In the United States Court of Federal Claims

Nos. 15-215C, 15-272C, and 15-330C (consolidated)

(Filed Under Seal: May 28, 2015)

(Reissued: June 5, 2015)

PER AARSLEFF A/S,

Plaintiff,

v.

UNITED STATES,

Defendant,

 and

EXELIS SERVICES A/S,

 Defendant-Intervenor.

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Consolidated post-award bid protests; 

limitation on competition due to 

international agreement; 10 U.S.C. 

§ 2304(c); FAR § 6.302.4; inapplicability 

of bar on jurisdiction over actions based 

on treaty; 28 U.S.C. § 1502; mistake in a 

critical eligibility criterion; latent defect

discovered by procuring agency prior to 

award but not corrected; considerations 

affecting equitable relief 

Paul A. Debolt, Venable LLP, Washington, D.C., for Per Aarsleff A/S, plaintiff in 

No. 15-215C. With Mr. Debolt on the briefs and at the hearing was James Y. Boland, Venable 

LLP, Tysons Corner, Virginia. With him on the briefs was Anna E. Pulliam, Venable LLP, 

Tysons Corner, Virginia. 

James J. McCullough, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, D.C. 

for Greenland Contractors I/S, plaintiff in No. 15-272C. With Mr. McCullough on the briefs 

and at the hearing was Michael J. Anstett, Fried, Frank, Harris, Shriver & Jacobson LLP, 

Washington, D.C. With him on the briefs were Aaron T. Tucker and Samuel W. Jack, Fried, 

Frank, Harris, Shriver & Jacobson LLP, Washington, D.C. 

Kevin J. Cosgrove, Hunton & Williams LLP, Norfolk, Virginia for Copenhagen Arctic 

A/S, plaintiff in No. 15-330C. 

 William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington, D.C., for the United States. With Mr. Rayel on the 

briefs were Benjamin C. Mizer, Acting Assistant Attorney General, United States Department of 

Justice, Washington, D.C., Robert E. Kirschman, Jr., Director, and Scott D. Austin, Assistant 

Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, 

Washington, D.C. 

 
2

 Kevin P. Connelly, Vedder Price P.C., Washington, D.C. for Exelis Services A/S. With 

Mr. Connelly on the briefs were Eric J. Marcotte, Marques O. Peterson, Kelly E. Buroker, and 

Caroline A. Keller, Vedder Price P.C., Washington, D.C. 

 OPINION AND ORDER1

LETTOW, Judge. 

In this tripartite bid protest, plaintiffs Per Aarsleff A/S (“Per Aarsleff”), Greenland 

Contractors I/S (“Greenland Contractors”), and Copenhagen Arctic A/S (“Copenhagen Arctic”)

challenge the decision of the United States Department of the Air Force Space Command (“Air 

Force” or “government”) to award a contract to Exelis Services A/S (“Exelis Services”) under 

Request for Proposals (“RFP” or “Solicitation”) No. FA2523-12-R-0006 to operate, maintain, 

and support Thule Air Base, a United States Air Force Base located in a remote area of 

northwestern Greenland. Although all four offerors in this Solicitation were rated as technically 

acceptable by the Air Force, Exelis Services received the contract (“Thule Contract”) based upon 

the Air Force’s evaluation that it had the lowest-price, technically acceptable proposal. 

 

All three plaintiffs argue that the award to Exelis Services was improper because Exelis 

Services is a wholly owned Danish subsidiary of an American company, and therefore, it failed 

to meet an eligibility requirement set forth in the RFP that limited participation to Danish or 

Greenlandic businesses. Copenhagen Arctic and Greenland Contractors contend that the Air 

Force committed further error by failing to evaluate compliance with a requirement in the RFP 

that offerors maximize subcontracts from Danish and Greenlandic sources and, to the extent that 

using a Danish or Greenlandic subcontractor was not feasible, to justify the use of a foreign 

subcontractor. Greenland Contractors also avers that the Air Force engaged in misleading 

discussions regarding Greenland Contractors’ proposed price and failed to evaluate whether the 

other offerors had justified their significantly lower pricing. In these circumstances, plaintiffs 

request injunctive relief setting aside the contract with Exelis Services and requiring the agency 

to reevaluate their proposals under the terms of the RFP, consistent with international 

agreements. 

The protestors previously raised similar claims before the Government Accountability 

Office (“GAO”), which denied relief in a decision dated February 18, 2015. See Per Aarsleff 

A/S, B-410782, et al., 2015 CPD ¶ 86, 2015 WL 1004252 (Comp. Gen. Feb. 18, 2015). 

 

1Because this opinion and order might have contained confidential or proprietary 

information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims 

(“RCFC”) and the protective orders entered in these consolidated cases, it was initially filed 

under seal. The parties were requested to review this order and to provide proposed redactions 

of any confidential or proprietary information. The resulting redactions are shown by brackets 

enclosing asterisks, e.g., “[***].” Editorial changes have also been made. 
3

Each of the three plaintiffs has submitted motions for judgment on the administrative 

record pursuant to RCFC 52.1(c)(1), and the government and Exelis Services have filed crossmotions for judgment. The motions have been fully briefed and were addressed at a hearing held 

on May 22, 2015. The case is now ready for disposition. 

FACTS2

A. Thule Air Base 

1. Location and environment. 

Thule Air Base is sited in an austere area of the world, surrounded by glaciers and North 

Star Bay. AR 83-4608 (Thule Air Base Acquisition Plan (approved Mar. 3, 2014)).3 

Specifically, this northernmost military installation is located in northwestern Greenland, 

approximately 600 miles north of the Arctic Circle and 900 miles south of the North Pole. AR 

20c-668 (Contracting Officer’s Statement of Facts (Dec. 12, 2014)). Due to its position within 

the Arctic Circle, the ground of the Air Base is permanently frozen to a depth of at least 1,000 

feet throughout the year. AR 83-4607. Temperatures are severe, averaging from 0 to -30 

degrees Fahrenheit during the winter months and dropping to -75 degrees Fahrenheit with wind 

chill. Id. While the days are 24 hours long from April through August, there is no sunlight 

between November and January. Id. The “storm season,” in which Thule Air Base faces the 

most extreme weather conditions, occurs from September 15 through May 15. Id. 

By virtue of its location, Thule Air Base offers strategic military advantages in the Arctic 

region. Its mission is to “provide early warning and attack assessment of ballistic missile 

launches, provide space surveillance data and . . . provide tracking, telemetry and command[] . . . 

of earth orbiting satellite vehicles.” AR 88-5270 (Solicitation No. FA2523-12-R-0006). These 

 

2The recitations that follow constitute the court’s findings of fact based on the 

administrative record of the procurement filed pursuant to RCFC 52.1(a), see Bannum, Inc. v. 

United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (noting that bid protest proceedings 

“provide for trial on a paper record, allowing fact-finding by the trial court”), and the parties’ 

evidentiary submissions related to prejudice and equitable relief, see Holloway & Co. v. United 

States, 87 Fed. Cl. 381, 391 n.12 (2009) (“It is the responsibility of th[e] court, not the 

administrative agency [conducting the procurement], to provide for factual proceedings directed 

toward, and to find facts relevant to, irreparability of harms or prejudice to any party or to the 

public interest through grant or denial of injunctive [or declaratory] relief.”) (quoting PGBA, 

LLC v. United States, 60 Fed. Cl. 567, 568 n.1 (2004), aff’d, 389 F.3d 1219 (Fed. Cir. 2004)). 

3Citations to the administrative record refer to the record filed on March 18, 2015 in the 

protest of Per Aarsleff and the records filed on April 7, 2015 and April 15, 2015, which 

supplement and amend the administrative record based on the protests of Greenland Contractors 

and Copenhagen Arctic, respectively, and with further relevant materials located by the agency. 

The record is paginated sequentially and is also divided into tabs. In citing to the administrative 

record, the court will first designate the tab, followed by page number, e.g., AR 83-4608 refers to 

page 4608, which is located in tab 83 of the record. 
4

responsibilities specifically include “sea-launched and intercontinental ballistic missile attack 

warning and assessment for the 21st Space Wing (21 SW), space surveillance for 21 SW, and 

satellite telemetry, tracking, and command for the 50th Space Wing (50 SW).” AR 83-4603. In 

addition, Thule Air Base supports both the Canadian and Danish Arctic weather stations. Id. 

The Arctic environment also makes Thule Air Base a suitable location for a variety of Arctic 

research operations conducted by agencies of the United States, foreign governments, academia, 

and private entities. 

The Defense Area of Thule Air Base is approximately 275 square miles. AR 83-4608. 

The Defense Area and adjacent land lack paved roads and amenities common on most military 

installations, such as banks, a commissary, and fast food chains. Id. There is no “downtown” 

area and the closest village, Qaanaaq (population 700), is located 75 miles away, accessible by 

helicopter or dogsled during the winter and by boat during the summer. AR 83-4648. Unlike a 

majority of bases serving the United States military, all personnel supporting Thule Air Base live 

within the Thule Defense Area in facilities provided by the United States government. Id. Thule 

Air Base houses 700 to 900 individuals, with the highest number of staff living on the base 

during the summer construction season. AR 83-4603. 

Given the harsh Arctic environment, profound logistical challenges arise in supplying 

fuel, materials and non-perishable items to individuals working and living on Thule Air Base. 

AR 83-4608. The seaport is only available during several summer months; for the remaining 

months, airlift is the sole type of transportation to and from the base. Id. Thule Air Base has a 

lengthy runway that is not always fully available. Prelim. Inj. Hr’g Tr. 103:8-23 (Apr. 2, 2015).4

 

Specifically, large planes will be unable to land at Thule Air Base this summer. Prelim. Inj. Hr’g 

Tr. 104:3-10.5 Also, flight delays and cancellations are not infrequent during the winter, which 

can “result[] in passengers, cargo (including mission-critical parts and subsistence) being 

stranded at the originating or en-route airport.” AR 83-4608.

2. Bilateral agreements and understandings. 

With the exception of foreign policy and defense, which is within the competence of the 

Kingdom of Denmark, Greenland is a self-governing entity of the Danish government. AR 83-

4606. Thule Air Base was created pursuant to the 1951 Defense of Greenland Agreement (“1951 

Agreement”) between the governments of the United States and Denmark. See AR 83-4765

(Defense of Greenland Agreement, 2 U.S.T. 1485 (signed Apr. 27, 1951 and effective June 8, 

1951)). “The 1951 Agreement is the foundational agreement for the presence of the U.S. armed 

forces in Greenland and was entered into . . . ‘in accordance with the principles of self-help and 

mutual aid, and having been requested by the North Atlantic Treaty Organization (NATO) to 

negotiate arrangements under which armed forces of the parties to [NATO] may make use of 

 

4Further citations to the transcript of the preliminary injunction hearing will omit 

reference to the date. 

5Limited flights from the United States and Copenhagen, Denmark are regularly 

scheduled but frequently must be cancelled due to weather and other circumstances. AR 83-

4608. 
5

facilities in Greenland in defense of Greenland and the rest of the North Atlantic Treaty area.’”

AR 32-2650 ¶ 5 (Legal Opinion of Kevin A. Doherty (Jan. 26, 2015)) (citing 1951 Agreement). 

Under its terms, the Air Force is permitted “rent-free use of the land on which Thule Defense 

Area is located.” AR 83-4648. 

Since the inception of Thule Air Base, the United States and Danish governments have 

engaged in negotiations regarding contractual opportunities to support the base. See, e.g., AR 

20zf-1463 to 1464 (Letter from William Thurman to Air Force Regarding Danish Participation 

in U.S. Defense Projects in Greenland (Aug. 29, 1962)); see also Def.’s Opp’n to Pls.’ Motions 

for Prelim. Inj. App. (“Def.’s Opp’n to Pls.’ Mots. for Prelim. Inj.”) App. at 50, ECF No. 41 

(Joint Statement of the United States and the Kingdom of Denmark on the Resolution of the 

Thule Base Maintenance Contract Acquisition Matter (Mar. 2015) (“Joint Statement”)) (“For 

more than 60 years, the Kingdom of Denmark, including Greenland, and the United States have 

cooperated to provide for the defense of Europe and North America through mutually beneficial 

operations at Thule Air Base.”).6 In June of 1962, an Aide Memoire was drafted by the United 

States Department of State (“State Department”) to explicate certain provisions of the 1951 

Agreement. AR 20zf-1465 to 1470 (Aide Memoire (June 6, 1962)). Specifically, the Aide 

Memoire “[wa]s made . . . with regard to future Danish participation in work in United States 

defense projects in Greenland.” AR 20zf-1465. Its objective was to ensure that Danish 

participation in defense projects in Greenland was as great as possible and to allow Danish 

concerns to participate more fully in the operation of support at Thule Air Base. AR 20zf-1467 

to 1469.

In 1991, a Memorandum of Understanding between the two countries stated that “either 

[p]arty may award contracts to commercial enterprises for goods and services, including 

construction projects, in Greenland and may procure directly from any US or Danish 

/Greenlandic source . . . .” Memorandum of Understanding Between the Government of the 

United States of America and the Government of the Kingdom of Denmark (Including the Home 

Rule Government of Greenland) Use of Sondrestrom Aviation Facility Kulusuk Airfield and 

Other Matters Related to United States Military Activities in Greenland (“1991 MOU”), art. IV, 

¶ 1, Mar. 13, 1991, T.I.A.S. No. 12285. During the years 2008 and 2009, the United States and 

Danish governments collaborated to amend the 1991 MOU with the following text: 

In accordance with their respective laws and regulations, either [p]arty may award 

contracts to commercial enterprises for goods and services, including construction 

projects, in Greenland, and shall procure directly from Danish/Greenlandic 

sources. When procurement from such sources is not feasible, U.S. requirements 

may be satisfied by procurement from U.S. or other sources. Either [p]arty may 

use its own military or civilian personnel to perform services or construction 

projects. 

 

6The Joint Statement was signed during the pendency of these consolidated cases and is 

not part of the administrative record of the procurement. See Def.’s Opp’n to Pls.’ Mots. for 

Prelim. Inj. App. at 50. It was provided by the government in connection with the court’s 

consideration of equitable factors. See id. at 57-58. The Joint Statement is addressed in detail 

infra, at 19. 
6

AR 20z-1443 (Diplomatic Note (Jan. 27, 2009)) (emphasis added). The revision stated in the 

Note replaced Article IV, paragraph one of the 1991 MOU and “constitute[d] an Agreement 

between [the] two governments,” which entered into force on January 27, 2009. See AR 20z1443 to 1444; see also AR 147-11598 (Thule Base Maintenance Contract Recommendation) 

(setting out the State Department’s acknowledgment that it was “bound by the . . . language from 

our . . . diplomatic note to the Government of Denmark amending the language of Article IV of 

the March 13, 1991 [MOU] between the United States and Denmark (including Greenland).”). 

Consistent with these international agreements, officials from the Air Force and the State 

Department entered into discussions with Danish Ministry of Finance officials during the Spring 

of 2013 to determine whether offerors qualified as “Danish/Greenlandic sources” for the purpose 

of a Thule Air Base solicitation. See AR 20c-673. As the two countries were negotiating the 

eligibility requirements, the Danish Ministry of Foreign Affairs intimated that it would not make 

the eligibility determination because of obligations with European Union procurement 

regulations and it would likely recommend that the government of Greenland step in, since it is 

not part of the European Union. See AR 147-11587 (E-mail from [***] to [***], et al. (Nov. 1, 

2013)). This recommendation presented a conflict of interest, however, because the incumbent 

contractor, Greenland Contractors, is partially owned by the government of Greenland. See id.; 

see also AR 147-11606 (E-mail from Patrick King to [***] (Nov. 5, 2013)). 

To avoid such a conflict, a State Department official at the United States Embassy in 

Denmark suggested establishing a “simple, transparent checklist of requirements” that could be 

used for making eligibility determinations. AR 147-11586 (E-mail from [***] to [***], et al. 

