Innovation Development Enterprises of America, Inc. v. United States , 2013 U.S. Claims LEXIS 34 ( 2013 )


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  •               In the United States Court of Federal Claims
    No. 11-217 C
    (Filed January 29, 2013)1
    * * * * * * * * * * * * * * *                 *
    INNOVATION DEVELOPMENT                        *   Post-Award Bid Protest; 10
    ENTERPRISES OF AMERICA,                       *   U.S.C. § 2304(c)(1)-(2) (2006);
    INC.,                                         *   48 C.F.R. §§ 6.302-1, 6.302-2
    *   (2009); Sole Source
    Plaintiff,               *   Procurement; Only One
    *   Responsible Source; Unusual and
    v.                               *   Compelling Urgency; Standing;
    *   Lack of Advance Planning;
    THE UNITED STATES,                            *   Irrational Decision-Making;
    *   Violations of Procurement Laws
    Defendant.                  *   and Regulations.
    * * * * * * * * * * * * * * * *
    Charles H. Crain, Tulsa, OK, for plaintiff.
    Katy M. Bartelma, United States Department of Justice, with whom were
    Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson,
    Director, Deborah A. Bynum, Assistant Director, Washington, DC, for defendant.
    ________________________________
    OPINION AND ORDER
    ________________________________
    Bush, Judge.
    1
    / None of the briefs filed in this case were filed under seal. Although a few pages of the
    administrative record were filed under seal, the court, in its citations to the record, has not
    disclosed any information that qualifies as “protected information” under the protective order
    entered in this case. For that reason, the court has determined that this opinion need not be filed
    under seal.
    This post-award bid protest is before the court on the government’s motion
    to dismiss filed under Rule 12(b) of the Rules of the United States Court of Federal
    Claims (RCFC), as well as the parties’ RCFC 52.1(c) cross-motions for judgment
    on the administrative record (AR). Innovation Development Enterprises of
    America, Inc. (IDEA) asserts that the United States Air Force violated the
    Competition in Contracting Act of 1984 (CICA), Pub. L. No. 98-369, tit. VII,
    §§ 2701-2753, 98 Stat. 1175 (codified at scattered sections of the United States
    Code), when it issued Contract No. FA7014-10-P-A010, a sole-source contract (the
    bridge contract), to Harris IT Services Corporation (Harris) on May 18, 2010.2
    Compl. ¶ 77; AR at 71. The bridge contract provided support services to the Air
    Force’s Command Man-Day Allocation System (CMAS), a system which is “used
    to place Air National Guard and Air Force Reserve Members on temporary tours of
    active duty.” AR at 20. The contract services included “software support,
    assessment support, database administration, and configuration management.” 
    Id. at 85. The
    court agrees with plaintiff that the sole-source procurement at issue in
    this case was significantly flawed and that plaintiff was prejudiced by the sole-
    source award to Harris; for these reasons, plaintiff’s motion for judgment on the
    administrative record must be granted in part.
    BACKGROUND3
    I.     The Air Force Awards a Sole-Source Contract to Harris
    2
    / As discussed in more detail infra, a sole-source bridge contract typically “bridges” the
    gap from one competitive procurement to the next. See, e.g., Infrastructure Def. Techs., LLC v.
    United States, 
    81 Fed. Cl. 375
    , 401 (2008) (“A bridge contract is used to cover immediate
    minimum agency needs while a bid protest or other action is pending, or to cover a transition
    period between competitive procurements.”) (citations omitted). Here, the record shows that the
    sole-source contract awarded to Harris was intended to bridge the gap between two five-year
    contracts. AR at 177 (“Subject contract was awarded as a bridge to allow the [Air Force]
    contracting activity to put in place a competitive follow-on 5 year contract, basic and four (4)
    one year options.”).
    3
    / The court relies primarily on the administrative record in this case. However, gaps in
    the history of this procurement require the court to also rely on the complaint and other materials
    submitted by the parties. All references and citations in this opinion to the complaint are to the
    amended complaint filed February 21, 2012.
    2
    According to plaintiff, CMAS was designed and programmed in the
    mid-1990’s, at least in part, by Mr. Lawrence A. Crain, who was then an Air Force
    reservist.4 Compl. ¶¶ 8, 17, 27. He continued to provide support to CMAS through
    late 1998, when he retired from the Air Force Reserve. 
    Id. ¶ 27. Mr.
    Crain then
    returned to support CMAS as a subcontractor to Harris in mid-1999, in his new
    capacity as the sole proprietor of IDEA. 
    Id. ¶ 17. For
    an additional eight years, Mr.
    Crain functioned as “technical lead” for CMAS, until Harris in November 2007
    ended IDEA’s subcontract on the CMAS project. 
    Id. ¶¶ 17, 28.
    The procurement history for the CMAS project is somewhat obscure.
    According to plaintiff, the initial CMAS contract was awarded to Harris in 1999.
    Compl. ¶ 28. The administrative record of this protest contains only one
    predecessor contract to the sole-source contract challenged by plaintiff – this “old”
    contract, which ordered services against Harris’s “GS” Schedule, is dated October
    1, 2004, for a period of performance, including option years, from October 1, 2004
    through September 30, 2009. AR Tab 1; Def.’s Mot. at 2. A six-month extension
    of services was permitted by the contract.5 AR at 17 (citing FAR 52.217-8, 48
    C.F.R. § 52.217-8 (2012)).6 Thus, in October 2004, the Air Force was on notice
    that by no later than March 31, 2010 it should have completed a procurement for
    CMAS services to follow the “old” contract, if CMAS contract services were
    indeed required on an ongoing basis.
    There is no document in the administrative record which shows that the Air
    Force made any arrangement to complete a procurement for CMAS before March
    4
    / All references to “Mr. Crain” in this opinion are to Mr. Lawrence A. Crain, not to his
    brother Mr. Charles H. Crain, who now represents IDEA in this bid protest that was originally
    brought pro se.
    5
    / No contract amendment authorizing an extension of the old contract through March
    31, 2010 is in the record before the court. The only evidence that the extension occurred is a
    December 11, 2009 email from Mr. Crain to the Air Force, stating that “I have . . . learned that
    the . . . CMAS contract was extended by six months.” AR at 206.
    6
    / All other citations to Federal Acquisition Regulation (FAR) provisions in this opinion
    are to the 2009 version of Title 48 of the United States Code of Federal Regulations, which was
    in effect at times relevant to this sole-source procurement. The court notes that the current
    version of the FAR does not appear to differ from the 2009 version in provisions relevant to this
    procurement.
    3
    31, 2010. If there was any procurement planning regarding a follow-on contract, it
    is not in the record before the court. In addition, the existence of any contracting
    vehicle established for the period of April 1, 2010 through April 18, 2010, a period
    of time not, apparently, covered by the “old” contract and not covered by the sole-
    source contract, is also not reflected in the record. The record appears to indicate
    that Harris continued to perform during these two and a half weeks, because Harris
    is consistently described as the incumbent contractor that received the sole-source
    bridge contract that became effective on April 19, 2010. See, e.g., AR at 92, 96;
    Def.’s Mot. at 2.
    The record before the court contains no evidence that the Air Force made any
    efforts to ensure competition for the CMAS contract between October 1, 2004 and
    April 15, 2010. The court observes that Mr. Crain repeatedly contacted the Air
    Force in 2009 to inquire as to the “upcoming” competitive procurement for CMAS
    services, and to propose IDEA as a responsible source for such services. See, e.g.,
    AR at 194 (February 9, 2009 email titled “Upcoming CMAS procurement”); 
    id. at 198 (March
    24, 2009 email titled “RE: Upcoming CMAS procurement”); 
    id. at 204 (April
    17, 2009 email titled “Upcoming CMAS procurement”); 
    id. at 206 (December
    11, 2009 email titled “Upcoming CMAS procurement”). These
    messages did not achieve their aim of allowing IDEA to submit a bid for a contract
    to provide CMAS services to the Air Force – the only substantive response received
    from the Air Force was that Mr. Crain should watch for procurement
    announcements on the FedBizOpps website. 
    Id. at 198. Approximately
    two weeks after the five and a half years available to the Air
    Force for procurement planning had elapsed, on April 15, 2010, the Air Force
    produced what appears to be a draft solicitation for a bridge contract for CMAS
    services to be provided from approximately April 19, 2010 to June 20, 2011. AR
    Tab 2; see also AR Index at 1 (describing the document as “Solicitation FA7014-
    10-R-A010 and the CMAS Statement of Work”). This sixteen-page document,
    which follows the format of the old contract, was never posted on the FedBizOpps
    website, however. Also on April 15, 2010, an email, which is not in the record
    before the court, was sent from the Air Force to Harris, and this email apparently
    contained a request for proposal (RFP) for a sole-source contract to be awarded to
    Harris. AR at 51. The next day, April 16, 2010, a Friday, the Air Force sent a
    Notice to Proceed to the incumbent contractor Harris for CMAS services to begin
    Monday, April 19, 2010. AR Tab 3. The Notice to Proceed stated that Harris “is
    authorized to begin work as of 19 April 2010 and the resulting contract will identify
    4
    that as the effective date.” 
    Id. That Notice to
    Proceed also stated the
    “Government’s intent to award a contract to Harris . . . for support of [CMAS] and
    . . . authoriz[ation of] service support [for CMAS] effective 19 April 2010 - 18
    April 2011, total not to exceed $500k.” 
    Id. Not surprisingly, Harris
    responded to the agency’s RFP with a price proposal
    for nearly $500,000 – $497,047. AR at 69. In a document dated May 12, 2010, the
    Air Force contract specialist found Harris’s $497,047 price proposal to “represent[]
    the best value to the government.” 
    Id. at 69. The
    document notes that “only one
    quote was received,” which is unsurprising in light of the fact that no notice had
    been given to the contracting community of an upcoming CMAS procurement. 
    Id. at 68. Using
    less than persuasive logic, the Air Force found the increase in labor
    rates, from the old contract to the sole-source contract, to be reasonable: “As there
    is no . . . market research information [other than information from the old contract]
    to compare [labor rate increases; Harris’s] 2.74% increase is considered
    reasonable.” AR at 69. Aside from the increase in labor rates, the court observes
    that additional costs had been added to the contract, which had either been much
    lower in the old contract, or not previously required. For example, under the old
    contract, over the course of five years, approximately $4000 or $5000 was allocated
    for the contractor’s travel costs. See AR at 4, 10-11, 13. Under the sole-source
    contract, $8,888 was awarded to Harris for just one year of travel. 
    Id. at 69. The
    re
    is no analysis of this enormous price increase for travel. Instead, the contract
    specialist concluded that pursuant to “FAR 13.106(a)(2) the price of this [overall
    contract] requirement is considered fair and reasonable.” 
    Id. Furthermore, a new
    cost category was instituted, “IA/C&A,” which would
    cost the Air Force $74,789 for the one-year sole-source contract.7 
    Id. at 69, 74.
    The
    contract specialist does not report any attempts to determine whether this new
    contract cost was reasonable. Thus, the Air Force’s price reasonableness inquiry,
    such as it was, turned a blind eye to one radical price increase and made no effort to
    assess the reasonableness of a new category of costs in Harris’s proposal.
    7
    / The acronym “IA/C&A” signifies “information assurance/certification and
    accreditation.” See Air Force Policy Directive 33-2, at 1-2 (Aug. 3, 2011), at
    http://www.e-publishing.af.mil (last visited Jan. 9, 2013).
    5
    Although the Notice to Proceed appeared to cap costs for the CMAS sole-
    source contract at $500,000, see AR at 50, this cap soon proved to be illusory. In
    September 2010, the sole-source contract was amended to add two staff positions, a
    software engineer and a senior software engineer. 
    Id. at 109. This
    new labor cost
    added $124,047 to the sole-source bridge contract. 
    Id. at 110. This
    contract
    amendment increased the contract price from $497,047 to $621,094, an increase of
    approximately 25%. 
    Id. In April 2011,
    the Air Force amended the sole-source
    contract to extend Harris’s performance for another six months, which added an
    additional $350,405.50 to the contract price, of which $106,326 was related to the
    staff persons added in September 2010. 
    Id. at 185. The
    six-month extension
    increased the total cost of the contract to $971,499.50. 
    Id. The two contract
    amendments, together, represent a 95% increase in the total price of the sole-source
    contract.
    Two significant irregularities in the award of the sole-source contract to
    Harris are conceded by the Air Force in memoranda that are included in the
    administrative record before this court.8 The first is the Air Force’s admission that a
    violation of FAR 5.207(c)(15) occurred when the Air Force failed to post a synopsis
    of the proposed award of the sole-source contract to Harris on the FedBizOpps
    website. AR at 68 (“Although a synopsis could have been posted for several days
    prior to award this was not accomplished due to [an] oversi[ght] by the contracting
    specialist.”). According to this memorandum dated May 12, 2010, the Notice to
    Proceed was issued on April 19, 2010, before the contract requirement was sent to
    the contract specialist.9 
    Id. Thus, when the
    contract specialist was provided the
    necessary information on May 5, 2010, she could have but did not post a synopsis
    8
    / The contracting officer certified that the documents included in the administrative
    record “constitute the record of the administrative actions performed in the above-referenced
    solicitation and Contract and relevant to the issues raised in the plaintiff’s complaint.” AR
    Certification. The contracting officer also states that the administrative record contains
    documents of the type identified in RCFC Appendix C. 
    Id. The court notes
    the absence of
    correspondence between the Air Force and Harris, referenced in Harris’s price proposal for the
    sole-source contract. See AR at 51; cf. RCFC App. C ¶ 22(i). The court also notes that there are
    no contract documents relating to the six-month extension of the old contract, or describing
    contract performance, if any, that occurred between April 1, 2010 and April 18, 2010. Although
    these documents are not specifically required by RCFC Appendix C, their absence impedes the
    court’s analysis of the agency’s decision to award a sole-source contract to Harris.
    9
    / The Notice to Proceed is dated April 16, 2010, not April 19, 2010.
    6
    of the proposed sole-source award before the contract was signed on May 18, 2010.
    
