Nexagen Networks, Inc. v. United States

In the United States Court of Federal Claims
Bid Protest
No. 15-664C
Filed Under Seal: December 21, 2015
Reissued for Publication: January 27, 2016*

)
NEXAGEN NETWORKS, INC., )
) Bid Protest; Tucker Act, 28 U.S.C. §
Plaintiff, ) 1491(b); Motion to Dismiss; Rule
) 12(b)(1); Rule 12(b)(6); Contract Disputes
v. ) Act, 41 U.S.C. § 7103(a); Task Order;
) Federal Acquisition Streamlining Act, 10
THE UNITED STATES, ) U.S.C. § 2304c(e).
)
Defendant. )
)

Patrick F. Timmons, Jr., Counsel of Record, Patrick F. Timmons, Jr., P.C., Houston, TX,
for plaintiff.
Joshua A. Mandlebaum, Trial Attorney, Counsel of Record, Douglas K. Mickle, Assistant
Director, Robert E. Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, United States Department of Justice, Washington, DC, Captain Harry Parent,
Of Counsel, United States Army Legal Services Agency, Fort Belvoir, VA, Michael
Kraycinovich, Of Counsel, United States Army Materiel Command, Redstone Arsenal, AL, for
defendant.
MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, Nexagen Networks, Inc., brought this bid protest action challenging the United
States Army Contracting Command’s decision to terminate its contract to provide data strategy
and software support services to the government and the government’s subsequent corrective

*
This Memorandum Opinion and Order was originally filed under seal December 21, 2015
(docket entry 45), pursuant to the protective order entered in this action on June 30, 2015 (docket
entry 15). The parties were given an opportunity to advise the Court of their views with respect
to what information, if any, should be redacted under the terms of the protective order. The
parties filed a joint status report on January 21, 2016 (docket entry 47) stating that they agreed
there is no need for redactions. Accordingly, the Court is reissuing its Memorandum Opinion
and Order as originally filed.

1
actions with respect to that contract. The government has moved to dismiss Nexagen’s
complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the
United States Court of Federal Claims (“RCFC”), or, in the alternative, for failure to state a
claim upon which relief can be granted, pursuant to RCFC 12(b)(6). For the reasons set forth
below, the Court GRANTS defendant’s motion to dismiss.

II. PROCEDURAL AND FACTUAL BACKGROUND1

A. Factual Background

The relevant facts in this bid protest matter are not in dispute. Plaintiff, Nexagen
Networks, Inc. (“Nexagen”), is a government contractor and one of several awardees of a multi-
award indefinite-delivery-indefinite-quantity contract to provide scientific, systems engineering,
and software systems and services to the United States Army Communications and Electronics
Command’s Software Engineering Center. AR at 962-64.

1. Relevant Task Order

The Army Contracting Command (the “Army”) procures the services called for under the
contract through the award of task orders, and solicits proposals to perform those task orders
through the issuance of task order requests. AR at 964. At issue in this bid protest matter is the
award of a specific task order to provide data strategy and software support services for which
the Army solicited proposals by issuing Task Order Request No. SSESR-2031 (“TOR 2031”) on
July 11, 2014. AR at 161, 182, 335, 815.

On July 29, 2014, Nexagen submitted a proposal in response to TOR 2031. AR at 2397-
524. On September 30, 2014, the Army awarded the task order pursuant to TOR 2031 to CACI
Technologies, Inc. (“CACI”). AR at 2949-992.

Following a protest of that award before the United States Government Accountability
Office (“GAO”), the Army elected to take corrective action by issuing an amendment to
TOR 2031 (“TOR 2031-1”) on November 14, 2014. AR at 161, 1481. The Army solicited

1
The facts recounted in this Memorandum Opinion and Order are taken from the administrative record
(“AR at __”); plaintiff’s amended complaint (“Am. Comp. at __”); defendant’s motion to dismiss (“Def.
Mot. at __”); plaintiff’s response thereto (“Pl. Resp. at __”); and defendant’s reply (“Def. Reply at __”).
Except where otherwise noted, the facts recited here are undisputed.

