M. Nicolas Enterprises, Llc. ( 2021 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
_____________________________________
)
M NICOLAS ENTERPRISES, LLC, )
d/b/a WORLD WIDE HEALTH SERVICES, )
and MICHELLE NICOLAS, individually, )
)
Plaintiffs, )
)
v. ) No. 20-cv-691C
)
THE UNITED STATES, ) Filed: September 1, 2021
)
Defendant. )
_____________________________________)
OPINION AND ORDER
Plaintiffs M Nicolas Enterprises, doing business as World Wide Health Services
(“WWHS”), and Michelle Nicolas bring this action seeking relief under the Tucker Act, 28 U.S.C.
§§ 1491(a)(1) and (b)(1) (2011); the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2011); and the Contract Disputes Act (“CDA”), 41 U.S.C. § 7101 et. seq. (1966), for alleged
violations of law in connection with a U.S. Department of Veterans Affairs (“VA”) solicitation to
procure adult day care services. The Government moved to dismiss Plaintiffs’ claims, with the
exception of WWHS’s § 1491(b)(1) bid protest claim, for lack of jurisdiction under Rule 12(b)(1)
of the Rules of the United States Court of Federal Claims (“RCFC”). For the reasons that follow,
the Government’s partial motion to dismiss is GRANTED. The Court lacks jurisdiction as to each
claim except WWHS’s § 1491(b)(1) claim.
I. BACKGROUND
A. Factual History
Ms. Nicolas is the sole owner and President of WWHS, which operates as an adult day care
facility in West Palm Beach, Florida. Pls.’ Am. Compl. Pursuant to R. 3.1 ¶¶ 4–5, 12, ECF No.
57. On January 29, 2018, Ms. Nicolas, acting through and on behalf of WWHS, submitted a
proposal to VA Network Contracting Office 8 (“NCO 8”) in response to a VA solicitation
(“Solicitation”) seeking to procure adult day care services for veterans at community facilities
under indefinite delivery contracts. Id. ¶¶ 10(c), 13–14. The Solicitation anticipated multiple
awards. Id. ¶ 13.
As the first step in considering WWHS for a contract award, the VA inspected WWHS’s
facility in March 2018. Id. ¶ 17. Plaintiffs allege that the VA employee conducting the inspection
informed Ms. Nicolas of only a few minor items that needed correction but otherwise stated that,
once corrected, he would not need to return to the facility. Id. ¶ 18. He allegedly mentioned,
however, that he wanted to get more information about whether the facility needed additional fire
equipment. Id.
About a week later, Ms. Nicolas received an email from VA employee Charlene Crace,
attaching a copy of the inspection report. Id. ¶ 19. Ms. Crace allegedly stated that the initial
inspection had identified ten deficiencies and told Ms. Nicolas that she had until April 21, 2018,
to submit a corrective action plan to the VA’s West Palm Beach Community Program Office. Id.
¶¶ 19, 21. As relevant here, the most substantial deficiency identified in the report was the need
for a fire alarm system with “manual means of activation as well as smoke detection,” id. ¶ 21,
despite the fact that WWHS had an existing fire alarm system, id. ¶ 23. Plaintiffs claim the
inspection report contained several inaccuracies regarding WWHS’s facility, id. ¶ 20, but it
nonetheless stated that WWHS was “recommended for placement pending corrective action” of
the listed deficiencies, id. ¶ 22 (emphasis omitted).
Plaintiffs allege that Ms. Nicolas promptly cured all the deficiencies, with the exception of
the fire alarm system, and sent Ms. Crace documentation that the deficiencies had been fully
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addressed. Id. ¶¶ 21, 23. Ms. Nicolas’s email also sought clarification regarding the fire alarm
requirement, which she believed unnecessary and contrary to the applicable life safety code in
effect at the time. See id. ¶ 22 n.4. The next day—several weeks before the deadline to correct
deficiencies—Ms. Crace allegedly notified Ms. Nicolas via email that the VA would not be
moving forward with WWHS’s proposal for reasons that Plaintiffs claim contradict the realities of
WWHS’s facility. 1 Id. ¶ 24.
Frustrated, Plaintiffs claim that Ms. Nicolas emailed her communications with Ms. Crace
to Rodney Cassidy, the VA Administrative Contracting Officer in Tampa and the named contact
for the Solicitation. Id. ¶ 27. According to Plaintiffs, Mr. Cassidy told Ms. Nicolas that Ms.
Crace’s denial was sent erroneously, and Ms. Nicolas should disregard it. Id. When a letter from
Ms. Crace confirming the denial arrived soon after, Plaintiffs claim Ms. Nicolas again contacted
Mr. Cassidy, who again told her to disregard the denial. Id. ¶ 28. In an email received on April 3,
2018, Mr. Cassidy allegedly told Ms. Nicolas to “go ahead and put in the smoke detection (smoke
alarms)” and assured her that he “d[id] not foresee . . . any problems when you have your
reinspection.” Id. ¶ 29.
Several weeks later, Ms. Nicolas allegedly sent a copy of the contract for the installation
of a fire alarm system costing $10,000 to the VA’s West Palm Beach office, as well as to Mr.
Cassidy. Id. ¶¶ 31–32. Once the fire alarm system was fully installed, Ms. Nicolas allegedly sent
documentation to the VA confirming its installation. Id. ¶ 34. Plaintiffs claim Ms. Nicolas then
received an email from Mr. Cassidy confirming “that your fire inspection plan 3-15-2018 has been
satisfied” and indicating that the VA would be conducting a second inspection. Id.
1 Plaintiffs’ Amended Complaint does not specify the reason(s) provided in Ms. Crace’s
email.
3
After the second inspection in July 2018, Ms. Nicolas allegedly contacted Mr. Cassidy for
an update and raised concerns about the lack of communication regarding the status of WWHS’s
proposal. Id. ¶¶ 35–36. Mr. Cassidy allegedly informed Ms. Nicolas, who is African American,
that it “may be the color of your skin” that was causing the difficulty. Id. ¶ 36.
On August 8, 2018, Ms. Nicolas received, via email from Mr. Cassidy, a letter from VA
Contracting Officer Yamil Rodriguez stating that the VA was not recommending WWHS for
approval of the solicitation contract. Id. ¶ 37. Plaintiffs allege the letter contained a list of the
same deficiencies Ms. Nicolas purportedly corrected, as well as a series of new ones. Id. In
response to a subsequent email from Ms. Nicolas, Ms. Rodriguez allegedly stated that the denial
was based on the second inspection and that WWHS had “more than a fair opportunity” in the
bidding process considering that it had two inspections, despite the terms of the Solicitation only
requiring one. Id. ¶ 38.
