Siemens Government Technologies, Inc. v. United States

In the United States Court of Federal Claims

No. 24-1313C

July 30, 2026

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SIEMENS GOVERNMENT *

TECHNOLOGIES, INC., *

Plaintiff, *

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v. *

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UNITED STATES, *

Defendant. *

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Robert S. Nichols, Nichols Law LLP, Washington, DC, for plaintiff. With him was

Michael Bhargava, Nichols Law LLP, Washington, DC.

Thomas J. Adair, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, DC, for defendant. With him were

Corinne A. Niosi, Assistant Director, Commercial Litigation Branch, Patricia M.

McCarthy, Director, Commercial Litigation Branch, and Brett A. Shumate, Assistant

Attorney General, United States Department of Justice, Washington, DC.

OPINION

HORN, J.

The current Motion for Reconsideration addresses the December 31, 2025 Opinion

and Order issued by the Judge previously assigned to the above captioned and numbered

case, which denied defendant’s motion to dismiss Counts II and III of the Second

Amended Complaint filed by Siemens Government Technologies, Inc. (Siemens), and

which deferred consideration of Count I of Siemens’ Second Amended Complaint. See

Siemens Gov’t Techs., Inc. v. United States, No. 24-1313, 2025 WL 3774760, at *1 (Fed.

Cl. Dec. 31, 2025) (Siemens III). 1 As discussed more fully below, in his December 31,

1 The December 31, 2025 Opinion and Order, issued by the Judge previously assigned

to the above captioned and numbered case, is denoted Siemens III because, as

discussed more fully below, Siemens has filed multiple other cases in the United States

Court of Federal Claims with similar factual and legal issues as in the above captioned

and numbered case. Two of the other cases were filed by Siemens prior to Siemens filing

Siemens III on August 26, 2024, and one case was filed by Siemens after the current

Siemens III case. See, e.g., Siemens Gov’t Techs., Inc. v. United States, No. 22-1870,

2025 Opinion and Order, the Judge previously assigned to the above captioned and

numbered case ruled that the Federal Acquisition Streamlining Act (FASA) of 1994, 10

U.S.C. § 3406(f) (2024), 2 which can limit the jurisdiction of the United States Court of

Federal Claims over certain bid protests “in connection with the issuance or proposed

issuance of a task or delivery order,” does not bar jurisdiction in this court regarding

Counts II or III of Siemens’ Second Amended Complaint in the above captioned and

numbered case. See Siemens III, No. 24-1313, 2025 WL 3774760, at *4. The Judge

previously assigned to the above captioned and numbered case, however, deferred ruling

on defendant’s motion to dismiss as to Count I of Siemens’ Second Amended Complaint

until an oral argument could be heard on the supplemental motion to dismiss filed by

177 Fed. Cl. 165 (2025) (Siemens I); Siemens Gov’t Techs., Inc. v. United States, No.

22-698, 176 Fed. Cl. 450 (2025) (Siemens II); Siemens Gov’t Techs., Inc. v. United

States, No. 26-282, 181 Fed. Cl. 506 (2026) (Siemens IV).

2 The court notes that there also is a parallel FASA task order bar in Title 41 of the United

States Code, which applies to civilian agencies. See 41 U.S.C. § 4106(f) (2024). The

United States Court of Appeals for the Federal Circuit has stated that “[t]he text of the two

provisions [10 U.S.C. § 3406(f) and 41 U.S.C. § 4106(f)] is similar, except for the different

monetary thresholds over which task order protests may be heard by the Comptroller

General.” Percipient.ai, Inc. v. United States, 104 F.4th 839, 846 n.2 (Fed. Cir. 2024)

(alterations added). The United States Court of Appeals for the Federal Circuit has not,

however, directly addressed which statute—the civilian version or the defense version—

applies when a defense agency issues, or proposes to issue, a task order under a civilian

agency contract program. In the other Siemens cases, discussed below, that Siemens

has filed in the United States Court of Federal Claims with facts and legal issues similar

to the facts and legal issues in the above captioned and numbered case, the United States

Court of Federal Claims has considered the FASA task order bar applicable to defense

agencies at 10 U.S.C. § 3406(f). See, e.g., Siemens I, No. 22-1870, 177 Fed. Cl. at 172;

Siemens II, No. 22-698, 176 Fed. Cl. at 456; Siemens IV, No. 26-282, 181 Fed. Cl. at

514. In other cases in which a defense agency issued, or proposed to issue, a task order

under a civilian agency contract, however, the United States Court of Federal Claims has

considered the case based on the FASA task order bar applicable to civilian agencies at

41 U.S.C. § 4106(f). See, e.g., Radiance Techs. Inc. v. United States, 174 Fed. Cl. 197,

202 (2024); Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 93 (2020), abrogated on

other grounds by 22nd Century Techs., Inc. v. United States, 57 F.4th 993 (Fed. Cir.

2023); OST, Inc. v. United States, 140 Fed. Cl. 662, 666 (2018), appeal dismissed, No.

2019-1469, 2019 WL 13219446 (Fed. Cir. Apr. 3, 2019). In their submissions to the court

in the above captioned and numbered case, both Siemens and defendant cite the defense

statute at 10 U.S.C. § 3406(f) as the potential FASA task order bar relevant to the above

captioned and numbered case. Moreover, as indicated above, the Judge previously

assigned to the above captioned and numbered case analyzed the statute at 10 U.S.C.

§ 3406(f) as the FASA task order bar potentially relevant to the above captioned and

numbered case. See Siemens III, No. 24-1313, 2025 WL 3774760, at *4. Therefore, and

because the text of the statutes at 10 U.S.C. § 3406(f) and 41 U.S.C. § 4106(f) are quite

similar, this court will base the discussion in this Opinion on the statute at 10 U.S.C.

§ 3406(f) when considering defendant’s current Motion for Reconsideration.

2

defendant, which did not occur before the case was transferred to the undersigned. See

id.

After the Judge previously assigned to the above captioned and numbered case

issued his December 31, 2025 Opinion and Order, and the above captioned and

numbered case was transferred to the undersigned, defendant filed a Motion for

Reconsideration pursuant to Rule 54(b) (2025) of the United States Court of Federal

Claims (RCFC), requesting the undersigned to “reconsider [the previous Judge’s] opinion

and order of December 31, 2025 denying the Government’s motion to dismiss Counts II

and III” of Siemens’ Second Amended Complaint. (alteration added). Defendant’s Motion

for Reconsideration does not address Count I of Siemens’ Second Amended Complaint

in Siemens III, No. 24-1313. Defendant’s Motion for Reconsideration has been fully

briefed. 3 The facts of the December 31, 2025 Opinion and Order issued by the Judge

previously assigned to the above captioned and numbered case are incorporated into this

Opinion with some of the facts most relevant to defendant’s current Motion for

Reconsideration also described below.

FINDINGS OF FACT

The context in which the Siemens case currently under review, Siemens III, No.

24-1313, arose is that, pursuant to the National Energy Conservation Policy Act, 42

U.S.C. § 8201 et seq. (2024), the United States Department of Energy (DOE) is

responsible for administering an energy savings performance contract program. See 42

U.S.C. § 8287 (2024). Under the energy savings performance contract program, the DOE

may award indefinite-delivery-indefinite-quantity (IDIQ) contracts “for the purpose of

achieving energy savings and benefits ancillary to that purpose.” See 42 U.S.C.

§ 8287(a)(1). Moreover, other Federal government agencies also may issue task or

delivery orders under the IDIQ contracts that the DOE awards. See 42 U.S.C. § 8287(c).

Payment under the energy savings performance contract program is performance-based,

such that

the contractor shall incur costs of implementing energy savings measures,

including at least the costs (if any) incurred in making energy audits,

acquiring and installing equipment, and training personnel, in exchange for

3 As discussed more fully below, the court notes that “[r]econsideration under RCFC 54(b)

is available ‘as justice requires,’” which is to be determined at the court’s discretion. See

Loveridge v. United States, 150 Fed. Cl. 123, 126 (2020) (alteration added) (quoting L-3

Commc’ns Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 48 (2011)). A motion for

reconsideration is not intended “to give an ‘unhappy litigant an additional chance to sway’

the court.” Stueve Bros. Farms, LLC v. United States, 107 Fed. Cl. 469, 475 (2012)

(quoting Matthews v. United States, 73 Fed. Cl. 524, 525 (2006)), aff’d, 737 F.3d 750

(Fed. Cir. 2013). Defendant, as the moving party, “must support its motion for

reconsideration by a showing of exceptional circumstances justifying relief, based on a

manifest error of law or mistake in fact.” Banks v. United States, 84 Fed. Cl. 288, 292

(2008); see also 1100 W. Ewing Assoc., LLC v. United States, 139 Fed. Cl. 24, 25 (2018).

3

a share of any energy savings directly resulting from implementation of such

measures during the term of the contract.

42 U.S.C. § 8287(a)(1). The statute at 42 U.S.C. § 8287 also gives ordering agencies the

authority to “accept, retain, sell, or transfer, and apply the proceeds of the sale or transfer

of, any energy and water incentive, rebate, grid services revenue, or credit (including a

renewable energy certificate) to fund a contract under” the energy savings performance

contract program. 42 U.S.C. § 8287(a)(2)(H).

Pursuant to the statute at 42 U.S.C. § 8287, the DOE awarded a multiple-award

IDIQ contract, Energy Savings Performance Contract No. DE-EE0008041, to Siemens

and other awardees. (the IDIQ Contract). The scope of work under the IDIQ Contract

involved “providing all personnel, facilities, equipment, materials, supplies, and services

to install energy and water conservation projects and renewable energy projects, and

provid[ing] O&M [operations and maintenance] and measurement and verification (M&V)

as specified in each TO [task order].” (alterations added). The IDIQ Contract also

provided, in relevant part:

The Contractor shall be responsible for determining the source, value, and

availability of any applicable financial, tax, or other incentives for the project

and shall collaborate with the ordering agency to consider all available

incentive options, including but not limited to those described in this Section

C.12. The Contractor shall evaluate and obtain all available incentives and

shall apply such incentives to offset the project cost to the ordering agency,

unless otherwise directed by the ordering agency.

With respect to the issuance of task orders under the IDIQ Contract, subsection

H.3.1 of the IDIQ Contract stated:

The Government has awarded multiple IDIQ contracts for the work specified

in this contract. Therefore, in accordance with FAR 16.505(b), Orders under

multiple-award contracts, fair opportunity must be provided to all IDIQ

contract awardees. The ordering agency CO [Contracting Officer], as

defined in Attachment J-2, may periodically issue TOs pursuant to the fair

opportunity ordering procedures for selecting an ESCO [Energy Savings

Contractor] set forth in the paragraphs below.

(alterations added; emphasis in original). Subsection H.3.2 of the IDIQ Contract listed the

“typical sequence of key events” for the award of a task order under the IDIQ Contract as

follows:

A. Notice of Opportunity (NOO) and Selection of an ESCO. The ordering

agency gives notice and a fair opportunity for award to all IDIQ contract

holders by publishing an NOO, and ultimately selects one (1) ESCO to

develop an ESPC [Energy Savings Performance Contract] TO project

based on information submitted in response to the NOO. Such information

4

may include Contractor qualifications, PAs [Preliminary Assessments 4], and

other specified facts or data.

B. Preliminary Assessment (PA) Development. The ESCO submits a PA to

the ordering agency, which provides the conceptual range of the expected

ECMs [Energy Conservation Measures], costs and savings for the project.

C. Intent to Award/Request for Proposal. If the ordering agency and ESCO

agree to pursue the project, the ordering agency CO will issue a Notice of

Intent to Award (NOITA) followed by a TO RFP [Task Order Request for

Proposal], which identifies the ordering agency’s specific requirements.

D. Proposal Submission. The ESCO submits a proposal, which includes

technical and price components, and a small business subcontracting plan

(if the ESCO is a large business).

E. TO Award. Based on a negotiated proposal, the ordering agency awards

a TO to the selected ESCO.

(alterations and footnote added; emphasis in original). Moreover, subsection H.3.4 of the

IDIQ Contract, titled “Contractor Selection Procedures,” stated, in relevant part:

The ordering agency CO must provide each Contractor a fair opportunity to

be considered for any TO award. In selecting an ESCO, the ordering agency

CO may exercise discretion in developing Contractor selection procedures,

as long as the ordering agency CO complies with the FAR, all other

applicable laws (specifically including, but not limited to 42 U.S.C. § 8287,

et seq.) and regulations (specifically including, but not limited to, 10 CFR

Part 436), ordering agency policies, and the framework of the selection

methods established below. The ordering agency CO shall indicate, in the

NOO to all IDIQ holders, the selection method and steps for selection that

the ordering agency intends to use for the entire ordering process. The

ordering agency CO reserves the right to adjust the selection process.

Additionally, regarding reimbursement of contractor costs, subsection H.5.1(D) of the

IDIQ Contract stated: “The ordering agency will not be responsible for any costs incurred,

such as proposal preparation costs or costs incurred in preparing the IGA [Investment

Grade Audit], unless a TO is awarded or such costs are otherwise authorized for payment

by the ordering agency CO.” (alteration added).

On June 28, 2019, the Defense Logistics Agency (DLA) issued a Notice of

Opportunity under the IDIQ Contract for an energy savings project at the Goodfellow Air

4 According to subsection H.4.1 of the IDIQ Contract, a Preliminary Assessment “sets out

the merits, technical feasibility, range of projected energy savings, economics, and

conceptual price range of the project.”

5

Force Base in San Angelo, Texas. According to Siemens’ Second Amended Complaint, 5

the Notice of Opportunity, which was sent to “the 21 existing IDIQ Contract holders,”

stated that the “DLA intended to issue a task order to a single contractor,” and also stated

that “the ‘selected [contractor] will be required to develop a formal Preliminary

Assessment (PA) and Investment Grade Audit (IGA), as applicable, in accordance with’

the IDIQ Contract.” (alteration in Siemens’ Second Amended Complaint). On July 31,

2019, Siemens submitted a proposal in response to the Notice of Opportunity.

On December 19, 2019, the DLA selected Siemens to prepare a Preliminary

Assessment for an energy savings project at the Goodfellow Air Force Base. According

to Siemens’ Second Amended Complaint, “[p]erforming a preliminary assessment

requires contractors to (1) undertake extensive efforts to evaluate the facilities designated

by the agency using agency data, (2) propose a list of recommended and potential energy

conservation measures for those facilities, and (3) determine the economic and technical

feasibility of each proposed conservation measure.” (alteration added). On July 24, 2020,

Siemens submitted its Preliminary Assessment to the DLA.

On October 1, 2020, the DLA issued a Notice of Intent to Award a Task Order to

Siemens and “directed Siemens to design a project focused on the construction of a

power plant” for the Goodfellow Air Force Base and to conduct an Investment Grade

Audit. According to Siemens’ Second Amended Complaint, an Investment Grade Audit

“is a labor-intensive review of the facilities to determine whether the proposed energy

conservation measures are viable, meaning that they will pay for themselves over time in

energy savings.” Siemens conducted an Investment Grade Audit for the Goodfellow Air

Force Base project, which Siemens submitted to the DLA on August 11, 2021. As alleged

in Siemens’ Second Amended Complaint, Siemens’ Investment Grade Audit “was

premised on three components relevant to” the above captioned and numbered case:

37. First, Siemens estimated the value of electricity generated by a new

power station according to projections of the Texas electrical grid’s

locational marginal pricing index rate, which fluctuates according to the

season and time of day in predictable patterns. For example, consumers

consistently demand more electricity in the mornings and evenings than

during normal working hours. This “index pricing” contrasted with “block”

pricing, whereby the customer negotiates a fixed energy cost at variable

intervals. Because pricing blocks would have to be negotiated by

Goodfellow, and because the [Goodfellow Air Force] base had not blocked

prices in the past, Siemens’ analysis reflected a 100% index/0% block rate.

5 The Second Amended Complaint was the subject of the December 31, 2025 Opinion

and Order issued by the Judge previously assigned to the above captioned and numbered

case, which denied dismissal of Counts II and III, and deferred consideration of Count I.

See Siemens III, No. 24-1313, 2025 WL 3774760, at *4. The court discusses the

procedural history and timing of the filings in Siemens III, No. 24-1313, further below.

