Full opinion text
MEMORANDUM OPINION BERYL A. HOWELL, Chief Judge The plaintiff, Eco Tour Adventures, Inc. (“Eco Tour”), a Wyoming-based small business, seeks rescission of two concession contracts for cross-country ski touring services in Grand Teton National Park (“the disputed contracts”) that were awarded to two incumbent concessioners, despite a ruling from the U.S. Court of Federal Claims (“CFC”) holding that the incumbents’ proposals were improperly considered by the National Park Service (the “NPS”). See Eco Tour Adventures, LLC v. United States (“Eco Tour I”), 114 Fed.Cl. 6, 40 (2013) (determining that “NPS acted arbitrarily and capriciously in concluding that [incumbent concessioners’] proposals were responsive” and, as a result, plaintiff “was prejudiced”). Despite the CFC’s ruling, NPS subsequently proceeded to award the disputed contracts to the incumbents, prompting the plaintiff to initiate this lawsuit against the Secretary of the Interior, the Department of the Interior,-the Director of the National Park Service, and the National Park Service (collectively, “the defendants” or “NPS”), under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq., requesting declaratory and injunctive relief, including requiring NPS to award the contracts to plaintiff. Compl. at 27-28 (Prayer for Relief), ECF No. 1. The parties have now filed cross motions for’ summary judgment. Pl.’s Mot. Summ. J., (“Pl.’s Mot.”), ECF No. 24; Defs.’ Cross-Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 27. For the reasons outlined below, the plaintiffs motion for summary judgment is granted with respect to its request for declaratory relief finding that NPS violated the APA, but denied without prejudice in all other respects, subject to supplemental briefing consistent with this Memorandum Opinion, and NPS’s cross-motion for summary judgment is denied. 1. BACKGROUND The background to this case is described in detail in the CFC decision holding that NPS “acted arbitrarily and capriciously” and in breach of “the implied contract for bids to be fairly and honestly considered,” when the agency, by its conduct, thwarted the plaintiffs “substantial chance” to receive the disputed contracts, Eco Tour I, 114 Fed.Cl. at 43, as well as this Court’s Memorandum Opinion denying the defendants’ motion to dismiss in this case, Eco Tour Adventures, Inc. v. Jewell (“Eco Tour II”), 174 F.Supp.3d 319 (D.D.C. 2016). This factual and procedural history as relevant to the pending motions is summarized below. A. NPS PROSPECTUS AND EVALUATION OF PLAINTIFF’S BID AS “BEST PROPOSAL” In December 2012, NPS issued a prospectus soliciting proposals for three ten-year concession contracts, only two of which, GRTE024-13 (“Contract 24”) and GRTE032-13 (“Contract 32”), are at issue in this case, to provide guided cross-country ski touring services in Grand Teton National Park. Admin. Record (“AR”) 5-210 (Prospectus, dated December 20, 2012, issued by NPS Intermountain Region). The prospectus “included detailed instructions setting forth the protocol for-submitting proposals and the selection factors to be used by the NPS to evaluate proposals.” Eco Tour I, 114 Fed.Cl. at 14. These factors included: the offeror’s commitment to “protecting, conserving, and preserving resources of the park area”; the offeror’s commitment to “providing necessary and appropriate visitor services at reasonable rates”; the background and experience of the offeror; the “financial capability of the offeror to carry out its proposal”; and the offeror’s “proposed minimum franchise fee.” AR 43-57 (Prospectus outlining the identical selection factors for Contracts 24 and 32). At the time of this solicitation, the services under Contract 24 were being provided by Jackson Hole Mountain Resort (“JHMR”) and under Contract 32 by Hole Hiking Experience (“HHE”), both of which, as incumbent concessioners, were designated by NPS as “preferred offer-ors,” a designation the plaintiff does not contest. AR 24 (Prospectus, noting that NPS “has determined the [ ] existing Con-cessioners are qualified contracts and therefore the existing Concessioners are Preferred Offerors for the new Contracts”). Under NPS regulations, this designation allows preferred offerors a “right of preference,” which allows them to match any better offer from a new bidder so long as they initially “submit a responsive proposal to th[e] Prospectus” that satisfies the minimum requirements established by the NPS. AR 24 (Prospectus, citing 36 C.F.R. § 51). The plaintiff was founded in 2008 and provides “auto-based interpretative tours into Grand Teton and Yellowstone national parks.” AR 730 (Letter, dated March 20, 2013, from Taylor Phillips, plaintiff’s President, to John Wessels, Regional Director, NPS Intermountain Region). Hoping to expand its business, the plaintiff submitted bids for Contracts 24 and 32. AR 724-1093. An evaluation panel, convened from March 25, 2013 to April 5, 2013, determined that the plaintiff submitted proposals with the highest cumulative score for both contracts. AR 1272-1302 (undated Panel Evaluation Summary for Contract 24); AR 1317-1342 (undated Panel Evaluation Summary for Contract 32); see also AR 1188 (Letter, dated June 20, 2013, from Regional Director, NPS Intermountain Region to Taylor Phillips, plaintiffs President, stating “[y]our proposal has been evaluated as the best proposal for” Contract 24); AR 1189 (same for Contract 32). For Contract 24, NPS received timely proposals from Eco Tour, JHMR, and two other offerors. AR 1277 (Panel Evaluation Summary for Contract 24 listing Eco Tour, JHMR, and two redacted names as offer-ors). The panel reviewed each proposal against a total of 12 primary, secondary and subsidiary selection factors, as laid out in the prospectus, and assigned a score for each factor. AR 1277. Eight of the plaintiffs twelve responses were rated “excellent” or “very good” and, of the remaining four responses, two were rated “good” and two were rated “fair.” AR 1278-1302 (Panel Evaluation Summary). In contrast, JHMR’s responses received no “excellent” or “very good” ratings, but only seven “good” and five “fair” ratings. Id. In fact, the plaintiffs score on each factor was higher than JHMR’s score, with the exception, of selection factor three, for which both received a score of 2.5. AR 1277. Based on the plaintiffs better evaluations, the plaintiffs total evaluation score for Contract 24 was 20.5 (out of a total 27), which was seven points higher than JHMR’s, at 13.5. AR 1277. For Contract 32, NPS received timely proposals from Eco Tour, HHE, and two other offerors. AR 1317 (Panel Evaluation Summary for Contract 32 listing Eco Tour, HHE, and two redacted names as offer-ors). Again, nine of the plaintiffs twelve responses, were rated “excellent” or “very good” and, of the remaining three responses, two were rated “gbod” and one was rated “fair.” AR 1318-42. In contrast, HHE’s responses received' no “excellent” ratings, with four “very good,” three “good” and five “fair” ratings. Id. Similar to the evaluation for Contract 24, the plaintiff received a higher score than the incumbent in every category, except for selection factor three, for which both received a 2.5. AR 1317. The plaintiffs total evaluation score for Contract 32, was 21.5 (out of a total 27), which was six points higher than HHE’s, at 15.5. AR 1317. The evaluation panel noted a number of deficiencies in both JHMR and HHE’s proposals, largely related to the fourth primary selection factor regarding “The Financial Capability of the Offeror To Carry Out its Proposal.” AR 1294 (Contract 24); AR 1334 (Contract 32). JHMR, the panel noted, failed to submit “a current balance sheet” or “a current credit report,” provided incomplete or inconsistent answers .