Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 1 of 18
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`In the United States Court of Federal Claims
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`No. 19-1796C
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`(E-filed: March 6, 2020)1
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`
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`Kevin P. Mullen, Washington, DC, for plaintiff. J. Alex Ward, Daniel E. Chudd,
`Sandeep N. Nandivada, Caitlin A. Crujido, Alissandra D. Young, Andrew S. Tulumello,
`Daniel P. Chung, Theodore J. Boutrous, Jr., Richard J. Doren, and Eric D. Vandevelde, of
`counsel.
`
`Anthony F. Schiavetti, Trial Attorney, with whom appeared Joseph H. Hunt, Assistant
`Attorney General, Robert E. Kirschman, Jr., Director, and Patricia M. McCarthy,
`Assistant Director, Commercial Litigation Branch, Civil Division, United States
`Department of Justice, Washington, DC, for defendant. Michael G. Anderson and
`Benjamin M. Diliberto, Washington Headquarters Service & Pentagon Force Protection
`Agency; and Tyler J. Mullen, Defense Information Systems Agency; of counsel.
`
`
`
`1
`This opinion was issued under seal on February 13, 2020. Pursuant to ¶ 4 of the ordering
`language, the parties were invited to identify source selection, proprietary or confidential
`material subject to deletion on the basis that the material was protected/privileged. The proposed
`redactions were acceptable to the court. All redactions are indicated by brackets ([ ]).
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`Bid-Protest; Temporary Restraining
`Order; Preliminary Injunction;
`Requirement of Security; RCFC 65.
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`Plaintiff,
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`_________________________________
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`AMAZON WEB SERVICES, INC.,
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`
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`v.
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`THE UNITED STATES,
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`
`
`and
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`MICROSOFT CORP.,
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` Intervenor-defendant.
`__________________________________
`
`Defendant,
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`

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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 2 of 18
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`Robert S. Metzger, Washington, DC, for intervenor-defendant. Jeffery M. Chiow, Neil
`H. O’Donnell, Lucas T. Hanback, Stephen L. Bacon, Deborah N. Rodin, Cassidy Kim,
`Eleanor M. Ross, Kathryn H. Ruemmler, Abid R. Qureshi, Roman Martinez, Anne W.
`Robinson, Dean W. Baxtresser, Genevieve Hoffman, Riley Keenan, Margaret Upshaw, of
`counsel.
`
`
`OPINION AND ORDER
`
`Background
`
`
`CAMPBELL-SMITH, Judge.
`
`On January 22, 2020, plaintiff filed a motion for temporary restraining order
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`(TRO) and preliminary injunction (PI), pursuant to Rule 65 of the Rules of the United
`States Court of Federal Claims (RCFC).2 See ECF No. 130. In ruling on the motion, the
`court has also considered: (1) the administrative record (AR), ECF No. 107 (notice of
`filing the AR);3 (2) intervenor-defendant’s response in opposition to plaintiff’s motion,
`ECF No. 137; (3) defendant’s response in opposition to plaintiff’s motion, ECF No. 139;
`and (4) plaintiff’s reply in support of its motion, ECF No. 144. The motion is ripe for
`ruling, and the court deems oral argument unnecessary. For the following reasons,
`plaintiff’s motion for a preliminary injunction is GRANTED.
`
`I.
`
`This protest action was filed on November 22, 2019. See ECF No. 1. The case
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`involves considerable detail, but for purposes of deciding this motion, the court will
`relate only those details that are necessary to the instant analysis.
`
`Plaintiff filed this action to protest the United States Department of Defense’s
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`(DOD) decision to award the Joint Enterprise Defense Infrastructure (JEDI) contract to
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`2
`The court notes that RCFC 65 differentiates between preliminary injunctions (PI) and
`temporary restraining orders (TRO) primarily on the basis of notice to the opposing parties.
`Specifically, when the opposing party has notice, the relief requested is a PI. See RCFC 65(a).
`When no notice is given, the relief requested is a TRO with a duration limited to fourteen days,
`absent an extension. See RCFC 65(b). Although plaintiff has nominally requested both a PI and
`a TRO, the court considers its motion as a request for a PI because defendant and intervenor-
`defendant have each been afforded an opportunity to respond to plaintiff’s arguments. As such,
`any separate request for a TRO is moot.
