In the United States Court of Federal Claims

No. 12-526C

(Originally Filed: November 27, 2012)

(Reissued: December 10, 2012)

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* * * * * * * * * * * * * * * * * * * * * *

SYSTEMS APPLICATION &

TECHNOLOGIES, INC.,

Plaintiffs,

v. Bid Protest; Ability One

Program; Severely

THE UNITED STATES, Disabled Workers

Defendant,

SKOOKUM EDUCATIONAL PROGRAMS,

Intervenor.

* * * * * * * * * * * * * * * * * * * * * *

Craig A. Holman and Dominique L. Casimir, Washington, D.C., for

plaintiff.

Shelley D. Weger, Trial Attorney, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Washington, D.C. for

defendant.

Arnold M. Willig, Seattle, W.A., for intervenor.

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OPINION

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BRUGGINK, Judge.

Publication was deferred pending the parties’ review for redaction of

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protected materials. The parties agreed that no redactions were required.
Systems Application & Technologies, Inc. (“SA-TECH”) is the

incumbent contractor for the Army for “Operation and Maintenance of the

Multipurpose Ranges and Facilities Services” at the Yakima Training Center

(“YTC”), in western Washington state. The YTC is used as a training area for

large-scale military maneuvers involving heavy wheeled and tracked vehicles,

including tanks and long-range weapons. The Army contracts out the

operation and maintenance of the facilities, infrastructure, and range

equipment because it “does not have the work force or expertise to perform

and deliver this service.” Administrative Record (“AR”) 956. The contractor

conducts normal day-to-day operation of the ranges as well as the maintenance

of remote controlled targets and associated equipment. The contractor also

provides management and maintenance for the Multi-Purpose Range Complex

facilities and infrastructure in order to sustain the training mission. AR 956.

The work includes maintaining the live fire range during training by replacing

and repairing targets in order to maintain 100% operational readiness. While

the re-targeting and repair does not take place during live fire, it is hazardous

work, in part, because of the risk of encountering unexploded ordinance and

because the contractor isresponsible for cleanup and disposal of any hazardous

and toxic waste. The site is in a remote desert area. The closest hospital is 30

miles away. There is no public transportation to the site. All the current job

descriptions require that employees be able to drive, lift up to 100 pounds,

engage in strenuous physical exertion during stressful conditions, and be

available 24 hours a day.

The Army proposes taking this work away from the incumbent, with

whom it has no complaint, at the expiration of the contract in order to give the

work to the intervenor, Skookum Educational Systems (“Skookum”), who

promises to do the work using at least sixty percent severely disabled workers.

Under the terms of the applicable statute, severely disabled workers cannot be

otherwise competitively employable. 41 U.S.C. § 8501(8) (Supp. V 2012).

Skookum has “zero” experience with this precise type of work. AR 2525.

While to an outsider it would appear that what the Army proposes is

sheer folly, the government has aggressively defended its actions as

permissible under the Javits-Wagner-O’Day Act (“JWOD”), 41 U.S.C. §§

8501-506. That act authorized creation of the Committee for Purchase from

People Who Are Blind or Severely Disabled (the “Committee” or

“AbilityOne”). Id. § 8502; see Pub. L. No. 95-739, 52 Stat. 1196 (1938)

(“That there is hereby created a Committee . . . to determine the fair market

price of all brooms and mops and othersuitable commodities manufactured for

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the blind and offered for sale to the Federal Government . . . .”). The purpose

of the Committee is to “increase employment and training opportunities for

persons who are blind or have other severe disabilities.” 41 C.F.R. § 51-1.1(a)

(2012). A “severely disabled” individual is the following:

[A] person other than a blind person who has a severe physical

or mental impairment (a residual limiting condition resulting

from an injury, disease, or congenital defect) which so limits the

person’s functional capabilities (mobility, communication, selfcare, self-direction, work tolerance, or work skills) that the

individual is unable to engage in normal competitive

employment over an extended period of time.

41 C.F.R. § 51-1.3. The Committee is responsible for developing a

“Procurement List” of products and services which are suitable for the Federal

Government to procure from qualified nonprofit agencies (“NPA”) which

employ a workforce of blind or severely disabled individuals. 41 U.S.C. §

8503.

For a commodity or service to be suitable for addition to the

Procurement List, each of the following criteria must be satisfied:

(1) Employment potential. The Proposed addition must

demonstrate a potential to generate employment for persons who

. . . have other severe disabilities.

(2) Nonprofit agency qualifications. The nonprofit agency (or

agencies) proposing to furnish the item must qualify as a

nonprofit agency serving persons who . . . have other severe

disabilities . . . .

(3) Capability. The nonprofit agency (or agencies) desiring to

furnish a . . . service under the JWOD program must satisfy the

Committee as to the extent of the labor operations to be

performed and that it will have the capability to meet

Government quality standards and delivery schedules by the

time it assumes responsibility for supplying the Government.

(4) Level of impact on current contractor for the commodity or

service.

(i) . . . whether or not a proposed addition to the

Procurement List is likely to have a severe adverse

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impact on the current contractor for the specific

commodity or service . . . .

41 C.F.R. § 51-2.4.

Once the Committee concludes that a product or service is suitable, it

is added to the Procurement List and the agency is obligated to obtain that

product or service from the AbilityOne approved NPA. 41 U.S.C. §§ 8503(a),

8504. Here, the Committee, with the Army’s concurrence, has designated the

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contract suitable for addition to the Procurement List and for award on a sole

source basis to Skookum, an AbilityOne NPA.

Before us is a bid protest filed by SA-TECH, the incumbent contractor.

During oral argument on November 16, 2012, the court granted a permanent

injunction against placement of this contract on the Procurement List for

AbilityOne contractors. As we explained then, the injunction prevents

Skookum from being awarded this contract on the basis of the current record.

Our reasons for entering an injunction follow.

BACKGROUND

SA-TECH was awarded the current contract for operation of the YTC

on December 24, 2003, after full and open competition, and it has successfully

performed. AR 677, 956-57. The contract was set to terminate on August 24,

2012, but SA-TECH is operating under an extension which will expire on

November 30, 2012. AR 2614.

The Army developed a Performance Work Statement in connection

with renewing the contract for range services. The statement describes the

YTC as “a large, multi-mission military installation that includes state-of-theart ranges . . . capable of supporting up to 15,000 troops daily.” AR 2640.