6

38. Second, Siemens’ audit included a $1 million grant from the Federal

Energy Management Program, which offset the cost of initial construction

and allowed the project to reduce the time it would take to repay the total

cost of construction.

39. Third, the audit apportioned the share of operations, maintenance,

repair, and replacement tasks according to the share negotiated with the

Government during audit development.

(alteration added).

According to Siemens’ Second Amended Complaint, on October 20, 2021, after

Siemens submitted its Investment Grade Audit to the DLA, “the Government met with

Siemens to discuss its concern with Siemens’ pricing rate for the power plant” and

“informed Siemens that it had begun to negotiate pricing blocks at set rates for 20% to

30% of electricity production.” Siemens “notified the Government of the significant cost

Siemens would incur to conduct another full audit pursuant to new parameters, including

the revised block and index rates,” but, according to Siemens, the DLA nonetheless

requested Siemens to design three “Courses of Action” for a viable project at the

Goodfellow Air Force Base using the new pricing block rates that the DLA had negotiated.

According to Siemens, although Siemens “repeatedly explained that higher percentages

of block pricing endangered the viability of the project,” the DLA “refused to alter its

instructions and refused to meet with Siemens to discuss the issue.”

Thereafter, Siemens designed the three requested “Courses of Action,”

determining that only one “Course of Action” would be a viable project, and submitted its

findings to the DLA. Over the next several months, the DLA continued to request

additional “Courses of Action” with various new parameters. Siemens responded to each

request by raising concerns regarding project viability and Siemens’ increasing

“development costs,”6 but Siemens ultimately designed and submitted each requested

“Course of Action” to the DLA. In all, between October 22, 2021, and February 4, 2022,

Siemens submitted seven “Courses of Action” for the DLA’s consideration. According to

Siemens’ Second Amended Complaint, on February 4, 2022, the same day that Siemens

submitted the latest-requested “Courses of Action,” the DLA “issued a stop-work order

pursuant to FAR 52.242-15.” On May 3, 2022, the DLA canceled the Goodfellow Air Force

Base task order procurement. According to Siemens’ Second Amended Complaint, the

“DOE informed Siemens that DLA had cancelled the task order procurement at DOE’s

recommendation.”

On May 2, 2023, Siemens submitted a certified claim to the DLA “seeking

reimbursement of $2,835,412 in development costs that Siemens needlessly incurred as

a result of the Government’s actions.” The DLA contracting officer issued a contracting

6 The court notes that Siemens does not define its understanding of the term

“development costs” in its briefings submitted to the court in the above captioned and

numbered case.

7

officer’s final decision denying Siemens’ certified claim on August 25, 2023. According to

Siemens, “[i]n an abundance of caution, Siemens also submitted a largely duplicative

certified claim to DOE on July 12, 2024.” (alteration added). 7 The DOE contracting officer

also issued a contracting officer’s final decision denying Siemens’ certified claim on

September 9, 2024.

On August 26, 2024, Siemens filed a three-count Complaint in the United States

Court of Federal Claims, pursuant to the Tucker Act, 28 U.S.C. § 1491(a) (2024), the

Contract Disputes Act (CDA), 41 U.S.C. § 7104(b)(1) (2024), and this court’s bid protest

jurisdiction under 28 U.S.C. § 1491(b)(1), seeking to recover the “development costs”

Siemens allegedly incurred while working on the proposed project for the Goodfellow Air

Force Base. On September 8, 2025, Siemens filed a “Notice of Amended Complaints,” in

which Siemens stated its “intention to serially file two Amended Complaints” in order to

“add its appeal of the DOE contracting officer’s final decision, dated September 9, 2024,

to Count I of its Complaint.” In the “Notice of Amended Complaints,” Siemens explained:

These Amended Complaints should have no effect on the Government’s

pending motion to dismiss or on the ultimate legal issues in this case. These

amendments, moreover, apply only to Count I of the Complaint, which was

brought under the CDA. Counts II and III of the Complaint were brought

under 28 U.S.C. § 1491(b)(1) and are not substantively changed in these

Amended Complaints.

(internal reference omitted). Accordingly, on September 8, 2025, Siemens filed both a

First Amended Complaint and a Second Amended Complaint in the United States Court

of Federal Claims. 8

In its Second Amended Complaint, Siemens brings three counts seeking

reimbursement of the “development costs” it allegedly incurred while trying to qualify for

an award of the proposed Goodfellow Air Force Base project. In Count I of Siemens’

7 In the “Notice of Amended Complaints,” which, as discussed below, Siemens filed with

the court on September 8, 2025, Siemens explained that it submitted the “largely

duplicative certified claim” to the DOE contracting officer “to avoid any dispute in which

the Government argued that this Court lacked Contract Disputes Act (‘CDA’) jurisdiction

because Siemens should have first submitted a claim to DOE,” which was the agency

that issued the IDIQ Contract.

8 Siemens’ Second Amended Complaint, which was the subject of the December 31,

2025 Opinion and Order issued by the Judge previously assigned to the above captioned

and numbered case, Siemens III, No. 24-1313, challenges both the DLA contracting

officer’s final decision, dated August 25, 2023, and the DOE contracting officer’s final

decision, dated September 9, 2024. The reasoning in this Opinion addressing the FASA

task order bar and the jurisdiction of the United States Court of Federal Claims to hear

Siemens’ bid protest claims in Count II and Count III of Siemens’ Second Amended

Complaint applies equally to Siemens’ challenges to the DLA and the DOE decisions.

8

Second Amended Complaint, Siemens alleges, pursuant to the Contract Disputes Act, 41

U.S.C. § 7104(b)(1), that, based on various actions taken by the DLA, the government

breached the IDIQ Contract. 9 Specifically, Siemens alleges that “the Government was

obligated under Section H.3.4 [of the IDIQ Contract] to ‘provide each Contractor a fair

opportunity to be considered’ for any task order award” and “[t]his obligation was

breached because the Government did not provide Siemens with a fair opportunity to

compete for the [Goodfellow Air Force Base] task order.” (alterations added). Siemens

also alleges that defendant breached “an implied covenant of good faith and fair dealing”

under the IDIQ Contract by “direct[ing] Siemens to prepare COAs [Courses of Action]

under false pretenses,” by “impos[ing] additional development costs in contravention of

both the notice of opportunity and the Agency’s own promises,” and by “abus[ing] its

discretion under the Contract by refusing to pay Siemens’ development costs that were

wasted by the Government’s own actions.” (alterations added). Siemens further alleges

that defendant breached the IDIQ Contract by “fail[ing] to follow the selection method and

steps it stated in its notice of opportunity.” (alteration added). Moreover, Siemens alleges

that defendant breached the IDIQ Contract by “ordering Siemens to conduct several

rounds of COAs and foregoing inventive [sic] payments . . . .” (alteration and omission

added). Additionally, Siemens alleges that defendant breached subsection H.5.1(D) of

the IDIQ Contract, which, according to Siemens, “authorized the Government to pay

development costs as a matter of agency discretion even if a task order was not awarded,”

by refusing to award Siemens the “development costs” it allegedly incurred while working

on the proposed project for the Goodfellow Air Force Base.

In Count II of Siemens’ Second Amended Complaint, Siemens alleges, pursuant

to this court’s bid protest jurisdiction under 28 U.S.C. § 1491(b)(1), that the government’s

failure to act in good faith violated the government’s implied-in-fact contract duty to treat

Siemens honestly and fairly. Siemens argues that “each of the Government’s failures

itemized above constituted independent instances of conduct that was ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law’ that breached

the Government’s implied-in-fact contract to treat offerors fairly.” Siemens continues,

“[n]ot only did these actions cost $2,835,412, but the Government’s decision not to

compensate Siemens in that amount consisted of a further abuse of discretion that

violated this implied-in-fact contract.” (alteration added).

In Count III of Siemens’ Second Amended Complaint, Siemens alleges, also

pursuant to this court’s bid protest jurisdiction under 28 U.S.C. § 1491(b)(1), that

defendant “violated statute and regulations in conducting this procurement.” Specifically,

Siemens argues that defendant violated FAR 16.505 by failing to provide Siemens with a

fair opportunity to compete for the proposed Goodfellow Air Force Base project. Siemens

also argues that defendant violated “the procedures established for energy savings

9 As indicated above, the Judge previously assigned to the above captioned and

numbered case deferred ruling on defendant’s motion to dismiss as to Count I of Siemens’

Second Amended Complaint. See Siemens III, No. 24-1313, 2025 WL 3774760, at *1.

Therefore, defendant’s current Motion for Reconsideration does not seek a ruling by this

court with respect to Count I of Siemens’ Second Amended Complaint at this time.

9

performance contracts” under the statute at 42 U.S.C. § 8287 and the regulations at 10

C.F.R. Part 436 because “[n]one of these procedures permitted the Government to

conduct a multi-step procurement that included several Courses of Action once an audit

was complete, nor did it permit the Government to require the submission of non-viable

plans.” (alteration added). Siemens further argues that defendant violated the statute at

42 U.S.C. § 8287(a)(2)(H) by rejecting the inclusion of the incentive payments that

Siemens proposed in the “Courses of Action.”

In response to Siemens’ original Complaint, defendant filed a motion to dismiss for

lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) (2024) and for failure to state

a claim upon which relief can be granted pursuant to RCFC 12(b)(6), at which time the

above captioned and numbered case was still assigned to the previously assigned Judge.

In its motion to dismiss Siemens’ original Complaint, defendant argued:

Throughout the complaint Siemens characterizes this suit as a bid protest.

If this suit is a bid protest, it is barred by the Federal Acquisition Streamlining

Act’s (FASA’s) task order bar, 10 U.S.C. § 3406(f). To the extent Siemens

is bringing a breach of contract suit—and Siemens does assert at least one

claim under the Contract Disputes Act—Siemens’ claims fail because (1)

such CDA claims are time-barred under 41 U.S.C. § 7104(b)(3) because

the case was filed more than a year after the contracting officer’s final

decision;[10] (2) there can be no implied-in-fact contract breach as set forth

in count two when there is an actual contract; [and] (3) the clear and

unambiguous language of the EPSC [sic] specifically states that Siemens

cannot recover preparation and development costs, including for the PA and

IGA, unless a task order issues.

(alterations and footnote added).

Moreover, after Siemens filed its Second Amended Complaint, defendant also filed

a “Supplemental Motion to Dismiss Plaintiff’s Contract Disputes Act Claim Against the

Department of Energy,” in which defendant “reasserted and incorporated by reference”

defendant’s original motion to dismiss, and in which defendant also raised new arguments

10 As indicated above, in its motion to dismiss Siemens’ original Complaint, defendant

initially argued that Siemens’ CDA claim in Count I of Siemens’ original Complaint was

time-barred because the DLA contracting officer issued a final decision denying Siemens’

CDA claim on August 25, 2023, “[y]et Siemens filed the present suit on August 26, 2024,”

more than a year after the DLA contracting officer’s final decision. (alteration added).

Defendant continued, “Siemens does not get an additional day to file” because “August

25, 2024 was a Wednesday, and it was not a federal holiday.” In its response to

defendant’s motion to dismiss, Siemens correctly pointed out that August 25, 2024, “was

actually a Sunday, so Siemens timely filed its complaint on Monday, August 26, 2024.”

Accordingly, in its reply brief, defendant stated that it “withdraws its argument that

Siemens’ complaint was not timely filed.”

10

addressing Count I of Siemens’ Second Amended Complaint. In its supplemental motion

to dismiss, defendant explained:

As Siemens stated in its Notice of Amended Complaints—which was filed

immediately before its First and Second Amended Complaints—its Second

Amended Complaint does not obviate the need for a ruling on the

Government’s pending motion to dismiss the original Complaint because

that latest complaint is nearly identical to the original Complaint. Given the

intention and understanding that the amended complaints do not void the

pending motion to dismiss, this motion is styled as a supplemental motion.

Yet out of an abundance of caution, pursuant to RCFC 5.4(b)(3), the

pending motion to dismiss is attached as Exhibit A to this motion. The

arguments made in that motion and the associated briefing on that motion,

are relevant to the Court’s analysis as to whether to dismiss Siemens’s

claims in its Second Amended Complaint just as they were to analysis of

the claims in the original Complaint.

(internal references omitted). Thus, the text of defendant’s supplemental motion to

dismiss addressed only Count I of Siemens’ Second Amended Complaint. Defendant

further explained in its supplemental motion to dismiss:

The claims asserted in Counts II and III of Siemens’s complaints are bid

protest claims, which are not the subject of this supplemental motion. Those

bid protest claims should be dismissed for the reasons set forth in

defendant’s motion to dismiss and the associated briefing, which argue inter

alia that the bid protest claims are barred by the FASA task order bar

because Siemens is challenging the non-issuance of a proposed task order

and because Siemens cannot avoid the task order bar by claiming that it

only seeks bid prep[aration] and proposal costs, which is merely one

remedy for a successful bid protest.

(alteration added).

As indicated above, after defendant’s original motion to dismiss was fully briefed,

and after defendant filed its supplemental motion to dismiss, the Judge previously

assigned to the above captioned and numbered case issued his December 31, 2025

Opinion and Order, which is now the subject of defendant’s current Motion for

Reconsideration. See Siemens III, No. 24-1313, 2025 WL 3774760. When addressing

the unusual procedural history and timing of the filings in the above captioned and

numbered case, the Judge previously assigned to the case stated in the December 31,

2025 Opinion and Order:

The Government initially moved to dismiss all three counts under Rules

12(b)(1) and 12(b)(6). ECF 11. After briefing and argument was complete,

Siemens filed the [Second] [A]mended [C]omplaint with the Government’s

consent. ECF Nos. 29, 31. The [Second] [A]mended [C]omplaint adds

11

allegations relating to the CDA claim in Count I but does not change

anything regarding the factual allegations or claims in Counts II and III. See

ECF No. 29; compare ECF No. 1 with ECF No. 31. In response, the

Government has filed a supplemental motion to dismiss Count I that raises

new arguments. ECF Nos. 34, 37, 41. Because this briefing did not

complete until earlier this month [December 2025], the court defers ruling

on the motion to dismiss Count I until hearing argument on the supplemental

motion to dismiss. The court therefore considers the motion to dismiss

Counts II and III.

Siemens III, No. 24-1313, 2025 WL 3774760, at *4 (alterations added). In the December

31, 2025 Opinion and Order, the Judge previously assigned to the above captioned and

numbered case denied defendant’s motion to dismiss as to Counts II and III of Siemens’

Second Amended Complaint, finding that the FASA task order bar at 10 U.S.C. § 3406(f)

does not bar Counts II and III of Siemens’ Second Amended Complaint. See id. The

Judge previously assigned to the above captioned and numbered case explained the

FASA task order bar as follows:

The Federal Acquisition Streamlining Act (“FASA”) limits the court’s

jurisdiction over bid protests related to task orders. 10 U.S.C. § 3406(f).

FASA provides that 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 $25,000,000.” 10 U.S.C. § 3406(f)(1)

(2024) (emphasis added).[ ] FASA thus bars protests that “challenge[] the

issuance of [a] task order directly” or that challenge “government action

(e.g., waiver of an organizational conflict of interest) whose wrongfulness

would cause [a] task order’s issuance to be improper.” Percipient.ai, Inc. v.

United States, 104 F.4th 839, 847 (Fed. Cir.), reh’g en banc granted, opinion

vacated sub nom. Percipient.ai, Inc. v. United States, 121 F.4th 1311 (Fed.

Cir. 2024), and on reh’g en banc sub nom. Percipient.AI, Inc. v. United

States, 153 F.4th 1226 (Fed. Cir. 2025), cert. filed, ___ U.S. ___ (U.S. Oct.

08, 2025) (No. 25-428).[11] The phrase “in connection with the issuance of a

11 As discussed more fully below, the Percipient.ai case originated as a bid protest in the

United States Court of Federal Claims. See Percipient.ai, Inc. v. United States, 165 Fed.

