In the United States Court of Federal Claims

No. 22-1554C

(Filed: December 12, 2022)

FOR PUBLICATION

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AIR BOREALIS LIMITED *

PARTNERSHIP, *

*

Plaintiff, *

*

v. *

*

UNITED STATES, *

*

Defendant, *

*

and *

*

KENN BOREK AIR LTD., *

*

Defendant- *

Intervenor. *

*

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Tyler Dahlin Evans, Steptoe & Johnson LLP, Washington, D.C., for Plaintiff.

With him on briefs were Caitlin Conroy and Joseph McClure, Steptoe & Johnson LLP, 

Washington, D.C.

Amanda L. Tantum, Senior Trial Counsel, Commercial Litigation Branch, 

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

Defendant. With her are Brian M. Boynton, Principal Deputy Assistant Attorney 

General, Civil Division, Patricia M. McCarthy, Director, and L. Misha Preheim, 

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

Department of Justice, Washington, D.C, as well as Alissa J. Schrider, Major, USAF, 

Trial Attorney, and Sandy Caruco, Trial Attorney, Langley AFB, Virginia.

Mark D. Colley, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for 

Defendant-Intervenor. With him on briefs were Amanda J. Sherwood and Julia 

Swafford, Arnold & Porter Kaye Scholer LLP, Washington, D.C.

OPINION AND ORDER

Air Borealis Limited Partnership (“Air Borealis”) protests award of a contract 

to provide airlift support services for the United States Air Force in the Canadian 
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Arctic. See Compl. (ECF 1). The offeror that will perform the work and receive 

payment, Kenn Borek Air Ltd. (“Kenn Borek”), has moved to intervene. See Motion 

(ECF 17). The government has not opposed, but Air Borealis has. See Opp. (ECF 25); 

see also Reply (ECF 28). Air Borealis’s arguments are meritless, so the motion is 

GRANTED. 

The dispute over intervention arises from an unusual regulatory system for 

certain contracts with Canadian suppliers. Kenn Borek and Air Borealis have not 

supported their briefs with documentary evidence, and Kenn Borek does not yet have 

access to the administrative record. Air Borealis has also raised complex legal 

arguments, going to the merits, about regulatory requirements for the award process.

As a result, some of the details are uncertain. The parties agree, though, on the broad 

outline, which is as follows.

United States Department of Defense (“DoD”) contracts with Canadian 

suppliers are, with certain exceptions, managed by the Canadian Commercial 

Corporation (“CCC”), a “Crown corporation” owned by the Canadian government. 

Although bids in this case were submitted to DoD, the CCC had at least some role in 

reviewing them. See, e.g., Defense Federal Acquisition Regulation Supplement

(“DFARS”) 225.870-3 (codified at 48 C.F.R.). DoD then typically awards the contract 

to CCC, DFARS 225.870-4(a), which in turn awards the contract to the successful 

offeror and administers the contract, DFARS 225.870-1(c). The Canadian government 

guarantees performance of contracts awarded to the CCC. DFARS 225.870-1(a). But 

the successful offeror performs the work. Although payment passes through the CCC, 

in substance it goes from DoD to the successful offeror. In this case, again, Kenn 

Borek was the successful offeror. 

There are two grounds for intervention: intervention as of right, and 

permissive intervention. See RCFC 24. As relevant here, this Court must permit 

timely intervention as of right when a proposed intervenor: 

claims an interest relating to the property or transaction that is the 

subject of the action, and is so situated that disposing of the action may 

as a practical matter impair or impede the movant’s ability to protect its 

interest, unless existing parties adequately represent that interest.

RCFC 24(a)(2).1 The proposed intervenor’s interest must be “of such a direct and 

immediate character that the intervenor will either gain or lose by the direct legal 

operation and effect of the judgment.” Am. Mar. Transp., Inc. v. United States, 870 

1 The parties do not dispute timeliness. Kenn Borek moved to intervene before the deadline set by the 

Court’s scheduling order (ECF 15), and more than a month before its motion for judgment on the 

administrative record would be due. The motion is therefore timely.
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F.2d 1559, 1561 (Fed. Cir. 1989) (quoting United States v. AT&T, 642 F.2d 1285, 1292

(D.C. Cir. 1980)). In addition, only a “legally protectable” interest counts, i.e., an 

interest “which the substantive law recognizes as belonging to or being owned by the 

applicant.” Id. at 1562 (quoting New Orleans Public Service, Inc. v. United Gas Pipe 

Line Co., 732 F.2d 452, 463 (5th Cir. 1984)). The Court has discretion to grant a timely 

motion for permissive intervention when a proposed intervenor “has a claim or 

defense that shares with the main action a common question of law or fact,” taking 

into account whether intervention would “delay or prejudice the adjudication of the

original parties’ rights.” RCFC 24(b).2 Intervention in this case is appropriate under 

either ground.

