Square One Armoring Service, Inc. v. United States , 2015 U.S. Claims LEXIS 1238 ( 2015 )

In the United States Court of Federal Claims
No. 15-340 C
(E-Filed: September 28, 2015) 1
)
SQUARE ONE ARMORING SERVICE, INC., )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, ) Post-Award Bid Protest; Pre-
) Award Bid Protest; Standing;
Defendant, ) Justiciability; Mootness;
) Ripeness
and )
)
O’GARA-HESS & EISENHARDT ARMORING )
CO., LLC )
)
Defendant-Intervenor. )
)
Cynthia S. Malyszek, Westlake Village, CA, for plaintiff.
Nicholas Jabbour, 2 Trial Attorney, with whom were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Donald E.
Kinner, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant. Charles G. McCarthy, Office of
Regional Counsel, General Services Administration, San Franciso, CA, of counsel.
1
This Opinion and Order was originally filed under seal on September 17, 2015.
See ECF No. 28. The court requested the parties to file a motion by Friday, September
25, 2015, if either party believed that the Opinion and Order should be redacted before
publication. Because neither party has filed such a motion, the Opinion and Order is
published in its entirety.
2
Subsequent to the filing of the briefing in this case, Cameron Cohick replaced
Nicholas Jabbour as the attorney of record. See ECF No. 27.
1
Barbara A. Duncombe, Dayton, OH, for defendant-intervenor. 3
OPINION and ORDER
CAMPBELL-SMITH, Chief Judge
This is a bid protest filed by Square One Armoring Service, Inc. (Square One or
plaintiff) against the General Services Administration (GSA or defendant). Compl. ¶ 1,
ECF No. 1, Apr. 2, 2015. Square One challenges as arbitrary and capricious GSA’s
evaluation of proposals submitted in response to a Solicitation for the procurement of
armored vehicles and its award of the Solicitation to defendant-intervenor, O’Gara-Hess
& Eisenhardt Armoring Co., LLC (O’Gara). See id. ¶¶ 1–3.
Prior to the filing of Square One’s complaint, GSA agreed to take corrective action
by cancelling the award to O’Gara, revising the Solicitation, and inviting offerors to re-
submit proposals. See id. ¶ 9. Square One also challenges the proposed corrective
action. Id. ¶¶ 1, 4.
The parties submitted cross-motions for judgment on the administrative record
(AR) in accordance with United States Court of Federal Claims Rule (RCFC) 52.1(c). 4
See Pl.’s Mot. J. AR (Pl.’s Mot.), ECF No. 16, May 4, 2015; Def.’s Mot. J. AR (Def.’s
Mot.), ECF No. 20, May 21, 2015; see also Pl.’s Resp., ECF No. 21, June 5, 2015; Def.’s
Reply, ECF No. 24, June 15, 2015. Oral argument was not deemed necessary by the
court.
For the reasons explained below, plaintiff’s motion is DENIED, and defendant’s
cross-motion is GRANTED.
I. Background
A. The Solicitation
On May 12, 2014, GSA issued Request for Quotations (RFQ) 873823 for the
procurement of armored vehicles on behalf of the Department of Defense (DOD), Army
Budget Office, in reference to Solicitation No. ID09140021 (the Solicitation). 5 Tab 11,
3
Counsel for defendant-intervenor did not file any briefing in this case.
4
The government filed the administrative record (AR) under seal on April 17, 2015
in the form of a CD-ROM. See Def.’s Notice of Filing AR, ECF No. 13.
5
GSA initially awarded the task order to O’Gara-Hess & Eisenhardt Armoring Co.,
LLC (O’Gara). Tab 1, AR 4. Square One filed a bid protest with the Government
Accountability Office challenging the award, and GSA decided to take corrective action.
2
AR 62 (RFQ). The Solicitation was directed to GSA Multiple Award Schedule (MAS)
Schedule 84 contract holders, who provide “Total Solutions for Law Enforcement,
Security, Facilities Management, Fire, Rescue, Clothing, Marine Craft and
Emergency/Disaster Response.” 6 Id. GSA intended to award a firm fixed price task
order to furnish and armor thirty vehicles in the base year and forty-eight vehicles in each
of four one-year option periods, for a total of 222 vehicles. Id.; Tab 11c, AR 116–17.
Specifically, GSA sought the following vehicles with either B4+ or B6 level of ballistic
protection:
See id.; Compl. ¶ 12. GSA terminated the task order with O’Gara for convenience,
cancelled the solicitation, and resolicited the procurement via the May 12, 2014 RFQ.
Tab 1, AR 4; Compl. ¶ 12.
6
The Multiple Award Schedule (MAS) program, which is also referred to as the
Federal Supply Schedule (FSS) program, “is directed and managed by GSA and provides
[f]ederal agencies . . . with a simplified process for obtaining commercial supplies and
services at prices associated with volume buying.” FAR 8.402(a); see Tab 1, AR 3 (“The
Federal Supply Schedule Program (FSS) affords federal agencies the ability to procure
commonly used commercial items, such as the vehicles, customization and delivery
services needed within this acquisition from prequalified sources at or below
commercially available prices for an extended period of time.”).
Under the MAS program, GSA awards indefinite delivery base contracts to
provide supplies and services at stated prices for fixed periods of time. FAR 8.402(a). In
Sharp Electronics Corp. v. McHugh, the Federal Circuit succinctly explained how the
MAS program operates:
GSA “acts as the contracting agent” for the federal government, negotiating
base contracts with suppliers of commercial products and services. Each
supplier publishes an Authorized Federal Supply Schedule Pricelist listing
the items offered pursuant to its base contract, as well as the pricing, terms,
and conditions applicable to each item. See FAR 8.402(b). Individual
agencies issue purchase orders under the base contract as needed. The terms
of the base contract, referred to as the “schedule” contract, are incorporated
by reference into the order.
707 F.3d 1367, 1369 (Fed. Cir. 2013) (some internal citations omitted).
Orders placed against schedule contracts are “considered to be issued using full
and open competition” and are not subject to FAR 15, which governs negotiated
procurements. See FAR 8.404(a). Thus, agencies are advised that when “placing orders
under Federal Supply Schedule contracts . . . , [agencies] shall not seek competition
outside of the Federal Supply Schedules.” Id.3
• Toyota Landcruiser; 200 Series SUVs, 4x4, LHD, Petro
• Toyota Landcruiser; 200 Series SUVs, 4x4, LHD, Diesel
• Chevrolet Suburban SUV; ½ Ton SUVS, 1500, 4x4
• Ford Econoline Passenger Van; E-350 XL, 2WD
• Toyota Hilux Pick-Up; Turbo Diesel 4x4
Tab 11, AR 62; Tab 11b, AR 81.
The Bill of Materials (BOM) offered detailed specifications for each of the five
vehicles. Each vehicle was required to have “Standard [Original Equipment
Manufacturer (OEM)] Accessories,” see, e.g., Tab 11b, AR 91, as well as “Additional
Required Accessories,” see, e.g., id. at 95. Under the latter category, and at issue in this
protest, are the requirements that each vehicle be equipped with three spare keys, and that
the Toyota Landcruisers (both Petro and Diesel) be equipped with push-button ignitions
while the Chevrolet Suburban SUV, Ford Econoline Passenger Van, and Toyota Hilux
Pick-Up be equipped with keyed ignitions. Id. at 95, 100, 105, 110, 115.
The Solicitation advised that “[t]he Government intends to award one task order to
the responsible Offeror whose quote is determined to be the best value to the Government
utilizing a Lowest Price, Technically Acceptable (‘LPTA’) approach from a responsible
Offeror with acceptable past performance.” Tab 11, AR 66; see also id. at 72. To be
eligible for award, “[o]fferors [were] required to meet all solicitation requirements, such
as terms and conditions and technical requirements, as outlined in the GSA Multiple
Award Schedule (MAS), Schedule 84.” Id. at 66. The Solicitation further advised that
“the Government reserve[d] the right to award no task order at all, depending on the
quality of quotations(s) [sic] submitted and the availability of funds.” Id.
Offerors would be evaluated according to the following factors: Technical
Acceptability, Past Performance, and Price. Id. at 67. The Technical Acceptability
Factor was comprised of the following Sub-Factors: Compliance with Requirements
(Sub-Factor 1a), Ballistic Certifications (Sub-Factor 1b), Armoring Facility Locations
(Sub-Factor 1c), and Warranty/Maintenance (Sub-Factor 1d). Id. An Unacceptable
rating for any of the Sub-Factors would result in an Unacceptable rating for the entire
Technical Factor—a rating that would render an offeror ineligible for award. Id.
The Solicitation advised that Sub-Factor 1a, which is at issue in this protest, would
be evaluated based on the following criteria:
Offerors shall provide a line item list of all proposed items to successfully
demonstrate they meet or exceed the requirements in section 6.0 of the
BOM. Additionally, each item proposed shall include an easily
identifiable, cross referenced MAS Schedule 84 part number, to
4
demonstrate that all items proposed are available on the Offer’s GSA
Multiple Award Schedule (MAS), Schedule 84 Contract at the time the
Offeror’s quote is submitted to the Government.