(Nov. 4, 2013)) (“If the involvement of the Greenlandic government really is a showstopper, 

then we could look at an earlier [Air Force] concept of us establishing a simple, transparent 

checklist of requirements for tender participation - company must have a headquarters in the 

Kingdom, pay taxes in the Kingdom, bank in Kingdom, etc.”). After consulting with the Air 

Force, the State Department prepared a draft memorandum setting forth proposed criteria for 

eligibility: 

- the primary bidder must be registered as a Danish company 

with the Danish Business Authority — demonstrated by a CVR 

number . . . and a listing within the Central Business Registry 

identifying them within a legal category of Danish businesses 

(not as a subsidiary of a foreign company); 

- payable through a Danish bank account; 

- maintaining a physical[] presence in the Kingdom of Denmark. 

AR 147-11600.

7

 

7

“CVR” is an acronym for “Det Central Virksomhedsregister.” “The Central Business 

Register (‘CVR’) is the central register containing primary data on all businesses in Denmark, 
7

During this time and in furtherance of its proposal to create a “simple, transparent, 

checklist of requirements,” AR 147-11586, a State Department officer, [***], sent an e-mail to 

the contracting officer, Patrick King, regarding the requirements for conducting business in 

Denmark, AR 20f-873 (E-mail from [***] to [***], King, and Major John Schoonmaker (Nov. 4, 

2013)). Mr. [***] informed Mr. King that “[i]n the searchable part of the CVR there is an 

information point called ‘type of company/virksomhedsform’ that has ‘subsidiary of foreign 

company’ as a possibility, so there is a way to see if the company is fully registered as Danish or 

acting as a foreign subsidiary in Denmark.” Id. (emphasis added).8

 Accordingly, the United 

States government was under the belief, later proved to be mistaken, that registering in the CVR 

would permit the Air Force to determine whether an offeror was genuinely a Danish or 

Greenlandic entity or was merely acting as a subsidiary of a foreign company. 

On November 25, 2013, the Danish Ministry of Foreign Affairs proposed criteria that 

would limit eligibility to Greenlandic companies: namely, “the enterprise [must be] registered

. . . under the legislation applying to Greenland . . . [, t]he registered office of the enterprise 

[must] be in Greenland and the management of the [contract] [must] be performed in Greenland 

. . . [, and] [t]he enterprise [must] abide by the labour laws in Greenland.” AR 147-11632 

(Criteria for Greenlandic Enterprise). In response, the State Department indicated that limiting 

competition to Greenlandic enterprises was a “departure from the status quo and beyond what [it 

has] committed in [the] MOU with Denmark.” AR 147-11631 (E-mail from [***] to [***], et al.

(Nov. 25, 2013)); see also AR 147-11620 (E-mail from Esther McClure to Robert Borchert and 

John Culton (Nov. 8, 2013)) (quoting statement from Danish General Jorgen Jacobson that “[w]e 

want to keep the status quo concerning the spirit of the 1951 [A]greement”); AR 147-11613 (Email from [***] to Nauja Bianco (Nov. 7, 2013)) (reiterating the United States’ “commit[ment] 

to sourcing from Danish/Greenlandic sources as stated in [the] MOU and [that it was] willing to 

adjust whatever mechanism and criteria Denmark and Greenland determine[d] [we]re most 

appropriate for defining these sources”). 

 

regardless of economic and organizational structure. [The] CVR also covers both public and 

private businesses.” AR 20f-873. 

8Mr. [***] is stationed at the United States Embassy in Denmark. See AR 251-28251 

(Copenhagen Arctic’s Response to Air Force Mem. of Law in the proceedings before GAO) 

(citing a LinkedIn Biography of Mr. [***]). Greenland Contractors contends that when looking 

into whether the CVR could identify a company as a subsidiary of a foreign company, Mr. [***] 

“mistranslated the word ‘filial’ in Danish to mean ‘subsidiary,’ when that word in fact means 

‘branch’ or ‘branch official.’” Mem. of Greenland Contractors in Support of Its Mot. for 

Judgment on the Admin. Record (“Greenland Contractors’ Mot.”) at 12, ECF No. 62-1; see also 

Copenhagen Arctic’s Mot. for Judgment and Supporting Mem. on the Admin. Record 

(“Copenhagen Arctic’s Mot.”) at 17-18, ECF No. 61 (stating that two options available on the 

CVR form were: (1) “‘[f]ilialer af udenlandske aktieselskaber’ (in English: [b]ranch of a foreign 

owned public limited company);” and (2) “‘[f]ilialer af udenlandske anpartsselskaber’ (in 

English: [b]ranch of a foreign owned private limited company).”); compare http://en.bab.la 

/dictionary/danish-english/filial (translating the Danish word “filial” to “branch” in English), 

with http://en.bab.la/dictionary/english-danish/subsidiary (translating the English word 

“subsidiary” to “datterselskab” in Danish).
8

During a meeting held on December 2, 2013, the two countries ultimately settled on 

eligibility criteria to be used in a solicitation for Thule Air Base. See AR 20g-874 (Letter from 

Kim Jørgensen to the United States Embassy in Copenhagen (Dec. 9, 2013)). The agreed 

language was memorialized in a letter dated December 9, 2013 from the Danish Ministry of 

Foreign Affairs to United States Ambassador J. Rufus Gifford. See AR 20g-874 to 875 (“2013 

Diplomatic Note”); see also AR 20h-888 (Letter from Gifford to Jørgensen (Dec. 13, 2013)). 

The 2013 Diplomatic Note acknowledged that the “strong wish of the United States [was] not to 

further limit the number of companies eligible to participate in the procurement.” AR 20g-874. 

Accordingly, Danish companies would not be excluded from the competition and it “[would] 

hence be for the United States to assess whether a company qualifies as Danish or Greenlandic 

based on predefined criteria.” Id. These criteria required an offeror to produce a signed letter 

from an officer of a bank within Denmark verifying that the company conducts business with 

that institution and to submit a corporate certificate verifying that the company is registered as a 

business in Denmark. AR 20g-874 to 875. The letter expressly stated that “THE ENTERPRISE 

. . . SHALL NOT BE REGISTERED AS A SUBSIDIARY OF [A] FOREIGN COMPANY.” 

AR 20g-875 (emphasis in original). 

The underlying purpose of the criteria “[wa]s to ensure Greenland and Greenlandic 

society greatest possible benefits from the agreement.” AR 20g-874; see also Per Aarsleff’s

Compl. Attach. D (Decl. of Amb. Jonas Bering Liisberg (“Liisberg Decl.”), ¶ 24 (Mar. 2, 2015)). 

The Under-Secretary for Legal Affairs in Denmark, Ambassador Liisberg,9has confirmed the 

Danish government’s understanding that these eligibility criteria “notif[ied] all interested 

offerors that the Thule Contract could not be lawfully awarded to a registered Danish company 

owned and controlled by a foreign company.” Liisberg Decl. ¶ 25 (emphasis added); see also id. 

¶ 48 (“The language in the 2013 letters plainly excludes all registered Danish companies that are 

owned and/or controlled by [a] foreign company. The language serves the purpose of ensuring . 

. . that eligible companies for the Thule Contract not only have a formal link by registration to 

Denmark or Greenland, but a real and genuine link, avoiding shell companies owned and 

controlled by foreign companies.”). 

B. Request for Proposals 

1. Draft solicitation. 

The Air Force issued a draft solicitation in December 2013 that included the eligibility 

criteria to which Denmark and the United States had agreed. See AR 75-4162 (Draft Solicitation 

No. FA2523-12-R-0006 (Dec. 5, 2013)); see also AR 8-548 (Decl. of Carlo Mosca (Dec. 14, 

2014)) (stating the administrative contracting officer’s acknowledgement that “I do not speak 

Danish and I am not versed in our treaty obligations under international law. As a result, I 

determined it was appropriate to rely upon the language provided to [me] by the Danish 

government for inclusion in the RFP without altering it.”). As set forth in Section L-6 of the 

 

9

“In [his] role as Under-Secretary for Legal Affairs, [Ambassador Liisberg] advise[s] the 

Minister for Foreign Affairs of Denmark on legal matters.” Liisberg Decl. ¶ 1.
9

draft solicitation, responsive proposals were required to include: 

2) Corporation certificate (Selskabscertifikat m. oblat) verifying 

that your company is registered as a business in the Kingdom of 

Denmark. (Det Central Virksomhedsregister (CVR); Det 

Grønlandske Erhervsregister (GER); Skráseting Føroya (Skrás. 

Nr.)) 

NOTE: THE REGISTERED OFFICE OF THE ENTERPRISE 

SHALL BE IN THE KINGDOM OF DENMARK AND SHALL 

NOT BE REGISTERED AS A SUBSIDIARY OF FOREIGN 

COMPANY. 

3) Signed letter from an officer of a bank within the Kingdom of 

Denmark verifying that your company conducts business with that 

institution. 

NOTE: ELECTRONIC FUNDS TRANSFER OF INVOICE 

PAYMENTS WILL ONLY BE MADE TO A BANK IN THE 

KINGDOM OF DENMARK. 

AR 75-4162; see also AR 75-4155 (setting out Section L-3 of the draft solicitation, limiting 

“participation in this acquisition . . . to Danish/Greenlandic enterprises.”). 

Prospective offerors responded with questions to the Air Force regarding the eligibility 

requirements. On December 10, 2013, the Air Force received the following inquiry: “What do 

you mean by ‘not be registered’?” AR 20e-826 (Draft RFP Question and Answer (“RFP 

Q&A”)). Relying solely on the e-mail from an official with the State Department, see supra, at 

7, and without taking steps to verify the accuracy of the statement in the e-mail, the Air Force 

posted an answer stating that “[i]n the searchable part of the CVR there is an information point 

called ‘type of company/virksomhedsform’ that has ‘subsidiary of foreign company’ as a 

possibility, so there is a way to see if the company is fully registered as Danish or acting as a 

foreign subsidiary in Denmark.” See AR 20e-826 (RFP Q&A); see also AR 20c-674. On 

January 28, 2014, a prospective offeror requested that the Air Force “provide further clarification 

as to what a ‘Danish Enterprise’ is as will be interpreted by the US Air Force.” AR 20e-827 

(RFP Q&A). The Air Force responded that “[t]o be eligible for award, an offeror must present: 

[the documents set forth in Section L-6 of the draft solicitation].” Id. Finally, on February 13, 

2014, Exelis Services’ initial Danish teaming partner, Danbor A/S (“Danbor”), posed the 

following question: 

If the Danish registered company is owned by a foreign company 

but still can provide following: 

1. Corporate certificate ver[i]fying that your company is 

regist[e]red as a business in the Kingdom of Denmark[;]
10

2. Signed letter from an officer of a bank within the [K]ingdom of 

Denmark verifying that your company conducts business with 

that institution[; and] 

3. In the CVR register your company is registered as a A/S 

(limited company)[;]

Will [that company,] based on above[,] be eligible for award? 

AR 271-2873 (Danbor Question and Answer (“Danbor Q&A”) (Feb. 13, 2014)) (emphasis 

added).10 The Air Force did not answer this inquiry in the affirmative, but instead it again copied 

the eligibility requirements from Section L-6 of the draft solicitation. See id. Together, these 

responses show the Air Force’s understanding that the CVR database would permit it to identify 

companies “acting as a foreign subsidiary in Denmark,” see AR 20e-826 (RFP Q&A), so it could 

exclude those entities from the procurement. Moreover, the Air Force’s response to Danbor 

suggests that a “company . . . owned by a foreign company” would not meet the RFP’s 

requirement even if it was “registered as a [Danish company].” See AR 271-2873 (Danbor 

Q&A).11

 

2. Final solicitation. 

On March 28, 2014, the Air Force issued RFP No. FA2523-12-R-0006 to obtain 

operation, support, and maintenance services at Thule Air Base. The services include “supply 

and purchasing, fuels management, airfield and airport operations, air traffic and transportation 

management, water port operations, civil engineering operations, vehicle operations and 

maintenance, fire protection, environmental management, health services, food services, 

 

10The Danbor Q&A was not part of the administrative record in the proceedings before 

GAO. It was made part of the record in response to a letter from Per Aarsleff’s counsel dated 

April 6, 2015, to the government’s counsel, requesting that the Air Force complete the 

administrative record. See Per Aarsleff’s Mot. for Judgment on the Admin. Record and Request 

for Permanent Inj. (“Per Aarsleff’s Mot.”) Ex. A, at 2, ECF No. 60 (Letter from William Rayel 

to Paul Debolt (Apr. 10, 2015)). According to the Air Force, it had “inadvertently failed to post 

[the Danbor Q&A] with the other questions and answers . . . [even though it was] the Air Force’s 

final answer.” Id. 

11The Air Force’s acquisition plan prepared prior to the issuance of the RFP, but 

approved on March 3, 2014, further indicates that the eligibility criteria were intended to exclude 

non-Danish and non-Greenlandic firms. See AR 20zg-1501 (“Market research . . . indicates that 

capable Danish/Greenlandic sources exist for the subject requirement; therefore, this acquisition 

will be limited to Danish/Greenlandic sources.”) (emphasis added); AR 20zg-1521 (“NonDanish or non-Greenlandic firms (less than 49% ownership) interested in subcontracting or joint 

ventures opportunities have been encouraged to contact potential Danish or Greenlandic prime 

contractors that may be interested in participating in this requirement.”) (emphasis added); see 

also AR 83-4600, 4669. 
11

recreation and community services, and non-sensitive communication management.” AR 88-

5143. The statutory authority for the Solicitation included 10 U.S.C. § 2304(c)(4), limiting 

competition because of an international agreement,12 as implemented by provisions of the 

Federal Acquisition Regulations (“FAR”). See 48 C.F.R. [“FAR”] § 6.302-4.13

 

12Subsection 2304(c) of Title 10 of the United States Code provides in part: 

(c) The head of an agency may use procedures other than 

competitive procedures only when . . . 

(4) the terms of an international agreement or a treaty between the 

United States and a foreign government or international 

organization, or the written directions of a foreign government 

reimbursing the agency for the cost of the procurement of the 

property or services for such government, have the effect of 

requiring the use of procedures other than competitive 

procedures[.] 

10 U.S.C. § 2304(c). 

13FAR § 6.302-4 states, in relevant part: 

(a) Authority. . . . 

(2) Full and open competition need not be provided for 

when precluded by the terms of an international agreement 

or a treaty between the United States and a foreign 

government or international organization, or the written 

directions of a foreign government reimbursing the agency 

for the cost of the acquisition of the supplies or services for 

such government. 

(b) Application. This authority may be used in circumstances such 

as—

(1) When a contemplated acquisition is to be reimbursed by 

a foreign country that requires that the product be obtained 

from a particular firm as specified in official written 

direction such as a Letter of Offer and Acceptance; or 

(2) When a contemplated acquisition is for services to be 

performed, or supplies to be used, in the sovereign territory 

of another country and the terms of a treaty or agreement 

specify or limit the sources to be solicited. 
12

The RFP sought a hybrid firm-fixed-price contract, comprising economic-priceadjustment and cost-reimbursable contract line items to be awarded on a low-price, technically 

acceptable (“LPTA”) basis, as governed by FAR Part 15, Contracting by Negotiation. See AR 

88-5143, 5251; see also FAR §§ 15.000-.609. Regarding technical acceptability, the RFP 

provided that an offeror was required to be acceptable under the following seven technical subfactors: (1) program management; (2) infrastructure operation and maintenance plan; 

(3) logistics plan; (4) vehicle/equipment replacement plan; (5) resource utilization plan; 

(6) downward pricing; and (7) experience. AR 88-5256 to 5258. An unacceptable rating under 

any one of the sub-factors would result in an offeror’s proposal being rated technically 

unacceptable. See AR 88-5261 to 5262. The RFP further stated that an offeror’s proposed price 

had to be “reasonable, affordable[,] and balanced,” pursuant to the price-analysis techniques 

outlined in FAR § 15.404-1. AR 88-5265; see also FAR § 15.404-1 (titled “Proposal analysis 

techniques”). In Section M of the RFP, offerors were also “advised to clearly show justification 

for unique practices that significantly lower pricing.” AR 88-5265 (emphasis added). They 

were warned that “[a]n assessment that the proposal is not reasonable or affordable w[ould] 

result in the offer being unacceptable for award.” Id. 

