International Business Sales & Services Corporation v. United States

In the United States Court of Federal Claims

Nos. 26-401 & 26-425 (Consolidated)

(Filed: May 29, 2026)

(Reissued: June 3, 2026) 1

**************************

INTERNATIONAL BUSINESS SALES & SERVICES CORPORATION,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

@ORCHARD, LLC,

Defendant-Intervenor.

**************************

FISH AND LYNKER OCEAN ALLIANCE TEAM PARTNERS LLC,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

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1

This opinion was initially filed under seal to afford the parties an

opportunity to propose appropriate redactions. The parties represented that

they had no redactions. This opinion thus appears in full.

Jon D. Levin, Huntsville, AL, for plaintiff, International Business

Sales & Services Corporation, and for consolidated plaintiff, Fish and Lynker

Ocean Alliance Team Partners LLC.

Olivia L. Lynch, Washington, D.C., for defendant-intervenor,

@Orchard, LLC, with whom were Cherie J. Owen, James G. Peyster, and

Issac D. Schabes, of counsel.

William J. Grimaldi, Assistant Director, United States Department of

Justice, Commercial Litigation Branch, Civil Division, Washington, D.C.,

with whom were Brett A. Shumate, Assistant Attorney General, and Patricia

M. McCarthy, Director, for defendant. Lauren Williams, Deputy Chief, and

Andrew Parker Frank, Attorney, Office of General Counsel, US Department

of Commerce, of counsel.

OPINION

BRUGGINK, Senior Judge.

Pending in these consolidated, post-award bid protests are the

government’s and @Orchard, LLC’s (“@Orchard”) motions to dismiss in

their entirety the claims of plaintiff International Business Sales & Services

Corporation (“IBSS”) and consolidated plaintiff Fish and Lynker Ocean

Alliance Team Partners LLC (“FLOAT”).

BACKGROUND 2

The solicitations at issue are (1) RFP No. 1305M423RNAAA0011

(“ProTech 2.0 Oceans”) and (2) RFP No. 1305M423RNFFK0006 (“ProTech

2.0 Fisheries”), both issued by the United States National Oceanic and

Atmospheric Administration (“NOAA”). IBSS Compl. ¶ 1. Both ProTech

2.0 Oceans and ProTech 2.0 Fisheries were small business set-aside

solicitations providing for multiple-award, indefinite delivery indefinite

quantity (“IDIQ”) contracts with one five-year base period and one five-year

option. See id. at ¶¶ 10, 13. The two solicitations used the same evaluation

criteria, including corporate experience and past performance. Id. at ¶ 15.

NOAA intended ProTech 2.0 Oceans to “obtain services for scientific data

collection and stewardship, geospatial mapping of coastal areas, and

2

Unless otherwise indicated, these facts are drawn from the complaints. They

are not in dispute.

2

community outreach services to position America’s coastal communities for

the future.” Id. at ¶ 11. NOAA intended ProTech 2.0 Fisheries to “acquire

national and international fishery management support, marine observations,

environmental data collection, ecosystem studies, associated data and

information services, and various impact analyses for science-based

conservation and management of fishing communities.” Id. at ¶ 12.

Prior to the issuance of the solicitations, the Small Business

Administration (“SBA”) approved a mentor-protégé agreement between

IBSS (as the large business) and @Orchard (as the small). Id. at ¶ 9. From

there, IBSS and @Orchard then created 1stMission LLC (“1stMission”)—a

separate legal entity—as a mentor-protégé joint venture to pursue Federal

contracts together. Id. To that end, 1stMission submitted proposals for both

ProTech 2.0 Oceans and ProTech 2.0 Fisheries, id. at ¶ 18; however, neither

IBSS nor @Orchard submitted proposals in their individual capacities. IBSS

provided all of the corporate experience and past performance examples for

1stMission’s proposals. Id. at ¶¶ 19–20. FLOAT submitted a proposal for

only the ProTech 2.0 Fisheries solicitation. FLOAT Compl. ¶ 15.