Cl. 331, 336 (2023). In Percipient.ai, although the United States Court of Federal Claims

Judge initially held that the court had subject matter jurisdiction over the bid protest, see

id. at 337, on reconsideration, the United States Court of Federal Claims Judge

determined that the court lacked subject matter jurisdiction over the bid protest pursuant

to the FASA task order bar at 10 U.S.C. § 3406(f)(1). See Percipient.ai, Inc. v. United

States, No. 23-28, 2023 WL 3563093, at *1 (Fed. Cl. May 17, 2023). On appeal, the

United States Court of Appeals for the Federal Circuit panel opinion initially reversed the

United States Court of Federal Claims reconsideration opinion’s dismissal of the bid

protest, holding that the FASA task order bar did not apply to the bid protest and also

12

task order” can be understood by looking to the remedy sought. See SRA

Int’l, Inc. v. United States, 766 F.3d 1409, 1414 (Fed. Cir. 2014) (looking to

the relief sought to determine FASA’s applicability). Though not dispositive,

the remedy informs whether the FASA bar applies. See id.

Siemens III, No. 24-1313, 2025 WL 3774760, at *4 (alterations and emphasis in the

December 31, 2025 Opinion and Order; first footnote omitted; second footnote added). In

the omitted footnote in the December 31, 2025 Opinion and Order, the Judge previously

assigned to the above captioned and numbered case noted that “Congress has since

amended FASA to increase the dollar threshold, but that change has no impact on this

case.” Id. at *4 n.2.

In his December 31, 2025 Opinion and Order, the Judge previously assigned to

the above captioned and numbered case, Siemens III, No. 24-1313, also indicated that

this case is one of multiple cases that Siemens has brought in the United States Court of

Federal Claims related to procurements under the energy savings performance contract

program. See id. at *5 (citing Siemens I, No. 22-1870, 177 Fed. Cl. 165; and Siemens II,

No. 22-698, 176 Fed. Cl. 450). 12 When discussing the other cases, Siemens I, No. 22-

holding that the protestor had interested-party standing under the Tucker Act, 28 U.S.C.

§ 1491(b)(1). See Percipient.ai, Inc. v. United States, 104 F.4th at 847. The United States

Court of Appeals for the Federal Circuit subsequently granted a rehearing en banc,

“limited to standing under 28 U.S.C. § 1491(b)(1),” and vacated the earlier Federal Circuit

panel opinion. See Percipient.ai, Inc. v. United States, 121 F.4th at 1312. In the rehearing

en banc opinion, the United States Court of Appeals for the Federal Circuit affirmed the

United States Court of Federal Claims reconsideration opinion’s dismissal of the bid

protest for lack of standing, without revisiting the Federal Circuit panel opinion’s position

on jurisdiction under the FASA task order bar. See Percipient.AI, Inc. v. United States,

153 F.4th at 1243. Thereafter, the United States Supreme Court denied certiorari in the

Percipient.ai case. See Percipient.ai, Inc. v. United States, 146 S. Ct. 1517, 223 L. Ed.

2d 509 (2026).

12 Siemens I, No. 22-1870, was assigned to Judge Bruggink and, as of the date of

issuance of this Opinion, the parties in that case are currently engaged in discovery. See

Discovery Scheduling Order at 1, Siemens I, No. 22-1870 (Fed. Cl. May 4, 2026), Dkt.

No. 41. Siemens II, No. 22-698, was assigned to Judge Smith and, as of the date of

issuance of this Opinion, the parties in that case also are currently engaged in discovery.

See Order at 1, Siemens II, No. 22-698 (Fed. Cl. Apr. 10, 2026), Dkt. No. 42. On February

19, 2026, after the December 31, 2025 Opinion and Order was issued by the previously

assigned Judge in the case currently before this court, Siemens III, No. 24-1313, Siemens

filed a fourth case in the United States Court of Federal Claims related to the energy

savings performance contract program, which was assigned to Judge Hertling. See

Complaint, Siemens IV, No. 26-282 (Fed. Cl. Feb. 19, 2026), Dkt. No. 1. As discussed

more fully below, in Siemens IV, No. 26-282, Judge Hertling recently issued an Opinion,

which denied the United States’ RCFC 12(b)(1) motion to dismiss based on the FASA

task order bar, but granted the United States’ RCFC 12(b)(6) motion to dismiss Siemens’

13

1870, and Siemens II, No. 22-698, that Siemens had brought in the United States Court

of Federal Claims with facts and legal issues similar to the facts and legal issues in the

case currently under review, Siemens III, No. 24-1313, the Judge previously assigned to

the above captioned and numbered case stated:

In Siemens I, [No. 22-1870,] this court found that the FASA bar did not bar

Siemens’s claims that are materially similar to those in this case. Siemens

I, 177 Fed. Cl. at 172. In Siemens I, [No. 22-1870,] this court explained that

Mere connection to a task order, however, is not enough for

FASA to apply. Rather, the protest must relate to the

“issuance or proposed issuance of a task order” before FASA

will bar the suit. Therefore, while FASA bars challenges to

“government action[s] in the direct causal chain sustaining the

issuance of a task order,” not “all actions taken under or after

issuance of a proper task order” are “directly and casually

connected” to a task order’s issuance.

Id. at 172 (quoting Percipient.ai, Inc. [v. United States], 104 F.4th at 849).

To decipher whether the alleged actions were “‘directly and casually

connected’ to a task order’s issuance,” the court looked to the requested

remedy. See [Siemens I, No. 22-1870, 177 Fed. Cl.] at 172-73. In Siemens

I, [No. 22-1870,] like here, the plaintiff sought reimbursement for preparation

and audit costs—not the setting aside of a task order. Id. at 172. To grant

this “purely monetary” remedy would thereby leave any task order

unaffected. Id. at 172-73; see also SRA Int’l, Inc. [v. United States], 766

F.3d at 1414 (evaluating the relief sought to determine FASA’s applicability).

The court then found that where the requested relief does not “alter” or

“displace” the issuance of a task order, the protest is not considered “in

connection with the issuance or proposed issuance of a task or delivery

order.” See Siemens I, [No. 22-1870,] 177 Fed. Cl. at 172-73; see also

Percipient.ai, Inc. [v. United States], 104 F.4th at 851 (finding FASA

inapplicable where the “requested relief would not alter” the underlying task

order). Therefore, the FASA bar did not apply. The result today is the same.

Another recent Siemens case involved similar legal claims. Siemens Gov’t

Techs., Inc. v. United States, [No. 22-698,] 176 Fed. Cl. 450 (2025)

(Siemens II). There, the court again held that the FASA bar did not apply to

Siemens’s claims. Id. at 453. In coming to this conclusion, the court applied

a two-part test: “[f]irst, a proposed or issued task order must exist to be

protested”; and, “[s]econd, the protest must be predicated upon the

proposed or issued task order.” Id. at 457. In Siemens II, [No. 22-698,] the

Government’s arguments failed under both prongs.

Complaint in that case, Siemens IV, No. 26-282, for failure to state a claim upon which

relief can be granted. See Siemens IV, No. 26-282, 181 Fed. Cl. at 509.

14

The court explained that “[a]n agency must have ‘issued or proposed [the]

issuance of a task . . . order’ for the jurisdictional bar to apply.” Id. at 457.

Consequently, “if no task order has either been awarded or proffered by an

agency, then the FASA bar is inapplicable.” Id. at 457. In Siemens II, [No.

22-698,] the Government allegedly sought proposals under a solicitation

“that it had previously awarded . . . to another corporation for the same

services.” Id. The court concluded that “no agency need equals no offer that

can be accepted; or put differently, no proposed task order existed.” Id. at

459; see id. at 457 (“Without a ‘realistic’ need, the Agency’s solicitation was

illegitimate—meaning it cannot propose . . . a need that is already fulfilled—

and, thus, the U.S. Navy could neither have awarded a contract to Siemens

nor could Siemens have accepted that award.”) (citations omitted). Without

any viable task order, this court found that “[i]n this unique context, FASA’s

bar is inapplicable because the task order was void from the start.” Id. Given

the factual distinctions between Siemens II[, No. 22-698,] and this case, it

is meaningfully distinguishable.

But the legal analysis is informative. In Siemens II, [No. 22-698,] the court

also considered the remedy sought to determine FASA’s applicability. Id. at

457, 459 (citing Percipient.ai, Inc. [v. United States], 104 F.4th at 849-51).

In Siemens II, [No. 22-698,] like here, Siemens sought reimbursement for

bid preparation costs following the Government’s alleged conduct during

the procurement process. [Siemens II, No. 22-698, 176 Fed. Cl.] at 455.

Relying on Percipient.ai, Inc. [v. United States], 104 F.4th at 849-51, the

court explained that though not dispositive, the “‘in connection with’ element

[is linked] to the form of relief requested by a plaintiff.” Siemens II, [No. 22-

698,] 176 Fed. Cl. at 459 (citing SRA Int’l, Inc. [v. United States], 766 F.3d

at 1414). The FASA bar was inapplicable where the claim and relief sought

did “not assert the wrongfulness of, or seek to set aside, any task order.”

[Siemens II, No. 22-698, 176 Fed. Cl.] at 457 (quoting Percipient.ai, Inc. [v.

United States], 104 F.4th at 847). The court then concluded that “Siemens

has never sought to set aside or generally interfere with any pending or

issued task order; it only wishes to be made whole after being led astray by

the U.S. Navy’s false procurement needs—a claim FASA does not bar.”

[Siemens II, No. 22-698, 176 Fed. Cl.] at 457.

Siemens III, No. 24-1313, 2025 WL 3774760, at *5-6 (third, eleventh, twelfth, fourteenth,

fifteenth, seventeenth, and twenty-fourth alterations in original; omissions in original; other

alterations added). Accordingly, in the December 31, 2025 Opinion and Order, the Judge

previously assigned to the above captioned and numbered case, Siemens III, No. 24-

1313, which is now before this court for reconsideration, held that the FASA task order

bar did not apply to Count II or Count III of Siemens’ Second Amended Complaint. See

id. at *6. The Judge previously assigned to the above captioned and numbered case

explained:

15

Here, Siemens does not seek a task order or to set aside a task order.

Siemens seeks only the repayment of the allegedly unnecessary expenses

that it incurred solely due to the Government’s arbitrary conduct during the

procurement process. The Government argues that under the IDIQ

contract, any challenge to the “subject conduct” is barred under FASA. Not

so. Though the procedures outlined in the IDIQ contract “‘will be used’ in

deciding whether to issue a task order,” the court need not look to actual

issuance to find a claim sufficiently stated for unfair process. More pointedly,

the court could grant Siemens’s claims for reimbursement without

“affecting” or “altering” the decision to not issue a task order. See[,] e.g.,

Siemens II, [No. 22-698,] 177 Fed. Cl. at 172-73; see also Percipient.ai, Inc.

[v. United States], 104 F.4th at 851. Because Siemens’s claims are not

“directly and casually [sic] connected” to the issuance of a task order and

the requested relief would leave the task order unaffected, the FASA bar

does not apply.

Consequently, the Government’s motion [to dismiss] for lack of subject

matter jurisdiction for Counts II and III is denied.

Siemens III, No. 24-1313, 2025 WL 3774760, at *6 (alterations added; internal references

omitted).

The Judge previously assigned to the above captioned and numbered case,

Siemens III, No. 24-1313, also held, in the December 31, 2025 Opinion and Order, that

Siemens had plausibly stated a claim, in Count II of Siemens’ Second Amended

Complaint, for breach of an implied-in-fact contract because defendant “cannot assert

that the IDIQ Contract does not apply to DLA’s conduct but bars the implied-in-fact

contract that attaches to procurements to treat offerors fairly.” See id. Moreover, as

indicated above, the Judge previously assigned to the above captioned and numbered

case deferred ruling on defendant’s motion to dismiss as to Count I of Siemens’ Second

Amended Complaint “until hearing argument on the supplemental motion to dismiss” filed

by defendant. See id. at *4.

After the reassignment and transfer of the above captioned and numbered case to

the undersigned from the previously assigned Judge, defendant filed its Motion for

Reconsideration in Siemens III, No. 24-1313, pursuant to RCFC 54(b). In its Motion for

Reconsideration, defendant requests this court to “reconsider [the previous Judge’s]

opinion and order of December 31, 2025 denying the Government’s motion to dismiss

Counts II and III” of Siemens’ Second Amended Complaint in Siemens III. (alteration

added). As discussed more fully below, defendant argues that “justice requires”

reconsideration of the previous Judge’s December 31, 2025 Opinion and Order because

“[t]he order contradicts itself and adopts the wrong test in holding that Siemens’s bid

protest claims are not within the scope of the task order bar set forth in the Federal

16

Acquisition Steamlining [sic] Act (FASA).” (alterations added). 13 Thereafter, Siemens filed

a response to defendant’s Motion for Reconsideration arguing that the court “should deny

the Government’s motion for reconsideration, which offers no reason to revisit the Court’s

prior decision holding that the Federal Acquisition Streamlining Act (‘FASA’) task order

protest bar does not apply here.” Defendant then filed a reply in support of its Motion for

Reconsideration. Defendant’s current Motion for Reconsideration has been fully briefed.

DISCUSSION

As indicated above, defendant’s current Motion for Reconsideration, filed pursuant

to RCFC 54(b), requests this court to “reconsider [the prior Judge’s] opinion and order of

December 31, 2025 denying the Government’s motion to dismiss Counts II and III” of

Siemens’ Second Amended Complaint. (alteration added). The United States Court of

Appeals for the Federal Circuit has stated that “[t]he decision whether to grant

reconsideration lies largely within the discretion of the [trial] court.” See Yuba Nat. Res.,

Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir.) (alterations added), reh’g denied

(Fed. Cir. 1990); see also Sikorsky Aircraft Corp. v. United States, 171 Fed. Cl. 327, 329-

30 (2024). “A motion for reconsideration is not intended . . . to give an unhappy litigant an

additional chance to sway the court.” Stueve Bros. Farms, LLC v. United States, 107 Fed.

Cl. at 475 (internal quotations omitted; omission in original); see also Haggart v. United

States, 133 Fed. Cl. 568, 573 (2017), aff’d, 943 F.3d 943 (Fed. Cir. 2019); L-3 Commc’ns

Integrated Sys., L.P. v. United States, 98 Fed. Cl. at 49 (quoting Alpha I, L.P. ex rel. Sands

v. United States, 86 Fed. Cl. 568, 572 (2009) (quoting Matthews v. United States, 73 Fed.

Cl. at 525)). “It is not sufficient for [defendant] to reassert the same arguments they made

in earlier proceedings, nor can [defendant] raise new arguments that could have been

made earlier.” Lee v. United States, 130 Fed. Cl. 243, 252 (2017) (alterations added),

aff’d, 895 F.3d 1363 (Fed. Cir. 2018); see also Sikorsky Aircraft Corp. v. United States,

171 Fed. Cl. at 332-33 (“The government may not now invoke RCFC 54(b) to revisit

arguments that have been previously raised and, in due course, rejected.” (citing Haggart

v. United States, 133 Fed. Cl. at 573; and Haddad v. United States, 152 Fed. Cl. 1, 18

n.12 (2021))). Therefore, “a motion for reconsideration ‘should not be based on evidence

that was readily available at the time the motion was heard.’” Johnson v. United States,

127 Fed. Cl. 661, 664 (2016) (quoting Seldovia Native Ass’n Inc. v. United States, 36

Fed. Cl. 593, 594 (1996), aff’d, 144 F.3d 769 (Fed. Cir. 1998)). “‘Post-opinion motions to

reconsider are not favored . . . especially where a party has had a fair opportunity to

13 As noted above, given that the Judge previously assigned to the above captioned and

numbered case, Siemens III, No. 24-1313, deferred ruling on defendant’s motion to

dismiss as to Count I of Siemens’ Second Amended Complaint, defendant’s current

Motion for Reconsideration does not seek a reconsideration ruling with respect to Count

I of Siemens’ Second Amended Complaint. Moreover, in its Motion for Reconsideration,

defendant also notes that in its initial motion to dismiss, it “asserted that Count II of

Siemens’s complaint should be dismissed because it impermissibly asserts breach of

implied contract terms that are addressed by the express IDIQ agreement,” but, “[w]hile

we reserve the right to reassert this argument if warranted, we do not seek

reconsideration of the Court’s holding on that issue.” (alteration added).

