merger in late October 2009. 

C 

Some signs of a potential OCI arose during the procurement process. AECOM first became aware of a 

potential conflict on August 7, 2008. On that day, the 

senior vice president in charge of the HSMM/HOK hospital design contract attended an industry forum held by 

the Army about the upcoming hospital project. At the 

industry forum, the AECOM executive learned for the 

first time of EB’s interest in the project. The executive 

consulted with his supervisor about the potential for a 

conflict of interest to arise if AECOM acquired EB, and 

his supervisor told him that negotiations with EB “had 

not been productive.” A few weeks later, the executive 

learned that AECOM’s negotiations with EB had been 

suspended, and he concluded that there was no further 

potential conflict. The AECOM executive did not report 

the failed negotiations to the Army. 

In February 2009, approximately three months after 

EB terminated its negotiations with AECOM, the 
TURNER CONSTRUCTION v. US 6

AECOM executive and the Army’s project manager exchanged emails about whether any potential OCIs existed. The executive inquired internally as to what 

relations existed between AECOM and the three Phase II 

offerors and their subcontractors. On February 6, 2009, 

the executive reported to the Army that only “teaming 

relationships” existed. 

The AECOM executive did not further consider 

AECOM’s relationship with EB until he arrived to attend 

sessions of the technical review board on July 20, 2009. 

Four HSMM employees were participating, and all certified that they had no known conflicts of interest. When 

the executive was asked to certify that he had no known 

conflicts of interest, he made several telephone calls to 

determine whether an OCI existed. Because he knew 

that EB was Turner’s subcontractor, he specifically inquired whether AECOM was currently in negotiations 

with EB. He learned that negotiations had resumed, and 

he immediately informed the Army’s project manager of a 

potential OCI and asked to meet with the contracting 

officer (“CO”) to discuss the situation. 

The AECOM executive met with the CO and the 

Army’s counsel the following day. The executive discussed his concerns that a potential OCI with a subcontractor might arise but did not identify which offeror or 

subcontractor, due to confidentiality agreements between 

AECOM and EB. According to the CO, this was the first 

time that she became aware of any potential OCI. Because the executive was the only AECOM employee at the 

technical review board meeting who knew of the potential 

merger, he proposed that he recuse himself from the 

meeting to avoid any potential conflict. The Army agreed 

that the executive’s recusal would sufficiently prevent any 

possible conflict of interest. 
7 TURNER CONSTRUCTION v. US

Shortly after EB’s merger with AECOM was publicly 

announced on October 26, 2009, the two losing offerors 

filed bid protests before the GAO. Appellant HarbertGorrie’s protest alleged that Turner/EB had “unequal 

access” and “biased ground rules” OCIs. Prior to the filing 

of these bid protests, the CO had not conducted a comprehensive, documented investigation into whether OCIs 

existed beyond the meeting between the AECOM executive, Army counsel, and the CO. At the inception of the 

bid protests, the CO submitted a short five-page statement. She supplemented the statement with a 150-page 

report after conducting a comprehensive investigation, 

which included gathering forty-two declarations from 

involved persons and conducting telephone interviews 

with the HSMM employees who were part of the technical 

review board. The CO considered each possible OCI and 

found that no OCIs existed prior to award of the hospital 

contract. 

D 

On February 19, 2010, the GAO issued an eleven-page 

decision in Harbert-Gorrie’s bid protest. The GAO disagreed with the CO’s conclusion that no OCI existed prior 

to award of the hospital contract and sustained HarbertGorrie’s “unequal access” and “biased ground rules” 

protests. B.L. Harbert-Brasfield & Gorrie, JV, B-402229 

(Comp. Gen., Feb. 16, 2010), at 11. Unequal access OCIs 

can occur when a company has access to nonpublic information in performing a government contract that may 

give it a competitive advantage in a later competition for 

a government contract. The GAO’s conclusory, three-page 

analysis of whether an unequal access OCI existed focused on the potential for access to nonpublic information, 

rather than on whether AECOM or EB personnel actually 

obtained access to competitively useful, nonpublic infor-
TURNER CONSTRUCTION v. US 8

mation. Id. at 6-9. The GAO presumed that the fortynine AECOM employees working on the hospital contract 

used e-mail in conducting their work for the Corps. It 

noted that, although AECOM affiliates outside of the 

team working on the hospital contract did not automatically have access rights to data on the servers by virtue of 