The eligibility criteria remained the same as those requirements recited in the draft 

solicitation: 

L-3. OFFEROR ELIGIBILITY 

Participation in this acquisition is limited to Danish/Greenlandic 

enterprises. Enterprises must possess a corporation certificate 

(Selskabscertifikat m. oblat) verifying the company is registered as 

a business in the Kingdom of Denmark (Det Central 

Virksomhedsregister (CVR); Det Grønlandske Erhervsregister 

(GER); Skráseting Føroya (Skrás. Nr.)). NOTE: THE 

REGISTERED OFFICE OF THE ENTERPRISE SHALL BE IN 

THE KINGDOM OF DENMARK AND SHALL NOT BE 

REGISTERED AS A SUBSIDIARY OF FOREIGN COMPANY. 

Enterprises must produce a signed letter from an officer of a bank 

within the Kingdom of Denmark verifying the company conducts 

business with that institution. NOTE: ELECTRONIC FUNDS 

TRANSFER OF INVOICE PAYMENTS WILL ONLY BE 

MADE TO A BANK IN THE KINGDOM OF DENMARK. 

AR 88-5252 to 5253 (emphasis in original). Those criteria were restated in Section L-6 of the 

RFP, which provided: 

 

FAR § 6.302-4(a), (b); see also Hyperion, Inc. v. United States, 120 Fed. Cl. 504, 511-14 (2015) 

(giving effect to the “International Agreement” exception to the Competition in Contracting Act, 

10 U.S.C. § 2304(c)(4), and FAR § 6.302-4). 
13

L-6. INFORMATION TO OFFERORS (ITO) AND 

INSTRUCTIONS FOR PROPOSAL PREPARATION . . . 

(IPP) . . .

b. Contract Documents. As part of the proposal submission, 

include the following . . . 

2) Corporation certificate (Selskabscertifikat m. oblat) verifying 

that your company is registered as a business in the Kingdom of 

Denmark. (Det Central Virksomhedsregister (CVR); Det 

Grønlandske Erhervsregister (GER); Skráseting Føroya (Skrás. 

Nr.)) 

NOTE: THE REGISTERED OFFICE OF THE ENTERPRISE 

SHALL BE IN THE KINGDOM OF DENMARK AND SHALL 

NOT BE REGISTERED AS A SUBSIDIARY OF FOREIGN 

COMPANY. 

3) Signed letter from an officer of a bank within the Kingdom of 

Denmark verifying that your company conducts business with that 

institution. 

NOTE: ELECTRONIC FUNDS TRANSFER OF INVOICE 

PAYMENTS WILL ONLY BE MADE TO A BANK IN THE 

KINGDOM OF DENMARK. 

AR 88-5253, 5259 (emphasis in original). Also, Section L of the Solicitation included a 

provision governing staffing. There, the Solicitation explained that in accordance with 

agreements between the United States and the Kingdom of Denmark, “personnel working at 

Thule [Air Base] must be Danish, Greenlandic or American citizens, and must adhere to 

Danish/Greenlandic labor law.” AR 88-5257. 

Of further relevance in this bid protest, a provision of the Performance Work Statement 

(“PWS”) was incorporated in Section H-6 of the Solicitation, which read as follows: 

H-6. STATUTORY RESTRICTIONS ON FOREIGN 

ACQUISITIONS 

The requirements at PWS 3.1.16 to maximize and document 

contract related purchases and subcontracts for Danish and 

Greenlandic sources required by the 1962 International Agreement 

(Aide Memoire) between the US and Denmark take precedence in 

the performance of this contract. Products not acquired by Danish 

and/or Greenlandic sources must be procured [in accordance with] 

the following FAR/[Defense Federal Acquisition Regulation 

Supplement (‘DFARS’)] clauses if applicable: 
14

Procurement of Biobased Products shall utilize FAR CLAUSE 

52.223-2. The Contractor shall notify the Contracting Officer when 

purchase of Biobased products cannot be acquired from U.S. 

sources as and when needed in a satisfactory quality and sufficient 

quantity at market prices and take action in accordance with the 

Contracting Officer’s direction.

The Contractor agrees to deliver to the Government items that 

comply with the requirements of [DFARS] clauses 252.225-7012, 

and 252.225-7030 in Section I of this contract. 

Delivery is defined as transfer of title from the contractor to the 

Government or incorporation of Contractor-owned material or 

parts into Government-owned property. 

AR 88-5227 to 5228 (emphasis in original); see also AR 88-5279 (setting out PWS 3.1.16, as 

incorporated into Section H of the RFP, requiring a contractor to “[m]aximize and document 

contract-related purchases and subcontracts from Danish and Greenlandic sources” and to 

“document and justify any exceptions”) (emphasis added).14 While maximizing Danish and 

Greenlandic subcontracts “t[ook] precedence in the performance of [the Thule C]ontract,” AR 

88-5279, “[n]on-Danish or non-Greenlandic firms interested in subcontracting or joint venture[]

opportunities [were nevertheless] encouraged to contact potential Danish or Greenlandic prime 

contractors,” AR 54-2912 (Solicitation Synopsis (created May 16, 2012 and modified Mar. 19, 

2013)); see also AR 20zg-1521.

C. Evaluation of Offers

1. Offerors.

Four offerors—Exelis Services, Per Aarsleff, Greenland Contractors, and Copenhagen 

Arctic—submitted timely proposals in response to the Solicitation. See AR 20u-1419 (Source 

Selection Decision Document (Oct. 21, 2014)). Greenland Contractors is registered as a Danish 

partnership, i.e., an “Interessentskab” or “I/S,” and is owned in part by the government of 

Greenland. See Prelim. Inj. Hr’g Tr. 61:13-16. Greenland Contractors is the current contractor 

for Thule Air Base operation and maintenance, and it has been the incumbent contractor for the 

base since 1972. Greenland Contractors’ Compl. ¶ 10. Each of the other offerors, Per Aarsleff, 

Copenhagen Arctic, and Exelis Services, is registered as a Danish limited company, i.e., an 

“Aktieselskab” or “A/S.” See AR 20s-1280 (Legal Registration Certificate for Exelis Services 

(Apr. 29, 2014)); see also AR 20zh-1525 (Mem. from René Streander to King (May 11, 2014));

see also Def.’s Opp’n to Mots. for Prelim. Inj. at 13. Exelis Services was established in 

Denmark in April 2014, Copenhagen Arctic was established in March 2014, and Per Aarsleff 

 

14The language of the 1962 Aide Memoire was not incorporated directly into the 

solicitation, see AR 20c-674, but the Aide Memoire was acknowledged in Section H-6, see AR 

88-5227, as guiding a performance requirement concerning “[m]aximiz[ing] . . . contract-related 

purchases and subcontracts from Danish and Greenlandic sources,” id.
15

was established in December 1961. AR 20zh-1525.15 For the purposes of this procurement, Per 

Aarsleff listed an American company, [***], as a subcontractor, see AR 98-6449 to 6450 (Mem. 

to King Regarding Contracting Squadron (May 11, 2014)), and Copenhagen Arctic’s proposal 

included the United States-based entity, [***], AR 168-14312, 14319 (Presentation of 

Copenhagen Arctic and Partners). 

Although a Danish-registered enterprise, Exelis Services is a wholly-owned subsidiary of 

Vectrus Systems Corporation (formerly known as Exelis Systems Corporation) (“Vectrus”), a 

United States-based company. See Rule 7.1 Disclosure Statement of Def.-Intervenor Exelis 

Services, ECF No. 20 (No. 15-215) (certifying that “Vectrus Systems Corporation is Exelis 

Services A/S’ sole corporate parent, owning 100% of its stock”); see also AR 251-28526 (Notice 

of Award (Oct. 31, 2014)) (“On October 31, 2014, a Danish company owned by Vectrus was 

awarded a $411M base maintenance contract. . . . Work will be performed at Thule Air Base, 

Greenland and is expected to be complete by September 30, 2022.”).

16 In addition, the 

administrative record manifestly shows that the Air Force was aware of Exelis Services’ status as 

a foreign subsidiary when making the award decision. See, e.g., AR 145-11033 (Letter from 

[***], general counsel for Exelis Systems Corporation, to King (June 16, 2014)) (stating in a 

letter to the contracting officer that Exelis Services is “a wholly-owned subsidiary of [Vectrus] 

Systems Corporation”); AR 21e-2216 (Letter from Streander to Exelis Services (Sept. 17, 2014))

(reciting the Air Force’s acknowledgement of “the delivery/receipt of [Vectrus] Systems 

Corporation’s submission for Thule [Air] Base Maintenance Contract.”); AR 142-10808 (setting 

out the Defense Contract Management Agency’s report stating that “Exelis Services A/S was 

established in April 2014 and is a wholly-owned subsidiary of Vectrus Systems Corporation 

(legacy Exelis Systems Corporation)”); AR 145-11105 to 11106, 11110 (Vectrus, Inc. Form 8-K 

(Oct. 31, 2014)) (posting a request from [***] of Vectrus that the contracting officer approve a 

draft of the company’s Securities and Exchange Commission Form 8-K, which stated that “[o]n 

 

15

“Copenhagen Arctic is a Joint Venture (JV) established by the Danish company 

Copenhagen Group and U.S.-based DynCorp International for the sole purpose of tendering for 

the operation and maintenance of the Thule AB, Greenland for the USAF’s Space Command/

21st Space Wing/821st Air Base Group.” AR 168-14312. Specifically, DynCorp has a thirty 

percent ownership in Copenhagen Arctic. See Defendant-Intervenor Exelis Services’ Cross-Mot. 

for Judgment on the Admin. Record (“Exelis Services’ Cross-Mot.”), at 3, ECF No. 65-1; see 

also Copenhagen Arctic A/S’s Rebuttal Mem. in Support of Judgment on the Admin. Record 

(“Copenhagen Arctic’s Reply”) at 17, ECF No. 67.

16Vectrus is headquartered in Colorado Springs, Colorado and is the former Exelis 

Systems Corporation. In September 2014, “Exelis Systems Corporation was part of a spin-off 

from its parent company, Exelis, Inc. and was renamed Vectrus Systems Corporation.” AR 142-

10808 (Defense Contract Management Agency Financial Capability Review (Oct. 2014)). “The 

ownership interest of Vectrus Systems Corporation in Exelis Services A/S remained the same 

after the spinoff.” Id. “Exelis Services kept the Air Force apprised of these changes 

during the procurement process.” Exelis Services’ Cross-Mot. at 22 n.9 (citing AR 21c-1550 to 

1552 (Letter from [***] to King (Sept. 16, 2014))). 

 For the purposes of this opinion, the court will refer to Exelis Services’ current parent 

company as Vectrus. 
16

October 31, 2014, Vectrus received notice of award of a $411M . . . Thule [Air] Base 

Maintenance Contract”). 

2. Evaluations.

All four proposals were initially evaluated as technically unacceptable in varying degrees 

due to defects related to technical sub-factors, but each was nevertheless included in the 

competitive range. See AR 103-6903-16 (Initial Evaluation Report (June 3, 2014)). The Air 

Force issued 85 Evaluation Notices (“ENs”) to Copenhagen Arctic, 83 ENs to Exelis Services, 

82 ENs to Per Aarsleff, and 54 ENs to Greenland Contractors, AR 20c-677; see also AR 20i-912 

(Overall Evaluation Summary), and undertook oral discussions with all four offerors “to ensure 

complete understanding of the evaluator’s concerns,” AR 20c-677; see also AR 20k-1050 to 

1057 (Letters Initiating Discussions with Offerors (June 13, 2014)). As a result of discussions, 

the Air Force found Greenland Contractors’ proposal to be technically acceptable, while the 

other three proposals remained technically unacceptable. See AR 20m-1161 (Evaluation 

Summary after Discussions (July 2014)). Thereafter, the Air Force held a second round of 

discussions, after which it found all four proposals to be technically acceptable. See AR 20c-677 

to 678. The Air Force then requested Final Proposal Revisions. AR 20c-678. 

During the evaluation stage of the procurement, an Air Force contract specialist contacted 

the Danish Ministry of Foreign Affairs for assistance in determining whether the four offerors 

“[could] be considered Danish Firms and not a subsidiary of a foreign firm.” AR 20g-878 to 879

(E-mail from Streander to Ulrik Petersen (July 30, 2014)). The Danish Ministry of Foreign 

Affairs declined to “assist [the Air Force] in the assessment of the companies in question,” 

stating that the purpose of the agreed-upon criteria was to “simplify and streamline the 

procedure” for determining eligibility and for the United States to determine eligibility based 

upon “concrete, prior defined criteria[].” AR 20g-878 (E-mail from Petersen to Streander (July 

30, 2014)).17 The Air Force subsequently sought assistance in this matter from the Danish 

Business Authority, whose response illuminates the salient issue in this case.18 In an e-mail 

 

17The Air Force contacted the Danish Ministry of Foreign Affairs again in fall of 2014 

and the Ministry responded by reiterating the eligibility criteria and asserting that “these criteria 

give[] the US authorities the full competence in this matter and hence, leave Danish authorities, 

including [t]he [Danish Ministry of Foreign Affairs], [t]he Ministry of Business and Growth[,] 

and [t]he [Danish Business Authority] out of the qualification process.” AR 20g-886 (E-mail 

from Peter Larsen to King (Sept. 24, 2014)). 

18Greenland Contractors has provided a translation of the initial e-mail sent to the Danish 

Business Authority which reads, in pertinent part: 

Attached please find four CVR reports/certificates on four 

companies that are all understood to be Danish companies. 

Are you permitted to or are you able to help by confirming that 

they are in actual fact considered to be Danish companies and not 

subsidiaries of foreign companies? 
17

dated August 6, 2014, the Danish Business Authority acknowledged that the Air Force had 

transmitted “[two] complete reports for two limited companies (A/S) and two confirmation[s] 

concerning two other companies, one limited company and one partnership (I/S).” AR 20g-883 

(E-mail from Katia Tórsheim Voltelen to Streander (Aug. 6, 2014)). Importantly, the Danish 

Business Authority stated that it “does[ not] register owners, therefor[e] this [A]uthority cannot 

shed light to w[hether] or not the companies are subsidiaries of foreign companies” and 

suggested that the Air Force “try to look into the companies[’] yearly statements in regards to 

ownership . . . [or] access the companies’ statements via www.cvr.dk.” Id. (emphasis added). 

This communication thus informed the Air Force that the CVR could not be used to identify 

foreign subsidiaries and that the Air Force was mistaken in advising potential offerors that “[i]n 

the searchable part of the CVR . . . there is a way to see if the company is fully registered as 

Danish or acting as a foreign subsidiary in Denmark.” See AR 20e-826 (RFP Q&A) (emphasis 

added).19 Despite this knowledge, there is no evidence in the record that the Air Force took 

action to fix its mistake as it continued with the evaluations. 

Following efforts by the Air Force to have Danish authorities provide guidance on the 

eligibility criteria, all four offerors submitted Final Proposal Revisions by September 17, 2014. 

AR 20c-678. To “ensure[] all offerors were still eligible for award . . . [the] CVR was checked 

to verify that all [o]fferors were registered as a business in the Kingdom of Denmark,” and it was 

found that “[a]ll [o]fferors . . . had offices that were legally registered as a business in the 

Kingdom of Denmark.” Id. Not surprisingly, “[t]here was no information [in the CVR] 

indicating that any offeror . . . had offices registered as subsidiaries of a foreign company.” Id. 

