Guam Industrial Services, Inc. v. United States

In the United States Court of Federal Claims
No. 15-588 C
Filed: August 3, 20151

****************************************
* Administrative Procedures Act (“APA”),
GUAM INDUSTRIAL SERVICES, INC., * 5 U.S.C. § 706;
* Bid Protest,
Plaintiff, * 28 U.S.C. §1491;
* Competition In Contracting Act (“CICA”),
v. * 31 U.S.C. § 3551(2)(A);
* Federal Acquisition Regulations (“FAR”),
THE UNITED STATES, * 1.102 (Guiding Principles),
* 1.102-2 (Performance Standards),
Defendant, * 1.602-2 (Responsibilities),
* 3.101-1 (Safeguards);
v. * Federal Acquisition Streamlining Act
* (“FASA”),
CABRAS MARINE CORP., * 41 U.S.C. § 4106(f)(1);
* Preliminary Injunction,
Defendant-Intervenor. * RCFC 65(a)(1).
*
****************************************

Lee Dougherty, Offit Kurman, P.A., Tysons Corner, Virginia, Counsel for the Plaintiff.

Amelia R.S.H. Lister-Sobotkin, United States Department of Justice, Civil Division,
Washington, D.C., Counsel for the Government.

Paul Honigberg, Blank Rome LLP, Washington, D.C., Counsel for the Defendant-Intervenor.

1
On July 29, 2015, the court forwarded a sealed copy of this Memorandum Opinion And
Final Order to the parties to delete from the public version any confidential and/or privileged
information, and note any citation or editorial errors requiring correction. The court has
incorporated some of these comments and corrected or clarified certain portions herein.
 MEMORANDUM OPINION AND FINAL ORDER

I. RELEVANT FACTUAL BACKGROUND.2

On June 29, 2012, the Military Sealift Command (“MSC” or “Government”) awarded
Guam Industrial Services, Inc. d/b/a Guam Shipyard (“Guam Shipyard”) an Indefinite Delivery
Indefinite Quantity (“IDIQ”) multiple award contract (“MAC”) to provide “ship repair services on
MSC vessels in Guam . . . includ[ing,] but . . . not limited to: pipefitting, welding, machinists,
electrical work, boiler making and repairing, and diesel mechanics, etc.” AR 7.

On May 17, 2013, MSC awarded Cabras Marine Corp. (“Cabras”) an IDIQ contract to
“perform major ship repair availabilities that, owing to operational and mission requirements, are
restricted to performance under [its] contract.” AR 39, 53.3

On March 23, 2015, MSC issued a Request For Quotes (“RFQ”) to Guam Shipyard and
Cabras, containing thirty-one work items for maintenance and repair work on the USS Frank Cable
from June 1–30, 2015. AR 111–16. Over the subsequent weeks, MSC accepted Requests For
Clarifications (“RFCs”) and issued Questions and Answers (“Q&As”) in response. AR 316–20,
330, 391–92, 522–23, 540–41, 596–679. During that same time, MSC issued nine amendments to
the RFQ. AR 312–523, 536–63, 571–89.

On April 6, 2015, Joe Cruz, President of Cabras, emailed Peter DeSimone, a supervisory
mechanical engineer for the special mission ship program, to inquire why the RFQ was being
competed instead of negotiated directly with Cabras. AR 1306. On April 7, 2015, Neil
Lichtenstein, Director of the N75 Life Cycle Engineering Division, emailed Mr. DeSimone that
he “d[id]n’t think there is much that we can do about this upcoming award [of the RFQ]. . . . [He
was] worried it would draw too much attention to cancel the current solicitation and issue the work
as a delivery order to Cabras.” AR 1305. That same day, Michael Jensen, a port engineer, emailed
Mr. DeSimone and Mr. Lichtenstein to list potential dangers of eliminating competition: “they will
get complacent, greedy, not finish Avail[abilities] on time and we end up with another [Guam
Shipyard] by a different name.” AR 1303. On April 8, 2015, Mr. Lichtenstein replied that it was
“[t]oo late . . . for the upcoming” RFQ, but that similar future contracts “should be planned for
award under the Single Source Ship Repair contract with Cabras.” AR 1302.

