In the United States Court of Federal Claims
                                            No. 15-1397C

                                (Filed Under Seal: March 7, 2016)

                           (Reissued for Publication: March 15, 2016)

***************************************
                                      *
DYNCORP INTERNATIONAL, LLC,           *
                                      *
                    Plaintiff,        * Pre-award Bid Protest; Failure to
                                      * Protect Proprietary Information;
v.                                    * Waiver; Reasonableness of Agency’s
                                      * Remedial Action; Judgment on the
THE UNITED STATES,                    * Administrative Record.
                                      *
                    Defendant.        *
                                      *
***************************************

David M. Nadler, with whom were Adam Proujansky, David Y. Yang and Stephanie M.
Zechmann, Blank Rome LLP, Washington, D.C., for Plaintiff.

Alexander V. Sverdlov, with whom were Benjamin C. Mizer, Acting Assistant Attorney
General, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, Washington, D.C., Beatrice Foster, Chief,
Commercial Law Division, Air Combat Command, U.S. Air Force, Of Counsel, for
Defendant.

                                     OPINION AND ORDER1

WHEELER, Judge.

       Plaintiff DynCorp International, LLC (“DynCorp”) filed this pre-award bid protest
challenging the U.S. Air Force’s decision to continue with a War Reserve Materiel III
(“WRM III”) solicitation after the Air Force had publicly disclosed DynCorp’s proprietary

1
  The Court issued this decision under seal on March 7, 2016 and invited the parties to submit proposed
redactions of any competitive-sensitive, proprietary, confidential, or other protected information on or
before March 14, 2016. The Government proposed no redactions and Plaintiff DynCorp International, LLC
proposed minimal redactions concerning the rate and fee data at issue in this protest. These redactions are
indicated in the decision by brackets and an ellipsis, [. . .].
cost and pricing data. DynCorp had been the incumbent on the prior WRM I and II
contracts, and in the course of performing those contracts, had submitted proprietary
indirect cost and profit data to the Air Force as part of life cycle management reports. By
the Air Force’s posting of this proprietary data online as part of the new WRM III
solicitation, DynCorp contends that the Air Force put DynCorp at a severe competitive
disadvantage. DynCorp says that the only permissible remedy is for the Air Force to extend
DynCorp’s current contract for five years on a sole source basis.

       The record does not support DynCorp’s position. As will be shown, DynCorp
consistently failed to mark its indirect cost and profit data as “proprietary,” and did not
even object when the Air Force inquired whether the life cycle management reports could
be posted as part of the new solicitation. DynCorp thereby waived its right to assert that
the data was “proprietary,” and the Air Force did nothing wrong by disclosing the data as
part of the new solicitation. Moreover, the Air Force’s actions to mitigate the effects of
disclosure on DynCorp’s competitive position were reasonable. Accordingly, DynCorp’s
protest is DENIED, and the Court GRANTS Defendant’s motion for judgment on the
administrative record.

    I.      Factual Background2

        For the past sixteen years, DynCorp has served as the prime contractor for the
WRM program, through the initial WRM I contract and a successor contract, WRM II.
Pl. Mem. at 3. The United States Air Force Air Combat Command Acquisition
Management and Integration Center (“AMIC”) runs the WRM program and conducts the
WRM procurements. Gov’t Mem. at 2. Among other responsibilities, the AMIC must
manage and maintain stockpiles of war reserve materiel and other government equipment.

this mission, AMIC employs private contractors to manage its
equipment warehouses. Under the WRM program, contractors are responsible for a
number of critical tasks, such as “storage, maintenance, outload, reconstitution, exercise
and contingency logistics supports, as well as maintenance, repair, and minor construction
of government furnished facilities and property.” Pl. Mem. at 3; Administrative Record
(“AR”) 1128.

            A. Life Cycle Management Deliverables

       On March 9, 2015, the Air Force posted the initial draft WRM III solicitation to
FedBizOpps.gov, which was followed by the final solicitation (No. FA4890-15-R-0004)
on July 24, 2015. AR 1, 143. Along with a detailed description of what the Air Force
would require from the awardee in terms of maintaining and repairing Government-owned

2
  The facts in this decision are taken from the administrative record, as supplemented. The pages in the
administrative record are numbered in sequence, and the documents are divided by tabs. The Court’s
citations to the administrative record generally are to the page numbers, and to the declarations that the
Court admitted as supplements to the administrative record.