YTC spans 327,000 acres of terrain that “is covered with sagebrush, volcanic

formations, dry gulches, large rock outcroppings, and flat valleys.” AR 2639-

40. The temperature at the YTC ranges in extremes from well below freezing

in winter to 110oF in the summer. AR 2640. The winters produce an average

This is an exception to the competition requirements of the

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Competition in Contracting Act, Pub. L. No. 98-369, 98 Stat. 1175 (1984)

(codified as amended throughout Title 41 of the United States Code).

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annual snowfall of 24 inches. Id. Forty-five percent of the contract price is

devoted to range operations and thirty-five percent is set aside for facilities and

road maintenance. AR 2719. The contractor will be responsible for preparing

and installing targets for the ranges, configuring “targetry and device

presentation in conformity with scenarios provided” and for the “efficient

operation of the complex.” AR 3155. Live ammunition and explosives are

used at YTC in the course of training and, therefore, “quantities of dud and

other potentially hazardous munitions may be found on all parts of YTC.” AR

2661.

The President of SA-TECH, Timothy Adams, testified before the

Committee at a hearing in April 2012 that the purpose of training exercises on

the ranges is to put stress on the soldiers, but the effect is stress on everyone,

including the contract employees. AR 2511. He characterized it as “extremely

hazardous high pressure work which if not performed properly poses

significant risk to the employees and the troops they train.” AR 2502. “The

severely disabled cannot effectively or safely perform at the Yakima Training

Center live firing range . . . .” AR 2502. He found it “hard to imagine people

who are not extremely fit” being capable of doing the work. AR 2511. Also,

each of his employees must be able to multitask, doing each others’ jobs as

necessary. AR 2511.

With the current contract nearing its end, Mission and Installation

Contracting Command (“MICC”) through its Director of Contracting, Pamela

Munoz, and Contract Administrator, Angela Chaplinski, began exploring the

possibility of turning the work over to an NPA under the AbilityOne Program.

See AR 1013. There is nothing in the record to indicate what triggered that

consideration for the range services contract, although Army contracting

entities were being encouraged to “look for more opportunitiesto contract with

AbilityOne-participating nonprofit agencies.” AR 781.

Ms. Munoz contacted the National Institute for the Severely

Handicapped (“NISH”). See AR 1023. NISH is one of two “Central

Nonprofit Agencies” tasked by the Committee with facilitating “distribution

. . . of government products and services on the procurement list.” 41 U.S.C.

§ 8503(c). In order to assess whether range operations at YTC were a viable

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NISH receives a percentage of the revenues from the contracts

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(continued...)

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project for NISH and to better determine whether “people with disabilities”

could perform the work, Ms. Munoz, Ms. Chaplinski, and NISH’s Executive

Director for the Northwest Region visited the training center on September 16,

2010. AR 1075, 1095-1104. Shortly thereafter, MICC, NISH, and the

command at YTC determined that this contract was a candidate for the

Procurement List. AR 956.

On October 4, 2010, the Committee sent SA-TECH’s Mr. Geoff

DeZavala a letter informing plaintiff that the Committee intended to consider

adding the contract for live firing range operations at the YTC to the

Procurement List. The Committee asked SA-TECH to let the Committee

know what impact losing the contract would have on the company. The letter

stated, “[T]he Committee will interpret your lack of response to indicate that

you have determined that the level of impact on your firm would not be severe

. . . .” AR 104-05. On October 21, 2010, the Committee sent another letter

informing SA-TECH that its failure to respond was interpreted by the

Committee as an admission that loss of the contract would not impact SATECH severely. AR 108. This letter also informed SA-TECH that it could

submit a comment during the Committee’s informal rule-making process. AR

108-109. SA-TECH did not respond, and on November 1, 2010, the

Committee issued its “Impact Analysis” finding that SA-TECH would not be

adversely affected by adding the contract to the Procurement List. AR 111.

On October 8, 2010, NISH issued a “sources sought notice” for up to

three potential NPA contractors to submit briefings to the Army concerning

their capability to operate YTC. AR 1113-15. Skookum was the only NPA to

respond with a proposal. AR 1238. Representatives from MICC, Skookum,

and NISH visited the range and on December 10, 2010, presented a

capabilities briefing to the Army. AR 961. The Army referred the contract to

the Committee on December 30, 2010, in effect seeking a determination of

whether to add the contract to the Procurement List. AR 118.

Contemporaneous with this review, Jeffrey Dolven, the CEO of

Skookum, emailed Ms. Munoz the following:

(...continued)

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awarded to NPAs. 41 C.F.R. § 51-3.5.

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As we briefed on Friday, we plan to start the project with

essentially the same crew now on the ground in Yakima. Over

the next five years we will slowly integrate people with

disabilities into the work force, focusing on finding people with

the abilities to the get the job done. . . . I’d like to go one step

further and offer the following guarantee in an effort to make

the installation more comfortable with committing to the

AbilityOne path. If we get into this project and find that we

can’t integrate people with disabilities into this environment,

we'll work out a way to migrate the project out of the AbilityOne

program and back into the realm of competitive procurement.

What I mean is that if we get a year or so into this project and

the folks we are placing into the workforce can’t for some

reason get the job done from the customer’s perspective,

Skookum will hire people without disabilities and will run the

range using a more traditional workforce until the Government

can move the project back into the realm of competitive

procurement and find a more traditional vendor.

AR 821.

During the Committee’s first assessment, SA-TECH submitted a letter

to the Committee outlining why the contract should not be placed on the

Procurement List. It explained that the range contract made up six percent

percent of SA-TECH’s total revenues and that the company’s experience on

the contract is a major marketing tool for other military work, meaning that

loss of the contract would cause significant harm to the company. AR 287.

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Attempting to assuage concerns within the Army, Ms. Munoz emailed

YTC Commander, Lieutenant Colonel Michael Daniels (“LTC Daniels”):

It is my plan to start engaging Skookum in the development of

this requirement so all can start getting more comfortable with

this partnership and the skills Skookum brings to the table. I can

During his oral presentation to the Committee on April 24, 2012,

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Timothy Adams, CEO of SA-TECH, stated that the contract represented ten

percent of revenues. AR 2503.

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do this because this is not a competed requirement, which gives

us more leeway for a collaborative effort.

AR 855. Despite the statutory dictate that severely disabled individuals are,

by definition, not commercially employable, she further passed along the

following: “Skookum estimates that 10% of the current labor force may have

conditions to meet the criteria for severely disabled . . . especially if they are

vets. Please remember the term ‘significantly disabled’ is very broad and

frequently includes people some may be surprised would meet this criteria.”

