Aero Spray, Inc. v. United States ( 2021 )

CORRECTED
In the United States Court of Federal Claims
No. 21-1079C
(Filed Under Seal: October 21, 2021)
(Filed: October 28, 2021)
)
AERO SPRAY, INC. d/b/a DAUNTLESS )
AIR, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
Defendant, )
)
and )
)
HENRY’S AERIAL SERVICE, INC., and )
FLETCHER FLYING SERVICE, INC. )
)
Defendant- )
Intervenors. )
)
Lee Dougherty, Effectus PLLC, Washington, D.C., for Plaintiff.
Albert S. Iarossi, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for Defendant. With him on the briefs were
Brian M. Boynton, Acting Assistant Attorney General, Civil Division, Martin F. Hockey,
Jr., Acting Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C. Of
counsel was Alexander W. Fichtel, United States Department of Interior, Office of the
Solicitor, Rocky Mountain Region, Lakewood, CO.
Brian G. Walsh, Wiley Rein LLP, Washington, D.C., for Defendant-Intervenor, Henry’s
Aerial Service, Inc. With him on the briefs were Craig Smith and Cara L. Lasley.
Leonard Collins, GrayRobinson, P.A., Tallahassee, FL, for Defendant-Intervenor, Fletcher
Flying Service, Inc. With him on the briefs was Allison Goodson.
OPINION AND ORDER
SOLOMSON, Judge.
Since 1947, Smokey Bear has taught the American public to “Remember…Only
YOU Can Prevent Forest Fires.”1 Unfortunately, wildfires remain a major problem in
the United States.2 The federal government is responsible for responding to wildfires
that occur in the approximately 600 million acres of federal lands,3 and procures a
variety of resources to confront this dauting task—including, as relevant here,
amphibious water scooping fixed-wing aircraft services for firefighting.
In this post-award bid protest, Plaintiff, Aero Spray, Inc. d/b/a Dauntless Air
(“Aero Spray”), an awardee of a multiple award indefinite delivery indefinite quantity
(“IDIQ”) contract for the aforementioned firefighting services, challenges the decision of
Defendant, the United States, acting by and through the Department of the Interior
(“DOI” or the “Agency”), to also award IDIQ contracts to Defendant-Intervenors,
Henry’s Aerial Service, Inc. (“Henry’s Aerial”) and Fletcher Flying Service, Inc.
(“Fletcher Flying”).4 Aero Spray contests the other contract awards to Henry’s Aerial
and Fletcher Flying as arbitrary, capricious, and otherwise not in accordance with law
and seeks a permanent injunction preventing DOI from proceeding with them. The
government and Defendant-Intervenors moved to dismiss Aero Spray’s complaint for
lack of standing and because the action is untimely pursuant to the Blue & Gold waiver

On October 21, 2021, the Court filed, under seal, this opinion and order and provided the
parties the opportunity to propose redactions. On October 28, 2021, the parties filed joint
proposed redactions, ECF No. 53, which this Court adopts, in full, and accordingly reissues this
public version of this opinion and order. Redacted information is noted with [ * * * ].
1About the Campaign, Smokey Bear, https://smokeybear.com/en/smokeys-history/about-the-
campaign (last visited Aug. 19, 2021); see also Pub. L. No. 93-318, 88 Stat. 244 (codified at 16
U.S.C. §§ 580p et seq.).
2Katie Hoover & Laura A. Hanson, Cong. Rsch. Serv., IF 10244, Wildfire Statistics 1–2 (2021)
(“From 2011 to 2020, there were an average of 62,805 wildfires annually and an average of 7.5
million acres impacted annually. . . . Most wildfires are human-caused (88% on average from
2016 to 2020) . . . .”).
3Id. at 1 (“[T]he U.S. Department of Agriculture . . . carries out wildfire management and
response across 193 million acres of the National Forest System . . . [and t]he Department of the
Interior . . . manages wildfire response for more than 400 million acres of national parks,
wildlife refuges and preserves, other public lands, and Indian reservations.”).
4Fletcher Flying Service, Inc. appears to have changed its name to Coastal Air Strike in mid-
2021. Fletcher Flying Service Rebrands to Coastal Air Strike, Coastal Air Strike (Aug. 11, 2021),
https://coastalairstrike.com/fletcher-flying-service-rebrands-to-coastal-air-strike/. Because the
parties refer only to Fletcher Flying, this opinion will do the same.
2
rule. The parties also filed motions for judgment on the administrative record pursuant
to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”).
For the reasons explained below, the Court GRANTS the government’s and
Defendant-Intervenors’ respective motions to dismiss. The Court DENIES Aero
Spray’s motion for judgment on the administrative record. Finally, the Court DENIES
as MOOT the pending motions to supplement the administrative record.
I. FACTUAL AND PROCEDURAL BACKGROUND5
A. The Solicitation
To assist with fighting wildfires, DOI has a need to “acquire single engine
amphibious water scooping fixed-wing aircraft services for the Bureau of Land
Management (BLM) and other federal and state agencies[.]” AR 27; see also AR 1. DOI
specifically sought to acquire “FireBoss” aircraft services “to support fire suppression,
water scooping, and fire-retardant delivery operations” for “areas otherwise difficult to
access.” AR 10–11. A FireBoss aircraft is typically a single engine aircraft modified and
outfitted with specialized equipment, including amphibious float and scooper
packages. AR 1, 5.
Aero Spray and Air Spray USA, Inc. (“Air Spray”) performed the predecessor
contracts to those at issue here. AR 11. With those contracts scheduled to expire on
April 30, 2021,6 DOI issued, on October 22, 2020, Solicitation No. 140D8020R0019, as a
Request for Proposals (the “Solicitation” or the “RFP”) to procure the services of “a
combined fleet of approximately 20–24 [FireBoss] aircraft.” AR 10, 23 (emphasis added).
The RFP is an unrestricted acquisition, providing for multiple award IDIQ contracts,
with an order ceiling of $46,000,000. AR 10; see also AR 16 (“The Government intends to
award multiple contracts.”).
5This background section constitutes the Court’s findings of fact drawn from the administrative
record. Judgment on the administrative record, pursuant to RCFC 52.1, “is properly
understood as intending to provide for an expedited trial on the record” and requires the Court
“to make factual findings from the record evidence as if it were conducting a trial on the
record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1354, 1356 (Fed. Cir. 2005). Citations to the
administrative record (ECF No. 21) are denoted as “AR,” followed by the page number.
6These contracts allowed for a six-month extension “in the event of unforeseen delays (such as
a protest).” AR 10.
3
Following a series of RFP amendments, including a question-and-answer
document (“Q&As”), the Agency issued a revised, conformed Solicitation on December
16, 2020. AR 330 (RFP Amendment 0006); AR 332-431 (revised Solicitation).
The RFP provided for a one-year base period, and four single-year option
periods. AR 1, AR 337–339. Proposals were initially due November 23, 2020, but DOI
subsequently extended the closing date to December 23, 2020. AR 23, 330, 955, 1375–76.
Pursuant to the RFP, the Agency was required to “evaluate all acceptable offers
based on the [following] evaluation factors[:]”(1) Technical Capability; (2)
Organizational Safety; (3) Past Performance; and (4) Evaluated Price. AR 412 (RFP
§ D8.1 (“Evaluation Factors”)). As relevant here, the RFP provided that offerors “must
propose an aircraft that meets or exceeds the Minimum Aircraft Requirements
specification in Section A of this solicitation” and that an “offer will be rated
Unsatisfactory if the aircraft proposed fails to meet any of the Minimum Aircraft
Requirements specified in Section A of this solicitation.” AR 412 (RFP § D8.2
(“Technical Capability”)).
The RFP also provided that the government will place orders for services via
“task order request[s] for proposal[s]” — known as TORPs — which would be issued to
contract holders. AR 375 (RFP § C15.1.1). While awarded contracts would permit
discounted pricing, “[c]ontractors’ pricing for task orders shall not exceed the prices in
the IDIQ price schedule.” Id. On the other hand, the RFP cautioned that “[d]ue to the
nature of firefighting, urgent orders are likely” where “[p]ursuant to FAR 16.505(b)(2),
fair opportunity need not be provided . . . .” AR 375 (RFP § C15.1.2). “In such cases, the
ordering activity will select the contractor it deems to offer the best value to the
Government[,] . . . [but] [b]ecause urgent orders may be issued under the IDIQ without
the opportunity to submit a task order proposal with revised pricing, offerors are
encouraged to include their best pricing in their IDIQ price proposals.” Id.
Finally, the RFP provided for the onboarding of additional contractors after the
initial contract awards, as follows:
The Government reserves the right to announce a new
competition (Onboarding) for the purpose of adding
additional multiple award, indefinite delivery, indefinite
quantity (IDIQ) contract holders. Onboarding procedures
may be implemented at any time over the life of the contract
(five years from the date of initial award) by reopening the
competition and utilizing the same basis of award established
in the original solicitation 140D8020R0019. Bureau customers
4
will initiate the need for additional contract holders by
contacting the CO. The CO will then assess the need for
additional support or whether current contract holders can
satisfy the need. Should additional support be required, the
CO will publicize a notice by modifying the original
solicitation, and complete a new source selection. Contracts
awarded through these Onboarding Procedures will include
the same terms and conditions as those in the basic contract.
Neither the overall period of performance nor the ceiling of
the basic contract will be revised as a result of implementing
the Onboarding procedures.
AR 380 (§ C27).
B. The Question-and-Answer Amendment to the Solicitation
DOI provided offerors with an opportunity to submit questions to the Agency to
attempt to clarify any ambiguities in, or to raise other issues with, the RFP. AR 121.
On November 13, 2020, DOI published the resulting Q&As as an amendment to
the RFP, including the following pertinent exchanges:
Question 2) We are in the midst of adding two Fire Bosses to
the fleet. They will both be completed by year end. One very
well may be completed and have a Weight and Balance and
MEL done by the submission date for the Solicitation. We
own the aircraft, we own the floats, gates and avionics. We
may just not have all of it put together for a final Weight &
Balance by 11/23. In that case, how should we handle listing
the aircraft?
Answer 2) As per Section B32.1, referenced by D4.11.1.2,
provide a weight and balance for each proposed aircraft with the
aircraft in contract configuration. The proposal must include
at least one aircraft that meets the minimum requirements of this
solicitation. Section C17 is added to the Solicitation to define
procedures for adding aircraft after initial award(s). Also see
Exhibit 16 Add/Remove Aircraft/Equipment Request Form.
* * * *
5
Question 3) Section A1 states the Aircraft Configuration
required for listing in response to the Solicitation. For a
Contractor to offer an aircraft in response to this solicitation,
does the aircraft need to be in operational Fire Boss contract
configuration, including an acceptable Weight & Balance (in
accordance with Section B32) and Equipment List that would
allow the Aircraft Questionnaire to be filled out?
Answer 3) A proposal must include at least one aircraft that
meets the minimum requirements of Section A1, and all
related requirements and documentation as stated in the
solicitation, to include a current weight & balance report,
Exhibit E-2 and Exhibit E-3. Additional aircraft may be
offered after initial award as detailed in Question 2. See
Question 2 for adding aircraft after initial award(s), and see
Exhibit 16 Add/Remove Aircraft/Equipment Request Form.
* * * *
Question 26) Exhibit E-2: Can a vendor include an aircraft in
its offer that will not be delivered to that vendor in Fire Boss
configuration until after the solicitation closes? Would it be
acceptable for the vendor to base its empty weight and
payload calculations on an aircraft in wheel configuration
with estimates on what the Fire Boss will weigh after
installation of avionics, a fire gate, and Wipaire floats and
accessories (Accurate W&B; Equipment List; and
performance calculations would not be completed until after
aircraft delivery in Fire Boss configuration)?
Answer 26) See Questions 2 & 3.
AR 121–23, 127 (emphasis added).
C. Proposals, Evaluations, and Contract Awards
Four offerors submitted timely proposals: Aero Spray; Air Spray; Henry’s
Aerial; and Fletcher Flying. AR 1364. As part of their respective proposals, Aero Spray
proposed fifteen FireBoss aircraft, Air Spray proposed five, Henry’s Aerial proposed
four, and Fletcher Flying proposed two. AR 1365–71.
6
Two of Aero Spray’s proposed aircraft were “new aircraft and currently at the
factory[.]” AR 1365. Although the Source Selection Evaluation Board (“SSEB”) found
certain deficiencies with those aircraft, the SSEB assessed them as “relatively minor” in
terms of the company’s “ability to complete in a timely manner prior to contract
inspection/performance.” Id. The SSEB also noted that Aero Spray “provided
sufficient information within the proposal to ensure the aircraft will be delivered in
short time frame, and aircraft will meet contract specifications at time of inspection.” Id.
(noting with respect to one aircraft that “floats [are] not installed” and that another’s
“fire gate/tank [are] not currently installed”). All of Aero Spray’s proposed aircraft
were recommended for award. Id.
Both of Fletcher Flying’s proposed aircraft similarly had “no floats currently
installed.” AR 1369. Consistent with the SSEB’s determination regarding Aero Spray’s
two deficient aircraft, the SSEB concluded that Fletcher Flying’s “offered aircraft . . .
have been determined acceptable.” Id. Once again, the SSEB explained that “[a]lthough
floats are not currently installed, this was considered to be relatively minor regarding
the [company’s] ability to complete in a timely manner prior to contract
inspection/performance and addressed [in the] offeror’s proposal.” Id. (“Sufficient
information was provided by the offeror that the aircraft will meet or exceed the
standards, therefore deemed acceptable and recommend for award.”).
The four aircraft Henry’s Aerial proposed likewise were “not currently
configured on floats, and have equipment install and/or alterations left to be done.”
AR 1371. Just as the SSEB had determined for Aero Spray and Fletcher Flying, the SSEB
concluded that the issues with Henry’s Aerial proposed aircraft were “relatively minor
regarding the [company’s] ability to complete in a timely manner prior to contract
inspection/performance” and that “[t]here is sufficient information within the proposal
to ensure the aircraft will be delivered in a short time frame, and that all aircraft will
meet or exceed the standards.” Id. “Therefore the SSEB deemed these aircraft
acceptable and recommend these aircraft for award.” Id.
In sum, the SSEB’s recommendation was “to AWARD TO ALL OFFERORS.” AR
1373. The Agency’s final award decisions reflect the above SSEB findings. AR 1378
(Aero Spray evaluation summary, noting that “two of the aircraft require minor
equipment items to be installed prior to inspection, carding, and performance under
this contract” and that “[t]he offeror provided sufficient information in the proposal to
properly evaluate these two aircraft”); AR 1378 (Fletcher evaluation summary, noting
that “both aircraft require minor equipment items to be installed prior to inspection,
carding, and performance under this contract[,]” that “[s]ufficient information was
provided in the proposal to properly evaluate these two aircraft[,]” and that “[t]he
technical evaluators confirmed that installation of the floats and other minor equipment
7
items are typical in the industry and fully expect the offeror to complete the
configuration in time for performance”); AR 1379 (Henry’s Aerial evaluation summary,
making similar findings, and noting that “[t]he offeror provided sufficient information
in the proposal to properly evaluate all four aircraft” and that because “all four aircraft
met or exceeded the minimum requirements, [t]he SSEB determined all four aircraft as
Acceptable”).
With respect to pricing, the Agency determined that “the strong competition in
an acceptable range among the offers validates the pricing as reasonable.” AR 1384.
The Agency recognized that Fletcher Flying and Henry’s Aerial both “indicated [an]
intention to offer [ * * * ] with [ * * * ] since they’re coming into the amphibious scooping
specialty of the SEAT [ * * * ], hoping to earn ample volumes of service opportunities
and build strong past performance for a prospective and beneficial future.” Id.7
In sum, the Agency concluded:
Proposals from Aero Spray — Dauntless, Air Spray, Fletcher
Flying, and Henry’s Aerial consisting of a combined total of
26 offered aircraft met or exceeded the minimum
requirements stated in the solicitation for all three non-priced
factors. Eight of the 26 aircraft need to be final-configured for
service prior to inspection, carding, and performance on
resultant contracts. The SSEB has high confidence all offered
aircraft will be complete and configured to contract
specification in time for contract performance. Pricing for all
offerors is determined fair and reasonable. . . .
AR 1385.
D. Procedural History
On March 18, 2021, Aero Spray filed its initial complaint against the United
States in this Court, ECF No. 1, and amended its complaint on April 2, 2021. ECF No. 20
(“Am. Compl.”). In the amended complaint, Aero Spray alleges that the Agency
awarded IDIQ contracts to Henry’s Aerial and Fletcher Flying despite the fact that
neither proposed FireBoss aircrafts compliant with the RFP’s putative “in contract
configuration” requirement at the time of proposal submission. Am. Compl. ¶¶ 10–13,
36–37, 50. Aero Spray contends that while it “spent significant funds” to comply with
7 SEAT stands for “Single Engine Air Tanker.” AR 334 (Contract Acronyms).
8
this alleged requirement, Henry’s Aerial and Fletcher Flying were able to “decrease[]
the total cost of their offers” by ignoring it. Id. ¶¶ 62, 63.
On April 9, 2021, the government filed the administrative record (“AR”) in this
matter. ECF No. 21. On May 11, 2021, Aero Spray filed its motion for judgment on the
administrative record. ECF No. 34 (“Pl. MJAR”). On that same day, the government
and Defendant-Intervenors, Henry’s Aerial and Fletcher Flying, each filed their
respective motion to dismiss or, in the alternative, a motion for judgment on the
administrative record. ECF Nos. 31 (“Henry’s MJAR”), 32 (“Fletcher MJAR”), 33 (“Def.
MJAR”). The parties filed timely response briefs. ECF Nos. 37 (“Henry’s Resp.”), 38
(“Def. Resp.”), 39 (“Fletcher Resp.”), 40 (“Pl. Resp.”). On June 17, 2021, the Court held
oral argument. ECF Nos. 36, 47 (“Tr.”).
Following oral argument, the Court directed the government to produce an
affidavit from the cognizant contracting officer regarding the status of Defendant-
Intervenors’ proposed aircrafts and provided the parties an opportunity to file motions
to supplement the administrative record with relevant information regarding their
proposed aircrafts. ECF No. 42. The parties filed their respective supplemental briefs.
ECF Nos. 44 (“Henry’s Supp. Br.”), 45 (“Pl. Supp. Br.”), 49 (”Def. Supp. Br.”). Both
Henry’s Aerial and Aero Spray moved to supplement the record; the government
opposes Aero Spray’s motion. Def. Supp. Br. at 4.
II. AERO SPRAY LACKS STANDING TO PROTEST THE CONTRACT
AWARDS MADE TO DEFENDANT-INTERVENORS
A threshold issue in this case is whether Aero Spray, as an awardee of one of the
multiple award IDIQ contracts, has standing to challenge DOI’s additional contract
awards to Henry’s Aerial and Fletcher Flying. Myers Investigative & Sec. Servs., Inc. v.
United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (“[S]tanding is a threshold
jurisdictional issue.”). “The party invoking federal jurisdiction bears the burden of
establishing standing.” CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed.
Cir. 2018) (citing Myers, 275 F.3d at 1369). Where a plaintiff lacks standing, its case must
be dismissed pursuant to RCFC 12(b)(1). Media Techs. Licensing, LLC v. Upper Deck Co.,
334 F.3d 1366, 1370 (Fed. Cir. 2003) (“Because standing is jurisdictional, lack of standing
precludes a ruling on the merits.”). The government and Defendant-Intervenors argue
that Aero Spray, having received a contract award, lacks standing to challenge the
separate awards to its competitors. See Def. MJAR at 19–28; Henry’s MJAR at 18–21;
Fletcher MJAR at 24–31. The Court agrees — at least given the facts of this case — but
the underlying issue is far from simple.
9
A. General Article III Standing Principles
“We begin with the most basic doctrinal principles: Article III, § 2, of the
Constitution restricts the federal ‘judicial Power’ to the resolution of ‘Cases’ and
‘Controversies.’ That case-or-controversy requirement is satisfied only where a plaintiff
has standing.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008); see
Dep’t of Com. v. New York, -- U.S. --, 139 S. Ct. 2551, 2565 (2019) (“For a legal dispute to
qualify as a genuine case or controversy, at least one plaintiff must have standing to
sue.”); WiAV Sols. LLC v. Motorola, Inc., 631 F.3d 1257, 1263–64 (Fed. Cir. 2010) (“Article
III, § 2 of the Constitution limits the jurisdiction of federal courts to ‘Cases’ or
‘Controversies.’ The doctrine of constitutional standing serves to identify which
disputes fall within these broad categories and therefore may be resolved by a federal
court.”).8
The United States Supreme Court has “established that the ‘irreducible
constitutional minimum’ of standing consists of three elements[,]” including that the
plaintiff allege facts demonstrating that it: “(1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). As noted above, a
plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing
these elements. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). Injury in fact is a
constitutional requirement, and “[i]t is settled that Congress cannot erase Article III’s
standing requirements by statutorily granting the right to sue to a plaintiff who would
not otherwise have standing.” Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997), quoted in
Spokeo, 578 U.S. at 339. To establish injury in fact, a plaintiff must show that it suffered
“an invasion of a legally protected interest” that is “concrete and particularized” and
“‘actual or imminent, not conjectural or hypothetical.’” Lujan, 504 U.S. at 560 (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).9 Thus, “Article III standing requires a
8“Our cases involving non-Article III tribunals have held that these courts exercise the judicial
power of the United States.” Freytag v. Comm’r, 501 U.S. 868, 889 (1991). “The Court of Federal
Claims, though an Article I court, 28 U.S.C. § 171 (2000), applies the same standing
requirements enforced by other federal courts created under Article III.” Anderson v. United
States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003); see also 28 U.S.C. § 2519 (empowering the Court of
Federal Claims to enter final judgments in any “claim, suit, or demand against the United States
arising out of the matters involved in the case or controversy”).
9“The Supreme Court has not defined the term ‘legally protected interest’ as it pertains to
Article III standing, nor has it clarified whether the term does any independent work in the
standing analysis.” Cottrell v. Alcon Lab’ys., 874 F.3d 154, 163 (3d Cir. 2017); see also In re Special
Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006) (“The term legally protected interest has
generated some confusion because the Court has made clear that a plaintiff can have standing
10
concrete injury even in the context of a statutory violation. For that reason, [a plaintiff]
could not, for example, allege a bare procedural violation, divorced from any concrete
harm, and satisfy the injury-in-fact requirement of Article III.” Spokeo, 578 U.S. at 341.10
Congress may enact statutes that provide would-be plaintiffs with standing
subject only to the constraints of Article III itself; alternatively, Congress may impose
heightened standing requirements. See, e.g., Thompson v. N. Am. Stainless, LP, 562 U.S.
170, 177 (2011) (concluding that statutory term granting standing to a “[‘person]
aggrieved’ must be construed more narrowly than the outer boundaries of Article III”
while rejecting the argument “[a]t the other extreme . . . that ‘person aggrieved’ . . . is a
term of art that refers only to the employee who engaged in the protected activity”).11
B. Administrative Procedure Act (“APA”) Standing Principles
The APA12 provides standing almost to the limits of Article III, as follows: “[a]
person . . . adversely affected or aggrieved by agency action within the meaning of a
despite losing on the merits — that is, even though the interest would not be protected by the
law in that case.”). In that regard, “[t]he Wright & Miller treatise criticizes the phrase ‘legally
protected interest’ on the ground that it seems to beg the question of the legal validity of the
claim and therefore ‘provide[s] ample opportunity for mischief’ given ‘the common tendency to
use standing concepts to address the question whether the plaintiff has stated a claim.’”
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 n.3 (10th Cir. 2006) (en banc) (quoting
13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.4 (2d ed.
Supp. 2005)); see also Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024,
1030 (D.C. Cir. 2003) (noting that, on a motion to dismiss, “a plaintiff’s non-frivolous contention
regarding the meaning of a statute must be taken as correct for purposes of standing,” lest the
court “effectively be deciding the merits under the guise of determining the plaintiff's standing”
(emphasis added)); Claybrook v. Slater, 111 F.3d 904, 907 (D.C. Cir. 1997) (concluding that only “if
the plaintiff's claim has no foundation in law” does the plaintiff have “no legally protected
interest and thus no standing to sue”). In any event, “the Supreme Court has repeatedly
recognized that financial or economic interests are ‘legally protected interests’ for the purposes
of the standing doctrine.” Cottrell, 874 F.3d at 164.
10See also Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation of a procedural
right without some concrete interest that is affected by the deprivation . . . is insufficient to
create Article III standing.”).
11See also WiAV Sols., 631 F.3d at 1264–65 (explaining that “[o]ften a statute creates the necessary
legally protected interest” and holding that “[b]ecause the Patent Act creates the legally
protected interests in dispute, the right to assert infringement of those interests comes from the
Act itself”); Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979) (noting that while
“Congress may, by legislation, expand standing to the full extent permitted by Art. III[,] . . . [i]n
no event, however, may Congress abrogate the Art. III minima”).
12 Pub. L. No. 79-404, 60 Stat. 237 (codified as amended in scattered sections of 5 U.S.C.).
11
relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The APA
standing test is not particularly stringent. See, e.g., Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). While the Supreme Court “has
long held that a person suing under the APA must satisfy not only Article III’s standing
requirements,” but also must assert an interest “‘arguably within the zone of interests to
be protected or regulated by the statute’” or regulation allegedly violated, that latter
“prudential standing test . . . ‘is not meant to be especially demanding.’” Id. at 224–25
(first quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970);
and then quoting Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399 (1987)).13
Indeed, the Supreme Court has instructed courts to apply the APA’s standing
test “in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make
agency action presumptively reviewable.’” Match-E-Be-Nash-She-Wish, 567 U.S. at 225(quoting Clarke, 479 U.S. at 399, for both that proposition and for the idea that the Court
does “not require any ‘indication of congressional purpose to benefit the would-be
plaintiff’”).14 Thus, the APA’s standing “test forecloses suit only when a plaintiff’s
‘interests are so marginally related to or inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed that Congress intended to permit the
suit.’” Match-E-Be-Nash-She-Wish, 567 U.S. at 225 (quoting Clarke, 479 U.S. at 399).15
In this case, Aero Spray’s alleged injury in fact is the economic harm from
increased future competition for individual task orders resulting from the allegedly
improper IDIQ contract awards to Defendant-Intervenors. Am. Compl. ¶¶ 12, 14–15.
Such future injuries “may suffice [for standing purposes] if the threatened injury is
‘certainly impending,’ or there is a ‘“substantial risk” that the harm will occur.’” Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper v. Amnesty Int’l,
USA, 568 U.S. 398, 414 n.5 (2013)), quoted in Dep’t of Com. v. New York, -- U.S. --, 139 S. Ct.
2551, 2565 (2019); see also TransUnion LLC v. Ramirez, -- U.S. --, 141 S. Ct. 2190, 2210
(2021) (“As this Court has recognized, a person exposed to a risk of future harm may
13Match-E-Be-Nash-She-Wish, 567 U.S. at 225 (“[W]e have always conspicuously included the
word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff.”); cf.
Bennett v. Spear, 520 U.S. 154, 163 (1997) (“We have made clear, however, that the breadth of the
zone of interests varies according to the provisions of law at issue . . . .”).
14See also Dep’t of Com. v. New York, -- U.S. --, 139 S. Ct. 2551, 2567 (2019) (“The [APA] embodies
a ‘basic presumption of judicial review’” (quoting Abbott Lab’ys. v. Gardner, 387 U.S. 136, 140
(1967))).
15Importantly, and as discussed infra, long before Congress vested this Court with exclusive
jurisdiction over the actions defined in 28 U.S.C. § 1491(b), the APA provided standing for
plaintiffs to challenge an agency’s procurement actions. See Scanwell Lab’ys., Inc. v. Shaffer, 424
F.2d 859, 861–73 (D.C. Cir. 1970).
12
pursue forward-looking, injunctive relief to prevent the harm from occurring, at least so
long as the risk of harm is sufficiently imminent and substantial.” (citing Clapper, 568
U.S. at 414 n.5 (2013))).
The United States Court of Appeals for the District of Columbia Circuit has held
that alleged harm from increased competition for government research grants — a
factual scenario analogous to a procurement competition — can provide both Article III
and APA standing. Sherley v. Sebelius, 610 F.3d 69, 72, 74–75 (D.C. Cir. 2010) (“We see
no reason any one competing for a governmental benefit should not be able to assert
competitor standing when the Government takes a step that benefits his rival and
therefore injures him economically.”).16 Courts have applied similar reasoning in other
contexts. See, e.g., Washington All. of Tech. Workers v. Dep’t of Homeland Sec., 892 F.3d 332,
341 (D.C. Cir. 2018) (plaintiff had standing where “injury claimed is exposure to
increased competition in the STEM labor market”); cf. Cooper v. Tex Alcoholic Beverage
Comm’n, 820 F.3d 730, 737–38 (5th Cir. 2016) (“numerous courts have upheld the
standing of competitors to challenge official actions that change the amount of
competition in an economic actor’s market”).
The Federal Circuit has followed the D.C. Circuit’s “competitor standing”
jurisprudence in other contexts, explaining that “[a]lthough the doctrine of ‘competitor
standing’ is not yet well-developed in our Circuit, we note that the D.C. Circuit
repeatedly has applied the doctrine to hold that ‘parties suffer constitutional injury in
fact when agencies lift regulatory restrictions on their competitors or otherwise allow
increased competition.’” Canadian Lumber Trade All. v. United States, 517 F.3d 1319, 1333
(Fed. Cir. 2008) (quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir.
1998), citing other D.C. Circuit decisions, and holding that a plaintiff had competitor
standing).17
C. “Interested Party” Standing in Actions Pursuant to 28 U.S.C. § 1491(b)
Aero Spray’s action is brought pursuant to 28 U.S.C. § 1491(b). If the APA
standing inquiry governed § 1491(b) actions, this Court would have little trouble
finding that Aero Spray has standing to challenge the contract awards to Defendant-
16See also Sherley, 610 F.3d at 74 (“Because the Guidelines have intensified the competition for a
share in a fixed amount of money, the plaintiffs will have to invest more time and resources to
craft a successful grant application. That is an actual, here-and-now injury.”).
17On the other hand, answering the question of whether a particular statutory provision
actually “‘protect[s] [a] competitive interest’ . . . ‘goes to the merits’ of a plaintiff's claim, not to
his Article III standing.” Sherley, 610 F.3d at 72 (quoting Ass’n of Data Processing Serv. Orgs., Inc.,
397 U.S. at 153 (1970)).
13
Intervenors. Whether Aero Spray has standing in this case is complicated, however, by
the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub.
L. No. 104-320, 110 Stat. 3870 (“ADRA”), which defines not only this Court’s jurisdiction
over what actions may be brought against the government, but also who has standing to
pursue them.
The Tucker Act’s plain language provides that an “interested party” may file an
“action” in this Court “objecting [1] to a solicitation by a Federal agency for bids or
proposals for a proposed contract or [2] to a proposed award or [3] the award of a
contract or [4] any alleged violation of statute or regulation in connection with a
procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (emphasis and
alterations added); see Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 84 & n.11
(2020).18
Were this Court unconstrained by Federal Circuit precedent, the first step in the
standing analysis would be to determine whether the statutory term “interested party”
imports the fairly permissive APA standing requirements or defines a more limited
plaintiff class. The interpretive problem, in that regard, is that 28 U.S.C. § 1491(b)
“provides no definition of the term ‘interested party’” and thus “[i]t is unclear whether
section 1491(b)(1) adopts the liberal APA standing requirement set forth in section 702
of the APA or whether it adopts the more restrictive standard set forth in 31 U.S.C.
§ 3551(2)[,]” which applies in bid protests before the Government Accountability Office
(“GAO”). Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1333–34 (Fed. Cir. 2001).
We do not need to speculate about the answer; for better or worse, binding
Federal Circuit precedent has resolved the issue. In American Federation of Government
Employees v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (“AFGE”), the Federal
Circuit first interpreted the term “interested party” to have the same definition as
“interested party” in the Competition in Contracting Act of 1984 (“CICA”), Pub. L. No.
98-369, div. B, tit. VII, § 2701, 98 Stat. 494, 1175 (1984), which governs the bid protest
jurisdiction of the GAO, see 31 U.S.C. §§ 3551–56. CICA, in turn, defines the term
“interested party” as “[1] an actual or prospective bidder or offeror whose [2] direct
economic interest [3] would be affected by [4] the award of the contract or by failure to
18Section 1491(b) actions are typically referred to as “bid protests.” Tolliver, 151 Fed. Cl. at 95-99
(“[A]lthough ‘ADRA covers primarily pre- and post-award bid protests,’ the Federal Circuit in
RAMCOR explicitly reversed this Court’s determination ‘that a [plaintiff] could only invoke
§ 1491(b)(1) jurisdiction by including in its action an attack on the merits of the underlying
contract award’ or the solicitation.” (quoting RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d
1286, 1289 (Fed. Cir. 1999) (emphasis added))).
14
award the contract.” 31 U.S.C. § 3551(2) (emphasis added). In adopting that definition
for the purposes of § 1491(b), the Federal Circuit was “not convinced that Congress
. . . intended to confer standing on anyone who might have standing under the APA.”
AFGE, 258 F.3d at 1302 (concluding that while 31 U.S.C. § 3551(2) “by its own terms,
applies only to [GAO protests] . . . , the fact that Congress used the same term in
§ 1491(b) as it did in the CICA suggests that Congress intended the same standing
requirements that apply to protests brought under the CICA to apply to actions brought
under § 1491(b)(1)”).19
To properly understand the rationale and ramifications of the Federal Circuit’s
decision in AFGE, some historical context is necessary. Prior to ADRA, the district
courts possessed APA jurisdiction over challenges to the procurement process; such
jurisdiction is referred to as “Scanwell jurisdiction” after the case recognizing it. See
Scanwell Lab’ys., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970). The Federal Circuit in
AFGE acknowledged that part of the difficulty in defining the term “interested party”
arises from the fact that while ADRA’s legislative history reflects some intent to transfer
the jurisdiction over Scanwell claims to the Court of Federal Claims, the legislative
history does not provide clear guidance as to Congress’s understanding of the breadth
of the Scanwell doctrine. 258 F.3d at 1301. In particular, the legislative history does not
demonstrate: (1) whether Congress intended to limit ADRA’s coverage to claims
“brought by disappointed bidders” challenging the solicitation or award of a federal
contract — because such claims constituted “[t]he vast majority of cases brought
pursuant to Scanwell”; or (2) whether Congress “intended to give the Court of Federal
Claims jurisdiction over any contract dispute that could be brought under the APA”—
because “Scanwell itself [wa]s based on the APA.” Id. The Federal Circuit went with the
former, and accordingly “interpret[ed] the references in [ADRA’s] legislative history to
the ‘Scanwell jurisdiction’ of the district courts as references to [their] jurisdiction over
bid protest cases brought under the APA by disappointed bidders, like the plaintiff in
Scanwell.” Id. at 1301–02 (emphasis added).
In other words, notwithstanding that Scanwell jurisdiction, in general, was
nothing more than a particular instantiation of APA jurisdiction, providing a wide
variety of plaintiffs with standing to file suit, 20 the Federal Circuit held that 28 U.S.C.
19The Court, accordingly, agrees with the government that any “reliance on cases that analyze
standing under the APA sheds little light on the question before this Court because the Federal
Circuit has already explicitly considered — and rejected — the notion that the Tucker Act and
the APA have the same standing requirements.” Def. Resp. at 4.
20See Validata Chem. Servs. v. Dep’t of Energy, 169 F. Supp. 3d 69, 85 (D.D.C. 2016) (citing Bayou
State Sec. Servs. v. Dravo Util., Inc., 674 F.2d 325, 326–28 (5th Cir. 1982), Am. Dist. Tel. v. Dep’t of
Energy, 555 F. Supp. 1244, 1245–48 (D.D.C. 1983), Lombard Corp. v. Resor, 321 F. Supp. 687, 688–91
15
§ 1491(b) permitted protest-type claims only by a more limited class of injured parties
(i.e., “disappointed bidders”). In Banknote Corp. of America v. United States, for example,
the Federal Circuit explained that while “[u]nder the more liberal APA standard,
parties other than actual or prospective bidders might be able to bring suit[,]” the
appellate court in AFGE “concluded that Congress intended standing under the ADRA
to be limited to disappointed bidders.” 365 F.3d 1345, 1351 (Fed. Cir. 2004) (emphasis
added) (discussing AFGE, 258 F.3d at 1301-02). Accordingly, “[a] party seeking to
establish jurisdiction under § 1491(b)(1) must show that it meets § 1491(b)(1)’s standing
requirements, which are ‘more stringent’ than the standing requirements imposed by
Article III of the Constitution.” Diaz v. United States, 853 F.3d 1355, 1358 (Fed. Cir. 2017)
(quoting Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009)).
CICA’s definition of “interested party” naturally begs yet further questions,
particularly in the context of 28 U.S.C. § 1491(b). What are the parameters of an “actual
or prospective bidder”? How does the definition of “interested party” apply in a pre-
award challenge to a solicitation, as compared to in a post-award challenge to the
award of a contract? Of particular import in this case, does “interested party” include a
contract awardee that nevertheless objects to some other aspect of the government’s
procurement process? Does the definition need to be adjusted for an action challenging
“any alleged violation of statute or regulation in connection with a procurement or a
proposed procurement,” which need not involve an underlying attack on a solicitation
or contract award?21 What constitutes a “direct economic interest”? Finally, what effect
did ADRA’s sunset provision22 have on the district courts’ Scanwell jurisdiction (i.e.,
(D.D.C. 1970), and noting, for example, that “district courts did entertain challenges by
subcontractors to subcontract procurements under the Scanwell doctrine prior to enactment of
ADRA”).
21See supra, note 18; see also Validata, 169 F. Supp. 3d at 77 (citing Matthew H. Solomson &
Jeffrey L. Handwerker, Subcontractor Challenges to Federal Agency Procurement Actions, 06-3
Briefing Papers 1, 4 (Feb. 2006) (arguing that “AFGE’s applicability arguably may be limited to
the first two prongs of the Tucker Act . . . particularly in light of AFGE’s failure to discuss a
RAMCOR-type suit”)).
22At the time ADRA was enacted in 1996, that statute granted the federal district courts and the
Court of Federal Claims concurrent jurisdiction over the procurement-related actions described
in 28 U.S.C. § 1491(b). That changed, however, in 2001, when ADRA’s sunset provision
eliminated the jurisdiction of the federal district courts and vested the Court of Federal Claims
with exclusive jurisdiction over such cases. See Pub. L. No. 104-320, § 12(d), 110 Stat. 3870, 3875
(1996) (codified at 28 U.S.C. § 1491 note).
16
may non-interested parties with APA standing still maintain procurement-related
actions in a district court)?23
23 These questions, and perhaps others, fairly call into question whether the Federal Circuit’s
definition of “interested party” in the Tucker Act, as modified by ADRA, should be revisited by
the Federal Circuit en banc. In that regard, the United States District Court for the District of
Columbia has criticized the Federal Circuit’s adoption of CICA’s definition of “interested party”
because “[t]here is no evidence that Congress intended to leave jurisdiction over these Scanwell
claims in the federal district courts, while vesting the Court of Federal Claims with exclusive
jurisdiction over a narrower subset of Scanwell claims.” Validata, 169 F. Supp. 3d at 85. The
district court also noted — correctly, in the undersigned’s view — that “any arguable parallel
between CICA and ADRA breaks down . . . where the plaintiff’s cause of action falls under the
[last] prong of ADRA’s ‘objecting to’ test, which does not require that the plaintiff object to a
federal contract solicitation or award.” Id. at 84; see also id. at 81–82 (explaining that protest
categories recognized in CICA do not “parallel” ADRA’s prongs and noting that “[i]f this
language were read to apply only to disappointed bidders, it is difficult to imagine what work
the ‘in connection with’ clause would perform beyond the first two prongs of ADRA’s
‘objecting to’ test, which already permit challenges by those ‘objecting to’ federal contract
solicitations or awards.”). Only if ADRA “is construed to encompass the full range of APA
claims previously pursued under the Scanwell doctrine — including claims by a plaintiff who is
not a disappointed bidder within the meaning of CICA but who possesses standing under the
broader standing rule of § 702 of the APA — the ‘in connection with’ clause has independent
import.” Id. at 82. Finally, the district court pointed out that the Federal Circuit’s adoption of
CICA’s “interested party” definition undermines the congressional purpose in creating an
exclusive, consolidated forum for procurement-related disputes:
Nor is the Court convinced that the Federal Circuit was correct to
adopt the narrower CICA standard . . . . The relevant question is
not whether Validata can bring suit, but where it must do so. ADRA
is both jurisdiction-conferring and, by implication, jurisdiction-
denying. Thus, by reading the provision narrowly, the Federal
Circuit limited the jurisdiction of the Court of Federal Claims but
arguably expanded the jurisdiction of the federal district courts
across the country. This is because, as discussed above, Scanwell
recognized that the APA confers standing on any aggrieved person
to challenge an unlawful or arbitrary agency action, including in
procurement cases. Under one view of ADRA, adopted here,
Congress transferred jurisdiction over all APA procurement cases
to the Court of Federal Claims, while under the other view,
arguably adopted in AFGE, Congress transferred jurisdiction only
over claims brought by disappointed bidders on federal contracts.
Yet, either way, ADRA cannot reasonably be construed to have
wholly abolished APA procurement claims that might otherwise
have been brought under Scanwell. The difference between the two
constructions is simply whether jurisdiction over some claims
17
Following AFGE, the Federal Circuit continued to refine its bid protest
jurisprudence, definitively resolving some of the foregoing questions. For example, to
satisfy the “direct economic interest” component of the “interested party” definition,
the Federal Circuit held that a plaintiff’s allegations must demonstrate a particular type
of prejudice: a plaintiff “must establish that it had a substantial chance of securing the
award in order to establish standing[.]” Myers Investigative & Sec. Servs., 275 F.3d at1369–70 (emphasis added) (summarizing earlier decisions); see also Info. Tech. &
Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (“As we said in
Myers, ‘prejudice (or injury) is a necessary element of standing.’” (quoting Myers, 275
F.3d at 1370)); Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006)
(concluding that to demonstrate “the requisite direct economic interest” a plaintiff “is
required to establish that it had a ‘substantial chance’ of receiving the contract”);
COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1383 (Fed. Cir. 2012) (“The [standing]
question whether a protester ‘ha[s] a substantial chance of securing the award,’ Myers,
275 F.3d at 1370, turns on whether the protester would have had a substantial chance if
not for the alleged errors.”); cf. Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir.
1996) (providing that the “substantial chance” standard for “competitive prejudice” —
on the merits — requires the protesting party to “establish not only some significant
error in the procurement process, but also that there was a substantial chance it would
have received the contract but for that error”). This is the exclusive standard applied in
post-award protests and this Court is not aware of, nor do the parties provide an
example of, the Federal Circuit’s having adopted another formulation in that context.
The Federal Circuit, however, modified that post-award standing test for pre-
award cases. In the typical pre-award case (e.g., challenges to a request for information
(“RFI”)24 or to a solicitation’s legality), applying the “substantial chance” test makes
little or even no sense because an agency is in the early stages of the procurement
process and potential offerors have not even submitted proposals yet. In Weeks Marine,
remains in the district courts or whether all such claims must now
be brought in the Court of Federal Claims.
Id. at 84 (internal citations omitted); see also SEKRI, Inc. v. United States, 152 Fed. Cl. 742, 750
(2021) (suggesting that “[d]espite not being an actual or prospective bidder, SEKRI may have
legal resource beyond this court’s jurisdiction” and citing Albuquerque v. U.S. Dep’t of Interior,
379 F.3d 901, 910–11 (10th Cir. 2004), which held that the district courts retain jurisdiction “to
hear cases challenging the government’s contract procurement process so long as the case is
brought by someone other than the actual or potential bidder”).
24See, e.g., Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1346 (Fed. Cir. 2008) (holding that
the government’s use of “an RFI to solicit information from outside vendors . . . to determine
the scope of services required by the government” constitutes a pre-procurement decision
subject to protest because 28 U.S.C. § 1491(b) “does not require an actual procurement”).
18
Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009), for example, the government
historically had awarded certain contracts using competitive sealed bidding procedures
but then changed its procurement method to a negotiated IDIQ procurement for the
new contracts. Id. at 1355–56. A prospective offeror filed an action in this Court,
challenging the agency’s use of the new approach. Id. On appeal, the Federal Circuit
addressed the plaintiff’s standing:
We have not had occasion to discuss what is required to prove
an economic interest, and thus prejudice, in a case such as this,
where a prospective bidder/offeror is challenging a
solicitation in the pre-award context. In such a case, it is
difficult for a prospective bidder/offeror to make the
showing of prejudice that we have required in post-award bid
protest cases. See, e.g., Statistica, 102 F.3d at 1582 (holding that
a contractor lacked standing because it failed to show a
“substantial chance it would have received the contract
award but for” agency error). The reason of course is that, in
a case such as this, there have been neither bids/offers, nor a
contract award. Hence, there is no factual foundation for a
“but for” prejudice analysis. However, Article III
considerations require a party such as Weeks to make a
showing of some prejudice.
Weeks Marine, 575 F.3d at 1361 (some citations omitted). In attempting to “strike[] the
appropriate balance between the language of § 1491(b)(1) . . . and Article III
standing[,]” the Federal Circuit concluded that it is sufficient for a pre-award protestor
merely to allege a “non-trivial competitive injury which can be addressed by judicial
relief.” Id. at 1362. This language is best understood as simply carving out a narrow
exception to the general “substantial chance” standard applicable in post-award cases,
rather than as creating a new standard. That is because the primary point of Weeks
Marine was to define more precisely the proper standing inquiry in pre-award cases,
and, in particular, to avoid any tension with the Blue & Gold waiver rule.25
25In Blue & Gold Fleet, L.P. v. United States, the Federal Circuit held that a plaintiff waives a
solicitation challenge if the plaintiff could have raised an objection prior to the due date for
proposals but only files a protest after the contract award. 492 F.3d 1308, 1313 (Fed. Cir. 2007).
Considering that waiver rule, the Federal Circuit in Weeks Marine recognized that it “would be
anomalous” were the court “to hold that Weeks cannot now challenge the . . . solicitation in the
Court of Federal Claims” because “we effectively would be saying that this court has set up a
judicial scheme whereby a party runs afoul of the waiver rule if it waits to challenge a
solicitation (as Blue & Gold did), but is properly dismissed on standing grounds if it raises the
19
We cannot lose sight of what the Federal Circuit was trying to “balance.” Weeks
Marine, 575 F.3d at 1362. The issue was that, on the one hand, the Federal Circuit
already had concluded that CICA’s “interested party” definition imposed a
substantially higher burden than Article III to demonstrate prejudice for the purposes of
satisfying the “direct economic interest” requirement. Because a “but for” test is
unworkable in a pre-award suit, the Federal Circuit nudged the test closer to Article III.
But, there is no indication in that decision or any other Federal Circuit decision that
allegations demonstrating a cognizable injury in fact for purposes of Article III should
be permitted to overwhelm, or somehow substitute for, the requirement for a proper
plaintiff to be an “actual or prospective bidder.” In other words, the type of cognizable
economic prejudice remained that which belongs in the category of “disappointed
bidder” pursuant to AFGE; that is, a party whose stake in winning the procurement has
been negatively impacted.
Even after Weeks Marine, the “substantial chance” test remains the default
standard. Indeed, the Federal Circuit repeatedly has held that even in the pre-award
context, if there is a factual basis for conducting a “substantial chance” analysis, a
protester cannot merely allege a “non-trivial competitive injury.” In Orion Technology,
Inc. v. United States, 704 F.3d 1344 (Fed. Cir. 2013), for example, the Federal Circuit
applied the “substantial chance” test where the plaintiff submitted a late proposal and
omitted material information necessary for the agency’s cost realism analysis. Id. at
1348. In rejecting the plaintiff’s arguments that it was only required to show a “non-
trivial competitive injury” given the pre-award context, the Federal Circuit explained
that “[i]n Weeks Marine, we set out an exception to the general standing test in the case
of pre-bid, pre-award protests because at that stage it is difficult, if not impossible, to
establish a substantial chance of winning the contract prior to the submission of any
bids” but that “[g]iven the circumstances, there is an adequate factual predicate to
ascertain under the traditional ‘substantial chance’ standard whether [the plaintiff] was
prejudiced by the [agency’s] decision to exclude its initial proposal.” Id. at 1348–49
(emphasis added).
Similarly, Oracle America, Inc. v. United States, 975 F.3d 1279 (Fed. Cir. 2020),
involved a pre-award protest, and the Federal Circuit rejected the plaintiff’s argument
that in all such protests a plaintiff need only allege facts showing a non-trivial
challenge pre-award (as Weeks has done).” 575 F.3d at 1363. Accordingly, Weeks Marine held
that a “prospective bidder or offeror must establish ‘a non-trivial competitive injury which can
be redressed by judicial relief’ to meet the standing requirement of § 1491(b)(1).” Id. (adopting
and quoting the prejudice standard formulated in WinStar Commc’ns., Inc. v. United States, 41
Fed. Cl. 748, 763 (1998)).
20
competitive injury to establish standing. In rejecting this argument, the Federal Circuit
applied Orion Technology, explaining:
In some pre-award cases, we have used the ‘non-trivial
competitive injury’ test “because there is an inadequate
factual foundation for performing a ‘substantial chance’ test.”
Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir.
2013). In this case, however, there was an adequate factual
predicate to apply the “substantial chance” test.
Oracle, 975 F.3d at 1291 n.3; see also Savantage Fin. Servs., Inc. v. United States, 150 Fed. Cl.
307, 328 (2020) (holding, in pre-award protest, that “this case presents an appropriate
factual basis to support the application of the Oracle test for showing prejudice because
the record is sufficiently developed to . . . demonstrate that [the plaintiff] would [not]
have a ‘substantial chance’ of being awarded the . . . contract”).
As discussed in more detail below, the Court will not apply the “non-trivial
competitive injury” test outside of the limited factual circumstances where the Federal
Circuit has found that it applies.
D. Aero Spray Is Not an “Interested Party” with Respect to the Challenged
Contract Awards
Aero Spray urges this Court to apply the relaxed, pre-award Weeks Marine test
here and, accordingly, hold that Aero Spray has standing to have its claims decided on
the merits. Pl. Resp. at 14–16. Defendant and Defendant-Intervenors, in contrast, argue
that, as this is a post-award protest, this Court must apply the traditional post-award
“substantial chance” standing test. Def. MJAR at 36–37; Fletcher MJAR at 27–31;
Henry’s MJAR at 18–19. Aero Spray’s position is not devoid of merit, particularly given
that it relies primarily on a well-reasoned decision of one of this Court’s distinguished
jurists: National Air Cargo Group, Inc. v. United States, 126 Fed. Cl. 281 (2016) (Lettow, J.)
— a decision that gives the Court considerable pause. Nevertheless, after further
consideration, the Court concludes that no matter how it slices the standing inquiry
here, Aero Spray is not an interested party, under either Federal Circuit test, with
respect to the contract awards made to Defendant-Intervenors.
Before diving into the rationale for that conclusion, the Court must properly
frame the standing question. The “interested party” question focuses on who is a proper
plaintiff to maintain such an action under § 1491(b). While the answer to that question
may vary based upon the precise nature of the action, the Federal Circuit has never
broadened the definition of “interested party” to include a plaintiff in Aero Spray’s
21
position. In this case, the Court holds that Aero Spray does not allege facts
demonstrating: (1) that it is “an actual or prospective bidder or offeror”; or (2) the type
of cognizable prejudice in the procurement process sufficient to constitute an “affected”
“direct economic interest.” The parties’ debate regarding the Weeks Marine test is
relevant only to the required prejudice — the “direct economic interest” prong of the
“interested party” definition — which, in any case, Aero Spray cannot meet in the
factual context of this procurement.
To explain the Court’s reasoning, we return, once again, to CICA’s definition of
“interested party.” CICA defines that term as follows:
(2) The term “interested party”—
(A) with respect to a contract or a solicitation or other request
for offers described in paragraph (1), means an actual or
prospective bidder or offeror whose direct economic interest
would be affected by the award of the contract or by failure
to award the contract[.]
31 U.S.C. § 3551(2) (emphasis added). Paragraph (1) of that same statutory provision —
referenced in the definition of “interested party” — in turn defines the term “protest”
as:
a written objection by an interested party to any of the
following:
(A) A solicitation or other request by a Federal agency for
offers for a contract for the procurement of property or
services.
(B) The cancellation of such a solicitation or other request.
(C) An award or proposed award of such a contract.26
31 U.S.C. § 3551(1) (emphasis added).
26Sec. 3551(1) includes two other grounds for objection, neither of which is relevant here: “[a]
termination or cancellation of an award of such a contract, if the written objection contains an
allegation that the termination or cancellation is based in whole or in part on improprieties
concerning the award of the contract” and “[c]onversion of a function that is being performed
by Federal employees to private sector performance. 31 U.S.C. § 3551(1)(D), (E).
22
Read in context,27 and considering the entire provision, CICA’s definition of
“interested party” leads the Court to conclude that Aero Spray does not qualify as an
“actual or prospective” offeror and thus lacks standing to challenge the contract awards
to Defendant-Intervenors. That is because the statute defines the term “interested
party” only “with respect to a contract or a solicitation or other request for offers described
in paragraph (1).” 31 U.S.C. § 3551(2)(A) (emphasis added). That phrase may be easily
overlooked but it provides a meaningful textual clue: who (or what) qualifies as an
“interested party” depends upon the nature of the “objection.” This case, for example,
involves neither an objection to a solicitation nor an objection to the cancellation of a
solicitation. Rather, the gravamen of Aero Spray’s action here involves an objection to
“[a]n award . . . of such a [procurement] contract.” Id. § 3551(1)(C). The question here,
thus, is not whether Aero Spray is (or, more accurately, was) an “an actual . . . offeror”
generally for the procurement at issue, but rather whether Aero Spray was an actual
offeror “with respect to a contract” award that is the subject of the objection. Id.
§ 3551(1)-(2). The Court concludes that Aero Spray, having received a contract award
for all that it proposed, was not, and is not, an actual offeror “with respect to” the other
contract awards to which Aero Spray now objects.
Because this is not a solicitation-related protest, the term “prospective” is not
relevant here, as it applies to a timely solicitation challenge filed before proposals are
due. Weeks Marine, 575 F.3d at 1361-63 (considering “what is required to prove an
economic interest, and thus prejudice, in a case such as this, where a prospective
bidder/offeror is challenging a solicitation in the pre-award context” and concluding
“that in a pre-award protest such as the one before us, [a] prospective bidder or offeror
must establish ‘a non-trivial competitive injury which can be redressed by judicial
relief’” (quoting WinStar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998)).
Applying the Weeks Marine test here — and this is a critical point — would improperly
permit a contract awardee to effectively transform itself back into a prospective offeror
even though all parties now know the results of the procurement. (There are other
reasons the Weeks Marine prejudice test should not be applied here, and we revisit that
issue infra.)
The genesis for the interpretative difficulty is easy to understand. In a typical,
single award procurement, the resulting agency decision is necessarily a zero-sum
game: one offeror becomes a contract awardee at the expense of any other offerors. In
such a case, any disappointed offeror is, by definition, an actual offeror with respect to
27 “We do not construe statutes in a vacuum, and ‘the words of a statute must be read in their
context and with a view to their place in the overall statutory scheme.’” Colonial Press Int’l, Inc.
v. United States, 788 F.3d 1350, 1356 (Fed. Cir. 2015) (quoting Davis v. Mich. Dep’t of Treasury, 489
U.S. 803, 809 (1989)).
23
the only contract award made. The same is true even where a solicitation provides for
multiple awards, see FAR 16.504(c), where the contemplated multiple awards cover
different performance scopes or have materially different features (e.g., different
geographical regions, services, or funding ceilings). In that case, a contract awardee
may nevertheless be a disappointed, but actual, offeror with respect to the other
awarded contracts where such an awardee also sought, but did not receive, the other
awards. That is true whether the disappointed offeror would have preferred a different
contract award in lieu of the one received (assuming, of course, that there is a material
difference between them) or where the solicitation provided that an actual offeror could
receive multiple contract awards (e.g., separate contracts for different regions of the
country).28
On the other hand, in a multiple award procurement where an offeror receives the
very contract it sought — i.e., the only contract for which it submitted a proposal — that
offeror cannot be considered an “actual offeror” with respect to the other contract
awards it did not seek (and, indeed, could not have sought). Thus, the general rule is
that “[o]nce a party becomes an awardee, they are no longer an ‘interested party’ with
standing to bring a bid protest claim under 28 U.S.C. § 1491(b).” Looks Great Servs., Inc.
v. United States, 145 Fed. Cl. 324, 328 (2019); see also TransAtlantic Lines LLC v. United
States, 126 Fed. Cl. 756, 759 (2016) (“[W]here the plaintiff is the awardee of the contract,
it no longer has standing under 28 U.S.C. § 1491(b)(1).”); Kellogg Brown & Root Servs.,
Inc. v. United States, 117 Fed. Cl. 764, 769 (2014) (“KBR”) (“[T]he Court agrees with the
line of cases holding that when a party brings a challenge in our court to an agency
action which affects that party because it is a contractor and not because it is (or might
be) an offeror, the only vehicle it may use” is the Contract Disputes Act (“CDA”).).
“Although most federal contractors were at one point offerors for the contracts
they received, once the contracts are awarded their interests in disputes with the
government are those of contractors, not offerors.” KBR, 117 Fed. Cl. at 769. Judge
Meyers recently distinguished cases applying that rule as involving “challenge[s] [to]
28See, e.g., AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 350–51 (2009) (describing solicitation in
which an agency sought contractors “in 10 geographic regions and sub-regions” where “[f]or
each region, an [IDIQ] contract would be awarded” and where “[p]rospective offerors were
permitted to compete for any region” but noting that “the solicitation imposed geographic
limitations on the award of multiple contracts”); UnitedHealth Mil. & Veterans Servs., LLC v.
United States, 132 Fed. Cl. 529, 533 (2017) (“The solicitation explained that [the agency] would
select two different prime contractors even if a potential Contractor submits proposals for more
than one contract region and each of the proposals is evaluated as the best value for the
Government for the contract region of submission. Although [the agency] intended to award
two contracts to two different prime contractors, offerors were permitted to submit proposals
on one or both regions.” (internal quotation marks omitted)).
24
terms of existing contracts rather than challenging an award decision” but nevertheless
found jurisdiction where “Plaintiff-Awardees are specifically alleging error in the
Government’s evaluation and award decisions that prevented them from obtaining separate
awards.” Sirius Federal, LLC v. United States, 153 Fed. Cl. 410, 419–420 (2021) (emphasis
added) (emphasizing that “there are some significant differences in being awarded a
contract as a team lead” as opposed to only “as a team member”). This Court concurs
with Judge Meyers, but Sirius Federal falls comfortably within the multiple award
scenario described above, where a contract awardee may claim it should have won
different or additional contract awards.29 That is, Sirius Federal involved a case where a
plaintiff sought to secure a contract award that it did not receive, as opposed to Aero
Spray, which does not (and cannot) seek any further contract award.
So, to be clear, the Court in this case does not hold that merely labeling a plaintiff
an “awardee” is sufficient to conclude that it is not an “interested party” for all
purposes. Sirius Federal, 153 Fed. Cl. at 419 (rejecting argument that plaintiffs
“automatically lack standing because they are members of [Contractor Teaming
Arrangement] Teams that won BPA awards”). Rather, as explained above, the Court
must look to the contract award that is the subject of the protest and ask whether the
protesting plaintiff is an actual, but disappointed, offeror for that award. In this case,
however, Aero Spray received a contract award for all the aircraft services that it
proposed. Nor does Aero Spray allege either: (1) that the Solicitation contemplates
multiple contract awards for the same offeror; or (2) that the government failed to
award Aero Spray a contract it should have received. Accordingly, Aero Spray is not an
actual offeror for the other awarded contracts.
The Court further (and separately) concludes, but for similar reasons, that Aero
Spray’s “direct economic interest”30 is unaffected by the awards to Defendant-
Intervenors. 31 U.S.C. § 3551(2)(A) (emphasis added). If the more permissive APA
standing inquiry applied here, the undersigned readily would agree that harm from
29See also KBR, 117 Fed. Cl. at 769 nn.5–6 (noting that “[t]he only exception” to the awardee-
lacks-standing rule involves “challenges to certain corrective action” and citing Sys. Application
& Techs., Inc. v. United States, 691 F.3d 1374, 1381–82 (Fed. Cir. 2012), for the proposition that
“when a proposed corrective action effectively restores an awardee to the status of bidder by
requiring it to compete again for a contract award, this action may be challenged by the former
awardee in a bid protest”).
30See Diaz v. United States, 853 F.3d 1355, 1359 (Fed. Cir. 2017) (explaining that the “the instant
appeal hinges on the second element of the interested party requirement of the standing
inquiry” which is “whether Mr. Diaz possessed a direct economic interest” and that “[i]f he
does not possess the requisite direct economic interest, Mr. Diaz would not be an interested
party and would not have standing to sue”).
25
future, increased competition (for task orders) would constitute a cognizable injury in
fact sufficient to support standing (and, significantly, Aero Spray would not have to
qualify as an actual offeror). But, as explained above, that is all legal water under the
bridge; the “interested party” standard is more stringent than the APA’s standing
requirement.31
In this case, because Aero Spray has received everything to which it is entitled
given its proposal and pursuant to the Solicitation, Aero Spray is not a “disappointed
bidder” in any sense of that phrase. Even if Aero Spray were correct that the awards to
Defendant-Intervenors are somehow improper, Aero Spray would not be entitled to
any further contract award. Accordingly, the Court holds that while Aero Spray may
have an “economic interest” in avoiding future competition, it does not have a “direct
economic interest . . . affected by the award of the contract.” 31 U.S.C. § 3551(2)
(emphasis added). Cf. Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1334(holding that a “bid protester ha[s] no economic interest in the outcome” where “if the
protest were successful, the award would go to another party”).
A veritable tsunami of Federal Circuit decisions addressing the meaning of
“direct economic interest” in the context of post-award protests supports this Court’s
holding that Aero Spray lacks interested party status. The post-award standing test
requires that a plaintiff allege facts which, if true, demonstrate that but for the alleged
errors in the procurement, the plaintiff would have had a substantial chance of
receiving the challenged contract award at issue. Info. Tech. & Applications Corp. v. United
States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (holding that, in a post-award protest, a
plaintiff “must show that there was a ‘substantial chance’ it would have received the
contract award but for the alleged error in the procurement process” (emphasis added),
quoted in Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x 221, 226 (Fed.
Cir. 2019)). Because Aero Spray has no chance of receiving the other contract awards at
issue, Aero Spray lacks a “direct economic interest” necessary for “interested party”
standing. See, e.g., United States v. Int’l Bus. Machs. Corp., 892 F.2d 1006, 1010–11 (Fed.
Cir. 1989) (concluding that bid protestor had “at best, a trivial interest in the award”
and therefore no economic interest where, if the protest were successful, the award
would go to another party); Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir.
1996) (providing that the “substantial chance” standard requires the protesting party to
“establish not only some significant error in the procurement process, but also that
31Validata, 169 F. Supp. 3d at 79–80 (explaining that “[t]he test for APA standing . . . requires
only that the plaintiff meet the traditional requirements of Article III standing” and demonstrate
that the asserted interests are “arguably within the zone of interests to be protected or regulated
by the statute” allegedly violated (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians, 567 U.S. at 224, (2012))).
26
there was a substantial chance it would have received the contract award but for that
error” (emphasis added)); Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir.
2006) (“To prove a direct economic interest . . . , [the plaintiff] is required to establish
that it had a ‘substantial chance’ of receiving the contract.” (emphasis added)); Orion
Tech., 704 F.3d at 1348 (“Generally, to prove the existence of a direct economic interest, a
party must show that it had a ‘substantial chance’ of winning the contract.” (emphasis
added)); HVF W., LLC v. United States, 846 F. App’x 896, 898 (Fed. Cir. 2021) (“To
succeed in showing that it had a direct economic interest, [the plaintiff] had to make a
sufficient showing that it had a ‘substantial chance’ of winning the contract.” (emphasis
added) (citing Eskridge & Assocs. v. United States, 955 F.3d 1339, 1345 (Fed. Cir. 2020)));
Geiler/Schrudde & Zimmerman v. United States, 743 F. App’x 974, 977–78 (Fed. Cir. 2018)
(holding that “Section 1491(b)’s other jurisdictional requirement confirms the view that
alleged legal violations do not occur ‘in connection with a procurement or a proposed
procurement’ whenever they might affect unidentified pending and future
procurements” and that “interested party” status requires a plaintiff to “show that it is
qualified to receive the contract award”); Preferred Sys. Sols., Inc. v. United States, 110
Fed. Cl. 48, 57 (2013) (citing Federal Circuit decisions for the proposition that “[t]o have
a ‘direct economic interest’ means that the plaintiff must show that it had a substantial
chance of receiving the contract”).
Even the Weeks Marine test does not obviate the need for an “interested party” to
have a stake in the precise contract to be awarded. For instance, in a hypothetical multi-
region, multiple award IDIQ procurement permitting prospective offerors to submit
proposals for only a single region, such a prospective offeror could not challenge some
aspect of a solicitation’s specifications governing only a region for which it has no
intention of submitting a proposal. That is not because the would-be plaintiff fails the
“actual” offeror test; of course, at that pre-award, pre-proposal submission stage, there
are no actual offerors. Rather, in such a case, the would-be plaintiff is a prospective
offeror — but one who nevertheless fails the “direct economic interest” test because that
offeror cannot demonstrate a non-trivial competitive injury in the procurement itself.
In other words, the Federal Circuit’s Weeks Marine decision was concerned not
with just any “competitive injury” resulting from the procurement, but rather only to the
extent the plaintiff would be harmed within the competition for the contract it sought.
That conclusion may be seen from Weeks Marine itself, in which the Federal Circuit
adopted the “non-trivial competitive injury” test from WinStar Communications, Inc. v.
United States, 41 Fed. Cl. 748 (1998), an earlier decision of this Court. See Weeks Marine,
575 F.3d at 1361–62 (noting that the trial court “chose to use the WinStar standard,
where standing is established by alleging ‘a non-trivial competitive injury which can be
redressed by judicial relief’” and “conclud[ing] that the standard applied by the Court
27
of Federal Claims in this case strikes the appropriate balance” (quoting WinStar, 41 Fed.
Cl. at 763)).
In WinStar, the plaintiff was a prospective offeror when it filed its protest. 41
Fed. Cl. at 741. Its protest challenged the government’s “decision to award only one
ID/IQ contract” in violation of “the agency’s legal duty to give preference to awarding
multiple indefinite delivery/indefinite quantity contracts under a single solicitation to
the maximum extent practicable.” Id. at 750, 754. WinStar also asserted “that the
geographic scope of the proposed . . . contract gives the incumbent . . . an unfair
competitive advantage” and thus violated the agency’s “legal obligation to obtain full
and open competition.” Id. at 750. This Court held that WinStar satisfied applicable
standing requirements: “WinStar’s direct economic interests would be affected by
GSA’s failure to award multiple contracts since WinStar, as an offeror, stands a better
chance of receiving a contract if multiple awards are made” and because its “economic
interests would also be affected by a failure to award contracts for less than the entire
proposed . . . area.” Id. at 756–57 (explaining that “WinStar is more competitive in some
areas, such as New York City, and therefore stands a better chance of receiving a
contract if the proposed contract area is divided”). In short, because its “competitive
position may improve if the challenged solicitation provisions are set aside, WinStar is
an interested party with standing to bring this protest.” Id. at 757.
Clearly, the rationale in WinStar was that the plaintiff had “interested party”
standing to improve its “competitive position” within the procurement for the contemplated
contract or contracts. The Court of Federal Claims held precisely that. While the
government argued that the agency’s decision to award a single contract under the RFP,
even if improper, did not entitle WinStar to relief “because it has not been prejudiced[,]”
this Court held that “as a result of the single award decision, WinStar has lost the
opportunity to compete for multiple contracts and its chances of receiving a contract under
the . . . RFP have been reduced.” Id. at 762 (emphasis added). Here, Aero Spray’s
allegations, even if true, do not demonstrate a “reduced” chance of winning a contract
under the Solicitation. To the contrary, Aero Spray won the very contract award it
sought. Nor, for that matter, did the government impact Aero Spray’s opportunity to
compete — either within the procurement at issue or with respect to future task order
competitions under the issued contracts.32
32Weeks Marine also favorably cited this Court’s decision in Allied Materials & Equipment Co. v.
United States, 81 Fed. Cl. 448 (2008). Weeks Marine, 575 F.3d at 1361-62 (noting that Allied
Materials “advocat[ed] the WinStar standard”). Allied Materials may make our point here even
more clearly. There, the Court held that it “will find prejudice if plaintiff demonstrates that,
absent the error, it would have had a chance of receiving the contract award that is more than
merely speculative.” Allied Materials, 81 Fed. Cl. at 457. The Court explained that such a
28
Given the Court’s textual analysis of the statutory language at issue, as well as
the case law analyzed above, the Court agrees with GAO precedent, holding that “an
awardee, by definition, is not an actual or prospective offeror” and that “the statutory
definition of an interested party expressly bars protests where the protester is the
awardee of the challenged contract.” Aegis Def. Servs., LLC, B-412755, 2016 CPD ¶ 98,
2016 WL 1237962, at *2 & n.5 (Comp. Gen. Mar. 25, 2016) (distinguishing an awardee’s
challenge to corrective action “because the challenged corrective action essentially
returns the procurement to a pre-award status, i.e., the awardee is now akin to a
prospective offeror competing for the contract”). The Court further agrees with the
GAO that a contract awardee in a multiple award IDIQ procurement cannot
demonstrate the requisite “direct economic interest.” See id. at *3. As the GAO
explained, “[d]ue to the nature of IDIQ contracts, . . . an awardee has no legally
cognizable expectation of receiving future task orders” but only a “guaranteed a
minimum quantity of orders . . . and a fair opportunity to compete for future task
orders.” Id. (discussing FAR 16.505(b)). Thus, while “such economic interest in the
issuance of future task orders” may be sufficient under the more lenient APA standing
test, such an interest “is too speculative” to constitute a “direct economic interest.” Id.33
In sum, this Court holds that Federal Circuit precedent requires the conclusion
that Aero Spray is not an actual or prospective offeror with standing to challenge the
awards to other offerors and that it also fails to allege facts to support prejudice for the
purposes of standing, whether or not we apply the traditional post-award standing test.
standard “takes into account the factual development of the case afforded by the completion
(albeit flawed) of the offering process and the actual evaluation of completed proposals.” Id.
33This GAO precedent stretches back decades. See, e.g., Aegis Def. Servs., LLC, B-412755, 2016
CPD ¶ 98, 2016 WL 1237962, at *3 (Comp. Gen. Mar. 25, 2016) (“Indeed, [even] if Aegis’s protest
were found to be meritorious . . . and if CPG's award were terminated . . . , Aegis would be
unable to obtain an additional stake in the procurement. Rather, it would remain an awardee
with the same guaranteed minimum of $10,000 in task orders and a fair opportunity to compete
for future task orders. For this reason, Aegis is not an interested party.”); Recon Optical, Inc., B-
272239, 96-2 CPD ¶ 21, 1996 WL 399187, at *2 (Comp. Gen. July 17, 1996) (“Since each protester
here is a fully successful offeror under the RFP each would be unable to obtain any additional
stake in this procurement even if its protest of the other award were sustained. We therefore see
no basis to conclude that either protester possesses the requisite direct economic interest
necessary to maintain its protest.”). Moreover, just like Judge Meyers in Sirius Federal, GAO
precedent similarly distinguishes between, on the one hand, an awardee seeking a preferred
contract award that it was denied and, on the other, an awardee merely seeking to preclude a
separate contract award to a potential competitor. Serv. Connected, Inc., B-416324, 2018 CPD
¶ 208, 2018 WL 2932163, at *2 (Comp. Gen. June 11, 2018) (explaining that while GAO
“generally does not consider firms that receive one of multiple awards to be interested parties
to challenge awards to other firms[,]” a “protester is an interested party [where] it challenges its
priority ranking among the BPA holders”).
29
The Court thus concurs with the GAO that “[b]y definition, an IDIQ contract awardee
. . . cannot be an actual or prospective offeror with respect to another IDIQ contract
awarded under the same solicitation” based on “the simple fact that a contractor that
has already been awarded an IDIQ contract cannot be awarded additional IDIQ
contracts, even if it could show flaws in the agency’s award of those contracts.” AAR
Airlift Grp., Inc., B-414690, 2017 CPD ¶ 273, 2017 WL 4004517, at *4 (Comp. Gen. Aug.
22, 2017). Even if Aero Spray “were to successfully challenge the IDIQ awards to [the
intervenors,] it would not result in further IDIQ contract awards to” Aero Spray. Id.A straightforward hypothetical further proves the point. The Solicitation and
resulting contracts at issue clearly permit the Agency to onboard additional contractors
over time. See AR 380 (§ C27 (“Onboarding of Contractors After Initial Award(s)”).
Specifically, the “Government reserves the right to announce a new competition
(Onboarding) for the purpose of adding additional multiple award [IDIQ] contract
holders.” Id. (emphasis added). Should the Agency decide to engage in such a new
competition, “the CO will publicize a notice by modifying the original solicitation, and
complete a new source selection.” Id. The question is whether Aero Spray would have
standing to challenge any aspect of the hypothetical “new competition” (including its
results). That answer, in the Court’s view, is clearly in the negative; given that Aero
Spray already received a contract award for all that it proposed, Aero Spray could not
seek yet another award and, thus, could not be a prospective or actual offeror with
respect to that new competition. The Court cannot conceive of any reason why there
should be a distinction between, on the one hand, a multiple award procurement where
all awards are made at the same time, and, on the other hand, a multiple award
procurement where the competition takes place, and awards are made, in stages. In
both cases, so long as an offeror receives the award for which it submitted a proposal,
that offeror lacks standing to challenge other awards (whether made at the same time or
in the future); the timing of the awards should make no difference.
Moreover, the fact that the onboarding contract provision, see RFP § C27,
contains explicit, substantive terms governing the process for additional awards
demonstrates that Aero Spray’s complaint likely should be in the nature of a CDA
claim, similar to the cases Judge Meyers distinguished in Sirius Federal, discussed supra.
See Sirius Federal, 153 Fed. Cl. at 420 (“a contractor may not circumvent the CDA by
invoking this Court’s protest jurisdiction”). In that regard, the onboarding provision is
contained within the RFP’s Section C (“General Contract Term and Conditions”), AR
369, and thus even if the Agency improperly onboarded additional competitors, Aero
Spray’s remedy arises from its status as a contractor, which is classic CDA territory.34
34FAR 2.101 (noting that a “[c]ontract clause or ‘clause’ means a term or condition used in
contracts or in both solicitations and contracts, and applying after contract award or both before
30
Digital Techs., Inc. v. United States, 89 Fed. Cl. 711, 730 (2009) (holding that because the
Federal Acquisition Streamlining Act (“FASA”) of 1994, Pub. L. No. 103-355, § 1004, 108
Stat. 3243, 3252–53 (codified as amended at 10 U.S.C. § 2304c(e) and 41 U.S.C. § 4106(f)),
“by its terms, only prohibits task order protests, this court has jurisdiction to hear”
contract claims alleging “breach of the fair opportunity provisions of [the] contract”).35
In sum, and given AFGE’s focus on disappointed bidders and its rejection of the
broader APA Scanwell standing rules, the undersigned agrees with Judge Hertling that
“[a]bsent some exception to the Federal Circuit’s approach, the Court is bound by
AFGE’s definition of ‘interested party’ and subsequent cases interpreting the standing
requirement under § 1491(b).” SEKRI, Inc. v. United States, 152 Fed. Cl. 742, 751 (2021).
This Court will not craft an exception or a new test on its own.
E. National Air Cargo
As noted above, Aero Spray, in an attempt to establish standing here, urges this
Court to follow National Air Cargo Group, Inc. v. United States, 126 Fed. Cl. 281 (2016). Pl.
MJAR at 7–8; Pl. Resp. at 1–7. In that case, after receiving one of the initial five awards
under an IDIQ solicitation, the plaintiff-awardee challenged a sixth award on the basis
that the agency “violated terms of the solicitation limiting awardees,” violated
applicable statutes and regulations, and acted irrationally given the sixth awardee’s
past performance record. National Air Cargo, 126 Fed. Cl. at 284. The government
moved to dismiss for lack of jurisdiction, challenging the plaintiff’s standing pursuant
to RCFC 12(b)(1). Id. at 284–85. Denying the motion to dismiss, Judge Lettow
concluded that the plaintiff’s allegation that it suffered a non-trivial competitive injury
and after award” while a “[s]olicitation provision or ‘provision’ means a term or condition used
only in solicitations and applying only before contract award”). In this case, the onboarding
clause, § C27 (AR 380), applies after award.
35See also Vernon J. Edwards, Postscript: Breach of Loss of the Fair Opportunity to Compete, 20 Nash
& Cibinic Rep. ¶ 59 (Dec. 2006) (“Although contractors under multiple award IDIQ contracts
cannot protest the award of a task or delivery order, it does not follow that they cannot pursue a
claim under the CDA when they think that the Government has breached its promise to give
them a fair opportunity to be considered for an order. Protests and claims are very different
things in terms of their objectives, the remedies available, and their effect on Government
operations.”), quoted in Digital Technologies, 89 Fed. Cl. at 729; see also Vanquish Worldwide, LLC v.
United States, 147 Fed. Cl. 390, 398 (2020) (holding that “the Court cannot discern anything in
either the language, scheme, or underlying purposes of FASA which suggests that Congress
intended to strip this Court of jurisdiction to hear CDA claims for damages that allege the
government has violated contractual procedures governing the assignment of task orders”).
The RFP in this case contained a contract clause providing for a “fair opportunity” to compete
for task orders. AR 375 (§ C15.1.1).
31
as a result of increased competition due to the sixth award was sufficient to show
prejudice and thus qualified plaintiff as an “interested party” with standing. Id. at 295.
In so holding, Judge Lettow applied the pre-award standing test from Weeks Marine
because the plaintiff “does not seek a contractual award but instead seeks to remedy an
alleged violation of procurement law that has affected the task order pool.” Id. at 295
(applying “non-trivial competitive injury” test).
This Court is not persuaded to follow National Air Cargo for several reasons.36
In adopting the relaxed, pre-award Weeks Marine standing test for prejudice, the
Court in National Air Cargo relied primarily upon the Federal Circuit’s decision in
Systems Application & Technologies, Inc. v. United States, in which our appellate court
noted that “[a] protest will, by its nature, dictate the necessary factors for a ‘direct
economic interest.’” 691 F.3d 1374, 1382 (Fed. Cir. 2012). Out of context, this statement
suggests a case-by-case assessment regarding the proper prejudice standard for
standing purposes. In context, however, this statement is merely a truism; the
procedural posture of a bid protest impacts the nature of the requisite prejudice a
plaintiff must demonstrate in terms of its “direct economic interest.” In that regard, a
pre-award solicitation protest is different than a post-award protest:
A protest will, by its nature, dictate the necessary factors for a
“direct economic interest.” In pre-award protests, for
instance, the plaintiff must show “a non-trivial competitive
injury which can be addressed by judicial relief.” In post-
award protests, the plaintiff must show it had a “substantial
chance” of receiving the contract.
Id. at 1382 (citations omitted). Indeed, the Federal Circuit in Systems Application, while
specifically citing Weeks Marine Inc., 575 F.3d at 1361–62, as having “reject[ed] the
proposition that the ‘substantial chance’ requirement applies outside of the postaward
context,” 691 F.3d at 1382, nowhere intimated the possibility of the converse: that the
more relaxed pre-award standard might apply in a post-award protest where an offeror
is an awardee with respect to the only contract it sought. In other words, the Federal
Circuit has established only a single standing test applicable in a post-award protest,
36As an initial matter, Aero Spray is flat wrong that a rejection of its position means that “this
Court would in fact be overturning National Air Cargo.” Pl. Supp. Br. at 10. That is because no
judge on this court is “bound by other decisions in the Court of Federal Claims[.]” Buser v.
United States, 85 Fed. Cl. 248, 259 n.12 (2009); see also Octo Consulting Grp., Inc. v. United States,
117 Fed. Cl. 334, 361 (2014).
32
with the cognizable “direct economic interest” depending on whether the plaintiff will
have a “substantial chance” at receiving the contract sought.
Aero Spray, in contrast, already has won the only contract award to which it
could possibly be entitled. Moreover, nothing in Weeks Marine or Systems Application
demonstrates that the relevant “direct economic interest” may include future
competitions for task orders, as opposed to the contract award sought. Again, as
demonstrated above, the “non-trivial competitive injury” is an injury suffered in the
competition for the contract(s), not something arising from the award(s).
National Air Cargo acknowledged that, in Systems Application, the Federal Circuit
“found that the case was factually akin to a pre-award protest and consequently applied
the ‘non-trivial competitive injury’ test, finding plaintiff would suffer such an injury if it
was forced to recompete for a contract it had already won.” 126 Fed. Cl. at 293
(emphasis added). But that reasoning, too, supports the Court’s decision not to apply
the more lenient standard here for the simple reason that we fail to understand how or
why Aero Spray’s alleged facts and standing theory make its case “akin to a pre-award
protest.”37 Crafting or adopting a different standard to apply in this post-award protest
case cuts sharply against the grain of binding precedent. Orion Tech., Inc. v. United
States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (rejecting plaintiff’s argument “that the ‘non-
trivial competitive injury’ standard should apply to this post-proposal, preevaluation
protest” because that standard is simply “an exception to the general standing test in
the case of pre-bid, pre-award protests”). In COMINT Systems Corp. v. United States, the
Federal Circuit similarly rejected the plaintiff’s argument that “it need only show a
‘non-trivial competitive injury’ to establish standing” on the basis that “in Weeks Marine
this court specifically held that the ‘non-trivial competitive injury’ standard was
37In Systems Application, the Federal Circuit noted that although the “Army had not yet
implemented the corrective action” at issue and that the plaintiff “was the contract awardee,”
“[n]either of these facts are material to the question of jurisdiction.” 691 F.3d at 1381. Again, as
explained supra, we do not hold that merely labeling a plaintiff an “awardee” provides a per se,
definitive answer to the “interested party” question. On the other hand, Systems Application’s
holding does not support Aero Spray’s interpretation of “interested party.” It stands, instead,
for the proposition that an awardee has standing to challenge an agency’s “decision to engage
in corrective action [that] will arbitrarily require [the awardee] to win the same award twice.”
Id. at 1382 (“Obtaining a contract award . . . is often a painstaking (and expensive) process. An
arbitrary decision to take corrective action without adequate justification forces a winning
contractor to participate in the process a second time and constitutes a competitive injury to that
contractor.”). Moreover, in Systems Application, “the Army’s decision to engage in corrective
action [would have] require[d] [the awardee] to re-compete for a contract after its price had
been made public.” Id. at 1383. The interest SA-Tech sought to protect in its protest was thus in
the very award it had sought and had already won but that was threatened by the corrective
action. Aero Spray’s interest here in the other contract awards is not comparable.
33
applicable to ‘a pre-award protest.’” 700 F.3d 1377, 1383 n.7 (Fed. Cir. 2012) (emphasis in
original) (quoting Weeks Marine, 575 F.3d at 1363). Accordingly, the Federal Circuit in
COMINT held that the relaxed “standard does not apply here because Comint’s bid
protest is a post-award protest.” 700 F.3d at 1383 n.7 (emphasis added).
National Air Cargo’s approach to the prejudice test for standing is based on the
further premise that “not all protestors seek the award of a contract.” 126 Fed. Cl. at
292. In particular, according to National Air Cargo, “[m]any protestors do not ultimately
seek the award of a contract, but they wish instead to vindicate some other economic
interest within this court’s jurisdiction. That is true especially for protests that are pre-
award or ‘in connection with a procurement.’” Id. at 293 (emphasis added) (discussing
RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1288–89 (Fed. Cir. 1999)). But
the applicable definition of “interested party” does not include merely a plaintiff with
“some other economic interest” in the procurement, 126 Fed. Cl. at 293, but rather
includes only an actual or prospective offeror “whose direct economic interest would be
affected by the award of the contract” at issue, 31 U.S.C. § 3551(2)(A). This Court
concurs with National Air Cargo that a necessary implication of RAMCOR is that a
plaintiff may have standing to pursue a § 1491(b) action even if that particular action
does not itself seek the contract award.38 But it does not follow that a plaintiff may
qualify as an “interested party” where it is not seeking the contract award at all — i.e.,
either in the procurement generally or in a GAO protest. In other words, RAMCOR
addresses what a § 1491(b) action may include but does not define who qualifies as “an
actual or prospective bidder or offeror” or otherwise meets the remaining elements of
an “interested party.”
In RAMCOR, the plaintiff challenged an agency’s override of an automatic stay
of the procurement triggered by the timely filing of a GAO protest. 185 F.3d at 1288–89.
At the risk of being repetitive, the question of who may file a § 1491(b) action must be
distinguished from what type of action an “interested party” may maintain in this
Court pursuant to § 1491(b). In noting that the plaintiff in RAMCOR “would not [have]
be[en] in line for contract award as a result of its suit,” 126 Fed. Cl. at 294, National Air
Cargo appears to conflate the who and what questions. Keeping in mind that the
definition of “interested party” was not addressed in RAMCOR, this Court infers from
38 Although “the fourth prong of 28 U.S.C. § 1491(b)(1) constitutes an independent cause of
action that is best understood as ‘cover[ing] even non-traditional disputes arising from the
procurement process as long as the violation is in connection with a procurement or proposed
procurement[,]’” that does not necessitate this Court’s carving out a new “interested party” test
absent Federal Circuit direction to do so. Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 99
(2020) (internal quotation marks omitted) (discussing RAMCOR and quoting Validata, 169 F.
Supp. 3d at 78).
34
that case that only an “actual or prospective” offeror with respect to the contract at issue
may maintain an action under the last prong of § 1491(b). In RAMCOR, the plaintiff
was an actual offeror — indeed, it was a disappointed bidder in the parlance of AFGE,
with a protest pending at GAO — “whose direct economic interest would be affected by
the award of the contract” at issue. Because that condition — regarding who may file an
action — was met, the RAMCOR plaintiff had standing to object to an “alleged violation
of statute or regulation in connection with a procurement or a proposed procurement.”
28 U.S.C. § 1491(b)(1).
In contrast, Aero Spray here — as demonstrated above — is not an “actual or
prospective” offeror with respect to the contract awards at issue. This Court thus rejects
the contention that a plaintiff “is an ‘actual’ bidder [just] because, as a matter of fact, it
bid on this IDIQ solicitation.” National Air Cargo, 126 Fed. Cl. at 295. National Air
Cargo’s semantic move is to focus on whether a plaintiff “bid on this IDIQ solicitation.”
Id. But CICA’s definition of “interested party” requires more; it necessitates that the
plaintiff be an actual or prospective offeror “with respect to a contract . . . described in
paragraph (1),” which, in turn, refers to the contract award that is the subject of the
GAO protest or § 1491(b) action. 31 U.S.C. § 3551(1)(C), (2)(A).39
39Another thought experiment is warranted here. Imagine several disappointed offerors —
including an incumbent contractor performing a predecessor contract — file timely GAO
protests, challenging an award to a competitor, thereby triggering the automatic CICA stay. If
the government overrides the stay, may the incumbent contractor maintain a RAMCOR-type
action here at the Court of Federal Claims, even if the GAO dismisses the incumbent
contractor’s protest because its allegations “fail[ ] to establish that it had a substantial chance of
receiving the award, and, therefore, it is not an interested party”? Gulf Civilization Gen. Trading
& Contracting Co., B-419754, 2021 CPD ¶ 208, 2021 WL 2394669, at *6 (Comp. Gen. June 10, 2021).
This Court would definitively answer that hypothetical in the negative because even if the
incumbent is harmed by an unlawful override — i.e., the government will start transitioning the
incumbent’s work to the competitor awardee — the incumbent is no longer an interested party
to the underlying contract award at issue and, thus, is not an “interested party” within the
meaning of CICA’s definition and cannot challenge the override. According to National Air
Cargo, however, the incumbent would appear to be an actual offeror merely because it
submitted a proposal for the procurement generally and because it “has an economic interest in
stopping the government” from proceeding with the transition. 126 Fed. Cl. at 294. In the
undersigned’s view, such an outcome is a necessary implication of National Air Cargo but cannot
be squared with Federal Circuit precedent. For that reason, the Court agrees with the
government that if Aero Spray were correct “that a plaintiff could protest a contract award to
another company because the resulting potential increase in competition for follow-on
contracts” in the form of task orders “gives the plaintiff a ‘direct economic interest’ in the
competitor’s contract award, there is no reason why the Federal Circuit should have prohibited
plaintiffs who are ‘rated below second’ in a procurement from bringing suit.” Def. Resp. at 6–7.
Were such protests allowed, “[a] plaintiff company might easily allege that a contract award
35
Returning to the “direct economic interest” prong of CICA’s “interested party”
definition, National Air Cargo concluded — contrary to the GAO’s position — that an
IDIQ contract awardee has a cognizable interest in more than just (a) the minimum
award amount necessary to supply consideration in order to form a binding contract,
and (b) the opportunity to compete for task orders. 126 Fed. Cl. at 295-96 (holding that
“[t]he minimum satisfies the law of consideration, but it does not mean that the IDIQ
contractors lack a ‘direct economic interest’ in the competition for task orders”). Again,
this Court concurs with the GAO’s approach to this issue. The likelihood of increased
competition may constitute an injury in fact for Article III purposes, but it does not
follow that Aero Spray’s “direct economic interest” is impacted by the other awards,
particularly in light of the fact that: (1) the government’s assessed need was to have
“approximately 20–24” aircraft available, AR 10, whereas Aero Spray only offered 15
aircraft, AR 1365; and (2) Aero Spray, as an awardee, is not guaranteed anything more
than the mandatory minimum contract amount and the opportunity to compete. See
Interest, Black’s Law Dictionary (11th ed. 2019) (defining “direct interest” as “[a] certain,
absolute interest”). The Court concludes that Aero Spray’s “certain, absolute interest”
is only in its own contract award, which does not include a guaranteed level of
competition. See Pl. MJAR at 26 (Aero Spray’s concession that it “will not directly be
deprived of the opportunity to compete for task orders” (emphasis added)).
Finally, Aero Spray relies on two subsequent decisions from this Court, PAE-
Parsons Global Logistics Services., LLC v. United States, 145 Fed. Cl. 194 (2019), and Sirius
Federal, LLC v. United States, 153 Fed. Cl. 410 (2021), for the proposition that an awardee
of a multiple IDIQ contract has standing to challenge other contract awards. Pl. Resp. at
6–7. Aero Spray’s reliance on these case misses the mark. As explained above, this type
of case involves a post-award challenge in which a contract awardee was found to have
standing to protest that it had a “substantial chance” of being awarded a more valuable
contract; those cases did not involve a challenge based merely on increased competition
in future task order competitions. See, e.g., PAE-Parsons, 145 Fed. Cl. at 199–200 (where
government concurrently awarded four “very different” IDIQ contracts, the court
concluded that because the protestor was awarded a lower priority IDIQ contract, the
plaintiff “clearly has standing as a disappointed bidder with regard to the IDIQ contract
award at issue in this case”).40 These decisions certainly do not demonstrate that this
will confer some significant competitive advantage on a competitor company so that even if the
plaintiff were ineligible for award, it should have standing to challenge an award to its direct
competitors” as unlawful. Id. at 7. Of course, “the Federal Circuit has repeatedly held that such
a protest is impermissible,” id., foreclosing Aero Spray’s argument.
40 Similarly, Glenn Defense Marine (Asia) PTE, Ltd. v. United States, 97 Fed. Cl. 311 (2011), appeal
on other grounds dismissed as moot after government settled with plaintiff, 469 F. App’x. 865 (Fed. Cir.
2012) — another case upon which National Air Cargo relies at some length — involved a
36
Court routinely has applied anything other than the “substantial chance” standard in
the post-award context or exempted the plaintiff from being an actual offeror for the
contract award being challenged. To the extent National Air Cargo has crafted such an
exemption, it effectively applied APA standing rules, something this Court will not do.
****
For the reasons explained above, this Court holds Aero Spray lacks standing and
that its pending complaint thus should be dismissed pursuant to RCFC 12(b)(1).
III. AERO SPRAY’S PROTEST IS UNTIMELY PURSUANT TO THE FEDERAL
CIRCUIT’S BLUE & GOLD DECISION
The government argues, and the Court agrees, that “[g]iven the confluence of
ambiguous language and provisions, the question of whether an actual weighing of
each aircraft proposed, in contract configuration, was required at the time of proposal
submission was patently ambiguous” such that if Aero Spray “was concerned that a
competitor would be able to submit a proposal without including such a weight and
balance report, it was required to raise this issue prior to submitting its bid, and cannot
do so now.” Def. MJAR at 36 (emphasis added) (citing Blue & Gold, 492 F.3d at 1313);
see also Def. Resp. at 13–14. Accordingly, even if Aero Spray has standing, its protest is
untimely.
Practitioners before this Court (and government contractors of any experience)
are, at this point, very familiar with the requirement that a prospective offeror must
challenge to the government’s award of multiple contracts where the plaintiff alleged that “the
solicitation required one IDIQ contract award.” National Air Cargo, 126 Fed. Cl. at 296 (citing
Glenn Def., 97 Fed. Cl. at 317 n.3). Glenn Defense is distinguishable, however, because the
plaintiff, there, clearly sought a greater scope of work than it was awarded (services supporting
two ports in the Philippines for the Navy, rather than four such ports for which the plaintiff
submitted a proposal). 97 Fed. Cl. at 318–23. Here, in contrast, Aero Spray does not dispute it
received all that it was entitled to receive per its proposal. More significantly, in Glenn Defense,
Judge Allegra not only noted that “[t]o demonstrate prejudice, the protestor must show that
there was a substantial chance it would have received the contract award but for that error[,]”
but also specifically held that the plaintiff satisfied a version of the Federal Circuit’s “but for”
post-award standing test: “Cases construing this second variation on the prejudice inquiry [for
standing] have held that it requires merely a ‘viable allegation of agency wrong doing,’ with
‘viability turning on the reasonableness of the likelihood of prevailing on the prospective bid taking
the protestor’s allegations as true.’” Glenn Def., 97 Fed. Cl. at 317 & n.3 (first quoting Alfa Laval
Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (internal quotation marks
omitted), and then quoting McKing Consulting Corp. v. United States, 78 Fed. Cl. 715, 721 (2007)
(emphasis added)).
37
challenge patent solicitation ambiguities in a timely manner or be barred from relying
upon a preferred solicitation interpretation in a later, post-award bid protest. See, e.g.,
VS2, LLC v. United States, -- Fed. Cl. --, 2021 WL 4167380, at *8–*13 (Sept. 1, 2021). As
discussed at length in VS2, the Federal Circuit held in Blue & Gold “that a party who has
the opportunity to object to the terms of a government solicitation containing a patent
error and fails to do so prior to the close of the bidding process waives its ability to raise
the same objection subsequently in a bid protest action” in this Court.” 492 F.3d at 1313;
see also VS2, 2021 WL 4167380, at *8. This “waiver rule” is “rooted (albeit somewhat
loosely) in the statutory text providing this Court with jurisdiction to decide
procurement-related actions[.]” VS2, 2021 WL 4167380, at *8 (discussing 28 U.S.C.
§ 1491(b)(3)’s “mandate[] that ‘the courts shall give due regard to the interests of
national defense and national security and the need for expeditious resolution of the action’”
and explaining that “[r]ecognition of a waiver rule, which requires that a party object to
solicitation terms during the bidding process, furthers this statutory mandate” (quoting
§ 1491(b)(3))); see also Inserso Corp. v. United States, 961 F.3d 1343, 1352 (Fed. Cir. 2020)
(holding that because plaintiff waited until after the award to challenge it, plaintiff
“forfeited its right” to do so, and that bidders “exercising reasonable and customary
care” were on notice of the alleged defect “long before” award). “A waiver rule thus
prevents contractors from taking advantage of the government and other bidders, and
avoids costly after-the-fact litigation.” Blue & Gold, 492 F.3d at 1314. The Federal
Circuit went on to conclude that “the same reasons underlying application of the patent
ambiguity doctrine against parties to a government contract speak to recognizing a
waiver rule against parties challenging the terms of a government solicitation.” Id.The central thrust of Aero Spray’s amended complaint is that “[t]he Agency’s
decision to award IDIQ contracts to Fletcher Flying and Henry’s Aerial despite neither
company having an aircraft ready to perform on the contract as required by the
Solicitation is arbitrary, capricious, and an abuse of discretion.” Am. Compl. ¶ 36; see
also Am. Compl. ¶ 42 (“Nowhere in the Solicitation does the Solicitation allow aircraft to
be proposed . . . that could potentially be prepared to perform on contract . . . .”).
According to Aero Spray’s reading of the Solicitation, it “clearly . . . does not imagine
the acceptance of aircraft ‘anticipated’ to be complete at some arbitrary date after
award” and, thus, “[t]he only reasonable interpretation of the Solicitation is one that
required aircraft to be configured, weighed, certified, and able to perform on the
contract by the submission of the proposals, not May 2021.” Id. ¶¶ 45-46.
The Court disagrees.
At least one offeror during the procurement process clearly identified an
ambiguity in the Solicitation because a question was asked regarding precisely what
information had to be included in the proposal and by when the proposed aircraft had to
38
be ready. In particular, Question 26 asked whether “a vendor [may] include an aircraft
in its offer that will not be delivered to that vendor in Fire Boss configuration until after
the solicitation closes?” AR 127. That same question further inquired whether “it
[would] be acceptable for the vendor to base its empty weight and payload calculations
on an aircraft in wheel configuration with estimates on what the Fire Boss will weigh”
after it is fully configured. Id. The Agency’s terse response did not answer the
question; it indicated only “See Questions 2 & 3.” Id.
Unfortunately, the Agency’s answers to Question 2 and Question 3 shed little to
no light on the ambiguity that Question 26 sought to clarify. The very premise of
Question 2 was that the offeror would not have two Fire Boss aircraft complete “by the
submission date for the Solicitation.” AR 122. The Offeror wanted to know how it
“should . . . handle listing the aircraft[.]” Id. The Agency’s answer did not say that such
aircraft could not be proposed. Rather, the Agency’s answer refers simply to “proposed
aircraft.” Id. (emphasis added). Further, the Agency instructed that “[t]he proposal
must include at least one aircraft that meets the minimum requirements of the
solicitation.” Id. This bare-bones instruction provides neither temporal parameters nor
direction about “listing the aircraft”; nothing in it, therefore, is inconsistent with the
government’s view that the aircraft need not be ready by the time of proposal
submission. In other words, the answer to Question 2 does not clearly address either of
the inquires posed in Question 26.
Question 3 similarly appears designed to get at the same or similar ambiguity as
Question 26. In that regard, Question 3 asked the Agency to clarify whether “[f]or a
Contractor to offer an aircraft in response to this solicitation, does the aircraft need to be
in operational Fire Boss contract configuration, including an acceptable Weight &
Balance (in accordance with Section B32) and Equipment List that would allow the
Aircraft Questionnaire to be filled out?” AR 122–23. The Agency’s answer to that
question all but restates the response to Question 2: “A proposal must include at least
one aircraft that meets the minimum requirements of Section A1, and all related
requirements and documentation as stated in the solicitation . . . .” AR 123. Once again,
in response to Question 3, the government neither provided guidance on whether any
proposed aircraft had to be in operational configuration at the time of proposal submission,
nor clarified whether providing estimated data would be acceptable.
In short, Question 26 was never answered, clearly or otherwise. The result is that
the Solicitation was patently ambiguous. See Quanterion Sols., Inc. v. United States, 152
Fed. Cl. 434, 445 (2021) (“An ambiguity in an RFP is generally patent if offerors seek
clarification of the ambiguous provision prior to submitting their proposals.” (citing Per
39
Aarsleff A/S v. United States, 829 F.3d 1303, 1312–13 (Fed. Cir. 2016))).41 When a
Solicitation is patently ambiguous, the government remains free to select a reasonable
interpretation, as it sees fit, during the evaluation and award segments of the
procurement process. See Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 998 (Fed. Cir.
1996) (“If a solicitation contains contract language that is patently ambiguous, a
protestor cannot argue . . . that its interpretation is proper unless the protestor sought
clarification of the language from the agency before the end of the procurement
process.”); NVY Technologies, Inc. v. United States, 370 F.3d 1153, 1162 (Fed. Cir. 2004) (“If
an ambiguity is obvious and a bidder fails to inquire with regard to the provision, his
interpretation will fail.”); Wackenhut Servs., Inc., B-276012, 98-2 CPD ¶ 75, 1998 WL
650258, at *3 (Comp. Gen. Sept. 1, 1998) (“[A]n offeror who chooses to compete under a
patently ambiguous solicitation does so at its own peril, and cannot later complain
when the agency proceeds in a way inconsistent with one of the possible
interpretations.”). Here, the Agency effectively adopted an interpretation that Aero
Spray does not prefer, but it is too late to complain about that now. Blue & Gold, 492
F.3d at 1315 (holding that “a party who has the opportunity to object to the terms of a
government solicitation containing a patent error and fails to do so prior to the close of the
bidding process waives its ability to raise the same objection afterwards in a § 1491(b)
action in the Court of Federal Claims” (emphasis added)).
In any event, as Henry’s Aerial points out, offerors were required to submit with
their respective proposals an “Aircraft Information Form.” AR 429 (RFP Exhibit E-3)
(instructing offerors to “reproduce and submit [a copy] for each aircraft offered”). That
form, in turn, required offerors to calculate a “proposed aircraft payload” to include the
“[w]eight of Equipment to be added” to the proposed aircraft, defined as the
“[e]quipment to be added to meet the requirements of this contract.” Id. (emphasis
added). Relatedly, the form permits offerors to note “Empty Weight in current
configuration plus and/or minus equipment to be added or removed for contract
compliance.” Id. (emphasis added). Based upon that form’s language, Henry’s Aerial
persuasively argues that the Agency clearly intended to permit merely “a projection of
what you’re going to add.” Tr. 67:20-22.42 There is little or no textual indication in the
41Per Aarsleff, in turn, held that an “ambiguity in the solicitation was patent, as reflected in the
questions received by the Air Force and the two plausible interpretations” the court
summarized. 829 F.3d at 1312–13. In that case, “[f]ollowing clarification during the question-
and-answer period, the ambiguity was removed, and so there was at that time neither a patent
nor a latent ambiguity.” Id. In this case, in contrast, the Solicitation’s ambiguity was never
removed.
Tr. 67:20 — 68:5. (THE COURT: Oh, so you’re saying this [form] shows that it’s a projection of
42
what you’re going to add. MR. SMITH: Correct. THE COURT: That’s a good point. MR.
SMITH: And it goes on to say, . . . [‘]Computed Empty Weight in Contract Configuration.
Empty weight in current configuration plus and/or minus equipment to be added or removed
40
RFP, even as supplemented with the Q&As, that offerors were required to use actual
values — as opposed to proposed or projected equipment “to be added or removed” in
the future — for any proposed airplanes or, as Aero Spray contends, for at least one
such airplane. To the extent there is any such indication, the Court cannot reconcile all
of the various textual references to extract a clear meaning in the manner Aero Spay
advocates. The Solicitation is patently ambiguous even following the Q&As, if not
because of them.
Accordingly, in the alternative, the Court holds that Aero Spray’s pending
complaint should be dismissed as untimely pursuant to RCFC 12(b)(6).43
IV. EVEN IF AERO SPRAY’S CLAIMS HAD MERIT, THIS COURT WOULD
REJECT ITS REQUEST FOR INJUNCTIVE RELIEF
Even if Aero Spray had standing and its claims were timely pursuant to Blue &
Gold — and even if this Court reached the merits and decided the case in favor of Aero
Spray — this Court nevertheless would reject Aero Spray’s request for permanent
injunctive relief.
The Tucker Act vests this Court to award “any relief that the court considers
proper, including . . . injunctive relief . . . .” 28 U.S.C. § 1491(b)(2); see RCFC 65. In
evaluating whether permanent injunctive relief is warranted in a particular case, a court
must consider: (1) whether the plaintiff has succeeded on the merits; (2) whether the
plaintiff has shown irreparable harm without the issuance of the injunction; (3) whether
the balance of the harms favors the award of injunctive relief; and (4) whether the
injunction serves the public interest. PGBA v. United States, 389 F.3d 1219, 1228–29 (Fed.
Cir. 2004).
Assuming for the sake of argument that Aero Spray could meet the threshold
requirement for permanent injunctive relief — i.e., succeeding on the merits of its claims
— the Court finds that: (1) Aero Spray will not suffer irreparable harm in the absence of
an injunction; and (2) the balance of harms easily tips in favor of the government.
First, the Court notes that Aero Spray did not seek a preliminary injunction or
secure an agreed-upon stay of the challenged contract awards, suggesting a lack of
for contract compliance.[’] This information is useless if every aircraft — if you have to propose
an aircraft that is already in contract configuration.”).
43This Court considers a failure to meet the Blue & Gold waiver rule under RCFC 12(b)(6), rather
than under RCFC 12(b)(1). SEKRI, 152 Fed. Cl. at 752 (holding that “the Blue & Gold Fleet waiver
rule is not jurisdictional and thereby more appropriately addressed under RCFC 12(b)(6)”
because the Federal Circuit, in Blue & Gold, “did not establish the waiver rule as a limit on
jurisdiction”); VS2, LLC v. United States, -- Fed. Cl. --, 2021 WL 4167380, at *11 (Sept. 1, 2021).
41
irreparable harm. PGBA, 389 F.3d at 1229, 1232 (affirming the denial of injunctive relief
where the trial court “considered PGBA’s failure to seek a preliminary injunction as a
factor weighing against a grant of injunctive relief”).
Second, although a plaintiff offeror may demonstrate irreparable harm where a
solicitation improperly impairs the offeror’s ability to compete for the contract at issue
or where an agency’s decision improperly costs a disappointed offeror the contract it
sought, the only putative injury here is that arising from the possibility of future
increased competition for task orders.44 Accordingly, the Court agrees with the
government that “even assuming that [such] economic harm can be considered
irreparable harm . . . , such harm pales in comparison to the risk to DOI’s firefighting
capabilities and the nation’s woodlands that the United States would suffer in the event
of a permanent injunction.” Def. Resp. at 16. In that regard, the government, via a
declaration of the cognizant contracting officer, provides support for this Court’s
finding that the government has a present need for all of the aircraft services for which
44Aero Spray’s briefs and oral argument were sprinkled with the assertion of an additional
harm: “In order to actually comply with the solicitation, [Aero Spray] was required to expend
funds that the awardees did not. They were able to push off to some nebulous date in the
future the cost of converting their aircraft into Fire Boss aircraft. As a result, they gained a
competitive advantage over [Aero Spray].” Pl. MJAR at 26; see also Tr. 15:2–16:20 (Aero Spray
arguing injury in the form of “impact on cost” and “competing against other offerors . . . that
didn’t meet the requirements of the solicitation”). The Court does not understand this
argument because no party disputes that airplanes cannot be provided by any contractor unless
and until they meet contract specifications and regulatory flight requirements. Aero Spray does
not explain — and points to no evidence in the record demonstrating — how Defendant-
Intervenors’ decision to propose fewer aircraft that were not yet ready at the time of proposal
submission either (1) impacted Aero Spray’s decision to propose 15 aircraft that were ready for
use, or (2) will impact its competitiveness for task orders. Tr. 15:2–16:16. Moreover, the RFP
(and resulting contracts) provide that “Contractors’ pricing for task orders shall not exceed the
prices in the IDIQ price schedule” and that “[d]iscounted pricing is permitted.” AR 375 (RFP
§ C15.1.1). Accordingly, Aero Spray is free to lower its pricing in task order competitions. Tr.
19:6–8 (Aero Spray agreeing that proposed “prices are ceiling prices” and that contractors are
“free to discount” from those ceiling prices). Again, to the extent another awardee now has an
aircraft ready to compete — and presumably had to incur costs just as Aero Spray did — Aero
Spray does not explain why the resulting competition is unfair just because Aero Spray had its
airplanes ready earlier. Cf. MLS-Multinational Logistic Servs., Ltd v. United States, 143 Fed. Cl.
341, 374 (2019) (noting “that the price submitted by [the plaintiff] in response to the Solicitation
when competing for a contract was a maximum, not a fixed amount, for the potential, future
task orders” and “[t]herefore, even if [the plaintiff]did not submit its lowest bid to receive a
contract in response to the Solicitation because of its uncertainty with the Port Tariff provisions
before the proposals were due, given the clear direction from the Navy that it would not make
any changes to the Port Tariff provisions at this time, [the plaintiff]could now price that
certainty in its offer when submitting bids for future task orders”).
42
the Agency already has contracted — that is, including those the Defendant-Intervenors
offered. Id. at 16–18 (discussing Def. Resp. Ex. A ¶¶ 5–7). The Court finds the
contracting officer’s explanation persuasive and agrees that enjoining the awards to
Henry’s Aerial and Fletcher Flying would reduce the Agency’s retained fleet and
“increase[] the danger not only to the national woodlands” but also to “firefighting
personnel on the ground who would be aided by these additional airborne firefighting
assets.” Def. Resp. at 17 (citing Def. Resp. Ex. A ¶ 6).45
Third, contrary to Aero Spray’s argument, the Court agrees with the government
that the contract awards to Henry’s Aerial and Fletcher Flying are not “guaranteed
portions of the contract[,] which harms the total value of [Aero Spray’s] award.” Def.
Resp. at 17 (quoting Pl. MJAR at 26). The government is correct that “there is no
minimum dollar value guarantee for any IDIQ awardee” in the procurement at issue,
but rather “the only economic benefit guaranteed by the IDIQ award is listed at [RFP]
Section A2.2.” Def. Resp. at 17. That RFP section provides that the minimum guarantee
to awardees would be “aircraft, equipment, and pilot inspection during the Base year.”
AR 339 (RFP § A2.2 (“Minimum Guarantee/Maximum Quantity”)). Thus, “[t]he
inclusion of additional IDIQ awardees does not reduce the ‘guaranteed portions of the
contract’ one iota.” Def. Resp. at 18.
Finally, Aero Spray’s request for permanent injunctive relief is fatally
undermined by the following critical admission (in its motion for judgment on the
administrative record, addressing the “balance of hardships”):
Once the Disputed Awardees have Fire Boss aircraft capable
of performing the contract, the Solicitation has a method to
publish Solicitations for additional awards and those offerors
can submit offers at that point. That is what the terms of the
Solicitation allow for . . . .
Pl. MJAR at 27. This concession, of course, means that Aero Spray, in any event: (1)
could not stop the Agency from adding additional contractors (in line with the Court’s
45The Court’s consideration of such extra-record evidence is appropriate when evaluating
prejudice or the propriety of injunctive relief. See, e.g., State of N. Carolina Bus. Enters. Program v.
United States, 110 Fed. Cl. 354, 365 (2013) (“[I]t is proper to admit an affidavit to show prejudice
— even though it is not proper to show error.”); AshBritt, Inc. v. United States, 87 Fed. Cl. 344,
366–67 (2009) (“In general, it is appropriate to add evidence pertaining to prejudice and the
factors governing injunctive relief to the record in a bid protest — not as a supplement to the
AR, but as part of this Court’s record.”); Pinnacle Sols., Inc. v. United States, 137 Fed. Cl. 118, 131
(2018) (“the government need not seek to supplement the administrative record with
documents that address the injunctive relief factors”).
43
hypothetical, see supra Section II.D); and (2) even assuming the Defendant-Intervenors
should not have received initial contract awards — a question this Court does not reach
— any harm to Aero Spray would be highly limited in duration. Indeed, with respect to
the latter point, Aero Spray does not contest that both Fletcher Flying and Henry’s
Aerial have since readied at least two aircraft each, in compliance with the Solicitation.
ECF No. 43 ¶¶ 3–4; ECF No. 45.46 At this point in time, then — and given Aero Spray’s
admission about the Agency’s available contractual method for adding contractors —
there would be little point to enjoining the awards to Defendant-Intervenors or for
remanding this matter to the Agency to add awardees.47
In sum, this Court would deny Aero Spray’s request for injunctive relief even if
the Court had ruled for Aero Spray on the merits of its pending complaint.
CONCLUSION
For all the above reasons, the Court GRANTS Defendant’s and Defendant-
Intervenors’ motions to dismiss pursuant to RCFC 12(b)(1) and, in the alternative,
pursuant to RCFC 12(b)(6); the Court DENIES Aero Spray’s motion for judgment on
the administrative record. Additionally, the Court DENIES the pending motions to
supplement the administrative record as MOOT. Accordingly, the Clerk is directed to
enter JUDGMENT for Defendant and Defendant-Intervenors, dismissing this case.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
46Because the Court does not reach the merits of Aero Spray’s claims, the Court concludes that
the pending motions to supplement the administrative record are moot. Nevertheless, the
Court considers the additional documentation the parties provided, but only in terms of the
remaining injunctive relief factors addressed in this section of the Court’s decision.
47Although the Court repeats that it does not reach the merits of Aero Spray’s claims, Aero
Spray’s prejudice case is all but fundamentally undermined by its admission regarding the
onboarding process. The mere fact that the government may add contractors (and their aircraft)
— and has determined a present need for them — means that Aero Spray cannot demonstrate
that it would have remained free from additional competition at this point in the performance
of its IDIQ contract. See Henry’s MJAR at 20 (correctly highlighting, in the Court’s view, that
Aero Spray’s claimed injury is “narrow[ed] . . . to competing for task orders with contractors
who did not have planes in contract configuration at some arbitrary, [Aero Spray]-selected time
before the post-award inspection necessary” or “even smaller than that” to the extent it would
suffer such an injury only “until BLM solicits new proposals” and awards new contracts).
44