`
` 3
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`The administrative record (AR) in this case is comprised of an unusually large number of
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`files in a variety of formats, some of which were incompatible with filing through the court’s
`case management/electronic case filing (CM/ECF) system. The court, therefore, departed from
`its usual practice of requiring defendant to file the AR through CM/ECF, and ordered defendant
`to file the AR on encrypted external hard drives. See ECF No. 98 (order).
`
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`2
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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 3 of 18
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`intervenor-defendant, under Solicitation No. HQ0034-18-R-0077 (solicitation). See id. at
`1; ECF No. 130 at 1 (identifying the resulting contract as Contract No. HQ0034-20-D-
`0001). As alleged by plaintiff in the complaint, the JEDI program is DOD’s “plan to
`upgrade and consolidate its cloud computing infrastructure across [DOD], which would
`enable [DOD] to employ ‘emerging technologies to meet warfighter needs’ and maintain
`‘our military’s technological advantage.’”4 Id. at 17 (citation omitted).
`
`DOD issued the JEDI solicitation on July 26, 2018. Id. at 18. After reviewing
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`proposals, the source selection authority was to make an award determination on a best-
`value basis. The source selection plan stated: “The objective of this source selection is,
`through a competitive solicitation process, to select the Offeror whose proposed solution
`for JEDI Cloud represents the best value to the Government.” See AR at 64340.
`Following the evaluation process, DOD publicly announced, on October 25, 2019, that it
`had awarded the JEDI contract to intervenor-defendant. See ECF No. 1 at 90.
`
`In both its complaint and its motion for injunctive relief, plaintiff describes the
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`solicitation’s evaluation factors and alleges a host of errors in their application. See
`generally, ECF No. 1, ECF No. 130-1. The factor most critical to the court’s present
`analysis, however, is Factor 5, which addresses “the Offeror’s proposed approach to
`application and data hosting.” AR at 151496, 151506. As part of the technical proposals
`under Factor 5, the offerors were instructed to submit price proposals based on various
`factual scenarios. See id. at 151496. The agency was then to evaluate the proposals for
`each Price Scenario to determine whether the proposal was a “technically feasible
`approach when considering the application and data hosting requirements in Section L for
`this Factor and the specific scenario requirements in Attachment L-2.” Id. at 151506.
`See also id. at 151496 (Section L requirements); id. at 198-217 (Attachment L-2 Price
`Scenarios requirements).
`
`Plaintiff’s allegations of improper evaluation analyzed in this opinion relate
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`specifically to Price Scenario 6, in which each offeror is instructed to propose prices on
`facts related to its “Containerized Data Analysis Framework.” See ECF No. 130-1 at 16-
`20; AR at 215. The Price Scenarios were revised through Amendment 005, which
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`4
`Plaintiff offers the following definition of the term cloud computing:
`
`
`“Cloud Computing” refers to a shared pool of configurable computing resources
`(e.g., networks, servers, storage, applications, and services) that can be rapidly
`provisioned and released with minimal management effort or service provider
`interaction. Cloud computing is an alternative to traditional “on-premises”
`information technology resources, which require users to plan, procure, manage,
`and maintain physical computing resources (i.e., servers).
`
`ECF No. 1 at 17.
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`3
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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 4 of 18
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`instructed offerors to “[a]ssume that all data in these price scenarios is highly accessible
`unless otherwise stated.” AR at 64310. The amended version of Price Scenario 6 did not
`expressly state that the “highly accessible” assumption did not apply. See id. at 64327-
`29. It did, however, use the similar term “highly available” in several instances. Id.
`
`
`
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`After DOD issued Amendment 005, an offeror sought the following clarification:
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`The Government has introduced a new term “highly accessible” without
`definition. Could the government confirm that the term “highly accessible”
`is defined as either “Online Storage” or “Nearline Storage” as defined in
`Attachment J-8?
`
`Id. at 64332. In response, DOD stated: “The term ‘Highly Accessible’ is meant to be
`understood as online and replicated storage.” Id. (emphasis added).
