In the United States Court of Federal Claims

No. 20-879C

(Filed: November 16, 2020)

(Re-filed: December 30, 2020) 1

* * * * * * * * * * * * * * * * * * * * * 

MITCHCO INTERNATIONAL, INC., 

Plaintiff, 

v. 

THE UNITED STATES, 

Defendant, 

and

KENTUCKY OFFICE OF VOCATIONAL 

REHABILITATION,

Intervenor,

and

SOUTHERN FOODSERVICE

MANAGEMENT, INC.

Intervenor.

* * * * * * * * * * * * * * * * * * * * * *

Alan Mark Grayson, Windermere, FL, for plaintiff.

1 This opinion was originally issued under seal in order to afford the parties 

an opportunity to propose redactions of protected material. The parties filed 

a joint notice on November 20, 2020, notifying the court that they have no

proposed redactions for the opinion (ECF No. 54). We thus reissue this 

opinion unredacted. 

Bid protest; post-award bid 

protest; FAR 15.308 (2018); 

FAR 9.105-2(a)(1) (2018); 

best value determination; price 

reasonableness; responsibility 

determination.
2

Richard Paul Schroeder, Trial Attorney, United States Department of 

Justice, Civil Division, Commercial Litigation Branch, Washington, DC, 

with whom were Jeffrey Bossert Clark, Assistant Attorney General, Robert 

E. Kirschman, Jr., Director, Douglass K. Mickle, Assistant Director, and 

Robert B. Neill, William L. Gery, of counsel for defendant. 

Peter Andrew Nolan and Andrew J. Schumacher, Austin, TX, for 

intervenor, Kentucky Office of Vocational Rehabilitation. W. Brad English, 

Huntsville, AL, for intervenor, Southern Foodservice Management, Inc. 

Jon D. Levin, Robert G. Jones, and Emily J. Chancey, of counsel for 

intervenor, Southern Foodservice Management, Inc. 

OPINION

BRUGGINK, Judge.

In this post-award bid protest, Mitchco International, Inc. 

(“Mitchco”), alleges that the United States Army (“Army”) improperly 

awarded a contract to the Kentucky Office of Vocational Rehabilitation 

(“KOVR”) to provide food and dining room operation services at Fort Knox,

Kentucky. Plaintiff seeks a permanent injunction to prevent the Army from 

allowing performance under this solicitation by any contractor other than 

Mitchco and to direct the Army to terminate the contract issued to KOVR

under this solicitation. The parties have filed cross-motions for judgment on 

the administrative record, which are fully briefed. Oral argument is 

unnecessary. Because the Army properly documented its award and its 

analysis was reasonable, we grant defendant’s and intervenors’ motions for 

judgment on the administrative record and deny plaintiff’s motion. 

BACKGROUND

I. The Solicitation

The Army issued a small business set-aside solicitation to procure full 

food services at designated facilities at Fort Knox, intending to award a 

single, firm-fixed price, indefinite delivery, indefinite quantity contract to the 

responsible offeror who represented the best value to the government. The 

solicitation required management of dining facility functions including, 

“food receiving and storage, food preparation, food serving, remote site 
3

feeding, grab n go (Pre-packaged Meals) and facility sanitation duties.”

Administrative Record (“AR”) 472. The Army planned to award a contract 

without discussions and reserved the right to award the contract to an offeror 

who was not the lowest priced offeror. The solicitation called for a five-year 

ordering period, with a six-month extension option pursuant to Federal 

Acquisition Regulation (“FAR”) 52.217-8. AR 438, 473.

The Source Selection Evaluation Board (“SSEB”) considered the 

following factors, listed in descending order of importance: Technical 

Capability (Sub-factors: Organizational Structure and Staffing plan), Past 

Performance, and Price. Technical Capability and Past Performance Factors 

were rated either Unacceptable or Technically Acceptable. Price was not 

scored or rated. Offered prices were evaluated for fairness and 

reasonableness and to assess whether the prices were balanced pursuant to 

FAR 15.404-1. To be eligible for award, an offeror had to be rated 

Technically Acceptable overall. 

The solicitation stated that it was subject to the Randolph-Sheppard 

Act (“R-SA”), 20 U.S.C. § 107, which gives priority to State Licensing 

Agencies (“SLA”) for the award of food service contracts that are intended 

to be performed by blind persons. This meant that, if a “SLA is determined 

to be in the Competitive Range, then the SLA will be afforded the priority 

delineated in the R-SA.” AR 351, 465. Further, a contract governed by the 

R-SA gives priority to blind persons licensed by a state agency for 

opportunities involving the operation of vending facilities on Federal 

property. 20 U.S.C. § 107(b). 

The solicitation’s subcontracting plan requirement did not apply to a 

“100% small business set-aside,” meaning that small business concerns were 

not required to submit a subcontracting plan for this solicitation. AR 755. 

Thus, the solicitation only required the SLA to submit subcontracting plans. 

On April 10, 2020, the Department of Education (“DOE”) confirmed that 

KOVR had been the designated SLA for the Commonwealth of Kentucky 

(“Kentucky”) since October 18, 2018. The R-SA authorizes the SLA to 

license and select vendors for the contract. Thus, KOVR was authorized to 

act both as offeror and contract holder for the Fort Knox contract. AR 1041. 