17

litigate the point in issue.’” Wagstaff v. United States, 118 Fed. Cl. 172, 175 (omission in

original) (quoting Aerolease Long Beach v. United States, 31 Fed. Cl. 342, 376, aff’d, 39

F.3d 1198 (Fed. Cir. 1994)), aff’d, 595 F. App’x 975 (Fed. Cir. 2014); see also Cully Corp.

v. United States, 163 Fed. Cl. 676, 687 (2022), appeal dismissed, No. 2023-2006, 2023

WL 5038823 (Fed. Cir. Aug. 8, 2023). “The moving party must support its motion for

reconsideration by a showing of exceptional circumstances justifying relief, based on a

manifest error of law or mistake in fact.” Banks v. United States, 84 Fed. Cl. at 292

(discussing RCFC 54(b) and 59(a)); see also 1100 W. Ewing Assoc., LLC v. United

States, 139 Fed. Cl. at 25 (stating that a motion for reconsideration under either RCFC

54(b) or RCFC 59(a) “should only be granted upon the showing of ‘exceptional

circumstances justifying relief, based on manifest error of law or mistake in fact’” (quoting

Webster v. United States, 93 Fed. Cl. 676, 679 (2010) (citing Henderson Cnty. Drainage

Dist. No. 3 v. United States, 55 Fed. Cl. 334, 337 (2003)))); Alpha I, L.P. ex rel. Sands v.

United States, 86 Fed. Cl. 126, 129 (2009) (discussing RCFC 54(b) and 59(a)).

RCFC 54(b) provides:

(b) Judgment on Multiple Claims or Involving Multiple Parties. When

an action presents more than one claim for relief—whether as a claim,

counterclaim, or third-party claim—or when multiple parties are involved,

the court may direct entry of a final judgment as to one or more, but fewer

than all, claims or parties only if the court expressly determines that there is

no just reason for delay. Otherwise, any order or other decision, however

designated, that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties does not end the action as to any of

the claims or parties and may be revised at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and liabilities.

RCFC 54(b) (emphasis in original). As explained by a Judge of the United States Court

of Federal Claims:

Reconsideration under RCFC 54(b) is available “as justice requires.” L-3

Commc’ns Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 48 (2011).

“While the threshold for reconsideration under RCFC 54(b) is imprecise, it

certainly ‘leaves within [its] ambit . . . a good deal of space for the [c]ourt’s

discretion.’” Martin [v. United States], 101 Fed. Cl. [664,] 671 [(2011)]

(quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). Asking “what

justice requires amounts to determining, within the [c]ourt’s discretion,

whether reconsideration is necessary under the relevant circumstances.”

Farmers Coop. Co. v. United States, 100 Fed. Cl. 579, 581 (2011) (internal

quotation omitted).

Loveridge v. United States, 150 Fed. Cl. at 126 (third, fourth, and fifth alteration added;

other alterations and omissions in original); see also Mynette Techs., Inc. v. United

States, 170 Fed. Cl. 201, 223 (2024); Cully Corp. v. United States, 163 Fed. Cl. at 687

(“‘While the threshold for reconsideration under RCFC 54(b) is imprecise, it certainly

18

“leaves within [its] ambit . . . a good deal of space for the [c]ourt’s discretion.”’” (alterations

and omission in original) (quoting Martin v. United States, 101 Fed. Cl. at 671 (quoting

Cobell v. Norton, 224 F.R.D. at 272))). “The ‘as justice requires’ standard affords the Court

significant discretion in determining whether reconsideration is appropriate.” Navajo

Nation v. United States, 175 Fed. Cl. 114, 121 (2025) (citing Loveridge v. United States,

150 Fed. Cl. at 126). “[R]econsideration is available ‘as justice requires,’ which typically

means that the court ‘patently misunderstood a party;’ ‘made a decision outside the

adversarial issues’ that the parties presented to the court; ‘made an error not of reasoning,

but of apprehension;’ or that ‘controlling or significant’ changes in the law or facts have

occurred since the issue was submitted to the Court.” CAN Softtech, Inc. v. United States,

174 Fed. Cl. 412, 416 (2024) (alteration added) (quoting Sacramento Grazing Ass’n v.

United States, 154 Fed. Cl. 769, 778-79 (2021); and L-3 Commc’ns Integrated Sys., L.P.

v. United States, 98 Fed. Cl. at 49). Another Judge of this court has indicated:

Under Rule 54(b), “any order or other decision, however designated, that

adjudicates fewer than all the claims . . . does not end the action as to any

of the claims or parties and may be revised at any time before the entry of

a judgment adjudicating all the claims and all the parties’ rights and

liabilities.” RCFC 54(b); see Marconi Wireless Tele. Co. v. United States,

320 U.S. 1, 47-48, 63 S. Ct. 1393, 87 L. Ed. 1731, (1943) (A court has power

“at any time prior to entry of its final judgment . . . to reconsider any portion

of its decision and reopen any part of the case.”); John Simmons Co. v.

Grier Bros. Co., 258 U.S. 82, 88, 42 S. Ct. 196, 66 L. Ed. 475 (1922) (“If [an

order is] interlocutory, the court at any time before final decree may modify

or rescind it.”). The rule reflects the precept that “[a]t an interlocutory stage,

the common law provides that the court has power to reconsider its prior

decision on any ground consonant with application of the law of the case

doctrine.” Wolfchild v. United States, 68 Fed. Cl. 779, 785 (2005).

Bos. Edison Co. v. United States, 156 Fed. Cl. 632, 636-37 (2021) (alterations and

omissions in original).

In its Motion for Reconsideration in the above captioned and numbered case,

Siemens III, No. 24-1313, defendant argues that “justice requires” reconsideration of the

December 31, 2025 Opinion and Order issued by the Judge previously assigned to the

above captioned and numbered case. Defendant asserts that “it is undisputed that the

claims brought in Counts II and III in Siemens’s Second Amended Complaint are bid

protests [sic] claims” and argues that “FASA’s task order bar divests this Court of

jurisdiction over Siemens’s bid protest claims.” (alteration added). Defendant asserts that

all the actions challenged by Siemens were “directly and causally” connected to the DLA’s

proposed issuance of a task order. According to defendant, the Judge previously

assigned to the above captioned and numbered case erred in his December 31, 2025

Opinion and Order by, in defendant’s view, (1) holding that the remedy sought is

dispositive of whether the FASA task order bar applies, (2) relying on the vacated

Percipient.ai, Inc. v. United States, 104 F.4th 839, case, as well on two allegedly

“mistaken rulings” by other Judges of the United States Court of Federal Claims in

19

Siemens I, No. 22-1870, and Siemens II, No. 22-698, respectively, in lieu of binding

United States Court of Appeals for the Federal Circuit precedent in SRA International,

Inc. v. United States, 766 F.3d 1409, and (3) interpreting the “in connection with” language

used in FASA narrowly and “inconsistent with other authorities.”14

Siemens responds that the court “should deny the Government’s motion for

reconsideration, which offers no reason to revisit the Court’s prior decision holding that

the Federal Acquisition Streamlining Act (‘FASA’) task order protest bar does not apply

here.” Siemens asserts that defendant’s Motion for Reconsideration “does not identify

any intervening change in controlling law or new evidence, and its assertion of clear error

amounts to nothing more than disagreement with the Court’s prior decision, decisions in

the other Siemens cases, and the Federal Circuit’s recent (but vacated) holding on this

14 In a footnote in its Motion for Reconsideration, defendant also states:

Aside from the task order bar, it does not appear Siemens has pleaded an

actionable claim in Count III, i.e., the regulations it claims were violated do

not provide it with an actionable claim. For example, FAR 16.505 merely

imposes a rule about allowing the IDIQ holders to compete for a task order,

and it plainly applies to all IDIQ contract holders during the task order

procurement process. It does not provide Siemens with an actionable claim

after the down selection that left it as the last offeror standing. Similarly,

Siemens does not actually plead a violation of 10 C.F.R § 436.33(a) despite

citing it. Regardless, that regulation merely provides internal governmental

direction, not an actionable claim. See Am. Tel. & Tel. Co. v. United States,

307 F.3d 1374, 1380 (Fed. Cir. 2002) (“cautionary and informative

regulations and directives provide only internal governmental direction. . . .

[such] provisions supply no remedy for private parties in a judicial forum.”).

(alterations, emphasis, and omissions in defendant’s brief). Siemens responds, “[t]his is

a new argument that was not raised in the Government’s multiple previous motions to

dismiss, nor in any of the subsequent briefing.” (alteration added). A review of defendant’s

initial motion to dismiss, supplemental motion to dismiss, and associated briefing

demonstrates that defendant did not previously raise this argument regarding whether

FAR 16.505 or 10 C.F.R. § 436.33(a) provide Siemens with “an actionable claim.” The

court does not address defendant’s newly raised argument in this Opinion on defendant’s

Motion for Reconsideration, which could have been raised in earlier proceedings in the

above captioned and numbered case. See Stueve Bros. Farms, LLC v. United States,

107 Fed. Cl. at 475 (“A motion for reconsideration is not an opportunity to make new

arguments that could have been made earlier; ‘an argument made for the first time in a

motion for reconsideration comes too late, and is ordinarily deemed waived.’” (quoting

Bluebonnet Sav. Bank, F.S.B. v. United States, 466 F.3d 1349, 1361 (Fed. Cir. 2021);

and citing Gen. Elec. Co. v. United States, 189 Ct. Cl. 116, 118, 416 F.2d 1320, 1369

(1969))); see also Lee v. United States, 130 Fed. Cl. at 252.

20

issue.” 15 Siemens argues that Judges of the United States Court of Federal Claims, and

the United States Court of Appeals for the Federal Circuit, have repeatedly rejected the

government’s very broad interpretation of the FASA task order bar. (citing Percipient.ai,

Inc. v. United States, 104 F.4th 839; Siemens I, No. 22-1870, 177 Fed. Cl. 165; Siemens

II, No. 22-698, 176 Fed. Cl. 450; and Siemens III, No. 24-1313, 2025 WL 3774760).

Siemens asserts that in the case currently before the court, Siemens III, No. 24-1313, it

“does not seek to have a task order rescinded, nor does it seek to have the Government

reassess its non-issuance of a task order.” Siemens, therefore, argues that the Judge

previously assigned to the above captioned and numbered case, in which defendant has

filed the current Motion for Reconsideration, Siemens III, No. 24-1313, “correctly

determined that Siemens’ claims do not challenge the issuance or non-issuance of a task

order and therefore fall outside the FASA task order protest bar . . . .” (omission added).

As indicated above, in defendant’s current Motion for Reconsideration, defendant

asserts that “it is undisputed that the claims brought in Counts II and III in Siemens’s

Second Amended Complaint are bid protests [sic] claims” and argues that “FASA’s task

order bar divests this Court of jurisdiction over Siemens’s bid protest claims.” (alteration

added). The United States Court of Federal Claims has general jurisdiction to hear bid

protests pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1), which provides that this court

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.; see also Life Sci. Logistics, LLC v. United States, 172 F.4th 1357, 1365 (Fed. Cir.

2026); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009).

Moreover, the Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-

320, §§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)-(4)),

amended the Tucker Act to establish a statutory basis for post-award bid protests in the

United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico

15 In a footnote in its response to defendant’s Motion for Reconsideration, Siemens states

that it “recognizes that the Federal Circuit vacated Percipient.ai[, Inc. v. United States,

104 F.4th 839,] on different grounds, so it is no longer precedential authority for this Court”

but notes that, “as multiple judges on this Court have recognized, it [the Percipient.ai

case] remains persuasive authority for its holding on the FASA task order protest bar,

which the en banc panel decided not to revisit.” (alterations added) (citing Radiance

Techs. Inc. v. United States, 174 Fed. Cl. at 202 n.3; and Siemens I, No. 22-1870, Fed.

Cl. at 172). This court notes that, in the Order granting a rehearing en banc in the

Percipient.ai case, the United States Court of Appeals for the Federal Circuit specifically

stated that it “will not revisit and does not require additional briefing on the issues of task

bar under the Federal Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C. § 3406(f)[.]”

Percipient.ai, Inc. v. United States, 121 F.4th at 1312 (alteration added).

21

Garufi v. United States, 238 F.3d 1324, 1330 (Fed. Cir. 2001); see also Sys. Application

& Techs., Inc. v. United States, 691 F.3d 1374, 1380 (Fed. Cir. 2012) (explaining that the

Tucker Act expressly waives sovereign immunity for claims against the United States in

bid protests).

The Federal Acquisition Streamlining Act of 1994, 10 U.S.C. § 3406(f), 16 however,

limits jurisdiction in the United States Court of Federal Claims over certain bid protests

that arise in the context of a task or delivery order. The statute at 10 U.S.C. § 3406(f)

provides:

(f) Protests.--(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 $35,000,000.

(2) Notwithstanding section 3556 of title 31,[17] the Comptroller General of

the United States shall have exclusive jurisdiction of a protest authorized

under paragraph (1)(B).

Id. (footnote added; emphasis in original); see also Unison Software, Inc. v. United States,

168 Fed. Cl. 160, 166 (2023) (“While this court has jurisdiction over bid protests in general

(28 U.S.C. § 1491(b)), Congress has, through FASA, expressly limited the court’s bid-

protest jurisdiction by prohibiting protests ‘in connection with the issuance or proposed

issuance of a task or delivery order.’” (quoting 10 U.S.C. § 3406(f); and citing 22nd

Century Techs., Inc. v. United States, 57 F.4th at 998)). Based on the statutory language

at 10 U.S.C. § 3406(f)(1)(A) & (B), the United States Court of Appeals for the Federal

Circuit has recognized that the statute specifically provides “two narrow exceptions” to

the application of the FASA task order bar, “namely, [1] when the order ‘increases the

16 As indicated above, there is a parallel FASA task order bar in Title 41 of the United

States Code, which applies to civilian agencies. See 41 U.S.C. § 4106(f). Given that “[t]he

text of the two provisions [10 U.S.C. § 3406(f) and 41 U.S.C. § 4106(f)] is similar, except

for the different monetary thresholds over which task order protests may be heard by the

Comptroller General,” Percipient.ai, Inc. v. United States, 104 F.4th at 846 n.2 (alterations

added), the court considers the case law interpreting both the statute at 10 U.S.C.

§ 3406(f) and the statute at 41 U.S.C. § 4106(f).

17 The statute at 31 U.S.C. § 3556 (2024) provides that “[t]his subchapter does not give

the Comptroller General exclusive jurisdiction over protests, and nothing contained in this

subchapter shall affect the right of any interested party to file a protest with the contracting

agency or to file an action in the United States Court of Federal Claims.” Id. (alteration

added).

22

scope, period, or maximum value of the contract under which the order is issued’ or [2]

the order is ‘valued in excess of $25,000,000.’” 22nd Century Techs., Inc. v. United

States, 57 F.4th at 998 (alterations added) (quoting 10 U.S.C. § 3406(f)). 18 The United

States Government Accountability Office (GAO) is tasked by statute to hear bid protests

“in connection with the issuance or proposed issuance” of task orders that satisfy the

dollar threshold at 10 U.S.C. § 3406(f)(1)(B). See 10 U.S.C. § 3406(f)(2); see also SRA

Int’l, Inc. v. United States, 766 F.3d at 1413; Nextgen Networks, Inc. v. United States, 124

Fed. Cl. 645, 654 (2015).

Outside of the exceptions outlined above, which are not applicable to the case

currently before the court, the United States Court of Appeals for the Federal Circuit has

generally construed the FASA task order bar broadly. See SRA Int’l, Inc. v. United States,

766 F.3d at 1413; see also 22nd Century Techs., Inc. v. United States, 57 F.4th at 998.

In SRA International, Inc. v. United States, the United States Court of Appeals for the

Federal Circuit held that an offeror’s protest of an agency’s issuance of an Organizational

Conflict of Interest (OCI) waiver fell under the FASA task order bar. See SRA Int’l, Inc. v.

United States, 766 F.3d at 1414. The protestor, SRA International, Inc. (SRA), had been

providing network infrastructure support services to the Federal Deposit Insurance

Corporation (FDIC) since 2009 under a task order colloquially known as “ISC

[Infrastructure Support Contract]-2,” which was issued under the General Services

Administration’s (GSA) “Millennia” Government-Wide Acquisition Contract (GWAC). See

id. at 1410 (alteration added). While SRA provided the network infrastructure support

services under the ISC-2 task order, another contractor, Blue Canopy Group, LLC (Blue

Canopy), “conducted security audits for the FDIC of SRA’s network security.” See id. In

June 2012, the GSA solicited a new task order for follow-on network infrastructure support

services under the “Alliant” GWAC, “which superseded the Millennia GWAC.” See id. The

GSA initially awarded the task order to Computer Sciences Corporation (CSC), but after

SRA protested the award to the GAO, the GSA terminated the task order for convenience

and reissued the solicitation with corrective amendments. See id. On August 14, 2013,

“the GSA again awarded a task order to CSC—referred to as ISC-3—for more than $365

million.” Id.

