In the United States Court of Federal Claims

Nos. 17-1765C and 17-1842C 

(Filed Under Seal: December 1, 2017) 

(Reissued for Publication: December 19, 2017)*

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INTELLIGENT WAVES, LLC and 

MISSION1ST GROUP, INC.,

Plaintiffs, 

v.

THE UNITED STATES,

Defendant, 

and

PROFESSIONAL SOLUTIONS1, LLC,

Defendant-Intervenor. 

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Post-Award Bid Protest; Motions for a 

Temporary Restraining Order and 

Preliminary Injunction; Likelihood of 

Success on the Merits; Organizational and 

Consultant Conflict of Interest; Evaluation 

of Proposals; FAR 15.305(a); Irreparable 

Injury; Balance of Harms; Public Interest; 

National Defense; National Security; 

Failure to Submit a Declaration or 

Affidavit Supplying Evidentiary Support

Lee Dougherty, Washington, DC, and Christian B. Nagel, Tysons, VA, for plaintiffs. 

Russel J. Upton, United States Department of Justice, Washington, DC, for defendant. 

Katherine S. Nucci, Washington, DC, for defendant-intervenor. 

OPINION AND ORDER

SWEENEY, Judge

 In this bid protest, plaintiffs Intelligent Waves, LLC (“Intelligent Waves”) and 

Mission1st Group, Inc. (“Mission1st”) challenge the award of a five-year Indefinite Delivery 

Indefinite Quantity contract issued by the United States Defense Information Systems Agency 

(“DISA”) to defendant-intervenor Professional Solutions1, LLC (“ProSol”) for certain satellite 

communications support services. Specifically, Intelligent Waves alleges that the DISA 

 *

 The court issued this Opinion and Order under seal on December 1, 2017, and directed 

the parties to submit proposed redactions. This reissued Opinion and Order incorporates the 

redactions proposed by the parties, with some nonsubstantive typographical changes. All 

redactions are indicated by a bracketed ellipsis (“[. . .]”).
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improperly evaluated the proposals submitted by Intelligent Waves and ProSol, and Mission1st 

alleges that the DISA improperly evaluated the proposals submitted by Mission1st and ProSol. 

Currently before the court are Intelligent Waves’s and Mission1st’s motions for a temporary 

restraining order and a preliminary injunction enjoining DISA from lifting a stop-work order that 

is currently in place. Because neither protestor is likely to succeed on the merits of its claim, and 

both the balance of harms and the public interest weigh in favor of defendant, the court denies 

both motions. 

I. BACKGROUND

The Iridium constellation consists of sixty-six cross-linked satellites that operate “as a 

fully meshed network.” Administrative R. (“AR”) 346. The DISA’s Enhanced Mobile Satellite 

Services (“EMSS”) Program Office owns and manages an “EMSS-controlled satellite gateway 

that leverages the Iridium satellite constellation.” Id. The EMSS Program Office provides 

“cradle to grave” satellite communications services, including the sale and provision of EMSS 

devices, a dedicated help desk, encrypted communications, and comprehensive operation and 

maintenance of the EMSS gateway. Id. at 346-47. One of the available services is the 

Distributed Tactical Communications System (“DTCS”). Id. at 347. The DTCS functions as a 

“push-to-talk” service that allows “one-to-many voice communication.” Id. The DTCS is the 

“EMSS variant” of the Iridium commercial push-to-talk (“CPTT”) service. Id. End users of the 

EMSS Program Office services include the United States Department of Defense (“DoD”), other 

federal agencies, state and local governments, Five Eyes nations, and other sponsored 

governments and entities.1 Id. at 346. 

The DISA reports to the DoD Chief Information Officer (“CIO”). Dep’t of Def. 

Instruction 8420.02 (Sept. 15, 2016) at 10.2

 DoD components are required to procure mobile 

satellite services via procurements managed by the DISA. Id. at 23. Waivers are allowed 

through the DoD CIO when “EMSS cannot satisfy the user requirement.” Id.

 1

 The Five Eyes nations are Australia, Canada, New Zealand, the United Kingdom, and 

the United States. Ashley S. Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St. 

L.J. 713, 741 (2016). The Five Eyes agreement is a “long-standing secret intelligence 

agreement” that “allocates electronic surveillance collection among the five states and anticipates 

a high level of coordination and intelligence sharing.” Id.

2

 Department of Defense Instruction 8420.02 is reproduced at Exhibit 1 of Intelligent 

Waves’s complaint. See ECF No. 1-1. 
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A. The Request for Proposals

On December 2, 2016, the DISA issued Request for Proposals number HC1013-16-R0014 (the “RFP”).3

 AR 59. The RFP contemplated a single five-year contract for Global 

Logistical Services Management support (“ELOG”) that would function as a follow-on effort to 

an existing contract, and was designated as a Service-Disabled Veteran-Owned Small Business 

(“SDVOSB”) set aside.

4

 Id. at 59, 341, 346-47, 4038. The Performance Work Statement 

(“PWS”) was organized into eight task areas—Operational Support, Logistical and Procurement 

Support, Training Support, Program Management Support, Technical Support, Highly Qualified 

Expert/Subject Matter Expert Support, Operations Center Support, and Transition Support. Id. at 

348. Offerors were required to submit their proposals in five volumes: Executive Summary, 

Technical/Management, Price, Past Performance, and Contract Documentation. Id. at 402. As 

part of the Contract Documentation volume, offerors were directed to include an Organizational 

and Consultant Conflict of Interest (“OCCI”) Mitigation Plan or a statement that no OCCI was 

present. Id. at 408. The OCCI mitigation plan was to be “evaluated on an acceptable or nonacceptable basis,” and an unacceptable plan could result in not being selected for award. Id. at 

416. 

The RFP provided that the contract would be awarded to the “responsible offeror whose 

proposal [was] determined to represent the overall best value to the Government using a best 

value tradeoff evaluation process.” Id. at 409. Proposals were evaluated based on three 

factors—Technical/Management Approach, Past Performance, and Price. Id. The non-price 

factors were “significantly more important” than the price factor. Id. Technical/Management 

Approach, which was more important than Past Performance, was comprised of three subfactors

of equal importance: 

• Subfactor 1—Remote Mobile Telecommunications Services 

Management Expertise,

• Subfactor 2—Management Plan, and

• Subfactor 3—Sample Task Order.

