Itility, LLC v. United States

In the United States Court of Federal Claims

No. 15-237C

(Filed under seal December 29, 2015)

(Reissued January 7, 2016)†

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

*

*

ITILITY, LLC, * Pre-award bid protest; Rule 12(b)(1)

* motion to dismiss; Contractor

Plaintiff, * Performance Assessment Report; 48

* C.F.R. § 42.1503(b)(1), (d); contract

v. * administration under Contract

* Disputes Act, 41 U.S.C. § 7101 et seq.;

THE UNITED STATES, * not ripe; no subject-matter

* jurisdiction.

Defendant. *

*

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

Isaias Alba, IV, PilieroMazza PLLC, with whom were Corey P. Argust,

Ambika J. Biggs, and Alexander O. Levine, all of Washington, DC, for plaintiff.

Gregg P. Yates, Commercial Litigation Branch, Civil Division, Department of

Justice, with whom were Benjamin C. Mizer, Acting Assistant Attorney General,

Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director,

all of Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Plaintiff, ITility, LLC, has filed this matter as a pre-award bid protest. The

suit concerns a past performance evaluation ITility received from the United States

Air Force and the effect of this evaluation on its ability to compete for awards in

pending and future procurements. Plaintiff has moved for a preliminary injunction,

and the government has responded with a motion to dismiss the case for lack of

subject-matter jurisdiction under Rule 12(b)(1) of the Rules of the United States

† This opinion was initially filed under seal, to allow the parties to propose

redactions --- which have been adopted, with the deleted text replaced in the

following manner: “[XXX].” The opinion is released for publication with a few

minor, non-substantive corrections.

Court of Federal Claims (RCFC). For the reasons set forth below, the government’s

motion is GRANTED and, as a consequence, plaintiff’s is DENIED.

I. BACKGROUND

Plaintiff was awarded Contract No. FA4890-12-D-0008-0057 by the Air Force

on September 23, 2013, and served as the prime contractor on that contract through

September 26, 2014. See Mem. in Supp. of Mot. for TRO and Prelim. Inj. (Pl.’s Br.),

Ex. B (“First Sload Decl.”) ¶ 2.1 The contract sought program management support

for the Air Force’s Air Combat Command A6C-T User Defined Operational Picture

(UDOP) Rapid Innovation Funds effort. Id. The Air Force was seeking to develop

an application that would allow its personnel to select multiple programs/databases

and “view them together on a single ‘dashboard’ interface,” which is known as a

UDOP. See Def.’s Mot. to Dismiss Compl. and Opp’n to Pl.’s Appl. for TRO and Mot.

for Prelim. Inj. (Def.’s Mot.) at 4–5. ITility’s role under the contract was to provide

program management and technical support for this UDOP initiative, which

included overseeing the UDOP schedule and monitoring UDOP progress, developing

a “best practices” plan for using the UDOP, building a demonstration site, and

facilitating collaboration relating to the UDOP initiative between units and

agencies. Id.; see also Compl. ¶¶ 12–25.

After numerous disputes between ITility and the Air Force with regards to

ITility’s performance under the contract --- including the Air Force’s issuance of

three deficiency notices, a corrective action request, and a cure notice --- the Air

Force finally issued a stop-work order on the contract on June 27, 2014, and the

period of performance was allowed to expire. See Admin. R. (AR) 501; see also AR

158–67, 171–81, 185–86, 363. Then, on November 5, 2014, Theresa Johnson, the

Air Force’s Contracting Officer, issued an interim Contractor Performance

Assessment Report (CPAR) concerning the contract, which rated ITility’s

performance as “[XXX].” Compl. ¶ 28; AR 369. Plaintiff alleges this interim CPAR

used “hyperbolic language” to describe ITility’s performance. Compl. ¶ 28. On

November 18, 2014, ITility filed comments to the interim CPAR, contending that

the CPAR was filled with “errors” and completely omitted “any discussion of [the

Air Force]’s failure to meet the requirements of the contract.” Id. ¶ 29; see AR 367–

88 (interim CPAR with ITility’s comments). ITility claimed that it was not

responsible for the failed contract, instead arguing that the Air Force was to blame

because the Air Force had “never given” ITility “access to the current UDOP servers

within [the Air Force’s] sole possession,” which was necessary in order for ITility “to

perform work under the [c]ontract.” Compl. ¶ 13. ITility also claimed that it was

unable to access a website --- hosted by another contractor, Sitscape --- that was

1 A copy of this declaration was also filed as Exhibit A to the complaint.

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necessary to allow it to complete its performance.2 Id. ¶¶ 14–16; First Sload Decl.

