In the United States Court of Federal Claims

No. 17-1025 C

(Filed: August 11, 2017)

Reissued: August 29, 20171

AT&T CORP.,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

CDW GOVERNMENT, LLC,

Defendant-Intervenor.

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Daniel R. Forman, Jonathan M. Baker, Judy Y. Choi, Daniel P. Wierzba, Christian N. Curran, 

and Sharmistha Das, Crowell & Moring LLP, Washington, DC, attorney for plaintiff.

Igor Helman, United States Department of Justice, Civil Division, Commercial Litigation 

Branch, Washington, DC, for defendant.

David Michael Nadler, Blank Rome LLP, Washington, DC, attorney for defendant-intervenor.

OPINION AND ORDER

SMITH, Senior Judge

This matter is before the Court on plaintiff’s Motion for Preliminary Injunction and 

Declaratory Judgment and Motion for Judgment on the Administrative Record. A Court should 

always be reluctant to issue any injunctive relief. Injunctive relief intrudes upon the person’s or 

agency’s autonomy and decision making expertise. However, when it is required by the law and 

justice, the Court should not hesitate. It seems clear that if this Court does not restrain the 

Agency, it could set a precedent in which an agency can use its own actions to justify overriding

 1 An unredacted version of this opinion was issued under seal on August 11, 2017. The parties 

were given an opportunity to propose redactions, and those redactions are reflected herein. 
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the provisions of the automatic stay established by section 3553 of the Competition in 

Contracting Act (“CICA”). While a CICA stay might cost the government time and money, as 

well as be a general annoyance, Congress has determined that protecting the integrity of the 

government procurement system is a more important governmental goal. Of course, the Court 

must adhere to Congress’ determination.

Plaintiff, AT&T Corp. (“AT&T”), contests a United States Department of Commerce, 

Census Bureau’s (“Agency” or “Census”) override of the automatic stay of performance required 

by CICA, arguing that the override was arbitrary and capricious, without a rational basis, and 

contrary to law. Plaintiff also requests that this Court enjoin the Agency from allowing the 

continued performance by CDW Government, LLC, (“CDW-G” or “defendant-intervenor”) on 

Request for Proposals No. YA1323-17-LA-0001 (“RFP” or “Solicitation”), pending the outcome 

of AT&T’s bid protest with the Government Accountability Office (“GAO”). For the following 

reasons, plaintiff’s Motion for Declaratory Judgment is granted.

I. Findings of Fact

The United States Constitution requires that the federal government conduct a census 

every ten years. U.S. Const. art. I, § 2, cl. 3. The United States Department of Commerce, 

Census Bureau conducts the census by putting into place systems and procedures that allow the 

Agency to collect population and housing information from across the United States, and then

disseminate that information to the President, the States, and the American people. CDW 

Government, LLC’s Memorandum in Opposition to Plaintiff’s Motion for Preliminary Injunction 

and Declaratory Judgment and its Cross-Motion for Judgment on the Administrative Record 

(hereinafter “DI’s Resp.”) at 2; Administrative Record (hereinafter “AR”) 899. For the 

upcoming 2020 Census, the Agency “intends to use mobile devices such as smartphones and 

tablets to assist with the data gathering for non-response follow-up, address canvassing, and 

several other large-scale operations.” Defendant’s Opposition to Plaintiff’s Motion for 

Preliminary Injunction and Declaratory Judgment and Cross-Motion for Judgment on the 

Administrative Record (hereinafter “D’s Resp.”) at 4; AR 149. Those devices must be 

“procure[d], configure[d], provision[ed], ship[ped], manage[d], and decommission[ed],” and 

they must come with “reliable network coverage for all areas” included in the 2020 Census. Id. 

Phase I of the Solicitation began on November 15, 2016, when Census issued the RFP to 

all 65 National Institute of Health, Chief Information Office-Commodities Solutions (“CIO-CS”) 

contract holders. AR 868-69. The list of offerors was narrowed to five companies, and those 

companies were invited to participate in Phase II. AR 869. Phase II of the Solicitation was 

released on December 6, 2016. Id. Over the next few months, the Agency issued a series of 

amendments addressing the potential need for a Supply Chain Risk Assessment (“SCRA”). AR 

470-71. The SCRA was ultimately deemed unnecessary. AR 478-79. On March 23, 2017, 

Census responded to four offerors, including AT&T and CDW-G, asking them to address areas 

of concern in each of their respective proposals no later than April 3, 2017. AR 484-87. The 

contract evaluations, as well as another round of amendments, continued over the next few 

months, with the Agency completing its evaluation on June 20, 2017. AR 874. Census awarded 

the contract to CDW-G on June 23, 2017. AR 894, 858. 
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On June 30, 2017, AT&T filed a protest at the GAO, arguing that “Census’ decision to 

award to CDW-G was unreasonable and in violation of applicable procurement law.” Plaintiff’s 