(emphasis added).20

 The Air Force ultimately concluded that all four offerors were eligible for 

the contract award as Danish or Greenlandic enterprises and that all proposals were technically 

acceptable. 

 

I do not have experience enough to judge this and need your help. 

It does look as if they are autonomous Danish companies. 

Greenland Contractors’ Mot. at 13 (translating AR 20g-881 (E-mail from Streander to Benedicte 

Schleimann (Aug. 5, 2014))) (emphasis added). 

19The government has now conceded that it was impossible to “register” as a foreign 

subsidiary. See Def.’s Opp’n to Pls.’ Mots. for Prelim. Inj. at 22-23 (“The Air Force was 

mistaken in its belief that there was a way to register as a ‘subsidiary of [a] foreign company’ in 

the CVR . . . .”). 

20The Air Force’s contract specialist in Denmark was asked to ensure that the eligibility 

criteria were satisfied and “ran every report possible in the CVR system and checked every 

component within those reports; there was no indication that any [o]fferor had offices that were 

registered as a subsidiary of a foreign company.” AR 20c-676, 681. 
18

3. Award. 

Exelis Services submitted the lowest-priced proposal, offering to perform the work for 

2,020,333,220 Danish kroners (code, “DKK,” symbol, “kr”) ($363,925,645), and it received the 

award. AR 20c-678 to 679.21

 Per Aarsleff proposed the second-lowest price of DKK [***] 

($[***]), Copenhagen Arctic proposed the third-lowest price of DKK [***] ($[***]), and 

Greenland Contractors proposed the fourth-lowest price of DKK [***] ($[***]). AR 20c-678.22 

The three unsuccessful bidders were notified of the award decision on October 31, 2014, and 

post-award debriefings were held on November 6 and 7, 2014. AR 20c-679. 

Upon receiving the Thule Contract, Exelis Services immediately began the eight-month 

process of transitioning, or “phasing-in,” its responsibilities at Thule Air Base. See AR 88-5153, 

5217; see also Prelim. Inj. Hr’g Tr. 106:10 to 107:10. Exelis Services maintains that after 

transition of the Thule Contract, it will “[***].” See Exelis Services’ Cross-Mot. at 22 (citing 

Defendant-Intervenor Exelis Services A/S’ Opp’n to Pls.’ Per Aarsleff A/S’ and Greenland 

Contractors I/S’ Mots. for Prelim. Inj. Attach. 1, ¶ 9 (Decl. of Karl Schmidt (Mar. 27, 2015))).23

 

Exelis Services is scheduled to take over operation, maintenance, and support services from 

Greenland Contractors on October 1, 2015. AR 88-5153. At that time, Exelis Services will be 

responsible for full contract performance. See Prelim. Inj. Hr’g Tr. 60:16-19, 114:25-5. The Air 

Force, however, has the ability under FAR § 52.217-8 to extend Greenland Contractors’ current 

contract for a six-month period at the same rates and terms as the last contract year. See FAR § 

52.217-8 (“The [g]overnment may require continued performance of any services within the 

limits and at the rates specified in the contract. . . . The option provision may be exercised more 

than once, but the total extension of performance hereunder shall not exceed 6 months.”); see 

also Magnum Opus Technologies, Inc. v. United States, 94 Fed. Cl. 512, 549 (2010) (examining 

FAR § 52.217-8 in a bid protest based on a solicitation by the Air Force for contracts to supply 

health care service providers).

 

21Exelis Services’ proposal included: (1) a certificate from the Danish Business Authority 

certifying Exelis Services as a legally registered public limited company in Denmark with a 

report documenting its registration; and (2) a letter signed by a Danish bank confirming a 

business relationship with Exelis Services and stating that the account was satisfactorily 

maintained. See generally AR 20s (Exelis Services’ CVR Reports); see also AR 20za-1449 

(Nordea Bank Danmark A/S Letter (Apr. 24, 2014)). 

22The offerors were required to submit their proposals in Danish kroners. AR 88-5223.

23According to Exelis Services, it “appears clear that, had the Air Force awarded the

Thule Contract to Per Aarsleff, the Greenland Contractors’ . . . transition pool would have 

become employees of [***]—a U.S. corporation—and performed the Thule [Contract] work as 

[***] employees.” Exelis Services’ Cross-Mot. at 23. Additionally, Exelis Services avers that 

had the Air Force awarded the Thule Contract to Copenhagen Arctic, those employees “[would] 

become employees of [***].” Id. 
19

4. Danish reaction. 

 In response to the award of the Thule Contract to a foreign subsidiary, the Danish 

government expressed “concerns relating to the interpretation of international agreements 

between the two governments pertaining to the definition of a Danish/Greenlandic enterprise.”

Def.’s Opp’n to Pls.’ Mots. for Prelim. Inj. App. at 50; see also Liisberg Decl. ¶ 48. Given the 

diplomatic tension created by the award to Exelis Services, the United States government 

recently negotiated a framework with the Danish government, reflected in the Joint Statement 

issued in March 2015: 

The United States and the Kingdom of Denmark are endeavoring 

to address the concerns [regarding the award of the Thule 

Contract] as follows: 

 The United States and the Kingdom of Denmark have established 

an expert working group to develop a mutually acceptable 

definition of a Danish/Greenlandic enterprise. 

 The U.S. Air Force intends to conduct a new acquisition and 

issue a new request for proposals for the Thule Air Base

Maintenance Contract once there is agreement between the United 

States and the Kingdom of Denmark regarding what constitutes a 

Danish/Greenlandic enterprise. 

 The U.S. Air Force intends then to competitively award a Thule 

Air Base Maintenance Contract. The United States and the 

Kingdom of Denmark will determine to what degree, if any, 

competition will be limited. 

Def.’s Opp’n to Pls.’ Mots. for Prelim. Inj. App. at 50 (emphasis added). The contemplation of a 

re-competition in the procurement provides salient evidence that the Air Force committed a 

fundamental error in awarding the Thule Contract to Exelis Services. The government 

nonetheless emphasizes that “this [J]oint [S]tatement is not corrective action and does not render 

these cases moot.” Def.’s Opp’n to Pls.’ Mots. for Prelim. Inj. at 58 n.24. 

D. Protests at GAO 

In November 2014, Per Aarsleff, Copenhagen Arctic, and Greenland Contractors filed 

separate protests at GAO challenging the award to Exelis Services.24 Although these protests 

 

24In accord with the Competition in Contracting Act (“CICA”), the Air Force suspended 

Exelis Services’ performance while the protests were pending at GAO. See FAR § 33.104(c)(1) 

(“When the agency receives notice of a protest from the GAO within 10 days after contract 

award or within 5 days after a debriefing date offered to the protester for any debriefing that is 

required by 15.505 or 15.506, whichever is later, the contracting officer shall immediately 
20

were not consolidated by GAO, on February 18, 2015, GAO issued one decision addressing all 

three protests. See AR 37-2726 (GAO Decision); Per Aarsleff, 2015 WL 1004252 (same).25 The 

primary ground considered by GAO in the protests was whether the contract to Exelis Services 

“was unreasonable and did not meet the RFP requirements because the awardee is not a Danish 

or Greenlandic company, but is rather a subsidiary of a foreign (United States) company.” Per 

Aarsleff, 2015 WL 1004252, at *5. All three protestors argued that Exelis Services was 

incorporated in Denmark only shortly before proposal submissions and is a wholly-owned 

subsidiary of Vectrus, a foreign company based in the United States. See id., at *6. Based on the 

“the treaty obligations between the United States and the Kingdom of Denmark,” the protestors 

contended that “the awardee [was required] to be a Danish or Greenlandic firm, and that the Air 

Force was therefore required to look beyond the issue of ‘registration’ and to investigate the 

actual ownership of each offeror.” Id., at *7. 

GAO disagreed, holding that “the Air Force reasonably evaluated Exelis Services’ 

proposal, and reasonably found that Exelis Services was eligible for award under the terms of the 

solicitation.” 2015 WL 1004252, at *9. GAO explained that the issue turned wholly on 

registration as a subsidiary, not whether the awardee actually was owned by a foreign, not 

Danish, parent: 

. . . [T]he RFP was clear on its face as to the issue of registration in 

the CVR. Specifically, we agree with the Air Force and Exelis 

Services that the RFP’s eligibility analysis addressed whether the 

offeror was registered as a subsidiary of a foreign company. Apart 

from the RFP’s language concerning registration, there are no 

other criteria in the RFP that explain how the agency would 

evaluate whether a firm was a Danish or Greenlandic enterprise. 

Although the parties seek to add the issue of ownership or control 

to the RFP, nothing in the solicitation provides for consideration of 

these criteria. 

Id., at *8 (emphasis added). Even if the language in the Solicitation created doubt as to how the 

agency was planning to interpret the registration requirement, GAO concluded that any doubt 

was clarified by the Air Force’s Q&A regarding the meaning of that criterion. See id. (“[The 

agency’s] response clearly advised offerors that the Air Force believed that there was within the 

CVR a place for a firm to indicate that a firm was a subsidiary of a foreign firm.”). Furthermore, 

 

suspend performance or terminate the awarded contract . . . .”); see also AR 20c-672 (issuing a 

stop work order to Exelis Services on November 13, 2014). 

25GAO did not consolidate the bid protests, which meant that the administrative records 

provided in the respective proceedings were different. See supra, at 3 n.3. Due to protective 

orders issued in the protests, only a two-page summary of the decision was initially released to 

the public. See AR 37-2724 to 2725 (GAO Press Release (Feb. 18, 2015)). A redacted version 

of the decision was later made available. See Per Aarsleff A/S, 2015 WL 1004252; see also AR 

37-2722 (E-mail from Katherine Riback to Parties (Feb. 18, 2015)). 
21

GAO found that to the extent there was any ambiguity in the language of the Solicitation, it was 

patent and the protests were therefore untimely. See id., at *9 (“Where a patent ambiguity in a 

solicitation is not challenged prior to the submission of bids, we will dismiss as untimely any 

subsequent challenge to the meaning of the solicitation term.”) (citing 4 C.F.R. § 21.2(a)(1) 

(“Protests based upon alleged improprieties in a solicitation which are apparent prior to bid 

opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the 

time set for receipt of initial proposals . . . .”)).

GAO also rejected several other protest grounds asserted by the parties, including a 

challenge by Greenland Contractors regarding the Air Force’s price evaluation. See 2015 WL 

1004252, at *13. Greenland Contractors had argued “that the Air Force failed to evaluate 

whether Exelis Services’ proposed price was too low, and also argue[d] that the awardee’s low 

price demonstrates that the awardee will not comply with Danish and Greenlandic labor law, as 

required by the RFP.” Id. GAO found no merit in this argument because it “conclude[d] that the 

solicitation did not require the Air Force to conduct a price realism evaluation.” Id., at *14. 

Although the price evaluation required offerors to “show justification for unique practices that 

significantly lower pricing,” AR 88-5265, GAO “[did] not think that this statement obligated the 

agency to evaluate the risk of poor performance stemming from a low price, in light of the 

absence of a price realism factor in the solicitation,” 2015 WL 1004252, at *14. 

 Following the decision by GAO, the stay under CICA was lifted, and Exelis Services 

resumed its phase-in activities pursuant to the Thule Contract. See Prelim. Inj. Hr’g Tr. 100:10-

21, 103:1 to 107:6. 

E. Protests in this Court 

Per Aarsleff, Greenland Contractors, and Copenhagen Arctic filed separate suits in this 

court challenging the Air Force’s award of the Thule Contract to Exelis Services. See Per 

Aarsleff’s Compl. in No. 15-215C ¶ 8; Greenland Contractors’ Compl. in No. 15-272 ¶ 8; 

Copenhagen Arctic’s Compl. in No. 15-330 ¶ 1. Per Aarsleff filed the first complaint on March 

3, 2015, and the next day the court granted a motion by Exelis Services to intervene. Order of 

Mar. 4, 2015, ECF No. 12. The court set an accelerated briefing schedule to culminate in a 

hearing scheduled for mid-May. See Scheduling Order of Mar. 4, 2015, ECF No. 13 (No. 15-

215). Per Aarsleff subsequently filed a motion for preliminary injunction on March 11, 2015, 

see Per Aarsleff’s Mot. for Prelim. Inj., ECF No. 23,

26 and Greenland Contractors followed with 

its complaint and a motion for preliminary injunction on March 17, 2015, see Greenland 

Contractors’ Motion for Prelim. Inj., ECF No. 6 (No. 15-272). The cases were consolidated, see 

Order of Mar. 20, 2015, ECF No. 19, and the court set a date for a hearing on the motions for a 

preliminary injunction, see Amended Scheduling Order of Mar. 20, 2015, ECF No. 34. Shortly 

 

26Per Aarsleff did not initially request a preliminary injunction because “[it] was hopeful 

that the [government] would agree to a voluntary stay of performance of Exelis Services’ 

contract.” Per Aarsleff’s Mot. for Prelim. Inj. at 2. When it did not receive any indication that 

the government would agree to a voluntary stay, Per Aarsleff filed a motion for preliminary 

injunction “to preserve the status quo” during the pendency of the litigation. Id. 
22

thereafter, on March 31, 2015, Copenhagen Arctic filed its complaint. The hearing on Per 

Aarsleff’s and Greenland Contractors’ motions for a preliminary injunction was held on April 2, 

2015, and the court then consolidated the case in Copenhagen Arctic with the other recently 

consolidated cases. On April 29, 2015, the court ordered that the disposition of the motions for 

preliminary injunction be consolidated with the merits pursuant to RCFC 65(a)(2). See Order of 

Apr. 29, 2015, ECF No. 64.27 Consolidation was appropriate because (1) the court had 

previously set an accelerated briefing and argument schedule; (2) the government had produced a 

more thorough record than that available during the hearing on the motions for preliminary 

injunction and in the three separate proceedings at GAO; and (3) the government had advised the 

court that a short hiatus in acting on plaintiffs’ requests for injunctive or declaratory remedies 

would not materially affect the government’s posture in the procurement itself. See Order of 

Apr. 29, 2015. 

Briefing on the motions for judgment on the administrative record has proceeded on an 

accelerated basis. The administrative record was submitted and supplemented twice,28 crossmotions for judgment on the administrative record were received, briefing was completed on

May 19, 2015, and a hearing on the merits was held on May 22, 2015. Given the importance of 

the contract at issue, the expedited schedule has allowed the court to reach a resolution of this bid 

protest very promptly. 

JURISDICTION 

A. 28 U.S.C. §1491(b)(1) 

As an initial matter, this court has jurisdiction over bid protests pursuant to the Tucker 

Act, 28 U.S.C. § 1491, as amended by the Administrative Dispute Resolution Act, Pub. L. No. 

104-320, § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996) (codified at 28 U.S.C. § 1491(b)). In 

relevant part, the Tucker Act as amended vests this court with the juridical power to 

 

27RCFC 65(a)(2) provides: 

Before or after beginning the hearing on a motion for a preliminary 

injunction, the court may advance the trial on the merits and 

consolidate it with the hearing. Even when consolidation is not 

ordered, evidence that is received on the motion and that would be 

admissible at trial becomes part of the trial record and need not be 

repeated at trial. 

RCFC 65(a)(2). 

28In this tripartite bid protest, the government has produced a more expansive 

administrative record than that made available to GAO. The record here includes, among other 

things, communications between the Air Force and the offerors that are relevant to this 

procurement and were not available in conjunction with the proceedings that previously occurred 

at GAO. See, e.g., AR 271-2875 (Danbor Q&A); see also Def.’s Notice of Filing Amendment to 

Admin. Record, ECF No. 59. 
23

render judgment on an action by an interested party objecting to a solicitation by 

a [f]ederal agency for bids or proposals for a proposed contract or to a proposed 

award or the award of a contract or any alleged violation of statute or regulation 

in connection with a procurement or a proposed procurement. 

