851 N.E.2d 767 (2006)
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Lorenzo O. QUALLS, Defendant-Appellant.
No. 5-04-0643.
Appellate Court of Illinois, Fifth District.
June 5, 2006.
*768 Daniel M. Kirwan, Deputy Defender, Larry R. Wells, Assistant Defender, Office of the State Appellate Defender, Mt. Vernon, for Appellant.
Edward C. Deters, State's Attorney, Effingham, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S. Peterson, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Appellee.
Justice HOPKINS delivered the opinion of the court:
The defendant, Lorenzo O. Qualls, appeals from his conviction for possession of a deadly substance (720 ILCS 5/20.5-6 (West 2002)), arguing that anhydrous ammonia is not a "poisonous gas" within the meaning of the statute defining the offense. We agree and reverse.

BACKGROUND
Anhydrous ammonia is a commercial fertilizer regulated by the Illinois Fertilizer Act of 1961 (505 ILCS 80/1 et seq. (West 2004)). Anhydrous ammonia is also used to manufacture methamphetamine, a schedule II controlled substance (720 ILCS 570/206(d)(2) (West 2004)). In the summer of 2003, thefts of anhydrous ammonia by individuals engaged in the manufacture of methamphetamine resulted in increased patrols of anhydrous ammonia storage facilities in Effingham County. On August 3, 2003, at approximately 2:30 a.m., Sergeant Paul Kuhns of the Effingham County sheriff's department was patrolling the area near one such facility when he observed the defendant's pickup truck stuck in a ditch. Sergeant Kuhns also observed what he thought was steam coming from the cab of the truck. When Sergeant Kuhns exited his patrol car to investigate, the defendant approached and placed his hands on top of the patrol car. Upon smelling the odor of anhydrous ammonia *769 on the defendant, Sergeant Kuhns handcuffed him, patted him down for weapons, and placed him in the back seat of the patrol car. The defendant told Sergeant Kuhns that a pitcher of anhydrous ammonia had spilled inside the cab of the truck. Sergeant Kuhns then approached the truck so that he could turn off its engine. Sergeant Kuhns was initially unable to enter the truck's cab because the anhydrous ammonia fumes rising from its floorboard were overwhelming. In the ditch, Sergeant Kuhns found a plastic pitcher from which fumes were also emanating. Sergeant Kuhns was able to turn off the truck on a second attempt. Thereafter, the defendant waived his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) and agreed to speak with Sergeant Kuhns. The defendant admitted to stealing anhydrous ammonia from the nearby storage facility and explained that he had driven his truck off the road when the pitcher that he was using to contain the anhydrous ammonia spilled onto the floor. At the storage facility, the defendant showed Sergeant Kuhns the exact tank from which the anhydrous ammonia had been taken. Sergeant Kuhns saw that the tank's cap had been removed and that there were footprints near the tank. Lithium battery strips (another ingredient used to manufacture methamphetamine) were recovered from the front-left pocket of the defendant's pants.
On August 4, 2003, the State filed a single-count information charging the defendant with unlawful possession of a deadly substance (720 ILCS 5/20.5-6 (West 2002)).[1] The charge alleged that the defendant knowingly possessed "a poisonous gas, anhydrous ammonia," with the intent to use the gas to commit the felony offense of unlawful manufacture of methamphetamine. The following day, a superceding indictment was filed alleging the same. Through appointed counsel, the defendant subsequently moved to have the charge dismissed, arguing, inter alia, that "anhydrous ammonia was not intended by the legislature to be a deadly substance under the Possession of a Deadly Substance statute." The circuit court denied the motion to dismiss, and on June 29, 2004, the cause proceeded to a stipulated bench trial.
At the trial, to establish that anhydrous ammonia is a "poisonous gas," the State presented the stipulated testimony of Mr. Jamie Southard, an expert in the handling, storage, and general properties of anhydrous ammonia. The parties stipulated as follows:
"Mr. Southard would testify that anhydrous ammonia[,] while stored under pressure in approved containers[,] is a liquid. When incorporated into the soil with approved agricultural equipment[,] anhydrous ammonia bonds with soil moisture and adds nitrogen to the soil. Properly contained and applied[,] anhydrous ammonia poses no danger to humans. Upon exposure to the air in an unpressurized state[,] anhydrous ammonia changes to a gaseous form and is attracted to any item or substance containing water. Exposure to anhydrous ammonia by unprotected humans in concentrations of 50 parts per million is sufficient to result in burning to mucous membranes in the eyes, nose, and lungs. Exposure to anhydrous ammonia by unprotected humans[] in a [sic] concentrations *770 of 400 parts per million or greater is considered, according to regulations promulgated by the Occupational Safety and Health Administration with which Mr. Southard is familiar, immediately dangerous to life and health. Mr. Southard would testify that, based upon his training and experience, prolonged exposure to those concentrations of anhydrous ammonia can result in death to unprotected humans."
Referencing Southard's testimony that "prolonged exposure to those concentrations of anhydrous ammonia can result in death to unprotected humans" and rejecting the defendant's argument that anhydrous ammonia is not a "poisonous gas," the circuit court found the defendant guilty and sentenced him to a four-year term of Treatment Alternatives for Safe Communities probation (see 20 ILCS 301/40-10 (West 2002)). The defendant filed a timely notice of appeal.

ANALYSIS
The issue before us is whether anhydrous ammonia is a "poisonous gas" as the term is used in section 20.5-6(a) of the Criminal Code of 1961, which defines the offense of "possession of a deadly substance" as follows:
"A person commits the offense of possession of a deadly substance when he or she possesses, manufactures[,] or transports any poisonous gas, deadly biological or chemical contaminant or agent, or radioactive substance either with the intent to use such gas, biological or chemical contaminant or agent, or radioactive substance to commit a felony or with the knowledge that another person intends to use such gas, biological or chemical contaminant or agent, or radioactive substance to commit a felony." 720 ILCS 5/20.5-6(a) (West 2002).
The defendant argues that the term "poisonous gas" should be interpreted to mean a gas that is designed to kill or injure or tends to kill or injure "in normal use," e.g., sarin gas or mustard gas. The defendant maintains that the term should not be read to include gases that are merely deadly or injurious "in particular unsafe circumstances," e.g., anhydrous ammonia or carbon monoxide. The State responds that the term "poisonous gas" should be broadly interpreted to mean any gas "capable of causing death or severe injury."
"How a statute is interpreted is not a matter left to the trial court's discretion. It presents a question of law, which we review de novo." In re Marriage of Rogers, 213 Ill.2d 129, 135-36, 289 Ill.Dec. 610, 820 N.E.2d 386 (2004). The "primary objective when construing the meaning of a disputed statute is to ascertain and give effect to the intent of the legislature." People v. Robinson, 172 Ill.2d 452, 457, 217 Ill.Dec. 729, 667 N.E.2d 1305 (1996). "All other rules of statutory construction are subordinate to this cardinal principle." In re Detention of Powell, 217 Ill.2d 123, 135, 298 Ill.Dec. 361, 839 N.E.2d 1008 (2005). "The best indication of legislative intent is the statutory language, given its plain and ordinary meaning." In re R.L.S., 218 Ill.2d 428, 433, 300 Ill.Dec. 350, 844 N.E.2d 22 (2006). "If the statutory language is clear and unambiguous, then there is no need to resort to other aids of construction." In re D.L., 191 Ill.2d 1, 9, 245 Ill.Dec. 256, 727 N.E.2d 990 (2000). "A statute is ambiguous if it permits more than one reasonable interpretation." People v. Robinson, 217 Ill.2d 43, 55, 298 Ill.Dec. 37, 838 N.E.2d 930 (2005).
Section 20.5-6 does not define the term "poisonous gas," and the term is not otherwise defined under Illinois law. We may therefore consult a dictionary to ascertain the term's meaning. See People v. Collins, *771 214 Ill.2d 206, 214-15, 291 Ill.Dec. 686, 824 N.E.2d 262 (2005). Something is "poisonous" if it "is poison" or "has the qualities or effects of poison." Webster's Third New International Dictionary 1751 (1993). The word "poison" means "a substance (as a drug) that in suitable quantities has properties harmful or fatal to an organism when it is brought into contact with or absorbed by the organism." Webster's Third New International Dictionary 1751 (1993). A "poison gas" is defined as "a poisonous gas or a liquid or solid giving off poisonous vapors designed (as in chemical warfare) to kill, injure, or disable by inhalation or contact." Webster's Third New International Dictionary 1751 (1993). Within the parameters of these definitions and consistent with the parties' respective interpretations, the term "poisonous gas" could reasonably be construed to mean either a gas "designed (as in chemical warfare) to kill, injure, or disable by inhalation or contact" or a gas that "in suitable quantities has properties harmful or fatal to an organism when it is brought into contact with or absorbed by the organism." As used in section 20.5-6, the term "poisonous gas" is therefore ambiguous. We may therefore "consider the purpose of the law, the evils it was intended to remedy, and the legislative history behind it." Stroger v. Regional Transportation Authority, 201 Ill.2d 508, 524, 268 Ill.Dec. 417, 778 N.E.2d 683 (2002). Traditional aids of statutory construction may also be employed, and "the rule that penal statutes should be construed to afford lenity to the accused" applies. People v. Roberts, 214 Ill.2d 106, 118, 291 Ill.Dec. 674, 824 N.E.2d 250 (2005).
Here, the doctrine of noscitur a sociis"a word is known by the company it keeps" (Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859, 863 (1961))is particularly applicable. Pursuant to this maxim, "[t]he meaning of questionable words or phrases in a statute may be ascertained by reference to the meaning of words or phrases associated with it." Hayes v. Mercy Hospital & Medical Center, 136 Ill.2d 450, 477, 145 Ill.Dec. 894, 557 N.E.2d 873 (1990). The doctrine of noscitur a sociis is relied upon "to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words" (Gustafson v. Alloyd Co., 513 U.S. 561, 575, 115 S.Ct. 1061, 1069, 131 L.Ed.2d 1, 15 (1995)) and "to avoid the giving of unintended breadth to a legislative act" (Hayes, 136 Ill.2d at 477, 145 Ill.Dec. 894, 557 N.E.2d 873). Here, the term "poisonous gas" appears in conjunction with the terms "deadly substance" and "deadly biological or chemical contaminant or agent"; this indicates that the term "poisonous gas" was intended to mean an inherently deadly or injurious gas, as opposed to a potentially deadly or injurious gas. The statute's legislative history further supports this conclusion.
The statute creating the offense of possession of a deadly substance originated in the 91st Illinois General Assembly as a part of Senate Bill 509 and was ultimately enacted as a part of Public Act 91-121, effective July 15, 1999 (1999 Ill. Laws 2001). When the bill passed in the Senate, it was toutedin relevant partas an "anticrime initiative * * * aimed at * * * terrorism." 91st Ill. Gen. Assem., Senate Proceedings, March 25, 1999, at 106 (statements of Senator Dillard). During subsequent proceedings before the Criminal Law Judiciary Committee of the House of Representatives, it was noted that the statute was necessary because Illinois had no law criminalizing the possession of "biological warfare chemicals" or "poison gas" such as "sarin gas." 91st Ill. Gen. Assem., House Proceedings, April 22, 1999, Judiciary II Committee Hearing (taped debate on Senate Bill 509). The legislative history *772 behind section 20.5-6 thus reveals that the statute was enacted to criminalize the unlawful possession of inherently deadly or injurious substances, such as gases designed, as in chemical warfare, to kill or injure.
We lastly note that the Methamphetamine Control and Community Protection Act, effective September 11, 2005, specifically prohibits the "possession, procurement, transportation, storage, or delivery of anhydrous ammonia * * * with the intent that the anhydrous ammonia be used to manufacture methamphetamine." 720 ILCS 646/25(a)(1) (West Supp.2005). This further supports the conclusion that the term "poisonous gas" was never meant to encompass anhydrous ammonia. See Gregory v. County of LaSalle, 91 Ill. App.2d 290, 297, 234 N.E.2d 66 (1968) ("In determining the intention of the General Assembly which passed the statute, it is permissible to look to later actions of the legislature").