`
`The solicitation defines online storage as “[s]torage that is immediately accessible
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`to applications without human intervention.” Id. at 650. And it defines nearline storage
`to mean “[s]torage not immediately available, but can be brought online quickly without
`human intervention.” Id. The solicitation does not define the term “replicated storage,”
`but plaintiff reads this to be a separate characteristic of the required storage from its
`designation as online, based on its understanding of the term as a reference to “the
`practice of storing data more than once so that there are multiple copies of the data.”
`ECF No. 130-1 at 17. Neither defendant nor intervenor-defendant offers an alternative
`definition for “replicated storage” in their responses. See ECF No. 137, ECF No. 139.
`
`Plaintiff alleges that intervenor-defendant’s proposal under Factor 5, Price
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`Scenario 6 proposed [ ] storage rather than online storage, in contravention of the
`solicitation requirement reflected in Amendment 005 and the subsequent DOD
`clarification. See ECF No. 130-1 at 18. Intervenor-defendant’s proposal for Price
`Scenario 6 proposes [ ] storage, see AR at 174754-57. And as defined in intervenor-
`defendant’s proposal, [ ] storage is [ ] storage, [ ]. Id. at 173315.
`
`In its source selection report, the Price Evaluation Board (PEB) stated that plaintiff
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`proposed online storage for Price Scenario 6, and that intervenor-defendant proposed [ ]
`storage for Price Scenario 6. The PEB attributed the price difference between the two
`proposals, in part, to this difference.
`
`
`5.5.6.1. [Plaintiff] proposed a total price of $[ ] for Price Scenario 06.
`Approximately [ ]% of [plaintiff’s] price before adjustments was in the
`Storage category with a value of $[ ]. [Plaintiff’s] proposed discounting
`strategy resulted in an adjustment of $[ ], or a [ ]% decrease in price. The
`significant variance in price from [intervenor-defendant] was attributed
`to a technical approach where [plaintiff] proposed their [ ] online storage
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`4
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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 5 of 18
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`in so [sic] they could [ ]. A separate MFR was completed to document
`their rationale and was identified in the IPR Memo.
`
`5.5.6.2. [Intervenor-defendant] proposed a total price of $[ ] for Price
`Scenario 06. Approximately [ ]% of [intervenor-defendant’s] price
`before adjustments was in the Storage category with a value of $[ ].
`[Intervenor-defendant’s] proposed discounting strategy resulted in an
`adjustment of $[ ], or a [ ]% decrease in price. The significant variance
`in price from [plaintiff] was attributed to the technical approach where
`[intervenor-defendant] proposed their [ ] storage solution which meets
`the technical feasibility requirements and offers a [ ] unit price.
`
`
`Id. at 176363 (emphasis added). The crux of plaintiff’s argument on this point is that the
`PEB erred in concluding that intervenor-defendant’s [ ] storage met “the technical
`feasibility requirements,” because, pursuant to Amendment 005 and DOD’s clarification
`thereof, offerors were required to propose online storage. ECF No. 130-1 at 17-18.
`Plaintiff contends that as a result of intervenor-defendant’s “noncompliant storage
`solution,” DOD “should have found [intervenor-defendant’s] technical approach
`unfeasible, assigned a deficiency, and eliminated Microsoft from the competition.” Id. at
`19.
`
`For this reason, among others, plaintiff asks the court to issue a preliminary
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`injunction, “to prevent Defendant United States from proceeding under Contract No.
`HQ0034-20-D-0001, which was awarded under Solicitation No. HQ0034-18-R-0077-
`0002 to [intervenor-defendant], until [plaintiff’s] protest is resolved.” ECF No. 130 at 1.
`
`II.
`
`
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`In its complaint, plaintiff invokes this court’s bid protest jurisdiction. See ECF
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`No. 1 at 15-16. This court’s bid protest jurisdiction is based on the Tucker Act, which
`gives the court authority:
`
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`Legal Standards
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`A.
`
`Bid Protests
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`to render judgment on an action by an interested party objecting to a
`solicitation by a Federal 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. . . . without regard to whether suit is instituted before or after
`the contract is awarded.
`
`28 U.S.C. § 1491(b)(1) (2012). The Tucker Act also states that the court may grant “any
`relief the court considers proper . . . including injunctive relief.” 28 U.S.C. § 1491(b)(2).
`
`
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`5
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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 6 of 18
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`
`The court’s analysis of a “bid protest proceeds in two steps.” Bannum, Inc. v.