28 U.S.C. § 1491(b)(1) (emphasis added); see also Systems Application & Techs., Inc v. 

United States, 691 F.3d 1374, 1380-81 (Fed. Cir. 2012) (“On its face, the statute grants 

jurisdiction over objections to a solicitation, objections to a proposed award, objections to an 

award, and objections related to a statutory or regulatory violation so long as these objections are 

in connection with a procurement or proposed procurement.”). 

 B. The “Treaty Bar”

 The government challenges this court’s subject matter jurisdiction, arguing that 28 U.S.C. 

§ 1502 bars the court’s exercise of jurisdiction. 28 U.S.C. § 1502 is applicable to claims based 

on treaties and provides: 

Except as otherwise provided by Act of Congress, the United 

States Court of Federal Claims shall not have jurisdiction of any

claim against the United States growing out of or dependent upon 

any treaty entered into with foreign nations. 

28 U.S.C. § 1502 (emphasis added). “In enacting the predecessor of Section 1502, Congress 

seems to have been concerned to prevent United States citizens from suing directly in the Court 

of Claims to collect monies paid by foreign governments to the United States, under a treaty, in 

discharge of a class of individual claims.” S. N. T. Fratelli Gondrand v. United States, 166 Ct. 

Cl. 473, 478 n.3 (1964) (citing Great Western Ins. Co. v. United States, 112 U.S. 193, 199-200 

(1884)). According to its terms, this jurisdictional prohibition applies to a claim that is 

“dependent upon and grows out of [a] treaty.” United States v. Weld, 127 U.S. 51, 57 (1888) 

(per Lamar, J.) (internal quotation marks omitted). In other words, “the right itself, which the 

petition makes to be the foundation of the claim, must have its origin—derive its life and 

existence—from some treaty stipulation.” Id. 

The Court of Claims has interpreted the term “treaty” to include “international executive 

agreements,” Hughes Aircraft Co. v. United States, 534 F.2d 889, 903 n.17 (Ct. Cl. 1976), and 

that interpretation is binding upon this court.

29

 “The reason for this [interpretation] is that the 

 

29The United States Constitution makes a distinction between “Treaties” and nontreaty 

“Agreement[s]” or “Compact[s].” Compare U.S. Const. art. II, § 2, cl. 2 (“[The President] shall 

have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two 

thirds of the Senators present concur.”), with id. art. I, § 10, cl. 3 (“No State shall, without the 

Consent of Congress . . . enter into any Agreement or Compact with another State, or with a 

foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will 

not admit of delay.”). Based on the work of eighteenth-century writer Emmerich de Vattel, see 

Emmerich de Vattel, The Law of Nations (London, printed for J. Newberry et al. 1760), there is 

evidence that “the Founders may have understood ‘Treaties’ to encompass ‘treaties of peace, of 
24

fundamental separation-of-powers policy underlying [§] 1502, i.e., to avoid undue judicial 

interference (e.g., by construction of particular treaty terms and provisions) with the Executive 

Branch’s conduct of foreign relations, is equally applicable to both forms of international 

compact.” Id. 

The government contends that because plaintiffs’ allegations are dependent on an

international executive agreement, i.e., the 1951 Defense of Greenland Agreement and the 1991 

MOU (as amended by the 2009 Diplomatic Note), this court is divested of jurisdiction under 28 

U.S.C. § 1502. See Def.’s Cross-Mot. for Judgment on the Admin. Record and Responses to 

Pls.’ Mots. for Judgment on the Admin. Record (“Def.’s Cross-Mot.”) at 37-39, ECF No. 66; see 

also Def.’s Reply to Pls.’ Opp’ns to Def.’s Cross-Mots. for Judgment on the Admin. Record 

(“Def.’s Reply”) at 10, ECF No. 74. In the government’s view, plaintiffs have “explicitly 

request[ed] that the [c]ourt construe the term ‘Danish/Greenlandic sources’ in the amendment to 

the 1991 MOU to exclude subsidiaries of foreign companies.” Id. at 38. Accordingly, the 

government contends that judicial interpretation of this international agreement “could affect the 

current negotiations between the United States and Denmark. . . [, which] is exactly what Section 

1502 is designed to avoid.” Id. 

Assuming that the amendment to the 1991 MOU forms an “international executive 

agreement” or “treaty,” it is nonetheless appropriate to hear plaintiffs’ claims in these bid 

protests because these claims neither directly nor proximately stem from an international 

agreement. See Weld, 127 U.S. at 57 (“[T]he statute contemplates a direct and proximate 

connection between the treaty and the claim.”). Contrary to the government’s argument, the 

court exercises its juridical power to construe the provisions in the Solicitation that were 

explicitly drafted to satisfy and incorporate the international understanding. In this endeavor, the 

court will look to the underlying agreements as a guide to interpreting the text of the Solicitation. 

See Dalles Irrigation Dist. v. United States, 71 Fed. Cl. 344, 354 n.11 (2006) (“Because this is a 

situation where the contract was entered to satisfy a statutory requirement . . . the interpretation 

of the contract must be guided by an examination of the underlying statute.”); see also Roedler v. 

Department of Energy, 255 F.3d 1347, 1352 (Fed. Cir. 2001) (“For determination of contractual 

and beneficial intent when, as here, the contract implements a statutory enactment, it is 

appropriate to inquire into the governing statute and its purpose.”) (citing Rendleman v. Bowen, 

860 F.2d 1537, 1541-42 (9th Cir. 1988); American Hosp. Ass’n. v. Schweiker, 721 F.2d 170, 183 

(7th Cir. 1983); Busby School of Northern Cheyenne Tribe v. United States, 8 Cl. Ct. 596, 602 

(1985)). The court will not, however, be directly enforcing the terms of the bilateral agreement 

between the United States and Denmark. See Hughes Aircraft, 534 F.2d at 906 (“[W]e find 

plaintiff’s claim no more directly or proximately intertwined with the 1970 MOU than was the 

escrow agreement with the Byrnes-Blum treaty in Societe Anonyme, the Court of Commissioners 

 

amity and commerce, consular conventions, [and] treaties of navigation.’ At the same time, they 

may have understood nontreaty [A]greements and [C]ompacts to encompass matters such as 

‘settlements of boundary lines with attending cession or exchange of strips of land,’” Bradford R. 

Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1593 (2007) (citations 

omitted). Professor Clark observed that “time has obscured this distinction” and “there appears 

to be no real consensus among today’s courts and commentators as to how to draw a clear line 

between ‘Treaties’ and nontreaty ‘[A]greements.’” Id. at 1592, 1594. 
25

Act with the Alabama Claims Treaty in Weld, or the taking claim with the Italian Peace Treaty in 

Fratelli. Accordingly, we conclude that § 1502 presents no bar to our exercise of jurisdiction in 

this case.”) (emphasis added) (referring to Weld, 127 U.S. at 57; S. N. T. Fratelli Gondrand, 166 

Ct. Cl. at 478; and Societe Anonyme Des Ateliers Brillie Freres v. United States, 160 Ct. Cl. 192, 

196-99 (1963)).

 

 This court therefore has the juridical power to hear plaintiffs’ claims, which neither seek 

relief based upon a treaty nor the enforcement of a treaty provision subject to 28 U.S.C. § 1502. 

C. Standing 

Only an “interested party” has standing to challenge the award of a contract in a bid 

protest. See 28 U.S.C. § 1491(b)(1). “An interested party is an actual or prospective bidder 

whose direct economic interest would be affected by the award of the contract.” Orion Tech., 

Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (internal citation omitted) (emphasis 

added). A “direct economic interest” is shown by demonstrating that the disappointed bidder 

had a “substantial chance” of winning the award. Rex Serv. Corp. v. United States, 448 F.3d 

1305, 1308 (Fed. Cir. 2006) (internal citations omitted); see also ST Net, Inc. v. United States, 

112 Fed. Cl. 99, 107 (2013) (“‘[A] bidder has standing to challenge the lawfulness of 

discretionary acts that operate to exclude the bidder from consideration in cases where the 

bidder’s ratings are such that had the government acted lawfully the bidder would have had a 

substantial chance of winning the contract.’”) (quoting G4S Tech. CW LLC v. United States, 109 

Fed. Cl. 708, 719 (2013)). 

Exelis Services argues that Greenland Contractors, as the highest-priced offeror in the 

procurement, lacks standing to pursue this protest. Exelis Services’ Cross-Mot. at 56-57. Exelis 

Services contends that “Greenland Contractors cannot establish standing with respect to the 

eligibility of Exelis Services, unless and until it has established that: (1) the Agency’s price 

evaluation was flawed[;] and (2) it was prejudiced by that flawed evaluation,” id. at 57, and even 

then, “Copenhagen Arctic would be next in line,” id. at 25 n.10. Further, Exelis Services avers 

that Greenland Contractors “cannot establish the requisite prejudice, which defeats its ability to 

succeed on the merits.” Id. at 25.

30

These arguments are not persuasive. Greenland Contractors has plausibly alleged that the 

Air Force committed errors by failing to adhere to various criteria set forth in the RFP and by 

engaging in misleading discussions regarding pricing. See Greenland Contractors’ Mot. at 5-6 

(“[A]bsent the Air Force’s eligibility and technical acceptability errors, Greenland Contractors 

would have been the only technically acceptable offeror. Moreover, the Air Force’s flawed 

pricing evaluation left Greenland Contractors’ unreasonably high prices uncorrected and allowed 

the three lower-priced offerors to propose unjustified lower pricing.”). Contrary to Exelis 

Services’ position, if the court finds Greenland Contractors’ protest grounds to be persuasive, it 

 

30The government has not disputed that Greenland Contractors has standing to pursue its 

protest. It does, however, contend that “Copenhagen Arctic and Greenland Contractors have not 

demonstrated that [the mistakes in the Solicitation] were prejudicial.” Def.’s Cross-Mot. at 35. 
26

would have a substantial chance to receive the award because the offers submitted by the other 

bidders would have been found to be flawed. See Hyperion, Inc. v. United States, 115 Fed. Cl. 

541, 550 (2014) (holding that the fourth-lowest bidder in a LPTA procurement had been 

sufficiently prejudiced to satisfy the requirement of standing, in a circumstance where the three 

lower offerors each failed to comply with applicable limitations on subcontracting). Exelis 

Services’ arguments to the contrary concern the merits of Greenland Contractors’ contentions, 

and are addressed infra. 

In sum, Greenland Contractors has standing to pursue this protest.31

STANDARDS FOR DECISION

The Administrative Procedure Act (“APA”), 5 U.S.C. § 706, governs the court’s review 

of challenges to an agency’s contract award. See 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.”). Under the APA, a court may set aside an agency decision if the 

decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law,” 5 U.S.C. § 706(2)(A), where the criteria for equitable relief are satisfied, see Centech Grp., 

Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citing PGBA, 389 F.3d at 1228-29). 

While the court’s review of agency action is deferential, see Advanced Data Concepts, Inc. v. 

United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000), that review must also be “searching and 

careful,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated 

in part by Califano v. Sanders, 430 U.S. 99, 105 (1977) (abrogating Overton Park to the extent 

that it recognized the APA as an independent grant of subject matter jurisdiction). When an 

agency action is challenged, the court “must determine whether the contracting agency provided 

a coherent and reasonable explanation of its exercise of discretion.” Axiom Res. Mgmt., Inc. v. 

United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (internal citation and quotation marks 

omitted); see also Alabama Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 

1376 (Fed. Cir. 2009). The court may not, however, “‘substitute its judgment for that of the 

agency.’” Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753, 755 (2004) (quoting Citizens to 

Preserve Overton Park, 401 U.S. at 416). 

Under these standards, the court may set aside a procurement decision where “(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). An agency’s determination lacks a 

rational basis if the contracting officer “‘failed to consider an important aspect of the problem, 

offered an explanation for its decision that runs counter to the evidence before the agency, or [the 

result] is so implausible that it could not be ascribed to a difference in view or the product of 

agency expertise.’” Keeton Corrs., 59 Fed. Cl. at 755 (quoting Motor Vehicle Mfrs. Ass’n v. 

 

31As interested parties, Per Aarsleff and Copenhagen Arctic also have standing to 

challenge the award. See Per Aarsleff’s Mot. at 32-34; see also Copenhagen Arctic’s Mot. at 20. 

But for the impact of the Air Force’s decisions which are alleged to be arbitrary or unlawful, 

both parties would have had a “substantial chance” of being the awardee. See Rex Serv. Corp., 

448 F.3d at 1308. 
27

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “[T]he disappointed bidder bears a 

heavy burden of showing that the award decision had no rational basis.” Centech Grp., 554 F.3d 

at 1037 (internal citations and quotation marks omitted). In challenging an agency action on the 

second ground, the disappointed bidder must establish “‘a clear and prejudicial violation of 

applicable statutes or regulations.’” Impresa Construzioni, 238 F.3d at 1333 (quoting Kentron 

Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)). 

ANALYSIS 

A. Eligibility 

1. The terms of the Solicitation. 

As previously emphasized, the Solicitation specified that “[p]articipation in this 

acquisition is limited to Danish/Greenlandic enterprises.” AR 88-5252. The primary dispute in 

this litigation turns on what was meant by Danish-Greenlandic enterprises and specifically on the 

meaning and interpretation of the phrase, “THE ENTERPRISE . . . SHALL NOT BE 

REGISTERED AS A SUBSIDIARY OF [A] FOREIGN COMPANY,” found in Sections L-3 

and L-6 of the Solicitation. See AR 88-5252, 5259 (emphasis in original). This restrictive 

phrase focuses on an enterprise organized as a company rather than under a different economic 

and organizational structure, e.g., as a partnership, sole proprietorship, association, joint venture, 

or cooperative. That focus is perhaps understandable from a practical perspective, because the 

procuring authority would expect that the corporate form would be employed by enterprises 

large enough to compete for a contract as substantial as the one at hand. In all events, Danish 

corporate law is at issue. 

The government insists that the eligibility restriction concerned the issue of registration 

and that its intent was to ensure that offerors were fully “registered as Danish” by excluding

entities specifically “registered as” a subsidiary of a foreign company. See Def.’s Cross-Mot. at 

17-26; see also Exelis Services’ Cross-Mot. at 31-34. The plaintiffs disagree, arguing that the 

restrictive language of Section L should be interpreted as being about foreign ownership rather 

than registration. See, e.g., Per Aarsleff’s Mot. at 11-17. Under plaintiffs’ interpretation, any 

subsidiary of a foreign company would not qualify as an eligible Danish or Greenlandic 

enterprise under the RFP. See, e.g., Greenland Contractors’ Mot. at 8-11. 

Pursuant to the canons of contract interpretation, this court “must consider the solicitation 

as a whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of its 

provisions.” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1353 (Fed. Cir. 2004); see 

also Dalton v. Cessna Aircraft Co., 98 F.3d 1298, 1305 (Fed. Cir. 1996) (“We read the language 

of a particular contractual provision in the context of the entire agreement . . . and construe the 

contract so as not to render portions of it meaningless . . .”) (citing Fortec Constructors v. United 

States, 760 F.2d 1288, 1292 (Fed. Cir. 1985); United States v. Johnson Controls, Inc., 713 F.2d 

1541, 1555 (Fed. Cir. 1983)). “An interpretation that gives meaning to all parts of the contract is 

to be preferred over one that leaves a portion of the contract useless, inexplicable, void, or 

superfluous.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (citing 

Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)); see also Fortec 
28

Constructors, 760 F.2d at 1292 (“This court must be guided by the well accepted and basic 

principle that an interpretation that gives a reasonable meaning to all parts of the contract will be 

preferred to one that leaves portions of the contract meaningless.”) (citing United States v. 

Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed. Cir. 1983)); Restatement (Second) of 

Contracts § 203(a) (1981) (“[A]n interpretation which gives a reasonable, lawful, and effective 

meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, 

unlawful, or of no effect.”).