KOVR selected Ms. Fay Autry as the Licensed Blind Vendor (“LBV”), 

giving her the role of management of operations on the contract and 

responsibility of ensuring contract compliance. 
4

II. The Evaluation and Award

The Army received five proposals. The SSEB determined that three 

were eligible for award: KOVR, Mitchco, and Prosperitus. The SSEB rated 

each of these proposals as Technically Acceptable, and thus all three were 

included in the competitive range.

In a letter dated January 6, 2020, the Army notified Mitchco that 

although Mitchco and KOVR were both in the competitive range, KOVR 

would receive priority over Mitchco under the R-SA because KOVR is the 

designated SLA. The Army also noted that if the “Government and KOVR 

SLA reach an impasse, then the successful offer within the competitive range 

will be selected . . . .” AR 1848-49. The Army gave Mitchco the opportunity 

for debriefing in accordance with FAR 15.505, which Mitchco requested on 

January 7, 2020. 

Before the debriefing took place, Mitchco filed an agency-level 

protest with the Army, which was dismissed on February 6, 2020. The Army 

then provided the post-award debriefing to Mitchco on February 10, 2020, 

detailing the three factors considered by the SSEB, its evaluation of Mitchco, 

and the R-SA requirements which give priority to the SLA, KOVR, because

the SLA was within the competitive range. On February 12, 2020, Mitchco

submitted follow-up questions to the Army, “which the Army deemed to be 

additional questions related to the debriefing, as defined in the enhanced 

debriefing provisions of section 818 of the National Defense Authorization 

Act for Fiscal Year 2018.” AR 3628. 

On February 13, 2020, Mitchco filed a small business size protest with 

the Army, challenging the award to KOVR. Mitchco requested that the 

February 13, 2020 protest be forwarded to the United States Small Business 

Association (“SBA”) for its consideration. On March 13, 2020, SBA issued 

its determination that KOVR is other than a small business for the “subject 

procurement under the size standard listed above,” but did not issue a 

determination on whether KOVR is considered an SLA because the SBA 

“does not have the purview to determine if KOVR meets the exception under 

the SLA for award.” AR 3533-37. 
5

On February 17, 2020, before the Army responded to Mitchco’s

follow-up debriefing questions, Mitchco submitted a protest to the U.S. 

Government Accountability Office (“GAO”). On February 21, 2020, the 

Army requested that GAO dismiss the protest as premature because the 

debriefing between the Army and Mitchco was ongoing, which the GAO did 

on February 28, 2020. On March 4, 2020, the Army concluded Mitchco’s 

enhanced debriefing by responding in writing to its questions. Plaintiff then 

filed another protest at GAO on March 5, 2020. GAO denied Mitchco’s 

second protest on the merits on June 9, 2020. Mitchco Int’l, Inc., B418481.3, 2020 WL 4039018 (Comp. Gen. June 9, 2020). First, GAO

dismissed as untimely Mitchco’s protest that the Army conducted improper 

discussions solely with “the awardee, a state licensing agency (SLA), in a 

procurement conducted pursuant to the Randolph-Sheppard Act . . . where 

this possibility was apparent from the solicitation, and the protester failed to 

challenge the terms of the solicitation before award.” Id. at 1. GAO denied

the balance of Mitchco’s protest, that KOVR violated the Procurement

Integrity Act (“PIA”), 41 U.S.C. § 423, “as legally and factually insufficient 

where the protester’s allegations, even if unrebutted, fail to establish a 

violation of law by the agency.” Id.

The Army began discussions regarding items for negotiation with 

KOVR on February 3, 2020, and then awarded the contract to KOVR on 

February 10, 2020, having determined that KOVR “is responsible within the 

definition of FAR 9.104-Standards” and thus eligible and qualified to receive 

the award. AR 2136-37. KOVR’s proposal selected Southern Foodservice 

Management, Inc. (“Southern”) as teaming-partner on the project, stating 

that Southern would “provide all corporate business resources and 

operational support needed to ensure professional management and operation 

of Fort Knox Full Food Services requirement as described in the 

solicitation’s performance work statement . . . .” AR 1041. 

III. Procedural History

In addition to these initial protests, Mitchco filed a complaint seeking 

a restraining order, a temporary and permanent injunction, a declaration of 

rights, and money damages in Franklin Circuit Court, Kentucky on 

November 18, 2019. AR 3564. Mitchco’s complaint alleged that Kentucky 

breached a contract it made with Mitchco in 1999, awarding Mitchco the 

right to provide management and staffing for cafeteria and related food 
6

services at Fort Knox. Mitchco made the remarkable assertion that this is a 

contract, in effect, in perpetuity, having no expiration date and thus should 

remain intact if Kentucky continues to serve as “the prime on the Fort Knox 

dining facility contract.” AR 3158. Mitchco also made allegations, 

mirroring its earlier protests, that Kentucky committed a PIA violation.

2

Mitchco alleged that Kentucky violated the Kentucky Model Procurement 

Code by “allowing the wrong State Cabinet to select the new contractor and 

by selecting Southern without full and open competition.” AR 3159. Lastly, 

Mitchco alleged that its “due process rights had been violated, and that its 

property interest had been taken without just compensation.” Id. Mitchco

sought a permanent injunction requiring Kentucky to “engage Mitchco and 

no one else in the performance of the food service contract requirement at 

Fort Knox.” Id. It sought $100,000,000.00 in damages. 

