United States Court of Federal Claims

No. 14-1028 C 

(Filed Under Seal: September 21, 2015) 

(Reissued: October 8, 2015)

_________________________________________ 

CROWLEY TECHNICAL 

MANAGEMENT, INC., 

 Plaintiff, 

v. 

THE UNITED STATES, 

 Defendant, 

and 

MAERSK LINE, LIMITED, 

 Defendant-Intervenor.

_________________________________________ 

 James Y. Boland, Esq., Venable LLP, Baltimore, MD, for plaintiff. 

 Alexander O. Canizares, Esq., United States Department of Justice, Washington, DC, for 

defendant. 

John H. Bennett, Esq., McKenna Long & Aldridge, Washington, DC, for defendantintervenor. 

OPINION AND ORDER 

Block, Judge. 

The United States Navy’s Military Sealift Command (“MSC”), originally known as the 

Military Sea Transport Service, was established during World War II to be the “single managing 

agency for the Department of Defense’s ocean transportation needs.”1 Today, MSC serves this 

 

 This opinion originally was issued under seal on September 21, 2015. The court afforded the 

parties an opportunity to propose redactions in the opinion prior to its publication. The court is 

mindful of the sensitive nature of this case and has redacted price terms and other proprietary 

information such as experience factor, sea margin, and fuel adjustment percentages. The redacted 

opinion is herein reissued for publication, unsealed, with only minor alterations to account for 

redactions. 

1 This and other information about the MSC is available online at: 

http://www.msc.navy.mil/history. 

Bid Protest; Motion for 

Judgment on the Administrative 

Record; Permanent Injunctive 

Relief; Public Interests in 

Military Operations; Fuel Cost 

Realism Analysis
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country by executing its mission to “[o]perate the ships which sustain our warfighting forces and 

deliver specialized maritime services in support of national security objectives in peace and war.” 

Id. As part of this mission, MSC conducts procurements on behalf of other military components 

in order to replenish our nation’s naval forces. Id. 

 The case at bar concerns one such contract, awarded by MSC to Maersk Line Limited 

(“Maersk”) for the enhancement and charter of a ship for use as a maritime support vessel. 

Plaintiff, Crowley Technical Management, Inc. (“Crowley”) protests MSC’s evaluation of fuel 

costs in connection with the procurement. Plaintiff avers that MSC conducted an “irrational and 

unlawful evaluation” of the offerors’ projected fuel consumption costs and that consequently, its 

findings were arbitrary, capricious, an abuse of discretion, and contrary to law. Plaintiff alleges 

that but for MSC’s unlawful evaluation, its offer would have been accepted by MSC.

 Before the court are plaintiff’s motions for permanent injunctive relief and judgment on 

the administrative record, filed pursuant to Rules 65 and 52.1(c) of the Rules of the Court of 

Federal Claims (“RCFC”), as well as defendant and defendant-intervenor’s cross-motions for 

judgment on the administrative record, filed pursuant to RCFC 52.1(c). For the reasons stated 

below, the court will deny plaintiff’s motion for permanent injunction and judgment on the 

administrative record and grant defendant and defendant-intervenor’s cross-motions for judgment 

on the administrative record. 

I. BACKGROUND 

A. The Solicitation 

On November 15, 2012, MSC issued a solicitation for the modification and charter of a 

Maritime Support Vessel (“MSV”), to be used by the United States Special Operations Command 

(“USSOCOM”). AR at 53. The solicitation instructed offerors to propose a “U.S. flagged, twin 

shaft vessel,” which would then be substantially modified in order to enable the vessel to carry out 

the MSC’s mission requirements. AR at 94. The listed mission requirements included the ability 

to “launch, recover, refuel, and resupply small crafts, provide force protection and perform 

stowing, and transport, launch/recover, and refuel both manned and unmanned rotary wing 

aircraft.” Id. The retrofit vessel would have the capacity to host the ship’s crew and between 50 

and 209 military personnel. Id. 

The solicitation provided a seven month ramp-up time, during which the contractor would 

implement the required enhancements. AR at 73, 90, 95. In addition to the ramp-up time, the 

solicitation’s base period included a five-month charter. Id. At the conclusion of this base period, 

the solicitation’s terms granted MSC four one-year options to extend the charter. Id. 

Section M of the solicitation stated that the contract would be awarded to the lowest priced 

technically acceptable offeror, in accordance with Federal Acquisition Regulation (“FAR”) 

15.101-2. AR at 234-238. In other words, the evaluation factors other than price, namely technical 

and past performance, would be evaluated on an “acceptable/unacceptable basis.” Id. at 234. For 

this reason, the solicitation provided that “the offeror with the lowest evaluated price proposal and 

acceptable past performance whose offer conforms fully to the solicitation requirements and meets 

the acceptability standards for all non-price factors” would receive the contract. Id. 
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The price factor for each bid comprised the costs for “program management support of 

ramp-up period, vessel modifications, charter hire and fuel for the firm and option time periods, 

redelivery bonus (if offered), and any other costs . . . set forth in the offer.” AR at 236. Although 

innocuous in appearance, the fuel cost component has become the grand issue in this case. 

The solicitation stated that fuel costs would be based on the “pre-modified” vessel’s fuel 

consumption. AR at 237. To facilitate projecting these costs, the solicitation provided offerors 

with operational assumptions such as percentage of time underway, at loiter/anchor, or at port and 

weather conditions. AR tab 3a at 236; see AR 85 (Special Time Boxes 59-62); AR tab 3c at 394-

96 (Attachment 12). Offerors projected the fuel consumption of their proposed vessels in these 

conditions to determine fuel cost. Id. But the solicitation provided that once the vessel was 

modified, fuel costs would be recalculated. AR tab 28 at 2765. As a result, the offerors’ prices 

included stand-in fuel cost numbers, to be replaced post-award. Id.

MSC received thirteen proposals. AR at 1730-33. The agency deemed each of the 

offerors’ technical and past performance factors to be acceptable. Id. Thus, MSC selected the 

offeror with the lowest total price. On November 12, 2013, MSC awarded the contract at issue to 

Maersk. AR at 1872-75. Maersk had proposed a cargo ship, the CRAGSIDE, and a total evaluated 

price of $163,777,124.60. AR at 1858. Crowley, in contrast, had proposed [redacted], and a total 

evaluated price of $[redacted]. Thus, the disparity between Maersk’s successful bid and 

Crowley’s unsuccessful bid was $[redacted]. Notably, this disparity can be explained by 

differences in fuel costs: Maersk had projected $20,628,066.59 in fuel costs, which was 

$[redacted] lower than Crowley’s projected fuel costs of $[redacted]. As the court has alluded, 

MSC’s treatment of these fuel costs is the subject of this bid protest. 