Id. at 409-10. Technical/Management Approach was to be evaluated 

 3

 The RFP was subsequently amended six times. AR 344. The last amendment was 

issued on January 26, 2017. Id.

4

 The incumbent contractor is currently performing under a contract extension. See AR 

1662. 
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using a combined technical/management rating and risk rating. 

Subfactor ratings shall not be rolled up into an overall color 

rating for the technical/management factor. The combined 

technical/risk rating includes consideration of risk in conjunction 

with the strengths, weaknesses, and deficiencies in determining 

technical ratings.

Id. at 409. The possible ratings were described as follows:

Color Rating Description

Blue Outstanding Proposal meets requirements and 

indicates an exceptional approach and 

understanding of the requirements. 

Strengths far outweigh any 

weaknesses. Risk of unsuccessful 

performance is very low.

Purple Good Proposal meets requirements and 

indicates a thorough approach and 

understanding of the requirements. 

Proposal contains strengths which 

outweigh any weaknesses. Risk of 

unsuccessful performance is low.

Green Acceptable Proposal meets requirements and 

indicates an adequate approach and 

understanding of the requirements. 

Strengths and weaknesses are 

offsetting or will have little or no 

impact on contract performance. 

Risk of unsuccessful performance is 

no worse than moderate.

Yellow Marginal Proposal does not clearly meet 

requirements and has not 

demonstrated an adequate approach 

and understanding of the 

requirements. The proposal has one 

or more weaknesses which are not 

offset by strengths. Risk of 

unsuccessful performance is high.

Red Unacceptable Proposal does not meet requirements 

and contains one or more 

deficiencies. Proposal is 

unawardable.

Id. at 414. The RFP also included relevant definitions: 
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• Deficiency—a material failure of a proposal to meet a 

Government requirement or a combination of significant 

weaknesses in a proposal that increases the risk of unsuccessful 

contract performance to an unacceptable level.

• Risk—as it pertains to source selection, is the potential for 

unsuccessful contract performance. The consideration of risk 

assesses the degree to which an offeror’s proposed approach to 

achieving the technical factor or subfactor may involve the risk 

of disruption of schedule, increased cost or degradation of 

performance, the need for increased Government oversight, 

and the likelihood of unsuccessful contract performance. 

• Significant weakness—a flaw that appreciably increases the 

risk of unsuccessful contract performance.

• Strength—an aspect of an offeror’s proposal that has merit or 

exceeds specified performance or capability requirements in a 

way that will be advantageous to the Government during 

contract performance.

• Uncertainty—any aspect of a non-cost/price factor proposal for 

which the intent of the offeror is unclear (e.g., there is more 

than one way to interpret the proposal or inconsistencies in the 

proposal indicating there may have been an error, omission, or 

mistake).

Id. at 415. 

Past Performance was evaluated as either acceptable or unacceptable: 

Rating Description

Acceptable Based on the offeror’s performance record, the 

Government has a reasonable expectation that 

the offeror will successfully perform the 

required effort, or the offeror’s performance 

record is unknown.

Unacceptable Based on the offeror’s performance record, the 

Government does not have a reasonable 

expectation that the offeror will be able to 

successfully perform the required effort.

Id.
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The RFP also incorporated by reference several Federal Acquisition Regulation (“FAR”) 

clauses, id. at 416-22, including FAR 52.219-14, Limitations on Subcontracting, id. at 418. In 

addition, the RFP provided contact information for the DISA contracting officer. Id. at 139 

(original RFP), 423 (final amendment). Intelligent Waves, Mission1st, and ProSol, as well as 

other potential offerors, submitted questions prior to the proposal deadline, some of which were 

submitted after the question posting deadline. See, e.g., id. at 162-68 (Intelligent Waves), 169 

(Mission1st), 170-74 (ProSol), 490-92 (Mission1st), 503-05 (ProSol). Many of Intelligent 

Waves’s questions focused on proposal formatting requirements. See generally id. at 164-68. 

Intelligent Waves also commented on the evaluation criteria for past performance, suggesting

that (1) the DISA incorporate an offeror’s “proven experience to perform work” in “austere 

environments” as contemplated by the RFP and (2) an “Acceptable” past performance rating for 

offerors with no past performance “puts the government and warfighter at risk for [un]successful 

performance on the awarded contract.” Id. at 167. Mission1st sought more information 

regarding the relative importance of factors and subfactors, price information, and proposal 

formatting. Id. at 169, 490-92. ProSol asked questions regarding security clearances, 

compliance with United States Department of State regulations, and proposal formatting 

requirements. Id. at 170-74, 503-05. The DISA responded to 106 total questions that were 

submitted by the question posting deadline. Id. at 1664. See generally id. at 4666-701 

(containing all 106 of the questions and answers). 

B. The Proposals 

Intelligent Waves, Mission1st, ProSol, and three other offerors eventually submitted 

proposals. Id. at 1665, 4048. 

In its proposal, Intelligent Waves described “Team IW” as being “comprised of 

[Intelligent Waves], prime offeror, and [. . .], significant subcontractor.” Id. at 629. The 

Technical/Management volume of Intelligent Waves’s proposal consistently referred to “Team 

IW.” See, e.g., id. at 623 (containing a list of tables and drawings). Intelligent Waves 

represented that it “ha[d] entered into a binding written agreement with our significant team 

member [. . .],” and emphasized that [. . .] was “[. . .].” Id. at 648. Two out of the three prior 

contracts on which Intelligent Waves relied in the Past Performance volume of its proposal were 

[. . .] contracts, including the [. . .]. Id. at 680. Intelligent Waves reported “N/A” for its 

organizational structure change history, and noted that [. . .] was organized in 2006 and had not 

experienced any significant organizational changes since 2009. Id. at 700. 