2
proposals for TOR 2031-1 from all of the government contractors that had previously submitted
proposals for TOR 2031, including Nexagen. AR at 161, 162, 3520.

On December 1, 2014, Nexagen, along with five other government contractors, submitted
a proposal in response to TOR 2031-1. AR at 2, 490-617. The Army awarded the task order
solicited pursuant to TOR 2031-1 to Nexagen on February 13, 2015. AR at 1444-450. The total
value of TOR 2031-1 was $46,309,664. AR at 648.

On March 6, 2015, CACI protested the award of the task order to Nexagen before the
GAO. AR at 70.1-70.2. In March 2015, the Army also sent two e-mails to Nexagen stating that
Nexagen had not complied with the performance work statement for the task order. AR at 771-
74. In particular, the Army indicated that Nexagen had not fully staffed open positions and that
some staff did not have the required experience. AR at 771-74. The GAO dismissed CACI’s
protest on March 26, 2015, after the Army advised that it intended to take corrective actions by
reevaluating all proposals submitted in response to TOR 2031-1 and making a new award
decision. AR at 1491, 3526. Subsequently, on April 20 and 21, 2015, the Army issued cure
notices to Nexagen to address the Army’s concerns regarding non-compliance. AR at 775-77.

On April 27, 2015, Nexagen filed a protest before the GAO challenging the Army’s
decision to take corrective actions in relation to the task order. AR at 46-54. During the protest,
Nexagen requested that the GAO order “the corrective action to cease regarding the subject task-
order and Nexagen’s award be affirmed.” AR at 48. On May 1, 2015, the GAO dismissed
Nexagen’s protest finding that Nexagen’s challenge to the Army’s actions was premature
because the Army’s corrective actions were ongoing. AR at 4752.

On May 4, 2015, the Army’s contracting officer terminated Nexagen’s contract to
provide the data strategy and software support services called for in the task order for default,
because Nexagen failed to address the deficiencies set forth in the government’s cure notices.
AR at 806. The problems with the task order did not, however, end with the termination of
Nexagen’s contract. On May 6, 2015, the Army canceled TOR 2031-1 because of “material
flaws in the evaluation record which made re-evaluation and a subsequent award impossible.”
AR at 816. Following the cancelation of TOR 2031-1, the Army informed Nexagen and others
that the government intended to re-solicit proposals to perform the task order by issuing yet

3
another task order request−TOR 2057. AR at 3986-987. The Army issued a draft performance
work statement for TOR 2057 on May 12, 2015. AR at 3988-4023.

2. Nexagen’s GAO Bid Protest And CDA Claim

On May 14, 2015, Nexagen again filed a protest before the GAO challenging the Army’s
decision to terminate its contract, to provide data strategy and software support services pursuant
to the subject task order, for default and the Army’s subsequent decision to issue TOR 2057. AR
at 10, 26. On May 15, 2015, the Army’s contracting officer converted the termination of
Nexagen’s contract for default into a termination for convenience. AR at 809.

On May 19, 2015, Nexagen modified its protest before the GAO to include a claim for
bad faith termination for convenience. AR at 39. On June 26, 2015, Nexagen filed its complaint
in this matter. See generally Comp. On July 6, 2015, the GAO issued a decision dismissing
Nexagen’s protest because Nexagen failed to timely file comments on the agency report, as
required by the GAO’s Bid Protest Regulations. AR at 4753-754.

On August 1, 2015, Nexagen submitted a certified claim to the Army’s contracting
officer seeking $40,244,379.94 in monetary damages. Am. Comp. at 3; Pl. Resp. at
Attachment 41. In its claim, Nexagen sought to recover monetary damages for the breach of its
contract with the Army. Am. Comp. at 3; Pl. Resp. at Attachment 41. In addition, Nexagen also
challenged the Army’s decision to terminate its contract to provide services pursuant to the
subject task order for default and subsequently for convenience. Am. Comp. at 3; Pl. Resp. at
Attachment 41. On August 25, 2015, the contracting officer informed Nexagen that she did not
possess jurisdiction to consider Nexagen’s claim because of Nexagen’s pending litigation in this
Court. Am. Comp. at 3; Pl. Resp. at Attachment 39.

