United States Court of Appeals 

for the Federal Circuit ______________________ 

AGUSTAWESTLAND NORTH AMERICA, INC.,

Plaintiff-Appellee

v.

UNITED STATES,

Defendant-Appellant

AIRBUS HELICOPTERS, INC.,

Defendant

______________________ 

2017-1082

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:14-cv-00877-SGB, Chief Judge Susan G. 

Braden.

______________________ 

Decided: January 23, 2018

______________________ 

 DENNIS J. CALLAHAN, Rogers, Joseph, O’Donnell, San 

Francisco, CA, argued for plaintiff-appellee. Also represented by NEIL H. O’DONNELL; JEFFERY M. CHIOW, LUCAS 

TAYLOR HANBACK, Washington, DC. 

 ANTHONY F. SCHIAVETTI, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for defendant-appellant. 
2 AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES

Also represented by FRANKLIN E. WHITE, JR., ROBERT E.

KIRSCHMAN, JR., BENJAMIN C. MIZER. 

______________________ 

Before PROST, Chief Judge, CHEN and HUGHES, Circuit 

Judges.

HUGHES, Circuit Judge. 

The United States appeals from a decision of the 

Court of Federal Claims enjoining the United States 

Army from proceeding with, or awarding, a contract to 

Airbus Helicopter, Inc. The Court of Federal Claims 

found that Army Execution Order 109-14, which implemented the Army’s Aviation Restructure Initiative designating the UH-72A Lakota helicopter as the Army’s 

“Institutional Training Helicopter,” was a procurement 

decision in violation of the Competition in Contracting Act 

and relevant provisions of the Federal Acquisition Regulation. After supplementing the administrative record, 

the Court of Federal Claims found that the Army’s decision to purchase sixteen UH-72A Lakota helicopters from 

Airbus also violated the Competition in Contracting Act 

and the Federal Acquisition Regulation because the Sole 

Source Justification and Approval was arbitrary and 

capricious. We conclude that Execution Order 109-14 was 

not a procurement decision subject to review, that the 

Sole Source Justification and Approval was not arbitrary 

and capricious, and that it was an abuse of discretion to 

supplement the administrative record. Accordingly, we 

reverse the trial court’s decision and vacate the preliminary injunction. 

I 

On June 22, 2005, the Army issued an Acquisition 

Strategy to procure 322 Light Utility Helicopters (LUH)

by full and open competition. Both AgustaWestland and 

Airbus submitted bids. On June 30, 2006, Airbus was 

awarded Contract No. W58RGZ-06-C-0194 (2006 Con-
AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES 3

tract) for $43,090,522.1 AgustaWestland filed an unsuccessful bid protest of the award decision with the Government Accountability Office. 

The 2006 Contract required that Airbus provide a 

base quantity of eight low rate initial production UH-72A 

Lakota helicopters. The 2006 Contract also provided that, 

during each Program Year 2 through 10, the Army could 

exercise options to purchase up to a total of 483 UH-72A 

Lakota helicopters. The last date that the Army could 

exercise an option was on September 30, 2015. The 2006 

Contract expired on June 30, 2016.

In January 2012, the President of the United States 

and the Secretary of Defense announced new Strategic 

Guidance that reduced the Defense Budget and called for 

the “resizing/reshaping” of the Armed Forces. J.A. 5196–

97. To implement the Strategic Guidance, in August 

2013, the Chief of Staff of the Army issued the Aviation 

Restructure Initiative (“restructuring initiative” or “initiative”), which was “designed to deliver the best Army 

Aviation force possible within resource constraints.” 

J.A. 5197. The restructuring initiative, therefore, “divest[ed] legacy systems, [and] invest[ed] in modernization 

of Aviation best systems” by “redistributing assets” and 

“reducing aircraft types and standardizing Aviation 

 

1 The 2006 Contract was awarded to European Aeronautics Defense and Space Company – North America 

(EADS-NA). The contract integrated two major subcontractors: Airbus Helicopters, Inc. (formerly known as 

American Eurocopter (AE)) and Helicopter Support, Inc. 

