Square One Armoring Service, Inc. v. United States

In the United States Court of Federal Claims

No. 15-340 C

(E-Filed: September 28, 2015) 1

)

SQUARE ONE ARMORING SERVICE, INC., )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, ) Post-Award Bid Protest; Pre-

) Award Bid Protest; Standing;

Defendant, ) Justiciability; Mootness;

) Ripeness

and )

)

O’GARA-HESS & EISENHARDT ARMORING )

CO., LLC )

)

Defendant-Intervenor. )

)

Cynthia S. Malyszek, Westlake Village, CA, for plaintiff.

Nicholas Jabbour, 2 Trial Attorney, with whom were Benjamin C. Mizer, Principal

Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Donald E.

Kinner, Assistant Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, DC, for defendant. Charles G. McCarthy, Office of

Regional Counsel, General Services Administration, San Franciso, CA, of counsel.

1

This Opinion and Order was originally filed under seal on September 17, 2015.

See ECF No. 28. The court requested the parties to file a motion by Friday, September

25, 2015, if either party believed that the Opinion and Order should be redacted before

publication. Because neither party has filed such a motion, the Opinion and Order is

published in its entirety.

2

Subsequent to the filing of the briefing in this case, Cameron Cohick replaced

Nicholas Jabbour as the attorney of record. See ECF No. 27.

1

Barbara A. Duncombe, Dayton, OH, for defendant-intervenor. 3

OPINION and ORDER

CAMPBELL-SMITH, Chief Judge

This is a bid protest filed by Square One Armoring Service, Inc. (Square One or

plaintiff) against the General Services Administration (GSA or defendant). Compl. ¶ 1,

ECF No. 1, Apr. 2, 2015. Square One challenges as arbitrary and capricious GSA’s

evaluation of proposals submitted in response to a Solicitation for the procurement of

armored vehicles and its award of the Solicitation to defendant-intervenor, O’Gara-Hess

& Eisenhardt Armoring Co., LLC (O’Gara). See id. ¶¶ 1–3.

Prior to the filing of Square One’s complaint, GSA agreed to take corrective action

by cancelling the award to O’Gara, revising the Solicitation, and inviting offerors to re-

submit proposals. See id. ¶ 9. Square One also challenges the proposed corrective

action. Id. ¶¶ 1, 4.

The parties submitted cross-motions for judgment on the administrative record

(AR) in accordance with United States Court of Federal Claims Rule (RCFC) 52.1(c). 4

See Pl.’s Mot. J. AR (Pl.’s Mot.), ECF No. 16, May 4, 2015; Def.’s Mot. J. AR (Def.’s

Mot.), ECF No. 20, May 21, 2015; see also Pl.’s Resp., ECF No. 21, June 5, 2015; Def.’s

Reply, ECF No. 24, June 15, 2015. Oral argument was not deemed necessary by the

court.

For the reasons explained below, plaintiff’s motion is DENIED, and defendant’s

cross-motion is GRANTED.

I. Background

A. The Solicitation

On May 12, 2014, GSA issued Request for Quotations (RFQ) 873823 for the

procurement of armored vehicles on behalf of the Department of Defense (DOD), Army

Budget Office, in reference to Solicitation No. ID09140021 (the Solicitation). 5 Tab 11,

3

Counsel for defendant-intervenor did not file any briefing in this case.

4

The government filed the administrative record (AR) under seal on April 17, 2015

in the form of a CD-ROM. See Def.’s Notice of Filing AR, ECF No. 13.

5

GSA initially awarded the task order to O’Gara-Hess & Eisenhardt Armoring Co.,

LLC (O’Gara). Tab 1, AR 4. Square One filed a bid protest with the Government

Accountability Office challenging the award, and GSA decided to take corrective action.

2

AR 62 (RFQ). The Solicitation was directed to GSA Multiple Award Schedule (MAS)

Schedule 84 contract holders, who provide “Total Solutions for Law Enforcement,

Security, Facilities Management, Fire, Rescue, Clothing, Marine Craft and

Emergency/Disaster Response.” 6 Id. GSA intended to award a firm fixed price task

order to furnish and armor thirty vehicles in the base year and forty-eight vehicles in each

of four one-year option periods, for a total of 222 vehicles. Id.; Tab 11c, AR 116–17.

Specifically, GSA sought the following vehicles with either B4+ or B6 level of ballistic

protection:

See id.; Compl. ¶ 12. GSA terminated the task order with O’Gara for convenience,

cancelled the solicitation, and resolicited the procurement via the May 12, 2014 RFQ.

Tab 1, AR 4; Compl. ¶ 12.

6

The Multiple Award Schedule (MAS) program, which is also referred to as the

Federal Supply Schedule (FSS) program, “is directed and managed by GSA and provides

[f]ederal agencies . . . with a simplified process for obtaining commercial supplies and

services at prices associated with volume buying.” FAR 8.402(a); see Tab 1, AR 3 (“The

Federal Supply Schedule Program (FSS) affords federal agencies the ability to procure

commonly used commercial items, such as the vehicles, customization and delivery

services needed within this acquisition from prequalified sources at or below

commercially available prices for an extended period of time.”).

Under the MAS program, GSA awards indefinite delivery base contracts to

provide supplies and services at stated prices for fixed periods of time. FAR 8.402(a). In

Sharp Electronics Corp. v. McHugh, the Federal Circuit succinctly explained how the

MAS program operates:

GSA “acts as the contracting agent” for the federal government, negotiating

base contracts with suppliers of commercial products and services. Each

supplier publishes an Authorized Federal Supply Schedule Pricelist listing

the items offered pursuant to its base contract, as well as the pricing, terms,

and conditions applicable to each item. See FAR 8.402(b). Individual

agencies issue purchase orders under the base contract as needed. The terms

of the base contract, referred to as the “schedule” contract, are incorporated

by reference into the order.

707 F.3d 1367, 1369 (Fed. Cir. 2013) (some internal citations omitted).

Orders placed against schedule contracts are “considered to be issued using full

and open competition” and are not subject to FAR 15, which governs negotiated

procurements. See FAR 8.404(a). Thus, agencies are advised that when “placing orders

under Federal Supply Schedule contracts . . . , [agencies] shall not seek competition

outside of the Federal Supply Schedules.” Id.

3

• Toyota Landcruiser; 200 Series SUVs, 4x4, LHD, Petro

• Toyota Landcruiser; 200 Series SUVs, 4x4, LHD, Diesel

• Chevrolet Suburban SUV; ½ Ton SUVS, 1500, 4x4

• Ford Econoline Passenger Van; E-350 XL, 2WD

• Toyota Hilux Pick-Up; Turbo Diesel 4x4

Tab 11, AR 62; Tab 11b, AR 81.

The Bill of Materials (BOM) offered detailed specifications for each of the five

vehicles. Each vehicle was required to have “Standard [Original Equipment

Manufacturer (OEM)] Accessories,” see, e.g., Tab 11b, AR 91, as well as “Additional

Required Accessories,” see, e.g., id. at 95. Under the latter category, and at issue in this

protest, are the requirements that each vehicle be equipped with three spare keys, and that

the Toyota Landcruisers (both Petro and Diesel) be equipped with push-button ignitions

while the Chevrolet Suburban SUV, Ford Econoline Passenger Van, and Toyota Hilux

Pick-Up be equipped with keyed ignitions. Id. at 95, 100, 105, 110, 115.

The Solicitation advised that “[t]he Government intends to award one task order to

the responsible Offeror whose quote is determined to be the best value to the Government

utilizing a Lowest Price, Technically Acceptable (‘LPTA’) approach from a responsible

Offeror with acceptable past performance.” Tab 11, AR 66; see also id. at 72. To be

eligible for award, “[o]fferors [were] required to meet all solicitation requirements, such

as terms and conditions and technical requirements, as outlined in the GSA Multiple

Award Schedule (MAS), Schedule 84.” Id. at 66. The Solicitation further advised that

“the Government reserve[d] the right to award no task order at all, depending on the

quality of quotations(s) [sic] submitted and the availability of funds.” Id.

Offerors would be evaluated according to the following factors: Technical

Acceptability, Past Performance, and Price. Id. at 67. The Technical Acceptability

Factor was comprised of the following Sub-Factors: Compliance with Requirements

(Sub-Factor 1a), Ballistic Certifications (Sub-Factor 1b), Armoring Facility Locations

(Sub-Factor 1c), and Warranty/Maintenance (Sub-Factor 1d). Id. An Unacceptable

rating for any of the Sub-Factors would result in an Unacceptable rating for the entire

Technical Factor—a rating that would render an offeror ineligible for award. Id.

The Solicitation advised that Sub-Factor 1a, which is at issue in this protest, would

be evaluated based on the following criteria:

Offerors shall provide a line item list of all proposed items to successfully

demonstrate they meet or exceed the requirements in section 6.0 of the

BOM. Additionally, each item proposed shall include an easily

identifiable, cross referenced MAS Schedule 84 part number, to

4

demonstrate that all items proposed are available on the Offer’s GSA

Multiple Award Schedule (MAS), Schedule 84 Contract at the time the

Offeror’s quote is submitted to the Government.