their employment, the GAO saw no evidence anywhere in 

the record that there were specific efforts to limit access 

by others to such e-mail. Focusing on the various ways in 

which AECOM and EB personnel might have had access 

to each other’s information, the GAO concluded: “[W]ith 

respect to the AECOM employees who worked on the 

design contract, without credible evidence that AECOM 

had systems in place to prevent the receipt of competitively useful information by EB, there is no reasonable 

basis to assume that the information was not made available to EB employees.” Id. at 9. In finding that such 

potential access existed, the GAO noted that an unequal 

access OCI may be mitigated through the implementation 

of an effective mitigation plan, but the GAO ultimately 

determined that AECOM’s access restrictions themselves 

were deficient and that the CO had not been sufficiently 

involved in crafting and monitoring any mitigation efforts. 

The biased ground rules category of OCIs focuses on 

the concerns that a company may, by participating in the 

process of setting procurement ground rules, have special 

knowledge of the agency’s future requirements that may 

skew the competition in its favor. The GAO’s two-page 

analysis concluded that AECOM had special knowledge of 

the Army’s requirements that would have enabled it to 

give Turner/EB an unfair advantage in the competition. 

Id. at 9-11. The GAO noted that there was no evidence 

that the Army closely supervised AECOM, but suggested 

that even if it had, it would be unreasonable to assume 
9 TURNER CONSTRUCTION v. US

such supervision would prevent AECOM from using its 

special knowledge to benefit Turner/EB unfairly. Turner 

argued that at all times during the Phase II solicitation 

development, AECOM and EB were not in fruitful negotiations, and that the AECOM employees assisting the 

Army on the procurement had no knowledge of AECOM’s 

interest in EB. In rejecting this argument, the GAO 

emphasized the lack of process undertaken by AECOM in 

determining which of its employees had a need to know of 

the negotiations and how confidentiality was ensured. 

Because the GAO concluded that the Army lacked a 

reasonable basis for its conclusion that the merger discussions between AECOM and EB had not created an OCI, 

the GAO sustained Harbert-Gorrie’s bid protest and 

recommended that the Army re-compete the hospital 

contract without allowing Turner/EB to participate in the 

competition. 

On March 19, 2010, the Army announced that it 

would follow the GAO’s recommendation. A few days 

later, the Army notified Turner that it was terminating 

its contract for the hospital. On March 31, Turner filed a 

bid protest in the Court of Federal Claims. The Court of 

Federal Claims ultimately concluded that the Army’s 

decision to follow the GAO’s recommendation was arbitrary and capricious. Turner Constr. Co. v. United States, 

94 Fed. Cl. 561 (2010) (“Turner I”). The Court of Federal 

Claims granted Turner injunctive relief, including restoring the hospital contract to Turner. Id. at 585-86. 

In granting Turner’s Motion for Judgment on the Administrative Record, the Court of Federal Claims concluded that the GAO’s recommendations were irrational. 

See, e.g., id. at 581. The court acknowledged that rational 

basis review is not a particularly demanding standard, 
TURNER CONSTRUCTION v. US 10

but it nonetheless concluded that the GAO’s decision 

failed to withstand even that level of scrutiny. Id. The 

Court of Federal Claims noted that while the GAO was 

tasked with reviewing the Army’s decision for reasonableness, the GAO failed to confront the agency’s decision 

in any meaningful way. Id. The court emphasized that 

the GAO failed to meaningfully consider the CO’s detailed 

factual findings and improperly substituted its own 

judgment for that of the CO’s. It found that the GAO had 

relied on mere “suspicion or innuendo” rather than identifying “hard facts” showing an appearance of impropriety, 

in contrast to the CO’s thorough investigation and analysis. Id. The Court of Federal Claims further found that 

the GAO irrationally discounted the CO’s post-award 

investigations and findings. Id. at 574-76. 

On August 5, 2010, the Army reinstated Turner’s contract in compliance with the Court of Federal Claims’ 

order after explicitly concluding that reinstatement was 

“advantageous to the Government.” 48 C.F.R. § 49.102(d). 

Harbert-Gorrie timely appealed. We have jurisdiction 

under 28 U.S.C. § 1295(a)(3). 

DISCUSSION

We review “rulings on motions for judgment on the 

administrative record de novo . . . and factual findings 

based on the administrative record for clear error.” PAI 

Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir. 

2010). In a bid protest case, the agency’s award must be 

upheld unless it is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” Id. 