Intelligent Waves also included an OCCI mitigation plan as part of the Contract 

Documentation volume of its proposal. See generally id. at 761-65. Intelligent Waves stated 

that, “in order to avoid an apparent or perceived” OCCI, neither Intelligent Waves nor [. . .] 

would “provide systems engineering or technical direction[,] prepare specification or work 

statements and/or objectives for requirements[,] or[] provide evaluation services or obtain access 

to propriety information in the execution of the EMSS ELOG contract.” Id. at 761. Intelligent 

Waves acknowledged that [. . .] has “conducted historical sales of Iridium commercial devices, 

namely [CPTT] devices and ancillary items,” and therefore neither Intelligent Waves nor [. . .] 

would “pursue the sale or operational support of any current or future Iridium [CPTT] devices to 
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new customers who are eligible for Iridium airtime services under the Government’s ‘Iridium 

Flat-Fee Airtime’ (IFFA) contract . . . and the contract awarded from this solicitation . . . unless 

expressly approved by the EMSS waiver process.” Id. Since [. . .] planned to continue to 

provide support to its existing Iridium customers, such as the United States Army Central 

Command, [. . .] promised to segregate employees supporting its Iridium customers from those 

working on the EMSS ELOG contract. Id. at 762. 

In the Technical/Management volume of its proposal, Mission1st provided a management 

plan touting its [. . .]. Id. at 525. See generally id. at 533-40 (containing Mission1st’s 

management plan). Mission1st reported that [. . .] provided a subcontractor management plan. 

Id. at 535. In its staffing plan, Mission1st averred that it had a thirteen-year history of 

“successfully recruit[ing] and retain[ing] hundreds of personnel on DoD contracts at locations 

worldwide,” including [. . .] currently operating throughout the Middle East who have satellite 

communications experience and technical certifications. Id. at 535-36. Mission1st also 

highlighted its “proven ability to quickly grow and shrink [its] staff in response to changing work 

conditions.” Id. at 538. 

In discussing its past performance, Mission1st indicated that it has supported “hundreds 

of projects for DoD software and systems,” and noted that it was then the prime contractor for 

various communications and infrastructure support, information technology services, and 

professional engineering services contracts. Id. at 577. According to Mission1st, the three 

contracts listed in the Past Performance volume of its proposal “cover[ed] every aspect of the 

EMSS ELOG PWS.” Id.; see also id. ([. . .]). 

 In its proposal, ProSol declared that it has “fifteen years of technical and recent 

operational experience supporting warfighters around the world” in addition to its Top Secret 

facility clearance that makes it “capable of independently executing every aspect of the 

EMSS/ELOG program requirements.” Id. at 877. ProSol emphasized its “partnership with 

Marshall Communications Corporation [(“Marshall”)],” which ProSol described as a “best-inclass” DISA field service representative provider with “Remote Mobile Telecommunications 

Services Management” experience fulfilling “nearly the exact requirements as the ELOG 

Program.” Id. ProSol noted that Marshall is a Veteran-Owned Small Business. Id. In the 

Technical/Management Approach volume of its proposal, ProSol described its experience 

working with the DISA to provide logistics, operations and maintenance, warranty, help desk, 

technical support, and training services in the Middle East and elsewhere. Id. at 887. With 

respect to its organizational structure, ProSol explained that ProSol and Marshall would “execute 

a comparable amount of work,” with the exception that ProSol would exclusively perform 

program management functions, because ProSol and Marshall was a “well-balanced team” with 

respect to technical knowledge and experience. Id. at 896. ProSol noted, however, that it would 

perform a majority of the “direct labor activities” itself, consistent with the set aside. Id.; see 

also id. at 3790 (“As a SDVOSB and in compliance with FAR part 52.219-14, ProSol will 

perform at least 51% of the Labor on this contract.”). 

 
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ProSol listed three contracts in the Past Performance volume of its proposal: (1) a $15.6 

million contract between ProSol and the United States Marine Corps for communications, 

systems, and technology support, id. at 955; (2) a $43.3 million contract between Marshall and 

the United States Navy to provide operational, logistical and procurement, technical, and subject 

matter support to the DISA in the Middle East and elsewhere, id. at 958; and (3) $2 million in 

subcontracts between ProSol and the United States Department of Homeland Security to provide 

logistics, help desk, project management, training, communications, and subject matter expert 

services, id. at 963. 

C. Discussions

After all of the proposals were submitted, the results of initial evaluations were as 

follows: 

Intelligent 

Waves Mission1st ProSol 

Technical/Management Approach

Subfactor 1 Marginal Unacceptable Outstanding

Subfactor 2 Marginal Good Outstanding

Subfactor 3 Acceptable Acceptable Outstanding

Past Performance

Acceptable Acceptable Acceptable

Price

[. . .] [. . .] $32,953,522

Id. at 1670. The contracting officer recommended holding discussions and keeping all six 

offerors in the competitive range because each offeror had a “reasonable chance of being 

selected for award following discussions.” Id. at 1669. Upon approval of the Source Selection 

Authority, evaluation notices (“ENs”) were issued as follows: 

• Intelligent Waves—five ENs (two technical in nature, one 

regarding OCCI, and two with respect to price); 

• Mission1st—six ENs (four technical and two price); and 

• ProSol—one EN (technical).

Id. at 1673. 

Two rounds of discussions were held. The first round of ENs was transmitted on June 

16, 2017. Id. at 1677 (Intelligent Waves), 1739 (Mission1st), 1756 (ProSol). The second round 

of ENs was transmitted on August 16, 2017. Id. at 2499 (Intelligent Waves), 2533 (Mission1st), 

2542 (ProSol). 
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 During the first round of discussions, the contracting officer sent an EN to Intelligent 

Waves in which he observed that [. . .], Intelligent Waves’s major subcontractor, “sells and 

supports substantial commercial Iridium products and airtime, especially in the Middle East, and 

those products and services essentially compete with the EMSS Program,” and that Intelligent 

Waves “did not demonstrate knowledge of mobile systems and devices . . . outside of [its] 

partnership with [. . .].” Id. at 1680. He noted that [. . .]’s status as a seller of Iridium products 

“increase[d] the risk of non-objective expertise and support being provided” on the EMSS ELOG 

contract. Id. at 1681. He then explained that the proposed firewall among [. . .] employees was 

insufficient because “the impaired objectivity pertains [to] [. . .] as an organization,” not to 

individual groups of employees. Id. at 1683; see also id. at 1689-93 (discussing the insufficiency 

of Intelligent Waves’s OCCI mitigation plan). The contracting officer noted that [. . .] was not 

an Iridium reseller [. . .]. Id.