2
The facts described herein are derived from: the June 23, 2015 sealed Administrative
Record (“AR 1–1311”); the June 29, 2015 supplemental sealed Administrative Record (“AR
103.001–13.028” and “AR 1312–54”); and representations made to the court during telephonic
status conferences held on June 10, June 17, and June 22, 2015 (“6/10/15 TR 1–15”; “6/17/15 TR
1–23”; and “6/22/15 TR 1–17”).
3
Guam Shipyard alleges that in January 2014, MSC awarded it a $1,722,848.84 Voyage
Repair Availability (“VRA”) delivery order to repair the USS Frank Cable, with an effective date
of February 3, 2014 and completion date of March 5, 2014. Pl. Mot. at 3–4. But, Guam Shipyard
did not provide a citation, and the court was unable to find evidence of this VRA in the
Administrative Record.

2
 On April 14, 2015, Stephen Hughes, a MSC contracting officer (“CO”), replied that MSC
“should be using [Cabras’s IDIQ contract] for all long duration and/or complex work packages.”
AR 1296.

On April 16, 2015, Guam Shipyard and Cabras both submitted initial quotes in response to
the March 23, 2015 RFQ. AR 680–737.

On April 23, 2015, Christina Martinez, a contract specialist administering the RFQ,
emailed Mr. Hughes that she believed the work was miscategorized as a VRA, and that it would
take more than thirty days to complete the work. AR 775. She suggested either cancelling the
solicitation or reducing the work. AR 775. On April 24, 2015, Mr. Lichtenstein replied that, if
MSC “believe[d] that the present solicitation under the GSR IDIQ can be cancelled at this stage
and awarded under the single source ship repair IDIQ without jeopardy of delaying the
performance period or causing a contract protest situation, then we have no issues with following
that course of action.” AR 789.

On April 27, 2015, Ms. Martinez stated that MSC “will be doing more harm than good in
cancelling this solicitation and starting over with a different strategy[;] therefore[,] we will be
proceeding with making award [in accordance with] the current solicitation.” AR 840.

On April 28, 2015, MSC opened discussions with Guam Shipyard and Cabras. AR 848–
55.

On May 1, 2015, MSC issued a tenth amendment to the RFQ, closed discussions, and
requested final quote revisions. AR 904–14.

On May 3, 2015, MSC reviewed Guam Shipyard’s and Cabras’s records in the Federal
Awardee Performance and Integrity Information System and System for Award Management. AR
931–34. On May 4, 2015, Ms. Martinez prepared a draft IDIQ/Requirements Delivery/Task Order
Award Documentation Record that found “[b]oth quotes” to be “technically acceptable.” AR 941.
Ms. Martinez recommended that Guam Shipyard be awarded the delivery order for
$[REDACTED]. AR 940.

On May 19, 2015, Henry Bijak, another CO, signed the Award Documentation Record
recommending Guam Shipyard for the award. AR 948. That same day, Mr. Bijak submitted the
Contract Review Board (“CRB”) Summary Sheet. AR 949.

The CRB was scheduled for May 20, 2015. AR 949. Prior to the CRB, the RFQ was
cancelled. AR 949 (handwritten note stating that “[t]he CRB was cancelled and N10 directed this
‘VR’ be cancelled and reissued as an MTA to CABRAS [in accordance with] with the current
contract language for the [Ship Repair Facility] contract”).

On May 20, 2015, Michelle Siebeking-Knox, another contracting officer, wrote a
memorandum justifying the cancellation. AR 1009–10. That same day, MSC notified Guam
Shipyard and Cabras that the RFQ had been cancelled. AR 1011. Also on May 20, 2015, MSC
issued a delivery order to Cabras under its IDIQ contract that involved the same thirty-one work

3
items as the cancelled RFQ. AR 115–16, 1020–24. “Shortly after” the cancellation, Guam
Shipyard learned that Cabras had been awarded the work. Compl. ¶ 21.

On June 1, 2015, Cabras began work on the USS Frank Cable. AR 1022.

On June 2, 2015, Ms. Martinez confirmed via telephone that MSC awarded the task order
to Cabras. AR 1222.

On June 4, 2015, MSC sent Guam Shipyard a letter justifying its cancellation of the RFQ.
AR 1282–83.