“on the Initial Investment form,” and failed to submit “a bank statement as requested .... ” AR 1295-98. HHE, the panel noted, submitted incomplete annual financial reports, failed to provide any explanation for the balance sheet it provided, and made “numerous mistakes” on some of the required forms. AR 1337, 1339. These omissions prompted the panel to express “concern[] with the financial position of the Offeror [HHE].” AR 1336. On June 20, 2013, NPS sent letters to the plaintiff, JHMR, and HHE informing the companies of the panel evaluations. The plaintiff learned that its “proposal ha[d] been evaluated as the best proposal for this opportunity; however, in accordance with 36 C.F.R. § 51.26, the preferred offeror, whom the Director has determined to be eligible to exercise a right of preference to the award of the contract, [would] have the opportunity to match the terms of [its] proposal.” AR 1188 (Letter, dated June 20, 2013, from John Wessels, Regional Director, Intermountain Region to the plaintiff), The incumbent concession-ers were told that “[although the panel determined your, proposal to be responsive to the minimum requirements of the Prospectus, the panel did not find your proposal to be the best proposal submitted for this solicitation.” AR 1190-92 (Letter, dated June 20, 2013, from NPS to JHMR); AR 1193-95 (Letter, dated June 20, 2013, from NPS to HHE). Notwithstanding the finding of the NPS Regional Director that the incumbents’ proposals were “responsive to the minimum requirements of the Prospectus,” AR 1190, 1193, these letters detailed “items” that each incumbent was required to “expand on ... to bring the quality of your response up to the level of the best proposal,” AR 1192, 1195. JHMR, for example, was told by the Regional Director to submit a current balance sheet, credit report and bank statement, and HHE was told to submit a complete set of financial statements, to clarify its revenue and expense projections, a corrected Pro Forma without “mathematical errors,” and “a current bank statement with a list of current liabilities,” since HHE had failed to submit a balance sheet that corresponded with the bank statement it submitted, as required by the prospectus. Id. Despite the cited defects. in their bid proposals, the NPS Regional Director told the incumbents that they were “eligible to exercise the right of preference for the award of the new Concession Contract” under 36 C.F.R. § 51.32, assuming that they provided the information missing from their bids, and committed to matching the “elements of [the] better offer” submitted by the plaintiff. AR 1190-92; AR 1193-94. The incumbents quickly agreed to match the terms of the plaintiffs better offer. AR 1204-07 (Letter, dated June 28, 2013, from JHMR to NPS); AR 1400-01 (Letter, dated July 8, 2013, from HHE to NPS). The plaintiff also responded to the NPS letter and raised concern over NPS’s reli-anéé on its regulation at 36 C.F.R. § 51.32 because “it appears that at least one of the preferred offerors failed to submit a responsive proposal” and, therefore, that incumbent would “ha[ve] no right of preference, under 36 C.F.R. § 51.31, and'hafve] no right to match [the plaintiffl’s proposal. ” AR 1242 (Letter, dated July 3, 2013, from plaintiff to Chief of Concessions, NPS Intermountain Region). NPS disagreed, citing the definition of a “responsive proposal” from 36 C.F.R. § 51.3, AR 1244-45 (Letter, dated July 10, 2013, from Chief of Concessions, NPS Intermountain Region to plaintiffs attorney), and expressing the view that any omitted information in the incumbents’ proposals was “not considered material” and, “the lack of quality and omissions were reflected in lower scores,” AR 1267-68 (Letter, dated July 29, 2013, from Chief of Concessions,, NPS Inter-mountain Region to plaintiff). B. PLAINTIFF’S CHALLENGE BEFORE CFC The plaintiff promptly brought a challenge before the CFC to NPS’s determination that the incumbent concessioners’ proposals were'responsive, claiming that-the incumbent concessioners’ failure to include all information required by the prospectus rendered their proposals not “responsive” within the meaning of the governing NPS regulation at 36 C.F.R. § 51.3, and that NPS acted arbitrarily and capriciously, and breached its implied contractual obligation to consider bids fairly and honestly, by allowing the incumbents to match the better terms proposed in the, plaintiffs bids, despite the incumbents unresponsive proposals. Eco Tour I, 114 Fed.Cl. at 23-24. The plaintiff sought injunctive and declaratory relief in the. form of a remand directing NPS to review its decisions that the incumbents’ proposals were responsive and that the incumbents were entitled to review proprietary information in the plaintiffs proposal in order to match plaintiffs better terms, and also sought reimbursement for the costs incurred in preparing its bids for the disputed contracts, attorneys’ fees, and litigation costs. Id. at 19. On August 19, 2013, the CFC stayed the case “based on NPS’s assertion that the source-selection authority had not rendered final decisions with respéct to the award of the disputed contracts.” Id. at 18 n.8. C. NPS FINDING OF “RESPONSIVE PROPOSALS” BY INCUMBENTS Although the June 20, 2013 NPS letters to the plaintiff and incumbent concession-ers expressly stated that the plaintiff offered the “best proposal” and the incumbents’ proposals/ which omitted specific items required by the' prospectus, were nonetheless “responsive,” only after the CFC had stayed the plaintiffs challenge, did the- NPS take steps to formalize these findings with an explanation. Specifically, on August 30, 2013, the NPS Chief of Concessions, Intermountain Region, recommended that the Acting Director of the Intermountain Region officially find that the plaintiff had submitted the “best proposal” and, while acknowledging that the incumbent concessioners “did not provide all of the information requested in the Prospectus,” that the Acting Director also find “that all [ ] of the proposals [submitted] are responsive.” AR 1273 (Memorandum, dated August 30, 2013, from Chief of Concessions to Acting Director, Inter-mountain Region for Contract 24); AR 1312—51 (same for Contract 32). Regarding Contract 24, the recommendation noted that JHMR’s bid did not contain the requested balance sheet, credit report, or bank statement, AR 1305-06, and had incomplete information as to anticipated purchases, AR 1306. Nevertheless, these omissions were deemed “immaterial” because “the panel was able to evaluate the proposal” without the required documents, AR 1306. Regarding Contract 32, the NPS Chief of Concessions acknowledged that HHE’s bid “did not contain some of the information requested by the [NPS],” since HHE filed incomplete annual financial reports and “ambiguous” current liability information on its balance sheets,” AR 1345, but, similarly to the recommendation for