B. Procedural History

On June 26, 2015, Nexagen filed its complaint in this matter. See generally Comp. On
June 29, 2015, Nexagen filed a motion for preliminary injunction. See generally Pl. Mot. for
Pre. Inj. On June 30, 2015, Nexagen filed a motion for protective order. See generally Pl. Mot.
for Protective Order. The Court subsequently issued a Protective Order in this matter on
June 30, 2015. See generally Order Granting Mot. for Protective Order.

4
 The government filed the administrative record in this case on July 27, 2015, and
subsequently corrected the administrative record on August 21, 2015. See generally AR. On
August 18, 2015, the government filed a motion to dismiss this matter for lack of subject-matter
jurisdiction, pursuant to RCFC 12(b)(1). See generally Def. Mot. Alternatively, the government
also moved to dismiss the complaint for failure to state a claim upon which relief may be
granted, pursuant to RCFC 12(b)(6). Id.

On September 3, 2015, Nexagen filed an amended complaint, in which Nexagen
withdrew its motion for preliminary injunction. Am. Comp. at 16. On September 10, 2015,
Nexagen filed its response to the government’s motion to dismiss. See generally Pl. Resp. On
September 21, 2015, the government filed a reply in support of its motion to dismiss. See
generally Def. Reply. The government’s motion to dismiss having been fully briefed, the Court
addresses the pending motion.

III. LEGAL STANDARDS

A. Jurisdiction And RCFC 12(b)(1)

When deciding a motion to dismiss for lack of subject-matter jurisdiction, this Court must
assume that all undisputed facts alleged in the complaint are true and must draw all reasonable
inferences in the non-movant’s favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); United
Pac. Ins. Co. v. United States, 464 F.3d 1325, 1328 (Fed. Cir. 2006); RCFC 12(b)(1). Plaintiff
bears the burden of establishing subject-matter jurisdiction, and must do so by a preponderance
of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
And so, should the Court determine that “it lacks jurisdiction over the subject matter, it must
dismiss the claim.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and “possess[es] only that power authorized by Constitution and statute . . . .” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Specifically, the Tucker Act grants the
Court jurisdiction over:

[A]ny 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.

5
28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional statute; it does not create
any substantive right enforceable against the United States for money damages . . . . [T]he Act
merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the
substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976). And so, to come
within the jurisdictional reach of the Tucker Act, a plaintiff must identify a separate source of
substantive law that creates the right to money damages. Fisher v. United States, 402 F.3d 1167,
1172 (Fed. Cir. 2005). If the Court finds that the source of law alleged is not money-mandating,
the Court must dismiss the case for lack of jurisdiction. Id. at 1173; RCFC 12(b)(1).

With respect to bid protest matters, the Tucker Act also grants the United States Court of
Federal Claims jurisdiction over bid protests brought 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). In bid protest cases,
this Court reviews agency actions under the “arbitrary and capricious” standard. See 28 U.S.C. §
1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act). And
so, under this standard, an award may be set aside if “(1) the procurement official’s decision
lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or
procedure.” Banknote Corp. of Am., Inc. 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
(Fed. Cir. 2001)). The United States Court of Appeals for the Federal Circuit has explained that:

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. When a challenge is brought on the second ground,
the disappointed bidder must show a clear and prejudicial violation of applicable
statutes or regulations.
Banknote Corp. of Am., Inc., 365 F.3d at 1351; Citizens to Pres. Overton Park, Inc. v. Volpe, 401
U.S. 402, 415 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (in
reviewing an agency’s procurement decision, the Court should recognize that the agency’s
decision is entitled to a “presumption of regularity”).