SRA again protested to the GAO, “alleging that there were two OCIs based on

CSC’s intended use of Blue Canopy as a subcontractor: ‘impaired objectivity’; and

‘unequal access to information.’” SRA Int’l, Inc. v. United States, 766 F.3d at 1410-11.

Specifically, in its second GAO protest, SRA “alleged that Blue Canopy’s work with the

FDIC gave Blue Canopy ‘access to SRA’s proprietary information’ and knowledge of ‘how

the FDIC evaluated SRA’s work,’ which SRA argued led to the alleged OCIs.” Id. at 1411.

In response to SRA’s second GAO protest, CSC attempted to cure the alleged OCIs by

agreeing to remove Blue Canopy as a subcontractor under the ISC-3 task order. See id.

Although SRA conceded that the removal of Blue Canopy as a subcontractor under the

18 Since the United States Court of Appeals for the Federal Circuit’s decision in 22nd

Century Technologies, Inc. v. United States, 57 F.4th 993, Congress amended the

defense FASA statute to increase the dollar threshold under 10 U.S.C. § 3406(f)(1)(B) to

$35,000,000.00. See 10 U.S.C. § 3406(f)(1)(B).

23

ISC-3 task order cured the alleged “impaired objectivity” OCI, SRA maintained that an

“unequal access to information” OCI continued to exist. See id. SRA also argued that

“CSC and Blue Canopy violated FDIC regulations . . . by submitting false certifications,

prior to being awarded ISC-3, that no OCIs existed.” Id. (omission added). On November

25, 2013, although “[t]he GSA found the possibility of an OCI to be ‘exceedingly remote

and unsubstantiated,” the GSA issued a waiver, pursuant to FAR 9.503, of the alleged

“unequal access to information” OCI. See SRA Int’l, Inc. v. United States, 766 F.3d at

1411 (alteration added; internal reference omitted).

Thereafter, SRA filed suit in the United States Court of Federal Claims “seeking

declarations that the OCI waiver is void for failing to satisfy FDIC law and regulations and

for failure to set forth the extent of the OCI.” Id. SRA “also sought a permanent injunction

preventing award of ISC-3 to CSC due to the alleged false certifications” and “sought a

declaration that, because the GSA could have awarded SRA the task order, it was

‘arbitrary, capricious and unreasonable to make an illegal award to an invalid offeror.’” Id.

(internal references omitted). The United States moved to dismiss for lack of subject

matter jurisdiction based on the FASA task order bar. See id. According to the United

States Court of Appeals for the Federal Circuit in SRA International:

Although dismissing the case on other grounds, the United States Court of

Federal Claims held that it had jurisdiction over the challenge to the validity

of the OCI waiver under the Tucker Act, despite the Federal Acquisition

Streamlining Act of 1994 (“FASA”) bar on jurisdiction over protests “in

connection with the issuance or proposed issuance of a task or delivery

order,” 41 U.S.C. § 4106(f)(1) (2012).

SRA Int’l, Inc. v. United States, 766 F.3d at 1410 (citing SRA Int’l, Inc. v. United States,

114 Fed. Cl. 247 (2014)). Also according to the United States Court of Appeals for the

Federal Circuit in SRA International:

The Court of Federal Claims denied the Government’s motion, holding it

had jurisdiction to decide SRA’s claims concerning the validity of the waiver.

Important to its decision was the “fact that the Waiver was issued well after

the award”—here, 102 days later. Also important was the notion that waiver

under FAR 9.503 “is a matter left to agency discretion.” Thus, according to

the court, “not only [was] the Waiver in this case discretionary, it [was] also

distinct—in both a temporal and causal sense—from the ISC-3 Task Order.”

SRA Int’l, Inc. v. United States, 766 F.3d at 1412 (alterations in original; internal

references and footnote omitted) (citing SRA Int’l, Inc. v. United States, 114 Fed. Cl. at

255-56).

On appeal, however, the United States Court of Appeals for the Federal Circuit

held that the United States Court of Federal Claims “erred in exercising jurisdiction over

SRA’s claims because SRA’s protest of the OCI waiver is ‘in connection with the issuance’

of ISC-3.” SRA Int’l, Inc. v. United States, 766 F.3d at 1413. When explaining the contours

24

of the FASA task order bar, the United States Court of Appeals for the Federal Circuit

stated:

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, as SRA does here, 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.

Id. The United States Court of Appeals for the Federal Circuit also stated that “neither the

discretionary nature of the OCI waiver nor the temporal disconnect between it [the OCI

waiver] and the issuance of ISC-3 removes it from FASA’s purview” because “nothing in

FASA’s plain language carves out an exception for discretionary agency actions” and

“nothing in FASA’s language automatically exempts actions that are temporally

disconnected from the issuance of a task order.” Id. (alteration added). The United States

Court of Appeals for the Federal Circuit recognized, however, that “a temporal disconnect

may, in some circumstances, help to support the non-application of the FASA [task order]

bar . . . .” Id. at 1413-14 (alteration and omission added) (citing Global Computer Enters.,

Inc. v. United States, 88 Fed. Cl. 350, 410, 412 (2009)). 19 The United States Court of

Appeals for the Federal Circuit also stated that, “though not necessarily dispositive,” the

relief sought by SRA—recission of the ISC-3 task order at issue—“[f]urther

demonstrat[ed] the connection between” SRA’s protest and the issuance of the ISC-3

task order, so as to warrant application of the FASA task order bar. SRA Int’l, Inc. v.

United States, 766 F.3d at 1414 (alterations added). Ultimately, the United States Court

of Appeals for the Federal Circuit held that, because “[e]ach of SRA’s allegations attacks

the waiver or some consequential effect of the waiver,” and because “the OCI waiver was

directly and causally connected to issuance of ISC-3,” the United States Court of Federal

Claims did not have subject matter jurisdiction over SRA’s protest. Id. at 1413-14

(alteration added).

19 In Global Computers Enterprises, Inc. v. United States, a Judge of the United States

Court of Federal Claims found that FASA does not operate to bar challenges to the

modification of a task order, in part because of the temporal disconnect between the

issuance of a task order and the subsequent modification of the task order. See Glob.

Computers Enters., Inc. v. United States, 88 Fed. Cl. at 410. The Judge in Global

Computers stated that she could not “conclude that a task order modification, which, by

definition, must occur subsequent to the circulation, publication, or distribution—i.e.,

issuance—of the task order itself, bears any connection with the original issuance that

brought the task order into existence.” Id. at 412.

25

Thus, according to the United States Court of Appeals for the Federal Circuit in

SRA International, a protest is “in connection with the issuance or proposed issuance” of

a task order, so as to warrant application of the FASA task order bar, if the challenged

agency decision is “directly and causally connected” to “the issuance or proposed

issuance” of a task order. See SRA Int’l, Inc. v. United States, 766 F.3d at 1413; see also

FYI - For Your Information, Inc. v. United States, 170 Fed. Cl. 601, 614 (2024) (“[I]n

applying SRA International, the salient question is whether the challenged agency

decision ‘is directly and causally connected to [the] issuance of [a task order],’ while

recognizing that ‘a temporal disconnect may, in some circumstances, help to support the

non-application of the FASA bar[.]’” (first alteration added; other alterations in original)

(quoting SRA Int’l, Inc. v. United States, 766 F.3d at 1413)); Radiance Techs. Inc. v.

United States, 174 Fed. Cl. at 204 (“FASA’s language refers to an agency action that is

‘directly and causally connected to’ the issuance or proposed issuance of a task order.”

(quoting SRA Int’l, Inc. v. United States, 766 F.3d at 1413)); Unison Software, Inc. v.

United States, 168 Fed. Cl. at 166-67 (“The Federal Circuit has determined that a

government action is ‘in connection with’ a task order if that action is ‘directly and causally

connected’ to the task order.” (quoting SRA Int’l, Inc. v. United States, 766 F.3d at 1413)).

The United States Court of Appeals for the Federal Circuit addressed the FASA

task order bar again in 22nd Century Technologies, Inc. v. United States, 57 F.4th 993,

in which the United States Department of the Army (Army) issued a solicitation for a

multiple-award, “Responsive Strategic Sourcing for Services” (RS3) IDIQ contract

seeking “knowledge-based support services.” See id. at 996. Although the solicitation for

the RS3 IDIQ contract was not set aside for small business concerns, the solicitation

“allowed the Army to restrict subsequent task order competitions under the contract” to

small business concerns. Id. at 996-97. On May 6, 2015, 22nd Century Technologies,

Inc. (22nd Century) submitted a proposal in response to the solicitation for the RS3 IDIQ

contract and, on March 1, 2019, 22nd Century was awarded the RS3 IDIQ Contract. See

id. at 997. Notably, 22nd Century was a small business concern at the time it submitted

its proposal in response to the solicitation for the RS3 IDIQ contract on May 6, 2015. See

id. The Army subsequently issued a task order solicitation under the RS3 IDIQ Contract,

which the Army set aside for small business concerns. See id. Although 22nd Century

“was no longer a small business at the time of the task order solicitation,” 22nd Century

submitted a proposal in response to the task order solicitation and “represented that it

had been ‘a small business for this [RS3] IDIQ,’ i.e., at the time of its original RS3 IDIQ

proposal.” Id. (alteration in original). The Army issued the task order to 22nd Century. See

id. Thereafter, two disappointed bidders filed size protests with the Small Business

Administration (SBA), “alleging that 22nd Century was ineligible for the award because it

was not a small business at the time it submitted” its proposal in response to the task

order solicitation. Id. After the SBA Area Office found that 22nd Century was “other-than-

small” at the time it submitted its proposal in response to the task order solicitation, and

after the SBA Office of Hearings and Appeals (OHA) affirmed the SBA Area Office’s size

determination, the Army terminated the task order awarded to 22nd Century. See id.

22nd Century subsequently filed suit in the United States Court of Federal Claims

seeking the court to “set aside OHA’s size determination and enjoin the Army from

26

terminating the task order based on OHA’s size determination.” Id. The United States

moved to dismiss 22nd Century’s suit for lack of subject matter jurisdiction based on the

FASA task order bar. See id. at 997-98. The United States Court of Federal Claims held

that FASA barred jurisdiction over 22nd Century’s claims and granted the United States’

motion to dismiss. See id. at 998.

On appeal, the United States Court of Appeals for the Federal Circuit in 22nd

Century affirmed the United States Court of Federal Claims’ dismissal for lack of subject

matter jurisdiction. See id. at 1000. The United States Court of Appeals for the Federal

Circuit stated that the United States Court of Federal Claims “has jurisdiction to consider

the propriety of an SBA size determination in a bid protest case or other contract action

over which it has jurisdiction” but that “bid protest jurisdiction here is barred by FASA.” Id.

at 999. The United States Court of Appeals for the Federal Circuit reiterated its holding

from SRA International, Inc. v. United States, stating:

FASA’s unambiguous language categorically bars jurisdiction over bid

protests, even those involving a challenge to an SBA size determination

where the size determination is challenged “in connection with the issuance

of a task or delivery order.” 10 U.S.C. § 3406(f)(1). FASA “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.” SRA Int’l[, Inc. v. United

States], 766 F.3d at 1413. The Claims Court correctly held that 22nd

Century’s challenge here “is clearly made in connection with the issuance

of a task order and is therefore barred by FASA. That is so because 22nd

Century’s challenge is to the alleged failure of the task order to require

bidders to recertify as small businesses, and 22nd Century’s claim is that

the only relevant size requirement for purposes of its task order proposal

was in the original RS3 IDIQ Contract.

22nd Century Techs., Inc. v. United States, 57 F.4th at 999-1000 (alteration added;

footnote and internal reference omitted).

More recently, in the vacated panel opinion in Percipient.ai, Inc. v. United States,

104 F.4th 839, the United States Court of Appeals for the Federal Circuit, before granting

a rehearing en banc, as discussed below, recognized a limited circumstance in which a

case, despite having been initiated in the overall context of a task order procurement, was

not barred from consideration in the United States Court of Federal Claims by the FASA

task order bar. See id. at 849-50. As background, Percipient.ai, Inc. (Percipient), “a

technology company that developed a computer vision software called ‘Mirage,’” brought

suit in the United States Court of Federal Claims alleging that the National Geospatial-

Intelligence Agency (NGA) “violated its statutory and regulatory obligations by wastefully

pursuing a development solution when a possible commercial solution existed.”

Percipient.ai, Inc. v. United States, 165 Fed. Cl. at 336. Percipient’s suit arose from a

27

solicitation for the “SAFFIRE” contract, 20 “which was an indefinite delivery, indefinite

quantity contract” that involved “a data repository that would store and disseminate

geospatial intelligence ‘across various large organizations’” and also involved the

integration of “a computer vision system to enhance the agency’s ability to produce,

review, and classify intelligence from ‘millions’ of images.” Id. at 334 (internal references

omitted). “Percipient did not bid on the SAFFIRE contract because its [Mirage] software

could only fulfill SAFFIRE’s computer vision requirements, not the entire contract.” Id. at

335 (alteration added). The NGA awarded the SAFFIRE contract and Task Order 1 to

CACI, Inc. – Federal (CACI). See id.; see also Percipient.ai, Inc. v. United States, 2023

WL 3563093, at *1. Relying “on what it viewed as the agency’s statutory obligation to

consider incorporating commercial products,” Percipient “hoped to be part of NGA’s

SAFFIRE efforts” by performing as a subcontractor to CACI. Percipient.ai, Inc. v. United

States, 165 Fed. Cl. at 335. After learning “that CACI would be developing a computer

vision system for SAFFIRE” and “[a]fter Percipient’s efforts to be incorporated into

SAFFIRE proved unfruitful,” Percipient filed a bid protest in the United States Court of

Federal Claims alleging that the NGA violated its statutory obligation, under 10 U.S.C.

§ 3453, to procure commercial or non-developmental products “to the maximum extent

practicable.” Percipient.ai, Inc. v. United States, 165 Fed. Cl. at 335-36 (alteration added).

The United States and CACI “moved to dismiss for lack of subject matter jurisdiction” on

various grounds, including, as relevant to the dispute currently before the court in the

above captioned and numbered case, Siemens III, No. 24-1313, that Percipient lacked

standing to bring its bid protest claim and that Percipient’s bid protest claim was barred

by FASA. See Percipient.ai, Inc. v. United States, 165 Fed. Cl. at 336-37.

The United States Court of Federal Claims initially held that the court had “subject

matter jurisdiction over Percipient’s protest” because “FASA’s task order bar will not apply

when, as here, a task order exceeds $25,000,000.” Id. at 337. Moreover, the United

States Court of Federal Claims held that Percipient had standing, finding that Percipient

had a direct economic interest in the NGA’s award of the SAFFIRE contract, and stating

that “offerors of commercial products need not bid on the prime contract to have [10

U.S.C.] § 3453 standing.” See Percipient.ai, Inc. v. United States, 165 Fed. Cl. at 337-40

(alteration added). On reconsideration, however, the United States Court of Federal

Claims determined that the court lacked subject matter jurisdiction over Percipient’s bid

protest because “Percipient’s protest is directly and causally related to the agency’s

issuance” of a task order. See Percipient.ai, Inc. v. United States, 2023 WL 3563093, at

*3. Thereafter, Percipient appealed to the United States Court of Appeals for the Federal

Circuit.

On appeal, a panel of the United States Court of Appeals for the Federal Circuit

initially held that the FASA task order bar did not apply to Percipient’s bid protest, that

Percipient’s bid protest fell within the jurisdiction of the United States Court of Federal

20 On reconsideration, the United States Court of Federal Claims clarified that the NGA

simultaneously solicited the SAFFIRE contract and a “Task Order 1” under the SAFFIRE

Contract for the development and delivery of computer vision software. See Percipient.ai,

Inc. v. United States, 2023 WL 3563093, at *1.

