In the United States Court of Federal Claims
                                       No. 14-122C
                                  (Filed: May 12, 2014)

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                                    *
LUKOS VATC JV LLC,                  *
                                    *
            Plaintiff,              *
                                    *
            v.                      *
                                    *
THE UNITED STATES,                  *
                                    *
            Defendant,              *
                                    *
            and                     *
                                    *
ITA INTERNATIONAL, LLC,             *
                                    *
            Intervenor-Defendant.   *
                                    *
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                           OPINION AND ORDER

        This is a bid protest action. Basically, the issue in this case is whether LVJV was
qualified as a small business under the Small Business Administration’s 8(a) Business
Development Program in time to submit a proposal on a procurement issued by United
States Special Operations Command (“SOCOM”) that has a 100% set-aside for 8(a)
Program participants. The case is now before the Court on cross-motions for judgment on
the administrative record. For the reasons that follow, LVJV’s motion for judgment on
the administrative record is DENIED, the Government’s cross-motion is GRANTED, and
ITA’s cross-motion is DENIED, as moot.

   I.      Background

           a. Regulatory Framework

        The Small Business Act (the “Act”) authorizes the Small Business Administration
(“SBA”) to establish “detailed definitions or standards by which a business concern may
be determined to be a small business concern for the purpose of this Act or any other
Act.” 15 U.S.C. § 632(a)(2)(A). The Act also authorizes SBA to issue regulations
related to the Act. 15 U.S.C. §634(b)(6).

       SBA’s small business size standards are found in 13 C.F.R. Part 121. Pursuant to
Part 121, the SBA uses the North American Industry Classification System (“NAICS”) to
                                            1
establish size standards, which are either limited by number of employees or annual
receipts. 13 C.F.R. § 121.201. A business concern that wishes to bid on a contract that
has been set aside for small business participation must meet the NAICS size standard
specified in the solicitation.

        While a concern’s size is usually determined based upon the aggregate number of
employees or value of receipts, 13 C.F.R. §121.103(h)(2), there are several exceptions to
this general rule. One of these exceptions arises under the SBA’s 8(a) Business
Development program, which allows a participant to form a joint venture with a mentor
concern under the SBA’s Mentor-Protégé Program:

           Two firms approved by the SBA to be a mentor and protégé under
           § 124.520 of these regulations may joint venture as a small
           business for any Federal government prime contract or
           subcontract, provided the protégé qualifies as small for the size
           standard corresponding to the NAICS code assigned to the
           procurement and, for purposes of 8(a) sole source requirements,
           has not reached the dollar limit set forth in § 124.519 of these
           regulations. If the procurement is to be awarded other than
           through the 8(a) BD Program, SBA must approve the joint venture
           pursuant to § 124.513. If the procurement is to be awarded other
           than through the 8(a) BD program (e.g., small business set aside,
           HUBZone set aside), SBA need not approve the joint venture prior
           to award, but if the size status of the joint venture is protested, the
           provisions of §§ 124.513(c) and (d) will apply. This means that
           the joint venture must meet the requirements of §§ 124.513(c) and
           (d) in order to receive the exception to affiliation authorized by this
           paragraph. In either case, after contract performance is complete,
           the 8(a) partner to the joint venture must submit a report to its
           servicing SBA district office explaining how the applicable
           performance of work requirements were met for the contract.

13 C.F.R. § 121.103(h )(3)(iii). A joint venture seeking to take advantage of this
exception must apply for approval of its mentor-protégé agreement (“MPA”).

         Part of the dispute in this case lies with who has authority to make this approval.
The parties are in agreement, however, as to the general procedure. The business seeking
approval first submits its MPA to the Business Opportunity Specialist (“BOS”) in the
protégé’s SBA District Office. The BOS prepares a recommendation for the Assistant
District Director for the 8(a) Business Development Program (“ADD”). If the ADD does
not approve the MPA, both parties are notified. If the ADD approves, the
recommendation is forwarded to the District Director (“Director”). If the Director agrees,
the MPA is forwarded to Washington, DC, where the MPA goes through several
additional layers of approval. If the MPA is finally approved, the mentor, protégé and
district office are informed.