Unsatisfied with Ms. Rodriguez’s response, Plaintiffs allege that Ms. Nicolas elevated
WWHS’s case to the Division Chief of NCO 8. Id. ¶ 39. He allegedly informed Ms. Nicolas that
the Solicitation omitted VA Handbook 1147.1 (the “Handbook”), which he attached to the email.2
Id. ¶ 40. According to Plaintiffs, this document appeared to be a draft and not an official
government handbook. Id. Moreover, they allege it is not the handbook specifically referenced
in the Solicitation. Id. ¶ 41 n.8 (citing Handbook 1141.03, “Adult Day Health Care”). On August
29, 2018, the Division Chief allegedly sent a follow up email providing a cursory explanation of
the basis for denying WWHS’s proposal, which Plaintiffs allege contained several inaccuracies.
Id. ¶ 43.
From there, Ms. Nicolas was put in contact with the Deputy Director of Contracting for
2 Plaintiffs do not attach a copy of the Handbook to the Amended Complaint.
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NCO 8. Id. ¶ 44. Per his request, Ms. Nicolas allegedly sent a list of five “questions she wanted
answers to” regarding her concerns of bias and discrimination in the solicitation process. Id. ¶
44(1)-(2). On September 11, 2018, the Division Chief responded by email, allegedly stating that:
(1) despite being unable to verify the accuracy of the copy provided, the Handbook was
nonetheless current; (2) he could not detect any bias or prejudice in the evaluation of WWHS’s
proposal, (3) WWHS did in fact receive a fair opportunity to apply for a solicitation contract, and
(4) no further action would be taken on WWHS’s proposal. Id. ¶ 45(a)-(d). The Division Chief
further stated that any remedies to resolve concerns about “direction given to members of
[WWHS]” during the solicitation process should be addressed in accordance with Part 33 of the
Federal Acquisition Regulations (“FAR”) or through other legal remedies. Id. ¶ 45(e).
Plaintiffs claim that Ms. Nicolas thereafter contacted the Executive Director of the VHA
Regional Procurement Office East, who allegedly stated that an independent team had conducted
a review and determined errors existed in the September 11 response. Id. ¶ 47. Plaintiffs claim
that the Executive Director apologized for not properly handling WWHS’s proposal. Id. Despite
allegedly assuring Ms. Nicolas that a new solicitation would be issuing in October 2018, none had
issued as of the date Plaintiffs filed their complaint. Id.
B. Procedural History
Plaintiffs first filed their Complaint (ECF No. 1) in the United States District Court for the
Southern District of Florida on May 13, 2019, followed by an Amended Complaint (ECF No. 35)
filed in January 2020. After the Government moved to dismiss the Amended Complaint for lack
of jurisdiction, the district court entered an order in April 2020 transferring the case to the Court
of Federal Claims. See Order Transferring Venue, ECF No. 40.
On August 21, 2020, Plaintiffs filed in this Court an Amended Complaint Pursuant to
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RCFC 3.1, alleging that in considering WWHS’s proposal the VA violated the terms of the
Solicitation; unlawfully imposed terms in excess of the Solicitation, giving rise to a breach of an
implied-in-fact contract; discriminated against Plaintiffs in violation of the Fifth Amendment’s
right to due process and equal protection; and arbitrarily and capriciously denied Plaintiffs an
award under the Solicitation. See generally ECF No. 57. Plaintiffs assert their claims under
Tucker Act §§ 1491(a)(1) and (b)(1), APA § 706, and the CDA. See id.
On September 25, 2020, the Government moved to dismiss under RCFC 12(b)(1) for lack
of subject matter jurisdiction. See Def.’s Sealed Mot. to Dismiss, ECF No. 68 (redacted version).
According to the Government, Plaintiffs’ § 1491(a)(1) claims should be dismissed because bid
protest claims arising in the procurement context must be brought exclusively under § 1491(b)(1).
Id. at 6–8. Furthermore, it argues that the APA and Fifth Amendment claims are beyond the
Court’s jurisdiction, since neither source of law is money-mandating under the Tucker Act. Id. at
8. As to Plaintiffs’ CDA claims, the Government argues that Plaintiffs failed to comply with the
CDA’s prerequisites, namely they failed to submit a written claim to the contracting officer and
never received her final decision on that claim. Id. at 9–10. Finally, the Government contends
that Ms. Nicolas lacks standing to bring any claims individually. Id. at 10. As the Government
sees it, only WWHS’s § 1491(b)(1) bid protest claim can survive dismissal. Id. at 1, 10.
Plaintiffs disagree. As to their § 1491(a)(1) claims, they argue that by requiring WWHS
to install a duplicate fire alarm system—based on a handbook that was outside the specifications
of the Solicitation—the Government entered into an implied-in-fact contract with Plaintiffs, which
is distinct from their § 1491(b)(1) claim. Pls.’ Mem. in Opp’n to Def.’s Mot. to Dismiss at 4–6,
ECF No. 67. They also raise a new argument, claiming that the Government’s addition of
requirements outside the terms of the Solicitation resulted in an illegal exaction. Id. Additionally,
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they state that their Count II APA and Fifth Amendment claims are “substantive elaborations or
applications of the jurisdictional claims of § 1491(b)(1), as incorporated through § 1491(b)(4), or
those not otherwise covered by the claims and issues under Count I under § 1491(a)(1).” Id. at 11.
Finally, Plaintiffs contend that they met the CDA prerequisites, albeit without the degree of
formalism the Government argues is necessary. Id. at 15. Plaintiffs further argue that Ms. Nicolas
is a real party of interest vis-à-vis the § 1491(a)(1) claims because she personally incurred costs
on behalf of WWHS and “it is through [Ms. Nicolas] that her entity acquired a racial identity”
resulting in the alleged discrimination. Id. As the sole owner of WWHS, Plaintiffs assert she also
has third party standing as to both the §§ 1491(a)(1) and (b)(1) claims. Id. at 16.
