This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

 

DYNCORP INTERNATIONAL, LLC,

Plaintiff-Appellant

v.

UNITED STATES, AAR AIRLIFT GROUP, INC.,

Defendants-Appellees

______________________ 

2018-1209

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:16-cv-01704-RHH, Senior Judge Robert 

H. Hodges, Jr.

______________________ 

SEALED OPINION ISSUED: November 28, 2018

PUBLIC OPINION ISSUED: December 10, 2018*

______________________ 

AARON MARTIN PANNER, Kellogg, Huber, Hansen, 

Todd, Evans & Figel, PLLC, Washington, DC, argued for 

plaintiff-appellant. Also represented by DAVID MICHAEL 

NADLER, Blank Rome LLP, Washington, DC. 

 

* This opinion was originally filed under seal and 

has been unsealed in full.
2 DYNCORP INTERNATIONAL, LLC v. UNITED STATES

 DOUGLAS GLENN EDELSCHICK, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for defendant-appellee 

United States. Also represented by ROBERT EDWARD 

KIRSCHMAN, JR., DOUGLAS K. MICKLE, JOSEPH H. HUNT; 

KATHLEEN D. MARTIN, Office of the Legal Adviser, United 

States Department of State, Washington, DC. 

 JONATHAN F. COHN, Sidley Austin LLP, Washington, 

DC, argued for defendant-appellee AAR Airlift Group, Inc. 

Also represented by JOEL SINGER, ROBERT JOSEPH 

CONLAN, JR., KATHERINE L. OLSON. 

 ______________________ 

Before CHEN, MAYER, and BRYSON, Circuit Judges.

PER CURIAM. 

DynCorp International, LLC (“DynCorp”) appeals a 

judgment of the United States Court of Federal Claims 

denying its post-award bid protest. See DynCorp Int’l, 

LLC v. United States, 134 Fed. Cl. 537 (2017) (“Court of 

Federal Claims Decision”). We affirm.

BACKGROUND

DynCorp was the incumbent contractor on a previous 

contract to provide worldwide aviation support services 

(“WASS”) to the United States Department of State, 

Bureau for International Narcotics and Law Enforcement 

Affairs, Office of Aviation (“State”). WASS activities are 

part of State’s Air Wing, a program which “provides 

aviation support for the eradication and interdiction of 

illicit drugs.” J.A. 100079. The program also provides 

aviation support for reconnaissance, medical evacuation, 

and the movement and security of personnel and equipment. Id.

In July 2014, State issued a solicitation which called 

for the award, on a best value basis, of an indefinite 
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 3

delivery and indefinite quantity contract to provide flight 

operations services, aviation logistics services, and aviation maintenance and engineering services for the WASS 

program. J.A. 100079–87. In January 2015, the agency 

evaluated the initial proposals submitted by DynCorp and 

AAR Airlift Group, Inc. (“AAR”) and made a competitive 

range determination that excluded DynCorp. See J.A. 

125500. Following two protests filed by DynCorp, however, State took corrective action and revised the competitive range to include DynCorp. J.A. 125500–01.

After two rounds of discussions, State evaluated the 

offerors’ final proposals. It empaneled a four-member 

technical evaluation team, which rated DynCorp’s proposal as “unacceptable” for Factor One (Management and 

Administration), primarily because DynCorp received a 

deficiency associated with its proposal that the Information Technology Associate Contractor (“IT Associate 

Contractor”), a separate contractor operating under a 

separate contract, would maintain the new Management 

Information System (“MIS”). See J.A. 106075, 106079–81, 

106667, 110358. On September 1, 2016, the Source 

Selection Authority (“SSA”) awarded the WASS contract 

to AAR. J.A. 110463; see also J.A. 110454–63. The SSA 

determined that “AAR submitted a [s]uperior technical 

proposal that met or exceeded all of the technical requirements” of the solicitation. J.A. 110460.

Following the contract award, DynCorp filed a protest 

with the United States Government Accountability Office 

(“GAO”), arguing that the WASS contract solicitation “did 

not impose post-transition [MIS] operational and maintenance responsibilities on the [WASS] Contractor.” J.A. 