6
 The Court’s jurisdiction over bid protest matters does not, however, generally extend to
challenges of task orders. In this regard, the Federal Acquisition Streamlining Act (“FASA”)
provides in pertinent part that:

(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); see also BayFirst Solutions, LLC v. United States, 104 Fed. Cl. 493, 502
(2012) (“This court has consistently interpreted the ban as prohibiting task order protests in this
court on any grounds other than the specific excepted allegations of excessive scope, period or
value of the proposed task order.”).

B. RCFC 12(b)(6)

Under Rule 12(b)(6) of the Rules of the United States Court of Federal Claims, a
defendant may move for dismissal of the complaint if plaintiff “fail[s] to state a claim upon
which relief can be granted.” RCFC 12(b)(6). To survive a motion to dismiss under RCFC
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Pleadings
must establish “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citing Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly,
550 U.S. at 555). And so, “a pro se plaintiff still must establish the requisite elements of his
claim.” See Sahagun-Pelayo v. United States, No. 2014-5126, 2015 WL 1004362, at *2, *4
(Fed. Cir. Mar. 9, 2015) (quoting Humphrey v. United States, 52 Fed. Cl. 593, 595 (2002)).

C. The Contract Disputes Act

The Tucker Act also grants this Court “jurisdiction to render judgment upon any claim by
or against, or dispute with, a contractor arising under section 7104(b)(1) of title 41 [the Contract

7
Disputes Act (“CDA”)], . . . on which a decision of the contracting officer has been issued under
section 6 of that Act.” 28 U.S.C. § 1491(a)(2). And so, to establish jurisdiction in this Court to
consider a claim brought pursuant to the CDA, a plaintiff must demonstrate compliance with the
requirements of that Act. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995); see M.
Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010) (finding that
the CDA’s requirements are mandatory and are jurisdictional prerequisites before a contractor
can file suit in this Court).

In this regard, a plaintiff must: (1) submit a proper claim to the relevant contracting
officer, which must be properly certified if the amount sought is more than $100,000; and (2)
obtain a final decision from the contracting officer on that claim before filing in this Court. 41
U.S.C. § 7103(a); Reflectone, Inc., 60 F.3d at 1575-76.

A contractor may obtain either an actual or a deemed final decision from the contracting
officer. Claude E. Atkins Enters., Inc. v. United States, 27 Fed. Cl. 142, 143 (1992). For claims
that seek $100,000 or less, the CDA provides that a contracting officer must issue a final
decision within 60 days. 41 U.S.C. § 7103(f)(1). For claims that seek more than $100,000, the
CDA provides that the contracting officer must issue a decision on the certified claim within 60
days, or the contracting officer must notify the contractor of the time within which a decision
will be issued. 41 U.S.C. § 7103(f)(2). If the contracting officer denies the claim within the
required time period, the claim is actually denied. Id.; Claude E. Atkins Enters., 27 Fed. Cl. at
143. However, a failure to issue a decision within the required time period “is deemed to be a
decision by the contracting officer denying the claim.” 41 U.S.C. § 7103(f)(5). A denial−actual
or deemed−authorizes an “appeal or action on the claim as otherwise provided in [the CDA].
However, the tribunal concerned may, at its option, stay the proceedings of the appeal or action
to obtain a decision by the contracting officer.” Id.

IV. ANALYSIS

The government has moved to dismiss this matter on four grounds: First, the government
argues that the Court does not possess jurisdiction to entertain Nexagen’s claims for damages, or
other relief, related to the termination of its contract to provide data strategy and software
support services pursuant to TOR 2031-1, because Nexagen did not submit this claim to the
Army’s contracting officer before commencing this case. Def. Mot. at 8. Second, the

8
government argues that the Court does not possess jurisdiction to entertain Nexagen’s challenges
to the corrective actions that the Army undertook in relation to TOR 2031-1 and TOR 2057,
because FASA bars the Court from entertaining such claims. Id. In addition, the government
argues that the Court does not possess jurisdiction to entertain Nexagen’s challenge to the
termination of its contract for default, because the Army has converted the termination to one for
convenience. Id. Lastly, the government also contends that, to the extent that the initial
termination of Nexagen’s contract for default could establish jurisdiction, Nexagen’s claim
challenging the termination for default is moot because the Army has already converted the
termination to one for convenience. Id. at 9. For the reasons discussed below, the Court does
not possess subject-matter jurisdiction to consider Nexagen’s claims. And so, the Court must
dismiss the amended complaint.