Id. at 68.
B. Square One’s Offer and Clarification Questions
Square One submitted a timely offer on July 11, 2014. See Tab 27, AR 420–576.
Under the “Additional Required Accessories” heading of its Technical Proposal, Square
One listed the following for each of the five vehicles:
Spare Keys (3 keys total per vehicle) (Included with OEM vehicle,
available as an add-on under GSA contract)
Ignition: All vehicles will have a push-button ignition (Included with
OEM vehicle, available as an add-on under GSA contract)
Id. at 430, 437, 444, 452, 460.
On September 16, 2014, a GSA representative sent Square One clarification
questions regarding Square One’s proposal via email. Tab 31, AR 589. The email stated
in relevant part:
For each of the proposed vehicles, your quote states that the 3 spare keys and
the push-button ignition are “included with the OEM vehicle, available as an
add-on under GSA contract.” The government has the following clarification
questions:
1. Provide the MAS Schedule 84 part number for the following items
included in your proposed solution:
a. Spare Keys (3 keys total per vehicle).
b. Ignition: All vehicles will have a push-button ignition.
2. In addition to providing MAS Schedule 84 part numbers, if the part is
“Included as an OEM item,” please provide a copy of the vehicle’s
OEM specification demonstrating the part is included. If the part is
“Available as an add-on under GSA contract” please provide
documentation demonstrating the part is currently available on Square
One’s GSA Schedule 84 contract.
Id.
5
Square One responded three days later, also by email:
Items such as the spare keys and push button ignition do not have MAS
Schedule 84 part numbers because they cannot be sold alone under our GSA
contract. These items in particular are specific option items that each
government customer may or may not require their OEM vehicles to contain.
Our GSA contract is for armor packages and each armor package we offer
has a part number. We also offer various optional add-on items, such as the
OEM vehicle itself, spare parts, winches, etc, that can be added to the armor
package, but cannot be purchased as stand-alone items off of our GSA
contract. (Some government agencies provide their own OEM vehicles to
be armored, which is why we list them as an option and not part of the armor
package itself.)
As an example, please refer to the attached Advantage screen shot image of
one of the armor packages offered in response to this RFQ (attachment
contains pricing). You will note the base product part number is
“CENB4+P-TOYLC-200”, and the item name is “CEN B4+ Land Cruiser
200 w/ partition”. There is also a list of ten Options Available which can be
added to the base product. Among these is the OEM vehicle. Please refer to
the second attachment titled PP 3 GSA Approved Price List (attachment
contains pricing). This is a copy of Square One’s price list approved and
signed by GSA on July 2, 2014. It was submitted as part of our Price
Proposal response to this RFQ, and a redacted (prices removed) version was
submitted as part of our Technical Proposal for part number cross
referencing. Please see the top of page 2 where there is a note for Group 4
(OEM Vehicles). This note states, “The OEM prices shown below reflect
current MSRP (Manufacturer Suggested Retail Price) for each make and
model, for budgeting purposes. At the time of RFQ, Square One may be
able to locate vehicles priced significantly lower, depending on each
customer's desired OEM specifications. Customers are encouraged to
submit detailed/ desired specifications with each RFQ in order to ensure the
best possible price. OEM vehicles may only be purchased with an Armor
Package.” For each vehicle model we offer, there is an “up to [max price
listed], depending on desired features and options listed on RFQ for OEM
vehicle.” The OEM vehicle prices vary on a case by case basis, depending
on what OEM features and/or OEM upgrades each customer
desires/requires (fuel type, transmission type, upholstery type, steel or
aluminum wheels, extra keys, etc).
The vehicles Square One would procure for this project would be equipped
with 3 keys total, as required by the RFQ. Attached please find OEM vehicle
6
specification sheets for each vehicle type, as provided by our vehicle
suppliers. There is no MAS Schedule 84 part number for the keys as they
are considered a feature of the OEM vehicle, which can be purchased as an
option only under our current GSA schedule. Please note that all items on
our proposal which were listed as “included as an OEM item” (car alarm,
radio, and keys) are marked with an asterisk on the attached spec sheets.
Regarding the push-button ignition, we have identified a
typographical/formatting error in our proposal, wherein each vehicle listed
on the proposal is described as having a push button ignition. Square One
confirms we can and would comply with the RFQ’s specifications which are:
the Toyota Land Cruisers (petrol) have push-button ignition, the Chevy
Suburbans have key ignition, the Ford vans have key ignition, the Toyota
Hilux have key ignition, and the Toyota Land Cruiser (diesel) have push-
button ignition. Alternatively, should the government accept our proposal
as originally submitted which reflected all models being equipped with push-
button start, Square One is prepared to fulfill the order with the additional
feature at the originally proposed price. The vehicles would be procured
from our vehicle suppliers/ dealers to include this added feature.
Regarding the items that were listed as “available as an add-on under GSA
contract”, please refer to attachment PP 3 GSA Approved Price List
(attachment contains pricing). Group 6 of our price list contains
Options/Accessories. Among these, are the items Square One referenced as
available as an add-on under GSA contract. These items are: run flat
assemblies, tool kit, winch, road warning triangle, PA system, and spare
parts. In addition, please see each of the attached Advantage screen shots
which show the brief drop-down menu description of the options
(attachments contain pricing). All items proposed are currently offered
under our GSA contract. (please note: the tool kit, winch, winch accessories,
and road warning triangles are all contained under the option named Winch
Kit)
Lastly, the GSA Advantage description for the CEN B4+ armor package
used in the above examples states, “SQI CEN B4+ armor package with fixed
partition behind second row, installed in a Toyota Land Cruiser 200 series...
For complete armor package description and included options/ accessories,
please see GSA catalog”. Attached please find the armor package summary
pages contained in our GSA catalog, for each of the armor packages
contemplated in this RFQ/proposal. Please note this catalog is available
(and has been available since before the proposal due date) on our GSA
Advantage page as required by GSA. These summaries will confirm that
any items listed on our proposal as “included as part of armor package on
7
GSA contract” are in fact part of our base armor packages offered under
GSA. Examples of this include the operable window back-up manual lifters
and the first aid kit.
Tab 32, AR 591–92.
C. Evaluation of Offers and Award Decision
Seven MAS Schedule 84 contract holders submitted offers in response to the
Solicitation. Tab 38, AR 660. The Technical Evaluation Team determined that six of the
offerors, including Square One, were technically unacceptable. Id. at 674–92. Only the
offer from O’Gara received a rating of Acceptable for the Technical Factor. Id. at 669–
71. Because its Past Performance Factor was also rated Acceptable, O’Gara was
considered the lowest priced technically acceptable offeror, with a price of
$34,159,804.96. See id. at 693. The government awarded O’Gara the task order on
February 3, 2015. 7 Tab 39, AR 694.
On February 4, 2015, after receiving an email notification that O’Gara had been
awarded the task order, Square One requested an explanation of the award decision
pursuant to FAR 8.405-2(d) (2014). Tab 41, AR 745; see FAR 8.405-2(d) (“If an
unsuccessful offeror requests information on an award that was based on factors other
than price alone, a brief explanation of the basis for the award decision shall be
provided.”). GSA responded the next day with the following explanation:
Your quote was rated Technically Unacceptable and was ineligible for
award for the following two reasons:
1. Your quote failed to meet the requirements of the BOM in section 6.0
for the following vehicles:
5 Chevrolet Suburban; 1/2 Ton SUVs, 1500, 4x4
5 Ford Econoline Passenger Van; E-350 XL, 2WD
5 Toyota Hilux Pick-up, Turbo Diesel 4x4
These technical requirements as outlined in the BOM required the above
vehicles to be supplied having keyed ignitions. Your proposed solution
included the above vehicles with push button start ignitions.
7
The originally anticipated award date for the task order was October 3, 2014. Tab
38, AR 662. The award was delayed, however, due to funding availability concerns. Id.
8
2. Your quote failed to include the following accessory as a GSA MAS
Contract item. Doing so is not in accordance with the rules governing the
use of the Federal Supply Schedules (FSS) and the terms of the RFQ:
1. Spare Keys
In accordance with the FSS and MAS Schedule 84, an agency is not
permitted to purchase open market items in an amount exceeding the
micro-purchase threshold using the FSS procedures set forth in FAR
subpart 8.4. The micro-purchase level applies to all open market items, in
aggregate.
a. Therefore, Square One Armoring was rated Technically
Unacceptable on the following evaluation factor in Section 3.1.