The government’s construction violates these fundamental tenets of contract 

interpretation. Because it was not possible to register a company in Denmark as a subsidiary of a 

foreign company during the time of the procurement, the government’s interpretation eviscerates

any significant meaning from the eligibility criterion and renders the restriction illusory. Cf. 

United States v. Seckinger, 397 U.S. 203, 213-14 (1970) (“The view adopted by the Court of 

Appeals . . . would drain this clause [of the contract] of any significant meaning.”). As the 

government and Exelis Services would have it, foreign entities could create Danish subsidiaries 

prior to submission of a proposal and then qualify for an award. Under their interpretation, the 

restriction set forth in Section L-3 that limited participation to “Danish/Greenlandic enterprises” 

could easily be circumvented and converted into a formalistic non-substantive criterion that 

would not serve to fulfill the executive agreements between the United States and Denmark 

regarding Greenland. See AR 88-5252 to 5253. The government maintains its interpretation 

even though early in this litigation it “acknowledge[d] that the Air Force’s explanation in the 

December 2013 question and answer was incorrect and there is not, in fact, a way to register as a 

‘subsidiary of foreign company’ in the CVR.” Def.’s Opp’n to Pls.’ Mots. for a Prelim. Inj. at 

29; see also Def.’s Cross-Mot. at 29 (“[T]here is not, in fact, a way to register as a ‘subsidiary of 

[a] foreign company.’”). The court will not sanction such an unreasonable outcome. See Perry 

& Wallis, Inc. v. United States, 427 F.2d 722, 726 (Ct. Cl. 1970) (“[I]f plaintiff’s interpretation 

of the contract is followed literally, it could lead to extremely unreasonable results. . . . Any 

interpretation of the contract that would sanction such a result would be patently unreasonable.”). 

Some recasting of the language in the Solicitation is necessary due to the defect in the 

eligibility criteria stated in Sections L-3 and L-6. In that respect, the court strongly prefers to 

excise the mistaken words, preserving the remainder of the text and comporting with the evident 

intent of the procuring agency to implement the pertinent bilateral agreements. Cf. Hibbs v. 

Winn, 542 U.S. 88, 89 (2004) (discussing the cardinal rule against superfluities); see also NVT 

Techs., 370 F.3d at 1159. Exelis Services provides a list of hypothetical circumstances in which 

a Danish entity would or would not be eligible for award under plaintiffs’ interpretation. See 

Exelis Services’ Cross-Mot. at 35-36. For example, “a registered Danish company (A/S) which 

is owned in its entirety by an individual citizen of any foreign country” would be eligible for 

award, but “[a] registered Danish company (A/S) whose parent is a corporation of a European 

Union Member” would be ineligible. Id.; see also Def.’s Cross-Mot. at 20-21. Any “shortcoming” along these lines is not germane to this bid protest; the underlying executive agreements 

focus on Danish and Greenlandic sources, not those of the European Union generally. The 

government also argues that “read[ing] the words ‘registered as’ completely out of the provision 

. . . [v]iolates the ‘cardinal principle of construction of contracts that . . . every word in [a 

contract], will, if possible, be given effect.’” Def.’s Cross-Mot. at 20 (citing AMP Inc. v. United 

States, 389 F.2d 448, 454 (Ct. Cl. 1968)). In making this argument, the government ignores the 
29

fact that it was never possible to register as a foreign subsidiary and that its interpretation overlooks the remaining words of the disputed provision, thus disavowing the same legal axiom upon

which it relies.32 

Finally, the government’s interpretation of the eligibility restriction contradicts longstanding agreements and other communications between the United States and Denmark, which 

explicate the intent and meaning of the eligibility restriction. Cf. Ralden P’ship v. United States, 

891 F.2d 1575, 1577 (Fed. Cir. 1989) (“The primary objective of contract interpretation is to 

ascertain the intent of the parties at the time they entered into the contract.”). Plaintiffs correctly 

state that the purpose of the restriction was “to ensure Greenland and Greenlandic society [the] 

greatest possible benefits from the agreement.” See AR 20g-874. This purpose has also been 

confirmed by the government of Denmark. See Liisberg Decl. ¶ 48 (“[T]he object and purpose 

of the . . . eligibility criteria . . . was to ensure Greenland and Greenlandic society greatest 

possible benefits from the agreement, and the intention was to maintain the spirit of the 

agreements underlying the recent procurement procedure.”) (quotation marks omitted). 

According to Ambassador Liisberg, the eligibility criteria in the Solicitation were intended to 

ensure that offerors “not only have a formal link by registration to Denmark or Greenland, but a 

real and genuine link, avoiding shell companies owned and controlled by foreign companies.” 

Id. (emphasis added). The Air Force’s actions during the evaluation process reinforce the 

interpretation now being offered by Ambassador Liisberg. The Air Force first informed offerors 

during the RFP Q&A period that it was possible “to see if the company is fully registered as 

Danish or acting as a foreign subsidiary in Denmark.” See AR 20e-826 (RFP Q&A) (emphasis 

added). It also did not affirmatively agree with Danbor’s premise that a “foreign company” 

would be eligible for award if “registered as a [Danish company].” AR 271-28735 (Danbor 

Q&A). Later, the Air Force asked the Danish Ministry of Finance to confirm whether offerors 

could be “considered Danish [f]irms and not a subsidiary of a foreign firm.” AR 20g-879

(emphasis added).33 Lastly, a contract specialist in the Air Force asked the Danish Business 

 

32Perhaps recognizing that its interpretation of the Solicitation is undermined by the 

recent Joint Statement of the Danish and United States governments, the government argues that 

the Joint Statement “may not be considered for purposes of the merits because it is not part of the 

administrative record, nor has the [c]ourt granted a motion to supplement the administrative 

record with this post hoc document.” Def.’s Cross-Mot. at 25. Although the Joint Statement 

might not be “corrective action,” see Def.’s Opp’n to Mots. for Prelim. Inj. at 58 n.24, it does 

indicate that the Air Force’s action in the procurement was erroneous. As such, the court may 

take it into account. See Blue & Gold Fleet, LP v. United States, 70 Fed. Cl. 487, 494 (2006), 

aff’d, 492 F.3d 1308 (Fed. Cir. 2007) (reciting that courts have considered such materials “in 

cases where evidence arising after the agency actions shows whether the decision was correct or 

not”) (emphasis added).

33In the proceedings before GAO, the contracting officer submitted a statement of facts 

that distorted the question, stating that “[o]n July 30, 2014[,] an e[-]mail was sent to the [Danish 

Ministry of Finance] requesting assistance in confirming whether all Offerors were considered 

Danish firms and not registered as subsidiaries of a foreign company.” AR 20c-681 (emphasis 

added). The actual question posed did not ask about registration, but whether the offerors could 
30

Authority if it could “help by confirming that [the offerors] . . . [were] not subsidiaries of foreign

companies.” AR 20g-881 (emphasis added); see also AR 20g-879. These communications 

confirm that the Air Force was concerned with the issue of foreign ownership and intended to 

exclude foreign subsidiaries from eligibility.34 Yet, the effect of adopting the government’s 

proffered construction would be to read the foreign ownership restriction out of the Solicitation 

altogether. Such a reading would be impermissible. See Roschen v. Ward, 279 U.S. 337, 339 

(1929) (Holmes, J.) (“[T]here is no canon against using common sense in construing laws as 

saying what they obviously mean.”); cf. United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 

(1805) (Marshall, C.J.) (“Where the mind labours to discover the design of the legislature, it 

seizes every thing from which aid can be derived.”) (looking to the title of an act as an aid to 

construction). 

 Exelis Services diverges from the government’s interpretative contentions and argues 

that the intent of the eligibility criterion was to preclude offerors registered as a branch of a 

foreign company. See Exelis Services’ Cross-Mot. at 13-21; see also Def.-Intervenor Exelis 

Services A/S’s Reply in Support of its Cross-Mot. for Judgment on the Admin. Record and 

Opp’n and Response to Pls.’ Replies to the Def.’s and Def.-Intervenor’s Cross-Mots. for 

Judgment on the Admin. Record (“Exelis Services’ Reply”) at 12-18, ECF No. 75. Exelis 

Services avers that “the record is clear that the crux of the eligibility criteria was, and always has 

been, premised on registration.” Exelis Services’ Cross-Mot. at 13 (emphasis in original). 

Exelis Services deals with the mistake in translation by averring that the Solicitation containing 

the phrase “not registered as subsidiary of [a] foreign company,” AR 88-5252 to 5253, 5257

(emphasis added), erroneously referred to “subsidiary” instead of a “branch” of a foreign 

company. Exelis Services’ Cross-Mot. at 20. Because Exelis Services is a registered Danish 

company, i.e., an A/S, and not a branch of a foreign company, it contends that “the outcome 

simply would not have been different if the mistake [in translation] had not occurred.” Id. 

While creative, this argument is untethered to the administrative record before the court. 

See Combined Reply of Greenland Contractors I/S in Support of Its Mot. For Judgment on the 

Admin. Record and in Opp’n to Def.’s and Intervenor’s Cross-Mots. (“Greenland Contractors’

Reply”) at 6 n.3, ECF No. 69. First, Exelis Services’ argument contradicts the position of the 

Air Force during the protests before GAO. See Copenhagen Arctic’s Reply at 3. There, the 

Air Force was asked in a set of interrogatories to “respond to the point raised by the protester 

that the agency used ‘branches’ and ‘subsidiaries’ as if they were synonyms.” AR 256-28560 

(Agency’s Answers to Interrogatories). The Air Force responded that “[it] reasonably used the 

 

be considered “Danish firms and not a subsidiary of a foreign firm.” AR 20g-879 (emphasis 

added). 

34The acquisition plan for the Thule Contract further shows that the Air Force was 

concerned about ownership of the offerors. The Air Force initially identified only six potential 

Danish or Greenlandic businesses. See AR 20zg-1507. It also characterized non-Danish or 

Greenlandic firms as those entities with less than 49 percent Danish or Greenlandic ownership. 

See AR 20zg-1501, 1521. Notably, “a ‘subsidiary corporation’ is defined as ‘one in which 

another corporation owns at least a majority of the shares and thus has control.’” Copenhagen 

Arctic’s Mot. at 13 (quoting Black’s Law Dictionary, Fifth Edition, (1968)). 
31

term ‘subsidiary’ as a result of its international legal obligations” and stated that “[it] did not 

use the term ‘subsidiary’ by mistake.” Id. (emphasis added). Second, irrespective of whether 

Mr. [***] mistranslated “branch” for “subsidiary,” see AR 20f-873, the United States 

Ambassador and the Danish Ministry of Finance negotiated the 2013 Diplomatic Note (written in 

English) to expressly include the word “subsidiary,” see AR 20g-875. Absent from the 

negotiated criteria in the 2013 Diplomatic Note were any references to a “branch.” See AR 20g874 to 875. Finally, the word “subsidiary” was also repeated several times by the contracting 

officer during the RFP Q&A, as well as by Air Force personnel during the evaluation. See 

supra, at 9, 16. Based on this evidence, the Solicitation prohibited foreign subsidiaries, not 

foreign branches. Exelis Services’ argument is not persuasive. 

Mindful of the bilateral agreements and understandings between the United States and 

Danish government and in light of the foregoing, the only reasonable interpretation of the phrase, 

“SHALL NOT BE REGISTERED AS A SUBSIDIARY OF [A] FOREIGN COMPANY,” is that 

Danish subsidiaries of foreign entities did not qualify as eligible “Danish/Greenlandic 

enterprises.” See AR 88-5252 to 5253, 5257 (emphasis in original). Company registration was 

used mistakenly as a means to ensure genuine Danish or Greenlandic ownership and control. 

Given that some recasting must be done to take account of this fault, the court’s reading accords 

a reasonable meaning to all parts of Sections L-3 and L-6, except for the mistaken words 

“registered as.” See Banknote Corp. of Am., 365 F.3d at 1353; see also Fortec Constructors, 760 

F.2d at 1292. 

2. Defect and waiver. 

Relying on Blue & Gold Fleet, 492 F.3d 1308, the government argues that plaintiffs 

should have realized there was a patent defect in the eligibility criterion and that their failure to 

raise the issue before the close of the bidding process constitutes a waiver barring their reliance 

on the defect as the basis for a protest in this court. See Def.’s Cross-Mot. at 26-34; see also 

Exelis Services’ Cross-Mot. at 40-49. Plaintiffs resist this contention by arguing that the mistake 

concerning registration constituted a latent error that should be construed against the Air Force, 

i.e., the drafter of the Solicitation. See Per Aarsleff’s Mot. at 18-23; see also Greenland 

Contractors’ Mot. at 16-17; Copenhagen Arctic’s Mot. at 16-18. The court accordingly must 

address whether the defect in the Solicitation was latent or patent. See E.L. Hamm & Assocs., 

Inc. v. England, 379 F.3d 1334, 1342 (Fed. Cir. 2004) (“Just as a contractor may recover for a 

latent ambiguity, a contractor may recover for a latent defect; just as a contractor may not 

recover for a patent ambiguity, a contractor may not recover for a patent defect.”).35

The doctrine of contra proferentem “puts the risk of ambiguity, lack of clarity, and 

absence of proper warning on the drafting party which could have forestalled the controversy[,] 

. . . and it saves contractors from hidden traps not of their own making.” Metcalf Const. Co. v. 

 

35The language in the Solicitation was not ambiguous but rather was defective. 

“Nevertheless, there are similarities in the law,” E.L. Hamm & Assocs., 379 F.3d at 1342, and the 

court will treat the government and Exelis Services as arguing in favor of finding a patent defect 

and plaintiffs as arguing for a latent defect. 
32

United States, 53 Fed. Cl. 617, 629 (2002) (alteration in original) (citing Sturm v. United States,

190 Ct. Cl. 691, 697 (1970)). However, an exception to the rule of contra proferentem exists 

when the defect in the solicitation is found to be patent, rather than latent. See Blue & Gold 

Fleet, 492 F.3d at 1313 (citing E.L. Hamm & Assocs., 379 F.3d at 1342). In Blue & Gold Fleet,

the Federal Circuit held that a plaintiff that “has the opportunity to object to the terms of a 

government solicitation containing a patent error and fails to do so prior to the close of the 

bidding process waives its ability to raise the same objection subsequently in a bid protest action 

in the Court of Federal Claims.” 492 F.3d at 1313 (emphasis added). The court explained, 

We have applied the doctrine of patent ambiguity in cases where, 

as here, a disappointed bidder challenges the terms of a solicitation 

after the selection of another contractor. See Stratos Mobile 

Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. 

Cir. 2000); Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 

(Fed. Cir. 1996). Under the doctrine, where a government 

solicitation contains a patent ambiguity, the government contractor 

has ‘a duty to seek clarification from the government, and its 

failure to do so precludes acceptance of its interpretation’ in a 

subsequent action against the government. Stratos, 213 F.3d at 

1381 (quoting Statistica, 102 F.3d at 1582). 

Id.36

A defect is patent “when the contract contains facially inconsistent provisions that would 

place a reasonable contractor on notice and prompt the contractor to rectify the inconsistency by 

inquiring of the appropriate parties.” Stratos Mobile Networks, 213 F.3d at 1381. Conversely, a 

defect is latent when it is hidden or concealed and not apparent on the face of the document. See 

J.C.N. Const., Inc. v. United States, 107 Fed. Cl. 503, 512 (2012) (distinguishing between “subtle 

inconsistencies [that] do not put a reasonable contractor on notice” and “obvious, gross, [or] 

glaring” inconsistencies that are patent) (alteration in original) (quoting Grumman Data Sys. 

Corp. v. Dalton, 88 F.3d 990, 997 (Fed. Cir. 1996) (in turn quoting H & M Moving, Inc. v. 

United States, 499 F.2d 660, 671 (Ct. Cl. 1974))); see also Mountain Home Contractors v. 