28

Claims under the Tucker Act, 28 U.S.C. § 1491(b)(1), and that Percipient had standing to

challenge the NGA’s alleged violation of 10 U.S.C. § 3453, which establishes a

preference for commercial products and commercial services. See Percipient.ai, Inc. v.

United States, 104 F.4th at 851-52, 858. With respect to the FASA task order bar, the

panel of the United States Court of Appeals for the Federal Circuit stated:

FASA provides that a “protest is not authorized in connection with the

issuance or proposed issuance of a task or delivery order.” 10 U.S.C.

§ 3406(f)(1). Consistent with the statutory focus on “issuance” and this

court’s decision in SRA International, Inc. v. United States, 766 F.3d 1409,

1413 (Fed. Cir. 2014), we interpret this language to mean that a protest is

barred if it challenges the issuance of the task order directly or by

challenging a government action (e.g., waiver of an organizational conflict

of interest) whose wrongfulness would cause the task order’s issuance to

be improper. To determine whether the Court of Federal Claims erred in

dismissing Percipient’s complaint, we analyze each of the claims in the

complaint. In doing so it becomes clear that the FASA task order bar does

not preclude the Court of Federal Claims from exercising jurisdiction over

Percipient’s protest, which does not assert the wrongfulness of, or seek to

set aside, any task order.

Percipient.ai, Inc. v. United States, 104 F.4th at 847. The panel of the United States Court

of Appeals for the Federal Circuit explained that it “underst[ood] SRA [International]’s

reference to ‘directly and causally connected to issuance of [a task order]’ to refer to

government action in the direct causal chain sustaining the issuance of a task order, not

to all actions taken under or after issuance of a proper task order.” Percipient.ai, Inc. v.

United States, 104 F.4th at 850 (first and second alteration added; third alteration in

original). Moreover, the panel of the United States Court of Appeals for the Federal Circuit

found that “Percipient does not challenge the issuance or proposed issuance of a task

order” because “Percipient’s requested relief would not alter NGA’s issuance of Task

Order 1 to CACI.” Id. at 851. Additionally, regarding standing, the panel of the United

States Court of Appeals for the Federal Circuit held, “in the context of this case involving

alleged violations of 10 U.S.C. § 3453 without challenging the contract, an interested party

includes an offeror of commercial or nondevelopmental services or items whose direct

economic interest would be affected by the alleged violation of the statute.” Percipient.ai,

Inc. v. United States, 104 F.4th at 858.

Subsequently, however, the United States Court of Appeals for the Federal Circuit

granted a rehearing en banc and vacated the earlier panel opinion. See Percipient.ai, Inc.

v. United States, 121 F.4th at 1312. In the Order granting a rehearing en banc, the United

States Court of Appeals for the Federal Circuit stated:

The parties are requested to file new briefs, which shall be limited to

standing under 28 U.S.C. § 1491(b)(1) and address the following question:

Who can be “an interested party objecting to . . . any alleged violation of

29

statute or regulation in connection with a procurement or a proposed

procurement” under 28 U.S.C. § 1491(b)(1)?

Percipient.ai, Inc. v. United States, 121 F.4th at 1312 (omission in original). Notably, also

in the Order granting a rehearing en banc, the United States Court of Appeals for the

Federal Circuit stated:

The court will not revisit and does not require additional briefing on the

issues of task bar under the Federal Acquisition Streamlining Act of 1994

(FASA), 10 U.S.C. § 3406(f); subject matter jurisdiction under 28 U.S.C.

§ 1491(b)(1); and timeliness of claims under Blue & Gold Fleet, L.P. v.

United States, 492 F.3d 1308 (Fed. Cir. 2007).

Percipient.ai, Inc. v. United States, 121 F.4th at 1312. Therefore, the immediately above-

quoted language suggests that, in granting a rehearing en banc limited to the issue of

interested-party standing under 28 U.S.C. § 1491(b)(1), the United States Court of

Appeals for the Federal Circuit did not upend its initial position regarding jurisdiction under

the FASA task order bar that was expressed in the vacated panel opinion. See

Percipient.ai, Inc. v. United States, 121 F.4th at 1312. On rehearing en banc, the United

States Court of Appeals for the Federal Circuit “affirm[ed] the Court of Federal Claims’

dismissal of Percipient.ai’s protest for lack of standing,” without revisiting the FASA task

order bar issue, and without remanding the case to the United States Court of Federal

Claims for further adjudication. See Percipient.AI, Inc. v. United States, 153 F.4th at 1243

(alteration added).

As indicated above, a Judge of the United States Court of Federal Claims has

stated that the “[m]ere connection to a task order . . . is not enough for FASA to apply.”

Siemens I, No. 22-1870, 177 Fed. Cl. at 172 (alteration and omission added) (citing

Percipient.ai, Inc. v. United States, 104 F.4th at 849); see also Percipient.ai, Inc. v. United

States, 104 F.4th at 850 (stating that the “in connection with” language used in FASA

refers “to government action in the direct causal chain sustaining the issuance of a task

order, not to all actions taken under or after issuance of a proper task order”). In Count II

of Siemens’ Second Amended Complaint in Siemens III, No. 24-1313, Siemens alleges

that defendant’s failure to act in good faith violated defendant’s implied-in-fact contract

duty to treat Siemens honestly and fairly. Specifically, Siemens argues in Count II of its

Second Amended Complaint that “the Government’s decision not to compensate”

Siemens for the “development costs” it allegedly incurred while working on the proposed

Goodfellow Air Force Base project constituted an “abuse of discretion that violated this

implied-in-fact contract.” That DLA decision, which is challenged in Count II of Siemens’

Second Amended Complaint in Siemens III, No. 24-1313, not to compensate Siemens

for the “development costs” it allegedly incurred, was not “directly or causally connected”

to the “issuance or proposed issuance” of the Goodfellow Air Force Base task order.

Pursuant to subsection H.5.1(D) of the IDIQ Contract, the DLA retained discretion to

reimburse Siemens for its alleged “development costs,” even when no task order was

issued to Siemens, provided that “such costs are otherwise authorized for payment by

the ordering agency CO.”

30

In Count III of Siemens’ Second Amended Complaint in Siemens III, No. 24-1313,

Siemens alleges that defendant “violated statute and regulations in conducting this

procurement,” which allegedly caused Siemens “to needlessly incur $2,835,412 in

development costs” while working on the proposed Goodfellow Air Force Base project.

Siemens argues that defendant failed to follow the “procedures established for energy

savings performance contracts” in the statute at 42 U.S.C. § 8287 and the regulations at

10 C.F.R. Part 436. Siemens also argues that defendant violated its duty to provide

Siemens with a fair opportunity to compete for the proposed Goodfellow Air Force Base

project. Unlike in the 22nd Century case, in which the protestor’s claim was barred by

FASA because it challenged the terms of a task order solicitation, see 22nd Century

Techs., Inc. v. United States, 57 F.4th at 1000 (“22nd Century’s challenge is to the alleged

failure of the task order to require bidders to recertify as small businesses”), in Count III

of Siemens’ Second Amended Complaint filed in the case currently before the court,

Siemens III, Siemens challenges the DLA’s compliance with the statute and regulations

governing the energy savings performance contract program rather than the terms of the

Goodfellow Air Force Base procurement.

This court also considers the nature of the relief sought by Siemens to help inform

whether the FASA task order bar applies to Counts II and III of Siemens’ Second

Amended Complaint in Siemens III, No. 24-1313. See SRA Int’l, Inc. v. United States,

766 F.3d at 1414; see also Percipient.ai, Inc. v. United States, 104 F.4th at 851. In its

Second Amended Complaint in Siemens III, No. 24-1313, Siemens seeks an award of

$2,835,412.00 in damages for the “development costs” it allegedly incurred while working

on the proposed Goodfellow Air Force Base project. Therefore, unlike in the SRA

International case, in which the protestor sought recission of the task order at issue, see

SRA Int’l, Inc. v. United States, 766 F.3d at 1414, and unlike in the 22nd Century case, in

which the protestor requested the court to enjoin the agency from terminating the task

order at issue, see 22nd Century Techs., Inc. v. United States, 57 F.4th at 997, in the

above captioned and numbered case, Siemens III, No. 24-1313, Siemens does not seek

the award of a task order or seek to set aside a task order. Therefore, Siemens’ claims in

Count II and Count III of its Second Amended Complaint in Siemens III, No. 24-1313, can

be considered not “in connection with” the “proposed issuance” of the Goodfellow Air

Force Base task order, in part because the requested relief would not “alter” the DLA’s

cancellation of the Goodfellow Air Force Base project and non-issuance of the Goodfellow

Air Force Base task order. See Percipient.ai v. United States, 104 F.4th at 851 (finding

that the FASA task order bar did not apply to a protestor’s claims, in part because the

“requested relief would not alter” the agency’s issuance of a task order). In other words,

Siemens’ request for reimbursement of “development costs” does not challenge the

issuance, or, in this case, the non-issuance, of the Goodfellow Air Force Base task order

directly, and does not challenge the possible wrongfulness of the Goodfellow Air Force

Base task order’s non-issuance as improper. See id. at 847 (interpreting FASA “to mean

that a protest is barred if it challenges the issuance of the task order directly or by

challenging a government action (e.g., waiver of an organizational conflict of interest)

whose wrongfulness would cause the task order’s issuance to be improper”). Rather,

Siemens challenges certain DLA actions, the possible wrongfulness of which allegedly

31

caused Siemens “to needlessly incur” increased “development costs” while working on

the proposed Goodfellow Air Force Base project.

Moreover, in defendant’s current Motion for Reconsideration requesting this court

to reconsider the previous Judge’s December 31, 2025 Opinion and Order in Siemens III,

No. 24-1313, which denied defendant’s motion to dismiss Counts II and III of Siemens’

Second Amended Complaint, defendant merely reasserts the same arguments that

defendant raised in earlier proceedings before the Judge previously assigned to the

above captioned and numbered case. In the December 31, 2025 Opinion and Order in

Siemens III, No. 24-1313, which denied defendant’s motion to dismiss Counts II and III of

Siemens’ Second Amended Complaint, the Judge previously assigned to the above

captioned and numbered case already carefully reviewed and rejected the FASA task

order bar argument presented by defendant in its current Motion for Reconsideration.

Defendant fails to present any new, persuasive arguments that Count II or Count III of

Siemens’ Second Amended Complaint challenge agency action “in connection with” the

“issuance or proposed issuance” of the Goodfellow Air Force Base task order, which is

insufficient for the purposes of a motion seeking reconsideration pursuant to RCFC 54(b).

See Lee v. United States, 130 Fed. Cl. at 252; see also Sikorsky Aircraft Corp. v. United

States, 171 Fed. Cl. at 332-33. Based on the foregoing, including the allegations in Counts

II and III of Siemens’ Second Amended Complaint in Siemens III, No. 24-1313, as well as

based on the relief sought by Siemens, FASA should not bar the United States Court of

Federal Claims from considering Counts II or III of Siemens’ Second Amended Complaint,

whether those counts appear to have a probability of success or not at this time.

Relatedly, and contrary to defendant’s assertion in its Motion for Reconsideration

that the Judge previously assigned to the above captioned and numbered case “held that

the relief sought is dispositive of whether or not the task order bar applies,” the Judge

previously assigned to the above captioned and numbered case did not hold, in the

December 31, 2025 Opinion and Order in Siemens III, No. 24-1313, that the remedy

sought by Siemens is dispositive of whether the FASA task order bar applies. Rather, the

Judge previously assigned to the above captioned and numbered case stated that “[t]he

phrase ‘in connection with the issuance of a task order’ can be understood by looking to

the remedy sought” and, therefore, “[t]hough not dispositive, the remedy informs whether

the FASA bar applies.” Siemens III, No. 24-1313, 2025 WL 3774760, at *4 (citing SRA

Int’l, Inc. v. United States, 766 F.3d at 1414). When considering the remedy sought by

Siemens, the Judge previously assigned to the above captioned and numbered case

indicated that Siemens “does not seek a task order or to set aside a task order” and that

“the court could grant Siemens’s claims for reimbursement without ‘affecting’ or ‘altering’

the decision to not issue a task order.’” Siemens III, No. 24-1313, 2025 WL 3774760, at

*6. The Judge previously assigned to the above captioned and numbered case held that

“[b]ecause Siemens’s claims are not ‘directly and casually [sic] connected’ to the issuance

of a task order and the requested relief would leave the task order unaffected, the FASA

bar does not apply.” Id. (alterations and emphasis added).

As mentioned in the December 31, 2025 Opinion and Order, issued by the Judge

previously assigned to the above captioned and numbered case, Siemens III, No. 24-

32

1313, defendant’s FASA task order bar argument has been considered, and rejected, in

multiple other cases also brought by Siemens in the United States Court of Federal

Claims, challenging agency action involving various task order procurements under the

same energy savings performance contract program. See, e.g., Siemens I, No. 22-1870,

177 Fed. Cl. at 172; Siemens II, No. 22-698, 176 Fed. Cl. at 457; Siemens IV, No. 26-

282, 181 Fed. Cl. at 514. Although not binding, the other cases brought by Siemens in

the United States Court of Federal Claims, No. 22-1870, No. 22-698, and No. 26-282,

respectively, can be informative and suggest that defendant’s FASA task order bar

argument should not be successful in the above captioned and numbered case, Siemens

III, No. 24-1313, especially because this court is currently considering the FASA task

order bar issue on a motion for reconsideration. See W. Coast Gen. Corp. v. Dalton, 39

F.3d 312, 315 (Fed. Cir. 1994) (“Court of Federal Claims decisions, while persuasive, do

not set binding precedent for separate and distinct cases in that court.”). As discussed

above, in Siemens I, No. 22-1870, Siemens challenged government action arising from a

United States Army Corps of Engineers (the Army Corps) task order procurement for an

energy savings project at Spangdahlem Air Force Base in Germany. See Siemens I, No.

22-1870, 177 Fed. Cl. at 168. In Siemens I, No. 22-1870, Siemens was selected under

an IDIQ contract to conduct a Preliminary Assessment for an energy savings project at

Spangdahlem Air Force Base and, after reviewing Siemens’ Preliminary Assessment, the

Army Corps sent Siemens a Notice of Intent to Award a task order and instructed Siemens

to complete an Investment Grade Audit. See id. at 169. Thereafter, the Army Corps “gave

Siemens conflicting instructions on how to prepare the audit” and several other issues

“plagued its [Siemens’] efforts.” Id. at 170 (alteration added). The Army Corps eventually

cancelled the Spangdahlem Air Force Base project and Siemens filed suit in the United

States Court of Federal Claims to recover its bid preparation costs. See id. at 171. The

United States moved to dismiss Siemens’ claims in Siemens I, No. 22-1870, for lack of

subject matter jurisdiction pursuant to RCFC 12(b)(1), arguing, among other assertions,

that Siemens’ claims were barred by FASA. See id. at 172.

In Siemens I, No. 22-1870, the court denied the United States’ motion to dismiss.

See id. at 168. With respect to the FASA task order bar, the court held:

FASA does not bar Siemens’s suit. Like the plaintiff in Percipient[.ai],

Siemens does not “assert the wrongfulness of, or seek to set aside, any

task order.” Percipient[.ai, Inc. v. United States], 104 F.4th at 846-47.

Instead, Siemens pursues a purely monetary remedy: reimbursement of the

money it spent preparing the assessment and audits. see also

Percipient[.ai, Inc. v. United States], 104 F.4th at 851 (finding that FASA did

not apply to Percipient’s suit because its “requested relief would not alter”

the task order’s issuance); SRA Int’l, Inc. v. United States, 766 F.3d 1409,

1414 (Fed. Cir. 2014) (noting that the relief sought, although not dispositive,

informs whether FASA applies). Because Siemens does not challenge

either “the issuance of the task order” or “a government action . . . whose

wrongfulness would cause the task order’s issuance to be improper,”

Percipient[.ai, Inc. v. United States], 104 F.4th at 847, the bar is not

33

applicable.

Siemens I, No. 22-1870, 177 Fed. Cl. at 172-73 (alterations added; internal references

omitted; omissions in original).

Moreover, in Siemens II, No. 22-698, Siemens challenged government action

arising from a United States Department of the Navy (Navy) task order procurement for

energy savings projects at six overseas bases in Europe, Africa, and Southwest Asia.