On March 31, 2020, the Franklin Circuit Court issued a permanent 

injunction preventing KOVR from replacing Mitchco with Southern on the 

2015 contract. AR 3578-79. The court found that Kentucky violated the 

Kentucky Model Procurement Code. AR 3578. On April 1, 2020, Kentucky

filed an Emergency Motion for Clarification to determine if the permanent 

injunction applied only to the current contract, or if it would apply to future 

contracts, specifically, the new contract award under this solicitation. AR 

3581-87. The court entered an order on April 2, 2020, in which it clarified 

that the prior ruling regarding the permanent injunction prevents Kentucky 

from replacing Mitchco with Southern as its teaming partner. AR 3589. 

Thus, although KOVR intended for Southern to be its teaming-partner on the 

contract, as it stands, Mitchco is KOVR’s teaming-partner pursuant to the 

state court’s injunction. 

On March 23, 2020, Southern filed a complaint in Federal District 

Court, Western District of Kentucky, Louisville Division seeking a

declaratory judgment, arguing that state courts have no jurisdiction to 

manage a federal government contract and seeking a “judgment declaring the 

parties’ respective rights and obligations with respect to the bridge Contract.” 

AR 3160. That suit is ongoing. 

Mitchco filed its complaint in this court on July 17, 2020. The protest 

here repeats Mitchco’s earlier allegations that the Army improperly awarded 

a contract to KOVR to provide food and dining room operation services at 

Fort Knox. Plaintiff also seeks an order terminating KOVR’s contract and 

2 A recitation of these allegations is stated below.
7

restraining the Army from allowing any contractor other than Mitchco to 

perform the contract. Mitchco did not seek a preliminary injunction because 

Mitchco is currently serving as subcontractor on this contract. KOVR, as the 

awardee, sought and was granted intervention as of right. The putative 

awardee’s post-award bid protest subcontractor, Southern, the entity that 

would perform the work on site, sought to intervene of its own right under 

Rule 24(b)(2), permissive intervention. We granted its motion. Mitchco

International, Inc. v. United States, No. 20-879 (Fed. Cl. Aug. 17, 2020)

(order granting motion to intervene).

DISCUSSION

I. Jurisdiction

We have jurisdiction over challenges to agency actions in connection 

with a federal procurement. See 28 U.S.C. § 1491(b) (2012). Our review is 

deferential in accordance with the standard set forth in the Administrative 

Procedures Act, 5 U.S.C. § 706, which is to say that we review agency action 

in a procurement for illegality and a lack of rationality. Impressa 

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-

33 (Fed. Cir. 2001). So long as the agency’s decision was not irrational or 

otherwise illegal, we will leave it undisturbed.

In order to avail itself of this review, however, a protestor must show 

that it is an economically interested party, which, in the post-award context, 

means that it had a substantial chance of award but for the alleged error(s) of 

the agency. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 

1996). The protestor need not show that it was next in line for award, 

however, to establish standing, only that there would have been a reasonable 

likelihood of it being awarded the contract. Id. at 1563. If it cannot make 

such a showing, then it was not prejudiced by the asserted error and 

jurisdiction will not attach. Even if the disappointed bidder establishes 

standing, however, it must also go on to show that the error alleged was 

prejudicial, meaning that not only did an error take place, but that error

affected the outcome of the agency’s decision. Labatt Food Serv., Inc. v. 

United States, 577 F.3d 1375, 1380-81 (Fed. Cir. 2009) (holding that the 

agency’s acceptance of bid revisions by email did not prejudice protestor 

because it had no bearing on the agency’s review of final proposals). 
8

Here, we find that plaintiff has established standing. Plaintiff alleges 

that KOVR is receiving an award that should have gone to Mitchco. Plaintiff 

argues that, if KOVR’s proposal had been evaluated in accordance with the 

governing rules, KOVR would not be eligible for award; and it argues that

KOVR received preferential treatment when the agency allowed KOVR to 

submit proposal revisions but did not do so with Mitchco. We also know 

that the agency’s solicitation gave a preference under the R-SA to a 

designated SLA within the competitive range. We thus conclude that, had 

KOVR been incorrectly evaluated as an SLA, a different outcome is 

reasonably likely. Put another way, as both this court and the Federal Circuit 

have articulated the test, when the protestor shows that it is “‘within the 

active zone of consideration’” by the agency, it has established standing. 

Advanced Mgmt. Strategies Group, Inc. v. United States, 139 Fed. Cl. 404, 

411 (2018) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 

1365, 1367 (Fed. Cir. 1999)). We will consider below the separate question 

of prejudice as it pertains to the merits.

II. Injunctive Relief

Standing established, we move to the merits of plaintiff’s request for 

a permanent injunction. A party seeking the extraordinary remedy of an 

injunction “bears the burden of proving entitlement to relief, central to which 

are success on the merits and irreparable harm.” Red River Serv. Corp. v. 