Contract 24, recommended finding that HHE’s omissions or mistakes were immaterial, and therefore HHE’s bid was “responsive.” AR 1345. The Acting Regional Director approved the recommendation, AR 1273 (Memorandum, dated August 30, 2013, from Chief of Concessions to Acting Director, NPS In-termountain Region, bearing acting director’s signature approving proposed responsiveness findings for Contract 24); AR 1313 (same for Contract 32). Following this approval, on September 4, 2013, the Chief of Concessions recommended finding that both incumbents “ha[d] amended [their] proposals] to match the better terms and conditions of the best proposal,” thus requiring that the incumbents be awarded the disputed contracts under § 51.32. AR 1352-59 (Source Selection Memorandum, dated September 4, 2013, from Chief of Concessions to Acting Director, Intermountain Region for Contract 24); AR 1384-1420 (Source Selection Memorandum, dated September 4, 2013, from Chief of Concessions to Acting Director, Intermountain Region for Contract 32). These recommendations were likewise accepted by the Acting Director for the NPS Intermountain region, as reflected by that Acting Director’s signature on the source selection recommendation memo-randa. AR 1353 (Source Selection Memorandum signed by Acting Director for Contract 24); AR 1385 (same for Contract 32). D. THE CFC DECISION The CFC subsequently lifted the stay based on NPS’s notice that, consistent with the August 30 and September 4, 2013 memoranda, the “source-selection authority had [] rendered final decisions with respect to the award of the disputed contracts, [and] on September 4, 2013, decided to award the disputed contracts to the incumbent concessioners.” Eco Tour I, 114 Fed.Cl. at 18. Then, on November 26, 2013, the CFC issued its decision granting judgment in the plaintiffs favor, finding that the incumbents had excluded material information from their initial proposals, which were therefore unresponsive within the meaning of 36 C.F.R. § 51.3, and that the incumbents therefore were ineligible for the opportunity to match the better terms offered by the plaintiff. Id. at 42 n. 18 (noting that sealed version of opinion was issued on November 26, 2013 “direct[ing] the entry of final judgment in favor of plaintiff’ but deferring entry of that judgment pending final disposition of plaintiffs “bid preparation costs”). In particular, the CFC disagreed with the recommendations in the August 30, 2013 memo-randa and instead concluded that “each of the NPS’s materiality determinations, as well as its resulting responsiveness determinations, was arbitrary, capricious, and an abuse of discretion.” Id. at 23; 33-34. Moreover, because the plaintiff had “submitted responsive proposals that received the highest cumulative scores of any of the proposals received by NPS,” the CFC concluded that NPS’s arbitrary and capricious actions were prejudicial since the plaintiff “demonstrated a ‘substantial chance’ that it would have received the disputed contracts if not for the Park Services’ arbitrary and capricious responsiveness determination with regard to the proposals of [the incumbents].” Id. at 43. Although the CFC was clear that the plaintiffs bids were not fairly considered by NPS, the CFC determined that it lacked jurisdiction to provide the equitable and declaratory relief requested by the plaintiff. Id. at 21, 42; see also Eco Tour II, 174 F.Supp.3d at 325-29. Specifically, because the disputed concession contracts were not “procurement contracts” for purposes of the Tucker Act, 28 U.S.C. § 1491, Eco Tour I, 114 Fed.Cl. at 21, the CFC held that, after considering conflicting authority on the issue, it lacked jurisdiction to award the plaintiff equitable relief, and thus the plaintiff could recover at the CFC only the costs incurred for its initial bid. Id. at 41-42. Consequently, the CFC denied the plaintiffs requested remand to the agency because doing so was perceived to “tread[ ] ... into the realm of injunctive relief,” id. at 42. Thereafter, upon consideration of the parties’ stipulation regarding the plaintiffs costs stemming from its unsuccessful bids for the disputed contracts, J. Stip. Re: Money Damages Owed Under December 12, 2013 Op. & Order & J. Request For Entry of J., Eco Tour I, No. 13-cv-532-LJB (Fed. Cl. April 15, 2014), ECF No. 58, the CFC entered judgment, on April 17, 2014, in favor of the plaintiff and awarded $36,250 in bid preparation costs, Judgment, Eco Tour I, No. 13-cv-532-LJB (Fed. Cl. April 17, 2014); see also Eco Tour II, 174 F.Supp.3d at 322-23. E. PLAINTIFF’S NON-LITIGATION EFFORTS TO OBTAIN REVIEW OF DISPUTED CONTRACTS AWARDS After the CFC’s judgment was entered, but before the disputed concession contracts with the incumbent concessioners were executed, the plaintiff engaged in multiple steps short of expensive litigation to remedy the denial of the contracts to the plaintiff. Pl.’s Mot. Ex. A, Second Decl. of Taylor Phillips, plaintiffs President and owner, dated May 30, 2016 (“Phillips Second Decl.”) ¶ 14, ECF 24-1 (stating that plaintiff “was unable to afford the expense of further litigation against the federal government” after the CFC ruling “due in large part to the very illegal action at issue in this matter”). These steps included try-tag to enlist the assistance of the Wyoming congressional delegation, which efforts prompted congressional inquiries requiring NPS to explain its actions. See, e.g., AR 00012-14 (Letters, dated June 20, 2014, from Regional Director, NPS Intermoun-tain Region to Wyoming Congresswoman Cynthia Lummis and Wyoming Senators John Barrasso and Michael B. Enzi, summarizing “the decisions the [NPS] has made related to” plaintiff). The plaintiff also attempted “extensive and lengthy efforts to persuade NPS to comply with the law”. Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”), at 9, ECF No. 24. On June 20, 2014, NPS rejected the plaintiffs proposal “to forego payment” on the CFC judgment “in exchange for a contract,” indicating that “this is not possible as the [CFC] entered judgment against the United States.” AR 00011 (Letter, dated June 20, 2014, from Regional Director, NPS Intermountain Region to plaintiffs President). NPS further stated its plan, having “carefully considered all possible resolutions,” to “fully comply with the [CFC’s] decision and pay your bid preparation costs and a negotiated amount for your attorney fee.” Id. While acknowledging that plaintiff was “very passionate about this matter and [was] disappointed with the outcome,” the agency offered, apparently by way of consolation, that “the [CFC] ’s decision has resulted in policy changes to strengthen proposal requirements and evaluation procedures.” Id. Explanation of the specific “policy changes” that NPS has adopted are not entirely clear from the record. NPS informed the Wyoming congressional delegation by letter sent that same day, that though “NPS did not always consider an offeror’s failure to produce'one of many financial documents requested in the prospectus as a material failure that would render the proposal unresponsive, .,. [i]n the future, NPS may be required to determine an offer ineligible for consideration if the of-feror fails to provide-all financial information required by the prospectus.” AR 00012-14 (Letters from- Regional Director, NPS Intermountain Region to the Wyoming congressional delegation). Less than a month later, on July 16, 2014, NPS executed Contract 24 and Contract 32 with JHMR and HHE; respectively. AR 00022, 00056. F. THE INSTANT LAWSUIT After “locat[ing] counsel who would agree to take [the case] on a pro bono basis because it, could not afford additional litigation,” Pl.’s,Opp’n to Defs.’ Cross-Mot. and Reply to Defs.’ Opp’n to Pl.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 40, ECF No. 28, the plaintiff filed the instant action, alleging that NPS violated the APA by misinterpreting and misapplying its own regulations, Compl. ¶¶ 47-51, despite the “clear and unequivocal terms of the regulations which apply” and the CFC’s “clear finding that NPS’s conduct was illegal,” id. ¶¶ 2, 4. Given the CFC’s view that it lacked authority to issue injunctive relief in the form of rescission of the disputed contracts, the plaintiff seeks injunctive -and declaratory relief in this Court. Id. ¶¶ 4-6 (seeking “an order ,., declaring that the two contracts awarded to NPS’s longtime incumbent contractors are illegal and thus void[, as well as] an injunction requiring the defendants to ... award the two contracts to Eco Tour for their full-10-year terms.”). NPS initially moved to dismiss the plaintiffs complaint for lack of standing and for failure to state a claim, contending that the plaintiff should be precluded from pursuing equitable and declaratory relief having already “voluntarily elected to receive reimbursement of its bid preparation costs -in resolving its earlier claim” and having elected to pursue relief in the CFC when an injunction was available in district court. Eco Tour II, 174 F.Supp.3d at 332-33. This Court rejected these arguments, finding “no substantial inconsistency between the monetary award the plaintiff voluntarily accepted in connection with its earlier action before the CFC and the plaintiffs present request 'for injunctive and declaratory relief in this Court.” Id. at 335. Contrary to NPS’s claim that the plaintiff would receive a windfall if granted the award of the concession contracts after having received its bid costs, the Court held that “to the extent deemed necessary!,] any contracts awarded under this action could address any prior partial relief received by Eco Tour.” Id. (internal quotation marks omitted). Moreover, the Court pointed out the obvious flaw in NPS’s position that the plaintiff “elected” to pursue monétary relief before the CFC rather than injunctive relief, noting that “NPS had not yet finalized its decision to award the disputed contracts to the incumbent concessioners .., during the pen-dency of the proceedings before the CFC” and, thus, the plaintiff could not have sought an injunction at that time. Id. at 334. Further, “even assuming such relief was available at the time Eco Tour initially filed suit in the CFC,” the Supreme Court, in a related context, had held “that parties bringing claims against the federal government may separately seek monetary and injunctive relief in sequential actions before the CFC and the district courts.” Id. at 334-35 (citing United States v. Tohono O'Odham Nation, 563 U.S. 307, 318, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011)). Although “the defendants may yet demonstrate that -the plaintiff is not entitled to relief under the APA,” the Court concluded that the relief available to the plaintiff from the CFC was not complete relief, and thus the plaintiff is not “barred entirely from seeking complete relief for the defendants’ allegedly arbitrary and capricious actions,” Id. at 336. The parties’ cross motions for summary judgment are now ripe for review. II. LEGAL STANDARDS A. SUMMARY, JUDGMENT STANDARD UNDER FEDERAL RULE OF CIVIL PROCEDURE 56 Pursuant to Federal Rule of Civil Procedure 56, summary judgmenfmay be granted when the court finds “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (e)(3); see Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The first'part of the Rule 56 summary judgment standard regarding the absence of disputed material facts, however, is irrelevant in APA cases since “ ‘the district judge sits as an appellate tribunal’” and “[t]he entire case on review is- a question of law.’ ” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083-84 (D.C. Cir. 2001). As such, “the1 complaint, properly read, actually presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action.” Id. (quoting Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993)). Consequently, “[generally speaking, district courts reviewing agency action under the APA’s arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions.” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 171 (D.C. Cir. 2013) (noting, in APA cases, that “determining the facts is generally the agency’s responsibility, not ours”). Judicial review is limited to the administrative record, since “[i]t is black-letter administrative law that in an [APA] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal quotation marks omitted); see 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party .... ”); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (noting, when applying arbitrary and capricious standard under the APA, “‘[t]he focal point for judicial review should be the administrative record already in existence (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973))); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (noting “review is to be based on the full administrative record that was before the [agency] at the time” of the challenged decision). B. STANDARD OF REVIEW UNDER THE APA An agency action, finding or conclusion challenged under the APA must be set aside upon finding that it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). When a challenged agency action is based on the application or operation of a regulation, the agency’s interpretation of its own ambiguous regulation is generally given substantial judicial deference. See Auer v. Robbins, 519 U.S. 452, 463, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Drake v. F.A.A., 291 F.3d 59, 68 (D.C. Cir. 2002). Given the deference owed to agency’s interpretation of its own ambiguous regulation, a plaintiff challenging this interpretation carries a “heavy burden in advancing [that] claim.” In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig.—MDL No. 1993, 709 F.3d 1, 11 (D.C. Cir. 2013). This general rule on deference has limits, however, and is unwarranted when, for example, the agency’s “interpretation is ‘plainly erroneous or inconsistent with the regulation.’ ” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 133 S.Ct. 1326, 1337, 185 L.Ed.2d 447 (2013) (quoting Chase Bank USA, N. A. v. McCoy, 562 U.S. 195, 131 S.Ct. 871, 880, 178 L.Ed.2d 716 (2011)); see also Christopher v. Smith-Kline Beecham Corp., 567 U.S. 142, 132 S.Ct. 2156, 2166, 183 L.Ed.2d 153 (2012); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (“[W]e must defer to the [agency]’s interpretation unless an ‘alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation.”) (internal quotation marks omitted). An agency interpretation that conflicts with an unambiguous regulation is “substantively invalid” because “to defer in such a case would allow the agency ‘to create de facto a new regulation.’” Perez v. Mortg. Bankers Ass’n, — U.S. -, 135 S.Ct. 1199, 1208, 191 L.Ed.2d 186 (2015)(quoting Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)); see Huerta v. Ducote, 792 F.3d 144, 153 (D.C. Cir. 2015)(noting that agency action “unhinged from the regulation’s plain text” is not entitled to deference). Likewise, deference need not be accorded to the agency’s interpretation that “does not reflect the agency’s fair and considered judgment on the matter in question,” Auer, 519 U.S. at 462, 117 S.Ct. 905, such as when the agency’s interpretation is “unreasonable,” Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d 319, 343 (D.C. Cir. 2011), or ‘“when it appears that the interpretation is nothing more than a convenient litigating position, or a post hoc rationalization advanced by an agency seeking to defend past agency action against attack,’ ” Rhea Lana, Inc. v. DOL, 824 F.3d 1023, 1030-1031 (D.C. Cir. 2016)(quoting Christopher, 132 S.Ct. at 2166)). Finally, although an agency may amend or repeal its own regulations and is entitled to deference in interpreting ambiguous regulations, “an agency is not free to ignore or violate its regulations while they remain in effect.” Nat’l Envtl. Dev. Ass’ns Clean Air Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014) (quoting U.S. Lines, Inc. v. Fed. Mar. Comm’n, 584 F.2d 519, 526 n.20 (D.C. Cir. 1978)); see also Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003) (“Federal agencies must follow their own rules, even gratuitous procedural rules that limit otherwise discretionary actions.”). As a result, an agency’s action is “arbitrary and capricious if the agency fails to ‘comply with its own regulations.’ ” Nat’l Envtl. Dev. Ass’ns Clean Air Project v. EPA, 752 F.3d at 1009 (quoting Environmentel, LLC v. FCC, 661 F.3d 80, 85 (D.C. Cir. 2011)). III. DISCUSSION The plaintiff argues that NPS’s decision to award the contracts to the incumbent concessioners was “directly contrary to explicit law” and that “NPS’s own regulations very clearly required NPS to award the two contracts to Eco Tour because [it] had submitted the best proposal.” Pl.’s Mem. at 1. As relief, the plaintiff urges the Court to enter a declaratory judgment that “NPS violated the law, acted arbitrarily and capriciously and abused its discretion in awarding the contracts at issue to” the incumbent concessioners, Compl. at 27 (Prayer For Relief), and to grant injunc-tive relief by rescinding the contracts as “void as a matter of law,” and “directing NPS to comply with its obligations ... and award the contracts at issue to” plaintiff, id. NPS counters that, under applicable regulations, the agency was “lawfully” permitted to “issue the contracts to the incumbent concessioners pursuant to the September 4, 2013 award decision.” Defs.’ Mem. Supp. Cross-Mot. Summ. J. & Opp’n Pl.’s Mot. Summ. J (“Defs.’ Opp’n”) at 30-31, ECF No. 27-1. NPS further argues that, even if this Court rejects the agency’s reading of its own regulations and finds that the final award of the disputed contracts to the incumbent concessioners was arbitrary and capricious, the plaintiff should still be denied equitable relief. The NPS reasons, in a rehash of its unsuccessful motion to dismiss, that the plaintiff has already elected monetary damages as its remedy and, consequently, has no entitlement to injunctive relief. Id. at 16-17, 30-31. Analysis of the parties’ cross motions for summary judgment begins with the plaintiffs APA challenge to NPS’s final award of the disputed contracts, and the NPS’s request to reconsider the denial of its prior motion to dismiss. The Court finds, consistent with the holding of the CFC, that NPS violated the APA in awarding the disputed contracts to the incumbent con-cessioners and, further, that NPS’s request for reconsideration is without merit. The plaintiffs entitlement to injunctive relief, however, raises significant issues neither raised nor addressed by the parties about whether the incumbent concession-ers are required parties, under Federal Rule of Civil Procedure 19, for the purposes of fashioning appropriate equitable relief. A. PERMITTING AMENDMENT TO INCUMBENT CONCESSION-ERS’ BIDS WAS ARBITRARY AND CAPRICIOUS The parties agree that the CFC’s holding regarding the non-responsiveness of the incumbents’ bid proposals is binding. Pl.’s Mem. at 12 (noting that “ruling by the CFC that the incumbents’ proposals were non-responsive has res judicata effect and NPS is collaterally estopped from trying to now re-litigate this exact same issue.”); Defs.’ Opp’n at 18 (“Defendants acknowledge .that Eco Tour has prevailed on the merits of the claim it litigated before the CFC that NPS erred in treating as responsive the initial bids of the incumbent concessioners.”). The issue before this Court is the parties’ dispute whether, notwithstanding the CFC holding, the NPS’s award to the incumbent concessioners- of the disputed contracts complied with applicable, regulations.. The plaintiff contends that these regulations barred the NPS from awarding the disputed contracts to the incumbent concessioners because “NPS cannot award the contracts to offer-ors who submitted non-responsive proposals.” Pl.’s Mem. at 11, 15-17. By contrast, NPS argues that “the plaintiffs interpretation of [the] regulations ... is not reasonable and certainly is not the only permissible interpretation of that regulation.” Defs.’ Reply Supp. Cross-Mot. Summ. J. (“Defs.’ Reply”) at 7, ECF No. 31. According to NPS, the agency was “required to award the contracts to the incumbent con-cessioners because they timely submitted amended proposals and their amended proposals matched the terms of [the plaintiff]’s offer.” Defs.’ Opp’n at 21 (citing 36 C.F.R. § 51.32) (emphasis added). Thus; the legality under the APA of NPS’s actions in awarding the disputed contracts to the incumbents turns on whether the agency properly applied governing statutory provisions and its own regulations to permit the incumbent con-cessioners to amend their bid proposals in two ways: to make those proposals responsive and to match the plaintiffs better offer, rather than rejecting the non-responsive proposals. Review of the relevant regulatory framework makes clear that NPS’s reading of the governing statute and its own regulations is untenable. 1. Overview of Relevant Statutes and NPS Regulations NPS’s solicitation of concession contracts is controlled by statute and in more fully articulated regulations. While NPS does not rely on the statute to explain its bidding process, the pertinent statutory language helps illuminate the plain meaning of the agency’s regulations. At the time of the events at issue, the National Park Service Concessions Management Act of 1998 required the Secretary to use a competitive selection process, which included the public solicitation of proposals meeting the requirements of a published prospectus, to identify the best concession proposal. 