 Intelligent Waves submitted an updated OCCI mitigation plan in response to this EN. Id. 

at 2141. However, the contracting officer remained concerned that the updated OCCI mitigation 

plan failed to adequately address the concern regarding [. . .]’s “impaired objectivity.” Id. at 

2506, 2517-18. Specifically, as reflected in a subsequent EN sent to Intelligent Waves, the 

contracting officer remarked that part of the updated mitigation plan involved utilizing only 

Intelligent Waves direct employees to perform certain PWS activities, which was problematic for 

the DISA because those activities “are integrated into larger task order requirements . . . and 

cannot reasonably be segregated without imposing a substantial burden on the government that 

elevates the risk of unsuccessful performance.” Id. at 2507. Further, the contracting officer 

noted that the determination of Intelligent Waves that commercial Iridium CPTT services did not 

compete with EMSS DTCS services ran contrary to the DISA’s view. Id. at 2510. He also 

stated that Intelligent Waves failed to address how [. . .]’s legacy customers would be dealt with. 

Id. at 2510, 2517. Ultimately, the contracting officer advised that it was “unacceptable to the 

Government” for a contractor to [. . .]. Id. at 2518. Intelligent Waves responded to this EN with 

another updated OCCI mitigation plan. Id. at 2805-06. 

D. Evaluation of Proposals 

 After the second round of discussions, the revised proposals were evaluated. During its 

evaluation, the evaluation team determined that Intelligent Waves did not resolve any of its nonprice ENs, id. at 4154, 4161, and that Mission1st resolved all of its non-price ENs, id. at 4150-

52. The final evaluations were as follows:
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Intelligent 

Waves Mission1st ProSol 

Technical/Management Approach

Subfactor 1 Marginal Acceptable Outstanding

Subfactor 2 Marginal Good Outstanding

Subfactor 3 Acceptable Acceptable Outstanding

Past Performance

Acceptable Acceptable Acceptable

Price

[. . .] [. . .] $30,295,442

Id. at 4128-29, 4203. 

The evaluation team assigned the following strengths and weaknesses with respect to the 

Technical/Management Approach factor: 

Intelligent 

Waves Mission1st ProSol 

Technical/Management Approach

Subfactor 1 [. . .] [. . .] 7 strengths

0 weaknesses

Subfactor 2 [. . .] [. . .] 8 strengths

0 weaknesses

Subfactor 3 [. . .] [. . .] 1 strength

0 weaknesses

Id. at 4134-40 (ProSol), 4149-53 (Mission1st), 4153-63 (Intelligent Waves). With respect to the 

Past Performance factor the evaluation team noted that all three of ProSol’s past performance 

references returned questionnaires, and each of ProSol’s three prior contracts were deemed 

recent, relevant, and to have an acceptable quality of performance. Id. at 4169-74. Intelligent 

Waves also had all three past performance contracts rated as recent, relevant, and having an 

acceptable quality of performance. Id. at 4195. Mission1st similarly had all three past 

performance contracts rated as recent and relevant, but only one was deemed to have an 

acceptable quality of performance (with the remaining two unknown). Id. at 4189-90. 

 

Ultimately, the evaluation team recommended that ProSol be awarded the contract. Id. at 

4122, 4203. Specifically, in comparing ProSol’s and Mission1st’s proposals, the evaluation team 

determined that ProSol’s approach under subfactor 1 had “numerous technical advantages over 

that of [Mission1st],” id. at 4211; that ProSol’s “proposed organizational structure [was] superior 

to [Mission1st’s]” under subfactor 2, id. at 4212; and that ProSol’s sample task order under 

subfactor 3 “contained advantages” over Mission1st, id. at 4213. The evaluation team further 

found that there was “no advantage to either proposal under the past performance factor,” but 

ProSol’s “numerous strengths that benefit the Government in various ways that [Mission1st’s] 

proposal is lacking” and concomitant lower risk of unsuccessful performance outweighed 

Mission1st’s slight price advantage. Id. at 4214. 
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Then, in comparing the proposals of ProSol and Intelligent Waves, the evaluation team 

determined that “[t]he relative merits of ProSol’s proposed approach to subfactor 1 [were]

technically superior to the relative merits of [Intelligent Waves’s] proposed approach,” id. at 

4219; that “ProSol’s proposed organization structure and proposed cost management plan [were]

superior to those of [Intelligent Waves] with strengths in [ProSol’s] approach for recruiting and 

retaining personnel, . . . subcontract management, organizational structure methodology, and . . . 

flexibility and performance” under subfactor 2, id. at 4220; and that ProSol’s sample task order 

under subfactor 3 was “exceptional” and thus “superior” to the adequate sample task order 

submitted by Intelligent Waves, id. The evaluation team referred to [. . .]’s involvement as 

“present[ing] a risk of impaired objectivity in [Intelligent Waves’s] performance of the contract,” 

but noted that “[e]ven if these weaknesses related to . . . utilizing [. . .] as a subcontractor were 

completely mitigated, ProSol’s technical advantages . . . outweigh[ed Intelligent Waves’s] price 

advantage.” Id. at 4221. 

E. The Source Selection Decision and Contract Award

After reviewing the evaluation team’s report, the Source Selection Authority determined 

that ProSol’s proposal “offer[ed] the best value” to the DISA. Id. at 4413; accord id. at 4501. 

The Source Selection Authority observed that ProSol’s approach was “free of weaknesses and 

deficiencies,” “contain[ed] sixteen strengths and no weaknesses,” and was “technically superior 

to all other offerors.” Id. at 4501. Therefore, the Source Selection Authority explained, ProSol’s 

“technical superiority” outweighed the lower prices proposed by Intelligent Waves and 

Mission1st. Id. Because ProSol’s price was “balanced, complete, and fair and reasonable” and 

ProSol “met all administrative requirements of the RFP,” the contracting officer was directed to 

award the ELOG contract to ProSol. Id.

The ELOG contract was officially awarded to ProSol on October 20, 2017. Id. at 4299. 

Both Intelligent Waves and Mission1st had been notified, three days prior to the official award, 

of their non-selection and that ProSol was determined to represent the overall best value. Id. at 

4090 (Intelligent Waves), 4101 (Mission1st). Both Intelligent Waves and Mission1st received 

written debriefings on October 20, 2017. See generally id. at 4286-90 (Intelligent Waves), 4295-

97 (Mission1st). The contracting officer answered follow-up questions submitted by Mission1st 

on October 24, 2017. See id. at 4515-16. 