¶¶ 6–9. On January 23, 2015, the Air Force issued a final version of the CPAR,

which softened some of the language from the interim CPAR but did not amend

ITility’s “[XXX]” ratings. Compl. ¶ 30; see AR 525–47.

On March 6, 2015, plaintiff filed the complaint in this case, framed as a bid

protest, accompanied by its motion for a preliminary injunction. Plaintiff alleges

that the final CPAR issued by the Air Force contains inaccurate information and

fails to provide necessary relevant information and context regarding the Air

Force’s hindrance of ITility’s performance. According to plaintiff, the Air Force’s

CPAR violates the Federal Acquisition Regulation (FAR) provision requiring that

past performance evaluations include “relevant information that accurately depicts

the contractor’s performance” and be “based on objective facts,” Compl. ¶ 5 (quoting

48 C.F.R. § 42.1503(b)(1)), because it is inaccurate and misleading and will be

viewed by procuring agencies to evaluate ITility’s past performance, id. ¶¶ 41–46.

Plaintiff also contends that the government violated the FAR requirement that

agencies “consider disagreements between the parties regarding the evaluation”

because the reviewing official refused to address ITility’s comments disputing the

CPAR. Id. ¶¶ 52–55 (quoting 48 C.F.R. § 42.1503(d)). Instead, the reviewing

official merely noted that “many of the contractor comments contained within this

CPAR also appear within the non-conformance documentation within the contract

file,” and thus the official felt there was “no need to re-address those issues here.”

Id. ¶ 53. Finally, plaintiff claims that the viewing of this allegedly inaccurate and

misleading CPAR by procuring agencies will result in an arbitrary and capricious

determination of ITility’s acceptability for contract award, due to the FAR

requirement that past performance be considered. Id. ¶¶ 58–62 (citing 48 C.F.R.

§ 15.305(a)(2)).3

2 Sitscape had a separate agreement with USAF, which ended in November 2013,

at which point Sitscape’s services and websites apparently ceased working. First

Sload Decl. ¶ 8.

3 Plaintiff also claimed that the government had violated the FAR provision

requiring the government to provide contractors with “an opportunity to post

comments” in response to a performance evaluation, and that such comments must

“remain a part of the record.” Compl. ¶¶ 48–51 (quoting 48 C.F.R. § 52.209-9(c)(2)).

Plaintiff alleged that the final CPAR did not include ITility’s comments disputing

the CPAR’s conclusions, Compl. ¶ 49, as the version of that document sent to

plaintiff merely stated that ITility’s comments could be found in the earlier

evaluation. Ex. E to Pl.’s Br. at 3–4. But the version of the final CPAR available to

government procurement officials does contain ITility’s comments, see AR 528–47,

and thus this claim is no longer at issue.

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Plaintiff alleges that it has submitted proposals in eleven currently pending

procurements worth upwards of $200 million, and intends to submit proposals in

response to twenty-seven additional solicitations worth upwards of $1.5 billion, all

of which will involve consideration of past performance. Compl. ¶¶ 36–37, 39; see

also First Sload Decl. ¶¶ 61–62, 64. ITility asserts that our court has jurisdiction

over this matter as a bid protest under 28 U.S.C. § 1491(b)(1), “based on the

proposed award of a contract and based on the imminent violation of a regulation in

connection with a procurement or a proposed procurement as agencies are currently

about to evaluate ITility’s past performance” by reviewing the Air Force’s CPAR.

Compl. ¶ 1.4 Plaintiff contends that an agency’s “threatened consideration of the

information” in the CPAR would violate procurement laws and regulations, id.

¶¶ 2–3, and that it “will suffer direct economic impact” due to these violations, id.

¶ 7.

