Mitchco International, Inc. v. United States ( 2022 )

Case: 21-1556 Document: 76 Page: 1 Filed: 03/03/2022
United States Court of Appeals
for the Federal Circuit
______________________
MITCHCO INTERNATIONAL, INC.,
Plaintiff-Appellant
v.
UNITED STATES, KENTUCKY OFFICE OF
VOCATIONAL REHABILITATION, SOUTHERN
FOODSERVICE MANAGEMENT, INC.,
Defendants-Appellees
______________________
2021-1556
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00879-EGB, Senior Judge Eric G. Bruggink.
______________________
Decided: March 3, 2022
______________________
ALAN GRAYSON, Orlando, FL, argued for plaintiff-ap-
pellant.
RICHARD PAUL SCHROEDER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee
United States. Also represented by BRIAN M. BOYNTON,
MARTIN F. HOCKEY, JR., DOUGLAS K. MICKLE.
ANDREW J. SCHUMACHER, Winstead, P.C., Austin, TX,
argued for defendant-appellee Kentucky Office of
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2 MITCHCO INTERNATIONAL, INC. v. US
Vocational Rehabilitation. Also represented by PETER
ANDREW NOLAN.
WALTER BRAD ENGLISH, Maynard, Cooper & Gale, PC,
Huntsville, AL, for defendant-appellee Southern FoodSer-
vice Management, Inc. Also represented by EMILY J.
CHANCEY, JON DAVIDSON LEVIN, JOHN ANDREW WATSON,
III.
______________________
Before MOORE, Chief Judge, DYK and CUNNINGHAM,
Circuit Judges.
DYK, Circuit Judge.
Mitchco International, Inc. (“Mitchco”) appeals a Court
of Federal Claims decision in a post-award bid protest
denying Mitchco’s motion for judgment on the administra-
tive record and granting the government’s and other de-
fendants’ cross-motions for summary judgment. See
Mitchco Int’l, Inc. v. United States, 151 Fed. Cl. 537 (2020).
We affirm.
BACKGROUND
I
In 2019, the government solicited bids for the provision
of food and dining room operation services at the U.S. Army
base located at Ft. Knox, Kentucky. The government
awarded the contract to the Kentucky Office of Vocational
Rehabilitation (“KOVR”). The award is challenged by
Mitchco. Mitchco had previously been the subcontractor to
KOVR and its predecessor under a contract awarded in
2015 (Solicitation No. W9124D-15-D-0026). That contract
was scheduled to expire in November 2019. On October 29,
2019, the Army issued the solicitation at issue here (Solic-
itation No. W9124J-19-R-0018) for a follow-on contract (the
“solicitation”).
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MITCHCO INTERNATIONAL, INC. v. US 3
The solicitation called for a single, firm-fixed price, in-
definite delivery, indefinite quantity contract to be
awarded to the responsible offeror who represented the
best value to the government. The solicitation required
management of dining facility functions, including “food re-
ceiving and storage, food preparation, food serving, remote
site feeding, grab n go (Pre-packaged Meals) and facility
sanitation duties.” J.A. 1000472. It called for a five-year
ordering period, with a six-month extension option pursu-
ant to Federal Acquisition Regulation (“FAR”) 52.217-8.
The agency designated the contract as set aside for small
businesses. The contract was also subject to the Randolph-
Sheppard Act of 1936 (the “RSA” or “R-SA”), which pro-
vides that “[i]n authorizing the operation of vending facili-
ties on Federal property, priority shall be given to blind
persons licensed by a State agency [(or ‘SLA’)].” 20 U.S.C.
§ 107(b). 1 Pursuant to the RSA, the solicitation advised
that priority would “be given to the State Licensing Agency
(‘SLA’)” if “the SLA [wa]s determined to be in the Compet-
itive Range.” J.A. 1000747.