After the proposals but before the contract awards, IBSS and

@Orchard had a falling out and informed the SBA that the mentor-protégé

relationship between IBSS and @Orchard was no longer viable. IBSS

Compl. ¶ 21. This led the SBA to terminate the mentor-protégé relationship

between IBSS and @Orchard. Id. at ¶ 22. Still before the contract awards,

and through correspondence with NOAA, IBSS informed NOAA that the

SBA had dissolved the mentor-protégé relationship between IBSS and

@Orchard and that IBSS would not perform under any potential contract

award to 1stMission. See id. at ¶¶ 22–26. Nevertheless, NOAA awarded the

1stMission joint venture a ProTech 2.0 Fisheries contract on February 26,

2024, and a ProTech 2.0 Oceans contract on April 12, 2024. Id. at ¶ 27. 3

Although the mentor-protégé agreement was severed, the 1stMission joint

venture as an entity still existed at the time of the contract awards and was

not dissolved until mid-2025. Id. at ¶ 30. FLOAT received an award under

the ProTech 2.0 Fisheries solicitation. FLOAT Compl. ¶ 15.

Following the contract awards, IBSS contacted NOAA to reiterate

that “1stMission would not be able to perform the contract in the manner

stated in its proposal” because IBSS would no longer be participating due to

3

The total number of awardees under the ProTech 2.0 Fisheries and ProTech

2.0 Oceans solicitations was twenty-three and eighteen, respectively.

3

the termination of the mentor-protégé relationship between IBSS and

@Orchard. IBSS Compl. ¶ 28. And when NOAA later made task order

awards to 1stMission after the dissolution of 1stMission as an entity, IBSS

again contacted NOAA and sought an explanation as to how a non-entity

could receive task orders. Id. at ¶¶ 30–32. IBSS also reminded NOAA that

IBSS provided the entirety of 1stMission’s experience, past performance,

and technical knowhow. Id. at ¶ 32. Later, NOAA “novated” 1stMission’s

task orders to @Orchard, citing to 13 CFR § 125.9(h) as the basis for this

decision. Id. at ¶¶ 34, 36. According to the government, after IBSS and

FLOAT submitted their pre-filing notices on January 8, 2026, NOAA

“reviewed its novations of the 1stMission/@Orchard contracts” and

“determin[ed] that the novations inaccurately referenced 13 C.F.R. 125.9(h)

rather than FAR Subpart 42.12.” Gov.’s Mot. Dismiss 6, ECF No. 32 (citing

Gov.’s App. at DA14). Thus, NOAA “commenced pre-litigation corrective

action” to ensure the correct regulation was followed. Id.

PROCEDURAL HISTORY

IBSS and FLOAT filed their complaints on March 11 and 17, 2026,

respectively. While IBSS’s complaint protests the awards to 1stMission

under both ProTech 2.0 Oceans and ProTech 2.0 Fisheries, FLOAT’s

complaint only protests 1stMission’s award under ProTech 2.0 Fisheries.

IBSS’s and FLOAT’s complaints, which are otherwise materially the same,

contain two claims under a single count: (1) that “it was arbitrary, capricious,

and an abuse of discretion for [NOAA] to proceed with issuing an award to

1st Mission, having been informed by IBSS that the basis of 1sMission’s

proposal was no longer true or valid”; and (2) that the authority NOAA

invoked to justify the novation (13 CFR § 125.9(h)) is facially inapplicable,

thereby rendering the novation contrary to law and itself further evidence that

“the award to 1stMission was arbitrary, capricious, an abuse of discretion,

and otherwise contrary to law.” IBSS Compl. ¶¶ 50, 52–53; FLOAT Compl.

¶¶ 48, 50–51.

On March 13, 2026, we granted @Orchard’s unopposed motion to

intervene, see ECF No. 11, and on March 19, 2026, we ordered the

consolidation of Case Nos. 26-401 (IBSS) and 26-425 (FLOAT).

On March 30, 2026, the government and @Orchard concurrently

moved to dismiss IBSS’s and FLOAT’s complaints pursuant to Rule 12(b)(1)

and (b)(6) of the Rules of the United States Court of Federal Claims

(“RCFC”). This matter is fully briefed, and we heard oral argument on May

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7, 2026. At the conclusion of oral argument, we briefly explained why the

government’s and @Orchard’s motions to dismiss must be granted, and we

entered an order that same day granting the respective motions to dismiss but

delaying the entry of judgment until we issued this opinion more fully

explaining our reasoning.