CONCLUSION
We hold that anhydrous ammonia is not a "poisonous gas" for purposes of section 20.5-6 of the Criminal Code of 1961 (720 ILCS 5/20.5-6 (West 2002)). The State's proposed interpretation of the term "poisonous gas" is contradicted by the statute's legislative history and gives the statute unintended breadth. We accordingly reverse the defendant's conviction.
Reversed.
GOLDENHERSH and CHAPMAN, JJ., concur.
NOTES
[1]  We note that the defendant could have been charged with the unlawful transfer and transportation of anhydrous ammonia under section 21-1.5 of the Criminal Code of 1961 (720 ILCS 5/21-1.5 (West 2002) (repealed by Pub. Act 94-556, § 1056, eff. September 11, 2005 (now see 720 ILCS 646/25 (West Supp. 2005)))).


526 F.Supp. 292 (1981)
UNITED STATES of America, Plaintiff,
v.
Alfred CARPENTIER and Alexander Alexandro, Defendants.
No. CR-80-00120.
United States District Court, E. D. New York.
November 25, 1981.
John H. Jacobs and Thomas P. Puccio, U. S. Dept. of Justice, Organized Crime Strike Force, Laura Brevetti, Sp. Asst. U. S. Atty., Brooklyn, N.Y. for Edward R. Korman, U. S. Atty., E. D. N. Y.
James Pascarella, Carle Place, N. Y. for the defendant Alfred Carpentier.
*293 Debevoise & Plimpton, and Katharine P. Darrow, New York City, for applicant New York Times Co.
Patterson, Belknap, Webb & Tyler, New York City, for applicant New York News, Inc.

MEMORANDUM OF DECISION AND ORDER
COSTANTINO, District Judge.
This is a motion by the Government to place under seal for a sixty (60) day period audio tapes admitted into evidence at the sentencing hearing of the defendant, Alfred Carpentier ("Carpentier"). Carpentier has not opposed the motion, but both The New York Times Company, publisher of the New York Times ("the Times"), and the New York News, Inc., publisher of the New York Daily News ("the News"), have opposed the motion on First Amendment grounds and on the basis of the common law right of access to information admitted into evidence at a public hearing. For reasons set forth below, the Government's motion is denied.

BACKGROUND
The defendant Carpentier along with his co-defendant Alexander Alexandro ("Alexandro") was indicted and found guilty of certain crimes committed in the course of a covert investigation conducted by the Federal Bureau of Investigation ("F.B.I."), commonly known as "Abscam." The main characters in all of the Abscam investigations were Melvin Weinberg ("Weinberg"), a Government informant, and Special Agent Anthony Amoroso of the F.B.I., who in his undercover capacity was known as Tony DeVito ("DeVito").
The evidence at trial showed that Carpentier first met Weinberg in December of 1978, and that the two continued to meet quite frequently in the following months to discuss and negotiate various business transactions. During one of those meetings, Carpentier mentioned that in the past he had dealt with corrupt United States Immigration and Nationalization Service ("INS") inspectors, and that they could no doubt be of some assistance to Weinberg's and DeVito's employer  the ficticious Arab Sheik who controlled Abdul Enterprises, Ltd., a sham Middle Eastern company ostensibly interested in investing money in the United States.
In a subsequent meeting, Weinberg and DeVito pursued Carpentier's offer. They told Carpentier that their boss, the "Sheik", wanted to assist a friend in obtaining permanent residence status in the United States for the friend's son. The friend and the son were likewise ficticious.
On May 30, 1979, Carpentier met with Weinberg and DeVito to set up the meeting with the INS agent, Alexandro. On May 31, 1979, Carpentier attended a meeting with Alexandro, Weinberg and DeVito to plan the deal. During the following months, the details of a fraudulent immigration transaction were worked out and money was exchanged between the defendants and DeVito and Weinberg. The majority of these transactions were taped with audio and/or video recording devices.
On October 31, 1980, the defendant Carpentier was convicted after a jury trial of conspiracy to commit bribery, 18 U.S.C. § 371 and of conflict of interest. 18 U.S.C. §§ 202, 203. In the conspiracy count, Carpentier was found guilty of conspiring with Alexandro to receive money in return for Alexandro's official misconduct. In the latter, Carpentier was found guilty of aiding and abetting Alexandro in performing acts of official misconduct. As for Alexandro, he was convicted on the same date of the substantive bribery count, 18 U.S.C. § 201(c), the substantive conflict of interest count, 18 U.S.C. § 203, and the conspiracy count, 18 U.S.C. § 371.
The sentencing of both Carpentier and Alexandro was delayed for several months at the request of the defendants to permit the defendants and the court to follow the "due process" hearings then being conducted before the Hon. George C. Pratt of this court. Those hearings, held upon the motion of other Abscam defendants, focused on alleged improprieties committed during the entire Abscam investigation. Judge *294 Pratt in United States v. Myers, et al., 527 F.Supp. 1206 (E.D.N.Y.1981) concluded that there were no such due process violations. Since that decision, neither defendant in this action has pursued any relief on the basis of the due process violations,[1] and sentencing for both defendants was scheduled for September 22, 1981.
On that date, Alexandro was sentenced to a four-year term of incarceration, but Carpentier's sentence was again adjourned to enable the Government to obtain authorization from the Attorney General of the United States to move to close Carpentier's sentencing hearing pursuant to 28 C.F.R. § 50.9. After the sentence was adjourned, the Government furnished the court with approximately six-to-eight hours of tapes which the Government was to admit in evidence at the sentencing hearing. With the understanding that the hearing was to be closed, the court agreed to listen to the tapes in camera to expedite the sentencing hearing.
After another adjournment at the Government's request and after some discussion in Washington, D. C. between the press and the Justice Department, the Government informed the press and the court on November 13, 1981 that it would not seek to close the hearing. The sentencing hearing, also known as a Fatico hearing, began in open court on November 16, 1981. See United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), remanded, 458 F.Supp. 388 (E.D.N.Y.), aff'd, 603 F.2d 1053 (2d Cir. 1979),[2]cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980).
Before the Fatico hearing again commenced on November 19, 1981, the defendant made a tactical decision not to play the tapes and to bypass examining any witnesses concerning the content of those tapes. The Government then moved to admit the tapes in evidence without playing the tapes in open court. Although the Government had been willing to play the tapes if the defendant sought to challenge their content, it altered that position once it learned that Carpentier had decided to limit his rebuttal case. In short, the Government then asked that the tapes, already admitted in evidence, be placed under seal for sixty days as their disclosure, according to the Government, would jeopardize an ongoing grand jury investigation. At this point, the Times and the News appeared before the court in opposition to the motion.