KOVR, the Kentucky SLA, submitted a proposal, with
Southern Foodservice Management, Inc. (“Southern”) as
its proposed subcontractor, replacing Mitchco. Mitchco and
three other companies also submitted proposals. Of the
five proposals received, the Army determined that three
were eligible for award: KOVR, Mitchco, and a third com-
pany called Prosperitus Solutions. All three were deter-
mined to be in the competitive range (based on technical
acceptability). On January 6, 2020, the Army informed
1 Vending facilities under the RSA include cafeterias
on military bases like Ft. Knox. See § 107e(7); Kansas ex
rel. Kan. Dep’t for Child. & Fams. v. SourceAmerica, 874
F.3d 1226, 1231 (10th Cir. 2017) (citing Kentucky v. United
States ex rel. Hagel, 759 F.3d 588, 592 (6th Cir. 2014)).
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4 MITCHCO INTERNATIONAL, INC. v. US
Mitchco that although it was in the competitive range, as
the SLA, KOVR would receive priority under the RSA. Af-
ter KOVR, Mitchco had the lowest-priced technically-ac-
ceptable offer. The Army awarded the contract to KOVR
on February 10, 2020.
II
On February 13, 2020, Mitchco filed a small business
size protest with the Army, challenging the award of the
contract to KOVR on the grounds that KOVR was not a
“small business concern,” and therefore was not eligible to
receive the award. On March 13, 2020, the Small Business
Administration (“SBA”) determined that KOVR was “other
than a small business concern for the applicable size stand-
ard,” J.A. 1003538, but did not issue a determination on
whether KOVR was considered an SLA because the SBA
“does not have the purview to determine if KOVR meets
the exception under the SLA for award,” J.A. 1003537, i.e.,
it did not have authority to determine whether KOVR was
entitled to the SLA preference.
Mitchco also filed two unsuccessful protests with the
Government Accountability Office (“GAO”) alleging, among
other things, that the agency improperly evaluated
KOVR’s proposal and that KOVR violated the Procurement
Integrity Act (“PIA”). 2 The first protest was dismissed as
premature because it was filed while post-award debriefing
between the Army and Mitchco was ongoing. The second
was rejected on the merits on June 9, 2020. See In re
Mitchco Int’l, Inc., B-418481.3, 2020 WL 4039018 (Comp.
Gen. June 9, 2020). The Comptroller General determined
that, among other things, Mitchco had “fail[ed] to state a
2 As discussed below, Mitchco alleges that KOVR
and Southern improperly sought or obtained proprietary
information concerning Mitchco’s performance on the in-
cumbent contract.
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MITCHCO INTERNATIONAL, INC. v. US 5
legally or factually sufficient basis of protest” for its claim
that KOVR and Southern violated the PIA. Id. at *5.
Mitchco next filed a complaint with the Claims Court
on July 17, 2020. Therein, Mitchco reasserted its allega-
tions that the Army improperly awarded the contract to
KOVR, and it also sought an order terminating the award
and restraining the Army from allowing anyone but
Mitchco to perform the contract as well as an award of bid
preparation and proposal costs. KOVR and Southern in-
tervened.
Relevant to this appeal, Mitchco alleged four different
violations of federal procurement law: 1) the Army violated
an SBA procurement regulation by refusing to terminate
KOVR’s contract after the SBA determined that KOVR did
not qualify as a small business; 2) the Army’s selection of
KOVR’s RSA proposal for the solicitation violated a De-
partment of Defense (“DOD”)-Department of Education
(“DOE”) Joint Statement of Policy requiring SLA offerors
to “assign at least one blind person per military dining fa-
cility in a management role,” J.A. 14; 3) KOVR and South-
ern violated the PIA by knowingly obtaining proprietary
information about Mitchco; and 4) the Army failed to eval-
uate KOVR’s proposal in accordance with the terms of the
solicitation and applicable law. 3 Finding all of these claims
lacked merit, the Claims Court denied injunctive or other
relief on the grounds that Mitchco had not established that
the award was unlawful or that irreparable injury would
3 Mitchco also alleged that KOVR misrepresented it-
self as an SLA because neither Kentucky nor the federal
government properly designated KOVR as the SLA for the
state, and that the Army violated the FAR by conducting
discussions with and allowing proposal revisions from
KOVR but not from Mitchco. Mitchco does not pursue
those claims on appeal.