AR 856.

NISH submitted an assessment package to the Committee putting

forward Skookum’s proposal on May 12, 2011. AR 118. In that line in the

submission form at which NISH was to do an assessment of Skookum’s

capability to do the work, the following appears:

Waived. Skookum is a capable NPA for this project. Skookum

has experience in Total Facilities Maintenance with current

AbilityOne/DOD projects. Many of theirstaff have professional

experience with Range Control and experience with many of the

areas in the [Statement of Work]. Skookum also currently

manages 3 large technical service contracts at JBLM, CIF, Fleet

and janitorial very successfully.

AR 121.

On July 18, 2011, the Committee voted to approve adding the contract

to the Procurement List. AR 268-69. Because adding a service to the list

involves informal rule-making, the Committee published a notice in the

Federal Register on July 22, 2011, proposing to add the range operation

contract. AR 937-38. The Committee officially added the contract for

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operation of the YTC to the Procurement List on July 26, 2011.

The notice referred to the contract as one for “facilities maintenance,”

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rather than for operation and maintenance of the ranges, although the work to

be performed did not change. Facilities maintenance was, however, an area

with which Skookum had prior experience.

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Thereafter, on August 25, 2011, LTC Daniels obtained a memo with the

following concerns:

The stringent requirements under the contract to conform to all

OSHA regulations, all explosive ordnance directives and to

operate safely in a highly dangerous work environment could be

compromised by a severely disabled workforce. Severely

disabled individuals most likely would have issues with the

following skills and requirements in the Contract:

a. 24/7/365 Work schedule in all types of weather (rain, snow,

cold, etc.)

b. No notice call back to work, at all hours.

c. High physical labor requirements (must be able to lift up to

but not to exceed 100 lbs)

d. Work in a high pressure, dangerous, live fire range

environment

e. Work with high voltage electricity

f. Operate heavy equipment (road graders, backhoes, dump

trucks)

g. The majority of the job positions have the skill set

requirement of the physical dexterity to push/pull,

climb/balance, bend/stoop, twist/turn, kneel/crouch, crawl, reach

overhead, grasp, use feet for foot controls in order to perform

ones job duties.

AR 2205. We do not know who originally wrote this memo, but it was part of

the record made available to the Committee. The apparent source of the

memo, however, was George Holman, the civilian Range Officer working for

the Army at YTC, but the paper might have originated on an SA-TECH

computer. AR 2203-211.

In response to the Committee’s decision to add the contract to the

Procurement List, SA-TECH initially filed suit here on August 26, 2011. AR

1675. On November 10, 2011, the Committee volunteered to reevaluate its

action to add the contract to the Procurement List, AR 1676, and plaintiff

voluntarily dismissed that first protest.

In the course of making its reevaluation, the Committee sought more

information from SA-TECH and Skookum. AR 1892. On January 25, 2012,

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SA-TECH submitted a packet of information further detailing how SA-TECH

would be harmed by the addition of the contract to the Procurement List and

why, in its view, the services covered by the contract cannot be performed by

the severely disabled. AR 1892, 1897.

Also on January 25, 2012, employees of MICC met with Mr. Lou

Bartalot, AbilityOne’s Director of Compliance, to discuss the reevaluation

process and the need to create an administrative record. AR 3183. The group

discussed whether to do a pre-award survey assessing the NPA contractor’s

potential to do the work. AR 3184. Applicable regulations provide that the

“Committee may request a contracting office to assist in assessing the

capabilities of a nonprofit agency.” 48 C.F.R. § 9.107(a) (2012). The

contracting office may then produce a capability survey or “notify the

Committee that the AbilityOne participating nonprofit agency is capable, with

supporting rationale, and that the survey is waived.” 48 C.F.R. § 9.107(b).

While the group noted that the capability survey previously had been waived,

the group concluded that “there is no value added to the process by doing the

survey.” AR 3184.

The following day, Mr. Bartalot attended another group meeting in

which Army personnel asked him to explain what it meant to be severely

handicapped. AR 3190. “Mr. Bartalot explained that to AbilityOne severely

handicapped meant a person with functional limitations that made them not

commercially employable.” AR 3183.

After attending this meeting with Mr. Bartalot and receiving Skookum’s

Technical Proposal, LTC Daniels delivered a memorandum for the record

describing his reservations about adding the contract to the Procurement List.

AR 1882, 3192. Specifically, he stated, “we still harbor reservations about any

NISH / AbilityOne contractor being able to successfully meet all the contract

requirements . . . .” AR 3192. He remained “uncomfortable with the vetting

and definition of ‘significantly disabled’ and how that impacts the labor force

of the contract,” expressed “concern[] about the definition of a disabled

worke[r], and the potential hiring pool in the area,” and he doubted whether

“having a labor force that has severe mental and physical disabilities,

monitored by non-medical supervisors / work leads, and working in what can

be a harsh and stressful environment, will produce a positive outcome.” Id.

LTC Daniels went on to say, “[w]e were originally led to believe that disabled

veterans, some employed by the incumbent contractor, would meet

AbilityOne’s definitions and remain employed after vetting, counting towards

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the final goal.” Id. Although LTC Daniels was not confident in the outcome,

he “hesitantly agreed to proceed.” Id.

In lieu of the pre-award capability survey contemplated by regulation,

MICC issued a “Determination and Findings” for the YTC contract on April

19, 2012. AR 3298, 3306. After discussing Skookum’s financial capability,

human resources, quality control and safety, and technical capacity, MICC

certified that Skookum was capable of performing the work even though

“Skookum currently does not have . . . direct experience in providing range

operations and maintenance of the targets.” AR 3298-3306. With respect to

Skookum’s Technical Capacity to do the work, the Determination and

Findings concluded the following:

Some portions of the required services have not been performed

by Skookum, so no information can be provided to further [the

contracting office]’s knowledge in those areas and in the areas

where Skookum is already providing these services. The

[contracting office] has sufficient information internally to

satisfy its knowledge of Skookum’s technical capacity and

capability.

AR 3299. In other words, the fact that Skookum lacked relevant direct

experience apparently was a reason, at least in MICC’s view, not to do a more

detailed capability assessment. Instead, MICC was satisfied based on

Skookum’s general record of performance on other AbilityOne contracts. It

is not clear from the record what the basis was for the internal information that

satisfied MICC.