Motion for Preliminary Injunction and Declaratory Judgment and Motion for Judgment on the 

Administrative Record (hereinafter “P’s Mot.”) at 7. In making that assertion, AT&T argued 

that the technical evaluation was unreasonable, particularly given that AT&T’s proposal was 

priced ***. Id. The GAO informed the Agency of the protest, and on July 5, 2017, Census 

ordered CDW-G to stop work on the contract in accordance with CICA § 3553. AR 896-98. 

On July 18, 2017, Census issued its Determinations and Findings (“D&F”), authorizing 

the override of the automatic CICA stay, and allowing CDW-G to resume work under the 

contract. AR 907. The D&F stated that any delay could “introduce[] adverse risk, unacceptable 

delays, and cost increases, and jeopardize[] the mission and quality of the 2020 Census 

Program.” AR 906. It further concluded that there are “urgent and compelling circumstances 

which significantly, adversely affect the interests of the United States” and, as such, the “2020 

Census schedule will not permit a delay.” AR 907.

On July 26, 2017, AT&T requested that the GAO protest be conducted under expedited 

procedures. P’s Mot. at 8. On July 28, 2017, the GAO denied the request. Id. Also on July 28, 

2017, AT&T filed its Complaint for Declaratory and Injunctive Relief, asking that this Court 

“enjoin the United States Department of Commerce, Census Bureau [] from unlawfully 

proceeding on the performance of the 2020 Census Decennial Device as a Service (“dDaaS”) 

task order.” Complaint for Declaratory and Injunctive Relief (hereinafter “Compl.”) at 1. 

Plaintiff’s Motion for Preliminary Injunction and Declaratory Judgment is fully briefed and ripe 

for review.

II. Applicable Legal Standard

A. Jurisdiction and Standard of Review

This Court has jurisdiction over bid protest actions pursuant to 28 U.S.C. § 1491(b). The 

Court evaluates bid protests under the Administrative Procedure Act’s (“APA”) standard of 

review for an agency action. Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 

2005) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 

1332 (Fed. Cir. 2001)). A motion for judgment on the Administrative Record pursuant to Rule 

52.1 of the Rules of the United States Court of Federal Claims (“RCFC”) assesses whether the

administrative body, given all the disputed and undisputed facts in the record, acted in a manner 

that complied with the legal standards governing the decision under review. Supreme 

Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382 (2013) (citing Fort Carson Supp. 

Servs. v. United States, 71 Fed. Cl. 571, 585 (2006); Greene v. United States, 65 Fed. Cl. 375, 

382 (2005); Arch Chems., Inc. v. United States, 64 Fed. Cl. 380, 388 (2005)). Under Rule 52.1 

of the RCFC, the parties are limited to the Administrative Record, and the Court makes findings 

of fact as if it were conducting a trial on a paper record. See Bannum, 404 F.3d at 1354. 

Looking to the Administrative Record, the Court must determine whether a party has met its 

burden of proof based on the evidence in the record. Id. at 1355.
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B. CICA Automatic Stay

When a bid protest action is initiated at the GAO, an automatic stay of the protested 

contract award is triggered under CICA until the protest action is resolved. 31 U.S.C. § 

3553(c)(1). This automatic stay serves the important purpose of preserving “competition in 

contracting and ensur[ing] a fair and effective process at the GAO.” Reilly’s Wholesale Produce

v. United States, 73 Fed. Cl. 705, 710 (2006) (citing Advanced Sys. Dev., Inc. v. United States, 72 

Fed. Cl. 25, 31 (2006)). “An agency may override an automatic stay if it notifies the GAO in 

writing that either ‘performance of the contract is in the best interests of the United States,’ or 

‘urgent and compelling circumstances that significantly affect interests of the United States will 

not permit waiting for the decision of the Comptroller General concerning the protest.’” Nortel 

Gov’t Sols., Inc. v. United States, 84 Fed. Cl. 243, 247 (2008) (citing 31 U.S.C. § 3553(d)(3)(C)). 

When an agency overrides a CICA stay, the Court reviews that decision pursuant to the standards 

established by the APA, 5 U.S.C. § 706. Planetspace Inc. v. United States, 86 Fed. Cl. 566, 567 

(2009); Alion Science & Tech. Corp. v. United States, 69 Fed. Cl. 14, 23 (2005). A protestor 

challenging an override decision must establish that the “decision . . . was arbitrary and 

capricious.” PGBA, LLC v. United States, 57 Fed. Cl. 655, 660 (2003).