Id. at 68.

B. Square One’s Offer and Clarification Questions

Square One submitted a timely offer on July 11, 2014. See Tab 27, AR 420–576.

Under the “Additional Required Accessories” heading of its Technical Proposal, Square

One listed the following for each of the five vehicles:

Spare Keys (3 keys total per vehicle) (Included with OEM vehicle,

available as an add-on under GSA contract)

Ignition: All vehicles will have a push-button ignition (Included with

OEM vehicle, available as an add-on under GSA contract)

Id. at 430, 437, 444, 452, 460.

On September 16, 2014, a GSA representative sent Square One clarification

questions regarding Square One’s proposal via email. Tab 31, AR 589. The email stated

in relevant part:

For each of the proposed vehicles, your quote states that the 3 spare keys and

the push-button ignition are “included with the OEM vehicle, available as an

add-on under GSA contract.” The government has the following clarification

questions:

1. Provide the MAS Schedule 84 part number for the following items

included in your proposed solution:

a. Spare Keys (3 keys total per vehicle).

b. Ignition: All vehicles will have a push-button ignition.

2. In addition to providing MAS Schedule 84 part numbers, if the part is

“Included as an OEM item,” please provide a copy of the vehicle’s

OEM specification demonstrating the part is included. If the part is

“Available as an add-on under GSA contract” please provide

documentation demonstrating the part is currently available on Square

One’s GSA Schedule 84 contract.

Id.

5

Square One responded three days later, also by email:

Items such as the spare keys and push button ignition do not have MAS

Schedule 84 part numbers because they cannot be sold alone under our GSA

contract. These items in particular are specific option items that each

government customer may or may not require their OEM vehicles to contain.

Our GSA contract is for armor packages and each armor package we offer

has a part number. We also offer various optional add-on items, such as the

OEM vehicle itself, spare parts, winches, etc, that can be added to the armor

package, but cannot be purchased as stand-alone items off of our GSA

contract. (Some government agencies provide their own OEM vehicles to

be armored, which is why we list them as an option and not part of the armor

package itself.)

As an example, please refer to the attached Advantage screen shot image of

one of the armor packages offered in response to this RFQ (attachment

contains pricing). You will note the base product part number is

“CENB4+P-TOYLC-200”, and the item name is “CEN B4+ Land Cruiser

200 w/ partition”. There is also a list of ten Options Available which can be

added to the base product. Among these is the OEM vehicle. Please refer to

the second attachment titled PP 3 GSA Approved Price List (attachment

contains pricing). This is a copy of Square One’s price list approved and

signed by GSA on July 2, 2014. It was submitted as part of our Price

Proposal response to this RFQ, and a redacted (prices removed) version was

submitted as part of our Technical Proposal for part number cross

referencing. Please see the top of page 2 where there is a note for Group 4

(OEM Vehicles). This note states, “The OEM prices shown below reflect

current MSRP (Manufacturer Suggested Retail Price) for each make and

model, for budgeting purposes. At the time of RFQ, Square One may be

able to locate vehicles priced significantly lower, depending on each

customer's desired OEM specifications. Customers are encouraged to

submit detailed/ desired specifications with each RFQ in order to ensure the

best possible price. OEM vehicles may only be purchased with an Armor

Package.” For each vehicle model we offer, there is an “up to [max price

listed], depending on desired features and options listed on RFQ for OEM

vehicle.” The OEM vehicle prices vary on a case by case basis, depending

on what OEM features and/or OEM upgrades each customer

desires/requires (fuel type, transmission type, upholstery type, steel or

aluminum wheels, extra keys, etc).

The vehicles Square One would procure for this project would be equipped

with 3 keys total, as required by the RFQ. Attached please find OEM vehicle

6

specification sheets for each vehicle type, as provided by our vehicle

suppliers. There is no MAS Schedule 84 part number for the keys as they

are considered a feature of the OEM vehicle, which can be purchased as an

option only under our current GSA schedule. Please note that all items on

our proposal which were listed as “included as an OEM item” (car alarm,

radio, and keys) are marked with an asterisk on the attached spec sheets.

Regarding the push-button ignition, we have identified a

typographical/formatting error in our proposal, wherein each vehicle listed

on the proposal is described as having a push button ignition. Square One

confirms we can and would comply with the RFQ’s specifications which are:

the Toyota Land Cruisers (petrol) have push-button ignition, the Chevy

Suburbans have key ignition, the Ford vans have key ignition, the Toyota

Hilux have key ignition, and the Toyota Land Cruiser (diesel) have push-

button ignition. Alternatively, should the government accept our proposal

as originally submitted which reflected all models being equipped with push-

button start, Square One is prepared to fulfill the order with the additional

feature at the originally proposed price. The vehicles would be procured

from our vehicle suppliers/ dealers to include this added feature.

Regarding the items that were listed as “available as an add-on under GSA

contract”, please refer to attachment PP 3 GSA Approved Price List

(attachment contains pricing). Group 6 of our price list contains

Options/Accessories. Among these, are the items Square One referenced as

available as an add-on under GSA contract. These items are: run flat

assemblies, tool kit, winch, road warning triangle, PA system, and spare

parts. In addition, please see each of the attached Advantage screen shots

which show the brief drop-down menu description of the options

(attachments contain pricing). All items proposed are currently offered

under our GSA contract. (please note: the tool kit, winch, winch accessories,

and road warning triangles are all contained under the option named Winch

Kit)

Lastly, the GSA Advantage description for the CEN B4+ armor package

used in the above examples states, “SQI CEN B4+ armor package with fixed

partition behind second row, installed in a Toyota Land Cruiser 200 series...

For complete armor package description and included options/ accessories,

please see GSA catalog”. Attached please find the armor package summary

pages contained in our GSA catalog, for each of the armor packages

contemplated in this RFQ/proposal. Please note this catalog is available

(and has been available since before the proposal due date) on our GSA

Advantage page as required by GSA. These summaries will confirm that

any items listed on our proposal as “included as part of armor package on

7

GSA contract” are in fact part of our base armor packages offered under

GSA. Examples of this include the operable window back-up manual lifters

and the first aid kit.

Tab 32, AR 591–92.

C. Evaluation of Offers and Award Decision

Seven MAS Schedule 84 contract holders submitted offers in response to the

Solicitation. Tab 38, AR 660. The Technical Evaluation Team determined that six of the

offerors, including Square One, were technically unacceptable. Id. at 674–92. Only the

offer from O’Gara received a rating of Acceptable for the Technical Factor. Id. at 669–

71. Because its Past Performance Factor was also rated Acceptable, O’Gara was

considered the lowest priced technically acceptable offeror, with a price of

$34,159,804.96. See id. at 693. The government awarded O’Gara the task order on

February 3, 2015. 7 Tab 39, AR 694.

On February 4, 2015, after receiving an email notification that O’Gara had been

awarded the task order, Square One requested an explanation of the award decision

pursuant to FAR 8.405-2(d) (2014). Tab 41, AR 745; see FAR 8.405-2(d) (“If an

unsuccessful offeror requests information on an award that was based on factors other

than price alone, a brief explanation of the basis for the award decision shall be

provided.”). GSA responded the next day with the following explanation:

Your quote was rated Technically Unacceptable and was ineligible for

award for the following two reasons:

1. Your quote failed to meet the requirements of the BOM in section 6.0

for the following vehicles:

5 Chevrolet Suburban; 1/2 Ton SUVs, 1500, 4x4

5 Ford Econoline Passenger Van; E-350 XL, 2WD

5 Toyota Hilux Pick-up, Turbo Diesel 4x4

These technical requirements as outlined in the BOM required the above

vehicles to be supplied having keyed ignitions. Your proposed solution

included the above vehicles with push button start ignitions.

7

The originally anticipated award date for the task order was October 3, 2014. Tab

38, AR 662. The award was delayed, however, due to funding availability concerns. Id.

8

2. Your quote failed to include the following accessory as a GSA MAS

Contract item. Doing so is not in accordance with the rules governing the

use of the Federal Supply Schedules (FSS) and the terms of the RFQ:

1. Spare Keys

In accordance with the FSS and MAS Schedule 84, an agency is not

permitted to purchase open market items in an amount exceeding the

micro-purchase threshold using the FSS procedures set forth in FAR

subpart 8.4. The micro-purchase level applies to all open market items, in

aggregate.

a. Therefore, Square One Armoring was rated Technically

Unacceptable on the following evaluation factor in Section 3.1.