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6 MITCHCO INTERNATIONAL, INC. v. US
result if relief were not granted. This appeal followed. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
“This court reviews the trial court’s determination on
the legal issue of the government’s conduct, in a grant of
judgment upon the administrative record, without defer-
ence.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351
(Fed. Cir. 2005) (first citing Info. Tech. Applications Corp.
v. United States, 316 F.3d 1312, 1318–19 (Fed. Cir. 2003);
and then citing Advanced Data Concepts, Inc. v. United
States, 216 F.3d 1054, 1057 (Fed. Cir. 2000)). “That is, this
court reapplies the ‘arbitrary and capricious’ standard of”
the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), to
the agency’s decision. Id. (citing Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001)).
I
We first address jurisdiction. Appellees argue that this
case is moot because KOVR’s contract under the solicita-
tion was terminated by the government for cause on June
4, 2021 (after Mitchco filed its principal brief in this ap-
peal).
A
The events leading to the termination of the contract
are as follows. During the period that Mitchco served as
subcontractor under the pre-existing contract, the Army
identified several deficiencies with performance of the con-
tract. In order to address these deficiencies, in November
2019, KOVR proposed to the Army that it would replace
Mitchco with Southern effective December 1, 2019. In re-
sponse, Mitchco filed a lawsuit against the Commonwealth
of Kentucky in state court alleging that KOVR breached a
contract with Mitchco by replacing Mitchco with Southern,
and seeking injunctive relief.
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MITCHCO INTERNATIONAL, INC. v. US 7
On November 26, 2019, the Kentucky state court
granted Mitchco’s request for a temporary restraining or-
der barring KOVR from replacing Mitchco with Southern
on the existing contract. On March 31, 2020, the state
court converted the restraining order to a permanent in-
junction, finding that KOVR’s unilateral selection of South-
ern to replace Mitchco as the subcontractor under the
existing contract would violate the Kentucky Model Pro-
curement Code (“KMPC”). It is not clear on what basis the
Kentucky state court thought its ruling was consistent
with federal law. On April 2, 2020, the state court clarified
that the permanent injunction also applied to any new con-
tract. Thus, KOVR was barred from utilizing Southern as
the subcontractor under the solicitation involved here.
Mitchco alleges that at this point, KOVR “stopped pay-
ing Mitchco,” Appellant’s Reply Br. at 28 n.15 (emphasis
omitted), and that, as a result, Mitchco could not “continue
to perform,” J.A. 1003682. When Mitchco ceased perfor-
mance and KOVR was unable to utilize Southern to per-
form the work because of the state court injunction, the
Army terminated the contract for cause.
B
The mootness doctrine arises from the case or contro-
versy requirement of Article III of the U.S. Constitution.
See Allen v. Wright, 468 U.S. 737, 750 (1984). “[A] case is
moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496 (1969). An appeal
is moot, and should be dismissed, when “it is impossible to
grant the appellant ‘any effectual relief whatever.’” Accel-
eration Bay LLC v. 2K Sports, Inc., 15 F.4th 1069, 1076
(Fed. Cir. 2021) (quoting Calderon v. Moore, 518 U.S. 149,
150 (1996)). “The party arguing that a case has become
moot ‘bears the burden of coming forward with the subse-
quent events that have produced that alleged result.’” Hy-
osung TNS Inc. v. Int’l Trade Comm’n, 926 F.3d 1353, 1357
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8 MITCHCO INTERNATIONAL, INC. v. US
(Fed. Cir. 2019) (quoting Cardinal Chem. Co. v. Morton
Int’l, Inc., 508 U.S. 83, 98 (1993)).