On July 6, 2012, the AbilityOne Committee issued a reevaluation letter

to its members that called for a vote regarding the prior decision to place the

YTC contract on the Procurement List. AR 1664. This letter recommended

that the Committee vote to approve adding the contract to the Procurement List

with the understanding that it would be performed by Skookum. AR 1673.

Along with the vote letter, the members of the Committee received the

Committee Staff’s Executive Summary, a draft of the performance work

statement, Skookum’s proposal, SA-TECH’s submission outlining its

concerns, a letter describing the Army’s concerns, MICC’s Determination and

Findings, and other supporting documents. AR 1675-2489 passim.

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The Committee held an Executive Session on April 24, 2012, at which

representatives of SA-TECH and Skookum were permitted to make

presentations. AR 2490. During the session, committee member Kathy

Martinez told plaintiff’s counsel,

I am very concerned about your concept of what a significant

disability means and what people with significant disabilities

can do? I happen to be a blind person. I don’t work on a

shooting range, but I am you know, a significant, I am a person

with a significant disability who is employed. And, I am

unaware that the term significant disability means that you can’t

hold down a job.

AR 2508. After plaintiff’s counsel read the statutory definition of “severely

disabled,” Ms. Martinez replied, “I think that’s a very antiquated definition

frankly.” Id.

On July 20, 2012, the Committee again voted to add the YTC contract

to the Procurement List. Nine members voted in favor, one was undecided,

and three disapproved. AR 2566. The three dissenting members of the

Committee expressed doubts as to the propriety of awarding this contract

through AbilityOne. They were concerned because the principal behind the

incumbent contractor was a disabled person who employed service disabled

and other veterans, the work did not seem safe for severely disabled

individuals, Skookum was allowed a long phase in period and a low goal for

the percentage of severely disabled individuals employed, and Skookum had

not presented a plan for transporting severely disabled individuals 33 miles to

and from YTC. See AR 2567.

After the Committee voted to keep the contract on the Procurement

List, MICC made what it characterized as “massive changes” to the

solicitation. AR 3181-82. The Committee did not subsequently reevaluate

whether to add the contract to the Procurement List.

In response to the Committee’s second vote to add the contract to the

Procurement List, SA-TECH filed the present bid protest on August 20, 2012.

Currently before the court are the parties’ cross-motions for judgment on the

administrative record. As we announced at the end of oral argument, and for

the reasons explained below, we grant plaintiff’s motion for judgment on the

administrative record and we deny defendant’s cross-motion for judgment on

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the administrative record. We enjoin placement of this contract on the

Procurement List for AbilityOne contractors.

DISCUSSION

Pursuant to the Tucker Act, this court has 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) (2006). SA-TECH is an “interested party” because, as the

satisfactorily performing incumbent, SA-TECH is an “actual or prospective

bidder[] or offeror[] whose direct economic interest would be affected by the

award of the contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d

1294, 1302 (Fed. Cir. 2001). SA-TECH asserts that the Committee violated

41 U.S.C. § 8501(6) (Supp. V 2012) by applying the statutorily required 75%

ratio of severely disabled workers to the NPA as a whole rather than to each

contract. In the alternative it argues that the Committee acted in an arbitrary

and capricious manner by adding the contract to the Procurement List without

satisfying the suitability determination requirements set out in 41 C.F.R. § 51-

2.4 (2012). “As long as a statute has a connection to a procurement proposal,

an alleged violation sufficesto supply jurisdiction.” RAMCOR Serv. Grp., Inc.

v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999). See also Angelica

Textile Serv., Inc. v. United States, 95 Fed. Cl. 208, 215-18 (2010) (finding

that the Court of Federal Claims has jurisdiction to hear protests regarding

AbilityOne’s decision to add a service to the Procurement List and, if

warranted, to grant an appropriate remedy). Because SA-TECH is an

interested party alleging a violation of law in connection with a procurement,

we have jurisdiction.

The standard of review we enforce in bid protests is borrowed from the

Administrative Procedures Act. See 28 U.S.C. § 1491(b)(4) (2006). The

Committee’s actions, findings, and conclusions are thusreviewed to determine

if they were “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law.” 5 U.S.C. § 706(2)(A) (2006).

The Committee used informal rule-making to add the operations and

facilities maintenance services at the YTC to the Procurement List. The

measuring stick for the Committee’s action is its own regulations which

describe the suitability determination that the Committee must make before

adding a product or service to the Procurement List. 41 C.F.R. § 51-2.4.

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Thus, when comparing the Committee’s action in this case to the regulation

that describes the requirements of a suitability determination, the court will

consider: “(1) whether the rulemaking record supports whatever factual

conclusions underlie the rule; (2) whether the policy determinations behind the

rule are rational; and (3) whether the agency has adequately explained the basis

for its conclusion.” McGregor Printing Corp. v. Kemp, 20 F.3d 1188, 1194

(D.C. Cir. 1994); see Mortg. Investors Corp. of Ohio v. Gober, 200 F.3d 1375,

1378 (Fed. Cir. 2000).

SA-Tech’s primary legal argument is that the Committee failed to

enforce what it contends is a statutory requirement that 75% of the direct labor

on the contract be performed by the severely disabled. It relies on the

definition of a qualified agency, which is an entity:

(C) that in the production of products and in the provision of

services (whether or not the products or services are procured

under this chapter) during the fiscal year employs blind or other

severely disabled individuals for at least 75 percent of the hours

of direct labor required for the production or provision of the

products or services.

41 U.S.C. § 8501(6) (Supp. V 2012). The Committee takes the view, as

expressed in its regulations, 41 C.F.R. § 51-1.3; AR 373, that the 75%

requirement applies to the entire labor force of a qualified entity, not

necessarily the force used on any one contract. In this case, the Committee

proposed to let Skookum build up to a 60% severely disabled workforce by the

end of three years. It was satisfied that Skookum’s overall workforce still

would exceed 75% severely disabled.

It is unnecessary for us to resolve this dispute. We conclude for

reasons set out below that the Committee acted in an arbitrary and capricious

way in placing the YTC contract on the Procurement List, irrespective of

whether it erred in not requiring Skookum to reach the 75% severely disabled

level for the YTC contract.