See Siemens II, No. 22-698, 176 Fed. Cl. at 453. In Siemens II, No. 22-698, Siemens

was selected under an IDIQ contract to conduct Preliminary Assessments and energy

conservation audits for projects at various overseas bases, including, Souda Bay and

Camp Lemonnier, but later learned that the Navy had conducted parallel procurements

for those same projects at Souda Bay and Camp Lemonnier that were duplicative of

Siemens’ work. See id. at 454-55. The Navy eventually canceled the Souda Bay and

Camp Lemonnier projects and Siemens filed suit in the United States Court of Federal

Claims seeking to recover its bid preparation costs. See id. at 455. The United States

moved to dismiss Siemens’ claims in Siemens II, No. 22-698, for lack of subject matter

jurisdiction pursuant to RCFC 12(b)(1), arguing, among other assertions, that Siemens’

claims were barred by FASA. See id. at 456.

In Siemens II, No. 22-698, the court denied the United States’ motion to dismiss.

See id. With respect to the FASA task order bar, the court held:

FASA’s bar is inapplicable because FASA’s two requirements are not

satisfied. First, the U.S. Navy did not (nor could it) issue or propose to issue

the Solicitation. Second, this protest is not connected to the Solicitation

because Siemens neither seeks to set aside nor generally interfere with the

Solicitation. With neither FASA element satisfied, Siemens’ lawsuit is

therefore jurisdictionally proper under this case’s rare facts and must be

allowed to proceed.

Siemens II, No. 22-698, 176 Fed. Cl. at 453 (emphasis in original). As an initial matter,

the court found that FASA did not apply because the task order at issue in Siemens II,

No. 22-698, was “void from the start,” given that the Navy “had previously awarded a

contract to another corporation for the same services” sought from Siemens. Id. at 457.

Nevertheless, when expanding on the conclusion that the FASA task order bar did not

apply to Siemens’ claims in Siemens II, No. 22-698, the court stated:

The protest must be “in connection with” the proposed or issued task order

for the jurisdictional bar to apply. 10 U.S.C. § 3406(f). While, usually, “any

claim . . . made ‘in connection with the issuance or proposed issuance of a

task or delivery order’ is beyond our subject-matter jurisdiction,” Computer

World Servs. Corp. [v. United States], 173 Fed. Cl. [582,] 585 [(2024)]

(emphasis in original) (relying, in part, upon SRA Int’l, Inc. [v. United States],

766 F.3d at 1413), the Federal Circuit recently recognized an exception in

Percipient.ai, Inc. that applies here.

34

Percipient.ai, Inc.—like its sister Federal Circuit cases, SRA Int’l, Inc. and

22nd Century Techs.—links the ‘in connection with’ element to the form of

relief requested by a plaintiff. See SRA Int’l, Inc. [v. United States], 766 F.3d

at 1414 (reasoning that, while not “dispositive,” relief sought can inform the

purpose of a plaintiff’s claims); cf., e.g., Computer World Servs. Corp. [v.

United States], 173 Fed. Cl. at 586. For instance, Percipient.ai, Inc. did “not

challenge the issuance of” any task order specifically. Percipient.ai, Inc. [v.

United States], 104 F.4th at 849-51. Rather, it sought a revaluation of the

statutory language used by the agency to issue task orders generally. Id.

Siemens II, No. 22-698, 176 Fed. Cl. at 459 (alterations added; emphasis and omissions

in original). Accordingly, the court stated that “Siemens only seeks to be reimbursed after

the U.S. Navy, in violation of its statutory obligations, allegedly mislead [sic] Siemens

about its needs, making this case like Percipient.ai. Siemens’ lawsuit is therefore not in

connection with a task order, making FASA’s jurisdictional bar inapplicable.” Siemens II,

No. 22-698, 176 Fed. Cl. at 459 (alteration added; internal references omitted).

More recently, in Siemens IV, 26-282, Siemens challenged government action

arising from an Army Corps task order procurement for an energy savings project at Army

bases in Wiesbaden, Germany. See Siemens IV, No. 26-282, 181 Fed. Cl. at 509. In

Siemens IV, No. 26-282, Siemens was selected under an IDIQ contract to conduct a

Preliminary Assessment “for energy-savings initiatives at the Army Garrison in

Wiesbaden, Germany.” Id. at 511. After Siemens “submitted a 174-page PA [Preliminary

Assessment] outlining proposed energy-conservation measures and offering calculations

of potential energy savings,” the Army Corps issued Siemens a notice to proceed to

prepare a Detailed Feasibility Study. Id. (alteration added). The Detailed Feasibility Study

required Siemens to evaluate 21 proposed energy conservation measures (ECMs),

including “ECM 9.01,” which “constituted 25 percent of the estimated savings on the cost

of energy to the Army under the” energy savings performance contract. See id.

Subsequently, “a month before the DFS [Detailed Feasibility Study] was due, the [Army]

Corps provided Siemens with an updated notice to proceed,” which removed ECM 9.01.

Id. at 511-12 (alterations added). According to Siemens, the Army Corps “removed ECM

9.01 from the notice to proceed because the [Army] Corps failed to coordinate properly

with two Army organizations affected by the” energy savings performance contract. Id. at

512 (alteration added). “As a result of the conflicting interests of the two Army

organizations and the [Army] Corps’ failure to resolve the dispute between them over the

desirability of ECM 9.01 until late in the DFS process, Siemens expended significant

resources to develop a proposal that would become unviable once ECM 9.01 was

removed.” Id. (alteration added). The Army Corps eventually “decided not to move

forward with the project and cancelled the task order RFP.” Id.

In Siemens IV, No. 26-282, Siemens filed suit in the United States Court of Federal

Claims alleging that the Army Corps “violated its obligations under an implied-in-fact

contract to consider bids ‘fairly and honestly’” and that the Army Corps violated various

FAR provisions “requiring agencies to conduct business with integrity, fairness, and

35

openness, and to provide offerors a fair opportunity to compete.” See Siemens IV, No.

26-282, 181 Fed. Cl. at 509. The United States moved to dismiss Siemens’ claims in

Siemens IV, No. 26-282, for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1)

and for failure to state a claim upon which relief can be granted pursuant to RCFC

12(b)(6). See id. The United States argued that the United States Court of Federal Claims

lacked subject matter jurisdiction based on the FASA task order bar. See id. Although, as

discussed more fully below, the court ultimately dismissed Siemens’ Complaint in

Siemens IV, No. 26-282, for failure to state a claim pursuant to RCFC 12(b)(6), the court

found that “FASA does not bar Siemens’s claims for bid-preparation costs” for the

purpose of subject matter jurisdiction in the United States Court of Federal Claims. See

id. at 514. Specifically, the court stated:

The issue presented by the defendant here in its motion to dismiss for lack

of jurisdiction is the same one addressed in Siemens’s three previous cases

seeking ESPC bid-preparation costs, and the result is the same. FASA does

not bar Siemens’s claims for bid-preparation costs, and the motion to

dismiss under RCFC 12(b)(1) is denied.

***

As in its three other cases, Siemens is neither challenging the [Army] Corps’

decision not to award the task order nor seeking an order reinstating the

procurement, reopening the evaluation of its proposal, or awarding it the

task order. Any decision in connection with Siemens’s claims will have no

effect on the issuance or proposed issuance of a task order because

Siemens is not challenging either “the issuance of the task order” or “a

government action . . . whose wrongfulness would cause the task order’s

issuance to be improper.” Percipient.ai[, Inc. v. United States], 104 F.4th at

847.

Instead, Siemens seeks only to recover the costs it spent on the

procurement attributable to the alleged violation by the [Army] Corps of an

implied-in-fact contract and provisions of the FAR. Any award of

compensation for these costs does not require review of the decision not to

award Siemens the task order. The relief requested in the complaint would

leave the decision not to award the task order unaffected. Under

Percipient.ai and SRA, the nature of the relief sought by Siemens is

sufficient to sidestep the FASA bar.

Siemens IV, No. 26-282, 181 Fed. Cl. at 514-15 (alterations added; omission in original;

footnote omitted). Thus, in each of the four cases in which Siemens has challenged

agency action arising out of various task order procurements under the energy savings

performance contract program, and in which the United States has moved to dismiss for

lack of subject matter jurisdiction based on the FASA task order bar, four Judges of this

court have concluded that FASA does not bar Siemens’ claims. See, e.g., Siemens I, No.

36

22-1870, 177 Fed. Cl. at 172; Siemens II, No. 22-698, 176 Fed. Cl. at 457; Siemens III,

No. 24-1313, 2025 WL 3774760, at *6; and Siemens IV, No. 26-282, 181 Fed. Cl. at 514.

As noted above, the court in Siemens IV, No. 26-282, also found that Siemens’

Complaint in that case “fail[ed] to allege facts plausibly suggesting that the [Army] Corps

breached an implied-in-fact contract or violated its obligations under the FAR,” in part

because “[t]he complaint does not allege any conduct by the [Army] Corps that plausibly

suggests that the [Army] Corps did not treat Siemens fairly and honestly or took any

arbitrary or capricious action against Siemens.” Siemens IV, No. 26-282, 181 Fed. Cl. at

516-17 (alterations added). When distinguishing Siemens IV, No. 26-282, from the other

cases that Siemens had brought in the United States Court of Federal Claims with similar

facts and legal issues, including the above captioned and numbered case, Siemens III,

No. 24-1313, the Judge in Siemens IV, No. 26-282, stated:

Here, the allegations do not approach in severity the threshold that has

enabled Siemens to avoid dismissal of its prior ESPC cases. Siemens

makes no allegation that the [Army] Corps intentionally misled it, like the

“sham” in Heyer [Prods. Co. v. United States, 135 Ct. Cl. 63, 70, 140 F.

Supp. 409, 413 (Ct. Cl. 1956)]. Siemens does not allege that it incurred

costs because the [Army] Corps had awarded the contract to another

provider or concocted “false procurement needs.” See Siemens I[I], [No. 22-

698,] 176 Fed. Cl. at 457. Siemens also does not allege that the [Army]

Corps gave conflicting instructions or requested that Siemens proceed over

objections that further work would incur additional costs.

Siemens IV, No. 26-282, 181 Fed. Cl. at 517 (alterations added).

Indeed, with respect to the merits of Siemens’ claims, there are key factual

allegations which set the Siemens IV, No. 26-282, case apart from the case currently

before the court, Siemens III, No. 24-1313. In Siemens IV, No. 26-282, Siemens’

Complaint “contain[ed] no allegations that the [Army] Corps misled Siemens, acted

dishonestly, or otherwise engaged in conduct that improperly induced Siemens to incur

additional costs.” Siemens IV, No. 26-282, 181 Fed. Cl. at 517 (alterations added). In the

case currently before the court, Siemens III, No. 24-1313, however, Siemens has alleged

in its Second Amended Complaint that the DLA engaged in wrongful conduct which

allegedly caused Siemens “to needlessly incur $2,835,412 in development costs.”

Moreover, the court in Siemens IV, No. 26-282, found that “[t]he nature of Siemens’s

putative implied-in-fact contract fits neatly under the applicable provision of the express

contract, for which no breach is alleged” because the energy savings performance

contract at issue in Siemens IV, No. 26-282, stated that “‘[t]he Government will not be

responsible for any costs incurred, such as proposal preparation costs or the costs

incurred in conducting the Feasibility Study, unless a [task order] is awarded or authorized

by the [contracting officer].’” Siemens IV, No. 26-282, 181 Fed. Cl. at 511, 516 (first

alteration added; other alterations in original). In contrast, the IDIQ Contract at issue in

the case currently before the court, Siemens III, No. 24-1313, permitted the ordering

agency contracting officer to exercise discretion in deciding whether or not to reimburse

37

proposal preparation costs even if no task order was issued. Specifically, subsection

H.5.1(D) of the IDIQ Contract at issue in Siemens III, No. 24-1313, stated: “The ordering

agency will not be responsible for any costs incurred, such as proposal preparation costs

or costs incurred in preparing the IGA, unless a TO is awarded or such costs are

otherwise authorized for payment by the ordering agency CO.” (emphasis added).

Additionally, for the current review of defendant’s Motion for Reconsideration in Siemens

III, No. 24-1313, it is important to recognize that the Judge previously assigned to the

above captioned and numbered case found that Siemens had plausibly stated a claim in

Count II of Siemens’ Second Amended Complaint for breach of an implied-in-fact contract

because defendant “cannot assert that the IDIQ Contract does not apply to DLA’s conduct

but bars the implied-in-fact contract that attaches to procurements to treat offerors fairly.”

Siemens III, No. 24-1313, 2025 WL 3774760, at *6. Moreover, defendant stated in its

Motion for Reconsideration that it “do[es] not seek reconsideration of the Court’s holding

on that issue” at this time. (alteration added). Therefore, just because the court in Siemens

IV, No. 26-282, found that Siemens failed to plausibly state a claim in that case, No. 26-

282, gives this court no reason to revisit, on defendant’s current Motion for

Reconsideration, the decision of the Judge previously assigned to the above captioned

and numbered case, Siemens III, No. 24-1313, which denied defendant’s RCFC 12(b)(6)

motion to dismiss Counts II and III of Siemens’ Second Amended Complaint, whether

those counts appear to have a probability of success or not at this time.

In its Motion for Reconsideration, defendant also argues that the Judge previously

assigned to the above captioned and numbered case, Siemens III, No. 24-1313,

improperly relied upon Percipient.ai, Inc. v. United States, 104 F.4th 839, the vacated

United States Court of Appeals for the Federal Circuit’s panel opinion, as well as “two

mistaken rulings” by other Judges of the United States Court of Federal Claims in

Siemens I, No. 22-1870, and Siemens II, No. 22-698. 21 As discussed more fully above,

in Percipient.ai, Inc. v. United States, 104 F.4th 839, a panel of the United States Court

of Appeals for the Federal Circuit held that “the FASA task order bar does not preclude

the Court of Federal Claims from exercising jurisdiction over Percipient’s protest, which

does not assert the wrongfulness of, or seek to set aside, any task order.” Id. at 847.

Subsequently, however, the United States Court of Appeals for the Federal Circuit issued

an Order granting a rehearing en banc and vacating its earlier panel decision in the

Percipient.ai case. See Percipient.ai, Inc. v. United States, 121 F.4th at 1312. In the Order

granting a rehearing en banc in the Percipient.ai case, the United States Court of Appeals

for the Federal Circuit stated that “[t]he panel opinion in Percipient.ai, Inc., v. United

States, 104 F.4th 839 (Fed. Cir. 2024), is vacated” and requested the parties to file new

briefs “limited to standing under 28 U.S.C. § 1491(b)(1).” Percipient.ai, Inc. v. United

States, 121 F.4th at 1312 (alteration added). Significantly, in the Order granting a

21 As indicated above, Siemens IV, No. 26-282, had not yet been decided at the time the

December 31, 2025 Opinion and Order was issued by the Judge previously assigned to

the above captioned and numbered case, Siemens III, No. 24-1313. Nor had Siemens IV,

No. 26-282, been decided at the time defendant submitted its Motion for Reconsideration

in the case currently before this court, Siemens III, No. 24-1313.

38

rehearing en banc in the Percipient.ai case, the United States Court of Appeals for the

Federal Circuit also stated that it

will not revisit and does not require additional briefing on the issues of task

bar under the Federal Acquisition Streamlining Act of 1994 (FASA), 10

U.S.C. § 3406(f); subject matter jurisdiction under 28 U.S.C. § 1491(b)(1);

and timeliness of claims under Blue & Gold Fleet, L.P. v. United States, 492

F.3d 1308 (Fed. Cir. 2007).