In reviewing an agency’s decision to override the CICA automatic stay, this Court has 

routinely applied the four-part test established in Reilly’s Wholesale Produce v. United States. 

Reilly’s Wholesale, 73 Fed. Cl. at 705. Nortel sets forth the standard as follows:

When asserting that urgent and compelling circumstances require immediate 

performance of a contract, there are several factors an agency must consider, 

including: (1) “whether significant adverse consequences will necessarily occur if 

the stay is not overridden;” (2) “whether reasonable alternatives to the override 

exist;” (3) “how the potential cost of proceeding with the override, including the 

costs associated with the potential that the GAO might sustain the protest, 

compare[] to the benefits associated with the approach being considered for 

addressing the agency’s needs;” and (4) the impact of the override on competition 

and the integrity of the procurement system, as reflected in CICA. 

Nortel, 84 Fed. Cl. at 247 (citing Reilly’s Wholesale Produce, 73 Fed. Cl. at 711); see also 

Superior Helicopter LLC v. United States, 78 Fed. Cl. 181, 189 (2007). 

The question before the Court is whether the Agency’s D&F substantively met the 

arbitrary and capricious APA review standard that applies under 28 U.S.C. § 1491(b)(4). See 

RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1290 (Fed. Cir. 1999). Under the 

legal scheme set out in Motor Vehicle Manufacturers Ass’n. of the United States v. State Farm 

Mutual Automobile Insurance Co, an agency decision

would be arbitrary and capricious if the agency has relied on factors which 

Congress has not intended it to consider, entirely failed to consider an important 

aspect of the problem, offered an explanation for its decision that runs counter to 
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the evidence before the agency, or is so implausible that it could not be ascribed to 

a difference in view or the product of agency expertise. 

Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); 

see also Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 

2009).

III. Discussion

A. The Reilly’s Wholesale Test

When an agency is making a decision on whether or not to override the automatic CICA 

stay, application of the Reilly’s Wholesale test is not required. However, it is a useful analytical 

tool for the Court in reviewing whether the override was arbitrary and capricious. “In 

highlighting these particular factors, our court is not substituting its judgment for that of an 

agency concerning aspects that are important for a particular procurement, but is rather 

identifying factors that would logically be necessary or irrelevant to override decisions in 

general.” Supreme Foodservice, 109 Fed. Cl. at 386. While an agency is not required to 

incorporate the Reilly’s Wholesale factors, in the case at bar, Census listed those factors in the 

D&F, outlining its consideration of each one. AR 902. The government argues that the Reilly’s 

Wholesale factors are not dispositive, and that this Court could follow in the vein of Planetspace 

Inc. v. United States in solely applying the four factor test for injunctive relief. D’s Resp. at 17; 

Planetspace Inc., 86 Fed. Cl. at 567. However, given the substantive use of the Reilly’s 

Wholesale factors by the Agency itself, it seems only logical that this Court use this analytical 

framework as well, consistent with the majority of other CICA override decisions in this Court. 

The first factor in the Reilly’s Wholesale test focuses on “whether significant adverse 

consequences will necessarily occur if the stay is not overridden.” Nortel, 84 Fed. Cl. at 247 

(citing Reilly’s Wholesale, 73 Fed Cl. at 711). In its D&F, the Agency considers the first factor 

and finds that “[the] longer the length of the work stoppage, the greater the adverse impacts on 

the ability of the [United States Census Bureau] to ensure the engineering and mobile solutions 

and services are integrated, scalable, secure, and can perform for the 2018 End-to-End Census 

Test.” AR 903. The Agency goes on to state that any delay in the execution of the procurement 

would amount to “unacceptable schedule delays and cost increases, and jeopardizes the mission 

and quality of the 2020 Census Program.” Id. at 905. These, the Agency finds, are “urgent and 

compelling circumstances which significantly, adversely affect the interests of the United 

States.” Id. at 906; see also 31 U.S.C. § 3553(d)(3)(C)(i)(II). 

However, the Agency has not demonstrated any immediate threat to health, welfare, or 

safety, which are the types of circumstances that typically qualify as “urgent and compelling.” 

Supreme Foodservice 109 Fed. Cl. at 387; see also PMTech v. United States, 95 Fed. Cl. 330, 

345-46 (2010). While these are not the only circumstances that have led to an agency override 

being upheld, threats to health, welfare, or safety provide this Court with compelling 

circumstances affecting the public interest that most often tip the scales in favor of an override. 