“Factor 1, Technical Acceptability / Sub factor la, Compliance

with requirements:”

Offerors shall provide a line item list of all proposed items

to successfully demonstrate they meet or exceed the

requirements in section 6.0 of the BOM. Additionally, each

item proposed shall include an easily identifiable, cross

referenced MAS Schedule 84 part number, to demonstrate

that all items proposed are available on the Offer[or]’s GSA

Multiple Award Schedule (MAS), Schedule 84 Contract at the

time the Offeror's quote is submitted to the Government.

b. In addition, Square One Armoring was rated Technically

Unacceptable in accordance with the terms of the RFQ set forth in the

following requirements on page 2, paragraph 3 and 4:

“You are to submit a quotation based on the identified

items/material requested for award consideration, to

include GSA Schedule Items Only.”

“Open Market items, in a total aggregate of $3,000.00 or

less, are acceptable”.

The awardee, O’Gara-Hess & Eisenhardt Armoring Company LLC

submitted the Lowest Priced, Technically Acceptable offer

($34,159,804.96). Your company’s interest in doing business with The

General Services Administration, and the time and effort you expended in

responding to this solicitation, are very much appreciated.

9

Tab 44, AR 762–63.

D. Procedural History

On February 9, 2015, Square One filed a protest at the Government Accountability

Office (GAO). 8 See Tab 48, AR 778. After reviewing Square One’s protest, GSA

“determined that corrective action [was] in the best interests of the Government.” Tab

61, AR 1084. On March 10, 2015, GSA filed a Notice of Corrective Action with the

GAO, stating that GSA would recommend that any corrective action “include an

opportunity for the re-submission of proposals following a revision of the solicitation

documents to provide more precise instructions to the offerors on the preparation of

quotes.” Id. In light of the proposed corrective action, GSA requested that the GAO

dismiss Square One’s protest. Id.

Three days later, on March 13, 2015, the GAO dismissed Square One’s protest,

stating that “[w]here, as here, an agency undertakes corrective action that will supersede

and potentially alter its prior source selection decision, our Office will generally decline

to rule on a protest challenging the agency’s prior decision on the basis that the protest is

rendered academic.” Tab 63, AR 1088.

Square One filed its complaint in this court on April 2, 2015. Four days later,

GSA terminated the task order awarded to O’Gara pursuant to FAR 8.406-5. Tab 67, AR

1140–41. The court understands that GSA either has cancelled or intends to cancel the

Solicitation prior to re-procuring the requirement. See Pl.’s Mot. 2 (challenging GSA’s

“cancellation of the solicitation”); Def.’s Mot. 15 (“GSA is taking corrective action that

will include re-procuring the requirement.”); Pl.’s Resp. 2 (challenging GSA’s decision

“to cancel the solicitation and to take corrective action to reprocure”). Defendant

represents that “GSA has not yet issued a new solicitation.” Def.’s Mot. 13.

Plaintiff’s complaint includes challenges to GSA’s original evaluation of

proposals and the award to O’Gara, see Compl. ¶¶ 37–46 (Count 1.A), 51–86 (Counts 2–

5); and challenges to GSA’s proposed corrective action, see id. ¶¶ 47–50 (Count 1.B),

87–90 (Count 6). Plaintiff asks the court to find that O’Gara was ineligible for contract

award, that Square One should be awarded the task order, and that the proposed

corrective action is “inadequate” and in violation of the Competition in Contracting Act.

Id. at 39–40; Pl.’s Mot. 25–26.

8

Two of the unsuccessful offerors, The Armored Group and Scaletta Armoring,

lodged agency-level protests on February 6 and February 10, 2015, respectively. Tab 46,

AR 766–76 (The Armored Group); Tab 55, AR 959–64 (Scaletta Armoring). Both

protests were ultimately dismissed. See Tab 55, AR 963–64 (Scaletta Armoring)

(dismissing for “fail[ing] to meet the requirements of a valid protest”); Tab 68, AR 1142

(The Armored Group) (denying as moot given GSA’s decision to take corrective action).

10

The government asserts that the court has no jurisdiction to entertain plaintiff’s

protest because plaintiff cannot establish standing. Def.’s Mot. 13–20; Def.’s Reply 2–5.

Alternatively, the government asserts that even if plaintiff does have standing, the GSA’s

corrective action was rational. Def.’s Mot. 20–24. In the further alternative, the

government asserts that even if plaintiff has standing and the court finds that the GSA’s

corrective action was irrational, the court cannot direct award to plaintiff but, instead,

should order GSA to reevaluate all the proposals. Id. at 24–26.

II. Legal Standards

The 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.” 28

U.S.C. § 1491(b)(1) (2012). The court’s “bid protest” jurisdiction encompasses the

following types of agency actions: “(1) pre-award protests (i.e., objections ‘to a

solicitation by a Federal agency for bids or proposals for a proposed contract’ or award);

(2) post-award protests (i.e., objections to ‘the award of a contract’); and (3) any ‘alleged

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

procurement.’” Sheridan Corp. v. United States, 95 Fed. Cl. 141, 148 (2010) (quoting 28

U.S.C. § 1491(b)(1)).

A plaintiff must establish standing to invoke the court’s bid protest jurisdiction.

See Sicom Sys., Ltd. v. Agilent Techs., Inc., 427 F.3d 971, 975 (Fed. Cir. 2005)

(“Standing to sue is a threshold requirement in every federal action.”); K-Lak Corp. v.

United States, 93 Fed. Cl. 749, 755 (2010) (“Even while a court may have subject matter

jurisdiction over a type of claim generally, a plaintiff must still establish standing in order

to invoke the court’s jurisdiction.” (citing Hoopa Valley Tribe v. United States, 597 F.3d

1278, 1283 (Fed. Cir. 2010))); Centech Grp., Inc. v. United States, 78 Fed. Cl. 496, 503

(2007) (“As a threshold matter, Plaintiff must establish standing to invoke the Court’s

jurisdiction.”). A “[p]laintiff’s standing must be established by a preponderance of the

evidence. Centech Grp., 78 Fed. Cl. at 503 (citing Reynolds v. Army & Air Force Exch.

Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)); see Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992) (“The party invoking federal jurisdiction bears the burden of establishing

[standing].”). “[A] finding that a plaintiff has failed to carry his burden of establishing

standing ‘precludes a ruling on the merits.’” Centech Grp., 78 Fed. Cl. at 503 (quoting

Media Techs. Licensing, LLC v. Upper Deck Co., 334 F.3d 1366, 1370 (Fed. Cir. 2003)).

11

To establish standing under the Tucker Act, a protestor must establish that it

qualifies as an “interested party.” 9 See 28 U.S.C. § 1491(b)(1) (providing that “an

interested party” may object “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”); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir.

2009). The Federal Circuit has “construe[d] the term ‘interested party’ in §

1491(b)(1) . . . [as being] limited to actual or prospective bidders or offerors whose direct

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

the contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed.

9

Defendant argues that plaintiff lacks both Article III standing and Tucker Act

standing. Def.’s Mot. 14–20. Defendant cites to Weeks Marine, Inc. v. United States,

575 F.3d 1352, 1359 (Fed. Cir. 2009), as support for its assertion that “in a bid protest

action, it must be determined whether the protestor meets both the standing requirements

in Article III of the Constitution and in the Tucker Act,” Def.’s Mot. 13. Indeed, the

Weeks Marine court stated that although the Court of Federal Claims is an Article I court,

it “applies the same standing requirements enforced by other federal courts created under

Article III.” 575 F.3d at 1359 (quoting Anderson v. United States, 344 F.3d 1343, 1350

n.1 (Fed. Cir. 2003)). However, the Weeks Marine court further stated that the Tucker

Act “imposes more stringent standing requirements than Article III.” Id.

In Jacobs Technology, Inc. v. United States, 100 Fed. Cl. 179 (2011), the court

rejected the government’s argument that Weeks Marine stands “for the proposition that

standing must be judged both under Article III and also under the Tucker Act”:

What [Weeks Marine] says is that the Article III standing requirements are

binding on the Court of Federal Claims and that so are the standing

requirements of the Tucker Act. The [Weeks Marine] court also observed

that the Tucker Act has even more stringent standing requirements than does

Article III. The Weeks Marine court, then—in the context of a bid protest—

did not perform any analysis under Article III, but, instead, proceeded to

analyze the standing issue only under the Tucker Act.

Id. at 184 (internal citations omitted). The Jacobs court concluded that “since the Tucker

Act has even more stringent requirements on standing than Article III, it is sufficient to

decide the issue of standing with reference only to the Tucker Act.” Id.; see also Mgmt.

& Training Corp. v. United States, 115 Fed. Cl. 26, 35 (2014) (“[A] party that meets the

Tucker Act’s standing requirement presumably also satisfies the constitutional standing

requirement.”). The court finds no reason to deviate from this approach. Accordingly,

the court examines only whether plaintiff meets the standing requirements of the Tucker

Act. See Jacobs Tech., 100 Fed. Cl. at 185 (“Article III standing requirements are

subsumed under the Tucker Act requirements.”).