16 U.S.C. § 5952(1), (2). Under the Act, the minimum terms for the concession contract must be set out in the prospectus, along with other pertinent information such as the selection factors. Id. § 5952(3). The consequence of failing to meet the terms of the prospectus is clear, with the agency instructed that “[n]o proposal shall be considered which fails to meet the minimum requirements as determined by the Secretary,” id. § 5952(4)(A), and, similarly,-requiring the Secretary to “reject any proposal, regardless of -the franchise fee offered” that “is not responsive to the objectives of protecting and preserving resources of the unit of the National Park System and of providing necessary and appropriate facilities and services to the public at reasonable rates,” id. § 5952(4)(B). Further, the Secretary is barred from “exeeut[ing] a' concessions contract which materially amends or does not incorporate the proposed terms and conditions of the concessions contract as set forth in the applicable prospectus,” and if such material .amendments--“are considered appropriate,” the Secretary must “re-solicit offers for the concessions contract incorporating such material amendments or changes,” id. § 5952(4)(D). The Act plainly disfavors giving preferential renewal right to incumbents, providing that' “the Secretary shall not 'grant a concessioner a preferential right to renew a concessions contract, or any other form of preference to a concessions contract,” except for narrowly defined types of contracts in specified- circumstances. Id. § 5952(7)(A). For incumbent concession contract holders, the Secretary may grant a right of renewal only if the incumbent has “operated satisfactorily ¡during the term of the contract” and “submitted a responsive proposal for a proposed new contract which satisfies the minimum requirements established by the Secretary,” id. § 5952(8)(C). This preferential right of renewal “shall allow a concessioner ... the opportunity to match the terms and conditions of any -competing proposal which the Secretary determines to be the best proposal ....” Id. § 6962(7)(C). Consistent with the statute, NPS regulations require “a public solicitation process” for a concession contract, which process “begins with the issuance of a prospectus that invite[s] the general public to submit proposals for the contract.” 36 C.F.R. § 51.4(a). The prospectus must include, among- other things, “the minimum requirements of the. concession contract,” and “a statement identifying each principal selection- factor for .proposals ... and secondary factors ... and the weight and relative importance of the [factors] in the selection decisions.” Id. § 51.5(a). By. the time the prospectus is issued, the director is also required to have identified incumbent concessioners who are “preferred of-ferors,” which status allows them to exercise a right of renewal if certain conditions are met. Id. § 51.28 (“[T]he director will determine whether a concessioner is a preferred offeror in accordance with this part no later than the date of issuance of a prospectus for the applicable new concession contract.”). On expiration of the specified period to submit proposals,. NPS “applies] the selection factors” to the proposals received “by assessing each timely proposal under each of the selection factors ... and ... assigning] a score- that reflects the determined merits of the-proposal.” Id. § 51.16. Following evaluation and scoring of the. proposals, “the responsive proposal with the highest cumulative point score will be selected by the Director as the best proposal.” Id. § 51.16. The “concession contract will be awarded to the offeror submitting the best- responsive proposal.” Id. § 51.31. Importantly, the language of § 51.31 limits award of a contract to a “responsive” proposal, which is defined in the regulations as “a timely submitted proposal ... [that] agree[s] to all the minimum requirements of the proposed concession contract and prospectus and [that] providefs] the information required by the prospectus.” Id. § 51.3. The determination of whether a proposal is responsive must be made “[p]rior to or as of the date of the selection of the best proposal.” Id. § 51.13. The regulations are absolutely clear that the Director “must reject any proposal received” that “is not a responsive proposal.” Id. § 51.18. Generally, “[a]n offeror may not amend or supplement a proposal after the submission date.” Id. § 51.15. Limited amendment to a bid proposal is permitted in only two circumstances. First, an amendment to a bid proposal after expiration of the proposal period is permitted when there has been “a general failure of offerors to understand particular requirements of a prospectus or a general failure of offerors to submit particular information required by a prospectus.” Id. In that circumstance, the Director may permit amendment “limited to modifying particular aspects of proposals” with the noted deficiencies so long as “the Director provides all offerors that submitted proposals a similar opportunity to amend or supplement their proposals.” Id. Second, an amendment to a bid proposal is permitted after expiration of the proposal period when “a proposal other than the responsive proposal submitted by a preferred offeror is the best proposal submitted for a qualified concession contract.” Id. § 51.32. In this second circumstance, the Director must “give the preferred of-feror an opportunity to match the terms of the better offer.” Id. This “opportunity,” however, is restricted to a preferred offer- or, which “must submit a responsive proposal ... if the preferred offeror wishes to exercise a right of preference.” Id. § 51.30. Thus, the preferential right to. match a better offer is dependent on submission of a “responsive proposal,” a criterion further emphasized in yet another regulation, stating that “[i]f a preferred offeror fails to submit a responsive proposal, the offeror may not exercise a right of preference.” Id. § 51.31. Outside of these two limited circumstances, the relevant regulations do not permit amendments to proposals after expiration of the specified period for bid submissions. Id. § 51.15. In sum, these straightforward regulations make clear that, absent a circumstance in which no offerors have submitted a responsive proposal or in which the incumbent concessioner has submitted a responsive proposal not deemed the “best,” NPS is precluded from permitting amendment of bids after the submission period has expired. Id. § 51.15. Both the governing statute and regulations require that NPS reject non-responsive proposals, which also are ineligible for any preferential right of renewal. 2. NPS Violated Both the Governing Statute and Regulations The CFC, in its thorough analysis, concluded that both incumbent concessioners’ bids were non-responsive, while rejecting NPS’s argument that “[the plaintifffs proposal suffered from the same defect, and should likewise be rejected as non-responsive.” Eco Tour I, 114 Fed.Cl. at 29-33. Due to the CFC’s ruling, NPS concedes error in its August 30, 2013 decision deeming the incumbents’ initial bid proposals responsive. Defs.’ Opp’n at 30. Given that the incumbent concessioners’ initial proposals were not responsive, NPS was required to reject the proposals. See 16 U.S.C. § 5952(4)(B); 36 C.F.R. § 51.18. Furthermore, NPS regulations prohibited the incumbent concessioners from amending their proposals after expiration of the proposal period, see 36 C.F.R. §§ 51.15, 51.32, and due to their non-responsive proposals, the incumbents were not entitled to a preferential right of renewal or the opportunity to amend their bids to meet the better offer. 