F. Procedural History

Mission1st filed a protest at the Government Accountability Office (“GAO”) on October 

25, 2017. See generally id. at 4521-29. Mission1st argued that the DISA improperly evaluated 

ProSol’s proposal because (1) ProSol did not have the expertise to meet the requirements for 

subfactor 1 of the Technical/Management Approach factor, (2) Mission1st should have received 

an “Outstanding” rating for subfactor 2, (3) ProSol does not have sufficient experience to 

warrant an “Acceptable” past performance rating and thus Mission1st should have been rated “at 

least equivalent” to ProSol with respect to its overall technical capability, and (4) ProSol would 

be unable to adhere to the limitation on subcontracting clause contained in the RFP. Id. at 4524-

28. Pursuant to FAR 52.233-3, a stop-work order was issued on October 30, 2017. Id. at 4558. 
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ProSol filed a motion for summary dismissal of the protest on November 13, 2017. Id. at 4577-

80. The DISA then filed a motion to dismiss the protest on November 15, 2017, id. at 4621, 

arguing generally that Mission1st’s protest grounds were “untimely, speculative, and fail[ed] to 

state a valid basis of protest,” id. at 4623. 

In the meantime, on November 9, 2017, Intelligent Waves filed the instant protest in this 

court, arguing generally that the DISA improperly evaluated Intelligent Waves’s and ProSol’s 

proposals, and further arguing that the DISA’s determination regarding the insufficiency of 

Intelligent Waves’s OCCI mitigation plan was arbitrary and capricious because it followed a 

plan [. . .]. Compl. ¶¶ 3-4. Intelligent Waves explained that (1) ProSol’s “lack of demonstrated 

‘expertise’” precluded ProSol from receiving an “Outstanding” rating under subfactor 1 of the 

Technical/Management Approach factor, id. ¶ 69, (2) Intelligent Waves “itself” had the requisite 

experience to perform under subfactor 1 and thus its assessment of a weakness was improper, id. 

¶¶ 73, 77, and (3) ProSol lacked the requisite experience to receive an “Outstanding” rating 

under subfactor 2, id. ¶ 84. 

On November 16, 2017, the DISA requested that the GAO dismiss Mission1st’s protest 

pursuant to 4 C.F.R. § 21.11(b) because the protest concerned the same procurement as the 

instant bid protest. AR 4706. Mission1st opposed DISA’s dismissal, id. at 4741-42, while 

ProSol agreed that the GAO protest should be dismissed, id. at 4743. The GAO issued a 

dismissal order on November 21, 2017, explaining that the GAO would not entertain protests 

“where the matter involved is the subject of litigation before a court of competent jurisdiction . . . 

[e]ven where the specific issues before the court are not the same as those raised [at the GAO] 

. . . if there is a reasonable possibility that the court’s disposition of the matter [would] render a 

decision by [the GAO] academic,” and that the Intelligent Waves complaint in this court called 

into question ProSol’s expertise and capabilities and the reasonableness of the DISA’s 

evaluation. Id. at 4746-47. 

On November 28, 2017, Mission1st filed its complaint in this court, asserting the same 

claims that it presented to the GAO. That case was transferred to the undersigned and 

consolidated with this case on November 29, 2017. Because the DISA indicated that it would lift 

its stop-work order on December 1, 2017, see Def.’s Opp’n to Pls.’ Mots. for Emergency 

Injunctive Relief (“Def.’s Opp’n”) Attach. 3, ECF 29-1, Intelligent Waves and Mission1st filed 

motions for a temporary restraining order and a preliminary injunction. Defendant responded on 

November 30, 2017, and the court heard oral argument on December 1, 2017. 

II. STANDARD OF REVIEW

The United States Court of Federal Claims (“Court of Federal Claims”) possesses 

“jurisdiction to render judgment on an action by an interested party objecting to . . . 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) (2012), and may “award any relief that the court 

considers proper, including declaratory and injunctive relief except that any monetary relief shall 

be limited to bid preparation and proposal costs,” id. § 1491(b)(2). In bid protests, the Court of 

Federal Claims reviews the challenged agency action pursuant to the standards set forth in 5 
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U.S.C. § 706. Id. § 1491(b)(4). Although section 706 contains several standards, “the proper 

standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing 

court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with the law.’” Banknote Corp. of Am. v. United States, 365 F.3d 

1345, 1350 (Fed. Cir. 2004); accord Per Aarsleff A/S v. United States, 829 F.3d 1303, 1309 

(Fed. Cir. 2016). The “arbitrary and capricious” standard is “highly deferential” and requires 

courts to sustain agency actions that demonstrate “rational reasoning and consideration of 

relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. 

Cir. 2000). In other words, reviewing courts conduct a “rational basis” review of the agency 

action at issue, rather than an “independent de novo assessment.” Turner Constr. Co., Inc. v. 

United States, 645 F.3d 1377, 1384-85 (Fed. Cir. 2011) (internal quotation marks omitted). 

 Rule 65 of the Rules of the United States Court of Federal Claims guides the court in 

awarding preliminary injunctive relief. Preliminary injunctive relief is “an extraordinary and 

drastic remedy.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (internal 

quotation marks omitted); accord FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993); 

Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 316 (2009). A protestor “seeking a preliminary 

injunction must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer 

irreparable harm in the absence of relief, that the balance of equities tips in [its] favor, and that 

an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 

(2008); accord Amidon, Inc. v. United States, 124 Fed. Cl. 517, 522 (2015). None of the four 

factors, taken individually, is dispositive, and a “weakness of the showing regarding one factor 

may be overborne by the strength of the others.” FMC Corp., 3 F.3d at 427. Conversely, “the 

absence of . . . any one factor may be sufficient” to deny preliminary injunctive relief. Id.; see 

also Wind Tower Trade Coal. v. United States, 741 F.3d 89, 100 (Fed. Cir. 2014) (“[A] showing 

on one preliminary injunction factor does not warrant injunctive relief in light of a weak showing 

on other factors.”); Atlanta Pharma AG v. Teva Pharm. USA, Inc., 566 F.3d 999, 1005 (Fed. Cir. 