To rectify the alleged violations, plaintiff has moved for a preliminary

injunction, requesting that the Court enjoin the Air Force from “continuing to

publish the CPAR entry” and to enjoin “the agencies to which ITility has submitted

pending bids from reviewing the CPAR entry.” Pl.’s Br. at 39; see also id. at 1;

Compl. at 18; Opp’n to Def.’s Mot. to Dismiss Compl. (Pl.’s Opp’n) at 26. The

government responded with a motion to dismiss the case for lack of subject-matter

jurisdiction under RCFC 12(b)(1), arguing that a challenge to the substance of the

CPAR does not come under our court’s bid protest jurisdiction and that a challenge

to the use of the CPAR in any on-going or future procurements is not ripe. Def.’s

Mot. at 1–2, 17–29. Because jurisdiction is a threshold question, see Affiliated

Constr. Grp. v. United States, 115 Fed. Cl. 607, 611 (2014) (citing Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)), the Court must first be satisfied

that it has jurisdiction before considering the merits of a claim under 28 U.S.C. §

1491(b)(1). See Info. Tech. & Appls. Corp. v. United States, 316 F.3d 1312, 1319

(Fed. Cir. 2003); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d

1366, 1369–70 (Fed. Cir. 2002); Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228,

244 (2011).5

4No proposed award has actually been identified for any of the procurements

mentioned in the complaint.

5 The Federal Circuit has held that ripeness is a jurisdictional issue. See CBY

Design Builders v. United States, 105 Fed. Cl. 303, 331 n.22 (2012) (citing Coal. for

Common Sense in Gov’t Procurement v. Sec’y of Veterans Affairs, 464 F.3d 1306,

1316 (Fed. Cir. 2006)).

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II. DISCUSSION

A. Legal Standards

Bid protests are heard by this Court under the Tucker Act, as amended by

the Administrative Dispute Resolution Act of 1996 (ADRA), Pub.L. No. 104–320,

§ 12(a)–(b), 110 Stat. 3870, 3874. The relevant provision states that our court:

. . . shall have 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). Under this provision, “[a] non-frivolous allegation of a

statutory or regulatory violation in connection with a procurement or proposed

procurement is sufficient to establish jurisdiction.” Distributed Sols., Inc. v. United

States, 539 F.3d 1340, 1345 n.1 (Fed. Cir. 2008).

The Federal Circuit has construed the ADRA term “interested party” to have

the same definition as under the Competition in Contracting Act (CICA), 31 U.S.C.

§ 3551–56, encompassing “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., AFL–CIO v. United States (AFGE ),

258 F.3d 1294, 1302 (Fed. Cir. 2001) (citing 31 U.S.C. § 3551(2)). In the context of a

pre-bid, pre-award protest, the requisite interest supporting standing and prejudice

is established by alleging “a non-trivial competitive injury which can be redressed

by judicial relief.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1363 (Fed.

Cir. 2009); see also Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir.

2013).

Normally when considering a motion to dismiss --- even one based on the lack

of subject-matter jurisdiction --- a court must accept all well-pleaded facts as true

and draw all reasonable inferences in the plaintiff's favor. See Scheuer v. Rhodes,

416 U.S. 232, 236 (1974); Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed.

Cir. 2002); Englewood Terrace Ltd. P’ship v. United States, 61 Fed.Cl. 583, 584

(2004). But when jurisdictional facts are challenged, the plaintiff must demonstrate

jurisdiction by a preponderance of the evidence. See McNutt v. GMAC of Ind., 298

U.S. 178, 189 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748

(Fed. Cir. 1988). In examining jurisdictional facts, a court may consider all relevant

evidence, including material outside the pleadings. See Land v. Dollar, 330 U.S.

731, 735 & n.4 (1947); KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936);

Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999); Indium Corp. of Am. v.

Semi–Alloys, Inc., 781 F.2d 879, 884 (Fed. Cir. 1985); Forest Glen Props., LLC v.

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United States, 79 Fed. Cl. 669, 676–78 (2007); Patton v. United States, 64 Fed. Cl.

768, 773 (2005).

B. Analysis

ITility maintains that this challenge to the Air Force CPAR comes under our

court’s bid protest jurisdiction. It contends that the mere issuance of a CPAR

containing inaccurate information violates the FAR, in connection with a

procurement or proposed procurement, relying primarily on a district court opinion.