Our inquiry under these facts requires assessing whether 

the Army’s decision to follow the GAO’s recommendation 

“lacked a rational basis.” Id. When applying that standard of review in the context of reviewing an agency’s 
11 TURNER CONSTRUCTION v. US

decision to follow a GAO recommendation, we have stated 

that an agency’s decision lacks a rational basis if it implements a GAO recommendation that is itself irrational. 

Centech Grp. v. United States, 554 F.3d 1029, 1039 (Fed. 

Cir. 2009); Honeywell, Inc. v. United States, 870 F.2d 644, 

648 (Fed. Cir. 1989). Thus, our task is to evaluate the 

rationality of the GAO decision. It is well settled that 

COs are given broad discretion in their evaluation of bids. 

R & W Flammann GmbH v. United States, 339 F.3d 1320, 

1322 (Fed. Cir. 2003). When an officer’s decision is reasonable, neither a court nor the GAO may substitute its 

judgment for that of the agency. Id. 

The issues before us are whether EB’s relationship 

with AECOM gave Turner/EB a competitive advantage 

over the other bidders, and whether the CO failed to 

exercise proper discretion and to follow proper procedures 

in making the determination that no OCI existed. The 

Federal Acquisition Regulations (“FAR”) recognize that 

“the identification of OCIs and the evaluation of mitigation proposals are fact-specific inquiries that require the 

exercise of considerable discretion.” Axiom Res. Mgmt. v. 

United States, 564 F.3d 1374, 1382 (Fed. Cir. 2009) (citing 

48 C.F.R. § 9.505). The FAR requires that “[e]ach individual contracting situation should be examined on the 

basis of its particular facts and the nature of the proposed 

contract.” 48 C.F.R. § 9.505. At the same time, the CO 

“should avoid . . . unnecessary delays . . . and excessive 

documentation.” Id. § 9.504(d). The exercise of “common 

sense, good judgment, and sound discretion” is required in 

both the decision on whether a significant potential 

conflict exists and, if it does, the development of an appropriate means for resolving it. Id. § 9.505; see also

Axiom, 564 F.3d at 1382. 
TURNER CONSTRUCTION v. US 12

Harbert-Gorrie alleges that the Court of Federal 

Claims made three errors that require reversal: (1) the 

Court of Federal Claims improperly engaged in a de novo 

review of the GAO’s decision rather than giving it proper 

deference; (2) the Court of Federal Claims erroneously 

relied on the CO’s post-award, post-protest OCI investigation and analysis; and (3) the Court of Federal Claims 

misapplied the “hard facts” requirement. In addition, 

Harbert-Gorrie contends that even if the Court of Federal 

Claims correctly held that the Army’s decision to follow 

the GAO decision was arbitrary and capricious, the Court 

of Federal Claims exceeded its jurisdiction and committed 

an error of law by directing the Army to reinstate 

Turner’s contract. We address each argument in turn. 

A 

Harbert-Gorrie first accuses the Court of Federal 

Claims of improperly engaging in de novo review of the 

GAO decision. This argument is misplaced because the 

text of the Court of Federal Claims’ opinion makes plain 

that the court applied the proper standard of review. 

The Court of Federal Claims correctly articulated the 

Honeywell standard that applies here and emphasized 

that it cannot conduct its “own independent de novo 

assessment.” Turner I, 94 Fed. Cl. at 571, 574, 579. The 

court acknowledged that “‘the controlling inquiry [is] 

whether the GAO’s decision was a rational one.’” Id.

(quoting Honeywell, 870 F.2d at 647). Recognizing that 

its review was a deferential one, the Court of Federal 

Claims nonetheless concluded that the GAO’s decision did 

not meet this standard. Id. at 581. It concluded that the 

GAO’s decision was not rational because its five-page 

analysis failed to give any deference to the CO’s extensive 

fact-finding and analysis. As discussed above, this court’s 
13 TURNER CONSTRUCTION v. US

precedent from Axiom and PAI make clear that the CO 

enjoys great latitude in handling OCIs. Because the GAO 

improperly substituted its own judgment for that of the 

CO, it was the GAO—not the Court of Federal Claims—

that failed to apply the proper deference in conducting its 

review. 