2009) (“[A] movant must establish the existence of both of the first two factors to be entitled to a 

preliminary injunction.”). The award of preliminary injunctive relief is within the discretion of 

the court. FMC Corp., 3 F.3d at 427. “When injunctive relief is warranted, it will only be issued 

upon a showing by a preponderance of the admissible evidence.” Textron, Inc. v. United States, 

74 Fed. Cl. 277, 287 (2006). 

III. ANALYSIS

As an initial matter, the court finds that it has jurisdiction over the instant protests 

because both Intelligent Waves and Mission1st have made nonfrivolous allegations that the 

DISA improperly evaluated proposals. See Distributed Sols., Inc. v. United States, 539 F.3d 

1340, 1345 n.1 (2008) (“A non-frivolous allegation of a statutory or regulatory violation in 

connection with a procurement or proposed procurement is sufficient to establish jurisdiction.”). 

Further, both Intelligent Waves and Mission1st have standing as “interested parties” because 

each submitted a proposal and was determined to be in the competitive range. See CACI, Inc.-

Fed. v. United States, 719 F.2d 1567, 1575 (Fed. Cir. 1983) (finding that a protestor “within the 

‘zone of active consideration’” had “standing to challenge the proposed award”).
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A. Likelihood of Success on the Merits

 To prevail on their motions for a preliminary injunction, either Intelligent Waves or 

Mission1st must establish that it is likely to succeed on the merits of its protest. Under the 

applicable standard of review, the court 

may set aside a procurement action if (1) the procurement official’s 

decision lacked a rational basis; or (2) the procurement procedure 

involved a violation of regulation or procedure. A court reviews a 

challenge brought on the first ground to determine whether the 

contracting agency provided a coherent and reasonable explanation 

of its exercise of discretion, and the disappointed bidder bears a 

heavy burden of showing that the award decision had no rational 

basis. When a challenge is brought on the second ground, the 

disappointed bidder must show a clear and prejudicial violation of 

applicable statutes or regulations. 

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citations and internal 

quotation marks omitted). 

If the court finds that “the government acted without rational basis or contrary to law 

when evaluating bids and awarding the contract,” it must then “determine, as a factual matter, 

whether the bid protester was prejudiced by that conduct.” Bannum, Inc. v. United States, 404 

F.3d 1346, 1351 (Fed. Cir. 2005). A bid protester demonstrates prejudice by “show[ing] that 

there was a ‘substantial chance’ it would have received the contract award” absent the error 

found by the court. Id. at 1353; see also Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 

672, 695-97 (2010) (distinguishing “allegational prejudice” required to establish standing from 

the “prejudicial error” required to prevail on the merits).

The court finds that neither Intelligent Waves nor Mission1st is likely to succeed on the 

merits of their protests. 

The gravamen of Intelligent Waves’s protest is that the DISA’s determination that [. . .]’s 

Iridium sales presented an OCCI weakness was “arbitrary, capricious, and lack[ed] a rational 

basis.” Intelligent Waves Mem. Supp. Mot. TRO & Mot. Prelim. Inj. (“Intelligent Waves 

Mem.”) 20, ECF No. 24. A conflict of interest arises when a contractor “will evaluate its own 

offers for products or services, or those of a competitor, without proper safeguards to ensure 

objectivity to protect the Government’s interests.” FAR 9.505-3. At oral argument, counsel for 

Intelligent Waves stressed that there is no competition between Iridium CPTT and EMSS DTCS 

because the DoD CIO, who oversees the DISA, has the authority to grant waivers allowing DoD 

agencies to procure Iridium CPTT services, and, in any event, the DoD components are not in 

competition with one another because they fall under the same umbrella. 
-15- 

Intelligent Waves’s argument concerning OCCI is unavailing. First, the DoD as a whole 

is not considered one agency. DoD departments are the separate military departments (Army, 

Navy, and Air Force—the Marine Corps is part of the Navy), and the various “defense agencies” 

include the DISA, the Defense Intelligence Agency, the National Geospatial-Intelligence 

Agency, the National Security Agency, the United States Special Operations Command, the 

Defense Logistics Agency, and others. See Defense Federal Acquisition Regulation Supplement 

202.101. Thus, various components of the DoD are considered separate agencies. Second, it is 

well within the DISA’s discretion to determine that Iridium CPTT and EMSS DTCS are 

competing services. This determination is logical because both services “offer similar capability 

. . . to the same customer markets,” AR 4435, and the DISA is free to prefer one over the other, 

as it has consistently done. Third, that [. . .] is currently [. . .] is of no moment with respect to the 

OCCI issue because (1) [. . .] did not become an Iridium reseller until after it [. . .] and (2) the 

DISA is free to institute new requirements in new procurements. Fourth, Intelligent Waves 

received multiple ENs regarding its OCCI weakness and failed to adequately address the DISA’s 

concerns. The DISA explained its rationale at length in the ENs, in the technical evaluation, in 

the source selection document, and in the debriefing. Simply put, Intelligent Waves cannot 

overcome its “heavy burden,” Impresa Construzioni Geom. Domenico Garufi v. United States, 

238 F.3d 1324, 1332-33 (Fed. Cir. 2001), of demonstrating that the DISA’s determination lacked 

a rational basis. 

Finally, even if the DISA erred in finding that [. . .]’s participation gave rise to an OCCI

and thus one or more weaknesses, there is no prejudicial error because the DISA found that 

ProSol’s proposal was technically superior to Intelligent Waves’s proposal notwithstanding the 

various issues concerning [. . .] and the OCCI. The OCCI only concerned subfactors 1 and 2. 

Even if Intelligent Waves had also received fifteen total strengths across those two subfactors 

(like ProSol) instead of [. . .], ProSol was still rated “Outstanding” for subfactor 3, compared to 

Intelligent Waves’s “Acceptable” rating, based on the sample task orders. 

Intelligent Waves also contends that the DISA “failed to adhere to the evaluation 

requirements stated in the [RFP] when it found that ProSol warranted an outstanding rating under 

Subfactor 1.” Intelligent Waves Mem. 27. It is axiomatic that proposals must be evaluated in a 

manner that is “reasonable and consistent with the evaluation criteria and applicable statutes and 

regulations,” and that the “merit of competing proposals is primarily a matter of agency 

discretion.” E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (internal 

quotation marks omitted); accord FAR 15.305(a) (providing that government agencies must 

“evaluate competitive proposals and then assess their relative qualities solely on the factors and 

subfactors specified in the solicitation”). Intelligent Waves provides no support for its argument 

that the DISA did not follow the evaluation criteria set forth in the RFP beyond its averment that 

ProSol’s experience was “insufficient to demonstrate ‘expertise’ in providing support in remote, 

hostile locations.” Intelligent Waves Mem. 29. Intelligent Waves appears to argue that ProSol 

cannot rely on the experience of its subcontractor partner to meet the experience requirement, 

which runs counter to Intelligent Waves’s assertions that the experience of its own subcontractor 

partner is relevant to capability determinations. Intelligent Waves cannot have it both ways. 