12

Cir. 2001). Thus, “to come within the Court of Federal Claims’ section 1491(b)(1) bid

protest jurisdiction, [a protestor] is required to establish that it (1) is an actual or

prospective [offeror], and (2) possesses the requisite direct economic interest.” Rex Serv.

Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). “[T]o establish a direct

economic interest in the procurement, a protester must demonstrate prejudice.” Boston

Harbor Dev. Partners, LLC v. United States, 103 Fed. Cl. 499, 503 (2012) (citing Myers

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

A protestor’s showing of prejudice differs depending upon the nature of the

protest. In a post-award bid protest, a protester demonstrates the requisite prejudice by

showing that it would have had a “substantial chance” of receiving the contract award but

for the alleged errors in the procurement process. CW Gov’t Travel, Inc. v. United

States, 110 Fed. Cl. 462, 481 (2013); Linc Gov’t Servs., LLC v. United States, 96 Fed.

Cl. 672, 691 (2010); see Rex Serv., 448 F.3d at 1308 (“To prove a direct economic

interest as a putative prospective bidder, it is required to establish that it had a ‘substantial

chance’ of receiving the contract.”); Info. Tech. & Appls. Corp. v. United States (Info.

Tech.), 316 F.3d 1312, 1319 (Fed. Cir. 2003) (“To establish prejudice, [the protestor]

must show that there was a ‘substantial chance’ it would have received the contract award

but for the alleged error in the procurement process.”). That is, a post-award protestor

must show that its “chance of securing the award must not have been insubstantial.”

Info. Tech., 316 F.3d at 1319. “[A] showing of a mere possibility that the protester

would have received the contract but for the error is inadequate to show prejudice [in a

post-award bid protest].” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.

1996). By contrast, in a pre-award bid protest, a protestor can demonstrate prejudice by

establishing “a non-trivial competitive injury which can be addressed by judicial relief.”

Sys. Appl. & Techs., Inc. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012) (quoting

Weeks Marine, 575 F.3d at 1362); Orion Tech., Inc. v. United States, 704 F.3d 1344,

1348 (Fed. Cir. 2013) (same).

In addition to establishing that the court possesses jurisdiction over a bid protest

dispute, a plaintiff must also meet the Article III justiciability requirements. 10 Article III

10

“The court’s inquiry into the justiciability of a case is distinct from its inquiry into

whether it has jurisdiction over the case’s subject matter. In other words, the court may

find that it possesses jurisdiction over the subject matter of a case but that the dispute is

nevertheless nonjusticiable.” B&B Med. Servs., Inc., v. United States (B&B), No. 13-

463C, 2014 WL 3587275, at *5 (Fed. Cl. June 23, 2014) (internal citations omitted);

Coastal Envtl. Grp., Inc. v. United States, 114 Fed. Cl. 124, 129–30 (2013) (same); see

Madison Servs., Inc. v. United States, 90 Fed. Cl. 673, 677 (2009) (“Notwithstanding the

court’s special jurisdiction and the unique nature of a bid protest, the instant matter is also

subject to overarching [justiciability] doctrines governing all suits in federal court.”);

CCL Serv. Corp. v. United States (CCL), 43 Fed. Cl. 680, 688 (1999) (stating that the

court’s jurisdiction over a bid protest “is of no material consequence . . . if [the agency’s]

13

of the Constitution provides that the “judicial Power of the United States” is vested in

courts empowered to decide certain “Cases” and “Controversies.” U.S. Const. art. III.

The case or controversy requirement serves a dual function. Flast v. Cohen, 392 U.S. 83,

95 (1968). First, the case or controversy requirement “limit[s] the business of federal

courts to questions presented in an adversary context and in a form historically viewed as

capable of resolution through the judicial process.” Id. Second, the requirement

“define[s] the role assigned to the judiciary in a tripartite allocation of power to assure

that the federal courts will not intrude into areas committed to the other branches of

government.” Id. “Justiciability is the term of art employed to give expression to this

dual limitation placed upon federal courts by the case-and-controversy doctrine.” Id.

Although the Court of Federal Claims is not an Article III court, it is well-

established that various justiciability doctrines of Article III apply to this court.

Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003); see First Hartford

Corp. Pension Plan & Trust v. United States, 54 Fed. Cl. 298, 304 n.10 (2002)

(“Although this [c]ourt is not an Article III court, the ‘case or controversy’ requirement

of Article III is still applicable.” (citing Freytag v. Comm’r, 501 U.S. 868, 889 (1991)).

“Justiciability has both constitutional and prudential dimensions, and encompasses a

number of doctrines under which courts will decline to hear and decide a cause. Though

justiciability has no precise definition or scope, doctrines of standing, mootness, ripeness,

and political question are within its ambit.” Fisher v. United States, 402 F.3d 1167, 1176

(Fed. Cir. 2005); see Emery Worldwide Airlines, Inc. v. United States, 47 Fed. Cl. 461,

469 (2000) (“While Congress created this court under Article I of the U.S. Constitution

and the ‘case or controversy’ requirement appears in Article III, the mootness doctrine

and other justiciability precepts—including ripeness and standing—have often been

properly invoked by this court.”).

III. Discussion

A. Square One’s Challenge to GSA’s Prior Evaluation of Proposals and Award

to O’Gara

actions in canceling the solicitation render plaintiffs’ challenge to these awards moot”);

cf. Madison Servs., 90 Fed. Cl. at 680 n.3 (observing that there is “lingering uncertainty

as to whether, and when, [the justiciability doctrines of] ripeness or mootness may

operate as a limit upon the jurisdiction of a federal court”). But see B & B Med. Servs.,

Inc. v. United States, 114 Fed. Cl. 658, 662 (2014) (“When a matter becomes moot, we

lose subject-matter jurisdiction over it, and dismissal under RCFC 12(b)(1) is in order.”);

CBY Design Builders v. United States, 105 Fed. Cl. 303, 328–29 (2012) (similar); Tech.

Innovation, Inc. v. United States, 93 Fed. Cl. 276, 278 (2010) (“[M]ootness presents a

question of subject matter jurisdiction.”).

14

Plaintiff contends that GSA’s evaluation of proposals and award to O’Gara were

flawed, improper, arbitrary and capricious, and in violation of both the Federal

Acquisition Regulations and the implied duty of good faith and fair dealing. See Compl.

¶¶ 37–46 (Count 1.A), 51–86 (Counts 2–5). Plaintiff requests that the court undertake

“de novo review” of GSA’s prior evaluation of proposals, Pl.’s Resp. 1, 14, and urges the

court to find that GSA “should have correctly selected Square One for contract award,”

because “Square One’s proposal was compliant with the solicitation requirements,” id. at

5.

1. Standing

Here, the court addresses plaintiff’s challenge to GSA’s original evaluation of

proposals and award decision. Cf. infra Part III.B.1 (addressing plaintiff’s standing to

challenge GSA’s proposed corrective action). This challenge is decidedly a post-award

protest. It is beyond dispute that Square One was an actual offeror in the original

Solicitation. Thus, Square One’s standing hinges on whether it can demonstrate that it

would have had a “substantial chance” of receiving the contract award but for the alleged

errors in the procurement process. See supra Part II (discussing elements of standing).

Defendant argues that because Square One’s technical proposal was deemed

unacceptable, Square One cannot establish that it had a substantial chance of receiving

award. Def.’s Mot. 17; see also id. at 20 (“Because of its Unacceptable rating for its

Technical proposal, Square One could not be eligible for award under the original

Solicitation. Accordingly, Square One has failed to demonstrate standing pursuant to the

Tucker Act in this case.”); Def.’s Reply 2 (similar). 11 As defendant correctly observes,

11

Defendant points to HomeSource Real Estate Asset Services, Inc. v. United States,

94 Fed. Cl. 466 (2010), aff’d, 418 F. App’x 922 (Fed. Cir. 2011), and Dismas Charities,

Inc. v. United States, 75 Fed. Cl. 59 (2007), as support for the proposition that “where a

bidder’s proposal fails to meet the minimum technical requirements set forth in a

solicitation, it cannot be deemed to have had a ‘substantial chance’ to be the awardee,”

Def.’s Mot. 17. But both of the cases to which defendant cites are inapposite.

In HomeSource, the offeror’s technical proposal was rated unacceptable by the

agency. 94 Fed. Cl. at 480–81. Unlike Square One, however, HomeSource did not

challenge the agency’s underlying evaluation of its technical proposal. Id. at 481–82

(“HomeSource does not challenge [the agency’s] underlying [technical] evaluation

findings in any way.”). The court concluded that HomeSource did not have a substantial

chance of being awarded the contract. Id. at 482; see id. at 481 (“Plaintiff's offer was

non-responsive to the Solicitation, and therefore would have been ineligible for the award

even if plaintiff prevailed on the merits.” (internal citation omitted)).