II. LEGAL STANDARDS
A. Jurisdiction of the Court of Federal Claims
Establishing the Court’s subject matter jurisdiction is an “inflexible” threshold matter.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). The Court may inquire into
jurisdiction even if a defendant does not raise a jurisdictional objection. The jurisdiction of the
Court “cannot be conferred by waiver or acquiescence.” Coastal Corp. v. United States, 713 F.2d
728, 730 (Fed. Cir. 1983). Should the Court determine that jurisdiction is lacking, it must dismiss
a plaintiff’s complaint. See RCFC 12(b)(1), (h)(3).
Under the Tucker Act, the Court of Federal Claims may hear “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States.” 28 U.S.C.
§ 1491(a)(1). The Act, however, “does not create any substantive right” for money damages
against the United States. United States v. Testan, 424 U.S. 392, 398 (1976). To establish the
Court’s jurisdiction under § 1491(a)(1), a plaintiff must identify a source of substantive law
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mandating the payment of money damages. Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005). The Court also has jurisdiction under the Tucker Act over actions by interested parties
“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).
Under the CDA, the Court has jurisdiction over a contractor’s appeal from a decision by a
contracting officer relating to a contract for the procurement of services. 41 U.S.C. §§ 7102(a)(2),
7104(b); see 28 U.S.C. § 1491(a)(2). CDA jurisdiction “requires both that a claim meeting certain
requirements [has] been submitted to the relevant contracting officer and that the contracting
officer [has] issued a final decision on that claim.” K-Con Bldg. Sys., Inc. v. United States, 778
F.3d 1000, 1005 (Fed. Cir. 2015); see 41 U.S.C. §§ 7103, 7104(b).
B. Standard of Review
The burden of establishing jurisdiction by a preponderance of the evidence falls upon the
plaintiff. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); see Kemp
v. United States, 65 Fed. Cl. 818, 820 (2005). In deciding a motion to dismiss pursuant to RCFC
12(b)(1), “the court assumes that all well-pleaded facts alleged in the complaint are true and draws
all reasonable inferences in favor of plaintiff.” Kemp, 65 Fed. Cl. at 820 (citing Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).
If jurisdictional facts are disputed, the plaintiff may not rest on mere allegations; instead, it must
produce competent proof sufficient to support its allegations. McNutt v. Gen. Motors Acceptance
Corp. of Ind., 298 U.S. 178, 189 (1936); Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.
2002). The Court is free in such case to “look beyond the pleadings and ‘inquire into jurisdictional
facts’ to determine whether jurisdiction exists.” K-Lak Corp. v. United States, 93 Fed. Cl. 749,
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752 (2010) (quoting Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)).
III. DISCUSSION
Other than WWHS’s § 1491(b)(1) bid protest claim, Plaintiffs’ claims must be dismissed
pursuant to RCFC 12(b)(1) because the allegations in the Amended Complaint do not establish
subject matter jurisdiction. Plaintiffs likewise fail to demonstrate that Ms. Nicolas has standing to
pursue claims individually.
A. The Court Lacks Jurisdiction to Hear Plaintiffs’ § 1491(a)(1) Claims.
1. The Allegations Asserted in Count I Are Bid Protest Claims.
Count I of the Amended Complaint alleges claims under both §§ 1491(a)(1) and (b)(1)
related to the VA’s consideration and denial of WWHS’s proposal. The Government contends
that Plaintiffs’ allegations, properly construed, assert only a bid protest claim related to the VA’s
procurement of services, and thus the Court’s jurisdiction is limited exclusively to § 1491(b)(1).
ECF No. 68 at 7; Def.’s Reply to Pls.’ Opp’n to Mot. to Dismiss at 2–3, ECF No. 73 (redacted
version). The Court agrees.
What the Amended Complaint categorizes as § 1491(a)(1) claims more aptly allege a bid
protest challenging the VA’s solicitation process and decision not to award Plaintiffs a contract.
See e.g., ECF No. 57 ¶ 49 (alleging that the VA violated the express terms of the Solicitation,
imposed additional terms in excess of the Solicitation, unlawfully denied award of the Solicitation,
and discriminated against Plaintiffs in the solicitation process). There is also no dispute that the
solicitation at issue relates to an Executive agency’s procurement of services. ECF No. 68 at 7;
ECF No. 57 ¶ 13; see Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008)
(defining procurement under § 1491(b)(1) to include “all stages of the process of acquiring
property or services, beginning with the process for determining a need for property or services
9
and ending with contract completion and closeout” (emphasis omitted) (quoting 41 U.S.C. §
403(2) (2011)).
The Federal Circuit determined in Resource Conservation Group, LLC v. United States,
597 F.3d 1238 (Fed. Cir. 2010), and more recently in Safeguard Base Operations, LLC v. United
States, 989 F.3d 1326 (Fed. Cir. 2021), that this Court’s jurisdiction over a bid protest claim in the
procurement context arises “under § 1491(b)(1), and only § 1491(b)(1).” Safeguard Base
Operations, 989 F.3d at 1342; see Res. Conservation Grp., 597 F.3d at 1246. In Reservation
Conservation Group, the Federal Circuit addressed the effect of the Administrative Dispute
Resolution Act of 1996 (“ADRA”) on the Court of Federal Claims’ jurisdiction over bid protest
claims under § 1491(a)(1). See Res. Conservation Grp., 597 F.3d at 1245–46. As the Court
explained, prior to the enactment of ADRA, the Court of Federal Claims exercised jurisdiction
under § 1491(a)(1) over “suits by disappointed bidders challenging contract awards based on
alleged improprieties in the procurements process” under an implied contract theory that the
Government would fairly and honestly consider proposals for government contracts. See id. at
1242. To eliminate problems that arose after the decision in Scanwell Labs., Inc. v. Shaffer, 424
F.2d 859 (D.C. Cir. 1970), which held that federal district courts can review agency procurement
decisions under the APA, ADRA expanded the Court of Federal Claims’ jurisdiction by
authorizing it under § 1491(b)(1) to entertain the “full range of procurement protest cases.” Res.
Conservation Grp., 597 F.3d at 1243 (quoting H.R. Rep. No. 104-841, at 10 (1996)). While
holding that the pre-existing implied-in-fact-contract jurisdiction under § 1491(a)(1) survived
ADRA in non-procurement bid protests, Reservation Conservation Group determined that §
1491(b)(1)’s jurisdiction is “exclusive where [§] 1491(b)(1) provide[s] a remedy (in procurement
cases).” Id. at 1246.
