In the United States Court of Federal Claims

BID PROTEST

No. 19-676C

Filed Under Seal: September 20, 2019

Reissued: October 23, 2019*

WELLPOINT MILITARY CARE 

CORPORATION,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

v.

OPTUM PUBLIC SECTOR 

SOLUTIONS, INC.,

 Defendant-Intervenor.

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Injunction Pending Appeal; RCFC 62(d).

Mark D. Colley, Counsel of Record, Kara L. Daniels, Thomas McSorley, Michael E. 

Samuels, Nathaniel E. Castellano, Of Counsel, Arnold & Porter Kaye Scholer LLP, Washington, 

DC, for plaintiff.

Steven M. Mager, Senior Trial Counsel, Douglas K. Mickle, Assistant Director, Robert E. 

Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC; Bridget E. Grant, 

Of Counsel, United States Department of Veterans Affairs, for defendant.

Jason A. Carey, Counsel of Record, Mark W. Mosier, J. Hunter Bennett, Kayleigh M. 

Scalzo, Kevin T. Barnett, Brooke G. Stanley, Of Counsel, Covington & Burling, LLP, 

Washington, DC; Daniel S. Goldberg, Optum Public Sector Solutions, Inc., for defendantintervenor.

 

* This Memorandum Opinion and Order was originally filed under seal on September 20, 2019 (ECF no. 

59). The parties were given an opportunity to advise the Court of their views with respect to what 

information, if any, should be redacted from the Memorandum Opinion and Order. On October 22, 2019, 

the parties filed a joint status report indicating that no redactions are necessary (ECF No. 60). And so, the 

Court is reissuing its Memorandum Opinion and Order, dated September 20, 2019 without redactions.
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MEMORANDUM OPINION AND ORDER DENYING 

PLAINTIFF’S MOTION FOR INJUNCTION PENDING APPEAL

GRIGGSBY, Judge

I. INTRODUCTION 

This post-award bid protest matter involved a challenge of the Department of Veteran 

Affairs’ (“VA”) evaluation and award decisions in connection with Request for Proposal No. 

VA791-16-R-0086 (the “Solicitation”) to award a contract for medical, surgical, complementary 

and integrative healthcare services, durable medical equipment, pharmacy and dental services to 

be provided in the VA’s Region 3 Community Care Network (the “Contract”). Compl. at ¶¶ 1, 

2; AR Tab 123 at 40977, 41032-33. On August 1, 2019, the Court issued a Memorandum 

Opinion and Order (1) denying WellPoint Military Care Corporation’s (“WellPoint”) motion for 

judgment upon the administrative record; (2) granting the government’s and Optum Public 

Sector Solutions, Inc.’s (“Optum”) cross-motions for judgment upon the administrative record;

(3) denying WellPoint’s request for injunctive relief; and (4) dismissing the complaint (the

“August 1, 2019, Decision”). WellPoint Military Care Corp. v. United States, No. 19-676C, 

2019 WL 4049168, at *14-15 (Fed. Cl. Aug. 1, 2019). On August 1, 2019, WellPoint filed a 

notice of appeal of the August 1, 2019, Decision to the United States Court of Appeals for the 

Federal Circuit. See generally Notice of Appeal. 

WellPoint has moved for an injunction enjoining Optum from proceeding with 

performance under the Contract pending its appeal, pursuant to Rule 62(d) of the Rules of the 

United States Court of Federal Claims (“RCFC”). See generally Pl. Mot.; Pl. Mem. For the 

reasons discussed below, the Court DENIES WellPoint’s motion. 

II. FACTUAL AND PROCEDURAL BACKGROUND

On August 1, 2019, the Court issued a Memorandum Opinion and Order that, among 

other things, denied WellPoint’s motion for judgment upon the administrative record, denied 

WellPoint’s request for injunctive relief and dismissed the complaint. WellPoint Military Care 

Corp., 2019 WL 4049168, at *14-15. In the August 1, 2019, Decision, the Court held, among 

other things, that WellPoint’s claim that the VA treated offerors unequally during its evaluation 

of proposals under the Solicitation’s Corporate Experience/Capability Subfactor was 

unsupported by the administrative record, because the VA’s evaluation did not prejudice 
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WellPoint and the record evidence shows that the agency reasonably evaluated proposals under 

this subfactor. Id. at *11-12; AR Tab 87 at 17099-100. The Court also held that WellPoint’s 

claim that the VA incorrectly evaluated the relative cost savings offered by WellPoint and 

Optum during the evaluation process was similarly unsupported by the administrative record,

because the record evidence shows that the VA evaluated the unit prices proposed by WellPoint 

and Optum consistent with the terms of the Solicitation. WellPoint Military Care Corp, 2019 

WL 4049168, at *13.