16 U.S.C. § 5952(8)(C)(ii). Indeed, NPS makes no effort to justify permitting .such amendment based on a “general failure” of the bidders to submit responsive applications, as outlined in § 51.15, since the plaintiff submitted responsive proposals for Contracts 24 and 32. As for permitting the incumbents to exercise a right of preference and amend their proposals under § 51.32, the incumbents were not eligible to exercise any right of preference because their proposals were not responsive in the first instance. Despite NPS’s argument that “the Court should defer to the agency’s interpretation of’ its own regulations, Defs.’ Reply at 9-10, such deference is owed only when the regulation at issue is ambiguous, Decker, 133 S.Ct. at 1337. These regulations are clear. NPS nonetheless urges that § 51.32 should be read to permit incumbents to amend their proposals to make them responsive to a prospectus. Defs.’ Opp’n at 16; see also id. at 21 (citing § 51.32 as “requiring]” NPS “to award the contracts to the incumbent concessioners because they timely submitted amended proposals and their amended proposals matched the terms of Eco Tour’s offer.”). As support, NPS cites the second sentence of this regulation, which “provides that ‘[i]f the preferred offeror duly amends its proposal within the time period allowed by the Director, and the Director determines that the amended proposal matches the better terms and conditions of the best proposal, then the Director must select the preferred offeror for an award of the contract upon the amended terms and conditions, subject to other applicable requirements of this part.’ ” Id. (quoting § 51.32). NPS not only fails to address the overall restriction in the last clause of the sentence referring to “other applicable requirements of this part,” which constrains its reading of § 51.32, but also fails to address the immediately preceding sentence of this same subsection, which expressly limits the scope of the second sentence by restricting preferred offerors eligible to take advantage of the right of preference to those that have already submitted a responsive proposal. Specifically, the first sentence of § 51.32 states: “If the Director determines that a proposal other than the responsive proposal submitted by a preferred offeror is the best proposal submitted for a qualified concession contract, then the director must advise the preferred offeror of the better terms and conditions of the best proposal and permit the preferred offer- or to amend its proposal to match them.” § 51.32 (emphasis added). The text of § 51.32 is unambiguous and cannot support NPS’s interpretation of the regulation. The first sentence of the regulation clearly limits the scope of § 51.32 to “responsive proposals] submitted by a preferred offeror,” and also limits amendments permitted by the right of preference to matching “the better terms and conditions of the best proposal.” Neither of those conditions were met here. First, the initial offers submitted by the incumbent concessioners were non-responsive and thus do not constitute a “responsive proposal submitted by a preferred offeror” under § 51.32. Second, the amendments NPS attempts to justify under this subsection were not limited to matching the better terms of the plaintiffs offer, but include amendments to make the incumbent concessioners’ proposals responsive. By permitting such amendments to be made by the incumbent concessioners, NPS violated the unambiguous language of the relevant regulations, rendering this décision arbitrary and capricious. See Nat’l Envtl. Dev. Ass’ns, 752 F.3d at 1009 (holding an agency’s action is “arbitrary and capricious if the agency fails to ‘comply with its own regulations’ ” (quoting Environmentel, LLC, 661 F.3d at 85)). Thus, even if § 51.32 were “the relevant regulation governing the contract award to the incumbent concessioners,” Defs.’ Opp’n at 21, as NPS contends, this regulation does not sanction the agency’s action. Indeed, adoption of NPS’s proposed reading of these regulations would make §§ 51.30 and 51.31 superfluous, If the regulations authorized the' Director to allow incumbent concessioners to amend non-responsive proposals in order to exercise a right of preference, then § 51.31, which prohibits “a preferred offeror [who] fails to submit a responsive proposal” from “exercising] a right of preference,” would have no purpose because a preferred offeror could, always amend a proposal to make it responsive. The same reading would obviate the pre-requisite in.§ 51.30 that “[a] preferred offeror must submit a responsive proposal pursuant to the terms of an applicable prospectus for a qualified concession contract if the preferred offeror wishes to exercise a right of preference,” since the same offeror could simply amend its proposal at any time to meet the terms of the prospectus. In sum,- after the CFG found the incumbents’ proposals to be non-responsive, NPS persisted on the path of awarding the disputed contracts to "the incumbent con-cessioners, even though these awards were barred under relevant statutory provisions and regulations requiring rejection of the incumbents’ proposals. NPS’s decision to make final awards of the disputed' contracts to the incumbents was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 3. NPS’s Award of Disputed Contracts Had No “Reasonable” Basis Even if the agency’s actions were prohibited by statute and its own regulations, NPS has a fallback position: the agency “had a reasonable basis to proceed with the award of- the contracts to the incumbents following the outcome of the CFC litigation when Eco Tom" accepted its bid preparation costs as a remedy for the erroneous responsiveness determination and when the CFC left undisturbed the September 4, 2013 award decision,” Defs.’ Opp’n at 20-21. In this “unique set of circumstances,” id. at 21, NPS suggests that no regulation, including § 51.32, “expressly govern[s],” id.; see also Defs.’ Reply at 9 (arguing that the regulations “do[ ] not contemplate the situation' presented here”), and, thus, to avoid “the windfall that Eco Tour would obtain if it received the contracts in addition to its bid preparation costs,” Defs.’ Opp’n at 21, “NPS had a rational basis to thereafter proceed pursuant to the September 4, 2013 award determination” and “did not clearly violate any concession contracting procedure by proceeding in this manner,” id. This convoluted argument is without merit for several reasons. First, as a threshold matter, and most notably, the predicate for this argument— namely, that “the CFC left undisturbed the September 4, 2013 award decision,” Defs.’ Opp’n at 21—is plainly wrong. This argument, which is repeated throughout NPS’s briefing, id. at 3, 13, 23-24, 30, 31; Defs.’ Reply at 2, 3, fails because, as the plaintiff correctly points out, “the CFC decision in Ego Tout I completely eviscerated the fundamental and legal basis for NPS’s September 4, 2013 selection decision.” Pl.’s Opp’n at 10. To review, the September 4, 2013 decision to award the contracts to the incumbents based on their amended bids rested on the August 30, 2013 decision’s critical finding the incumbents’ initial proposals responsive, and therefore eligible for amendments designed to match the terms of the better offer. AR 1352, 1384 (Source Selection Memoranda, citing both August 30, 2013 determination of incumbents’ “responsive proposals]” and June 20, 2013 letter citing terms of “better offer”). Indeed, the CFC stayed its proceedings, at NPS’s request, until the agency made its final selection , of concessioners, and then considered the plaintiffs challenge on an expedited schedule before the disputed contracts were executed, to hold that “NPS violated applicable law, acted arbitrarily and capriciously, and abused its discretion in concluding that incumbent concessioners ... submitted proposals that were ‘responsive’ to the requirements of the prospectus' and in allowing them to match the better terms of Eco Tour’s proposals for the disputed contracts.” Eco Tout I, at 11. Thus, the specific reasons justifying the September 4, 2013 selection decision—that the incumbents submitted responsive proposals and exploited the opportunity to match the plaintiffs better terms—were found to be illegal. The CFC further found that “there is a substantial chance that Eco Tour would have been awarded the disputed contracts if not for the errors alleged in the amended complaint.” Id. at 33, 44. This CFC decision .narrowly constrained NPS’s next actions: -under the mandates of the applicable statute and regulations, at a minimum, NPS was required to reject the incumbents’ proposals. See 16 U.S.C. § 5952(8)(B)(iii) (“The Secretary shall reject any proposal, regardless of the franchise fee offered, if the Secretary determines that ... the proposal is not responsive... ’’(emphasis added)); 36 C.F.R. § 51.31 (requiring rejection .of incumbent’s non-responsive proposal). Instead, NPS proceeded to execute the disputed contracts with the incumbents, notwithstanding that those contracts were predicated on a series of statutory and regulatory violations. Second, NPS’s contention that its regulations should somehow be deemed ambiguous and the disputed contract awards “rational” in the unique circumstances presented in this case is without merit. The governing statute and NPS regulations apply to situations, as here, where an incumbent concessioner has submitted a bid for a concession contract, and explicitly addresses what must happen when the bid is either responsive or non-responsive. When an incumbent has submitted a non-responsive bid, that bid must be rejected. See 36 C.F.R. § 51.31. The fact that the regulations do not discuss what happens when a non-incumbent bidder has received some judicial relief is irrelevant: NPS remains bound by the regulation requiring rejection of a non-responsive proposal from any bidder, including incumbent concessioners. In other words, the purportedly unique circumstance presented in this case is merely that the CFC, rather than NPS, found the incumbents’ proposals to be non-responsive. This finding, at a minimum, should have sent NPS back to the proverbial drawing board with a new solicitation of bids, rather than proceeding apace to execute the disputed contracts. The fact that the CFC also held that the plaintiff was prejudiced and entitled to at least monetary relief-several months before NPS actually executed the disputed contracts—is unrelated to the regulatory bar on the agency’s consideration of non-responsive bids for concession contracts. See Pl.’s Opp’n at 12 (noting “even if Eco Tour had elected a remedy and was powerless to stop NPS from awarding the contracts,” this was “no excuse for NPS proceeding to award the contracts to its incumbents because ... the law still prohibited any such award.”). Finally, NPS’s argument that its decision to award the disputed contracts to the incumbents was based on the fact that “Eco Tour accepted its bid preparation costs as a remedy for the erroneous responsiveness determination,” is unconvincing. Defs.’ Opp’n at 20-21. As the plaintiff correctly points out, “even if Eco Tour had elected a remedy, that action by Eco Tour could not possibly have converted the preferred incumbents’ non-responsive proposals into responsive proposals, which they had to be in order for NPS to legally award the contracts to the incumbents under the applicable regulations.” Pl.’s Opp’n at 2. NPS does not directly address this cogent position, but instead reasons that when the plaintiff accepted reimbursement of costs incurred for its unsuccessful bids for Contracts 24 and 32, not only had the plaintiff elected a remedy “upon which NPS could justifiably rely,” but also “any error in the process had been remedied in accordance with the ruling of the CFC.” Defs.’ Opp’n at 31. As a result, in NPS’s view, the agency “was required to award the contracts to the incumbent concession-ers because they timely submitted amended proposals.” Id. at 21. NPS’s reasoning essentially asserts, in a different guise, the same election-of-remedies defense previously rejected by this Court in denying the agency’s motion to dismiss. See infra Part III.B. Among the flaws in this reasoning is that the plaintiff actually sought, as complete relief before the CFC, injunctive relief in the form of a remand for NPS to correct its responsiveness finding about the incumbents’ proposals, Eco Tout I, 114 Fed.Cl. at 42, but the CFC agreed with the argument presented by NPS “that the court lacks authority to grant Eco Tour’s requested injunctive and declaratory relief ‘because 28 U.S.C. § 1491(b) does not apply to concession contracts, and 28 U.S.C. § 1491(a) provides for only monetary relief,’ ” Eco Tour I, at 39-40, (quoting from defendants’ briefing before CFC). Consequently, the plaintiff was “precluded from obtaining in-junctive and declaratory relief,” id. at 42, and “limited to an award of damages in the form of bid preparation costs,” id. at 40. The CFC’s correction of the NPS’s erroneous treatment of the incumbents’ proposals triggered the statutory and regulatory requirement of rejection of those proposals and presented NPS with two alternatives: either award of the contracts to plaintiff, as the best offeror, or re-solicitation of bid proposals. See Pl.’s Opp’n at 11 n.2 (noting that “[a]s a result of the CPC’s decision, NPS had two legal options going forward: (1) award the contracts to Eco Tour; or (2) cancel the solicitation.”). In any event, nothing in the CFC decision intimates that the errors in the bidding process were cured by reimbursement of the plaintiffs costs; rather, this remedy simply addressed, at least partially, the prejudicial harm to the plaintiff “resulting from [NPS’s] arbitrary and capricious action.” Eco Tour I, 114 Fed.Cl. at 43. Although the CFC was silent about the next steps that NPS was required to take to remedy the agency’s errors in considering the incumbents’ non-responsive proposals and allowing amendments to make the proposals responsive and to match the better offer, as discussed above, the applicable statute and regulations made clear that these proposals were ineligible for final awards. In short, any reliance by NPS on the plaintiffs acceptance of a monetary award as curing any of its errors during the bid process was entirely misplaced. Finally, NPS’s argument still makes little sense given the chronology of events. NPS insists that the “final decision” to award the disputed contracts to the incumbent concessioners was made on September 4, 2013. Defs.’ Opp’n at 23-24. Since the plaintiff was not adjudged entitled to reimbursement of its costs until after that date, in November 2013, and was not actually reimbursed until even later, in the final judgment entered in April 2014