Plaintiff contends that the agency did not perform a proper suitability

assessment pursuant to section 8503(a) of the JWOD Act and its implementing

regulations. Under those regulations, the record must demonstrate four things:

1) that putting the contract on the Procurement List has the potential to create

jobs for the severely disabled, 2) that Skookum was a qualified entity, 3) that,

at the time Skookum would begin doing the work, it had the capability to meet

Government quality standards and delivery schedules, and 4) that the

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Committee evaluated whether taking the contract away from SA-TECH would

have an adverse impact on the incumbent. 41 C.F.R. § 51-2.4. Plaintiff argues

that none of the four criteria were satisfied, but we will limit ourselves to two:

whether the record demonstrates that putting the contract on the Procurement

List had the potential to create jobs for the severely disabled and whether

Skookum had the capability to meet Government quality standards and

delivery schedules. The two questions are related.

The Committee required Skookum to commit to using 60% severely

disabled for its direct labor. This meant that at least 20 out of the 30 direct

labor employees would be severely disabled. Plaintiff contends that the record

does not show either that there was a meaningful prospect of employing

anywhere near that number of severely disabled or, if that number were

achieved, that severely disabled employees could do the work.

There are a number of contraindications with respect to the likelihood

of creating jobs for the severely disabled. First, there is the difficulty of

finding a sufficient number of qualified but severely disabled individuals

within commuting distance of the ranges. The contracting officer refers to a

“dearth” of such persons in the Yakima area and the unwillingness of persons

to relocate to Yakima from the Puget Sound area. AR 856. Committee staff

cautioned,

The selection of the people with severe disabilities for this

particular AbilityOne project will require more rigorous

recruiting and training than most other AbilityOne projects. In

particular, the need for physical dexterity and mental faculties

will reduce the pool of individuals that also meet the

Commission’s definition of severely disabled.

AR 1685.

Skookum proposed starting on day one of the contract with nine

severely disabled persons. When Skookum was asked about how it would

locate such persons, it referred merely to statistics about the “disabled” in the

Yakima area. One of the Committee members pointed out that this data could

not be relied on with respect to the severely disabled, and referred to

Skookum’s figures as a marketing pitch. AR 2528.

None of these nine initial employees were identified by name, by

capability, or by disability. Despite the unusually rigorous physical demands

of the job, Skookum made no effort to match the requirements of particular

15
jobs with particular disabilities and offered only the vaguest generalities. See

AR 2522 (“[T]ypically, we don’t find a match between the AbilityOne

definition and the VA definition before you start getting into the 60-70%

range. And, even then it’s a case-by-case. But, there are folks out there who

will qualify.”); AR 3265 (“We are confident that over the period of 36 months

we will obtain the necessary workers . . . .”).

When asked to propose an individual currently working for Skookum

who might be able to do the work, Mr. Dolven referred to an employee at the

White Sands Missile Range who suffers from acoustic neuroma, bells palsy

and has hearing loss. One of the Committee members pointed out, however,

that an acoustic neuroma can be benign and that Skookum could “be

challenged in regard to whether that individual could be one of the most

significant disabled persons.” AR 2523. Equally problematic, however, was

that the individual had balance problems and thus could not climb. He was

also hearing impaired. Given this particular example, the Committee should

have posed the question how someone who cannot climb and has hearing

problems could function on the Yakima ranges.

In a memorandum to Committee members, staff suggested that work

being performed elsewhere by Skookum with the severely handicapped was

comparable to that required at Yakima. They noted that:

Maintenance trade helpers and laborers are among the positions

filled by people with severe disabilities doing the range

maintenance work at those locations. The people with severe

disabilities employed at White Sands and Fort Bliss have a

number of disabilities including major depressive disorder,

post-traumatic stress disorder (PTSD) with depressive and

anxiety disorder, degenerative joint disease, deafness, polio,

borderline intellectual functioning, bipolar and learning

disabilities.

AR 1686.

It is uncontroverted that the YTC contract is not the same as the work

Skookum does at Fort Bliss and White Sands. Describing the YTC contract

as merely “facilities maintenance” makes it sound more like other AbilityOne

work, but that description is inaccurate. Conditions on the range are stressinducing, according to Mr. Adams, and involve the explosion of munitions

during live fire. An unavoidable question should have been, is it appropriate

to put someone who has severe post-traumatic stress disorder with depressive

16
and anxiety disorder on or even near a live fire range. Or, can someone who

has degenerative joint disease or polio meet the physical requirements of the

job: “Requires ability to lift and carry boxes and packages not to exceed

100lbs. Requires the physical dexterity to push/pull, climb/balance,

bend/stoop, twist/turn, kneel/crouch, crawl, reach overhead, grasp, [and] use

feet for foot controls.” AR 2010 (describing the job of a Maintenance Trades

Helper).

Instead of asking such questions, the Committee staff shifted the burden

to SA-TECH and relied on high-minded policy:

The listsupplied by SA-TECH containsfactualstatements of the

contract requirements, but they are not factual evidence that

individuals with severe disabilities are inherently incapable of

performing the required tasks safely. Moreover, it should not be

assumed that Skookum will perform the work in the same way

that SA-TECH has in the past.

As the Committee is well aware, throughout history, there are

many notable congressional actions that have become law,

including the JWOD Act, to dispel the attitude that people with

disabilities ‘cannot do that.’ The JWOD Act recognizes that, in

the performance of federal contracts, people with disabilities are

hired for what they ‘can do.’ . . . In reviewing the list of

performance and safety concerns noted, SA-TECH simply wants

the reader to accept their unsupported claims that people with

severe disabilities cannot perform the functions.

AR 1685. It was not SA-TECH’s burden to show that severely disabled are

“inherently incapable” of performing any of the tasks on the YTC contract. It

was Skookum’s burden, given the numerous reasons for concern, to show that

there were a sufficient number of specific jobs that could be done by severely

disabled workers. Instead of thinking critically about whether severely

disabled individuals are capable of performing the contract, the Committee

criticized SA-TECH for assuming “that Skookum will perform the work in the

same way that SA-TECH has in the past,” and uncritically accepted

Skookum’s unsupported claim that doing the work in some unspecified

17
different way somehow solves the technical problems posed by the YTC

contract.

6

Skookum’s confidence in the face of the unique tasks could be

attributable to optimism. Alternatively, the Committee had reason to be

concerned that Skookum would accomplish the job without really making use

of the severely disabled. Initially Skookum told Ms. Munoz that it expected

to do the work by hiring all of SA-TECH’s existing employees. AR 821, 1263

(“[W]e plan to start the project with essentially the same crew now on the

ground in Yakima.”). That is consistent with its history on another contract:

“In October 2008, we took over Base Operating Services for the Acoustic

Research Detachment, and similarly were able to retain the previous direct

labor work force and provide superior quality to the Navy.” AR 976.