(HSI). In a company restructuring, EADS-NA became

Airbus Defense and Space, Inc. (ADSI) effective January 

2014. As part of the reorganization, all new Army helicopter programs became the responsibility of Airbus 

Helicopters, Inc.
4 AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES

brigade designs.” Id. The initiative officially retired the 

TH-67, a single-engine aircraft used for training at Fort 

Rucker, Alabama, and designated the UH-72A Lakota—

the helicopter procured by the Army in the 2006 Contract 

with Airbus—the “Institutional Training Helicopter.” 

J.A. 5198. The initiative was formally implemented by 

the issuance of Army Execution Order 109-14 on April 3, 

2014. J.A. 5196–98. 

To comply with the objectives of the restructuring initiative, the Army determined that it needed to increase 

the UH-72A Lakota helicopter program by 110 helicopters, from 317 to 427 helicopters. J.A. 2775. Initially, the 

Army considered a sole source acquisition for 155 UH-72A 

Lakota helicopters, and published a sources sought notice 

on September 4, 2014, to explore this option.2 J.A. 2803. 

On September 19, 2014, AgustaWestland filed a Complaint for Declaratory and Injunctive Relief in the United 

States Court of Federal Claims, arguing that the Execution Order was a procurement decision. Because no final 

decision “with respect to the competitive process to be 

used” had been made, the Court of Federal Claims stayed 

proceedings. J.A. 7. 

Ultimately, the Army decided not to pursue the procurement of 155 UH-72A Lakota helicopters. It chose to 

exercise the remaining options on the 2006 Contract with 

Airbus permitting the procurement of 412 UH-72A Lakota helicopters, but leaving the Army sixteen helicopters

 

2 Although the Army only needed 110 UH-72A 

Lakota helicopters, it sought to procure additional UH72A Lakota helicopters for potential sales to foreign 

militaries or to other Government agencies. J.A. 2803. 
AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES 5

short of its total requirement.3 J.A. 2956. Because Airbus “has exclusive ownership of all data rights required to 

produce, maintain, and modify the UH-72,” the Army was 

faced with procuring sixteen alternate aircraft, or procuring sixteen helicopters from Airbus through a sole source 

follow-on contract. J.A. 2957. On December 10, 2015, the 

Army issued a Justification and Approval (J&A) to acquire the UH-72A Lakota helicopters from Airbus “on an 

other than full and open competition basis.” J.A. 2965. 

The Army justified this decision based on the costs and 

delay associated with “procuring and sustaining an alternate aircraft” separate from the UH-72A Lakota. J.A. 

2958. 

Subsequently, AgustaWestland filed a Supplemental 

Complaint, a Motion for Preliminary Injunction, and a 

Motion for Judgment on the Administrative Record. The

Government opposed AgustaWestland’s motions and filed 

a Cross-Motion for Judgment on the Administrative 

Record. Relevant to this appeal, the Court of Federal 

Claims found that the April 3, 2014 Execution Order was 

a procurement decision in violation of the Competition in 

Contracting Act (CICA) and the relevant Federal Acquisition Regulation (FAR) provisions. The Court of Federal 

Claims then determined that it could not “conduct ‘effective judicial review’ without supplementing the Administrative Record,” J.A. 25 n.33, and therefore considered 

evidence not contained in the administrative record. 

After supplementing the administrative record, the Court 

of Federal Claims found that the Army’s J&A and deci-

 

3 The Army initially determined it was fifteen UH72A Lakota helicopters short of its requirement, but one 

UH-72A Lakota helicopter needed to be replaced after it 

was destroyed during a mission, leaving the Army sixteen 

short of its requirement. J.A. 2956.
6 AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES

sion to purchase sixteen UH-72A Lakota helicopters 

without full and open competition was arbitrary and 

capricious, and thus in violation of CICA and the relevant 

FAR provisions. Accordingly, the Court of Federal Claims 

enjoined the Army from proceeding with, or awarding, the 

contract to Airbus.