The court then applied the correct standard of review, 

focusing its extensive analysis on whether the GAO’s 

decision to overturn the CO’s determination lacked a 

rational basis. For example, the GAO concluded that 

HSMM’s and EB’s interests were “effectively aligned” in 

August 2008, when AECOM participated in the multiparty confidential auction for EB that ended before 

HSMM provided the Army with any draft technical provisions. The Court of Federal Claims determined that this 

conclusion “lacked a rational basis” because it was inconsistent with case law, which looks “for a direct financial 

benefit between firms, rather than an attenuated or 

potential benefit,” and “fail[ed] to engage the CO and the 

record.” Turner I, 94 Fed. Cl. at 579. The court noted 

that the GAO’s cursory inquiry was a departure from 

prior GAO decisions. Id. The court pointed out that the 

GAO, in lieu of citing to hard facts of “a sufficient alignment of interests” between HSMM and EB, merely stated 

that “‘in [its] view’ the record indicated a sufficient alignment of interests.” Id.

The court further concluded that the GAO lacked a 

rational basis for rejecting the CO’s biased ground rules 

determination. Id. at 581. The CO’s analysis of this issue 

“tracked the precise state of negotiations between 

AECOM and EB, the exact dates upon which critical 

changes to the RFP occurred, the exact employees that 

could have known of the merger, and numerous other 

facts. Using this data, the CO concluded that no OCI 
TURNER CONSTRUCTION v. US 14

existed.” Id. at 580. Reiterating that the GAO’s task was 

to review the agency’s decision for reasonableness, the 

Court of Federal Claims noted that the GAO “failed to 

address this OCI decision; in fact, the GAO decision on a 

biased ground rules OCI does not even cite the agency 

decision that it was tasked with reviewing.” Id. Instead, 

“the GAO cites exactly one piece of information [AECOM’s 

contract with the Army] . . . to support its finding that the 

record ‘suggests’ that AECOM had ‘special knowledge’ 

that would have given Turner an unfair advantage.” Id. 

Concluding that the GAO’s “failure to meaningfully 

engage with the agency decision dramatically differs from 

prior GAO decisions,” the Court of Federal Claims indicated that the GAO’s determination was not based on 

hard facts but rather was based on “mere suspicion and 

innuendo.” Id. at 580-81. 

The Court of Federal Claims likewise concluded that 

the GAO lacked a rational basis for rejecting the CO’s 

unequal access determination. Id. at 581-83. Again, the 

court noted that the GAO “failed to cite any hard facts,” 

pointing only to “vague allegations that someone ‘may 

have had access’ to unidentified information or that 

someone ‘was familiar with the details.’” Id. at 582. The 

court noted that this “lack of concreteness” in the GAO’s 

analysis was a departure from precedent. Id. In addition, 

the court pointed out that “apart from simply using the 

phrase ‘competitively useful,’ the GAO cites to no facts to 

support [its] conclusion that EB had access to anything of 

competitive worth.” Id. In contrast, the court concluded 

that the CO carefully assessed the information that 

AECOM may have had access to and determined that this 

information “not only lacked competitive utility but was 

also disclosed to all of the offerors.” Id. 
15 TURNER CONSTRUCTION v. US

Accordingly, the Court of Federal Claims applied the 

proper standard of review and did not conduct a de novo 

review as alleged by Harbert-Gorrie. 

B 

Next, Harbert-Gorrie argues that the Court of Federal 

Claims erred in considering the CO’s post-award investigation and report in determining that the GAO decision 

was irrational. Harbert-Gorrie believes that because this 

investigation was not conducted until after the hospital 

contract was awarded, it should be given no weight because the conclusions and statements therein were dependent on facts not known by the CO during the 

procurement process. Pointing to the fact that the Army 

had not conducted a documented investigation prior to the 

award of the contract, Harbert-Gorrie contends that the 

Court of Federal Claims erroneously believed that the CO 

had no obligation to investigate the potential OCI when 

she first became aware of it prior to the award. As a 

result, the Court of Federal Claims resorted to relying on 

the CO’s post-award report. These arguments, however, 

misapprehend the FAR and the Court of Federal Claims’ 

decision. 

