# In the United States Court of Federal Claims
BID PROTEST No. 16

- 1576C Filed Under Seal: February 2 , 201 7 Reissued for Publication: February 15, 2017 *

LIMCO AIREPAIR, INC. ,

Plaintiff,

v. THE UNITED STATES,

Defendant,

v. WALL COLMONOY CORPORATION,

Defendant

- Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) P ost

- Award Bid Protest; Judg ment upon the Administrative Record, RCFC 52.1 ; Price Realism Analysis ; Ex Parte Communication

.

W. Brad English , Counsel of Record, Jon D. Levin , Of Counsel, J. Andrew Watson, III , Of Counsel, Brian J. Chapuran , Of Counsel, Maynard, Cooper, & Gale, P.C., Huntsville, AL , for plaintiff.

Sarah Choi , Trial Attorney, Scott D. Austin , Assistant Director, Robert E. Kirschman, Jr. , Director, Benjamin C. Mizer , Principal Deputy Assistant Attorney General, United States Depar tment of Justice, Washington, D C, Kurt Eberle , Of Counsel , United States Depar tment of the Air Force , Tinker Air Force Base, OK , for defendant.

John R. Tolle , Attorney of Record, W. Todd Whey , Of Counsel, Baker, Cronogue, Tolle & Werfel, LLP, McLean, VA, for defendant

- intervenor.

* This Memorandum Opinion and Order was originally filed under seal on February 2 , 201 7 (docket entry no. 41 ) , pursuant to the Protective Order entered in this action on December 8, 2016 (docket entry no. 13)

. The parties were give n an opportunity to advise the Court of their views with respect to what information, if any, should be redacted under the terms of the Protective Order . The parties filed a joint status report
on February 15, 2017, notifying the Court that they do not be lieve any information should be redacted (docket entry no. 43). And so , the Court is reissuing its Memorandum Opinion and Order dated February 2, 2017 without redaction s

.2 MEMORANDUM OPINION AND ORDER

GRIGGSBY , Judge

I. INTRODUCTION
Plaintiff, Limco Airepair, Inc. (“Limco ”), brought this post

- award bid protest matter challenging the United States Air Force’s (“Air Force ”) decision to award a contract for the remanufacture of F

- 16 heat exchangers to Wall Colmon o y Corporation (“WCC”). Limco has moved for judgment upon the administrative record, pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”). The government and WCC have also moved fo r judgment upon the administrative record , pursuant to RCFC 52.1. For the reasons set forth below, the Court ( 1 ) DENIES Limco’s motion for judgment upon the administrative record; (2) GRANTS the government’s motion for judgment upon the administrative rec ord; and (3) GRANTS WCC’s motion for judgment upon the administrative record

. II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background In this pos t

- award bid protest matter, Limco challenges the Air Force’s decision to award a contract for the remanufacture of F

- 16 heat exchangers (“Contract”) to WCC. See generally Am. Compl

. Limco asserts that the Air Force (1) failed to perform a price realism analysis of WCC’s proposed price , as was requi red by the S olicitation, and (2) engaged in ex parte communication with WCC, resulting in a n unlevel playing field that prejudice d Limco. See id .; Tr. at 7: 4

- 6 , 12:17

- 23. Limco seeks declaratory and injunctive relief. Pl. Mot. at 19

- 20. Namely, Limco requests that the Court declare the Air Force’s award to WCC arbitrary, cap ricious, an abuse of discretion and contrary to law. Id

. a t 20. In addition, Limco requests the Court : (1) enjoin the Air Force from continuing performance under the C ontract; (2) require the Air Force to amend

1 The facts recited in this Memorandum Opinion and Order are taken from plaintiff’s amended complaint (“ Am. Compl. ”); the administrative record (“AR”); plaintiff’s motion for judgment upon the administrative record (“Pl. Mot.”); defendant’s cross

- motion for judgment upon the administrative record (“Def. Mot.”) ; WCC’s cross

- motion for judg ment upon the administrative record (“Int. Mot.”) ; and the transcript from oral argument (“Tr.”) . Except where otherwise noted, the facts recited here in are undisputed.3

the S olicitation and to provide the same information regarding performance testing to all offerors ; and (3) require the Air Force to perform a price realism analysis of WCC’s proposed price and make a new award decision. Id

.