The United States appeals. We have jurisdiction pursuant to 28 U.S.C. § 1292(c)(1). 

II

The Court of Federal Claims determined that it had 

jurisdiction to review whether the Execution Order violated CICA and the FAR’s competitive procedures because it 

was “a quintessential procurement decision.” J.A. 19. 

The Tucker Act provides the Court of Federal Claims with 

jurisdiction over an “alleged violation of statute or regulation in connection with a procurement or a proposed 

procurement.” 28 U.S.C. § 1491(b)(1). We review a 

decision of the Court of Federal Claims regarding its own 

jurisdiction de novo. Hymas v. United States, 810 F.3d 

1312, 1317 (Fed. Cir. 2016). 

The terms “procurement” and “proposed procurement” 

are not defined by the Tucker Act or CICA. In Distributed 

Solutions, Inc. v. United States, we held that it was appropriate to use the definition of “procurement” set forth 

in “41 U.S.C. § 403(2), . . . the statutory provisions related 

to the establishment of the Office of Federal Procurement 

Policy in the Office of Management and Budget,” to determine whether a procurement has occurred pursuant to 

28 U.S.C. § 1491(b). 539 F.3d 1340, 1345 (Fed. Cir. 2008). 

Section 403(2) defines “procurement” as including “all 

stages of the process of acquiring property or services, 

beginning with the process for determining a need for 

property or services and ending with contract completion 
AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES 7

and closeout.” Id. (emphasis omitted).4 We clarified that 

to “establish jurisdiction pursuant to this definition, [a 

contractor] must demonstrate that the government at 

least initiated a procurement, or initiated ‘the process for 

determining a need’ for acquisition.” Id. at 1346.

One objective of the restructuring initiative, formalized in the Execution Order, was to “[r]eplace the aging 

Aviation institutional training fleet at Fort Rucker.” 

J.A. 5197. To accomplish this objective, the initiative 

instructed that “the Institutional Training Helicopter 

fleet is converted to UH-72s and the legacy TH-67 training helicopter is divested.” J.A. 5198. The initiative did 

not, however, direct or even discuss the procurement of 

UH-72A Lakota helicopters. In fact, the initiative only 

contemplated using existing Army assets. See J.A. 5198

(“The Aviation Restructure Initiative will be accomplished 

by a variety of means; conversions, inactivations, relocations, re-flagging and activations using existing organizational structure unless otherwise directed.”); see also 

J.A. 5197 (“The ARI concept will adapt a design to provide 

efficient and effective support by redistributing assets in a 

manner that most effectively addresses the nation’s needs 

at home and abroad.”). 

The Execution Order, therefore, was not a procurement decision subject to Tucker Act jurisdiction because it 

did not begin “the process for determining a need for 

property or services.” Distributed Sols., 539 F.3d at 1345. 

The Execution Order simply formalized the Army’s decision designating the UH-72A Lakota as the Army’s training helicopter. Because the Execution Order was not a 

procurement or proposed procurement, the Court of 

 

4 In 2011, § 403(2) was recodified at 41 U.S.C. 

§ 111.
8 AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES

Federal Claims lacked jurisdiction to review whether it 

violated CICA and the FAR. 

III

Next, we turn to the question of whether acquiring 

the UH-72A Lakota helicopters from Airbus “on an other 

than full and open competition basis” was arbitrary and 

capricious. We review the merits of a bid protest under 

the standards set forth in the Administrative Procedure 

Act. 28 U.S.C. § 1491(b)(4) (“In any action under this 

subsection, the courts shall review the agency’s decision 

pursuant to the standards set forth in section 706 of title 

5.”). A court may set aside an agency decision that was 

“arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 5 U.S.C. § 706(2)(A). 

A 

As a preliminary matter, in reviewing whether acquiring the UH-72A Lakota helicopters from Airbus “on 

an other than full and open competition basis” violated 

CICA and relevant FAR provisions, the Court of Federal 

Claims supplemented the administrative record and 

relied on this supplemental evidence to decide this issue. 