STANDARD OF REVIEW

When presented with a Rule 12(b)(1) motion to dismiss for lack of

subject matter jurisdiction, we “must accept as true all undisputed facts

asserted in the plaintiff’s complaint and draw all reasonable inferences in

favor of the plaintiff.” Gateway Dev. Comm’n v. United States, 180 Fed. Cl.

495, 506 (2026) (quoting Trusted Integration, Inc. v. United States, 659 F.3d

1159, 1163 (Fed. Cir. 2011)). The plaintiff, however, “bears the burden of

establishing subject matter jurisdiction and must do so by a preponderance

of the evidence.” Clark v. United States, 179 Fed. Cl. 204, 207 (2025) (citing

Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998)).

Dismissal is required to the extent we determine we do not have subject

matter jurisdiction. RCFC 12(h)(3).

“Dismissal under RCFC 12(b)(6) ‘is appropriate when the facts

asserted by the claimant do not entitle [the claimant] to a legal remedy.’”

Gateway Dev., 180 Fed. Cl. at 506 (quoting Lindsay v. United States, 295

F.3d 1252, 1257 (Fed. Cir. 2002)). To overcome a Rule12(b)(6) motion, the

“complaint must allege facts ‘plausibly suggesting (not merely consistent

with)’ a showing that the plaintiffs are entitled to the relief sought.” Id.

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 (2007)). When

evaluating a Rule 12(b)(6) motion to dismiss, we must “accept as true a

complaint’s well-pleaded factual allegations and draw all reasonable

inferences in favor of the non-moving party.” Id. (first citing Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009), then citing Sommers Oil Co. v. United

States, 241 F.3d 1375, 1378 (Fed. Cir. 2001)). “[H]owever, we are not

required to accept the asserted legal conclusions.” Am. Bankers Ass’n v.

United States, 932 F.3d 1375, 1380 (Fed. Cir. 2019) (citing Iqbal, 556 U.S.

at 678). Applying these basic rules here requires that we dismiss both

complaints.

DISCUSSION

While the government and @Orchard make multiple arguments as to

why IBSS’s and FLOAT’s protests of NOAA’s initial award decision should

5

be dismissed, we focus this opinion on the argument that the complaints

should be dismissed under Rule 12(b)(6) for lack of statutory standing under

28 U.S.C. § 1491(b)(1). 4 Specifically, the government and @Orchard argue

that neither IBSS nor FLOAT can satisfy either prong of the “interested

party” requirement of 28 U.S.C. § 1491(b)(1) as interpreted by Federal

Circuit precedent. As to the novation issue, the government and @Orchard

argue that novations are matters of contract administration and, thus, that we

must dismiss the challenges to the novations for lack of subject matter

jurisdiction under Rule 12(b)(1).

IBSS and FLOAT respond that we cannot address the statutory

standing issue at this stage because standing and the merits are intertwined.

FLOAT also argues that, under the reasoning of National Air Cargo Group,

Inc. v. United States, 126 Fed. Cl. 281 (2016), it satisfies both prongs of the

“interested party” requirement, and IBSS argues that it too satisfies both

prongs because it was the substantive offeror on 1stMission’s bid and seeks

to vindicate three distinct non-trivial competitive injuries. To hold otherwise,

they argue, would amount to the court endorsing a rule that effectively

immunizes NOAA’s alleged procurement violation from judicial review. 5 As

to the novation issue, IBSS and FLOAT do not meaningfully address the

government’s and @Orchard’s jurisdictional argument.

I. The Statutory Standing Inquiry Is Not Intertwined with the Merits

Relying on the Federal Circuit’s decision in CACI, Inc.-Federal v.

United States, 67 F.4th 1145 (Fed. Cir. 2023), IBSS and FLOAT argue that

the statutory standing and merits inquires overlap and that we are thus not

able to dismiss the complaints for lack of statutory standing at this stage. We

disagree.

4

We thus assume without deciding that IBSS and FLOAT have Article III

standing.

5

This argument is irrelevant. The Supreme Court of the United States “has

long rejected that kind of ‘if not us, who?’ argument as a basis for standing.”

Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 396 (2024).