United States, 425 F.2d 1260, 1264 (Ct. Cl. 1970) (“The government cannot make a contractor 

the insurer of all government mistakes. The duties imposed on a contractor were succinctly 

stated in Blount Bros. Constr. Co. v. United States, . . . 346 F.2d 962, 973 ([Ct. Cl.] 1965]: ‘. . . 

 

36The court in Blue & Gold Fleet stated that the waiver rule furthers the statutory 

mandate that “the courts shall give due regard to the interests of national defense and national 

security and the need for expeditious resolution of the action.” 492 F.3d at 1313 (quoting 28 

U.S.C. § 1491(b)(3)). Recently, the Federal Circuit has reiterated that the “waiver rule 

implements this statutory mandate by reducing the need for the ‘inefficient and costly’ process of 

agency rebidding ‘after offerors and the agency ha[ve] expended considerable time and effort 

submitting or evaluating proposals in response to a defective solicitation.’” Bannum, Inc. v. 

United States, 779 F.3d 1376, 1380 (Fed. Cir. 2015) (citing Blue & Gold Fleet, 492 F.3d at 1314) 

(alteration in original). 
33

[T]hey are not expected to exercise clairvoyance in spotting hidden ambiguities in the bid 

documents . . . . ’”). 

Here, the mistaken “registered as” language in Sections L-3 and L-6 of the Solicitation 

appeared to be correct but was in fact defective. Nothing about the text appeared to be 

implausible or contradicted other portions of the Solicitation. Before the Solicitation was issued, 

neither the Air Force nor the State Department, nor indeed the Danish Ministry of Foreign 

Affairs, understood that it was impossible to register as a foreign-owned subsidiary in the CVR. 

Potential offerors asked for clarification but received incorrect or erroneous answers, reflecting 

the Air Force’s mistaken belief at the pertinent time. During procurement, the Air Force 

repeatedly assured offerors that it was possible to register as a foreign subsidiary. See supra, at 

9-10. Only later, in August 2014 (three months before award), did the Air Force discover the 

error, see AR 20g-883, but it chose to continue with the procurement without correcting the 

mistake or notifying the offerors of the inaccuracy.37 In these circumstances, the underlying 

error was not patent. The impossibility of registering as a foreign subsidiary cannot be said to be 

“obvious, gross, [or] glaring,” H & M Moving, 499 F.2d at 671, when the Air Force specifically 

confirmed this possibility to offerors, cf. Grumman Data Sys., 88 F.3d at 998 (finding an 

ambiguity patent when the “agency’s answer [was] susceptible to more than one meaning on its 

face”). 

The question also arises whether there was reason during the procurement for offerors to 

investigate the veracity of the language in the Solicitation and the accuracy of the answers 

provided by the Air Force. See Def.’s Reply at 7-9. Compare NVT Techs., 370 F.3d at 1162 

(Where “a certain set of line items [were] expressed in a manner so different from hundreds of 

other line items, yielding totals disproportionate to the remainder of the solicitation,” it “should 

have raised a red flag for [the offeror], requiring [the offeror] to inquire”), with E.L. Hamm & 

Assocs., 379 F.3d at 1343 (“Without any reason to reverse engineer the daily mowing and 

policing acreages or, conversely, to calculate a minimum yearly total for policing using the 

single mowing acreage, [petitioner] had no reason to discern the error [in the solicitation].”). To 

 

37The government insists that the contracting officer did not realize that it was impossible 

to register as a foreign subsidiary until after the award decision. See Def.’s Cross-Mot. at 33-34. 

To support this position, the government cites to evidence involving a post-award debriefing 

session dated November 6, 2014, in which “the contracting officer told both [Per] Aarsleff and 

Copenhagen Arctic that it was possible to register as a ‘subsidiary of a foreign company.’” Id. 

(citing AR 1-435 (Decl. of Kurt Carlsen (Nov. 10, 2014)); AR 223-23077 (Copenhagen Arctic’s 

GAO Protest (Nov. 11, 2014))). The government’s argument is untenable. The contracting 

officer asked for assistance directly from the Danish Business Authority, and in August 2014, 

was advised that the Authority “does [not] register owners, therefor[e] this [A]uthority cannot 

shed light [on] w[hether] or not the companies are subsidiaries of foreign companies.” AR 20g883. Moreover, the administrative record shows that the contracting officer received notice from 

Exelis Services that it was a “wholly-owned subsidiary of [Vectrus] Systems Corporation” as 

early as June 16, 2014. AR 145-11033. In light of this record evidence, the court finds it 

incredible that the contracting officer pre- or post-award was under the belief that it was possible 

to register as a foreign subsidiary. 
34

discover the defect in the Solicitation in this case, the offerors would have had to assume that the 

Air Force’s information was factually erroneous and then independently contact the Danish 

Business Authority to inquire whether it was possible to register as a foreign subsidiary. See Per 

Aarsleff’s Mot. at 19. The defect was not “obvious on the face of the [S]olicitation.” NVT 

Techs., 370 F.3d at 1162. Even though plaintiffs are “Danish companies” and could have 

requested a formal opinion from Danish Business Authority, see Def.’s Cross-Mot. at 29, “Blue 

& Gold [Fleet] does not require offerors to second guess the plain language of a solicitation and 

inquire about the veracity or accuracy of every assertion set out in a solicitation,” J.C.N. Const.,

107 Fed. Cl. at 512. 

Accordingly, Blue & Gold Fleet is not applicable in this case, and having itself 

discovered the mistake during the evaluation process, the Air Force was responsible for 

correcting the error. See Metropolitan Van & Storage, Inc. v. United States, 92 Fed. Cl. 232, 267 

(2010) (“[I]f [the agency] did not craft the solicitation as artfully as it should have, [the agency] 

will be responsible for the resulting impact on the procurement.”). The government challenges 

this conclusion on the ground that FAR § 15.206 does not specifically state that agencies are 

responsible for correcting known defects in a solicitation before award. See Def.’s Cross-Mot. at 

33. The cited provision of the FAR provides that “when, either before or after receipt of 

proposals, the [g]overnment changes its requirements or terms and conditions, the contracting 

officer shall amend the solicitation.” FAR § 15.206(a). The government’s argument is peculiar 

and wrong. FAR § 15.206 deals with an agency’s decision to amend a solicitation to change 

requirements, terms, or conditions. Drawing a negative inference from a failure to make an 

amendment is not permissible, and thus the provision cannot be read to exculpate an agency from 

being responsible for mistaken language it includes in a solicitation. 

3. Arbitrary and capricious nature of the agency’s decision.

“It is blackletter law that a procuring agency may only accept an offer that conforms to 

the material terms of the solicitation.” Furniture by Thurston v. United States, 103 Fed. Cl. 505, 

518 (2012); see also E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996) (“[A] 

proposal that fails to conform to the material terms and conditions of the solicitation should be 

considered unacceptable and a contract award based on such an unacceptable proposal violates 

the procurement statutes and regulations.”) (internal citations and quotation marks omitted). A 

provision in a solicitation is material “if failure to comply with it would have a non-negligible 

effect on the price, quantity, quality, or delivery of the supply or service being procured.” 

Furniture by Thurston, 103 Fed. Cl. at 518 (citing USfalcon, Inc. v. United States, 92 Fed. Cl. 

436, 457 (2010) (in turn citing Centech Grp., 554 F.3d at 1038)). As previously discussed, a 

material term in the RFP required the awardee to be a genuine Danish or Greenlandic enterprise, 

and to that effect, prohibited foreign subsidiaries from competition. The Air Force awarded the 

Thule Contract to a company that is incorporated as a Danish entity, but one that undeniably is a 

subsidiary of a United States (foreign) company. See supra, at 15, 18; see also Exelis Services’ 

Cross-Mot. at 22 (acknowledging that “at the time of its registration, Exelis Services was a 

subsidiary of [Vectrus] Systems, an American corporation”). On these facts, the Air Force 

contravened federal procurement law when making an award based upon a proposal that failed to 

satisfy the material source restriction that limited competition to Danish or Greenlandic entities 

and not subsidiaries of foreign companies. Further, the government has neither “‘provided a 

coherent and reasonable explanation of its exercise of discretion’” in making the award to a 
35

Danish subsidiary of a non-Danish company, Impresa Construzioni, 238 F.3d at 1333 (quoting 

Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)), nor 

has it articulated a “‘rational connection between the facts found and the choice made,’” Motor 

Vehicle Mfrs., 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 

168 (1962)). 

In short, the agency’s decision to award Exelis Services the Thule Contract was arbitrary 

and capricious and not in accord with federal procurement law. See 5 U.S.C. § 706(2)(A). 

B. Performance Standard for Subcontracting 

Greenland Contractors and Copenhagen Arctic further aver that the Air Force failed to 

evaluate the proposals in accord with Section H-6 and PWS 3.1.16 of the Solicitation, which 

required offerors to “[m]aximize . . . contract-related purchases and subcontracts from Danish 

and Greenlandic sources” and to “[d]ocument and justify any exceptions.” AR 88-5227, 5279; 

see also Greenland Contractors’ Mot. at 18-22; Copenhagen Arctic’s Mot. at 20-27.38

 Both of 

these plaintiffs contend that if Per Aarsleff should be awarded the contract, work would be 

performed by the United States-based subcontractor, [***], see supra, at 18 n.23. Greenland 

Contractors and Copenhagen Arctic argue that the Air Force unreasonably failed to evaluate Per 

Aarsleff’s justification for relying on the United States teaming partner. See Greenland 

Contractors’ Mot. at 20; see also Copenhagen Arctic’s Mot. at 21-22.

39 Per Aarsleff does not 

deny that it intends to rely on [***] if awarded the Thule Contract. Rather, it aligns itself with 

 

38Copenhagen Arctic argues that these passages permitted a contractor to subcontract 

with a foreign entity only when it was “not feasible” to use Danish or Greenlandic sources. See 

Copenhagen Arctic’s Mot. at 21. The “feasible” language cited by Copenhagen Arctic can be 

found in the 2009 Diplomatic Note that amended Article IV of the 1991 MOU. See AR 20z1443. The 2009 Diplomatic Note stated that the two governments “shall procure directly from 

Danish/Greenlandic sources,” but “[w]hen procurement from such sources is not feasible, U.S. 

requirements may be satisfied by procurement from U.S. or other sources.” Id. Also pertinent is 

the 1962 Aide Memoire discussed supra, at 5. 

39In like vein, Greenland Contractors urges that Copenhagen Arctic was also required to 

justify use of its United States partner, DynCorp International, because that entity would be 

responsible for performing a significant portion of the work if Copenhagen Arctic had won the 

award. See Greenland Contractors’ Mot. at 20. Copenhagen Arctic disagrees and avers that 

“[a]ll of the subcontractors to be used . . . are ultimately owned by Danish companies,” 

Copenhagen Arctic’s Mot. at 22. Copenhagen Arctic does, however, admit that one Danish 

subcontractor, Burmeister & Wain Scandinavian Contractors (“BWSC”), is ultimately owned by 

a non-Danish company, see Copenhagen Arctic’s Reply at 19 n.4 (“In 1990 BWSC’s Danish 

parent company was acquired by a Japanese company.”). It also notes that if awarded the 

contract, it plans to rely on a Swedish company, Volvo Construction Equipment, but only as a 

“supplier,” not as a subcontractor. See id. In response, Exelis Services notes that “under the 

Federal Acquisition Regulation, a ‘subcontactor’ is defined as ‘any supplier, distributor, vendor, 

or firm that furnishes supplies or services to or for a prime contractor or another subcontractor.’” 

Exelis Services’ Reply at 24 n.29 (emphasis in original) (quoting FAR § 44.101). 
36

the government and Exelis Services on this protest ground, arguing that “[S]ection H-6 and PWS 

3.1.16 apply only to post-award subcontract arrangements and merely reflect a subjective 

‘performance standard’ to maximize purchases from Danish and Greenlandic sources, not a strict 

and measurable offeror eligibility requirement or minimum proposal qualification.” Per 

Aarsleff’s Mot. at 28-29; see also Def.’s Cross-Mot. at 41 (“Copenhagen Arctic and Greenland 

Contractors’ arguments are meritless because offerors were not required to justify their use of 

United States subcontractors in their proposals.”); Exelis Services’ Cross-Mot. at 54 (“[T]hese 

RFP provisions establish performance standards to be used in the administration of the contract, 

but do not—as Greenland Contractors asserts—establish eligibility or evaluation criteria.”). 

The court agrees that the RFP provisions cited by Greenland Contractors and 

Copenhagen Arctic establish post-award performance standards that pertain to administration of 

the contract and do not create a supplementary evaluation criterion. See, e.g., AR 88-5227.

(Section H is titled “Special Contract Requirements”) (emphasis added).40 Indeed, there were no 

instructions in Section L (“Instructions, Conditions, and Notices to Offerors”) to include 

documentation regarding use of foreign subcontractors, and Section M (“Evaluation Factors for 

Award”) did not require the Air Force to evaluate offerors in accord with PWS 3.1.16. Cf. Bae 

Sys. Tech. Solutions & Servs., Inc., B-409914, 2014 WL 5804275, at *7 n.5 (Comp. Gen. Sept. 

16, 2014) (holding that certain criteria were “not part of the key personnel evaluation under 

section M of the [task order request], but rather, a performance requirement listed in section H.10 

of the [task order request] under personnel training and certification requirement.”). And further, 

the plain text of the Solicitation makes evident that the focus of Section H-6 and PWS 3.1.16 is 

on “purchases and subcontracts” relating to products, not services. See AR 88-5277.41

 Section 

H notes that “[p]roducts not acquired by Danish and/or Greenlandic sources must be procured 

[in accord with certain identified FAR provisions],” AR 88-5227 (emphasis added), and PWS 

3.1.16 requires compliance with FAR § 52.223-2, which governs “Affirmative Procurement of 

Biobased Products Under Service and Construction Contracts,” AR 88-5279 (emphasis added). 

 

40Because Section H-6 and PWS 3.1.16 establish performance standards rather than 

eligibility criteria, Copenhagen Arctic’s reliance on Technology Servs. Int’l, Inc., B-276506, 

1997 WL 658746 (Comp. Gen. May 21, 1997), is misplaced. In Technology Services, GAO 

recommended that the Air Force reevaluate proposals because the awardee had not provided a 

requisite work scheduling system in its proposal. 1997 WL 658746, at *4. There, the work 

scheduling system was a requirement of the RFP, which stated that an “offeror will be evaluated 

to assess whether its quality control plan included, among other things, ‘a work scheduling 

system which shows by area the day and time when all requirements covered in the PWS will be 

accomplished.’” Id., at *2. Contrary to the subcontracting requirement in this Solicitation, the 

work scheduling system in Technology Services was required to be included in the proposal 

itself; it was not simply a performance requirement as here. See id., at *2, *4. 

41The Aide Memoire, invoked under Section H-6, reinforces this interpretation. It 

addressed “[p]articipation of Danish suppliers in the areas of local purchase items and 

perishable subsistence” and provided that “total volume of such purchases . . . would be solicited 

each fiscal year from Danish sources by a purchasing activity located in Copenhagen.” AR 20zf1467 to 1468 (emphasis added). 
37

Read together, these clauses cannot be interpreted to apply to an offeror’s proposed teaming 

arrangement.