“Evidentiary determinations by the Court of Federal 

Claims, including motions to supplement the administrative record, are reviewed for abuse of discretion.” Axiom 

Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1378 

(Fed. Cir. 2009). 

Because we find that the administrative record was 

sufficient to determine whether the Government acted in 

an arbitrary or capricious manner, the Court of Federal 

Claims abused its discretion by sua sponte supplementing 

the administrative record. 

“The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the 

agency decision based on the record the agency presents 

to the reviewing court.” Id. at 1379 (emphasis omitted) 
AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES 9

(citation omitted). The purpose of limiting judicial review 

to the record actually before the agency is to guard 

against courts using new evidence to “convert the ‘arbitrary and capricious’ standard into effectively de novo 

review.” Id. at 1380 (quoting Murakami v. United States, 

46 Fed. Cl. 731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 

2005)). Therefore, “supplementation of the record should 

be limited to cases in which the omission of extra-record 

evidence precludes effective judicial review.” Id. (internal 

quotation marks and citation omitted). Judicial review is 

“effective” if it is consistent with the APA. Id. at 1381 

(“The focus of judicial review of agency action remains the 

administrative record, which should be supplemented 

only if the existing record is insufficient to permit meaningful review consistent with the APA.”). 

 Here, the Court of Federal Claims concluded that it 

could not conduct “effective judicial review” without 

supplementing the administrative record. See, e.g., J.A. 6

n.6 (“Since this relevant congressional communication 

was omitted from the Administrative Record, the court 

has determined that it cannot conduct ‘effective judicial 

review,’ without supplementing the Administrative Record with this public document, which is otherwise subject 

to Fed. R. Evid. 201(b).”), 25 n.34 (“The court has determined that it cannot conduct ‘effective judicial review,’ 

without supplementing the Administrative Record with 

this public document, which is otherwise subject to Fed. 

R. Evid. 201(b).”). The Court of Federal Claims was, 

however, required to explain why the evidence omitted 

from the record frustrated judicial review as to the ultimate question of whether the award of a sole-source 

contract to Airbus was arbitrary and capricious. Axiom, 

564 F.3d at 1379–80. It did not do so here, but, rather, 

provided nothing more than conclusory statements that it 

could not conduct effective judicial review without the 

supplemented material. Those statements are insufficient under Axiom. We have examined the administrative 
10 AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES

record and find it sufficient to review the Army’s sole 

source procurement award, as discussed below. Thus, we 

conclude that the trial court abused its discretion by 

supplementing the record, and relying on the supplemental evidence to reach its decision. 

B 

In the context of bid protests, a bid award may be set 

aside if either “(1) the procurement official’s decision 

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

involved a violation of regulation or procedure.” Impresa 

Construzioni Geom. Domenico Garufi v. United States, 

238 F.3d 1324, 1332 (Fed. Cir. 2001). Here, the Court of 

Federal Claims found that the justifications supporting 

the sole-source procurement provided in the J&A were not 

sufficient and, further, that the procurement official’s 

decision was arbitrary and capricious. 

Where, as here, a bid protester challenges the procurement official’s decision as lacking a rational basis, we 

must determine whether “the contracting agency provided 

a coherent and reasonable explanation of its exercise of 

discretion,” recognizing that “contracting officers are 

entitled to exercise discretion upon a broad range of 

issues confronting them in the procurement process.” Id.

at 1332–33 (internal quotation marks and citation omitted). “[T]he disappointed bidder bears a heavy burden of 

showing that the award decision had no rational basis.” 

Id. at 1333 (internal quotation marks and citation omitted). 

CICA requires agencies to use competitive procedures 

to obtain “full and open competition” in conducting “a 

procurement for property or services.” 10 U.S.C. 

§ 2304(a). CICA, however, exempts agencies from this 

requirement when the property or services “are available 

from only one responsible source . . . and no other type of 

property or services will satisfy the needs of the agency.” 