In Dismas, offerors were required to submit a Final Proposal Revision with a 120-

day start-up schedule, but Dismas intentionally submitted a proposal with a 240-day start-

15

“GSA rated Square One’s proposal as ‘Unacceptable’ for the Technical factor, after GSA

determined that Square One failed to comply with the requirements of the Solicitation.”

Def.’s Mot. 17. Defendant argues that GSA’s determination that Square One failed to

comply with the Solicitation’s technical requirements had a rational basis. Id. at 17–19.

Defendant’s argument, however, goes to the merits of Square One’s protest. See Sci.

Appls. Int’l Corp. v. United States, 102 Fed. Cl. 644, 654 (2011) (“The positions

advanced—that the [a]gency did not act arbitrarily or capriciously in rating [plaintiff’s]

proposal as unacceptable, therefore [plaintiff] had no chance of an award, go to the merits

of the controversy . . . .”); Tip Top Constr., Inc. v. United States, No. 08-352C, 2008 WL

3153607, at *11 (Fed. Cl. Aug. 1, 2008) (similar), aff’d, 563 F.3d 1338 (Fed. Cir. 2009).

The court, however, must “avoid examining the parties’ arguments on the merits

in order to resolve standing.” Textron, Inc. v. United States, 74 Fed. Cl. 277, 285 (2006);

see Info. Tech., 316 F.3d at 1319 (“[B]ecause the question of prejudice goes directly to

the question of standing, the prejudice issue must be reached before addressing the

merits.”). That is, “before reaching the merits of the parties’ dispute, the court conducts

only a ‘limited review’ of the plaintiff’s allegations and the administrative record for the

‘minimum requisite evidence necessary for plaintiff to demonstrate prejudice and

therefore standing.’” 12 Magnum Opus Techs. Inc. v. United States, 94 Fed. Cl. 512, 530

up schedule. 75 Fed. Cl. at 61. The agency evaluated Dismas’ proposal on the merits

and “never explicitly stated that it did not comply with the solicitation.” Id.; see id.

(observing that the post-award debriefing letter stated that Dismas’ proposal met all of

the solicitation requirements). The court found that “Dismas submitted a Final Proposal

Revision that did not conform to the solicitation requirements,” id. at 62, a determination

that Dismas did not appear to dispute, see generally id. (offering no indication that

Dismas argued that its 240-day start-up schedule should have been found responsive).

Accordingly, the court concluded that Dismas did not have a substantial chance of being

awarded the contract. Id. at 62. As this court has previously suggested, Dismas “merely

stand[s] for the proposition that the court may rule on the standing issue based on

disqualifying elements of a protestor’s proposal that the agency has overlooked.” Sotera

Def. Sols., Inc. v. United States, 118 Fed. Cl. 237, 251–52 (2014) (citing, inter alia,

Dismas).

Thus, although in certain cases it may be true that a protestor with an unacceptable

technical proposal may be unable to demonstrate standing, defendant is mistaken that

technical unacceptability necessarily precludes a protestor from establishing standing.

12

A protester must also establish prejudice to succeed on the merits. See Data Gen.

Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“[T]o prevail in a protest the

protester must show not only a significant error in the procurement process, but also that

the error prejudiced it.”). “The difference between the two [prejudice showings] is that

the prejudice determination for purposes of standing assumes all non-frivolous

16

n.12 (2010) (quoting Night Vision Corp. v. United States, 68 Fed. Cl. 368, 392 & n.23

(2005)); see Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 244 (2011) (“[S]ince, for

purposes of standing, prejudice must be analyzed before a merits determination is made,

it is more properly considered as a question of potential rather than actual prejudice, and

assessed based on the cumulative impact of the well-pled allegations of agency error

(which are assumed true at this juncture of proceedings).”). Thus, “[a]t this point in the

inquiry, we assume the well-pled allegations of error to be true.” Digitalis Educ. Sols.,

Inc. v. United States, 97 Fed. Cl. 89, 94 (2011), aff’d, 664 F.3d 1380 (Fed. Cir. 2012).

Square One alleges that GSA should have rated its Technical Proposal as

Acceptable, because “the clarifications submitted by Square One[] confirm that Square

One was in compliance with all required terms and items of the solicitation and all items

were listed on their GSA Schedule contract.” Compl. ¶ 30; see also id. ¶ 52. Plaintiff

maintains that GSA “ignored” Square One’s clarifications. Id. ¶¶ 34, 55. As discussed in

more detail above in Part I.C, after reviewing Square One’s responses to its clarification

questions, GSA rated Square One’s Technical Proposal as Unacceptable because Square

One (1) failed to include a MAS Schedule 84 part number for the three spare keys, and

(2) failed to offer the requisite vehicles with keyed ignitions. Tab 44, AR 762–63; see

Tab 11b (RFQ), AR 95, 100, 105, 110, 115 (requiring each vehicle be equipped with

three spare keys, and that the Chevrolet Suburban SUV, Ford Econoline Passenger Van,

and Toyota Hilux Pick-Up be equipped with keyed ignitions).

First, Square One alleges that its clarification clearly confirmed that each vehicle

would be equipped with three keys, as the solicitation required. Compl. ¶ 58; Pl.’s Resp.

11. Plaintiff submits that “Square One has prove[n] in its clarification responses and its

attachments, that the third . . . spare key was part of the OEM add-ons ordered from the

manufacturer. The keys were not open market [items], they did not need a separate [part

number] under Square One’s GSA Schedule.” Pl.’s Mot. 23; see Tab 32, AR 592

(clarification) (stating same); cf. Tab 38, AR 684 (stating that the Technical Evaluation

Team’s “expert consensus” was that spare keys are not OEM items and therefore do not

come standard with vehicles); Pl.’s Mot. 15–19 (disputing the Technical Evaluation

Team’s determination).

allegations to be true, whereas the post-merits prejudice determination is based only on

those allegations which have been proven true.” L–3 Commc’ns Corp. v. United States,

99 Fed. Cl. 283, 289 (2011); see Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl.

672, 694–97 (2010) (distinguishing between the two prejudice showings). Although

“[t]he test for demonstrating prejudice at both the standing and merits stages of the

protest is the same, . . . application of the test may yield different results due to the

differing standards of review.” Sys. Appl. & Techs., Inc., v. United States, 100 Fed. Cl.

687, 707 n.15 (2011), aff’d, 691 F.3d 1374 (Fed. Cir. 2012).

17

Next, Square One alleges that its clarification explained that its Technical Proposal

merely contained a “typographical/formatting error,” which identified the Chevrolet

Suburban SUV, Ford Econoline Passenger Van, and Toyota Hilux Pick-Up as having a

push-button ignition. Compl. ¶ 59; Pl.’s Resp. 10. Plaintiff states that its clarification

“confirmed that these vehicles are equipped from factory with a keyed ignition and that

Square One understood and would comply with the solicitation’s ignition requirements.”

Pl.’s Resp. 10; see Tab 32, AR 592 (clarification) (stating same); cf. Tab 38, AR 688

(characterizing Square One’s clarification response as an attempt to either “correct their

quote to be in technical compliance with the requirements, or . . . provide vehicles with

altered technical specifications”—neither of which “[could] be accepted”); Pl.’s Mot. 15,

23–24 (disputing GSA’s characterization).

Finally, Square One alleges— and the government concedes, Def.’s Mot. 24—that

O’Gara’s Technical Proposal failed to comply with the Solicitation’s requirements, and

that it therefore should have received an Unacceptable rating, Compl. ¶ 29; Pl.’s Resp.

12.

The court finds that Square One has established that its chance of securing the

award, but for the alleged errors, was not insubstantial. See Info. Tech., 316 F.3d at

1319; Data Gen., 78 F.3d at 1562. Assuming plaintiff’s well-pled allegations to be true,

then Square One may well have been the only technically acceptable offeror. Defendant

argues that “if GSA were to deem Square One’s proposal to be technically acceptable,

there is a possibility that the offers from The Armored Group and Scaletta would have to

be deemed technically acceptable as well”—both of which submitted lower-priced

proposals than Square One. Def.’s Mot. 25–26; see also Def.’s Reply 7 (similar).

However, an offeror “need not be next in line for the consideration of an award in order

to possess standing.” Sci. & Mgmt. Res., Inc. v. United States, 117 Fed. Cl. 54, 62

(2014). That is, plaintiff does not have the burden of showing that it would have received

the contract. See Data Gen., 78 F.3d at 1562 (“To establish prejudice, a protester is not

required to show that but for the alleged error, the protester would have been awarded the

contract.”). Based on the foregoing, the court concludes that Square One’s allegations

are sufficient to establish that it is an interested party to challenge GSA’s original

evaluation and award.

Although Square One has standing to pursue this post-award bid protest, the court

finds that plaintiff’s challenge to the original evaluation and award must nevertheless be

dismissed on mootness grounds.