                                             2
           b. Factual Background

        LVJV is a joint venture comprised of Lukos, LLC (“Lukos”) and Visual
Awareness Technologies and Consulting, Inc. (“VATC”). Both are participants in the
8(a) Program. In March of 2013, Lukos and VATC executed a mentor-protégé
agreement (“MPA”) which was submitted to the SBA’s Miami District Office for
approval and admission into the 8(a) Program. On March 26, 2013, the assigned BOS
informed Lukos that he had approved the MPA and forwarded his recommendation of
approval. The MPA began to work its way up the chain at SBA. In April of 2013, Lukos
and VATC formed the unpopulated joint venture, LVJV.

        On May 16, 2013, while the MPA was still being processed, SOCOM issued
solicitation number H92222-13-R-0013 (the “Solicitation”), which stated an NAICS code
of 541990, which has a size standard of $14 million. The procurement was a 100% set-
aside for 8(a) Program participants. The deadline for responses to the Solicitation was
June 17, 2013.

        In response to the Solicitation, LVJV informed the SBA that it intended to submit
a proposal and that time was of the essence. On June 3, 2013, LVJV was informed that
the MPA had been forwarded to Washington, DC for final review. On June 7, Lukos and
VATC decided that if they did not obtain approval in time for the Solicitation’s deadline,
as an alternative, they would submit a proposal naming Lukos as the prime contractor and
VATC as a major subcontractor. On June 10, however, the BOS called LVJV and,
during the conversation, informed LVJV that its MPA had been approved and that no
official approval letters were issued, but that the MPA was awaiting a final signature
from an SBA official who was on vacation until after June 17. But on June 14, Garth
Arevalo, the CEO of Lukos, was informed by telephone “that there may have been a
misunderstanding about the MPA approval in DC.” AR Tab 18 at 189.

        Despite the absence of the final signature and the disturbing telephone call of June
14, LVJV opted to submit its proposal as an 8(a) Program based on the representations
made by the BOS on the June 10 phone call. It appears from Mr. Arevalo’s statements
that this was done because there was not time to prepare an alternate bid and with the
hope that approval would come by June 17. AR Tab 18 at 189. But formal approval did
not come until June 19, 2013, when the Associate Administrator, Office of Business
Development (“AA/BD”) issued an internal memo stating that the MPA had been
approved.

         Meanwhile, SOCOM determined that LVJV’s proposal ranked highest among all
offers under technical, management and past performance categories. In addition, it was
the lowest-priced offer. In accord with Federal Acquisition Regulation (“FAR”) 19.806
and 13 C.F.R. § 124.507(b), SOCOM contacted the SBA’s local District Office to
determine LVJV’s eligibility for the award. On September 18, 2013, the SBA issued a
letter to SOCOM indicating that it had determined that Lukos and VATC were eligible.




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        On September 25, 2013, the unsuccessful offerors were notified by email that the
procurement had been awarded to LVJV. At this point, Intervenor-Defendant ITA
International, LLC (“ITA”) instituted a protest with the SBA Area Office in Atlanta,
wherein it argued that LVJV did not meet the size requirements listed in the Solicitation.
The Area Office determined that LVJV’s MPA was not approved until June 19, 2013,
two days after the Solicitation closed. As such, the Area Office determined that Lukos
and VATC were merely affiliated for purposes of the Solicitation, which finding rendered
them ineligible to receive the contract.

        LVJV appealed the Area Office’s determination to SBA’s Office of Hearings and
Appeals (“OHA”). OHA affirmed the Area Office’s determination, finding that the MPA
was not approved until June 19, with the result that LVJV was not eligible to receive an
award under the Solicitation until after the Solicitation closed. OHA ruled that the BOS’s
statements on June 10 regarding approval were irrelevant because it is the AA/BD and
not the BOS who has authority to approve MPAs.

           c. Procedural Background

       After losing its appeal at OHA, LVJV instituted a bid protest action in this Court
on February 11, 2014. The parties began briefing the pending motions in March of 2014,
at which time a dispute arose over ITA’s motion to supplement the Administrative
Record (“AR”). Portions of ITA’s cross-motion for judgment on the AR relied upon the
proposed supplementary information. The Court convened a status conference on March
26, 2014 to discuss the motion to supplement.