CONCLUSIONS
The issue before this court is whether to allow the public and press access to tapes admitted into evidence without seal by the Government during a public sentencing hearing. The Supreme Court has enunciated the principle that "[w]hat transpires in the courtroom is public property," Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). While "access to governmental information is subject to a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality," Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 586, 100 S.Ct. 2814, 2832, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring); see, e. g., Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), "[t]he commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions ... are ... events of legitimate concern to the public and ... fall within the responsibility of the press to report the operations of government." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975). Accordingly, the court concludes that, on the basis of the growing trend in the Supreme Court, see Richmond Newspapers, Inc. v. Virginia, supra; Garrett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the public has a strong *295 First Amendment claim to access to evidence admitted in a public sentencing hearing, see Richmond Newspapers, Inc. v. Virginia, supra, and that the tapes should be disclosed.
There is good reason for allowing the public to see and hear evidence offered by the Government in an open hearing which a court is asked to consider when sentencing a convicted defendant. Primarily, there is a basic distrust of secret proceedings. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). In addition, the public must have the opportunity to observe and criticize the judiciary in the operation of its duties. In sentencing, unlike other aspects of criminal proceedings, it is the distinct province of the court to determine what constitutes proper sentence. Nonetheless, the judiciary is an arm of the government, see Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 595, 100 S.Ct. at 2838 (Brennan, J., concurring), and if the public is to have access to a criminal trial to be part of the checks and balances in government, a fortiori that same check should be present when a court is asked to use its broad discretion and consider evidence admitted in a public hearing in imposing sentence. To the extent that the tapes at issue have become a matter of public record upon their admission into evidence by the Government at a public hearing, the press and the public should be allowed to hear the tapes and should be given access to these tapes. See United States v. Hubbard, 650 F.2d 293, 323 (D.C.Cir.1981); Cianci v. New Times Publishing Co., 88 F.R.D. 562 (S.D.N. Y.1980); cf. United States v. Gurney, 558 F.2d 1202, 1209 (5th Cir. 1977), cert. denied sub nom. Miami Herald Publishing Co. v. Krentzman, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978).
The Government argues that the public need not be informed as to the reasons underlying the court's pronouncement of sentence. The Government analogizes the information contained in these tapes to the information often contained in probation reports to which the public is not privy. However, this analogy is inaccurate in light of the adversarial nature of the instant proceeding. This characterization arises from the significant distinction that the probation department which submits its probation report to the court for the purpose of sentencing is part of the judiciary, see Fed.R.Crim.P. 32, whereas, the Government, which has admitted the tapes into evidence in the Fatico hearing for the purpose of sentencing is yet an adversary in a judicial hearing arising from its prosecution and conviction of Carpentier. See Cianci v. New Times Publishing Co., supra.
There is authority in this Circuit holding that evidence admitted under seal need not be disclosed "because, with respect to that item of evidence, the session of court was not public." Application of National Broadcasting Co., Inc. (Myers), 635 F.2d 945, n. 4 (2d Cir. 1980). However, this ruling is not applicable to the instant action. During the Fatico hearing, the tapes in issue were admitted into evidence without a seal, so the above holding is not controlling. See, e. g., National Polymer Products v. Borg-Warner Corp., 641 F.2d 418, 421 (6th Cir. 1981). Further, the distinction in the instant case that the tapes were not played during the hearing as in Myers is not dispositive in light of the fact that, by the admission of the tapes into evidence without seal, they became part of the public record. See Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. at 495, 95 S.Ct. at 1046. Accordingly, the court follows the Richmond Newspapers holding and concludes that the public has a First Amendment right to see and hear evidence admitted into evidence in a public sentencing hearing. Cf. United States v. Hubbard, 650 F.2d at 330 (MacKinnon, J., dissenting).
There is also an additional basis for giving the press and public access to the tapes. The common law right to inspect and copy judicial records is firmly established in our jurisprudence, Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98, 98 S.Ct. 1306, 1311-12, 55 L.Ed.2d 570 (1977), and that right applies to tapes as well as documents. See In re National Broadcasting Co., Inc. (Jenrette), 653 F.2d *296 609 (D.C.Cir.1981); United States v. Criden, 648 F.2d 814 (3d Cir. 1981); Application of National Broadcasting Co., Inc. (Myers), supra. While the decision to release those tapes for copying and reproduction rests in the sole discretion of the trial court, Nixon v. Warner Communications, Inc., supra, the presumption is in favor of disclosure.[3]
The court does recognize that under certain circumstances, disclosure would be denied if such disclosure would hamper law enforcement efforts. See generally United States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981); Black v. Sheraton Corp., 564 F.2d 531 (D.C.Cir.1977); 28 C.F.R. § 16.1 et seq. Under the circumstances of this case, however, that privilege belatedly raised by the Government at the close of the Fatico hearing does not override the public's First Amendment right to hear those tapes and does not outbalance the presumption in favor of copying judicial records. Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 581, 100 S.Ct. at 2830.
Specifically, the Government maintains that disclosure would hamper an ongoing grand jury investigation. While parenthetically this fact alone might justify the sealing, the facts mitigate against nondisclosure. Firstly, the Government has had these tapes since 1978 or 1979 and has done little or nothing to investigate information revealed on the tapes, and the fears expressed regarding the ongoing investigation appear to be based solely on speculation. See In re Search Warrant For Second Floor Bedroom, 489 F.Supp. 207 (D.R.I.1980). Secondly, the Government had no reluctance to play the tapes in open court when it believed that Carpentier was going to contest certain facts contained in the tapes. It was only after Carpentier's position was clear to the Government that it sought to seal the tapes. Finally, the Government had numerous opportunities to discuss the closing of the entire proceeding with the Justice Department in Washington, D. C. and the press had some input in the Justice Department's decision against closing the hearing. It was only at the eleventh hour that the Government sought to alter its position. Taken as whole, these facts detract from the Government's position that disclosure would jeopardize a grand jury investigation. Such frequent changes of heart by the Government to further its position cause this court to view its request with skepticism.[4]
In conclusion, this court has been asked to consider the information on these tapes in sentencing the defendant, and it will do so. However, the court accords no weight to statements made regarding third parties mentioned on the tapes. There is absolutely no proof that the individuals mentioned were involved in illegal activities in any way nor does the Government make any claim regarding the substance of those statements as they pertain to third parties.
Accordingly, the Government's motion is denied.
SO ORDERED.
NOTES
[1]  Both defendants did move to dismiss the indictment during the trial, but their joint motion was denied.
[2]  The purpose of the Fatico hearing was to place before the court evidence of the defendant's background, character, and conduct to be taken into consideration at sentencing. See 18 U.S.C. § 3577. As with all criminal hearings, the defendant in this adversarial proceeding is given a full opportunity to challenge the evidence submitted by the Government.
[3]  By its decision herein, the court does not expand the First Amendment right and the right of access to the extent that the public can examine matter contained in the presentence report. Such disclosure is specifically restricted by applicable statutes. Fed.R.Crim.P. 32. The court's holding pertains solely to the audio tapes admitted into evidence without seal in a public, criminal, adversarial proceeding.
[4]  On occasion, courts have expressed concern that disclosure may affect innocent third parties mentioned in the evidence. See United States v. Hubbard, supra; United States v. Criden, supra. While this is true in any case where a party makes possibly unfounded statements about third parties, under the circumstances, such considerations do not alter this court's decision. As the Second Circuit noted in Myers, supra, 635 F.2d at 952, the public has a strong interest in examining every aspect of the controversial Abscam investigation, which would not be outweighed by the interests of third parties who might be mentioned on those tapes.