When asked by one of the Committee members to answer a charge by

SA-TECH that Skookum planned to simply re-employ its workforce, Mr.

Dolven gave the following response:

Jim Omvig: This is Jim Omvig. I am trying to decide if I should

ask this. It has been suggested that you might try to count

several people who were on their workforce and classify them

as severely disabled even though they know, or even though you

know, they do not really meet the significant disability definition

here.

Jeff Dolven: Scurrilous accusations. (laughter) I don’t know

what to say to that. What we are trying to do is to express our

intent which we’d go in and talk to the incumbent workforce,

you know. We haven’t talked to these folks. We’re not exactly

on speaking terms, but we need to first seek to understand, right.

So Jim, what we are trying to say is that we are going to go in,

talk to them you know, their president said I have veterans with

disabilities, okay let’s talk to them. I am skeptical and was

Skookum’s CEO made reference in his oral presentation to job

6

splitting and making use of part-time workers as forms of accommodation, but

did not explain how that would overcome the fundamental challenges of

finding people who could drive, lift “packages not to exceed 100lbs,” and have

“the physical dexterity to push/pull, climb/balance, bend/stoop, twist/turn,

kneel/crouch, crawl, reach overhead, grasp, [and] use feet for foot controls.”

AR 2010, 2517.

18
skeptical at the time that they would have a definite...you know,

severe enough disability to count. But, you know I don’t want

to categorically say no. But, that’s not typically what we find.

If you find someone who is working for a large company then

almost by definition they’re employable unless there’s some

accommodations in place that are being made, and that happens.

There are companies that have a social conscience to do this

kind of stuff. But, out of ignorance I am not going to

categorically deny them the opportunity; to talk to our HR folks.

AR 2525-27.

Mr. Dolven, in short, did not disavow that his plan to begin with nine

severely disabled employees involved the hope that Skookum might be able to

reclassify SA-TECH’s existing employees. That was consistent with Ms.

Munoz’ understanding that “Skookum estimates that 10% of the current labor

force may have conditions to meet the criteria for severely disabled . . .

especially if they are vets.” AR 856. This should have triggered a concern

that the incumbent would be ousted on the basis of improperly reclassifying

persons who were disabled, but not unemployed, or that Skookum did not have

a feasible plan for hiring the severely disabled.

It should have been readily apparent to the Committee and MICC that

there was an inherent contradiction built into Skookum’s proposal. To the

extent Skookum’s capability to the do the work with a significant number of

severely disabled individuals was questioned, it retreated to assurances which

undercut the likelihood that the contract had the potential to create jobs for the

severely disabled: Skookum would initially hire all of the incumbent

employees (by definition, none could be severely disabled), it would only

7 8

attempt to achieve a 60% level of severely disabled instead of the typical 75%,

See AR 1497 (“If anything . . . with Skookum’s position to retain

7

current contract staff during an extended phase-in, you will have more stability

of contractor workforce and contract support than you would through a

competed endeavor in which you would not have this guarantee.”).

An individual is not “severely disabled” if he or she “is able to engage

8

in normal competitive employment because the impairment has been overcome

or the condition has been substantially corrected.” 41 C.F.R. § 51-1.3(2).

19
and it would not attempt to achieve that until the end of three years of

performance, instead of the usual 90 day phase-in.

What should have been equally disturbing was Skookum’s ultimate

guarantee that if it couldn’t do the work, it would abandon the effort to achieve

even 60% and simply use able-bodied workers. While these assurances might

be relevant to meeting the capability requirement, they are obviously at odds

with the statutory expectation that a meaningful number of jobs could be

created for the severely disabled. Skookum’s efforts to straddle both

requirements created a built-in tension in its proposal. It was MICC’s and the

Committee’s obligation to identify that tension and resolve it, not to ignore it

and in effect turn the procurement into an experiment.

9

Based on this record, we cannot defer to the conclusion by the MICC

and the Committee that there was a potential for creating jobsfor the severely

10

disabled. It is of particular concern to the court that the individual at the Army

whose responsibility it was to protect the Army’s interests showed an

inclination to accept creative applications of the term “severely disabled,” AR

856, 1509, and seemed more eager to promote AbilityOne in general and

Skookum in particular than to address the serious misgivings being raised. In

addition, some Committee members seemed hostile to statutory limitations on

the term “severely disabled,” AR 2508 (“I think that’s a very antiquated

definition frankly.”), and the terms “disabled” and “severely disabled” are used

interchangeably throughout the record as if there were no distinction.

Compare AR 1885 with AR 1669.

11

See AR 363 (Statement of Committee member explaining approval

9

vote: “I am concerned about what appears to be an exceptionally long phase-in

period for this contract. I believe the Committee should monitor this contract

on a yearly basis to determine if the workers are available to support this

contract.”).

We recognize that some members on the Committee asked serious

10

questions (without receiving serious answers) and some voted against giving

the contract to Skookum. Of necessity we must refer to the action of the

Committee as a whole.

Jim Omvig: Would you intend to hire some of he

11

employees who are working on the project right

now?

(continued...)

20
These same factors raise questions about the second criteria, namely,

whether Skookum, assuming it could find a sufficient number of severely

disabled people located near Yakima, would have the capability to do the

work. Army personnel responsible for successful operation of the YTC

expressed “reservations about any . . . AbilityOne contractor being able to

successfully meet all the contract requirements, and . . . [remained] very

concerned about a potential gap in range maintenance coverage should this .

. . option fail.” AR 1882. In the court’s view, those concerns were never

meaningfully addressed.

Despite the fact that this was to be “the first Range Operations Services

in the AbilityOne Program,” AR 118; see AR 3220-23, MICC waived any

assessment to determine if Skookum had the capability to perform the work.

Later, in doing their corrective action after the first protest, Committee staff

met with representatives of MICC and concluded that “there is no value added

to the process by doing the survey.” AR 3184. The attendees of a meeting

between MICC and Mr. Bartalot, who was representing AbilityOne,

recognized that this was somewhat unusual, but stated, “Mr. Bartalot told us

that Skookum was preparing a Capability Report to document its business

development plan and how it plans to execute this service. Skookum will

provide this office a copy when it is done. Expected NLT 03 February 2012.”

AR 3184. Skookum, in short, was to do its own capability assessment.