Indeed, it is settled that “[t]he ‘assumption’ that if these plaintiffs lack

‘standing to sue, no one would have standing, is not a reason to find

standing.’” Id. (quoting Schlesinger v. Reservists Comm. to Stop the War,

418 U. S. 208, 227 (1974)).

6

In CACI, the Federal Circuit clarified that whether a plaintiff satisfies

the “interested party” requirement is a matter of statutory standing, not

subject matter jurisdiction. CACI, 67 F.4th at 1151. However, the circuit

court’s conclusion in CACI that this court improperly conducted a de novo

determination of CACI’s statutory standing does not apply here. In that case,

CACI was “challenging the contracting officer’s determination that [its] own

bid had disqualifying deficiencies.” Id. at 1152. In that context, the statutory

standing and merits inquires overlapped because “[e]very merits issue to a

bidder’s qualifications is also a statutory standing issue.” Id. Thus, the court

held that

[i]n such a situation, allowing the Claims Court to determine

statutory standing de novo would be to allow the Claims Court

to determine the merits de novo, when the statute and

regulations clearly provide that CACI’s OCI compliance is to

be determined initially by the contracting officer and reviewed

by the Claims Court based on the agency record and an

arbitrary and capricious standard.

Id. at 1153. Thus, the issue in CACI was this court’s de novo factual

determinations pertaining to statutory standing when—by statute and

regulation—those same factual determinations were required to be made on

the merits by the contracting officer in the first instance and then reviewed

by this court. Id.

The CACI decision itself clarifies that it has no application here. The

Federal Circuit stated that this court “must make the statutory standing

determination, i.e., whether the plaintiff is an interested party[,] . . . when the

plaintiff is arguing that the contracting officer made an error in evaluating

the bid of another contractor.” Id. at 1152 (citing Myers Investigative & Sec.

Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002);

CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1359 (Fed. Cir. 2018)).

Thus, as this court has said, “‘when the plaintiff is arguing that the

[government] made an error in evaluating the bid of another contractor,’ a

judicial determination of statutory standing is still ‘required,’ although it

need not be made before reaching the merits.” Air Borealis Ltd. P’ship v.

United States, 167 Fed. Cl. 370, 381 (2023) (alteration in original) (quoting

CACI, 67 F.4th at 1152). In other words, when the plaintiff is challenging the

government’s award of a contract to another bidder, we must make a statutory

standing determination, and we may do so without reaching the merits—

according to our discretion.

7

Here, IBSS and FLOAT are each challenging NOAA’s decision to

award 1stMission (another bidder) contracts under the ProTech 2.0 Fisheries

and ProTech 2.0 Oceans solicitations and its subsequent decision to novate

those contracts to @Orchard. Thus, under CACI, we are clearly required to

make a statutory standing determination in this case. And, as can be seen in

our discussion below, the question of whether IBSS and FLOAT satisfy the

“interested party” requirement has nothing to do with the merits of their

claims—i.e., whether IBSS and FLOAT are actual or prospective bidders is

entirely unrelated to the questions of whether NOAA properly awarded the

contracts to 1stMission and whether the novations were lawful. Therefore,

we will proceed to making an initial statutory standing determination.

II. Neither IBSS nor Float Satisfy the “Interested Party” Requirement

A. 28 U.S.C. § 1491(b)(1)’s “Interested Party” Standard

“[G]overnment procurement protestors must satisfy the standing

requirements of the Tucker Act.” Island Creek Assocs., LLC v. United States,

172 Fed. Cl. 729, 738 (2024) (citing Wks. Marine, Inc. v. United States, 575

F.3d 1352, 1359 (Fed. Cir. 2009)), appeal docketed, No. 25-1140 (Fed. Cir.

argued May 5, 2026). The Tucker Act, as amended by the Administrative

Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870,

“defines not only . . . what actions may be brought against the government,

but also who has standing to pursue them.” Aero Spray, Inc. v. United States,

156 Fed. Cl. 548, 559 (2021).

In terms of who has standing, the Tucker Act allows only an

“interested party” to bring an “action” in this court “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.” Id. (alterations in original) (quoting 28 U.S.C.