Kenn Borek may intervene as of right. RCFC 24(a)(2).3 It appears from the 

limited facts presented in the motion briefs that Kenn Borek holds a legal right to be 

paid for its work. Kenn Borek received that right after participating in a contracting

process which — while different from other contracting processes because of CCC’s 

involvement — is still governed by statutes, regulations, and caselaw. That right 

constitutes an “interest relating to the ... transaction that is the subject of the action.” 

Id. Kenn Borek stands to lose the interest by operation of a judgment resolving this 

case in favor of Air Borealis. Am. Mar. Transp., 870 F.2d at 1561. The interest is 

“legally protectable” because it belongs to Kenn Borek directly. Id. as 1562. 

Air Borealis argues that because of CCC’s presence as an intermediary, Kenn 

Borek is essentially a subcontractor with only an indirect economic interest in the 

case. See Opp. at 2–3. That is absurd, verging on frivolous. Unlike other 

subcontractors, Kenn Borek has a legal right — awarded by government agencies 

acting pursuant to legally defined processes — to be paid for work. That leaves no

defensible comparison between Kenn Borek and the unsuccessful intervenors in Air 

Borealis’ authorities. See, e.g., Am. Mar. Transp., 870 F.2d at 1562 (party “having no 

privity claim in a contract”); Aeroplate Corp. v. United States, 112 Fed. Cl. 88, 92 

(2013) (similar); United Keetoowah Band of Cherokee Indians of Okla. v. United 

States, 480 F.3d 1318, 1327 (Fed. Cir. 2007) (party with an interest separate from the 

2 A motion to intervene must “be accompanied by a pleading that sets out the claim or defense for 

which intervention is sought.” RCFC 24(c). No such pleading accompanies Kenn Borek’s motion, but

although Air Borealis argues that Kenn Borek has not identified claims or defenses, it has not objected 

to the lack of a pleading. This Court has sometimes considered a pleading unnecessary in bid protest 

interventions. Mitchco Int’l, Inc. v. United States, 149 Fed. Cl. 683, 685 n.2 (2020). 3 Many decisions from this Court grant intervention as of right to successful offerors in bid protests, 

often as a matter of course with little debate. See, e.g., Winston-Salem Indus. for the Blind, Inc. v. 

United States, 144 Fed. Cl. 644, 646 (2019); Tech. Innovation All. LLC v. United States, No. 19-1115C, 

2019 WL 3521928 (Fed. Cl. Aug. 1, 2019); Progressive Indus., Inc. v. United States, No. 14-1225C, 2015 

WL 1810495, at *3 (Fed. Cl. Apr. 17, 2015); Emerald Coast Finest Produce Co. Inc. v. United States, 

74 Fed. Cl. 679 (2006); RISC Mgmt. Joint Venture v. United States, 69 Fed. Cl. 624, 626 n.2 (2006).
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one subject to litigation); Anchor Sav. Bank, FSB v. United States, No. 95-39, 2012 

WL 3870824, at *2 (Fed. Cl. Aug. 31, 2012), aff’d, 534 F. App’x 1000 (Fed. Cir. 2013)

(similar); Osage Tribe of Indians of Oklahoma v. United States, 85 Fed. Cl. 162, 170 

(2008) (party with no interest in the property subject to the suit). Rather than viewing 

CCC as a contractor and Kenn Borek as a subcontractor, it may even be more accurate 

to characterize CCC as a delegee of DoD’s authority in issuing the contract. 

This case is much more like Mitchco International, Inc. v. United States, 149 

Fed. Cl. 683 (2020). That case involved a statutory system for awarding contracts that 

resembles the regulations applicable here. “[T]he nominal awardee” of a contract was 

the Commonwealth of Kentucky as a “sponsoring state agency,” but the nominal 

subcontractor was the entity “that st[ood] to win or lose economically in the end.” Id.

at 685. After granting permissive intervention, the Court explained that 

“intervention would be permissible under [RCFC] 24(a)(2)” as well. Id. At argument 

Air Borealis distinguished the statutory contract system on various bases, but all that 

seems to have mattered for the Mitchco Court’s analysis of the proposed intervenor’s 

interest was the economic substance. 

Air Borealis similarly emphasizes that CCC has an independent interest

because of its role as a reviewer of offers and as guarantor and administrator of the 

contract. Opp. at 4–5. I assume, without deciding, that CCC has such an interest. But 

that is irrelevant to the legal standard, which looks to Kenn Borek’s interest — not 

to whether other parties also have an interest. Whatever decisions CCC might have

made during the award process, and whatever it might do as intermediary between 

Kenn Borek and DoD, I see no real dispute that the net result of the procurement has 

been to assign Kenn Borek a legal right to work and be paid. The rest seems to be 

mere distraction and indirection.