124062. Instead, according to DynCorp, while the solicitation required the WASS Contractor to test and implement the MIS, it assigned the IT Associate Contractor 

“primary responsibility” for maintaining and operating 

the MIS following the transition from the legacy Air Wing 
4 DYNCORP INTERNATIONAL, LLC v. UNITED STATES

Information System (“AWIS”). J.A. 124062; see also J.A. 

125499.

The GAO denied DynCorp’s protest, concluding that 

State’s evaluation of the proposals submitted by DynCorp 

and AAR was “reasonable, consistent with the solicitation, 

and did not reflect unequal treatment.” J.A. 125658. 

DynCorp then appealed to the Court of Federal Claims, 

asserting that State’s evaluation of its technical proposal 

was arbitrary and capricious and that State erred in 

failing to disqualify AAR for soliciting and using DynCorp 

proprietary information. The Court of Federal Claims 

rejected these arguments, however, concluding that 

“[g]iven the judicial standards to be applied in reviewing 

decisions of a contracting officer, the agency award decision was entirely reasonable and rational.” Court of 

Federal Claims Decision, 134 Fed. Cl. at 541. In the 

court’s view, the contracting officer had a reasonable basis 

for concluding that “DynCorp’s proposal was deficient 

compared to that of AAR,” id. at 544, because “DynCorp’s 

revised proposal did not address Federal [Information 

Technology] requirements and did not address important 

data migration and capture issues,” id. at 543. The court 

concluded, moreover, that State’s “decision not to disqualify AAR ha[d] a rational basis in the entire record.” Id.

DynCorp then appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

A. Standard of Review

We review the Court of Federal Claims’ grant of 

judgment on the administrative record without deference. 

Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 

1326 (Fed. Cir. 2011); see also Colonial Press Int’l, Inc. v. 

United States, 788 F.3d 1350, 1355 (Fed. Cir. 2015). “In a 

bid protest case, the inquiry is whether the agency’s 

action was arbitrary, capricious, an abuse of discretion, or 
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 5

otherwise not in accordance with law and, if so, whether 

the error is prejudicial.” Glenn Def. Marine (ASIA), PTE 

Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013); 

see 28 U.S.C. § 1491(b)(4).

B. DynCorp’s Arguments

DynCorp advances three principal arguments on appeal. First, it contends that State acted arbitrarily and 

capriciously in refusing to disqualify AAR from the procurement for obtaining and using proprietary DynCorp 

information. Second, DynCorp argues that State misled it 

into believing that it could permissibly transfer responsibility for MIS operations and maintenance to the IT 

Associate Contractor. Finally, it asserts that State erred 

when it declined to disqualify AAR for failing to include a 

required staffing plan in its proposal. We address each of 

these arguments in turn.

C. The Responsibility Determination

Contracting officers are vested with authority to exercise discretion on a wide range of procurement issues, 

including determinations regarding whether a particular 

offeror is a responsible offeror.1 Impresa Construzioni 

Geom. Domenico Garufi v. United States, 238 F.3d 1324, 

1334–35 (Fed. Cir. 2001); see also PAI Corp. v. United 

States, 614 F.3d 1347, 1352 (Fed. Cir. 2010) (“To demonstrate that [a contracting officer’s] determination is arbitrary or capricious, a protester must identify ‘hard facts’; 

a mere inference or suspicion of an actual or apparent 

conflict is not enough.”). Here, after undertaking an 

exceptionally thorough review of the record, the contracting officer reasonably decided not to disqualify AAR based 

 

1 The Federal Acquisition Regulation dictates that 

“[n]o purchase or award shall be made unless the contracting officer makes an affirmative determination of 

responsibility.” 48 C.F.R. § 9.103(b).
6 DYNCORP INTERNATIONAL, LLC v. UNITED STATES

upon its receipt of allegedly proprietary DynCorp information. See J.A. 126080–103. The contracting officer 

conducted a document-by-document review of all thirty 

documents in AAR’s possession that contained DynCorp 

information. J.A. 126081–86. He concluded that twenty 

of these documents were publically available. J.A. 