A. The Court Does Not Possess Jurisdiction To Consider Nexagen’s Claims

1. Nexagen Did Not Submit A Certified CDA Claim Before Commencing
This Action

As a threshold matter, the Court does not possess jurisdiction to consider Nexagen’s
claims related to the termination and alleged breach of its contract, because Nexagen did not
submit this claim to the Army’s contracting officer before commencing this action. In its
amended complaint, Nexagen alleges that the Army “repeatedly interfered with Nexagen’s
performance [under TOR 2031-1], and in so acting materially breached the Contract, long before
it terminated Nexagen for default.” Am. Comp. at 9. Nexagen also alleges that the government
improperly terminated its contract to provide data strategy and software support services
pursuant to the subject task order. Id. Nexagen maintains that the Court possesses jurisdiction to
consider these claims pursuant to the Contract Disputes Act. Id. at 3; Pl. Resp. at 5.

It is well established that under the CDA a contractor must first submit a written claim to
the contracting officer, and obtain a final decision on that claim, before bringing suit in this
Court. 41 U.S.C. § 7103(a); James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541-42
(Fed. Cir. 1996). In addition, for claims seeking more than $100,000−as is the case here−a
contractor must also properly certify the claim before submitting it to the contracting officer. 41
U.S.C. § 7103(b); Reflectone, Inc., 60 F.3d at 1575-76. And so, this Court has long recognized
that it does not possess jurisdiction to consider claims for more than $100,000 brought pursuant

9
to the CDA when the claim has not been previously certified and submitted to a contracting
officer for a final decision. James M. Ellett, 93 F.3d at 1541-42; Reflectone, Inc., 60 F.3d at
1575-76.

The undisputed facts in this case make clear that Nexagen did not submit a certified CDA
claim to the Army’s contracting officer before commencing this matter. In this regard, Nexagen
filed its complaint on June 26, 2015, and subsequently amended the complaint on September 3,
2015. See generally Comp.; Am. Comp. 2 It is without dispute that Nexagen submitted its
certified claim for damages related to the termination and alleged breach of its contract to the
Army’s contracting officer on August 1, 2015. Am. Comp. at 3; Pl. Resp. at Attachment 41.
Because Nexagen submitted this claim to the contracting officer more than a month after
commencing this litigation, Nexagen has not met the jurisdictional perquisites for pursuing a
CDA claim before this Court. Am. Comp. at 3; Pl. Resp. at Attachment 41; See James M. Ellett,
93 F.3d at 1541-42. And so, the Court must dismiss Nexagen’s contract claims for lack of
subject-matter jurisdiction. RCFC 12(b)(1).3

2. Nexagen’s Claims Challenging The Army’s Corrective Actions Are
Jurisdictionally Precluded Under FASA

The Court also does not possess jurisdiction to consider Nexagen’s claims related to the
corrective actions undertaken by the Army in connection with the task order to provide data
strategy and software support services. In its amended complaint, Nexagen alleges that the
Army’s corrective actions with respect to TOR 2031-1 and TOR 2057 “violated applicable