There is no question that the injunctive relief Mitchco
seeks is moot insofar as Mitchco seeks an order enjoining
KOVR’s performance of the contract, since the Army has
already terminated KOVR’s contract. See Veterans Con-
tracting Grp. v. United States, 743 F. App’x 439, 440 (Fed.
Cir. 2018) (non-precedential).
However, Mitchco also seeks an order directing the
Army to re-evaluate the proposals and to award the con-
tract to Mitchco. Although the government terminated the
contract for cause, Mitchco argues that the Army has not
formally cancelled the solicitation. Further complicating
the issue, when asked about the status of the solicitation
at oral argument, the government offered that it had been
“constructively cancelled.” Oral Arg. at 27:59–28:00. We
ordered supplemental briefing on the status of the solicita-
tion, including whether the government intended to for-
mally cancel the solicitation. In its supplemental brief, the
government reaffirmed that the solicitation has been “con-
structively cancelled” and made clear that the Army had
no intent to formally cancel the solicitation because it “does
not believe that the Federal Acquisition Regulation (FAR)
requires a formal cancellation under the facts of this case.”
Gov’t Suppl. Br. at 2–3.
At the same time, the government advises that “the
Army does not intend to rely on the challenged procure-
ment” to fulfill the food service requirements of the con-
tract, “and is exploring other options to meet its needs.” Id.
at 3. The government further explains that “since the con-
tract was awarded to KOVR in February 2020, there has
been an epic intervening pandemic that . . . has resulted in
new COVID-related requirements, and the Army is deter-
mining their scope and applicability to this matter.” Id. at
4. In the meantime, the Army is obtaining the necessary
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MITCHCO INTERNATIONAL, INC. v. US 9
food services through Southern, by way of a short-term
bridge contract.
Accepting this information as true, we conclude that
Mitchco, if successful, would be entitled to bid preparation
and proposal costs—a situation that renders the case not
moot. 4
C
Under the Tucker Act, as amended by the Administra-
tive Dispute Resolution Act of 1996, Pub. L. No. 104–320,
§ 12, 110 Stat. 3870, 3874, the Claims Court can award bid
preparation and proposal costs. 28 U.S.C. § 1491(b)(2)
(“[T]he court[] may award any relief that the court consid-
ers proper, including declaratory and injunctive relief ex-
cept that any monetary relief shall be limited to bid
preparation and proposal costs.” (emphasis added)). Those
costs are defined by regulation as “costs incurred in prepar-
ing, submitting, and supporting bids and proposals
(whether or not solicited) on potential [g]overnment or non-
[g]overnment contracts.” 48 C.F.R. § 31.205-18(a).
The statute thus makes clear that bid preparation and
proposal costs are a primary remedy for violations of pro-
curement law. Indeed, there was a time in the history of
bid protests when the only remedy available for bid pro-
tests was bid preparation and proposal costs. See Impresa,
238 F.3d at 1331. In Impresa, we traced the “history of ju-
dicial review of government contracting procurement deci-
sions.” Id. We explained that under the pre-1996 “implied
contract” theory, the Claims Court and its predecessor’s re-
view of bid protest cases was “far narrower than district
court review under the APA, and an aggrieved bidder was
4 We express no opinion as to whether the “construc-
tive cancellation” of the solicitation would preclude injunc-
tive relief if Mitchco prevailed on the merits.
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10 MITCHCO INTERNATIONAL, INC. v. US
typically limited to monetary relief such as bid preparation
costs.” Id. (emphasis added).
The government recognizes that bid preparation and
proposal costs may be recovered in bid protest cases, but
argues that the constructive cancellation of the solicitation
bars the recovery of such costs. We disagree. The fact that
the solicitation was “constructively cancelled” after it was
awarded to KOVR does not preclude a claim that the award
was unlawful in the first place, just as the completion of a
contract does not preclude an award for bid preparation
and proposal costs. See, e.g., Pacificorp Cap., Inc. v. United
States, 852 F.2d 549, 550 (Fed. Cir. 1988) (“Regardless of
whether the procurement has already been completed, sec-
tion 759(f)(5)(C) expressly permits the [General Services
Board of Contract Appeals] to grant a successful protester
an award of protest and bid preparation costs. The availa-
bility of such relief is enough to maintain this as a ‘live’
controversy.”). 5
Having thus determined that the case is not moot, we
turn now to the merits.