Skookum indeed submitted a lengthy and detailed proposal for

performing the YTC contract, concluding that it “does not see significant

issues with routinely operating in any of the requirements at the YTC under

any of the conditions listed.” AR 3238. The 100-page proposal would be

reassuring if it were submitted in connection with any typical commercial

competition. Skookum’s proposal thoroughly addresses its organizational

structure, both generally and the one proposed for the YTC, details its

experience on prior and other current contracts, outlines the nature of the work

(...continued)

11

Jeff Dolven: Absolutely. Absolutely. . . . So, what I

would intend to do at Skookum is go in, integrate on dayone nine people with disabilities into the existing

workforce letting nine folks from the incumbent

workforce go.

AR 2525-26.

21
required and its intent to perform that work, provides the resumes of the

extensive experience of its permanent (presumably notseverely disabled)staff,

and details its experience in working with the disabled. This is not a typical

commercial competition, however. In addition to the normal assurances that

have to be given, Skookum had to do at least two other things: show that the

contract has the potential for putting severely disabled persons to work and

demonstrate that it has the capability of doing the work while using that

workforce. The term “severely disabled” does not appear once in connection

with the YTC work. Most critically, Skookum makes no attempt to explain

12

how particular direct labor positions or tasks at the ranges could be done by the

severely disabled.

This omission was observed by LTC Daniels: “We are still very

uncomfortable with the definition of ‘severely disabled’ and how that impacts

the labor force of the contractor. . . . [O]ur very experienced range staff

strongly doubts that having a labor force that has severe mental and physical

disabilities . . . working in what can be a harsh and stressful environment, will

produce a positive outcome.” AR 1882. Instead of taking these concerns

seriously, Linda Murphy, the contracting officer at the time of the

reassessment, wrote that “I feel it would not be appropriate at this juncture for

the Army to actively participate further in the Commission’s listing decision

beyond what I have already stated in my determinations and findings issued in

response to the proposal by Skookum.” AR 3297.

Skookum’s proposal also demonstrates the same lack of differentiation

between disabled and severely disabled employees which marks other parts of

the record. See AR 3300 (“Skookum’s intent is to have at least 60% of the

direct labor workforce comprised of people with disabilities by the end of its

three (3) year phase-in period.”); AR 3300-301 (“Research shows that in

Yakima County alone, there is a disabled employee labor pool of

approximately 6,138 people.”). This distinction is a critical assumption behind

the JWOD Act. See 41 U.S.C. § 8501(8).

MICC’s Determination and Findings relied on Skookum’s proposal as

a substitute for its own capability determination. MICC concluded that

“Skookum’s vocational rehabilitation HR personnel have extensive experience

with integrating people with disabilities into jobs that are virtually identical

The term appears twice elsewhere in Skookum’s proposal. Once by

12

reference to the Committee and again in a resume of one of its employees.

22
to those at the MPRC” and that “Skookum is familiar with and experienced in

working around live fire ranges and has a perfect safety record at WSMR

[White Sands Missile Range]. Skookum’s function at WEMR [sic] is

base-wide Public Works.” AR 3301 (emphasis added). The support for this

statement is then detailed:

2. Operations on a Live-Fire Range

Skookum performs grounds maintenance work around the

magazines for the Naval Trident Submarine Fleet at NBK

Bangor, which indicates an awareness of and ability to operate

in a potentially dangerous environment. Skookum has evaluated

the skill sets and the knowledge base required to support the

operation of a live-fire training range and compared that

information against its core competencies in other Government

contracts in developing its service delivery plan.

Skookum currently does not have the direct experience in

providing range operations and maintenance of the targets;

however, it is a member of the AbilityOne Network of over 600

Non-Profit companies providing services to the US

Government. As part of this network, Skookum is able to reach

back to other AbilityOne Providers who may have experience in

these areas, if required. Information on two of these companies

is provided below.

a. Pride Industries, an AbilityOne Network Provider, is currently

performing base operations services at Fort Polk, LA, many

aspects of which are alike or similar in nature to the services to

be performed at YTC by Skookum.

The work includes road/tank trail maintenance and upkeep,

snow removal, facility and ground maintenance.

b. Tresco, another AbilityOne Network Provider, is currently

performing base operations services at Fort Polk, LA, and

general support services associated with the operation of the

High Energy Laser Systems Test Facility (HELSTF), located at

White Sand Missile Range (WSMR) in New Mexico. Skookum

providesthe facilities maintenance and repair at WSMR. Tresco

provides metal working support for maintenance, repair, and

modification of equipment and components for the HELSTF,

23
including test support areas, test cell areas, laser device support

systems, high-energy laser sites, and support facilities. Key

expertise provided by Tresco includes, certified HVAC

Technicians, licensed Electricians, certified Mobile Crane

Operators, Heavy Equipment Operators, and Precision

Machinists.

AR 3303.

A number of things stand out about this explanation. First, none of the

experience cited is actual experience working “around” a live fire range. As

Mr. Dolven pointed out at the oral presentation to the Committee, White Sands

is a missile range, and therefore not comparable to YTC. AR 2525.

Moreover, Skookum’s activity at White Sands is not maintenance of range

targets. It is facilities maintenance more generally.

Second, although “Skookum currently does not have the direct

experience in providing range operations and maintenance of the targets,” AR

3303, MICC seemed to think it is relevant that there is a network of over 600

other AbilityOne contractors who are “providing services to the US

government.” Id. None of those services, however, could possibly be

operation and maintenance of a live fire range, as the YTC contract would be

the first for an AbilityOne contractor.

Third, MICC was satisfied that Skookum could “reach back” to other

AbilityOne providers who have experience in “these areas.” AR 3303. It is

less than clear what “reaching back” involves, or of what “these areas” consist.

The reference to the work of Pride Industries and Tresco is notably lacking in

operation and maintenance of a live fire range. Plainly the experience of other

entities who would assume no contract obligations to the Army, particularly

when that unspecified experience cannot possibly involve the precise work

involved, is irrelevant to whether Skookum can do the contract work.

Skookum proposed assigning four job positions to the severely

disabled: maintenance trade helpers, laborers, one electronic technician and

one truck driver. Apparently recognizing that the current position descriptions

require substantial physical prowess and dexterity, the Determinations and

Findings makes the following statement under the heading, “Employee ability

to lift Heavy Objects”:

When there is a position requirement of physical dexterity to

push/pull, climb/balance, bend/stoop, twist/turn, kneel/crouch,

24
crawl, reach, or grasp to perform specific job duties, Skookum

intends to closely match employees to the required needs.