126081–82. As to the remaining ten documents, the 

contracting officer determined that they did not contain 

DynCorp bid or proposal information, J.A. 126083–91, 

and that AAR did not use any information in those documents “to gain a competitive advantage” in the procurement, J.A. 126092.

DynCorp points to the fact that Anita Hamilton, an 

AAR employee who had formerly worked at DynCorp, 

provided AAR with certain DynCorp salary information 

when AAR was developing its initial bid on the WASS 

contract. See J.A. 126105–06, 126527, 126789–90, 

127130–58. Sworn evidence in the record showed, however, that: (1) Hamilton did not consider the DynCorp salary 

information to be confidential, J.A. 126117; (2) she made 

only “limited use” of the salary information, J.A. 126117; 

see also J.A. 126091; and (3) the salary information was 

“from 2010 or earlier,” J.A. 126116; see also J.A. 126090–

91. Further sworn evidence showed that AAR did not ask 

Hamilton to provide the salary information and that she 

provided it “on her own initiative during her [temporary] 

assignment with AAR.” J.A. 126117. The contracting 

officer reasonably concluded, moreover, that AAR did not 

use the limited salary information provided by Hamilton 

when it prepared its final proposal, see J.A. 126083–84, 

126105–06, 126117, 127284, and that AAR obtained no 

“[c]ompetitive [a]dvantage” as a result of its receipt. J.A. 

126084; see also J.A. 126091 (noting that “AAR took steps 

to sanitize [the Hamilton salary] information from future 

proposal submissions”); J.A. 126101 (concluding that 

“there [was] simply no evidence that AAR received any 

type of competitive advantage from any information it 
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 7

received concerning [DynCorp’s] performance under its 

incumbent contract”). Under such circumstances, the 

contracting officer had a rational basis for his decision not 

to disqualify AAR based upon its receipt of the stale 

DynCorp salary information referenced by Hamilton.2 

See J.A. 126083–99.

Likewise unpersuasive is DynCorp’s argument that 

State was required to disqualify AAR because it received 

a spreadsheet containing DynCorp profit margin analysis 

(“PMA”) information from a DynCorp subcontractor. See 

J.A. 126112–14. With respect to the PMA information, 

AAR promptly informed the contracting officer that a 

DynCorp subcontractor had sent one of AAR’s independent consultants an unsolicited email with an attachment 

containing DynCorp PMA information. See J.A. 110464. 

Given that there was no credible evidence that AAR 

solicited the PMA spreadsheet, see J.A. 110504–07, 

126112–14, used any of the information it contained, see 

J.A. 110504–07, 126112–14, or gained any competitive 

advantage as a result of its receipt, J.A. 126086–91, the 

contracting officer acted well within the scope of his 

 

2 Although Hamilton attempted to obtain certain 

incumbent contract information from a DynCorp subcontractor in May 2014, sworn record evidence showed that 

the subcontractor never provided that information. J.A. 

126119–20. As the contracting officer reasonably determined, AAR gained “[n]o competitive advantage” and 

DynCorp suffered “[n]o harm” as a result of Hamilton’s 

unfulfilled inquiry to the DynCorp subcontractor. J.A. 

126084. Significantly, moreover, the contracting officer 

determined that any information obtained from the 

DynCorp subcontractor would have been immaterial 

given that “missions [using the DynCorp subcontractor] 

were eliminated from the [s]olicitation with the issuance 

of [amendment 5].” J.A. 126091.
8 DYNCORP INTERNATIONAL, LLC v. UNITED STATES

discretion in declining to disqualify AAR based upon the 

PMA information. See, e.g., Advanced Data Concepts, Inc. 

v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) 

(explaining that “[t]he arbitrary and capricious standard 

. . . is highly deferential” and “requires a reviewing court 

to sustain an agency action evincing rational reasoning 

and consideration of relevant factors”); John C. Grimberg 

Co. v. United States, 185 F.3d 1297, 1303 (Fed. Cir. 1999) 

(“Because responsibility decisions are largely a matter of 

judgment, contracting officers are generally given wide 

discretion to make this decision.”).