      In the United States Court of Federal Claims
                                     No. 15-982C
                            (Filed: September 25, 2015)*
             *Opinion originally issued under seal on September 18, 2015

                                           )
 EMTA ISAAT, A.S.,                         )
                                           )
        Plaintiff,                         )      Bid Protest; Temporary Restraining
                                           )      Order; Preliminary Injunction;
 v.                                        )      National Security; Balance of
                                           )      Hardships; Price Realism Analysis;
 THE UNITED STATES,                        )      Deference to Agency; Technical
                                           )      Acceptability
        Defendant.                         )
                                           )

       John M. Manfredonia, Cresskill, NJ, for plaintiff.

      Gregg P. Yates, Civil Division, United States Department of Justice, Washington,
DC, with whom were Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director. Aaron G.
Lake, Deputy Chief, Commercial Litigation Field Support, Air Force Legal Operations
Agency, Joint Base Andrews, MD, of counsel.

MEMORANDUM OPINION DENYING TEMPORARY RESTRAINING ORDER
             AND PRELIMINARY INJUNCTION

FIRESTONE, Judge.

       In this post-award bid protest, Plaintiff EMTA Insaat, A.S. (“EMTA”), a Turkish

commercial construction company, challenges the award of a fixed-price construction

contract by the United States Air Force 39th Contracting Squadron (“the agency” or “the

government”) to repurpose a hangar at Incirlik Air Base, Turkey, to serve as the new

military headquarters of the Combined Joint Special Operation Task Force-Syria
(CJSOTF-S). The awardee is Artek Insaat, A.S. (“Artek”), another Turkish construction

company.

      EMTA filed its original complaint in this bid protest on September 4, 2015,

claiming that the government failed to conduct a proper price realism analysis of Artek’s

lowest cost proposal, which, if done, would have (1) rendered Artek’s proposal ineligible,

and (2) resulted in the award of the contract to EMTA. The court held a status

conference with the parties on September 8, 2015. On September 9, 2015, the

government provided a description of the status of performance under the contract. The

government’s description included a schedule which anticipates groundbreaking on

September 16, 2015 and “beneficial occupancy” by November 20, 2015. On September

10, 2015, EMTA applied for a temporary restraining order and preliminary injunction to

prevent the government from going forward with performance while the bid protest is

pending. In its motion, EMTA argues that it is likely to succeed on the merits and will be

irreparably harmed without a temporary halt to construction.

      On September 11, 2015, the government filed a response to EMTA’s motion. In

its response, the government argues that EMTA is not likely to succeed on the merits and

that the government’s and the public’s interest weigh heavily against granting temporary

injunctive relief and halting construction. The government included with its response a

declaration from Major General Michael K. Nagata, who has been Commander of the

Combined Joint Interagency Task Force-Syria (CJIATF-S) since October 17, 2014.

CJIATF-S is a joint military command headquartered in Al Udeid Air Base, Doha, Qatar,

with one subordinate organization, CJSOTF-S. CJIATF-S and CJSOTF-S are

                                            2

responsible for conducting the Syria Train and Equip Program.1 The mission of the Syria

Train and Equip Program is to (1) defend the Syrian people from attacks by the Islamic

State of Iraq and the Levant (ISIL); (2) secure territory controlled by the Syrian

opposition; (3) protect the United States, its friends and allies, and the Syrian people from

the threats posed by terrorists in Syria; and (4) promote the conditions for a negotiated

settlement to end the conflict in Syria. Major General Nagata states that it is necessary to

relocate the CJSOTF-S headquarters from its current, temporary location in [. . .] to

Incirlik Air Base as soon as possible in order to meet the needs of the mission in a more

timely and effective manner. Def.’s Opp’n A2-3. Major General Nagata states that

“[b]eneficial occupancy of the CJSOTF-S headquarters facility at Incirlik Air Base is,

from an operational standpoint, critical” and that any “delays in relocating the CJSOTF-S

headquarters to Incirlik Air Base will be detrimental to the overall coalition effort and

mission to provide support to the appropriately vetted Syrian opposition.” Def.’s Opp’n

A3. He concludes that “ultimately, a delay in relocation of this headquarters is a threat to

the success of the program.” Id.

              The government’s response to EMTA’s motion also included a declaration from

Colonel John C. Walker, who has been Commander of the 39th Air Base Wing at Incirlik

Air Base since July 31, 2015. Colonel Walker also states that it is necessary to relocate

the CJSOTF-S headquarters to Incirlik Air Base as soon as possible. Def.’s Opp’n A6-7.

1
 The program is authorized under section 1209 of the Carl Levin and Howard P. ‘Buck’
McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, 128
Stat. 3292 (2014).
                                                               3

In addition, Colonel Walker states that “[t]here were, and currently are, absolutely no

existing facilities at [Incirlik Air Base] that will meet CJSOTF-S’s facility needs.” Def.’s

Opp’n A7. Colonel Walker similarly concludes that maintaining a “beneficial occupancy

date” of November 20, 2015, “from an operational standpoint, is critical” and that

[u]ltimately, a delay in relocating this headquarters is a threat to the success of the

program.” Def.’s Opp’n A8.

              On September 14, 2015, EMTA filed a reply to the government’s opposition,

challenging the government’s arguments. Also on September 14, 2015, EMTA filed an

amended complaint with an additional allegation that the government improperly waived

a requirement of the solicitation. Specifically, EMTA argues that Artek failed to provide

a list of equipment and materials required to perform the contract and thus was not

eligible for award.2

              On September 15, 2015, EMTA filed a supplemental reply to the government’s

opposition. EMTA attached to its supplemental reply documents that EMTA had

received from the government but that had not been filed as part of the administrative

record. These documents included an e-mail exchange regarding the treatment of

weakness in various proposals, including Artek’s and EMTA’s proposals. On September

16, 2015, the government corrected the administrative record to include documents that

were omitted from the initially filed record, including the e-mail exchange referenced in

2
  EMTA also raises this argument in its reply to the government’s opposition to EMTA’s motion
for a temporary restraining order and preliminary injunction. Pl.’s Reply 4, 11.
                                                               4

EMTA’s supplemental reply. Finally, on September 17, 2015, the government filed a

sur-reply.3

              The court has determined that oral argument is not necessary. For the reasons that

follow, EMTA’s Motion for a Temporary Restraining Order and Preliminary Injunction

is DENIED.

I.            FACTS

              A.             The Solicitation
              On July 2, 2015, the agency issued a Request for Proposals (“RFP” or

“solicitation”) to repurpose a hangar at Incirlik Air Base. Administrative Record (“AR”)

622. The RFP provided that the government intended to award a firm fixed price contract

to the lowest priced technically acceptable offeror in accordance with Federal Acquisition

Regulation (“FAR”) 15.101-2. AR 63. Also in the RFP, “[t]he Government reserve[d]

the right to refrain from awarding to any contractor in the event that all Offerors [were]

determined to have offered pricing that [was] not considered realistic, reasonable, or

complete.” AR 67.

3
  The government’s sur-reply included a declaration from Technical Sergeant Matthew Mayo, a
contingency contracting officer who is responsible for the acquisition of supplies, services, and
construction in support of CJSOTF-S. However, the statements in Technical Sergeant Matthew
Mayo’s declaration go beyond the administrative record and the government did not move to
supplement the record. Therefore, the court will not consider this new material. EMTA’s
motion to partially strike the declaration of Matthew Mayo is DENIED as moot. See generally
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)
(“[S]upplementation of the record should be limited to cases in which the ‘omission of extra-
record evidence precludes effective judicial review.’” (citing Murakami v. United States, 46 Fed.
Cl. 731, 735 (2000))).
                                                               5

              The RFP specified how proposals would be evaluated. The RFP explained that the

government would evaluate, in order, price and technical capability. With respect to

evaluation of prices, the RFP provided that—

                     Each offer received in response to this solicitation will be evaluated
              based on total proposed price. All offerors[’] proposed prices will be
              evaluated to ensure they are realistic, reasonable, and complete. All
              offerors whose prices are found to be realistic, reasonable, and complete,
              will be ranked by total proposed price, from lowest to highest. . . . All
              offerors who are ranked by total proposed price will have their technical
              volume forwarded to the Technical Evaluation Board for evaluation.

AR 67. Section L of the RFP (titled “Instructions, Conditions and Notices to Bidders”)

instructed offerors to complete a Construction Cost Estimate Breakdown Form INC 1101

(“Form INC 1101”). AR 86. Offerors were directed to include on Form INC 1101 all

associated design, labor, material, overhead, and profit for the requested project. Id.