“Factor 1, Technical Acceptability / Sub factor la, Compliance
with requirements:”
Offerors shall provide a line item list of all proposed items
to successfully demonstrate they meet or exceed the
requirements in section 6.0 of the BOM. Additionally, each
item proposed shall include an easily identifiable, cross
referenced MAS Schedule 84 part number, to demonstrate
that all items proposed are available on the Offer[or]’s GSA
Multiple Award Schedule (MAS), Schedule 84 Contract at the
time the Offeror's quote is submitted to the Government.
b. In addition, Square One Armoring was rated Technically
Unacceptable in accordance with the terms of the RFQ set forth in the
following requirements on page 2, paragraph 3 and 4:
“You are to submit a quotation based on the identified
items/material requested for award consideration, to
include GSA Schedule Items Only.”
“Open Market items, in a total aggregate of $3,000.00 or
less, are acceptable”.
The awardee, O’Gara-Hess & Eisenhardt Armoring Company LLC
submitted the Lowest Priced, Technically Acceptable offer
($34,159,804.96). Your company’s interest in doing business with The
General Services Administration, and the time and effort you expended in
responding to this solicitation, are very much appreciated.
9
Tab 44, AR 762–63.
D. Procedural History
On February 9, 2015, Square One filed a protest at the Government Accountability
Office (GAO). 8 See Tab 48, AR 778. After reviewing Square One’s protest, GSA
“determined that corrective action [was] in the best interests of the Government.” Tab
61, AR 1084. On March 10, 2015, GSA filed a Notice of Corrective Action with the
GAO, stating that GSA would recommend that any corrective action “include an
opportunity for the re-submission of proposals following a revision of the solicitation
documents to provide more precise instructions to the offerors on the preparation of
quotes.” Id. In light of the proposed corrective action, GSA requested that the GAO
dismiss Square One’s protest. Id.
Three days later, on March 13, 2015, the GAO dismissed Square One’s protest,
stating that “[w]here, as here, an agency undertakes corrective action that will supersede
and potentially alter its prior source selection decision, our Office will generally decline
to rule on a protest challenging the agency’s prior decision on the basis that the protest is
rendered academic.” Tab 63, AR 1088.
Square One filed its complaint in this court on April 2, 2015. Four days later,
GSA terminated the task order awarded to O’Gara pursuant to FAR 8.406-5. Tab 67, AR
1140–41. The court understands that GSA either has cancelled or intends to cancel the
Solicitation prior to re-procuring the requirement. See Pl.’s Mot. 2 (challenging GSA’s
“cancellation of the solicitation”); Def.’s Mot. 15 (“GSA is taking corrective action that
will include re-procuring the requirement.”); Pl.’s Resp. 2 (challenging GSA’s decision
“to cancel the solicitation and to take corrective action to reprocure”). Defendant
represents that “GSA has not yet issued a new solicitation.” Def.’s Mot. 13.
Plaintiff’s complaint includes challenges to GSA’s original evaluation of
proposals and the award to O’Gara, see Compl. ¶¶ 37–46 (Count 1.A), 51–86 (Counts 2–
5); and challenges to GSA’s proposed corrective action, see id. ¶¶ 47–50 (Count 1.B),
87–90 (Count 6). Plaintiff asks the court to find that O’Gara was ineligible for contract
award, that Square One should be awarded the task order, and that the proposed
corrective action is “inadequate” and in violation of the Competition in Contracting Act.
Id. at 39–40; Pl.’s Mot. 25–26.
8
Two of the unsuccessful offerors, The Armored Group and Scaletta Armoring,
lodged agency-level protests on February 6 and February 10, 2015, respectively. Tab 46,
AR 766–76 (The Armored Group); Tab 55, AR 959–64 (Scaletta Armoring). Both
protests were ultimately dismissed. See Tab 55, AR 963–64 (Scaletta Armoring)
(dismissing for “fail[ing] to meet the requirements of a valid protest”); Tab 68, AR 1142
(The Armored Group) (denying as moot given GSA’s decision to take corrective action).
10
The government asserts that the court has no jurisdiction to entertain plaintiff’s
protest because plaintiff cannot establish standing. Def.’s Mot. 13–20; Def.’s Reply 2–5.
Alternatively, the government asserts that even if plaintiff does have standing, the GSA’s
corrective action was rational. Def.’s Mot. 20–24. In the further alternative, the
government asserts that even if plaintiff has standing and the court finds that the GSA’s
corrective action was irrational, the court cannot direct award to plaintiff but, instead,
should order GSA to reevaluate all the proposals. Id. at 24–26.
II. Legal Standards
The court has “jurisdiction to render judgment on an action by an interested party
objecting to a solicitation by a Federal agency for bids or proposals for a proposed
contract or to a proposed award or the award of a contract or any alleged violation of
statute or regulation in connection with a procurement or a proposed procurement.” 28
U.S.C. § 1491(b)(1) (2012). The court’s “bid protest” jurisdiction encompasses the
following types of agency actions: “(1) pre-award protests (i.e., objections ‘to a
solicitation by a Federal agency for bids or proposals for a proposed contract’ or award);
(2) post-award protests (i.e., objections to ‘the award of a contract’); and (3) any ‘alleged
violation of statute or regulation in connection with a procurement or a proposed
procurement.’” Sheridan Corp. v. United States, 95 Fed. Cl. 141, 148 (2010) (quoting 28
U.S.C. § 1491(b)(1)).
A plaintiff must establish standing to invoke the court’s bid protest jurisdiction.
See Sicom Sys., Ltd. v. Agilent Techs., Inc., 427 F.3d 971, 975 (Fed. Cir. 2005)
(“Standing to sue is a threshold requirement in every federal action.”); K-Lak Corp. v.
United States, 93 Fed. Cl. 749, 755 (2010) (“Even while a court may have subject matter
jurisdiction over a type of claim generally, a plaintiff must still establish standing in order
to invoke the court’s jurisdiction.” (citing Hoopa Valley Tribe v. United States, 597 F.3d
1278, 1283 (Fed. Cir. 2010))); Centech Grp., Inc. v. United States, 78 Fed. Cl. 496, 503
(2007) (“As a threshold matter, Plaintiff must establish standing to invoke the Court’s
jurisdiction.”). A “[p]laintiff’s standing must be established by a preponderance of the
evidence. Centech Grp., 78 Fed. Cl. at 503 (citing Reynolds v. Army & Air Force Exch.
Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)); see Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992) (“The party invoking federal jurisdiction bears the burden of establishing
[standing].”). “[A] finding that a plaintiff has failed to carry his burden of establishing
standing ‘precludes a ruling on the merits.’” Centech Grp., 78 Fed. Cl. at 503 (quoting
Media Techs. Licensing, LLC v. Upper Deck Co., 334 F.3d 1366, 1370 (Fed. Cir. 2003)).
11
To establish standing under the Tucker Act, a protestor must establish that it
qualifies as an “interested party.” 9 See 28 U.S.C. § 1491(b)(1) (providing that “an
interested party” may object “to a solicitation by a Federal agency for bids or proposals
for a proposed contract or to a proposed award or the award of a contract or any alleged
violation of statute or regulation in connection with a procurement or a proposed
procurement”); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir.
2009). The Federal Circuit has “construe[d] the term ‘interested party’ in §
1491(b)(1) . . . [as being] limited to actual or prospective bidders or offerors whose direct
economic interest would be affected by the award of the contract or by failure to award
the contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed.
9
Defendant argues that plaintiff lacks both Article III standing and Tucker Act
standing. Def.’s Mot. 14–20. Defendant cites to Weeks Marine, Inc. v. United States,
575 F.3d 1352, 1359 (Fed. Cir. 2009), as support for its assertion that “in a bid protest
action, it must be determined whether the protestor meets both the standing requirements
in Article III of the Constitution and in the Tucker Act,” Def.’s Mot. 13. Indeed, the
Weeks Marine court stated that although the Court of Federal Claims is an Article I court,
it “applies the same standing requirements enforced by other federal courts created under
Article III.” 575 F.3d at 1359 (quoting Anderson v. United States, 344 F.3d 1343, 1350
n.1 (Fed. Cir. 2003)). However, the Weeks Marine court further stated that the Tucker
Act “imposes more stringent standing requirements than Article III.” Id.In Jacobs Technology, Inc. v. United States, 100 Fed. Cl. 179 (2011), the court
rejected the government’s argument that Weeks Marine stands “for the proposition that
standing must be judged both under Article III and also under the Tucker Act”:
What [Weeks Marine] says is that the Article III standing requirements are
binding on the Court of Federal Claims and that so are the standing
requirements of the Tucker Act. The [Weeks Marine] court also observed
that the Tucker Act has even more stringent standing requirements than does
Article III. The Weeks Marine court, then—in the context of a bid protest—
did not perform any analysis under Article III, but, instead, proceeded to
analyze the standing issue only under the Tucker Act.
Id. at 184 (internal citations omitted). The Jacobs court concluded that “since the Tucker
Act has even more stringent requirements on standing than Article III, it is sufficient to
decide the issue of standing with reference only to the Tucker Act.” Id.; see also Mgmt.