II
A
Mitchco first argues that because the solicitation was
set aside for small businesses, the Army violated an SBA
5 The case the government relies on in support of its
proposition, Glenn Defense Marine (ASIA), PTE LTD. v.
United States, 469 F. App’x 865 (Fed. Cir. 2012) (non-prec-
edential), is factually inapposite. In that case, and the case
it relies on, Gibraltar Industries, Inc. v. United States, 726
F.2d 747 (Fed. Cir. 1984), the protestor was ultimately
awarded the contract it was protesting and therefore its bid
preparation and proposal costs were not wasted. Mitchco
was never awarded the contract at issue here.
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MITCHCO INTERNATIONAL, INC. v. US 11
procurement regulation by not cancelling the award of the
contract to KOVR after the SBA sustained Mitchco’s size
protest against the award and KOVR failed to appeal that
decision. The SBA regulation provides that if a contracting
officer for a small business contract receives a determina-
tion by the SBA that a contract awardee is “not an eligible
small business for the procurement in question,” and the
awardee does not appeal that determination, “the contract-
ing officer shall terminate the award.” 13 C.F.R.
§ 121.1009(g)(2)(i).
Here, the solicitation stated both that the contract was
a small business set aside and that it was subject to the
SLA preference under the RSA. The language of the solic-
itation regarding the SLA preference was explicit. It stated
that “[t]he priority established by the R-SA applies to this
acquisition,” J.A. 1000755, and further stated that if the
SLA “is determined to be in the Competitive Range[,] then
the SLA will be afforded the priority as delineated in the
R-SA,” J.A. 1000747. Any ambiguity was resolved in the
pre-proposal questions and answers. A prospective bidder
asked: “As a small business, we cannot afford to spend
time and resources drafting and submitting a proposal if
there is not a fair opportunity to receive the award due to
the advantage given to the SLA . . . . How will the agency
determine the competitive range?” J.A. 1000893. In re-
sponse, the Army clarified that “[i]f the [SLA] is deter-
mined to be in the Competitive Range, then the SLA will
be afforded the priority as delineated in the R-SA.” Id. (in-
ternal quotation marks and citation omitted). Mitchco was
thus aware of the priority afforded the SLA notwithstand-
ing the small business set-aside and did not protest the
terms of the solicitation prior to bid submission. It there-
fore cannot challenge its applicability now. See Harmonia
Holdings Grp., LLC v. United States, 20 F.4th 759, 766
(Fed. Cir. 2021) (citing Blue & Gold, Fleet, L.P. v. United
States, 492 F.3d 1308, 1313 (Fed. Cir. 2007)).
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12 MITCHCO INTERNATIONAL, INC. v. US
In any event, the Claims Court determined that 13
C.F.R. § 121.1009(g)(2)(i), concerning small business enti-
tlement, did not apply to KOVR because it was entitled to
an SLA preference. Mitchco, 151 Fed. Cl. at 545. The
Comptroller General has similarly concluded that the spe-
cific provisions of the RSA take precedence over general
provisions for small businesses. See In re Intermark, Inc.,
B-290925, 2002 WL 31399028, at *2 (Comp. Gen. Oct. 23,
2002). So too, in NISH v. Cohen, 247 F.3d 197, 205 (4th
Cir. 2001), the Fourth Circuit held that the RSA, as the
more specific statute dealing explicitly with the issue of
contracting priorities in relation to the operation of cafete-
rias on federal property, governs over a statute of general
applicability such as the Javits Wagner O’Day Act
(“JWOD”), which gives preference for the severely disabled.
Accord Tex. Workforce Comm’n v. USDE, No. EP-17-CV-
00026-FM, 2018 U.S. Dist. LEXIS 232710, at *26 (W.D.
