# In the United States Court of Federal Claims

No. 15-1397C

(Filed Under Seal: March 7, 2016)

(Reissued for Publication: March 15, 2016)

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Pre-award Bid Protest; Failure to Protect Proprietary Information; Waiver; Reasonableness of Agency’s Remedial Action; Judgment on the
Administrative Record. * DYNCORP INTERNATIONAL, LLC, *
* Plaintiff, *
*
v. *
* THE UNITED STATES, *
*
Defendant. *
*

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David M. Nadler , with whom were Adam Proujansky

, David Y. Yang and Stephanie M.
Zechmann , Blank Rome LLP, Washingt on, D.C., for Plaintiff.

Alexander V. Sverdlov , with whom were Benjamin C. Mizer , Acting Assistant Attorney General, and Douglas K. Mickle , Assistant Director, Commerc ial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., Beatrice Foster , Chief, Commercial Law Division, Air Combat Comma nd, U.S. Air Force, Of Counsel, for
Defendant.

OPINION AND ORDER 1

WHEELER, Judge.

Plaintiff DynCorp International, LLC (“D ynCorp”) filed this pre-award bid protest challenging the U.S. Air Force’s decision to continue with a War Reserve Materiel III (“WRM III”) solicitation after the Air Force ha d publicly disclosed DynCorp’s proprietary

1 The Court issued this decision under seal on March 7, 2016 and invited the parties to submit proposed redactions of any competitive-sensitive, proprietary, c onfidential, or other protected information on or before March 14, 2016. The Government proposed no redactions and Plaintiff D ynCorp International, LLC proposed minimal redactions concerning the rate and fee data at issue in this protest. These redactions are indicated in the decision by brackets and an ellipsis, [. . .].2 cost and pricing data. DynCorp had been the incumbent on the prior WRM I and II contracts, and in the course of performi ng those contracts, ha d submitted proprietary indirect cost and profit data to the Air Force as part of life cycle management reports. By the Air Force’s posting of this proprietary data online as part of the new WRM III solicitation, DynCorp c ontends that the Air Force put DynCorp at a severe competitive disadvantage. DynCorp says that the only perm issible remedy is for th e Air Force to extend DynCorp’s current contract for five years on a sole source basis.

The record does not support DynCorp’s position. As will be shown, DynCorp consistently failed to mark its indirect cost and profit data as “pr oprietary,” and did not even object when the Air Force inquired whether the lif e cycle management reports could be posted as part of the new solicitation. Dy nCorp thereby waived its right to assert that the data was “proprietary,” and the Air For ce did nothing wrong by disclosing the data as part of the new solicitation. Moreover, the Ai r Force’s actions to mitigate the effects of disclosure on DynCorp’s comp etitive position were reasonable. Acco rdingly, DynCorp’s protest is DENIED, and the Court GRANT S Defendant’s motion for judgment on the
administrative record.

I. Factual Background 2

For the past sixteen years, DynCorp ha s served as the prime contractor for the WRM program, through the initial WRM I cont ract and a successor contract, WRM II.
Pl. Mem. at 3. The United States Ai r Force Air Combat Command Acquisition Management and Integration Center (“AMIC”) runs the WRM program and conducts the WRM procurements. Gov’t Mem. at 2. Among other responsibilities, the AMIC must manage and maintain stockpiles of war reserve materiel and other gove rnment equipment. Id. To accomplish this mission, AMIC em ploys private contractors to manage its equipment warehouses. Under the WRM prog ram, contractors are responsible for a number of critical tasks, such as “storage, maintenance, ou tload, reconstitution, exercise and contingency logistics supports, as well as maintenance, repair, and minor construction of government furnished facilit ies and property.” Pl. Mem. at 3; Administrative Record (“AR”) 1128.