See Pl.’s Opp’n at 4–8 (discussing, inter alia, Pub. Warehous. Co. K.S.C. v. Def.

Supply Ctr. Phila., 489 F. Supp. 2d 30 (D.D.C. 2007)); Compl. ¶ 4 (same). And

plaintiff argues that the “threatened” or “imminent” use of the CPAR in the

evaluations of its proposals in pending and future procurements constitutes an

actionable claim under our bid protest jurisdiction. Compl. ¶¶ 1–3, 60–63; Pl.’s

Opp’n at 1–3, 6–7, 9–11.

The government contends that challenges to the substance of contractor

performance evaluations are the exclusive province of the Contract Disputes Act

(CDA), 41 U.S.C. § 7101 et seq., and may not be raised in a bid protest. Def.’s Mot.

at 1, 17. It relies principally upon two binding precedents of the Federal Circuit.

Id. at 17, 19–21 (citing, inter alia, Todd Constr., L.P. v. United States, 656 F.3d

1306 (Fed. Cir. 2011); Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir.

2005)). And defendant maintains that a bid protest challenging the use of a

performance evaluation is not ripe until a procuring agency actually uses the

evaluation to an offeror’s detriment. Id. at 27–29.

Plaintiff responds by arguing that the possibility that a claim could be stated

under the CDA should not preclude an action relying on an independent basis, such

as a bid protest; and that since the relief it seeks is not a contract remedy available

under the CDA, its claims cannot be considered to be CDA claims. Pl.’s Opp’n at 2–

8. After carefully considering the arguments of both parties, written and oral, the

Court concludes that jurisdiction may not be exercised over the subject matter of

plaintiff’s complaint.

1. Contract Administration Issues Must Be Brought as CDA Claims

The first two counts of the complaint are challenges to the substance of the

Air Force CPAR. In the first count, ITility alleges that the assessment of its

contract performance “includes inaccurate and misleading facts, as well as material

omissions,” Compl. ¶ 43, in violation of 48 C.F.R. § 42.1503(b), Compl. ¶ 42. In the

second count, plaintiff contends that the official who reviewed the assessment failed

to “consider disagreements between the parties,” in violation of 48 C.F.R.

§ 42.1503(d), and failed to ensure that the record contained accurate information

based on objective facts, reiterating the alleged violation of 48 C.F.R. § 42.1503(b).

See Compl. ¶¶ 52–55. Because these counts allege violations of a regulation in

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connection with a procurement, ITility maintains that they may be brought under

our court’s 28 U.S.C. § 1491(b)(1) bid protest jurisdiction.

There are several problems with this argument. Perhaps the most

fundamental problem is that, while the CPAR was indeed created “in connection

with a procurement,” 28 U.S.C. § 1491(b)(1), the procurement in question was one

in which ITility performed as the contractor, not one in which plaintiff was merely

an offeror or prospective offeror. As the Court has explained, see Kellogg Brown &

Root Servs., Inc. v. United States, 117 Fed. Cl. 764, 768–69 (2014), a long line of our

cases has held that the “interested party” standing to bring a bid protest does not

extend to the complaints of contractors concerning the administration of contracts

they have been awarded and performing. When a party objects to a decision by a

federal agency that was made because that party was a government contractor, and

not because the party was an offeror for a contract to be awarded, then the matter is

properly viewed as seeking “relief arising under or relating to the contract” held by

the party, 48 C.F.R. § 2.101, rather than presenting a circumstance in which the

party’s “direct economic interest would be affected by the award of the contract or

by failure to award the contract,” 31 U.S.C. § 3551(2).6 Although a procurement

may run through “contract completion and closeout,” see Distributed Sols., Inc. v.

United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (quoting what was then 41

U.S.C. § 403(2), now found at 41 U.S.C. § 111), the impact of a contract award (or

the failure to award) ceases to be relevant once a party becomes the contractor for

that procurement. At that stage, the interest of the party changes from that of an

offeror to that of a contractor, and the CDA becomes the vehicle for resolving

disputes. See Kellogg Brown & Root Servs., 117 Fed. Cl. at 769–70.