B. Proceedings at the Government Accountability Office 

Shortly thereafter, on November 22, 2013, Crowley filed a protest of MSC’s award 

decision at the Government Accountability Office (“GAO”). AR at 1879-2339. In its protest, 

Crowley alleged that MSC had overlooked several flaws in Maersk’s fuel calculations. Id. 

Crowley argued that these errors had resulted in Maersk understating its fuel costs and, therefore, 

undermined MSC’s decision to award the contract to Maersk. Id. 

On January 10, 2014, MSC acknowledged that corrective action was warranted. AR at 

2754. Accordingly, on January 16, 2014, the GAO dismissed Crowley’s protest on the grounds 

that MSC’s corrective action rendered the protest academic. AR at 2755. 

MSC’s corrective action took the form of a cost realism analysis,2 in which the agency 

reviewed the realism and methodology of the offerors’ underlying fuel calculations. AR tabs 26 

& 27. To conduct the analysis, MSC established a Fuel Consumption Evaluation Team (“FCET”) 

made up of naval engineers and architects. AR at 3217, 3585. The team was chaired by Olivia 

Bradley, a supervisory contract specialist. Id. The FCET requested and received from each offeror 

narrative explanations of the methodologies used to calculate their fuel consumption rates and then 

proceeded to analyze that information. AR at 2768-3214, 3218. 

 

2

 Cost realism is an analysis undertaken “to determine whether the estimated proposed cost 

elements are realistic for the work to be performed; reflect a clear understanding of the 

requirements; and are consistent with the unique methods of performance and materials described 

in the offeror's technical proposal.” FAR 15.404-1(d)(1). 
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Crowley submitted three fuel consumption projection methods as part of its explanation, 

methods A, B, and C. Method A, the method Crowley chose to employ in its actual bid, showed 

the power use during a “ready state” of Crowley’s vessel in port with no passengers to be 500kW. 

AR at 2906. Method B showed that a sister ship of Crowley’s vessel ran an average electrical load 

of 613kW during voyages, ranging between 500kW and 800kW. Id. Method C suggested that the 

electrical load for hotel services and accommodations would be approximately 250kW of power. 

Tab 33b at 3208. In contrast to Methods A and B, which were based on the data of actual ships, 

Method C was based on design information from the construction of Crowley’s ship. Id. FCET 

considered Crowley’s explanation of its fuel costs and did not alter the projected fuel cost that 

Crowley had used in reaching the offer price for its bid. 

FCET also examined Maersk’s responsive data and identified two “clerical errors” in 

Maersk’s offer: an incorrect calculation involving an admiralty coefficient3 and an errant fuel 

conversion from metric tons to barrels per day. AR at 3228, 3254. To correct these mistakes, 

MSC adjusted Maersk’s most probable cost upward by $126,287.11 to a revised total cost of 

$163,903,411.71, which was still lower than Crowley’s total evaluated price of $[redacted]. AR 

at 3256. Accordingly, MSC reaffirmed its decision to award the contract to Maersk as the lowest 

priced technically acceptable offeror. 

Unsatisfied with MSC’s adjustment of Maersk’s price, Crowley filed another GAO protest 

on June 20, 2014. AR tab 38. Crowley’s June protest challenged the FCET’s cost realism findings, 

arguing the FCET failed to detect other fuel calculation errors. Crowley also argued that the 

method used by the agency to evaluate the fuel data had the effect of overstating Crowley’s fuel 

costs or understating Maersk’s. Id. 

Crowley’s argument that the FCET overlooked several additional fuel calculation errors 

centers on an email from the original engine manufacturer (“OEM”) of Maersk’s vessel. AR at 

tab 38. This email was submitted by Maersk in response to the FCET’s informational request 

during its cost realism analysis. Tab 31a at 2802. The email demonstrated that Maersk’s 

calculations incorrectly employed the “calorific” (that is caloric) values for marine diesel/gas oil 

when Maersk proposed to use a different fuel type, intermediate fuel oil 180. Id.; Tab 47 at 3510-

11. Crowley contended that this “incorrect calorific value of fuel” resulted in understated costs. 

AR tab 47 at 3500-01. The FCET accepted this argument, agreeing that Maersk had failed to 

undertake the correct fuel conversion. AR at 3586. Accordingly, the agency adjusted Maersk’s 

price upward by $1,158,092.58 to a total of $165,061,504.29, which was still lower than Crowley’s 

$[redacted]. AR tab 154 at 3627. 

Additionally, Crowley contended that Maersk had failed to adhere to a direction in the 

engine manufacturer’s email instructing Maersk to increase its fuel consumption estimates by

[redacted] percent4 for tolerance and [redacted] percent for each engine-driven pump, to account 

for wear and tear. Tab 31a at 2802; Tab 47 at 3512. The dispute over whether Maersk accounted 

for this [redacted]% in fuel markups, referred to by the parties as the “tolerance adjustment,” is 

one of the principle questions before the court. Pl.’s Mot. at 19-38. 

 

3 An admiralty coefficient is a constant for a given hull that gives the approximate relationships 

between propulsion power, ship speed, and displacement. The Basics of Ship Propulsion at 13. 

Available online at: http://marine.man.eu/docs/librariesprovider6/propeller-aftship/basicprinciples-of-propulsion.pdf?sfvrsn=0.

4 As mentioned, the tolerance adjustment, sea margin, and experience factor percentages have been 

redacted as proprietary information at the request of the parties.
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 MSC rejected the tolerance adjustment argument because the agency determined that 

Maersk had accounted for the cost of the [redacted]% increase with a separate [redacted]% 

markup the company had applied its total fuel cost estimate, known as the “experience factor.” 

AR tab 49 at 3586; see AR tab 31a at 2791. Maersk stated that the experience factor was a 

[redacted]% hedge against general “business risk” that was applied to the total daily fuel 

consumption rate. Pl.’s Mot. at 23-25. The FCET considered Maersk’s fuel calculation data, 

collected during the agency’s fuel cost realism evaluation, and “concluded that this experience 

factor is sufficient to account for the OEM-considered recommended adjustments for tolerance 

and installed equipment; therefore, no adjustment is required.” AR tab 49 at 3586; see AR tab 31a 

at 2791. 

Crowley also contended that MSC failed to evaluate offerors’ proposals on an “apples-toapples” basis by failing to “normaliz[e],” or adjust, the bids to reflect equivalent passenger load 

assumptions. AR at 3297-98, 3502. Notably, Crowley’s proposal made fuel assumptions based 

on a 285 person passenger load, whereas Maersk’s bid assumed zero passengers. AR at 3297-98. 

Crowley pointed out that the solicitation “did not specify the number of passengers” and argued 

that, consequently, neither offeror’s assumption was “incorrect” per se. AR at 3502. Nonetheless, 

according to Crowley, these differing assumptions precluded a meaningful comparison of the 

offeror’s bids. AR at 3297-98. 