1. The Small Business Solicitation

The salient facts in this bid protest matter are undisputed. On February 29, 2016, the Air Force issued a request for proposals for the remanufacture of F

- 16 heat exchangers as a small business set

- aside ( the “Small Busin ess Solicitation”). AR at 497

- 545; Am. Compl. at ¶ 8. WCC submitted an offer under the Small Business Solicitation, which included a proposed price of $17,426.84 per unit. AR at 587

- 636; Am. Compl. at ¶ 12. After discussions with the Air Force, WCC red uced its proposed price to $15,950.54. AR at 644

. During a second round of discussions for the Small Business Solicitation , WCC indicated that perf ormance testing accounted for $ 1 , 500 of its proposed price per unit. Id

. at 653

- 54

. On June 20, 2016, the Air Force canceled the Small Business Solicitation because it deemed all of the offers to be too high. Id

. at 657

- 58.

2. The Full And Open Solicitation On June 21, 2016, the Air Force issued a full and open solicitation for the remanufacture of F

- 16 heat e xchangers ( the “Solicitation”). AR at 17 0

- 220

. The Solicitation contemplates award to the Lowest Price Technically A cceptable offeror. Id

. at 214

. With respect to the Air Force’s price analysis, t he Solicitation provides that :
2.3. Factor 2

– Price Price proposals will be evaluated for (1) completeness, (2) reasonableness, (3) price realism, (4) unbalanced pricing, and (5) Total Evaluated Price. . . . 2.3.2. Price Reasonableness The proposed pri c es will be evaluated for reasonableness . . . . Normall y, price reasonableness is established through adequate price competition, but may also be determined through price analysis techniques as described in [Federal Acquisition Regulation] 15.404. 2.3.3. Price Realism Proposed prices will be eval uated for pric e realism . . . . To evaluate price realism, the Government may use one or more of the the [sic] price analysis techniques described i n [Federal Acquisition Regulation] 15.404. The Government may also use other evaluation techniques, as needed.4

Id

. at 21 9. In this regard, Federal Acquisition Regulation (“FAR”) 15.404 provides that : (b) Price analysis for commercial and non

- commercial items. (2) The Government may use various price analysis techniques and procedures to ensure a fair and reasonable price. Examples of such techniques include, but are not limited to, the following: (i) Comparison of proposed prices received in response to the solicitation. Normally, adequate price competition establishes a fair and reasonable price. 48 C.F.R. § 15.404

- 1.
On June 21, 2016 , the Air Force’s contracting officer (“Contracting Officer”) notified WCC that the Solicitation had been posted. AR at 222

- 23

. In response, WCC asked the Contracting Officer whether WCC’s interpretation that performance testing was not required under the Solicitation was correct. Id . at 221

- 22. T h e Contracting Officer responded that:

T he contractor is correct, with the one exception that performance testing may be required during an IPE. Performance testin g will not be required for 10 0%.
Id

. at 221. In July 2016, Limco and WCC submitted the only offers in response to the Solicitation. Id

. at 224

- 341. Limco ’s offer included a proposed price of $13,500.00 per unit, and WCC ’s offer included a proposed price of $12,974.21 per unit. Id

. at 224 , 290 ; Am. Compl. at ¶¶ 27

- 28.