              Section M of the RFP (titled “Evaluation”) described the basis for the contract

award (Section M-1) and the evaluation factors and award process (Section M-2). AR

90-92. Section M-2 specified that the “[p]rices will be evaluated for completeness,

reasonableness, and balance [in accordance with] FAR 15.305(a)(1) and FAR 15.404.”4

AR 91. Offerors were required to submit “a total estimated amount for the performance

of the entire project.” Id. The RFP reiterated that prices would “be evaluated on total

price for the overall project.” Id.

              The RFP also explained that the government’s technical evaluation team would

evaluate proposals on an “acceptable” or “unacceptable” basis, and that only those

4
 Section M-2 of the RFP also provided that a “price fair and reasonable determination [would]
be made on the apparent successful offer prior to award.” AR 92.
                                                               6

proposals that clearly met the minimum requirements of the solicitation would be

considered for award. AR 67, 91-92. Technical capability included two subfactors:

technical capabilities and progress schedule. AR 67. In particular, the RFP required

offerors to provide “[a] narrative to demonstrate a sound approach and methodology for

accomplishing work requirements identified in the solicitation with the appropriate skills,

equipment, and materials, in the appropriate quantities with specifications, and at the

appropriate time to meet the Government’s desired outcomes.” AR 65, 87. This

information was to “clearly demonstrate the contractor’s capability to manage all

resources required to perform the requirements outlined in th[e] solicitation.” Id.

Finally, the RFP noted that any material list provided by an offeror would not be

“official” or approved until the construction phase of the project. Id.

       The agency received five proposals by the due date of July 20, 2015. AR 622. All

of the five proposals were sent to the technical evaluation team on the same day. Id. The

technical evaluations were completed by July 30, 2015. Id. The following day, the

contracting office requested clarification of some of the comments on the technical

evaluations “to ensure evaluations were conducted in accordance with section M of the

solicitation.” Id. The evaluations were revised by August 5, 2015. AR 623. [ . . . ] of

the five proposals, including the proposals by EMTA and Artek, were found to be

acceptable. Id. One proposal [ . . . ] was found to be unacceptable due to the omission of

a material list. AR 624.

       Both EMTA and Artek provided detailed price schedules, AR 115-35, 400-19, and

narratives to show how they would produce an end product to meet or exceed contract

                                             7

requirements. AR 384-91, 580-84. EMTA and Artek also provided lists of construction

materials they would use in the project and identified a manufacturer for each of the

materials. AR 391-94, 437-39. EMTA identified 66 types of construction materials and

Artek identified 81 types of construction materials. Id. However, Artek expressly

provided “estimated” quantities and specified that “estimated quantities may vary after

final design.” AR 437. In its list, Artek provided an estimated quantity for only 49 of its

81 materials, listing the estimated quantity for the remaining 32 items as “TBD.” AR

437-39. EMTA either omitted or did not list separately certain materials that Artek listed

as “TBD,” such as sprinkler pipe. AR 392, 437.

              B.             The Evaluation and Best Value Determination
              The Source Selection Decision Document (“SSDD”) states that the agency’s initial

technical evaluation identified five weaknesses in Artek’s proposal. AR 625.5 The

Technical Evaluation Board stated that (1) Artek’s material list did not include a media

wall; (2) the proposed transformer was not the preferred brand; (3) the proposed testing

agency was not a Certified Commissioning Authority; (4) some catalog data differed

from the material list; and (5) quantities for some items were listed as “TBD” on the

material list. AR 597, 625. The contracting office did not agree with these findings, AR

609-10, and after further review the agency determined that Artek’s proposal was

“acceptable.” AR 625. The SSDD notes that the revised technical evaluation found

5
 It is not clear from the record whether the initial technical evaluation found Artek’s proposal
acceptable or unacceptable. Compare AR 597-98, 601-02, 609, 742-43 (identifying Artek’s
proposal as acceptable), with AR 625 (“Initial technical evaluation found Artek technically
unacceptable.”).
                                                               8

Artek’s proposal “acceptable” for the following reasons: (1) a “media wall was in fact

listed on [Artek’s] material list”; (2) “no brand preference was stated [in the RFP] for the

transformers”; (3) “it was determined . . . that although the proposed testing agency was

not a [Certified Commissioning Authority], numerous agencies were available in the

local area and that the issue with the agency could be addressed during the design phase”;

(4) “[i]t was determined . . . that the catalog data was in line with the requested

specifications per the Statement of Work”; and (5) “[a]lthough specific quantities were

not listed for each line item on [Artek’s] material list, it was determined that the

contractor had a good understanding of work to be performed and that quantities would

be solidified during the design phase.” Id.6

              Although the SSDD does not expressly reference the price realism analysis

provision from the solicitation, the agency prepared an “abstract of quotations” that

compared all of the offers against the independent government cost estimate (IGCE), AR

621, and the SSDD includes the following discussion of Artek’s proposed price:

                       The price submitted by Artek in the amount of $969,810.80 is [. .
              .]% lower than the next lowest offer EMTA. Artek’s overhead and profit
              combined are [. . .]%, which is [. . .]% lower than EMTA’s rate of [. . .]%;
              their labor costs are lower as well. Artek’s price is also [. . .]% lower than
              [. . .] proposal who[se] overhead and profit rates combined were the same
              as EMTA at [. . .]%. Based on this analysis, it is evident that the direct
              costs provided by Artek are in line with the other offerors, however what

6
  The SSDD notes that the initial technical evaluation for EMTA identified two weaknesses: (1)
“[t]he proposed media wall was a low quality system when compared to the other offerors and
that verification was needed for the proposed roof top units”; and (2) “[v]erification of the
proposed roof top units was needed.” AR 624. The contracting office pointed out that the media
wall should be listed as acceptable or unacceptable and not compared to products submitted by
other offerors, and that any items listed as needing verification would require conducting
evaluation notices with all offerors. Id. The agency’s revised evaluation removed comments
regarding the media wall but not the roof top units. Id.
                                                               9

       set them apart are their indirect and labor costs. Based on these facts, it has
       been determined that the price submitted by Artek is fair, reasonable, and
       represents the best value to the Government.

AR 626. Ultimately, the agency determined that the proposal submitted by Artek offered

the best overall value to satisfy contract requirements and that Artek met all requirements

of the solicitation. AR 622. The SSDD states that the “selection was made [in

accordance with] FAR 15.101-2, to the offeror whose evaluated proposal represented the

lowest price and was considered to be technically acceptable” and that “[t]he

documentation contained within this report indicates the basis of a fair and reasonable

price determination.” AR 627. On August 7, 2015, the agency awarded the contract to

Artek. AR 629-30 (Contract No. FA 5685-15-C-0007).

       C.     Post-Award Activities and EMTA’s Agency Protest
       In a memorandum dated August 7, 2015, the agency notified EMTA that its

proposal was not selected for award. AR 662. The memorandum notes that five offerors

were solicited and five proposals were received. Id. The memorandum also provides the

name and address of the offeror receiving the award and the total contract price. Id.

Finally, the memorandum describes the process for requesting a debriefing regarding the

basis for the selection decision and contract award. Id.

       On August 11, 2015, EMTA requested a debriefing. AR 672. In a memorandum

dated August 13, 2015, the agency provided a description of the source selection

procedure and award. AR 675. The memorandum states that no significant weaknesses

were identified in EMTA’s proposal and presents the results of the government’s

evaluation findings. Id. The memorandum describes the evaluation process as consistent

                                             10

with Section M of the solicitation: “all offers were initially ranked according to price,

followed by a technical evaluation of the technical proposals on a pass/fail basis.” Id.

Those findings showed that EMTA’s offer was ranked second according to price and that

the technical capabilities of the four best priced offers were rated acceptable. Id. The

memorandum concludes that “[b]ased on a Lowest Priced Technically Acceptable

evaluation, award of contract FA5685-15-C-0007 was made to [Artek] for the price of

$969,810.80.” AR 676.

              EMTA protested the award at the agency level. EMTA claimed that the contract

award to Artek was improper because Artek’s price proposal was unrealistically low.7

AR 677, 725. The agency denied EMTA’s protest in a memorandum dated August 31,

2015. AR 725. The memorandum explains that “[p]rice evaluations were conducted

based on pricing information submitted on Form INC 1101s as stated in Instructions to

Offerors 4(a)(i),” and that price evaluations were conducted based on total price for the

overall project as stated in section M-2 of the solicitation. AR 725-26. The

memorandum further states that “[t]he Technical Evaluation team did not find Artek’s

proposed price to be unrealistically low and . . . deemed the Offeror capable and could

successfully complete this requirement.” AR 726. The memorandum continues, “[w]ith

Contracting review, the Selection team concurred with the Technical Evaluation and

7
  In addition, EMTA argued that the contract award was improper to the extent the agency
conducted discussions with Artek. AR 681-82, 726. The agency’s memorandum stated that
“[n]o discussions were held with any interested parties in response to the solicitation, and based
on the evaluations conducted by [the agency’s] subject matter experts on the initial proposals
received[,] this award was made to Artek without discussions.” AR 726. EMTA has not raised a
claim in this court regarding improper discussions.
                                                               11

proceeded with an award to the Lowest Priced Technically Acceptable Offeror.” Id. On

September 4, 2015, EMTA filed its bid protest complaint in this court.