Tex. Mar. 28, 2018); Automated Commc’n Sys. v. United
States, 49 Fed. Cl. 570, 577–78 (Ct. Cl. 2001).
Finally, in PDS Consultants, Inc. v. United States, we
similarly concluded that the specific requirements of the
Veterans Benefits, Health Care, and Information Technol-
ogy Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403, 3431–
35 (2006) (“VBA”)—which “requires the Department of Vet-
erans Affairs (‘VA’) to consider awarding contracts for pre-
scription eyewear based on competition restricted to
veteran-owned small business[es]” before procuring such
eyewear from any other source (i.e., to perform a “Rule of
Two” analysis)—trumped the general provisions of the
JWOD (just discussed in the preceding paragraph). 907
F.3d 1345, 1348, 1357–58 (Fed. Cir. 2018); see id. at 1358
(“While the JWOD applies to all agencies of the federal gov-
ernment, the VBA applies only to VA procurements and
only when the Rule of Two is satisfied.”).
We agree that the Army’s treatment of the RSA as
trumping the small business provision was not unlawful
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MITCHCO INTERNATIONAL, INC. v. US 13
and, even if it were, Mitchco’s failure to protest the solici-
tation prior to the close of bidding bars relief.
B
Mitchco next argues that the Army “violated procure-
ment law by making award to KOVR because KOVR’s pro-
posal fails to assign at least one blind person, per military
dining facility, in a management role.” Appellant’s Br. at
17. In its proposal, KOVR selected Ms. Fay Autry as the
Licensed Blind Vendor, giving her the role of manager of
operations on the contract and responsibility for ensuring
contract compliance. Because the solicitation involves ser-
vicing multiple dining facilities, however, Mitchco argues
that KOVR’s proposal was in violation of “Section 848 of
the National Defense Authorization Act for Fiscal Year
2006, Pub. L. No. 109-63, and the resulting Joint State-
ment of Policy (to which the Department of Defense was a
signatory).” Id. at 17–18. According to Mitchco, the Joint
Statement of Policy requires “that each SLA offeror pro-
pose to ‘assign at least one blind person per military dining
facility in a management role,’” and KOVR’s proposal did
not satisfy that requirement. Id. at 18 (quoting 81 Fed.
Reg. 36,506 (June 7, 2016) (proposed rule) (emphasis
added)).
The Claims Court correctly rejected this claim because
the RSA controls, and there is nothing in the RSA that re-
quires a blind person at each facility. “In the absence of
any specific legal requirement that blind persons had to be
engaged at all locations, it was not unreasonable for the
Army to find that KOVR satisfied the more general R-SA
requirements.” Mitchco, 151 Fed. Cl. at 548. The Joint
Statement of Policy upon which Mitchco relies has no bind-
ing legal effect. It states that “[r]egulations are needed to
implement the policy agreements reached” therein. J.A.
1002549. In a 2007 memorandum, the DOD recognized
that the Joint Statement of Policy “‘should not be cited in
individual solicitations until it is implemented in
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14 MITCHCO INTERNATIONAL, INC. v. US
complementary regulations’ by DOE and DOD.” Mitchco,
151 Fed. Cl. at 547 (quoting Memorandum from the DOD
on Applicability of the RSA to Military Dining Facilities,
Shay D. Assad, Dir. of Def. Procurement and Acquisition
Pol’y to Dirs. of Def. Agencies (Mar. 16, 2007)). Such regu-
lations were never adopted. In the spring of 2019, the DOD
published a rule that withdrew the proposed regulation
without taking further action, after DOE notified the DOD
that the 2006 Joint Policy Statement “no longer reflect[ed]
the position of the DOE.” Id. at 548 (quoting Department
of Defense, Food Services for Dining Facilities on Military
Installations RIN: 0750-A178 (Spring 2019)).
We thus agree with the Claims Court that there is no
legal requirement that blind persons had to be engaged at
all service locations, and that it was not “contrary to law”
for the Army to select KOVR’s RSA proposal for the solici-
tation.