                                                    2
equipment, the WRM III solicitation also included examples of the deliverables the
eventual awardee would be responsible for providing to the Air Force over the course of
the contract. See AR 1128, 292-93, 382-85. Among other things, these deliverables
included a life cycle management plan. The life cycle management plan requires the
contractor to submit an annual report including the contractor’s budget forecast and
replacement recommendations for items reaching the end of their life cycle in the following
year. AR 1129. The life cycle management plan is part of a comprehensive life cycle
approach “to maintaining and enhancing the life of all GFP/E/V/F [government furnished
property, equipment, vehicles, and facilities] . . . .” 

WRM II contract, DynCorp had been submitting life cycle report
spreadsheets to the Air Force since at least 2012. Declaration of Everton Chapman
(“Chapman Decl.”) ¶ 5. These reports “identified the date on which the Government
purchased certain tools (such as pressure washers, wrenches, battery chargers. . . ), how
much the Government paid for those tools at the time they were purchased, and the
projected date and cost when the Air Force would have to buy replacements.” Gov’t Mem.
at 3; AR 704. Most importantly for purposes of the present protest, these spreadsheets also
included DynCorp’s indirect rate and award fee data, information that Plaintiff maintains
“is highly confidential and proprietary” as it relates to DynCorp’s “performance and cost
structure under the incumbent WRM II program.” Pl. Mem. at 7-8. For instance, on July
31, 2012, DynCorp representative Steve Trotter sent Everton Chapman, an Air Force
contract logistics manager, a life cycle report that “included blocks containing an ‘Indirect’
[. . .] rate and a ‘Fee’ of [. . .].” Chapman Decl. ¶ 5. According to Mr. Chapman, the report
contained no proprietary markings and “Mr. Trotter did not indicate that any of the
information in the report was protected” in transmitting the report. 

Fyffe,
DynCorp’s WRM II Program Property Manager, regularly submitted similar reports to Mr.
Chapman without any indication that they contained proprietary information. See, e.g.,
Chapman Decl., Attachment B.

       Pursuant to the WRM II contract between DynCorp and the Air Force, the
Government expressly acquired “unlimited rights to all deliverables procured under [the]
contract,” with unlimited rights defined as “rights to use, modify, reproduce, perform,
display, release, or disclose in whole or in part, in any manner, and for any purposes
whatsoever, and to authorize others to do so,” and deliverables defined as “the documents,
regardless of media format (e.g. print or electronic), identified in the PWS [Performance
Work Statement], and described in the PWS Appendix B, Deliverables.” AR 1342. To
guard against the possibility that proprietary information submitted in deliverables might
be shared or released, the WRM II contract included the following paragraph explaining
how to flag proprietary deliverables:

              All deliverables are Government owned property upon
              submittal.     Should any deliverable contain proprietary
              info/data, said info/data shall be clearly identified by italics
              and shall be clearly annotated with the word
                                              3
             “PROPRIETARY” in brackets, i.e. [PROPRIETARY]
             immediately prior to and immediately following the
             proprietary info/data. All deliverables shall contain a summary
             page cross-referencing proprietary info/data by page number
             and paragraph and shall contain a specific rationale as to why
             the info/data is considered proprietary.

AR 1345. In addition to these two contract provisions, the WRM II contract also
incorporated by reference sections of the Federal Acquisition Regulation (“FAR”) and
Defense Federal Acquisition Regulation Supplement (“DFARS”) defining the
Government’s right to contractor-furnished data. See, e.g., AR 1346-48 (WRM II contract
incorporating by reference FAR § 52.227-14 and DFARS §§ 252.227-7013 and 7016).

        In his role as Logistics Manager for the WRM II contract and Chief of the Materiel
Management Branch of the AMIC, Mr. Chapman assisted in developing the WRM III
solicitation. Based on his experience with the WRM II contract, Mr. Chapman decided
that the eventual awardee of the WRM III should also be required to deliver life cycle
reports on Government-furnished equipment. Chapman Decl. ¶ 7. As an example of the
type of deliverables prospective offerors would be required to produce, Mr. Chapman
wanted to include a version of DynCorp’s life cycle reports as part of the solicitation’s
performance work statement. 

