Case: 20-1230 Document: 61 Page: 1 Filed: 01/11/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAND SHARK SHREDDING, LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-1230
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01568-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: January 11, 2021
______________________
JOSEPH ANTHONY WHITCOMB, Whitcomb, Selinsky, PC,
Denver, CO, argued for plaintiff-appellant. Also repre-
sented by JOEL L. HAMNER.
SEAN LYNDEN KING, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN,
JR., DOUGLAS K. MICKLE; NATICA CHAPMAN NEELY, Office
Case: 20-1230 Document: 61 Page: 2 Filed: 01/11/2021
2 LAND SHARK SHREDDING, LLC v. UNITED STATES
of General Counsel, United States Department of Veterans
Affairs, Portland, OR.
______________________
Before PROST, Chief Judge, REYNA and HUGHES, Circuit
Judges.
HUGHES, Circuit Judge.
The Department of Veterans Affairs awarded a govern-
ment contract to a party other than Appellant Land Shark
Shredding. After Land Shark protested, the Court of Fed-
eral Claims held that the government’s rejection of Land
Shark’s bid was not arbitrary, capricious, or an abuse of
discretion. Because the decision to award the solicitation
to a contractor other than Land Shark had a rational basis
and was not a violation of regulation or procedure, we af-
firm.
I
Land Shark Shredding, LLC is a service-disabled vet-
eran-owned small business (SDVOSB) that bid unsuccess-
fully on a contract for shredding and pill-bottle destruction
services at VA facilities in Miami, Florida, and the sur-
rounding area.
In August 2018, the VA issued the solicitation at issue
using the General Services Administration (GSA) Federal
Supply Schedule (FSS) program to solicit bids. The FSS
“provides Federal agencies with a simplified process for ob-
taining commercial supplies and services at prices associ-
ated with volume buying.” 48 C.F.R. § 8.402(a). Under the
FSS, a contractor publishes an “Authorized [FSS] Pricelist”
containing the pricing and the terms and conditions for the
supplies or services that the contractor offers.
48 C.F.R. § 8.402(b). The VA used the GSA’s electronic Re-
quest for Quotation system, “eBuy,” to post requirements
and obtain quotes on its solicitation.
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LAND SHARK SHREDDING, LLC v. UNITED STATES 3
38 U.S.C. § 8127(d) requires that the VA provide cer-
tain preferences to veteran-owned small businesses in its
award of contracts:
[A] contracting officer of the Department shall
award contracts on the basis of competition re-
stricted to small business concerns owned and con-
trolled by veterans or small business concerns
owned and controlled by veterans with service-con-
nected disabilities if the contracting officer has a
reasonable expectation that two or more small
business concerns owned and controlled by veter-
ans or small business concerns owned and con-
trolled by veterans with service-connected
disabilities will submit offers and that the award
can be made at a fair and reasonable price that of-
fers best value to the United States.
The contracting officer’s triggering determination is re-
ferred to as the “Rule of Two” because of the requirement
that the officer consider whether two or more businesses
from the respective categories of veteran-owned small busi-
nesses (VOSBs) or SDVOSBs will submit reasonable offers.
Here, the contracting officer performed initial research
through the FSS and identified three SDVOSBs, four
VOSBs, thirty-seven small businesses, and seven large
businesses that were “potentially capable” of providing con-
tract services. J.A. 283. The contracting officer then per-
formed further market research by publishing a formal
request for information in the GSA system. Three busi-
nesses responded to this request: Land Shark and two
small businesses. J.A. 627.
The contracting officer then issued the solicitation as
an “[SDVOSB] set-aside with Small Business [s]et-aside
using a tiered or cascading order of precedence.” Land
Shark Shredding, LLC v. United States, 145 Fed. Cl. 338,
342 (2019) (Decision). All businesses could bid on the solic-
itation, but the solicitation instructed that offers would be
Case: 20-1230 Document: 61 Page: 4 Filed: 01/11/2021
4 LAND SHARK SHREDDING, LLC v. UNITED STATES
evaluated in tier order: (1) SDVOSBs, (2) VOSBs, (3) small
businesses, and (4) all other businesses. Id.
Three businesses submitted bids on the solicitation:
Land Shark, SafeGuard Document Destruction Inc. (Safe-
Guard), which qualified as a small business, and a large
business. Land Shark bid a total price of $2,819,101.20
over the five years of the contract. Id. at 343. SafeGuard
bid a total of $474,034.80 over the five years, and the large
business bid slightly more than SafeGuard. Id. The inde-
pendent government cost estimate (IGCE) for the contract
was $490,000 over the five years. Id. Thus, Land Shark’s
bid was more than five times SafeGuard’s bid and the
IGCE.