A. Life Cycle Management Deliverables

On March 9, 2015, the Air Force poste d the initial draft WRM III solicitation to FedBizOpps.gov, which was fo llowed by the final solicitati on (No. FA4890-15-R-0004) on July 24, 2015. AR 1, 143. Along with a detailed description of what the Air Force would require from the awardee in terms of maintaining and repairing Government-owned

2 The facts in this decision are taken from the admini strative record, as supplemented. The pages in the administrative record are numbered in sequence, and the documents are divided by tabs. The Court’s citations to the administrative record generally are to the page numbers, and to the declarations that the Court admitted as supplements to the administrative record.3 equipment, the WRM III solicit ation also included examples of the deliverables the eventual awardee would be responsible for pr oviding to the Air Force over the course of the contract. See AR 1128, 292-93, 382-85. Among other things, these deliverables included a life cycle management plan. Th e life cycle management plan requires the contractor to submit an annual report incl uding the contractor’s budget forecast and replacement recommendations for ite ms reaching the end of their life cycle in the following year. AR 1129. The life cycl e management plan is part of a comprehensive life cycle approach “to maintaining and enhancing the life of all GFP/E/V/F [government furnished property, equipment, vehicles, and facilities] . . . .” Id.

Under the WRM II contract, DynCorp had been submitting life cycle report spreadsheets to the Ai r Force since at least 2012. Declaration of Everton Chapman (“Chapman Decl.”) ¶ 5. These reports “ide ntified the date on which the Government purchased certain tools (such as pressure wash ers, wrenches, battery chargers. . . ), how much the Government paid for those tools at the time they were purchased, and the projected date and cost when the Air Force would have to bu y replacements.” Gov’t Mem. at 3; AR 704. Most importantly for purposes of the present protest, th ese spreadsheets also included DynCorp’s indirect rate and award f ee data, information that Plaintiff maintains “is highly confidential and proprietary” as it relates to DynCorp’s “performance and cost
structure under the incumbent WR M II program.” Pl. Mem. at 7-8. For instance, on July 31, 2012, DynCorp representative Steve Tro tter sent Everton Chapman, an Air Force contract logistics manager, a life cycle report th at “included blocks containing an ‘Indirect’ [. . .] rate and a ‘Fee’ of [. . .].” Chapman D ecl. ¶ 5. According to Mr. Chapman, the report contained no proprietary markings and “Mr. Trotter did not indicate that any of the information in the report was protected” in transmitting the repo rt. Id. Likewise, Joe Fyffe, DynCorp’s WRM II Program Prope rty Manager, regularly submitted similar reports to Mr. Chapman without any indication th at they contained proprietar y information. See, e.g., Chapman Decl., Attachment B.

Pursuant to the WRM II contract between DynCorp and the Air Force, the Government expressly acquired “unlimited rights to all deliverables procured under [the] contract,” with unlimited rights defined as “rights to use, modify, reproduce, perform, display, release, or disclose in whole or in part, in any manner, and for any purposes whatsoever, and to authorize others to do so,” and deliverables define d as “the documents, regardless of media format (e.g. print or el ectronic), identified in the PWS [Performance Work Statement], and described in the PWS Ap pendix B, Deliverable s.” AR 1342. To guard against the possibility th at proprietary information s ubmitted in deliverables might be shared or released, the WRM II contract included the following paragraph explaining how to flag proprietary deliverables:

All deliverables are Government owned property upon submittal. Should any deliv erable contain proprietary info/data, said in fo/data shall be clearly identified by italics and shall be clearly an notated with the word4 “PROPRIETARY” in bracke ts, i.e. [PROPRIETARY] immediately prior to and immediately following the proprietary info/data. All deliv erables shall contain a summary page cross-referencing proprietary info/data by page number and paragraph and shall contain a specific rationale as to why the info/data is considered proprietary.

AR 1345. In addition to these two cont ract provisions, the WRM II contract also incorporated by reference sections of th e Federal Acquisition Regulation (“FAR”) and Defense Federal Acquisition Regulation Supplement (“DFARS”) defining the Government’s right to contracto r-furnished data. See, e.g., AR 1346-48 (WRM II contract incorporating by reference FAR § 52.227-1 4 and DFARS §§ 252.227-7013 and 7016).