United States, 60 Fed. Cl. 532, 541 (2004) (citing Sofamor Danek, 74 F.3d 

1216 at 1219 (Fed. Cir. 1996); see also C.A.C.I., Inc.-Federal v. United 

States, 719 F.2d 1567, 1581 (Fed. Cir. 1983) (injunctive relief is an 

extraordinary remedy). When considering whether to grant a permanent 

injunction, 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., Inc. v. United States, 

554 F.3d 1029, 1037 (Fed. Cir. 2009). Although an award of injunctive relief 

is based on consideration of this four-factor test, failure to achieve success 

on the merits is dispositive. See Career Training Concepts, Inc. v. United 

States, 83 Fed. Cl. 215, 219 (2008) (“[A] permanent injunction requires 

actual success on the merits.”). As a basic proposition, the decision lies in
9

the sound discretion of the trial judge. See FMC Corp. v. United States, 3 

F.3d 424, 427 (Fed. Cir. 1993).

A. Success on the Merits

We conclude below that plaintiff has failed to establish irreparable 

harm, but we also find that plaintiff has not succeeded on the merits. Mitchco

advances six arguments supporting its contention that the Army committed 

prejudicial violations of procurement law: that the Army violated 13 C.F.R. 

§ 121.1009(g)(2)(i) by refusing to terminate KOVR’s contract after Mitchco

filed a small-business size protest and KOVR failed to appeal that protest

decision; that KOVR is not qualified to be an SLA; that the Army’s selection 

of KOVR’s R-SA proposal for the solicitation violated the Department of 

Defense (“DOD”)-DOE Joint Statement of Policy; that KOVR and Southern 

have violated the PIA; that the Army violated FAR 15.306 and 15.307 by 

conducting discussions with and allowing proposal revisions from the 

awardee but not from Mitchco; and that the Army failed to evaluate the 

awardee’s proposal in accordance with the terms of the solicitation and 

applicable law. None of these have any merit.

1. Mitchco’s Small Business Protest

Mitchco argues that the outcome of its size protest with the SBA, 

which determined that KOVR is not a small business concern, required the 

Army to cancel its award to KOVR because KOVR failed to appeal the 

SBA’s determination. Plaintiff cites 13 C.F.R. § 121.1009(g)(2)(i), which 

states: “(2) A contracting officer (“CO”) shall not award a contract to a 

protested concern that the Area Office has determined is not an eligible small 

business for the procurement in question. (i) If a CO receives such a 

determination after contract award, and no OHA appeal has been filed, the 

CO shall terminate the award.” Id. (emphasis added). Mitchco argues that, 

because KOVR failed to appeal the SBA decision, the Army was required to 

terminate KOVR’s contract because it was not eligible to receive an award 

set aside for a small business. 3

3 Mitchco’s motion mistakenly asserts that the SBA also determined that 

KOVR is not an SLA. In fact, the SBA clearly stated that “The Area Office 

does not have the purview to determine if KOVR meets the exception under 

the SLA for award.” AR 3537.
10

The government argues that Mitchco incorrectly applies this section 

to KOVR because it only applies to business concerns and KOVR is not a 

business concern of any size, large or small.

4 This is correct. The SBA 

regulatory framework only requires termination if the awardee is a business 

concern. KOVR was awarded the contract as an SLA and not as a business 

concern, which KOVR does not dispute. Thus, as an SLA, KOVR was not 

required to be considered a small business concern to be awarded the 

contract. The solicitation stated that “all offerors are hereby notified that the 

R-SA applies to this solicitation, therefore, priority will be given to the State 

Licensing Agency (SLA) pursuant to R-SA.” AR 747. Mitchco’s SBA 

challenge was thus pointless, and the Army did not violate 13 C.F.R. § 

121.1009(g)(2)(i) when it failed to terminate KOVR’s contract after 

receiving the SBA’s determination. 

2. KOVR is Qualified to be an SLA

Mitchco alleges that KOVR misrepresented itself as an SLA because 

neither Kentucky nor the federal government properly designated KOVR as 

the SLA for the state. Once again, this argument has no merit.

a. KOVR is the SLA for Kentucky

Mitchco cites 782 Ky. Admin. Reg. 1:010(1)(11), which states that 

the Kentucky Office for the Blind (“KOB”) “is the state licensing agency for 

the Randolph Sheppard Vending Facility Program in Kentucky.” Mitchco 

further points to the fact that KOB appeared as the designated SLA in a DOE

publication, in this court,5 in the Federal Register, and in contracts with RSA requirements. 

The government acknowledges that KOB was previously designated 

as the SLA for the state but points out that all of the instances referenced by 

plaintiff were prior to a 2018-2019 reorganization of the Blind Vendor 

4 Plaintiff’s reply still contends that KOVR was required to appeal the SBA 

decision to avoid contract termination without providing any reasonable 

basis for its position.

5 Plaintiff cites to Commonwealth of Kentucky, Education Cabinet, 

Department for the Blind v. United States, 62 Fed. Cl. 445, 448 (2004).
11

Program in Kentucky. AR 2058-60. Defendant cites a 2018 executive order 

issued by the Governor of Kentucky reorganizing the relevant state offices 

and divisions responsible for the Blind Vendor Program, resulting in KOVR 

becoming the SLA for Kentucky. Ky. Exec. Order 18-779 (Sept. 21, 2018); 

AR 2058-60. This reorganization was then codified in 2019 by the Kentucky 

legislature. KY ST § 12.020 (2019). This was in turn confirmed by the DOE

in a letter on April 10, 2020, recognizing that the Kentucky Office of 

Vocational Rehabilitation now served as “the designated SLA for the State 

of Kentucky” since October 18, 2018. AR 3604, 3629 n.2. All of these 

changes took place prior to the solicitation and award.6

Mitchco replies that a state governor’s executive order is not a legally 

sufficient means of designating an SLA under the R-SA. To support this 

assertion, Mitchco cites to 20 U.S.C. § 107b and 34 C.F.R. § 395, arguing

that the executive order does not satisfy the requirements for SLA approval 

in these code sections, which includes approval from the chief executive of 

the state and submission of an application letter to the U.S. Secretary of 

Education. Mitchco further argues that the language of the executive order 

fails to transfer SLA status to KOVR. The relevant language Mitchco cites 

from the executive order is as follows: “The Division of Kentucky Business 

Enterprise (‘KBE’) will be established and will continue to oversee the Blind 

Vendor Program as stipulated in the Randolph-Sheppard Act.” AR. 2063. 