3. The Air Force’s Evaluation And Award Decision As part of the source selection process for the Solicitation , the Air Force documented its price analyses of offerors’ proposed prices in a Proposal Analysis Report ( “ PAR ” ) and a Source Selecti on Decision Document (“SSDD”) . AR at 34 4

- 51. In the SSDD , the Contracting Officer outlined how the Air Force evaluated WCC’s and Limco’s offers. 2 Id

. at 34 4

- 45. Specifically, the Contracting Officer assess ed both proposals under the technical and price evaluation factors. Id

. at 344

- 46. The SSDD provides that both offerors were technically acceptable. Id

. at 346. With respect to price, the Contracting Officer considered Limco’s proposed price and WCC’s proposed price and deem ed both offerors ’ proposed price s to be “fair and reasonable and

2 In this matter, the Contracting Officer was also the Source Selection Authority. AR at 346.5

balanced based upon competition.” Id

. at 345

- 46. And so, the Contracting Officer determined that WCC had the lowest priced technically acceptable offer. Id . at 346.

In t he PAR , the Contr acting Officer also evaluated offers under technical and price factors. See id . at 347

- 51. The Contracting Officer deemed both offers technically acceptable. Id . at 34 9

- 51

. With regard to the price factor, the Contracting Officer stated that the Air F orce ranked WCC’s proposed price and Limco’s proposed price in ascending order based upon the Total Evaluated Price. Id . a t 348. The P AR further provides that:
[ The ] final proposed price s w ere evaluated against the criteria of reasonableness, realism, and balance. A price analysis was conducted by comparing proposed prices received in response to the s olicitation. Per FAR 15.404

- 1(b)(2)(i), adequate price competition establishes a fair and reasonable pr ice.
Id

. at 350

- 51 ; 48 C.F.R. § 15.404

. The Air Force determined WCC had a “fair and reasonable” proposed price and that its offer was technically acceptable. AR at 351. And so, the agency determined that a contract to WCC “ would be awardable. ” Id

. The Air Force also in cluded the SSDD and the PAR in the agency’s request for clearance to award the contract to WCC

. Id . at 352

- 65. T he Air Force awarded the C ontract to WCC on October 28, 2016

. Id

. at 366

- 416.

B. Procedural Background
Limco filed the comp laint in this matter on November 28, 2016

. See generally Compl. On November 30, 2016, WCC filed a motion to intervene. See generally Mot. to Intervene. On December 7, 2016, plaintiff filed a motion for a protective order, a motion to seal the complaint, and a motion for a preliminary injunction. See Mot. for Protective Order; Mot. to Seal; Pl. Mot. f or PI.
On December 7, 2016, the parties participated in an initial telephonic status conference , during which plaintiff’s counsel stated that L imco would hold its motion for a preliminary injunction in abeyance and address the motion during briefing on the merits of the case. See Scheduling Order, Dec. 7, 2016. On December 7, 2016, the Court issued a Scheduling Order granting WCC’s motion to in tervene. See id . On December 8, 2016, the Court issued a Protective Order. See generally Protective Order.6

T he government filed the administrative record in this matter on December 9, 2016

. See generally AR. On December 13, 2016, plaintiff filed a m otion for leave to file a first amended complaint, which the Court granted on the same day. See generally Pl. Mot. for Leave to File; Order, Dec. 13, 2016. On December 13, 2016, plaintiff filed its first amended complaint. See Am. Compl.

On December 1 6, 2016, plaintiff filed a motion for judgment upon the administrative record. See generally Pl. Mot. On December 27, 2016, the government and WCC filed cross

motions for judgment upon the administrative record and response s to plaintiff’s motion for judgment upon the administrative record. See generally Def. Mot

. ; Int. Mot. On January 3, 2017 , Limco filed a response to the cross

- motion s for judgment up on the administrative record filed by the government and WCC, and a repl y in support of its motion for judgment upon the administrative record. See generally Pl. Reply . On January 9, 2017 , the government and WCC filed their replies in support of their cross

- motion s for judgment upon the administrative record

. See generally Def. Reply ; Int. Reply

. On January 23, 2017, the Court held oral argument on the cross

- motions for judgment upon the administrative record. See generally Tr., Jan. 23, 2017. During oral argument, the Court issued an oral decision denying Limco’s motio n for judgment upon the administrative record and granting the government’s and WCC’s motions for judgment upon the administrative record. The rationale for the Court’s decision is set forth below.