The VA determined that Land Shark’s bid was not rea-
sonable and awarded the contract to SafeGuard instead.
Id. Land Shark filed a bid protest in the Court of Federal
Claims, arguing among other things that the contract was
an SDVOSB set-aside that should have been awarded to
Land Shark as the only SDVOSB that bid. The trial court
entered judgment on the administrative record in favor of
the United States which Land Shark now appeals.
II
“Whether a party has standing to sue is a question of
law that we review de novo.” Rex Serv. Corp. v. United
States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). A grant of
judgment on the administrative record is a legal question
that we review without deference. Bannum, Inc. v. United
States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). We apply “the
Administrative Procedure Act standard of review . . . to all
procurement protest cases in the Court of Federal Claims.”
Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1332 (Fed. Cir. 2001) (quoting H.R.
Rep. No. 104-841, at 10 (1996) (Conf. Rep.)). “[A] bid award
may be set aside if either: (1) the procurement official’s de-
cision lacked a rational basis; or (2) the procurement pro-
cedure involved a violation of regulation or procedure.” Id.
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LAND SHARK SHREDDING, LLC v. UNITED STATES 5
III
The government argues that Land Shark lacked stand-
ing to bring a bid protest claim under the U.S. Constitution
and under the Tucker Act, 28 U.S.C. § 1491(b)(1). The
Court of Federal Claims is established under Article I of
the Constitution, but it “applies the same standing require-
ments enforced by other federal courts created under Arti-
cle III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352,
1359 (Fed. Cir. 2009) (quoting Anderson v. United States,
344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003)).
Article III standing requires that a plaintiff have: “(1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.” Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Additionally,
the plaintiff must “fall[] within the class of plaintiffs whom
Congress has authorized to sue” under the statute.
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 128 (2014).
The government argues that Land Shark cannot estab-
lish that it has suffered an actual injury that would satisfy
Article III and that would give the Court of Federal Claims
jurisdiction over its bid protest claim as defined by the
Tucker Act. The Tucker Act grants the Court of Federal
Claims “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.” 28 U.S.C.
§ 1491(b)(1).
“[T]o come within the Court of Federal Claims’s
§ 1491(b)(1) bid protest jurisdiction, [the plaintiff] is re-
quired to establish that it (1) is an actual or prospective
bidder and (2) possess[es] the requisite direct economic in-
terest.” Weeks Marine, 575 F.3d at 1359 (quoting Rex Serv.
Corp., 448 F.3d at 1308) (alteration in original). “[T]o prove
a direct economic interest as a putative prospective bidder,
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6 LAND SHARK SHREDDING, LLC v. UNITED STATES
[the bidder] is required to establish that it had a ‘substan-
tial chance’ of receiving the contract.” Id. (quoting Rex
Serv. Corp., 448 F.3d at 1308) (second alteration in origi-
nal).
The government argues that Land Shark did not have
a substantial chance of winning the contract award be-
cause Land Shark’s bid exceeded the VA’s designated fund-
ing for the contract, and because an award to Land Shark
would have violated the Anti-Deficiency Act provision dis-
allowing contracting officers from authorizing expendi-
tures that exceed appropriated amounts. See 31 U.S.C.
§ 1341(a)(1)(A).
To counter, Land Shark argues that it had a substan-
tial chance of winning the contract based on the Rule of
Two. Because this contract was allegedly set aside for
SDVOSBs under the Rule of Two, and because Land Shark
was the only SDVOSB bidder, Land Shark argues that the
government was required to award the contract to Land
Shark.
We decline to establish a bright line rule that a bid in
excess of an agency’s targeted allocation per se fails the di-
rect economic interest prong of § 1491(b)(1) bid protest ju-
risdiction. While there may be scenarios in which an
offeror’s bid is so high that the contractor lacks a substan-
tial chance of receiving the contract, simply exceeding the
target allocation is not enough. A contractor who bids
above an agency’s target may nevertheless maintain a sub-
stantial chance of receiving the contract. On the facts of
this case, Land Shark has advanced a good-faith argument
that it would have been awarded the contract absent errors
in legal interpretation. Without considering the merits at
this preliminary stage, Land Shark maintained a substan-
tial chance of winning the contract and was therefore an
interested party under the Tucker Act.
Because we hold that a bid in excess of a targeted allo-
cation does not per se mean that the bidding party lacks
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LAND SHARK SHREDDING, LLC v. UNITED STATES 7
standing to file a bid protest claim in the Court of Federal
Claims, and because Land Shark had a substantial chance
of receiving the contract as the only SDVOSB to bid on the
solicitation, we conclude that Land Shark had standing to
protest the award of the contract and proceed to the merits.