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`United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First, the court determines,
`pursuant to the Administrative Procedure Act standard of review, whether the “agency’s
`action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
`with [the] law.” Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901,
`907-08 (Fed. Cir. 2013) (citing 28 U.S.C. § 1491(b)(4) (adopting the standard of 5 U.S.C.
`§ 706)). If the court finds that the agency acted in error, the court then must determine
`whether the error was prejudicial. See Bannum, 404 F.3d at 1351.
`
`To establish prejudice, “a protester must show ‘that there was a substantial chance
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`it would have received the contract award but for that error.’” Alfa Laval Separation, Inc.
`v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting Statistica, Inc. v.
`Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). “In other words, the protestor’s
`chance of securing the award must not have been insubstantial.” Info. Tech. &
`Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). The
`substantial chance requirement does not mean that plaintiff must prove it was next in line
`for the award but for the government’s errors. See Sci. & Mgmt. Res., Inc. v. United
`States, 117 Fed. Cl. 54, 62 (2014); see also Data Gen. Corp. v. Johnson, 78 F.3d 1556,
`1562 (Fed. Cir. 1996) (“To establish prejudice, a protester is not required to show that but
`for the alleged error, the protester would have been awarded the contract.”). But plaintiff
`must, at minimum, show that “had the alleged errors been cured, . . . ‘its chances of
`securing the contract [would have] increased.’” Precision Asset Mgmt. Corp. v. United
`States, 125 Fed. Cl. 228, 233 (2016) (quoting Info Tech., 316 F.3d at 1319).
`
`Given the considerable discretion allowed contracting officers, the standard of
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`review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d
`1054, 1058 (Fed. Cir. 2000). As the Supreme Court of the United States has explained,
`the scope of review under the “arbitrary and capricious” standard is narrow. See
`Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). “A
`reviewing court must ‘consider whether the decision was based on a consideration of the
`relevant factors and whether there has been a clear error of judgment,” and “[t]he court is
`not empowered to substitute its judgment for that of the agency.’” Id. (quoting Citizens
`to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)); see also Weeks Marine,
`Inc. v. United States, 575 F.3d 1352, 1368-69 (Fed. Cir. 2009) (stating that under a highly
`deferential rational basis review, the court will “sustain an agency action ‘evincing
`rational reasoning and consideration of relevant factors’”) (citing Advanced Data
`Concepts, 216 F.3d at 1058).
`
`B.
`Injunctive Relief
`
`Injunctive relief before trial is a “drastic and extraordinary remedy that is not to be
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`routinely granted.” Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1324
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`
`
`6
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`

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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 7 of 18
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`(Fed. Cir. 2004) (citation omitted). As the United States Court of Appeals for the Federal
`Circuit has held:
`
`
`A.
`
`Preliminary Injunction Factors
`
`To determine if a permanent injunction is warranted, 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) (citing PGBA,
`LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004)). The court considers the
`same factors in evaluating whether a preliminary injunction is warranted. See Am.
`Signature, Inc. v. United States, 598 F.3d 816, 823 (Fed. Cir. 2010) (citations omitted).
`The decision of whether injunctive relief is appropriate falls within the court’s discretion.
`Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 991 (Fed. Cir. 2018) (citing PGBA,
`389 F.3d at 1223).
`
`III. Analysis
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`
`
`
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`In order to succeed on the merits of its bid protest, plaintiff must demonstrate: (1)
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`that the “agency’s action was arbitrary, capricious, an abuse of discretion, or otherwise
`not in accordance with [the] law,” Glenn Def., 720 F.3d at 907-08; and (2) that the error
`was prejudicial, see Bannum, 404 F.3d at 1351.
`
`
`
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`Plaintiff argues that it is likely to succeed on the merits with regard to its
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`allegations that the DOD improperly evaluated intervenor-defendant’s Price Scenario 6
`based on a plain reading of the requirements and definitions in the solicitation, the
`relevant amendment thereto, and the clarification issued by the DOD, as recited above.
`More specifically, plaintiff alleges that intervenor-defendant’s Price Scenario 6 proposal
`fails to comply with the requirement that storage be “highly-accessible,” a term defined
`as “online and replicated storage.” AR at 64332. Had the DOD properly evaluated
`intervenor-defendant’s proposal of [ ] storage in Price Scenario 6, according to plaintiff,
`the DOD would have concluded that the proposal was “noncompliant,” and “should have
`found [intervenor-defendant’s] technical approach unfeasible, assigned a deficiency, and
`eliminated [intervenor-defendant] from the competition.” ECF No. 130-1 at 19.