II. PROCEDURAL HISTORY.

On June 10, 2015, Guam Shipyard (“Plaintiff”) filed a Complaint (“Compl.”) in the United
States Court of Federal Claims. That same day, Plaintiff filed a Motion For Preliminary Injunction
And Permanent Injunction, and the court convened a telephonic status conference.

On June 11, 2015, the Government filed a Notice stating that it “will voluntarily stop work
on the USS Frank Cable delivery order until the next conference with the [c]ourt, currently
scheduled for Wednesday, June 17, 2015, excepting any work necessary to ensure the safety of the
crew or vessel.” Dkt. No. 8, at 1.

On June 17, 2015, Cabras (“Intervenor”) filed a Motion To Intervene that the court granted
that same day. Also on June 17, 2015, the Government filed the Declaration of the CO, Michelle
R. Siebeking-Knox (“Siebeking-Knox Decl.”), and the court convened a telephonic status
conference wherein it granted Plaintiff’s Motion For Preliminary Injunction.

On June 18, 2015, the court entered a Protective Order.

On June 19, 2015, the Government filed a Notice that it intended to take corrective action
in lieu of filing the Administrative Record.

On June 22, 2015, the court convened another telephonic status conference.

On June 23, 2015, the court issued a Memorandum Opinion And Order granting Plaintiff’s
June 10, 2015 Motion For Preliminary Injunction. That same day, the Government filed the
Administrative Record, under seal. On June 29, 2015, the Government filed a Supplemental
Administrative Record, under seal.

On June 30, 2015, Plaintiff filed a Motion For Judgment On The Administrative Record
(“Pl. Mot.”). On July 6, 2015, the Government filed a Cross-Motion And Response (“Gov’t
Mot.”). On July 10, 2015, Plaintiff filed a Reply (“Pl. Reply”). On July 15, 2015, the Government
filed a Reply (“Gov’t Reply”).

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III. DISCUSSION.

A. Jurisdiction.

As a matter of law, the court must consider jurisdiction before reaching the substantive
merits of a case. See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (“When a requirement goes
to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties
have disclaimed or have not presented.”); see also RCFC 12(b)(1) (allowing parties to assert lack
of subject-matter jurisdiction by motion); RCFC 12(h)(3) (“If the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.”). When deciding a subject-
matter jurisdiction challenge, the court “must accept all well-pleaded factual allegations as true
and draw all reasonable inferences in [the non-moving party’s] favor.” Boyle v. United States, 200
F.3d 1369, 1372 (Fed. Cir. 2000).

The United States Court of Federal Claims has jurisdiction under the Tucker Act “to render
judgment upon any claim against the United States founded either upon the Constitution, or any
Act of Congress or any regulation of an executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding in
tort.” 28 U.S.C. § 1491(a)(1). Pursuant to 28 U.S.C. § 1491(b)(1), the United States Court of
Federal Claims has jurisdiction:

to render judgment on an action by an interested party objecting to a solicitation by
a Federal agency for bids or proposals for a proposed contract or to a proposed
award or the award of a contract or any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement.

Id.

On January 25, 1994, Congress enacted the Federal Acquisition Streamlining Act
(“FASA”) that, in relevant part, provides:

(1) A protest is not authorized in connection with the issuance or proposed issuance
of a task or delivery order except for—

(A) a protest on the ground that the order increases the scope, period, or
maximum value of the contract under which the order is issued; or

(B) a protest of an order valued in excess of $10,000,000.

(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United
States shall have exclusive jurisdiction of a protest authorized under paragraph
(1)(B).

10 U.S.C. § 2304c(e).

As such, FASA confines the court’s jurisdiction to adjudicate claims that challenge the
underlying procurement vehicle, not any subsequent specific task order or award. See SRA Int’l,
Inc. v. United States, 766 F.3d 1409, 1413 (Fed. Cir. 2014) (holding that FASA “effectively

5
eliminates all judicial review for protests made in connection with a procurement designated as a
task order”). The import of FASA on the court’s jurisdiction is discussed herein.