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Following the conclusion of briefing in this case, Safeguard Base Operations addressed
the enduring ambiguity of whether the same implied-in-fact contract jurisdiction survived in the
procurement context, and if so, whether jurisdiction fell under §§ 1491(a)(1) or (b)(1). 989 F.3d
at 1341–42. Answering this question, the Federal Circuit held that, in a procurement action, the
Court of Federal Claims has jurisdiction over a claim that the Government breached an implied-
in-fact contract to fairly and honestly consider a bidder’s proposal “under § 1491(b)(1), and only
§ 1491(b)(1).” Id. at 1342. Central to the Federal Circuit’s holding was Congress’s intent “[not]
to limit the Claims Court’s jurisdiction over any type of procurement bid protest” but “to
consolidate jurisdiction over all such matters in the Claims Court.” Id. (explaining that Congress
intended for the APA standard of review to apply “to all procurement protest cases in the Court
of Federal Claims.” (emphasis added) (quoting H.R. Rep. No. 104-841, at 10)); see also Res.
Conservation Grp., 597 F.3d at 1246 (“The legislative history makes clear that the ADRA was
meant to unify bid protest law in one court under one standard.”).
Accordingly, the only claim in Count I that can survive dismissal is the bid protest under
the Court’s § 1491(b)(1) jurisdiction.
2. Assuming the Allegations Are Construed as Separate § 1491(a)(1) Claims,
Plaintiffs Have Not Demonstrated Jurisdiction.
Plaintiffs’ Opposition does not take issue with the Federal Circuit’s precedent or the
legislative history of ADRA but rather argues that nothing prohibits the Court from exercising
concurrent jurisdiction under both §§ 1491(a)(1) and (b)(1). ECF No. 67 at 10. They contend that
the VA’s imposition of the fire alarm requirement exceeded the terms of the Solicitation, and thus
gave rise to separate implied-in-fact contract and constitutional claims under § 1491(a)(1). ECF
No. 57 ¶ 49(b), (d)–(f); ECF No. 67 at 4. In their brief, Plaintiffs allege for the first time that such
allegations support an illegal exaction claim, as well. ECF No. 67 at 4–6. As discussed above, it
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would be a stretch to construe Plaintiffs’ § 1491(a)(1) claims as distinct from their § 1491(b)(1)
bid protest claim; but even assuming they were, Plaintiffs have failed to demonstrate that the Court
would have jurisdiction to entertain them.
a. Implied-In-Fact Contract Claim
Plaintiffs allege a breach of an implied-in-fact contract with the VA based on: (1) the VA’s
alleged assertion that WWHS would move forward with the Solicitation if it installed a duplicative
fire alarm system in its facility, (2) Plaintiffs’ reliance to their detriment on the VA’s
representations by incurring costs to install the new system, and (3) the VA’s decision not to award
WWHS a contract under the Solicitation despite compliance with the fire alarm requirement. ECF
No. 57 ¶ 49(b); see ECF No. 67 at 4. Plaintiffs specifically allege in Count I that imposing such
requirement was unlawful because it was unauthorized by (and exceeded the terms of) the
Solicitation. Id. The Government contends in its Reply that the CDA applies to Plaintiffs’ contract
claim, and thus “provides the ‘exclusive’ remedy for breach.” 3 ECF No. 73 at 3 (quoting Dalton
v. Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir. 1995)). The Court will address its
CDA jurisdiction below, but as an initial matter, Plaintiffs’ implied-in-fact contract claim fails for
a more fundamental reason: it fails to plead all the elements of such claim.
To demonstrate jurisdiction under § 1491(a)(1), Plaintiffs must assert a “well pleaded
allegation” of a breach of implied-in-fact contract. Bank of Guam v. United States, 578 F.3d 1318,
1325 (Fed. Cir. 2009). The Federal Circuit has “held that jurisdiction under this provision requires
no more than a non-frivolous allegation of a contract with the government.” Engage Learning,
Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (emphasis in original) (citing Lewis v. United
3If the CDA does apply to Plaintiffs’ breach of contract claim, then the CDA—not §
1491(a)(1)—would be the exclusive remedy. Dalton, 50 F.3d at 1017.
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States, 70 F.3d 597, 602, 604 (Fed. Cir. 1995)). Whether a contract actually existed—i.e., whether
a plaintiff has established all the elements necessary to the formation of a valid contract—is not a
jurisdictional question. See id. at 1354–55. Nonetheless, the jurisdictional inquiry “‘starts with
the complaint, which must . . . state the necessary elements of the plaintiff’s claim, independent of
any defense that may be interposed.’” Perry v. United States, 149 Fed. Cl. 1, 17 (2020) (quoting
Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997), aff’d, 2021 WL 2935075 (Fed. Cir.
July 13, 2021)). Accordingly, to show jurisdiction, a plaintiff must at least plead the elements of
a contract: “(1) mutuality of intent to contract; (2) consideration; (3) an unambiguous offer and
acceptance; and (4) actual authority on the part of the government’s representative to bind the
government.” Marchena v. United States, 128 Fed. Cl. 326, 331 (2016) (citation omitted).
Here, Plaintiffs’ allegations with respect to the fourth element (authority) are fatal to their
contract claim. Not only do Plaintiffs fail to allege that the VA employees upon whose alleged
representations they relied had actual authority to bind the Government, they expressly aver they
did not. Specifically, Plaintiffs allege that conditioning WWHS’s ability to move forward in the
solicitation process on the requirement that it install a new fire alarm system was “unauthorized
by the solicitation” and “in excess” of the Solicitation’s terms. ECF No. 57 ¶ 49(b); ECF No. 67
at 4. Indeed, in pleading the same implied-in-fact contract as the basis of the CDA claim in Count
III, Plaintiffs specifically allege that it constituted an “unauthorized commitment.” ECF No. 57 ¶
66. They do not allege that such commitment was ratified by the VA, either on the individual or
agency level. Rather, Plaintiffs claim that the VA’s failure to award WWHS a contract under the
Solicitation after it satisfied the fire alarm requirement “necessitate[s] the ratification of an
unauthorized commitment pursuant to 48 C.F.R. [§] 801.602-3.” Id. ¶ 69. That VA regulation
merely sets forth the procedures for a contracting officer to request ratification from an appropriate
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VA approving authority. 48 C.F.R. § 801.602-3 (2008). It does not require ratification in any
circumstance, nor does it purport to create any right or benefit enforceable at law by a party in a
civil action.