Crowley claimed that its assumption of 285 passengers resulted in its ship’s electrical load 

being overstated by 250 kilowatts and, consequently, its fuel cost estimates being overstated by 

$2,458,750. AR at 3297-98. This 250 kilowatt electrical load was figure was drawn from the 

aforementioned method C, included in Crowley’s fuel cost realism response. Had MSC 

normalized the passenger assumptions by apply method C, Crowley’s total price would have been 

$[redacted], which is $[redacted] cheaper than Maersk’s adjusted price5

of $165,061,504.29.

But MSC rejected Crowley’s “apples-to-apples” argument, disclaiming responsibility for 

the offerors’ assumptions about operating conditions for the pre-modified vessels, which MSC 

said were “independently determined” by each offeror. AR tab 49 at 3588. In the alternative, 

MSC found that even if it were to adjust Crowley’s fuel costs downward to account for the 

differing fuel passenger assumptions, 6 Maersk’s offer would still be the lowest priced technically 

acceptable offer. In making this determination, MSC relied on a declaration by Ms. Bradley, the 

FCET chairperson, stating that Crowley’s passenger assumption accounted for $1,103,469.14 in 

fuel costs, significantly less than Crowley’s claimed number of $2,458,750. AR tab 153, at 3626. 

Ms. Bradley reached this figure by reducing the ship’s power usage by 113 kilowatts, a number 

“derived from empirical data collected during actual ship and sister ship voyages.” Id. 

 

5As explained above, FCET found that Maersk had understated its fuel price by applying the wrong 

admiralty coefficient and the incorrect calorific value of fuel. FCET accordingly adjusted 

Maersk’s total price upward from $163,777,124.60 to $165,061,504.29.

6

It is worth noting that the offerors made differing assumptions on the impact of fuel consumption 

while at “loiter/anchor.” AR tab 47 at 3492, 3502. The loiter/anchor condition was also not 

defined by the solicitation and Crowley acknowledged that “to be consistent and ensure a common 

basis for evaluation,” MSC “should have adjusted Maersk’s proposed fuel costs down by 

$386,960.” AR at 3502. The FCET disagreed and did not adjust the parties’ offers to normalize 

these assumptions. AR tab 49 at 3588.
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After considering MSC’s arguments, the GAO denied Crowley’s protest on September 25, 

2014. AR at tab 62. The GAO rejected Crowley’s calorific value argument as untimely, finding 

it could have been raised during the solicitation. Id. The GAO was not persuaded by Crowley’s 

tolerance argument, finding that the tolerance adjustments were accounted for in Maersk’s 

[redacted]% experience factor. Id. Finally, GAO found that even if Crowley won its “apples-toapples” passenger assumption argument, Crowley could not establish that it was prejudiced 

because, even after a downward adjustment of $1,103,469.14, Maersk would retain its status as 

the lowest-priced technically acceptable offeror. Id. at 3971-72. 

C. Proceedings Before This Court 

 Crowley filed its complaint and a motion for a preliminary injunction in this court on 

October 22, 2014. Dkt. No. 1. An initial status conference was held on October 27, 2014. Dct. 

No. 13. During that conference, briefing on the merits and on plaintiff’s motion for injunctive 

relief were combined. Dkt. No. 13. On November 11, 2014, plaintiff filed its motion for judgment 

on the administrative record and motion for permanent injunction. Dkt. No. 23. On November 

18, 2014, defendant filed its opposition and cross-motion for judgment on the administrative 

record. Dkt. No. 27. On that same day, defendant-intervenor filed its opposition and cross-motion 

for judgment on the administrative record. Dkt. No. 28. Oral argument was held on December 4, 

2014.

II. DISCUSSION 

A. Motions for Judgment on the Administrative Record 

As explained above, plaintiff seeks both judgment on the administrative record and a 

permanent injunction. The court now addresses the former. A judgment on the administrative 

record is “properly understood as . . . an expedited trial on the record.” Bannum, Inc. v. United 

States, 404 F.3d 1346, 1356 (2005). In bid protest cases, such as the one at bar, a court must weigh 

the evidence in the record and determine whether the agency’s procurement decision was 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 

U.S.C. § 706(2)(A); Bannum, Inc., 404 F.3d at 1351. To make this determination, the court must 

decide if “the procurement official’s decision lacked a rational basis.” Weeks Marine, Inc. v. 

United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009) (internal citations omitted). “To succeed . . . 

the protestor must show that the agency failed to provide a ‘coherent and reasonable explanation 

of its exercise of discretion.’” Wildflower Int’l, Ltd. v. United States, 105 Fed. Cl. 362, 385 (2012) 

(quoting Banknote of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004)). 

“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is 

not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983). This court “does not sit as a super source 

selection authority to second guess agency procurement decisions. Rather, it is well established 

that the Court should not substitute its judgment to assess the relative merits of competing 

proposals in a Government procurement.” Ceres Envtl. Servs., Inc. v. United States, 97 Fed. Cl. 

277, 307-08 (2011) (citing R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322 (Fed. 

Cir. 2003)). “Mere disagreement with an agency’s handling of a procurement matter falls short of 

meeting the burden of proving that the process was arbitrary and capricious.” Blackwater Lodge 

& Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009). 
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Additionally, applying this standard in the context of an agency’s cost realism analysis, an 

agency “need not [perform the analysis] with ‘impeccable rigor’ to be rational.” Westech Intern., 

Inc. v. United States, 79 Fed. Cl. 272, 286 (2007) (quoting OMV Med., Inc. v. United States, 219 

F.3d 1337, 1344 (Fed. Cir. 2000)). Rather, the cost realism analysis must “reflect that the agency 

considered the information available and did not make ‘irrational assumptions or critical 

miscalculations.’” Id. “Unless the agency commits itself to a particular methodology in a 

solicitation . . . , the nature and extent of a price realism analysis, as well as an assessment of 

potential risk associated with a proposed price, are generally within the sound exercise of the 

agency’s discretion.” Afghan Am. Army Servs., 90 Fed. Cl. 341, 357-58 (2009). When a method 

is not specified, the agency has “broad discretion” to conduct the cost realism analysis. Ne. 

Military Sales, Inc. v. United States, 100 Fed. Cl. 103, 118 (2011) (internal quotations omitted). 

Because MSC “is in the best position to make this cost realism determination, [the court’s] review 

is limited to determining whether its cost evaluation was reasonably based and not arbitrary.” 

United Payors and United Providers Health Servs., Inc. v. United States, 55 Fed. Cl. 323, 329 

(2002) (internal quotation and citation omitted). 

Finally, even if a plaintiff succeeds in establishing an error in the procurement process, a 

plaintiff cannot prevail in a bid protest unless it can demonstrate that it was “significantly 

prejudiced” by the agency’s error. Bannum, 404 F.3d at 1353. To do so, a protestor must show 

that “there was a ‘substantial chance’ it would have received the contract award but for the errors.” 