That a contractor’s challenge to the substance of an agency’s performance

evaluation may be brought as a CDA claim is beyond doubt. In Todd Construction,

L.P. v. United States, 656 F.3d 1306 (Fed. Cir. 2011), the Federal Circuit held that

such a challenge constituted a claim for CDA purposes, as it related to the federal

contract. Id. at 1311–16. ITility attempts to distinguish Todd Construction as

turning on the declaratory relief sought, in contrast to the injunction it seeks in this

matter. See Pl.’s Opp’n at 3 (citing Todd Constr., 656 F.3d at 1311).7 But while the

6 This is in contrast to the circumstance in which an awardee is forced to compete

again for the award due to corrective action by an agency. See Sys. Appl. & Techs.,

Inc. v. United States, 691 F.3d 1374, 1381–83 (Fed. Cir. 2012); CBY Design

Builders, 105 Fed. Cl. at 336–37. By jeopardizing the award, the corrective action

implicates the awardee’s interest in the award itself, making a challenge to any

alleged associated illegalities a proper subject for a bid protest. See Kellogg Brown

& Root Servs., 117 Fed. Cl. at 769 n.5.

7 Plaintiff does, however, request “all other relief that the Court finds to be just and

proper,” Compl. at 18, which can be construed as seeking a declaratory judgment in

addition to the specific injunctive relief enumerated.

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Federal Circuit did describe the relief sought as “in essence a declaratory judgment

that the government’s performance evaluations were unfair and inaccurate,” Todd

Constr., 656 F.3d at 1311, and did leave undecided “whether an injunction was

available pursuant to the . . . ‘power to remand appropriate matters to any

administrative or executive body or official with such direction as it may deem

proper and just,’” id. at 1311 n.3 (quoting 28 U.S.C. § 1491(a)(2)), the Circuit’s

analysis did not concern the type of relief at issue, see id. at 1311–15. Instead, the

subject of the relief sought was what mattered, as the Circuit found that “the

unsatisfactory performance evaluations . . . relate to Todd’s performance under the

contract,” and concluded that a valid CDA claim was one that “relates to [the

contractor’s] performance under the contract.” Id. at 1313–14.

In any event, even if injunctive relief were not available under the CDA, a

contractor does not convert a dispute relating to its contract performance into a bid

protest by seeking such relief. As the Court explained above, the claim could still

not rest on the interested party standing of an offeror. If Congress chose to

withhold a form of relief from contractors in their disputes with government

agencies, their recourse is to accomplish what they may with the tools that are

given. For instance, a declaration that a CPAR was arbitrarily issued and

contained inaccurate information could be communicated to procurement officials in

subsequent contract competitions, and would set the stage for injunctive relief in a

bid protest if that CPAR is relied upon to an offeror’s prejudice.8

Moreover, if plaintiff’s request for injunctive relief addressing the alleged

substantive inaccuracies of the Air Force CPAR were to place the matters outside

our court’s CDA jurisdiction, the relief would still not be available in a bid protest.

In considering a challenge to an agency’s failure to assess a contractor’s rebuttals to

its performance evaluations, the Federal Circuit held that “a bid protest is not the

proper forum, under FAR § 42.1503(b), to litigate [performance evaluation]

disputes.” Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed. Cir. 2005).

Although the procedural challenge to the evaluations was found to be properly

brought in a bid protest, the substantive challenge was not. Id. at 1351–53.

In the face of this contrary, binding precedent, ITility places great weight on

a district court opinion, Public Warehousing Co. K.S.C. v. Defense Supply Ctr.

Phila., 489 F. Supp. 2d 30 (D.D.C. 2007). See Pl.’s Opp’n at 6–8. In Public

Warehousing, a contractor tried to challenge, in the U.S. District Court for the

District of Columbia, an agency’s refusal to provide performance evaluations of its

work on two contracts, and the evaluation that agency issued regarding another

contract. Pub. Warehous., 489 F. Supp. 2d at 31–34. This opinion does not

8 The Court notes that injunctive relief may nevertheless be available in CDA

challenges to performance evaluations, under either the power to remand matters

with proper direction or the power to direct the correction of applicable records. See

28 U.S.C. § 1491(a)(2).

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persuade the Court that bid protest jurisdiction extends to challenges of the

substance of performance evaluations, for several reasons.