         During the discussion, the parties informed the Court of certain facts not directly
relevant to the pending protest. Essentially, ITA was concerned that if the Court granted
all the remedies requested by LVJV, the Court’s ruling would interfere with certain
corrective action agreed to in a parallel GAO protest instituted by ITA. The Court
assured ITA that it would take that corrective action into account in tailoring its order if it
determined that LVJV was entitled to judgment, but that it otherwise considered the GAO
protest to be beyond the scope of LVJV’s protest at this Court. Based on the Court’s
assurances, ITA withdrew its motion to supplement the AR during the conference.

        Briefing on the pending cross-motions for judgment on the AR was completed on
March 28, 2014. The Court now turns to the issues raised in the briefing and properly
before it. Obviously, this opinion does not discuss any of ITA’s additional arguments
based on the GAO protest, because these arguments exceed the scope of the dispute
before this Court.

   II.     Standard of Review

           a. Standard of Review for Judgment Upon the Administrative Record

       Under Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”), this
Court reviews an agency’s procurement decision on the basis of the existing AR. Rule

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52.1 essentially provides a procedure for “trial on a paper record, allowing fact-finding
by the trial court.” Bannum, Inc. v. United States, 

, 1356 (Fed. Cir. 2005).
Instead, “the focal point for judicial review should be the administrative record already in
existence, not some record made initially by the reviewing court.” Florida Power &
Light v. Lorion, 

, 743-44 (1985); see also Axiom Resource Management,
Inc. v. United States, 

, 1380 (“The purpose of limiting review to the record
actually before the agency is to guard against courts using new evidence to convert the
‘arbitrary and capricious’ standard into effectively de novo review.”) (internal quotations,
citations omitted).

           b. Standard of Review for Procurement Challenges

        This Court maintains jurisdiction over bid protests pursuant to the Tucker Act. 28
U.S.C. § 1491(b)(1). The Tucker Act requires the Court to “review the agency’s decision
pursuant to the standards set forth in” the Administrative Procedure Act (“APA”), 5
U.S.C. § 706(2). See 28 U.S.C. § 1491(b)(4). Under the APA, an agency action may be
found unlawful if that action is found to be “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law and, if so, whether the error is prejudicial.”
Glenn Def. Marina (Asia), PTE Ltd. V. United States, 

, 907 (Fed. Cir. 2013).
Under this standard, a procurement decision may be set aside “if either: (1) the
procurement official’s decision lacked a rational basis; or (2) the procurement involved a
violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v.
United States, 

, 1332 (Fed. Cir. 2001) (citations omitted).

   III.    Discussion

        LVJV’s brief raises four arguments as to why the Court should find that it was
eligible for the award. First, it argues that the MPA was legally approved by the various
layers of SBA actions prior to final approval by the AA/BD. Second, it argues that the
AA/BD’s final approval on June 19 serves as ratification of the BOS’s June 10 statement.
Third, it argues that principles of equitable estoppel render LVJV eligible for the award.
Fourth, it argues that general principles of equity require the Court to find it eligible for
the award. Finally, LVJV argues that it is entitled to injunctive relief. These arguments
are joined by both the Government and ITA, but ITA adds a further assertion that LVJV
has failed to establish this Court’s jurisdiction. The Court will, therefore, look first to the
jurisdictional dispute and then address LVJV’s substantive arguments.

           a. This Court Possesses Jurisdiction Over the Action

         ITA argues that the Court lacks jurisdiction over LVJV’s argument. In making its
argument, ITA argues that the judge in Red River Service Corp. v. United States, 

(2004), found that the Court of Federal Claims lacks jurisdiction over SBA
decisions. Notably, the Government did not challenge the Court’s jurisdiction in either of
its briefs. LVJV counters ITA’s argument by citation, without explanation or substantive
discussion, to Metters Industries, Inc. v. United States, 

(2013), and LB &
B Associates, Inc. v. United States, 

(2005).

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        In Red River, the Court was faced with a situation only facially similar to the one
now before the Court. Digging into the decision, however, it is clear that Red River is
inapposite to the case now pending. The Air Force, the procuring agency in Red River,
assigned a particular NAICS code which set a size standard of $21 million, and Red
River requested that the SBA direct the Air Force contracting officer to re-designate the
NAICS code. Red 

. The challenge was to the specific size
standard called for in the solicitation, and not to any decision as to whether Red River
was qualified to submit a proposal under the size standard set forth in the solicitation.
That is not what LVJV requests in this action, and such a remedy would require the Court
of Federal Claims to second-guess an Agency’s own procurement officials’
determinations of the requirements of the procurement itself.