C
Mitchco next alleges that KOVR and Southern violated
the PIA, 41 U.S.C. § 2102, making KOVR ineligible to re-
ceive the award. The PIA prohibits disclosing or obtaining
“contractor bid or proposal information” under certain cir-
cumstances. § 2102(a)(1), (b). The theory is that KOVR
and Southern improperly sought or obtained proprietary
information concerning Mitchco’s performance of the 2015
contract, for which Mitchco served as subcontractor, and
that KOVR used that information in preparing its bid.
The relevant statute provides:
(a) Prohibition on Disclosing Procurement Infor-
mation.—
(1) In general.—
Except as provided by law, a person described
in paragraph (3) shall not knowingly disclose con-
tractor bid or proposal information or source
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MITCHCO INTERNATIONAL, INC. v. US 15
selection information before the award of a Federal
agency procurement contract to which the infor-
mation relates.
(2) Employee of private sector organization.—
In addition to the restriction in paragraph (1),
an employee of a private sector organization as-
signed to an agency under chapter 37 of title 5 shall
not knowingly disclose contractor bid or proposal
information or source selection information during
the 3-year period after the employee’s assignment
ends, except as provided by law.
(3) Application.—Paragraph (1) applies to a
person that—
(A)
(i) is a present or former official of the Federal
Government; or
(ii) is acting or has acted for or on behalf of, or
who is advising or has advised the Federal Govern-
ment with respect to, a Federal agency procure-
ment; and
(B) by virtue of that office, employment, or re-
lationship has or had access to contractor bid or
proposal information or source selection infor-
mation.
(b) Prohibition on Obtaining Procurement Infor-
mation.—
Except as provided by law, a person shall not know-
ingly obtain contractor bid or proposal information
or source selection information before the award of
a Federal agency procurement contract to which
the information relates.
§ 2102(a), (b) (emphasis added).
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16 MITCHCO INTERNATIONAL, INC. v. US
The Claims Court held that § 2102(a)(3) effectively de-
fines the term “person” in § 2102(b), with the result that
“PIA violation claims can only be [] brought against present
or former officials of the Federal Government or an advisor
to the Federal Government with respect to a Federal
agency procurement.” Mitchco, 151 Fed. Cl. at 548 (citing
§ 2102(a)(3)). Since neither KOVR nor Southern falls into
that category, the Claims Court determined that there
could be no PIA violation. Id. at 548–49. Mitchco, on the
other hand, argues § 2102(a)(3) does not define person for
purposes of § 2102(b) but only for purposes of § 2102(a)(1),
and § 2102(b) is the provision alleged to be violated here.
At least one district court has agreed with Mitchco’s inter-
pretation. See United States v. Kuciapinski, 434 F. Supp.
3d 939, 944–46 (D. Colo. 2020). But see GEO Grp., Inc. v.
United States, 100 Fed. Cl. 223 (2011). We need not decide
that issue, as we find that Mitchco’s PIA claim fails for an
independent reason: the information it alleges was ob-
tained or that was sought does not qualify as “contractor
bid or proposal information.” FAR 3.104-3(b).
The FAR defines “[c]ontractor bid or proposal infor-
mation” to mean:
any of the following information submitted to a
Federal agency as part of or in connection with a
bid or proposal to enter into a Federal agency pro-
curement contract, if that information has not been
previously made available to the public or disclosed
publicly: [listing information such as “[c]ost or pric-
ing data”]
FAR 3.104-1 (emphasis added). Mitchco alleges that sev-
eral types of cost or pricing data information were improp-
erly obtained by Southern and used by KOVR in preparing
its bid. As Mitchco appears to concede, however, all of the
documents pertain to the incumbent contract, which as the
prime contractor, KOVR was authorized to possess. See 41
U.S.C. § 2107(1), (2) (providing a safe harbor covering the
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MITCHCO INTERNATIONAL, INC. v. US 17
receipt of information by persons authorized to receive that
information). GAO and the Claims Court have routinely
held that this type of information is not subject to the PIA.