II.      STANDARD OF REVIEW

         A.     Standard for Procurement Challenges
         In a bid protest case, the standard of review of an agency’s action is governed by

the Administrative Procedure Act, 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). This

standard is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216

F.3d 1054, 1058 (Fed. Cir. 2000). The court may not set aside an agency’s action unless

the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” Palladian Partners, Inc. v. United States, 783 F.3d 1243, 1252

(Fed. Cir. 2015) (quoting Savantage Fin. Servs. v. United States, 595 F.3d 1282, 1285

(Fed. Cir. 2010)). In that connection, “[t]he court’s task is to determine whether ‘(1) the

procurement official’s decision lacked a rational basis; or (2) the procurement procedure

involved a violation of regulation or procedure.’” Id. (quoting Savantage, 595 F.3d at

1285).

         A challenger may not use a bid protest as an opportunity to challenge the terms or

requirements of the solicitation itself. In Blue & Gold Fleet, L.P. v. United States, the

Federal Circuit held that “a party who has the opportunity to object to the terms of a

government solicitation containing a patent error and fails to do so prior to the close of

the bidding process waives its ability to raise the same objection subsequently in a bid

protest action . . . .” 492 F.3d 1308, 1313 (Fed. Cir. 2007). This rule prevents the

“inefficient and costly” process of conducting a second round of bidding “after offerors

                                              12

and the agency ha[ve] expended considerable time and effort submitting or evaluating

proposals in response to a defective solicitation.” Bannum, Inc. v. United States, 779

F.3d 1376, 1380 (Fed. Cir. 2015) (quoting Blue & Gold, 492 F.3d at 1314) (internal

quotation marks omitted).

              Finally, in exercising bid protest jurisdiction, the court gives due regard to the

interests of national defense and national security and the need for expeditious resolution

of the action. 28 U.S.C. § 1491(b)(3); see also Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 24 (2008) (giving “great deference to the professional judgment of military

authorities concerning the relative importance of a particular military interest” where the

case involved “complex, subtle, and professional decisions as to the composition,

training, equipping, and control of a military force,” which are “essentially professional

military judgments” (citations omitted)).8

              B.             Standard for a Temporary Restraining Order or Preliminary
                             Injunction
              In deciding whether to grant injunctive relief, a court considers: (1) whether the

plaintiff is likely to succeed on the merits of the case; (2) whether the plaintiff will suffer

8
  This court exercises jurisdiction over EMTA’s post-award bid protest pursuant to 28 U.S.C. §
1491(b). There is no dispute that EMTA has standing as an “interested party” under 28 U.S.C. §
1491(b) because EMTA was an actual bidder that has a direct economic interest, meaning that it
will be prejudiced by the award of the contract to Artek. See CGI Fed. Inc. v. United States, 779
F.3d 1346, 1348 (Fed. Cir. 2015). In order to establish a direct economic interest or prejudice in
the context of a post-award bid protest, a party must show that it had a “substantial chance” of
receiving the contract. Sys. Application & Technologies, Inc. v. United States, 691 F.3d 1374,
1382 (Fed. Cir. 2012) (citing Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir.
2006)); see also Tinton Falls Lodging Realty, LLC v. United States, No. 2014-5140, 2015 WL
5128658, at *4 (Fed. Cir. Sept. 2, 2015). In this case, EMTA’s offer was the next-lowest price
and was deemed technically acceptable. AR 621, 623. Therefore, EMTA had a substantial
chance of receiving the contract.
                                                               13

irreparable harm if the court withholds injunctive relief; (3) whether the balance of

hardships to the respective parties favors the grant of injunctive relief; and (4) whether it

is in the public interest to grant injunctive relief. PGBA, LLC v. United States, 389 F.3d

1219, 1228-29 (Fed. Cir. 2004). “Although the factors are not applied mechanically, a

movant must establish the existence of both of the first two factors to be entitled to a

preliminary injunction.” Altana Pharma AG v. Teva Pharm. USA, Inc., 566 F.3d 999,

1005 (Fed. Cir. 2009) (citing Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d

1343, 1350 (Fed. Cir. 2001)).

III.   DISCUSSION

       A.     EMTA is not likely to succeed on the merits
       EMTA argues that it is likely to prevail because the government failed to conduct

a detailed price realism analysis as required by the FAR and the RFP. Specifically,

EMTA alleges that the government was required, and failed, to conduct “some due

diligence by examining the individual cost elements that each offeror was required to

submit with their price proposals.” Pl.’s Mem. 9.

       In response, the government argues that EMTA has not demonstrated that it will

succeed on the merits. The government acknowledges that it is bound by language in the

RFP requiring a price realism analysis, but asserts that it adequately performed the price

realism analysis required by the solicitation. In this connection, the government

acknowledges that the SSDD does not use the term “realism,” but argues that “the

Government’s reasoning supports the conclusion that the Government performed a price

realism analysis.” Def.’s Opp’n 15. The government adds that where “the RFP [does]

                                              14

not make any commitment[] to perform a price realism analysis in any particular

manner[,] the methodology is left to the agency’s discretion.” Rotech Healthcare, Inc. v.

United States, 121 Fed. Cl. 387, 404 (2015) (citing Ne. Military Sales, Inc. v. United

States, 100 Fed. Cl. 103, 118 (2011); FCN, Inc. v. United States, 115 Fed. Cl. 335, 375

(2014)); see also Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 358

(2009) (“[T]he nature and extent of a price realism analysis is ultimately within the sound

exercise of the agency’s discretion, unless the agency commits itself to a particular

methodology in a solicitation.”).

              EMTA replies that the government’s reliance on Rotech Healthcare v. United

States is misplaced in that here the government required more detailed cost worksheets

from each bidder than were required in Rotech and thus the government could perform a

more detailed and rational price realism analysis and that “the RFP in this case

contemplated a more detailed price realism analysis [than] merely comparing Artek’s

total price against [the] other offers and IGCE.” Pl.’s Reply 15-16. According to EMTA,

the government failed to document its price realism analysis and documented only a price

reasonableness analysis.9 Id.

              EMTA also argues in its reply that the agency improperly waived a requirement of

the solicitation by finding that Artek’s technical proposal was acceptable when Artek

9
  In general, “a price reasonableness analysis has the goal of preventing the government from
paying too much for contract work. A price realism analysis, on the other hand, investigates
whether the contractor is proposing a price so low that performance of the contract will be
threatened.” DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653, 657 n.5 (2010); see
also FAR 15.404-1 (distinguishing “price analysis” from “cost analysis”).
                                                               15

failed to provide quantities for a number of items in its material list despite the RFP

requirement to provide “[a] narrative to demonstrate a sound approach and methodology

for accomplishing work requirements identified in the solicitation with the appropriate

skills, equipment, and materials, in the appropriate quantities with specifications, and at

the appropriate time to meet the Government’s desired outcomes.” AR 65, 87.

       The court finds that EMTA is not likely to succeed on the merits. There is no

dispute that the plain language of the RFP required the government to conduct a price

realism analysis. The RFP provided that “[a]ll offerors[’] proposed prices will be

evaluated to ensure they are realistic, reasonable, and complete.” AR 67. However, the

RFP did not spell out how the price realism analysis would be conducted. While offerors

were required to provide a detailed cost breakdown, the RFP made clear that “[e]ach

offer received in response to this solicitation will be evaluated based on total proposed

price.” Id. The RFP also specified that it would use “total proposed price” for ranking

offerors and forwarding technical volumes to the Technical Evaluation Board for

evaluation. Id. Thus, the court agrees with the government that the RFP did not mandate

a comparison of individual cost items in performing its price realism analysis, as EMTA

argues.

       In addition, the court agrees with the government that a review of the SSDD

shows that even without use of the word “realism,” the government examined Artek’s

price and concluded that it was not unrealistically low. AR 626. The SSDD notes that

Artek’s price was [. . .] percent lower than EMTA’s price, but also discusses that Artek’s

overhead and profit were [. . .] percent lower than EMTA’s rate and that Artek’s labor

                                             16

costs were lower as well.10 The SSDD concluded that “[b]ased on this analysis, it is

evident that the direct costs provided by Artek are in line with the other offerors, however

what has set them apart are their indirect and labor costs.” Id. The SSDD’s analysis of

Artek’s offer further explained that despite lack of quantities for a portion of the

construction materials, Artek “had a good understanding of work to be performed.” AR

625. At this stage in the proceeding, the court finds that this documentation is sufficient

to show that EMTA is not likely to succeed on its objection to the agency’s price realism

analysis because the SSDD includes an analysis of whether the price was too low (or

unrealistic, reflecting a lack of understanding of the contract requirements) and a

description of Artek’s “good understanding” of the work.