`
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`1.
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`Likelihood of Success on the Merits
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`
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`a.
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`Plaintiff Is Likely to Show Defendant Erred in Evaluating
`Intervenor-Defendant’s Factor 5, Price Scenario 6
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`7
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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 8 of 18
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`As an initial matter, neither defendant nor intervenor-defendant dispute that the
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`solicitation required the proposals under Price Scenario 6 to include “highly-accessible,”
`or online, storage. See ECF No. 139 at 27 (defendant stating that “[f]or Price Scenario 6,
`[plaintiff] is correct that the solicitation did not specify a storage type, and that, under the
`terms of Amendment 0005, offerors were to “‘[a]ssume that all data in these price
`scenarios is highly accessible unless otherwise stated’”); ECF No. 137 at 18 (intervenor-
`defendant arguing that its “proposed solution to Price Scenario 6 meets the [solicitation’s]
`requirement for ‘highly accessible’ storage”).
`
`Rather than dispute the applicable storage requirement, defendant makes two
`
`arguments. First, defendant contends that plaintiff “seeks to elevate superficial labels
`over technical performance,” and second, that if correct, plaintiff “would have been as
`technically deficient as [intervenor-defendant], and so would be in no position to
`complain of prejudice.” ECF No. 139 at 27.5
`
`With regard to its first argument, defendant claims that plaintiff “fails to recognize
`
`that the storage that [intervenor-defendant] proposed for Price Scenario 6, despite parts of
`it being marketed by [intervenor-defendant] as ‘[ ] storage,’ meets the solicitation
`definition of ‘online storage’—that is, it is immediately accessible to applications without
`human intervention.” Id. at 28. In support of this assertion, defendant cites to specific
`features of intervenor-defendant’s proposal that, it argues, amount to immediate access,
`but defendant does not identify any part of the record in which the DOD made such an
`equivalence determination during the evaluation process. See ECF No. 139 at 28-29.
`
`Defendant cites instead to the Technical Evaluation Board’s (TEB) Consensus
`
`Report in which the TEB determines that intervenor-defendant’s Price Scenario 6 is
`“technically feasible,” and argues that such a determination was within the DOD’s
`discretion. See id. at 29. (citing AR at 151327-28). The cited section of the report,
`however, does not discuss the application of the terms “highly accessible,” “highly
`available,” “online,” or “nearline,” to intervenor-defendant’s proposal. See AR at
`151327-28. Thus, defendant has not identified any evidence in the record that the DOD’s
`decision to deem intervenor-defendant’s proposal as “technically feasible” resulted from
`an exercise of discretion, nor does it explain how the DOD’s discretion could extend so
`far as to allow it to depart from the precise and explicit definition of the term “highly
`accessible.”
`
`
`
`5
`The court has carefully reviewed intervenor-defendant’s arguments relating to its
`inclusion of [ ] storage in its proposal for Price Scenario 6. See ECF No. 137 at 17-23. In the
`interest of honoring the parties’ request for an expedited ruling on this motion, the court will
`only address intervenor-defendant’s arguments that are both material and substantively different
`from defendant’s.
`
`
`
`
`8
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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 9 of 18
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`
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`
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`b.
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`Plaintiff Is Likely to Show Prejudice
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`Defendant’s second argument—that if intervenor-defendant’s proposal is deficient
`
`so is plaintiff’s—likewise fails to effectively address plaintiff’s claims. As an initial
`matter, the assertion that plaintiff’s proposal suffered from the same deficiency as
`intervenor-defendant’s does not necessarily lead to the conclusion that either deficiency
`should be overlooked. Moreover, the record appears unlikely to support this argument.
`Plaintiff cites to evidence in the record that, while [ ] storage was part of its Price
`Scenario 6 proposal, its proposal primarily relied on, and certainly included, online
`storage. See ECF No. 144 at 10-11 (citing AR at 152866-67).