“After all, in the law, what is sauce for the goose is normally sauce for the gander.” Heffernan v. 

City of Paterson, 136 S. Ct. 1412, 1418 (2016). Regardless, the DISA provided detailed 
-16- 

explanations of the relevant experience that ProSol brings to the table. Further, even if ProSol 

had been rated lower than “Outstanding” for subfactor 1 of the Technical/Management Approach

factor, it was rated “Outstanding” in the remaining technical subfactors with myriad strengths. 

Thus, if the OCCI-related issues discussed above were set aside and Intelligent Waves received

“Outstanding” ratings for subfactors 1 and 2, ProSol still would have been rated technically 

superior.5

Mission1st similarly avers that the DISA improperly assigned ProSol an “Outstanding” 

rating in subfactor 1 because “ProSol has no experience performing computer facilities 

management services on federal contracts of significant size and extremely limited experience in 

the geographic region or battlefield environment(s) as required by the [RFP].” Mission1st Mem. 

Supp. Mot. Injunctive Relief (“Mission1st Mem.”) 9, ECF No. 26. Mission1st’s argument 

concerning ProSol’s subfactor 1 rating fails for the same reason that Intelligent Waves’s 

argument regarding subfactor 1 failed—the DISA sufficiently explained the relevant experience 

that ProSol brings to the table, with or without its subcontractor partner. 

Mission1st also posits that it should have received an “Outstanding” rating for subfactor 

2, rather than a “Good” rating, because it was assessed [. . .] that were described as 

“outstanding,” see AR 4295-96, and [. . .]. Mission1st’s reasoning reflects an improper 

application of the stated evaluation criteria. A “Good” rating was assigned to subfactors with 

strengths that “outweigh[ed]” any weaknesses, while an “Outstanding” rating was assigned when 

strengths “far outweigh[ed]” any weaknesses. In other words, Mission1st’s [. . .] in subfactor 2 

did not necessarily compel an “Outstanding” rating for that subfactor, as outstanding as those 

individual strengths may have been. Therefore, the DISA did not improperly rate Mission1st’s 

proposal as “Good” for subfactor 2. But even if Mission1st had been assigned an “Outstanding” 

rating, ProSol’s “Outstanding” rating—with eight strengths compared to [. . .]—likely would 

have carried more weight in the DISA’s overall best value determination. Thus, if ProSol had 

received a lower rating for subfactor 1, and Mission1st had received a higher rating for subfactor 

2, it would not have been unreasonable for the DISA to determine that ProSol provided a 

technically superior proposal. 

With respect to past performance, Mission1st asserts that ProSol was undeserving of its 

“Acceptable” rating. Mission1st invokes FAR 15.305(a)(2)(iv), which states that “an offeror 

without a record of relevant past performance or for whom information on past performance is 

not available . . . may not be evaluated favorably or unfavorably.” Mission1st avows that the 

lack of a neutral past performance rating, in contravention to the FAR, “improperly allowed the 

[DISA] to assign a favorable rating to offerors with no past performance.” Mission1st Mem. 12. 

Mission1st’s argument here fails for two reasons. First, Mission1st did not raise this argument in 

a pre-award protest. Contractors who have the opportunity to object to the terms of a 

solicitation, but fail to do so, are precluded from later raising such objections in a bid protest. 

Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007); see also Per 

Aarsleff A/S, 829 F.3d at 1313. Second, even if there should have been a neutral rating available 

 5

 Intelligent Waves contends only that it “would have received either Good or 

Acceptable ratings under [subfactors 1 and 2].” Intelligent Waves Mem. 27.
-17- 

for past performance, it likely would not have changed the results. ProSol provided three past 

performance references, all of which were deemed recent, relevant, and of acceptable quality. It 

was therefore reasonable for ProSol to have been given an “Acceptable” rating on the Past 

Performance factor. 

Mission1st’s final assignment of error relates to the limitations on subcontracting. FAR 

52.219-14(c)(1) provides that “[a]t least 50 percent of the cost of contract performance incurred 

for personnel shall be expended for employees of the concern.” While Mission1st correctly 

states the law, it fails to recognize that ProSol’s proposal does not violate the limitations on 

subcontracting. ProSol demonstrated that it is acutely aware of the limitations on subcontracting, 

and proposed to perform a majority of the contract work. 

In sum, neither Intelligent Waves nor Mission1st is likely to succeed in demonstrating 

that the DISA’s decision to award the EMSS ELOG contract to ProSol was arbitrary, capricious, 

an abuse of discretion, or otherwise contrary to law. Nevertheless, for the sake of completeness, 

the court addresses the remaining factors for establishing the need for injunctive relief: 

irreparable injury, the balance of harms, and the public interest.

B. Irreparable Injury

With respect to irreparable injury, a protestor “must show that without a preliminary 

injunction it will suffer irreparable harm before a decision can be rendered on the merits.” Akal 

Sec., 87 Fed. Cl. at 311; accord IBM Corp. v. United States, 118 Fed. Cl. 677, 683-84 (2014). 

Intelligent Waves avers, through its counsel (without a supporting affidavit or declaration), that it 

will lose the opportunity to compete for the EMSS ELOG contract, expected profits from 

performing the contract, and “the experience in performing this complex, global contract that 

[Intelligent Waves] could apply toward its future proposals for other government work,” if it 

does not receive injunctive relief because it “cannot recover these financial and experiential 

losses” without such relief. Intelligent Waves Mem. 30. Mission1st also avers, through its 

counsel (without a supporting affidavit or declaration), that it will “suffer irreparable harm if an 

injunction is not granted, because the only other available relief—the potential for recovery of 

bid preparation costs—will not compensate Mission1st for the loss of valuable business on the 

Solicitation.” Mission1st Mem. 17. Neither Intelligent Waves nor Mission1st has provided the 

court with the evidence necessary to carry its burden. See Gemtron Corp. v. Saint-Gobain Corp., 

572 F.3d. 1371, 1380 (Fed. Cir. 2009) (observing that “unsworn attorney argument . . . is not 

evidence”).

