In the United States Court of Federal Claims
No. 16-1355C
(Filed October 21, 2021)
NOT FOR PUBLICATION
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SAGE ACQUISITIONS, LLC, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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ORDER
The Court had previously resolved this post-award bid protest by an oral
ruling in the plaintiff ’s favor. See ECF Nos. 26 & 30. At issue was the
determination of the Small Business Administration’s (SBA) Office of Hearings and
Appeals (OHA) that plaintiff, a joint venture between a large business mentor and a
small business protégé, failed to qualify as a small business under 13 C.F.R.
§ 124.513(d)(1) due to the type of work assigned to the protégé under the joint
venture agreement (JVA). See Admin. R. (AR) 681o. The SBA had, less than a year
earlier, found that this same work under the same JVA satisfied the regulation,
when plaintiff ’s size was challenged in connection with another contract awarded to
it under the same solicitation. See AR 95. Under these circumstances, OHA acted
arbitrarily in determining that issue preclusion did not apply, see AR 681i, as it
“entirely failed to consider an important aspect of the problem,” 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))
---namely, whether the protégé was to perform any tasks under that other contract
that differed from those to be performed under the contract at issue in this protest,
see ECF No. 26 at 4–6.
Since the requirement at issue concerned whether the protégé was to perform
work that entailed “more than administrative or ministerial functions,” 13 C.F.R.
§ 124.513(d)(1) (2014), whether the different contracts involved differing numbers of
properties serviced or employed differing number of employees were not the
relevant considerations. Instead, the focus should have been on whether the type of
work assigned to the protégé was substantive enough to meet the regulation.
Unless the tasks differed under the two contracts, the SBA’s previous determination
concerned the identical issue facing OHA in this case, and relitigation would have
been precluded. ECF No. 26 at 5–6; see Montana v. United States, 440 U.S. 147,
153 (1979); In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994). Nothing in the
record supported a conclusion that the type of work to be performed by the protégé
differed under the two contracts.
Judgment was not entered when the Court issued its oral ruling, as it was
anticipated that a written opinion would follow. See ECF No. 26 at 6. The
unsealing of that ruling made a written opinion unnecessary, see ECF No. 29, and
there does not appear to be any reason why either party would need one. Thus, as
plaintiff ’s motion for judgment on the administrative record was GRANTED and
defendant’s cross-motion for judgment on the administrative record was DENIED,
see ECF No. 30, the Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
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