Based on this language, Mitchco argues that KBE is not interchangeable with 

KOVR, and that KBE’s oversight role is not the same as being the state 

licensing agency. 

Mitchco also argues that the CO acted improperly by sending an email 

to DOE requesting the agency to confirm that KOVR is the SLA for 

Kentucky. Mitchco alleges that this email amounts to a request to backdate 

the determination to a date before the solicitation was issued, which Mitchco 

asserts constitutes a violation of FAR 3.101-1, requiring agency contracting 

6 Plaintiff’s reply to the government’s argument is that the statute enacted in 

2012, 782 Ky. Admin. Reg. 1:010(1)(11), is controlling, even over the 2018-

2019 reorganization and subsequent 2019 statute which placed the Division 

of Blind Services under KOVR. The government correctly points out that 

Mitchco’s reply fails to recognize that where a regulation conflicts with a 

statute subsequently enacted, the regulation becomes invalid. See Ruby 

Const. Co., Inc. v. Dep’t of Revenue, 578 S.W.2d 248, 254 (Ky. App. 1978) 

(finding a regulation to be invalid because it conflicted with an enacted 

statute).
12

officials to act impartially and above reproach. All of this is to say that 

Mitchco disagrees with the Army’s conclusion that KOVR was the duly 

licensed state Kentucky state agency for R-SA contracts. 

Mitchco’s arguments against the legal sufficiency of the 2018 

executive order are made moot by the Kentucky legislature’s 2019 

codification of the 2018 executive order, and Mitchco’s arguments to the 

contrary are frivolous. In addition, its ad hominum attack on agency officials 

is specious and troubling. The government correctly points out that the 

contracting officer’s inquiry was routine and that his request that “the written 

verification be retroactive” to the date of the executive order does not 

constitute a request to backdate. See AR 3608.7 We also agree with 

defendant’s characterization of Mitchco’s allegations,

8 and that Mitchco is 

grasping at straws in making a groundless allegation. Government officials 

are presumed to act in good faith. Savantage Fin. Servs., Inc. v. United 

States, 595 F.3d 1282, 1288 (Fed. Cir. 2010). To overcome the presumption 

of good faith, “the proof must be almost irrefragable,” which “amounts to 

clear and convincing evidence.” Galen Med. Assocs., Inc. v. United States, 

369 F.3d 1324, 1330 (Fed. Cir. 2004) (quotations and citations omitted). 

“Innuendo, suspicion, conjecture, or counsel’s argument are not sufficient.” 

Proxtronics Dosimetry, LLC v. United States, 128 Fed. Cl. 656, 682 (2016) 

(citations omitted). 

7 Mitchco’s allegation that DOE and the CO acted in bad faith is totally 

devoid of support in the administrative record, much less does it meet the 

required burden of proof of clear and convincing evidence. The email was a 

request that DOE provide documentation confirming KOVR’s SLA status 

that dated back to when the executive order effectively transferred the SLA 

status to KOVR. AR 3608. The email request did not include any language 

asking the DOE officer to “backdate” or change the determination to a date 

prior to the solicitation. 

8 The government contends that Mitchco’s allegations were full of 

inflammatory accusations that the CO and DOE acted in bad faith. It explains 

that the CO made the statement in an email which included four other 

government employees; thus, the CO was not attempting to hide this 

communication. See AR 3608-09. Additionally, the government reasonably 

points out that Mitchco’s allegations do not even try to explain a motive for 

wrongdoing on the part of the CO. 
13

b. KOVR is properly considered the SLA by DOE

Mitchco also contends that KOVR does not meet the requirements for 

an SLA set out in 34 C.F.R. §§ 395.2 to .5. and 20 U.S.C. § 107b, including 

approval from the chief executive of the state and submission of an 

application letter to the U.S. Secretary of Education. 

In response, the government cites the April 5, 2020 letter from DOE

advising the CO that, while in the past it required “specific letters 

redesignating State agencies” as the SLA, that “it has not been the 

Department’s practice for the past several years.” AR 3604. As DOE 

explained to the CO, the regulations implementing section 107a(a)(5) of the 

R-SA “provide that the SLA in its application to be a designated agency 

assures that it will ‘submit promptly to the Secretary for approval a 

description of any changes in the legal authority of the [s]tate licensing 

agency, its rules and regulations, blind vendor agreements, schedules for the 

setting aside of funds, contractual arrangements for the furnishing of services 

by a nominee, arrangements for carrying general liability and product 

liability insurance, and any other matters which form a part of the 

application.’” AR 3604 (citing 34 CFR 395.3(a)(11)(iii)). DOE further 

advised the CO that:

Kentucky fulfilled its obligation to “submit promptly to the 

Secretary for approval a description of any changes in the legal 

authority of the State licensing agency’ when it provided RSA 

with Governor Matthew Bevin’s Executive Order issued on 

September 21, 2018, which reorganized Kentucky’s Education 

and Workforce Development Cabinet and combined what had 

been separate agencies for the blind and for vocational 

rehabilitation into a combined agency that provided vocational 

rehabilitation services and services for the blind. RSA 

approved the change in the State agency that provides 

vocational rehabilitation services and services for the blind by 

issuing on October 18, 2018 the Grant Award Notification for 

Kentucky’s FY2019 VR formula grant award to the Kentucky 

Office of Vocational Rehabilitation, thereby also approving the 

redesignation of the Kentucky State Licensing Agency to the 

Kentucky Office of Vocational Rehabilitation. RSA has 
14

continued to validate that designation by treating the Kentucky 

Office of Vocational Rehabilitation as the SLA for Kentucky 

through its various interactions with the State. RSA can 

confirm that, since October 18, 2018, the designated SLA for 

the State of Kentucky has been the Kentucky Office of 

Vocational Rehabilitation. 

AR 3604.

Mitchco’s only response to the government’s explanation in its crossmotion is to question the authority of the DOE official who sent the 

designation confirmation letter. As the email makes clear, the officer 

submitted the designation letter according to the advice of DOE’s General 

Counsel and on behalf of DOE. This was no rogue actor, and counsel’s 

allegations to the contrary are baseless. The record provides ample support 

for the CO’s decision to treat KOVR as an SLA. It was lawfully considered 

such by both the government of Kentucky and DOE. Mitchco’s challenge to 

the DOE letter confirming KOVR’s SLA status is thus rejected.

9

 

3. DOD-DOE Joint Statement of Policy

Mitchco argues that KOVR violated Section 848 of the National 

Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-63, and the 

resulting Joint Statement of Policy, 81 Fed. Reg. 36506 (June 7, 2016) 

(proposed rule), which Mitchco argues requires SLA offerors to “assign at 

least one blind person per military dining facility in a management role.” AR 

2390. Mitchco contends that KOVR’s proposal does not meet this 

9 In its response to the government’s motion for judgment on the 

administrative record, Mitchco even concedes that the 2019 legislation, 2019 

Ky. Acts ch. 146, § 1, implemented the 2018 proposed reorganization, 

effective on June 26, 2019. Despite conceding this point, Mitchco still 

contends that an earlier version of statute 782 Ky. Admin. Reg. 1:010(1)(11), 

which identified Kentucky Office for the Blind as the SLA controls. 

However, it appears that the version of the statute upon which Mitchco relies 

was effective in 2012, AR 2499-2514, and was since amended multiple 

times. In fact, the version that Mitchco cites is not even the most recent 

version before the 2019 amendments identifying KOVR as the SLA. See, 

e.g., KY ST § 12.020 (2018).
15

requirement. Mitchco concedes that KOVR’s proposal identified Fay Autry 

as a LBV, but Mitchco argues that because this solicitation includes multiple 

facilities the Joint Statement of Policy requires the SLA’s proposal to assign

one blind employee per facility. 

KOVR contends that Mitchco is misguided in its reliance on the Joint 

Statement of Policy because it is precisely what the title suggests, a policy 

statement without binding legal effect. KOVR points to a 2007 

memorandum from DOD stating that the Joint Statement of Policy “should 

not be cited in individual solicitations until it is implemented in 

complementary regulations” by DOE and DOD. Memorandum from the 

Dep’t of Def. on applicability of the R-SA to military dining facilities, Shay 

D. Assad, Dir. of Def. Procurement and Acquisition Pol’y, to Dirs. of Def.

Agencies (March 16, 2007). 10 KOVR also cites to a DOD rule published in

the Spring of 2019 that withdrew the pending regulation (81 Fed. Reg. 

36506) without taking further action after DOE notified DOD that the 2006 

Joint Policy Statement “no longer reflects the position of the DOE.” 

Department of Defense, Food Services for Dining Facilities on Military 

Installations RIN: 0750-A178, REGINFO.GOV (Spring 2019), 

https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RI

N=0750-AI78.

KOVR also argues that the interests sought to be protected by the RSA are enlargement of “the economic opportunities of the blind and

stimulating the blind to greater efforts in striving to make themselves selfsupporting . . . .” 20 U.S.C. § 107(a). Thus, the R-SA’s purpose is to provide 

opportunities, not specifically hourly jobs for blind individuals. KOVR 

argues that its proposal satisfied the R-SA by identifying Fay Autry as the 

LBV and Contract Manager, as she would be receiving profits and

entrepreneurial opportunities by managing the operation, and no additional 

blind employees had to be identified.

We agree. In the absence of any specific legal requirement that blind 

persons had to be engaged at all locations, it was not unreasonable for the 

Army to find that KOVR satisfied the more general R-SA requirements, 

which aim to “provide blind persons with remunerative employment, 

enlarging the economic opportunities of the blind, and stimulating the blind 

10 The memorandum is publicly available at: 

https://www.acq.osd.mil/dpap/cpic/cp/docs/DPAP%20MemoMilitary%20Dining%20Policy%20(Mar%202007).pdf.
16

to greater efforts in striving to make themselves self-supporting . . . ” 20 

U.S.C. § 107(a). The Army’s selection of KOVR’s R-SA proposal for the 

solicitation was not a violation of law. 