B. Standing.

As a threshold matter, a plaintiff contesting the award of a federal contract must establish
that it is an “interested party” to have standing under 28 U.S.C. § 1491(b)(1). See Orion Tech.,
Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (“In a bid protest, only an ‘interested
party’ has standing to challenge a contract award.”); see also Myers Investigative & Sec.
Servs. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (“[S]tanding is a threshold
jurisdictional issue.”). The United States Court of Appeals for the Federal Circuit has construed
the term “interested party” under 28 U.S.C. § 1491(b)(1) as synonymous with “interested party”
under the Competition In Contracting Act (“CICA”), 31 U.S.C. § 3551(2)(A). See Rex Serv.
Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006) (citing decisions adopting the CICA
definition of “interested party” for 28 U.S.C. § 1491(b)(1) purposes). A two-part test is applied to
determine whether a protestor is an “interested party:” the protestor must show “1) that it is an
actual or prospective bidder and 2) that it has a direct economic interest [in the procurement or
proposed procurement].” Orion Tech., 704 F.3d at 1348; see also Distrib. Sols., Inc. v. United
States, 539 F.3d 1340, 1344 (Fed. Cir. 2008) (same).

In addition, to establish “interested party” status, a protestor must show the alleged errors
in the procurement were prejudicial. See Labatt Food Serv., Inc. v. United States, 577 F.3d 1375,
1378–79 (Fed. Cir. 2009) (“It is basic that because the question of prejudice goes directly to the
question of standing, the prejudice issue must be reached before addressing the merits.”) (citations
omitted); see also Myers, 275 F.3d at 1370 (“[P]rejudice (or injury) is a necessary element of
standing.”).

Importantly, a proper standing inquiry must not conflate the requirement of “direct
economic interest” with prejudicial error. Labatt, 577 F.3d at 1380 (Examining economic interest
but excluding prejudicial error from the standing inquiry “would create a rule that, to an
unsuccessful but economically interested offeror in a bid protest, any error is harmful.”). A party
demonstrates prejudice when “it can show that but for the error, it would have had a substantial
chance of securing the contract.” Id. at 1378.

In addition, a party must also show “how the [G]overnment’s error caused [it] to suffer
disparate treatment or particularized harm.” Id. at 1380. “[N]on-prejudicial errors in a bid process
do not automatically invalidate a procurement.” Id. (citing Data Gen. Corp. v. Johnson, 78 F.3d
1556, 1562 (Fed. Cir. 1996) (“[T]o establish prejudice, a protester must show that, had it not been
for the alleged error in the procurement process, there was a reasonable likelihood that the protester
would have been awarded the contract.”)).

In this case, Guam Shipyard submitted a proposal in response to the RFP. AR 719–37. As
an interested bidder, Guam Shipyard satisfies the first element of the “interested party” test. See
Distrib. Sols., Inc., 539 F.3d at 1344 (“To qualify as an ‘interested party,’ a protestor must establish
that . . . it was an actual or prospective bidder or offeror[.]”).

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 As to the second element, i.e., that plaintiff “had a direct economic interest” in the proposed
procurement, Guam Shipyard submitted the lowest price bid, and pre-award documentation shows
that several Government officials favored awarding the RFQ to Guam Shipyard. See, e.g., AR 941
(Martinez recommendation). Thus, Guam Shipyard satisfies the second element of the “interested
party” test. See Distrib. Sols., Inc., 539 F.3d at 1344 (“To qualify as an ‘interested party,’ a
protestor must establish that . . . it had a direct economic interest in the procurement or proposed
procurement.”).

As to prejudice, MSC cancelled the RFQ even though internal documentation shows that
Guam Shipyard was likely to receive the award. See AR 941 (Martinez recommendation). MSC’s
cancellation of the RFQ prejudiced Guam Shipyard, because “there was a ‘substantial chance’
[that Plaintiff] would have received the contract award but for the . . . error[] in the bid process.”
Bannum, Inc. v. United States, 404 F.3d 1346, 1358 (Fed. Cir. 2005); see also Labatt, 577 F.3d at
1380 (“To establish prejudice a protester must show that there was a substantial chance it would
have received the contract but for the [G]overnment’s error in the bid process.”).

For these reasons, the court has determined that Guam Shipyard has standing to seek an
adjudication of this bid protest.