`
`The court concludes that—based on the portions of the record cited by the parties
`
`and the arguments made thereon—plaintiff is likely to demonstrate that defendant erred
`in determining that intervenor-defendant’s Factor 5, Price Scenario 6 was “technically
`feasible” according to the defined terms of the solicitation.
`
`
`
`In addition, the court finds that plaintiff is likely to demonstrate that defendant’s
`
`error was prejudicial, i.e., that plaintiff’s chance of securing the award was not
`insubstantial absent the error. See Info. Tech., 316 F.3d at 1319. To show prejudice,
`plaintiff is not required to prove it was next in line for the award but for defendant’s
`errors. See Data Gen., 78 F.3d at 1562 (“To establish prejudice, a protester is not
`required to show that but for the alleged error, the protester would have been awarded the
`contract.”). But plaintiff must, at a minimum, show that “had the alleged errors been
`cured, . . . ‘its chances of securing the contract [would have] increased.’” Precision Asset
`Mgmt. Corp. v. United States, 125 Fed. Cl. 228, 233 (2016) (quoting Info Tech., 316
`F.3d at 1319).
`
`Plaintiff takes the position that upon a finding that intervenor-defendant’s proposal
`
`of [ ] storage was “noncompliant,” defendant “should have found [intervenor-
`defendant’s] technical approach unfeasible, assigned a deficiency, and eliminated
`[intervenor-defendant] from the competition.” ECF No. 130-1 at 19. Plaintiff also
`argues that this improper evaluation resulted in a skewed price analysis. See id. at 20-22.
`
`Under the terms of the Source Selection Plan, a “deficiency” is defined as: “A
`
`material failure of a proposal to meet a Government requirement or a combination of
`significant weakness[es] in a proposal that increases the risk of unsuccessful contract
`performance to an unacceptable level.” AR at 64355. The court has concluded that it is
`likely plaintiff will demonstrate that intervenor-defendant proposed [ ] storage when the
`solicitation explicitly required online storage. In the context of a procurement for cloud
`computing services, the court considers it quite likely that this failure is material. As
`such, plaintiff likely is correct that defendant should have assigned a deficiency to
`intervenor-defendant’s proposal for Factor 5, Price Scenario 6.
`
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`9
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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 10 of 18
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`In making its case that it was prejudiced by this evaluation error, plaintiff does not
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`only rely on its allegation that this deficiency should have resulted in defendant
`eliminating intervenor-defendant from competition. Plaintiff also points to the PEB
`evaluation, which specifically attributes a price difference of $[ ] between plaintiff’s and
`intervenor-defendant’s proposals to the fact that plaintiff proposed online storage while
`intervenor-defendant proposed [ ] storage. Defendant claims that “while demonstrating
`that [intervenor-defendant’s] proposed storage costs for this price scenario were [ ] than
`[plaintiff’s], [plaintiff] does not illuminate why that is the case.” ECF No. 139 at 31.
`According to defendant, the price difference is attributable to the different discounts
`offered by each offeror. See id. The PEB, however, explained the reasons for the price
`difference in its source selection report:
`
`
`[Plaintiff] proposed a total price of $[ ] for Price Scenario
`5.5.6.1.
`06. Approximately [ ]% of [plaintiff’s] price before adjustments was in
`the Storage category with a value of $[ ]. [Plaintiff’s] proposed
`discounting strategy resulted in an adjustment of $[ ], or a [ ]% decrease
`in price. The significant variance in price from [intervenor-
`defendant] was attributed to a technical approach where [plaintiff]
`proposed their [ ] online storage in so [sic] [ ]. A separate MFR was
`completed to document their rationale and was identified in the IPR
`Memo.
`
`[Intervenor-defendant] proposed a total price of $[ ] for
`5.5.6.2.
`Price Scenario 06. Approximately [ ]% of [intervenor-defendant’s] price
`before adjustments was in the Storage category with a value of $[ ].
`[Intervenor-defendant’s] proposed discounting strategy resulted in an
`adjustment of $[ ], or a [ ]% decrease in price. The significant variance
`in price from [plaintiff] was attributed to the technical approach
`where [intervenor-defendant] proposed their [ ] storage solution
`which meets the technical feasibility requirements and offers a [ ] unit
`price.
`
`
`AR at 176363 (emphasis added).