Chapman contacted Mr. Fyffe via e-
mail in early 2015, asking for “a current Life Cycle” and explaining that he “planned on
using the March submittal to post to the new contract.” Chapman Decl., Attachment C
(email exchange between Mr. Chapman and Mr. Fyffe). On February 6, 2015, Mr. Fyffe
replied to Mr. Chapman’s request and included as an e-mail attachment life cycle reports
for various Government-furnished equipment. 

previous submitted life cycle
reports, the February 6 report included DynCorp’s rate and fee data but contained no
proprietary markings. Chapman Decl. ¶ 8. According to Mr. Chapman, in their e-mail
exchange, Mr. Fyffe gave no indication of “any objections to the updated report being
released.” 

posted to FedBizOpps.gov, the WRM III solicitation included
a copy of the 2012 life cycle spreadsheet submitted by Mr. Trotter. 

According to
Mr. Chapman, the 2012 “spreadsheet does not contain any data that Mr. Trotter, Mr. Fyffe,
or any other DynCorp representative, ever told [him] was proprietary or should be
protected. To the contrary, the document contains the same rates that Mr. Fyffe released
to [him] without restriction in other reports.” 

and Mitigation Efforts

       On August 5, 2015, Vectrus Systems Corporation (“Vectrus”), a prospective
offeror, contacted the Air Force after one of its employees alerted the Vectrus legal
department that the WRM III solicitation included “material that the company believes
may contain proprietary information from the incumbent contractor.” AR 1225. At that
point, the life cycle management list had been available to the public through the
FedBizOpps website for more than five months. After verifying that DynCorp’s profit and
                                            4
pricing data were in fact publicly available on the FedBizOpps website, the agency
removed the solicitation and notified its legal department. Pl. Mem. at 12; AR 1220, 1225.
On August 6, 2015, Contracting Officer Sheila Reshard-Bryant corresponded with Gregory
Passig at Vectrus to ensure that all copies of the life cycle report would be destroyed. AR
1220. In a letter dated August 19, 2015, Vectrus’s Deputy General Counsel of Government
Contracts, Tim Kobes, explained that only Vectrus’s Business Development Manager had
actually viewed the pricing information and confirmed that the company had deleted all
known copies of the file. AR 1225-26.

       Also on August 6, Ms. Reshard-Bryant and another agency contracting officer
contacted Robert Caldwell, Senior Contracts Director at DynCorp, and identified the
information that had been posted publicly and the steps the agency was taking in response,
namely, sanitizing the documents and reposting the solicitation. AR 1220. Initially, Mr.
Caldwell indicated that he “didn’t find it to be a big deal.” 

further
investigation and consideration of the specific information released, Mr. Caldwell
developed “serious concerns about the disclosure.” Id.; Declaration of Robert Caldwell
(“Caldwell Decl.”) ¶ 8. In a letter to the Air Force dated August 17, 2015, Mr. Caldwell
described DynCorp’s concerns as follows:

               The disclosure of DI’s indirect rate and fee on its incumbent
               contract allows DI’s competitors to create a competitive target
               of [. . .] over direct cost to include all corporate indirect rates
               and profit. . . . Its 16 year performance as the incumbent
               contractor has allowed DI to develop rates and fees that
               competitors with less or no experience would doubtless seek to
               emulate and undercut. It is patently unfair for DI’s competitors
               . . . to benefit from DI’s 16 years of experience. . . . [W]ith the
               disclosure of this information, our competitors on this
               solicitation, and other contracts, will now be able to utilize the
               disclosed information as a baseline from which to determine
               their own rates and fees.