              The court also finds that EMTA’s second argument is not likely to succeed. The

RFP required a narrative and material list in order “to demonstrate a sound approach and

methodology for accomplishing work requirements . . . [and] clearly demonstrate the

contractor’s capability to manage all resources required to perform the requirements

outlined in th[e] solicitation.” AR 65, 87. Artek provided a detailed narrative to show

how it would produce an end product to meet or exceed contract requirements, AR 580-

10
  EMTA points out that the SSDD does not state that the government compared Artek’s
proposed price ($969,810.80) with the IGCE ($1,669,500.00) or describe why the government
did not make this comparison. Pl.’s Mem. 9-10. EMTA argues that the comparison would have
shown that Artek’s price was unrealistically low. Id. The court finds that in this case the RFP
did not commit the government to perform a price realism analysis based on comparisons with
the IGCE and, even if it had, a difference of 40 percent is not necessarily unrealistic. See, e.g.,
Preferred Sys. Sols., Inc. v. United States, 110 Fed. Cl. 48, 61 (2013) (finding that a price realism
analysis was not arbitrary, capricious, or an abuse of discretion where the bid was 40% lower
than the incumbent’s proposed price and 54% lower than the IGCE). In addition, if Artek’s price
was unrealistic, it is not clear whether EMTA’s proposed price ($[. . .]) would have been found
realistic either because it was also substantially less than the IGCE. AR 621.
                                                               17

84, and a list of materials it would use in the project and identified a manufacturer for

each of the materials. AR 437-39. As noted, Artek did not include an estimated quantity

for 32 of its 81 categories of construction materials. Id. Artek’s proposal might have

been stronger if it had included estimated quantities for all of the listed materials.

However, the court cannot say that EMTA is likely to be able to show that it was

arbitrary and capricious for the agency to conclude, based on Artek’s narrative, the

description of the materials and their manufacturers, and the quantities provided for the

other 49 categories of construction materials, “that the contractor had a good

understanding of work to be performed and that the quantities would be solidified during

the design phase.” AR 625. Similarly, it is unlikely that EMTA will be able to show that

it was arbitrary and capricious for the government not to disqualify Artek for award on

the grounds that Artek included “TBD” on its material list for certain items. As noted, all

of the proposals, including EMTA’s, had weaknesses, but only [. . .] proposal was found

unacceptable on the ground that it failed to include any material list. Here, while Artek

failed to include estimated quantities for certain categories of construction materials, it

did include a materials list. Also, EMTA either omitted or did not list separately certain

materials that Artek listed as “TBD.” AR 392, 437. Finally, the RFP noted that any

material list provided by an offeror would not be “official” or approved until the

construction phase of the project. AR 65, 87. Consistent with this provision, Artek

provided “estimated” quantities and specified that “estimated quantities may vary after

final design.” AR 437.

                                              18

       B.     EMTA may be irreparably harmed
       EMTA argues that without early injunctive relief it will be irreparably harmed

because it will likely lose the opportunity to be awarded the contract. The government

asserts that economic harm for the lost opportunity represented by the pending

procurement cannot alone satisfy the irreparable harm prong required for injunctive relief

because it is present in nearly every successful bid protest. Instead, the government

argues, in order to obtain injunctive relief, a plaintiff must establish that it was denied an

opportunity to fairly compete for a contract and that the denial caused imminent harm

that was “truly irreparable, e.g., the contractor would be forced out of business.” Def.’s

Opp’n 18. The government notes that EMTA has had many valuable government

contracts and will not be forced out of business if it loses the opportunity to perform this

one. Def.’s Opp’n 19 n.2.

       As EMTA points out, this court has not required proof that the contractor would

be forced out of business to show irreparable harm. See RLB Contracting, Inc. v. United

States, 118 Fed. Cl. 750, 761 (2014) (concluding that “in the context of a bid protest, the

loss of an opportunity to compete for an award for which a party would not otherwise be

disqualified is sufficient injury to warrant injunctive relief” and distinguishing eBay Inc.

v. MercExchange, L.L.C., 547 U.S. 388 (2006) on the grounds that this conclusion

supports, but does not presume, that a plaintiff is entitled to injunctive relief);

RhinoCorps Co. v. United States, 87 Fed. Cl. 261, 281 (2009) (finding that the plaintiff

showed that it would be irreparably harmed without an injunction based on loss of

anticipated profits) (citing Bannum, Inc. v. United States, 60 Fed. Cl. 718, 730 (2004));

                                               19

Ceres Envtl. Servs., Inc. v. United States, 52 Fed. Cl. 23, 39 (2002) (“[L]oss of an

opportunity to compete for or obtain a Government contract has generally been found to

constitute irreparable injury.”) (citing United Int’l Investigative Servs., Inc. v. United

States, 41 Fed. Cl. 312, 323 (1998); Magnavox Elec. Sys. Co. v. United States, 26 Cl. Ct.

1373, 1379 (1992); TRW Envtl. Safety Sys., Inc. v. United States, 16 Cl. Ct. 520, 529

(1989)); see also, e.g., Red River Commc’ns, Inc. v. United States, 109 Fed. Cl. 497, 518-

19 (2013) (“This court has held that loss of an opportunity to compete constitutes

irreparable harm.”) (citing Def. Tech., Inc. v. United States, 99 Fed. Cl. 103, 131 (2011)).

       Here, the court concludes that EMTA, as the next lowest offeror, may be

irreparably harmed without injunctive relief because it will likely lose the opportunity to

perform this contract in light of the government’s construction schedule. See Afghan

Am. Army Servs., 90 Fed. Cl. at 368 (citing Dubinksy v. United States, 44 Fed. Cl. 509

(1999)).

       C.     The balance of hardships and public interest do not favor injunctive
              relief
       Although EMTA recognizes the importance of the project at issue for military

operations, it argues that a suspension of performance for less than 30 days to allow the

court to review the case under the schedule agreed to by the parties will mitigate any

harm. In response, the government argues that where, as here, the procurement

implicates national security and foreign policy concerns that are critical to the success of

military operations and to the health and safety of our servicemen and women in the field,

no injunction should issue. Def.’s Opp’n 20 (citing Winter, 555 US. at 24). Specifically,

                                              20

the government argues that while the court should not “blindly accede[]” to national

security claims, Afghan Am. Army Servs., 90 Fed. Cl. at 368, the national security and

defense concerns in this case outweigh the countervailing concerns for equity and

preservation of the integrity of the procurement process. In support, the government

relies on the declarations from Major General Nagata and Colonel Walker to establish

that “[b]eneficial occupancy of the CJSOTF-S headquarters facility at Incirlik Air Base

is, from an operational standpoint, critical.” Def.’s Opp’n A3. In particular, the

government states that these declarations make clear that “delays in relocating the

CJSOTF-S headquarters to Incirlik Air Base will be detrimental to the overall coalition

effort and mission to provide support to the appropriately vetted Syrian opposition [and]

ultimately, a delay in relocation of this headquarters is a threat to the success of the

program.” Id.

       While EMTA suggests that a brief delay will not be harmful, the court agrees with

the government that the national security, foreign policy, and public interest concerns at

stake in this procurement clearly outweigh the potential economic loss to EMTA. The

court is required to give due regard to these interests and professional military judgments.

See 28 U.S.C. § 1491(b)(3); see also Winter, 555 U.S. at 24. Accordingly, the court

denies EMTA’s request for temporary and preliminary injunctive relief.

IV.    CONCLUSION

       For the reasons stated above, EMTA’s Motion for a Temporary Restraining Order

and Preliminary Injunction is DENIED.

                                              21

    IT IS SO ORDERED.

                              s/Nancy B. Firestone
                              NANCY B. FIRESTONE
                              Judge

                        22


                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD

     MARY D. VANCE,                                  DOCKET NUMBER
                  Appellant,                         CH-0845-15-0425-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 5, 2016
       MANAGEMENT,
                   Agency.

             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mary D. Vance, South Point, Ohio, pro se.

           Patrick Jennings, Washington, D.C., for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the reconsideration decision of the Office of Personnel Management
     (OPM) that denied her request for waiver of an overpayment of annuity benefits.
     Generally, we grant petitions such as this one only when: the initial decision

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                               2

     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review. Therefore, we DENY the petition for review. Except as
     expressly MODIFIED by our finding that the adjustment of the repayment
     schedule affirms and does not modify the reconsideration decision, we AFFIRM
     the initial decision.