& Training Corp. v. United States, 115 Fed. Cl. 26, 35 (2014) (“[A] party that meets the
Tucker Act’s standing requirement presumably also satisfies the constitutional standing
requirement.”). The court finds no reason to deviate from this approach. Accordingly,
the court examines only whether plaintiff meets the standing requirements of the Tucker
Act. See Jacobs Tech., 100 Fed. Cl. at 185 (“Article III standing requirements are
subsumed under the Tucker Act requirements.”).
12
Cir. 2001). Thus, “to come within the Court of Federal Claims’ section 1491(b)(1) bid
protest jurisdiction, [a protestor] is required to establish that it (1) is an actual or
prospective [offeror], and (2) possesses the requisite direct economic interest.” Rex Serv.
Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). “[T]o establish a direct
economic interest in the procurement, a protester must demonstrate prejudice.” Boston
Harbor Dev. Partners, LLC v. United States, 103 Fed. Cl. 499, 503 (2012) (citing Myers
Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002)).
A protestor’s showing of prejudice differs depending upon the nature of the
protest. In a post-award bid protest, a protester demonstrates the requisite prejudice by
showing that it would have had a “substantial chance” of receiving the contract award but
for the alleged errors in the procurement process. CW Gov’t Travel, Inc. v. United
States, 110 Fed. Cl. 462, 481 (2013); Linc Gov’t Servs., LLC v. United States, 96 Fed.
Cl. 672, 691 (2010); see Rex Serv., 448 F.3d at 1308 (“To prove a direct economic
interest as a putative prospective bidder, it is required to establish that it had a ‘substantial
chance’ of receiving the contract.”); Info. Tech. & Appls. Corp. v. United States (Info.
Tech.), 316 F.3d 1312, 1319 (Fed. Cir. 2003) (“To establish prejudice, [the protestor]
must show that there was a ‘substantial chance’ it would have received the contract award
but for the alleged error in the procurement process.”). That is, a post-award protestor
must show that its “chance of securing the award must not have been insubstantial.”
Info. Tech., 316 F.3d at 1319. “[A] showing of a mere possibility that the protester
would have received the contract but for the error is inadequate to show prejudice [in a
post-award bid protest].” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.
1996). By contrast, in a pre-award bid protest, a protestor can demonstrate prejudice by
establishing “a non-trivial competitive injury which can be addressed by judicial relief.”
Sys. Appl. & Techs., Inc. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012) (quoting
Weeks Marine, 575 F.3d at 1362); Orion Tech., Inc. v. United States, 704 F.3d 1344,
1348 (Fed. Cir. 2013) (same).
In addition to establishing that the court possesses jurisdiction over a bid protest
dispute, a plaintiff must also meet the Article III justiciability requirements. 10 Article III
10
“The court’s inquiry into the justiciability of a case is distinct from its inquiry into
whether it has jurisdiction over the case’s subject matter. In other words, the court may
find that it possesses jurisdiction over the subject matter of a case but that the dispute is
nevertheless nonjusticiable.” B&B Med. Servs., Inc., v. United States (B&B), No. 13-
463C, 2014 WL 3587275, at *5 (Fed. Cl. June 23, 2014) (internal citations omitted);
Coastal Envtl. Grp., Inc. v. United States, 114 Fed. Cl. 124, 129–30 (2013) (same); see
Madison Servs., Inc. v. United States, 90 Fed. Cl. 673, 677 (2009) (“Notwithstanding the
court’s special jurisdiction and the unique nature of a bid protest, the instant matter is also
subject to overarching [justiciability] doctrines governing all suits in federal court.”);
CCL Serv. Corp. v. United States (CCL), 43 Fed. Cl. 680, 688 (1999) (stating that the
court’s jurisdiction over a bid protest “is of no material consequence . . . if [the agency’s]
13
of the Constitution provides that the “judicial Power of the United States” is vested in
courts empowered to decide certain “Cases” and “Controversies.” U.S. Const. art. III.
The case or controversy requirement serves a dual function. Flast v. Cohen, 392 U.S. 83,
95 (1968). First, the case or controversy requirement “limit[s] the business of federal
courts to questions presented in an adversary context and in a form historically viewed as
capable of resolution through the judicial process.” Id. Second, the requirement
“define[s] the role assigned to the judiciary in a tripartite allocation of power to assure
that the federal courts will not intrude into areas committed to the other branches of
government.” Id. “Justiciability is the term of art employed to give expression to this
dual limitation placed upon federal courts by the case-and-controversy doctrine.” Id.Although the Court of Federal Claims is not an Article III court, it is well-
established that various justiciability doctrines of Article III apply to this court.
Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003); see First Hartford
Corp. Pension Plan & Trust v. United States, 54 Fed. Cl. 298, 304 n.10 (2002)
(“Although this [c]ourt is not an Article III court, the ‘case or controversy’ requirement
of Article III is still applicable.” (citing Freytag v. Comm’r, 501 U.S. 868, 889 (1991)).
“Justiciability has both constitutional and prudential dimensions, and encompasses a
number of doctrines under which courts will decline to hear and decide a cause. Though
justiciability has no precise definition or scope, doctrines of standing, mootness, ripeness,
and political question are within its ambit.” Fisher v. United States, 402 F.3d 1167, 1176
(Fed. Cir. 2005); see Emery Worldwide Airlines, Inc. v. United States, 47 Fed. Cl. 461,
469 (2000) (“While Congress created this court under Article I of the U.S. Constitution
and the ‘case or controversy’ requirement appears in Article III, the mootness doctrine
and other justiciability precepts—including ripeness and standing—have often been
properly invoked by this court.”).
III. Discussion
A. Square One’s Challenge to GSA’s Prior Evaluation of Proposals and Award
to O’Gara
actions in canceling the solicitation render plaintiffs’ challenge to these awards moot”);
cf. Madison Servs., 90 Fed. Cl. at 680 n.3 (observing that there is “lingering uncertainty
as to whether, and when, [the justiciability doctrines of] ripeness or mootness may
operate as a limit upon the jurisdiction of a federal court”). But see B & B Med. Servs.,
Inc. v. United States, 114 Fed. Cl. 658, 662 (2014) (“When a matter becomes moot, we
lose subject-matter jurisdiction over it, and dismissal under RCFC 12(b)(1) is in order.”);
CBY Design Builders v. United States, 105 Fed. Cl. 303, 328–29 (2012) (similar); Tech.
Innovation, Inc. v. United States, 93 Fed. Cl. 276, 278 (2010) (“[M]ootness presents a
question of subject matter jurisdiction.”).
14
Plaintiff contends that GSA’s evaluation of proposals and award to O’Gara were
flawed, improper, arbitrary and capricious, and in violation of both the Federal
Acquisition Regulations and the implied duty of good faith and fair dealing. See Compl.
¶¶ 37–46 (Count 1.A), 51–86 (Counts 2–5). Plaintiff requests that the court undertake
“de novo review” of GSA’s prior evaluation of proposals, Pl.’s Resp. 1, 14, and urges the
court to find that GSA “should have correctly selected Square One for contract award,”
because “Square One’s proposal was compliant with the solicitation requirements,” id. at
5.
1. Standing
Here, the court addresses plaintiff’s challenge to GSA’s original evaluation of
proposals and award decision. Cf. infra Part III.B.1 (addressing plaintiff’s standing to
challenge GSA’s proposed corrective action). This challenge is decidedly a post-award
protest. It is beyond dispute that Square One was an actual offeror in the original
Solicitation. Thus, Square One’s standing hinges on whether it can demonstrate that it
would have had a “substantial chance” of receiving the contract award but for the alleged
errors in the procurement process. See supra Part II (discussing elements of standing).
Defendant argues that because Square One’s technical proposal was deemed
unacceptable, Square One cannot establish that it had a substantial chance of receiving
award. Def.’s Mot. 17; see also id. at 20 (“Because of its Unacceptable rating for its
Technical proposal, Square One could not be eligible for award under the original
Solicitation. Accordingly, Square One has failed to demonstrate standing pursuant to the
Tucker Act in this case.”); Def.’s Reply 2 (similar). 11 As defendant correctly observes,
11
Defendant points to HomeSource Real Estate Asset Services, Inc. v. United States,
94 Fed. Cl. 466 (2010), aff’d, 418 F. App’x 922 (Fed. Cir. 2011), and Dismas Charities,
Inc. v. United States, 75 Fed. Cl. 59 (2007), as support for the proposition that “where a
bidder’s proposal fails to meet the minimum technical requirements set forth in a
solicitation, it cannot be deemed to have had a ‘substantial chance’ to be the awardee,”
Def.’s Mot. 17. But both of the cases to which defendant cites are inapposite.
In HomeSource, the offeror’s technical proposal was rated unacceptable by the
agency. 94 Fed. Cl. at 480–81. Unlike Square One, however, HomeSource did not
challenge the agency’s underlying evaluation of its technical proposal. Id. at 481–82
(“HomeSource does not challenge [the agency’s] underlying [technical] evaluation
findings in any way.”). The court concluded that HomeSource did not have a substantial
chance of being awarded the contract. Id. at 482; see id. at 481 (“Plaintiff's offer was
non-responsive to the Solicitation, and therefore would have been ineligible for the award
even if plaintiff prevailed on the merits.” (internal citation omitted)).