10 U.S.C. § 2304(c)(1). A sole-source award is permitted, 
AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES 11

therefore, when it is “a follow-on contract for the continued development or production of a major system or 

highly specialized equipment” and “it is likely that award 

to any other source would result in (A) [s]ubstantial

duplication of cost to the Government that is not expected 

to be recovered through competition, or (B) [u]nacceptable 

delays in fulfilling the agency’s requirements.” FAR 

6.302-1(a)(2)(ii) (48 C.F.R. § 6.302-1). A “major system” 

includes a Department of Defense system exceeding $835 

million in total expenditures. FAR 2.101. 

Prior to awarding a sole-source contract, a contracting 

officer must: (1) justify the sole-source award in writing; 

(2) certify the “accuracy and completeness of the justification”; and (3) obtain the approval of the senior procurement executive of the agency. FAR 6.303-1(a). The FAR 

sets forth the specific information required to support 

each justification, including “[a] determination by the 

contracting officer that the anticipated cost to the Government will be fair and reasonable”; “[a] description of 

the market research conducted (see Part 10) and the 

results”; “for follow-on acquisitions as described in 6.302-

1(a)(2)(ii), an estimate of the cost to the Government that 

would be duplicated and how the estimate was derived”; 

and “[a]ny other facts supporting the use of other than 

full and open competition, such as . . . [an] [e]xplanation 

of why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been 

developed or are not available.” FAR 6.303-2(b). 

It is undisputed that the J&A, setting forth the Army’s decision to acquire sixteen UH-72A Lakota helicopters on an other than competitive basis, was a 

procurement decision subject to review. The Court of 

Federal Claims determined that the J&A, however, was 

not a “follow-on contract” subject to the exception set forth 

in FAR 6.302-1 because it is a “new contract.” J.A. 22. 

“Follow-on contract” is not explicitly defined in the FAR, 
12 AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES

but at the very least, it is a “contract for the continued 

development or production of a major system or highly 

specialized equipment.” FAR 6.302-1(a)(2)(ii). It is irrelevant, therefore, whether a “follow-on contract” is a new, 

separate contract or a supplement to an existing contract, 

as long as it is a “contract for the continued development 

or production of a major system or highly specialized 

equipment.” Accordingly, the J&A is a “follow-on contract” for a “major system,” because it is a “contract for 

the continued production” of a Department of Defense 

system exceeding $835 million in total expenditures. See 

J.A. 2962. 

The Court of Federal Claims found that the justifications for the sole-source award to Airbus, set forth in the 

J&A, were insufficient. We conclude, however, that the 

agency provided a coherent and reasonable explanation of 

its exercise of discretion, and therefore the justifications 

for the sole-source award are not arbitrary and capricious. 

The J&A contains a detailed analysis justifying the 

sole-source award to Airbus. The J&A explained that 

Airbus was the only responsible source for the helicopters 

because it “has exclusive ownership of all data rights 

required to produce, maintain, and modify the UH-72.” 

J.A. 2957. The J&A relies on two justifications for why 

“no other aircraft will satisfy the Army’s requirement”: 

(1) “the estimated duplication of costs that would be 

incurred in procuring and sustaining an alternative 

aircraft is significant and is not expected to be recovered 

in its entirety,” and (2) procuring sixteen helicopters from 

a different source would result in an unacceptable delay 

as it would take up to three years and cause “significant 

gaps in the Army National Guard’s ability to meet its 

assigned missions of Homeland Security, Disaster Response, Search and Rescue, MEDEVAC, and border 

patrol” that could expose the nation to security and safety 

risks. J.A. 2958. 
AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES 13

To support its first justification, the Government prepared an Independent Government Estimate (IGE), “to 

estimate the duplication of costs in conducting another 

competitive action (for an alternative helicopter).” 

J.A. 2960. The estimated total duplication costs provided 

in the IGE were “derived by considering the costs of 

conducting the source selection, increased procurement 

costs of an alternate aircraft, [and] the impact to sustaining another aircraft separate from the Lakota.” J.A. 2858. 