        The two cases relied upon by LVJV are likewise not directly on point. Not only
does the Metters opinion not discuss jurisdiction, it does not even include the word
“jurisdiction.” It is, however, similar to this case in that the plaintiff there was
determined to be the “apparent awardee,” but the agency requested a formal size
determination which resulted in a determination that the plaintiff did not meet the size
requirements specified in the solicitation, see 

, much like
SOCOM’s request here. Still, the Court evidently exercised jurisdiction because it ruled
on the substantive dispute before it.

        LB & B presents a similar situation. In that case, the plaintiff’s initial offer on a
solicitation included a certification of small business status. LB & 

.
The solicitation was an indefinite delivery/indefinite quantity contract which called for
individual task/delivery orders. 

the plaintiff’s offer, the agency
awarded two task orders to the plaintiff, neither of which required re-certification of
small business status. 

agency issued another request for proposals on a task
order under the contract and requested that the offerors re-certify their status. Of the
three approved offerors, two re-certified and the plaintiff relied upon its earlier
certification. There was evidence that the plaintiff was no longer small, so the procuring
agency instituted a protest at the SBA. It was the final SBA determination in this protest
which the plaintiff brought to the Court of Federal Claims and, again, the court exercised
jurisdiction. See 

        Although none of these cases is directly on point, the Court finds that the two
cases cited by LVJV are much more closely related to the instant challenge to
jurisdiction, and they are therefore more persuasive. Moreover, the Court finds that
reference to the Tucker Act tilts the scales in favor of its exercise of jurisdiction. The
Tucker Act states that this Court possesses jurisdiction over “any alleged violation of
statute or regulation in connection with a procurement or a proposed procurement.” 28
U.S.C. § 1491(b)(1) (emphasis added). The broad “in connection with” language of the
Tucker Act clearly encompasses the agency actions here, both in that SOCOM requested
confirmation of small business status from the SBA specifically for purposes of awarding
a procurement contract and in that the SBA’s determination had a direct effect on the
outcome of that procurement. The Court therefore may properly exercise jurisdiction
over LVJV’s complaint.

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           b. The MPA Was Not Approved Until June 19, 2012

        In its opening brief, LVJV puts forth the astounding argument that the relevant
regulations are confusing, that they merely require that the “SBA” approve the MPA, and
that, according to principles of statutory construction, the AA/BD’s approval is not
required to approve the MPA. In stating its case, LVJV directs the Court to 13 C.F.R.
§124.520(d)(1)(i), which states that the “SBA must approve the mentor/protégé
agreement before the two firms may submit an offer as a joint venture…” However, as
both the Government and ITA point out, the regulation further states that “[t]he written
agreement must be approved by the AA/BD.” 13 C.F.R. § 124.520(e)(2). Only plain
English is needed here: an MPA must be approved by the AA/BD.

       LVJV attempts to inject further confusion into the issue by way of reference to the
SBA’s Standard Operating Procedures (“SOP”). In its brief, LVJV highlights the
following provisions of the SOP in support of its position that the BOS may “approve” an
MPA:

           a. After the BOS reviews the Agreement [MPA] and prepares a
              thorough evaluation and recommendation, which must include
              comments of District Counsel, the agreement is forwarded to
              the Assistant District Director for 8(a) BD (ADD/8(a) BD).
           b. If the ADD/8(a) BD does not approve the Mentor/Protégé
              Agreement, the process stops. The ADD/8(a) BD notifies both
              parties to the proposed Mentor-Protégé Agreement of the
              SBA’s final decision at whatever point the process stops.
           c. If the ADD/8(a) BD recommends approval of the Agreement,
              he/she will forward the recommendation to the District
              Director.
           d. If the District Director agrees with the approval
              recommendation, he or she will forward the Agreement to the
              Office of Management and Technical Assistant in
              Headquarters.