III. LEGAL STANDARDS
A. Bid Protest Jurisdiction The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid protests brought by “ an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. ” 28 U.S.C. § 1491(b)(1). T his Court reviews agency actions in bid protest matters under the “ arbitrary and capricious ” standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act )

. And so, u nder the Administrative Procedure Act standard, an award may be set aside if “ ‘ (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or7

procedure. ’ ” Banknote Corp. of Am. , Inc. v. United States , 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States , 238 F.3d 1324, 1332 (Fed. Cir. 2001)). In this regard, the Federal Circuit has explained that :
When a ch allenge is brought on the first ground, the test is whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and t he 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 reg ulations. Id . at 1351 (internal citations omitted)

. In reviewing an agency’s procurement decision , the Court also recognize s that the agency’s decision is entitled to a “presumption of regularity. ” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S . 402, 415 (1971), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99 (1977) (citations omitted)

. In addition, the Court should not substitute its judgment for that of the agency. Cincom Sys. , Inc. v. United States , 37 Fed. Cl. 663, 672 (1997 )

. And so, “ ‘ [t] he protestor must show , by a preponderance of the evidence , that the agency’s actions were either without a reasonable basis or in violation of applicable procurement law. ’ ” Gentex Corp. v. United States , 58 Fed. Cl. 634, 648 (2003) (quot ing I nfo. Tech. & Applications Corp. v. United States , 51 Fed. Cl. 340, 346 (2001), aff’d , 316 F.3d 1312 (Fed. Cir. 2003 ) )

. This standard “ is highly deferential .” Advanced Data Concepts, Inc. v. United States , 216 F.3d 1054, 1058 ( Fed. Cir. 2000 ). A s long as there is “ a reasonable basis for the agency’s action, the c ourt should stay its hand even though it might, as an original proposition, have reached a different conclusion

. . . .” Honeywell, Inc. v. United States , 870 F.2d 644, 648 ( Fed. Cir. 19 89) (citation omitted)

. But, if “ the agency entirely fail[s] to consider an important aspect of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence before the agency, ” then the resulting action lacks a rational basi s and, therefore, is defined as

“ arbitrary and capricious. ” Ala. Aircraft Indus., Inc.

- Birmingham v. United States , 586 F.3d 1372, 1375 ( Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass ’ n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983)) (internal quotation marks omitted).8

B. Judgment Upon The Administrative Record Generally, Rule 52.1 limits this Court’s review of an agency’s procurement decision to the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States , 564 F.3d 1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative record already in existence.”). And so, unlike a summary judgment motion brought pursuant to Rule 56, “ the existence of genuine issues of material fact does not preclude judgment upon the administrative record ” under Rule 52.1. Tech. Sys., Inc. v. United States , 98 Fed. Cl. 228, 242 (2011) (citations omitted) ; RCFC 56. Rather, the Court’s inquiry is whether, “given all the disputed and undisputed facts, a pa rty has met its burden of proof based on the evidence in the record.” A&D Fire Prot., Inc. v. United States , 72 Fed. Cl. 126, 131 (2006).
C. Injunctive Relief Lastly, under its bid protest jurisdiction, the Court “may award any relief [it] considers
proper, including declarat ory and injunctive relief

. . . . ” 28 U.S.C. § 1491(b)(2); see also Centech Grp., Inc. v. United States , 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether to issue a permanent injunction, the Court “ considers: (1) whether

. . . the plaintiff has succeeded upon the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. ” PGBA, LLC v. United States , 389 F.3d 1219, 1228

- 29 (Fed. Cir. 2004) (citing Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n. 12 (1987) (“The standard for a prelimina ry 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.” ) ); see also Centech Grp., Inc. , 554 F.3d at 1037. In this regard, the Un ited States Court of Appeals for the Federal Circuit has held that: No one factor, taken individually, is necessarily dispositive. If a preliminary injunction is granted by the trial court, the weakness of the showing regarding one factor may be overborne by the strength of the others. If the injunction is denied, 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. FMC Corp. v. United States , 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted)