Percipient.ai, Inc. v. United States, 121 F.4th at 1312. A vacated Percipient.ai panel

decision issued before the rehearing en banc is not precedential. See Hardy v. United

States, 153 Fed. Cl. 287, 292 (2021) (“‘[A] decision that has been vacated has no

precedential authority whatsoever.’” (alteration in original) (quoting Durning v. Citibank,

N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991); and citing 47 AM. JUR. 2D Judgments § 676

(2009))). Whether the vacated Percipient.ai panel decision carries persuasive value or

guidance as dicta is a separate, and more difficult, question. As stated above, when the

United States Court of Appeals for the Federal Circuit granted a rehearing en banc in the

Percipient.ai case, the United States Court of Appeals for the Federal Circuit did not

appear to take issue with the panel’s earlier holding that the FASA task order bar did not

apply to Percipient’s bid protest, and, instead, explicitly stated that it “will not revisit and

does not require additional briefing on the issues of task bar under the Federal Acquisition

Streamlining Act of 1994 (FASA), 10 U.S.C. § 3406(f) . . . .” Percipient.ai, Inc. v. United

States, 121 F.4th at 1312 (omission added). Moreover, in the final en banc decision, the

United States Court of Appeals for the Federal Circuit did not reexamine the panel’s

earlier holding on the FASA task order bar issue, see Percipient.AI, Inc. v. United States,

153 F.4th at 1230 n.5, apparently leaving in place the panel’s earlier determination that

the FASA task order bar did not apply to Percipient’s bid protest.

In its current Motion for Reconsideration in the above captioned and numbered

case, defendant cites Avenal v. United States, 100 F.3d 933, 938 n.3 (Fed. Cir. 1996), for

the broad proposition that “reliance on a vacated decision is misguided from the outset.”

In Avenal v. United States, the United States Court of Appeals for the Federal Circuit

stated, briefly in a footnote:

Plaintiffs’ heavy reliance, particularly in their reply brief, on the panel opinion

in Preseault v. United States, 66 F.3d 1167 (Fed. Cir. 1995), and particularly

the role of federal law in defining state property rights, is of course not

persuasive since that opinion has since been vacated by vote of the in banc

court. See [Preseault v. United States,] 66 F.3d 1190 (Fed. Cir. 1995).

Avenal v. United States, 100 F.3d at 938 n.3 (alteration added). There is, however, a key

distinction between the vacated Preseault v. United States panel decision and the

vacated Percipient.ai panel decision relevant to the issue currently before the court in the

above captioned and numbered case. In the Preseault v. United States case, the United

States Court of Appeals for the Federal Circuit granted a rehearing en banc without

limiting the scope of the rehearing en banc to a particular issue in the case, and,

39

ultimately, reversed and remanded the case to the trial court. See Preseault v. United

States, 66 F.3d 1167 (Fed. Cir.), reh’g en banc granted, judgment vacated, 66 F.3d 1190

(Fed. Cir. 1995), and on reh’g en banc, 100 F.3d 1525 (Fed. Cir. 1996). In contrast, in the

Percipient.ai case, as discussed above, the United States Court of Appeals for the

Federal Circuit expressly limited the scope of the rehearing en banc to interested-party

“standing under 28 U.S.C. § 1491(b)(1)” and expressly stated it “will not revisit and does

not require additional briefing on” the FASA task order bar issue. Percipient.ai, Inc. v.

United States, 121 F.4th at 1312. Moreover, in the final en banc decision, the United

States Court of Appeals for the Federal Circuit did not reexamine the panel’s previous

ruling on the FASA task order bar and did not remand the case to the trial court. See

Percipient.AI, Inc. v. United States, 153 F.4th at 1228.

Accordingly, the United States Court of Appeals for the Federal Circuit panel’s

interpretation of the FASA task order bar in Percipient.ai v. United States, 104 F.4th 839,

albeit technically not binding, may have some persuasive value for this court as an

indication of the United States Court of Appeals for the Federal Circuit’s reasoning on the

scope of the FASA task order bar. In a footnote in Siemens I, No. 22-1870, the court

stated:

In Percipient[.ai], the Federal Circuit granted the government’s petition for

rehearing en banc and vacated the panel opinion, reinstating the appeal.

Percipient[.ai], 121 F.4th at 1312. The Federal Circuit limited the rehearing

to Percipient[.ai]’s standing component and instructed that “[t]he court will

not revisit and does not require additional briefing on the” FASA bar. Id.

Thus, while the en banc court’s order deprives the panel’s “opinion of

precedential effect,” O’Connor v. Donaldson, 422 U.S. 563, 577 n.12, 95

S.Ct. 2486, 45 L.Ed.2d 396 (1975), the panel opinion remains “at least

persuasive” authority for our court, Crowson v. Washington County, 983

F.3d 1166, 1187 n.10 (10th Cir. 2020).

Siemens I, No. 22-1870, 177 Fed. Cl. at 172 n.7 (first, second, and third alteration added;

fourth alteration in original). Similarly, in a footnote in Siemens IV, No. 26-282, the court

stated that, “[a]lthough the [Percipient.ai] panel opinion has no precedential effect, it

remains persuasive authority, given that the en banc Federal Circuit declined to

reconsider the FASA issue.” Siemens IV, No. 26-282, 181 Fed. Cl. at 514 n.1 (alterations

added) (citing Radiance Techs. Inc. v. United States, 174 Fed. Cl. at 202 n.3). In Radiance

Technologies Inc. v. United States, although procedurally a case different from the case

currently under consideration, when discussing the FASA task order bar, the court stated:

The Percipient.ai[, 104 F.4th 839] opinion made clear that the Federal

Circuit was identifying a path that sidestepped FASA in a scenario not

covered by its previous FASA task-order decisions, 22nd Century

Technologies[, Inc. v. United States, 57 F.4th 993] and SRA International[,

Inc. v. United States, 766 F.3d 1409]. A protest can avoid the task-order bar

when “the requested relief would not alter [the agency’s] issuance” of the

task order. Percipient.ai, 104 F.4th at 851.

40

Radiance Techs. Inc. v. United States, 174 Fed. Cl. at 204 (first, second, and third

alteration added; fourth alteration in original). In a footnote, the court in Radiance

Technologies Inc. v. United States stated:

On November 22, 2024, the Federal Circuit granted en banc rehearing in

Percipient.ai. The panel opinion was vacated. Rehearing is limited to the

issue of standing under 28 U.S.C. § 1491(b)(1). In granting rehearing, the

Federal Circuit went on to note that the en banc court “will not revisit and

will not require additional briefing on the issue[ ] of task bar under [FASA] .

. . .” The implication is that if the full Federal Circuit reinstates the panel’s

standing decision, it will then reinstate the panel’s FASA analysis.

Therefore, even though the panel decision in Percipient.ai has been

vacated, its FASA analysis will be applied to Radiance’s claim, as there is

no question that Radiance has statutory standing.

Radiance Techs. Inc. v. United States, 174 Fed. Cl. at 202 n.3 (alterations and omission

in original; internal citations omitted). Moreover, in the vacated panel decision in

Percipient.ai, when addressing the FASA task order bar, the United States Court of

Appeals for the Federal Circuit stated:

FASA provides that a “protest is not authorized in connection with the

issuance or proposed issuance of a task or delivery order.” 10 U.S.C.

§ 3406(f)(1). Consistent with the statutory focus on “issuance” and this

court’s decision in SRA International, Inc. v. United States, 766 F.3d 1409,

1413 (Fed. Cir. 2014), we interpret this language to mean that a protest is

barred if it challenges the issuance of the task order directly or by

challenging a government action (e.g., waiver of an organizational conflict

of interest) whose wrongfulness would cause the task order’s issuance to

be improper.

See Percipient.ai, Inc. v. United States, 104 F.4th at 847. This further suggests that the

United States Court of Appeals for the Federal Circuit’s reasoning on the FASA task order

bar issue, as expressed in the vacated panel decision, can be considered persuasive

because it is not in conflict with the binding SRA International, Inc. v. United States case.

Therefore, contrary to defendant’s arguments in its Motion for Reconsideration, it was not

improper, and it was not a manifest error of law, for the Judge previously assigned to the

above captioned and numbered case, Siemens III, No. 24-1313, to review the reasoning

in the United States Court of Appeals for the Federal Circuit’s panel opinion in

Percipient.ai, v. United States, 104 F.4th 839, in his December 31, 2025 Opinion and

Order. See Banks v. United States, 84 Fed. Cl. at 292 (“The moving party must support

its motion for reconsideration by a showing of exceptional circumstances justifying relief,

based on a manifest error of law or mistake in fact.”); see also 1100 W. Ewing Assoc.,

LLC v. United States, 139 Fed. Cl. at 25 (stating that a motion for reconsideration under

either RCFC 54(b) or RCFC 59(a) “should only be granted upon the showing of

‘exceptional circumstances justifying relief, based on manifest error of law or mistake in

41

fact.’” (quoting Webster v. United States, 93 Fed. Cl. at 679 (citing Henderson Cnty.

Drainage Dist. No. 3 v. United States, 55 Fed. Cl. at 337))).

Finally, in its Motion for Reconsideration, defendant also asserts that the

December 31, 2025 Opinion and Order, issued by the Judge previously assigned to the

above captioned and numbered case, would increase the number of bid protests in the

United States Court of Federal Claims, contrary to the intent of Congress. Defendant

argues that the December 31, 2025 Opinion and Order is

inconsistent with Congress’s policy when enacting FASA to “revise and

simplify the bid protest process with a view towards reducing the number of

protests that are filed.” S.REP. NO. 130-259, at 7, reprinted in 1994

U.S.C.C.A.N. 2604 (emphasis added). Treating a protestor’s requested

relief as dispositive would have the opposite effect. Indeed, such a test

creates an exception to FASA’s task order bar that allows a protestor to

avoid the bar by limiting its requested relief to bid preparation costs, thereby

obtaining judicial review of agency decisions that would otherwise be clearly

“in connection with the issuance or proposed issuance of a task order.” 10

U.S.C. § 3406(f).

(emphasis in original). Siemens, to the contrary, responds that “the Government

improperly seeks to extend FASA beyond what Congress authorized when it barred

protests ‘in connection with the issuance or proposed issuance of a task order.’”

(emphasis in Siemens’ brief). Siemens continues, “[i]f Congress had intended the FASA

bar to have the sweeping effect that the Government wishes, then it [Congress] would not

have written the provision as it did.” (alterations added). Siemens concludes, “[t]he

Government’s policy argument that the Court’s holding here would increase the number

of bid protests is a matter for Congress to decide, not this Court.” (alteration added).

As an initial matter, as explained above, the Judge previously assigned to the

above captioned and numbered case, Siemens III, No. 24-1313, did not hold that the

remedy sought is always dispositive of whether the FASA task order bar applies, but

rather stated that the remedy sought can inform whether the FASA bar applies. See

Siemens III, No. 24-1313, 2025 WL 3774760, at *4 (citing SRA Int’l, Inc. v. United States,

766 F.3d at 1414). In accordance with the language of the statute at 10 U.S.C. § 3406(f),

and United States Court of Appeals for the Federal Circuit discussions of the FASA task

order bar issue, however, the salient question remains whether the challenged agency

decision was “directly and causally connected” to the “issuance or proposed issuance” of

a task order. See 10 U.S.C. § 3406(f); see also SRA Int’l Inc. v. United States, 766 F.3d

at 1413; FYI – For Your Information, Inc. v. United States, 170 Fed. Cl. at 601 (“[I]n

applying SRA International, the salient question is whether the challenged agency

decision ‘is directly and causally connected to [the] issuance of [a task order],’ while

recognizing that ‘a temporal disconnect may, in some circumstances, help to support the

non-application of the FASA bar[.]’” (first alteration added; other alterations in original)

(citing SRA Int’l, Inc. v. United States, 766 F.3d at 1413)). Despite defendant’s policy

speculations regarding the legislative history of the FASA task order bar, “legislative

42

history is not the law” and “cannot displace what the law’s terms clearly direct.” Martin v.

United States, 605 U.S. 395, 397 (2025). The FASA task order bar applies to protests “in

connection with the issuance or proposed issuance” of a task order, not to all protests “in

connection with” a task order, as defendant’s broad interpretation would suggest. See 10

U.S.C. § 3406(f)(1) (emphasis added). Additionally, if the court were to accept

defendant’s broad interpretation of the FASA task order bar, other challengers, like

Siemens in the above captioned and numbered case, could be left without a forum to try

to recover any costs incurred while working in a situation such as the situations presented

in Siemens I, No. 22-1870, Siemens II, No. 22-698, Siemens III, No. 24-1313, and

Siemens IV, No. 26-282. 22 Also, defendant’s current Motion for Reconsideration is not the

appropriate time to raise, for the first time, a public policy argument. See Alpha I, L.P. ex

rel. Sands v. United States, 86 Fed. Cl. at 573.

As indicated above, in Banks v. United States, a Judge of the United States Court

of Federal Claims stated that, in general, “[t]he moving party must support its motion for

reconsideration by a showing of exceptional circumstances justifying relief, based on a

manifest error of law or mistake in fact,” which is critical regarding how to view the current

Motion for Reconsideration filed by defendant in Siemens III, No. 24-1313. See Banks v.

United States, 84 Fed. Cl. at 292 (alteration added). Defendant has failed to do so here.

Ultimately, defendant’s Motion for Reconsideration is an attempt to rehash the same

arguments that have been considered and rejected in earlier proceedings by the Judge

previously assigned to the above captioned and numbered case, Siemens III, No. 24-

1313, which is insufficient to support a motion for reconsideration. See Sikorsky Aircraft

Corp. v. United States, 171 Fed. Cl. at 332-33 (“The government may not now invoke

RCFC 54(b) to revisit arguments that have been previously raised and, in due course,

rejected.” (citing Haggart v. United States, 133 Fed. Cl. at 573; and Haddad v. United

States, 152 Fed. Cl. at 18 n.12)). As explained in the December 31, 2025 Opinion and

Order issued by the Judge previously assigned to the above captioned and numbered

case, Siemens III, No. 24-1313, and now reiterated in this Opinion on defendant’s Motion

for Reconsideration, FASA does not bar Counts II or III of Siemens’ Second Amended

Complaint because Siemens’ claims are not “directly and causally related” to the

“issuance or proposed issuance” of the Goodfellow Air Force Base task order under the

limitations in the statute at 10 U.S.C. §3406(f) and articulated by previous court decisions.

See SRA Int’l, Inc. v. United States, 766 F.3d at 1413. Contrary to defendant’s assertions

22 Although it would not alter the outcome in the above captioned and numbered case,

Siemens III, No. 24-1313, the court notes that offerors seeking recovery of bid preparation

and proposal costs incurred while working on a task order procurement may file a protest

at the GAO in some cases, provided that the task order at issue is valued in excess of

$35,000,000.00 for defense agencies, see 10 U.S.C. § 3406(f)(1)(B), or valued in excess

of $10,000,000.00 for civilian agencies. See 41 U.S.C. § 4106(f)(1)(B); see also 48 C.F.R.

§ 33.104 (2025) (“If the GAO determines that a solicitation for a contract, a proposed

award, or an award of a contract does not comply with a statute or regulation, the GAO

may recommend that the agency pay to an appropriate protester the cost, exclusive of

profit, of filing and pursuing the protest, including reasonable attorney, consultant, and

expert witness fees, and bid and proposal preparation costs.”).

43

in its Motion for Reconsideration, the Judge previously assigned to the above captioned

and numbered case, Siemens III, No. 24-1313, did not err when considering the remedy

sought by Siemens as relevant to whether the FASA task order bar applies. Nor did the

Judge previously assigned to the above captioned and numbered case err when

reviewing the reasoning articulated by the United States Court of Appeals for the Federal

Circuit in the vacated Percipient.ai, Inc. v. United States, 104 F.4th 839, panel decision,

as it relates to the FASA task order bar, which the United States Court of Appeals for the

Federal Circuit did not revisit on its rehearing en banc. See Percipient.AI, Inc. v. United

States, 153 F.4th at 1230 n.5. As indicated above, the court has broad discretion to

determine whether or not to grant reconsideration under RCFC 54(b). See Yuba Nat.

Res., Inc. v. United States, 904 F.2d at 1583; see also Loveridge v. United States, 150

Fed. Cl. at 126. On the record before the court in the above captioned and numbered

case, Siemens III, No. 24-1313, the court finds that justice does not require

reconsideration of the December 31, 2025 Opinion and Order, issued by the Judge

previously assigned to the above captioned and numbered case, which denied

defendant’s motion to dismiss Counts II and III of Siemens’ Second Amended Complaint.

See Loveridge v. United States, 150 Fed. Cl. at 126.

CONCLUSION

For the reasons described above, defendant’s Motion for Reconsideration is

DENIED.

IT IS SO ORDERED.

s/Marian Blank Horn

MARIAN BLANK HORN

Judge

44