In his role as Logistics Ma nager for the WRM II contract and Chief of the Materiel Management Branch of the AMIC, Mr. Chap man assisted in developing the WRM III solicitation. Based on his experience with the WRM II contract, Mr. Chapman decided
that the eventual awardee of the WRM III should also be re quired to deliver life cycle reports on Government-furnished equipment. Chapman Decl. ¶ 7. As an example of the type of deliverables prospe ctive offerors would be requi red to produce, Mr. Chapman wanted to include a version of DynCorp’s lif e cycle reports as part of the solicitation’s performance work statement. Id. Accordingly, Mr. Chap man contacted Mr. Fyffe via email in early 2015, asking for “a current Life Cycle” and explaining that he “planned on using the March submittal to post to the new contract.” Chapman Decl., Attachment C (email exchange between Mr. Chapman and M r. Fyffe). On February 6, 2015, Mr. Fyffe replied to Mr. Chapman’s request and included as an e-mail attachment life cycle reports
for various Government-furnishe d equipment. Id. As with previous submitted life cycle reports, the February 6 report included DynCorp’s rate and fee data but contained no proprietary markings. Chapman Decl. ¶ 8. According to Mr. Chap man, in their e-mail exchange, Mr. Fyffe gave no indication of “any objections to the updated report being
released.” Id. As ultimate ly posted to FedBizOpps.gov, the WRM III solicitation included a copy of the 2012 life cycle sp readsheet submitted by Mr. Trotte r. Id. ¶ 9. According to Mr. Chapman, the 2012 “spreadsheet does not c ontain any data that Mr. Trotter, Mr. Fyffe, or any other DynCorp representative, ever told [him] was proprie tary or should be protected. To the contrary, the document cont ains the same rates that Mr. Fyffe released to [him] without re striction in other reports.” Id.

B. Disclosure and Mitigation Efforts

On August 5, 2015, Vectrus Systems Co rporation (“Vectrus”), a prospective offeror, contacted the Air Force after one of its employees alerted the Vectrus legal department that the WRM III solicitation incl uded “material that the company believes may contain proprietary informa tion from the incumbent contr actor.” AR 1225. At that point, the life cycle management list had be en available to the public through the FedBizOpps website for more than five months . After verifying that DynCorp’s profit and5 pricing data were in fact publicly availa ble on the FedBizOpps website, the agency
removed the solicitation and notifie d its legal department. Pl. Me m. at 12; AR 1220, 1225. On August 6, 2015, Contracting Officer Sheila Reshard-Bryant corresponded with Gregory Passig at Vectrus to ensure that all copies of the life cycle report would be destroyed. AR 1220. In a letter dated August 19, 2015, Vectrus’s Deputy General Counsel of Government Contracts, Tim Kobes, explai ned that only Vectrus’s Business Development Manager had actually viewed the pricing information and confirmed that the company had deleted all known copies of the file. AR 1225-26.

Also on August 6, Ms. Reshard-Bryant and another agency contracting officer contacted Robert Caldwell, Se nior Contracts Director at DynCorp, and identified the information that had been poste d publicly and the steps the ag ency was taking in response, namely, sanitizing the documents and reposting the solicitation. AR 1220. Initially, Mr.
Caldwell indicated that he “didn’t find it to be a big deal.” Id. However, upon further investigation and consideration of the sp ecific information released, Mr. Caldwell developed “serious concerns about the disclosu re.” Id.; Declarati on of Robert Caldwell (“Caldwell Decl.”) ¶ 8. In a letter to the Air Force dated August 17, 2015, Mr. Caldwell described DynCorp’s c oncerns as follows:

The disclosure of DI’s indirect rate and fee on its incumbent contract allows DI’s competitors to create a competitive target of [. . .] over direct cost to in clude all corporate indirect rates and profit. . . . Its 16 year performance as the incumbent
contractor has allowed DI to develop rates and fees that competitors with less or no expe rience would doubtless seek to emulate and undercut. It is pate ntly unfair for DI’s competitors . . . to benefit from DI’s 16 years of experience. . . . [W]ith the
disclosure of this informa tion, our competitors on this solicitation, and other contracts, will now be able to utilize the
disclosed information as a baseline from which to determine
their own rates and fees.

AR 1212-13. To remedy the alleged harm caus ed by the Air Force’ s disclosure, DynCorp requested nothing less than the cancellatio n of the WRM III solicitation coupled with a five-year extension of its current WRM II contract. 3 AR 1213. On August 27, 2015, the Air Force sent DynCorp a letter responding to th e contractor’s concerns. AR 1229-31. The
Air Force maintained that th e steps it had taken to mitig ate any competitive harm to DynCorp were sufficient and, accordingly, denied DynCorp’s request to cancel the
solicitation and extend the WRM II contract th rough a sole-source extension. AR 1229. The Air Force also noted that (1) the [. . .] award fee was not relevant to the WRM III solicitation as the Air Force was not requiri ng offerors to submit proposed award fee

3 According to Mr. Caldwell, it would take five y ears to negate any “Price Forwarding Rate” damage resulting from the information’s release. AR 1223.6 percentages, and (2) through Amendment 0 001, the Air Force removed the ability of offerors to propose indirect rates by provid ing fixed figures and requiring offerors to substitute those figures in their pr oposal calculations. AR 1230.