§ 1491(b)(1)). While 28 U.S.C. § 1491(b)(1) does not define “interested

party,” the Federal Circuit has interpreted the term to carry the same meaning

as is in the Competition in Contracting Act of 1984 (“CICA”). AFGE, Local

1482 v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001). CICA defines

“interested party” as “an actual or prospective bidder or offeror whose direct

economic interest would be affected by the award of the contract or by failure

to award the contract.” 31 U.S.C. § 3551(2). Accordingly, to be an

“interested party” under 28 U.S.C. § 1491(b)(1) and thus establish statutory

standing, a protestor must “establish that it (1) is an actual or prospective

8

bidder, and (2) possesses the requisite direct economic interest.” Rex Serv.

Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). Because we

hold that neither IBSS nor FLOAT satisfy the first prong of the “interested

party” inquiry, we do not address the second prong.

B. IBSS Is Not an “Interested Party”

IBSS is not an “interested party” under 28 U.S.C. § 1491(b)(1)

because it is plainly not an actual or prospective bidder. To begin with, it is

undisputed that IBSS did not submit, and indeed could not have submitted, a

proposal in its own capacity under either the ProTech 2.0 Fisheries or

ProTech 2.0 Oceans solicitations because, as a large business, it was

ineligible for both. See Oral Arg. Tr. 13–14, May 7, 2026 (IBSS conceding

this point). The fact that it was a constituent part of the joint venture which

did submit a bid is immaterial. Frankly, our inquiry ends there.

To escape this straightforward analysis, however, IBSS argues that

although 1stMission was the entity that submitted the bids, we should look

past that technicality and consider IBSS the “substantive offeror.” Pls.’ Resp.

19, ECF No. 36. In doing so, IBSS argues that the Federal Circuit’s decision

in Percipient.Ai, Inc. v. United States, 153 F.4th 1226 (Fed. Cir. 2025), is

inapplicable here because that case dealt with subcontractors, not mentor-

protégé JVs. This argument misses the point. The court in Percipient.Ai did

not pronounce any new rule. Rather, the court stressed that there was no

reason to depart from the “settled interpretation” that “interested party” status

is “limited to actual or prospective bidders or offerors whose direct economic

interest would be affected by the award of the contract or by failure to award

the contract.” 6 Id. at 1235. In other words, the court merely reaffirmed the

long-standing rule that “interested party” status is limited to “disappointed

6

Indeed, the court in Percipient.Ai granted en banc review on the following

question: “Who can be ‘an interested party objecting to . . . any alleged

violation of statute or regulation in connection with a procurement or a

proposed procurement’ under 28 U.S.C. § 1491(b)(1)?” Percipient.Ai, 153

F.4th at 1230. Thus, the main issue in Percipient.Ai was whether “interested

party” carried different definitions “depending on how a claimant chooses to

style or bring its claim.” Id. at 1235. The Federal Circuit rejected that notion

and instead made clear that its longstanding definition of “interested party”

applied regardless of how a claimant styles its claim under 28 U.S.C.

§ 1491(b)(1).

9

bidders.” Id. From there, the conclusion that subcontractors are not “actual

or prospective bidders” flowed naturally.

Thus, from the Federal Circuit’s 2001 decision in AFGE to its

decision in Percipient.Ai last year, the “interested party” rule has remained

the same. Under that rule, no party is an “interested party” if they are not an

actual or prospective bidder. Here, it was 1stMission—not IBSS—that bid

on, and received awards under, the ProTech 2.0 Fisheries and ProTech 2.0

Oceans solicitations. We cannot ignore the fact that IBSS is not 1stMission.

Regardless of whether IBSS provided the “substance” of 1stMissions’s

proposals, one thing is clear: IBSS is not an actual or prospective bidder.

Therefore, IBSS does not have statutory standing under 28 U.S.C. §

1491(b)(1) and has thus failed to state a claim upon which relief can be

granted.

C. FLOAT Is Not an “Interested Party”

Nor is FLOAT an “interested party” under 28 U.S.C. § 1491(b)(1). It

is also not an actual or prospective bidder, albeit for a different reason. Unlike

IBSS, FLOAT did submit a bid (and received an award) under the ProTech

2.0 Fisheries solicitation. That is not enough, however. As we explain below,

we concur with Chief Judge Solomson’s reasoning in Aero Spray that, in the

post-award context, a protestor must be an actual bidder “‘with respect to a

contract’ award that is the subject of the objection.” Aero Spray, 156 Fed. Cl.

at 565 (quoting 31 U.S.C. § 3551(1)(C)).