`
`After considering the portions of the record identified by the parties and the
`
`argument made thereon, the court considers it likely that plaintiff’s chances of receiving
`the award would have increased absent defendant’s evaluation error. Even if what
`appears to be a deficiency did not result in intervenor-defendant’s elimination from
`competition, a reduction in the $[ ] price advantage attributed by the PEB to intervenor-
`defendant’s use of [ ] storage likely would affect the price evaluation, which in turn,
`would affect the best value determination.
`
`
`
`
`10
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`

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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 11 of 18
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`
`
`2.
`
`Irreparable Harm
`
`Accordingly, the court concludes that plaintiff is likely to succeed on the merits of
`
`its argument that the DOD improperly evaluated intervenor-defendant’s Factor 5, Price
`Scenario 6.
`
`
`
`“A preliminary injunction will not issue simply to prevent a mere possibility of
`
`injury, even where prospective injury is great. A presently existing, actual threat must be
`shown.” Qingdao Taifa Grp. v. United States, 581 F.3d 1375, 1379 (2009) (quoting
`Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983)). Here, plaintiff
`argues that it “will suffer irreparable harm without injunctive relief” because it has no
`“‘adequate remedy in the absence of an injunction.’” ECF No. 130-1 at 57 (quoting
`NetStar-1 Gov’t Consulting, Inc. v. United States, 101 Fed. Cl. 511, 530 (2011), aff’d,
`473 F. App’x 902 (Fed. Cir. 2012)). According to plaintiff, “in the absence of a
`temporary restraining order and preliminary injunction, [plaintiff] could lose the
`opportunity to perform the JEDI Contract, earn the revenue and profits resulting from
`contract performance, ensure its technology is widely used by [the DOD], and gain
`additional experience working for the Government.” Id.
`
`In support of these assertions, plaintiff has filed the declaration of Jennifer
`
`Chronis. Ms. Chronis is plaintiff’s General Manager for its business with the DOD. See
`ECF No. 130-2 at 13. She declares, in relevant part, that intervenor-defendant’s
`
`
`continued performance of the JEDI Contract would provide [intervenor-
`defendant] with an unfair competitive advantage in any recompetition of the
`JEDI Contract resulting from [plaintiff’s] protest. Any additional contract
`performance would give [intervenor-defendant] access to further non-public
`information that would allow [intervenor-defendant] (but not [plaintiff]) to
`better tailor any revised proposal submitted in a JEDI recompetition.
`
`
`Id. at 14. She adds that plaintiff “has already begun to feel the impact of the JEDI award
`with the [ ]. Id. This delay will harm plaintiff because it [ ]. Id. at 14-15. Ms. Chronis
`further states that plaintiff will lose customers to the JEDI program, starting with
`customers who will participate in the pilot stage of the program during the contract
`transition period.6 Id. at 15.
`
`
`
`6
`Defendant disputes plaintiff’s claim that plaintiff will lose customers during the pilot
`stage of the JEDI program. See ECF No. 139-1 at 5-6 (declaration of Sharon Woods, Director
`and Program Manager for the Cloud Computing Program Office at the DOD). The court does
`not have sufficient facts to resolve this dispute, and as such, will not weigh this alleged harm in
`its analysis.
`
`
`
`11
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`Case 1:19-cv-01796-PEC Document 173 Filed 03/06/20 Page 12 of 18
`
`Defendant argues that plaintiff’s claims of irreparable harm are too speculative
`
`and generic to support an injunction, and insists that any harm plaintiff may suffer would
`not be irreparable. See ECF No. 139 at 60-62. The court disagrees. Plaintiff has
`identified specific losses reasonably expected during the transition period including the
`loss of competitive advantage in any renewed competition, and damage to plaintiff’s
`ability to serve its customers. These are precisely the types of injuries that this court has
`previously found to constitute irreparable harm. See, e.g., NetStar-1, 98 Fed Cl. 735
`(holding that the loss of competitive advantage during a transition period constitutes
`irreparable harm and justifies preliminary injunctive relief); Serco, Inc. v. United States,
`81 Fed. Cl. 463, 502 (2008) (noting that loss derived “from a lost opportunity to compete
`on a level playing field for a contract, has been found sufficient to prove irreparable
`harm”) (citations omitted); Hospital Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618,
`624 (2005) (stating that lost profits “stemming from a lost opportunity to compete for a
`contract on a level playing fi