    Id. The court agrees
    that FAR 5.207(c)(15)(ii) was violated by the Air Force in this
    procurement, as discussed infra.
    The second conceded violation of procurement regulations occurred when the
    Air Force failed to conduct market research before awarding the sole-source
    contract to Harris. The contract specialist explained in a memorandum dated May
    12, 2010 that FAR Part 10 requires a market research report in the contract file and
    that no such report was compiled in this instance. AR at 70. The Air Force
    acknowledged that no market research had been done in its Justification and
    Approval (J&A) for the sole-source award to Harris. 
    Id. at 97. The
    court agrees
    that the Air Force violated FAR Part 10 by not conducting market research before
    issuing the sole-source contract to Harris, as discussed in more detail infra.
    On May 18, 2010, the Air Force and Harris signed the one-year sole-source
    bridge contract for CMAS support services, with a contract award date of May 18,
    2010 and an effective date of April 19, 2010. AR at 71, 101. On May 21, 2010, the
    Air Force posted an award notice on FedBizOpps concerning the sole-source
    contract. 
    Id. at 106-08. Also
    on May 21, 2010, the Air Force posted the J&A on
    FedBizOpps, 
    id. at 100-02, a
    document which appears to rely primarily on the Air
    Force’s determination that there was only one responsible source for CMAS support
    services, and secondarily on the unusual and compelling urgency of the
    procurement, compare 
    id. at 96 with
    id. at 100-01. The 
    sole-source contract,
    including its six-month extension, has now been fully performed by Harris. See AR
    at 182.
    II.   IDEA Protests the Sole-Source Award to Harris
    IDEA promptly responded to the award notice on FedBizOpps, although its
    response was not crafted by an attorney. First, Mr. Crain sent an email to the Air
    Force on May 25, 2010, complaining about the sole-source award to Harris, arguing
    that IDEA was a responsible source for CMAS support services, and pointing out
    several aspects of the J&A that appeared to him to be counter-factual. AR at 210-
    12. The next day, Mr. Crain sent another email correcting one assertion in his
    previous email, but continuing to emphatically complain about the sole-source
    award to Harris. See AR at 213 (stating that “I object to the decision to sole-source
    CMAS to the incumbent”). On May 26, 2010, in response to these emails, the
    contract specialist responsible for the CMAS procurement stated that “[w]e have
    7
    received your email and are looking into the situation. We will let you know when
    we have more information.” AR at 214.
    Mr. Crain, on May 26, 2010, expressed his desire to not “interrupt” the
    essential function of CMAS, but nonetheless “gently” asserted that the sole-source
    contract award to Harris was “erroneous.” AR at 214-15. Mr. Crain’s gentle
    approach, however, did not succeed in eliciting any further communication from the
    Air Force. Twenty days later, on June 15, 2010, Mr. Crain again emailed the Air
    Force, asking for news of any information obtained by the agency’s inquiry into the
    sole-source award, and for an estimate as to when his concerns might be resolved.
    
    Id. at 216. This
    email, too, received no response.
    On July 1, 2010, Mr. Crain telephoned the contact person he had been
    referred to in the May 26, 2010 email from the Air Force, only to be told that this
    person was not the right person to contact. AR at 218. Mr. Crain emailed this
    person the same day, asking that he be notified once the correct point of contact had
    been identified by the Air Force. 
    Id. In response to
    this email, Mr. Crain was told
    on July 1, 2010 that his correspondent “will advise regarding the correct [point of
    contact] as soon as I can identify him.” 
    Id. at 220. After
    more than a week went by with no further communication from the Air
    Force, on July 9, 2010, Mr. Crain emailed a “Sole Source Protest Letter” to the Air
    Force, which noted the grounds for the protest, the relief requested, and the
    unresponsiveness of the agency to his prior efforts to complain about the sole-
    source award. AR at 103-05. On July 14, 2010, an Acting Branch Chief of the Air
    Force, through an email sent to Mr. Crain, acknowledged his July 12, 2010 receipt
    of IDEA’s protest. 
    Id. at 223. This
    email promised Mr. Crain that the Air Force
    would “investigate your allegations and provide you a response.” 
    Id. Mr. Crain received
    no further response to his “Protest Letter.” On July 29,
    2010, Mr. Crain emailed the Air Force asking for an update. AR at 227. No
    response came. On August 13, 2010, Mr. Crain again asked for an update, and
    expressed some impatience with the lack of response to his protest. 
    Id. at 228. No
    response was received. On September 10, 2010, Mr. Crain again emailed the Air
    Force (and tried, without success, to reach the Acting Branch Chief by telephone),
    requesting an estimate as to when he could obtain a ruling on his protest and, at a
    minimum, the courtesy of an acknowledgment of his latest email. 
    Id. at 230-32. Again,
    Mr. Crain’s communications elicited no response from the agency.
    8
    IDEA then filed a pro se protest of the Air Force’s sole-source contract award
    to Harris with the Government Accountability Office (GAO) on September 21,
    2010. AR at 118, 150. The protest grounds included an allegation that the sole-
    source award was improper, and that the Air Force had improperly ignored IDEA’s
    agency-level protest. 
    Id. at 118. The
    GAO dismissed IDEA’s protest, and IDEA’s
    motion for reconsideration, ruling, first, that IDEA’s earliest emails to the Air
    Force, in May 2010, did not constitute an agency-level protest. AR at 151, 166-67.
    Instead, the GAO found that the July 9, 2010 “Sole Source Protest Letter” initiated
    IDEA’s agency-level protest; that agency-level protest, filed forty-nine days after
    the May 21, 2010 award notice, was deemed by GAO to be untimely. 
    Id. Absent a timely
    agency-level protest, IDEA’s GAO protest filed September 21, 2010 was
    also found to be untimely, and was dismissed for this reason. 
    Id. Neither the Air
    Force nor the GAO ever reached the merits of IDEA’s protests of the sole-source
    award to Harris.
    On April 7, 2011, Mr. Crain filed a pro se bid protest in this court, with both
    Mr. Crain and IDEA named as plaintiffs. The court ordered IDEA to obtain
    counsel, granted defendant’s motion to dismiss Mr. Crain as an individual plaintiff,
    and permitted the remaining plaintiff, IDEA, to file an amended complaint. See
    Order of January 11, 2012. The principal questions in this suit, at this point, are
    whether the court may reach the merits of IDEA’s protest of the sole-source
    contract award to Harris, and, if so, whether the agency’s sole-source award was
    improper.10 Although defendant presents numerous arguments in support of the
    government’s position on these two questions, plaintiff’s arguments prevail.
    DISCUSSION
    I.     Jurisdiction
    This court “shall have 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
    10
    / IDEA’s protest contains multiple allegations of agency error. This opinion largely
    concerns plaintiff’s allegation that the sole-source award to Harris was improper (Count I of the
    complaint), which is dispositive of plaintiff’s claims, and reserves a brief discussion of the other
    grounds presented in the complaint for one of the final sections of this opinion.
    9
    proposed procurement.” 28 U.S.C. § 1491(b)(1) (2006). The jurisdictional grant is
    “without regard to whether suit is instituted before or after the contract is awarded.”
    