.9

A plaintiff who cannot demonstrate actual success up on the merits cannot prevail up on a motion for permanent injunctive relief

. Cf

. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd ., 357 F.3d 1319, 1 325 (Fed. Cir. 2004 ) (finding that a plaintiff who cannot demonstrate likely

success up on the merits cannot prevail up on its motion fo r preliminary injunctive relief) . This Court has also found s uccess up on the merits to be “the most important factor for a court to consider when deciding whether to issue injunctive relief.” Dellew Corp. v. United States , 108 Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States , 492 F.3d 1308, 1 312 (Fed. Cir. 2007) ). However, w hile success up on the merits is necessary, it is not sufficient alone for a plaintiff to establish that it is entitled to injunctive relief. See Contracting, Consulting, Eng’g LLC v. United States , 104 Fed. Cl. 334, 353 (2012) ( (“Although plaintiff’s entitlement to inju nctive relief depends on its succeeding on the merits, it is not determinative because the three equitable factors must be considered, as well.”) (citation s omitted) )

. IV. LEGAL ANALYSIS In its motion for judgment upon the administrative record, Limco asserts that the Air Force failed to perform a price realism analysis of WCC’s proposed price, as was required by the S olicitation, and that the Air Force engaged in ex parte communication with WCC, resulting in an unlevel playing field that prejudice d Limco. See generally Am. Compl. ; Pl. Mot. The government and WCC counter in their cross

- motion s for judgment upon the administrative record that the Air Force performed an appropriate price realism analysis of WCC’s proposal and that the Air Force’s ex parte commun ication with WCC did not prejudice Limco. See generally Def. Mot.; Int. Mot.
For the reasons discussed below, the administrative record in this matter shows that the Air Force conducted an appropriate price realism analysis of WCC’s proposal and that the Air Force’s ex parte communication did not prejudice Limco. And so, the Court denies Limco’s motion for judgment upon the administrative record and grants the government’s and WCC’s

cross

- motion s for judgment upon the administrative record.
A. The Air Force Conduct ed A Price Realism Analysi s In Accordance With The Solicitation

T he administrative record shows that the Air Force conducted a price realism analysis of WCC’s proposed price and that this analysis was in accordance with the terms of the S olicitation10

and the FAR. See AR at 219, 344

- 51; 48 C.F.R. § 15.404

- 1. In determining whether the Air Force conducted a proper price realism analysis, the Court affords deference to the Air Force’s price realism analysis and recognizes that the exten t of an agency’s price realism analysis can vary, and generally is within the discretion of the agency. Int’l Outsourcing Servs. v. United States , 69 Fed. Cl. 40, 48 (2005) ( citing Labat

- Anderson, Inc. v. United States , 50 Fed. Cl. 99, 106 (2001)) ; FCN, I

nc
. v. United States , 115 Fed. Cl. 335, 375 (2014) ((“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 p rice, are generally within the sound exercise of the agency’s discretion.”) (citations omitted))

. Applying this legal framework to the matter, the record evidence shows that the Air Force conducted a proper price realism analysis here

. The Solicitation contemplates a price realism analysis that utilizes one of the techniques described in the FAR. Specifically, t he S olicitation states that:

P roposed prices will be evaluated for price realism. To be realistic, the proposed price must dem onstrate an adequate understanding of the requirement, and must ensure the price does n ot pose a risk to performance.