Assuming the truth of Plaintiffs’ allegations, as the Court must at this stage, Plaintiffs have
pled themselves out of court with respect to an implied-in-fact contract claim through allegations
that negate at least one element of their claim.
b. Illegal Exaction Claim
In their Opposition, Plaintiffs raise—for the first time—an alternative argument that (if not
an implied-in-fact contract) the imposition of the fire alarm requirement resulted in an illegal
exaction. ECF No. 67 at 4–5. Specifically, Plaintiffs argue that the VA used the Handbook to
impose an unlawful requirement that “resulted in the payment of money . . . to better the
governments [sic] deal beyond the terms of the solicitation.” Id. at 5. Despite arguing that such
claim is “plain in the facts of the pleading,” id. at 4, the Amended Complaint contains no
articulation of an illegal exaction claim, as the Government notes, see ECF No. 73 at 3. It is well
established that a plaintiff may not amend its pleading by raising claims for the first time in
responsive briefing. See Perry, 149 Fed. Cl. at 17 n.11 (collecting cases). Plaintiffs’ illegal
exaction claim is, therefore, not properly before the Court.
Even were this not the case, Plaintiffs have not adequately pled an illegal exaction claim
sufficient to invoke the Court’s jurisdiction. To do so, Plaintiffs’ Amended Complaint would need
to contain, at a minimum, “the requisite factual allegations necessary to support such a claim.” Id.
at 33; see Perry, 2021 WL 2935075, at *3 (agreeing that trial court lacked jurisdiction over the
plaintiff’s illegal exaction claim where he failed to plead the relevant factual assertions). An illegal
exaction may be brought where “(1) money was taken [from the plaintiff] by the government and
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(2) the exaction violated a provision of the Constitution, a statute, or a regulation.” Piszel v. United
States, 121 Fed. Cl. 793, 801 (2015) (citation omitted), aff’d, 833 F.3d 1366 (Fed. Cir. 2016); see
Aerolineas Argentinas v. United States, 77 F.3d 1564, 1572–73 (Fed. Cir. 1996). Exactions can
be “direct” when money was paid directly to the Government or “in effect” when money “was
paid to others at the direction of the government to meet a governmental obligation.” Aerolineas,
77 F.3d at 1572–73. In the latter case, “the government has ‘in its pocket’ money corresponding
to the payments that were the government’s . . . obligation” to make. Id. at 1573; Clapp v. United
States, 127 Ct. Cl. 505, 512 (1954) (describing illegal exaction as occurring when “the Government
has the citizen’s money in its pocket.”).
Plaintiffs have not alleged that they paid money directly to the VA. Thus, to sufficiently
plead an exaction in effect, they must state facts showing that the purchase of the fire alarm system
from a third-party was made on the Government’s behalf. Piszel, 121 Fed. Cl. at 801. 4 Two cases
illustrate when the Government exacts money in effect. In Aerolineas, the Immigration and
Naturalization Service (“INS”) required two airlines to pay the housing and protection costs of
alien asylum seekers who arrived in the United States on the airlines’ planes without entry
documents. 77 F.3d at 1568. There, a statute explicitly required INS to bear such costs. Id. at
1571–72. The Federal Circuit determined that an exaction in effect had occurred by the
Government attempting to push these costs—which it was required by law to pay—on to the
airlines. Id. at 1573–74. Alternatively, an exaction in effect may occur when a third-party obtains
payment from the plaintiff on behalf of the Government and then remits that payment to the
Government. For example, in Camellia Apartments, Inc. v. United States, 334 F.2d 667, 669 (Ct.
4 A plaintiff may also plead an exaction in effect by alleging that the Government exacted
its property, sold it, and received money from the sale. See Piszel, 121 Fed. Cl. at 801. Since
Plaintiffs do not allege this circumstance, the Court need not address it here.
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Cl. 1964), the Court of Claims determined it had jurisdiction over claims that the Federal Housing
Administration (“FHA”) had exacted money from three corporations owning apartment houses by
requiring them, during a refinancing of their mortgages, to pay prepayment charges to private
mortgagees who then remitted those charges to the FHA. 5
A similar situation is not pled here. Though Plaintiffs have alleged that the $10,000 spent
on the fire alarm system was the result of an unlawful condition imposed on Plaintiffs by the VA,
nowhere does the Amended Complaint allege that Plaintiffs made payments to any third-party on
the VA’s behalf, either to cover an obligation of the VA or for remittal to the VA. See Aerolineas,
77 F.3d at 1573–74; Camellia Apartments, 334 F.2d at 669. Plaintiffs’ contention that the VA
obtained a better deal from the fire alarm system’s installation is legally insufficient to invoke the
Court’s jurisdiction over an illegal exaction claim. 6 Aerolineas, 77 F.3d at 1573 (exaction occurs
where money was “paid to others at the direction of the government to meet a governmental
obligation.” (emphasis added)); see Piszel, 121 Fed. Cl. at 801. According to the Amended
Complaint, the alleged obligation under the Handbook to install the fire alarm system belonged to
Plaintiffs, not the VA. ECF No. 57 ¶ 21; see ECF No. 67 at 5. Nor do Plaintiffs point to any
source of law obligating the VA to bear the costs of WWHS installing the system.
Because the Amended Complaint does not contain facts demonstrating that any exaction,
5 Plaintiffs cite Camellia Apartments to support their argument that jurisdiction is satisfied
because the Government required a payment under a regulation or statute, regardless of to whom
the payment was made. ECF No. 67 at 5–6 (citing Camellia Apartments, 334 F.2d at 669). In
Camellia Apartments, however, the Court of Claims determined it had jurisdiction over the
plaintiffs’ claims precisely because the payments made by the plaintiffs to third-party mortgagees
were remitted to the Government. See 334 F.2d at 669. Moreover, the language Plaintiffs quote
was not about the court’s jurisdiction over illegal exaction claims but rather its jurisdiction to hear
actions founded upon Acts of Congress or Executive agency regulations. See id.6 Plaintiffs’ contention is also inconsistent with the fact that the VA did not actually receive
a “deal” because it ultimately did not award Plaintiffs a contract. See ECF No. 57 ¶ 37.
16
legal or illegal, direct or in effect, has occurred, the Court lacks jurisdiction to hear the claim.
c. Constitutional Claims
Nor can Plaintiffs demonstrate jurisdiction under § 1491(a)(1) based on claims that the VA
violated Plaintiffs’ rights to due process and equal protection. Long-standing, binding precedent
uniformly holds that the Fifth Amendment’s Due Process and Equal Protection Clauses do not
provide a basis for Tucker Act jurisdiction because they do not mandate payment of money by the
Government. See Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987); Smith v. United
States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (citing Leblanc v. United States, 50 F.3d 1025, 1028
(Fed. Cir. 1995)); Carruth v. United States, 627 F.2d 1068, 1081 (Ct. Cl. 1980).
