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Override of CICA Automatic Stay Upheld



The Court of Federal Claims dismissed a challenge to the government's decision to override the stay of performance of a task order for environmental remediation services because the protester failed to show the decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The government overrode the automatic stay imposed by the Competition in Contracting Act (31 USC 3551 - 3556) after a protest of the task order award for work at a national laboratory was filed at the Government Accountability Office. In its lengthy Determination and Findings, the government cited a number of health and safety concerns related to contamination leaks at two buildings. Before the CFC, the protester challenged the override decision and sought to enjoin the awardee's performance of the task order.

Urgent and Compelling Circumstances


The court granted judgment on the administrative record in favor of the government, finding the override decision passed the four-part test set forth in Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile Ins. Co. (463 US 29). First, the override decision was not based on improper factors. The government rationally determined waiting for GAO to issue a decision before commencing performance of the task order would pose an unacceptable risk to human health and safety. Second, the government did not fail to consider an important aspect of the decision. None of the alternatives proposed by the protester were reasonable, so the government was not required to consider them, and the D&F showed the government considered the impact of the override on competition and the integrity of the procurement system. Third, the override decision was supported by sufficient evidence. The administrative record supported the government's assessment of the ineffectiveness of temporary remediation measures and the risk of a future contamination incident, and its failure to notify the public or an advisory board of the risk of contamination was not inconsistent with its finding of urgent and compelling circumstances.

Plausible Explanation


Finally, the decision was supported by a plausible explanation. The parties agreed both buildings were contaminated with high levels of radiation and other hazardous materials. They also agreed a protective superstructure for the radiation containment cells at one of the buildings had been removed and the spread of contamination from that building had required multiple temporary decontamination, remediation, and repair measures. The principal area of disagreement was the precise risk of postponing permanent work, and the court lacked "the legal authority [and] the institutional competence to substitute its judgment for that of an administrative agency in an area as committed to agency expertise and discretion as the assessment of risks to human health and safety from radioactive and other hazardous materials contamination." (PMTech, Inc. v. U.S., FedCl, 54 CCF 79,452)












































 






 

 

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )

     
  
 

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