Raytheon [RTN] on July 6 asked a federal appellate court to halt the Air Force’s Three Dimensional Expeditionary Long Range Radar (3DELRR) corrective action and any new contract award that may arise from it.
Raytheon lawyer Mark Colley of Arnold & Porter LLP asked the U.S. Court of Appeals for the Federal Circuit to grant the company’s motion to stay the judgment of a lower court, the U.S. Court of Federal Claims, against Raytheon. Colley wrote Raytheon has established a substantial case on the merits and that Northrop Grumman [NOC] was responsible to know the law and to seek clarification regarding a solicitation error.
Colley wrote the Government Accountability Office (GAO) and the lower court failed to defer to judgments by the Air Force’s expert technical evaluators and that the lower court wrongly assumed that GAO applied the correct legal standard and Northrop Grumman proved prejudice. Colley also wrote Raytheon will suffer irreparable harm without an injunction pending appeal and that an injunction is in the public’s best interests.
The U.S. Court of Appeals for the Federal Circuit, in a July 9 order, allowed the Air Force until July 16 to respond to Raytheon’s principal brief. Neither Raytheon nor the Air Force returned multiple requests for comment Tuesday.
Raytheon sued the Air Force in January after the service decided to rescind its 3DELRR contract award to Raytheon and pursue corrective action. After the award, Lockheed Martin and Northrop Grumman filed bid protests with the GAO. Northrop Grumman argued in a May 7 redacted court filing that the Air Force’s 3DELRR procurement was fundamentally flawed in several ways. One was that the service gave offerors materially different instructions regarding how the agency would evaluate and score their proposals.
Northrop Grumman said in its May 7 filing that GAO indicated, in a non-binding outcome prediction session, that it was likely to sustain the protests. The Air Force then decided to reopen discussions with all three offerors and evaluate new technical and cost/price proposals (Defense Daily, May 18).
A U.S. Court of Federal Claims judge in early June denied a pair of Raytheon motions. In a recently unsealed decision from early June, U.S. Court of Federal Claims Judge Margaret Sweeney denied Raytheon’s motions for a stay of the court’s judgment and to prevent the Air Force from proceeding with its proposed corrective action or awarding a new contract pending appeal in the U.S. Court of Appeals for the Federal Circuit.
Sweeney ruled Raytheon didn’t demonstrate either a likelihood of success or a substantial case on the merits of its appeal. She also said Raytheon hasn’t established that the remaining equitable factors–irreparable injury, injury to the other interested parties, and the public interest–weigh in its favor.
The decision affirms the Air Force’s decision to move forward with its corrective action plan. Sweeney wrote that the court agrees that the public interest is best served when a procurement is conducted openly and fairly in accordance with the solicitation and Federal Acquisition Regulation.
“In this case, the Air Force determined that corrective action was necessary to comply with the solicitation and the FAR and the court concluded that the Air Force’s determination was rational,” she said. “Consequently, the public’s interest in an open and fair competition is aligned with the status quo. Raytheon has therefore not established that the public’s interest weighs in its favor.”
The Air Force in October awarded Raytheon an initial $19.5 million contract for the engineering and manufacturing development (EMD) phase that includes three radars. With additional options, the contract could reach a value of $72 million while some analysts speculate that the total value of the program could eventually exceed $1 billion
The radar system is designed to detect and track hostile aircraft or missions at long range and is to replace the AN/TPS-75 air defense radar originally supplied by Northrop Grumman (Defense Daily, Jan. 21).