4. Mitchco argues that KOVR and Southern have committed 

PIA violations

Mitchco alleges that KOVR and Southern have committed PIA

violations. Mitchco initially reported these allegations to the CO on Nov. 13, 

2019, and then reported additional alleged violations shortly before filing its 

initial GAO protest. Plaintiff urges that the CO’s failure to take remedial 

action in response was irrational and contrary to FAR 3.104-7. 

Mitchco’s Nov. 13, 2019 letter to the CO alleged that two Southern 

employees attended a site visit and returned to the worksite the day after the 

visit without invitation, demanding proprietary information from Mitchco’s 

employees. Mitchco reported additional allegations of PIA violations against 

Southern to the Army on Feb. 13, 2020, to wit, that KOVR received 

Mitchco’s proprietary documents and then turned these documents over to 

Southern. 

Plaintiff claims that Southern’s site visits and its questioning of 

Mitchco’s staff about allegedly proprietary information gave it an unfair 

advantage over other offerors in violation of the PIA, which prohibits 

competing contractors from knowingly obtaining other offeror’s bid 

information or source selection information about a procurement. 41 U.S.C. 

§ 2102 (a)(1)-(2). Mitchco thus concludes that the CO’s failure to address 

these allegations and his denial of Mitchco’s PIA protests were arbitrary, 

capricious, and contrary to law.

In response, both the government and KOVR point out that the only 

“person” who can violate the PIA with respect to procurement information 

is a present or former official of the Federal Government or an advisor to the 

Federal Government with respect to a Federal agency procurement. 

41 U.S.C. § 2102 (a)(3) (defining “person” as it pertains to application of the 

PIA). Thus, the government avers that this claim should be dismissed for 

lack of jurisdiction, as this court has jurisdiction over claims under 28 U.S.C. 

§ 1491(a), which gives this court “jurisdiction to render judgment upon any 
17

claim against the United States,” not against non-federal entities, and 

Mitchco’s PIA claim is alleged against non-federal entities.11

We agree. PIA violation claims can only be properly brought against 

present or former officials of the Federal Government or an advisor to the 

Federal Government with respect to a Federal agency procurement. 

41 U.S.C. § 2102 (a)(3). We find that this claim is not properly brought 

under 28 U.S.C. § 1491(a). Thus, this claim is dismissed for lack of 

jurisdiction.

Regarding the allegations against Southern, KOVR also notes that 

Mitchco fails to allege that Southern disclosed any contractor bid or proposal 

information to KOVR. Further, Southern and the government explain that 

the information Southern received related to the incumbent contract and not 

the pending solicitation contract and none of the information shared was 

“source selection” or “contractor bid or proposal” information. Further, 

KOVR argues that it could not have violated subsection (b) of the PIA 

because the documents identified by Mitchco are all documents that KOVR 

was authorized to possess as the prime contractor for the incumbent contract, 

which Mitchco was performing under merely as the teaming partner and 

subcontractor. KOVR cites 41 U.S.C. § 2107(1)-(2), which provides a safe 

harbor covering the receipt of information by persons authorized to receive 

that information and a contractor disclosure of its own bid or proposal 

information. Because the PIA was not violated, it argues, the CO lawfully 

and rationally ignored the allegations of misconduct brought by Mitchco.

We find a total lack of prejudice with respect to these allegations.

Even if KOVR and Southern acquired Mitchco’s propriety staffing 

information, it would have made no difference, both because plaintiff has not 

shown that this information was bid proposal information or that it was 

somehow useful in KOVR’s success in capturing the award. KOVR had 

preference for award from the Army due to its standing as an SLA under the 

11 In its reply, plaintiff does not answer the jurisdictional issues raised by 

defendant, but instead makes a bald assertion that it is not wrong to direct a 

PIA violation at a non-federal entity and then restates its position that the CO 

violated FAR 3.104-7 by failing to investigate intervenors’ alleged PIA 

violations. 
18

R-SA. Like virtually all of plaintiff’s allegations, these assertions of PIA 

violations are a groundless distraction. 

5. KOVR’s Discussions with the Army and Proposal 

Revisions

Mitchco alleges that KOVR received preferential treatment in the 

proposal revision process. Mitchco states that, although the Army found that 

both KOVR and Mitchco were within the competitive range, the Army only 

conducted discussions with and accepted proposal revisions from KOVR and 

not from Mitchco. Mitchco alleges that this treatment violated FAR 

15.306(c) & (d), and FAR 15.307(b).

KOVR and the government respond that this argument is baseless

insofar as it is directed at the Army’s application of the R-SA’s priority to 

KOVR. KOVR argues that the FAR allows the Army to directly negotiate 

with KOVR for dining facilities contracts without resort to a competitive 

procurement. See 34 C.F.R. §§ 395.33(a), (d). Thus, once an SLA was 

identified as within the competitive range, the Army was within its rights to 

negotiate only with it. Defendant adds that, although the solicitation 

expressly notified offerors that the Army would apply the R-SA priority to 

KOVR, Mitchco did not file a pre-offer protest, thus, waiving its challenge 

under Blue & Gold, Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. 