    Id. Although plaintiff also
    relies upon 28 U.S.C. § 1491(a) (2006), see Compl. ¶
    15, there is some debate whether procurements subject to bid protests under §
    1491(b) are also subject to bid protest jurisdiction under § 1491(a). See, e.g., Res.
    Conservation Grp., LLC v. United States, 
    597 F.3d 1238
    , 1246 (Fed. Cir. 2010)
    (“We agree that Congress intended the 1491(b)(1) jurisdiction to be exclusive
    where 1491(b)(1) provided a remedy (in procurement cases).”). Because plaintiff’s
    suit rests on the firm jurisdictional footing of § 1491(b)(1), the court need not
    inquire whether the court could also consider plaintiff’s claims under § 1491(a).
    II.   Standards of Review
    A.      Motion to Dismiss for Lack of Jurisdiction
    In rendering a decision on a motion to dismiss for lack of subject matter
    jurisdiction pursuant to RCFC 12(b)(1),11 this court must presume all undisputed
    factual allegations to be true and construe all reasonable inferences in favor of the
    plaintiff. Scheuer v. Rhodes, 
    416 U.S. 232
    , 236 (1974), abrogated on other
    grounds by Harlow v. Fitzgerald, 
    457 U.S. 800
    , 814-15 (1982); Reynolds v. Army &
    Air Force Exch. Serv., 
    846 F.2d 746
    , 747 (Fed. Cir. 1988). However, plaintiff bears
    the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United
    States, 
    161 F.3d 1372
    , 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors
    Acceptance Corp. of Ind., 
    298 U.S. 178
    , 189 (1936)), and must do so by a
    preponderance of the evidence, 
    Reynolds, 846 F.2d at 748
    (citations omitted). If
    11
    / The government’s motion to dismiss under RCFC 12(b) is almost entirely based on
    jurisdictional arguments. Defendant does, however, invoke RCFC 12(b)(6) twice in its moving
    brief. Its first RCFC 12(b)(6) argument relates to Count IV of the complaint, Def.’s Mot. at 10,
    and will be discussed infra. The second RCFC 12(b)(6) challenge to the complaint is contained
    in a footnote, Def.’s Mot. at 20 n.8, and is supported by no legal authority. Defendant argues
    that plaintiff has not substantiated its bid preparation and proposal costs, and thus plaintiff’s bid
    protest complaint should be dismissed for failure to state a claim. 
    Id. A bid protest
    does not fail
    to state a claim, however, merely because the protestor has not supplied, in the complaint, the
    supporting documentation required to justify a specific amount of bid preparation costs. See,
    e.g., Impresa Construzioni Geom. Domenico Garufi v. United States, 
    61 Fed. Cl. 175
    , 177 (2004)
    (ruling that the protestor was entitled to bid preparation and proposal costs, as a general matter,
    and then ruling on the evidence subsequently presented by the protestor to determine whether
    any specific amount of bid preparation and proposal costs was due the plaintiff).
    10
    jurisdiction is found to be lacking, this court must dismiss the action. RCFC
    12(h)(3).
    B.     Judgment on the Administrative Record
    RCFC 52.1(c) provides for judgment on the administrative record. To review
    a motion, or cross-motions, under RCFC 52.1(c), the court asks whether, given all
    the disputed and undisputed facts, a party has met its burden of proof based on the
    evidence in the record. Bannum, Inc. v. United States, 
    404 F.3d 1346
    , 1356-57
    (Fed. Cir. 2005). The court must make factual findings where necessary. 
    Id. The resolution of
    RCFC 52.1(c) cross-motions is akin to an expedited trial on the paper
    record. 
    Id. C. Bid Protest
    Review
    As a threshold jurisdictional matter, the plaintiff in a bid protest must show
    that it has standing to bring the suit. Info. Tech. & Applications Corp. v. United
    States, 
    316 F.3d 1312
    , 1319 (Fed. Cir. 2003) (ITAC). Standing arises from
    prejudice, which is proven by establishing that the plaintiff had a substantial chance
    of receiving the contract, but for the alleged procurement error. 
    Id. (citing Alfa Laval
    Separation, Inc. v. United States, 
    175 F.3d 1365
    , 1367 (Fed. Cir. 1999)). A
    protestor possessing a substantial chance of winning the contract has a direct
    economic interest in the procurement, and has standing before this court. See Rex
    Serv. Corp. v. United States, 
    448 F.3d 1305
    , 1307-08 (Fed. Cir. 2006) (citing Myers
    Investigative & Sec. Servs., Inc. v. United States, 
    275 F.3d 1366
    , 1369-70 (Fed. Cir.
    2002)).
    As the United States Court of Appeals for the Federal Circuit has stated, “the
    proper standard to be applied in bid protest cases is provided by 5 U.S.C.
    § 706(2)(A) [(2006)]: a reviewing court shall set aside the agency action if it is
    ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
    law.’” Banknote Corp. of Am. v. United States, 
    365 F.3d 1345
    , 1350-51 (Fed. Cir.
    2004) (citing Advanced Data Concepts, Inc. v. United States, 
    216 F.3d 1054
    ,
    1057-58 (Fed. Cir. 2000)). Under this standard, a procurement decision may be set
    aside if it lacked a rational basis or if the agency’s decision-making involved a
    violation of regulation or procedure. Impresa Construzioni Geom. Domenico
    Garufi v. United States, 
    238 F.3d 1324
    , 1332 (Fed. Cir. 2001) (Impresa) (citations
    omitted). De minimis errors in the procurement process, however, do not justify
    11
    relief. Grumman Data Sys. Corp. v. Dalton, 
    88 F.3d 990
    , 1000 (Fed. Cir. 1996)
    (citing Andersen Consulting v. United States, 
    959 F.2d 929
    , 932-33, 935 (Fed. Cir.
    1992)). The bid protest plaintiff bears the burden of proving that a significant error
    marred the procurement in question. 
    Id. (citing CACI Field
    Servs., Inc. v. United
    States, 
    854 F.2d 464
    , 466 (Fed. Cir. 1988)).
    “‘If the court finds a reasonable basis for the agency’s action, the court
    should stay its hand even though it might, as an original proposition, have reached a
    different conclusion as to the proper administration and application of the
    procurement regulations.’” Honeywell, Inc. v. United States, 
    870 F.2d 644
    , 648
    (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 
    455 F.2d 1289
    , 1301
    (D.C. Cir. 1971)). If, on the other hand, “the trial court determines [that] the
    government acted without rational basis or contrary to law when . . . awarding the
    contract[,] . . . it proceeds to determine, as a factual matter, if the bid protester was
    prejudiced by that conduct.” 
    Bannum, 404 F.3d at 1351
    . Plaintiff again bears the
    burden of proof, and must “show that there was a ‘substantial chance’ [plaintiff]
    would have received the contract award but for the [government’s] errors in the
    [procurement] process.” 
    Id. at 1358 (citations
    omitted). If a protestor can show
    that, but for the procurement error of the agency, there was a substantial chance that
    it would have won the contract award, prejudice has been established. 
    Id. at 1353 (citations
    omitted). “Prejudice is a question of fact.” 
    Id. (citing Advanced Data
    Concepts, 216 F.3d at 1057
    ).
    D.     Sole-Source Procurements
    The sole-source procurement in this case is governed by 10 U.S.C. § 2304
    (2006), a provision of CICA which states in relevant part:
    The head of an agency may use procedures other than
    competitive procedures only when –
    (1) the property or services needed by the agency are
    available from only one responsible source or only from a
    limited number of responsible sources and no other type
    of property or services will satisfy the needs of the
    agency;
    (2) the agency’s need for the property or services is of
    such an unusual and compelling urgency that the United
    States would be seriously injured unless the agency is
    12
    permitted to limit the number of sources from which it
    solicits bids or proposals . . . .
    10 U.S.C. § 2304(c). The agency may not justify a sole-source award by reason of
    its own “lack of advance planning.” 10 U.S.C.A. § 2304(f)(4)(A) (West 2010)
    (formerly codified at 10 U.S.C. § 2304(f)(5)(A)). CICA also requires that “[t]he
    head of an agency using procedures other than competitive procedures to procure
    property or services by reason of the application of subsection (c)(2) or (c)(6) shall
    request offers from as many potential sources as is practicable under the
    circumstances.” 10 U.S.C. § 2304(e).
    The Federal Acquisition Regulation (FAR) has incorporated these principles
    in FAR 6.302-1, FAR 6.302-2, and related sections. An agency conducting a
    sole-source procurement must support that action by “written justifications and
    approvals.” FAR 6.302-1(d)(1); FAR 6.302-2(c)(1). Sole-source procurements are
    generally subject to a variety of restrictions designed to foster competition, such as
    requirements that agencies conduct market research and give notice to potentially
    responsible contractors. See FAR 5.207(c)(15); FAR Pt. 10.
    As in other bid protests, a sole-source procurement decision may be set aside
    if: “(1) the sole-source award lacked a rational basis; or (2) the sole-source
    procurement procedure involved a violation of a statute, regulation, or procedure.”
    Emery Worldwide Airlines, Inc. v. United States, 
    264 F.3d 1071
    , 1086 (Fed. Cir.
    2001) (citing 
    Impresa, 238 F.3d at 1332
    ). Under the first ground, “[t]he test for
    reviewing courts is to determine whether the contracting agency provided a
    coherent and reasonable explanation of its exercise of discretion.” 
    Id. (citations omitted). Under
    the second ground, the court examines the sole-source
    procurement for violations of law or regulation, in the absence of which the
    protestor would have had a substantial chance of receiving an award under either a
    competitive bidding process (where the sole-source procedure was made irrational
    by the violations), or under the sole-source procedure. 
    Id. (citations omitted). III.
      Standing
    Defendant relies on 
    Myers, 275 F.3d at 1370-71
    , for the proposition that
    IDEA must establish that it would have been a qualified bidder for CMAS support
    services in a competitive procurement. Def.’s Mot. at 6. This is the correct
    standard for standing, but the administrative record does not support the
    13
    government’s contention that IDEA would not have been a qualified bidder in this
    instance. Indeed, the only information in the administrative record that addresses
    whether or not IDEA would have been a qualified bidder for CMAS support
    services shows that IDEA had substantial CMAS experience and could have
    performed a twelve-month bridge contract, or, if the Air Force needed a six-month
    extension, an eighteen-month bridge contract. See AR Tab 22.
    The government suggests, and the record indicates, that Harris supported
    CMAS with three full-time workers in 2009 and in early 2010. Def.’s Mot. at 7;
    AR at 32, 46, 50, 90. Defendant argues that IDEA was too small to field three
    workers for CMAS support services. Def.’s Mot. at 8. IDEA proposed, however,
    to staff CMAS with one IDEA employee (Mr. Crain), and two subcontractors, just
    as Harris had provided one Harris employee, and two subcontractors. See AR at
    195-96, 214; Pl.’s Resp. at 9. This case is thus unlike Myers, where the protestor
    “presented no evidence that it was qualified to secure the award[] if [it] had been
    made the subject of competitive 
    bids.” 275 F.3d at 1371
    . The court finds that
    IDEA was a qualified bidder for a competitive procurement for a bridge contract for
    CMAS support services in 2010.12
    The government also argues that IDEA has not shown that it had a substantial
    chance of winning a contract for CMAS support services, and has thus not shown
    prejudice to establish its standing to bring this suit. Def.’s Mot. at 8. It is true that
    the protestor of a sole-source procurement must show that it had a substantial
    chance of contract award but for the agency’s decision to limit competition for the
    contract. See, e.g., 
    ITAC, 316 F.3d at 1319
    (discussing the substantial chance
    standard for prejudice and standing); Emery 
    Worldwide, 264 F.3d at 1086
    (noting
    that the same standard applies in sole-source bid protests). But this standard
    requires only that a protestor’s chance of award “must not have been insubstantial.”
    