C. Standard Of Review.

Pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution Act,
Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), the United States Court of Federal
Claims is authorized to review challenges to agency decisions, under the standards set forth in the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4) (“In any
action under this subsection, the courts shall review the agency’s decision pursuant to the standards
set forth in section 706 of title 5.”); see also 5 U.S.C. § 706(2)(A) (“The reviewing court
shall . . . hold unlawful and set aside agency action, findings, and conclusions found to
be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”);
Banknote Corp. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004) (“Among the various APA
standards of review in section 706, the proper standard to be applied in bid protest cases is provided
by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’”); Weeks Marine,
Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009) (same).
When a bid protest is based on a regulatory or procedural violation, i.e., “not in accordance
with law,” our appellate court also has imposed an additional requirement that “the disappointed
bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Axiom
Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009).
If an award decision is challenged as made without a rational basis, the trial court must
determine “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.” Impresa Construzioni Geom. Domenico Garufi v. United States,
238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (citation omitted); see also Savantage Fin. Servs.,
Inc. v. United States, 595 F.3d 1282, 1287 (Fed. Cir. 2010) (“[W]e must sustain an agency action
unless the action does not evince rational reasoning and consideration of relevant factors.”)
(alteration omitted); Weeks Marine, 575 F.3d at 1368–69 (“We have stated that procurement

7
decisions invoke highly deferential rational basis review . . . . Under that standard, we sustain an
agency action evincing rational reasoning and consideration of relevant factors.”) (citations
omitted).
In the alternative, if an award decision is challenged on the grounds that an agency acted
in an arbitrary or capricious manner, the court may intervene “only in extremely limited
circumstances.” United States v. John C. Grimberg Co., 702 F.2d 1362, 1372 (Fed. Cir. 1983).
“Courts have found an agency’s decision to be arbitrary and capricious when the agency ‘entirely
failed to consider an important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or [the decision] is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.’” Ala. Aircraft Indus., Inc.-
Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
In this case, the parties have filed Cross-Motions For Judgment On The Administrative
Record, requiring the court to conduct a proceeding akin to an expedited trial on the record. See
RCFC 52.14; see also Bannum, 404 F.3d at 1356 (“[T]he judgment on an administrative record is
properly understood as intending to provide for an expedited trial on the record.”). The existence
of a material issue of fact, however, does not prohibit the court from granting a motion for
judgment on the administrative record, although the court has not conducted an evidentiary
proceeding. Bannum, 404 F.3d at 1357 (authorizing the court to make “factual findings under
RCFC [52.1] from the [limited] record evidence as if it were conducting a trial on the record”).

D. Whether The Federal Acquisition Streamlining Act Precludes The Court
From Adjudicating Plaintiff’s Bid Protest.

1. The Government’s Argument.

The Government argues that the court does not have jurisdiction to adjudicate Plaintiff’s
claim, “because this protest ‘is in connection with’ the cancellation of an RFQ for a proposed
delivery[.]” Gov’t Mot. at 6–7 (citing 10 U.S.C. § 2304c(e); SRA Int’l, 766 F.3d at 1413 (“The
statutory language of FASA is clear and gives the court no room to exercise jurisdiction over
claims made ‘in connection with the issuance or proposed issuance of a task or delivery order.’”)).
“Guam Shipyard is protesting the cancellation of an RFQ [that] . . . contemplated the issuance of
a task or delivery order under an existing IDIQ contract and is directly ‘in connection with’ a
proposed task or delivery order.” Gov’t Mot. at 9. “[A] direct challenge to the delivery order
would undeniably fall within the FASA ban,” and Plaintiff “is attempting to circumvent the clear
language of FASA by indirectly seeking relief that would be unavailable in a direct challenge[.]”
Gov’t Mot. at 9.

4
In 2006, RCFC 56.1 “Review of a Decision on the Basis of the Administrative Record”
was repealed and replaced with RCFC 52.1 to conform to the United States Court of Appeals for
the Federal Circuit’s decision in Bannum, 404 F.3d at 1354 (holding that the court should “make
factual findings from the record evidence as if it were conducting a trial on the record”). See RCFC
52.1, 2006 Rules Committee Notes.

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 The FASA ban is not limited to situations in which a task or delivery order will
necessarily be issued. Rather, the statute applies when the agency issues a task or
delivery order and when the issuance is only “proposed.” See 10 U.S.C. § 2304c(e).
FASA does not require that a proposed task or delivery order actually be issued.
Id. Therefore, the fact that a cancellation will not lead to a delivery order does not
remove the agency decision from the clear terms of the FASA ban. . . . MSC’s
decision to cancel the RFQ was inextricably connected with the decision of whether
to issue the proposed delivery order. It is the issuance of that proposed delivery
order that [Plaintiff] hopes to gain if it prevails in this protest.