Cir. 2007). We agree. Although the solicitation was clear about the R-SA’s 

application giving priority to an SLA and thus allowing the agency to 

negotiate only with the KOVR, Mitchco did not challenge that aspect of the 

solicitation in a pre-award protest, but instead decided to wait to raise the 

issue post-award. Thus, Mitchco waived its opportunity to assert this protest 

allegation. 

6. KOVR’s Proposal Was Technically Acceptable

Lastly, Mitchco alleges that KOVR’s proposal was not Technically 

Acceptable. Mitchco claims that KOVR’s proposed subcontractor, 

Southern, intended to utilize its staff not only to cook, but to clean toilets. 

Mitchco argues that Southern intends to ignore service occupation limitations 

in the applicable collective bargaining agreement. Mitchco further claims 

that KOVR and Southern do not have a signed written contract, leaving 

Southern with the ability to walk away from the work. 
19

These allegations are without any factual support in the record. 

Plaintiff’s bald assertions are based upon an alleged conversation between 

employees of Southern and Mitchco. Mitchco provides no supporting details 

or competent evidence to substantiate its argument that KOVR proposed the

cook would clean restrooms, or that KOVR’s proposal ignores the collective 

bargaining agreement. As to whether Southern has a signed contract with 

KOVR, the solicitation did not require one. 

In sum, Mitchco has misfired badly on all of its merits assertions of 

procurement law violations. 

B. Irreparable Harm

The factor of irreparable harm is also lacking here. When considering 

irreparable harm, “the relevant inquiry in weighing this factor is whether 

plaintiff has an adequate remedy in the absence of an injunction.” Magellan 

Corp. v. United States, 27 Fed. Cl. 446, 447 (1993). This court takes judicial 

notice of the Franklin Circuit Court order, which granted Mitchco a 

permanent injunction requiring Kentucky to award the Fort Knox 

procurement to Mitchco in accordance with a prior contract between Mitchco 

and Kentucky. By obtaining an injunction from the state court, plaintiff has 

effectively nullified any assertion of irreparable harm here. Although 

Mitchco is not the awardee, if the state injunction stands, it is still the subcontractor that will perform the work. Mitchco explains the value of its loss 

in its motion: “although Mitchco currently is performing the food services 

subcontract under the Contract, per Kentucky court order, Mitchco’s

proposed price is slightly (less than 2%) higher than [Kentucky’s] . . .

proposed price” and absent injunctive relief in this action, Mitchco has no 

claim against the U.S. Government for the difference. Pls.’ Mot. for 

Judgment on the Admin. Rec. and Permanent Injunction (ECF 31 at 44). In 

other words, under the state court order, Mitchco will retain more than 98% 

of the value of the work even in the absence of an injunction from this court. 

The difference in the value of serving as the prime contractor versus the 

subcontractor does not rise to the level of an irreparable injury. 

As additional arguments, Mitchco also complains that it suffers loss 

by being required to make R-SA payments to the “blind vendor” under the 

Contract that Mitchco would not be making if it were the prime contractor. 
20

Mitchco also alleges that it faces the threat of removal, notwithstanding the 

Kentucky court order, which is not a threat that Mitchco would be facing if 

Mitchco were the prime contractor. Neither of these are persuasive.

Mitchco’s allegation regarding the harm caused by making R-SA 

payments to the blind vendor is unquantified, and it does not explain how 

this is worse than its cost of labor as the prime contractor. Even presuming 

a difference of some small percentage, the harm would be far from 

irreparable. We also find that the fear of losing the subcontract is not an 

irreparable harm. The fear in and of itself is not irreparable as it is entirely 

speculative whether the underlying injury would ever befall plaintiff. As the 

Supreme Court cautioned, “issuing a[n] . . . injunction based only on a 

possibility of irreparable harm is inconsistent with our characterization of 

injunctive relief as an extraordinary remedy that may only be awarded upon 

a clear showing that plaintiff is entitled to such relief.” Winter v. Natural 

Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 

520 U.S. 968, 972 (1997)).

Plaintiff’s reliance on United Payors & United Providers Health 

Servs., Inc. v. United States, 55 Fed. Cl. 323 (2003), is unavailing. United

involved a plaintiff which lost the contract award entirely; its only relief 

would be “the recoupment of its bid and proposal costs” on a five-year 

contract. Id. at 333. Such relief would not have adequately compensated

that plaintiff’s lost profits. Thus, the court found that “[t]his type of loss, 

deriving from a lost opportunity to compete on a level playing field for a 

contract, has been found sufficient to prove irreparable harm.” Id. The loss 

here was insufficient to show irreparable harm because Mitchco has virtually 

100% of the benefit of the contract award as subcontractor and the value 

between its profits as the prime contractor versus the subcontractor does not 

rise to the level of irreparable harm.

Plaintiff has shown neither success on the merits nor that it will suffer 

an irreparable injury absent the sought injunction. We thus need not consider 

the other factors. No relief is warranted. 
21

CONCLUSION

The allegations levied and the arguments made are wholly without 

support in the record and the law, and they were brought by an offeror who 

represents that it will be performing the work no matter the outcome of this 

suit. Plaintiff’s motion for judgment on the record and a permanent 

injunction is denied. Defendant’s and intervenors’ cross-motions are 

granted. The Clerk of Court is directed to enter judgment for defendant. No 

costs. 

s/Eric G. Bruggink

ERIC G. BRUGGINK

Senior Judge