C. Current Protest

Unsatisfied with the Air Fo rce’s mitigation response, Dy nCorp filed a protest with the U.S. Government Accountability Office (“ GAO”) on October 9, 20 15. In its protest before the GAO, DynCorp ag ain sought to have the WR M III solicitation cancelled and requested that the GAO recommend it be issu ed a five-year sole-source extension for the contract. AR 1245. Finding that DynCorp’s protest was not timely filed, the GAO declined
to consider the merits of the protest. AR 1250. DynCorp th en filed a pre-award bid protest
with this Court on November 18, 2015. The motion for a preliminary injunction that accompanied DynCorp’s complaint was rendere d moot by the Air Fo rce’s voluntary stay of the solicitation. The parties have fully br iefed their respective mo tions for judgment on the administrative record, and the Court heard oral argument on February 9, 2016.

II. Discussion

A. Jurisdiction and Standing

Pursuant to the Tucker Act, as amende d by the Administrative Dispute Resolution Act of 1996, this Court has “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal ag ency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged viola tion of statute or regulation in connection with a procuremen t or a proposed procurement.” 28 U.S.C. § 1491(b)(1). Determining whether a bid proteste r has standing to pursue a claim in this Court “is a threshold jurisdictional issue” th at must be met in any protest. Myers Investigative & Sec. Servs. v. United Stat es, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (citing Steel Co. v. Citizens for a Better Env’t, 523 U. S. 83, 102-04 (1998)). To establish standing under the Tucker Act, an aggrieved protester must demonstrate that it is an “interested party” by showing that it is “an actual or prospective bi dder or offeror whose direct
economic interest would be affect ed by the award of the contract or by failure to award the
contract.” Am. Fed’n of Go v’t Emps. v. United States, 25 8 F.3d 1294, 1302 (Fed. Cir. 2001) (quoting 31 U.S.C. § 3551(2) (Supp. IV 1998)). DynCorp, as the incumben t offeror, timely submitted a compliant proposal in resp onse to the WRM III solicitation. Thus, the Government does not dispute, and the Court ag rees, that DynCorp has standing to bring this action as an interested party.

B. Standard of Review

In a bid protest, this Court reviews an ag ency’s decision pursuant to the standards
set forth in the Administrative Procedure Act (“APA”). 5 U.S.C. §§ 701-706 (2000); see also Impresa Construzioni Ge om. Domenico Garufi v. Unite d States, 238 F.3d 1324, 13327 (Fed. Cir. 2001) (stating that the APA standard of review shall apply in all procurement protests in the Court of Federal Claims). Un der the APA, a reviewing court shall set aside an agency action if it is “arbitr ary, capricious, an abuse of di scretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see, e.g., Ban knote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350-51 (Fed. Cir. 2004). This standard of review is “a
narrow one.” Citizens to Preser ve Overton Park, Inc. v. Vo lpe, 401 U.S. 402, 416 (1971) (citations omitted).

Under the APA standard, this Court must sustain an agency official’s decision
unless that decision lacked a rational basis or the agency’s decision-making involved a violation of regulation or procedure. Impresa, 238 F. 3d at 1333. When evaluating a challenge on the first ground, a court “must determine ‘whether the contracting agency provided a coherent and reasonable explanati on of its exercise of discretion. When a challenge is brought on the s econd ground, the disa ppointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.’” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (quoti ng Impresa, 238 F.3d at 1332– 33 (Fed. Cir. 2001)).

C. Waiver

DynCorp asks the Court to find that the Air Force caused it competitive harm by disclosing its indirect rate a nd fee data and that its decisi on to proceed with the WRM III
solicitation after the disclosure was unreasonabl e. Compl. ¶¶ 5-7. Additionally, DynCorp
claims that the Air Force’s d ecision to continue with the procurement violates sections 1.602-2(b) and 3.101-1 of the FAR, the Procurement Integr ity Act (“PIA”), 41 U.S.C. §

423 et seq.