The Court of Federal Claims found that the IGE was 

insufficient because it did not consider “the potential 

increased cost that Airbus can charge for its intellectual 

property [the Technical Data Package],” or whether 

“Airbus extracted or could extract a supra competitive 

price on its UH-72A Lakota helicopters, because of the 

Technical Data Package.” J.A. 23. In 2013, the Government requested from Airbus an estimate of the cost to 

acquire the Technical Data Package for the UH-72A 

Lakota helicopter. Airbus “responded that the TDP is not 

for sale and [Rough Order Magnitude] pricing will not be 

provided.” J.A. 2963. Because Airbus was not willing to 

sell the TDP, the “potential increased costs that Airbus 

can charge for its intellectual property” or whether “Airbus extracted or could extract a supra competitive price” 

is irrelevant. 

Ultimately, the J&A needs to find that “the anticipated cost to the Government will be fair and reasonable.” 

FAR 6.303-2(b)(7). In doing so, the government conducted 

an IGE to determine “an estimate of the cost to the Government that would be duplicated and how the estimate 

was derived.” Based on the IGE, the J&A found that “the 

estimated duplication of costs that would be incurred in 

procuring and sustaining an alternative aircraft is significant and is not expected to be recovered in its entirety.” 

J.A. 2958. Ultimately, the J&A concluded that “the 

anticipated cost or price to the Government for this contract action will be fair and reasonable” after reviewing 
14 AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES

“cost/price analysis, audit, procurement history, commercial catalogs, fact finding and negotiations.” J.A. 2694. 

The evidence in the administrative record sufficiently 

supports the J&A’s first justification. See FAR 6.303-

2(b)(9)(ii). 

To support its second justification—procuring sixteen 

helicopters from a different source would result in an 

unacceptable delay—the J&A relied on the “schedule 

experienced on the competition conducted for the original 

LUH production contract.” J.A. 2958. Notably, it would 

“take a minimum of 24 months to produce the competitive 

package and prepare the solicitation, receive all proposals 

and confirm the contractor’s producibility and technical 

capabilities, conduct discussions and complete evaluations, and ultimately select an offeror for contract award.” 

Id. It would then take “no less than an additional 12 

months for initial production, first article review, and 

fielding of the aircraft, accumulating in a timeline of more 

than 3 years.” Id. Such a delay “introduces risk to the 

nation’s security and safety.” Id. The evidence in the 

administrative record is sufficient to support the J&A’s 

determination that an award to any other source would 

result in unacceptable delays. 

Lastly, the Court of Federal Claims also found that 

the “Contracting Officer’s decision that ‘the justification 

[is] adequate to support other than full competition,’ prior

to the review and approval of Legal Counsel and the 

[Special Competitive Advocate] prima facie was arbitrary 

and capricious.” J.A. 28 (alteration and emphasis in 

original). The Contracting Officer is responsible for 

justifying the sole-source award and certifying the accuracy and completeness of the justification. Further, the 

justification is only required to be approved by the senior 

procurement executive. Because the J&A was approved 

by the senior procurement executive in compliance with 

the FAR, the fact that Legal Counsel and the Special 

Competition Advocate approved the J&A after the Con-
AGUSTAWESTLAND NORTH AMERICA v. UNITED STATES 15

tracting Officer does not establish that the J&A was 

prima facie arbitrary or capricious. J.A. 2965. 

Because the J&A sufficiently supports the Army’s decision to award a sole-source follow-on contract because it 

is “likely that award to any other source would result in 

(A) [s]ubstantial duplication of cost to the Government 

that is not expected to be recovered through competition, 

or (B) [u]nacceptable delays in fulfilling the agency’s 

requirements,” FAR 6.302-1(a)(2)(ii) (48 C.F.R. § 6.302–

1), it is not arbitrary and capricious. 

IV 

Because we conclude that the Execution Order 109-14 

was not a procurement decision subject to review, it was 

an abuse of discretion to supplement the administrative 

record, and the Sole Source Justification and Approval 

was not arbitrary and capricious, we reverse the trial 

court’s decision and vacate the preliminary injunction. 

VACATED

Costs to Appellant.