See, e.g., In re S & K Aerospace, LLC, B-411648, 2015 WL
7348967, at *4 (Comp. Gen. Sept. 18, 2015) (“[T]he release
of information regarding a prior incumbent contract does
not meet [the PIA’s] definition.” (citing In re Eng’g Support
Pers., Inc., B-410448, 2014 WL 7967482, at *3 (Comp. Gen.
Dec. 24, 2014))); id. (“[T]he information at issue here—cost
figures in the [independent government cost estimate] that
‘were derived from . . . costs on the current [Price Breakout
Worksheets]’ from incumbent contracts or task orders, in-
cluding one being performed by the protester—is not ‘con-
tractor bid or proposal information’; rather it is information
that was generated during the performance of a contract or
task order.”). We agree with those decisions.
We thus conclude that Mitchco has not established a
PIA violation. 6
D
Finally, Mitchco claims that the Army erred in its eval-
uation of KOVR’s proposal and in its responsibility deter-
mination. In reviewing an agency’s evaluation of a
proposal, we have held that the test is whether “the con-
tracting agency provided a coherent and reasonable expla-
nation of its exercise of discretion.” Impresa, 238 F.3d at
1333 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19
F.3d 1342, 1356 (11th Cir. 1994)); see also Bowman
Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281,
285 (1974) (“The court is not empowered to substitute its
judgment for that of the agency.” (quoting Citizens to
6 Because Mitchco failed to establish a PIA violation,
its claim that the contracting officer violated the FAR for
failure to investigate the reported violations under FAR
3.104-7 also fails.
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18 MITCHCO INTERNATIONAL, INC. v. US
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971))).
Mitchco argues that there is evidence that Southern
would not perform the contract according to its terms. Ac-
cording to Mitchco, this should have rendered KOVR’s pro-
posal “Technically Unacceptable,” disqualifying it.
Appellant’s Br. at 28 (citing J.A. 1000466–69). Mitchco
does not demonstrate that KOVR’s proposal proposed to vi-
olate the contract terms during performance. See, e.g., Al-
lied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1330
(Fed. Cir. 2011) (holding that an agency is “entitled to rely
on” an offeror’s certification “that it meets the technical re-
quirements of a proposal” except when “a proposal, on its
face, [] lead[s] an agency to the conclusion that an offeror
could not and would not comply with the [applicable re-
quirement]” (citation omitted)); PAI Corp. v. United States,
614 F.3d 1347, 1352 (Fed. Cir. 2010) (“To demonstrate that
[the agency’s procurement decision was] arbitrary or capri-
cious, a protester must identify ‘hard facts’; a mere infer-
ence or suspicion of an actual or apparent [violation] is not
enough.” (quoting C.A.C.I., Inc.-Fed. v. United States, 719
F.2d 1567, 1581 (Fed. Cir. 1983))).
Mitchco also asserts that because KOVR and Southern
did not have a signed written contract, Southern was free
to walk away from the contract at any time. But the solic-
itation did not require that KOVR and Southern have a
signed contract; it only required offerors to submit a sub-
contracting plan, which KOVR did.
There is thus no merit to these claims, and we will not
delve any further into the “minutiae of the procurement
process” by second guessing the agency’s evaluation of
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MITCHCO INTERNATIONAL, INC. v. US 19
KOVR’s proposal. E.W. Bliss Co. v. United States, 77 F.3d
445, 449 (Fed. Cir. 1996). 7
CONCLUSION
In sum, we conclude that we have jurisdiction over
Mitchco’s claims for bid preparation and proposal costs and
affirm the decision of the Claims Court on the merits.
AFFIRMED
7 Because we conclude that Mitchco has not shown
success on the merits, we need not address its claim of ir-
reparable injury. See PGBA, LLC v. United States, 389
F.3d 1219, 1228–29 (Fed. Cir. 2004) (providing standard for
permanent injunction).