On appeal, DynCorp argues that the contracting officer was unduly concerned about whether there had been 

a violation of the Procurement Integrity Act (“PIA”), 41 

U.S.C. § 2102, and failed to assess adequately whether 

AAR should be disqualified for having created an “appearance of impropriety.” See NKF Eng’g, Inc. v. United 

States, 805 F.2d 372, 377 (Fed. Cir. 1986) (concluding that 

a contracting officer had discretion to disqualify an offeror 

when he “perceive[d] a strong appearance of impropriety 

in a situation not precisely covered by the [Ethics in 

Government Act, 18 U.S.C. § 208(a)]”). We disagree. The 

contracting officer here properly addressed not only 

whether AAR violated the PIA, but also specifically considered whether any “appearance of impropriety” tainted 

the procurement. See J.A. 126091 (rejecting DynCorp’s 

allegation that AAR engaged in “‘corporate espionage’” 

and concluding that AAR’s receipt of the Hamilton salary 

information was not “a compromise to the integrity of the 

acquisition . . . or otherwise demonstrative of poor business ethics”); J.A. 126092 (examining “whether AAR’s 

obtaining and relying upon information relative to [DynCorp’s] incumbent contract . . . gave rise to an appearance 

of an impropriety or otherwise indicated that AAR was 

not a responsible contractor”); J.A. 126095 (“It is clear to 

me that AAR did not violate the [PIA] nor commit any 
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 9

misconduct as it relates to the Solicitation.” (emphasis 

added)).

D. DynCorp’s Technical Proposal

DynCorp argues that State led it to believe that it was 

permissible to shift responsibility for MIS operations and 

maintenance to the IT Associate Contractor after transition from the AWIS. We do not find this argument persuasive. The solicitation stated that the new MIS would 

“be proposed by the [WASS Contractor]” and specified 

that the WASS Contractor would “input and maintain the 

preponderance of [MIS] data.” J.A. 100087. While it is 

true that the solicitation originally contained a sentence 

stating that “[t]he IT [A]ssociate [C]ontractor will assume 

responsibility for the MIS after transition,” J.A. 100276, 

State, in October 2015, issued solicitation amendment 

five, which deleted this sentence and replaced it with a 

sentence stating that “[t]he IT [A]ssociate [C]ontractor 

will support the existing MIS (AWIS) until transition to 

[the] new MIS is complete,” J.A. 103418 (emphasis omitted).

Importantly, moreover, during an August 2014 question and answer session State specifically stated that the 

WASS Contractor was required to shoulder responsibility 

for the MIS after transition from the AWIS. See J.A. 

103342 (explaining that “[o]nce the MIS is successfully 

tested and implemented, operation and maintenance will 

remain with the [WASS Contractor]”). State also instructed offerors to include costs for MIS operations and 

maintenance on a particular line of the performance work 

statement. See J.A. 103399 (explaining that offerors 

should “assign” costs for MIS operations and maintenance 

“to [performance work statement] line # 2.C.43.b”); see 

also J.A. 103966 (emphasizing that “[t]he requirements of 

[performance work statement] sections 2.C.43.b through 

2.C.43.e are . . . the contractor’s responsibility”). Given 

State’s explicit directive that the WASS Contractor bore 
10 DYNCORP INTERNATIONAL, LLC v. UNITED STATES

responsibility for MIS operations and maintenance after 

transition from the AWIS, see J.A. 103342, we reject 

DynCorp’s allegation that the agency misled it into believing that it was acceptable to transfer that responsibility 

to the IT Associate Contractor.

DynCorp argues that four technical evaluation notices 

(“TENs”) which State issued to it during the second round 

of discussions, see J.A. 111557, 111585, 111934, 111936, 

caused it “reasonably to believe that the IT [Associate] 

Contractor could handle [operations and maintenance] for 

the MIS.” To the contrary, however, these TENs asked 

DynCorp to clarify whether or not its proposal included 

certain MIS equipment and lifecycle support tasks. TEN 

137, for example, referred to the radio-frequency identification (“RFID”) devices that DynCorp included in the 

“Distribution Management Technologies” section of its 

proposal. J.A. 111557; see also 105738–39. State noted 

that the RFID devices were not included “as part of a total 

MIS solution in the MIS section” of DynCorp’s proposal 

and that DynCorp had not indicated whether it had 

“included the cost of these requisite system[s] (i.e. tags, 

readers, and software), installation and configuration 

labor, and lifecycle replacement costs in the contract.” 