                                       BACKGROUND
¶2            In January 2009, the appellant retired pursuant to a disability retirement
     under the Federal Employees Retirement System (FERS).           Initial Appeal File
     (IAF), Tab 6 at 13, 52. In its January 2009 disability retirement approval letter,
     OPM informed the appellant that she was required to apply for Social Security
     Administration (SSA) disability benefits and that she must immediately inform
     OPM of the amount and effective date of such benefits. Id. at 13. OPM also
     informed the appellant that the SSA disability checks would be needed to pay
     OPM for the reduction that should have been made in her FERS annuity and that
     they should not be negotiated until the FERS benefit has been reduced. Id. at 14.
¶3            The appellant was awarded SSA disability benefits effective July 2009. Id.
     at 36.     In September 2012, OPM informed the appellant that:      (1) it received
     information that she had received SSA disability benefits effective in July 2009;
     (2) as a result, she had received an overpayment of $14,257.00 in disability
                                                                               3

     retirement benefits for the period from July 2009 to May 2012; and (3) OPM
     would collect the overpayment in 51 monthly installments of $276.60 and a final
     installment of $150.40. IAF, Tab 6 at 19-20. In response, in October 2012, the
     appellant requested reconsideration of the existence and amount of the
     overpayment, waiver of the overpayment, or lower installments. Id. at 25, 31. In
     May 2015, OPM issued an amended reconsideration decision that affirmed its
     initial decision, but found that the appellant was entitled to an adjustment of the
     collection schedule to 190 monthly installments of $75.00 and one installment of
     $7.00. 2 Id. at 7-9.
¶4         The appellant challenged the reconsideration decision before the Board.
     IAF, Tab 1.    She appeared to assert that she had informed OPM of her SSA
     disability award by telephone and facsimile, but that OPM failed to reduce her
     annuity at that point. Id. She did not request a hearing. Id. The administrative
     judge issued an initial decision based upon the written record denying the
     appellant’s request for waiver, but finding that OPM must adjust its collection
     schedule to $75.00 per month for 190 months, with one final payment of $7.00.
     IAF, Tab 28, Initial Decision (ID). 3 The appellant has filed a timely petition for
     review in which she challenges the administrative judge’s finding that she was
     aware that she had to set aside the SSA disability benefits and states that the
     administrative judge incorrectly concluded that she did not notify OPM of her

     2
      OPM previously issued a reconsideration decision in April 2015 that did not adjust the
     monthly payment. IAF, Tab 6 at 10-12.
     3
       The administrative judge found that OPM had offered a modified collection schedule
     in response to the appeal and stated that, after reviewing the record, she found the
     schedule to be reasonable. ID at 5-7; see IAF, Tab 19. In fact, OPM offered this
     adjustment of the collection schedule in its amended reconsideration decision. IAF,
     Tab 6 at 9.    Therefore, we modify the initial decision to the extent that the
     administrative judge stated she was modifying the reconsideration decision concerning
     the repayment schedule and instead find that the administrative judge affirmed the
     reconsideration decision in this respect.
                                                                               4

     receipt of SSA disability benefits. 4 Petition for Review (PFR) File, Tab 1. OPM
     has filed a response in opposition to the appellant’s petition for review, PFR File,
     Tab 4, and the appellant has filed a reply to OPM’s response, PFR File, Tab 5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         OPM bears the burden of proving the existence and amount of an
     overpayment by preponderant evidence. 5               Vojas v. Office of Personnel
     Management, 115 M.S.P.R. 502, ¶ 10 (2011); see 5 C.F.R. § 845.307(a). If the
     appellant claims that she is entitled to a waiver of the overpayment, she has the
     burden of proving, by substantial evidence, that she is entitled to a waiver. 6
     Vojas, 115 M.S.P.R. 502, ¶ 18; see 5 C.F.R. § 845.307(b).                  Generally, the
     recovery of a FERS overpayment should be waived if the recipient is without
     fault and recovery would be against equity and good conscience. Boone v. Office
     of Personnel Management, 119 M.S.P.R. 53, ¶ 5 (2012); see 5 U.S.C. § 8470(b);
     see also 5 C.F.R. § 845.301.       Recovery is against equity and good conscience
     when it would cause financial hardship, the annuitant can show that she
     relinquished a valuable right or changed positions for the worse, or recovery
     would be unconscionable under the circumstances. Boone, 119 M.S.P.R. 53, ¶ 5.

     4
       On review, the appellant appears to express her uncertainty about what is required to
     demonstrate financial hardship. PFR File, Tab 1. It is unclear whether the appellant’s
     statement is an attempt to challenge the repayment schedule. However, we see no
     reason to disturb the administrative judge’s finding regarding the repayment schedule
     and note that, should her financial situation change in the future, the appellant is free to
     renew her request for a reduced repayment schedule. See Fearon v. Office of Personnel
     Management, 109 M.S.P.R. 606, ¶ 9 n.2 (2008).
     5
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
     6
       Substantial evidence is defined as the degree of relevant evidence that a reasonable
     person, considering the record as a whole, might accept as adequate to support a
     conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).
     This is a lower standard of proof than preponderance of the evidence. Id.
                                                                               5

¶6        OPM policy provides, however, that individuals who know or suspect that
     they are receiving overpayments are expected to set aside the amount overpaid
     pending recoupment and that, in the absence of exceptional circumstances,
     recovery in these cases is not against equity and good conscience. OPM’s Policy
     Guidelines on the Disposition of Overpayments under the Civil Service
     Retirement System and FERS § 1.C.4 (hereinafter Policy Guidelines, located at
     IAF, Tab 6 at 55-93); see Slater v. Office of Personnel Management, 42 M.S.P.R.
     510, 516-17 (1989) (finding the set-aside rule “reasonable and appropriate”).
     Pursuant to Board precedent and the Policy Guidelines, exceptional circumstances
     involve extremely egregious errors or delays by OPM.         See, e.g., Dorrello v.
     Office of Personnel Management, 91 M.S.P.R. 535, ¶ 7 (2002); see also Policy
     Guidelines § I.C.4. The set-aside rule goes to the question of whether recovery
     would be against equity and good conscience. See Knox v. Office of Personnel
     Management, 107 M.S.P.R. 353, ¶ 8 (2007).
¶7        Assuming, without deciding, that the appellant was without fault in the
     overpayment, we find that the appellant has failed to establish that she is entitled
     to a waiver because she should have set aside the overpayments in order to repay
     the debt. OPM notified the appellant in January 2009 that if SSA awarded her
     disability benefits, she would be receiving an overpayment and should set aside
     her SSA disability benefits to reimburse OPM for the overpayment. IAF, Tab 6
     at 13-14.   We find that this notification by OPM provided the appellant with
     sufficient notice of the set-aside rule and that she should have set aside the SSA
     checks. See Gulan v. Office of Personnel Management, 86 M.S.P.R. 16, ¶¶ 2,
     9 (2000).
¶8        The appellant argues that the administrative judge improperly concluded
     that she did not notify OPM of her award of SSA disability benefits. PFR File,
     Tab 1. To the contrary, the administrative judge noted the appellant’s contention
     that she received notice of her SSA disability benefits on or around July 27, 2010,
     and faxed notice of her benefits to OPM on July 30, 2010. ID at 4; see IAF,
                                                                               6

     Tab 15.   She found that the appellant was without fault in creating the
     overpayment, but also found that the set-aside rule was applicable, regardless of
     whether the appellant was without fault in creating the overpayment. ID at 4.
     We discern no basis for disturbing these well-reasoned findings on review. See
     Knox, 107 M.S.P.R. 353, ¶¶ 7-9 (holding that the appellant was without fault in
     creating the overpayment but that she still was not entitled to a waiver because
     she should have set aside the overpayments).
¶9        Under the particular circumstances in this case, we find that recovery of
     the overpayment would not be against equity and good conscience. See Knox,
     107 M.S.P.R. 353, ¶¶ 8-9.     We therefore affirm the initial decision affirming
     OPM’s reconsideration decision that denied the appellant’s request for waiver of
     an overpayment of annuity benefits.

                    NOTICE TO THE APPELLANT REGARDING
                       YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
     Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
     request review of this final decision by the U.S. Court of Appeals for the Federal
     Circuit. You must submit your request to the court at the following address:
                                  U.S. Court of Appeals
                                  for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

     The court must receive your request for review no later than 60 calendar days
     after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
     2012). If you choose to file, be very careful to file on time. The court has held
     that normally it does not have the authority to waive this statutory deadline and
     that filings that do not comply with the deadline must be dismissed. See Pinat v.
     Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
                                                                               7

      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.