After WellPoint filed its motion for an injunction pending the appeal of the Court’s 

August 1, 2019, Decision, the government and Optum filed responses and oppositions to

WellPoint’s motion on August 15, 2019. See generally Def. Resp.; Def.-Int. Resp. On August 

20, 2019, WellPoint filed a reply in support of its motion for an injunction pending appeal. See 

generally Pl. Reply.

This matter having been fully briefed, the Court resolves the pending motion.

III. LEGAL STANDARDS

Injunctions pending appeal are governed by RCFC 62(d). This rule provides that:

While an appeal is pending from an interlocutory order or final judgment 

that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or 

modify an injunction, the court may suspend, modify, restore, or grant an 

injunction on terms for bond or other terms that secure the opposing party’s 

rights.

RCFC 62(d). 

This Court has recognized that an injunction pending appeal provided for under RCFC 

62(d) is an extraordinary remedy. Acrow Corp. v. United States, 97 Fed. Cl. 182, 183 (2011) 

(quoting Golden Eagle Refining Co. v. United States, 4 Cl. Ct. 622, 624 (1984)). The Court has 

also held that, when considering such a motion, the Court “assesses the movant’s chances for 

success on appeal and weighs the equities as they affect the parties and the public.” Id. (quoting 

Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 513 (Fed. Cir. 1990) (internal 

quotation marks omitted)). 

When determining whether to grant a motion for injunction pending appeal, the Court 

considers: “(1) whether the movant has made a strong showing that it is likely to succeed on the 
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merits; (2) whether the movant will be irreparably injured absent an injunction; (3) whether 

issuance of the injunction will substantially injure the other interested parties; and (4) where the 

public interest lies.” Id. at 184 (citing Alaska Cent. Express, Inc. v. United States, 51 Fed. Cl. 

227, 229 (2001)). The Court has flexibility when weighing these factors. Id. And so, the Court

“may allow for an injunction pending appeal when the movant ‘establishes that it has a strong

likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a 

substantial case on the merits,’ provided the other factors miliate in [the] movants favor.” Akima 

Intra-Data, LLC v. United States, 120 Fed. Cl. 25, 28 (2015) (emphasis original) (citing 

Standard Havens Prods., 897 F.2d at 513 (citations omitted)). 

IV. LEGAL ANALYSIS

WellPoint has not made a strong showing that it is likely to succeed upon the merits on 

appeal, or that the equities weigh in favor of granting injunctive relief in this case. And so, for 

the reasons set forth below, the Court DENIES WellPoint’s motion for an injunction pending 

appeal.

In its motion for an injunction pending appeal, WellPoint argues that it is entitled to this 

extraordinary relief because Optum will transition to performance of the Contract, thereby 

undermining WellPoint’s competitive posture, absent injunctive relief. Pl. Mot. at 1. WellPoint

also argues that it has a substantial likelihood of success on appeal because: (1) the Court erred 

in concluding that the VA’s source selection authority reasonably considered price during the 

best value trade-off analysis for the Solicitation; (2) the Court erred in upholding the VA’s 

“disparate evaluation” of the Solicitation’s Corporate Experience/Capability Subfactor; and (3) 

the Court’s findings regarding whether WellPoint has been prejudiced by the VA’s alleged 

evaluation errors in this matter “constitute clear error.” Pl. Mem. at 5-19. 

The government and Optum counter in their respective responses and oppositions to 

WellPoint’s motion that WellPoint has neither demonstrated a likelihood of success on appeal, 

nor shown that it would be irreparably harmed in the absence of injunctive relief. Def. Resp. at 

4-19; Def.-Int. Resp. at 4-11. The Court agrees.
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A. WellPoint Has Not Shown A Strong Likelihood Of Success On The Merits

As an initial matter, WellPoint has not made a strong showing that it is likely to succeed 

upon the merits of any of its claims on appeal. WellPoint largely restates the argument that it 

previously and unsuccessfully advanced in this litigation—that the VA committed a 

mathematical error in calculating the amount of the cost savings that WellPoint would provide to 

the government in comparison to Optum—to support its request for injunctive relief. Pl. Mem. 

at 5-17. 