In interpreting the meaning of “interested party” under 28 U.S.C. §

1491(b)(1), the Federal Circuit imported the definition of that phrase from

CICA. As we noted earlier, CICA defines “interested party” as “an actual or

prospective bidder or offeror whose direct economic interest would be

affected by the award of the contract or by failure to award the contract.” 31

U.S.C. § 3551(2)(A). Critically, however, CICA defines “interested party”

only “with respect to a contract or a solicitation or other request for offers

described in paragraph (1).” 31 U.S.C. § 3551(2)(A). Paragraph (1) then

defines “protest” as “a written objection by an interested party to,” among

other things not pertinent here,

(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.

10

(C) An award or proposed award of such a contract.

Id. at § 3551(1) (emphasis added). Based on this statutory framework, we

agree with the court in Aero Spray that whether a party is interested—and

therefore whether a party is an actual or prospective bidder—“depends on

the nature of the ‘objection.’” Aero Spray, 156 Fed. Cl. at 565.

Because we are not dealing with “a solicitation-related protest, the

term ‘prospective’ is not relevant here, as it applies to a timely solicitation

challenge filed before proposals are due.” Id. (citing Wks. Marine, 575 F.3d

at 1361–63). Rather, because FLOAT challenges the award of a ProTech 2.0

Fisheries contract to 1stMission, FLOAT must have been an actual bidder

for that contract award in order to be an “interested party.” Thus, as Chief

Judge Solomson stated in Aero Spray, “[t]he question . . . is not whether

[FLOAT] is (or, more accurately, was) an ‘actual . . . offeror’ generally for

the procurement at issue, but rather whether [FLOAT] was an actual offeror

‘with respect to a contract’ award that is the subject of the objection.” Aero

Spray, 156 Fed. Cl. at 565 (quoting 31 U.S.C. § 3551(1)–(2)). But “in a

multiple award procurement where an offeror receives the very contract it

sought—i.e., the only contract for which it submitted a proposal—that

offeror cannot be considered an ‘actual offeror’ with respect to the other

contract awards it did not seek (and, indeed, could not have sought).” Id. at

566. Thus, like the court in Aero Spray, we conclude that FLOAT, “having

received a contract award for all that it proposed, was not, and is not, an

actual offeror ‘with respect to’” 1stMission’s contract award. Id. at 565. 7

7

This is in line with the general rule that “[o]nce a party becomes an awardee,

they are no longer an ‘interested party’ with standing to bring a bid protest

claim under 28 U.S.C. § 1491(b).” Aero Spray, 156 Fed. Cl. at 566 (quoting

Looks Great Servs., Inc. v. United States, 145 Fed. Cl. 324, 328 (2019)); see

also, e.g., L3 Techs., Inc. Commc’ns Sys-W. v. United States, 161 Fed. Cl.

35, 50–51 (2022) (articulating and applying the general rule). This general

rule properly applies in the multiple award, IDIQ contract context where, as

here, there is no allegation that “the contemplated multiple awards cover

different performance scopes or have materially different features (e.g.,

different geographical regions, services, or funding ceilings).” Id. at 565.

Indeed, applying the general rule to a plaintiff who received the exact award

it sought under a multiple award, IDIQ solicitation—specifically when there

is no allegation that the awarded contract in any way differs from those

available and those given to other awardees—perfectly aligns with the

11

Opposing this analysis, FLOAT argues that we should instead adopt

Judge Lettow’s reasoning in National Air Cargo. In that case, much like this

one, the plaintiff, which had been awarded a contract under a multiple award,

IDIQ solicitation, challenged the award of a contract to another party as well.

Nat’l Air Cargo, 126 Fed. Cl. at 285–88. Relying primarily on Systems

Application & Technologies, Inc. v. United States, 691 F.3d 1374 (Fed. Cir.