Contrary to Harbert-Gorrie’s contentions, the Court of 

Federal Claims did not hold that the CO had no duty to 

evaluate a potential OCI when she first became aware of 

it. Under FAR § 9.504(a), a CO must “[i]dentify and 

evaluate potential organizational conflicts of interest as 

early in the acquisition process as possible” and “[a]void, 

neutralize, or mitigate significant potential conflicts

before contract award.” 48 C.F.R. § 9.504(a) (emphasis 

added). These duties are separate. PAI, 614 F.3d at 

1352. Although the FAR requires a contracting officer to 

identify and evaluate potential conflicts in the early 
TURNER CONSTRUCTION v. US 16

stages of the acquisition process, § 9.504(a) does not 

require that this preliminary analysis be documented in 

writing. If the potential conflict is determined to be a 

significant one, the CO must avoid, neutralize, or mitigate 

it before the contract award. 48 C.F.R. § 9.504(a). The 

CO has considerable discretion in determining whether a 

conflict is significant. PAI, 614 F.3d at 1352. “A significant potential conflict is one which provides the bidding 

party a substantial and unfair competitive advantage 

during the procurement process on information or data 

not necessarily available to other bidders.” Id. The FAR 

therefore requires mitigation of “significant potential 

conflicts,” but does not require mitigation of other types of 

conflicts, such as apparent or potential non-significant 

conflicts. Id. 

The Court of Federal Claims did not hold that a CO’s 

duty to evaluate potential OCIs is limited to “significant” 

OCIs or that a CO may ignore and not evaluate known 

potential OCIs prior to award. Rather, the court held, 

consistent with PAI, that a CO has two distinct duties 

under FAR § 9.504(a): the duty to evaluate potential OCIs 

as early as possible and the duty to mitigate significant

potential OCIs before contract award. Turner I, 94 Fed. 

Cl. at 574-75. The Court of Federal Claims concluded 

that the CO discharged those duties. 

With respect to the timing of the CO’s investigations, 

the court explained that the FAR “does not require a CO, 

in every single procurement, to review and document 

whether OCIs exist prior to award.” Id. at 575. Courts 

reviewing bid protests routinely consider post-award OCI 

analyses and consider evidence developed in response to a 

bid protest. See, e.g., Masai Techs. Corp. v. United States, 

79 Fed. Cl. 433, 449-50 (2007). In addition, as previously 

conceded by Harbert-Gorrie, “[s]ometimes . . . an OCI 
17 TURNER CONSTRUCTION v. US

cannot be identified until after award” of the contract. 

Turner Constr. Co. v. United States, 94 Fed. Cl. 586, 591 

(2010) (“Turner II”). If the first time an allegation or 

evidence of a potential OCI appears is after award, then 

the earliest time to evaluate that potential OCI as countenanced by § 9.504(a)(1) might be at that time. A CO’s 

post-award evaluation can clear the air of any OCI taint 

by showing that no significant OCI existed. If, however, 

the CO’s post-award evaluation shows that a significant 

potential OCI did exist and went unmitigated in violation 

of § 9.504(a)(2), then serious remedial actions are appropriate. 

Harbert-Gorrie contends that the Court of Federal 

Claims erred by not limiting its analysis to assessing the 

CO’s actions in July 2009 when she first became aware of 

a potential OCI, but that is not the proper inquiry. In 

this case, the GAO should have assessed the reasonableness of the CO’s determinations both in July 2009 and in 

her post-award investigation in January 2010. The Court 

of Federal Claims did not err by considering the CO’s 

post-protest investigation and analysis.

C 

Harbert-Gorrie’s last attack on the merits of the 

Court of Federal Claims’ decision is based on the court’s 

application of the “hard facts” requirement. HarbertGorrie acknowledges that an OCI must be based on “hard 

facts; a mere inference or suspicion of an actual or apparent conflict is not enough.” PAI, 614 F.3d at 1352. It 

claims that the Court of Federal Claims misapplied this 

requirement. Specifically, Harbert-Gorrie argues that the 

Court of Federal Claims’ analysis indicates that it required that the “hard facts” show an actual OCI rather 

than merely the “appearance” of an OCI. These claims 
TURNER CONSTRUCTION v. US 18

are unavailing. 

The Court of Federal Claims explicitly acknowledged 

that “hard facts” do not need to show an actual conflict—a 

potential conflict can be sufficient. Turner I, 94 Fed. Cl. 

at 573. Rather, the Court of Federal Claims drew a 

distinction between circumstances where “hard facts” 

indicate the existence or potential existence of impropriety and circumstances such as these where the finding of 

an OCI relies on inferences based upon “suspicion and 

innuendo.” Id. (citing C.A.C.I., Inc. v. United States, 719 

F.2d 1567, 1582 (Fed. Cir. 1983)). Here, the GAO relied 

on its inference that some unnamed HSMM employees 

“may have had access” to unidentified information. The 

Court of Federal Claims found this inference to be flawed 

because the GAO only found possible rather than actual 

access. Further, this possible access was to “unidentified 

information” rather than specific, sensitive information. 