AR 1212-13. To remedy the alleged harm caused by the Air Force’s disclosure, DynCorp
requested nothing less than the cancellation of the WRM III solicitation coupled with a
five-year extension of its current WRM II contract.3 AR 1213. On August 27, 2015, the
Air Force sent DynCorp a letter responding to the contractor’s concerns. AR 1229-31. The
Air Force maintained that the steps it had taken to mitigate any competitive harm to
DynCorp were sufficient and, accordingly, denied DynCorp’s request to cancel the
solicitation and extend the WRM II contract through a sole-source extension. AR 1229.
The Air Force also noted that (1) the [. . .] award fee was not relevant to the WRM III
solicitation as the Air Force was not requiring offerors to submit proposed award fee

3
  According to Mr. Caldwell, it would take five years to negate any “Price Forwarding Rate” damage
resulting from the information’s release. AR 1223.
                                                5
percentages, and (2) through Amendment 0001, the Air Force removed the ability of
offerors to propose indirect rates by providing fixed figures and requiring offerors to
substitute those figures in their proposal calculations. AR 1230.

          C. Current Protest

        Unsatisfied with the Air Force’s mitigation response, DynCorp filed a protest with
the U.S. Government Accountability Office (“GAO”) on October 9, 2015. In its protest
before the GAO, DynCorp again sought to have the WRM III solicitation cancelled and
requested that the GAO recommend it be issued a five-year sole-source extension for the
contract. AR 1245. Finding that DynCorp’s protest was not timely filed, the GAO declined
to consider the merits of the protest. AR 1250. DynCorp then filed a pre-award bid protest
with this Court on November 18, 2015. The motion for a preliminary injunction that
accompanied DynCorp’s complaint was rendered moot by the Air Force’s voluntary stay
of the solicitation. The parties have fully briefed their respective motions for judgment on
the administrative record, and the Court heard oral argument on February 9, 2016.

   II.    Discussion

          A. Jurisdiction and Standing

        Pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution
Act of 1996, this Court has “jurisdiction 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.” 28 U.S.C.
§ 1491(b)(1). Determining whether a bid protester has standing to pursue a claim in this
Court “is a threshold jurisdictional issue” that must be met in any protest. Myers
Investigative & Sec. Servs. v. United States, 

, 1369 (Fed. Cir. 2002) (citing
Steel Co. v. Citizens for a Better Env’t, 

, 102-04 (1998)). To establish standing
under the Tucker Act, an aggrieved protester must demonstrate that it is an “interested
party” by showing that it is “an actual or prospective bidder or offeror whose direct
economic interest would be affected by the award of the contract or by failure to award the
contract.” Am. Fed’n of Gov’t Emps. v. United States, 

, 1302 (Fed. Cir.
2001) (quoting 31 U.S.C. § 3551(2) (Supp. IV 1998)). DynCorp, as the incumbent offeror,
timely submitted a compliant proposal in response to the WRM III solicitation. Thus, the
Government does not dispute, and the Court agrees, that DynCorp has standing to bring
this action as an interested party.

          B. Standard of Review

        In a bid protest, this Court reviews an agency’s decision pursuant to the standards
set forth in the Administrative Procedure Act (“APA”). 5 U.S.C. §§ 701-706 (2000); see
also Impresa Construzioni Geom. Domenico Garufi v. United States, 

, 1332

                                              6
(Fed. Cir. 2001) (stating that the APA standard of review shall apply in all procurement
protests in the Court of Federal Claims). Under the APA, a reviewing court shall set aside
an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see, e.g., Banknote Corp. of Am., Inc. v.
United States, 

, 1350-51 (Fed. Cir. 2004). This standard of review is “a
narrow one.” Citizens to Preserve Overton Park, Inc. v. Volpe, 

, 416 (1971)
(citations omitted).

       Under the APA standard, this Court must sustain an agency official’s decision
unless that decision lacked a rational basis or the agency’s decision-making involved a
violation of regulation or procedure. 

. When evaluating a
challenge on the first ground, a court “must determine ‘whether the contracting agency
provided a coherent and reasonable explanation of its exercise of discretion. When a
challenge is brought on the second ground, the disappointed bidder must show a clear and
prejudicial violation of applicable statutes or regulations.’” Axiom Res. Mgmt., Inc. v.
United States, 

, 1381 (Fed. Cir. 2009) (quoting 

–
33 (Fed. Cir. 2001)).