2012) and RAMCOR Services Group, Inc. v. United States, 185 F.3d 1286

(Fed. Cir. 1999), Judge Lettow held that the plaintiff was “an ‘actual’ bidder

because, as a matter of fact, it bid on [the] IDIQ solicitation.” Nat’l Air

Cargo, 126 Fed. Cl. at 295.

In addition to our analysis above of 28 U.S.C. § 1491(b)(1) (and thus

CICA’s definition of “interested party”) counseling against such an

approach, there are at least two additional reasons to reject Judge Lettow’s

reasoning in National Air Cargo. First, National Air Cargo’s reliance on

Systems Application and RAMCOR on this point is odd given that the

question of whether the actual bidder requirement was satisfied was not at

issue in either case. Sys. Application, 691 F.3d at 1382 (noting that the “actual

or prospective bidder” requirement was not in dispute and, therefore,

analyzing only the “direct economic interest” requirement); RAMCOR, 185

F.3d at 1289 (noting that the question before the court was “whether an

objection to a [31 U.S.C.] § 3553(c)(2) override can serve as a jurisdictional

basis under § 1491(b)(1)” which, “in turn, require[d] [the] court to determine

whether § 3553(c)(2) is a statute ‘in connection with a procurement,’ as

required by § 1491(b)(1)”). Second, we agree with the court’s conclusion in

Aero Spray that “RAMCOR addresses what a § 1491(b) action may include

but does not define who qualifies as ‘an actual or prospective bidder or

offeror’ or otherwise meets the remaining elements of an ‘interested party.’”

Aero Spray, 156 Fed. Cl. at 573. These are separate questions. By relying on

RAMCOR, National Air Cargo improperly conflated the question of what

actions can be brought under 28 U.S.C. § 1491(b) with the question of who

can bring such actions; thus, we do not adopt National Air Cargo’s

reasoning.

In sum, we agree with the court in Aero Spray that we “must look to

the contract award that is the subject of the protest and ask whether the

plaintiff is an actual, but disappointed, offeror for that award.” 156 Fed. Cl.

at 567. FLOAT, having received the award for which it bid, is of necessity

Federal Circuit’s clear interpretation of “interested party” as being limited to

disappointed bidders. Percipient.Ai, 153 F.4th at 1235.

12

neither an actual nor disappointed offeror for 1stMission’s contract award.

Therefore, FLOAT is not an “interested party” and thus lacks statutory

standing to bring this protest. Accordingly, FLOAT has also failed to state a

claim upon which relief can be granted.

III. We Do Not Have Jurisdiction Over Novation Claims

To the extent IBSS and FLOAT challenge the novations, those claims

must be dismissed for lack of jurisdiction. “This Court has consistently held

that ‘matters of contract administration—including matters of contract

performance—fall beyond the Court’s bid protest jurisdiction.’” Huffman

Bldg. P, LLC v. United States, 152 Fed. Cl. 476, 485 (2021) (quoting Relyant

Glob., LLC v. United States, 146 Fed. Cl. 817, 823 (2020), vacated as moot,

No. 2020-1526, 2021 U.S. App. LEXIS 6704, at *1–*2 (Fed. Cir. Feb. 1,

2021)). As this court has stated, contract novations “are matters routinely

handled as a part of contract administration and clearly do not fall outside the

changes clause or amount to a new procurement.” DynCorp Int’l LLC v.

United States, 152 Fed. Cl. 490, 504 (2021) (citing AT&T Commc’ns, Inc. v.

Wiltel, Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993)). Here, IBSS and FLOAT

directly challenge the novations of 1stMission’s contracts to @Orchard, but

they offer no reason as to why these novations fall outside the changes clause

or amount to a new procurement. Indeed, in their briefing, IBSS and FLOAT

did not even respond to the government’s and @Orchard’s arguments on this

point. Therefore, we do not have jurisdiction over IBSS’s and FLOAT’s

novation claims under 28 U.S.C. § 1491(b). Those claims are thus dismissed

under Rule 12(b)(1) for lack of jurisdiction.

CONCLUSION

For the reasons stated above, the government’s and @Orchard’s

motions to dismiss are granted. The Clerk of Court is directed to enter

judgment in Case Nos. 26-401 and 26-425 accordingly. No costs.

s/Eric G. Bruggink

ERIC G. BRUGGINK

Senior Judge

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