Id.; see also, Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996) (stating that a 

successful protestor “must establish not only some significant error in the procurement process, 

but also that there was a substantial chance it would have received the contract award but for that 

error”). This requirement is of particular import given the instant facts. 

In the case at bar, plaintiff contends that flaws in MSC’s fuel cost realism analysis, the 

foundation for the agency’s decision to uphold its award to Maersk, provide a sufficient basis to 

overturn the agency’s award. Pl.’s Mot. at 19-38. Plaintiff’s argument raises two questions for 

the court to address: 

1. Was MSC’s conclusion that Maersk’s offer accounted for the [redacted]% 

tolerance adjustment irrational? 

2. Was MSC’s evaluation of the offeror’s proposals without adjustment for 

differing assumptions irrational? 

The court will address these two issues in turn. 

1. MSC Did Not Err in Determining That a Tolerance Adjustment Was Unnecessary 

 Plaintiff argues that MSC erred in determining that a tolerance adjustment was 

unnecessary, for the following two reasons. First, plaintiff argues that Maersk had simply ignored 

the required tolerance adjustment, and that MSC “had no authority to compensate for Maersk’s 

calculation errors by borrowing from Maersk’s [experience factor].” Id. at 3. Second, plaintiff 

argues that MSC’s determination that Maersk had accounted for the tolerance adjustment within 

its experience factor was irrational and “contrary to all evidence.” Id. at 24. Pl.’s Mot. at 19-38. 

Plaintiff dismisses MSC’s findings to the contrary as “post hoc calculation made during the heat 

of the GAO protest litigation.” Pl.’s Mot. at 32. 

To begin with, plaintiff argues that Maersk ignored the engine manufacturer’s email 

instruction to apply the tolerance adjustment to its fuel consumption estimates. Pl.’s Mot. at 22. 
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Plaintiff contends that Maersk’s failure to comply with the first section of the original engine 

manufacturer’s email pertaining to calorific conversion rates, which MSC discovered and 

corrected during Crowley’s GAO protests, indicates that Maersk “ignored” the email. Id. at 21. 

In plaintiff’s view, this “creates a strong presumption” that Maersk did not apply the [redacted]% 

adjustment mandated in the second section of the email. Id. at 22.7

 

 Plaintiff also argues that the order in which Maersk applied its calculations indicates that 

the experience factor was not intended to address the [redacted]% tolerance/engine-driven pump 

adjustment. Pl.’s Mot. at 24-25. Plaintiff points out that tolerance adjustments are ordinarily 

applied to the specific fuel oil consumption rate before reaching a total daily fuel consumption 

rate. Id. Maersk, in contrast, applied its [redacted]% experience factor to the total daily fuel 

consumption rate. Id. Nonetheless, plaintiff admits that “the arrangement of this calculation does 

not necessarily have mathematical significance.” Id.

In addition to its arguments that Maersk failed to make the tolerance adjustment in the first 

place, plaintiff contends that MSC’s decision to consider the experience factor in satisfaction of 

the tolerance adjustment is problematic in its own right. Specifically, plaintiff attempts to 

demonstrate that Maersk’s [redacted]% experience markup cannot satisfy the [redacted]% 

tolerance adjustment because Maersk described the experience factor as a general “business risk,” 

which was not intended to address “any specific type of loss.” Pl.’s Mot. at 23. At oral argument, 

plaintiff stated that the [redacted]% experience factor was “there for a reason” and that business 

risk, not tolerance, was “what it was proposed for.” Tr. at 65-66. In plaintiff’s view, MSC’s 

decision to “borrow” from the [redacted]% experience figure to rectify the tolerance adjustment 

issue with Maersk’s bid resulted in a conclusion by MSC that was “tainted by fundamentally 

irrational and unsupported assumptions.” Id. at 20, 24. 

Furthermore, plaintiff argues that the [redacted]% experience factor cannot be applied to 

satisfy the [redacted]% tolerance adjustment because doing so would create deficiencies 

elsewhere in the offer. Pl.’s Mot. at 26-27. Specifically, plaintiff argues that borrowing from the 

[redacted]% experience factor would leave “unrealistically low” projections for sea margin.8 Pl.’s 

Mot. at 27. Maersk’s offer proposed a sea margin of [redacted]%. Tab 33a at 3173. Plaintiff 

cites a paper entitled “Basics of Ship Propulsion” for the proposition that an appropriate sea margin 

is 20-35%. Pl.’s Mot. at 26-27. Plaintiff contends that it “did not press this shortcoming during 

its GAO protest because Crowley considered Maersk’s [redacted]% experience factor as 

sufficiently, though not fully, making up the difference because it would result in a total adjustment 

of [redacted]%, close to the 20-35% sea margin range.” Id. Plaintiff argues that “borrowing” 

[redacted]% of the [redacted]% experience factor results in an unacceptably low sea margin of 

[redacted]%. Id. 

The court disagrees with plaintiff’s objections. In the first place, plaintiff’s evidence that 

Maersk failed to adhere to a section of an email from its engine manufacturer regarding fuel 

conversations does not provide “strong” evidence that Maersk failed to follow instructions in a 

different section of the email which pertain to a different matter. Pl.’s Mot. at 27. As the GAO 

commented, Crowley “has not pointed to anything in Maersk’s proposal that indicates that the 

[redacted]% experience factor did not include provision [for] tolerance.” AR tab 62 at 3973 

 

7

 At oral argument, plaintiff clarified that the term “presumption” was intended to mean an 

inference. Tr. at 76. 

8 “Sea margin is a factor that takes into account resistance associated with the weather conditions.” 

Pl.’s Mot. at 26. 
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(emphasis added). “Naked claims, by all appearances unsupported by anything in the record, fall 

far short of meeting the heavy burden of demonstrating that ... findings were the product of an 

irrational process and hence arbitrary and capricious.” JWK Int'l Corp. v. United States, 52 Fed. 

Cl. 650, 660 (2002). Each of these two arguments shares a common basis – speculation – and the 

court declines to breathe life into them by engaging in more of the same. 

Similarly, the court is not persuaded by plaintiff’s order of operations argument. Plaintiff 

acknowledges that “the arrangement of [Maersk’s fuel] calculation does not necessarily have 

mathematical significance.” Id. But, despite this concession, plaintiff asks the court to consider a 

potentially meaningless order of operations as sufficient evidence that Maersk’s experience factor 

was not allotted for tolerance. 