J.A. 111557. State then asked DynCorp to clarify whether the RFID devices were included in its MIS proposal or 

whether it expected State to purchase the devices. J.A. 

111557. Although the TENs cited by DynCorp requested 

clarification regarding whether DynCorp’s proposal 

included certain MIS-related costs and equipment, they 

are insufficient to overcome State’s explicit instruction 

that the WASS Contractor, not the IT Associate Contractor, would be responsible for maintaining and operating 

the MIS after transition from the AWIS, see J.A. 103342. 

Indeed, TEN 130 specifically admonished that “[n]ew MIS 

activities and any required IT component should be 

included in the Offeror’s proposal.” J.A. 112476.
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 11

E. Alleged Unequal Treatment

DynCorp contends that State should have disqualified 

AAR because AAR, like DynCorp, proposed that the IT 

Associate Contractor would be responsible for MIS operations and maintenance following transition from the 

AWIS. This argument fails. AAR’s technical proposal 

included “Maintenance and Operations” as one of the 

“nine major stages” in its MIS solution. J.A. 109390. Its 

proposal also stated that it would “[o]perate and maintain 

the [MIS], report defects, make minor enhancements to 

the system, and conduct periodic reviews.” J.A. 109391. 

DynCorp’s technical proposal, by contrast, specifically 

stated that the IT Associate Contractor would be responsible for MIS maintenance and operations. J.A. 106075; 

see also J.A. 106079–81.

In arguing that AAR proposed to shift responsibility 

for MIS maintenance and operations to the IT Associate 

Contractor, DynCorp places great weight on a statement 

from AAR’s technical proposal stating that “[a]s requested 

by the [contracting officer’s representative], we will deliver responsibility for the enterprise [MIS] to the IT Associate Contractor, or other designated personnel.” J.A. 

108866–67; see also J.A. 109388–89.3 According to DynCorp, the only reasonable reading of this statement is 

that AAR proposed to transfer responsibility for the MIS 

to the IT Associate Contractor after the transition from 

the AWIS was complete.

 

3 DynCorp also points to four TENs that State issued to AAR during the first round of discussions in 

October 2015. See J.A. 112624, 112628, 112632, 112640. 

These TENs, however, simply quote language from the 

original performance work statement, language which 

was deleted by solicitation amendment five. See J.A. 

103418.
12 DYNCORP INTERNATIONAL, LLC v. UNITED STATES

We do not agree that AAR’s statement can reasonably 

be interpreted in only one way. Given that AAR’s proposal specifically stated that “Maintenance and Operations” was one of the “major stages” in its MIS solution, 

J.A. 109390, State rationally interpreted AAR’s statement 

as simply giving the agency the option to direct AAR to 

shift responsibility for MIS maintenance and operations 

to the IT Associate Contractor or another designated 

party. As the GAO correctly concluded, “DynCorp’s 

proposal unambiguously places responsibility for MIS 

maintenance on the IT [A]ssociate [C]ontractor upon 

completion of the implementation of the new MIS. In 

contrast, the agency reasonably interpreted AAR’s proposal as assuming responsibility for MIS maintenance, as 

well as acknowledging that the offeror would transfer 

such responsibility if requested by the agency.” J.A. 

125669–70.

F. AAR’s Staffing Plan

Finally, we conclude that, under the particular circumstances presented here, State did not err when it 

considered AAR’s response to TEN 010, see J.A. 112759–

66, when evaluating its staffing proposal. Although the 

solicitation contained a prohibition on cross-referencing 

other proposal volumes, see J.A. 100197, it did not prohibit offerors from cross-referencing a discussion response. 

See J.A. 100233 (“If it is determined to be in the best 

interest of the Government to hold discussions, offeror 

responses to Evaluation Notices (ENs) and the Final 

Proposal Revision (FPR) will be considered in making the 

source selection decision.”).

CONCLUSION

We have considered DynCorp’s remaining arguments 

but do not find them persuasive. Accordingly, the judgment of the United States Court of Federal Claims is 

affirmed.
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 13

AFFIRMED