, and the Government’s implied-in-fact c ontract obligations to DynCorp as a “bidder-claimant.” Compl. ¶¶ 53- 71 (“The government is said to breach [an] implied in
fact contract if its considerati on of offers is found to be arb itrary and capricious toward the bidder-claimant.”) (citing Southfork Systems, Inc. v. United States, 141 F.3d 1124, 1132 (Fed. Cir. 1998) (quotations and citation omitte d). DynCorp believes that the Air Force’s mitigation efforts after discovering the disclosure were inadequate and insists that the only acceptable solution is for the Air Force to issue a sole source award of the WRM III contract to DynCorp. Compl. ¶ 7.

The Government argues that, assuming the information it releas ed was proprietary, the Air Force reasonably found that it suffici ently mitigated any co mpetitive harm that could have resulted from the release. However, the Government maintain s that this protest
can be decided on the issue of waiver. Namely, the Government argues that DynCorp waived any protections or rights to relie f it may have had when it repeatedly and consistently failed to treat its data as propriet ary. See Gov’t Reply at 2-7. According to the Government, the central flaw in this protes t is that DynCorp attempts to fault the Air Force for releasing data “that DynCorp itself did not treat as confidential, and which therefore cannot be entitled to protection as a matter of law.” Gov’t Reply at 1. When considering a motion for judgment on the administrative record, this Court must determine8 whether, “given all the disputed and undisputed facts, a party has me t its burden of proof
based on the evidence in the record.” DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653, 661 (2010) (c iting Bannum, Inc. v. United States, 404 F.3d 1346, 1356-57 (Fed. Cir. 2005)). Based on the record before the Court in this protest, the Court is of the opinion that DynCorp has failed to show it took the necessary measures to mark or otherwise protect its data, resulting in a waiver of the various protections from disclosure
it seeks to invoke here.

“A waiver is ordinarily an intentiona l relinquishment or abandonment of a known right or privilege.” J ohnson v. Zerbst, 304 U.S. 458, 464 (19 38). To be effective, a waiver “must be a voluntary, knowing and intelligent act done with sufficient awareness of the
relevant circumstances and likel y consequences.” Am. Airlin es, Inc. v. United States, 77 Fed. Cl. 672, 681 (2007) (quotations and citati ons omitted). “Waiver requires only that the party waiving such right do so ‘voluntarily ’ and ‘knowingly’ based on the facts of the
case.” Seaboard Lumber Co. v. United St ates, 903 F.2d 1560, 1563 (1990) (citing Brookhart v. Janis, 384 U.S. 1, 4, 5 (1966)). Although a waiver must be voluntary and knowing, it “need not be express, but may be inferred from a pattern of conduct.” Am. Airlines, Inc., 77 Fed. Cl. at 681; see al so, Seaboard Lumber Co., 903 F.2d at 1563 (“Waiver can be either express or implied.” (citations omitted)).

This Court has held that a contractor’s failu re to properly mark deliverable data with the appropriate restrictive indi cators will result in the governme nt gaining full use of that data. Night Vision Corp. v. United States, 68 Fed. Cl. 368, 380 (2005) (explaining that “[a] failure to use the appropriate legend re sults in the government receiving complete, unrestricted use.”). Similarly, “sections of the FAR which limit the government’s rights in proprietary data developed by co ntractors have consistently been interpreted in this vein.” Id.; accord Ervin & Assocs., Inc. v. United Stat es, 59 Fed. Cl. 267 (200 4) (holding that the government obtained unlimited da ta rights when the contractor failed to mark delivered data with a “Limited Rights Notice” as prescrib ed in 48 C.F.R. § 52.2 27-14). A restrictive marking or legend “alert[s] a ll government officials—even t hose unfamiliar with the data rights of the contractor—that data is consid ered proprietary and is inappropriate for
dissemination. . . . The least cost burden in su ch instances rests with the contractor, who can easily apply an appropriate legend to the proprietary data.” Night Vision Corp., 68 Fed. Cl. at 381. Accordingl y, by failing to appropriately identify data a contractor considers proprietary, a contractor who has both the knowledge and ability to do so can forfeit its right to claim that data should be subject to protection.