2
The date of the commencement of this matter relates back to the filing of the original complaint on
June 26, 2015. RCFC 15(c)(1) (an amendment to a complaint relates back to the date of the original
pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out in the original complaint).
3
Nexagen’s contention that the Court may consider this matter after the Army’s contracting officer
issues a final decision is without merit. Pl. Resp. at 18-19, 22. The contracting officer has been divested
of any authority to decide Nexagen’s claims because Nexagen commenced this litigation. See Sharman
Co. v. United States, 2 F.3d 1564, 1571 (Fed. Cir. 1993) overruled on other grounds by Reflectone, Inc. v.
Dalton, 60 F.3d 1572 (Fed. Cir. 1995). Nexagen’s contention that the Court possesses jurisdiction to
entertain its contract claims because the Army already denied Nexagen’s claim is also without merit. Pl.
Resp. at 20. It is well settled that a contracting officer cannot issue a final decision without the contractor
first submitting a written claim. M. Maropakis, 609 F.3d at 1328 (finding that a “contracting officer has
no authority to issue a final decision” if the contractor’s submission fails to meet all the requirements for a
claim under the CDA).

10
procurement regulations and were arbitrary and capricious and unlawful.” Am. Comp. at 11.
Nexagen also alleges that “no lawful bases exists for the re-solicitation under TOR 2057.” Id. at
14.

It is well established that this Court does not possess jurisdiction to entertain Nexagen’s
challenges to the task order at issue in this case. In this regard, FASA provides in pertinent part
that:

(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). And so, FASA prohibits a plaintiff from bringing a challenge to the
issuance, or proposed issuance, of a task order in this Court, unless the challenge is based upon
the ground that the task order would increase the scope, period, or maximum value of the
underlying contract. 4 Id.

In this case, Nexagen challenges the Army’s decision to take corrective actions by
cancelling TOR 2031-1 and subsequently issuing TOR 2057. Am. Comp. at 11, 13-14. FASA
does not authorize this Court to hear Nexagen’s claims. Rather, FASA’s exception for protests
that challenge the “scope, period, or maximum value of the contract under which the order is
issued” applies only in cases where the protester is challenging “the underlying procurement
vehicle, not any subsequent specific task order or award.” Innovative Mgmt. Concepts, Inc. v.
United States, 119 Fed. Cl. 240, 242-245 (2014); Omega World Travel, Inc. v. United States, 82
Fed. Cl. 452, 464 (2008).

Here, Nexagen alleges that the Army required that it meet additional requirements that
were not part of TOR 2031-1. Pl. Resp. at 23; see 10 U.S.C. § 2304c(e)(1)(A). This is not a

4
The prohibition against bringing a protest of a task order under FASA applies to protests where−like
here−the agency has elected to take corrective actions to set aside the award of a task order and to solicit a
new task order. Mission Essential Pers., LLC v. United States, 104 Fed. Cl. 170, 178-79 (2012) (FASA’s
ban applies to corrective action); Guam Indus. Servs., Inc. v. United States, 122 Fed. Cl. 546, 553-56
(2015) (FASA’s ban applies to the cancellation of a task order).

11
challenge that falls within the specific excepted allegations of excessive scope, period or value of
the task order as required under FASA. BayFirst Solutions, LLC, 104 Fed. Cl. at 502. And so,
Nexagen cannot properly rely upon the scope exception to FASA to establish jurisdiction in this
case.

In addition, to the extent that the subject task order is valued at more than $10,000,000,
jurisdiction over Nexagen’s protest would fall exclusively within the jurisdiction of the
Comptroller General of the United States. 10 U.S.C. § 2304c(e)(2) (“the Comptroller General of
the United States shall have exclusive jurisdiction of a protest authorized under paragraph
(1)(B)”); Innovative Mgmt. Concepts, Inc. v. United States, 119 Fed. Cl. 240, 245 (2014)
(“FASA authorizes the United States Court of Federal Claims only to adjudicate ‘a protest on the
ground that the [task] order increases the scope, period, or maximum value of the contract under
which the order is issued [.]’” (citing 10 U.S.C. § 2304c(e)(1)(A)). And so, the Court must
dismiss Nexagen’s challenge to the task order at issue in this matter. RCFC 12(b)(1).