Gov’t Reply at 3 (emphasis in original).

2. Plaintiff’s Response.

Plaintiff responds that the court “has jurisdiction . . . because the cancellation of the VRA
RFQ ‘may be viewed as a discrete procurement decision’ distinct from the proposed issuance of a
delivery order.” Pl. Reply at 2 (quoting BayFirst Solutions, LLC v. United States, 104 Fed. Cl.
493, 507 (2012)). Plaintiff “is protesting the cancellation of a solicitation,” not the issuance or
proposed issuance of a delivery order. Pl. Reply at 2. “By its very nature, the cancellation of a
solicitation is a decision that is conceptually severed from the issuance or proposed issuance of a
task order and clearly will not ‘lead to the proposed issuance of a task order.’” Pl. Reply at 3
(quoting Mori Assocs., Inc. v. United States, 113 Fed. Cl. 33, 38 (2013)).

Here, the cancellation of the VRA RFQ does not have a direct and causal
relationship to the issuance or proposed issuance of a delivery order. The
cancellation is a discrete procurement decision that does not implicate the FASA
task and delivery order ban. As such, th[e c]ourt has jurisdiction to entertain
[Plaintiff]’s protest.

Pl. Reply at 4 (emphasis in original).

3. The Court’s Resolution.

The Tucker Act authorizes the United States Court of Federal Claims:

to render judgment on an action by an interested party objecting to a solicitation by
a Federal agency for bids or proposals for a proposed contract or to a proposed
award or the award of a contract or any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1).

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 But, FASA provides that “[a] protest is not authorized in connection with the issuance or
proposed issuance of a task or delivery order,” except in two circumstances5 not relevant to this
case. 41 U.S.C. § 4106(f)(1).

The United States Court of Appeals for the Federal Circuit has held:

The statutory language of FASA is clear and gives the court no room to exercise
jurisdiction over claims made “in connection with the issuance or proposed
issuance of a task or delivery order.” Even if the protestor points to an alleged
violation of statute or regulation, . . . the court still has no jurisdiction to hear the
case if the protest is in connection with the issuance of a task order. We
acknowledge that this statute is somewhat unusual in that it effectively eliminates
all judicial review for protests made in connection with a procurement designated
as a task order—perhaps even in the event of an agency’s egregious, or even
criminal conduct. Yet Congress’s intent to ban protests on the issuance of task
orders is clear from FASA’s unambiguous language.

SRA Int’l, 766 F.3d at 1413 (quoting 41 U.S.C. § 4106(f)(1)).

Here, the parties rely on two cases from the United States Court of Federal Claims to
support their positions: Plaintiff cites BayFirst; and the Government cites Mori.

In BayFirst, the plaintiff filed a pre-award protest against the United States Department of
State (“State Department”). 104 Fed. Cl. at 497. In 2006, the contract work originally was
awarded as a small business set aside. Id. at 498. In 2010, when the incumbent lost its small
business status, the State Department issued a solicitation to other small businesses. Id.
Meanwhile, it anticipated awarding an interim three-month contract to BayFirst’s competitor until
the solicitation could be awarded. Id. BayFirst filed a bid protest, because it sought to bid on the
interim contract as well as the longer-term solicitation. Id.

In determining whether FASA precluded BayFirst’s protest, the court stated that “[t]here
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.” Id. at 502. “It appears that these
variations in interpretation . . . arise in the complex and distinct fact patterns of individual bid
protests.” Id. at 503. The court concluded, “Although this is a close question, the court views the
State Department’s decision to cancel the Solicitation as a decision not ‘in connection with’ the
proposed issuance of a task order.” Id. at 507. In support, the court stated that “[t]he cancellation
of the Solicitation may be viewed as a discrete procurement decision and one which could have
been the subject of a separate bid protest.” Id. Although acknowledging that “the [United States
Court of Appeals for the] Federal Circuit has a broad view of the agency actions that are ‘in
connection with’ a proposed procurement,” the court concluded that it “must draw a line where
one ‘in connection with’ series of actions ends, and another ‘in connection with’ series of actions

5
Those two circumstances are: “(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.” 10 U.S.C. § 2304c(e)(1).

10
begins. In the court’s view, in this case that line falls squarely at the cancellation of the
Solicitation.” Id. at 508. But, “the record before the court could be read either way, and the law
is not entirely clear on the application of the task order protest ban.” Id. at 507.