AR at 219. The S olicitation also provides that, to evaluate price realism, the Air Force could use one or more of the price analysis tech niques described in FAR 15.404 , or “ other evaluation techniques , as needed

. ” Id

. In this regard, FAR 15.404

- 1(b)(2) states, in relevant part, that :
T he Government may use various price analysis techniques and procedures to ensure a fair and reasonable pr ice. Examples of such techniques include, but are not limited to . . . Comparison of proposed prices received i n response to the
s olicitation. Normally, adequate price competition establishes a fair and reasonable price (see 15.403

- 1(c)(1)(i)).
48 C.F.R. § 15.404

- 1 (b)(2)

. And so, the plain language of the Solicitation permits the A ir F orce to use any of the techniques set forth in FAR 15.404 to perform the price realism analysis.

The evidentiary record also demonstrate s that the Air Force conducted a pr ice realism analysis in accordance with FAR 15.404 and the Solicitation. T he PAR describes the steps that the Air Force undertook to perform the price realism analysis. Specifically, the PAR provides that the Air Force ranked WCC’s and Limco’s proposed p rices in ascending order b ased upon the Total Evaluated Price. AR at 348. The PAR further provides that:11

[F] inal proposed prices were evaluated against the criteria of reasonableness, realism, and balance. A price analysis was conducted by comparing pro posed prices received in response to the s olicitation.
Id

. at 350. In addition, t he PAR provides that “[p]er FAR 15.404

- 1(b)(2)(i), adequate price competition establishes a fair and reasonable price.” Id

. at 350

- 51.

The SSDD also documents the Air Force’s price realism analysis of WCC’s proposed price. The SSDD provides that the Contracting Officer considered Limco’s and WCC’s proposed prices and deemed both prices “fair and reasonable and balanced based upon competition.” Id

. at 344

- 46. And so, the record evidence demonstrates that the Air Force performed a proper price realism analysis by both comparing the prices proposed by the offerors in this matter and establishing that there was adequate price competition.

T he record evidence also demonstr ates that the Air Force documented its price realism analysis. As t he United States Court of Appeals for the Federal Circuit has held , “[c]ontracting officers are not obligat ed b y the [ Administrative Procedure Act ] to provide written explanations for thei r actions.” Impresa , 238 F.3d at 1337 ; see also Tr. at 11:9

- 15

. Nonetheless, the Contracting Officer document ed the Air Force ’s price realism analysis in this case. See AR at 344

- 53. As discussed above, the administrative record shows that the price realism analysis was documented in the agency’s PAR and SSDD and this analysis is also incorporated in to the Air Force’s request for clearance

. Id

. And so, the evidentiary record makes clear that the Air Force documented its price realism anal ysis for the Solicitation.

I t is also important to note that Limco’s argument that the Court should set aside the Air Force’s award decision , because the government did not question the reduction in WCC’s proposed price during the Solicitation , is unavaili ng. At bottom, Limco is asking the Court to require the Air Force to perform a price realism analysis that Limco believes is appropriate under the circumstances of this case. But, it is not the role of the Court to substitute its own judgment for the Air Force’s regarding the technique that should be employed to perform the price realism analysis. Cincom Sys., Inc. , 37 Fed. Cl. at 672 (holding that the Court should not substitute its judgment for the agency’s judgment). Rather, the Court affords deferen ce to the Air Force’s price realism analysis and looks only to see whether the price realism analysis complies with the methodology called for in the Solicitation. Int’l Outsourcing Servs. , 69 Fed. Cl. at 4 7

- 4 8

. The12

record evidence makes clear that it do es in this case. And so, the Court will not disturb the Air Force’s decision regarding the price realism analysis.
In sum, t he record evidence demonstrates that the Air Force conducted a price realism analysis in accordance with the Solicitation and the FAR , and that such analysis was properly documented by the Air Force

. 3 And so, the Court must deny this claim.

B. Limco Was Not Prejudiced By The Air Force’s Ex Parte Communication With WCC
Limco’s claim that the Air Force’s ex parte communication with WCC result ed in unequal treatment and an unlevel playing field for Limco is also belied by the administrative record. In this regard, t here is no dispute the Air Force engaged in an e x p arte c ommunication

w ith WCC regarding performance testing

. See AR at 221

- 22 ; Pl. Mot. at 14

- 17; Def. Mot. at 11, 21

- 22; Int. Mot. at 4

- 5

. But , even if this communication was improper, Limco has not demonstrated how the communication significantly prejudiced Limco

. See generally Pl. Mot.; Pl. Reply.