The government’s presence in the case is not adequate to protect Kenn Borek’s 

interest. RCFC 24(a)(2). Courts presume that “the government as sovereign 

adequately represents the interest of citizens concerning matters that invoke 

‘sovereign interests.’” Wolfsen Land & Cattle Co. v. Pac. Coast Fed’n of Fishermen’s 

Associations, 695 F.3d 1310, 1316 (Fed. Cir. 2012) (quoting Standard Heating & Air 

Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 572 (8th Cir. 1998)). Air 

Borealis cites a handful of authorities applying that presumption more broadly 

whenever the government is a party, including one case involving interventions by 

an awardee in a bid protest. Opp. at 6; see Anderson Columbia Env’t, Inc. v. United 

States, 42 Fed. Cl. 880, 882 (1999). But that is mistaken. See Northrop Grumman 

Info. Tech., Inc. v. United States, 74 Fed. Cl. 407, 418 n.14 (2006). While the 

government may well represent citizens when it comes to sovereign interests, the 

government’s interest in receiving contractual performance and defending its 
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decisions during a procurement is distinct from a contractor’s interest in receiving an 

award and being paid. See, e.g., Mitchco, 149 Fed. Cl. at 685 (“The federal government 

is largely indifferent to who actually performs the work[.]”); Winston-Salem Indus. 

for the Blind, 144 Fed. Cl. at 645 (2019) (similar); Northrop Grumman, 74 Fed. Cl. at

418.

Because the government and Kenn Borek have different aims, it is entirely 

possible that the government could take positions that are not in Kenn Borek’s 

interest. The government might deny procedural errors that Kenn Borek would

concede and defend as harmless. Or the government might concede deficiencies in 

Kenn Borek’s proposal that Kenn Borek would not admit to. In short, when the 

government is participating in commerce, it is unrealistic to think that “collusion, 

adversity of interest, or nonfeasance” should be necessary to show different interests 

when it comes to Kenn Borek’s rights. Opp. at 6 (quoting John R. Sand & Gravel Co. 

v. United States, 59 Fed. Cl. 645, 656 (2004)). Kenn Borek’s burden to show 

inadequacy in the government’s representation is “minimal,” Trbovich v. United Mine 

Workers, 404 U.S. 528, 538 n. 10 (1972), and so is met here.

I also conclude that Kenn Borek is entitled to permissive intervention. Air 

Borealis argues that Kenn Borek “has not identified any claims or defenses that it 

could assert that share a common question of law or fact with the award decision.” 

Opp. at 7; see RCFC 24(b)(1)(B) (“On timely motion, the court may permit anyone to 

intervene who ... has a claim or defense that shares with the main action a common 

question of law or fact.”). That argument is inconsistent with the law. 

Air Borealis relies on a hypertechnical theory that because it has not asserted 

a claim against Kenn Borek, Kenn Borek does not have a “defense” within the 

meaning of RCFC 24(b)(1)(B). Opp. at 7–8. But the Supreme Court has explained that 

the analogous federal rule “plainly dispenses with any requirement that the 

intervenor shall have a direct personal or pecuniary interest in the subject of the 

litigation.” SEC v. U.S. Realty & Improvement Co., 310 U.S. 434, 459 (1940). The 

“defenses” contemplated by the rule are simply “the kinds of claims or defenses that 

can be raised in courts of law as part of an actual or impending law suit.” Amchem 

Prods., Inc. v. Windsor, 521 U.S. 591, 623 n.18 (1997) (quoting Diamond v. Charles, 

476 U.S. 54, 76–77 (1986) (O’Connor, J., concurring in part and concurring in 

judgment)).

That definition plainly encompasses the arguments the government and Kenn 

Borek could raise in motions for judgment on the administrative record, e.g., that the 

procurement processes in this case were not arbitrary and capricious. Even if Kenn 

Borek has not itself been sued, its arguments are the “kind that can” be raised in 
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litigation. Id. (emphasis added). And whatever Kenn Borek’s exact arguments turn 

out to be, they would “share[] with the main action a common question of law or fact” 

simply because they would arise from the same procurement, reflected in the same 

administrative record, and governed by the same law. Although this Court usually 

allows successful offerors in bid protests to intervene as of right, it has also allowed 

permissive intervention. See Mitchco, 149 Fed. Cl. at 685.

Air Borealis also suggests that permissive intervention should be denied as a 

matter of discretion, or because it would “delay or prejudice the adjudication of the

original parties’ rights.” RCFC 24(b). Air Borealis claims that intervention would 

“unnecessarily add to the expense of litigation and result in duplicative pleadings” 

because Kenn Borek and the United States will seek the same result based on the 

same administrative record. Opp. at 9. That presumes, contrary to the law, that the 

government’s litigation positions will be coextensive with Kenn Borek’s. Their 

litigation positions may overlap, but Air Borealis’s prognostications are not a good 

reason to deny Kenn Borek its say. 

I have considered Air Borealis’s remaining arguments and found them without 

merit. 

CONCLUSION

For the foregoing reasons, the motion to intervene (ECF 17) is GRANTED.

IT IS SO ORDERED.

s/ Stephen S. Schwartz

STEPHEN S. SCHWARTZ

Judge