The following year, the Mori court determined that it “[was] not even a close question”
that FASA prevented a challenge to solicitation cancellation. 113 Fed. Cl. at 37. In that case, the
protestor was the incumbent contractor providing information technology (“IT”) services to the
National Institutes of Health (“NIH”). Id. at 35. Upon expiration of the incumbent contract, NIH
awarded the contract to a competitor. Id. at 36. Following several bid protests, NIH cancelled the
solicitation and awarded the contract by requesting proposals from holders of existing task order
contracts—a mechanism under which the plaintiff was unable to compete. Id.

The Mori court stated that “the phrase ‘in connection with’ means that there is a direct and
causal relationship between two things that are mutually dependent.” Id. at 37 (quoting DataMill,
Inc. v. United States, 91 Fed. Cl. 740, 756 (2010)). “An agency’s underlying decision to procure
goods or services without competition through a delivery order has a direct and causal relationship
to the ‘issuance’ or ‘proposed issuance’ of the delivery order that the agency ultimately utilizes to
effectuate the procurement.” Id. at 38 (quoting DataMill, 91 Fed. Cl. at 756). “Not every decision
that precedes the selection of a task order vehicle is so bound up with the proposed issuance of a
task order that a protest of the decision would be prohibited by FASA.” Id. “Discrete, preliminary
matters that may not necessarily lead to the proposed issuance of a task order may still be
protested.” Id. “But when a protest challenges a decision to obtain services by requesting
proposals from [IDIQ] task order contract holders, the FASA prohibition on protests clearly
applies.” Id.

In the court’s judgment, this bid protest is more analogous to Mori than BayFirst. In
Bayfirst, the solicitation sought bids for a new contract, not a new task order. See Bayfirst, 104
Fed. Cl. at 507. But, in both Mori and this case, the Government cancelled a solicitation for a task
order under an IDIQ contract. See Mori, 113 Fed. Cl. at 37 (finding that the protestor’s “protest
of the decision to use the task order . . . . is not even a close question”); see also AR 111–16
(issuance of RFQ), 1020–28 (issuance of delivery order to Cabras). As the court in Mori
determined, “when a protest challenges the decision to obtain services by requesting proposals
from [IDIQ] task order contract holders, the FASA prohibition on protests clearly applies.” Mori,
113 Fed. Cl. at 38.

In any event, whatever “variations in interpretation” might have existed at the time of
BayFirst, the United States Court of Appeals for the Federal Circuit subsequently clarified in SRA
International that FASA prohibits bid protests in connection with task orders, even if it renders
judicial review impossible. See SRA Int’l, 766 F.3d at 1413; see also Palladian Partners,
Inc. v. United States, 783 F.3d 1243, 1254 (Fed. Cir. 2015) (quoting RAMCOR Servs. Grp.,
Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (holding that, in construing the Tucker
Act, the “operative phrase ‘in connection with’ is very sweeping in scope”); see also Chameleon
Integrated Servs., Inc. v. United States, 111 Fed. Cl. 564, 570 (2013) (stating that “FASA applies
broadly”); see also Innovative Mgmt. Concepts, Inc. v. United States, 119 Fed. Cl. 240, 245 (2014)
(dismissing a bid protest when the protestor challenged a task order award, but not “the underlying
procurement vehicle”). The parties have not disclosed, and the court has not found, any post-SRA
International case holding that the United States Court of Federal Claims has jurisdiction to

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adjudicate a bid protest concerning the cancellation of a task order solicitation. In light of SRA
International, the court has determined that cancelling a task order under an IDIQ contract is “in
connection with” a task order.

As such, the court has determined that FASA bars this bid protest. Because FASA bars
Plaintiff’s bid protest, it is not necessary to decide the merits of the case.

IV. CONCLUSION.

For these reasons, Plaintiff’s June 30, 2015 Motion For Judgment On The Administrative
Record is denied. The Government’s July 6, 2015 Cross-Motion is granted. The Clerk of Court
is ordered to dismiss Plaintiff’s June 10, 2015 Complaint. The June 17, 2015 Preliminary
Injunction is lifted.

IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN,
Judge.

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