SBA SOP 80 05 3, p. 187 (emphasis added). As pointed out by the Government, the SOP
unequivocally does not authorize approval of the MPA by the BOS, the ADD/8(a) BD or
the District Director. It merely grants them authority to deny an MPA or recommend
approval to someone higher up in the chain of command. There is no need for reference
to any canons of construction here beyond reference to the plain and ordinary meaning of
the words in the regulation and SOP. LVJV’s position is completely untenable.

           c. The AA/BD’s Approval Does Not Serve As Ratification of the BOS’s
              Statements

         Next, LVJV argues that the AA/BD’s final approval on June 19 amounts to a
ratification of the BOS’s “approval” on June 10. Specifically, LVJV argues that “[i]n
government contracting, an unauthorized act can be adopted through ratification.” See

                                            7
LVJV Br. at 18 (quoting Appeal of Nu-Way Concrete Co., Inc., CBCA No. 1411, 2011-1
BCA ¶ 34,636. Ratification “is the adoption of an unauthorized act resulting in the act
being given effect as if originally authorized.” Appeal of Healthcare Practice
Enhancement Network, Inc., No. VABCA-5864, 2001-1 BCA ¶ 31,383. Critically,
“[r]atification requires knowledge of material facts involving the unauthorized act and
approval of the activity borne with authority.” Appeal of Corners & Edges, Inc., ASBCA
No. 55767, 2009-1 BCA ¶ 34,019.

         Although the Government and ITA present various arguments regarding
ratification, the Court thinks only one needs to be addressed to resolve the issue: there is
no affirmative evidence in the AR that the AA/BD had “knowledge of material facts
involving the unauthorized act” of the BOS’s stated approval. At best, as LVJV asserts,
the “AA/BD’s final approval was based on the identical file that was in the SBA’s
possession when the BOS gave his mistaken approval notice.” LVJV Br. at 19. This
“file” was produced prior to the June 10 statement (LVJV was informed that the file had
been sent to Washington by June 3), and the Court can discern no modification to the file
before the AA/BD that would indicate that the BOS had informed LVJV that its MPA
had been approved. In essence, LVJV asks the Court to ignore the evidence included in
the AR and to instead impute knowledge of a low-level government official’s actions to
another government official several levels of authority above and several hundred miles
distant from the original act. The Court declines to do so. Without affirmative evidence
contained in the AR, the Court cannot conclude that the AA/BD had the requisite
knowledge necessary to constitute ratification of the BOS’s June 10 statement.

           d. Equitable Estoppel Does Not Apply

        Next, LVJV asserts that the SBA is equitably estopped from denying timely
approval of the MPA. According to LVJV, equitable estoppel requires a showing that:
(1) the agency knows the true facts; (2) the agency intends or expects that its statements
will be relied upon; (3) the contractor is ignorant of the true facts; and (4) the contractor
relies upon the agency’s conduct to its injury. LVJV Br. at 26 (citing Zacharin v. United
States, 

, 1371 (Fed. Cir. 2000)). The parties dispute whether an equitable
estoppel argument made against the Government requires “affirmative misconduct” as
well. LVJV’s argument is riddled with flaws.

        First, the Court observes that, by its own admissions, LVJV was not ignorant of
the true facts. According to the declaration of Garth Arevalo, the Chief Executive Officer
of Lukos, LLC, which was filed at the OHA, Mr. Arevalo was informed on June 14,
2013, four days after the BOS’s alleged approval and three days prior to the close of the
Solicitation, “that there may have been a misunderstanding about the MPA approval in
DC.” AR Tab 18 at 189. According to Mr. Arevalo’s declaration, he didn’t receive an
explanation of the misunderstanding, but rather than clarifying the issue, LVJV
determined that “there was now no time left to prepare an alternate bid. Moreover, for all
we knew, SBA might yet approve the MPA later that Friday or on the following Monday
morning, June 17.” 

paints a clear picture: LVJV knew, before June
17, that its MPA had not yet been approved, but it proceeded with its chosen course of

                                              8
conduct despite the still-pending MPA approval. LVJV was absolutely not ignorant of
the true facts, which renders its estoppel argument inapposite.

         Second, it is clear that an equitable estoppel claim against the Government must
include a showing of affirmative misconduct by the Government. Thus, in LVJV’s reply
brief, the Court was surprised to see the statement that “apart from the Federal Circuit’s
recent dicta, no federal appellate court has suggested, much less held, that affirmative
misconduct is necessary to establish estoppel when the Government officials acted within
the scope of their authority.” LVJV Reply at 10.1 Ironically, the “dicta” which LVJV
claims irrelevant here is found in the very decision it cites for the estoppel standard:
Zacharin. In Zacharin, the Federal Circuit stated that, “[w]hile the Supreme Court has
not squarely held that affirmative misconduct is a prerequisite for invoking equitable
estoppel against the Government, this court [the Federal Circuit] has done so, as has
every other court of appeals.” 