2. Mootness

Defendant argues that “GSA’s prior evaluation of proposals is no longer at issue

because the award to O’Gara was cancelled prior to the filing of the complaint in this

case, and GSA is taking corrective action that will include re-procuring the requirement.”

18

Def.’s Mot. 15. Defendant argues that “[o]nce the award to O’Gara was cancelled, any

alleged injury stemming from that award was eliminated, and there is no case or

controversy for this Court to adjudicate.” Id. Although framed as a challenge to

plaintiff’s Article III standing, see id. at 14–17, defendant essentially argues that GSA’s

cancellation of the award and proposed corrective action renders the original evaluation

of proposals and award moot, cf. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,

549 U.S. 422, 431 (2007) (“[A] federal court has leeway to choose among threshold

grounds for denying audience to a case on the merits.” (internal quotation marks

omitted)).

The mootness doctrine is one of several justiciability doctrines that applies to this

court. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for

purposes of Article III—‘when the issues presented are no longer ‘live’ or the parties lack

a legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 133 S. Ct.

721, 726 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). “[A]s

a general rule, ‘voluntary cessation of allegedly illegal conduct . . . does not make the

case moot.’” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979) (quoting United

States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). Instead, a case becomes moot

when it is unreasonable to expect “that the alleged violation will recur, and . . . interim

relief or events have completely and irrevocably eradicated the effects of the alleged

violation.” Id. (internal citations omitted). Thus, when “corrective action adequately

addresse[s] the effects of the challenged action, and the Court of Federal Claims ha[s] no

reasonable expectation that the action would recur,” the matter should be dismissed as

moot. Chapman Law Firm Co. v. Greenleaf Constr. Co. (Chapman), 490 F.3d 934, 940

(Fed. Cir. 2007). Moreover, “where a defendant’s actions have eliminated the possibility

of meaningful relief, the case ordinarily should be dismissed as moot.”). McTech Corp.

v. United States, 105 Fed. Cl. 726, 731 (2012); see Church of Scientology of Cal. v.

United States, 506 U.S. 9, 12 (1992) (stating that a case is not moot if the “court can

fashion some form of meaningful relief” (emphasis omitted)).

To be sure, when the award to O’Gara was originally made, the propriety of that

award and the propriety of GSA’s evaluation of proposals were “live” issues—issues that

were raised by plaintiff before the GAO. See Tab 48, AR 778–926. But those issues

were rendered moot when GSA cancelled the award and filed a notice of corrective

action. Indeed, it is this rationale that prompted GAO to dismiss plaintiff’s protest,

stating “[w]here, as here, an agency undertakes corrective action that will supersede and

potentially alter its prior source selection decision, our Office will generally decline to

rule on a protest challenging the agency’s prior decision on the basis that the protest is

rendered academic.” Tab 63, AR 1088; cf. Tab 68, AR 1142 (dismissing as moot The

Armored Group’s agency-level protest in light of GSA’s notice of corrective action).

Plaintiff requests that the court find the award to O’Gara was improper, Compl. at

40, and to further find that “the contract should have rightfully been awarded to Square

19

One,” id. at 39; see also id. ¶¶ 35, 90; Pl.’s Resp. 6–9 (arguing that the court has the

authority to award the contract to Square One). However, GSA has already cancelled the

task order award to O’Gara, Tab 67, AR 1140–41, and, notwithstanding plaintiff’s

contentions to the contrary, the court is without authority to direct the award to Square

One. 13 Thus, even if the court were to find improprieties in GSA’s original evaluation

and award decision, the court could only enjoin the award to O’Gara, and either order

GSA to re-evaluate the original proposals or re-procure the task order—the latter of

which is the precise action that GSA has volunteered to undertake. See infra Part III.B

(addressing plaintiff’s challenge to the proposed corrective action). Notably, plaintiff

seeks to avoid GSA’s re-evaluation of the original proposals. Pl.’s Resp. 17.

Accordingly, the relief that would otherwise be available has already been granted due to

GSA’s decision to take corrective action. See B&B Med. Servs., Inc., v. United States

(B&B), No. 13-463C, 2014 WL 3587275, at *7 (Fed. Cl. June 23, 2014); Eskridge

Research Corp. v. United States (Eskridge), 92 Fed. Cl. 88, 94 (2010).

Moreover, plaintiff has not pointed to any case, and the court is aware of none, in

which the court proceeded to address on the merits a protest by an unsuccessful offeror

(as opposed to the original awardee) of an agency’s original evaluation of proposals after

the agency had agreed to take corrective action. Rather, ample precedent exists for

dismissing as moot plaintiff’s challenge to the original evaluation and award based on

GSA’s decision to cancel the Solicitation and re-procure the requirement. See Coastal

Envtl. Grp., Inc. v. United States, 114 Fed. Cl. 124, 131 (2013) (“[T]he Court of Federal

Claims has consistently found that the cancellation of a procurement renders a protest of

that procurement moot.” (discussing, inter alia, CCL Serv. Corp. v. United States (CCL),

43 Fed. Cl. 680 (1999))); CCL, 43 Fed. Cl. at 689–90 (concluding that the agency’s

corrective action—cancelation of the solicitation and its decision to re-solicit the

procurement—rendered moot the unsuccessful offeror’s challenge to the original

evaluation and award); see also B&B, 2014 WL 3587275, at *7 (concluding that an

agency’s proposed corrective action—re-evaluating proposals—rendered moot an

13

“It is indisputable that the ultimate grant of a contract must be left to the discretion

of a government agency; the courts will not make contracts for the parties.” Scanwell

Labs., Inc. v. Shaffer (Scanwell), 424 F.2d 859, 869 (D.C. Cir. 1970); see C.A.C.I., Inc.-

Fed. v. United States, 719 F.2d 1567, 1575 (Fed. Cir. 1983) (“[A] disappointed bidder

has ‘no right . . . to have the contract awarded to it in the event the . . . court finds

illegality in the award of the contract . . . .’” (alterations in original) (quoting Scanwell,

424 F.2d at 864)); B&B, 2014 WL 3587275, at *7 n.18 (“[I]t is well settled that in the

event a court determines that the procurement was illegally conducted, the protestor has

no right to be awarded the contract.”); CCL, 43 Fed. Cl. at 688 (stating that award of a

contract is an “improper exercise[] of the court’s authority”); Unified Indus., Inc. v.

United States, 24 Cl. Ct. 570, 575–76 (1991) (“The Scanwell doctrine has been held to

apply to the Claims Court by well-established precedent.” (citing Arrowhead Metals, Ltd.

v. United States, 8 Cl. Ct. 703, 711 (1985)).

20

unsuccessful offeror’s challenge to the original evaluation and award); Croman Corp. v.

United States, 106 Fed. Cl. 198, 212–13 (2012) (similar), aff’d, 724 F.3d 1357 (Fed. Cir.

2013); Metro. Van & Storage, Inc. v. United States, 92 Fed. Cl. 232, 241, 255 (2010)

(concluding that an agency’s completed corrective action—amendment to the solicitation

and evaluation of revised proposals—rendered moot an unsuccessful offeror’s challenge

to the original evaluation and award); Eskridge, 92 Fed. Cl. at 94 (concluding that an

agency’s proposed corrective action—re-evaluating proposals—rendered moot an

unsuccessful offeror’s challenge to the original evaluation and award); cf. ManTech

Telecomms. & Info. Sys. Corp. v. United States (ManTech), 49 Fed. Cl. 57, 65, 72–73

(2001) (reviewing alleged improprieties in the original procurement to establish a base of

reference for evaluating whether the proposed corrective action—amending the

solicitation and evaluating revised proposals—was reasonable), aff’d per curiam, 30 F.

App’x 995 (Fed. Cir. 2002).

In light of the foregoing, plaintiff’s protest as it relates to the original evaluation of

proposals and award decision must be dismissed as MOOT.

B. Square One’s Challenge to GSA’s Proposed Corrective Action

Plaintiff next contends that GSA’s proposed corrective action is inadequate,

improper, and violates the Competition in Contracting Act, 31 U.S.C. § 3553(d)(3)

(2012). 14 See Compl. ¶¶ 47–50 (Count 1.B), 87–90 (Count 6); id. at 39–40; Pl.’s Resp. 2,

16.

The court observes that GSA agreed to take corrective action after reviewing

Square One’s bid protest before the GAO and after “examin[ing] the solicitation

documents, the contents of the procurement file, and the evaluation files.” Tab 61, AR

1084. Based upon this review and examination, GSA “determined that corrective action

[was] in the best interests of the Government.” Id. GSA stated that it would

“recommend the corrective action include an opportunity for the re-submission of

proposals following a revision of the solicitation documents to provide more precise

14

Unlike plaintiff’s challenges to the original evaluation of proposals and award

decision, plaintiff’s challenges to the proposed corrective action are not moot. See

Croman Corp. v. United States, 106 Fed. Cl. 198, 213 (2012) (concluding that the

plaintiff’s protest as to the original evaluation and award decision was moot but that its

protest of the “agency’s corrective action as being insufficient to cure the alleged errors

committed by the agency” was not moot), aff’d, 724 F.3d 1357 (Fed. Cir. 2013); McTech

Corp. v. United States, 105 Fed. Cl. 726, 732 (2012) (holding that a pre-award protest

challenging the scope of an Agency’s proposed corrective action was not moot); Centech

Grp., Inc. v. United States, 78 Fed. Cl. 496, 504 (2007) (observing that although “an

agency’s offer to institute corrective action renders a protest moot . . . in some

circumstances,” where “the corrective action is itself the agency decision which is being

challenged[,] . . . it does not moot the . . . action”).