Second, it is important to note that even if the court accepted plaintiff’s conjecture that 

Maersk overlooked the tolerance adjustment, plaintiff has not demonstrated how this oversight 

would provide a sufficient basis to overturn MSC’s conclusion that the [redacted]% experience 

factor accounts for the [redacted]% tolerance adjustment. The closest plaintiff comes to doing so 

is its position at oral argument that the experience factor was “there for a reason” and that business 

risk was “what it was proposed for.” Tr. at 65-66. Nowhere, outside of its sea margin argument, 

does plaintiff establish that MSC’s decision to “borrow” from the [redacted]% experience factor 

represents an irrational determination sufficient to overturn the agency’s cost realism analysis. 

Pl.’s Mot. at 20, 24. 

Crowley’s best attempt to show that MSC’s finding on this question was irrational is its 

argument that such a conclusion creates inconsistencies in other portions of Maersk’s bid. As 

discussed above, Crowley argues that [redacted]% sea margin is “unrealistically low,” citing a 

paper for the proposition that 20-25% is an appropriate sea margin. Pl.’s Mot. at 27. Crowley 

contends that Maersk’s [redacted]% experience factor must be allotted to Maersk’s sea margin in 

order to bring it to acceptable levels. Id. But, Crowley’s views aside, MSC’s fuel cost realism 

analysis accepted Maersk’s [redacted]% sea margin. AR at 3173; AR tab 34 at 3224. Crowley 

has not provided any evidence of “irrational assumptions or critical miscalculations” by the FCET 

sufficient to overturn this determination. OMV Med., 219 F.3d at 1344. 

Interestingly, even as plaintiff criticizes the agency for “borrowing” from Maersk’s 

experience factor to account for the tolerance requirement, plaintiff concedes that it initially did 

not press plaintiff’s alleged use of an “unrealistically low” sea margin because “Crowley 

considered Maersk’s [redacted]% experience factor as sufficiently, though not fully, making up 

the difference.” Pl.’s Mot. at 26-27. Plaintiff, in effect, appears to argue that “borrowing” from 

the experience factor to account for sea margin is rational, but that “borrowing” from the

experience factor to account for the tolerance adjustment is irrational and arbitrary and capricious. 

Plaintiff makes no attempt to resolve this inconsistency. 

As explained above, the role of the court is not to second guess the judgment of the agency 

but to determine whether the agency acted arbitrarily or capriciously. Weeks Marine, 575 F.3d at 

1358. The court finds that the administrative record in this case does not demonstrate that MSC 

made “irrational assumptions or critical miscalculations” sufficient to undermine its determination 

that Maersk’s offer accounted for the [redacted]% tolerance adjustment. OMV Med, 219 F.3d at 

1344. Instead, the record supports defendant’s view that MSC’s conclusion was reached through 

a “rigorous, thorough and well-documented” process. Def.’s Resp. at 34 (citing AR tab 34 at 3222-

32). The FCET, comprised of experts including naval engineers and architects, reviewed extensive 

data offerors submitted to the agency explaining their bids and employed their combined expertise 

to determine that no further tolerance adjustment was necessary. AR at 2754. 
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Plaintiff has not presented any evidence that the FCET failed to consider available 

information or any evidence of procedural errors in the FCET’s process that would demonstrate 

the agency’s finding in this case was irrational. In lieu of doing so, plaintiff attacks the FCET 

finding as a “post hoc calculation.” Pl.’s Mot. at 32. But, this comment alone is not enough to 

overcome the “strong presumption that government contract officials exercise their duties in good 

faith.” Am-Pro Protective Agency, Inc., 281 F.3d at 1239; See also, Rd. and Highway Builders, 

LLC v. United States, 702 F.3d 1365, 1368 (Fed. Cir. 2012) (stating that this court has “long upheld 

the principle that government officials are presumed to discharge their duties in good faith.”).

In sum, plaintiff has not established that MSC erred in finding that a tolerance adjustment 

was unnecessary. Plaintiff has not identified “irrational assumptions or critical miscalculations” 

in the agency’s cost realism analysis. OMV Med., 219 F.3d at 1344. Nor has plaintiff demonstrated 

that the agency’s conclusion was irrational on the ground that it creates inconsistencies in other 

aspects of Maersk’s bid. Accordingly, the court finds that plaintiff has failed to demonstrate that 

MSC lacked a “coherent and reasonable explanation” for its decision that a tolerance adjustment 

was unnecessary. Banknote, 365 F.3d at 1350. 

2. Crowley Cannot Demonstrate It Was Prejudiced by Passenger Assumptions

 Plaintiff argues that MSC’s fuel cost realism analysis errantly failed to consider that 

offerors made differing assumptions about passenger loads, which affected the fuel cost 

projections in their bids. Pl.’s Mot. at 27-38. In light of MSC’s statutory mandate to consider 

fuel costs, plaintiff contends that MSC was “required to equalize [for] . . . the presence of 

passengers” amongst the bids. According to plaintiff, MSC’s “failure to do so was arbitrary, 

capricious, and contrary to law.” Id. at 31 (citing 10 U.S.C. § 2305(a)(3)(A)(ii); FAR 

15.304(c)(1)). In plaintiff’s view, “comparing two dissimilar costs,” here fuel costs for a ship 

with passengers and a ship without, does “not result in a rational or meaningful consideration of 

cost to the government.” Id. at 28. 

At the outset, the court notes that even if the agency’s failure to account for differing 

passenger assumptions was in error, this failure is only material if plaintiff can establish that it was 

“significantly prejudiced” by this failure. Bannum, 404 F.3d at 1353. As the court explained 

above, plaintiff must be able to show that but for this error, there is a “substantial chance” that it 

would have been awarded the contract instead of Maersk. Id. The court has already upheld the 

agency’s determination that no tolerance adjustment is necessary. Moreover, as explained above, 

the solicitation stated that offers would be evaluated on a lowest priced technically acceptable 

offer. Therefore, plaintiff cannot prevail unless it can show that but for the agency’s failure to 

“normalize” the passenger assumptions of the bids, Crowley’s offer price would have been lower 

than Maersk’s offer.

During MSC’s source selection, the agency determined that Maersk’s total evaluated price 

of $163,777,124.60 was $[redacted] lower than Crowley’s price. AR tab 35 at 3256. After 

correcting for the errors in Maersk’s proposal9

 that MSC identified post source selection, Maersk’s 

total most probable price is $165,061,504.29, which is still $[redacted] lower than Crowley’s total 

probable price of $[redacted].

10

 

 

9 MSC determined that these errors understated Maersk’s costs by $126,287.11 and $1,158,092.58, 

respectively. AR at 3627. 

10 The court does not consider Crowley’s alleged concession at GAO that Maersk’s price should 

be lowered by an additional $386,960. The similarity between Maersk’s “loiter/anchor” 
- 11 -

The remaining price difference is notable because the FCET determined that, if an 

adjustment were made to account for the difference in passenger assumptions, it should be based 

on a reduction to the projected power consumption of 113 kilowatts, which would cut Crowley’s 

projected fuel costs by only $1,103,469. AR at 3626-27. Although such an adjustment would 

narrow the price gap between Maersk and Crowley, Maersk would still retain its status as the 

lowest priced technically acceptable offeror by a margin of roughly $[redacted]. 