(citations omitted). The one-
paragraph discussion that follows is premised entirely on the Circuit’s conclusion that
there was no evidence of affirmative misconduct in the case before it. To the extent that
one could characterize the June 10 “approval” as affirmative misconduct, that misconduct
was remedied by the June 14 phone call informing LVJV of the misunderstanding
regarding approval of its MPA.

           e. General Principles of Equity Do Not Help LVJV

        LVJV also contends that general principles of equity and fairness require the
Court to find that its MPA was timely approved. Lukos Br. at 21-26. Most of its
argument relies upon decisions by OHA which are not controlling here. For example, it
points to Cabrini Medical Center, SBA No. SIZ-4610 (2004), which involved a statement
by an SBA office that any appeal “must be postmarked no later than thirty (30) days after
receipt of this letter.” 

was erroneous: the regulation required that an
appeal be received within 30 days. OHA still accepted the appeal.

        The issue here, as the Government observes, is that the MPA program is not tied
to a specific procurement. Gov’t Br. at 30. The SBA received and considered LVJV’s
MPA. LVJV apparently believes that the SBA should have accelerated consideration of
its MPA in order for LVJV to submit a proposal on the Solicitation at issue here.
Nothing in the cited authority indicates that the SBA is required to accelerate its
consideration of a given MPA in order to satisfy a particular solicitation which the
applicant intends to pursue.

        The Court notes that the Government’s argument can be taken a step or two
further: in all of the SBA decisions cited by LVJV, the SBA applied equitable principles
to modify its own timing rules. Here, it was SOCOM, not the SBA, who set the proposal

1
  Although further discussion on this point is unnecessary here, the Court has already
found that the BOS had no authority to approve the MPA. Thus, any “approval” by the
BOS is necessarily beyond the scope of the BOS’s authority. This point of its own power
removes this case from the authority of the various cases cited by LVJV on this issue.
                                            9
deadline. Further, substantive regulations, and not procedural ones, which require that an
MPA be approved before the joint venture may submit offers on any government
procurement, see 13 C.F.R. § 124.520(d)(1)(i), and that the MPA be approved by the
AA/BD and not a lower-level SBA official. 

124.520(e)(2).

        In addition, the Court reiterates the point that LVJV was informed of the
misunderstanding prior to submission of its proposal. Even if the Court were inclined to
balance the equities in this case, the fact that SBA informed LVJV of its erroneous June
10 “approval” tips the scales against LVJV. In sum, nothing in LVJV’s arguments gives
the Court reason to apply general principles of equity to allow it to skirt the SBA’s rules
and regulations in order to award LVJV a contract for a Solicitation which it was not
eligible to apply for until after the Solicitation was closed.

           f. LVJV Is Not Entitled to Injunctive Relief

       Because a permanent injunction requires that a plaintiff succeed on the merits, see
PGBA, LLC v. United States, 

, 1229 (Fed. Cir. 2004), and LVJV has failed
on the merits, its request for permanent injunction is denied.

   IV.     Conclusion

         As discussed above, the Court possesses jurisdiction over this action. That said,
LVJV has failed to present any combination of arguments and evidence that would render
it successful on the merits. Its reading of the relevant SBA regulations and the SOP are
entirely contrary to the plain language of those authorities. LVJV’s argument on
ratification is not supported by the evidence contained in the AR. Its estoppel argument
is in fact undermined by the evidence, and its appeal to general principles of equity fail
for similar reasons. Nothing in the AR demonstrates that the combined actions of the
SBA and SOCOM lacked a rational basis or were otherwise in violation of regulation or
procedure.

       For these reasons, LVJV’s motion for judgment on the administrative record is
DENIED, the Government’s cross-motion is GRANTED, and ITA’s cross-motion is
DENIED, as moot. The Clerk is directed to mark this case closed and to enter judgment
accordingly.




                                                             s/ Edward J. Damich
                                                             EDWARD J. DAMICH
                                                             Senior Judge




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