    ITAC, 316 F.3d at 1319
    (citations omitted). Here, IDEA clearly meets this standard,
    because its experience with CMAS gave IDEA a substantial chance of contract
    12
    / Defendant appears to argue that the fact that IDEA had not yet won a contract with
    the United States prevented IDEA from being a qualified bidder. Def.’s Mot. at 7-8. Nothing in
    Myers suggests that first-time bidders on federal contracts lack standing, as a general rule, to
    protest sole-source awards.
    14
    award in a competitive procurement for the bridge contract awarded to Harris.13 See
    AR Tab 22; Pl.’s Resp. at 7-10.
    In its reply brief, the government suggests that IDEA’s standing depends
    solely on the information before the agency at the time it made its decision to award
    a sole-source contract to Harris. Def.’s Reply at 5. This position is incorrect. If, in
    a competitive procurement, IDEA had bid on the bridge contract, the agency’s
    evaluation of that bid would stand or fall based on the record before the agency at
    that time. Here, however, IDEA’s status as a qualified bidder that had a substantial
    chance of contract award in a hypothetical competitive procurement may be
    established by material before the agency at the time of the sole-source award and
    material provided by IDEA during the course of this bid protest. See, e.g., 
    Myers, 275 F.3d at 1371
    (affirming this court’s ruling on standing, which was based on
    evidence, or the lack of evidence, provided by the protestor during the course of the
    litigation). For all of the above-cited reasons, IDEA has standing to bring this suit.
    IV.   Mootness
    Defendant argues that this protest is moot and must be dismissed because the
    bridge contract has been fully performed, and “no effectual relief is available.”
    Def.’s Mot. at 5. This legal position, too, is incorrect. Although plaintiff’s requests
    for injunctive relief and declaratory judgments are either abandoned or moot,
    IDEA’s request for bid preparation costs is very much a live controversy.
    Defendant’s argument to the contrary has no merit.
    Defendant relies on Glenn Def. Marine (Asia), PTE v. United States, 469 F.
    App’x 865 (Fed. Cir. 2012), as support for the government’s argument that this bid
    protest should be dismissed on mootness grounds. Def.’s Mot. at 5; Def.’s Reply at
    3. The court notes that Glenn is a non-precedential opinion and does not bind this
    court. More importantly, Glenn is inapposite. In Glenn, the protestor’s appeal was
    moot because the agency took corrective action which gave the protestor exactly
    what it sought to achieve through the court’s intervention in the procurement
    process. See 469 F. App’x at 867 (“Glenn Defense seeks to enjoin a contract for
    13
    / The administrative record contains no review by the Air Force of IDEA’s
    qualifications as a bidder or of its chance of receiving an award for CMAS support services.
    15
    performance of services that it has now been awarded. Thus, . . . there is no actual,
    ongoing case or controversy for us to decide.”). Here, IDEA was not awarded the
    bridge contract, and its suit has not been addressed by any corrective action so as to
    render IDEA’s bid protest moot. Thus, Glenn does not support defendant’s
    mootness argument.
    The Federal Circuit has stated that a request for bid preparation and proposal
    costs presents a live controversy even when the underlying protest concerned an
    awarded contract which, during the course of the protest, has been fully performed.
    Pacificorp Capital, Inc. v. United States, 
    852 F.2d 549
    , 550 (Fed. Cir. 1988). This
    precedent is binding on the court. IDEA’s request for bid preparation costs
    prevents this protest from being dismissed as moot.14 The court now turns to the
    merits of plaintiff’s protest, and begins with a review of the document which
    presents the Air Force’s rationale for the sole-source award to Harris.
    V.    The Sole-Source Justification and Approval
    By March 9, 2010, Mr. Michael J. Fedorzak, the Air Force’s CMAS manager,
    had signed the Justification and Approval (J&A) for a sole-source award to Harris.
    AR at 99. More than a month passed, however, before other approval signatures
    were obtained for the J&A on April 16, 2010, the day the Notice to Proceed was
    provided to Harris. 
    Id. at 50, 99.
    Contract award was then delayed another month,
    until May 18, 2010, although Harris had already been performing the sole-source
    contract during this period. 
    Id. at 101. The
    J&A was posted on FedBizOpps on
    May 21, 2010. 
    Id. at 100-01. The
    delays in obtaining approvals for the J&A, and
    in posting the J&A, are unexplained.15
    The first pages of the J&A are devoted to a description of the CMAS services
    to be obtained from Harris. AR at 92-96. The document then turns to a justification
    14
    / IDEA’s request for attorney fees will be discussed infra.
    15
    / The CMAS contract was apparently transferred from one contracting office to another
    within the Air Force sometime in 2009 or 2010. See AR at 195, 206, 208; Compl. ¶ 32. It is
    possible that this transfer led to inefficiencies in the contracting function. See AR Tabs 5-7.
    16
    of the sole-source award. The principal cited authority16 for the sole-source
    procurement is the “only one responsible source” authority found in 10 U.S.C. §
    2304(c)(1) and FAR 6.302-1(a)(2)(iii). AR at 96. The relevant FAR provision
    states that
    services may be deemed to be available only from the
    original source in the case of follow-on contracts for the
    continued provision of highly specialized services when it
    is likely that award to any other source would result in (A)
    substantial duplication of cost to the Government that is
    not expected to be recovered through competition, or (B)
    unacceptable delays in fulfilling the agency’s
    requirements.
    FAR 6.302-1(a)(2)(iii). Additional cited authority for the sole-source procurement
    to Harris is the “unusual and compelling urgency” authority of FAR 6.302-2(a)(2).
    AR at 96. This FAR provision states:
    When the agency’s need for the supplies or services is of
    such an unusual and compelling urgency that the
    Government would be seriously injured unless the agency
    is permitted to limit the number of sources from which it
    solicits bids or proposals, full and open competition need
    not be provided for.
    FAR 6.302-2(a)(2).
    The J&A then presents the rationale for a sole-source award for CMAS
    services. The Air Force notes the need to avoid “substantial disruption” of CMAS
    services. AR at 96. The document asserts that hiring a new CMAS contractor
    would “involve a substantial duplication of costs,” require “approximately six to ten
    months to achieve Harris’s current level of productivity,” and “cost . . . more than
    16
    / The only authority noted on the summary page on FedBizOpps was “FAR 6.302-1 –
    Only one responsible source.” AR at 101. The narrative of the J&A also focuses primarily on
    Harris’s qualifications and “the use of only one responsible source authority,” which is provided,
    in appropriate circumstances, by FAR 6.302-1. AR at 98. It is possible that the inclusion of
    FAR 6.302-2 in the J&A is a mere scrivener’s error.
    17
    $1,500,000 given current labor rates.” 
    Id. The J&A also
    states that CMAS
    functions “will be severely jeopardized if a new vendor takes over at this point.” 
    Id. Under the rubric
    “Efforts to Obtain Competition,” the Air Force noted that
    “no [existing contract] vehicle was found” that could support CMAS. AR at 96. As
    for market research, the J&A states that “[m]arket research was not conducted due
    to the short time line and the fact that no barriers exist because the services rendered
    are highly specialized and unique to the incumbent contractor.” 
    Id. at 97. It
    is
    unclear what the term “barriers” is meant to signify in that sentence. Perhaps the
    author of the J&A believed that there were no barriers to using a sole-source
    competition because Harris was, in the author’s view, the only responsible source
    for CMAS services.
    In a lengthy narrative section, the J&A next praises Harris’s experience and
    expertise. The document states that “[t]here are currently no other contractors with
    both the technical and professional skills necessary” to support CMAS. AR at 97.
    The J&A warns of a “substantial disruption” if a new contractor were to support
    CMAS. 
    Id. After describing a
    number of important CMAS projects, the J&A
    asserts that a transition to a new contractor would pose numerous risks, including a
    reduction in “system progression,” a “huge delay in program completion,”
    “duplication in costs,” “serious and adverse mission consequences,” “possible
    stoppage of system applications,” and “serious detrimental impact to the
    Air Force’s ability to confidently implement . . . policy changes.” 
    Id. at 98. The
    J&A states that it is “doubtful” that any other contractor could “develop
    expertise comparable to that of Harris.” AR at 98. Under the rubric “Interested
    Sources,” the J&A reports “NONE.” 
    Id. The document also
    notes that Harris
    possessed a General Services Administration Federal Supply Schedule, against
    which a delivery order for the bridge contract could be written.17 
    Id. The J&A therefore
    concludes that “a demonstration is presented that the current contractor’s
    unique qualifications and the nature of this acquisition require[] the use of only one
    responsible source authority and that is Harris.” 
    Id. The J&A contains
    no
    discussion, however, of the advance planning, or lack thereof, for a procurement
    17
    / There is no evidence in the administrative record that the bridge contract was indeed
    placed against a GSA Supply Schedule. Compare AR at 1 with 
    id. at 71. 18
    that would have permitted full and open competition for the award of a CMAS
    contract in April 2010.
    VI.   Whether the Air Force’s Sole-Source Award to Harris was Justified
    Plaintiff asserts that the sole-source award to Harris was improper, arbitrary
    and capricious, and contrary to law. Compl. ¶¶ 5, 76-77. One specific violation of
    regulation noted by plaintiff is the failure to publish a timely notice of the proposed
    sole-source award to Harris. 
    Id. ¶ 35. The
    more general violation of law alleged by
    plaintiff is that the Air Force ignored its responsibility to foster fair and open
    competition for government contracts. 
    Id. ¶ 70. In
    support of this contention,
    plaintiff asserts that the Air Force improperly ignored IDEA’s repeatedly expressed
    interest in competing for the CMAS contract requirement. Pl.’s Mot. ¶ 5.
    Plaintiff notes that the contract file contains concessions by the contract
    specialist that violations of procurement regulations occurred. Pl.’s Mot. ¶ 8.
    Defendant concedes that errors were made in the sole-source award to Harris, but
    dismisses them as “technical” or “minor” errors. Def.’s Mot. at 14, 19. Plaintiff
    argues, however, that by excluding IDEA from any competition for the CMAS
    bridge contract, and by only soliciting a bid from Harris, the Air Force’s sole-source
    award was not in accordance with law. Pl.’s Resp. at 14. Plaintiff also notes,
    correctly, that there is no review of IDEA’s qualifications or responsibility in the
    administrative record; thus, the agency’s failure to solicit a bid from IDEA is
    entirely unexplained in the J&A or in any other contemporaneous documents that
    were before the agency at the time it made its sole-source award. 
    Id. at 8. Finally,
    plaintiff asserts that the Air Force violated procurement law when it failed to
    conduct a proper search for responsible sources to perform the CMAS contract
    requirement. 
    Id. at 12. Although
    plaintiff’s protest is less than robust in citations to specific FAR
    provisions or caselaw, the court agrees that this procurement was fundamentally
    flawed. The sole-source award to Harris was arbitrary and capricious, and included
    numerous violations of procurement regulations which were significant. The court
    notes that sole-source procurements were specifically addressed by CICA and that
    agencies must operate within the restrictions placed upon them by Congress:
    Congress establishes the rules for federal procurement and
    federal agencies have only the discretion that Congress
    19
    allows them. In the CICA, Congress expressed concern
    that federal agencies had misused the authority Congress
    had granted them and too often resorted to sole source
    contracts. To control this practice, Congress mandated
    that unless a statutory exception applies,
    federal agencies must purchase products and services
    based upon “full and open competition through the use of
    competitive procedures.”
    ATA Def. Indus., Inc. v. United States, 
    38 Fed. Cl. 489
    , 504 (1997) (ATA Defense)
    (quoting 10 U.S.C. § 2304(a)(1)(A)). The court turns first to the issue of advance
    planning by the Air Force for a CMAS procurement.
    A.      Lack of Advance Planning
    CICA provides that sole-source procurements may not be used when the
    circumstances justifying the award were due to the agency’s own lack of advance
    planning. 10 U.S.C.A. § 2304(f)(4)(A); FAR 6.301(c)(1); WorldWide Language
    Res., Inc., B-296993, 2005 CPD ¶ 206, 
    2005 WL 3143870
    , at *9 (Comp. Gen. Nov.
    14, 2005). To the extent that the Air Force justifies its sole-source award to Harris
    on “the short time line” available to properly research responsible sources for the
    CMAS contract, AR at 97, this justification violates CICA. The time-frame for the
    award of this bridge contract was, on the record before the court, entirely the result
    of a lack of advance planning on the part of the Air Force.
    As the court noted earlier in this opinion, the Air Force could not have been
    unaware of the expiring five-year contract with Harris well in advance of 2009 and
    2010. Further, given the generous time-frame available for procurement planning
    here, there have been no representations made by the government that any
    impediments precluded advance planning. There is no evidence in the record of any
    efforts by the Air Force to conduct adequate market research, or to plan and prepare
    for a competitive procurement, before Harris’s old contract expired on March 31,
    2010.18 Mr. Crain also persistently reminded Air Force personnel of their
    18
    / The court notes that this is not a bid protest where the administrative record was
    hastily filed pursuant to an expedited litigation schedule. The administrative record was filed
    over a year after the suit was filed, and almost three months after the amended complaint was
    continue...
    20
    obligation to foster full and open competition for the CMAS program, beginning in
    February 2009. This court’s rules indicate that procurement planning documents
    should be included in the administrative record, see, e.g., RCFC App. C ¶ 22(b), but
    here there are none which evidence an attempt to conduct a timely, competitive
    procurement.19 The court concludes that the sole-source contract awarded to Harris
    violates 10 U.S.C.A. § 2304(f)(4)(A), because of the lack of advance planning on
    the part of the Air Force.
    Much of the sole-source justification provided by the Air Force relies on the
    unacceptably long transition time that would have been required before a new
    contractor could provide CMAS support services. See AR at 96 (estimating that
    approximately six to ten months would be necessary for a transition to a new
    contractor), 98 (noting the “lengthy learning curve” that a new CMAS contractor
    would face ), 98 (estimating that “upwards of ten months” would be necessary for a
    transition to a new contractor). Based on the record before the court, this problem,
    too, cannot be attributed to anything but the Air Force’s lack of advance planning.
    Failure to account for transition periods between an incumbent contractor and a new
    contractor is yet another form of lack of advance planning. See, e.g.,
    Techno-Sciences, Inc., B-257686, 94-2 CPD ¶ 164, 
    1994 WL 606131
    , at *5 (Comp.
    Gen. Oct. 31, 1994) (citation omitted).
    For all of these reasons, the court finds that the sole-source award violates
    CICA because it is based on the agency’s lack of advance planning.20
    18
    / ...continue
    filed. The Air Force had ample time to assemble a complete administrative record to support its
    sole-source award to Harris.
    19
    / Indeed, the only planning documents in the record show that the Air Force took steps
    to prepare for a sole-source award, not a competitive award. See AR at 99 (showing that the
    J&A for the sole-source award was prepared by March 9, 2010); 34 (showing that a draft bridge
    contract solicitation was prepared by April 15, 2010); 51 (showing that the Air Force contacted
    Harris on April 15, 2010 to solicit a bid for the sole-source award); 50 (showing that Harris was
    given a Notice to Proceed on April 16, 2010 in advance of the issuance of the sole-source
    contract).
    20
    / Although plaintiff did not raise this issue as a separate bid protest ground, Mr. Crain
    noted the J&A’s improper reliance on a “‘short timeline’” in his first email to the Air Force
    complaining about the sole-source award. AR at 211.
    21
    B.      Arbitrary and Capricious Reasoning
    According to the J&A, the agency determined that Harris was the only
    responsible source for CMAS support services. AR at 96. However, the same
    document concedes that no market research was performed. 
    Id. at 97. Thus,
    the
    agency’s determination that Harris was the only contractor that could provide
    CMAS support services appears to be founded on: (1) the fact that the Air Force
    examined other existing contract vehicles to see if CMAS could be incorporated
    into those existing contracts; and (2) the fact that CMAS support services are
    “highly specialized and unique to” Harris. 
    Id. at 96-97. There
    is no indication,
    however, that the Air Force engaged in a meaningful consideration of the
    capabilities of other potential sources, before drafting the J&A, to support its
    conclusion that CMAS support services are unique.21 Thus, the Air Force’s
    determination that Harris was the one responsible source for CMAS support
    services was unreasonable. See, e.g., WorldWide Language, 
    2005 WL 3143870
    , at
    *12 (finding “a critical error” in a sole-source award where “firms other than [the
    incumbent] and their capabilities were simply not meaningfully considered”).
    The court also questions, as did Mr. Crain in his first post-J&A email to the
    Air Force, AR at 211, the factual presumptions supporting the sole-source award to
    Harris. The J&A states that “the Government is confident that the proposed number
    of hours, labor rates, and labor categories will be comparable and reasonable [as
    they have been in the past],” apparently because Harris would keep the same
    personnel and Harris’s prices for the old contract had been determined to be fair and
    reasonable in 2009.22 AR at 97. The only figures in the administrative record
    regarding the last option year of Harris’s old contract show that the annual cost of
    the CMAS contract from October 1, 2008 through September 30, 2009 was
    $403,338.40. AR at 16. In contrast, the cost of a six to ten month transition to a
    21
    / The contract specialist also failed to complete adequate market research, as evidenced
    by her memorandum dated May 12, 2010. AR at 70. According to plaintiff, even the minimal
    research performed by the contract specialist, or a simple check of the CMAS contract file,
    would have produced information regarding IDEA’s experience with CMAS. Pl.’s Mot. ¶ 8.
    22
    / At least one of Harris’s prices for the sole-source contract was not comparable to the
    old contract. The sole-source contract contained an expansive increase in the amount budgeted
    for contractor travel. 
    See supra
    .
    22
    new contractor was estimated in the J&A to be $1,500,000.23 
    Id. at 96. This
    figure
    is unexplained, other than an assertion that it is based on “current labor rates.” 
    Id. There is no
    credible explanation in the record for this estimate, which triples the
    annual cost of the contract, to explain a transition period of approximately six to ten
    months. Based on the facts in the record, the agency’s reliance on its calculations
    as to the “substantial duplication of costs” of the transition to a new contractor is
    arbitrary and capricious.24
    C.      Violations of Procurement Regulations
    1.      Overview
    The violations of procurement regulations in the sole-source award to Harris
    are numerous, troubling and prejudicial to IDEA. These are not mere technical
    errors. Although there is no indication that the Air Force conducted this
    procurement in bad faith, the record suggests that compliance with regulatory
    mandates was needlessly sacrificed so that a contract vehicle could be put in place
    with a minimum amount of effort. The cumulative effect of these regulatory
    violations was to frustrate full and open competition for the CMAS support services
    requirement.
    2.      Reliance on FAR 6.302-1 and FAR 6.302-2
    The two types of authority for sole-source procurements at issue in this protest
    are “only one responsible source” authority, FAR 6.302-1, and “unusual and
    compelling urgency” authority, FAR 6.302-2. Although the FedBizOpps notice
    confirmation identifies only FAR 6.302-1 as authority, AR at 101, the text of the
    J&A relies on both FAR 6.302-1 and FAR 6.302-2 for authority, AR at 96. The
    23
    / The court notes that it is not unusual for an incoming contractor to hire some or all of
    the incumbent contractor’s experienced staff – in such a scenario transition periods and costs can
    be greatly reduced.
    24
    / The contract specialist’s price reasonableness determination, conducted after the J&A
    was approved, was also less than persuasive. 
    See supra
    . Even if FAR 13.106-3(a)(2), which
    governs price reasonableness determinations when only one bid has been received, was not
    violated here, the court finds that the J&A’s conclusion that the price of Harris’s bridge contract
    was “fair and reasonable,” AR at 97, is significantly undermined by inaccurate assumptions and
    illogical reasoning.
    23
    court notes that reliance on both of these provisions as authority for a sole-source
    procurement J&A is extremely rare, at least in procurements protested to the GAO or
    this court. In fact, the court is not aware of another J&A which has attempted to rely
    on both of these statutory authorities for the same sole-source award.25
    The simple reason that this is such a rare circumstance is that the FAR forbids
    reliance on FAR 6.302-1 when FAR 6.302-2 is applicable. See FAR 6.302-1(b)
    (“This authority . . . shall not be used when any of the other circumstances [in FAR
    sections 6.302-2, 6.302-3, 6.302-4, 6.302-5, 6.302-6] is applicable.”); ATA 
    Defense, 38 Fed. Cl. at 497-98
    (noting that a contracting officer may not justify a sole-source
    award under FAR 6.302-1 if FAR 6.302-2 also applies). In other words, if a
    contracting officer is faced with a situation which can be addressed by applying the
    “unusual and compelling urgency” provisions of FAR 6.302-2, he or she may not
    rely on the “only one responsible source” provisions of FAR 6.302-1 to justify a
    sole-source award. One logical reason for this prohibition is that under FAR 6.302-
    2, the government is permitted in appropriate circumstances to “limit [but not
    automatically reduce to one] the number of sources from which it solicits bids or
    proposals.” FAR 6.302-2(a)(2); see also FAR 6.302-2(c)(2) (“This statutory
    authority requires that agencies shall request offers from as many potential sources
    as is practicable under the circumstances.”). Under FAR 6.302-1, however, the
    government is permitted in appropriate circumstances to solicit an offer from one
    source only. See FAR 6.302-1(b)(1). In essence, the prohibition in FAR 6.302-1(b)
    forces the agency to solicit offers from as many sources as is practicable, in
    situations of unusual and compelling urgency, before resorting to soliciting offers
    from only a single source, in circumstances which may also present unusual and
    compelling urgency.
    25
    / The rarity of this error would tend to support an inference that the inclusion of FAR
    6.302-2 in the J&A was a scrivener’s error. 
    See supra
    note 16. The court here reviews the
    record that was before the agency at the time of the sole-source award, to determine whether the
    agency’s rationale for its award decision was reasonable and consistent with procurement
    regulations. To this end, the court has examined the J&A under any and all of these scenarios:
    (1) the award relied upon the authority of FAR 6.302-1; (2) the award relied upon the authority
    of FAR 6.302-2; and (3) the award relied upon the authority of both FAR 6.302-1 and FAR
    6.302-2. The award was not reasonable under any of these scenarios; the award also violates
    procurement regulations under each of these scenarios.
    24
    The court concludes that the Air Force’s apparent attempt to rely on both FAR
    6.302-1 and FAR 6.302-2 for the sole-source award to Harris violates FAR
    6.302-1(b). Such an approach shows a disregard for the regulatory framework
    governing sole-source awards, and also demonstrates a disregard for one of the goals
    of CICA, which is to obtain as much competition as is practicable under the
    circumstances. The violation of FAR 6.302-1(b) would be less serious if the Air
    Force had strictly observed the procedural requirements of FAR 6.302-1, and had
    reasonably ascertained that only Harris could provide CMAS support services. The
    record shows, however, that neither the letter nor the spirit of FAR 6.302-1 was
    respected in the award of the sole-source contract to Harris. Furthermore, the Air
    Force similarly failed to respect the safeguards in FAR 6.302-2 which ensure that the
    “unusual and compelling urgency” justification for sole-source awards is not abused.
    The violation in the J&A of FAR 6.302-1(b), if not a scrivener’s error, was
    significant.
    3.     No Market Research, as Required by FAR Part 10
    If, as it appears, the Air Force’s primary justification for the sole-source award
    was its determination that Harris was the one responsible source for CMAS support
    services, such a determination, to be rational, required adequate market research. As
    
    discussed supra
    , the Air Force did not conduct any significant market research. As
    the contract specialist conceded, the lack of market research to support this sole-
    source procurement violates FAR Part 10. AR at 70.
    The specific provisions in FAR Part 10 that have been violated here, in the
    court’s view, include FAR 10.001(a)(2)(ii), FAR 10.001(3)(i), and FAR 10.002(b).
    These provisions require market research if the contract is valued to exceed a
    threshold amount, require market research that identifies potential sources for the
    contract requirement, and require market research into the availability of commercial
    items. The record before the court does not show that the Air Force satisfied the
    market research requirements of FAR Part 10. The failure to conduct adequate
    market research also implicates FAR 6.302-1(b)(1), which requires a “reasonable
    basis” for the determination that only one responsible source exists to fulfill a
    contract requirement. See, e.g., WorldWide Language, 
    2005 WL 3143870
    , at *12
    (sustaining a protest of a sole-source award justified by the authority of FAR 6.302-1
    because “firms other than [the incumbent] and their capabilities were simply not
    meaningfully considered”). The violation of FAR Part 10 in this procurement was a
    significant and serious violation of procurement regulations.
    25
    4.    No Contract Synopsis Posted, as Required by FAR
    5.207(c)(15)(ii) and FAR 6.302-1(d)(2)
    As a general rule, a procuring agency must provide notice of upcoming
    contract actions. See FAR 5.201(c) (“The primary purposes of the notice are to
    improve small business access to acquisition information and enhance competition
    by identifying contracting and subcontracting opportunities.”). These contract
    action synopses are required to include specified content. FAR 5.207. As pertinent
    here, “[w]hen using the sole source authority at 6.302-1, insert a statement that all
    responsible sources may submit a capability statement, proposal, or quotation, which
    shall be considered by the agency.” FAR 5.207(c)(15)(ii) (now found at 48 C.F.R. §
    5.207(c)(16)(ii)). The requirement for this statement in a posted synopsis is also
    found in FAR 6.302-1, which contains the additional requirement that “any bids,
    proposals, quotations, or capability statements [received in response to the synopsis]
    must have been considered” by the agency. FAR 6.302-1(d)(2).
    Here, there was no synopsis posted prior to contract award; no statement
    encouraging potential sources to submit proposals; and, necessarily, no
    consideration by the Air Force of information received in response to such a notice.
    The failure to post a proper synopsis on FedBizOpps was a significant departure
    from regulatory requirements, and further weakens the rationality of the agency’s
    determination that only Harris could have performed the bridge contract for CMAS
    support services. See, e.g., M.D. Thompson Consulting, LLC, B-297616, 2006 CPD
    ¶ 41, 
    2006 WL 463154
    , at *3 (Comp. Gen. Feb. 14, 2006) (stating that “a synopsis
    must provide prospective alternative sources a meaningful opportunity to
    demonstrate their ability to provide what the agency seeks to purchase”) (citation
    omitted); see also Barnes Aerospace Grp., B-298864, 2006 CPD ¶ 204, 
    2006 WL 3849071
    , at *6 (Comp. Gen. Dec. 26, 2006) (“We think agencies undercut their
    credibility when they prepare and execute sole-source J & As on the basis that there
    is only one responsible source available, before the time they have received
    expressions of interest and capability from potential offerors. The entire purpose of
    issuing notices seeking expressions of interest and capability is to avoid the need for
    such sole-source procurements, if possible.”). The sole-source award to Harris was
    not in accordance with FAR 5.207(c)(15)(ii) or FAR 6.302-1(d)(2) and was
    improper for this reason.
    26
    5.    No Explanation in the J&A as to the Failure to Post a
    Synopsis, and No Citation to Authority Justifying Such a
    Failure, as Required by FAR 6.303-2(a)(6)
    There are exceptions to the requirement for the posting of a contract action
    synopsis, and these exceptions are delineated in FAR 5.202. One such exception
    permits an agency to refrain from posting a contract action synopsis for a sole-source
    award justified under FAR 6.302-2 when certain conditions are met:
    The contracting officer need not submit the notice required
    by [FAR] 5.201 when . . . [t]he proposed contract action is
    made under the conditions described in 6.302-2 . . . and the
    Government would be seriously injured if the agency
    complies with the time periods specified [for the posting of
    contract action synopses] in [FAR] 5.203.
    FAR 5.202. Thus, a sole-source award justified under FAR 6.302-2 may, in
    appropriate circumstances, be exempt from the synopsis requirements set forth in
    FAR Subpart 5.2.
    However, the above-mentioned exception in FAR 5.202 was not invoked in
    the J&A for this sole-source procurement; indeed, the J&A is silent as to the Air
    Force’s failure to post a synopsis before contract award. The J&A thus fails to
    conform to FAR 6.303-2, which requires that each J&A include “[a] description of
    efforts made to ensure that offers are solicited from as many potential sources as is
    practicable, including whether a notice was or will be publicized as required by
    subpart 5.2 and, if not, which exception under 5.202 applies.” FAR 6.303-2(a)(6)
    (now found at 48 C.F.R. § 6.303-2(b)(6)). This is not a mere technical error - the
    officials approving the J&A should have been made aware of the Air Force’s failure
    to synopsize the contract action (and the ramifications that failure might have had on
    the rationality of the sole-source award); in the absence of this vital information,
    their approval signatures do not carry the same weight. See United States Marshals
    Serv., B-224277, 87-1 CPD ¶ 430, 
    1987 WL 102234
    , at *1 (Comp. Gen. Apr. 22,
    1987) (finding a sole-source award improper because the agency’s J&A did not
    contain a statement noting and explaining the agency’s failure to post a synopsis
    prior to award). For this reason, the Air Force’s sole-source award to Harris violated
    FAR 6.303-2(a)(6) and was improper.
    27
    6.     No Mention of IDEA as an Interested Source, as Required by
    FAR 6.303-2(a)(10)
    Another minimum requirement of a sole-source J&A is a listing of contractors
    that have expressed an interest in the contract requirement. This requirement is set
    forth in FAR 6.303-2, which states in relevant part: “As a minimum, each
    justification shall include . . . [a] listing of the sources, if any, that expressed, in
    writing, an interest in the acquisition.” FAR 6.303-2(a)(10) (now found at 48 C.F.R.
    § 6.303-2(b)(10)). This regulation, too, was violated in the sole-source award to
    Harris.
    Here, it is undisputed that IDEA repeatedly expressed, in writing, an interest
    in the CMAS procurement, in emails sent February 9, 2009, March 24, 2009, April
    17, 2009, and December 11, 2009. These expressions of interest were received
    despite the agency’s failure to post a synopsis of the upcoming sole-source award to
    Harris. In the circumstances of this procurement, where Mr. Crain and IDEA had
    extensive CMAS experience and contacts with officials responsible for CMAS, these
    written expressions of interest by IDEA should have earned IDEA an “Interested
    Source” listing in the J&A, but did not.
    If, indeed, IDEA’s interest in the CMAS contract requirement had been noted
    in the J&A, it is likely that a more thoughtful analysis of the agency’s “only one
    responsible source” determination would have been conducted by the approving
    authorities. As the record stands, however, there is no useful comparison of the
    qualifications of IDEA and Harris in the record. The court finds that the violation of
    FAR 6.303-2(a)(10) was significant.
    7.     Failure to Solicit Offers from As Many Sources As
    Practicable, as Required by FAR 6.302-2(c)(2)
    Finally, even if this sole-source procurement had been justified only under the
    “unusual and compelling urgency” circumstances described in FAR 6.302-2, the Air
    Force did not make the required effort to solicit offers from as many sources as
    practicable. FAR 6.302-2(c)(2). The GAO has repeatedly sustained protests where
    an agency has made only minimal efforts to expand its consideration of potential
    sources beyond an incumbent contractor. The following passage in WorldWide
    Language describes a flawed procurement not unlike the sole-source procurement in
    this case:
    28
    Moreover, the actions associated with the J & A were
    inconsistent with the requirements of the “unusual and
    compelling urgency” justification ultimately relied upon by
    the agency as the basis for the sole-source award to [the
    awardee]. When relying on the urgency justification, as
    noted above, an agency is required to obtain competition to
    the maximum extent practicable. However, as a
    consequence of the agency’s focus on the capabilities of
    [the awardee] to the exclusion of all others, the agency
    failed to take any steps to obtain any competition for the
    expanded . . . requirement. For example, in testimony
    before our Office regarding the consideration of other
    contractors, the Air Force indicated that due to the short
    time frame to fulfill the requirement, transition issues, and
    because [the awardee] was “performing admirably [on an
    existing contract],” the Air Force determined that [the
    awardee] “was uniquely qualified to be the source on this
    follow-on.” The record shows that the expanded . . .
    requirement was formally approved by the Under Secretary
    of Defense on May 2, 2005 and [the awardee’s]
    sole-source contract was ultimately awarded in late July –
    but during that entire period no effort was apparently made
    to identify other firms, consider their capabilities or
    provide for any degree of competition, even on a limited
    basis. In addition, while it may be the case that [the
    awardee’s] customers in Iraq were pleased with [the
    awardee’s] performance, their satisfaction did not provide
    a basis for disregarding the requirement to seek
    competition to the maximum extent practicable. As a
    consequence, we sustain the protesters’ challenge to the
    second sole-source award to [the awardee].
    WorldWide Language, 
    2005 WL 3143870
    , at *12 (citations and footnotes omitted).
    In this case, the Air Force neglected to look into its own contract files to
    discover IDEA, a potential competitor to Harris, as a source for CMAS services;
    neglected to post a synopsis which might have produced expressions of interest from
    competitors to Harris; and performed only the most cursory searches for contractors
    29
    capable of fulfilling the CMAS bridge contract. As in WorldWide Language, the Air
    Force failed to solicit offers from as many sources as was practicable under the
    circumstances. This is a clear violation of FAR 6.302-2(c)(2). At a minimum, the
    agency could have solicited an offer from IDEA. See, e.g., Bausch & Lomb, Inc., B-
    298444, 2006 CPD ¶ 135, 
    2006 WL 2711794
    , at *2 (Comp. Gen. Sept. 21, 2006)
    (sustaining a protest because “the agency has not reasonably demonstrated why it
    could not have opened the requirement up to an expedited limited competition
    among those firms that had expressed interest in the acquisition”).
    Although the government, during the course of this protest, has suggested that
    IDEA was not a qualified, responsible source for CMAS support services, the record
    is devoid of any assessment of IDEA’s qualifications by the Air Force. The glowing
    description of Harris’s capabilities in the J&A permits the inference that the agency
    considered Harris to be superior to any potential competitor. Superiority, however,
    is not adequate justification for a sole-source award. See, e.g., Savantage Fin.
    Servs., Inc. v. United States, 
    81 Fed. Cl. 300
    , 308 (2008) (citing Aero Corp. v. Dep’t
    of the Navy, 
    540 F. Supp. 180
    , 208 (D.D.C. 1982)). Superiority, instead, permits an
    agency to award a contract after the evaluation of competing proposals. 
    Id. (citation omitted). On
    the record before the court, there is no reasonable explanation why the
    Air Force did not solicit a proposal from IDEA.
    VII. Prejudice to IDEA
    Prejudice, in the context of a bid protest of a sole-source award where
    violations of procurement law have occurred, may be shown in one of two ways:
    A disappointed party can establish prejudice either by
    showing: (1) proceeding without the violation would have
    made the procurement official’s decision to make a
    sole-source award rather than to conduct a competitive
    bidding process irrational, and in a competitive bidding
    process, the complaining party would have a substantial
    chance of receiving the award; or (2) proceeding without
    the violation, the complaining party would have a
    substantial chance of receiving the sole-source award.
    Emery 
    Worldwide, 264 F.3d at 1086
    (citations omitted). Plaintiff largely focuses on
    the first type of prejudice, i.e., that IDEA would have had a substantial chance of
    30
    winning the CMAS contract in 2010 if a CMAS contract had been the subject of full
    and open competition. Pl.’s Reply at 10. Defendant asserts that IDEA failed to
    establish prejudicial error, Def.’s Reply at 8, but the court disagrees.
    As discussed in this opinion, the decision to award a sole-source contract to
    Harris in 2010 involved a lack of advance planning, irrational reasoning, and
    numerous violations of procurement law and regulations. These errors render the
    award to Harris irrational. Emery 
    Worldwide, 264 F.3d at 1086
    . IDEA, according to
    the record before the court, given its experience with CMAS and its ability to staff
    CMAS support services with experienced subcontractors, had a substantial chance of
    winning a competition for a CMAS contract. Plaintiff has shown prejudice of the
    first type. 
    Id. The record also
    supports the existence of prejudice of the second type. In
    February and March of 2010, as the agency contemplated the scheduled termination
    of Harris’s CMAS contract on March 31, 2010, the Air Force could have conducted
    a limited competition for a bridge contract to maintain CMAS services, perhaps in
    accordance with FAR 6.302-1(b)(1)(ii) or FAR 6.302-2(c)(2). In this scenario,
    IDEA, afforded the opportunity to respond to the required notices, would have had a
    substantial chance of winning the CMAS sole-source bridge contract. Thus, the
    record before the court establishes prejudice of the second type as well. Emery
    
    Worldwide, 264 F.3d at 1086
    . Because IDEA has established prejudice, IDEA is
    entitled to bid preparation costs, if these costs are justified under the circumstances
    and substantiated.26
    VIII. Other Protest Grounds
    Because plaintiff has succeeded in its challenge to the sole-source award to
    Harris (Count I of the complaint), and in establishing prejudice from that flawed
    procurement decision, the court need not discuss plaintiff’s other contentions of
    error in great detail. The court notes that defendant moves to dismiss plaintiff’s
    other contentions of error, found in Counts II-IV of the complaint, for lack of
    jurisdiction. Def.’s Mot. at 9-10. Defendant also moves to dismiss Count IV for
    26
    / Plaintiff has conceded that no effective injunctive relief is available at this point in
    time. Compl. ¶ 72; Pl.’s Resp. at 5-6.
    31
    failure to state a claim upon which relief may be granted, under RCFC 12(b)(6). 
    Id. at 10. Plaintiff
    has not offered any significant rebuttal to defendant’s arguments for
    dismissal of Counts II-IV of the complaint, and instead asks that Counts II-IV be
    dismissed without prejudice, if they must indeed be dismissed. Pl.’s Resp. at 11.
    Plaintiff states that its request for dismissal without prejudice would permit “IDEA
    . . . to refile those counts in a federal district court with wider scope in its
    jurisdiction.” 
    Id. Defendant has stated
    that it would “request an opportunity to
    respond” to a formal request for dismissal without prejudice of Counts II-IV. Def.’s
    Reply at 7 n.4.
    In these circumstances, where plaintiff has not met its burden to show
    jurisdiction over Counts II-IV of the complaint, dismissal is warranted. In this court,
    dismissal for lack of jurisdiction is typically without prejudice. IDEA thus will
    retain its right to file its claims elsewhere, or even refile these claims in this court; in
    the court’s view, however, such filings would be futile. Because, in the court’s
    estimation, further litigation of these claims has no apparent prospect for the award
    of relief, monetary or otherwise, the court will briefly discuss Counts II-IV of the
    complaint here.
    A.     Count II
    Count II of the complaint suggests that the Air Force violated procurement
    regulations when it ignored IDEA’s agency-level protest. Plaintiff has alleged
    jurisdiction only under § 1491(a) for Count II. Compl. ¶¶ 15, 26. The court agrees
    with defendant, Def.’s Mot. at 9, that jurisdiction under § 1491(a) does not lie for
    Count II.
    The court notes, however, that § 1491(b) confers a wide grant of jurisdiction
    to this court over “any alleged violation of statute or regulation in connection with a
    procurement or a proposed procurement.” 28 U.S.C. § 1491(b). If Count II were
    refiled in this court, with jurisdiction alleged under § 1491(b), it might survive
    defendant’s jurisdictional challenge. See ES-KO, Inc. v. United States, 
    44 Fed. Cl. 429
    , 431-32 (1999) (asserting jurisdiction under § 1491(b) over an alleged violation
    of a procurement regulation in an agency’s response to an agency-level protest).
    However, it is extremely doubtful that the claim asserted in Count II would succeed.
    32
    This court may not substitute its judgment for that of an agency, as long as the
    agency’s application of the relevant regulations is reasonable. 
    Honeywell, 870 F.2d at 648
    . Although Mr. Crain’s May 2010 emails to the Air Force might have been
    interpreted as timely agency-level protests, they also could have been interpreted as
    attempts to achieve “open and frank discussions” under FAR 33.103(b). Under this
    reasonable application of the regulation, IDEA did not file a timely agency-level
    protest in May 2010, and no violation of procurement regulations occurred when the
    Air Force failed to respond to an untimely agency-level protest filed on July 9, 2010.
    Count II, in the court’s view, would not succeed on the merits.
    B.     Count III
    In Count III of the complaint, plaintiff challenges the litigation conduct of the
    Air Force during IDEA’s GAO protest. Plaintiff has alleged jurisdiction only under
    § 1491(a) for Count III. Compl. ¶¶ 15, 26. The court agrees with defendant, Def.’s
    Mot. at 9, that jurisdiction under § 1491(a) does not lie for Count III. Even if Count
    III were refiled in this court alleging jurisdiction under § 1491(b), jurisdiction is, at
    best, doubtful. Furthermore, even if IDEA could overcome a jurisdictional
    challenge from defendant, the court sees no violation of procurement laws or
    regulations in the litigation conduct of the Air Force. The claim set forth in Count
    III, too, would, in all likelihood, fail on the merits.
    C.     Count IV
    In Count IV of the complaint, plaintiff suggests that the six-month extension
    of Harris’s bridge contract was improper. Plaintiff has alleged jurisdiction only
    under § 1491(a) for Count IV. Compl. ¶ 26. Jurisdiction under § 1491(a) does not
    lie for Count IV.
    If Count IV were refiled in this court, with jurisdiction alleged under
    § 1491(b), Count IV might survive a jurisdictional challenge by defendant. See
    Sys. Application & Techs., Inc. v. United States, 
    691 F.3d 1374
    , 1381 (Fed. Cir.
    2012) (stating that “a narrow application of section 1491(b)(1) does not comport
    with the statute’s broad grant of jurisdiction over objections to the procurement
    process,” and noting that the procurement process starts with the determination of a
    need and ends with contract closeout) (citations omitted). But even if jurisdiction
    for Count IV lies under § 1491(b), this claim still, in all likelihood, would not
    succeed. Plaintiff’s arguments are not persuasive as to an improper contract
    33
    extension, because the bridge contract included within its terms an option for a six-
    month extension of contract services. AR at 82. In other words, Count IV appears
    to fail to state a claim upon which relief can be granted, and would be subject to
    dismissal pursuant to RCFC 12(b)(6). See Def.’s Mot. at 10.
    D.       Futility
    The court is unaware of any other court which would provide IDEA relief for
    the claims expressed in Counts II-IV of the complaint. Dismissal without prejudice
    is thus of little apparent benefit to IDEA. Refiling these claims in this court would
    appear to be futile, and filing these claims in another court would also appear to be
    futile. Although the court cannot and does not reach the merits of these claims,
    plaintiff may wish to reconsider the advisability of investing further resources in the
    advancement of the claims stated in Counts II-IV of the complaint.
    IX.   Relief
    Plaintiff has requested bid preparation costs, as well as attorney fees.27
    Compl. ¶ 81(E)-(F). Defendant argues that absent an invitation to bid, bid
    preparation costs are not available to a protestor. Def.’s Mot. at 20. The court
    reserves the question of whether a prevailing plaintiff in IDEA’s circumstances may
    recover bid preparation costs, and whether IDEA can substantiate its bid preparation
    costs, for additional briefing. As for attorney fees, defendant argues that “IDEA has
    not advanced any . . . theory under which it is entitled to recover these costs.” 
    Id. at 11. The
    court will not address the attorney fees issue unless IDEA advances an
    appropriate theory for an award of attorney fees, at the appropriate time.
    Finally, the court notes that IDEA has requested a declaratory judgment that
    the sole-source award to Harris was “erroneous, unsupported by fact, and contrary to
    law.” Compl. ¶ 81(A). Such a declaratory judgment, when a contract has been fully
    performed, is a purely academic exercise, and is not proper. See, e.g.,
    LABAT-Anderson, Inc. v. United States, 
    65 Fed. Cl. 570
    , 576 (2005) (holding that
    when “a declaratory judgement . . . would have no practical effect on the parties,”
    27
    / In the same paragraph as plaintiff’s request for bid preparation costs, IDEA requests
    protest costs for proceedings before the Air Force and before the GAO. The court is unaware of
    any authority which would allow IDEA to recover such costs in this suit, and plaintiff has failed
    to cite the court to any such authority.
    34
    the court could not issue such a judgment (citing PGBA, LLC v. United States, 
    389 F.3d 1219
    , 1228 (Fed. Cir. 2004))). The court must not issue a declaratory judgment
    in the circumstances presented here, because a declaratory judgment would have no
    practical effect on either the Air Force or IDEA.
    CONCLUSION
    IDEA has prevailed on the merits of its bid protest. Although bid preparation
    costs are normally available to a prevailing protestor, defendant challenges such an
    award in the particular circumstances of this case. The court encourages the parties
    to resolve the bid preparation costs issue amicably, preferably by stipulation as to an
    amount due plaintiff. If such a resolution is not achieved, plaintiff must file a
    motion and accompanying brief in support of IDEA’s request for bid preparation
    costs. The court also encourages the parties to explore and address the issue of
    attorney fees in advance of any necessity to litigate that issue, as well.
    Accordingly, it is hereby ORDERED that
    (1)    Plaintiff’s Motion for Judgment on the Administrative Record, filed
    July 25, 2012, is GRANTED in part, as to Count I of the complaint,
    and DENIED in part, as to Counts II, III and IV of the complaint;
    (2)    Defendant’s Motion to Dismiss, Or, in the Alternative, Cross-Motion
    for Judgment upon the Administrative Record, filed August 24, 2012, is
    DENIED in part, as to Count I of the complaint, and GRANTED in
    part, as to Counts II, III and IV of the complaint;
    (3)    The Clerk’s Office is directed to DISMISS Counts II, III and IV of the
    complaint without prejudice, for lack of jurisdiction;
    (4)    The parties shall CONFER and attempt a resolution of plaintiff’s
    requests for bid preparation costs and attorney fees; and,
    (5)    Defendant shall FILE a Notice as to the results of their negotiation by
    March 1, 2013.
    35
    /s/Lynn J. Bush
    LYNN J. BUSH
    Judge
    36
    

Document Info

Docket Number: 11-217C

Citation Numbers: 108 Fed. Cl. 711, 2013 U.S. Claims LEXIS 34, 2013 WL 343416

Judges: Bush

Filed Date: 1/29/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (21)

Impresa Construzioni Geom. Domenico Garufi v. United States , 238 F.3d 1324 ( 2001 )

Emery Worldwide Airlines, Inc. v. United States and Federal ... , 264 F.3d 1071 ( 2001 )

Resource Conservation Group, LLC v. United States , 597 F.3d 1238 ( 2010 )

Pacificorp Capital, Inc. v. The United States, ... , 852 F.2d 549 ( 1988 )

Honeywell, Inc. v. The United States v. Haz-Tad, Inc. , 870 F.2d 644 ( 1989 )

Pgba, LLC v. United States, and Wisconsin Physicians ... , 389 F.3d 1219 ( 2004 )

Scheuer v. Rhodes , 94 S. Ct. 1683 ( 1974 )

McNutt v. General Motors Acceptance Corp. , 56 S. Ct. 780 ( 1936 )

Alfa Laval Separation, Inc. v. United States, and Westfalia ... , 175 F.3d 1365 ( 1999 )

alder-terrace-inc-alder-terrace-associates-and-david-abolin-sr , 161 F.3d 1372 ( 1998 )

M. Steinthal & Co., Inc. v. Robert J. Seamans, Jr., ... , 455 F.2d 1289 ( 1971 )

Andersen Consulting v. The United States, and Computer ... , 959 F.2d 929 ( 1992 )

Rex Service Corp. v. United States , 448 F.3d 1305 ( 2006 )

banknote-corporation-of-america-inc-and-guilford-gravure-inc-v-united , 365 F.3d 1345 ( 2004 )

Advanced Data Concepts, Incorporated v. United States , 216 F.3d 1054 ( 2000 )

Caci Field Services, Inc. v. The United States , 854 F.2d 464 ( 1988 )

Karen S. Reynolds v. Army and Air Force Exchange Service , 846 F.2d 746 ( 1988 )

Grumman Data Systems Corporation v. John H. Dalton, ... , 88 F.3d 990 ( 1996 )

Myers Investigative and Security Services, Inc. v. United ... , 275 F.3d 1366 ( 2002 )

Bannum, Inc. v. United States , 404 F.3d 1346 ( 2005 )

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