The Court recognizes the importance of the decennial census, and its status as a Congressional 

and Constitutional priority, but the risks associated with testing delays are not risks to public 
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safety. Furthermore, as plaintiff points out, all of the adverse consequences the Agency details 

will not necessarily occur, but are potential risks. P’s Mot. at 19. After reviewing the 

government’s evidence and arguments about the effects of the CICA stay, the Court finds that 

the override was based on a lot of speculation. The Agency seems to treat its own schedule as a 

hard fact to prove its case. This is undercut by three years spent on “market research,” which 

caused the Agency to adopt a schedule in which this period of 100 days is allegedly critical. The 

Agency’s reasoning is speculative, and the argument that the test run must occur on April 1, 

2018 is based on borderline ridiculous assumptions. The Agency argues that it must begin the 

test on April 1, 2018, as the Census will begin on April 1, 2020, in order to control for weather 

and job market conditions. They might as well have justified the date with the astrological 

settings! The government’s argument hinges on April 1, 2018 being set in stone. While the 

Agency may find the stay inconvenient, as most stays generally are, convenience was not a 

factor Congress considered in enacting CICA.

The Reilly’s Wholesale test’s second factor is “whether reasonable alternatives to the 

override exist.” Nortel, 84 Fed. Cl. at 247 (citing Reilly’s Wholesale, 73 Fed Cl. at 711). In 

response to this question, the Agency determined that there are no reasonable alternatives 

available to address the issues arising from the 100-day stay. AR 905. The Agency makes this 

finding on the basis that “the [United States Census Bureau] does not have time to obtain devices 

from another contractor via competition.” Id. The only option Census explored, according to the 

D&F, is extending the contract of a previous supplier. Id. While the alternative options 

suggested by the plaintiff may or may not be viable—as the government asserts—there is still 

nothing in the record that leads this Court to find that no other reasonable alternatives exist. 

Further, nothing in the Administrative Record shows this Court that the Agency even engaged in 

a meaningful review of other reasonable alternatives. 

The third Reilly’s Wholesale factor examines “how the potential cost of proceeding with 

the override, including the costs associated with the potential that the GAO might sustain the 

protest, compare[] to the benefits associated with the approach being considered for addressing 

the agency’s needs.” Nortel, 84 Fed. Cl. at 247 (citing Reilly’s Wholesale, 73 Fed Cl. at 711). 

The Agency estimated that the cost for the contractor to perform during the override is $1.5 

million. AR 906. There is no further explanation or breakdown of the $1.5 million cost in the 

D&F, indicating to the Court that the Agency did not conduct a significant analysis of the cost 

and benefits of proceeding with the override. For example, the Agency did not consider the 

additional costs should GAO sustains plaintiff’s protest. The Agency includes no reasoning to 

demonstrate that the benefits of the override outweigh the costs of proceeding with the CICA 

stay in place. Thus, the cost-benefit analysis cannot be said to weigh in favor of the override.

The fourth factor in the Reilly’s Wholesale test addresses “the impact of the override on 

competition and the integrity of the procurement system, as reflected in CICA.” Nortel, 84 Fed. 

Cl. at 247 (citing Reilly’s Wholesale, 73 Fed Cl. at 711). This Court has previously held that 

“Congress has determined that the public interest is served by the imposition of an automatic 

stay to allow the GAO an opportunity to ascertain the merits of a bid protest.” URS Fed. Servs., 

Inc. v. United States, 102 Fed. Cl. 674, 677 (2012). “After repeated elaboration, it should be 

beyond controversy that the point of the CICA automatic stay was to enhance the GAO as a 

forum for bid protests, so that the integrity of the competitive procurement process could be 
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protected.” Supreme Foodservice, 109 Fed. Cl. at 385; see also, PMTech, 95 Fed. Cl. at 346-47; 

CIGNA Gov’t Servs., LLC v. United States, 70 Fed. Cl. 100, 112 (2006); PGBA, LLC, 57 Fed. Cl. 

at 657-58. Essentially, “‘the automatic stay is intended to preserve the status quo during the 

pendency of the protest so that an agency would not cavalierly disregard GAO’s 

recommendations to cancel the challenged award,’ thereby ‘preserv[ing] competition in

contracting and ensur[ing] a fair and effective process at the GAO.’” Reilly’s Wholesale, 73 Fed. 

Cl. at 710 (alterations in original) (quoting Advanced Sys. Dev., 72 Fed. Cl. at 31). By refusing to 

respect the CICA stay, the Agency has put itself in a primed position to, at a later point in the 

protest process, argue that it would be unfairly burdened if the award to CDW-G were set aside, 

because Census would be forced to replicate months’ worth of work that had already been 

completed. If this Court were to allow the agency override to stand, it would ultimately be pulling 

the CICA teeth from the GAO, rendering it a government body with bark but no ability to bite. 