Pursuant to the WRM II contract between DynCorp and the Air Force, the government expressly acquired “unlimited rights to all deliver ables procured under [the] contract.” AR 1342. Certainly, as the Go vernment acknowledges, this language did not authorize the Air Force to release proprietary data. In fact, to guard against such a possibility, the WRM II contract included a section dedicated to explaining how to flag proprietary deliverables. AR 1345. Thus, as the Government explains, “[t]he point is not that the WRM II contract perm itted the Government to re lease DynCorp’s proprietary9 information. It did not. Rather, the poi nt is that the contract provided DynCorp notice that unrestricted reports could be released publicly (and detailed the ways in which confidential data should be marked).” Gov’t Reply at 4 (emphasis in original). In light of this notice, the fact that DynCorp officials (1) consisten tly failed to flag the life cycle management reports as proprietary over a pe riod of years, (2) raised no ob jections when informed that the Air Force planned to incl ude these reports in the WRM III solicitation, and (3) failed to object to the inclusion of those reports fo r more than five months after the they were made publicly available on FedBizOpps.g ov—in the very solicitation upon which DynCorp was bidding—creates a patte rn of consistent action that effectively gives rise to the implication that DynCorp knowingly waived protection for its information. See, e.g., Am. Airlines, Inc., 77 Fed. Cl. at 680 (noting that a party’s knowing and deliberate waiver of a right “may be inferred fro m a pattern of conduct”). As the party with the least cost burden and greater understanding of its own data, it was up to DynCorp to properly mark any proprietary information it delivered to the Air Force. DynCorp may not now come before this Court seeking legal protection fro m disclosure of data rights it consistently
failed to assert.

Finally, DynCorp insists that the Air Fo rce’s decision to remove and sanitize the solicitation and to require sworn statements fro m offerors affirming that they destroyed any copies “demonstrate a high degree of concern regarding the Agency’s improper disclosure of proprietary information.” Pl. Repl y at 3. The Court is not convinced that the
Air Force’s decision to remove the solicitation and clear the rate and fee data after it was contacted by a concerned offeror is tant amount to an admission of wrongdoing on the agency’s part. As the Government has explai ned, “[i]n its discussions with DynCorp and the resulting administrative proc eedings, the Air Force did no t conduct a detailed analysis of whether the data at issue is, in fact, protected—rather, the Air Force assumed that it was, and focused on devising the most appropriate means to remedy the harm to DynCorp.” Gov’t Mot. to Supplement at 4 (emphasis in original) (citing AR 1229-31 (Contracting Officer’s final decision about appropriate remedial action)). The Court finds the Air
Force’s chosen course of conduct reasonable in light of the information it had at the time and refuses to interpret its pr ecautionary remedial measures as an admission of fault.

D. Reasonableness

In addition to finding that DynCorp waived any right to claim that its fee and award data should have been protected, the Court finds that the Air Forc e’s mitigation efforts were a reasonable solution to the apparent proble m presented by the release of the data. As published on FedBizOpps.gov, the life cycle management spreadsheet included DynCorp’s
indirect rate and award fee data from its WRM II contract. To remove the possibility that DynCorp’s competitors c ould benefit from access to the indi rect rate, the Air Force issued an amendment that required o fferors to use fixed “plug” fi gures, rather than a proposed rate, in their calculations, th ereby removing the competitive variable from that portion of the solicitation. AR 1230; AR 838-70 (Amendment 0001). As to the award fee, the Air
Force determined that offerors would not gain a competitive advantage from access to that10 information because the WRM III solicitation stipulates a set fee and therefore offerors were not asked to submit proposed award fee percentages, as they had been for the WRM II solicitation. AR 1230. DynCorp’s additi onal contentions that it s competitors may be able to gain a competitive advantage by applyi ng the indirect rate to other contract line item numbers are speculative and implausible. Given the information available to the Air Force and subsequently presented to this Co urt, the Court agrees that the agency’s
remediation efforts were reasonable and that its decision to proceed with the procurement in light of those efforts also was reasonable.

III. Conclusion

Based upon the foregoing, the Court DI SMISSES DynCorp’s claims as barred by the doctrine of waiver, and GRANTS the Government’s Motion for Judgment on the
Administrative Record.

IT IS SO ORDERED.

s/ Thomas C. Wheeler

THOMAS C. WHEELER Judge