As the Court held in the August 1, 2019, Decision, the administrative record shows that 

the VA’s methodology for evaluating WellPoint’s cost savings and price was both reasonable 

and in accordance with the terms of the Solicitation. WellPoint Military Care Corp., 2019 WL 

4049168, at *13; see also AR Tab 82 at 16922.13-14; AR Tab 87 at 17099; AR Tab 123 at 

41167 (showing that the Solicitation required the VA to evaluate price by calculating the 

cumulative weighted score for each offeror and evaluating each offerors’ unit price for the base 

and option periods, and that the VA compared each offerors’ cumulative weighted score with the 

Independent Government Cost Estimate). Indeed, while WellPoint argues that “[t]his protest is 

about a material, objective math error,” its claim is, at bottom, a challenge to the methodology 

that the VA employed to evaluate price. Pl. Mem. at 5. The record evidence shows that the VA 

employed a methodology to evaluate price that is consistent with the terms of the Solicitation.

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AR Tab 87 at 17099. And so, WellPoint has not shown a strong likelihood of success with 

respect to its claim. 

WellPoint’s argument that an injunction pending appeal is warranted because the VA 

“disparately evaluated” offerors’ corporate experience under the Solicitation’s Corporate 

Experience/Capability Subfactor is also unconvincing. Pl. Mem. at 11-17. WellPoint argues that 

the August 1, 2019, Decision does not address the fact that the VA considered WellPoint’s 

corporate experience, based upon, among other things, WellPoint’s attributes as a prime 

contractor, while the VA only considered Optum’s corporate experience, based upon the 

experience of Optum’s “corporate family” when evaluating Optum’s corporate experience. Id. at

 

1 As the government correctly observes in its response and opposition to WellPoint’s motion, the VA had 

no obligation to calculate the difference between each offerors’ cumulative weighted score in the manner 

that WellPoint requests in this case. Def. Resp. at 8-9. 
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11. But, even if WellPoint is correct in arguing that the VA erred by evaluating Optum and 

WellPoint differently under the Solicitation’s Corporate Experience/Capability Subfactor, the 

record evidence shows that WellPoint has not been prejudiced by this error. As the Court held in 

the August 1, 2019, Decision, the record evidence shows that the weakness that the VA assigned

to WellPoint’s proposal for lack of direct corporate experience did not impact the agency’s best 

value determination and award decision in this case. WellPoint Military Care Corp., 2019 WL 

4049168, at *11-12; see also Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed. Cir. 

2005). The VA’s decision to approach the evaluation of corporate experience differently with 

regards to WellPoint and Optum also finds support in the administrative record. The record 

evidence shows that WellPoint stated in its proposal that it would be the “accountable 

organization” for the Contract. AR Tab 78 at 1541. By comparison, Optum stated that its 

corporate affiliates would be responsible for performing the contract. AR Tab 79 at 16335. 

Because the record evidence shows that the VA reasonably evaluated WellPoint’s 

proposal under the Solicitation’s Corporate Experience/Capability Subfactor—and that the 

weakness assigned to WellPoint’s proposal for lack of direct corporate experience did not impact 

the VA’s best value determination and award decision—WellPoint has not made a strong 

showing that it is likely to succeed on appeal with respect to this claim. Chenga Mgmt., LLC. v. 

United States, 96 Fed. Cl. 556, 585 (2010) (noting that, while a contracting agency must treat all 

offerors equally, equal treatment does not require that all proposals be treated the same).

