Dyncorp International LLC v. United States ( 2021 )

In the United States Court of Federal Claims
DYNCORP INTERNATIONAL LLC,
Plaintiff,
No. 20-cv-1293 C
v.
Filed Under Seal: February 5, 2021
THE UNITED STATES,
Publication: February 16, 2021 1
Defendant,
and
CACI TECHNOLOGIES, LLC f/k/a CACI
TECHNOLOGIES, INC.,
Intervenor-Defendant.
Scott Franklin Lane, Thompson Coburn LLP, St. Louis, Missouri for Plaintiff. With him on the
briefs are Katherine S. Nucci; Jayna Marie Rust; Edward W. Gray, Jr., Thompson Coburn LLP.
Vijaya Surampudi, United States Department of Justice, Civil Division, Washington, D.C. for
Defendant. With her on the briefs are Jefferey Bossert Clark, Assistant Attorney General, Civil
Division; Robert E. Kirschman, Jr., Director, Commercial Litigation; Douglas K Mickle, Assistant
Director, Commercial Litigation, Washington, D.C.; Stephen Hernandez, U.S. Army Legal
Services Agency, Fort Belvoir, VA.
Craig S. King, Arent Fox LLP, Washington, D.C. for Intervenor-Defendant. With him on the
briefs are Richard J. Webber and Travis L. Mullaney, Arent Fox LLP, Washington, D.C.
MEMORANDUM AND ORDER
In this post-award bid protest, Plaintiff DynCorp International LLC (DynCorp) challenges
the United States Army's (Army or Government) decision to award a task order to CACI
Technologies, LLC f/k/a CACI Technologies, Inc. (CACI) under the Global Intelligence Support
1
This Memorandum and Order was filed under seal in accordance with the Protective Order
entered in this case (ECF No. 17) and was publicly reissued after the parties informed this Court
that no redactions would be necessary for public release. (ECF No. 50.) The sealed and public
versions of this Memorandum and Order are identical, other than the publication date and this
footnote.
Services (GISS) multiple-award indefinite-delivery, indefinite-quantity (IDIQ) contract vehicle.
See Complaint (ECF No. 1) (Compl.) at 1. DynCorp claims that the Army exceeded the scope of
the GISS IDIQ contract by awarding it to CACI Technologies, LLC (hereinafter CACI, LLC)—
an allegedly different entity than CACI Technologies, Inc. (hereinafter CACI, Inc.), which
submitted a proposal for the award. Compl. ¶¶ 130-33.
Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (Rules
or RCFC), Defendant United States and Intervenor-Defendant CACI each move the Court to
dismiss Plaintiff’s Complaint for lack of jurisdiction, alleging that the Federal Acquisition
Streamlining Act (FASA) prohibits the protest of the award. See Defendant’s Motion to Dismiss
(ECF No. 29) (Def. Mot.) at 1; Intervenor’s Amended Motion to Dismiss (ECF No. 28) (Int.-Def.
Mot.) at 2 (collectively, Defendants’ Motions to Dismiss).
In response, DynCorp argues that, because the Army’s task order award was made to an
entity which was not an awardee of the IDIQ contract, the task order exceeded the scope of the
GISS IDIQ contract and, therefore, is not barred by FASA. See Plaintiff’s Response and
Opposition to Defendants’ Motions to Dismiss (ECF No. 38) (Pl. Resp.) at 16.
On November 11, 2020, the Court held oral argument on Defendants’ Motions to Dismiss.
See Nov. 11, 2020 Tr. (ECF No. 45). Due to the sensitive and important subject matter of the
award at issue and the fast-approaching end of the voluntary stay in this action, the Court granted
Defendants’ Motions to Dismiss at oral argument and provided a summary of reasons for its
decision on the record. Nov. 11, 2020 Tr. at 71:18-72:20.
Following oral argument, the Court memorialized its rulings in an Order granting
Defendants’ Motions to Dismiss and noted that a separate Memorandum and Order would be
2
forthcoming. See Nov. 11, 2020 Order (ECF No. 43). 2 Consistent with this Court’s November
11, 2020 Order, the present Memorandum and Order explains more fully the Court’s reasons for
dismissing Plaintiff’s Complaint for lack of subject-matter jurisdiction.
BACKGROUND
I. PROCUREMENT HISTORY
On September 12, 2014, DynCorp International LLC (Contract No. W911W4-14 D-0004)
and CACI Technologies, Inc. (Contract No. W911W4-14-D-0003) were awarded contracts under
the GISS IDIQ contract. Tab 1 at Admin. R. (AR) 2 (CACI’s Notice of Successful Offer); Tab 2
at AR 101 (DynCorp’s Notice of Successful Offer). At that time, GISS IDIQ contract awards had
a ceiling of $5.04 billion. Tabs 1 at AR 3; 2 at AR 102. The “scope” of the services and products
anticipated to be purchased under the GISS IDIQ contract, through task orders, was the following:
C.1.2 Objective / Scope.
The purpose of this acquisition is for INSCOM to provide more responsive
acquisition of services for current and future Army intelligence, security, and
information operations requirements and related support services. These services
will supply resources that support a breadth and depth of various missions including
but not limited to: intelligence analysis, electronic systems, Intelligence
Surveillance and Reconnaissance (ISR) Systems, security systems, Quick Reaction
Capability (QRC) systems, prototype intelligence hardware/software suites,
facilities that are developed, deployed, maintained and repaired at the highest state
of readiness, and business functions consistent with Army directives and standards.
Tab 1 at AR 17.
On September 12, 2018, the Army issued the Request for Task Order Proposal (RTOP),
W911W4-18-ER02, for services to be provided under the GISS IDIQ contract to support the Army
2
In that Order, the Court also denied as moot all other pending motions including: Plaintiff’s
Motion for a Preliminary Injunction (ECF No. 4); Defendant’s Motion for Judgment on the
Administrative Record (ECF No. 36); CACI’s Motion for Judgment on the Administrative Record
(ECF No. 35); Plaintiff’s Cross-Motion for Judgment on the Administrative Record (ECF No. 41);
and Plaintiff’s Motion to Strike (ECF No. 42).
3
Intelligence and Security Command (INSCOM) G-4 unit. Compl. ¶ 1; Tab 25 at AR 539.3 The
RTOP was for a single task order on a cost-plus-fixed-fee basis for labor and a cost-no-fee basis
for other direct costs. Tab 25 at AR 541-47. According to the RTOP, the task order was “for
services to support tactical, operational, and strategic intelligence units, personnel and their ground
and aerial intelligence equipment and operations facilities and infrastructure and may occur from
multiple locations simultaneously.” Id. at AR 540.
DynCorp and CACI each submitted proposals in response to the RTOP on October 12,
2018. Tabs 27 and 27.1 at AR 1338.1-1376.21 (CACI’s Proposal); Tab 28 at AR 1377-1415
(DynCorp’s Proposal). Both parties then submitted final proposal revisions in early-January 2020.
Tab 64 at AR 2618-2959 (CACI’s Final Proposal Revision (January 6, 2020)); Tab 65 at AR 2960-
2960.268 (DynCorp’s Final Proposal Revisions (January 3, 2020)). In both its initial proposal and
its proposal revisions, CACI used the name CACI Technologies, Inc. See e.g., Tabs 27 at AR
1339; 64 at AR 2618. On May 22, 2020, the Army awarded the task order to CACI Technologies,
Inc. Tabs 72 (CACI’s Notice of Contract Award) and 72.1 (CACI’s Task Order Signature Page)
at AR 3406-3406.1.
II. NAME CHANGE
Previously, on November 27, 2017, CACI notified the Government of its intent to convert
from a corporation to a limited liability company. Tab 103.2 at AR 5127. On December 31, 2017,
CACI Technologies, Inc. converted to CACI Technologies, LLC under Virginia law. Tab 98 at
AR 4867-70. Shortly thereafter, on March 13, 2018, CACI sent DCMA a “Contracts Conversion
Approval Package,” requesting that the Corporate Administrative Contracting Officer (CACO) at
3
The Solicitation was amended six times. The final solicitation, Amendment 06, issued on
December 11, 2019. Tab 61 at AR 2541.
4
DCMA recognize this conversion. See id. at AR 4798-4878. In its Contracts Conversion Approval
Package, CACI informed DCMA of the key facts pertaining to the entity’s conversion from CACI,
Inc. to CACI, LLC. 4 Id. at AR 4798. Specifically, CACI represented that the new entity, CACI,
LLC retained all the assets, obligations, and liabilities of CACI, Inc., and that CACI, LLC would
fully perform all obligations existing under CACI, Inc.’s current contracts with the Government.
Id. at AR 4800. CACO and DCMA legal counsel reviewed CACI’s conversion request, finding
that:
Since CACI intends to convert its subsidiaries listed above from a corporation to a
limited liability company (LLC) and each of these companies will continue to exist
through the conversion as the same legal entity without interruption (same EINs,
CAGE codes, etc.) these activities which will result in a Change of Name pursuant
to FAR 42.1205. The name of the Companies will change from “Inc.” to “LLC”
as reflected in the table above. The CACO has reviewed the contractor’s
conversion packages for the requirements of FAR 42.1205, Agreement to
Recognize Contractor Change of Name.
The CACO confirmed the contractor’s conversion packages each contained three
signed copies of the Change-of-Name Agreement along with state documents
effecting the conversion, opinion of the contractor’s legal counsel stating the
change of name was properly effected, and a list of all affected contracts. Assigned
legal counsel completed review of the conversion packages on July 20, 2018. The
only item legal counsel noted that needed correction was the date at the end of the
first sentence, which should have be [sic] the date of the conversion. The contractor
updated the date at the end of the first sentence to the date of the conversion on both
the electronic and hard copies and resubmitted them on July 24, 2018.
Based on my evaluation of the contractor’s conversion packages and results the
results of legal counsel’s review and subsequent revision by the contractor, I believe
it is in the best interest of the Government to recognize a successor in interest to the
Government contracts in accordance with FAR 42.1204(a), (c), (d), and (h) for a
corporation. Accordingly, I will execute the attached Change-of-Name conversion
agreements and distribute to related parties.
Tab 103.1 at AR 5127-28 (DCMA’s Memorandum for Record for CACI, Inc.).
4
DCMA is the agency of the administrative contracting officer authorized pursuant to FAR
42.1202 to execute a change-of-name agreement with respect to CACI’s contracts on behalf of the
entire Government.
5
On April 6, 2020, just over two years after CACI submitted its Contracts Conversion
Approval Package, the CACO approved CACI’s request and modified CACI’s contracts with the
Government. Tabs 98 at AR 4802; 102.1 at AR 5082.2. Subsequently, CACI and DCMA entered
into a “Conversion and Name Change Agreement” (Name Change Agreement) which states that
the Government and CACI agree to seven primary points, including the following:
• CACI Technologies, LLC agrees to be bound by and to perform each
contract [with DOD including the Army GISS multiple-award contract at
issue in this protest referred to collectively as “the Contracts”] in accordance
with the conditions contained in the contracts. CACI Technologies, LLC
also assumes all obligations and liabilities of, and all claims against, CACI
Technologies, Inc. under the contracts as if CACI Technologies, LLC were
the original party to the contracts.
• CACI Technologies, LLC ratifies all previous actions taken by CACI
Technologies, Inc. with respect to the contracts, with the same force and
effect as if the action had been taken by CACI Technologies, LLC.
Tab 98 at AR 4800-03 (numbering in original replaced with bullet points). The Name Change
Agreement also gave retroactive effect to the name change, effective December 31, 2017.
Specifically, the Agreement stated:
• The Government recognizes CACI Technologies, LLC as CACI
Technologies, Inc.’s successor in interest in and to the contracts. Through
the conversion, CACI Technologies, LLC became entitled to all rights,
titles, and interests of CACI Technologies, Inc., in and to the Contracts as
if CACI Technologies, LLC were the original party to the contracts. The
Contracts covered by this Agreement are amended by substituting the name
“CACI Technologies, LLC” for the name “CACI Technologies, Inc.”
wherever it appears in the Contracts, effective December 31, 2017.
....
• All payments and reimbursements previously made by the Government to
CACI Technologies, Inc., and all other previous actions taken by the
Government under the contracts, shall be considered to have discharged
those parts of the Government’s obligations under the contracts. All
payments and reimbursements made by the Government after the effective
date of this agreement in the name of or to CACI Technologies, Inc. shall
have the same force and effect as if made to CACI Technologies, LLC, and
6
shall constitute a complete discharge of the Government’s obligations under
the contracts to the extent of the amounts paid or reimbursed.
Id. at AR 4801 (numbering in original replaced with bullet points).
The Name Change Agreement identified multiple contracts that CACI, Inc. held with the
Government, including the GISS IDIQ contract. Id. at AR 4815-16. The Name Change
Agreement concluded that “[t]he Contracts shall remain in full force and effect, except as modified
by this Agreement . . . .” Tab 98 at AR 4802; see also Tab 102.1 at AR 5082.1-3 (June 4, 2020
Mass Modification Incorporating the Name Change Agreement) (“This agreement accomplishes
a change of name/conversion only and all rights and obligations of the Government and of the
Contractor are unaffected by this change.”).
On June 22, 2020, CACI updated its registration in the System for Award Management
(SAM) to reflect the name “CACI Technologies, LLC.” See Tab 86 at AR 4513 (CACI SAM
Registration). On August 25, 2020, the Army modified the name on CACI’s GISS IDIQ contract
to reflect the name CACI Technologies, LLC. Tab 103.1 at AR 5125-26.
During the Government’s reviewing and approval period, which took over two years, the
Army and CACI continued to use “CACI Technologies, Inc.” as the name of the legal entity that
held the GISS IDIQ contract. See e.g., Tabs 56.1 at AR 2370.1 (October 21, 2019 Final Proposal
Revision Using the Name CACI Technologies, Inc.); 64 at AR 2618 (January 6, 2020 Final
Proposal Revisions Using the Name CACI Technologies, Inc.); 72 at AR 3406 (May 22, 2020
Notice of Contract Award Using the Name CACI Technologies, Inc.). The DUNS number
057364507 and CAGE code 8D014 remained unchanged between the name changes from CACI
7
Technologies, Inc. to CACI Technologies, LLC. 5 CACI's SAM registration remained active for
those CAGE and DUNS codes throughout the RTOP procurement.
III. GAO PROTESTS
DynCorp filed three GAO protests involving this RTOP. First, on May 28, 2019, DynCorp
filed a GAO protest challenging various aspects of the Army’s evaluation and source selection
decisions and alleging the Army conducted misleading discussions with offerors. Tab 42 at AR
1881-1913. GAO dismissed DynCorp’s protest pursuant to the Army’s pending corrective actions.
Tab 49 at AR 2146. Second, on October 21, 2019, DynCorp filed a GAO protest alleging that
certain revisions in the RTOP were unduly restrictive and that other terms in the RTOP were
ambiguous. Tab 57 at AR 2371-2536. GAO again dismissed the protest because the Army granted
the relief DynCorp was seeking. Tab 60 at AR 2540. Third, on June 16, 2020, DynCorp filed a
GAO protest, against the same task order award in the case at bar. See Tab 80 at AR 4061.
In its third GAO protest, DynCorp argued, inter alia, that CACI was ineligible for the task
order award because CACI, Inc., the company that held the underlying GISS IDIQ contract, ceased
to exist in December 2017, when it converted to CACI, LLC. See Tabs 80 at AR 4062, 4081-84;
83 at AR 4340-43. Therefore, according to DynCorp, CACI, Inc. could not submit a proposal or
enter into a task order under the GISS IDIQ contract. Id.
GAO rejected these arguments and found that the conversion and name change were
properly effected and that the award was appropriate. Tab 94 at AR 4762-78 (DynCorp Int’l, LLC,
5
“[Commercial and Government Entity or (CAGE)] codes are assigned to discrete business
entities by the Defense Logistics Agency and are used to dispositively establish the identity of a
legal entity for contractual purposes . . . . Similarly, DUNS numbers are established by Dunn &
Bradstreet Information Services for purposes of establishing the precise identification of an offeror
or contractor . . . . CAGE codes and DUNS numbers are used to identify the entity that is the
offeror for a given procurement.” Raymond Express Int'l, LLC, B-409872.3 at 6 (Comp. Gen.
Sept. 11, 2015) (internal citations omitted).
8
B-417611.7 et al, 2020 CPD ¶ 342 (Comp. Gen. Sept. 24, 2020)) (GAO Decision). GAO reasoned
that when CACI submitted its final proposal revision in January 2020, DCMA had not finalized
the conversion and name change agreement; and, consequently, the Government still viewed
CACI, Inc. as the holder of its existing government contracts. GAO Decision at AR 4765-68.
Therefore, the GAO found that CACI acted appropriately when it used CACI, Inc. as the entity
name on its proposal in the RTOP procurement. Id. at AR 4766-68. The GAO also noted that,
because CAGE codes on CACI’s GISS contract and CACI’s proposal remained the same, the
agency was well aware of the offeror’s identity. Id. at AR 4767. Accordingly, on September 24,
2020, the GAO denied DynCorp’s protest. Id. at AR 4778.
IV. COURT OF FEDERAL CLAIMS PROCEDURAL HISTORY
Following the GAO’s decision, on September 30, 2020, DynCorp filed the present bid
protest against the Army’s award to CACI under RTOP No. W911W4-18-R-ER02. Compl. ¶ 1.6
At that time, DynCorp moved this Court for a temporary restraining order and a preliminary
injunction to prevent the Government from proceeding with the task order award. See Plaintiff’s
Application for a Temporary Restraining Order (ECF No. 3); Plaintiff’s Motion for a Preliminary
Injunction (ECF No. 4). On October 1, 2020, during the initial scheduling conference, the Court
denied Plaintiff’s request for a temporary restraining order. Oct. 1, 2020 Tr. (ECF No. 47) at 35:5-
7; Nov. 11, 2020 Order (ECF No. 43). At that initial status conference, CACI also informed the
Court of its desire to file a motion to dismiss for lack of jurisdiction prior to reaching the merits of
DynCorp’s protest. Id. at 12:1-8. The Court agreed with Intervenor-Defendant that jurisdiction is
6
As a result of DynCorp’s third GAO protest, the GAO made several determinations regarding
various aspects of the Army’s evaluation of proposals and source selection decision. GAO
Decision at AR 4762. However, DynCorp does not challenge the GAO’s decision on those
grounds before this Court. Instead, the Complaint contains two counts concerning CACI’s name
change and the scope of the underlying GISS IDIQ. Compl. ¶ 114-37.
9
a threshold issue that should be decided before reaching the merits; however, in light of the
important and time sensitive nature of the contract at issue, the Court ordered the parties to have
overlapping briefing schedules for Defendants’ Motions to Dismiss, Plaintiff’s Motion for a
Preliminary Injunction, and the Parties’ Cross-Motions for Judgment on the Administrative
Record. See ECF No. 18. 7 The Administrative Record was filed on October 14, 2020. See ECF
Nos. 27, 27-1, 27-2, 27-3, 27-4, 27-5. On October 21, 2021, the Defendants each filed a motion
to dismiss for lack of jurisdiction. Further amendments were made to the Administrative Record
on October 27, 2020. See ECF Nos. 37, 37-1. On November 2, 2020, Plaintiff filed its response
to Defendants’ Motions, and Defendants subsequently filed their replies. See Pl. Resp.; Intervenor-
Defendant’s Reply to Plaintiff’s Opposition to the Motions to Dismiss (Int.-Def. Reply) (ECF No.
39); Defendant’s Reply in Support of Its Motion to Dismiss (Def. Reply) (ECF No. 40). After
briefing on Defendants’ Motions to Dismiss concluded, the Court held oral argument on November
11, 2020 pertaining to Defendants’ Motions to Dismiss. See generally Nov. 11, 2020 Tr. (ECF
No. 45). During oral argument, the Court granted Defendants’ Motions to Dismiss and provided
a summary of reasons for its decision on the record. Nov. 11, 2020 Tr. at 71:18-72:20. After oral
argument the Court issued an Order memorializing its holding and denying all other pending
motions as moot. See Nov. 11, 2020 Order.
STANDARD OF REVIEW
Whether this Court has jurisdiction to decide the merits of a case is a threshold matter. See
PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007). When deciding a Rule
12(b)(1) motion to dismiss, a court must assume all the undisputed facts in the complaint are true
7
Pursuant to the parties’ requests, the Court amended its Scheduling Order multiple times. See
ECF Nos. 26, 31, 33.
10
and draw reasonable inferences in the non-movant's favor. Acevedo v. United States, 824 F.3d
1365, 1368 (Fed. Cir. 2016). Further, the plaintiff bears the burden of establishing facts sufficient
to invoke this Court's jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). In determining whether a plaintiff has met
this burden, courts may look “beyond the pleadings and ‘inquire into jurisdictional facts’ in order
to determine whether jurisdiction exists.” Lechliter v. United States, 70 Fed. Cl. 536, 543 (2006)
(quoting Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)).
DISCUSSION
FASA generally limits this Court’s jurisdiction and bars protests “in connection with the
issuance or proposed issuance of a task or delivery order.” 10 U.S.C. § 2304c(e) 8; see also FAR
16.505(a)(10). An exception to the FASA bar exists where a task order increases the “scope,
period, or maximum value of the contract under which the order is issued.” 10 U.S.C. §
9
2304c(e)(1)(A); see also FAR 16.505(a)(10). Here, however, DynCorp’s protest is “in
connection with” DCMA’s task order, and the protest does not fall within the scope exception to
the FASA bar.
In their Motions to Dismiss, the Government and CACI argue that DynCorp’s protest is
barred pursuant to FASA because the protest is clearly connected to the issuance of the task order
and because the relief DynCorp seeks demonstrates that the issuance of the task order is at the
heart of the protest. Int.-Def. Mot. at 7; Def. Mot. at 10-11. DynCorp counters, arguing that the
8
For procurements at the Department of Defense, National Aeronautics and Space Administration,
and the Coast Guard, FASA is codified at 10 U.S.C. § 2304c(e). For procurements at all other
agencies, FASA is codified at 41 U.S.C. § 4106(f).
9
A protest of an order valued in excess of $25,000,000 is another exception to the FASA bar; the
GAO has exclusive jurisdiction over such protests. 10 U.S.C. § 2304c(e)(1)(B), (2).
11
task order here was awarded to CACI, Inc., an entity that did not hold a GISS IDIQ contract as of
the date of award. Compl. ¶ 26-27. As explained below, DynCorp’s argument is without merit.
I. “IN CONNECTION WITH” THE ISSUANCE OF A TASK ORDER
In 2014, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) squarely
addressed the meaning of FASA’s “in connection with” language. SRA Int'l, Inc. v. United States,
766 F.3d 1409 (Fed. Cir. 2014). In SRA, a protester alleged that the General Services
Administration (GSA) had violated the law by waiving an organizational conflict of interest in the
context of a task order award. Id. at 1410. Because GSA’s waiver was discretionary and occurred
102 days after GSA had issued the task order, the Court of Federal Claims held that it had
jurisdiction. Id. at 1412. On appeal, the Federal Circuit disagreed, holding that the Court of
Federal Claims lacked jurisdiction because the protest of the waiver was “in connection with the
issuance” of the task order. Id. at 1413. The Federal Circuit held that FASA’s plain language
requires a broad application of the jurisdiction preclusion, reasoning that FASA’s language does
not “carve[] out” exceptions for either discretionary actions or actions temporally disconnected
from the task order. Id. Instead the Federal Circuit explained, “[t]he statutory language of FASA
is clear and gives the court no room to exercise jurisdiction over claims made in connection with
the issuance or proposed issuance of a task order delivery.” Id. (internal quotation omitted). The
Federal Circuit further explained that, even “if the protestor points to an alleged violation of statute
or regulation[,] the court still has no jurisdiction to hear the case if the protest is in connection with
the issuance of a task order.” Id. In addition to the FASA bar’s broad plain language, the Federal
Circuit also noted that the relief the protester sought further demonstrated the connection between
the protest and issuance of the task order. Id. at 1414. Because the protestor in SRA sought
rescission of the task order, the Federal Circuit held that this desired relief supported the conclusion
12
that “[the] protest is actually with the issuance of the task order, rather than the waiver alone.” Id.(citations omitted).
Following SRA, courts have continued to find that a broad array of protests were made “in
connection with” a task order. See, e.g., Guam Industrial Services, Inc. v. United States, 122 Fed.
Cl. 546, 556 (2015) (finding “cancelling a task order under an IDIQ contract is ‘in connection
with’ a task order”); Nexagen Networks, Inc. v. United States, 124 Fed. Cl. 645, 653 (2015)
(denying protest challenging the cancellation of a task order and the corrective action of issuing a
different task order); Akira Technologies, Inc. v. United States, 145 Fed. Cl. 101, 107 (2019)
(“conduct[ing] a noncompetitive sole-source procurement via task order modification . . . is ‘in
connection with’ the ‘issuance’ of a task order” (emphasis in original)); Insap Services, Inc. v.
United States, 145 Fed. Cl. 653, 655 (2019) (bundling services prior to a task order solicitation is
in connection with the task order).
Here, DynCorp’s challenge involving CACI’s name change and its subsequent award of
the task order is “in connection with” the Army’s award of the task order to CACI. This is
immediately apparent in the first paragraph of DynCorp’s Complaint which states, “[t]his action
protests the [Army’s] decision to award a task order to CACI Technologies, Inc. under Request
for Task Order Proposals No. W911W4-18-R-ER02.” Compl. ¶ 1. Further, DynCorp appears to
acknowledge as much in its response to its motion stating “[DynCorp] is objecting to the Army’s
award decision under the RTOP and is alleging violations of statute and regulation in connection
therewith . . . .” Pl. Resp. at 8. It is clear from DynCorp’s own statements that the award of the
task order is the direct and immediate cause of DynCorp’s protest. Indeed, without the award of
the task order, DynCorp would not have any challenge. See SRA Int'l Inc., 766 F.3d at 1413 (FASA
barred an OCI waiver made after the issuance of a task order because the waiver “was directly and
13
causally connected to issuance of [the task order]”); see also Mission Essential Pers., LLC v.
United States, 104 Fed. Cl. 170, 179 (2012) (denying protest where the issuance of a task order
was the “but for” cause of the protest).
The relief DynCorp seeks further evinces that its protest is “in connection with the issuance
of a task order.” Here, DynCorp is seeking an injunction prohibiting the Army from proceeding
with the performance of the task order awarded to CACI. Compl. at 25. This is the same relief
that the SRA protestor sought, that, the Federal Circuit explained, demonstrated that the protest
was “in connection with” the issuance of a task order. See SRA Int’l Inc., 766 F.3d at 1414.
Finally, even if CACI was not a legal entity at the time of the task order award, DynCorp’s
protest is still “in connection with” the Army’s award of a task order to CACI. As the Federal
Circuit underscored in SRA, jurisdiction does not exist even where a party alleges a statutory or
regulatory violation if the protest is still connected to the issuance of a task order. Id. at 1413; see
also Akira Techs., Inc., 145 Fed. Cl. at 108 (“FASA bars protests over procurement decisions
connected to the issuance of task or delivery orders, including decisions about the assignment of
services to certain contractors . . .”).
Plaintiff argues that the Army’s award of a task order is not in connection with the issuance
of a task order because CACI, LLC did not hold the GISS IDIQ contract. Compl. ¶ 26; Pl. Resp.
at 8. To support this assertion, Plaintiff relies on AudioCARE Sys., B-283985, 2000 CPD ¶ 24
(Comp. Gen. Jan. 31, 2000) at 2, n.2. In that case, the GAO permitted a protest to a delivery order
because “the agency was not simply selecting an indefinite-delivery, indefinite-quantity (ID/IQ)
contractor or [Blanket Purchase Agreement (BPA)] holder for issuance of a delivery order; instead,
it conducted a competition between a vendor that was [an ID/IQ contractor] and one that was not.”
14
Id. Thus, the GAO concluded that “[w]here a competition is held between an ID/IQ contractor (or
BPA holder) and another vendor, we do not believe the statutory bar on protests applies.” Id.
DynCorp’s reliance on AudioCARE is misplaced. As an initial matter, this Court is not
bound by decisions of the GAO. See Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 n.4
(Fed. Cir. 2009); see also UnitedHealth Military & Veterans Servs., LLC v. United States, 132
Fed. Cl. 529, 560 (2017) (citing CBY Design Builders v. United States, 105 Fed. Cl. 303, 341
(2012)). Additionally, AudioCARE predates SRA’s broad interpretation of the “in connection
with” language, which undermines AudioCARE’s persuasive value. Finally, AudioCARE is
distinguishable. In AudioCare, the competition was purposely expanded to include non-IDIQ
contract holders. AudioCARE Sys., B-283985 at 2, n.2; see also LBM, Inc., B-290682, 2002 CPD
¶ 157 (Comp. Gen. Sept. 18, 2002) (“[FASA] was not intended to, and does not, preclude protests
that timely challenge the transfer and inclusion of work [to or from] ID/IQ contracts without
complying with applicable laws or regulations, but was to preclude protests in connection with the
actual or proposed issuance of an individual task or delivery orders under those contracts.”). In
contrast, the competition of the award of the task order at issue here was limited to current GISS
IDIQ contract holders; and, as explained below, CACI in fact held the GISS IDIQ contract.
For these reasons, the Court finds that DynCorp’s protest is “in connection with” the
issuance of a task order, and accordingly that the FASA bar applies.
II. TASK ORDER SCOPE EXCEPTION
Since DynCorp’s protest is “in connection with” the issuance of a task order, the Court
must determine whether the protest meets the narrow FASA scope exception. Under 10 U.S.C. §
2304c(e)(1)(A), even when a protest is in “in connection with the issuance of a task order,” a
protest is nonetheless permitted to proceed if the task order increases the scope, period, or
15
maximum value of the IDIQ contract under which the task order is issued. See Solute Consulting
v. United States, 103 Fed. Cl. 783, 791 (2012).
Notably, DynCorp does not argue that the task order exceeded the IDIQ contract’s
statement of work. See Nov. 11, 2020 Tr. at 43:24-44:4 (DynCorp’s counsel confirming that the
issue is not, as the Court described, “about a change in actual work”). Instead, DynCorp argues
that the Army exceeded the scope of the GISS IDIQ contract by awarding the task order to an
entity that did not hold a GISS IDIQ contract. Pl. Resp. at 10-11. In support of this protest ground,
DynCorp explains, “it is well established that ‘[w]here an agency awards multiple-award IDIQ
contracts, orders may only be placed with the firms who received one of the contracts.’” Id.(quoting Engility Corp., B-416650 et al., 2018 CPD ¶ 385 (Comp. Gen. Nov. 7, 2018) at 2. In
advancing this argument, DynCorp argues that the term “scope” is not limited to “scope of
services.” Id. at 11.
Using Plaintiff’s definition, any allegation of change between a task order and IDIQ
contract, under which the task order was issued, could circumvent the FASA jurisdictional bar.
See Pl. Resp. at 13 (first citing definition of Scope, Merriam-Webster’s Collegiate Dictionary,
available online at https://merriam-webster.com/dictionary/scope (last accessed Oct. 28, 2020)
(defining scope as “intention” or “object”); and then citing FAR 15.202 (“The agency may publish
a presolicitation notice . . . that provides a general description of the scope or purpose of the
acquisition . . .”)). This interpretation is untenable for several reasons.
DynCorp misunderstands the narrowness of FASA’s “scope” exception. Read in isolation,
DynCorp’s broad definition of scope initially seems plausible; however, the exception’s context
within FASA is important and necessitates a narrow reading, limiting “scope” to the statement of
work in the contract. See ClearCorrect Operating, LLC v. Int’l Trade Comm’n, 810 F.3d 1283,
16
1296 (Fed. Cir. 2015) (“The words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.” (quoting King v. Burwell, 135 S. Ct. 2480, 2492
(2015)); A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 24, p. 167
(2012) (“Context is a primary determinant of meaning.”). The term “scope” describes an exception
to FASA’s jurisdictional bar; consequently, its function as an exception requires a narrow reading.
See Baude v. United States, 955 F.3d 1290, 1301 (Fed. Cir. 2020) (“Because an exception to a
general statement of policy is usually read narrowly in order to preserve the primary operation of
the provision, we decline the government’s invitation to interpret [the phrase] ‘unusual
circumstances’ so broadly as to operate to the farthest reach of its linguistic possibilities in a
manner that contravenes the statutory design.” (internal quotations omitted) (quoting Maracich v.
Spears, 570 U.S. 48, 60 (2013)). In sum, the “scope” exception to the FASA jurisdictional bar
rule cannot be so broad as to swallow the rule; adopting DynCorp’s argument would require the
Court to violate this basic tenet of statutory construction.
Reading the scope exception within the statute’s broader meaning reflects that the scope
exception is limited to the contract’s the statement of work. The relevant portion of FASA reads
as follows:
(e) Protests.--(1) A protest is not authorized in connection with the issuance or
proposed issuance of a task or delivery order except for--
(A) a protest on the ground that the order increases the scope, period, or maximum
value of the contract under which the order is issued; or
(B) a protest of an order valued in excess of $25,000,000.
(2) Notwithstanding section 3556 of title 31, the Comptroller General of the
United States shall have exclusive jurisdiction of a protest authorized under
paragraph (1)(B).
10 U.S.C. § 2304c(e). The term “scope” is preceded by the dictate that “[a] protest is not
authorized in connection with the issuance or proposed issuance of a task or delivery . . . .” 10
17
U.S.C. § 2304c(e)(1). As the Federal Circuit noted in SRA, the “in connection with” language is
interpreted broadly. 766 F.3d at 1413. This broad language demonstrates an intent to streamline
the federal procurement process to allow agencies to issue task orders within the scope, period,
and maximum value of the already competed IDIQ contract, from which the task order was issued,
without delay from protests. See A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 133
(2006); Glob. Computer Enterprises, Inc. v. United States, 88 Fed. Cl. 350, 405, modified on
reconsideration, 88 Fed. Cl. 466 (2009). DynCorp’s attempt to shoehorn its protest of CACI’s
name change into a scope challenge would effectively eviscerate the primary purpose behind the
broad FASA jurisdictional bar. See United Sav. Ass'n of Texas v. Timbers of Inwood Forest
Assocs., Ltd., 484 U.S. 365, 371 (1988) (interpretation must produce “a substantive effect that is
compatible with the rest of the law” (internal citation omitted)).
Finally, Congress’s use of the term “scope” elsewhere in FASA reflects its intent to limit
scope to “the statement of work.” In 10 U.S.C. § 2304a(b), FASA details the requirements for
task order solicitations. The solicitation requirements in section 2304a(b) parallel the exceptions
to the FASA jurisdictional bar listed in section 2304c. Compare 10 U.S.C. § 2304a(b)(1)-(3)
(requiring the contract’s (1) period, (2) maximum quantity or dollar amount for service or property,
and (3) statement of work or specifications) (emphasis added) with 10 U.S.C. § 2304c(d) (barring
protests in connection with the issuance of a task order except for protests arguing that the order
increases the contract’s (1) scope, (2) period, or (3) maximum value). This parallel is informative
because section 2304a(b) characterizes “statement of work” as a “description that reasonably
describes the general scope, nature, complexity and purposes of the services or property to be
procured under the contract.” 10 U.S.C. § 2304a(b) (emphasis added). Congress clearly intended
to cabin “scope” to the underlying contract’s “statement of work.” Accordingly, this Court must
18
interpret the term scope consistently throughout the act. See Sorenson v. Sec’y of Treasury of U.S.,
475 U.S. 851, 860 (1986) (“The normal rule of statutory construction assumes that ‘identical words
used in different parts of the same act are intended to have the same meaning.’” (quoting Helvering
v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1932)); Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718, 1723 (2017) (unanimous decision) (explaining that a court must have a
“persuasive reason” to “abandon our usual presumption that ‘identical words used in different parts
of the same statute’ carry ‘the same meaning’” (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 34
(2005))).
In its response, DynCorp attempts to support its expansive scope definition arguing, “other
judges on this court have acknowledged that for FASA purposes, the ‘scope’ of the contract
encompasses areas beyond a scope of work.” Pl. Resp. at 14. DynCorp offers one citation in
support of that contention—a footnote in Innovative Mgmt. Concepts, Inc. v. United States, 119
Fed. Cl. 240, 245 n.7 (2014). DynCorp incorrectly relies on Innovative Mgmt. Concepts, Inc.
There, the court found that it did not have jurisdiction pursuant to FASA because the protestor did
not challenge the terms of the underlying IDIQ contract and instead challenged the task order
award. Id. The court concluded that it lacked jurisdiction under FASA despite claims that the task
order exceeded the scope of the IDIQ contract. Id. at 245. The footnote DynCorp cites did not
discuss scope, but rather addressed the merits of the protestor’s argument, under a scenario where
the court, arguendo, had jurisdiction. Id. at 245 n.7.
Other Court of Federal Claims cases have similarly rejected DynCorp’s proposed
expansive definition of “scope”. See Solute Consulting, 103 Fed. Cl. at 791. For example, in
Solute, the protester argued that the awardee’s task order proposal departed from the underlying
contract’s accounting system, subcontracting plan, and key personnel requirements. Id. The
19
protestor argued, therefore, that awarding a task order to the awardee exceeded the scope of the
underlying contract. Id. The court rejected this argument, holding that not every difference
between a task order and the underlying contract amounts to an increase in scope. Id. The court
reasoned that such an expansive interpretation of the scope exception to the FASA jurisdictional
bar would render the bar meaningless because “all protests related to task orders would fit within
the ‘increases the scope’ exception set forth in 10 U.S.C. § 2304c(e)(1)(A).” Id. Instead, the court
found that “scope” in section 2304c(e)(1)(A) refers to the work authorized by the underlying IDIQ
contract. Id. at 792-93. Relying on the Federal Circuit’s decision in AT&T Communications, Inc.
v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993), the court held that the proper test for determining
whether a “[task] order increases the scope . . . of the contract under which the order is issued” is
whether the work called for in the task order “generally falls within the scope of the original
procurement [so that] potential bidders would have expected it to fall within the contract's changes
clause.” Id. at 791-93.
This Court agrees with the reasoning in Solute. The Federal Circuit in AT&T articulated
the proper test for determining whether the task order at issue exceeds the scope of the GISS IDIQ.
In AT&T, a case decided shortly before FASA was enacted, the Federal Circuit addressed the issue
of whether a contract modification can circumvent the Competition in Contracting Act (CICA)
statutory competition requirement by “exceeding the scope” of the underlying procurement. 10 In
addressing this issue, the Federal Circuit borrowed from its cardinal change jurisprudence,
explaining:
[A] cardinal change . . . occurs when the government effects an alteration in the
work so drastic that it effectively requires the contractor to perform duties
materially different from those originally bargained for. By definition, then a
10
The Court decided AT&T in July 1993, and FASA became law in October 1994.
20
cardinal change is so profound that it is not redressable under the contract, and thus
renders the government in breach.
1 F.3d at 1205 (quoting Allied Materials & Equip. Co. v. United States, 569 F.2d 562, 563-64 (Ct.
Cl. 1978). The court analogously explained that a modification violates CICA when the
modification “materially departs from the scope of the original procurement.” Id. (citing See Neil
R. Gross & Co., B–237434, 69 Comp. Gen. 247 (February 23, 1990) at 2-3, aff'd on
reconsideration, B-237434.2, 90-1 CPD ¶ 491 (Comp. Gen. May 22, 1990); Am. Air Filter Co.,
57 Comp. Gen. 567, 572 (1978) (affirming on reconsideration 57 Comp. Gen. 285 (1978)). This
analysis focuses on “whether the solicitation for the original contract adequately advised offerors
of the potential for the type of changes during the course of the contract that in fact occurred, or
whether the modification is of a nature which potential offerors would reasonably have
anticipated.” AT&T, 1 F.3d at 1207. In applying this test, the Federal Circuit compared the
services called for in the original procurement with the services as modified and found that,
because the modified services could have been anticipated by bidders during the solicitation phase,
the modification did not violate CICA’s competition requirements. Id.Though the Federal Circuit has never explicitly articulated a test to determine whether,
under FASA, a “[task] order increases the scope . . . of the contract under which the order is
issued,” the Court of Federal Claims has held that the standards articulated in AT&T are applicable
to the scope exception to the FASA jurisdictional bar. 10 U.S.C. § 2304c(e)(A); see BayFirst
Solutions, LLC v. United States, 104 Fed. Cl. 493, 502 (applying the AT&T standard in determining
whether the task order exceeds the scope of the IDIQ contract); see also North Wind Site Servs.,
LLC v. United States, 142 Fed. Cl. 802, 812-13 (2019) (citing AT&T for the proposition that “[i]n
order for there to be a change in scope, there must be a material change so significant that it
amounts to a cardinal change” (internal citation and quotation omitted)); Global Computer Enters.,
21
Inc. v. United States, 88 Fed. Cl. 350, 425-45 (2009) (applying the AT&T standard in determining
whether the task order exceeds the scope of the IDIQ contract).
In applying the AT&T standard to the FASA context, the Court of Federal Claims has
consistently interpreted the term “scope” to reference the statement of work in the underlying IDIQ
contract, and DynCorp’s scope assertions are at odds with this Court’s established precedent. See
Solute Consulting v. United States, 103 Fed. Cl. 783, 785, 792 (2012) (citing Phoenix Air Group,
Inc. v. United States, 46 Fed. Cl. 90, 105-106 (2000)); Omega World Travel, Inc. v. United States,
82 Fed. Cl. 452, 456, 464 (2008).
The Court of Federal Claims’ consistent adoption of the standard articulated in AT&T
makes sense. FASA accomplishes its policy goal of streamlining procurement by barring certain
protests at the task order level. The assumption is that that the underlying IDIQ contract has
already been subjected to full and open competition requirements of CICA. See 10 U.S.C. §
2304a(c). However, when a task order drastically increases the scope, as delineated in the
underlying IDIQ contract’s statement of work, the task order is essentially a new procurement
which was never subjected to full and open competition—in contravention of CICA. See 10 U.S.C.
§ 2304(a)(1)(A). 11 When a task order exceeds the statement of work outlined in the underlying
11
The GAO applies a similar test. In Dyncorp Int'l LLC, B-402349, the GAO explained:
The analysis of whether a task order is outside the scope of a multiple-award contract is
the same as the analysis of whether a contract modification is outside the scope of a single-
award contract. Anteon Corp., [B-293523 et al., 2004 CPD ¶ 51 (Comp. Gen. Mar. 29,
2004)] at 4-5. In addition, the law in this area is well-settled. In determining whether a task
order is beyond the scope of the contract, GAO and the courts look to whether there is a
material difference between the task order and that contract. Id. at 5; MCI Telecomms.
Corp., B–276659.2, Sept. 28, 1997, 97-2 CPD para. 90 at 7; see also AT&T Commc'ns,
Inc. v. Wiltel, Inc., 1 F.3d 1201, 1204 (1993); CCL, Inc., 39 Fed. Cl. 180, 191-92 (1997).
Evidence of such a material difference is found by reviewing the circumstances attending
the procurement that was conducted; examining any changes in the type of work,
22
IDIQ contract, it is not only the IDIQ contract holders who suffer. In these circumstances, non-
IDIQ contract holders are deprived of the opportunity to compete, and the Government is deprived
of the benefit of competition. See Astronautics Corp. of Am., 70 Comp. Gen. 554, 556 (June 5,
1991) (“[While GAO’s bid protest regulations require dismissing] protests involving contract
administration matters . . . , [GAO] will, however, consider a protest that a delivery order issued
under an existing contract is beyond the scope of that contract, changing the nature of the contract
originally awarded, because the work covered by the delivery order would be subject to
requirements for competition absent a valid sole-source determination.”); Comp. Gen. Decision,
B-207389, 30 CCF ¶ 70,062 (June 15, 1982) (reasoning that contract modifications tantamount to
unjustified sole-source awards, in lieu of competitive procurements, will adversely impact upon
the integrity of the competitive procurement process). Congress carefully balanced the need for
competition, as expressed in CICA, with the need for administrative efficiency, as promoted in
FASA. Applying the test outlined in AT&T to the scope exception of FASA’s jurisdictional bar
preserves the balance Congress struck between these two competing issues.
Thus, to establish jurisdiction under the scope exception in FASA, DynCorp needs to show
that the statement of work described in the Performance Work Statement (PWS) for the
Solicitation is beyond the PWS for CACI’s GISS IDIQ contract. See e.g., Solute Consulting, 103
Fed. Cl. at 793 (examining the task order solicitation’s PWS vis-à-vie the scope of work as
performance period, and costs between the contract as awarded and as modified by the task
order; and considering whether the original contract solicitation adequately advised
offerors of the potential for the type of task order issued. Anteon Corp., supra, at 5; Data
Transformation Corp., B-274629, Dec. 19, 1996, 97-1 CPD para. 10 at 6. The overall
inquiry is whether the task order is of a nature that potential offerors would reasonably
have anticipated. Anteon Corp., B-293523, B-293523.2, Mar. 29, 2004, 2004 CPD para.
51 at 5.
2010 CPD ¶ 59 (Comp. Gen. Mar. 15, 2010) at 4.
23
described in the underlying contract). But here, DynCorp does not contend that the services and
products described in the RTOP PWS are beyond the services and products described in the PWS
for CACI’s GISS IDIQ contract. See Nov. 11, 2020 Tr. at 43:24-44:4.
Instead, the broad language in the underlying GISS IDIQ contract encompasses the scope
found in the RTOP PWS. The “scope” of the services and products anticipated to be purchased
under the GISS IDIQ contract, through task orders, is described broadly:
C.1.2 Objective / Scope.
The purpose of this acquisition is for INSCOM to provide more responsive
acquisition of services for current and future Army intelligence, security, and
information operations requirements and related support services. These services
will supply resources that support a breadth and depth of various missions including
but not limited to: intelligence analysis, electronic systems, Intelligence
Surveillance and Reconnaissance (ISR) Systems, security systems, Quick Reaction
Capability (QRC) systems, prototype intelligence hardware/software suites,
facilities that are developed, deployed, maintained and repaired at the highest state
of readiness, and business functions consistent with Army directives and standards.
Tab 1 at AR 17. In conformity with the IDIQ contract, the PWS for the task order at issue seeks
services to support “tactical, operational, and strategic intelligence units, personnel and their
ground and aerial intelligence equipment and operations facilities and infrastructure and may occur
from multiple locations simultaneously.” Task Order Solicitation PWS at 2 (ECF No. 28-1).
These services are well within the bounds of the IDIQ contract. Further, as noted, the services
under the GISS IDIQ contract remained unchanged during CACI’s conversation from a
corporation to a limited liability company. See Supra Background, Section I; infra Discussion,
Section III. Moreover, even if this Court were to broaden the definition of scope beyond scope of
work, DynCorp’s protest would still be barred under the standard articulated in AT&T because
name changes under FAR 42.1205 and novations under FAR 42.1204 are matters routinely
handled as a part of contract administration and clearly do not fall outside the changes clause or
24
amount to a new procurement. See AT&T, 1 F.3d at 1205 (citing Am. Air Filter Co., 57 Comp.
Gen. 567, 573 (June 19, 1978)).
III. The CACI Corporate Conversion
Even assuming, arugendo, that the scope exception is exceptionally broad and applies to
far more than the scope of work in a contract, DynCorp’s argument would still fail. DynCorp
asserts that CACI Technologies, Inc., a corporation established under the laws of Virginia,
underwent a statutory conversion on December 31, 2017, creating an entity organized as a limited
liability company. According to DynCorp, under VA Code § 13.1-722.13(A)(7), CACI
Technologies, Inc. immediately ceased to exist because of that conversion. Compl. at ¶ 6.
DynCorp contends that, therefore, the Army awarded the May 2020 task order to an entity, CACI,
Inc., that had legally ceased to exist two-and-a-half-years earlier. Id. at ¶ 14. DynCorp argues that
the Army’s award of a task order to an entity that did not exist and that allegedly never submitted
a legitimate proposal conflicts with the terms of the GISS IDIQ contract, which anticipated that
task orders would only be awarded to contractors that submitted proposals. Id. ¶¶ 6, 14. DynCorp
claims that CACI’s submission of an invalid proposal meant that “the CACI family of companies”
was able to rely on a proposal that was “never binding on any particular CACI affiliate” and was
able to make representations and offers in the proposal that were not binding. Id. ¶¶ 123, 135.
DynCorp also argues that CACI should have complied with the procedures in FAR 52.204-13(d).
See Pl. Resp. at 18-19. Importantly, DynCorp does not allege that CACI acted improperly under
FAR 42.1205. See Nov. 11, 2020 Tr. at 53:21-54:2 (“[DynCorp is] not contesting the [name
change] agreement with DCMA, the propriety of the agreement.”).
In response, CACI argues that its name change is not an event that divested it of its status
as an IDIQ contract holder. Int.-Def. Mot. at 24. Instead, CACI contends that the applicable
25
provisions of FAR regarding name changes make clear that the Government’s and contractor’s
rights and obligations remained unaffected by a name change. Id. CACI further contends that the
approach it took was a practical necessity to facilitate payments under contracts during the name
change process and notes that, during the period when DCMA is reviewing a conversion
transaction, the Government’s payment offices continues to process payments by matching the
contractor’s name in SAM with the name on the contract/invoice. Id. at 29. If the legal entity’s
new name were used prior to completion of DCMA’s name change process, there would be a
disconnect between the contractor’s name in SAM and the name on the contract/invoice—and
payments would be delayed. Id.
This Court agrees with the Government and CACI. CACI’s name change and conversion
complied with the FAR, and nothing in Virginia law invalidates the Army’s award to CACI.
Consequently, CACI’s name change and conversion from CACI, Inc. to CACI, LLC did not affect
the Army’s award to CACI in any way.
The FAR has specific processes to address this exact circumstance when a company
undergoes a name change or conversion. The FAR recognizes that—even if the name for an entity
changes—the legal obligations of the entity remain unaffected, including the right to contract with
the Government. See FAR 42.1205(a), (b) (stating, in paragraph (a)(3) of the “Change-of-Name
Agreement” template, that “this amendment accomplishes a change of corporate name only[,] and
all rights and obligations of the Government and of the Contractor under the contracts are
unaffected by this change”).
If a contractor is only changing its name and the Government's and contractor's rights and
obligations remain unaffected, the FAR requires the parties to execute a “change of name
agreement” to reflect the name change. FAR 42.1205(a). Under this process, the contractor gives
26
the contracting officer responsible for the agreement three signed copies of the “change of name
agreement” and one copy each of the following:
(1) The document effecting the name change, authenticated by a proper official of
the State having jurisdiction.
(2) The opinion of the contractor's legal counsel stating that the change of name
was properly effected under applicable law and showing the effective date.
(3) A list of all affected contracts and purchase orders remaining unsettled between
the contractor and the Government, showing for each the contract number and
type, and name and address of the contracting office. The contracting officer
may request the total dollar value as amended and the remaining unpaid balance
for each contract.
FAR 42.1205(a).
Here, the Government clearly followed the processes under FAR 42.1205 and properly
executed the Change-of-Name Agreement with CACI. In late-November 2017, prior to its name
change, CACI corresponded with DCMA about the “Conversion Agreement,” and DCMA sent
CACI a template conversion agreement. See Int.-Def. Reply Exhibit A (ECF No. 39-1). On March
13, 2018, CACI sent a “Contracts Conversion Approval Package” to DCMA. See Tab 98 at AR
4798-99. The package contained the “Conversion and Name Change Agreement.” See id. at AR
4800-01. 12 The package also contained the required elements under FAR 42.1205(a). See id. at
AR 4798-4878. CACI submitted a certification of entity conversion from the Commonwealth of
Virginia. Id. at 4868-4870; see also FAR 42.1205(a)(1) (requiring the “document effecting the
name change . . .”). CACI also submitted a letter from its General Counsel stating that the
12
The contract language CACI submitted differed slightly from both the template DCMA emailed
to CACI in November 2017, Int.-Def. Reply Ex. A (ECF No. 39-1) at 3-6, and the sample language
contained in FAR 42.1205(b)—CACI noted the difference in its brief. See Int.-Def. Reply at 10.
However, FAR 42.1205(b) states that “[t]he following suggested format for an agreement may be
adapted for specific cases,” and no party has indicated that this difference is a material issue in the
present case.
27
conversion “was duly and properly effected under applicable law and that the effective date of the
Contractor’s conversion was December 31, 2017.” Id. at 4872-73; see also FAR 42.1205(a)(2)
(requiring the “opinion of the contractor’s legal counsel stating that the change of name was
properly effected under applicable law and showing the effective date”). CACI further submitted
a list of contracts between CACI and the Government. See id. at 4805-66; see also FAR
42.1205(a)(3) (requiring a “list of all affected contracts and purchase orders remaining unsettled
between the contractor and Government . . .”). In addition, on April 6, 2020, the DCMA
administrative contracting officer signed the agreement. See Tab 98 at AR 4802 (signing date
shown in digital signature stamp). The duly executed Name Change Agreement, mutually agreed
upon by CACI and DCMA, indicates that the Government was fully aware of CACI’s name change
at the time of the award and that CACI assumed all obligations and liabilities of the GISS IDIQ.
See Tab 98 at AR 4800-03.
The Army’s consistent use of CAGE codes further demonstrates that the Army was fully
aware of the identity of the entity to which it awarded the task order. The Defense Logistics
Agency assigns CAGE codes, which are normally five-digit numbers, and are used to identify a
commercial or government entity. See 48 C.F.R. § 2.101 (defining CAGE codes). Thus, federal
agencies, such as the DCMA and the Army, may reasonably rely on CAGE codes to accurately
identify contractors. See Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 744 n.26 (2008)
(“CAGE codes are used to dispositively establish the identity of a legal entity for contractual
purposes.” (internal quotations and citation omitted)); United Valve Co., B-416277 et al., 2018
CPD ¶ 268 (Comp. Gen. July 27, 2018) at 6. CACI used the CAGE Code 8D014 pre- and post-
conversion. Compare Tab 27.1 at AR 1338.1 (using Cage Code 8D014 on an RFP CACI submitted
on October 12, 2018) with Tabs 72.1 at AR 3406.1; 103.1 at AR 5126 (using Cage Code 8D014
28
on an Amendment of Solicitation/Modification of Contract CACI submitted on May 27, 2020 and
August 25, 2020). This Court agrees with the GAO, which found that the continuity of CACI’s
CAGE Codes confirms that the contract offeror is the same entity as the contract awardee. GAO
Decision at AR 4767.
CACI’s adherence to FAR 42.1205 and the consistent use of the CAGE code 8D014 to
reflect the contract awardee supports the conclusion that the Army awarded the contract to the
correct, IDIQ-contract-holding entity. Transparency, reliability, and traceability are important
objectives in Federal procurement. Further, “[a]ccurate identification of prospective and
incumbent government contractors (and vendors) facilitates the federal government’s procurement
process, helping to ensure contractors are paid, supporting contract administrations activities,
enabling identification of corporate families . . . and, generally, contributing to the transparency of
federal government procurement.” L. Elaine Halchin, Cong. Research Serv., R44490, Unique
Identification Codes for Federal Contractors: DUNS and CAGE Codes 1 (May 31, 2017). Unique
identifiers, such as CAGE Codes, and FAR regulations exist to meet such objectives. See 79 Fed.
Reg. 31187 (May 30, 2014) (amending the FAR to require CAGE Codes for certain awards). Here,
CACI complied with FAR 42.1205—the regulatory requirements governing a contractor’s change
of name. CACI demonstrated, through consistent use of the CAGE code 8D014, that the entity
which submitted its proposal in January 2020 is the same entity that received the award in May
2020.
DynCorp’s arguments based on FAR 52.204-13(d) and Virginia law lack merit. FAR
52.204-13(d)(1)(i)(B) requires that CACI notify its “responsible Contracting Officer” 13 of its
13
Both CACI and the Defendant state that DCMA is the agency of CACI’s “responsible
contracting officer,” and Plaintiff does not contest this assertion. See Compl. ¶ 82. (“[A] DCMA
29
intentions unless it has “completed the necessary requirements regarding novation and change-of-
name agreements in subpart 42.12.” As noted, CACI fulfilled the FAR 42.12 requirements when
it submitted its “Contracts Conversion Approval Package” to DCMA on March 13, 2018. See Tab
98 at AR 4798-99. Again, DynCorp does not contest this fact. See Nov. 11, 2020 Tr. at 53:21-
54:2. Accordingly, CACI did not violate FAR 52.204-13(d). 14
Under Virginia law, DynCorp argues that, following CACI’s conversion, CACI, Inc.—the
holder of the GISS IDIQ contract—ceased to exist. Pl. Resp. at 18. However, DynCorp’s
argument begins with the wrong premise. As discussed above, the correct underlying premise is
that CACI complied with the relevant federal regulations relating to name changes, such as FAR
42.1205 and its use of CAGE codes. Once the Government completed its analysis of the name-
change process, it determined that the name change was retroactive to December 31, 2017, when
CACI’s name change was effective for purposes of Virginia law. See Tab 98 at AR 4802.
Moreover, contrary to DynCorp’s assertions, Virginia law appears to recognize that CACI, Inc.
and CACI, LLC function as the same entity following a corporate conversion. The Virginia Code
states that following a corporate conversion, “[t]he resulting entity is deemed to . . . [b]e the same
entity without interruption as the converting entity that existed before the conversion[, and t]he
Corporate Administrative Contracting Officer executed an agreement . . . that purported to be with
both CACI Technologies, Inc. and CACI Technologies, LLC.”); see also Def. Reply at 16
(“DCMA . . . is the Administrative Contracting Officer (ACO) that was the responsible contracting
officer under the FAR for handling the name change.”); Int.-Def. Mot. at 25 n.3 (“DCMA is the
agency of the administrative contracting officer who was authorized to execute a change-of-name
agreement with respect to CACI’s contracts on behalf of the entire Government pursuant to FAR
42.1202.”).
14
Even if CACI did not meet the requirements in FAR 52.204-13(d), the result would have been
a suspension of payment and not the relief DynCorp seeks—an injunction prohibiting performance
of the task order. See FAR 52.232-33(d) (containing the “suspension of payment” clause and
stating “[i]f the Contractor’s EFT information in the SAM is incorrect, then the Government need
not make payment to the Contractor under this contract . . .”); see also Compl. at 25 (prayer for
relief).
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converting entity shall cease to be a corporation when the certificate of entity conversion becomes
effective.” VA Code § 13.1-722.13(A)(6)-(7). Nothing in Virginia law states that an award of a
federal government contract made under the previous name is invalidated following such a
conversion. Most importantly, the Name Change Agreement gave retroactive effect to the name
change so the legal obligations between CACI and the Army under the GISS IDIQ remain
unaffected by CACI’s name change. See Tab 98 at AR 4801.
Accordingly, even if this Court had jurisdiction to consider DynCorp’s substantive claims,
it would still find that DynCorp’s claims are without merit.
CONCLUSION
This Court GRANTS Defendant's and Intervenor-Defendant’s Motions to Dismiss for lack
of jurisdiction (ECF Nos. 28, 29). The Clerk of Court is DIRECTED to enter Judgment
accordingly.
Within fourteen (14) days of this Memorandum and Order, the parties shall CONFER and
FILE a NOTICE, attaching a proposed public version of this Memorandum and Order, with any
competition-sensitive or otherwise protected information redacted.
IT IS SO ORDERED.
s/Eleni M. Roumel
ELENI M. ROUMEL
Chief Judge
Dated: February 5, 2021
Washington, D.C.
31