Government’s motion to remand protest is denied. The protest challenged a decision to transfer requirements from one agency to another. The government admitted that the transfer decision was not supported by the administrative record. The court found the government could not satisfy a single element of the remand test. The government had not provided a compelling justification for the remand; indeed, had provided no evidence in support of the remand request. Additionally, the court found that the need for finality outweighed the purported justification for a remand. The government had already effectively admitted that it made an error an making the transfer decision. The court saw no need to hold off to the government a chance to paper the file. The court opined that motion to remand appeared to be more of a litigation tactic than an attempt to correct an error.
Multiple offerors filed protests with the Court of Federal Claims related to a Department of Veterans Affairs procurement. Owens and Minor Distribution, Inc. challenged a corrective action taken by the VA. Other offerors, Medline Industries, Inc. and Concordance Healthcare Solutions, had a filed protests challenging the VA’s decision to transfer some its requirements to the Defense Logistics Agency where they would be performed by existing DLA contractors, Owens & Minor and Cardinal Health 200, LLC. The court had consolidated both protests.
After the protesters had filed their opening briefs, the government moved to remand the protests challenging the VA’s decision to transfer its requirements to DLA. The motion to remand did not confess any error and did not promise any corrective action. Nevertheless, the government claimed that the proposed transfer simply lacked support in the administrative record. Indeed, rather than confessing error, the government simply conceded that the record did not support the decision made, “not because the decision was inherently unlawful, but because it [was] not possible to discern the reasoning supporting it to determine its lawfulness."
The court was not persuaded by the government’s reasoning. The court noted that the motion to remand, which was filed on a Friday afternoon right before the government’s response to the protester’s merits briefs were due, stank of gamesmanship. Moreover, the court was perplexed by the government’s distinction between the "confession-of-an-error" and "impossible-to-discern-reasoning" concepts. In the court's view, there was no difference between these concepts. If the court were to find that the VA’s decision were unsupported by the record or lacked a rational basis, the government would still lose.
In any event, the court noted that a remand is appropriate where an agency has a substantial and legitimate concern. Borrowing a test crafted by the Court of International Trade, the court reasoned that an agency has a substantial and legitimate concern for a remand when (1) the agency has a compelling justification for the remand request, (2) the need for finality does not outweigh the justification for remand, and (3) the scope of the remand request is appropriate.
The court found that the government could not satisfy any of these elements. The government had not provided a compelling justification for remand other than making conclusory statements about its concerns. The remand motion contained no citations to record and was not accompanied by any affidavits. Viewed in conjunction with the suspect timing of the motion, the court wondered whether the remand request was simply a litigation tactic.
Additionally, the court did not believe that the justification for remand outweighed the need for finality. In fact, the court opined, the need for finality was overwhelming. The government had already confessed error in open court. The court saw no need to wait additional months for the government to paper the record to obscure what was obvious—there was no support in the record for the transfer or requirements.
Finally, the court found that the scope of the remand requested was inadequate. Although the government was not seeking remand of the Owens & Minor protest of the corrective action, a remand had the potential to moot that protest. Additionally, the government had indicated its intent to move forward with a transfer of at least some of the requirements from the VA to DLA. Thus, the remand would exclude consideration of a transfer the government had already conceded was unsupported by the administrative record.
Owens & Minor is represented by Jonathan D. Shaffer of Smith Pachter McWhorter PLC. Concordance Health Care Solutions is represented by Aron C. Beezley, Patrick R. Quigley, Lisa A. Markman, Nathaniel J. Greeson and Sarah S. Osborne of Bradley Arant Boult Cummings, LLP. Medline Industries is represented by Kristen E. Ittig, Nathaniel E. Castellano, and Aime HH Joo of Arnold & Porter Kaye Scholer LLP. Cardinal Health is represented by Merle M. DeLancey, Jr. of Blank Rome LLP. The government is represented by Sarah E. Kramer and Mollie Finnan of the Department of Justice as well as Jason Fragoso of the Department of Veterans Affairs and Gale Furman and Katherine McCulloch of the Defense Logistics Agency.