 Predictably, plaintiff takes issue with MSC’s 113 kilowatt estimate of the impact of 

Crowley’s passenger load assumption. Pl.’s Mot. at 32. As discussed, plaintiff dubs the FCET 

chairperson’s declaration quantifying the passenger load impact a “post hoc calculation made 

during the heat of the GAO protest litigation.” Pl.’s Mot. at 32. Plaintiff argues that “it was 

unreasonable for MSC to select 113 kW as the ‘realistic’ amount of power associated with 

passengers, because the conclusion was not rational, failed to consider the entirety of Crowley’s 

clarifications, and was counter to the evidence before the agency.” Id. Plaintiff attempts to 

demonstrate that the FCET’s impact estimate was arbitrary in several ways. 

 First and foremost, plaintiff argues that MSC failed to consider all three of the methods for 

calculating passenger impact that Crowley submitted to the FCET during MSC’s cost realism 

analysis. Pl.’s Mot. at 32. In plaintiff’s view, MSC’s decision to employ methods A and B to 

arrive at the 113kW figure for passenger impact was errant because it did not sufficiently consider 

the 250kW estimated passenger impact provided by method C. Id. Plaintiff argues that MSC’s

decision to consider certain methodologies over others resulted in a conclusion that was “arbitrary 

and incomplete.” Id. at 33. 

Furthermore, plaintiff argues that MSC’s estimated impact “creates an irrational and 

unsustainable result.” Pl.’s Mot. at 33. Plaintiff points out that method A projects an electrical 

load for hotel services at 290.1kW. Id. Plaintiff notes that if only 113kW of power is allocated to 

passengers, “the remaining load of 177.1kw would be attributable to [30] crew.” Id. Plaintiff 

maintains that “MSC’s conclusion was necessarily irrational because the agency’s analysis would 

mean that significantly fewer cabins and personnel (crew) would consume more electricity than 

the 285 passengers, who number almost 10 times the number of crew, and whose cabins number 

more than three times the number of crew cabins.” Id.

Additionally, plaintiff argues that MSC’s electrical load impact estimation was flawed 

because it was based, in part, on an average electrical load figure of 613kW, derived from method 

B. Pl.’s Mot. at 34-37. In plaintiff’s view, the 613kW average “does not provide the most accurate 

estimation of the total electrical load” because the average includes voyages with a lower number 

of passengers, which had an electrical load of roughly 500kW. Id. Plaintiff maintains that the 

inclusion of voyages with lighter passenger loads artificially depressed the average electrical load 

figure and undermines the reliability of methods A and B. Id.

 Plaintiff also attempts to rebut defendant’s argument that Crowley “relied on” method A 

to calculate the projected fuel costs for its original bid. Pl.’s Mot. at 36. Plaintiff comments that 

the purpose of the methods was “not to demonstrate a precise and realistic estimate of the total 

power/fuel cost associated with 285 passengers, but to demonstrate that Crowley’s proposed total 

figure . . . was realistic.” Id. Plaintiff contends that “[t]he FCET Chair’s declaration provided no 

explanation or rationale why this fact had any relevance.” Id.

 

assumptions and Crowley’s passenger load is irrelevant because Crowley cannot demonstrate 

prejudice even without a reduction in Maersk’s price. Def.’s Res. at 40-14. 
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As outlined, this court reviews MSC’s cost realism analysis for “irrational assumptions or 

critical miscalculations.” OMV Med, 219 F.3d at 1344. The court must determine whether MSC’s 

decision on this question “lacked a rational basis” and whether Crowley can demonstrate that MSC 

failed to provide a “coherent and reasonable explanation of its exercise of discretion.” Weeks 

Marine, 575 F.3d at 1358; Banknote, 365 F.3d at 1350. 

The court turns once more to the declaration of FCET chairperson Bradley, in which she 

articulated two reasons for her decision to consider the 113kW figure derived from Crowley’s 

methods A and B over the 250kW figure provided by method C. AR at 3626-27. Ms. Bradley 

stated that method C is less reliable because “MSC considers actual operational data” provided by 

methods A and B to be “more representative.” AR at 3627. She also stated that MSC disfavored 

method C because it “was never used in the calculation of Crowley’s proposed fuel consumption.” 

Id. The court finds that MSC’s preference for data gleaned from actual ship operations over more 

theoretical data provides a “rational basis” for the agency’s decision. Weeks Marine, 575 F.3d at 

1358. Ms. Bradley’s declaration unequivocally stated a “coherent and reasonable explanation” for 

MSC’s decision to favor certain methods A and B over method C. Banknote, 365 F.3d at 1350. 

Likewise, the court is not persuaded by plaintiff’s arguments attacking the fuel calculation 

methods the FCET considered, which Crowley itself supplied to the agency. As noted, the FCET 

was composed of technical experts assembled by the agency in order to assess cost realism as 

accurately as possible. AR at 3217, 3585. This court will abide by the admonition that it “is not 

to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n, 463 U.S. 29, 30 

(1983). 

The court also rejects plaintiff’s characterization of Ms. Bradley’s statement as a “post hoc 

calculation made during the heat of the GAO protest litigation.” Pl.’s Mot. at 32. The court will 

not impute bad faith onto the FCET purely based on the context of prolonged protest litigation. 

As defendant notes, there is a “strong presumption that government contract officials exercise their 

duties in good faith.” Am-Pro Protective Agency, Inc., 281 F.3d at 1239. This strong presumption 

cannot be overcome by mere implication.

Plaintiff‘s inability to supplant the FCET’s passenger load impact determination is 

ultimately fatal to its case. For the reasons explained above, the court will not disturb MSC’s 

quantification of the impact of Crowley’s passenger assumption nor will it upset the agency’s 

determination that no tolerance adjustment is necessary. Therefore, plaintiff cannot demonstrate 

that it was significantly prejudiced because a downward adjustment of Crowley’s price by 

$1,103,469 is not sufficient to trump Maersk’s status as the lowest priced technically acceptable 

offeror. Moreover, as explained above, even if the court were to make such an adjustment, 

Crowley’s total probable price would continue to exceed Maersk’s by $[redacted]. Accordingly, 

the court rejects plaintiff’s passenger assumption argument for failure to demonstrate prejudice, 

without reaching the question of whether MSC’s decision not to make such an adjustment was in 

error. 