This is not what Congress intended. As such, this Court must invalidate the Agency’s decision to 

override the stay.

B. Injunctive Relief

Having found that the Agency was arbitrary in its override of the CICA stay in 

accordance with the Reilly’s Wholesale test, this Court need not go further. While plaintiff’s 

Motion was styled as one for a preliminary injunction, AT&T’s claim is really asking for 

declaratory relief. “Declaratory relief is particularly appropriate in bid protest actions contesting 

agency stay override determinations entered pursuant to 31 U.S.C. § 3553(d)(3)(C).” Chapman 

Law Firm Co. v. United States, 65 Fed. Cl. 422, 424 (2005). This Court agrees with the 

reasoning set forth in Chapman Law Firm, which stated the following:

Congress did not require any evaluation of injunctive relief factors as a 

prerequisite to a stay of contract performance upon the filing of a protest with the 

GAO. Thus, it would be contrary to the legislative scheme to impose such an 

additional requirement, upon finding that an agency override determination lacks 

validity, in order to reinstate the statutory stay applicable during the GAO protest 

period. Declaratory relief preserves the scheme that Congress enacted. 

Chapman Law Firm, 65 Fed. Cl. at 424. “Congress enacted a statute requiring less than the 

typical injunctive relief factors.” Supreme Foodservice GmbH, 109 Fed. Cl. at 397 (emphasis in

original). “In creating the CICA stay of performance, Congress decided that the injunctive relief 

factors need not be invoked when a bid protest is timely filed with the GAO, instead requiring 

that contract performance be stayed automatically.” Id.; see also 31 U.S.C. § 3553(d)(3)(A)-(B). 

“To allow an arbitrary override to insert the injunctive relief requirements into the process would 

convert the CICA stay to something other than what Congress created.” Id. 

When making a determination on whether or not to apply an injunction, this Court 

typically evaluates the following four factors: 1) the likelihood of success on the merits; 2) 

whether plaintiff will suffer irreparable harm absent an injunction; 3) balance of harm to the 

respective parties if the injunction is either granted or not granted; and 4) the public interest

involved in granting the injunction. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 

(Fed. Cir. 2009); PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004); Mobile 
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Med. Int’l Corp. v. United States, 95 Fed. Cl. 706, 742-43 (2010). Regardless of Congress’ 

decision to exclude the elements of a preliminary injunction from the CICA automatic stay, “the 

likelihood of success on the merits” factor is wholly inapplicable to CICA overrides. The 

purpose of a preliminary injunction is to preserve the status quo during the pendency of a bid 

protest while the Court makes a decision on the merits. When a plaintiff challenges an agency’s 

decision to override the automatic CICA stay, the Court never proceeds to briefing or a hearing 

on the merits in the traditional sense. Instead, the Court is asked to review the override, while 

the GAO engages in a review of the merits. Once the Court has come to a decision on the 

override, jurisdiction over the protest reverts back to the GAO. If this Court were to impose an 

injunction during its review of the CICA override, it would more closely resemble a permanent 

injunction, as it would ultimately dispose of the case in this Court. However, a permanent 

injunction is not truly what the protestor seeks, because the protestor is not requesting the 

Agency cease all work in perpetuity, but rather that the Agency abide by the CICA stay. 

IV. Conclusion

For the foregoing reasons, the Court concludes that the decision to override the CICA 

stay of performance issued by the United States Department of Commerce, Census Bureau on 

July 18, 2017, was arbitrary, capricious, and contrary to 31 U.S.C. § 3553(d)(3)(C)(i), and is thus 

invalid. The plaintiff’s Motion for Declaratory Judgment on the Administrative Record in regard 

to the CICA override is GRANTED, plaintiff’s Motion for Preliminary Injunction is DENIED

as moot, and the Cross-Motions for Judgment on the Administrative Record by defendant and 

defendant-intervenor are DENIED. As this Court believes the government to be a law-abiding 

party, the Court shall not impose a permanent injunction at this time. However, this Court shall 

retain jurisdiction over this case pending the outcome of the protest at the GAO. Until such a 

time as the GAO issues its decision, this case is STAYED. Finally, this Court encourages the 

GAO to engage in an expedited review of AT&T’s protest, per the plaintiff’s original request and 

as it is in the interest of all parties and the public.

IT IS SO ORDERED.

s/Loren A. Smith

Loren A. Smith,

Senior Judge