IV
The Rule of Two requires that competition be restricted
to SDVOSBs or VOSBs “if the contracting officer has a rea-
sonable expectation that two or more [SDVOSBs or
VOSBs] will submit offers and that the award can be made
at a fair and reasonable price that offers best value to the
United States.” 38 U.S.C. § 8127(d). If the Rule of Two was
satisfied, § 8127(d) makes clear that the contracting officer
should have issued the solicitation as an SDVOSB or VOSB
set-aside. See Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969, 1977 (2016) (“When a statute distinguishes
between ‘may’ and ‘shall,’ it is generally clear that ‘shall’
imposes a mandatory duty”).
Land Shark argues that the Rule of Two was satisfied
here. First, Land Shark argues that the contracting officer
had a reasonable expectation that two or more SDVOSBs
would bid on the solicitation by virtue of the contracting
officer’s initial determination that three SDVOSBs could
potentially bid. Second, Land Shark argues that its prices
were fair and reasonable because they were published on
the FSS and because 48 C.F.R. § 8.404(d) states that “GSA
has already determined the prices of supplies and fixed-
price services, and rates for services offered at hourly rates,
under [FSS] contracts to be fair and reasonable.”
We disagree with Land Shark on both counts. The con-
tracting officer’s initial research identifying three
SDVOSBs that could potentially bid on the solicitation did
not create a reasonable expectation that two or more of the
SDVOSBs would submit offers. In an effort to learn more
about who was likely to bid, the officer published a formal
request for information about potential bidders. Only one
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8 LAND SHARK SHREDDING, LLC v. UNITED STATES
SDVOSB (Land Shark) and no VOSBs responded to this
request. In response to this research, the contracting of-
ficer chose to solicit bids using a tiered order of precedence,
a “procedure used in negotiated acquisitions when market
research is inconclusive for justifying limiting competition
to small business concerns or sub-categories of small busi-
ness concerns.” J.A. 352. Thus, the contracting officer ap-
parently determined that the market research was
inconclusive as to whether two or more SDVOSBs were
likely to bid.
Furthermore, nothing requires the contracting officer
to defer to the FSS in making the determination that an
award could be made at fair and reasonable prices that of-
fer the best value to the United States. 48 C.F.R.
§ 8.404(d), the same section that Land Shark cites as cre-
ating a presumption of reasonableness, states that “order-
ing activities are not required to make a separate
determination of fair and reasonable pricing, except for a
price evaluation as required by 8.405-2(d).” The fact that
a separate determination is not required does not mean
that it cannot be performed, and in any event, such an anal-
ysis is required here under 48 C.F.R. § 8.405-2(d). (“The
ordering activity shall evaluate all responses received us-
ing the evaluation criteria provided to the schedule con-
tractors. . . . [and] [p]lace the order with the schedule
contractor that represents the best value.”)
We agree with the trial court that the Rule of Two was
not met here and the solicitation was not issued as a full
SDVOSB set-aside. The fact that the contracting officer
chose to issue the solicitation as a tiered order of prece-
dence solicitation does not change this and did not obligate
the officer to choose Land Shark, particularly where Land
Shark bid more than five times as much as the low bidder
and the IGCE. Because the contracting officer’s actions
were not an abuse of discretion, it was not error to award
the contract to a party other than Land Shark.
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LAND SHARK SHREDDING, LLC v. UNITED STATES 9
Land Shark also argues that the use of a tiered order
of precedence by the VA violated 38 U.S.C. § 8127(d). We
agree with the trial court that Land Shark has forfeited
this argument by not raising it at the time that the pro-
curement was issued. See Blue & Gold Fleet, L.P. v. United
States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (“[A] party who
has the opportunity to object to the terms of a government
solicitation containing a patent error and fails to do so prior
to the close of the bidding process waives its ability to raise
the same objection subsequently in a bid protest action in
the Court of Federal Claims.”). We also agree with the trial
court that “[e]ven if the argument were not waived . . . the
VA’s cascading tiers of preference scheme, as applied in
this procurement, does not offend either Kingdomware or
section 8127(d).” Decision, 145 Fed. Cl. at 347.
V
We have considered the parties’ remaining arguments
and find them unpersuasive. Because the procurement of-
ficer’s decision to award the solicitation to a contractor
other than Land Shark had a rational basis and was not a
violation of regulation or procedure, we affirm the Court of
Federal Claims’ decision.
AFFIRMED