B. Plaintiff’s Motion for Permanent Injunctive Relief

In its motion, plaintiff petitions the court to “order MSC to suspend the contract awarded 

to Maersk, conduct a rational fuel cost realism analysis and make necessary adjustments as 

specified in this protest, and award the contract to Crowley as the LPTA offeror.” Pl.’s Mot. at 

39. Given the court’s findings on the merits of this case, plaintiff’s request for injunctive relief 

must be denied. See PGBA, LLC v. United States, 389 F.3d 1219, 1229 (Fed. Cir. 2004) (noting 

that a plaintiff “must” succeed on the merits before the court may grant a permanent 
- 13 -

injunction); Assessment and Training Solutions Consulting Corp. v. United States, 92 Fed. Cl. 722, 

737 (2010) (declining to grant a permanent injunction “because plaintiff has not succeeded on the 

merits of this case”). In any event, even if plaintiff were successful on the merits, the court would 

deny injunctive relief on the ground that any irreparable harm that plaintiff might suffer from the 

denial of injunctive relief is greatly outweighed by the national security concerns raised by 

defendant. 

As a general matter, the court notes that an “injunction is a matter of equitable discretion; 

it does not follow from success on the merits as a matter of course.” Winter v. Nat’l Res. Def. 

Council, Inc., 555 U.S. 7, 24 (2008). This principle is equally applicable in the bid protest context. 

See, e.g., PGBA, LLC v. United States, 389 F.3d at 1228-1229 (holding that “section 1491(b)(4) . 

. . does not deprive a court of its equitable discretion in deciding whether injunctive relief is 

appropriate . . . and does not automatically require a court to set aside an arbitrary, capricious, or 

otherwise unlawful contract award.”). 

In deciding whether permanent injunctive relief is appropriate, the court must consider 

whether “(1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm 

if the court withholds injunctive relief, (3) the balance of hardships to the respective parties favors 

the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.” 

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). No single factor is 

dispositive, and “the absence of an adequate showing with regard to any one factor may be 

sufficient, given the weight or lack of it assigned the other factors, to justify the denial” of 

injunctive relief. FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993); see Amoco Prod. 

Co. v. Vill. of Gambell, AK, 480 U.S. 531, 546 n.12 (1987) (explaining that the “standard for a 

preliminary injunction is essentially the same as for a permanent injunction with the exception that 

the plaintiff must show a likelihood of success on the merits rather than actual success”). 

This balancing method is rooted in “equity practice with a background of several hundred 

years of history.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Characterized by “[f]lexibility 

rather than rigidity,” a balancing approach allows for “adjustment and reconciliation between the 

public interest and private needs.” Id. In balancing these competing interests, the court must 

“weigh each harm or benefit based upon both its magnitude and likelihood of occurrence.” Linc 

Gov't Servs., LLC v. United States, 96 Fed. Cl. 672, 701 (2010). This balancing approach calls to 

mind Judge Learned Hand’s familiar formula for determining negligence liability. See United 

States v. Carroll Towing Co., 159 F.2d 169, 173 (2nd Cir. 1947). 

In Carroll Towing, Judge Hand posited that a barge owner’s duty to ensure their vessel 

remains properly moored “is a function of three variables: (1) The probability that [the barge] will 

break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate 

precautions.” Id. In algebraic terms, “if the probability be called P; the injury, L; and the burden, 

B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.” 

Id. Fundamentally, this calculation provides that the more grievous a potential injury or imminent 

in occurrence the harm, the lower a corresponding showing of probability or harm may be, thus 

the term sliding scale. “Consistent with equity's character, courts do not insist that litigants 

uniformly show a particular, predetermined quantum of probable success or injury before awarding 

equitable relief.” Winter, 129 S.Ct. at 392. Rather, the court must balance all four factors, 

weighing each against the others. Procter & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 

842, 847 (Fed. Cir. 2008); Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 

(Fed. Cir. 2001).
- 14 -

Even when a plaintiff prevails on the merits, “a court must balance the potential harm to 

the plaintiff of not granting the injunction against the potential harm to both the Government and 

the awardee should the injunction be granted.” Gentex Corp. v. United States, 58 Fed. Cl. 634, 

654 (2003). The courts are “particularly cautious when contemplating relief that implicates public 

interests.” Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010); see Weinberger v. Romero–

Barcelo, 456 U.S. 305, 312 (1982) (directing courts to “pay particular regard for the public 

consequences in employing the extraordinary remedy of injunction”); Amoco Prod. Co., 480 U.S. 

531 at 545 (noting the “important role of the ‘public interest’ in the exercise of equitable 

discretion”). Moreover, the Tucker Act specifically directs the court to “give due regard to the 

interests of national defense and national security” in bid protest cases. 28 U.S.C. § 1491(b)(3). 

Admittedly, merely conclusory assertions of national security do not suffice to defeat 

motions for injunctive relief. See, e.g., Gentex Corp., 58 Fed. Cl. at 655 (explaining that the court 

must not “blindly accede” to assertions of national security) (quoting Harris Corp. v. United States, 

628 F. Supp. 813, 822 n. 13 (D.D.C. 1986)). Nonetheless, in evaluating assertions of national 

security, the court is extremely deferential and applies a sliding scale approach akin to the one 

used by Learned Hand in Carroll Towing—since national security concerns raise the possibility 

of serious harm, the court will require less evidence from the government to defeat a motion 

seeking injunctive relief. See, e.g., Linc Gov't Servs, 96 Fed. Cl. at 702-03 (noting that when 

interests raise national security concerns they “place the weight of both the public interest and 

balance of the hardships firmly on defendant’s side of the scale.”); see also Gentex Corp., 58 Fed. 

Cl. at 656 (noting that military and security interests create an “inflated” importance on the public 

interest factor when balancing the equities); Al Ghanim Combined Grp. Co. Gen. Trad. & Cont. 

W.L.L. v. United States, 56 Fed. Cl. 502, 521 (2003) (the public interest in national defense and 

national security is of “inflated importance”); Cincom Sys. Inc. v. United States, 37 Fed. Cl. 266, 

269 (1997) (“Given the importance of military preparedness to the national defense, the balance 

of harms tips in defendant's favor.”).

As explained above, government officials are already entitled to “a strong presumption of 

regularity and good faith.” Linc Gov’t Serv., 96 Fed. Cl. at 720; see also Am–Pro Protective 

Agency, Inc., 281 F.3d at 1236, 1238–39 (stating that the court is “loath to find to the contrary [of 

good faith]”) (citations omitted). But in addition to the deference that courts ordinarily accord to 

agencies in bid protests, an additional level of deference comes into play when the court considers 

an assertion of national security by a military or government official. See, e.g., Winter, 129 S. Ct. 

at 377 (underscoring the “great deference” that courts owe “to the professional judgment of 

military authorities concerning the relative importance of a particular military interest”); North 

Dakota v. United States, 495 U.S. 423, 443 (1990) (“When the Court is confronted with questions 

relating to . . . military operations, we properly defer to the judgment of those who must lead our 

Armed Forces in battle.”).