T o demonstrate such prejudice, Limco must show t hat it would have had a “substantia l chance” of winning the award but for the ex parte communication

. Bannum, Inc. v. United States , 404 F.3d 1346, 1353 (Fed. Cir. 2005) (citations omitted)

. In its filings, Limco states t hat it “might have adjusted its price” if the Air Force told Limco that performance testing was not required. Pl. Mot. at 16

- 17 ; see also Tr. at 13:9

- 14, 19

- 20 . But, Limco does not state that its price was based upon a misunderstanding about the requirem ent for performance testing. See generally Pl. Mot.; Pl. Reply. Given this, Limco has not shown how the Air Force’s communication with WCC on this topic impacted Limco’s proposed price. See Pl. Mot.; Pl. Reply. And so, Limco has simply not demonstrated that it would have had a “substantia l chance” of winning the award but for th is ex parte communication.
C. Injunctive Relief Is Inappropriate
Given the deficiencies in Limco’s bid protest claim s discussed above, Limco also fails to demonstrate th at it is entitled to the injunctive relief that it seeks in this matter. As discussed

3 Because the Court finds the Air Force conducted a price realism analysis, the Court need not reach the issue of prejudice with respect to this issue

.13

above, Limco’s challenge to the price realism analysis for the Solicitation is not supported by the record evidence . L imco has also failed to demonstrate how the Air Fo rce’s ex parte communication with WCC has prejudiced Limco. And so, w here, as is the case here , the evidence demonstrates that a protestor will not succeed up on the merits of its claim s , Limco cannot prevail upon its claim for injunctive relief. Cf

. Alta na Pharma AG v. Teva Pharm. USA, Inc. , 566 F.3d 999, 1005 (Fed. Cir. 2009) (citing Amazon.com, Inc. v. Barnesandnoble.com, Inc. , 239 F.3d 1343, 1350 (Fed. Cir. 2001)) ( “ Although the factors are not applied mechanically, a movant must establish the existence of both of the first two factors to be entitled to a preliminary injunction ” or a temporary restraining order) ; Nat’l Steel Car, Ltd. , 357 F.3d at 1325 (finding that a plaintiff who cannot demonstrate likely success up on the merits cannot prevail up on its motion fo r preliminary injunctive relief)

. V. CO NCLUSION
In sum, the record evidence in this post

- award bid protest matter shows that the Air Force conducted a reasonable price realism analysis that was in accordance with the terms o f the S olicitation and the FAR. AR at 219, 344

- 51 ; 48 C.F.R. § 15.404

. The record evidence also shows that Limco has not demonstrate d that it has been prejudice d because of the acknowledged ex parte communication between the Air Force and WCC regarding t he absence of a requirement to conduct performance testing in the S olicitation. And so, for the foregoing reasons, the Court:

1. DENIES plaintiff’s motion for judgment upon the administrative record; 2. GRANTS the government’s motion for judgment upon the administrative record; and 3. GRANTS WCC’s motions for judgment upon the administrative record

. The Clerk shall enter judgment accordingly. Each party shall bear their own costs. Some of the information contained in this Memorandum Opinion and Order may be considered protected information subject to the P rotective O rder entered in this matter on December 8, 2016 . This Memorandum Opinion and Order shall therefore be filed under sea l. The parties shall review the Memorandum Opinion and Order to determine whether, in their14

view, any information should be redacted in ac cordance with the terms of the P rotective O rder prior to publication. The Court hereby ORDERS the parties to FILE , by February 16 , 2017 , a joint status report identifying the information, if any, that they contend should be redacted, together with an explanation of the basis for each proposed redaction.
IT IS SO ORDERED. s/ Lydia Kay Griggsby LYDIA KAY GRIGGSBY Judge