          C. Waiver

        DynCorp asks the Court to find that the Air Force caused it competitive harm by
disclosing its indirect rate and fee data and that its decision to proceed with the WRM III
solicitation after the disclosure was unreasonable. Compl. ¶¶ 5-7. Additionally, DynCorp
claims that the Air Force’s decision to continue with the procurement violates sections
1.602-2(b) and 3.101-1 of the FAR, the Procurement Integrity Act (“PIA”), 41 U.S.C. §
423 et seq., and the Government’s implied-in-fact contract obligations to DynCorp as a
“bidder-claimant.” Compl. ¶¶ 53-71 (“The government is said to breach [an] implied in
fact contract if its consideration of offers is found to be arbitrary and capricious toward the
bidder-claimant.”) (citing Southfork Systems, Inc. v. United States, 

, 1132
(Fed. Cir. 1998) (quotations and citation omitted). DynCorp believes that the Air Force’s
mitigation efforts after discovering the disclosure were inadequate and insists that the only
acceptable solution is for the Air Force to issue a sole source award of the WRM III contract
to DynCorp. Compl. ¶ 7.

       The Government argues that, assuming the information it released was proprietary,
the Air Force reasonably found that it sufficiently mitigated any competitive harm that
could have resulted from the release. However, the Government maintains that this protest
can be decided on the issue of waiver. Namely, the Government argues that DynCorp
waived any protections or rights to relief it may have had when it repeatedly and
consistently failed to treat its data as proprietary. See Gov’t Reply at 2-7. According to
the Government, the central flaw in this protest is that DynCorp attempts to fault the Air
Force for releasing data “that DynCorp itself did not treat as confidential, and which
therefore cannot be entitled to protection as a matter of law.” Gov’t Reply at 1. When
considering a motion for judgment on the administrative record, this Court must determine
                                              7
whether, “given all the disputed and undisputed facts, a party has met its burden of proof
based on the evidence in the record.” DMS All-Star Joint Venture v. United States, 

, 661 (2010) (citing Bannum, Inc. v. United States, 

, 1356-57
(Fed. Cir. 2005)). Based on the record before the Court in this protest, the Court is of the
opinion that DynCorp has failed to show it took the necessary measures to mark or
otherwise protect its data, resulting in a waiver of the various protections from disclosure
it seeks to invoke here.

        “A waiver is ordinarily an intentional relinquishment or abandonment of a known
right or privilege.” Johnson v. Zerbst, 

, 464 (1938). To be effective, a waiver
“must be a voluntary, knowing and intelligent act done with sufficient awareness of the
relevant circumstances and likely consequences.” Am. Airlines, Inc. v. United States, 

, 681 (2007) (quotations and citations omitted). “Waiver requires only that the
party waiving such right do so ‘voluntarily’ and ‘knowingly’ based on the facts of the
case.” Seaboard Lumber Co. v. United States, 

, 1563 (1990) (citing
Brookhart v. Janis, 

, 4, 5 (1966)). Although a waiver must be voluntary and
knowing, it “need not be express, but may be inferred from a pattern of conduct.” Am.
Airlines, 

; see also, Seaboard Lumber 

(“Waiver can be either express or implied.” (citations omitted)).

        This Court has held that a contractor’s failure to properly mark deliverable data with
the appropriate restrictive indicators will result in the government gaining full use of that
data. Night Vision Corp. v. United States, 

, 380 (2005) (explaining that
“[a] failure to use the appropriate legend results in the government receiving complete,
unrestricted use.”). Similarly, “sections of the FAR which limit the government’s rights in
proprietary data developed by contractors have consistently been interpreted in this vein.”
Id.; accord Ervin & Assocs., Inc. v. United States, 

(2004) (holding that the
government obtained unlimited data rights when the contractor failed to mark delivered
data with a “Limited Rights Notice” as prescribed in 48 C.F.R. § 52.227-14). A restrictive
marking or legend “alert[s] all government officials—even those unfamiliar with the data
rights of the contractor—that data is considered proprietary and is inappropriate for
dissemination. . . . The least cost burden in such instances rests with the contractor, who
can easily apply an appropriate legend to the proprietary data.” Night Vision 

. Accordingly, by failing to appropriately identify data a contractor
considers proprietary, a contractor who has both the knowledge and ability to do so can
forfeit its right to claim that data should be subject to protection.