Accordingly, the court accedes to the professional judgment of military officials unless the 

government’s assertion is entirely without basis or “completely without foundation.” Gentex 

Corp., 58 Fed. Cl. at 655-56; see also Avtel Servs., Inc. v. United States, 70 Fed. Cl. 173, 230 

(2006) (deferring to the government’s declaration on the ground that “the Army’s posture is not 

unreasonable”); c.f. PGBA, LLC v. United States, 57 Fed. Cl. 655, 661 (2003) (disregarding the 

government’s declaration on the ground that it was “so implausible as not to be the product of 

rational decisionmaking”); GTA Containers, Inc. v. United States, 103 Fed. Cl. 471, 494 (2012) 

(discounting the agency’s assertion of national security on the ground that the agency’s decision 

to proceed with the contract was driven by a desire to satisfy its Small Business Act procurement 

goals rather than genuine national security concerns). 
- 15 -

Defendant presents compelling evidence of a strong public interest in national security in 

the form of a declaration from Major General W. Lee Miller, Chief of Staff of the United States 

Special Operations Command (“USSOCOM”). Dkt. No. 27 Attach. A. The USSOCOM, one of 

nine Unified Combatant Commands, has a mission to “provide trained, equipped, ready, and 

regionally aligned special operations forces . . . and through unified action, conduct sustained 

special operations to eliminate threats to U.S. interests and protect the American people.”11 

USSOCOM’s operations range “from peacetime engagement and building partner capacity, to 

direct action raids and irregular warfare” and “have contributed significantly to not only our own 

National Security, but global stability at large.” Id. The USSOCOM accomplishes its mission 

through “synchronizing the planning of global operations against terrorist networks.” Dec. of 

General W. Lee Miller at ¶1. 

Major General Miller has served with distinction in the United States Navy for thirty five 

years.12 In recognition of that service to our country, General Miller has been honored with the 

Defense Superior Service Medal, Legion of Merit with Gold Star, Bronze Star with “V,” Defense 

Meritorious Service Medal, Meritorious Service Medal with Gold Star, Navy Commendation 

Medal with Gold Star, and the Navy Achievement Medal. Id. 

In his declaration, General Miller underscores the impact a permanent injunction would 

have on national security, stating that the vessel at issue is “urgently needed and has already 

experienced an unexpected lengthy delay due to protest actions, resulting in cumulative negative 

effects on the Government’s ability to execute current mission requirements.” Dec. of General W. 

Lee Miller ¶3. General Miller states that “[a]ny delay will have a significant and negative impact 

on National Defense by depriving USSOCOM of access to a vital asset necessary to perform 

classified missions.” Id. 

General Miller also notes that, although the mission requirement is currently being fulfilled 

by a third party vessel, that vessel’s future availability is in question. Dec. of General W. Lee 

Miller ¶6. If the third party vessel is unavailable, it is possible General Miller’s forces will have 

no access to a MSV, suffering “a complete gap in asset coverage.” Id. General Miller states that 

such an outcome would “significantly impact . . . [his] force’s ability to conduct their mission.” 

Id. General Miller goes on to state that the current third party vessel “no longer supports the full 

range of special operations requirements.” Id. at ¶4. According to General Miller, the enhanced 

vessel will “provide an exponential leap in capability to address current vessel shortfalls” and the 

vessel’s improvements “are critical factors towards achieving mission success.” Id.

The court notes that a degree of uncertainty is inevitable here, as some of the contingencies 

described by General Miller depend on the actions of third parties beyond the government’s 

control. In this case, General Miller avers that the future availability of a third party vessel, which 

is currently providing essential support for USSOCOM operations, is uncertain. Nonetheless, the 

Leonard Hand formula described above provides a method of weighing the nature of the harm to 

the public. Even if the probability that the third party vessel will become unavailable in the interim 

is slight, the court finds that the gravity of the potential harm to the nation’s Armed Forces that 

would be caused by the unavailability of a MSV is great, and outweighs any competitive harm that 

 

11 Admiral William McRaven, US Navy, Posture Statements to the House, Armed Services 

Committee, Hearing March 6, 2013, Available at: 

http://www.socom.mil/Documents/2014%20USSOCOM%20POSTURE%20STATEMENT.PDF.

12 A summary of Major General Miller’s service can be found online at: 

http://www.isaf.nato.int/about-isaf/leadership/major-general-walter-lee-miller-jr.html.
- 16 -

plaintiff will experience in the absence of an injunction. In any event, aside from the possibility 

that the third party vessel may no longer be available in the future, General Miller also states that 

delays due to protest actions are already negatively affecting “the Government’s ability to execute 

current mission requirements,” and that any further delay “will have a significant and negative 

impact.” Dec. of General W. Lee Miller ¶3. 

Plaintiff contends that General Miller’s statements are “vague” or “conclusory.” Tr. at 18. 

But, any lack of detail is somewhat expected given the classified nature of USSOCOM’s 

operations. The court is unwilling to disregard General Miller’s declaration because the sensitive 

nature of USSOCOM’s operations prevent elaboration. In light of the gravity of the national 

security interest, the court requires less evidence from the government to defeat a motion seeking 

injunctive relief. 

Finally, General Miller’s evaluation of his forces’ need for the vessel is an example of 

precisely the “complex, subtle, and professional decisions” that are “essentially professional 

military judgments.” Winter, 129 S. Ct. at 377 (quoting Gilligan v. Morgan, 413 U.S. 1 (1973)). 

Plaintiff has not presented any evidence calling into question the good faith or expertise of General 

Miller. See Avtel Servs., Inc., 70 Fed. Cl. at 230. The court finds that under the heightened standard 

of deference described above, General Miller’s stated concerns are neither manifestly 

unreasonable nor “completely without foundation.” Gentex Corp., 58 Fed. Cl. at 655-56; see Avtel 

Servs., Inc., 70 Fed. Cl. at 230. In light of the deference due to professional military judgments, 

the court is unwilling to second guess General Miller’s assessment of the government’s national 

security concern. 

The court concluded above that plaintiff has not demonstrated success on the merits. Given 

the urgent need for the vessel and the gravity of the harm that would result from a complete gap 

of asset coverage, the court further concludes that the relative harm to the public interest and to 

the government from an injunction outweighs any harm to plaintiff. 

III. CONCLUSION 

For the reasons set forth above, plaintiff’s MOTIONS for permanent injunctive relief and 

judgment on the administrative record pursuant to RCFC 65 and 52(c), respectively, are DENIED. 

Defendant and defendant-intervenor’s CROSS-MOTIONS for judgment on the administrative 

record, pursuant to RCFC 52(c) are GRANTED. The Clerk is hereby directed to take the necessary 

steps to dismiss this matter. 

IT IS SO ORDERED. 

 s/Lawrence J. Block 

 Lawrence J. Block 

 Judge