For the sake of argument, however, the court will proceed with its analysis as if 

Intelligent Waves and Mission1st had submitted evidentiary support for their claims. The Court 

of Federal Claims has recognized that a lost opportunity to compete for a contract—and the 

attendant inability to obtain the profits expected from the contract—can constitute an irreparable 

injury. See, e.g., Akal Sec., 87 Fed. Cl. at 819; Heritage of Am., LLC v. United States, 77 Fed. 

Cl. 66, 78 (2007); Overstreet Elec. Co. v. United States, 47 Fed. Cl. 728, 743 (2000). 
-18- 

Absent preliminary injunctive relief, the stop-work order will be lifted on December 1, 

2017, and both Intelligent Waves and Mission1st will likely have permanently lost the 

opportunity to perform under the contract. No adequate remedy exists to make up for this 

potential loss of business or competitive advantage; were they to be awarded, bid preparation and 

protest costs would be wholly insufficient. Accordingly, both Intelligent Waves and Mission1st 

will likely be irreparably injured absent injunctive relief.

C. Balance of Harms 

 In addition to considering whether a protestor would suffer an irreparable injury absent 

injunctive relief, “[t]he court must balance the harm plaintiff would suffer without preliminary 

relief against the harm that preliminary relief would inflict on defendant and defendantintervenor. Generally, if the balance tips in favor of defendant, a preliminary injunction is not 

appropriate.” Akal Sec., 87 Fed. Cl. at 320 (citation omitted); accord Reilly’s Wholesale 

Produce v. United States, 73 Fed. Cl. 705, 715 (2006). The court has already presumed, for 

argument’s sake, that Intelligent Waves and Mission1st will likely suffer an irreparable injury in 

the absence of preliminary injunctive relief. Intelligent Waves contends that the “DISA can 

maintain the services needed through a brief extension to [. . .] during the pendency of this 

protest.” Intelligent Waves Mem. 30-31. Mission1st similarly argues that the DISA can “easily 

extend its current contract with [. . .].” Mission1st Mem. 18. Meanwhile, defendant explains 

that issuing a temporary restraining order or a preliminary injunction would [. . .]. Def.’s Opp’n 

32, ECF No. 29. Under a bridge contract, [. . .] would be [. . .]. Id. at 32-33. Indeed, unlike 

Intelligent Waves and Mission1st, defendant attached a declaration from the supervisory 

program manager for the DISA on the incumbent contract detailing the harm that the government 

would suffer if injunctive relief were to issue. Id. at 32. 

 On one hand, the court assumes (for sake of argument) that the protestors will likely 

suffer irreparable harm absent such relief. On the other hand, the harm to the government—as 

supported by declaration—would not be insubstantial, as Intelligent Waves and Mission1st 

proclaim. Because the protestors are unlikely to succeed on the merits, the balance of harms 

weighs in defendant’s favor. 

D. Public Interest

 Finally, when “employing the extraordinary remedy of injunction,” a court “should pay 

particular regard for the public consequences” of doing so. Weinberger v. Romero-Barcelo, 456 

U.S. 305, 312 (1982). It is undisputed that “the public interest in honest, open, and fair 

competition in the procurement process is compromised whenever an agency abuses its 

discretion in evaluating a contractor’s bid.” Overstreet, 47 Fed. Cl. at 744; accord Bona Fide 

Conglomerate, Inc. v. United States, 96 Fed. Cl. 233, 242 (2010) (noting the “overriding public 

interest in preserving the integrity of the procurement process”). However, there is also a 

“public interest in minimizing disruption [to the agency].” Heritage of Am., 77 Fed. Cl. at 78, 

quoted in Akal Sec., 87 Fed. Cl. at 321; accord Aero Corp., S.A. v. United States, 38 Fed. Cl. 

237, 242 (1997) (“[A] procuring agency should be able to conduct procurements without 

excessive judicial infringement upon the agency’s discretion.”). 
-19- 

 Both Intelligent Waves and Mission1st highlight the public interest in fair procurements. 

In addition, Mission1st suggests that the public interest is served by “reducing any risk to the 

ultimate consumers of the Contract services [due to] ProSol’s inexperience” because “[t]hese 

communications systems constitute a vital lifeline required both for mission accomplishment of 

national security objectives, for the safety of their users and to disseminate critical real-time 

intelligence to battlefield commanders and operators in conflict zones.” Mission1st Mem. 19. 

Intelligent Waves remarks, in discussing the balance of hardships, that any “national defense and 

security concerns in this case are limited” because of the DISA’s ability to extend the contract. 

Intelligent Waves Mem. 30-31. Defendant highlights the public interest in avoiding undue 

interference with procurements, and agrees with Mission1st that the procurement “implicates 

national defense and national security interests.” Def.’s Opp’n 34 (relying on Mission1st Mem. 

19). Defendant specifies that both the incumbent contract and the contract at issue in this protest 

involve “mission critical operations support for Special Forces and others performing critical 

military functions.” Id. at 35. 

The court agrees with Mission1st and defendant that there is a significant public interest 

in ensuring the safety of people and property. This interest is endangered when the federal 

government lacks confidence that its contractor can provide the necessary support. The DISA 

has reasonably placed its confidence in ProSol, and is understandably reticent to award a solesource bridge contract to a contractor that was not selected for the follow-on effort and competes 

with the services at issue here. Accordingly, the public interest weighs in defendant’s favor. 

IV. CONCLUSION

 The court has considered all of the parties’ arguments. To the extent not discussed 

herein, they are unpersuasive, without merit, or are unnecessary for resolving the matters 

currently before the court. 

 Neither Intelligent Waves nor Mission1st are likely to succeed on the merits of their 

protests. Although both protestors may be irreparably harmed absent an injunction, the balance 

of harms and the public interest weigh in favor of the defendant.

Therefore, the court DENIES Intelligent Waves’s motion for a temporary restraining 

order and a preliminary injunction and DENIES Mission1st’s motion for a temporary restraining 

order and a preliminary injunction. The parties shall, consistent with the court’s November 27, 

2017 scheduling order, file a joint status report suggesting a schedule for further proceedings no 

later than Monday, December 11, 2017. 

 [. . .] 

 

IT IS SO ORDERED.

 s/ Margaret M. Sweeney 

MARGARET M. SWEENEY

 Judge