B. Nexagen’s Termination For Default Claim Is Moot

Lastly, to the extent that Nexagen is challenging the termination of its contract to provide
data strategy and software support services pursuant to the subject task order for default, that
claim must be dismissed as moot. This Court may consider challenges to the government’s
decision to terminate a contract for default. Malone v. United States, 849 F.2d 1441, 1443-44
(Fed. Cir. 1988); Deponte Investments, Inc. v. United States, 54 Fed. Cl. 112, 116 (2002) (The
“Court has jurisdiction to decide a challenge to the contracting officer’s termination for default.
However, . . . a decision to terminate a contract for default is separate and distinct from a
decision on any claims by a contractor for termination costs or damages.”). But, the only relief
that the Court may grant in such matters is a declaratory judgment converting the termination for
default into a termination for convenience. Armour of Am. v. United States, 69 Fed. Cl. 587,
591-92 (2006) (the Court of Federal Claims possesses jurisdiction over plaintiff’s claim that the
“default termination was improper” and may convert the termination for default into a
termination for convenience).

In this case, it is without dispute that the Army converted the termination of Nexagen’s
contract for default into a termination for convenience on May 15, 2015. AR at 809. And so, the
Army has already provided Nexagen with the only relief available to Nexagen before this Court.

12
Armour of Am., 69 Fed. Cl. at 591-92. And so, Nexagen’s challenge to the termination of its
contract for default is moot. White Buffalo Const., Inc. v. United States, 546 F. App’x 952, 955
(Fed. Cir. 2013) (“the Court of Federal Claims properly found that the conversion [of plaintiff’s
termination for default to a termination for convenience] mooted the claims presented”).
Dismissal of this claim is therefore warranted. RCFC 12(b)(1); RCFC 12(b)(6).5

V. CONCLUSION

In sum, Nexagen has failed to meet its burden to show that this Court possesses
jurisdiction to entertain its claims challenging the termination and alleged breach of its contract
with the Army. The undisputed facts in this matter make clear that Nexagen did not submit a
certified claim to the Army’s contracting officer before commencing this action. As a result,
Nexagen’s contract claims are jurisdictionally barred under the Contract Disputes Act. The
Court also does not possess jurisdiction to entertain Nexagen’s claims challenging the Army’s
corrective actions related to the task order at issue in this case, because the Federal Acquisition
Streamlining Act precludes bringing such challenges in this Court. Finally, Nexagen’s claim
challenging the termination of its contract for default must also be dismissed as moot, because
the Army has already converted the termination of the contract into one for convenience. And
so, for all of these reasons, the Court must dismiss this matter.

For the foregoing reasons, the Court GRANTS defendant’s motion to dismiss.

The Clerk is directed to enter judgment accordingly.

Each party shall bear their own costs.

Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on
June 30, 2015. This Memorandum Opinion and Order shall therefore be filed under seal. The

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The government moves to dismiss Nexagen’s termination for default claim pursuant to RCFC 12(b)(1)
and RCFC 12(b)(6). Def. Mot. at 13-15. The legal standard applied by the Court in considering whether
to dismiss Nexagen’s claims as moot is the same under both rules. Coastal Envtl. Grp., Inc. v. United
States, 114 Fed. Cl. 124, 130 (2013) (“Regardless of whether a moot claim should be dismissed for lack
of subject matter jurisdiction or for failure to state a claim upon which the court could grant relief, the
standard applied by the court in reviewing a motion urging dismissal of a claim as moot is the same: the
court assumes that the allegations in the complaint are true and construes those allegations in the
plaintiff’s favor.” (citations omitted)).

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parties shall review the Memorandum Opinion and Order to determine whether, in their view,
any information should be redacted in accordance with the terms of the Protective Order prior to
publication.

The parties shall FILE a joint status report, on or before January 21, 2016, identifying
the information, if any, that they contend should be redacted in this Memorandum Opinion and
Order, together with an explanation of the basis for each proposed redaction.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge

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