21

instructions to the offerors on the preparation of quotes.” Id. GSA subsequently

canceled its task order award to O’Gara, Tab 67, AR 1140–41, and the court understands

that GSA either has cancelled or intends to cancel the Solicitation prior to re-procuring

the requirement, see Pl.’s Mot. 2 (challenging GSA’s “cancellation of the solicitation”);

Def.’s Mot. 15 (“GSA is taking corrective action that will include re-procuring the

requirement.”); Pl.’s Resp. 2 (challenging GSA’s decision “to cancel the solicitation and

to take corrective action to reprocure”). Defendant represents that “GSA has not yet

issued a new solicitation.” Def.’s Mot. 13.

“As the Federal Circuit [has] recognized, this [c]ourt possesses jurisdiction to

determine if the corrective action taken by a procuring agency as a result of a bid protest

was reasonable under the circumstances.” Centech Grp., 78 Fed. Cl. at 506 (citing

Chapman, 490 F.3d at 938 (“[T]he Court of Federal Claims’ inquiry into the

reasonableness of the Government’s first proposed corrective action, and the court’s

subsequent determination that the proposed corrective action was not reasonable, were

proper.”)); see also Croman, 106 Fed. Cl. at 213 (stating that “[p]laintiff’s contention that

the corrective action was inadequate to address the alleged errors falls within this court’s

bid protest jurisdiction”); McTech, 105 Fed. Cl. at 732 (stating that “the court has

juridical power to entertain a complaint challenging proposed corrective action”);

ManTech, 49 Fed. Cl. at 73 (examining whether “the proposed corrective action [was]

reasonable under the circumstances and appropriate to remedy the alleged improprieties

that occurred” (capitalization omitted)); DGS Contract Serv., Inc. v. United States, 43

Fed. Cl. 227, 238 (1999) (similar). That GSA has not yet implemented the corrective

action and that Square One was not the original awardee are not “material to the question

of jurisdiction.” Sys. Appl. & Techs., 691 F.3d at 1381. The Federal Circuit “has made

clear that bid protest jurisdiction arises when an agency decides to take corrective action

even when such action is not fully implemented.” Id.

Although the “court may have subject matter jurisdiction over a type of claim

generally, a plaintiff must still establish standing in order to invoke the court’s

jurisdiction.” K-Lak Corp., 93 Fed. Cl. at 755; cf. Sys. Appl. & Techs., 691 F.3d at 1382

(examining both (1) whether this court “properly exercised its jurisdiction” over the

disappointed bidder’s pre-award protest, and (2) whether this court properly determined

that the disappointed bidder had standing to pursue the protest).

1. Standing

Here, the court addresses plaintiff’s challenge to GSA’s proposed corrective

action. Cf. supra Part III.A.1 (addressing plaintiff’s standing to challenge GSA’s original

evaluation and award decision). Challenges to corrective action that involve re-

solicitation of proposals have generally been treated as pre-award protests. See, e.g., Sys.

Appl. & Techs., 691 F.3d at 1382 (“[Plaintiff] lodges a pre-award protest against the

Army’s decision to resolicit proposals.”); Sheridan, 95 Fed. Cl. at 148 (“Where the

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plaintiff . . . files a protest challenging an agency’s decision to resolicit proposals, this

Court has held that plaintiff’s protest ‘is in the nature of a pre-award claim.’” (quoting

IMS Servs., Inc. v. United States, 32 Fed. Cl. 388, 398 (1994))); see also Reema

Consulting Servs., Inc. v. United States, 107 Fed. Cl. 519, 529 (2012) (applying the pre-

award prejudice test to determine whether plaintiff had standing to challenge the agency’s

proposed corrective action (reprocurement)); Centech Grp., 78 Fed. Cl. at 505

(characterizing a plaintiff’s challenge to the agency’s corrective action as an alleged

violation of “preaward conduct”).

The government does not dispute that Square One is a prospective offeror. Thus,

Square One’s standing hinges on whether it can demonstrate a non-trivial competitive

injury that can be addressed by judicial relief. See supra Part II (discussing elements of

standing).

Defendant essentially argues that Square One cannot demonstrate a non-trivial

competitive injury because Square One actually benefits from GSA’s proposed corrective

action. See Def.’s Mot. 15. Because GSA is reprocuring the Solicitation, Square One

“will have the opportunity to be awarded the task order in any possible future

procurement.” Id. Plaintiff counters that reprocuring the Solicitation “just adds more

injury to Square One who must spend more time and money in writing and submitting a

third proposal.” 15 Pl.’s Resp. 15; see also id. at 3 (“Square One is harmed and does not

benefit from GSA’s re-procurement because it will be an added expense of time and

monies in preparing a third proposal.”).

Plaintiff has the burden of establishing its standing by a preponderance of the

evidence. See Lujan, 504 U.S. at 561; Centech Grp., 78 Fed. Cl. at 503. But plaintiff

cites to no authority that suggests that a disappointed offeror’s voluntary incursion of

costs to recompete for contract award for which it remains eligible qualifies as a non-

trivial competitive injury. 16 Simply stated, GSA’s reprocurement does not deprive

15

The proposed corrective action will be the second corrective action taken by GSA

in this procurement. See supra note 5 (referencing the first corrective action).

16

To be sure, the court has consistently found that requiring the original contract

awardee to recompete for contract award further to an agency’s corrective action qualifies

as a non-trivial competitive injury. See, e.g., Sys. Appl. & Techs., 691 F.3d at 1382

(concluding that the plaintiff had standing because “[a] arbitrary decision to take

corrective action without adequate justification forces a winning contractor to participate

in the process a second time and constitutes a competitive injury to that contractor”);

Navarro Research & Eng’g, Inc. v. United States, 106 Fed. Cl. 386, 404 (2012) (finding

that the plaintiff had standing because it was the successful “contract awardee not once,

but twice”); CBY Design Builders, 105 Fed. Cl. at 337 (“If, as [plaintiff] alleges, it is

arbitrarily being required to win the same award twice, this is certainly the sort of non-

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Square One of the opportunity to compete for contract. See Distributed Sols., Inc. v.

United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (finding that loss of “the opportunity

to compete” affected the plaintiffs’ direct economic interest); MORI Assocs., Inc. v.

United States, 102 Fed. Cl. 503, 542 (2011) (same). Because Square One has failed to

establish a redressable competitive injury resulting from GSA’s decision to reprocure the

Solicitation, the court concludes that Square One is not an interested party. Accordingly,

plaintiff’s protest as it relates to the proposed corrective action must be dismissed

because plaintiff LACKS STANDING.

In the interest of completeness, the court also addresses the justiciability doctrine

of ripeness, which serves as an alternative ground for dismissing plaintiff’s challenge to

the proposed corrective action.

2. Ripeness

“The justiciability doctrine of ripeness circumscribes the court’s review to cases

that present realized rather than anticipated or hypothetical injuries.” Madison Servs.,

Inc. v. United States, 90 Fed. Cl. 673, 678 (2009) (citing United Public Workers of Am.

v. Mitchell, 330 U.S. 75, 89–90 (1947)). “A claim is not ripe where it rests upon

‘contingent future events that may not occur as anticipated, or indeed may not occur at

all.’” Texas Bio- & Agro-Def. Consortium v. United States, 87 Fed. Cl. 798, 804 (2009)

(quoting Thomas v. Union Carbide, 473 U.S. 568, 581 (1985)); see also Commonwealth

Edison Co. v. United States, 56 Fed. Cl. 652, 658 (2003) (quoting Texas v. United States,

523 U.S. 296, 300 (1998)). Thus, “the ripeness doctrine . . . prevent[s] the courts,

through avoidance of premature adjudication, from entangling themselves in abstract

disagreements over administrative policies.” Abbott Labs. v. Gardner, 387 U.S. 136, 148

(1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). It also

operates “to protect the agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete way by the challenging

parties.” Id. at 148–49. An agency action is “ripe for judicial review” when (1) it “marks

‘the consummation of the agency’s decisionmaking process,’ i.e., it [is] not . . . merely

tentative or interlocutory,” and (2) it determines “rights or obligations” or is one “from

trivial competitive injury sufficient to support its standing to object to the corrective

action.”); Centech Grp., 78 Fed. Cl. at 504 (concluding that the plaintiff had standing

because it “was stripped of its status as the successful awardee de facto and relegated to

competing anew”); cf. Sys. Appl. & Techs., Inc., v. United States, 100 Fed. Cl. 687, 708

(2011) (observing that “in almost every decision in which the standing of a contract

awardee to protest a procuring agency’s corrective action was addressed, the court has

concluded that the protester had standing” (emphasis added)), aff’d, 691 F.3d 1374 (Fed.