AR 1889. All the current position descriptions currently require employees to

be able to perform those tasks, and lift up to 100 pounds, and drive. See AR

2000-22. It was arbitrary and capricious to suggest that the solution to this

fundamental dilemma of matching the onerous physical work of this contract

with the severely disabled was the non-answer that “Skookum intends to

closely match employees to the required needs.” This was mere blue smoke

and mirrors and suggests that the Committee and MICC simply deferred to

Skookum to decide whether it could do the work.

The possibility that Skookum was operating under a misunderstanding

about the work also should have been apparent to MICC and the Committee.

Part of Skookum’s response to concerns about the ability of the severely

disabled to do the work was to minimize the amount of work directly

connected to maintaining the live fire ranges, as opposed to general facilities

maintenance. When asked how many people would need to be on the ranges,

Mr. Dolven responded: “[W]hen the ranges are totally hot, we might have six

folks who are involved in that effort, and there are thirty direct labor on the

project. So, six out of thirty, leaving twenty-four folks engaged in other

activities, so roughly 20%.” AR 2515. When Geoff DeZavala, Vice President

of SA-TECH was asked the same question, however, he responded:

Of the 36 that we have right now, we have one electrician, a

[Quality Assurance] guy, a project manager, and then everybody

else is working on the range supporting the targetry devices or

improving the roads. . . . So, really only three to four of our

folks are not actually down range working on the targetry.

AR 2512. Mr. DeZavala’s response could have been readily verified by Army

personnel, yet the Committee never challenged Skookum on this obvious

contradiction to a critical assumption behind the company’s proposal.

Another glaring omission in the Committee’s analysis of Skookum’s

proposal is its failure to deal with the obvious problem of transportation for the

severely handicapped to a remote location. The Committee had been told by

its staff that “[A]ll employees would need to be able to drive.” AR 3184,

3190. They knew from Geoff DeZavala that “[M]ost of [the workforce] live

in the town of Yakima, which is about twenty miles on the interstate to what

we call exit eleven. At exit eleven you enter a gate and it’s a thirteen mile dirt

road ride up to the hill where the operation center is.” AR 2510. They knew

25
that range employees would have to be available 24/7. They knew there was

no public transportation available.

What was Mr. Dolven’s response? He conceded “that is a challenge we

can and will overcome, but there are over 7,000 people with disabilities

according to the census that are in that area. We need 20 or so.” AR 2519.

Later, in response to continuing concern about transportation, he states:

One of the things that makes this project challenging, there is no

public transportation. So, we will employ carpooling to the

maximum extent possible, and we may look at providing some

transportation of our own. Vanpool . . . . We’ve done these

things in the past to conquer that issue. This project is

challenging. It’s going to add to the challenge of how we recruit

people with the right abilities and who have skills like drivers.

AR 2524. At this point the Committee should have realized that Skookum was

offering only a promissory note, with no collateral. As it suggested early on

in the process, “if we get a year or so into this project and the folks we are

placing into the workforce can’t for some reason get the job done from the

customer's perspective, Skookum will hire people without disabilities and will

run the range using a more traditional workforce . . . .” AR 821.

Although the Committee has, by statute, the last word on setting aside

contracts for AbilityOne contractors, Congress plainly assumed that the

contracting agency would be something of a counter-weight, providing a

reality check to ensure that critical work can actually be done by the severely

disabled. The reason the record does not demonstrate that placement of this

contract on the Procurement List has the potential to provide employment to

the severely disabled, or that Skookum had the capability to meet Government

quality standards is that MICC did not provide that counter-weight. Instead,

it became an advocate for AbilityOne in general and Skookum in particular.

In a challenge brought to another AbilityOne set aside, the District of

Columbia Circuit Court made the following observation:

The questions McGregor raised are questions of fact: are blind

workers capable of performing the jobs needed to produce this

particular product? The questions cannot be answered merely

by pointing to the general experience of NIB and the workshops.

There is nothing in the record to support the Committee’s

apparent conclusion that blind people could do the work . . . .

26
[I]f the workshops have no experience in producing a particular

commodity, the Committee cannot—in the face of serious

questions raised by an experienced manufacturer—simply fall

back on NIB’s general experience with blind workers.

McGregor Printing Corp. v. Kemp, 20 F.3d 1188, 1195 (D.C. Cir. 1994). This

is precisely what occurred in the present case. MICC did not provide

meaningful answers to the serious questions raised by other Army personnel.

It merely accepted Skookum’s ipse dixit that it could do the work, and in the

13

process undermined the intent of the AbilityOne program by giving Skookum

a three year pass on its obligation to employ the severely disabled.

On the basis of the existing record, it was arbitrary and capricious for

the AbilityOne Committee to designate the YTC for placement on the

Procurement List. Because Skookum was the only contractor being

considered, that means that its designation as the contractor for the work was

also arbitrary and capricious. Plaintiff therefore succeeds on the merits.

SA-TECH would be permanently injured if an injunction is not issued.

It has successfully performed the contract for seven years. The contract

represents a significant portion of SA-TECH’s revenues. AR 2503. Plaintiff

began as a Small Business Section 8A minority and disabled-owned

contractor. This is the first unrestricted contract that SA-TECH has won as a

graduate of Section 8A and is key to marketing the company. AR 2501 (“If

we lose this contract then we lose the longest unrestricted contract [we have]

and the key points [of] our marketing for the company.”).

The harm to plaintiff outweighs any potential harm to the government.

The current contracting officer submitted a declaration outlining the affect on

the Army of enjoining award to Skookum. In substance what the contracting

officer reports is that it will take time to prepare for a commercial solicitation

and it will add expense, primarily in terms of overtime or the potentially higher

cost of a bridge contract. These are routine and minor consequences. They

14

“Over the next five years we will slowly integrate people with

13

disabilities into the work force, focusing on finding people with the abilities

to get the job done.” AR 1263 (Jeff Dolven). “[A]ll of the major functional

components of this project Skookum has past performance in.” AR 2515.

During oral argument, SA-TECH confirmed that it was willing to

14

(continued...)

27
do not outweigh the harm to plaintiff and to the equally important public

interest in the proper application of the JWOD Act.

CONCLUSION

Plaintiff’s motion for judgment on the administrative record is granted.

Defendant’s motion for judgment on the administrative record is denied.

Defendant is enjoined from placing the YTC contract on the AbilityOne

Procurement List and from contracting with Skookum for the work. The Clerk

is directed to enter judgment for plaintiff accordingly. Costs to plaintiff.

s/Eric G. Bruggink

ERIC G. BRUGGINK

Judge

(...continued)

14

continue on an interim basis.

28