WellPoint’s argument that the Court’s findings regarding prejudice in this case constitute 

“clear error” is equally unavailing. Pl. Mem. at 17-19. In the August 1, 2019, Decision, the 

Court recognized that WellPoint must show that the VA’s alleged evaluation errors prejudiced 

WellPoint to prevail in this case. WellPoint Military Care Corp., 2019 WL 4049168, at *11; see 

also Bannum, Inc., 404 F.3d at 1353. As the Court held in the August 1, 2019, Decision, 

WellPoint fails to meet this standard because the record evidence shows that the VA did not 

consider the weakness assigned to WellPoint’s proposal for lack of direct corporate experience in 

making the agency’s best value determination and award decision. WellPoint Military Care 

Corp., 2019 WL 4049168, at *11-12; AR Tab 87 at 17099. The Court also observed in the 

August 1, 2019, Decision that WellPoint similarly fails to explain how it has been prejudiced by 

the VA’s decision to assign a weakness to its proposal with regards to claims processing 

approach, because the administrative record shows that the VA also did not consider this 
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weakness during the agency’s best value determination. WellPoint Military Care Corp., 2019 

WL 4049168, at *11; AR Tab 93 at 17268; see also AR Tab 87 at 17099. Indeed, while 

WellPoint argues that it has been prejudiced by the VA’s alleged evaluation errors, because it 

“would certainly still be in the zone of active consideration for award,” but for these errors, 

WellPoint simply has not shown that it would have had a substantial chance of being awarded 

the Contract in the absence of the VA’s alleged evaluation errors. Pl. Mem. at 19; see also 

Bannum, Inc., 404 F.3d at 1353. And so, again, WellPoint has not made a strong showing that it 

is likely to succeed upon the merits of its claim on appeal. Acrow Corp., 97 Fed. Cl. at 182.

B. The Balance Of Harms And Public Interest Weigh Against Injunctive Relief

The other equities that the Court considers when evaluating WellPoint’s motion for an 

injunction pending appeal also weigh against granting such relief in this case. WellPoint argues 

that it will suffer irreparable harm if the Court declines to enjoin Optum’s performance under the 

Contract pending the resolution of its appeal, because WellPoint’s competitive advantage to 

provide additional costs savings to the VA would be undercut. Pl. Mem. at 22. But, as the 

government correctly observes in its response and opposition to WellPoint’s motion, such 

economic harm is generally not, alone, sufficient to establish irreparable harm. Def. Resp. at 16; 

see also Minor Metals, Inc. v. United States, 38 Fed. Cl. 379, 381-82 (1987). The Court also

observes that WellPoint would have the opportunity to compete during a new evaluation process

for the Contract, should the Federal Circuit determine that the VA must re-evaluate proposals in 

this case. And so, WellPoint has not shown that it will be irreparably harmed should the Court 

decline to enjoin Optum’s performance under the Contract.

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The government also persuasively argues that a delay in the performance of the Contract 

would be harmful to the Nation’s veterans, who will benefit from the quality of health care and 

veteran customer service to be provided under the Contract. Def. Resp. at 19; see also Stone 

Dec. at ¶¶ 6-12. The public has a strong interest in ensuring that the Nation’s veterans receive 

timely and quality medical care and this interest could be placed in jeopardy if the Court were to 

 

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It is also undisputed that full health care delivery will not be completed for the Contract until May 2020, 

and that the prior incumbent’s contract will remain in place until September 2020. Def. Resp. at 18; 

Stone Dec. at ¶¶ 14-15; Pl. Reply at 7. And so, the government persuasively argues that WellPoint should 

have sufficient time to pursue its appeal before Optum would commence performance in this case. Def. 

Resp. at 18. 
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delay performance of the Contract. And so, for all of these reasons, the balance of the harms and 

the public interest cumulatively weigh against granting WellPoint’s motion for an injunction 

pending appeal. See RCFC 62(d). 

V. CONCLUSION

In sum, WellPoint simply has not met its heavy burden to demonstrate that it is entitled to 

the extraordinary remedy of an injunction pending the appeal of the Court’s August 1, 2019, 

Decision. And so, the Court DENIES WellPoint’s motion for an injunction pending appeal.

No costs. 

Some of the information contained in this Memorandum Opinion and Order may be 

considered protected information subject to the Protective Order entered in this matter on May 

10, 2019. This Memorandum Opinion and Order shall therefore be FILED UNDER SEAL. 

The parties shall review the Memorandum Opinion and Order to determine whether, in their 

view, any information should be redacted in accordance with the terms of the Protective Order 

prior to publication. The parties shall FILE a joint status report identifying the information, if 

any, that they contend should be redacted, together with an explanation of the basis for each 

proposed redaction on or before October 21, 2019.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby 

LYDIA KAY GRIGGSBY

Judge