Cir. 2012). Here, however, it is O’Gara, the defendant-intervenor, that was the original

contract awardee—not Square One.

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which legal consequences will flow.” NSK Ltd. v. United States, 510 F.3d 1375, 1385

(Fed. Cir. 2007) (quoting Bennett v. Spear, 520 U.S. 154, 177 (1997)).

The court first addresses plaintiff’s contention that GSA’s decision to amend the

solicitation and re-procure the task order was “improper” because Square One was “an

acceptable [offeror] next in line” for award. Compl. ¶ 90. In plaintiff’s view, “[t]here

was no need to resolicit,” because “the contract [should have been] issued to Square

One.” Id. Plaintiff essentially argues that awarding the contract to Square One was the

only reasonable corrective action GSA could have taken under the circumstances—an

argument premised on a finding that GSA should have rated Square One’s Technical

Proposal as Acceptable. However, the court has already found that GSA’s evaluation of

the original proposals is moot. See supra Part III.A.2. Moreover, even assuming

arguendo that plaintiff were correct, the court is without authority to direct the award to

Square One. See supra note 13.

The court next addresses plaintiff’s contention that “[i]n a re-procurement, Square

One would only correct its typographical error and again explain that its armor package

under the GSA Schedule does not have GSA part numbers as it is an option, and those

part numbers would be a manufacturer number.” Pl.’s Resp. 16. As defendant correctly

observes, Def.’s Reply 9, plaintiff may raise any concerns regarding its ability to comply

with the amended solicitation in a pre-award bid protest, see Blue & Gold Fleet, L.P. v.

United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007); see also Centech Grp., 78 Fed. Cl.

at 505 (“As the Federal Circuit has recognized, the challenge to terms of a solicitation

containing a patent error must be raised preaward or the ability to raise such an objection

is waived.” (citing Blue & Gold Fleet, 492 F.3d at 1313)). Thus, any claims plaintiff

might have in the future regarding the language of the amended solicitation would be the

subject of a different protest action. Such claims are not currently ripe for review.

The court now turns to plaintiff’s suggestion that GSA’s decision to reprocure the

Solicitation is merely a pretext for affording O’Gara an additional opportunity to correct

its proposal. Pl.’s Resp. 3. In plaintiff’s view, “there is an appearance of impropriety and

a concerted effort to award to one offeror over the others.” Id. at 15; see id. at 5 (“It

appear[s] that the GSA was trying to find fault with Square One and trying to excuse

O’Gara.”); Compl. ¶ 81 (“[T]he corrective action is a breach of good faith and fair

dealing because it is merely an excuse and [an attempt] to get more time for [O’Gara] . . .

to list its items on its GSA Schedule.”).

Plaintiff acknowledges, as it must, that there is “[a] strong presumption that

government officials act correctly, honestly, and in good faith when considering bids.”

Pl.’s Resp. 15 (citing Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed.

Cl. 488, 502 (2009)). Indeed, the court is “required to assume that the Government [will]

carry out the corrective action in good faith.” Chapman, 490 F.3d at 940; see also

Croman, 724 F.3d at 1364 (“The presumption that government officials act in good faith

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is enshrined in our jurisprudence.”). Moreover, this court has stated that, “[a]bsent

countervailing indications, this presumption ought to be at its zenith where the

government has yet to act.” Boston Harbor Dev. Partners, 103 Fed. Cl. at 503. Plaintiff

argues, however, that this good faith presumption “is voided [when] the agency is

allowing a third try to a bidder and time to correct and be responsive to the solicitation.”

Pl.’s Resp. 15.

The court agrees with defendant that “Square One’s allegation that a re-

procurement is a pretext to find a way to award the contract to O’Gara is entirely without

basis.” Def.’s Mot. 15. Where, as here, a plaintiff alleges that the government has acted

in bad faith, the plaintiff must offer “well-nigh irrefragable proof” in support of its claim.

Croman, 724 F.3d at 1364 (internal quotation marks omitted); Chapman, 490 F.3d at 940.

Square One’s unsubstantiated allegations, however, do not approach the well-nigh

irrefragable proof necessary to overcome the presumption that government officials act in

good faith. Accord Eskridge, 92 Fed. Cl. at 95, 95 n.8 (concluding same); cf. Def.’s Mot.

15 (“[I]f GSA officials truly were predetermined to award the task order to O’Gara,

canceling the award to O’Gara and re-procuring the requirement seems an inefficient way

to accomplish the goal.”).

The court also agrees with defendant that “[a]ny allegation that GSA’s officials

will not act in good faith in executing the corrective action, which includes re-procuring

the requirement, raises purely hypothetical arguments about future events that [might] or

[might] not occur.” Def.’s Mot. 15; see also id. at 15–16 (“Square One’s allegations raise

nothing more than a basis for a purely academic discussion about what could happen

when GSA re-procures the task order.”). If at the conclusion of the re-procurement

process, the record establishes that GSA “did not properly carry out the corrective

action,” Square One will have the opportunity to challenge the new award decision. See

Eskridge, 92 Fed. Cl. at 95; cf. Pl.’s Resp. 9, 17 (acknowledging that Square One could

return to this court to challenge GSA’s administration of the corrective action). Thus,

plaintiff’s anticipated claims regarding the implementation or execution of GSA’s

proposed corrective action are not yet ripe for review. See Eskridge, 92 Fed. Cl. at 95

(concluding that the protestor’s “[c]hallenges to the outcome of th[e] [corrective] action

at this time are . . . not fit for judicial review”).

In light of the foregoing, plaintiff’s protest as it relates to the proposed corrective

action must be dismissed as UNRIPE.

C. The Court Lacks Jurisdiction Over Square One’s Claim for Bid Protest

Costs

Square One contends that it “is entitled to an award of protests costs, including

attorneys’ fees.” Pl.’s Mot. 26; see Compl. at 40 (requesting an award of “reasonable

attorney’s fees, costs and expenses of this matter). This court, however, does not have

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jurisdiction to entertain plaintiff’s request for bid protest costs or related attorney’s fees.

“[T]he Tucker Act only allows recovery for bid preparation and proposal costs.” S.K.J.

& Assocs., Inc. v. United States, 67 Fed. Cl. 218, 225 (2005) (citing 28 U.S.C. §

1491(b)(2)); see Coastal Envtl. Grp., 114 Fed. Cl. at 132 (quoting same).

To the extent that Square One seeks bid preparation and proposal costs, see Pl.’s

Resp. 3, 15, Square One is not entitled to such relief. GSA is re-procuring the

Solicitation, and Square One retains the opportunity to compete for the task order. As

such, plaintiff’s investment in its proposals is not “a needless expense and [plaintiff] may

yet see the fulfillment of the promise of fair and impartial consideration which induced it

to spend its money to prepare its bid.” Beta Analytics Int’l, Inc. v. United States, 75 Fed.

Cl. 155, 159 (2007) (internal quotation marks and citations omitted); B&B, 2014 WL

3587275 at *7 n.18 (“B & B’s request for bid preparation and proposal costs is not yet

ripe because B & B remains in the competition for the contract and may be awarded the

contract.”); see Tech. Innovation, Inc. v. United States, 93 Fed. Cl. 276, 279 n.12 (2010)

(observing that the plaintiff’s “claim for bid preparation and proposal costs would seem

to be mooted by the [agency’s corrective action]”); CCL, 43 Fed. Cl. at 693 (dismissing

as moot plaintiff’s request for bid preparation costs in light of the agency’s corrective

action); cf. Def.’s Reply 8 (“We are aware of no authority for awarding costs to an

unsuccessful offeror who will have the opportunity to re-compete for an award.”).

IV. Conclusion

Because plaintiff’s bid protest is “trapped between the devil and the deep blue sea

of ripeness and mootness,” plaintiff has failed to allege a justiciable controversy.

Madison Servs., 90 Fed. Cl. at 678. Moreover, plaintiff lacks standing to challenge the

proposed corrective action. Accordingly, plaintiff’s motion is DENIED, and defendant’s

cross-motion is GRANTED. Plaintiff’s bid protest is DISMISSED. The Clerk of Court

shall enter judgment accordingly. No costs.

The Clerk of the Court shall assign to the undersigned any future protests

involving re-procurement of the subject solicitation. If a future protest is filed, the parties

shall indicate in their filing that the case is related to this one and request that it be

assigned to the undersigned.

IT IS SO ORDERED.

s/ Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH

Chief Judge

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