First, the claim in that case which concerned the substance of an evaluation

was conceded not to be ripe for review, as the contractor was still “in the process of

exhausting its administrative remedies.” Id. at 34. The remaining claims ---

concerning the defendant agency’s denial of requests for past performance

information, which were made by agencies considering the contractor’s bids for

other contracts, see id. at 33 --- were distinguished by the district court from the

claims found out-of-bounds in Bannum. Id. at 42 n.10. The district court explained

Bannum as finding “that a subsequent disappointed bidder protest is not the proper

place to object to the contents of an evaluation,” id. (citing Bannum, 404 F.3d 1353),

whereas its case was “against an evaluating agency for refusing to provide

performance evaluations or information,” id. Thus, the facts alleged in Public

Warehousing were that agencies, in the process of conducting contract competitions,

were rebuffed when requesting past performance evaluations that they evidently

believed were relevant to their own procurements. The allegedly illegal refusals to

provide the information were made in connection with the on-going contract

competitions, regarding which the contractor was certainly an interested party

under 31 U.S.C. § 3551(2). No such pattern of requests and refusals are present in

ITility’s case.

Second, the Public Warehousing decision merely held that a contractor’s

challenge to an agency’s violation of regulations concerning performance

evaluations, when framed as a request for review under the Administrative

Procedure Act, 5 U.S.C. § 701 et seq., could not be heard in a district court because

of the ADRA’s sunset provision regarding district court jurisdiction. See Pub.

Warehous., 489 F. Supp. 2d at 36–37. Confined to the facts of that case, in which

the ripe claims alleged violations that interfered with contract competitions, this is

hardly controversial. The district court did not consider whether other statutes,

such as the CDA, removed contract-related claims from its jurisdiction, and

certainly did not opine on when the CDA had to be followed to bring claims within

our jurisdiction.9

Third, to the extent that the district court’s analysis reached beyond the

relevant facts, this analysis was impaired by the failure of the parties to draw the

CDA to the district court’s attention. As a consequence, the district court’s

discussion rested on the incorrect premise that matters of contract administration

9 The court did acknowledge that there could be obstacles to our jurisdiction over

the claims of the case, such as a lack of standing. See Pub. Warehous., 489 F. Supp.

2d at 42 n.10.

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came under our section 1491(b) jurisdiction, see id. at 43–44, instead of our CDA

jurisdiction, see 28 U.S.C. § 1491(a)(2) (citing 41 U.S.C. § 7104(b)(1)).10

Finally, our court’s issuance of a temporary restraining order, after Public

Warehousing Co. filed a bid protest here, see Pub. Warehous. Co. K.S.C. v. United

States, No. 07-366C, 2007 U.S. Claims LEXIS 431 (June 13, 2007), is not a

persuasive precedent regarding our bid protest jurisdiction over the substance of

performance evaluations. Although the order necessarily touched upon the

substance of the one evaluation that was issued, see id. at *1–*2, it contains no

discussion of jurisdiction and thus has no power to persuade on the topic, see Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (discussing “drive-by

jurisdictional rulings”). In any event, since the claims challenging the agency’s

refusal to provide evaluations were squarely within our bid protest jurisdiction, a

restraining order could also affect the issued evaluation as a “proper and just”

direction under our section 1491(b)(2) remand power.

As explained above, plaintiff’s challenges to the substance of the Air Force

CPAR involve questions of contract administration that must be brought under the

CDA. Since ITility had not submitted a claim to the contracting officer under the

CDA’s requirements, see 41 U.S.C. § 7103(a), our court lacks subject-matter

jurisdiction over the first two counts of the complaint. See Kellogg Brown & Root

Servs., 117 Fed. Cl. at 770.

2. No Ripe Claim Is Stated Regarding the Use of the CPAR

As the government correctly notes, the use of a performance evaluation in a

competitive procurement may be challenged in a bid protest. See Def.’s Mot. at 22

(citing AM Gen., LLC v. United States, 115 Fed. Cl. 653, 695 (2014); Gulf Grp., Inc.

v. United States, 61 Fed. Cl. 338, 357–59 (2004); