The Tolliver Group, Inc. v. United States ( 2020 )

In the United States Court of Federal Claims
Nos. 20-1108C and 20-1290C
(Filed: November 30, 2020)
)
THE TOLLIVER GROUP, INC.,
) Solicitation cancellation; Small
) Business Act; Rule of Two; set-aside;
and
) withdrawal; Federal Supply Schedule
PEOPLE, TECHNOLOGY AND ) (FSS); multiple award contract; IDIQ;
PROCESSES, LLC, ) RAMCOR; SRA Int’l; Federal
) Acquisition Streamlining Act (FASA);
Plaintiffs, ) Administrative Dispute Resolution
v. ) Act of 1996 (ADRA); Competition in
) Contracting Act (CICA); GAO protest
THE UNITED STATES, ) jurisdiction; Tucker Act jurisdiction;
) FAR Part 8; FAR Part 14; FAR Part 15;
Defendant. ) FAR Part 19.
)
Jon D. Levin, Maynard, Cooper & Gale, PC, Huntsville, AL, for Plaintiff, The Tolliver
Group, Inc. With him on the briefs were W. Brad English, Emily J. Chancey, and Michael
W. Rich.
Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Plaintiff,
People, Technology and Processes, LLC. With him on the briefs was Nathaniel E.
Castellano.
David R. Pehlke, United States Department of Justice, Civil Division, Washington, DC,
for Defendant. With him on the briefs were Jeffrey Bossert Clark, Acting Assistant
Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Douglas K.
Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC.
OPINION AND ORDER
SOLOMSON, Judge.
This case presents the question of whether, or under what circumstances, an
agency – in this case, the Department of the Army (“Army” or the “agency”) – may
cancel a Federal Acquisition Regulation (“FAR”) Part 8 procurement for the express
purpose of moving it from a service disabled veteran-owned small businesses
(“SDVOSB”) set-aside under a General Service Administration (“GSA”) Federal Supply
Schedule (“FSS”) to a multiple award indefinite quantity indefinite delivery
1
(“MAIDIQ”) vehicle, a contract that the Plaintiffs in this case do not hold. Additionally,
the Court must address the source, if any, of this Court’s jurisdiction to decide
complaints challenging an agency’s cancellation of a FAR Part 8 procurement.
Plaintiffs, The Tolliver Group, Inc. (“TTGI” or “Tolliver”), and People,
Technology and Processes, LLC (“PTP”), claim that the agency’s decision to cancel two
GSA FSS support staffing solicitations fails the Administrative Procedure Act (“APA”)
standard of review applicable in actions brought pursuant to 28 U.S.C. § 1491(b)(1),
which requires that an agency action must not be arbitrary, capricious, or otherwise
contrary to law. Plaintiffs allege the agency’s cancellation decisions fail the APA
standard of review based on the extreme brevity of the analysis underlying the agency’s
decision and, in Plaintiff’s view, the agency’s ipse dixit conclusions. More significantly,
Plaintiffs assert that the agency’s decision and supporting rationale – namely, to move
the solicitations at issue to a recently awarded MAIDIQ – violates FAR 19.502-2(b),
commonly known as the “Rule of Two.” Plaintiffs seek permanent injunctive relief,
including an order preventing the Army from cancelling the set-aside solicitations and
resoliciting the work under the MAIDIQ until the agency complies with the Rule of
Two and other relevant regulations.
Defendant, the United States, counters that the agency acted reasonably under
the APA review standard, or, in the alternative, because the agency’s power to cancel a
FAR Part 8 solicitation is virtually plenary, the decision should be reviewed only for
“bad faith,” which, the government claims is unsupported based on the record. The
government further contends that Plaintiffs’ Rule of Two claim is foreclosed by the
Federal Acquisition Streamlining Act (“FASA”) task order protest bar and, that on the
merits, an agency is not required to perform a Rule of Two analysis before soliciting
work under an existing MAIDIQ.
For the reasons explained below, the Court holds: (1) in the context of the facts of
this case, this Court has jurisdiction based upon an “alleged violation of statute or
regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.
§ 1491(b)(1); (2) the FASA task order bar does not pose a jurisdictional hurdle to
Plaintiffs’ respective causes of action, including the Rule of Two arguments; and (3)
pursuant to the APA review standard, which applies here, the agency’s decision is
inadequate, both in terms of the dearth of its analysis and because the agency has not
complied with the FAR’s Rule of Two and other provisions of law. Consequently, the
Court holds that Plaintiffs are entitled to the equitable relief that they seek.
2
I. Factual and Procedural Background 1
TTGI and PTP are both Florida-based SDVOSBs which provide, among other
things, staffing and technical support services. ECF 21 (“TTGI Am. Compl.”) at ¶ 5;
People, Technology and Processes, LLC, v. United States, Fed. Cl. No. 20-1290, ECF No. 1
(“PTP Compl.”) at ¶¶ 15–17. The Army maintains the Fires Center of Excellence
(“FCoE”), 2 a field artillery school located at Fort Sill, Oklahoma, that “trains soldiers,
officers, and marines in tactics, techniques, and procedures for the use of fire support
systems in combat.” PTP Compl. at ¶ 16. From 2010 until 2016, the Army had utilized
a long-term omnibus multiple award IDIQ (“OMNIBUS MAIDIQ”) contract to procure
training and instructor services at Fort Sill. ECF No. 25 (“Administrative Record” or
“AR”) at 617–20 (AR 613–16). 3 Following the expiration of those contracts, the Army
utilized a series of short-term contracts to procure those services. Id. at 617 (AR 613).
This case arises out of the Army’s issuance of two solicitations in early 2020 — the 13F
and Joint Fires Observer Course (“JFOC”) Solicitations — for procuring training
instructors for fire support specialists at Fort Sill, awarding contracts pursuant to those
solicitations, and subsequently cancelling both the contracts and the solicitations, the
latter for the purpose of transferring their scopes of work to an existing MAIDIQ. This
section summarizes this matter’s factual background and procedural history.
A. The 13F And JFOC Solicitations And Award Of The Contracts
On April 3, 2020, the Army’s Mission and Installation Contracting Command
(“MICC”) 4 at Fort Sill issued Solicitation No. W9124L-20-R-0016 (the “13F Solicitation”)
pursuant to the GSA Multiple Award Schedule (“MAS”) 5 as a 100% SDVOSB set-aside
using primarily the procedures outlined in FAR 8.4 and incorporating certain FAR Part
15 provisions. ECF No. 25 at 5–7, 346 (AR 1–3, 342). Specifically, the 13F Solicitation
sought to procure “20 fully qualified personnel to instruct 13F [Advanced Individual
1 See, infra, Section III.A.
2 See Fort Sill Fire Center of Excellence, Fort Sill Values, https://sill-www.army.mil/index.html
(last visited Nov. 11, 2020).
3Throughout this opinion, the dual citations to the Administrative Record account for
discrepancy between the page number indicated in the Court’s CM/ECF stamp on the PDF
document and the AR page cite.
4The MICC “provides contracting support for Soldiers across Army commands, installation and
activities” and is “responsible for contracting goods and services in support of Soldiers as well
as readying trained contracting units for the operating force and contingency environment
when called upon.” See https://www.army.mil/micc#org-locations (last visited Nov. 15, 2020).
5GSA Schedules are referred to as a Multiple Award Schedules (“MAS”) and Federal Supply
Schedules (“FSS”). See https://www.gsa.gov/buying-selling/purchasing-programs/gsa-
schedules (last visited Nov. 25, 2020); see also FAR Part 8.
3
Training] courses” regarding “[p]lanning and coordinating fire support for the
maneuver commander, locate and engage targets utilizing calls for indirect fire to
mortars, field artillery and naval surface fire support assets and battlefield information
reporting.” Id. at 40, 44, 83 (AR 36, 40, 79). This solicitation contemplated the award of a
contract with a “twelve (12) month base period [of performance] to include a 90 day
[sic] phase-in period, followed by one (1), one-year option period.” Id. at 40 (AR 36).
On April 6, 2020, the MICC separately issued Solicitation No. W9124L-20-R-0020
(the “JFOC Solicitation”), pursuant to the GSA MAS, also as a 100% SDVOSB set-aside.
Id. at 386–88 (AR 382–384). Specifically, the JFOC Solicitation sought to procure “14
qualified personnel” to provide “JFOC instruction to multi-service and coalition
students attending Field Artillery Basic Officer Leader Course.” Id. at 428–29 (AR 424–
25). This solicitation contemplated the award of a contract with a “twelve (12) month
base period [of performance] to include a 90 day [sic] phase-in period, followed by one
(1), one-year option period.” Id. at 428 (AR 424).
In sum, both the 13F and JFOC Solicitations contemplated relatively short-term
contracts that the agency designated as 100% SDVOSB set-asides. 6 Several eligible
small businesses submitted timely proposals under both solicitations, including TTGI
and PTP, the latter which was the incumbent provider of these services at Fort Sill.
TTGI Am. Compl. at ¶ 14; PTP Compl. at ¶¶ 26, 34. On April 30, 2020, the agency
awarded the 13F contract to TTGI. TTGI Am. Compl. at ¶ 16; ECF No. 25 at 244–49 (AR
240–45). On May 18, 2020, the agency awarded the JFOC contract to Navigation
Development Group, Inc. (“NDGI”), another SDVOSB. Id. at 565, 576 (AR 561, 572).
B. Bid Protests And Corrective Actions
1. PTP’s 13F GAO Protest 7
On July 17, 2020, PTP filed a post-award bid protest with GAO, challenging the
6The Veterans Benefit Act of 2003 (“the Act”), amending the Small Business Act, created the
SDVOSB program to facilitate the participation of service-disabled veteran-owned small
businesses in federal contracting. Pub. L No. 108-183, 117 Stat. 2651. The Act contemplates the
use of “set asides,” which permits federal agencies to limit certain procurements for exclusive
competition among SDVOSBs. See 15 U.S.C. § 657f. This program is implemented via FAR
provisions and Small Business Administration (“SBA”) regulations. See FAR 6.206, 19.1401–
19.1408; 13 C.F.R. §§ 125.11–125.33.
7 On May 8, 2020, PTP filed its first post-award protest before GAO, alleging that the agency
did not reasonably evaluate its price proposal and that certain provisions in the 13F Solicitation
were ambiguous. See ECF No. 25 at 327, 343 (AR 323, 339). The Army took corrective action on
May 21, 2020 and, after re-evaluating the relevant proposals, on July 9, 2020, once again,
awarded the task order to TTGI. Id. at 342–57 (AR 338–53). For purposes of the pending
motions, however, the particulars of PTP’s first GAO protest is not relevant.
4
agency’s award of the 13F contract to TTGI. ECF No. 25 at 358–81 (AR 354–77). PTP
alleged, among other things, that the method the agency employed to evaluate PTP’s
professional compensation, in comparison to that of TTGI, was improper and that, in
awarding the task order to TTGI, the agency had “departed from the Solicitation's
required evaluation process, held PTP and Tolliver to unequal standards, and
conducted a[] flawed price realism evaluation.” Id. at 359 (AR 355).
On July 29, 2020, Contracting Officer (“CO”) Pauline K. Abraham issued a
Notice of Corrective Action. Id. at 382 (AR 378). CO Abraham acknowledged that
“[t]he Army believes that taking corrective action would better serve the procurement
process” and identified the measures that the agency would take, as follows:
a. Cancel the task order award to The Tolliver Group, Inc.
b. Re-evaluate the requirement and acquisition strategy to
ensure that it accurately reflects the Army’s current need.
c. Once the reevaluation is complete, the solicitation will
either be cancelled or amended.
d. If the solicitation is amended, the Army will evaluate
revised proposals, conduct discussions if necessary, and
make a new award decision.
Id. (emphasis added). While the Notice of Corrective Action did not elaborate on what
considerations the agency would weigh as part of its re-evaluation, CO Abraham, in an
internal agency memorandum (dated July 29, 2020), further explained that the rationale
behind the agency’s “reevaluat[ing] its acquisition strategy” was that “[o]n 21 July 2020,
MICC-Fort Eustis awarded the Training Management Support (‘TMS’) Multiple Award
Indefinite Delivery Indefinite Quantity contract, which may provide a potentially better
procurement vehicle for this requirement than the [current GSA MAS].” Id. at 383 (AR
379) (emphasis added). Following the Army’s July 29, 2020 Notice of Corrective Action,
the GAO dismissed PTP’s bid protest “as academic.” Id. at 385 (AR 381).
2. PTP’s JFOC GAO Protest
A similar situation unfolded with the JFOC contract. On May 28, 2020, PTP filed
a post-award bid protest before the GAO, challenging the agency’s award of the JFOC
contract to NDGI. ECF No. 25 at 581 (AR 577). PTP alleged that the agency’s price
evaluation did not comply with the solicitation, that the agency had conducted an
improper best value decision, and that the agency had evaluated PTP’s past
performance in an unreasonable manner. Id. at 582–602 (AR 578–98).
5
On July 29, 2020, CO Lisa Slagle 8 issued a Notice of Corrective Action that was
similar to the one CO Abraham had issued in response to PTP’s 13F bid protest. Id. at
612 (AR 608). CO Slagle’s Notice of Corrective Action outlined the same steps that the
agency intended to take in response to the JFOC bid protest as the agency did for the
13F bid protest: cancel the contract award, re-evaluate the Army’s needs, and either
amend the solicitation or cancel it. Id. CO Slagle also authored an internal agency
memorandum (dated July 29, 2020), which similarly explained that the agency’s re-
evaluation of its acquisition strategy was based on the availability of the recently
awarded TMS MAIDIQ. Id. at 613–14 (AR 609–10). The GAO also dismissed PTP’s bid
protest of the JFOC award as “academic.” Id. at 615–16 (AR 611–12).
C. The TMS MAIDIQ
As noted above, the Army previously had procured training and instructor
services using the OMNIBUS MAIDIQ, which expired in 2016, thus necessitating the
use of the GSA MAS contracts. ECF No. 25 at 617–20 (AR 613–16). On October 31, 2017,
the Army approved the creation of a new contractual vehicle – the TMS MAIDIQ – for
the purpose of procuring these services. Id. at 618 (AR 614). While the Army initially
intended the TMS MAIDIQ to be a small business set-aside, the Army determined, after
conducting market research, that – given the breadth of the MAIDIQ’s anticipated scope
of work – none of the small business proposals could meet the requirements; the set-
aside plan for the TMS MAIDIQ thus was abandoned in coordination with the SBA. Id.
at 618, 1194–1212 (AR 614, 1190–1208). On September 13, 2018, the Army issued the
TMS MAIDIQ Solicitation as a full and open competition. Id. at 618, 1207 (AR 614,
1203). After numerous delays in the evaluation process, the agency, on July 21, 2020,
awarded TMS MAIDIQ contracts to five companies, all of which were large businesses.
Id.; ECF No. 21 at ¶ 26. Plaintiffs in this case do not hold a TMS MAIDIQ contract.
D. The Army’s Cancellation Of The 13F And JFOC Contracts
On August 10, 2020, CO Abraham – presumably as part of the agency’s
correction action processes – authored an internal agency Memorandum For Record
(the “August 10 MFR”), “[t]he purpose” of which was “to capture the background for
the recently award Training Management Support (TMS) Multiple Award Indefinite
Delivery Indefinite Quantity Contract awarded by MICC-Fort Eustis.” ECF No. 25 at
617 (AR 613); see generally ECF No. 25 at 617–20 (AR 613–16). In her four-page
memorandum, CO Abraham detailed the history of the 13F and JFOC Solicitations, as
well as the TMS MAIDIQ, and in the last paragraph concluded:
Based upon the above information, I believe the Government’s
best interests can be met by competing the JFO, 13F and KMS
8Apparently, CO Slagle retired, two days later, on July 31, 2020, and was replaced by another as
the cognizant contracting officer for the JFOC procurement. ECF No. 40 at 5.
6
requirements under the MICC-Fort Eustis recently awarded
TMS MAIDIQ. Both time and money can be saved by the
Government in pursuit of this avenue. Time and money are
expended on soliciting and awarding interim short term
contract actions to support on-going requirements. Contract
periods can be adjusted to support a Base and Four Option
periods on most requirements thus saving manpower and
costs tied to phase-in and certification of new contractor
employees. Longer periods of performance also support the
Government’s ability to successfully recruit and retain
qualified personnel on existing requirements, thereby
ensuring continuity of the training mission.
Id. at 620 (AR 616) (emphasis added). Her memorandum also referenced 11 enclosures
that further detailed the development and scope of the TMS MAIDIQ, but that did not
otherwise address, in any way, the corrective action or any cancellation decisions. Id. at
621–862 (AR 617–858). 9 The August 10 MFR does not itself purport to be a solicitation
cancellation decision, nor is it a recommendation to another agency official.
E. Procedural History
On August 31, 2020, TTGI filed its initial complaint against the United States, in
this Court. See ECF No. 1. On September 3, 2020, PTP filed an Unopposed Motion to
Intervene, pursuant to Rule 24 of the Rules of the United States Court of Federal Claims
(“RCFC”), which the Court granted. Minute Order (Sep. 3, 2020). On September 4,
2020, TTGI filed an amended complaint. TTGI Am. Compl. at 1.
9 Subsequently, on August 21, 2020 – presumably based on her August 10 MFR – CO Abraham
authored an additional internal agency memorandum, documenting that “a reevaluation of the
acquisition strategy has resulted in the decision to solicit [the 13F Solicitation] requirement
under the recently awarded [TMS] Contract awarded by the [MICC] Fort Eustis” as “[t]he
requirements addressed by this specific task order were included within the scope of the TMS
and support the long term, continuous service need of Fort Sill.” Id. at 1235 (AR 1231). That
same day, the Army notified PTP and TTGI that “after thoughtful review, the decision has been
made to utilize [the TMS MAIDIQ] contract to support [the 13F Solicitation] requirement.” Id.at 1236–37 (AR 1232–33) (August 21, 2020 letter to PTP); ECF No. 1 Appendix A (August 21,
2020 letter to TTGI). Regarding the JFOC Solicitation, however, the Administrative Record does
not appear to contain any materials documenting the agency’s final decision to utilize the TMS
MAIDIQ instead of the JFOC Solicitation (i.e., subsequent to the August 10 MFR). The
Administrative Record also does not appear to contain any actual cancellation of the 13F or
JFOC Solicitations. Nevertheless, the parties do not dispute – and the Court agrees – that, as a
practical matter, the agency’s decision to abandon the 13F and JFOC Solicitations constitutes a
final agency decision that is ripe for review.
7
In the amended complaint, TTGI maintains that the Army’s decision to cancel the
13F Solicitation was not rationally related to the “alleged procurement defect” which
had been raised in PTP’s GAO protest and was instead a “decision solely because [the
Agency] likes the New Ft. Sill IDIQ better than the GSA schedule contract it used
originally.” TTGI Am. Compl. at ¶¶ 30, 33. Moreover, TTGI contends that by
“mov[ing] the unchanged requirements to the New Ft. Sill IDIQ, where only large
businesses are eligible for award” the Army violated the “Rule of Two.” Id. at ¶¶ 36–38.
Accordingly, TTGI asks that this Court “permanently enjoin the Agency proceeding
with its corrective action as implemented.” Id. at 10–11.
Although PTP initially entered this case as an intervenor, PTP sought leave to file
a separate complaint and requested that its new case be consolidated with TTGI’s case.
ECF No. 26. On September 29, 2020, the Court granted PTP’s motion to file its own
complaint. ECF No. 28. 10 PTP’s complaint advances similar claims to those of TTGI.
Specifically, PTP alleges that the Army’s decision to cancel the 13F and JFOC
Solicitations was arbitrary and capricious because “there is no documented cancelation
decision for either procurement. And, to the extent there are any record materials that
shed light on the Agency’s decision, the record materials do not justify cancellation.”
PTP Compl. at ¶¶ 5, 45–48. Further, PTP contends that, by cancelling the 13F and JFOC
Solicitations for the purpose of reissuing the requirements using the TMS MAIDIQ, the
Army violated the Rule of Two. Id. at ¶¶ 87–90, 104–08. Accordingly, PTP seeks
injunctive relief, ordering the Army to refrain from cancelling (or to reinstate) the 13F or
JFOC Solicitations and from resoliciting those requirements “absent Agency compliance
with the Rule of Two and all other applicable regulations.” Id. at ¶¶ 66, 78, 95, 111.
On September 18, 2020, the government filed the Administrative Record. ECF
No. 25. On September 5, 2020, TTGI and PTP filed motions for judgment on the
Administrative Record (“MJAR”) and the government filed a cross-motion for
judgment on the Administrative Record. ECF No. 29-1 (“PTP MJAR”); ECF No. 30
(“Def. MJAR”); ECF No 31 (“TTGI MJAR”). On October 12, 2020, the parties filed their
respective response briefs. ECF No. 32 (“PTP Resp.”); ECF No. 33 (Def. Resp.”); ECF
No. 34 (“TTGI Resp.”).
On October 16, 2020, the Court held oral argument. ECF No. 35. Following oral
argument, the Court ordered the parties to file supplemental briefs addressing a variety
of specific issues that had not been covered in the parties’ briefs or at oral argument.
ECF No. 39. In particular, the Court ordered supplemental briefing for the parties to
address several issues, including the application of 10 U.S.C. § 2305(b)(2) to the agency’s
cancelation decision. ECF No. 39; see 10 U.S.C. § 2305(b)(2) (“[A] solicitation may be
10The caption in this case has been revised to reflect PTP’s position as a plaintiff only, given the
nature of PTP’s claims in its complaint and the arguments in PTP’s motion for judgment on the
administration record.
8
rejected if the head of the agency determines that such action is in the public interest.”).
On October 28, 2020, the government filed its supplemental brief, ECF No. 40 (“Def.
Supp. Br.”), and, on November 2, 2020, both PTP and Tolliver filed their respective
supplemental briefs. ECF No. 41 (“PTP Supp. Br.”); ECF No. 42 (“TTGI Supp. Br.”).
II. Jurisdiction
Both Plaintiffs seek relief pursuant to 28 U.S.C. § 1491(b)(1). TTGI Am. Compl. at
¶ 2; PTP Compl. at ¶ 18. In that regard, the Tucker Act, as amended by the
Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub. L. No. 104-320, 110 Stat.
3870, provides this Court with “jurisdiction to render judgment on an action by an
interested party 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). 11
The government concedes that this “Court’s jurisdiction extends to an agency’s
decision to cancel a solicitation.” Def. MJAR at 15 (citing Madison Servs., Inc. v. United
States, 92 Fed. Cl. 120, 125–26 (2010), and FFTF Restoration Co., LLC v. United States, 86
11This Court reads the statute as the United States Court of Appeals for the Federal Circuit, our
appellate court, interpreted it in Sys. Application & Techs., Inc. v. United States, where the Federal
Circuit counted four separate causes of action: “On its face, the statute grants jurisdiction over
[1] objections to a solicitation, [2] objections to a proposed award, [3] objections to an award,
and [4] objections related to a statutory or regulatory violation so long as these objections are in
connection with a procurement or proposed procurement.” 691 F.3d 1374, 1380–81 (Fed. Cir.
2012); see also Jacobs Tech. Inc. v. United States, 100 Fed. Cl. 173, 174 (2011) (explaining that “this
provision [§ 1491(b)(1)] grants the Court jurisdiction over [objections to] (1) a ‘solicitation,’ (2) a
‘proposed award’ (3) an ‘award’ or (4) ‘any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement’”). The government, on occasion,
also has counted four separate prongs. FFTF Restoration Co., LLC v. United States, 86 Fed. Cl.
226, 234 (2009) (“The government further contends that, because 28 U.S.C. § 1491(b)(1) only
allows for objections to (1) ‘a solicitation by a Federal agency for bids or proposals for a
proposed contract,’ (2) ‘a proposed award,’ (3) ‘the award of a contract,’ or (4) ‘any alleged
violation of statute or regulation in connection with a procurement or a proposed procurement,’
see 28 U.S.C. § 1491(b)(1). . . .”). Although some decisions group the statute into just three
prongs, Angelica Textile Servs., Inc. v. United States, 95 Fed. Cl. 208 (2010), the critical point, as
explained infra, is that the objection “to a solicitation” prong or cause of action is distinct from
the others, and the first two or three prongs – again, depending on how they are counted – are
themselves distinct from the final prong, permitting an objection to “any alleged violation” of
law in connection with a procurement. 95 Fed. Cl. at 212 (“The first two portions of Section
1491(b)(1) address pre-award and post-award bid protests” while “the third portion of the
Section concerns protests involving ‘any alleged violation of statute or regulation in connection
with a procurement or a proposed procurement.’”).
9
Fed. Cl. 226, 236–37 (2009)). This Court has a duty, however – as does every Federal
court – to assure itself of jurisdiction over any complaint or cause of action. Folden v.
United States, 379 F.3d 1344, 1354 (Fed Cir. 2004) (“Subject-matter jurisdiction may be
challenged at any time by the parties or by the court sua sponte.”); RCFC 12(h)(3). Thus,
although the Court generally agrees with both Plaintiffs and the government with
regard to jurisdiction here, we write at greater length to address the unique aspects of a
FAR Part 8 procurement, generally, and the facts and circumstances of the
procurements at issue here, in particular.
A. Source Of Jurisdiction For Challenges To Cancellation Of FAR Part 8
Procurements
We begin, as always, with the plain language of the applicable jurisdictional
statutory provision, in this case 28 U.S.C. § 1491(b)(1). A plaintiff’s claim that a
government agency improperly has cancelled a solicitation is plainly not a challenge
“[1] to a solicitation . . . or [2] to a proposed award or [3] the award of a contract…”
(alterations added). For the reasons explained in this subsection, this Court concludes,
however, that it possesses jurisdiction to decide Plaintiffs’ claims that the agency
improperly decided to cancel the solicitations at issue, pursuant to the fourth prong of
28 U.S.C. § 1491(b)(1); Plaintiffs sufficiently have alleged “[a] violation of statute or
regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. §
1491(b)(1). In that regard, “[a] non-frivolous allegation of a statutory or regulatory
violation in connection with a procurement or proposed procurement is sufficient to
establish jurisdiction.’’ Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345 n.1
(Fed. Cir. 2008)). That standard is easily met here. TTGI Am. Compl. at ¶¶ 31–38; PTP
Compl. at ¶¶ 64–66, 76–78, 81–95; see also TTGI Supp. Br. at 3; PTP Supp. Br. at 6–7. In
particular, Plaintiffs’ respective complaints regarding the agency’s cancellation
decisions sufficiently allege a violation of FAR 1.602-2(b) and 10 U.S.C. § 2305(b)(2). 12
1. FAR 1.602–2(b)
The basis for this Court’s jurisdiction to decide a challenge to an agency’s
cancellation of a procurement solicitation is not unambiguous; it is certainly not explicit
12This subsection only addresses the Court’s jurisdiction to review the merits of the agency’s
solicitation cancellation decisions. The Court separately has jurisdiction – pursuant to the
fourth prong of 28 U.S.C. § 1491(b)(1) – to consider Plaintiffs’ independent claims that the
government violated FAR 19.502-2 and FAR 19.502-9, provided that the FASA task order
protest bar does not apply to such allegations. See, infra, Section II.B. The Court recognizes that
the question of whether Plaintiffs may obtain relief for the government’s alleged violation of
any of these provisions may be more accurately viewed as merits issues, Perry v. United States,
149 Fed. Cl. 1, 10-14 (2020), but that distinction is not critical here given the outcome.
10
in the text of 28 U.S.C. § 1491. While the Federal Circuit has upheld this Court’s
jurisdiction to consider challenges to an agency’s allegedly improper cancellation of a
solicitation, those decisions involved solicitations issued pursuant to FAR Part 14 or 15,
which contain specific provisions governing cancellation. For example, in Croman Corp.
v. United States, 724 F.3d 1357, 1359, 1363 (Fed. Cir. 2013), the Federal Circuit reviewed
the reasonableness of the cancellation of a FAR Part 15 (“Contracting By Negotiation”)
procurement, where the regulations require that “[t]he source selection authority may
[only] reject all proposals received in response to a solicitation, if doing so is in the best
interest of the government.” FAR 15.305(b) (emphasis added). More recently, in Veterans
Contracting Grp., Inc. v. United States, 920 F.3d 801, 806 (Fed. Cir. 2019), the Federal
Circuit addressed whether an agency acted reasonably in canceling a FAR Part 14
(“Sealed Bidding”) procurement, where the regulations mandate that after the opening
of bids there must be “a compelling reason to reject all bids and cancel the invitation.”
FAR 14.404-1(a)(1) (emphasis added); see FAR 14.404-1(c).
In such cases, the Federal circuit has invoked the APA standard of review
applicable to § 1491(b)(1) claims, explaining that “[u]nder this standard, a procurement
decision may be set aside if it lacked a rational basis or if the agency’s decision-making
process involved a clear and prejudicial violation of statute, regulation, or procedure.”
Croman, 724 F.3d at 1363. In particular, in Croman, the Federal Circuit observed that
“[i]n reviewing [an agency’s] exercise of discretion, this court has articulated relevant
factors as general guidelines in determining whether [the agency’s] actions were
arbitrary, capricious, or an abuse of its discretion.” 724 F.3d at 1365. “‘[R]elevant
factors include: subjective bad faith on the part of the officials; the absence of a
reasonable basis for the administrative decision; the amount of discretion entrusted to
the procurement officials by applicable statutes and regulations; and proven violation
of pertinent statutes or regulations.’” Id. (quoting Prineville Sawmill Co., Inc. v. United
States, 859 F.2d 905, 911 (Fed. Cir. 1988) (quoting Keco Indus., Inc. v. United States, 492
F.2d 1200, 1203–04 (Ct. Cl. 1974))). 13
In neither Croman nor Veterans Contracting, however, did the Federal Circuit
identify which prong of § 1491(b)(1) was at issue, but, notably, both Prineville Sawmill
13 There is a difference in the requirements applicable to the cancellation of a sealed bidding
procurement as compared to a negotiated procurement. “In contrast to sealed bidding, in a
negotiated procurement . . ., [GAO] decisions have found that ‘the contracting officer need only
have a reasonable basis for cancellation after receipt of proposals, as opposed to the cogent and
compelling reason required for cancellation of a solicitation after sealed bids have been opened
[,] ... because in sealed bidding competitive positions are publicly exposed as a result of the
public opening of bids, while in negotiated procurements there is no public opening.’” DCMS-
ISA, Inc. v. United States, 84 Fed. Cl. 501, 511 (2008) (quoting Cantu Servs., Inc., B–219998, 89-1
CPD ¶ 306, 1989 WL 240549, *1 (Mar. 27, 1989) (internal quotations omitted)).
11
and Keco Indus., Inc. involved a prior version of the Tucker Act, pursuant to which this
Court’s predecessor had jurisdiction under § 1491(a) to decide whether the government
breached an implied contractual duty to fairly consider responsive bids or proposals.
Prineville Sawmill, 859 F.2d at 909 (“An invitation for bids issued by the government
carries, as a matter of course, an implied contractual obligation to fairly and honestly
consider all responsive bids.”); see also Parcel 49C Ltd. P'ship v. United States, 31 F.3d
1147, 1153 (Fed. Cir. 1994) (holding that plaintiff “showed that GSA had no rational basis
for the cancellation” in case brought pursuant to § 1491(a) and the prior version of the
Tucker Act, as amended by the Federal Courts Improvement Act of 1982, Pub. L. No.
97-164, § 133(a), 96 Stat. 25 (emphasis added)). This, of course, tends to demonstrate
that our jurisdiction to decide such procurement cancellation cases was imported into
§ 1491(b), following ADRA. Res. Conservation Grp., LLC v. United States, 597 F.3d 1238,
1246 (Fed. Cir. 2010) (holding that “[t]he legislative history makes clear that the ADRA
was meant to unify bid protest law in one court under one standard” and that “it seems
quite unlikely that Congress would intend that statute to deny a pre-existing remedy
without providing a remedy under the new statute”).
Turning back to 28 U.S.C. § 1491(b)(1), while the case law makes clear that a
plaintiff’s challenge to the rationality of an agency’s cancellation of a solicitation may be
brought as an alleged violation of FAR 14.404-1 or FAR 15.305(b) in, respectively, a
sealed bid (FAR Part 14) or negotiated procurement (FAR Part 15), the jurisdictional
(and merits) questions in this case are complicated by the fact that the cancelled
solicitations were issued pursuant to FAR Part 8, under the FSS program, and thus are
not subject to either FAR Part 14 or FAR Part 15 cancellation provisions. See 28 U.S.C.
§ 1491(b)(1) (covering an “alleged violation of statute or regulation in connection with a
procurement or a proposed procurement”). In other words – given the absence of any
analogous FAR Part 8 provision governing an agency’s solicitation cancellation – does
our Court possess jurisdiction to decide a challenge to an agency’s cancellation of a
solicitation issued under FAR Part 8?
Judge Wolski decided that precise question in MORI Assocs., Inc. v. United States,
102 Fed. Cl. 503 (2011). In that case, Judge Wolski held that “the protest of a
cancellation of a solicitation is not an ‘objecti[on] to a solicitation ... for bids or proposals
for a proposed contract or to a proposed award or the award of a contract.’” 102 Fed.
Cl. at 523 (quoting 28 U.S.C. § 1491(b)(1)). Therefore, the statutory “phrase ‘or any
alleged violation of statute or regulation in connection with a procurement or a
proposed procurement,’ . . . must be the vehicle by which the remainder of our pre-
existing jurisdiction over procurement protests was preserved.” 102 Fed. Cl. at 523.
This Court concurs with MORI that the fourth-prong of 28 U.S.C. § 1491(b)(1) –
covering an alleged violation of law in connection with a procurement or a proposed
12
procurement – provides the necessary ballast for solicitation cancellation cases, 14 but, as
Judge Wolski correctly observed, and as noted above, FAR 15.305(b) “does not apply to
FSS procurements such as the . . . procurement cancelled” in the instant case. Id. (citing
FAR 8.404(a) and rejecting various “provisions plaintiff cites from the FSS subpart of the
FAR” as a basis for such jurisdiction). In the absence of a specific cancellation
provision, “[the Court] should look for a regulation codifying the duty to fairly consider
bids, as the repository of the remainder of our bid protest jurisdiction.” 102 Fed. Cl. at
523 (explaining that pre-ADRA, “our court’s jurisdiction over challenges to solicitation
cancellations was not based on the violation of a regulation specifically addressing
cancellation, but rather on the implied contract to fairly and honestly consider bids”).
In that regard, MORI “holds that that the FAR section 1.602–2(b) requirement that
contracting officers shall ‘[e]nsure that contractors receive impartial, fair and equitable
treatment’ is, among other things, the codification of the government’s duty, previously
implicit, to fairly and honestly consider bids.” 102 Fed. Cl. at 523–24 (concluding that
“numerous opinions of our court have treated FAR section 1.602–2(b) as a binding
requirement the violation of which may be reviewed in a bid protest”). In other words,
just as this Court, pre-ADRA, would have been able to hear a challenge to the
cancellation of a solicitation under the FSS program pursuant to 28 U.S.C. § 1491(a), we
may continue to do so under the fourth prong of § 1491(b) as an alleged violation of
FAR 1.602-2(b).
Despite the government’s initial concession in its motion for judgment on the
Administrative Record, acknowledging our jurisdiction to review the solicitation
cancellation decisions at issue, see Def. MJAR at 15, 15 the government later “disagree[d]
14See also Def. Supp. Br. at 6 (“An action challenging a cancelation decision does not challenge a
solicitation for bids or proposals or a proposed award.”). This appears to be the government’s
consistent position, and the Court concurs that the government is correct. See MCI Diagnostic
Ctr., LLC v. United States, 147 Fed. Cl. 246, 270 (2020) (noting the government’s argument that
plaintiff “challenges only the VA’s decision to cancel the solicitation ... and the protest of a
cancellation is not an ‘objecti[on] to a solicitation ... for bids or proposals for a proposed contract
or to a proposed award or the award of a contract’”).
15 The government in its MJAR relied upon Madison Servs., Inc., 92 Fed. Cl. at 125–26, and FFTF
Restoration Co., 86 Fed. Cl. at 236–37, in conceding that the Court of Federal Claims possesses
jurisdiction to review an agency’s decision to cancel a solicitation. Def. MJAR at 15. In FFTF
Restoration, Judge Firestone – in addition to relying upon FAR 15.305(b) – “reject[ed] the
government’s attempt to carve out challenges to negotiated procurement cancellations from this
court’s bid protest jurisdiction” because “28 U.S.C. § 1491(b)(1) authorizes this court to review
cancellations of negotiated procurements to ensure compliance with the requirements of
‘integrity, fairness, and openness’ in FAR 1.102(b)(3) and the requirement that ‘[a]ll contractors
and prospective contractors shall be treated fairly and impartially’ in FAR 1.102–2(c)(3).” FFTF
Restoration, 86 Fed. Cl. at 237 & n.15. In Madison Servs., this Court held that “the decision to
13
with the conclusion in MORI that FAR 1.602-2(b) confers jurisdiction upon this Court
over any general allegation of an arbitrary decision to cancel a solicitation that is not
instead based on a specific violation of statute or regulation.” Def. Supp. Br. at 6.
According to the government in its supplemental brief, “a contracting officer cannot
violate FAR 1.602-2(b) by taking an action that a plaintiff deems ‘unfair,’ unless the
contracting officer violated another, specific substantive provision of the FAR.” Id. at 7.
The government’s contentions must be rejected for several reasons. First, a
recent Federal Circuit decision all but precludes the government’s position. Office
Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020) (“The [FAR] requires an
agency to treat offerors fairly and impartially. [FAR] 1.602–2(b) . . . . This obligation
necessarily encompasses an agency’s obligation to fairly and impartially evaluate all
proposals.”). 16 Second, apart from the Federal Circuit’s decision in Office Design Grp.,
the great weight of authority supports Plaintiffs’ position that FAR 1.602-2(b) is indeed
“substantive” and supports a claim under the fourth prong of 28 U.S.C. § 1491(b)(1).
MORI, 102 Fed. Cl. at 524 (cataloging decisions that “reinforce[] the Court’s conclusion
that FAR section 1.602–2(b) is the place where the formerly implied contract now
expressly resides” and holding “that this provision is violated by government actions
which would have breached the implied duty to fairly and honestly consider bids, and
thus such actions—including arbitrary cancellations of solicitations—would be the
‘violation of ... regulation in connection with a procurement’”); R. Nash, FAIR
TREATMENT OF CONTRACTORS: Do FAR Provisions Confer Rights?, 27 NO. 7 Nash &
Cibinic Rep. ¶ 35 (noting that “[t]here are numerous Court of Federal Claims decisions
relying on FAR 1.602-2(b) to find a substantive right of a contractor” and commenting
that “it is good to see the Court of Federal Claims finding that the FAR confers a right of
contractors to fair treatment”). 17
cancel a negotiated procurement remains subject to the court’s review, pursuant to 28 U.S.C.
§ 1491(b) and the APA standard.” 92 Fed. Cl. at 125; see Def. Tech., Inc. v. United States, 99 Fed.
Cl. 103, 114–15 (2011) (surveying the prior case law, and “conclud[ing] that Judge Firestone’s
decision in FFTF Restoration is on point and should be followed by this Court.”).
16 See also Krygoski Const. Co. v. United States, 94 F.3d 1537, 1542–43 (Fed. Cir. 1996) (“CICA
mandates impartial, fair, and equitable treatment for each contractor. This competitive fairness
requirement, with its bid protest remedies, restrains a contracting officer’s contract administration.
If, for instance, a contracting officer discovers that the bid specifications inadequately describe
the contract work, regulations promulgated under CICA may compel a new bid.” (emphasis
added) (citing 10 U.S.C. §§ 2304 and 2305 (1994), and FAR 1.602–2)).
17See also, e.g., MCI Diagnostic Ctr., 147 Fed. Cl. at 272 (“It is, therefore, consistent with Resource
Conservation Group to hold that this court continues to have jurisdiction over alleged arbitrary
cancellations of procurement solicitations. Moreover, given this court's pre-ADRA jurisdiction
to address procurement cancellation issues, it follows that whether or not protestor alleges the
14
2. 10 U.S.C. § 2305(b)(2)
Even if FAR 1.602–2(b) were construed not to provide a basis for this Court’s
review of a challenge to a solicitation cancellation in a FAR Part 8, FSS procurement, the
Court holds that, in this case, 10 U.S.C. § 2305(b)(2) does provide such a predicate for
this Court’s jurisdiction, again pursuant to the fourth prong of 28 U.S.C. § 1491(b)(1). In
that regard, and as noted above, the Court ordered the parties to submit supplemental
briefs addressing 10 U.S.C. § 2305(b)(2), which provides that “[a]ll sealed bids or
competitive proposals received in response to a solicitation may be rejected if the head of
the agency determines that such action is in the public interest” (emphasis added). Given
that FAR 15.305(b) may serve as a jurisdictional predicate where applicable, the Court
has no trouble concluding that almost identical language in 10 U.S.C. § 2305(b)(2)
similarly provides jurisdiction here. Although FAR Part 15 provisions do not apply
wholesale to the procurements at issue, the referenced Title 10 statutory provision does
apply by its terms. The Court further notes that the statutory provision contains a
heightened procedural requirement of a determination by the “head of the agency” and
a heighted substantive requirement that a cancellation be “in the public interest” and
not merely “in the best interest of the government” as in FAR 15.305(b). See 10 U.S.C.
§ 2305(b)(2).
The government contends that 10 U.S.C. § 2305(b)(2) is inapplicable to the
cancelled solicitations because the agency did not seek “competitive proposals.” Def.
Supp. Br. at 1–2. According to the government, the FAR distinguishes between
violation of a specific statute or regulation, this court continues to be able to address
cancellation issues.”); B & B Med. Servs., Inc. v. United States, 114 Fed. Cl. 658, 660 (2014) (“Given
our long history of entertaining such [arbitrary procurement cancellation] protests, the Court
does not find subject-matter jurisdiction to be absent merely because the particular regulation
that is violated by arbitrary cancellation is absent from the complaint.”); Sigmatech, Inc. v. United
States, 141 Fed. Cl. 284, 313 (2018) (“The [FAR] requires that contracting officers ‘[e]nsure that
contractors receive impartial, fair, and equitable treatment.’” (quoting FAR 1.602-2(b))); Centerra
Grp., LLC v. United States, 138 Fed. Cl. 407, 413 (2018) (holding that “[f]airness in government
procurements is enshrined in a number of FAR provisions[,]” including FAR 1.602–2(b));
BCPeabody Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502, 512 (2013) (“Contracting officers
are required to ‘ensure that contractors receive impartial, fair, and equitable treatment.’”
(quoting FAR 1.602–2(b))); Serco Inc. v. United States, 81 Fed. Cl. 463, 482 (2008) (noting “agency’s
fundamental duty to ‘[e]nsure that contractors receive impartial, fair and equitable treatment’”
(quoting FAR 1.602–2))); Precision Images, LLC v. United States, 79 Fed. Cl. 598, 619 (2007) (“The
[FAR] impose[s] upon the Air Force the affirmative duty to ‘[e]nsure that contractors receive
impartial, fair, and equitable treatment’ during the procurement process.” (citing FAR 1.602–2(b))
(emphasis added)), aff’d, 283 F. App’x 813 (Fed. Cir. 2008); Jacobs Tech. Inc. v. United States, 131
Fed. Cl. 430, 445 (2017) (holding that plaintiff “sufficiently alleged that the Army violated
applicable regulations in connection with the . . . procurement” (citing FAR 1.602–2(b))).
15
procurements seeking “competitive proposals” and those involving “competitive
procedures”:
FAR 6.102(d)(3) provides that the “[u]se of multiple award
schedules issued under the procedures established by the
Administrator of General Services consistent with the
requirement of 41 U.S.C.152(3)(A) for the multiple award
schedule program of the General Services Administration is a
competitive procedure” (emphasis added). FAR 6.102(b)
explicitly defines “competitive proposal” as “other” than a
subsection (d) “competitive procedure[.]”
Def. Supp. Br. at 2. The Court rejects the government’s argument for two reasons:
(1) the hypothesized dichotomy between a procurement requesting “competitive
proposals” and a procurement involving “competitive procedures” is false – there is no
inherent contradiction or distinction; and (2) the cancelled solicitations at issue here in
fact sought competitive proposals. This is evident from statutory language, as well as
the mechanics of a typical FAR Part 8 procurement, the latter which the agency did not
follow in this case.
First, Title 10 of the U.S. Code consistently uses the term “competitive proposals”
not in contrast with “competitive procedures” but rather only in contrast with sealed
bids. For example, 10 U.S.C. § 2302(3)(D) incorporates the definition of the term “full
and open competition” found “in chapter 1 of title 41.” The latter statutory section, in
turn, defines “full and open competition” to “mean[] that all responsible sources are
permitted to submit sealed bids or competitive proposals on the procurement.” 41 U.S.C.
§ 107 (emphasis added). Similarly, 10 U.S.C. § 2304(a)(2)(B) provides that “the head of
an agency . . . shall request competitive proposals if sealed bids are not appropriate. . . .”
Cf. 41 U.S.C. § 3701(a) (“An executive agency shall evaluate sealed bids and competitive
proposals, and award a contract, based solely on the factors specified in the solicitation.”
(emphasis added)). The solicitations at issue were not invitations for sealed bids.
Second, although the government relies on FAR 6.102, as explained above, to
argue that “competitive proposals” are synonymous with FAR Part 15 procurements,
that thread quickly unravels as the Court follows it through. For example, FAR 6.401
indicates that “[s]ealed bidding and competitive proposals, as described in parts 14 and
15, are both acceptable procedures for use under subpart[] 6.1,” which, of course,
includes FAR 6.102. Furthermore, FAR 6.401(b) covers “competitive proposals” and
references FAR Part 15 “for procedures”; but, FAR 15.000 itself – similar to the statutory
provisions discussed above – distinguishes only between negotiated procurements and
sealed bidding. See FAR 15.000 (noting that “[t]his part prescribes policies and
procedures governing competitive and noncompetitive negotiated acquisitions” and
providing that “[a] contract awarded using other than sealed bidding procedures is a
16
negotiated contract”). The cancelled solicitations in this case contemplated negotiated
procurements and did not follow “sealed bidding procedures.” Id.Accordingly, while the Court agrees with the government that the cancelled
solicitations at issue were not subject to FAR Part 15 per se, Def. Supp. Br. at 3–5, the
Court agrees with the PTP that the solicitations nevertheless constituted “negotiated
procurements” that solicited “competitive proposals” pursuant to a Request for
Proposals (“RFP”). See PTP Supp. Br. at 8–9 (“Although the Agency may have had the
authority to structure the Solicitations as RFQs seeking only responsive quotes, the
Agency here issued unmistakable RFPs, seeking competitive proposals that the Agency
could evaluate and accept.” (emphasis in original)). The Administrative Record
thoroughly supports PTP’s position in that regard. For example, the July 10, 2020 Task
Order Decision Document (“TODD”) for the 13F procurement, signed by the
Contracting Officer, see ECF No. 25 at 346–55 (AR 342–51), admits that the “solicitation
was placed against the GSA MAS . . . as a 100% [SDVOSB] set-aside competitive action
using order procedure under [FAR] 8.405-2 in conjunction with FAR Part 15-Contract
by Negotiation and FAR Part 12-Acquisition of Commercial Items.” Id. at 346 (AR 342)
(emphasis added).
Moreover, the Administrative Record confirms that the agency engaged in
negotiations insofar as “[p]roposal revisions were allowed and offerors could submit a
final offer based on changes provided on solicitation amendments.” Id. at 348 (AR 344)
(also citing FAR 15.404-1 regarding price analysis); see also AR 350 (citing FAR 15.403
regarding “adequate price competition”). Similarly, the JFOC Past Performance
Questionnaire explicitly informed prospective references that the agency’s planned
“schedule will allow sufficient time to analyze the data prior to the start of negotiations.”
Id. at 499 (AR 495) (emphasis added). The JFOC TODD indicated that the FAR Part 8
RFP “was placed against the GSA MAS . . . as a 100% [SDVOSB] set-aside competitive
action using FAR Part 15-Contract by Negotiation and FAR Part 12-Acquisition of
Commercial Items.” Id. at 565 (AR 561) (emphasis added). As part of the JFOC
procurement, the agency conducted discussions and permitted final proposal revisions.
AR 563 (indicating that “[t]wo of the four offerors made changes and submitted Final
Offers”). As this Court has noted, “the acid test for deciding whether an agency has
engaged in discussions is whether the agency has provided an opportunity for
proposals to be revised or modified.” Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl.
16, 44 (2010) (quoting Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 230
(2008)). A solicitation that contemplates the submission of proposals and the possibility
of discussions is a negotiated procurement.
The government itself further admits that the procurements at issue in this case
are “negotiated procurement[s].” Def. MJAR at 15 (acknowledging that “[i]n the
context of a negotiated procurement like this one,” the contracting officer’s cancellation
decision is subject to the APA review standard in § 1491(b)(4) (emphasis added)); id. at
16 (addressing the “Court’s review of a cancellation decision in the course of a
17
negotiated procurement” and arguing that “[b]ecause the contracting officer has the
discretion to cancel a negotiated procurement,” a plaintiff must show the decision “had
no rational basis”). As demonstrated above, a negotiated procurement involves
competitive proposals. See PHT Supply Corp. v. United States, 71 Fed. Cl. 1, 12 (2006)
(“This federal statute provides that, in negotiated procurements, agencies ‘shall
evaluate ... competitive proposals and make an award based solely on the factors
specified in the solicitation.’” (quoting 10 U.S.C. § 2305(b)(1))).
The government’s attempt to distinguish the solicitations at issue from a
procurement seeking competitive proposals is particularly unavailing where, as here,
the government did not follow normal FAR Part 8 procedures. In that regard, the
government is correct that, typically, there is a distinction between procurements
conducted pursuant to FAR Parts 14 and 15, on the one hand, and FAR Part 8
procurements, on the other: the former solicit bids or proposals from bidders or
offerors, respectively, while the latter solicits quotations. FAR 2.101 delineates the
difference:
Offer means a response to a solicitation that, if accepted,
would bind the offeror to perform the resultant contract.
Responses to invitations for bids (sealed bidding) are offers
called “bids” or “sealed bids”; responses to requests for
proposals (negotiation) are offers called “proposals”;
however, responses to requests for quotations (simplified
acquisition) are “quotations”, not offers.
FAR 2.101 (emphasis added). 18
The GAO also helpfully has explained that a request for quotation (“RFQ”) is
nothing more than a request for information:
The submission of a bid or proposal constitutes, by its very
nature, an offer by a contractor that, if accepted, creates a
binding legal obligation on both parties. Because of the
binding nature of bids and offers, they are held open for
acceptance within a specified or reasonable period of
time . . . .
18Cf. FAR 13.004(a) (“A quotation is not an offer and, consequently, cannot be accepted by the
Government to form a binding contract. Therefore, issuance by the Government of an order in
response to a supplier's quotation does not establish a contract. The order is an offer by the
Government to the supplier to buy certain supplies or services upon specified terms and
conditions. A contract is established when the supplier accepts the offer.”).
18
A quotation, on the other hand, is not a submission for
acceptance by the government to form a binding contract;
rather, vendor quotations are purely informational. In the
RFQ context, it is the government that makes the offer, albeit
generally based on the information provided by the vendor in
its quotation, and no binding agreement is created until the
vendor accepts the offer. FAR § 13.004(a). A vendor
submitting a price quotation therefore could, the next
moment, reject an offer from the government at its quoted
price. Because vendors in the RFQ context hold the power of
acceptance and their submissions are purely informational,
there is nothing for vendors to hold open.
Sea Box, Inc., B-405711, 2012 CPD ¶ 116, 2012 WL 924951, *2–*3 (Mar. 19, 2012) (internal
citations omitted) (emphasis added). 19
In this case, in contrast, the agency did not merely solicit quotes resulting in a
purchase order to the putative awardees. Rather, the agency solicited competitive
proposals pursuant to RFPs, contemplated negotiations, and awarded contracts based
upon those proposals. 20 ECF No. 25 at 5 (AR 1) (13F Solicitation); id. at 386 (AR 382)
(JFOC Solicitation); id. at 244-45 (AR 240-41) (F13 TODD consistently using the term
“proposals”); id at 565-66 (AR 561-62) (JFOC TODD consistently using the term
“proposals”).
Because the solicitations at issue here were RFPs seeking competitive proposals
as part of a negotiated procurement – and were neither Invitations for Bids (“IFBs”) nor
Requests for Quotations (“RFQs”), see PTP Supp. at 8 – the Court concludes that the
agency had to comply with 10 U.S.C. § 2305(b)(2). The FAR’s definition of “solicitation”
19“Though GAO opinions are not binding on this court, . . . this court may draw on GAO’s
opinions for its application of this expertise.” Allied Tech. Grp., Inc. v. United States, 649 F.3d
1320, 1331 n.1 (Fed. Cir. 2011) (citing Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.
Cir. 1989)); see Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105, 140 n.6 (2020) (“GAO
decisions are not binding on the Court but may be treated as persuasive authority in light of
GAO’s expertise in the bid protest arena.”).
20The GSA itself warns against using an RFP for FSS purchases, but that is exactly what the
agency did here. https://interact.gsa.gov/wiki/its-rfq-quote-rather-rfp-offer-when-talking-
about-orders-against-schedules-far-84 (“It is inappropriate and contrary to FAR SubPart 8.4 to
call a Schedule order request for quotation an ‘RFP.’ The FAR never recognizes ‘RFP’ as a
suitable substitute for a Schedule order’s ‘RFQ.’ As the FAR (as well as the Government
Contracts Reference Book and other sources) point out, ‘RFP’ and ‘RFQ’ are not
interchangeable. They differ in when offer and acceptance occurs. When talking about
Schedule orders, only ‘RFQ’ is recognized by the FAR.”) (last visited Nov. 25, 2020).
19
proves the point: “Solicitation means any request to submit offers or quotations to the
Government. Solicitations under sealed bid procedures are called ‘invitations for bids.’
Solicitations under negotiated procedures are called ‘requests for proposals.’” FAR 2.101
(emphasis added). Accordingly, in this case, the cancelled solicitations were not IFBs or
RFQs, but rather were RFPs – that is, “requests for proposals” as part of negotiated
procurements conducted under FAR Part 8. Id. That is all that is necessary for 10 U.S.C.
§ 2305(b)(2) to apply, and the government cannot now, for the purposes of litigation,
recharacterize the procurements as typical FSS purchases seeking only quotations.
Aiken v. United States, 4 Cl. Ct. 685, 694 (1984) (“party characterizations or mere contract
formalisms cannot alter the substance of a transaction”); Burstein v. United States, 622
F.2d 529, 537 (Ct. Cl. 1980) (“[W]e must look to the substance of the transaction; the true
nature of the arrangement cannot be altered by mere contractual formalisms.”); see IBM
U.S. Fed., A Div. of IBM Corporation, B-409806, 2014 CPD ¶ 241, 2014 WL 4160022, *6
(Aug. 15, 2014) (“Where, as here, an agency . . . uses an approach more akin to a
competition in a negotiated procurement than to a simple FSS buy, GAO will review the
record to ensure that the procurement was conducted on a fair and reasonable basis and
consistent with standards generally applicable to negotiated procurements.”); Omniplex
World Servs. Corp., B-291105, 2002 CPD ¶ 199, 2002 WL 31538212, *3 (Nov. 6, 2002)
(“[W]hile the provisions of FAR Part 15, which govern contracting by negotiation, do
not directly apply, . . . we analyze [the protestor’s] contentions by the standards applied
to negotiated procurements.”); Allied Tech. Grp., Inc., B-402135, 2010 CPD ¶ 152, 2010
WL 2726056, *4 n.8 (Jan. 21, 2010) (“The procurement here was conducted under the FSS
provisions of FAR subpart 8.4, and thus the negotiated procurement provisions of FAR
part 15 do not directly apply. However, our Office has held that where agencies use the
negotiated procurement techniques of FAR part 15 in FSS buys, such as discussions, we
will review the agency's actions under the standards applicable to negotiated
procurements.”). 21
* * * *
Plaintiffs also allege violations of FAR 19.502-2 and FAR 19.502-9, TTGI Am.
Compl. at ¶¶ 36–38; PTP Compl. at ¶¶ 87–90, 104–08, independently vesting this Court
21The Court acknowledges that the GAO’s decision in The MIL Corp., B-297508, 2006 CPD ¶ 34,
2006 WL 305965 (Jan. 26, 2006), may be read to have reached a contrary conclusion, in part in
reliance upon this Court’s decision in Systems Plus, Inc. v. United States, 68 Fed. Cl. 206, 209–210
(2005). Both cases are distinguishable, however, because while they involved FSS procurements
having elements of negotiated procedures, they involved RFQs and not RFPs. The MIL Corp.,
2006 WL 305965, *5 (“Here, the procurement was not conducted pursuant to the negotiated
procedures of FAR Part 15, nor did it involve the issuance of a request for proposals. Rather, the
procurement here was conducted under the FSS program, pursuant to the procedures set forth
in FAR Subpart 8.4 and using a request for quotations.” (emphasis added)); Sys. Plus, Inc., 68 Fed.
20with jurisdiction to consider those claims pursuant to the fourth prong of 28 U.S.C.
§ 1491(b)(1). Finally, even if Plaintiffs were unable to rely on any particular statute or
regulation to challenge the cancellation of the solicitations at issue pursuant to 28 U.S.C.
§ 1491(b)(1), the Court still would have jurisdiction under 28 U.S.C. § 1491(a), although
the available relief would include only proposal costs, and not injunctive relief. See Eco
Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6, 41–42 (2013) (“[E]quitable relief is
. . . unavailable in implied contract bid protests pursued under section 1491(a).”).
B. The FASA Task Order Protest Bar
The FASA task order protest bar provides that “[a] protest is not authorized in
connection with the issuance or proposed issuance of a task or delivery order . . . .” 41
U.S.C. § 4106(f)(1) (emphasis added). The government does not contend that the FASA
task order protest bar precludes this Court’s jurisdiction over Plaintiffs’ claim generally
challenging the propriety of the agency’s solicitation cancellation decisions (i.e., even
though the agency intends to utilize a task order vehicle for the replacement
procurement). The government argues, however, that this Court is precluded from
deciding Plaintiffs’ claims to the extent that they depend upon this Court’s ruling on the
application of the Rule of Two. Def. MJAR at 30–33.
Relying on Federal Circuit precedent in SRA Int’l, Inc. v. United States, 766 F.3d
1409 (Fed. Cir. 2014), where that court held that “nothing in FASA’s language
automatically exempts actions that are temporally disconnected from the issuance of a
task order,” id. at 1413, the government asserts that SRA “affirms the broad reach of
FASA and establishes that a protest of the failure to conduct a rule of two analysis prior
to issuing a task order [under an IDIQ] is not a colorable basis to avoid the statutory
Cl. at 206 (noting that the procurement at issue was an RFQ). Moreover, the GAO in The MIL
Corp. explicitly agreed with our determination here that “the use of negotiated procedures in
accordance with [FAR] Part 15 and as evidenced by the issuance of a request for proposals, constitutes
a procurement conducted on the basis of competitive proposals.” The MIL Corp., 2006 WL 305965, *5
(emphasis added) (citing cases in which the GAO equated “a negotiated procurement with a
procurement conducted on the basis of competitive proposals”); see also Comfort Inn South, B-
270819, 96-1 CPD ¶ 225, 1996 WL 251441, *2 (equating the term “competitive proposals” in 10
U.S.C. § 2304(a)(2)(B) with “negotiated procedures”). On another note, the Court finds it very
hard to believe that the government would argue that Plaintiffs’ proposals are subject to public
disclosure. See 41 U.S.C. § 4702 (“Prohibition on release of contractor proposals”) (providing
that “[a] proposal in the possession or control of an executive agency may not be made available
to any person under [the Freedom of Information Act,] section 552 of title 5” where “proposal”
is defined as “including a technical, management, or cost proposal, submitted by a contractor in
response to the requirements of a solicitation for a competitive proposal” (emphasis added)); see also
10 U.S.C. § 2305(g) (same).
21
[task order protest] bar.” Def. Mot. at 30–31. 22 Furthermore, the government notes that
the Federal Circuit in RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289
(Fed. Cir. 1999), has interpreted broadly the phrase “in connection with” in the Tucker
Act, 28 U.S.C. § 1491(b)(1). 23 Def. Resp. at 8–9. Accordingly, the question that the
government fairly raises is whether Plaintiffs’ claims that the Army failed to perform
the Rule of Two analysis (before deciding to move the 13F and JFOC scopes of work to
the TMS MAIDIQ) constitute a “protest” that is “in connection with the issuance or
22 Candidly, the Court notes that the government’s position is far more persuasive than the
Court at oral arguments gave the government credit for and, thus, the Court addresses the
relevant issues at greater length.
23The filing of a protest with the General Accounting Office (“GAO”) may trigger an automatic
stay of a procurement under the provisions of the Competition in Contracting Act (“CICA”), 31
U.S.C. §§ 3551–56, prohibiting an agency from awarding a new contract pending a decision on
the protest. See 31 U.S.C. § 3553(c)(1). CICA, however, also allows an agency to override the
automatic stay if it issues a written finding that “urgent and compelling circumstances which
significantly affect interests of the United States will not permit waiting” for the bid protest
decision. 31 U.S.C. § 3553(c)(2); see RAMCOR, 185 F.3d at 1287. In RAMCOR, the Federal
Circuit addressed the question of “whether an objection to a [31 U.S.C.] § 3553(c)(2) override can
serve as a jurisdictional basis under § 1491(b)(1).” Id. at 1289. The Federal Circuit thus had “to
determine whether § 3553(c)(2) is a statute ‘in connection with a procurement,’ as required by
§ 1491(b)(1).” Id. While the Court of Federal Claims had held that a plaintiff protestor “could
only invoke § 1491(b)(1) jurisdiction by including in its action an attack on the merits of the
underlying contract award” – and that this Court accordingly lacked jurisdiction to decide an
override challenge – the Federal Circuit reversed. Id. The Federal Circuit explained its
reasoning as follows:
The language of § 1491(b) . . . does not require an objection to the
actual contract procurement, but only to the “violation of a statute
or regulation in connection with a procurement or a proposed
procurement.” The operative phrase “in connection with” is very
sweeping in scope. As long as a statute has a connection to a
procurement proposal, an alleged violation suffices to supply
jurisdiction. Section 3553(c)(2) fits comfortably in that broad
category. After all, [the agency’s] § 3553(c)(2) override allowed it
to procure immediately [the awardee’s] services. Moreover, under
that procurement, [the contact awardee] could have immediately
commenced work. Where an agency’s actions under a statute so
clearly affect the award and performance of a contract, this court
has little difficulty concluding that that statute has a “connection
with a procurement.”
Id. (emphasis added).
22
proposed issuance of a task or delivery order.” Def. MJAR at 30 (discussing 41 U.S.C. §
4106(f)(1)). 24 According to the government, “[t]here simply is no way to view the
protests of the TMS MAIDIQ as anything other than the protest of a proposed task
order.” Id. at 32–33 (emphasis added).
This Court disagrees that Plaintiffs are protesting either the TMS MAIDIQ itself
or even the “proposed issuance” of a task order. The Court further disagrees with the
government that the FASA protest bar is at all applicable here.
The Court must first appropriately frame Plaintiffs’ Rule of Two arguments. All
of the parties (and the Court) appear to agree that the Army’s decision to cancel the
solicitations at issue depends upon the availability of the TMS MAIDIQ as a viable
alternative under which the procurements may be conducted. In other words, there is
no question about the agency’s continuing need for the precise services sought pursuant
to the 13F and JFOC Solicitations. Accordingly, there are several possible ways to view
Plaintiffs’ Rule of Two arguments. One possible way is that the agency’s cancellation
decisions are irrational to the extent the agency has not performed a Rule of Two
analysis in order to know whether the TMS MAIDIQ is, in fact, a viable alternative.
Another possible way to view Plaintiffs’ claims is that because the agency has selected
the TMS MAIDIQ vehicle as part of a revised acquisition strategy, that selection itself
violated the Rule of Two, irrespective of the rationale offered in the agency’s August 10
MFR. 25 The first view ties the Rule of Two issue to the propriety or legality of the
agency’s cancellation decisions, while the latter view constitutes a challenge to the
legality of an independent agency action. Viewed either way, Plaintiffs’ actions before
this Court do not constitute a “protest . . . in connection with the issuance or proposed
24 In terms of the FASA task order protest bar, the government relies exclusively upon the
provision in Title 41, notwithstanding the government’s contention in its supplemental brief
that “Section 3701(b) of Title 41 does not apply here because nothing in Title 41, Subtitle I,
Division C (§§ 3101 – 4714) applies to the Department of Defense.” Def. Supp. Br. at 2 (citing 41
U.S.C. § 3101(c)(1)(A)). The government nowhere addresses 10 U.S.C. § 2304c(e), the task order
protest bar applicable to Department of Defense (“DOD”) procurements. The difference
between the two statutes is the dollar value of the GAO jurisdictional threshold; for DOD
procurements, the applicable threshold is $25 million. 10 U.S.C. § 2304c(e)(1)(B). Because there
is no practical difference between the two provisions for the purposes of this decision, the
instant decision discusses 41 U.S.C. § 4106(f), the statutory provision upon which the
government has relied in its briefs.
25Even on that point, however, the government is noncommittal, in one sentence asserting that
“there is no uncertainty as to what contracting vehicle would be selected,” and then in the very
next sentence asserting that “the administrative record demonstrates that the agency has decided
already to use the TMS MAIDIQ.” Def. MJAR at 32 (emphasis added).
23
issuance” of a task order, nor does the Court agree with the government that Plaintiffs
are protesting the TMS MAIDIQ itself (or the proposed issuance of a task order).
For the reasons explained below, the Court finds that the FASA task order bar
does not apply to the present case because: (1) FASA only applies to a “protest” but that
term does not necessarily encompass an action alleging an independent “violation of
statute or regulation in connection with a procurement or proposed procurement”; (2)
even where an action properly may be considered a “protest,” FASA only applies
where there is some relationship to a “proposed issuance or issuance of a task order” –
that is, where a plaintiff is, in effect, a disappointed bidder or offeror; and (3) a
challenge to an agency’s alleged failure to conduct a Rule of Two analysis is not “in
connection with” a task order, no matter how Plaintiffs’ claims are viewed or how the
other operative language in FASA is interpreted or parsed.
As with any question of statutory analysis, this Court starts, as it must, with the
applicable statutory language. 26 The FASA task order protest bar provides, in its
entirety, as follows: “[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 $10,000,000.”
41 U.S.C. § 4106(f)(1) (emphasis added). With respect to the latter exception, the GAO
has exclusive jurisdiction to decide such claims. Id. § 4106(f)(2).
The interpretative difficulty is that FASA does not provide any further
definitional clarity regarding its operative terms. Solving this puzzle requires paying
close attention to the entirety of the FASA’s statutory language. While decisions from
this Court and the Federal Circuit generally have focused on the “in connection with”
language 27 – and that phrase’s “very sweeping . . . scope,” RAMCOR, 185 F.3d at 1289 –
that is but one-third of the FASA statutory equation. The remaining operative language
that remains to be unpacked is (a) “protest” and (b) “issuance or proposed issuance of a
task or delivery order,” 41 U.S.C. § 4106(f)(1), both of which, in this Court’s view,
considerably narrow the FASA’s jurisdictional bar. Cf. Maracich v. Spears, 570 U.S. 48, 60
(2013) (“[T]he phrase ‘in connection with’ provides little guidance without a limiting
principle consistent with the structure of the statute and its other provisions.”).
26Dyer v. Dep't of the Air Force, 971 F.3d 1377, 1380 (Fed. Cir. 2020) (quoting Kingdomware Techs.,
Inc. v. United States, –– U.S. ––, 136 S. Ct. 1969, 1976 (2016), for the proposition that “[i]n
statutory construction, we begin with the language of the statute” (internal quotes omitted)).
27BayFirst Sols., LLC v. United States, 104 Fed. Cl. 493, 502 (2012) (“There seems to be some
variation in this court’s approach to interpreting the term ‘in connection with’ when applying
the ban on task order protests in particular cases.”).
24
1. FASA Does Not Necessarily Bar Claims Alleging A “Violation Of
Statute Or Regulation In Connection With A Procurement Or
Proposed Procurement”
The FASA task order bar applies only to “protest[s].” This Court therefore must
decide whether Plaintiffs’ claims in this case – specifically with respect to the agency’s
alleged violation of the Rule of Two – constitute a “protest.” The Court is unconcerned
with how that word is employed colloquially to describe § 1491(b) actions generally;
instead, the Court focuses on the language that Congress actually enacted in its statutes.
Azar v. Allina Health Servs., 587 U.S. ––, 139 S. Ct. 1804, 1812 (2019) (“This Court does not
lightly assume that Congress silently attached different meanings to the same term in . .
. related statutes.”). In that regard, on the one hand, neither the FASA task order
protest bar provision nor the Tucker Act defines the term “protest” and the question of
what that term includes is not straightforward. On the other hand, the GAO’s bid
protest jurisdictional statute, the Competition in Contracting Act (“CICA”), 28 defines
that term as follows:
The term “protest” means 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.
(D) 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.
(E) Conversion of a function that is being performed by
Federal employees to private sector performance.
31 U.S.C.A. § 3551(1); see also FAR 33.101 (defining “protest” similarly to CICA). 29
28 Pub. L. No. 98-369, 98 Stat. 1175 (1984) (codified, as amended, at 31 U.S.C. §§ 3551-3557).
29Notably, the CICA’s definition of “protest” explicitly distinguishes between an objection to a
solicitation, an objection to a solicitation’s cancellation, and an objection to “[a]n award or
proposed award.”
25
Focusing on CICA’s definition of the word “protest,” a Tucker Act cause of
action may be “in connection with” the issuance (or proposed issuance) of a task order,
but not subject to the FASA task order protest bar because the cause of action simply
does not qualify as a “protest.”30 As a more obvious practical analogy demonstrating
the accuracy of that conclusion, the government could not contend that a Contract
Disputes Act (“CDA”) claim qualifies as a “protest” subject to the FASA task order
protest bar. Kellogg Brown & Root Servs., Inc. v. United States, 117 Fed. Cl. 764, 770 (2014)
(holding that “this matter is not within our bid protest jurisdiction, but instead involves
questions of contract administration that must be brought under the CDA”); Itility, LLC
v. United States, 124 Fed. Cl. 452, 458 (2015) (noting that “a long line of our cases has
held that the ‘interested party’ standing to bring a bid protest does not extend to the
complaints of contractors concerning the administration of contracts they have been
awarded and performing”); Digital Techs., Inc. v. United States, 89 Fed. Cl. 711, 722, 728–
29 (2009) (“By its terms, the FASA prohibition on bid protests does not apply to a breach
of contract case” or CDA claims). 31
A further comparison of the FASA task order protest bar to the Tucker Act
language (and RAMCOR’s interpretation of the latter) is instructive and demonstrates
that not all § 1491(b)(1) claims qualify as a “protest.” For starters, the Tucker Act
nowhere employs the term “protest” but rather refers repeatedly to “an action” (or “any
action”). 28 U.S.C. § 1491(b). 32 As noted previously, the Tucker Act, as amended by
ADRA, provides for four distinct causes of action related to the procurement process:
“an action by an interested party 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
30“The CICA and the ADRA are, after all, different statutes, with different definitions of bid
protest.” Alaska Cent. Exp., Inc. v. United States, 50 Fed. Cl. 510, 517 (2001).
31Cf. Cont'l Serv. Grp., Inc. v. United States, 722 F. App’x 986, 992 (Fed. Cir. 2018) (noting
government’s position that a particular claim, dismissed by the trial court, was “a contract
administration claim subject to the [CDA] over which the Claims Court had no bid protest
jurisdiction”).
32CICA explicitly distinguishes between an “action” in this Court and a “protest” before the
GAO. 31 U.S.C. § 3556 (explaining that “nothing contained in this subchapter shall affect the
right of any interested party to file a protest with the contracting agency or to file an action in
the United States Court of Federal Claims”); see also 41 U.S.C. § 2101(6) (“The term ‘protest’
means a written objection by an interested party to the award or proposed award of a Federal
agency procurement contract, pursuant to subchapter V of chapter 35 of title 31.”); 31 U.S.C.
§ 1558 (distinguishing between a “protest filed under subchapter V of chapter 35 of this title,”
on the one hand, and “an action commenced . . . for a judicial remedy” involving a “a challenge
to-- (i) a solicitation for a contract; (ii) a proposed award of a contract; (iii) an award of a
contract; or (iv) the eligibility of an offeror or potential offeror for a contract or of the contractor
awarded the contract” (emphasis added)).
26
a contract or [4] any alleged violation of statute or regulation in connection with a
procurement or a proposed procurement.” Id. § 1491(b)(1) (emphasis added). The first
three causes of action are what we typically refer to as bid “protests,” as that term is
defined in CICA – i.e., challenges, respectively, to a solicitation or to the merits of a
contract award (or a proposed award). In contrast, the fourth prong of § 1491(b)(1) –
pursuant to which a plaintiff may allege a “violation of statute or regulation in
connection with a procurement or a proposed procurement” – is not necessarily a
“protest,” at least as that term is defined in CICA. 33 Indeed, although “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. RAMCOR, 185 F.3d at 1289 (emphasis added).
Put differently, “[t]he language of § 1491(b) . . . does not require an objection to
the actual contract procurement, but only to the ‘violation of a statute or regulation in
connection with a procurement or a proposed procurement.’” RAMCOR, 185 F.3d at
1289. The Federal Circuit further explained that construing § 1491(b)(1) to require a
plaintiff to object to the merits of a procurement effectively would eliminate the fourth
prong of the statute, as “[a] challenge on the merits would, for example, amount to an
objection to ‘a proposed award or the award of a contract.’” Id. (emphasis added) (“If
§ 1491(b) required a challenge to the merits of the contract award, the contractor would
never need to use the ‘violation’ prong but could always rely on other jurisdictional
grants in § 1491(b)(1).”). Simply put, an action under the last prong of § 1491(b) is not a
“protest” because it is not a challenge to a solicitation or to the proposed award or
award of a contract. In that regard, an axiomatic canon of statutory interpretation is
that “[w]hen construing a statute, this court must, if at all possible, give effect to all its
parts.” 185 F.3d at 1289 (citing Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S.
609, 633 (1973), and noting that “[t]he trial court’s proposed interpretation of §
1491(b)(1) would violate this basic tenet of statutory construction”). Accordingly,
33Thus, while “the Federal Circuit has made clear that a RAMCOR-type action may be brought
independent of whether the plaintiff objects to the actual contract procurement[,] CICA’s
definition of ‘protest’ is more limited than the scope of actions described by the Tucker Act and
does not include an independent ‘violation of statute or regulation in connection with a
procurement or a proposed procurement’ prong[.]” M. Solomson & J. Handwerker,
Subcontractor Challenges To Federal Agency Procurement Actions, 06-3 Briefing Papers 1, *6 (Feb.
2006). That is not to say that the GAO’s protest jurisdiction precludes its consideration of
alleged violations of statutes or regulations, see 31 U.S.C. § 3552(a), but rather the GAO may
only consider such allegations as part of a “written objection by an interested party” that meets
the definition of “protest” in 31 U.S.C. § 3551.
27
§ 1491(b)(1) must be construed to permit a cause of action which is neither a “protest” of
a solicitation, nor of a contract award (or proposed award). 34
The question, then, is what is the nature of Plaintiffs’ Rule of Two claims in this
case? Does an alleged violation of the Rule of Two challenge a solicitation or otherwise
object to an award or proposed award of a contract (i.e., are Plaintiffs’ claims
“protests”)? Or, are Plaintiffs’ claims properly considered only under the fourth prong
of § 1491(b)(1)?
Before answering those questions, the Court returns to the statutory language of
the FASA task order protest bar, and concludes that it applies, by its plain terms, only to
the first three causes of action identified in § 1491(b)(1), where CICA’s definition of
“protest” and the Tucker Act overlap. 35 In that regard, this Court concludes that the in
34As RAMCOR confirms, the protest of a “proposed award” concerns the merits of the agency’s
presumptive award (prior to the actual award), but in any event is not the same thing as a
solicitation protest. 185 F.3d at 1289 (“[a] challenge on the merits would, for example, amount
to an objection to ‘a proposed award or the award of a contract’”); see also, e.g., CGI Fed., Inc., B-
418807, 2020 CPD ¶ 276, 2020 WL 4901733, *4 (Aug. 18, 2020) (holding that although “[u]nder
CICA, protests are defined to include challenges involving solicitations, and awards made or
proposed under those solicitations[,]” the putative protestors did not allege grounds within the
GAO’s jurisdiction “because they do not object to the terms of a solicitation and do not
otherwise concern the award of a contract”); Litton Sys., Inc., B-229921, 88-1 CPD ¶ 448, 1988 WL
227107, *6 (May 10, 1988) (explaining that GAO “generally see[s] nothing improper in an agency
requirement that a proposed award selection be reviewed by higher agency officials” (emphasis
added)). A typical “proposed award,” for example, is an agency’s announcement of its intent to
award a sole-source contract. See, e.g., Wamore, Inc., B-417450, 2019 CPD ¶ 253, 2019 WL 3214259(July 9, 2019) (“Wamore filed its protest challenging the Army’s planned sole-source contract
award to Airborne Systems.”); eFedBudget Corp., B-298627, 2006 CPD ¶ 159, 2006 WL 3347953(Nov. 15, 2006) (“eFedBudget Corporation protests the proposed award of a contract on a sole-
source basis to RGII Technologies, Inc.”).
35Alphapointe v. Dep’t of Veterans Affairs, -- F. Supp. 3d --, 2020 WL 4346914, at *6–*7 (D.D.C. July
29, 2020) (transferring case to the Court of Federal Claims, and rejecting, consistent with other
cases, plaintiff’s argument that § 1491(b)(1) only covers “a bid protest or ‘a dispute over an
individual contract solicitation or award.’” (quoting Pub. Warehousing Co. K.S.C. v. Defense
Supply Ctr., 489 F. Supp. 2d 30, 39–40 (D.D.C. 2007)). In Public Warehousing Co., the District
Court correctly explained that the notion of a “‘bid protest’ limitation was squarely rejected in
RAMCOR” because “[l]imiting the ‘violation of statute or regulation’ prong to bid protest cases
would render it superfluous.” 489 F. Supp. 2d at 40 (holding that if “section 1491(b)(1) were
limited to claims challenging the merits of a specific solicitation or contract award, the ‘violation
of statute or regulation’ clause would serve no purpose because the other clauses in section
1491(b)(1) vesting jurisdiction in the Court of Federal Claims would suffice” (citing RAMCOR,
185 F.3d at 1289)). Thus, although the term “bid protest” is generally used to refer to actions
brought pursuant to 28 U.S.C. § 1491(b)(1), it more accurately describes only the first three
prongs of that statutory section. 489 F.2d at 40 (rejecting plaintiff’s contention that “Congress
intended the matters described [in § 1491(b)(1)] to be limited to bid protests,” and citing cases
28
pari materia canon of statutory interpretation 36 should be applied here such that FASA’s
usage of the term “protest” must be read as Congress defined the term in CICA.
First, the Federal Acquisition Streamlining Act of 1994 expressly incorporated the
CICA’s definition of “protest.” See Pub. L. No. 103-355, 108 Stat. 3243 §§ 1004 (“Task
and Delivery Order Contracts”), 1054 (“Task and Delivery Order Contracts”), 1401
(“Protest Defined”), 1438 (“Definition of Protest”). There is no reason to go searching
for another definition of “protest” in FASA (or elsewhere) where Congress literally
defined the term in context.
Second, binding Federal Circuit precedent requires us to apply CICA’s definition
of “interested party” to § 1491(b), and both “interested party” and “protest” are defined
in the very same statutory provision. See 31 U.S.C. § 3551; see also Am. Fed’n of Gov’t
Employees, AFL–CIO v. United States, 258 F.3d 1294 (Fed. Cir. 2001). 37 There is no
plausible justification for applying CICA’s definition of “interested party” to § 1491(b),
while ignoring CICA’s definition of “protest” in interpreting a jurisdictional limit on
§ 1491(b).
Third, the current FASA task order protest bar itself provides GAO with
“exclusive jurisdiction” over a “protest of an order valued in excess of $10,000,000.” 41
U.S.C. § 4106(f)(1)(B) & (F)(2). 38 The term “protest” in the jurisdictional bar must be
read as coterminous with what that term means at the GAO. Viewed from the other
for the proposition that “every court to address the ‘violation of statute or regulation’ clause
outside of a traditional bid protest setting—in plaintiff’s words, ‘some other challenge’—has
concluded that the breadth of that clause covers even non-traditional disputes arising from the
procurement process as long as the violation is ‘in connection with a procurement or a proposed
procurement’” (emphasis added)). “Thus, although it is true that litigation under the ADRA
traditionally has developed around pre- and post-award bid protests, no inference can be
drawn that the ADRA covers only those types of cases.” 489 F. Supp. 2d at 41 (footnote
omitted). The Federal Circuit favorably cited Public Warehousing Co. K.S.C. in Distributed Sols.,
Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008).
36 “Under this canon, courts should interpret statutes with similar language that generally
address the same subject matter together, “‘as if they were one law.’” Strategic Hous. Fin. Corp.
of Travis Cty. v. United States, 608 F.3d 1317, 1330 (Fed. Cir. 2010) (quoting Erlenbaugh v. United
States, 409 U.S. 239, 243 (1972) (internal quotes omitted)).
37See also Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1352 (Fed. Cir. 2004); Rex Serv.
Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006) (noting that “the term ‘interested
party’ in section 1491(b)(1) is construed in accordance with the [CICA], 31 U.S.C. §§ 3551–56”);
Digital Techs., Inc., 89 Fed. Cl. at 722 n.15 (“The United States Court of Appeals for the Federal
Circuit has applied the CICA definition of ‘interested party’ in bid protests . . . .”); Wildflower
Int'l, Ltd. v. United States, 105 Fed. Cl. 362, 377 (2012) (discussing 41 U.S.C. § 4106(f), and CICA’s
definition of “protest”); Technatomy Corp., B–405130, 2011 WL 2321836, at *4 (June 14, 2011)
(employing CICA’s definition of protest in GAO’s analysis of § 4106(f)).
38 Or $25 million for DOD procurements. 10 U.S.C. § 2304c(e)(1)(B).
29
end of the telescope, the word “protest” cannot be read to mean one thing in the task
order protest bar, but something else in the jurisdictional grant to the GAO, as both
provisions are contained within 41 U.S.C. § 4106(f). Henson v. Santander Consumer USA
Inc., –– U.S. ––, 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))).
With the CICA’s definition of “protest” in mind, the Court concludes that the
FASA task order protest bar does not preclude Plaintiffs’ respective claims that the
agency failed to comply with the Rule of Two, particularly to the extent that such an
alleged violation may be viewed as distinct from the solicitation cancellation decisions
themselves. Although we recognize that CICA’s definition of “protest” includes an
objection to “[t]he cancellation of . . . a solicitation[,]” 31 U.S.C. § 3551(1)(B), and thus
such a claim (or cause of action) is plausibly within the ambit of FASA’s task order
protest bar, (1) the Tucker Act does not even authorize that same, independent action
per se, as demonstrated supra (and as the government itself argues), 39 and (2) the
government itself attempts to disengage the Rule of Two issue here from the challenged
cancellation decisions.
Again, the government does not argue that FASA task order protest bar generally
precludes Plaintiffs’ challenges to the cancellation decisions; indeed, the government’s
FASA protest bar argument is focused entirely upon Plaintiffs’ Rule of Two argument
standing alone and makes no mention of the cancelled procurements. See Def. MJAR at
30–31 (arguing for the “broad reach of FASA” such that “a protest of the failure to
conduct a rule of two analysis prior to issuing a task order is not a colorable basis to
avoid the statutory bar”); Def. Resp. at 11. The Court is not surprised by the
government’s approach because the cancellation decisions themselves are far removed
from the selection of a replacement acquisition vehicle, and the government no doubt
prefers to target something more likely to be considered “in connection with” a task
order process. To repeat: the government does not argue that Plaintiffs’ challenge to the
solicitation cancellations are barred per se by FASA. Thus, the government’s strategy,
understandably, is to tie the Rule of Two claims directly to the agency’s putative
selection of a task order vehicle, and then rely upon the breadth of FASA’s “in
connection with” language to argue for the application of the FASA protest bar.
If the government’s view of the Rule of Two claims is correct, however – i.e., that
it is segregable from the challenge to the solicitation cancellations as such – that means
that Plaintiffs’ “action” alleging a violation of various statutory or regulatory provisions
does not fit within any of CICA’s “protest” categories. And, thus, this Court properly
39That is why, pursuant to the fourth prong of 28 U.S.C. § 1491(b)(1), Plaintiffs must ground
their case here upon an alleged violation of statute or regulation.
30
may consider Plaintiffs’ Rule of Two claims, as explained above, only under the fourth
prong of 28 U.S.C. § 1491(b)(1), just as this Court must for the direct cancellation
decision challenge. Again, 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[.]’” Validata Chem. Servs. v. Dep't of
Energy, 169 F. Supp. 3d 69, 78 (D.D.C. 2016) (quoting Pub. Warehousing Co. K.S.C. v.
Defense Supply Ctr., 489 F. Supp. 2d 30, 40 (D.D.C. 2007) (quoting 28 U.S.C. § 1491(b)(1))).
Again, CICA’s definition of protest contains no analog to that prong of § 1491(b)(1). 40
The Court can demonstrate this conclusion by viewing the problem from yet
another, slightly different, angle. As explained above, the word “protest” cannot mean
one thing in the FASA provision precluding this Court’s jurisdiction over a particular
class of actions, but another thing in conferring exclusive jurisdiction on the GAO for
the very same objections (or “protests”). Accordingly, the FASA statutory provision
only precludes this Court from hearing actions over which GAO would itself have
exclusive jurisdiction were the task order award (or proposed award) valued in excess
of $10 million (or $25 million for DOD procurements). 41 U.S.C. § 4106(f)(2); 10 U.S.C.
§ 2304c(e)(1)(B). The GAO does not have jurisdiction over RAMCOR-type actions
brought pursuant to the final prong of 28 U.S.C. § 1491(b)(1), 41 and, thus, to the extent
Plaintiffs’ respective actions here may be properly considered under that final prong,
but not by the GAO under its jurisdictional statute, the FASA task order protest bar
cannot apply to preclude them. 42 That Plaintiffs’ allegations are properly considered
40To the extent Plaintiffs object to the solicitation cancellations, our jurisdiction to consider such
a challenge is also covered by the fourth prong of 28 U.S.C. § 1491(b)(1), but at least that cause
of action fits comfortably within CICA’s definition of “protest,” although the government does
not argue that the FASA bar applies to such an objection here. 31 U.S.C.A. § 3551(1)(B)
(solicitation cancellation). In contrast, a challenge to an agency’s selection of a replacement
acquisition vehicle as contrary to law, while squarely within 28 U.S.C. § 1491(b)(1), is not
covered per se by CICA’s definition of “protest.”
41See Aerosage, LLC, B-417289, 2019 CPD ¶ 151 n.10 (Apr. 24, 2019) (“A protester desiring to seek
enforcement of CICA’s stay provisions must request relief from a court of competent
jurisdiction-currently the U.S. Court of Federal Claims.”); Aerosage, LLC, B-415267.13, 2018 CPD
¶ 114, 2018 WL 1392945 n.7 (Mar. 19, 2018) (“our Office has no jurisdiction to consider whether
an agency improperly failed to comply with a stay of performance”). A challenge to an
agency’s override of a CICA automatic stay is not characterized as a “protest.” Any
interpretation of the word “protest” in the FASA task order protest bar must come to grips with
the fact that RAMCOR-type actions are not protests.
42Again, even though the CICA’s definition of “protest” does include a challenge to the
“cancellation of . . . a solicitation,” 31 U.S.C. § 3551(1)(B), Plaintiffs here do not challenge the
cancellation of a solicitation “in connection with the issuance or proposed issuance of a task . . .
order” – which language concerns the merits of a task order award (or proposed award), as
explained infra. Moreover, § 1491(b)(1) does not even independently identify solicitation
31
under the final prong of § 1491(b)(1) is a conclusion all but compelled by the Federal
Circuit’s decision in PDS Consultants, Inc. v. United States, 907 F.3d 1345, 1356 (Fed. Cir.
2018) (“PDS Consultants alleged a statutory violation—namely, that the VA acted in
violation of [statute] by awarding contracts without first conducting the Rule of Two
analysis. . . . As an ‘alleged violation of statute or regulation in connection with a
procurement or a proposed procurement,’ PDS Consultants’ action arises under the
Claims Court’s jurisdiction.”); see Glob. Computer Enterprises, Inc. v. United States, 88 Fed.
Cl. 350, 445–49 (2009) (rejecting government’s contention that if plaintiff “can overcome
the jurisdictional bar simply by alleging that a regulation was violated, then that just
eviscerates the jurisdictional bar”).
In sum, our point is only that, even assuming the Rule of Two issue may be
disconnected entirely from the cancellation challenges themselves, as the government
suggests, the FASA task order bar would not apply here because it does not necessarily
reach “actions” brought pursuant to the fourth prong of 28 U.S.C. § 1491(b)(1). Unisys
Corp. v. United States, 90 Fed. Cl. 510, 517 (2009). The Court quotes Unisys at length
because it is particularly instructive in the context of the instant case:
This court therefore reviews an agency’s compliance with
§ 3553 “independent of any consideration of the merits of the
underlying contract award.” Planetspace Inc. v. United States,
86 Fed. Cl. 566, 567 (2009). Although “the Comptroller
General of the United States” has “exclusive jurisdiction”
over protests of task orders valued in excess of $10 million,
this lawsuit does not concern the task order itself, but merely
whether TSA wrongfully failed to comply with 31 U.S.C.
§ 3553. National Defense Authorization Act for Fiscal Year
2008, Pub. L. No. 110–181, § 843, 122 Stat. 3, 236 (codified at 10
U.S.C. § 2304c); see also Digital Techs. v. United States, No. 08–
604C, 2009 WL 4785451 (Fed. Cl. Dec. 9, 2009). This Court thus
possesses jurisdiction to review the alleged violation of
§ 3553.
90 Fed. Cl. at 517 (emphasis added). In terms of the language of § 1491(b)(1), Plaintiffs
allege that, in cancelling the solicitations at issue, based primarily upon the agency’s
cancellations as a separate category of claims, and, thus, any such challenge under the Tucker
Act, as amended by ADRA, must rely upon the final prong of § 1491(b)(1) in any event. Validata
Chem. Servs., 169 F. Supp. 3d at 84 (explaining that “any arguable parallel between CICA and
ADRA breaks down, as explained above, where the plaintiff’s cause of action falls under the
[final] prong of ADRA’s ‘objecting to’ test, which does not require that the plaintiff object to a
federal contract solicitation or award” (citing § 1491(b)(1) and RAMCOR, 185 F.3d at 1289));
Alaska Cent. Exp., Inc. v. United States, 50 Fed. Cl. 510, 517 (2001) (“The CICA and the ADRA are,
after all, different statutes, with different definitions of bid protest.”).
32
intent to use the TMS MAIDIQ, the agency has violated FAR 1.602–2(b), FAR 19.502-2
and FAR 19.502-9 – all of which are regulations “in connection with a procurement or
proposed procurement” under the Tucker Act. TTGI Am. Compl. at ¶¶ 36–38; PTP
Compl. at ¶¶ 98–111; TTGI MJAR at 20–22; PTP MJAR at 21–28.
In any event, neither the terms or parameters of the TMS MAIDIQ itself nor any
specific task order solicitation is at issue. Indeed, at least as of the time of filing of
Plaintiffs’ respective complaints, there was no pending task order solicitation, let alone
a task order award (or proposed award). TTGI Am. Compl. at ¶ 27; PTP Compl. at
¶ 51. 43
2. FASA Only Bars Challenges Related To The “Proposed Issuance
Or Issuance” Of A Task Order
Further supporting the Court’s conclusion that the FASA bar does not apply to
Plaintiffs’ Rule of Two claims is the fact that the FASA task order protest bar – again, by
its terms – only applies to a “protest . . . in connection with the issuance or proposed
issuance of a task . . . order . . . .” 41 U.S.C. § 4106(f)(1) (emphasis added). The latter
phrase further limits the scope of the protest bar insofar as it virtually mirrors only the
second and third prongs of § 1491(b)(1) – i.e., “a proposed award or the award of a
contract” – but with FASA replacing the Tucker Act’s reference to “award” and
“contract” with, respectively, “issuance” and “task order.” As demonstrated, supra,
however, the second and third prongs of § 1491(b)(1), properly understood, include
challenges to the results or merits of a procurement – an award or proposed award of a
contract – but do not cover solicitation protests, the latter which is a distinct cause of
action under both the Tucker Act, as amended by ADRA, and CICA’s definition of
“protest.”
43 The government, in its response brief, notified this Court that:
[t]he agency recently issued a request for task order proposals in
order to be prepared to proceed with the procurement in the event
the Court dismisses plaintiffs’ protest of that procurement. This
precautionary step was taken subsequent to the filing of the complaints
in this action. However, in accordance with the agency’s voluntary
stay to October 20, 2020, no awards will be issued.
Def. Resp. at 8 n.2 (emphasis added). Following a status conference with the parties on
November 12, 2020, Minute Order (Nov. 12, 2020), the government agreed to delay the task
order proposal deadline until November 30, 2020. Because this request for proposals was
issued following the initiation of this action, this Court’s analysis remains limited to the facts as
alleged in Plaintiffs’ complaints. See Walton v. United States, 80 Fed. Cl. 251, 264 (2008) (“[I]t
appears that binding Federal Circuit law has not departed from the established rule that
jurisdiction is determined on the basis of the facts that existed at the time the complaint was
filed.” (emphasis added)), aff’d, 551 F.3d 1367 (Fed. Cir. 2009).
33
Accordingly, just as a challenge to a solicitation is distinct from the challenge to a
proposed award of contract, so too a challenge to the selection (or planned selection) of
a particular (task order) contracting vehicle does not equate to the “proposed issuance”
of a task order. The fact that the agency here has “proposed” to use a MAIDIQ is not
the same as the “proposed issuance” of a task order.44 Again, FASA’s reference to the
“proposed issuance” of a task order mirrors § 1491(b)(1)’s use of “proposed award” –
the former does not cover an agency’s “proposed issuance” of a task order solicitation
any more than the latter includes an agency’s mere issuance of a standard solicitation.
A close reading of FASA’s task order protest bar thus suggests that it is
inapplicable even to a claim explicitly challenging an agency’s selection of a task order
vehicle for a procurement, assuming that is one way to characterize Plaintiffs claims in
this case. To be clear, however, Plaintiffs here challenge neither the terms of a
solicitation, the issuance of a task order solicitation, nor the award (or proposed award)
of a task order. Validata Chem. Servs., 169 F. Supp. 3d at 78 (explaining that where
plaintiff “is not objecting ‘to a [government] solicitation,’ ‘to a proposed award,’ or to an
actual ‘award of a [government] contract,’ . . . neither the first nor the second prong of
44 See supra n. 36. It bears repeating that if a “proposed award” were interpreted to cover the
same cause of action as a challenge to a solicitation, the first prong of the § 1491(b)(1) would be
rendered meaningless, just as the Federal Circuit in RAMCOR explained with respect to the
“violation of a statute or regulation in connection with a procurement or a proposed
procurement” language. RAMCOR, 185 F.3d at 1289; Jacobs Tech. Inc., 100 Fed. Cl. at
175 (critiquing the “conflat[ion] [of] the separate jurisdiction grounds of solicitation, proposed
award or award, on the one hand, and violation of a statute or regulation, on the other”); Nat'l
Air Cargo Grp., Inc. v. United States, 126 Fed. Cl. 281, 288–89 (2016) (noting that the Court “must
address whether the protestor is objecting to a solicitation, proposed award, award, or violation
of law ‘in connection with a procurement or a proposed procurement’” – all distinct categories).
While this Court has often grouped the first two prongs of § 1491(b)(1) into pre- or post-award
protest categories, as noted supra, the statute clearly distinguishes between an action that is an
objection to a solicitation and one that constitutes a challenge to a proposed award of a contract.
Advanced Sys. Tech., Inc. v. United States, 69 Fed. Cl. 474, 482 (2006) (explaining that “[t]he
statute’s use of the conjunction ‘or’ makes it clear that the Court has jurisdiction over each of the
. . . identified types of actions” and citing RAMCOR, 185 F.3d at 1289, for the proposition that
the “violation of statute or regulation prong” of 28 U.S.C. § 1491(b)(1) provides a grant of
jurisdiction separate and apart from “an objection to ‘a proposed award or the award of a
contract’”). Indeed, Advanced Sys. Tech. specifically referenced “[t]he plain language of the first
prong of 1491(b)(1)” as “provid[ing] that this Court has jurisdiction over ‘an action brought by
an interested party objecting to a solicitation[.]’” Id.; see also DMS All–Star Joint Venture v. United
States, 90 Fed. Cl. 653, 661 n.10 (2010) (noting the protestor challenged not the terms of the
solicitation but the proposed award to a particular offeror). The Federal Circuit similarly has
distinguished between the different categories of § 1491(b)(1) protest-type actions. Res.
Conservation Grp., 597 F.3d at 1245 (referencing “a challenge to an award, proposed award, or
solicitation”).
34
ADRA’s ‘objecting to’ test is implicated”). Instead, Plaintiffs’ focus is on the agency’s
allegedly improper cancellation of two completed procurements.
As explained above, Plaintiffs allege that the agency’s decision to cancel those
solicitations fails the APA standard of review, at least in part because the agency erred
in concluding that it could utilize the TMS MAIDIQ vehicle to procure the work at
issue. In turn, whether the agency correctly (or incorrectly) reached that latter
conclusion depends at least in-part on whether the agency complied with the Rule of
Two. But whether this Court addresses the Rule of Two question simply as a subsidiary
issue in deciding the propriety of the agency’s cancellation decisions or whether we
view Plaintiffs’ Rule of Two claim as a stand-alone allegation of a regulatory violation,
as explained supra, the action in either case is not a “protest . . . in connection with the
issuance or proposed issuance of a task . . . order[.]” 41 U.S.C. § 4106(f)(1) (emphasis added).
Again, Plaintiffs’ action here properly is considered pursuant to the last prong of
§ 1491(b)(1) – an alleged “violation of a statute or regulation in connection with a
procurement or a proposed procurement.” Acetris Health, LLC v. United States, 949 F.3d
719, 728 (Fed. Cir. 2020) (“The reference to ‘proposed procurements’ likewise broadly
encompasses all contemplated future procurements by the agency.”). Put yet
differently, while all “proposed” awards of either contracts or task orders may be
subsumed within the “in connection with a procurement” language, not all alleged
violations of a statute or regulation “in connection with a procurement or proposed
procurement” involve an award or a proposed award. 45 Any contrary interpretation
would read a statutory phrase out of existence.
45Indeed, the phrase “proposed award” in 28 U.S.C. § 1491(b)(1) appears to be a term of art
employed due to this Court’s prior, more limited, pre-ADRA jurisdiction over “bid protests”
pursuant to § 1491(a). Prior to ADRA, this Court had jurisdiction to consider implied contract
claims exclusively from “disappointed bidders” but could only order injunctive relief in pre-
award cases. That meant there was no jurisdiction over solicitation challenges brought prior to
the submission of proposals because such a plaintiff could not be a “disappointed bidder” – no
implied contract to fairly consider a proposal would yet exist. And, once an award was actually
made, a plaintiff might be a “disappointed bidder” but could not obtain injunctive relief. For a
“proposed award,” however, a plaintiff could file a bid protest claim pursuant to § 1491(a) and
obtain injunctive relief. The critical point here is that the phrase “proposed award” – whether
in 28 U.S.C. § 1491 or in FASA – is not intended to cover some future result of a solicitation that
has not been issued or even the future result of an ongoing procurement process, in general.
See, e.g., United States v. John C. Grimberg Co., 702 F.2d 1362, 1367 (Fed. Cir. 1983) (“Thus
[§ 1491](a)(3) made an equitable remedy available when a claim over which the court has
jurisdiction (implied contract under (a)(1)) is filed in the court before a contract has been
awarded.”); Central Ark. Maintenance, Inc. v. United States, 68 F.3d 1338, 1341 (Fed. Cir. 1995)
(pre-ADRA § 1491(a) “jurisdictional grant . . . extends to suits brought by disappointed bidders,
commonly called bid protests, challenging the proposed award of contracts based on alleged
improprieties in the procurement process” (emphasis added)). “Proposed award” was never
understood, pre-ADRA, to encompass pre-solicitation agency decisions or even solicitation
challenges for the simple reason that “[v]iolations of law, rule, or regulation in the structuring
35
The government’s interpretive approach would rewrite the FASA task order
protest bar as applying “in connection with a task order” generally or “in connection
with a task order procurement or proposed procurement.” Congress’ selection of the
phrase “issuance or proposed issuance,” however, must be given meaning. In sum,
while the phrase “in connection with” must be interpreted broadly per the directions of
the Federal Circuit, the Court concludes that the neighboring language in 41 U.S.C.
§ 4106(f)(1) – the phrases “protest” and “issuance or proposed issuance of a task . . .
order” – serve to limit the reach of the FASA task order protest bar. 46
3. The Failure To Conduct A “Rule Of Two” Analysis Challenge Is
Not “In Connection With” A Task Order
Finally, while the Federal Circuit often has recognized that the phrase “in
connection with” should be interpreted broadly, this Court recognizes that the Supreme
Court has cautioned that “a non-hyperliteral reading [of this term] is needed to prevent
the statute from assuming near-infinite breadth.” FERC v. Electric Power Supply Ass’n,
136 S. Ct. 760, 774 (2016); see Maracich, 570 U.S. at 59–60 (citing cases). Although the
government relies upon SRA Int’l, Inc. v. United States, 766 F.3d 1409 (Fed. Cir. 2014),
Def. Mot. at 30–31, that case is distinguishable in a manner that supports jurisdiction
here (even putting aside this Court’s foregoing analysis of the other parts of the FASA
statutory language). In SRA Int’l, the protestor appealed this Court’s dismissal of a
protest, which alleged that the agency improperly had waived a conflict of interest
following the award of a task order. Id. at 1410. This Court held the waiver was not in
connection with the task order because the waiver was issued after the award and was
“a matter left to agency discretion.” Id. at 1412 (quoting SRA Int'l, Inc. v. United States,
114 Fed. Cl. 247, 255–56 (2014)). The Federal Circuit reversed, holding that neither the
of a solicitation . . . are breaches of statutory or regulatory obligations, not contractual ones, and
this court does not have the authority to redress them either in law or equity through a
disappointed bidder suit.” Eagle Const. Corp. v. United States, 4 Cl. Ct. 470, 476–77 (1984) (emphasis
added) (explaining that pursuant to pre-ADRA § 1491(a) jurisdiction, “the court's jurisdiction
over the implied contract of fair dealing in disappointed bidder cases embraces neither claims
challenging terms, conditions, or requirements of solicitations, nor policies and activities which
preceded and resulted in the solicitations”). On the other hand, where offerors had submitted
bids or proposals, “Congress intended 28 U.S.C. § 1491(a)(3) to [provide] . . . an unsuccessful
bidder [with] standing to challenge a proposed contract award on the ground that in awarding the
contract the government violated statutory and procedural requirements.” C.A.C.I., Inc.-Fed. v.
United States, 719 F.2d 1567, 1574 (Fed. Cir. 1983) (emphasis added). In this case, there is no
“proposed award” at issue.
46Glob. Computer Enterprises, Inc., 88 Fed. Cl. at 414–15 (“If Congress intended to prohibit
protests stemming from any action related to a task order contract, then it could have explicitly
drafted a statute that barred any protest in connection with a task order. It did not do so. Instead,
Congress prohibited bid protests in connection with either the issuance or proposed issuance of a
task order. . . .” (emphasis added)).
36
temporal disconnect between the task order and the waiver, nor the latter’s
discretionary nature, adequately separated the protest from the underlying task order.
766 F.3d at 1413. Thus, in SRA Int’l, the Federal Circuit concluded that an “OCI waiver
was directly and causally connected to the issuance of [a task order], despite being
executed after issuance.” 766 F.3d at 1413 (emphasis added). Indeed, “[t]he GSA issued
the waiver in order to go forward with [the selected awardee].” Id. Substitute
“solicitation cancellation” for “OCI waiver,” and the government’s position here – at
least on the surface – would seem to be correct.
Critically, however, the Federal Circuit cautioned that while “nothing in FASA’s
language automatically exempts actions that are temporally disconnected from the
issuance of a task order[,] . . . a temporal disconnect may, in some circumstances, help to
support the non-application of the FASA bar . . . .” 766 F.3d at 1413 (emphases added). In
this case, as previously explained, Plaintiffs’ respective complaints may be read as
contending that the agency’s failure to follow the Rule of Two (1) renders the
solicitation cancellations arbitrary and capricious, and/or (2) independently violated
FAR 19.502-2(b). Either way, for the reasons explained further below, the Rule of Two
issue in the instant case is both conceptually and sufficiently “temporally disconnected
from the issuance of a task order” to avoid it. Id.
Plaintiffs essentially contend that an agency must apply the Rule of Two before an
agency can even identify the possible universe of procurement vehicles which may be
utilized for a particular scope of work. TTGI Am. Compl. at ¶ 36; PTP Compl. at ¶¶ 95,
111; TTGI MJAR at 26; PTP MJAR at 25–27. The Court agrees. Where an agency refuses
to perform the Rule of Two analysis or otherwise disregards the results of such an
analysis, that does not mean an agency necessarily will select an unrestricted vehicle or
as task order vehicle. Indeed, the agency still may solicit the work utilizing
procurement vehicles that have nothing to do with task orders (e.g., a standalone
solicitation contemplating a single awardee but that is not set-aside for small business).
In other words, there is no necessary connection between the Rule of Two analysis (or
the failure to conduct such an analysis) and the issuance of a task order. Proxtronics
Dosimetry, LLC v. United States, 128 Fed. Cl. 656, 680 (2016) (“Necessarily, the decision to
set aside an acquisition for a small business must be made prior to issuing the
solicitation.” (citing FAR 19.508)). In contrast, in SRA Int'l, the agency simply could not
proceed with a task order that the agency already had awarded, absent the challenged
conflict waiver. The conflict waiver thus was necessary to the actual task order award
(and the plaintiff had challenged a specific task order award).
To further illustrate the distinction, consider a hypothetical case in which an
agency purports to have applied the Rule of Two. As a result of the agency’s analysis,
the agency determines that a set-aside is not required. Instead of immediately
proceeding with a particular procurement strategy, however, the agency issues a
request for information (“RFI”), in which the agency indicates that it is considering
various unrestricted vehicles with no set-aside component: e.g., a stand-alone, new
37
solicitation with a single-awardee; an existing MAIDIQ; or the issuance of a new
MAIDIQ. At that stage, following the issuance of the RFI, may a dissatisfied small
business file suit in the Court of Federal Claims, pursuant to 28 U.S.C. §1491(b)(1),
challenging the agency’s decision not to set-aside the procurement? In the Court’s
view, the answer to that question is a straightforward “yes” based upon a simple
syllogism: (1) the RFI is part of the procurement process; (2) the RFI includes the
agency’s decision not to set-aside the procurement; (3) a small business protestor’s
allegation that the agency’s decision violates the Rule of Two constitutes an alleged
“violation of statute or regulation in connection with a procurement or a proposed
procurement”; and, thus, (4) the allegation is unquestionably within this Court’s
jurisdiction. Distributed Sols., Inc., 539 F.3d at 1346 (“The statute explicitly contemplates
the ability to protest these kinds of pre-procurement decisions by vesting jurisdiction in
the Court of Federal Claims over ‘proposed procurements.’ A proposed procurement,
like a procurement, begins with the process for determining a need for property or
services.”).
In the hypothetical case outlined above, the FASA task order protest bar clearly
would not apply because, at a minimum, 47 the agency has not yet selected any contract
vehicle (task order or otherwise). Moreover, if the small business were to file suit in this
Court, the government could not subsequently divest this Court of jurisdiction merely
by selecting an IDIQ vehicle. See GAF Bldg. Material Corp. v. Elk Corp., 90 F.3d 479, 483
(Fed. Cir. 1996) (“[J]urisdiction must be determined on the facts existing at the time the
complaint under consideration was filed.”) Nor, for that matter, should jurisdiction
depend upon whether the small business beats the agency to the punch, and files suit to
challenge the set-aside analysis, or whether the agency quickly makes a decision to
utilize a task order vehicle prior to the filing of a suit. In both cases, the agency’s Rule
of Two decision simply has no necessary connection to the selection of the particular
vehicle. 48 See McAfee, Inc. v. United States, 111 Fed. Cl. 696, 709–10 (2013) (holding that
47Pursuant to the Court’s interpretation of the FASA task order protest bar, supra, an objection
to an agency’s selection of a task order vehicle is not, in any event, a “protest . . . in connection
with the issuance or proposed issuance of a task . . . order[.]” 41 U.S.C. § 4106(f)(1). The Court’s
point here is that, even if our statutory interpretation were rejected, SRA Int’l is consistent with
“the non-application of the FASA bar” in this case. 766 F.3d at 1413.
48Again, this assumes, arguendo, that the challenge to an agency’s selection of a task order
vehicle itself would be within the ambit of the FASA task order protest bar, a proposition with
which the Court disagrees. In any event, the Court’s view of the correct result in the
hypothetical fits well with the Court’s interpretation of the FASA statutory language. In
particular, a challenge to an agency’s failure to comply with the Rule of Two is not a “protest”
as that term is defined in CICA. In this case, for example, it is a challenge neither to a particular
solicitation nor to the merits of an award or to a proposed award of a task order. Similarly, in
the Court’s hypothetical case involving the RFI, the small business would be challenging the
agency’s decision not to set-aside the procurement, but would not be objecting to the agency’s
decision to proceed with any particular procurement strategy because none has been selected.
38
“McAfee’s complaint falls under the [final] prong of Section 1491(b)(1), concerning an
alleged ‘violation of statute or regulation in connection with a procurement or a
proposed procurement’” and that “the protested decision is not directly connected to
the award of any particular delivery order”); BayFirst Sols., LLC v. United States, 104 Fed.
Cl. 493, 499, 507–08 (2012) (holding that the FASA jurisdictional bar did not apply to the
agency’s decision to cancel a solicitation, and that although the cancellation of the
solicitation and issuance of the task order were temporally connected, the cancellation
of the solicitation can be viewed as “a discrete procurement decision and thus could
have been the subject of a separate protest”); cf. MORI Assocs., Inc. v. United States, 113
Fed. Cl. 33, 38 (2013) (citing the Court’s earlier decision in MORI Assocs., Inc. v. United
States, 102 Fed. Cl. 503, 533 (2011), for the proposition that “[d]iscrete, preliminary
matters that may not necessarily lead to the proposed issuance of a task order may still
be protested” such as “a ‘Rule of Two’ determination under 48 C.F.R. § 19.502–2(b)”
which is “required prior to the selection of a particular procurement vehicle, since
whether the work must be set aside for small business must be known before an agency
can select the means of fulfilling its needs”). 49
The actual Plaintiffs in this case are similarly situated to the hypothetical small business; their
complaint may be read as challenging the agency’s solicitation cancellation decision and its
refusal to set aside the work at issue, but not the decision to use a task order contact per se. In
contrast, in SRA Int'l, the protestor had filed a post-award bid protest, challenging the issuance
of a task order on the grounds of a conflict (and an improper waiver) – that clearly is a “protest”
that is “directly and causally connected” to the issuance of a task order in way that a challenge
to a Rule of Two violation is not.
49 But cf. Insap Servs., Inc. v. United States, 145 Fed. Cl. 653, 654 (2019). In that case, Judge
Wheeler rejected plaintiff’s argument “that this Court has jurisdiction to hear its protest because
it is challenging the conditions antecedent to the solicitation, not the solicitation itself” and
because “the decision to bundle [certain] services under a single solicitation is not connected to
the solicitation, as it occurs ‘prior to’ and is not ‘mutually dependent on’ the issuance of the task
order.” Id. Insap is distinguishable insofar as it involved a challenge to a bundling decision
where a “Request for Task Order Proposals” already had been issued at the time of the protest.
Id. In any event, the undersigned admittedly does not share Insap’s capacious view of the
Federal Circuit’s decision in SRA Int’l, particularly to the extent Insap relied upon “[p]olicy
considerations[,]” including the assessment that this Court should not “allow a protest to be
heard at this Court after already being heard by GAO” as that “would burden the Government
and negate Congress's intent to streamline.” Id. at 655. Although Insap concluded that “[i]t
would defeat Congress’s purpose if would-be protestors could make an end run around the
FASA’s plain meaning by claiming that they are challenging the conditions of the solicitation,
but not the task order itself[,]” id., this Court disagrees with such an interpretation of the FASA
task order protest bar for the reasons explained herein. See BayFirst Sols., 104 Fed. Cl. at 507–08
(“The cancellation of the Solicitation may be viewed as a discrete procurement decision and one
which could have been the subject of a separate protest. This approach is not unlike the one
employed by the court in MORI, where a preliminary procurement decision, one which should
have occurred before any contract vehicle was selected, was held to be subject to challenge and
39
Finally, at least one GAO decision supports the Court’s view of the jurisdictional
question and the FASA task order protest bar. In LBM, Inc., the protestor challenged
the Army’s decision to acquire certain services under the Logistical Joint Administrative
Management Support Services (“LOGJAMSS”) contracts, when those services
previously had been provided exclusively by small businesses. B-290682, 2002 CPD
¶ 157, 2002 WL 31086989, *1. After the Army decided to transfer the services at issue to
the LOGJAMSS contracts, the agency solicited proposals from LOGJAMSS contractors,
but “did not coordinate with, or notify, the SBA of its intent to withdraw ... services
from exclusive small business competition and to transfer these services to LOGJAMSS
contracts.” Id. at *3. The GAO sustained the protest. Id. at *8. In so doing, the GAO
rejected the Army’s contention that the FASA task order protest bar divested the GAO
of jurisdiction because the protestor challenged the proposed issuance of a task order
under the LOGJAMSS contract; the GAO explained as follows:
LBM is not challenging the proposed issuance of a task order
for these services, but is raising the question of whether work
that had been previously set aside exclusively for small
businesses could be transferred to LOGJAMSS.... This is a
challenge to the terms of the underlying LOGJAMSS
solicitation and is within our bid protest jurisdiction.
Id. at *3. 50 The GAO further held that the FASA “was not intended to, and does not,
preclude protests that timely challenge the transfer and inclusion of work in ID/IQ
contracts without complying with applicable laws or regulations,” id., and explained
that Small Business Act requirements “were applicable to acquisitions prior to the
enactment of [the] FASA, and nothing in that statute authorizes the transfer of
acquisitions to ID/IQ contracts in violation of those laws and regulations,” id. at *4. The
GAO indicated that the “Rule of Two” applied “to ‘any acquisition over $100,000,’” id.
at *7 (quoting 48 C.F.R. § 19.502–2(b)), and therefore determined that the Army was
required to comply with FAR § 19.502–2(b) and conduct the appropriate “Rule of Two”
analysis. Id. (“Whatever the outcome of the FAR § 19.502–2(b) analysis, ... the agency’s
intent to use a task order under LOGJAMSS as the contract vehicle did not eliminate the
legal requirement that the agency undertake that analysis.”).
not barred by § 4106(f), even though the agency eventually issued a task order to fulfill its
needs. 102 Fed. Cl. at 533–34.”). And, again, in any event, Plaintiffs in this case do not challenge
the conditions of any solicitation.
50To be clear, although this Court agrees with the GAO’s view of the scope of task order bar as
applied (or, more accurately, not applied) in LBM, the Court does not concur with the GAO’s
view that a challenge to the agency’s selection of an IDIQ task order contract vehicle constitutes
a solicitation protest.
40
Accordingly, in LBM, Inc., the GAO declined to apply the FASA task order
protest bar even where the protestor directly challenged the agency’s selection of a task
order vehicle and after the agency had issued a task order solicitation under that vehicle
– the latter which, the Court again notes, had not occurred in this case at the time
Plaintiffs filed their respective complaints. Apparently, then, the GAO’s view of the
FASA task order protest bar is consistent with this Court’s reasoning, supra, that even
an objection to a solicitation – a “protest” within the GAO’s jurisdiction – does not
equate to a protest “in connection with” the proposed issuance of a task order. See Glob.
Computer Enter., Inc., 88 Fed. Cl. at 448 (“Although the protest in LBM, Inc. concerned
the underlying contracts . . ., the court nevertheless finds it instructive” because the
protestor “did not challenge the issuance or proposed issuance of a task order under the
existing contract.”).
****
In sum, this Court holds that the FASA task order protest bar is not an obstacle to
considering Plaintiffs’ challenge to the cancellation of a solicitation, even where this
Court will have to reach the merits of their Rule of Two claims – whether because the
rationality of the agency’s cancellation depends upon the availability of the preferred
MAIDIQ vehicle, or because the alleged failure to conduct a Rule of Two analysis
constitutes an independent basis for our jurisdiction pursuant to the last prong of
§ 1491(b)(1).
III. Standards of Review
A. Motion For Judgment On 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.” Bannum, Inc.
v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The rule requires the Court “to
make factual findings from the record evidence as if it were conducting a trial on the
record.” Id. at 1354. The Court asks whether, given all the disputed and undisputed
facts, a party has met its burden of proof based on the evidence in the record. See id.at 1356–57.
B. Challenge To Cancellation Decision
Generally, in an action brought pursuant to § 1491(b) of the Tucker Act, the
Court reviews “the agency’s actions according to the standards set forth in the
Administrative Procedure Act, 5 U.S.C. § 706.” See Nat’l Gov't Servs., Inc. v. United
States, 923 F.3d 977, 981 (Fed. Cir. 2019) (citing 28 U.S.C. § 1491(b)(4)). “In applying this
standard of review, we determine whether ‘(1) the procurement official’s decision
lacked a rational basis; or (2) the procurement procedure involved a violation of
41
regulation or procedure.’” Id. (quoting Weeks Marine, Inc. v. United States, 575 F.3d 1352,
1358 (Fed. Cir. 2009)). “When a challenge is brought on the first ground, the test is
‘whether the contracting agency provided a coherent and reasonable explanation of its
exercise of discretion, and the disappointed bidder bears a heavy burden of showing
that the award decision had no rational basis.’” Banknote Corp. of Am. v. United States,
365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi
v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001)). “When a challenge is brought
on the second ground, the disappointed bidder must show a clear and prejudicial
violation of applicable statutes or regulations.” Impresa Construzioni, 238 F.3d at 1333.
To establish prejudice, a protestor must further demonstrate “that there was a
‘substantial chance’ it would have received the contract award but for the . . . errors in
the bid process.” Bannum, Inc., 404 F.3d at 1357 (quoting Infro. Tech. & Applications Corp.
v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)); see Kiewit Infrastructure West Co. v.
United States, 147 Fed. Cl. 700, 707 (2020) (requiring a showing of prejudice in challenge
to cancellation decision).
In some cases, a statute or regulation may provide a substantive yardstick
against which an agency’s exercise of discretion may be measured or impose a related
procedural requirement. For example, as noted above, in the context of a sealed bid
procurement, FAR 14.404-1 (“Cancellation of invitations after opening”) provides that
“after bids have been opened, award must be made to that responsible bidder who
submitted the lowest responsive bid, unless there is a compelling reason to reject all bids
and cancel the invitation.” FAR 14.404-1(a)(1) (emphasis added). The FAR further
defines what constitutes a “compelling reason” in FAR 14.404-1(c) and imposes a
procedural requirement that “the agency head determine[] in writing” that such a
reason exists. See, e.g., Veterans Contracting Grp., 920 F.3d at 806–07 (framing the issue as
“whether the contracting officer’s decision to cancel the . . . solicitation lacked any
rational basis,” citing Parcel 49C Ltd. P’ship, 31 F.3d 1153–54, for the proposition that
“the government cannot cancel a solicitation solely to satisfy an agency’s whim, we held
that the cancellation was arbitrary and capricious[,]” and holding that the contracting
officer “had a compelling reason to request cancellation”); Nat'l Forge Co. v. United
States, 779 F.2d 665, 668 (Fed. Cir. 1985) (explaining, in a pre-ADRA case, that “[t]he
Claims Court correctly restricted its legal review to whether the contracting officer’s
interpretation of, and later decision to cancel, the solicitation was unreasonable or an
abuse of discretion under the requirements for cancellation set forth in 48 C.F.R. §
14.404–1(c)”).
Here, the 13F and JFOC Solicitations were issued as FAR Part 8, FSS
procurements, which, as the government correctly notes, Def. Supp. Br. at 1–5, do not
contain any provisions providing substantive considerations for, or constraints on,
42
cancellation decisions, similar to those contained in FAR 14.404-1 regarding sealed
bidding.
While the government in its initial briefs conceded that the agency’s cancellation
decision nevertheless should be reviewed pursuant to the standard APA rational basis
test, Def. MJAR at 15–17, 25; Def. Resp. at 1, 5, the government takes the position in its
supplemental brief that the agency action should only be reviewed for “bad faith”
because the procurements were solicited pursuant to FAR Part 8, which does not
contain any substantive yardstick for limiting an agency decision to cancel a
procurement. Def. Supp. Br. at 9-10. While a finding of bad faith may be sufficient, it is
not necessary for the Court to determine that an agency decision is arbitrary and
capricious. Croman Corp. v. United States, 724 F.3d 1357, 1365 (Fed. Cir. 2013) (holding
that “Croman has failed to show that the partial cancellation of the 2011 Solicitation was
in bad faith or lacking in rational basis” (emphasis added)); see also Prineville Sawmill Co., ,
859 F.2d at 911. In this case, even though FAR Part 8 does not specify substantive
cancellation considerations, the Tucker Act, as amended by ADRA, “explicitly imports
the APA standard of review into the Court of Federal Claims’ review of agency
[procurement-related] decisions.” RAMCOR, 185 F.3d at 1290; cf. Strategic Tech. Inst.,
Inc., B-408005.2, 2013 CPD ¶ 229, 2013 WL 5754966, *3 (Oct. 21, 2013) (“Under FAR
subpart 8.4 procedures, an agency need only advance a reasonable basis to cancel a
solicitation.”). 51 Moreover, as explained above, see supra Section II, FAR 1.602–2(b)
permits this Court to conduct an APA review, while 10 U.S.C. § 2305(b)(2) supplies a
procedural requirement and a substantive yardstick, against which we may evaluate
the agency’s decisions here.
IV. The Court Grants Plaintiffs’ Motion For Judgment On The Administrative
Record And Denies The Government’s Cross-Motion For Judgment On The
Administrative Record
Plaintiffs’ motions for judgment on the Administrative Record present two
primary arguments: (1) the agency acted in an irrational and unreasonable manner
when it cancelled the 13F and JFOC Solicitations due, in part, to the agency’s plan to
resolicit the requirements under the TMS MAIDIQ; and (2) the agency violated the
“Rule of Two” (see FAR 19.502-2(b)) and FAR 19.502-9 when cancelling the solicitations
for the purpose of recompeting the requirements under the TMS MAIDIQ. See TTGI
MJAR at 13–22; PTP MJAR at 21–24. The government, in its cross-motion for judgment
on the Administrative Record, contends that (1) the agency decision to cancel the 13F
51TTGI counters that because the cancellation decision arose in the context of a corrective
action, the Court should apply a more demanding review to determine whether the corrective
action was “’rationally related’ to an alleged procurement defect.” TTGI MJAR at 13–14 (emphasis
added) (citing Dell Fed Sys., L.P. v. United States, 906 F.3d 982, 955 (Fed. Cir. 2018)). In either
event, whether the cancellation decision is reviewed on its own merits or as part of corrective
action, this Court ultimately reviews the agency’s decision for “reasonableness.”
43
and JFOC Solicitations for the purpose of transferring the procurements to the TMS
MAIDIQ was rational, and (2) the “Rule of Two” does not apply to the facts of this case.
ECF No. 30 at 17.
For the reasons explained below, the Court agrees with Plaintiffs.
A. The Agency Failed To Provide A Sufficiently Reasonable Explanation
For The Cancellation Of The Solicitations
In determining whether the agency adequately explained the reasoning behind
its decision to cancel the 13F and JFOC Solicitations, we turn to the explanation
provided by the agency at the time of its decision-making. See WHR Group, Inc. v. United
States, 115 Fed. Cl. 386, 399 (2014) (noting that the agency decision must be supported
by the reasoned basis the agency actually provided). The Court notes that in this case
there is no formal cancellation decision or memorandum regarding the 13F and JFOC
Solicitations; rather, the only document that proports to show the agency’s rationale
behind its decision to cancel those solicitations is CO Abraham’s August 10 MFR. ECF
No. 25 at 617–20 (AR 613–16). In that four-page memorandum, CO Abraham describes
the GSA MAS solicitation’s requirements and history at length, and outlined the
features of the TMS MAIDIQ that the agency could use as a replacement. Id. In
discussing the previous solicitations, the memo explained:
After extensive use of the GSA OASIS MAIDIQ and GSA
Multiple Award Schedule, it was determined the contract
vehicles did not meet FCoE mission needs as world events unfolded.
Events included emerging worldwide requirements due to
short notice missions, [Training Resource Arbitration Panels]
requirements, and lack of capability to provide the subject
matter expertise. . . . As conveyed above, GSA OASIS
MAIDIQs and Multiple Award Schedules did not provide the
support required by FCoE to support emerging and known
requirements.”
Id. at 617–18 (AR 613–14) (emphasis added). But, concluding that the prior MAIDIQ
and GSA MAS vehicles were not sufficient for the entire breadth of work contemplated
by the new TMS MAIDIQ is not the same thing as concluding that the latter vehicle is
somehow superior to the GSA MAS vehicles for the purposes of the statements of work at
issue. In that regard, following additional historical details about the awarding of the
GSA MAS, the August 10 MFR concluded with what is the only excerpt of any agency
memoranda in the Administrative Record that reasonably might be characterized as
representing the agency’s rationale for planning to cancel the 13F and JFOC
Solicitations:
44
Based on the above information, I believe the Government’s
best interest can be met by competing the JFO, 13F and KMS
requirements under the MICC-Fort Eustis recently awarded
TMS MAIDIQ. Both time and money can be saved by the
Government in pursuit of this avenue. Time and money are
expended on soliciting and awarding interim short term
contract actions to support on-going requirements. Contract
periods can be adjusted to support a Base and Four Option
periods on most requirements thus saving manpower and
costs tied to phase-in and certification of new contractor
employees. Longer periods of performance also support the
Government’s ability to successfully recruit and retain
qualified personnel on existing requirements, thereby
ensuring continuity of the training mission.
Id. at 620 (AR 616) (emphasis added).
In sum, the agency justified the cancellation on the basis of the assertion that by
transitioning the procurements at issue to the TMS MAIDIQ, the agency would get a
more flexible and longer term of performance while saving time and money. This
explanation, however, without more information – and in the absence of any
supporting citations in the underlying record – does not satisfy the agency’s burden.
Although the Court is mindful that the APA rational basis standard of review is “highly
deferential” and “the court should not substitute its judgment for that of the agency,”
CW Government Travel, Inc. v. United States, 110 Fed. Cl. 462, 479 (2013), that “does not
mean that this [Court’s] review is ‘toothless.’” Orchard Hill Bldg. Co. v. United States
Army Corps of Engineers, 893 F.3d 1017, 1024 (7th Cir. 2018) (quoting Pioneer Trail Wind
Farm, LLC v. FERC, 798 F.3d 603, 608 (7th Cir. 2015)). More specifically, courts are
authorized to set aside agency action where the record fails to articulate a “rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see Starry Assoc., Inc. v. United
States, 127 Fed. Cl. 539, 548–49 (2016) (“Where the agency fails to undertake a review or
fails to document such review, we must conclude that it acted irrationally.”).
Here, the August 10 MFR is bereft of any specific context or factual details that
would support its generalized assertions and naked conclusions about the GSA MAS
solicitations not meeting agency needs or how the agency would be better served by
transferring the solicitations from the GSA MAS to the TMS MAIDIQ. See, e.g., Patterson
v. Comm’r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017) (“[T]he dispute here arises
from a problem that has become all too common among administrative decisions
challenged in court – a problem decision makers could avoid by following the
admonition they have no doubt heard since their grade-school math class: Show your
work.”); Highway J Citizens Grp., U.A. v. Dep’t of Trans., 2010 WL 1170572, at *2 (E.D.
Wis. Mar. 23, 2010) (“Defendants cannot simply list cursory comments or other
45
information and then assert a conclusion; rather, they must demonstrate the path of
their reasoning from whatever data they rely on to their conclusion . . . .”).
Take, for example, the August 10 MFR’s first assertion as to the inefficiency of
the GSA MAS to meet the agency’s needs “as world events unfolded.” ECF No. 25 at
617 (AR 613). While this conceivably could be a legitimate concern with the GSA MAS
solicitations justifying cancellation, 52 without factual support for this contention, this
Court cannot evaluate whether there is a rational basis for the assertion. See Kirwa v.
Dep’t of Defense, 285 F. Supp. 3d 257, 270 (D.D.C. 2018) (“APA review may be limited,
but it involves more than a court rubberstamping action based on bare declarations
from the agency amounting to “trust us, we had good . . . reasons for what we did.”).
Again, even if the GSA MAS generally is insufficient to meet the agency’s needs in some
long-term, strategic sense – as compared to the breadth of the new TMS MAIDIQ – that
says nothing about the suitability of the GSA MAS to meet the agency’s current needs
with respect to the 13F and JFOC procurements at issue.
Moreover, consider the August 10 MFR’s naked assertion that “time and money
can be saved by the Government in pursuit of this avenue.” ECF No. 25 at 620 (AR
616). If the Court were to accept this rationale at face value without asking for
supporting details, the government could always include this attractive catch-all at the
end of its decision document to justify almost any solicitation cancellation. Meaningful
judicial review requires more than just accepting such a bald assertion. See Bagdonas v.
Dep’t of Treasury, 93 F.3d 422, 426 (7th Cir. 1996) (“The statement of reason need not
include detailed findings of fact but must inform the court and the petitioner of the
grounds of decision and the essential facts upon which the administrative decision was
based.” (emphasis added)). In this case, the agency does not explain how the TMS
MAIDIQ will save the agency “time and money” in comparison with finalizing
procurements that were all but completed, nor is there any support in the record for
that conclusion beyond the statement itself.
The government, in its cross-motion for judgment on the Administrative Record,
argues that the “supporting materials to the August 10 memorandum documented
multiple benefits that the TMS MAIDIQ was designed to provide” and “the fact that the
current acquisition strategy did not provide those benefits.” Def. MJAR at 12, 22. But
those putative “benefits” reflect the long-term strategic advantages of the TMS MAIDIQ
overall; the government cannot simply point to its general justification for that
MAIDIQ, without more, to support the proposition that it will better meet the agency’s
needs with respect to the precise statements of work at issue. Moreover, although the
agency asserts that the TMS MAIDIQ will provide a longer period of performance than
52See, e.g., Tien Walker, B-414623.2, 2017 CPD ¶ 218, 2017 WL 2954445, *2 (July 10, 2017) (“A
reasonable basis to cancel exists when, for example, an agency concludes that a solicitation does
not accurately reflect its needs.”)
46
the present “short term contract actions,” ECF No. 25 at 620 (AR 616), nowhere does the
agency address the possibility of extending the duration of those contracts beyond the
originally planned 12-month period of performance or why that would be more
difficult than utilizing the TMS MAIDIQ.
The government also points the Court to the following examples of the agency’s
“key finding[s]”:
• The agency “necessitates the use of an IDIQ to meet
contract execution in a timely manner due to MICC
staffing shortfalls.”
• “Using other contract mechanism as opposed to a FCoE
IDIQ will add a minimum of 120 days to the procurement
timeline, potentially eliminate the ability for an expedited
contract action for unforecasted organizational needs, and
put existing requirements at increased risk for gaps on
contracted services.”
• “Costs for the use of non-IDIQ contract mechanism will
increase significantly.”
• “FCoE’s ability to support short term, emerging training
requirements to meet Army demands will be greatly
reduced.”
• “FCoE’s ability to rapidly provide training,
experimentation, analytic, and simulation support will be
reduced. Fires-led experiments and the TRADOC
Campaign of Learning will be interrupted and/or
degraded.”
Id. at 12–13, 22–23 (quoting ECF No. 25 at 675 (AR 671)).
These generalized conclusions, however, do little to provide actual factual
support for the agency’s cancellation decisions at issue here. Rather than engaging in a
factual contrast between the cancelled procurements at issue and the TMS MAIDIQ, the
supporting material’s conclusory assertions fail to provide a meaningful factual
roadmap for the agency’s decision. 53 For example, although the Court has no basis to
53The government also asserts that “[a]n additional benefit of the TMS MAIDIQ is that the
issues that continued to snag the GSA MAS solicitations and send them into bid protests are
eliminated as an issue. . . . This ensured that the TMS MAIDIQ was not subject to a protest and
automatic stay at GAO . . . and it would also provide some comfort that a protest direct to this Court
was not likely . . . .” Def. MJAR at 24 (emphasis added, internal citations omitted). Rather than
47
question the agency’s conclusion that it generally requires a MAIDIQ due to staffing
shortfalls, there is zero record evidence indicating that any such shortfall would impact
the agency’s proceeding with the 13F and JFOC procurements or that moving such
work to the TMS MAIDIQ would improve any putative staffing difficulties for the work
at issue. The timeline comparison also is not specific to the already-completed (albeit
protested) 13F and JFOC procurements; nowhere in the Administrative Record does it
appear that the agency compared the timeline of continuing with those procurements as
opposed to starting from scratch under the MAIDIQ. The agency’s concern about
increased costs for a non-MAIDIQ procurement seems plausible, in general, but CO
Abraham never compares the cost of proceeding with the cancelled procurements, as
opposed to starting a new task order procurement under the preferred TMS MAIDIQ.
And the final two conclusions above regarding the ability of the FCoE to support Army
needs has nothing whatsoever to do with the 13F and JFOC procurements. To be clear,
CO Abraham does not conclude in any way that the proceeding with those
procurements would jeopardize the FCoE’s mission or abilities. Rather, the point is that
the materials upon which she relies merely demonstrates the agency’s general interest
in utilizing the TMS MAIDIQ.
Although there is no universal test for what constitutes an agency’s failure to
provide a sufficient justification for its actions and no one factor is dispositive, see Sierra
Nevada v. United States, 107 Fed Cl. 735, 751 (2012), a cursory review of relevant caselaw
from this Court is illustrative. Compare FMS Investment Corp. v. United States, 139 Fed.
Cl. 221, 223–25 (2018) (finding that the Department of Education acted unreasonably
when it cancelled solicitation for student loan debt collection services because, in part,
the cancellation notice relied on a brief Administrative Record and failed to contain
detailed information to support important assertions made in that notice), and Applied
Business Mgmt. Solutions v. United States, 117 Fed Cl. 589, 605–06 (2014) (holding, in part,
that GSA’s conclusory assertions about “budgetary concerns” and “need to reduce
personnel” failed to provide a rational basis for cancellation decision), with Inverness
Technologies, Inc. v. United States, 141 Fed. Cl. 243, 248, 251–53 (2019) (emphasizing that
Department of Labor’s cancellation of solicitation for veterans job transition program
“provid[ing] some comfort,” this Court is quite troubled by the government’s assertion that the
agency’s decision-making was influenced by a desire to avoid bid protest litigation. See ECF
No. 37 at 22-24 (“Hearing Transcript”) (raising this concern with the government); see also
California Indus. Facilities Resources, Inc. v. United States, 100 Fed. Cl. 404, 412 (2011) (holding that
government conduct taken to “avoid possible bid protests was arbitrary and capricious”).
Notwithstanding the government’s troubling assertion, it is a “foundational principle of
administrative law” that this Court’s role in this context is limited to reviewing “the grounds
that the agency invoked when it took the action.” Oracle America, Inc. v. United States, 975 F.3d
1279, 1290 (Fed. Cir. 2020) (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)). Here, the agency
in its August 10 MFR does not mention this rationale. Rather, the first mention of this rationale
is in the government’s brief in this case. Def. MJAR at 24. Accordingly, this rationale does not
play a role in this Court’s determination that the Army acted unreasonably.
48
services was reasonable because the agency’s memorandum was “comprehensive, well-
considered and logical” and “outlined, in chart form, key differences between the
solicitation and the new requirements”). Some decisions from the GAO also have
found that an agency acts unreasonably when it fails to provide sufficient
documentation of its decision-making. See, e.g., Walker Development & Trading Grp., Inc.,
B-413924, 2017 CPD ¶ 21, 2017 WL 134346, *4–*5 (Jan. 12, 2017) (“We find that the
agency failed to produce agency report that coherently addressed the agency’s rationale
for the cancellation of the solicitation.”); Pro-Fab, Inc., B-243607, 91-2 CPD ¶ 128, 1991
WL 162538, *3 (Aug. 5, 1991) (“The agency’s speculation that increased competition or
cost savings will result from [the cancellation and] solicitation of the identical
requirements is not supported by the record[.]”).
In sum, this Court concludes that although it is not irrational per se for an agency
to prefer one contractual vehicle over another or even for the TMS MAIDIQ to be more
suitable for the Army’s needs in this case, the government here did not provide a
sufficiently documented rationale or meaningful analysis for cancelling the original 13F
and JFOC Solicitations for the purpose of transitioning the work to the TMS MAIDIQ.
B. The Agency’s Cancellation Decision Violates The Law
Plaintiffs argue that the TMS MAIDIQ cannot be leveraged for the work at issue
because doing so would violate the Rule of Two. As explained supra, see Section II.B.,
whether we view Plaintiffs’ argument as merely addressing the rationality of the
cancellation decision or whether we view the agency’s cancellation as representing an
independent decision with respect to its putative set-aside obligations (as the
government appears to do), the result is the same: the central rationale for the agency’s
cancellation of the solicitations at issue depends upon whether the agency may leverage
the TMS MAIDIQ to meet the agency’s needs. In either case, the Court agrees with
Plaintiffs that the agency’s failure to conduct a Rule of Two analysis vitiates the
cancellation decision.
1. The Agency Improperly Failed To Comply With The Rule Of
Two, Which Applies To The Work At Issue
The Rule of Two – as the Court already has explained – is straightforward, and
provides that “[t]he contracting officer shall set aside any acquisition over the
simplified acquisition threshold for small business participation when there is a
reasonable expectation that – (1) Offers will be obtained from at least two responsible
small business concerns; and (2) Award will be made at fair market prices.” FAR
19.502-2(b) (“Total small business set-asides”) (emphasis added). The government’s
49
decision to procure the services at issue is itself part of an acquisition 54 – the cancelled
solicitations constitute part of that acquisition – and the agency’s continued decision to
procure those services is part of an acquisition (whether viewed as a continuation of the
same acquisition, under a newly proposed strategy, or whether viewed as an entirely
new acquisition). 55 Nor does the government dispute that, in light of the acquisition
history thus far, there are at least two responsible business concerns capable of
performing the work at fair market prices, 56 or that, in general, the Rule of Two is
mandatory. Mgmt. & Training Corp. v. United States, 115 Fed. Cl. 26, 44 n.13 (2014) (“this
54 FAR 2.101 (“Acquisition begins at the point when agency needs are established”).
55Although the Court hesitates to further belabor the jurisdictional question, the Federal
Circuit’s decision in Distributed Solutions is worth another brief discussion here. In that case,
this Court had granted the government’s motion to dismiss, but the Federal Circuit reversed,
concluding that two agencies had “initiated ‘the process for determining a need,’” Distributed
Solutions, 539 F.3d at 1346, in that an RFI “was a market survey to gather data to determine an
acquisition strategy, and the beginning of a procurement process, within the procurement
protest jurisdiction granted to the Court of Federal Claims by the Tucker Act.” Distributed Sols.,
Inc. v. United States, 104 Fed. Cl. 368, 375 (2012) (on remand). The Federal Circuit reasoned that
the plaintiffs in that case, “as potential competitors under a direct procurement,” id., with the
government – an acquisition strategy the agencies sought to avoid – were objecting to “alleged
violation[s] of statute[s] or regulation[s] in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1) (emphasis added). The Federal Circuit previously had
concluded that the phrase “‘in connection with a procurement or a proposed procurement’” is
“‘very sweeping in scope.’” 539 F.3d at 1345 (quoting RAMCOR, 185 F.3d at 1289). Because a
“procurement includes all stages of the process of acquiring property or services, beginning with
the process of determining a need for property or services and ending with contract completion and
closeout,” id. (emphasis in original) (internal quotation marks omitted), the Federal Circuit
concluded that “plaintiffs’ grievances [regarding the RFI and planned acquisition strategy] fell
in that continuum.” 104 Fed. Cl. at 375; see 41 U.S.C. § 111 (defining “procurement”).
Accordingly, “[w]hile the government ultimately decided not to procure software itself from
the vendors, but rather to add that work to [an] existing contract …, the statute does not require
an actual procurement.” 539 F.3d at 1346. Instead, “[t]he statute explicitly contemplates the
ability to protest these kinds of pre-procurement decisions by vesting jurisdiction in the Court
of Federal Claims over ‘proposed procurements.’” Id. Summarized, “[p]laintiffs possessed
jurisdictional standing because they: (1) were prospective bidders; (2) had a direct and
significant economic interest in the proposed direct procurement that was eliminated; and (3)
alleged a number of statutory and regulatory violations in the decision to forego a direct
procurement.” 104 Fed. Cl. at 375. Plaintiffs in this case are similarly situated to those in
Distributed Solutions, and the central allegations here are similar to those at issue in that case, as
well.
56PTP Resp. at 9 (“The Agency does not dispute that multiple small businesses (SDVOSBs)
stand ready and willing to submit offers to perform the 13F and JFOC requirements at fair
market prices.”).
50
court has consistently held that the Rule of Two is mandatory” (citing cases)); Analytical
Graphics, Inc. v. United States, 135 Fed. Cl. 378, 411 (2017). 57
Notably, in Analytical Graphics, the government argued at length that while
“[t]here are many competition statutes and regulations, . . . they are structured in such a
way to give priority to the application of the small business set-aside[,]” and thus
“[o]ther competition regulations may be applied to the subsequent competition between
small businesses.” Defendant’s Cross-Motion for Judgment on the Administrative
Record, 2017 WL 2722839 (March 7, 2017) (filed in Case No. 116CV01453, Analytical
Graphics, Inc. v. United States, 135 Fed. Cl. 378 (2017)). Indeed, the government in that
case argued that “[t]he expedited procedures associated with a Rule of Two
determination further confirm the intention to make the set-aside determination at the
very start of procurement decision-making.” Id. (explaining that “the mandatory term
‘shall’ . . . requires the Government to set-aside acquisitions when the Rule of Two is
satisfied” and noting that Supreme Court’s decision in Kingdomware Technologies, 136 S.
Ct. at 1976–77 (interpreting the term “shall” in the context of a different small business
preference)). 58
This Court agrees with the government’s position in Analytical Graphics, and the
government does not really make an effort to contend otherwise here. Rather the
government argues only that “the 2010 statutory and regulatory changes . . . are fatal to
[Plaintiffs’] attempt to challenge the ability to issue task orders under the TMS
MAIDIQ.”59 Def. MJAR at 26. According to the government, pursuant to those changes
57In Analytical Graphics, 135 Fed. Cl. at 411, the Court quoted Proxtronics Dosimetry, LLC v.
United States, 128 Fed. Cl. 656, 680 (2016) (quoting 48 C.F.R. § 19.501(c)): “As noted by another
Judge of the United States Court of Federal Claims, ‘[C]ontracting officers are required to
‘review acquisitions to determine if they can be set aside for small business,’ and must ‘perform
market research’ before concluding that an acquisition should not be set aside for a small
business.’” See FAR 19.203(e) (“Small business set-asides have priority over acquisitions using
full and open competition.”).
58In Kingdomware, the Supreme Court addressed a similar Rule of Two contained in The
Veterans Benefits, Health Care, and Information Technology Act of 2006, requiring the
Secretary of Veterans Affairs to set annual goals for contracting with service-disabled and other
veteran-owned small businesses. 38 U.S.C. § 8127. In finalizing the regulations to implement
the Act, the Department indicated in a preamble that § 8127’s procedures “do not apply to
[Federal Supply Schedule] task or delivery orders.” VA Acquisition Regulation, 74 Fed. Reg.
64624 (Dec. 8, 2009) (quoted in Kingdomware, 136 S. Ct. at 1974). Nevertheless, because of the
mandatory nature of the statute, the Court rejected the government’s argument that “the
mandatory provision does not apply to ‘orders’ under ‘pre-existing FSS contracts.’” 136 S. Ct. at
1978 (quoting the government’s brief).
The government also challenges our jurisdiction to decide any Rule of Two issue here, see Def.
59
MJAR at 26, but the Court rejected that argument, supra, see Section II.B.
51
“as implemented in the FAR and the Small Business Act, contracting officers have the
discretion to make use of a multi-award contract without first conducting a rule of two
analysis to determine whether the task order should be set aside for small business.” Id.
at 28; see id. at 26–30 (relying upon 15 U.S.C. § 644(r), FAR 19.502-4, and FAR
16.505(b)(2)(i)(F)).
The Court rejects the government’s interpretation of the provisions upon which it
relies. First, as PTP correctly notes, “[t]he Rule of Two unambiguously applies to ‘any’
‘acquisition,’ FAR 19.502-2, without any loophole for MAIDIQ task orders. . . .” PTP
Resp. at 9. Second, the government misreads the statutory and FAR provisions.
We begin, once again, with the statutory language. Section 644(r) of Tile 15 of the
United States Code mandates the issuance of regulations to provide agencies “at their
discretion” to take several actions. The government focuses on the word “discretion,”
but then conspicuously only summarizes the remaining statutory language. Def. MJAR
at 26–27 (ECF No. 30 at 30–31). The actual statutory words, however, demonstrate the
government’s summary is wrong; we must be precise about what “discretion” agencies
gained. Pursuant to 15 U.S.C. § 644(r), agencies may:
(1) set aside part or parts of a multiple award contract for
small business concerns . . . ;
(2) notwithstanding the fair opportunity requirements under
section 2304c(b) of title 10 and section 4106(c) of title 41,
set aside orders placed against multiple award contracts
for small business concerns. . .; and
(3) reserve 1 or more contract awards for small business
concerns under full and open multiple award
procurements . . . .
15 U.S.C. § 644(r)(1) – (3). This language is straightforward. The first subparagraph
means that an agency, when awarding a multiple award contract, may designate
particular portions of the scope of work to be performed only by small business. The
second paragraph means that even though, normally, every multiple award contract
holder must be permitted – pursuant to “fair opportunity requirements” – to compete
for every task order, agencies may set aside particular task orders for which only small
business multiple award contract holders may compete. And the final paragraph
means that, of the multiple awards to be made in a multiple award contract
procurement, some contact award slots may be set aside for small business concerns,
even though the overall procurement is generally full and open. FAR 19.502-4 supports
our reading given that it covers “Partial set-asides of multiple-award contracts” and
52
specifically provides that “contracting officers may, at their discretion, set aside a
portion or portions of a multiple-award contract” under certain circumstances. 60
Accordingly, that statute only tells an agency how a multiple award contract may
be structured or how a task order competition under a multiple award contract may be
competed. In contrast, none of those provisions answers the question, one way or the
other, of whether an agency – when deciding the foundational, prerequisite question of
what type of procurement vehicle to use for a planned acquisition (i.e., to satisfy a
particular agency need) – may avoid the Rule of Two merely because a MAIDIQ
already has been awarded and the agency prefers to use that vehicle. Again, the fact
that an agency has the discretion to partially set-aside “a portion” of a multiple award
contract for small business does not lead to the ineluctable conclusion that having
decided not to engage in a partial set-aside, an agency may thereafter dispense with the
Rule of Two. The latter does not follow from the former. To the contrary, the grant of
discretion applies even where the Rule of Two does not require a set-aside, but the grant
of discretion does not somehow, by negative implication, eliminate the Rule of Two
requirement.
In sum, what the government really seems to be arguing is that the agency,
having awarded its preferred TMS MAIDIQ without any set-aside component, is now
exempt from applying the Rule of Two to any proposed procurement (or acquisition) of
services that might be obtained using the TMS MAIDIQ. Put yet differently, the
government asserts that, having exercised its discretion not to set-aside any portion of
the TMS MAIDIQ scope or any of the TMS MAIDIQ‘s contract awards for small
business, the agency can utilize the TMS MAIDIQ for any acquisition – and avoid the
60Further support for this understanding can be found in a Proposed Rule notice issued by the
SBA:
[T]he Jobs Act amended the Small Business Act (Act) to permit
Federal agencies to:
• Set-aside part or parts of multiple award contracts for small
business concerns . . . ;
• Set-aside orders placed against multiple award contract
(notwithstanding the fair opportunity requirements set forth
in 10 U.S.C. 2304c and 41 U.S.C. 253j) for small business
concerns . . .; and
• Reserve one or more contract awards for small business
concerns under full and open competition, where the agency
intends to make multiple awards . . . .
Acquisition Process: Task and Delivery Order Contracts, Bundling, Consolidation, 77 Fed. Reg. 29130-
01 (May 16, 2012).
53
Rule of Two – so long as the contemplated scope of work is within the TMS MAIDIQ’s
scope. No statutory or regulatory language, however, supports such a sweeping
inference.
PTP, for its part, argues that “19.502-4 plainly does not relieve agencies from
applying the Rule of Two, as the first of five conditions stated in FAR 19.502-4 is that:
‘Market research indicates that a total set-aside is not appropriate [pursuant to the Rule
of Two].’” PTP Resp. at 10 (quoting FAR 19.502-4(1)). In that regard, PTP asserts that,
pursuant to that subparagraph’s “plain language, the discretion to set aside orders
described does not apply unless the Agency has first engaged in market research and
confirmed that the Rule of Two does not mandate total set aside.” PTP Resp. at 11
(underline in original, bold text added). On that point, however, the Court parts ways
with PTP, as well. Although PTP reads FAR 19.502-4(1) as applying to “orders,” the
regulation – as demonstrated above – only addresses how and when an agency may
“set aside a portion or portions of a multiple-award contract.” Thus, all FAR 19.502-4(1)
provides is that, with respect to a scope of work, the agency cannot create a multiple
award contract with only a partial set aside “portion” where that overall scope of work
should be entirely set-aside (i.e., at “total set-aside”) pursuant to the Rule of Two.
Again, however, that does not answer the question of whether the agency has any
obligation to apply the Rule of Two to a particular scope of work that is covered by the
scope of an already-issued multiple-award contract. 61
Nor does FAR 16.505(b)(2)(i)(F) advance the interpretive ball. That provision is
simply one of many “[e]xceptions to the fair opportunity process” under an IDIQ
contract. FAR 16.505(b)(2). In the absence of an applicable exception, “[t]he contracting
officer shall give every awardee a fair opportunity to be considered for a delivery-order
or task-order exceeding $3,500….” FAR 16.505(b)(2)(i) (emphasis added). In other
words, “contracting officers may, at their discretion, set aside orders” under an IDIQ
without violating the fair opportunity to compete requirement that normally applies.
FAR 16.505(b)(2)(i)(F). But that, too, tells us nothing about whether a procuring agency
61FAR 19.504 covers “Orders under multiple-award contracts” but also does not deal with this
case. Rather, FAR 19.504 presumes a multiple-award contract for which a partial set-aside of
scope has been made already, or where small businesses hold an unrestricted contract slot. See
FAR 19.504(a)(1) (“The contracting officer shall state in the solicitation and resulting contract
whether order set-asides will be discretionary or mandatory when the conditions in 19.502-2 are
met at the time of order set-aside. . . .”); see also FAR 19.504(b) (“Orders under partial set-aside
contracts.”). If, under a particular multiple award contract, there is no small business
contractor, the agency cannot set aside a task order. See PTP Resp. at 11 (“discretionary
authority ‘obviously works only if there are small business awardees on the multiple award
contract’” (quoting 78 Fed. Reg. 61123 (Oct. 2, 2013))).
54
must apply the Rule of Two to a scope of work before deciding whether to leverage an
existing multiple award contract.
In sum, none of the updates to the various small business set-aside provisions
resolve the question before this Court: whether the agency must apply the Rule of Two
to a discrete scope of work before deciding to use an existing MAIDIQ. This Court
answers that question in the affirmative, once again following the same reasoning as the
GAO in LBM, Inc. In that case, LBM, Inc., a small business concern, protested the
Army’s decision to acquire transportation motor pool services under the LOGJAMSS
contracts. LBM, Inc., B-290682 at *1. The GAO found that the “Army violated FAR
§ 19.502-2(b) when the agency did not consider continuing to acquire the Fort Polk
motor pool services under a total small business set-aside, and . . . sustain[ed] LBM’s
protest on this basis.”). Id. at *8. The GAO reasoned as follows:
Acquisition is defined by the FAR to mean:
the acquiring by contract with appropriated
funds of supplies or services (including
construction) by and for the use of the Federal
Government through purchase or lease,
whether the supplies or services are already in
existence or must be created, developed,
demonstrated, and evaluated. Acquisition
begins at the point when agency needs are
established and includes the description of
requirements to satisfy agency needs,
solicitation and selection of sources, award of
contracts, contract financing, contract
performance, contract administration, and
those technical and management functions
directly related to the process of fulfilling
agency needs by contract.
FAR § 2.101. Under this broad definition, the agency’s
purchasing the Fort Polk motor pool services by contract with
appropriated funds is an “acquisition,” subject to FAR
§ 19.502-2(b), regardless of the fact that the agency anticipated
acquiring those services through their transfer to the
LOGJAMSS scope of work. . . . Had the agency complied with
the requirements of FAR § 19.502-2(b), it might have
concluded that the LOGJAMSS contracts were not the
appropriate vehicle for this acquisition. Whatever the
55
outcome of the FAR § 19.502-2(b) analysis, though, the
agency’s intent to use a task order under LOGJAMSS as the
contract vehicle did not eliminate the legal requirement that
the agency undertake that analysis.
Id. at *7. Notably, the GAO reached that conclusion notwithstanding that there were
“four small business concerns that [held] LOGJAMSS contracts.” Id. at *8 n.7. Indeed,
the agency thereafter asked the GAO to modify its recommendation so that the agency
could compete the work at issue amongst only the small business LOGJAMSS
contractors. The GAO rejected the agency’s request, explaining:
The Army apparently now concedes that under FAR § 19.502-
2(b) these services should be set aside for exclusive small
business competition. As discussed above, any such
competition must be a full and open competition among the
eligible small businesses; there is no legal authority in such
circumstances to limit this competition to certain designated
small businesses.
Dep’t of the Army--Request for Modification of Recommendation, B-290682.2, 2003 CPD ¶ 23,
2003 WL 103408, *5–*6 (Jan. 9, 2003) (“[W]hat the Army has requested is not consistent
with the statutory and regulatory scheme applicable to small business set-asides. The
Army is essentially asking us to waive statutory requirements for what the Army views
as strong policy reasons.”). 62
The bottom line from this Court’s perspective is that the cancelled solicitations at
issue here are themselves acquisitions. The government’s identification of a need – of a
scope of work – that it must procure itself begins an acquisition. Accordingly, we view
62Although the GAO “agreed to hear LBM’s contention despite the (then in-place) limitation on
[GAO’s] jurisdiction to hear protests involving the placement of task and delivery orders” it did
so because the GAO “treated LBM’s complaint as a timely solicitation challenge to the
LOGJAMSS contract.” Delex Sys., Inc., B-400403, 2008 CPD ¶ 181, 2008 WL 4570635, *7 (Oct. 8,
2008). (discussing LBM, at *5–*6). In contrast, we view jurisdiction as proper in this case either
as a challenge to the cancellation of a solicitation or as a violation of the Rule of Two; either
way, this Court properly considers Plaintiffs’ claims under the last prong of 28 U.S.C. § 1491, as
explained supra, see Section II, and not as a challenge to the TMS MAIDIQ. Even if we were to
consider Plaintiffs’ claims as a challenge to the TMS MAIDIQ, however, we would follow LBM’s
approach to the task order protest bar, and not apply it here. LBM, at *3 (“Contrary to the
Army’s arguments, LBM is not challenging the proposed issuance of a task order for these
services, but is raising the question of whether work that had been previously set aside
exclusively for small businesses could be transferred to LOGJAMSS, without regard to the
Federal Acquisition Regulation (FAR) § 19.502-2(b) requirements pertaining to small business
set-asides.”).
56
the identification of the continued need for 13F and JFOC requirements as either part of
in-process acquisition or a new acquisition. Either way – no matter how the acquisition
is viewed – PTP is correct that the “Rule of Two unambiguously applies” to “any
acquisition,” FAR 19.502-2, “and just because the Agency may have satisfied its small
business set aside obligations with respect to the TMS MAIDIQ acquisition in 2018 does
not mean the Agency has also satisfied its set aside obligations with respect to the
separate acquisitions of the 13F and JFOC requirements in 2020.” PTP Resp. at 12.
Nothing in the updated small-business regulations provides otherwise. 63
Moreover, where the FAR intends to make the Rule of Two entirely inapplicable
to the selection of a particular procurement vehicle, the FAR knows how to do so. See
FAR 8.404(a) (“Use of Federal Supply Schedules”) (providing that FAR “Parts 13
(except 13.303-2(c)(3)), 14, 15, and 19 (except for the requirements at 19.102(b)(3) and
19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply
Schedules contracts (but see 8.405-5)”). Accordingly, there is no requirement for an
agency to apply the Rule of Two prior to an agency’s electing to use a FAR Part 8 FSS
procurement, although the agency has the discretion to set-aside such procurements
after deciding to utilize FAR Part 8, just as the Army did here with respect to the 13F
and JFOC Solicitations. See FAR 8.405-5(a) (“Although the preference programs of part
19 are not mandatory in this subpart, in accordance with section 1331 of Public Law
111-240 (15 U.S.C. 644(r)) - (1) Ordering activity contracting officers may, at their
discretion - (i) Set aside orders for any of the small business concerns identified in
19.000(a)(3)”).
63Later GAO decisions are not to the contrary. In Delex Systems, Inc., B–400403, the GAO merely
“concluded that the set-aside provisions of FAR §19.502–2(b) applied to competitions for task
and delivery orders issued under multiple-award contracts” (emphasis added); and, in Aldevra,
the GAO explained that it had “subsequently found that [its] holding in Delex had been
superseded by the passage of section 1331 of the Jobs Act.” Aldevra, B-411752, 2015 CPD ¶ 339,
2015 WL 6723876 n.4 (Oct. 16, 2015) (citing Edmond Scientific Co., B–410179, 2014 CPD ¶336, 2014
WL 6199127, *8 n.10 (Nov. 12, 2014)). None of those decisions address the precise question at
issue in this case. For example, in Edmond, the protestor simply “allege[d] that the agency was
required to use the Rule of Two to decide whether to set aside [a] task order” – that is, “whether
the Army abused its discretion in not reserving this task order for small business participation”
under a particular multiple award contract. 2014 WL 6199127, *3, *5. The GAO reached the
same conclusion this Court did, above: the applicable FAR provisions “grant discretion to a
contracting officer about whether to set aside for small business participation task orders placed
under multiple-award contract.” Id. *5 (discussing FAR §§19.502–4, 16.505(b)(2)(i)(F)). In short,
none of those GAO cases, except LBM, addresses the precise issue of an agency moving work
currently performed by a small business to a MAIDIQ where the incumbents are ineligible to
compete for an award.
57
In contrast, no provision similar to FAR 8.404(a) – exempting the selection of an
FSS procurement from FAR Part 19 – exists in FAR part 16, generally, or FAR 16.5, in
particular. 64
To the extent the agency argues that Plaintiffs’ claims with regard to the Rule of
Two are nothing more than untimely challenges to the TMS MAIDIQ solicitation, the
Court rejects that contention. The Court, instead, once again, agrees with PTP: “Had
[Plaintiffs] protested the TMS MAIDIQ Solicitation on the basis that the Agency might
one day issue task orders for 13F and JFOC work (not even specified in the TMS
MAIDIQ), the Agency would have challenged the action as unripe (speculative as to
whether the task orders would issue and whether the MAIDIQ would include small
business contractors).” PTP Resp. at 14; see also LBM, B-290682 at *3–*5 (rejecting
solicitation protest timeliness argument). Given that there is no evidence that the
incumbent Plaintiffs had reason to believe that the work would be consolidated into the
TMS MAIDIQ at the time the TMS MAIDIQ solicitation was issued, the Court will not
apply waiver. Cf. Boeing Co. v. United States, 968 F.3d 1371, 1382 (Fed. Cir. 2020).
In sum, the government’s failure to apply the Rule of Two prior to deciding to
cancel the solicitations at issue is fatal to that decision, whether because that failure
undermines the central rationale of the cancellation decision or whether because the
decision to move the work to the TMS MAIDIQ prior to conducting a Rule of Two
analysis constitutes an independent violation of law.
2. Additional Violations Of Law
The Court further concludes that the agency violated FAR 19.502-9
(“Withdrawing or modifying small business set-asides”). That provision permits a
contracting officer to “withdraw [a] small business set-aside” only where “before award
of a contract involving a total or partial small business set-aside, the contracting officer
64If FAR Subpart 16.5 contained a provision similar to FAR 8.404(a), perhaps this Court would
reach a different conclusion. See FAR 16.000 (“This part describes types of contracts that may be
used in acquisitions. It prescribes policies and procedures and provides guidance for selecting a
contract type appropriate to the circumstances of the acquisition.”); FAR 16.5 (“Indefinite-
Delivery Contracts”). Indeed, FAR 16.500(e) instructs its readers to “[s]ee subpart 19.5 for
procedures [1] to set aside part or parts of multiple-award contracts for small businesses; [2] to
reserve one or more awards for small business on multiple-award contracts; and [3] to set aside
orders for small businesses under multiple-award contracts.” Notably, this Court interpreted
the various provisions discussed above (e.g., 15 U.S.C. § 644(r), FAR 19.502-4, FAR 19.504, and
FAR 16.505(b)(2)(i)(F)) as governing precisely the actions specified in FAR 16.500(e). None of
those procedures, however, answer the preliminary, more basic question of whether the Rule of
Two must be applied in an acquisition before deciding whether a particular MAIDIQ may be
used at all.
58
considers that award would be detrimental to the public interest (e.g., payment of more
than a fair market price)[.]” FAR 19.502-9. 65 Where such a decision is made, “[t]he
contracting officer shall initiate a withdrawal of an individual total or partial small
business set-aside, by giving written notice to the agency small business specialist and the
SBA PCR . . . stating the reasons.” Id. (emphasis added). 66 The Court holds that the
agency’s decision to cancel the solicitations at issue and move the scopes of work to the
TMS MAIDIQ constitutes a withdrawal of a set-aside. Nutech Laundry & Textile, Inc. v.
United States, 56 Fed. Cl. 588, 592 (2003); Aviation Enterprises, Inc. v. United States, 8 Cl.
Ct. 1, 27 (1985) (“After the solicitation was cancelled and the Air Force opted to utilize
aircraft under an existing lease, such actions can arguably be considered a withdrawal
of the unilateral set-aside.”).
This unexplained violation of law independently justifies judgment for
Plaintiffs. 67 Had the agency complied with the above-quoted FAR 19.502-9 and related
procedures, the agency may not have cancelled the solicitations in favor of the TMS
MAIDIQ. See, e.g., Gear Wizzard, Inc. v. United States, 99 Fed. Cl. 266, 275 (2011) (noting
the government’s explanation that “one of the reasons the contracting officer sought a
new procurement was because of [the agency’s] failure to properly withdraw the set-
aside requirement in accordance with FAR 19.506[,]” the prior version of FAR 19.502-9);
id. at 276 (“According to defendant, ‘Based on these and other errors, the contracting
officer determined it was necessary to start over with a new procurement.’”). 68
65Although this FAR provision applies “before award of a contract,” the Court finds it
applicable, as the solicitation cancellations were, in fact, “before award of a contract.” Since the
agency had cancelled the contracts, the 13F and JFOC Solicitations were pending at the time of
cancellation, the agency was in receipt of responsive proposals, and the agency could have
made a new award as part of its corrective action. The fact that one set of awards had been
made and canceled does not make this FAR requirement in applicable. In any event, the agency
cannot be permitted to evade FAR 19.502-9 merely by awarding a contract, cancelling it, and
then cancelling the solicitation.
66SBA PCR is short for Small Business Administration Procurement Center Representatives,
“who are generally located at Federal agencies and buying activities which have major
contracting programs” and “may review any acquisition to determine whether a set aside or
sole-source award to a small business under one of SBA’s program is appropriate.” 13 C.F.R. §
125.2; see FAR 19.402.
67The government does not address this issue at all in its briefs. Any further response is
therefore waived. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir.
2006) (“’When a party includes no developed argumentation on a point . . . we treat the
argument as waived under our sell established rule.’” (quoting Anderson v. City of Boston, 375
F.3d 71, 91 (1st Cir. 2004))).
68In Aviation Enterprises, Inc., the plaintiff asserted that the government “failed to comply with
the notice provisions of section 19.506[,]” the predecessor provision to FAR 19.502-9. 8 Cl. Ct. at
59
The Court also concludes that the agency violated 10 U.S.C. § 2305(b)(2), which
provides that “competitive proposals received in response to a solicitation may be
rejected if the head of the agency determines that such action is in the public interest.”
Based on the Administrative Record, the Court was unable to find the involvement of
the agency head in a cancellation decision, any delegation of authority by the head of
agency to the contracting officer to make a cancellation decision, or that the contracting
officer is delegated such authority under the applicable regulations governing a FAR
Part 8 procurement seeking competitive proposals pursuant to an RFP. See AFARS
Appendix GG (Delegations). Moreover, nowhere does the agency conclude that the
cancellation of the 13F and JFOC Solicitations is in the “public interest.” 69
V. The Court Grants Plaintiffs’ Request For 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); see Kiewit Infrastructure West Co., 147 Fed. Cl. at 712 (applying these four
factors to an agency cancellation decision).
As this Court explained at length above, Plaintiffs have succeeded on the merits.
29. Although just as here, “[i]t [was] uncontradicted that neither the contracting officer nor any
[ ] procuring official ever notified a SBA representative of the decision to utilize existing” leases.
Id. The Claims Court concluded that “[t]hough this failure to give notice may have been a
minor technical violation of the regulation, assuming the regulation to be applicable, the court
finds that such a minor violation does not warrant injunctive relief” because “[n]ot every
violation of a regulation mandates a right to relief.” Id. (citing Keco Indus., Inc. v. United States,
203 Ct. Cl. 566, 573–74, 492 F.2d 1200, 1203–4 (Ct. Cl. 1974)). The undersigned respectively
disagrees with Aviation Enterprises, particularly given its reliance on a pre-ADRA case. See
Impresa Construzioni, 238 F.3d at 1333 (“cases such as Keco . . . are based on the implied contract
theory of recovery and do not govern APA review of contracting officer decisions”).
69The closest that the agency comes to making such a conclusion is CO Abraham’s assertion
that “the Government’s best interest can be met by competing the JFO, 13F and KMS
requirements under the MICC-Fort Eustis recently awarded TMS MAIDIQ.” ECF No. 25 at 620
(AR 616) (emphasis added). That the TMS MAIDIQ “can meet” the “government’s” “best
interest” may simply mean that the TMS MAIDIQ is one option to meet the agency’s needs,
and, in any event, is not the same as a determination that a solicitation cancellation is in the
public’s interest.
60
In evaluating irreparable harm, “[t]he relevant inquiry . . . is whether plaintiff has
an adequate remedy in the absence of an injunction.” Magellan Corp. v. United States, 27
Fed. Cl. 446, 447 (1993). Moreover, in the bid protest context, “the loss of the
opportunity to fairly compete for future government contracts constitutes irreparable
harm.” ViroMed Laboratories, Inc. v. United States, 87 Fed. Cl. 493, 503 (2009). Here, with
regard to TTGI, the agency cancelled TTGI’s 13F contract award and then, instead of
reevaluating proposals or re-soliciting the requirement with an amended solicitation,
the agency cancelled the 13F Solicitation for the purpose of moving the work to the
MAIDIQ, under which TTGI is not a contract holder and therefore is ineligible to bid on
any task order procurement. TTGI’s loss of anticipated profits from the 13F contract
award, in addition to its inability to compete for that work on the MAIDIQ, establishes
the immediate and irreparable harm that TTGI would suffer in the absence of an
injunction. Turning to PTP, following the agency’s cancellation of the 13F and JFOC
contract awards, PTP, the prior incumbent on both contracts – having successfully
induced corrective action following GAO protests – once again stood to have an
opportunity to have its proposal considered for award or to submit a proposal on an
amended solicitation. Instead, PTP’s protests resulted in its losing the opportunity to
compete. While PTP’s harm is arguably more speculative than that of TTGI (insofar as
PTP had not been awarded the now-cancelled contracts and solicitations), nonetheless,
“it is well-established that the potential profits that are lost to offerors when arbitrary
procurement actions would deprive them of the opportunity to compete for a contract
will normally be sufficient to constitute irreparable injury.” MORI Assoc., Inc., 102 Fed.
Cl. at 553. As PTP also is not a contract holder on the TMS MAIDIQ, PTP faces similar
irreparable harm should the procurement be solicited on the TMS MAIDIQ without the
agency first conducting a Rule of Two analysis, the results of which may permit PTP to
bid on the work at issue. For these reasons, this Court finds Plaintiffs meet the second
factor for equitable relief.
In balancing the harms, the agency has not shown that the continued use of the
GSA MAS contracts will be onerous. While the government asserts that “the primary
harm to the Government” is its inability to “finally use a long-planned IDIQ designed
for these requirements, and to leave behind the ill-fitting stop-gaps of the GSA MAS
task orders, as it always intended to do,” Def. MJAR at 36, this Court, as discussed
above, is unable ascertain the factual basis for the agency’s decision that the GSA MAS
contracts were “ill-fitting” and, as such, cannot conclude that the harm to the
government would outweigh the clear harm to Plaintiffs. The government’s further
contention that “delay will also harm the FCoE, as it threatens to leave it with an
inability to secure the necessary training for artillery personnel,” id., suffers from the
same defect. In addition, crediting the government’s assertion here would be
tantamount to punishing PTP, in particular, for having filed a GAO protest, the effect of
which was to secure corrective action. The agency should not be permitted to conduct a
61
procurement, inducing would-be contractors to expend time and money preparing and
submitting proposals, only to have the rug pulled out from underneath them when an
offeror points out putative flaws in the agency’s process. This is not a case where the
agency has shown that its substantive needs have changed, and a different vehicle is
more capable of meeting those changed needs. Moreover, the Court’s decision here
does not even preclude the agency from proceeding, per se, with an alternative
procurement vehicle that better meets the agency’s needs. Rather, the injunctive relief
ordered here merely reinstates the status quo prior to the cancellation decisions and
requires the agency to follow the law consistent with this decision.
The public interest also favors this Court’s granting an injunction, as “the public
always has an interest in the integrity of the federal procurement system.” Starry Assoc.,
127 Fed. Cl. at 550 (citing Hosp. Klean of Tex, Inc. v. United States, 65 Fed. Cl. 618, 624
(2005)); MVM, Inc. v. United States, 46 Fed. Cl. 137, 143 (2000) (“Many cases have
recognized that the public interest is served when there is integrity in the public
procurement system.”). This is particularly applicable to the present case where the
agency’s cancellation and planned movement of work to the TMS MAIDIQ violated
statutory and regulatory requirements.
CONCLUSION
The Court GRANTS Plaintiffs’ respective motions for judgment on the
Administrative Record and DENIES the government’s cross-motion for judgment. The
Court further GRANTS Plaintiffs’ request for equitable relief and orders as follows:
1. To the extent formal cancellations of Solicitation Nos. W9124L-20-R-0016
and W9124L-20-R-0020 have not been issued already, the agency is
enjoined from cancelling them in the absence of a new cancellation
decision.
2. To the extent the agency already has cancelled those solicitations, the
cancellation decisions hereby are set-aside as unlawful, and the agency is
instructed to reinstate the solicitations.
3. The agency is enjoined from transitioning the 13F and JFOC requirements
to the TMS MAIDIQ (or any other procurement vehicle) without
complying, at a minimum, with FAR 19.502-2, FAR 19.502-9, and
10 U.S.C. § 2305(b)(2).
4. Should the agency determine, however, that a change in acquisition
vehicle is still warranted, the agency shall issue new cancellation
decisions not inconsistent with this opinion and order.
62
If Plaintiffs believe they are also entitled to proposal preparation costs under the facts of
this case, see, e.g., TTGI Am. Compl. at 11 (¶ F), they shall file a motion for such on or
before December 14, 2020. See CNA Corp. v. United States, 83 Fed. Cl. 1, 8–12 (2008), aff’d,
332 Fed. Appx. 638 (Fed. Cir. 2009).
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
63