The GAO cited to no facts supporting its conclusion that 

EB had access to any information of competitive worth. 

The CO specifically identified all information “to which 

AECOM may have had access” and found that the information lacked competitive utility and was actually disclosed to all of the Phase II offerors. Because an unequal 

access OCI requires that a firm have access to non-public 

information that is competitively useful, Axiom, 564 F.3d 

at 1377 n.1, the Court of Federal Claims did not err in its 

application of the hard facts requirement. 

D 

Beyond contesting the merits of the Court of Federal 

Claims’ decision, Harbert-Gorrie also contends that the 

Court of Federal Claims exceeded its “jurisdiction and 

authority” by directing the Army to reinstate Turner’s 

contract. Harbert-Gorrie asserts that although this case 
19 TURNER CONSTRUCTION v. US

was filed as a bid protest, the termination of Turner’s 

contract is actually not a bid protest claim but is more 

properly characterized as a claim under the Contract 

Disputes Act of 1978 (“CDA”). Harbert-Gorrie argues that 

Turner should therefore have been required to comply 

with the provisions of the CDA in order to establish 

jurisdiction in the Court of Federal Claims for the contract termination aspect of Turner’s claim. Because 

Turner did not satisfy the procedural requirements for a 

CDA claim, Harbert-Gorrie concludes that the Court of 

Federal Claims did not have jurisdiction to restore the 

contract. In other words, Harbert-Gorrie contends that 

even if the Army’s decision to follow the GAO recommendation was arbitrary and capricious, the only injunctive 

remedy that the Court of Federal Claims could have 

ordered was the inclusion of Turner in the re-solicitation 

for the hospital contract. 

While Harbert-Gorrie frames this challenge as a jurisdictional argument, it is actually a challenge of the 

scope of the Court of Federal Claims’ equitable powers. 

These concepts are distinct. The Tucker Act, as amended 

by the Administrative Dispute Resolution Act of 1996, 

provides the Court of Federal Claims 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.” 28 U.S.C. § 1491(b)(1). The 

Tucker Act also explicitly empowers the court to “award 

any relief that the court considers proper, including 

declaratory and injunctive relief . . . .” Id. § 1491(b)(2) 

(emphasis added). Thus, once jurisdiction attaches, the 

Court of Federal Claims has broad equitable powers to 

fashion an appropriate remedy. We give deference to the 
TURNER CONSTRUCTION v. US 20

Court of Federal Claims’ decision to grant or deny injunctive relief, only disturbing its decision if it abused its 

discretion. PGBA, LLC v. United States, 389 F.3d 1219, 

1223 (Fed. Cir. 2004). 

Injunctive relief is appropriate if it “enjoin[s] the illegal action and return[s] the contract award process to the 

status quo ante.” Parcel 49C Ltd. P’ship v. United States, 

31 F.3d 1147, 1153 (Fed. Cir. 1994). In this case, the 

Army had already determined that Turner represented 

the best value offer and lawfully awarded it the contract. 

The Army then acted arbitrarily and capriciously by 

following the GAO’s irrational recommendation to overturn that award and re-procure the contract. The Court 

of Federal Claims fashioned a remedy that restored the 

parties to their positions before the Army’s unlawful 

action. This remedy included enjoining the reprocurement of the contract and ordering that Turner’s 

contract be reinstated. The Army did not challenge the 

Court of Federal Claims’ ability to order reinstatement as 

a remedy. Rather, in implementing the Court of Federal 

Claims’ order, the Army examined the circumstances and 

independently concluded that reinstatement was in fact 

advantageous to the Army. See 48 C.F.R. § 49.102(d). 

The fact that the Army has not objected to the scope of the 

trial court’s injunction reinstating the contract is significant, as the government is the only party with standing to 

object to that relief. Harbert-Gorrie participated in a 

procurement that has now been held to be lawful, and it 

has pointed to no legal theory that would give it a right to 

a second procurement. To the extent that the trial court’s 

order to reinstate Turner’s contract is subject to challenge 

as being beyond the proper scope of the remedy in a bid 

protest case, that is a matter that could have been raised 

by the party being enjoined, but not by a third party 

whose rights are not affected by the reinstatement order. 
21 TURNER CONSTRUCTION v. US

Accordingly, we do not disturb the remedy of reinstatement awarded by the Court of Federal Claims. 

CONCLUSION

The judgment of the Court of Federal Claims is affirmed. 

AFFIRMED