In Dismas, offerors were required to submit a Final Proposal Revision with a 120-
day start-up schedule, but Dismas intentionally submitted a proposal with a 240-day start-
15
“GSA rated Square One’s proposal as ‘Unacceptable’ for the Technical factor, after GSA
determined that Square One failed to comply with the requirements of the Solicitation.”
Def.’s Mot. 17. Defendant argues that GSA’s determination that Square One failed to
comply with the Solicitation’s technical requirements had a rational basis. Id. at 17–19.
Defendant’s argument, however, goes to the merits of Square One’s protest. See Sci.
Appls. Int’l Corp. v. United States, 102 Fed. Cl. 644, 654 (2011) (“The positions
advanced—that the [a]gency did not act arbitrarily or capriciously in rating [plaintiff’s]
proposal as unacceptable, therefore [plaintiff] had no chance of an award, go to the merits
of the controversy . . . .”); Tip Top Constr., Inc. v. United States, No. 08-352C, 2008 WL
3153607, at *11 (Fed. Cl. Aug. 1, 2008) (similar), aff’d, 563 F.3d 1338 (Fed. Cir. 2009).
The court, however, must “avoid examining the parties’ arguments on the merits
in order to resolve standing.” Textron, Inc. v. United States, 74 Fed. Cl. 277, 285 (2006);
see Info. Tech., 316 F.3d at 1319 (“[B]ecause the question of prejudice goes directly to
the question of standing, the prejudice issue must be reached before addressing the
merits.”). That is, “before reaching the merits of the parties’ dispute, the court conducts
only a ‘limited review’ of the plaintiff’s allegations and the administrative record for the
‘minimum requisite evidence necessary for plaintiff to demonstrate prejudice and
therefore standing.’” 12 Magnum Opus Techs. Inc. v. United States, 94 Fed. Cl. 512, 530
up schedule. 75 Fed. Cl. at 61. The agency evaluated Dismas’ proposal on the merits
and “never explicitly stated that it did not comply with the solicitation.” Id.; see id.
(observing that the post-award debriefing letter stated that Dismas’ proposal met all of
the solicitation requirements). The court found that “Dismas submitted a Final Proposal
Revision that did not conform to the solicitation requirements,” id. at 62, a determination
that Dismas did not appear to dispute, see generally id. (offering no indication that
Dismas argued that its 240-day start-up schedule should have been found responsive).
Accordingly, the court concluded that Dismas did not have a substantial chance of being
awarded the contract. Id. at 62. As this court has previously suggested, Dismas “merely
stand[s] for the proposition that the court may rule on the standing issue based on
disqualifying elements of a protestor’s proposal that the agency has overlooked.” Sotera
Def. Sols., Inc. v. United States, 118 Fed. Cl. 237, 251–52 (2014) (citing, inter alia,
Dismas).
Thus, although in certain cases it may be true that a protestor with an unacceptable
technical proposal may be unable to demonstrate standing, defendant is mistaken that
technical unacceptability necessarily precludes a protestor from establishing standing.
12
A protester must also establish prejudice to succeed on the merits. See Data Gen.
Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“[T]o prevail in a protest the
protester must show not only a significant error in the procurement process, but also that
the error prejudiced it.”). “The difference between the two [prejudice showings] is that
the prejudice determination for purposes of standing assumes all non-frivolous
16
n.12 (2010) (quoting Night Vision Corp. v. United States, 68 Fed. Cl. 368, 392 & n.23
(2005)); see Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 244 (2011) (“[S]ince, for
purposes of standing, prejudice must be analyzed before a merits determination is made,
it is more properly considered as a question of potential rather than actual prejudice, and
assessed based on the cumulative impact of the well-pled allegations of agency error
(which are assumed true at this juncture of proceedings).”). Thus, “[a]t this point in the
inquiry, we assume the well-pled allegations of error to be true.” Digitalis Educ. Sols.,
Inc. v. United States, 97 Fed. Cl. 89, 94 (2011), aff’d, 664 F.3d 1380 (Fed. Cir. 2012).
Square One alleges that GSA should have rated its Technical Proposal as
Acceptable, because “the clarifications submitted by Square One[] confirm that Square
One was in compliance with all required terms and items of the solicitation and all items
were listed on their GSA Schedule contract.” Compl. ¶ 30; see also id. ¶ 52. Plaintiff
maintains that GSA “ignored” Square One’s clarifications. Id. ¶¶ 34, 55. As discussed in
more detail above in Part I.C, after reviewing Square One’s responses to its clarification
questions, GSA rated Square One’s Technical Proposal as Unacceptable because Square
One (1) failed to include a MAS Schedule 84 part number for the three spare keys, and
(2) failed to offer the requisite vehicles with keyed ignitions. Tab 44, AR 762–63; see
Tab 11b (RFQ), AR 95, 100, 105, 110, 115 (requiring each vehicle be equipped with
three spare keys, and that the Chevrolet Suburban SUV, Ford Econoline Passenger Van,
and Toyota Hilux Pick-Up be equipped with keyed ignitions).
First, Square One alleges that its clarification clearly confirmed that each vehicle
would be equipped with three keys, as the solicitation required. Compl. ¶ 58; Pl.’s Resp.
11. Plaintiff submits that “Square One has prove[n] in its clarification responses and its
attachments, that the third . . . spare key was part of the OEM add-ons ordered from the
manufacturer. The keys were not open market [items], they did not need a separate [part
number] under Square One’s GSA Schedule.” Pl.’s Mot. 23; see Tab 32, AR 592
(clarification) (stating same); cf. Tab 38, AR 684 (stating that the Technical Evaluation
Team’s “expert consensus” was that spare keys are not OEM items and therefore do not
come standard with vehicles); Pl.’s Mot. 15–19 (disputing the Technical Evaluation
Team’s determination).
allegations to be true, whereas the post-merits prejudice determination is based only on
those allegations which have been proven true.” L–3 Commc’ns Corp. v. United States,
99 Fed. Cl. 283, 289 (2011); see Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl.
672, 694–97 (2010) (distinguishing between the two prejudice showings). Although
“[t]he test for demonstrating prejudice at both the standing and merits stages of the
protest is the same, . . . application of the test may yield different results due to the
differing standards of review.” Sys. Appl. & Techs., Inc., v. United States, 100 Fed. Cl.
687, 707 n.15 (2011), aff’d, 691 F.3d 1374 (Fed. Cir. 2012).
17
Next, Square One alleges that its clarification explained that its Technical Proposal
merely contained a “typographical/formatting error,” which identified the Chevrolet
Suburban SUV, Ford Econoline Passenger Van, and Toyota Hilux Pick-Up as having a
push-button ignition. Compl. ¶ 59; Pl.’s Resp. 10. Plaintiff states that its clarification
“confirmed that these vehicles are equipped from factory with a keyed ignition and that
Square One understood and would comply with the solicitation’s ignition requirements.”
Pl.’s Resp. 10; see Tab 32, AR 592 (clarification) (stating same); cf. Tab 38, AR 688
(characterizing Square One’s clarification response as an attempt to either “correct their
quote to be in technical compliance with the requirements, or . . . provide vehicles with
altered technical specifications”—neither of which “[could] be accepted”); Pl.’s Mot. 15,
23–24 (disputing GSA’s characterization).
Finally, Square One alleges— and the government concedes, Def.’s Mot. 24—that
O’Gara’s Technical Proposal failed to comply with the Solicitation’s requirements, and
that it therefore should have received an Unacceptable rating, Compl. ¶ 29; Pl.’s Resp.
12.
The court finds that Square One has established that its chance of securing the
award, but for the alleged errors, was not insubstantial. See Info. Tech., 316 F.3d at
1319; Data Gen., 78 F.3d at 1562. Assuming plaintiff’s well-pled allegations to be true,
then Square One may well have been the only technically acceptable offeror. Defendant
argues that “if GSA were to deem Square One’s proposal to be technically acceptable,
there is a possibility that the offers from The Armored Group and Scaletta would have to
be deemed technically acceptable as well”—both of which submitted lower-priced
proposals than Square One. Def.’s Mot. 25–26; see also Def.’s Reply 7 (similar).
However, an offeror “need not be next in line for the consideration of an award in order
to possess standing.” Sci. & Mgmt. Res., Inc. v. United States, 117 Fed. Cl. 54, 62
(2014). That is, plaintiff does not have the burden of showing that it would have received
the contract. See Data Gen., 78 F.3d at 1562 (“To establish prejudice, a protester is not
required to show that but for the alleged error, the protester would have been awarded the
contract.”). Based on the foregoing, the court concludes that Square One’s allegations
are sufficient to establish that it is an interested party to challenge GSA’s original
evaluation and award.
Although Square One has standing to pursue this post-award bid protest, the court
finds that plaintiff’s challenge to the original evaluation and award must nevertheless be
dismissed on mootness grounds.
2. Mootness
Defendant argues that “GSA’s prior evaluation of proposals is no longer at issue
because the award to O’Gara was cancelled prior to the filing of the complaint in this
case, and GSA is taking corrective action that will include re-procuring the requirement.”
18
Def.’s Mot. 15. Defendant argues that “[o]nce the award to O’Gara was cancelled, any
alleged injury stemming from that award was eliminated, and there is no case or
controversy for this Court to adjudicate.” Id. Although framed as a challenge to
plaintiff’s Article III standing, see id. at 14–17, defendant essentially argues that GSA’s
cancellation of the award and proposed corrective action renders the original evaluation
of proposals and award moot, cf. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422, 431 (2007) (“[A] federal court has leeway to choose among threshold
grounds for denying audience to a case on the merits.” (internal quotation marks
omitted)).
The mootness doctrine is one of several justiciability doctrines that applies to this
court. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for
purposes of Article III—‘when the issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 133 S. Ct.
721, 726 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). “[A]s
a general rule, ‘voluntary cessation of allegedly illegal conduct . . . does not make the
case moot.’” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979) (quoting United
States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). Instead, a case becomes moot
when it is unreasonable to expect “that the alleged violation will recur, and . . . interim
relief or events have completely and irrevocably eradicated the effects of the alleged
violation.” Id. (internal citations omitted). Thus, when “corrective action adequately
addresse[s] the effects of the challenged action, and the Court of Federal Claims ha[s] no
reasonable expectation that the action would recur,” the matter should be dismissed as
moot. Chapman Law Firm Co. v. Greenleaf Constr. Co. (Chapman), 490 F.3d 934, 940
(Fed. Cir. 2007). Moreover, “where a defendant’s actions have eliminated the possibility
of meaningful relief, the case ordinarily should be dismissed as moot.”). McTech Corp.
v. United States, 105 Fed. Cl. 726, 731 (2012); see Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992) (stating that a case is not moot if the “court can
fashion some form of meaningful relief” (emphasis omitted)).
To be sure, when the award to O’Gara was originally made, the propriety of that
award and the propriety of GSA’s evaluation of proposals were “live” issues—issues that
were raised by plaintiff before the GAO. See Tab 48, AR 778–926. But those issues
were rendered moot when GSA cancelled the award and filed a notice of corrective
action. Indeed, it is this rationale that prompted GAO to dismiss plaintiff’s protest,
stating “[w]here, as here, an agency undertakes corrective action that will supersede and
potentially alter its prior source selection decision, our Office will generally decline to
rule on a protest challenging the agency’s prior decision on the basis that the protest is
rendered academic.” Tab 63, AR 1088; cf. Tab 68, AR 1142 (dismissing as moot The
Armored Group’s agency-level protest in light of GSA’s notice of corrective action).
Plaintiff requests that the court find the award to O’Gara was improper, Compl. at
40, and to further find that “the contract should have rightfully been awarded to Square
19
One,” id. at 39; see also id. ¶¶ 35, 90; Pl.’s Resp. 6–9 (arguing that the court has the
authority to award the contract to Square One). However, GSA has already cancelled the
task order award to O’Gara, Tab 67, AR 1140–41, and, notwithstanding plaintiff’s
contentions to the contrary, the court is without authority to direct the award to Square
One. 13 Thus, even if the court were to find improprieties in GSA’s original evaluation
and award decision, the court could only enjoin the award to O’Gara, and either order
GSA to re-evaluate the original proposals or re-procure the task order—the latter of
which is the precise action that GSA has volunteered to undertake. See infra Part III.B
(addressing plaintiff’s challenge to the proposed corrective action). Notably, plaintiff
seeks to avoid GSA’s re-evaluation of the original proposals. Pl.’s Resp. 17.
Accordingly, the relief that would otherwise be available has already been granted due to
GSA’s decision to take corrective action. See B&B Med. Servs., Inc., v. United States
(B&B), No. 13-463C, 2014 WL 3587275, at *7 (Fed. Cl. June 23, 2014); Eskridge
Research Corp. v. United States (Eskridge), 92 Fed. Cl. 88, 94 (2010).
Moreover, plaintiff has not pointed to any case, and the court is aware of none, in
which the court proceeded to address on the merits a protest by an unsuccessful offeror
(as opposed to the original awardee) of an agency’s original evaluation of proposals after
the agency had agreed to take corrective action. Rather, ample precedent exists for
dismissing as moot plaintiff’s challenge to the original evaluation and award based on
GSA’s decision to cancel the Solicitation and re-procure the requirement. See Coastal
Envtl. Grp., Inc. v. United States, 114 Fed. Cl. 124, 131 (2013) (“[T]he Court of Federal
Claims has consistently found that the cancellation of a procurement renders a protest of
that procurement moot.” (discussing, inter alia, CCL Serv. Corp. v. United States (CCL),
43 Fed. Cl. 680 (1999))); CCL, 43 Fed. Cl. at 689–90 (concluding that the agency’s
corrective action—cancelation of the solicitation and its decision to re-solicit the
procurement—rendered moot the unsuccessful offeror’s challenge to the original
evaluation and award); see also B&B, 2014 WL 3587275, at *7 (concluding that an
agency’s proposed corrective action—re-evaluating proposals—rendered moot an
13
“It is indisputable that the ultimate grant of a contract must be left to the discretion
of a government agency; the courts will not make contracts for the parties.” Scanwell
Labs., Inc. v. Shaffer (Scanwell), 424 F.2d 859, 869 (D.C. Cir. 1970); see C.A.C.I., Inc.-
Fed. v. United States, 719 F.2d 1567, 1575 (Fed. Cir. 1983) (“[A] disappointed bidder
has ‘no right . . . to have the contract awarded to it in the event the . . . court finds
illegality in the award of the contract . . . .’” (alterations in original) (quoting Scanwell,
424 F.2d at 864)); B&B, 2014 WL 3587275, at *7 n.18 (“[I]t is well settled that in the
event a court determines that the procurement was illegally conducted, the protestor has
no right to be awarded the contract.”); CCL, 43 Fed. Cl. at 688 (stating that award of a
contract is an “improper exercise[] of the court’s authority”); Unified Indus., Inc. v.
United States, 24 Cl. Ct. 570, 575–76 (1991) (“The Scanwell doctrine has been held to
apply to the Claims Court by well-established precedent.” (citing Arrowhead Metals, Ltd.
v. United States, 8 Cl. Ct. 703, 711 (1985)).
20
unsuccessful offeror’s challenge to the original evaluation and award); Croman Corp. v.
United States, 106 Fed. Cl. 198, 212–13 (2012) (similar), aff’d, 724 F.3d 1357 (Fed. Cir.
2013); Metro. Van & Storage, Inc. v. United States, 92 Fed. Cl. 232, 241, 255 (2010)
(concluding that an agency’s completed corrective action—amendment to the solicitation
and evaluation of revised proposals—rendered moot an unsuccessful offeror’s challenge
to the original evaluation and award); Eskridge, 92 Fed. Cl. at 94 (concluding that an
agency’s proposed corrective action—re-evaluating proposals—rendered moot an
unsuccessful offeror’s challenge to the original evaluation and award); cf. ManTech
Telecomms. & Info. Sys. Corp. v. United States (ManTech), 49 Fed. Cl. 57, 65, 72–73
(2001) (reviewing alleged improprieties in the original procurement to establish a base of
reference for evaluating whether the proposed corrective action—amending the
solicitation and evaluating revised proposals—was reasonable), aff’d per curiam, 30 F.
App’x 995 (Fed. Cir. 2002).
In light of the foregoing, plaintiff’s protest as it relates to the original evaluation of
proposals and award decision must be dismissed as MOOT.
B. Square One’s Challenge to GSA’s Proposed Corrective Action
Plaintiff next contends that GSA’s proposed corrective action is inadequate,
improper, and violates the Competition in Contracting Act, 31 U.S.C. § 3553(d)(3)
(2012). 14 See Compl. ¶¶ 47–50 (Count 1.B), 87–90 (Count 6); id. at 39–40; Pl.’s Resp. 2,
16.
The court observes that GSA agreed to take corrective action after reviewing
Square One’s bid protest before the GAO and after “examin[ing] the solicitation
documents, the contents of the procurement file, and the evaluation files.” Tab 61, AR
1084. Based upon this review and examination, GSA “determined that corrective action
[was] in the best interests of the Government.” Id. GSA stated that it would
“recommend the corrective action include an opportunity for the re-submission of
proposals following a revision of the solicitation documents to provide more precise
14
Unlike plaintiff’s challenges to the original evaluation of proposals and award
decision, plaintiff’s challenges to the proposed corrective action are not moot. See
Croman Corp. v. United States, 106 Fed. Cl. 198, 213 (2012) (concluding that the
plaintiff’s protest as to the original evaluation and award decision was moot but that its
protest of the “agency’s corrective action as being insufficient to cure the alleged errors
committed by the agency” was not moot), aff’d, 724 F.3d 1357 (Fed. Cir. 2013); McTech
Corp. v. United States, 105 Fed. Cl. 726, 732 (2012) (holding that a pre-award protest
challenging the scope of an Agency’s proposed corrective action was not moot); Centech
Grp., Inc. v. United States, 78 Fed. Cl. 496, 504 (2007) (observing that although “an
agency’s offer to institute corrective action renders a protest moot . . . in some
circumstances,” where “the corrective action is itself the agency decision which is being
challenged[,] . . . it does not moot the . . . action”).
21
instructions to the offerors on the preparation of quotes.” Id. GSA subsequently
canceled its task order award to O’Gara, Tab 67, AR 1140–41, and the court understands
that GSA either has cancelled or intends to cancel the Solicitation prior to re-procuring
the requirement, see Pl.’s Mot. 2 (challenging GSA’s “cancellation of the solicitation”);
Def.’s Mot. 15 (“GSA is taking corrective action that will include re-procuring the
requirement.”); Pl.’s Resp. 2 (challenging GSA’s decision “to cancel the solicitation and
to take corrective action to reprocure”). Defendant represents that “GSA has not yet
issued a new solicitation.” Def.’s Mot. 13.
“As the Federal Circuit [has] recognized, this [c]ourt possesses jurisdiction to
determine if the corrective action taken by a procuring agency as a result of a bid protest
was reasonable under the circumstances.” Centech Grp., 78 Fed. Cl. at 506 (citing
Chapman, 490 F.3d at 938 (“[T]he Court of Federal Claims’ inquiry into the
reasonableness of the Government’s first proposed corrective action, and the court’s
subsequent determination that the proposed corrective action was not reasonable, were
proper.”)); see also Croman, 106 Fed. Cl. at 213 (stating that “[p]laintiff’s contention that
the corrective action was inadequate to address the alleged errors falls within this court’s
bid protest jurisdiction”); McTech, 105 Fed. Cl. at 732 (stating that “the court has
juridical power to entertain a complaint challenging proposed corrective action”);
ManTech, 49 Fed. Cl. at 73 (examining whether “the proposed corrective action [was]
reasonable under the circumstances and appropriate to remedy the alleged improprieties
that occurred” (capitalization omitted)); DGS Contract Serv., Inc. v. United States, 43
Fed. Cl. 227, 238 (1999) (similar). That GSA has not yet implemented the corrective
action and that Square One was not the original awardee are not “material to the question
of jurisdiction.” Sys. Appl. & Techs., 691 F.3d at 1381. The Federal Circuit “has made
clear that bid protest jurisdiction arises when an agency decides to take corrective action
even when such action is not fully implemented.” Id.
Although the “court may have subject matter jurisdiction over a type of claim
generally, a plaintiff must still establish standing in order to invoke the court’s
jurisdiction.” K-Lak Corp., 93 Fed. Cl. at 755; cf. Sys. Appl. & Techs., 691 F.3d at 1382
(examining both (1) whether this court “properly exercised its jurisdiction” over the
disappointed bidder’s pre-award protest, and (2) whether this court properly determined
that the disappointed bidder had standing to pursue the protest).
1. Standing
Here, the court addresses plaintiff’s challenge to GSA’s proposed corrective
action. Cf. supra Part III.A.1 (addressing plaintiff’s standing to challenge GSA’s original
evaluation and award decision). Challenges to corrective action that involve re-
solicitation of proposals have generally been treated as pre-award protests. See, e.g., Sys.
Appl. & Techs., 691 F.3d at 1382 (“[Plaintiff] lodges a pre-award protest against the
Army’s decision to resolicit proposals.”); Sheridan, 95 Fed. Cl. at 148 (“Where the
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plaintiff . . . files a protest challenging an agency’s decision to resolicit proposals, this
Court has held that plaintiff’s protest ‘is in the nature of a pre-award claim.’” (quoting
IMS Servs., Inc. v. United States, 32 Fed. Cl. 388, 398 (1994))); see also Reema
Consulting Servs., Inc. v. United States, 107 Fed. Cl. 519, 529 (2012) (applying the pre-
award prejudice test to determine whether plaintiff had standing to challenge the agency’s
proposed corrective action (reprocurement)); Centech Grp., 78 Fed. Cl. at 505
(characterizing a plaintiff’s challenge to the agency’s corrective action as an alleged
violation of “preaward conduct”).
The government does not dispute that Square One is a prospective offeror. Thus,
Square One’s standing hinges on whether it can demonstrate a non-trivial competitive
injury that can be addressed by judicial relief. See supra Part II (discussing elements of
standing).
Defendant essentially argues that Square One cannot demonstrate a non-trivial
competitive injury because Square One actually benefits from GSA’s proposed corrective
action. See Def.’s Mot. 15. Because GSA is reprocuring the Solicitation, Square One
“will have the opportunity to be awarded the task order in any possible future
procurement.” Id. Plaintiff counters that reprocuring the Solicitation “just adds more
injury to Square One who must spend more time and money in writing and submitting a
third proposal.” 15 Pl.’s Resp. 15; see also id. at 3 (“Square One is harmed and does not
benefit from GSA’s re-procurement because it will be an added expense of time and
monies in preparing a third proposal.”).
Plaintiff has the burden of establishing its standing by a preponderance of the
evidence. See Lujan, 504 U.S. at 561; Centech Grp., 78 Fed. Cl. at 503. But plaintiff
cites to no authority that suggests that a disappointed offeror’s voluntary incursion of
costs to recompete for contract award for which it remains eligible qualifies as a non-
trivial competitive injury. 16 Simply stated, GSA’s reprocurement does not deprive
15
The proposed corrective action will be the second corrective action taken by GSA
in this procurement. See supra note 5 (referencing the first corrective action).
16
To be sure, the court has consistently found that requiring the original contract
awardee to recompete for contract award further to an agency’s corrective action qualifies
as a non-trivial competitive injury. See, e.g., Sys. Appl. & Techs., 691 F.3d at 1382
(concluding that the plaintiff had standing because “[a] arbitrary decision to take
corrective action without adequate justification forces a winning contractor to participate
in the process a second time and constitutes a competitive injury to that contractor”);
Navarro Research & Eng’g, Inc. v. United States, 106 Fed. Cl. 386, 404 (2012) (finding
that the plaintiff had standing because it was the successful “contract awardee not once,
but twice”); CBY Design Builders, 105 Fed. Cl. at 337 (“If, as [plaintiff] alleges, it is
arbitrarily being required to win the same award twice, this is certainly the sort of non-
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Square One of the opportunity to compete for contract. See Distributed Sols., Inc. v.
United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (finding that loss of “the opportunity
to compete” affected the plaintiffs’ direct economic interest); MORI Assocs., Inc. v.
United States, 102 Fed. Cl. 503, 542 (2011) (same). Because Square One has failed to
establish a redressable competitive injury resulting from GSA’s decision to reprocure the
Solicitation, the court concludes that Square One is not an interested party. Accordingly,
plaintiff’s protest as it relates to the proposed corrective action must be dismissed
because plaintiff LACKS STANDING.
In the interest of completeness, the court also addresses the justiciability doctrine
of ripeness, which serves as an alternative ground for dismissing plaintiff’s challenge to
the proposed corrective action.
2. Ripeness
“The justiciability doctrine of ripeness circumscribes the court’s review to cases
that present realized rather than anticipated or hypothetical injuries.” Madison Servs.,
Inc. v. United States, 90 Fed. Cl. 673, 678 (2009) (citing United Public Workers of Am.
v. Mitchell, 330 U.S. 75, 89–90 (1947)). “A claim is not ripe where it rests upon
‘contingent future events that may not occur as anticipated, or indeed may not occur at
all.’” Texas Bio- & Agro-Def. Consortium v. United States, 87 Fed. Cl. 798, 804 (2009)
(quoting Thomas v. Union Carbide, 473 U.S. 568, 581 (1985)); see also Commonwealth
Edison Co. v. United States, 56 Fed. Cl. 652, 658 (2003) (quoting Texas v. United States,
523 U.S. 296, 300 (1998)). Thus, “the ripeness doctrine . . . prevent[s] the courts,
through avoidance of premature adjudication, from entangling themselves in abstract
disagreements over administrative policies.” Abbott Labs. v. Gardner, 387 U.S. 136, 148
(1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). It also
operates “to protect the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete way by the challenging
parties.” Id. at 148–49. An agency action is “ripe for judicial review” when (1) it “marks
‘the consummation of the agency’s decisionmaking process,’ i.e., it [is] not . . . merely
tentative or interlocutory,” and (2) it determines “rights or obligations” or is one “from
trivial competitive injury sufficient to support its standing to object to the corrective
action.”); Centech Grp., 78 Fed. Cl. at 504 (concluding that the plaintiff had standing
because it “was stripped of its status as the successful awardee de facto and relegated to
competing anew”); cf. Sys. Appl. & Techs., Inc., v. United States, 100 Fed. Cl. 687, 708
(2011) (observing that “in almost every decision in which the standing of a contract
awardee to protest a procuring agency’s corrective action was addressed, the court has
concluded that the protester had standing” (emphasis added)), aff’d, 691 F.3d 1374 (Fed.
Cir. 2012). Here, however, it is O’Gara, the defendant-intervenor, that was the original
contract awardee—not Square One.
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which legal consequences will flow.” NSK Ltd. v. United States, 510 F.3d 1375, 1385
(Fed. Cir. 2007) (quoting Bennett v. Spear, 520 U.S. 154, 177 (1997)).
The court first addresses plaintiff’s contention that GSA’s decision to amend the
solicitation and re-procure the task order was “improper” because Square One was “an
acceptable [offeror] next in line” for award. Compl. ¶ 90. In plaintiff’s view, “[t]here
was no need to resolicit,” because “the contract [should have been] issued to Square
One.” Id. Plaintiff essentially argues that awarding the contract to Square One was the
only reasonable corrective action GSA could have taken under the circumstances—an
argument premised on a finding that GSA should have rated Square One’s Technical
Proposal as Acceptable. However, the court has already found that GSA’s evaluation of
the original proposals is moot. See supra Part III.A.2. Moreover, even assuming
arguendo that plaintiff were correct, the court is without authority to direct the award to
Square One. See supra note 13.
The court next addresses plaintiff’s contention that “[i]n a re-procurement, Square
One would only correct its typographical error and again explain that its armor package
under the GSA Schedule does not have GSA part numbers as it is an option, and those
part numbers would be a manufacturer number.” Pl.’s Resp. 16. As defendant correctly
observes, Def.’s Reply 9, plaintiff may raise any concerns regarding its ability to comply
with the amended solicitation in a pre-award bid protest, see Blue & Gold Fleet, L.P. v.
United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007); see also Centech Grp., 78 Fed. Cl.
at 505 (“As the Federal Circuit has recognized, the challenge to terms of a solicitation
containing a patent error must be raised preaward or the ability to raise such an objection
is waived.” (citing Blue & Gold Fleet, 492 F.3d at 1313)). Thus, any claims plaintiff
might have in the future regarding the language of the amended solicitation would be the
subject of a different protest action. Such claims are not currently ripe for review.
The court now turns to plaintiff’s suggestion that GSA’s decision to reprocure the
Solicitation is merely a pretext for affording O’Gara an additional opportunity to correct
its proposal. Pl.’s Resp. 3. In plaintiff’s view, “there is an appearance of impropriety and
a concerted effort to award to one offeror over the others.” Id. at 15; see id. at 5 (“It
appear[s] that the GSA was trying to find fault with Square One and trying to excuse
O’Gara.”); Compl. ¶ 81 (“[T]he corrective action is a breach of good faith and fair
dealing because it is merely an excuse and [an attempt] to get more time for [O’Gara] . . .
to list its items on its GSA Schedule.”).
Plaintiff acknowledges, as it must, that there is “[a] strong presumption that
government officials act correctly, honestly, and in good faith when considering bids.”
Pl.’s Resp. 15 (citing Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed.
Cl. 488, 502 (2009)). Indeed, the court is “required to assume that the Government [will]
carry out the corrective action in good faith.” Chapman, 490 F.3d at 940; see also
Croman, 724 F.3d at 1364 (“The presumption that government officials act in good faith
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is enshrined in our jurisprudence.”). Moreover, this court has stated that, “[a]bsent
countervailing indications, this presumption ought to be at its zenith where the
government has yet to act.” Boston Harbor Dev. Partners, 103 Fed. Cl. at 503. Plaintiff
argues, however, that this good faith presumption “is voided [when] the agency is
allowing a third try to a bidder and time to correct and be responsive to the solicitation.”
Pl.’s Resp. 15.
The court agrees with defendant that “Square One’s allegation that a re-
procurement is a pretext to find a way to award the contract to O’Gara is entirely without
basis.” Def.’s Mot. 15. Where, as here, a plaintiff alleges that the government has acted
in bad faith, the plaintiff must offer “well-nigh irrefragable proof” in support of its claim.
Croman, 724 F.3d at 1364 (internal quotation marks omitted); Chapman, 490 F.3d at 940.
Square One’s unsubstantiated allegations, however, do not approach the well-nigh
irrefragable proof necessary to overcome the presumption that government officials act in
good faith. Accord Eskridge, 92 Fed. Cl. at 95, 95 n.8 (concluding same); cf. Def.’s Mot.
15 (“[I]f GSA officials truly were predetermined to award the task order to O’Gara,
canceling the award to O’Gara and re-procuring the requirement seems an inefficient way
to accomplish the goal.”).
The court also agrees with defendant that “[a]ny allegation that GSA’s officials
will not act in good faith in executing the corrective action, which includes re-procuring
the requirement, raises purely hypothetical arguments about future events that [might] or
[might] not occur.” Def.’s Mot. 15; see also id. at 15–16 (“Square One’s allegations raise
nothing more than a basis for a purely academic discussion about what could happen
when GSA re-procures the task order.”). If at the conclusion of the re-procurement
process, the record establishes that GSA “did not properly carry out the corrective
action,” Square One will have the opportunity to challenge the new award decision. See
Eskridge, 92 Fed. Cl. at 95; cf. Pl.’s Resp. 9, 17 (acknowledging that Square One could
return to this court to challenge GSA’s administration of the corrective action). Thus,
plaintiff’s anticipated claims regarding the implementation or execution of GSA’s
proposed corrective action are not yet ripe for review. See Eskridge, 92 Fed. Cl. at 95
(concluding that the protestor’s “[c]hallenges to the outcome of th[e] [corrective] action
at this time are . . . not fit for judicial review”).
In light of the foregoing, plaintiff’s protest as it relates to the proposed corrective
action must be dismissed as UNRIPE.
C. The Court Lacks Jurisdiction Over Square One’s Claim for Bid Protest
Costs
Square One contends that it “is entitled to an award of protests costs, including
attorneys’ fees.” Pl.’s Mot. 26; see Compl. at 40 (requesting an award of “reasonable
attorney’s fees, costs and expenses of this matter). This court, however, does not have
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jurisdiction to entertain plaintiff’s request for bid protest costs or related attorney’s fees.
“[T]he Tucker Act only allows recovery for bid preparation and proposal costs.” S.K.J.
& Assocs., Inc. v. United States, 67 Fed. Cl. 218, 225 (2005) (citing 28 U.S.C. §
1491(b)(2)); see Coastal Envtl. Grp., 114 Fed. Cl. at 132 (quoting same).
To the extent that Square One seeks bid preparation and proposal costs, see Pl.’s
Resp. 3, 15, Square One is not entitled to such relief. GSA is re-procuring the
Solicitation, and Square One retains the opportunity to compete for the task order. As
such, plaintiff’s investment in its proposals is not “a needless expense and [plaintiff] may
yet see the fulfillment of the promise of fair and impartial consideration which induced it
to spend its money to prepare its bid.” Beta Analytics Int’l, Inc. v. United States, 75 Fed.
Cl. 155, 159 (2007) (internal quotation marks and citations omitted); B&B, 2014 WL
3587275 at *7 n.18 (“B & B’s request for bid preparation and proposal costs is not yet
ripe because B & B remains in the competition for the contract and may be awarded the
contract.”); see Tech. Innovation, Inc. v. United States, 93 Fed. Cl. 276, 279 n.12 (2010)
(observing that the plaintiff’s “claim for bid preparation and proposal costs would seem
to be mooted by the [agency’s corrective action]”); CCL, 43 Fed. Cl. at 693 (dismissing
as moot plaintiff’s request for bid preparation costs in light of the agency’s corrective
action); cf. Def.’s Reply 8 (“We are aware of no authority for awarding costs to an
unsuccessful offeror who will have the opportunity to re-compete for an award.”).
IV. Conclusion
Because plaintiff’s bid protest is “trapped between the devil and the deep blue sea
of ripeness and mootness,” plaintiff has failed to allege a justiciable controversy.
Madison Servs., 90 Fed. Cl. at 678. Moreover, plaintiff lacks standing to challenge the
proposed corrective action. Accordingly, plaintiff’s motion is DENIED, and defendant’s
cross-motion is GRANTED. Plaintiff’s bid protest is DISMISSED. The Clerk of Court
shall enter judgment accordingly. No costs.
The Clerk of the Court shall assign to the undersigned any future protests
involving re-procurement of the subject solicitation. If a future protest is filed, the parties
shall indicate in their filing that the case is related to this one and request that it be
assigned to the undersigned.
IT IS SO ORDERED.
s/ Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Chief Judge
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