Nonetheless, teaming arrangements were important insofar as employment opportunities 

for Danish and Greenlandic citizens were concerned. Copenhagen Arctic emphasizes that 

Section M of the Solicitation required compliance with “all stated terms, conditions, 

representations, certifications, and all other information required by Section L of this 

[S]olicitation,” and “[n]on-compliance with the RFP may be ground to eliminate the proposal 

from consideration for contract award.” Copenhagen Arctic’s Mot. at 23 (quoting AR 88-5261, 

5254). All four offerors submitted proposals agreeing to comply with paragraph 3.1.16 of the 

PWS during performance of the contract, see AR 173-15049 (Copenhagen Arctic’s Proposal 

Revisions (July 23, 2014)) (“We have no exceptions to the solicitation terms and conditions.”); 

AR 111-7908 (Per Aarsleff’s Proposal Revisions (July 3, 2014)) (“We take no exceptions to the 

terms and conditions included in the solicitation.”); AR 153-12281 (Greenland Contractors’ 

Initial Proposal (May 9, 2014)) (“Greenland Contractors I/S has no exceptions to any of the 

solicitation requirements.”); AR 97-6314 (Exelis Services’ Initial Proposal (May 9, 2014)) 

(“Exelis [Services] will comply with all of the Performance Work Statement (PWS) requirements and takes no exception to any of the terms, conditions, representations, certifications or 

provisions in this [S]olicitation.”). A contracting officer is ordinarily entitled to rely upon such 

certifications when determining whether to accept a proposal. See Allied Tech. Grp., Inc. v. 

United States, 649 F.3d 1320, 1330 (Fed. Cir. 2011). Even so, the court may inquire whether 

there was a basis on the face of the offers for the Air Force to conclude that the offerors could 

not (or would not) comply with Section H or PWS 3.1.16 during contract performance. See 

Hyperion, 115 Fed. Cl. at 553 (finding that the agency should have found proposals to be 

technically unacceptable where it was readily apparent that the offerors “would not and could not 

comply with the limitations on subcontracting incorporated into the solicitation”) (citing Centech 

Grp., 554 F.3d at 1038). 

Greenland Contractors argues that the court’s decision in Hyperion “is on all fours with 

this case . . . [b]ecause it was clear from the face of their proposals that Exelis [Services], Per 

Aarsleff, and Copenhagen Arctic . . . inten[ded] to [***].” Greenland Contractors’ Mot. at 19, 

21. In Hyperion, a limitation-on-subcontracting clause, set forth in FAR § 52.219-14, was 

applicable and required that “[a]t least 50% of the cost of the contract performance incurred for 

personnel shall be expended for employees of the [small business].” Id. at 551 (alteration in the 

original) (citing FAR § 52.219-14(c)(1)).42 In response, the government avers that Hyperion “is 

easily distinguishable” because PWS 3.1.16 “contains no firm limitation on subcontracting to

United States concerns.” Def.’s Reply at 12. Additionally, the government contends that there 

was nothing on the face of the proposals to indicate that the offerors did not intend to comply 

with the PWS or Section H. Id. at 12-13. 

 

42

“In Centech, a contract awardee lost the award upon protest by another offeror because 

the awardee’s proposal stated that it would incur only 43.2% of the contract’s labor costs . . . . 

The court noted that the pertinent question was not whether the awardee could comply with the 

limitation-on-subcontracting clause, but rather whether it would comply with the limitation.” 

Hyperion, 115 Fed. Cl. at 551 (alteration in original) (citing Centech Grp., 554 F.3d at 1033, 

1040). 
38

The court agrees with the government that this case is factually distinguishable from 

Centech and Hyperion. The proposals submitted by the offerors for this Solicitation lacked 

facial indications that the offerors could not or would not maximize the use of Danish or 

Greenlandic employees during contract performance. Besides submitting proposals agreeing to 

comply with the terms of the Solicitation during performance of the contract, the proposals 

submitted by Per Aarsleff, Exelis Services, and Copenhagen Arctic were ostensibly compliant 

with Section H and PWS 3.1.16. Additionally, the Air Force did make some inquiries into 

whether teaming arrangements between Danish offerors and American subcontractors provided 

appropriate opportunities for Danish and Greenlandic employees. The ENs were answered, in at 

least one instance by a change providing that the Danish contractor and not the American 

subcontractor would be the employer. Hr’g Tr. 64:11 to 65:8 (May 22, 2015) (describing the EN 

made to, and the revised proposal submitted by, Copenhagen Arctic).43 Greenland Contractors 

contends that the Air Force did not effectively query the other offerors even though it “had . . . in 

front of it, based on the proposals, . . . strong indications that the[] offerors were not planning to 

maximize their use of subcontractors from Denmark or Greenland, and, in fact, were going to use 

their U.S. partners.” Hr’g Tr. 46:11-16. There is some validity to the point made by Greenland 

Contractors about teaming, both respecting Exelis Services and Per Aarsleff, see Hr’g Tr. 62:10-

25, but those offerors appear to have been planning to [***]. Hr’g Tr. 100:14 to 101:3. 

The Air Force specifically acknowledged that Danish and Greenlandic offerors could use 

United States-based subcontractors to compete for the contract. In response to a question asking 

whether or not “subcontractors [can] come from . . . the US,” the Air Force stated that the “only 

requirements that the [g]overnment know[s] of until the [Danish Ministry of Foreign Affairs] 

criteria give more guidance” were that the prime contractor had be a “Danish company” and 

employees had to be “US or Danish citizens.” AR 62-3509 (Industry Day Question Answer 

Matrix). Absent from this answer was any requirement that subcontractors had to be Danish or 

Greenlandic. See id. Per Aarsleff correctly notes that “these statements from [the Air Force] 

reinforce the interpretation that the RFP did not prohibit U.S. teaming partners, and that the 

preference for Danish or Greenlandic subcontractors pertained to acquisition of supplies during 

performance.” Per Aarsleff’s Mot. at 32. The government also argues that “[e]xcluding offerors 

for not justifying their use of United States companies as teaming partners or subcontractors 

would have introduced unstated evaluation criteria in violation of [FAR] § 15.305(a).” Def.’s 

Cross-Mot. at 46 (citing Coburn Contractors, LLC, B-408279.2, 2013 WL 5718848 (Comp. 

Gen. Sept. 30, 2013)); see also FAR § 15.305(a) (“An agency shall evaluate competitive 

proposals and then assess their relative qualities solely on the factors and subfactors specified in 

the solicitation.”).

 In short, Copenhagen Arctic and Greenland Contractors have not shown that the Air 

Force misapplied Section H-6 and PWS 3.1.16. The Air Force did not err by failing to disqualify 

proposals by offerors during the procurement on that ground.44

 

43Further citations to the transcript of the hearing on the merits will omit the date. 

 

44As noted earlier, Greenland Contractors raises two additional claims, viz., that (1) the 

Air Force engaged in misleading discussions related to Greenland Contractors’ proposed pricing, 

and (2) that the Air Force was obliged to evaluate whether the other offerors had justified their 

lower pricing. See Greenland Contractors’ Mot. 28-37. In light of the court’s rulings on other 
39

C. Prejudice 

Relief in a bid protest may be available to a protestor that demonstrates not only that 

there was a significant error in the procurement process but also that it was prejudiced by the 

error. See PGBA, LLC v. United States, 60 Fed. Cl. 196, 203 (2004), aff’d, 389 F.3d 1219 (“To 

prevail in a bid protest, a disappointed offeror must show both significant error in the 

procurement process and prejudice to its posture in the process.”) (citing Advanced Data 

Concepts, 216 F.3d at 1057). In this respect, a protestor must show that there was a “substantial 

chance it would have received the . . . contract award, but for the alleged error in the 

procurement process.” McAfee, Inc. v. United States, 111 Fed. Cl. 696, 712 (2013) (quoting 

Gentex Corp. v. United States, 58 Fed. Cl. 634, 653 (2003)) (citing cases). This inquiry into 

“prejudice” is separate from the inquiry into standing, see supra, at 25. “While both use the 

‘substantial chance’ doctrine, prejudice at the jurisdictional threshold can be satisfied on the 

basis of the plaintiff’s allegations, whereas prejudice on the merits can only be satisfied by the 

effect of an agency decision adjudged to be unlawful.” Hyperion, 115 Fed. Cl. at 556 (citing

Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 696 (2010)). 

Here, the Air Force knowingly awarded the Thule Contract to a wholly-owned shell 

company created by a non-Danish, non-Greenlandic parent company in contravention of a 

material term in the Solicitation that prohibited subsidiaries of such entities from competing in 

the procurement. The Air Force has indicated that it will conduct a new acquisition at some 

future date based on new eligibility criteria. Plaintiffs were prejudiced by the Air Force’s error 

respecting eligibility. Each of them was a Danish company or a Danish partnership, and each 

was principally owned by Danish or Greenlandic sources. Had the Air Force properly applied 

the eligibility criteria during the procurement, it would have found Exelis Services’ proposal to 

be unacceptable, the plaintiffs would have had a substantial chance of receiving the award, and 

one of the plaintiffs would have won the competition with a lowest-priced, technically acceptable 

and eligible proposal. This second inquiry into prejudice has been satisfied. See Hyperion, 115 

Fed. Cl. at 556; see also Linc Gov’t Servs., 96 Fed. Cl. at 696. 

D. Equitable Relief 

Having found that the Air Force’s contractual award was arbitrary, capricious and 

contrary to the terms of the Solicitation, the court is guided by traditional equitable 

considerations in addressing if it should grant equitable relief barring the Air Force from giving 

effect to the improperly granted contract. In making this determination, “the court must consider 

whether (1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm 

if the court withholds injunctive relief, (3) the balance of hardships to the respective parties 

favors the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive 

relief.” Centech Grp., 554 F.3d at 1037 (citing PGBA, 389 F.3d at 1228-29). If all four criteria 

are satisfied, the court may award declaratory or injunctive relief that is appropriate in the 

circumstances. See 28 U.S.C. § 1491(b)(2). The court’s determination that the plaintiffs have 

 

issues and considering also the court’s disposition of the cases, a ruling on Greenland 

Contractors’ further issues is unnecessary. 
40

succeeded on the merits by showing that the Air Force awarded Exelis Services the Thule 

Contract in contravention of the eligibility criteria of the Solicitation leaves for consideration the 

other three factors. 

It is well-established that the loss of potential work and profits from a government 

contract constitutes irreparable harm. See Furniture by Thurston, 103 Fed. Cl. at 520 (citing

BayFirst Solutions, LLC v. United States, 102 Fed. Cl. 677, 696 (2012) (in turn citing ViroMed 

Labs., Inc. v. United States, 87 Fed. Cl. 493, 503 (2009))); see also 28 U.S.C. § 1491(b)(2) 

(“[M]onetary relief [in a bid protest] shall be limited to bid preparation and proposal costs.”). 

The competitive detriment to plaintiffs, stemming from the denial of a fair opportunity to 

participate in a lawful procurement process, also engenders irreparable harm. See Hyperion, 115 

Fed. Cl. at 557; see also Hospital Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618, 624 

(2005) (“[L]oss of profit, stemming from a lost opportunity to compete for a contract on a level 

playing field has been found sufficient to constitute irreparable harm.”) (citing cases). 

The court must balance the potential harm to plaintiffs in not granting an injunction 

against the potential harm to the government should an injunction be granted. See PGBA, 389 

F.3d at 1231-32; see also Hyperion, 115 Fed. Cl. at 557. The government indicates that the Air 

Force “does not want to rush the transition and risk operational issues [with a new contractor 

phase-in],” and therefore it may extend Greenland Contractors’ performance into fiscal year 

2016. See Def.’s Cross-Mot. at 60, 62. The government estimates that a bridge contract with 

Greenland Contractors will cost the Air Force [***] more than the price reflected in the contract 

awarded to Exelis Services. Id. at 60-61. Based on its estimates, the government argues that a 

bridge contract may cost the Air Force an additional “[***] [USD] per month.” Id. at 61. 

Alternatively, the government argues that a contractor given an award after the court’s decision 

“would not be able to take over performance until July 2016[,] . . . which would result in another 

nine months of performance by Greenland Contractors at a cost of approximately $[***] to 

$[***], plus re-procurement costs and any additional costs resulting from the award to a higherpriced offeror.” Id. at 63; see also Def.’s Reply at 22 n.16 (“[E]ven a two or three month delay 

and award to [a contractor] would likely cost the Air Force [***].”).

45

Although “[e]conomic harm to the [g]overnment is . . . a relevant factor,” Def.’s Reply at 

22 (citing cases), the “burden of re[-]procurement costs” occurs whenever an improper award of 

a contract is set-aside. See Huntsville Times Co. v. United States, 98 Fed. Cl. 100, 122 (2011) 

(“[T]he government would, of course, bear . . . the burden of re[-]procurement costs.”). Further, 

even if the Air Force is harmed in the ways the government asserts, such harm is attributable to 

“delays of [the Air Force’s] own creation.” Sheridan Corp. v. United States, 95 Fed. Cl. 141, 

155 (2010); see also Parcel 49C Ltd. P’ship v. United States, 31 F.3d 1147, 1153 (Fed. Cir. 

1994) (rejecting the government’s attempt “to preserve its ill-gotten gain” and affirming a trial 

court’s injunction that “returned the contract award process to the status quo ante any illegality”). 

The Air Force “could have forestalled this controversy simply by excluding Exelis Services from 

the competition when it explicitly informed the agency that it was a wholly-owned subsidiary [of 

 

45The assertion that a re-procurement may be more expensive because the award may go 

to a “higher-priced offeror,” Def.’s Cross-Mot. at 63, in effect is predicated on using the 

improper contractual award as a baseline for measuring financial harm.
41

a U.S. company] (June 2014), or when the [Danish Business Authority] informed AFSPC that it 

was not possible to register as a foreign subsidiary in the CVR (August 2014).” Per Aarsleff’s 

Mot. at 37. In short, the government has awarded the contract to an ineligible offeror, and it has 

not demonstrated that the additional financial costs to the Air Force associated with granting 

injunctive relief outweigh the harm to plaintiffs denied an opportunity to compete based upon 

properly applied eligibility criteria. Cf. ARKRAY USA, Inc. v. United States, 118 Fed. Cl. 129, 

138 (2014) (finding that the balance of hardships weighed in bid-protestor’s favor, even though 

the government represented “that it will save as much as $64.8 million per year” if it were 

allowed to proceed with an award issued in error). 

Finally, the public interest in maintaining the integrity of the procurement process weighs 

heavily in favor of granting a permanent injunction. See Hyperion, 115 Fed. Cl. at 557; see also 

PGBA, 60 Fed. Cl. at 221. The public interest is best served by abiding by the required 

eligibility criteria and evaluative steps in a procurement. BCPeabody Constr. Servs., Inc. v. 

United States, 112 Fed. Cl. 502, 514 (2013). Moreover, the Danish and United States 

governments are currently collaborating to correct the mistake regarding the eligibility criteria. 

Permitting Exelis Services to continue as the contractor for Thule Air Base and receive the 

benefits of the Thule Contract not only is inconsistent with these diplomatic discussions, but it 

“betray[s] the spirit of the [bilateral] agreements and intent of the original eligibility criteria.” 

Per Aarsleff’s Mot. at 38. 

There is also no reason to believe that an injunction will cause any interruption of vital 

services to Thule Air Base or affect the critical missions of the base. See Greenland Contractors’ 

Reply at 28-29; see also Def.’s Cross-Mot. at 60-63 (discussing costs associated with an 

injunction, but omitting any argument that an injunction would prevent the Air Force from 

ensuring continuity of service at Thule Air Base); Def’s Reply at 21-23 (same).

 

The requirements for issuance of equitable relief have been satisfied, and the Air Force’s 

contractual award to Exelis Services should be set aside. Despite plaintiffs’ urgings, the court 

declines to provide any more specific instruction to the Air Force regarding its further actions in 

this procurement. 

CONCLUSION 

For the reasons stated, plaintiffs’ motions for judgment on the administrative record are 

GRANTED, and the government’s and Exelis Services’ cross-motions for judgment on the 

administrative record are DENIED. The award by the Air Force of the Thule Contract to Exelis 

Services is set aside, and the Air Force is enjoined from proceeding with that contract. The clerk 

is directed to issue final judgment in accord with this disposition. 

 Plaintiffs are awarded their costs of suit. 
42

 It is so ORDERED.

s/ Charles F. Lettow 

Charles F. Lettow

Judge