Relying on two cases, Carey v. Piphus, 435 U.S. 247 (1978), and Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), Plaintiffs present the
novel theory that “like illegal exactions . . . there is jurisdiction for two classes of ‘money-
mandating’ constitutional claims: 1) facial provisions (such as ‘just compensation’ in a taking);
and 2) as-applied provisions.” ECF No. 67 at 8. The Court agrees with the Government that this
argument is unpersuasive, especially considering the long line of consistent precedent to the
contrary. See ECF No. 73 at 5–6.
Indeed, the cases Plaintiffs cite are inapposite. Carey held that “damages are available
under [42 U.S.C. § 1983 (1996)] for actions ‘found . . . to have been violative of . . . constitutional
rights and to have caused compensable injury.’” 435 U.S. at 255 (emphasis omitted) (citation
omitted). That case, however, only answered the question of whether a plaintiff had to prove actual
injury due to the deprivation of procedural due process rights to recover more than nominal
damages under § 1983. Id. at 248. Since this Court lacks jurisdiction to adjudicate claims under
§ 1983, the relevance of Carey is unclear. See Blassingame v. United States, 33 Fed. Cl. 504, 505
17
(1995), aff’d, 73 F.3d 379 (Fed. Cir. 1995), reh’g denied, cert. denied, 517 U.S. 1237 (1996). The
same can be said for Bivens, which the Government correctly notes was decided in the context of
a suit against government officials, not the United States itself. ECF No. 73 at 6. It is well
established that this Court lacks jurisdiction to hear claims against individual government officials.
See Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997).
In sum, each of Plaintiffs’ § 1491(a)(1) claims—whether pled as an implied-in-fact
contract, illegal exaction, or constitutional claim—fail for lack of jurisdiction and must be
dismissed.
B. The Court Lacks Jurisdiction Over Count II to the Extent It Asserts an
Independent APA Claim.
Count II of Plaintiffs’ Amended Complaint alleges that the VA acted arbitrarily and
capriciously in considering and denying Plaintiffs’ proposal, failed to provide a reasoned
explanation for its actions and decision, and acted contrary to the Fifth Amendment’s right to equal
protection by treating Plaintiffs in a discriminatory manner. ECF No. 57 ¶¶ 55–60. Plaintiffs seek
monetary damages under the APA, as well as declaratory, injunctive, and mandatory relief. Id. ¶¶
61–63. As the Government correctly argues, the APA does not provide a basis for jurisdiction in
the Court of Federal Claims. ECF No. 68 at 8; see Martinez v. United States, 333 F.3d 1295, 1313
(Fed. Cir. 2003) (citing Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993)); Wopsock v.
Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006) (noting “the APA does not authorize an award of
money damages at all”). Thus, while § 1491(b)(4) directs the Court to apply the APA standard of
review in bid protest cases under § 1491(b)(1), the APA cannot be the statutory basis for an
independent claim. Id.
In any event, both parties agree that the allegations underlying Count II concern the VA’s
decision not to award Plaintiffs a contract under the Solicitation, and thus may elaborate on or
18
provide substantive grounds for their remaining § 1491(b)(1) claim. ECF No. 68 at 8; ECF No.
67 at 11. Consequently, while Plaintiffs may assert such allegations in connection with their bid
protest claim, Count II is dismissed to the extent it asserts a standalone APA claim.
C. The Court Lacks Jurisdiction Over Count III’s CDA Claims.
In Count III, Plaintiffs allege that the Court has jurisdiction under the CDA over their
breach of implied-in-fact contract claim.7 ECF No. 57 ¶¶ 65–71; ECF No. 67 at 11–15. Although
the Government does not dispute that the CDA applies to such claim, it contends Plaintiffs have
not pled facts demonstrating the CDA’s jurisdictional prerequisites. 8 ECF No. 68 at 9–10; ECF
No. 73 at 6–9.
The Tucker Act grants the Court of Federal Claims jurisdiction “to render judgment upon
any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of [the
Contract Disputes Act].” 28 U.S.C. § 1491(a)(2); see 41 U.S.C. § 7104(b)(1) (providing for
judicial review in the Court of Federal Claims of the decision of a contracting officer under §
7Plaintiffs’ CDA claim appears to be founded on the same implied-in-fact contract claim
raised under § 1491(a)(1). As discussed above, Plaintiffs have not pled all elements of a valid
implied-in-fact contract, in which case the CDA does not apply. See 41 U.S.C. § 602(a) (2008)
(limiting the CDA to express or implied contracts made by an Executive agency).
8Neither party tries to justify the contention that the CDA applies to Plaintiffs’ breach of
implied-in-fact contract claim. The Court is not entirely satisfied that the alleged representation
by the VA that WWHS “would move forward with the solicitation” if it installed a fire alarm
system qualifies as a procurement contract subject to the CDA, especially where the claim arises
in the context of a procurement solicitation that was not awarded to the plaintiff. ECF No. 67 at
4. The CDA “does not cover all government contracts.” Coastal Corp., 713 F.2d at 730 (rejecting
the argument that the CDA applies to “other contracts tangentially connected with government
procurement of goods and services”); see Lublin Corp. v. United States, 84 Fed. Cl. 678, 682
(2008) (holding that the Government’s agreement to keep feedback provided by a subcontractor
confidential during a quality review of the prime contractor was not a “procurement” where the
Government did not acquire a service from the subcontractor for its direct benefit). In any event,
because the Court agrees that Plaintiffs have not met the CDA prerequisites, it need not address
the threshold applicability argument.
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7103). The Court’s jurisdiction is conditioned on a plaintiff satisfying two prerequisites. First, a
plaintiff must show that it submitted to the contracting officer a written demand containing
“adequate notice of the basis and amount of the claim and . . . a request for a final decision.” M.
Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010); 41 U.S.C. §
7103(a)(1)-(2). Second, it must show that the contracting officer issued a final decision on the
claim or that the contracting officer did not issue a decision within the statutory timeframe, in
which case the claim is deemed denied. James M. Ellett Constr. Co. v. United States, 93 F.3d
1537, 1543 (Fed. Cir. 1996); 41 U.S.C. § 7103(a)(3), (f)(5). If a plaintiff fails to meet both
prerequisites, its CDA claim must fail. See Northrop Grumman Computing Sys., Inc. v. United
States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (“If a purported claim is found to be insufficient for
any reason, the insufficiency is fatal to jurisdiction under the CDA.” (citation omitted)).
