Note: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-5092

PRECISION STANDARD, INC., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee, and

HAWK ENTERPRISES, LLC, Defendant.

Joseph A. Camardo, Jr. , Camardo Law Firm, P.C., of Auburn, New York, for plaintiff-appellant. Anuj Vohra , Trial Attorney, Commercial Litigat ion Branch, Civil Division, United States Department of Justic e, of Washington, DC, for defendant-appellee. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Franklin E. White, Jr. , Assistant Director. Of counsel were Doris Finnerman and Joseph A. Pixley , Trial Attorneys. Appealed from: United States Court of Federal Claims Judge Emily C. HewittNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-5092 PRECISION STANDARD, INC., Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee, and HAWK ENTERPRISES, LLC, Defendant.

_______________________ DECIDED: April 6, 2007

_______________________ Before MICHEL, Chief Judge , ARCHER, Senior Circuit Judge , and DYK, Circuit Judge

. PER CURIAM. Precision Standards, Inc. (“PSI”) appeals t he United States Court of Federal Claims’ award of judgment on th e administrative record in favor of the United States. Precision Standard v. United States , No. 05 -1125 C (Fed. Cl. Feb. 27, 2006). Because we find no error in the trial c ourt’s thorough opinion, we affirm

.I This post-award bid protest case arises from a solicitation for aircraft window assemblies for the Black Hawk helicopter. T he solicitation provided that “Bids/offers shall be evaluated and award made to the responsive, responsible offeror whose offer represents the lowest overall cost to the [g]overnment.” Hawk Enterprises, LLC (“Hawk”) was awarded the contract. PSI f iled a bid protest acti on in the Court of Federal Claims, asserting that the government (acting thr ough the United States Army Aviation and Missile Command) did not comply with the “sour ce approval” provision of the solicitation; failed to make a proper responsibility determinat ion; and failed to ascertain whether Hawk complied with the “lim itations on subcontracting” provision of the solicitation. Concluding that the gover nment’s decision to aw ard the contract to Hawk was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the tria l court granted the government’s motion for judgment on the administrative record. PSI then filed a motion for reconsideration, which the trial court denied. PSI now appeals, asserting the same three errors in the government’s award of the contract to Hawk. We have jurisdiction pursuant to 28 U.S.C § 1295(a)(3).
II We review the grant or denial of a j udgment on the administrative record without deference. Information Tech. & Applications Corp. v. U.S. , 316 F.3d 1312, 1318-19 (Fed. Cir. 2003). Thus, we apply the same standard as the trial c ourt, and we will not disturb an agency decision unless it is arbitrar y, capricious, an abuse of discretion, or

2006-5092 2otherwise not in accor dance with law. Bannum, Inc. v. United States , 404 F.3d 1346, 1351 (Fed. Cir. 2005). As the trial court noted, in order to sustain a challenge to a contract award, the challenger must show a prejudicial violat ion of an applicable regulation. Impresa Construzioni Geom . v. United States , 238 F.3d 1324, 1333 (Fed. Cir. 2001). PSI asserts that Hawk failed to meet the sour ce approval requirement—because it was not listed as an approved source (in fact, ther e were no approved sour ces listed)—and did not seek source approval during the procur ement process. Because there were no approved sources listed, PSI was likewise not an approved source and did not seek approval during the procurement process. 1 Thus, there was no prejudice to PSI in the government’s failure to require compliance wit h the source approval requirement. If the government had required t he source approval provision to be fulfilled, PSI also would have been excluded from consider ation. PSI’s arguments to the contrary are not persuasive. PSI next argues that the contracting offi cer failed to make a proper responsibility determination. We have previously held th at contracting officers have broad discretion in making responsibility determinations. See Impresa , 238 F.3d at 1334-35. In this case, the trial court found that there was an absence of documentation as to what the contracting officer considered when making his responsibility determination. The trial court, therefore, requested addi tional documentation from t he agency to ascertain what

1 PSI was the incumbent contractor for the Black Hawk window assemblies and, therefore, had a First Arti cle waiver—which means that PSI did not have to submit a first article to the government for approv al. This does not change the fact that PSI was not an approved source.

2006-5092 3the contracting officer considered when ma king his decision. The agency submitted a declaration from the contracti ng specialist, Mr. Key. We find no error in this course of action. See Citizens to Preserve Over ton Park, Inc. v. Volpe , 401 U.S. 402, 420 (1971); Impresa , 238 F.3d at 1339. As noted by the trial court in its recons ideration decision, Mr. Key worked closely with the contracting officer in making his contract award, and the Key declaration was helpful to the trial court in explaining what the contracting officer considered in making the responsibility determinat ion. Precision Standard, Inc. v. United States , No. 05-1125 C, at *5, n2 (Fed. Cl. May 2, 2006). Like the trial cour t, we see no contradiction between the Key declaration and other doc uments in the administrative record. The Key declaration showed that the c ontracting officer directed the local Defense Contract Managem ent Agency office to conduct a search of its Mechanization of Contract Administrative Services Da tabase to determine whether Hawk was a responsible offeror. 2 Additionally, the contracting o fficer searched the Consolidated List of Debarred, Suspended, and I neligible contractors. None of these searches revealed any negative information concerning Hawk. A ccordingly, we agree with the trial court that this was sufficient to provide a basis fo r the contracting officer’s determination that Hawk was a responsible bidder. Finally, PSI argues that Hawk “cannot and does not” meet the contract’s limitation on subcontracting. When reviewing complianc e with the limitation on subcontracting clause at the time of contra ct award, the court considers whether “’a

2 A search of that database indica tes whether there are any delinquencies associated with contracts previously award ed to the offeror who is the object of the search.

2006-5092 4proposal, on its face, should lead an agency to the conclusion that an offeror could not and would not comply with the subcontracting limitation.’” Chapman Law Firm v. United States , 63 Fed. Cl. 519, 527 (2005), aff’d , No. 05-5042, 2006 WL 222840 (Fed. Cir. Jan. 12, 2006) (quoting In re Coffman Specialties, Inc. , Nos. B-284,586, B-284,546.2, 2000 WL 572693, at *5 (Comp. Gen. June 18, 2004)). Here, the solicitation expressly stated that small business bidder s, such as Hawk, were not required to submit a subcontracting plan that would demonstrate their compliance with the limitation on subcontracting. Because Hawk provided price information but no subcontracting plans, there was no information prior to contract award to suggest t hat Hawk would not comply with the subcontracting limitat ion requirement. Accordingl y, we conclude that the contracting officer acted reasonably in as suming that Hawk would comply with the provisions of the contract and in making the award. PSI argues that documentation furnished s ubsequent to contract award supports its contention that Hawk cannot comply with the subcontracting requirement. As recognized by the trial court, such information is not relevant to a review of the contracting officer’s determination prior to contract award. Accordingly, for the reasons stated above, we affirm the Court of Federal Claims’ grant of judgment on the administrative record.

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