       Pursuant to the WRM II contract between DynCorp and the Air Force, the
government expressly acquired “unlimited rights to all deliverables procured under [the]
contract.” AR 1342. Certainly, as the Government acknowledges, this language did not
authorize the Air Force to release proprietary data. In fact, to guard against such a
possibility, the WRM II contract included a section dedicated to explaining how to flag
proprietary deliverables. AR 1345. Thus, as the Government explains, “[t]he point is not
that the WRM II contract permitted the Government to release DynCorp’s proprietary
                                              8
information. It did not. Rather, the point is that the contract provided DynCorp notice that
unrestricted reports could be released publicly (and detailed the ways in which confidential
data should be marked).” Gov’t Reply at 4 (emphasis in original). In light of this notice,
the fact that DynCorp officials (1) consistently failed to flag the life cycle management
reports as proprietary over a period of years, (2) raised no objections when informed that
the Air Force planned to include these reports in the WRM III solicitation, and (3) failed
to object to the inclusion of those reports for more than five months after the they were
made publicly available on FedBizOpps.gov—in the very solicitation upon which
DynCorp was bidding—creates a pattern of consistent action that effectively gives rise to
the implication that DynCorp knowingly waived protection for its information. See, e.g.,
Am. Airlines, 

(noting that a party’s knowing and deliberate waiver
of a right “may be inferred from a pattern of conduct”). As the party with the least cost
burden and greater understanding of its own data, it was up to DynCorp to properly mark
any proprietary information it delivered to the Air Force. DynCorp may not now come
before this Court seeking legal protection from disclosure of data rights it consistently
failed to assert.

        Finally, DynCorp insists that the Air Force’s decision to remove and sanitize the
solicitation and to require sworn statements from offerors affirming that they destroyed
any copies “demonstrate a high degree of concern regarding the Agency’s improper
disclosure of proprietary information.” Pl. Reply at 3. The Court is not convinced that the
Air Force’s decision to remove the solicitation and clear the rate and fee data after it was
contacted by a concerned offeror is tantamount to an admission of wrongdoing on the
agency’s part. As the Government has explained, “[i]n its discussions with DynCorp and
the resulting administrative proceedings, the Air Force did not conduct a detailed analysis
of whether the data at issue is, in fact, protected—rather, the Air Force assumed that it was,
and focused on devising the most appropriate means to remedy the harm to DynCorp.”
Gov’t Mot. to Supplement at 4 (emphasis in original) (citing AR 1229-31 (Contracting
Officer’s final decision about appropriate remedial action)). The Court finds the Air
Force’s chosen course of conduct reasonable in light of the information it had at the time
and refuses to interpret its precautionary remedial measures as an admission of fault.

          D. Reasonableness

        In addition to finding that DynCorp waived any right to claim that its fee and award
data should have been protected, the Court finds that the Air Force’s mitigation efforts
were a reasonable solution to the apparent problem presented by the release of the data. As
published on FedBizOpps.gov, the life cycle management spreadsheet included DynCorp’s
indirect rate and award fee data from its WRM II contract. To remove the possibility that
DynCorp’s competitors could benefit from access to the indirect rate, the Air Force issued
an amendment that required offerors to use fixed “plug” figures, rather than a proposed
rate, in their calculations, thereby removing the competitive variable from that portion of
the solicitation. AR 1230; AR 838-70 (Amendment 0001). As to the award fee, the Air
Force determined that offerors would not gain a competitive advantage from access to that
                                              9
information because the WRM III solicitation stipulates a set fee and therefore offerors
were not asked to submit proposed award fee percentages, as they had been for the WRM
II solicitation. AR 1230. DynCorp’s additional contentions that its competitors may be
able to gain a competitive advantage by applying the indirect rate to other contract line
item numbers are speculative and implausible. Given the information available to the Air
Force and subsequently presented to this Court, the Court agrees that the agency’s
remediation efforts were reasonable and that its decision to proceed with the procurement
in light of those efforts also was reasonable.

   III.     Conclusion

      Based upon the foregoing, the Court DISMISSES DynCorp’s claims as barred by
the doctrine of waiver, and GRANTS the Government’s Motion for Judgment on the
Administrative Record.

          IT IS SO ORDERED.

                                                      s/ Thomas C. Wheeler
                                                      THOMAS C. WHEELER
                                                      Judge




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