Although the statute does not define “claim,” the Federal Circuit has identified three
requirements for a valid CDA claim: “(1) the contractor must submit the demand in writing to the
contracting officer, (2) the contractor must submit the demand as a matter of right, and (3) the
demand must include a sum certain.” H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1565 (Fed. Cir.
1995) (interpreting the definition of “claim” in 48 C.F.R. § 33.201 (2014)). To constitute a written
demand, “a claim must be ‘for something due or believed to be due’ and must ‘provide the
contracting officer with notice of the relief requested and the legal and factual basis for that
request.’” Estes Express Lines v. United States, 123 Fed. Cl. 538, 545 (2015) (citation omitted);
Fed. Contracting, Inc. v. United States, 128 Fed. Cl. 788, 797 (2016) (holding that a demand is at
least an “authoritative or formal type of request”). To submit the demand as a matter of right, a
contractor must “specifically assert entitlement to the relief sought.” Alliant Techsystems, Inc. v.
United States, 178 F.3d 1260, 1265 (Fed. Cir. 1999) (citations omitted). A demand meets the sum
20
certain requirement where it contains “a clear and unequivocal statement of the amount of the
claim.” CPS Mech. Contractors, Inc. v. United States, 59 Fed. Cl. 760, 764 (2004) (emphasis
omitted) (citing Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir.
1987)).
Plaintiffs argue that the Amended Complaint demonstrates the CDA prerequisites, as
evidenced by the allegations detailing Plaintiffs’ communications with various VA officials
beginning on August 8, 2018 and culminating in the NCO 8 Division Chief’s September 11, 2018
email. ECF No. 67 at 14; ECF No. 57 ¶¶ 37–45. As an initial matter, the Amended Complaint
does not include copies of any alleged written correspondence, and thus the Court can rely only
on Plaintiffs’ characterizations and paraphrasing of the communications. Based on those
allegations, Plaintiffs’ interactions with the VA, beginning with the email to Mr. Cassidy on
August 8, are described largely as an “inquiry” into why WWHS’s proposal was rejected and an
effort to show that the grounds stated in the denial letter were inaccurate. See, e.g., ECF No. 57
¶¶ 37–38, 41–43.
Plaintiffs rely specifically on the list of questions Ms. Nicolas sent to the NCO 8 Deputy
Director as demonstrating that they submitted a valid CDA claim. See ECF No. 57 ¶ 44; ECF No.
67 at 14–15. The alleged questions are as follows:
1. Requesting VHA Handbook 1147
2. Requesting Fair Opportunity in Solicitation VA248-17-R-0713 without bias,
without discrimination, and without prejudice.
3. What measures are being taken so to ensure that a fair opportunity will be
provided?
4. What is the current status where my facility currently is in this Solicitation
process and based on what facts?
5. VA required me to put in a fire alarm system in a building I do not own as a
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requirement when no clarity was provided, a $10,000.00 system has been placed,
my hard earned money has been spent to meet what is said to be a requirement and
received email from VA that I have passed the requirements and now no one is
returning my call. How is this considered fair and how are this putting Veterans
first when VA has stated there's a need for the services that my facility provides?
ECF No. 57 ¶ 44. Consistent with prior communications, however, these “questions” do not meet
the CDA claim requirements. See id. First, rather than constituting an “authoritative or formal
type of request,” Fed. Contracting, 128 Fed. Cl. at 797, the questions are, for the most part, merely
inquiries directed at the legitimacy of the solicitation process, see ECF No. 57 ¶ 44. The questions
appear to include two requests—one for an official copy of the Handbook, id. ¶ 44(1), and the
other for a fair opportunity to bid for the Solicitation “without bias, without discrimination, and
without prejudice,” id. ¶ 44(2). These requests, however, do not relate to Plaintiffs’ CDA contract
claim (but rather their bid protest claim), do not request the relief sought in this action under the
CDA, or state a sum certain—i.e., the $10,000 cost incurred by Plaintiffs to install the fire alarm
system. K-Con Bldg. Sys., 778 F.3d at 1005 (discussing importance of claim identification in
determining CDA jurisdiction).
Even question five, with its assertion that Plaintiffs spent $10,000 to install the fire alarm
system, does not clearly assert an “entitlement as a matter of right.” ECF No. 57 ¶ 44(5); Alliant
Techsystems, 178 F.3d at 1265. Indeed, the demand made in question five was for the VA to
explain whether it considered Plaintiffs’ circumstances “fair” or appropriately aimed at “putting
Veterans first.” ECF No. 57 ¶ 44(5); see id. ¶ 37 (describing similar expression of “frustration” in
August 8 email to Mr. Cassidy). The question does not demonstrate entitlement to damages for
installation costs, let alone authoritatively request them. Moreover, none of the questions contain
a request for a final decision of the contracting officer, as required even under the lax standard
cited in Plaintiffs’ Opposition. See ECF No. 67 at 12 (“[T]he requirement of submission of the
22
claim to the contracting officer for final decision ‘does not require an explicit request for a final
decision; as long as what the contractor desires by its submissions is a final decision.’” (quoting
James M. Ellet Constr., 93 F.3d at 1543)); see M. Maropakis Carpentry, 609 F.3d at 1328.
Plaintiffs argue that the Division Chief’s September 11 response to Ms. Nicolas
demonstrates that the VA understood her inquires to be a contested claim under the CDA. ECF
No. 67 at 15; see ECF No. 57 ¶ 45(e). In that response, the Division Chief allegedly instructed
Plaintiffs that any remedy to resolve their concern with the “direction given to members of your
firm” in relation to the Solicitation “must be addressed in accordance with FAR Part 33 procedures,
as applicable, or through other legal remedies that may be available to your firm.” 9 ECF No. 57 ¶
45(e). But Plaintiffs’ argument is a leap unsupported by a fair reading of the pleadings. As
Plaintiffs acknowledge, FAR Part 33 covers both protests and contract disputes, and “prescribes
policies and procedures for filing protests and for processing contract disputes and appeals” at the
administrative level. FAR § 33.000 (1985). Given the broad reference to FAR Part 33, it is
difficult to infer what the Division Chief understood Plaintiffs’ list of questions to be. As the
Government notes, such reference could just as easily be interpreted as suggesting that the Division
Chief did not believe Plaintiffs had initiated the necessary administrative procedures to assert a
CDA claim and thus directed Plaintiffs to FAR Part 33 if they desired to do so in the future. ECF
No. 73 at 9.
Finally, Plaintiffs have not properly pled that they submitted a valid CDA claim to Ms.
Rodriguez, the contracting officer. “Congress deliberately left the language concerning
submission to the contracting officer ‘broad . . . to permit appropriate Government officers to
9 Plaintiffs erroneously refer to the Division Chief as the contracting officer in their
Opposition. Compare ECF No. 67 at 15, with ECF No. 57 ¶ 39.
23
receive written claims and forward them to the [contracting officer].’” Dawco Constr. v. United
States, 930 F.2d 872, 880 (Fed. Cir. 1991), overturned in part on other grounds by Reflectone, Inc.
v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995). But although the CDA “does not . . . require that the
claims be sent only to the contracting officer, or necessarily directly to that officer,” Neal & Co.
v. United States, 945 F.2d 385, 388 (Fed. Cir. 1991), Plaintiffs must nonetheless demonstrate that
the dispute was ultimately submitted to Ms. Rodriguez for final decision, Dawco, 930 F.2d at 880.
Plaintiffs’ Amended Complaint lacks sufficient factual allegations to make this conclusion.
The list of questions on which Plaintiffs principally rely was requested by and submitted to the
Deputy Director, and then responded to by the Division Chief. ECF No. 57 ¶¶ 44–45. The
Amended Complaint contains no evidence or allegations that Ms. Rodriguez received Plaintiffs’
list of questions or took any action on them, or that she had any involvement with the September
11 response to those questions. Id. Similar allegations are absent with respect to the alleged
communications directly between Ms. Nicolas and Ms. Rodriguez. Id. ¶¶ 38–39. And because
the Amended Complaint does not allege that a claim was submitted to Ms. Rodriguez for final
decision, it likewise does not allege that Ms. Rodriquez, as contracting officer, issued a final
decision reviewable by this Court. At most, Plaintiffs point to the Division Chief’s September 11
email as evidence of a final decision, but the Division Chief was not the contracting officer.
These deficiencies are fatal, and as such, Plaintiffs’ CDA claim is dismissed.
D. Ms. Nicolas Does Not Have Standing to Pursue the Remaining § 1491(b)(1) Claim.
With all but the § 1491(b)(1) claim dismissed, the Court must address whether Ms. Nicolas
has standing to pursue such claim going forward. The Government contends that because WWHS
submitted the bid in this case, WWHS—and not Ms. Nicolas—is the only interested party in this
action. ECF No. 68 at 10. Plaintiffs argue, without any further explanation, that Ms. Nicolas has
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third-party standing to pursue the § 1491(b)(1) claim because, as sole owner, she has “a close
relationship” with WWHS, has “suffered an injury in fact,” and “there is some hinderance to the
first party filing its own claim.” ECF No. 67 at 16 (citing Powers v. Ohio, 499 U.S. 400, 410–11
(1991)). The Government’s argument is the correct one.
Axiomatic to bid protest jurisprudence is the notion that only an “interested party” has
standing to challenge contract awards under § 1491(b)(1). See Rex Serv. Corp. v. United States,
448 F.3d 1305, 1307 (Fed. Cir. 2006) (citation omitted). The issue of standing in bid protest cases
is controlled by the jurisdiction-granting language of § 1491(b)(1) itself, which “imposes more
stringent standing requirements than Article III.” Weeks Marine, Inc. v. United States, 575 F.3d
1352, 1359 (Fed. Cir. 2009). While the statute does not define “interested party,” the Federal
Circuit has held that “the parties encompassed by that term are limited to ‘actual or prospective
bidders or offerors’” who possess a “direct economic interest [that] would be affected by the award
of the contract or by failure to award the contract.”10 Rex Serv. Corp., 448 F.3d at 1307 (emphasis
in original) (citing Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir.
2001)).
WWHS’s standing is undisputed. See e.g., ECF No. 68 at 1. Ms. Nicolas, as owner and
President of WWHS, submitted a bid under the Solicitation through and on behalf of WWHS, and
thus WWHS is the actual bidder. ECF No. 57 ¶ 12; see id. ¶¶ 14, 24, 30, 37 (references to WWHS
as bidder); CGI Fed., Inc. v. United States, 779 F.3d 1346, 1348 (Fed. Cir. 2015). Similarly, the
Government does not dispute that WWHS—as an actual, disappointed bidder—had a direct
economic interest in the outcome of the Solicitation award. Weeks Marine, 575 F.3d at 1359.
10 Plaintiffs have not explained how the concept of third-party standing can be reconciled
with the standing requirements of § 1491(b)(1), nor have they cited any case law in which such
standing principles were applied to a bid protest claim.
25
Whether the owner of a business soliciting a government contract is an interested party
under § 1491(b)(1) has not been thoroughly fleshed out. In several cases, however, other judges
of the court have drawn a distinction between sole proprietors, who have been found to have
standing, and sole owners of limited liability entities, like Ms. Nicolas, who have not. Compare
Sims v. United States, 112 Fed. Cl. 808, 815–16 (2013) (holding sole proprietor had standing to
bring a § 1491(b) action in her own name), with Innovation Dev. Enters. of Am., Inc. v. United
States, No. 11-217 C, 2012 WL 251985, at *4 (Fed. Cl. Jan. 11, 2012) (denying standing to the
sole owner of a corporation where the corporation was the business entity that could have bid on
the contract, not the sole owner). The reason for drawing this distinction here is simple: WWHS,
as a limited liability company, is a legal entity distinct from Ms. Nicolas. Fla. Stat. § 605.0108(2013); see ECF No. 57 ¶¶ 4–5.
Consequently, only WWHS has sufficiently pled standing in this matter, and thus, only
WWHS’s § 1491(b)(1) claim can move forward.
IV. CONCLUSION
For these reasons, the Government’s Motion to Dismiss in Part (ECF No. 60) is
GRANTED. All claims in Counts I and II—except for WWHS’s § 1491(b)(1) bid protest claim—
as well as Count III are DISMISSED for lack of subject matter jurisdiction. Additionally, Ms.
Nicolas is DISMISSED for lack of standing.
SO ORDERED.
Dated: September 1, 2021 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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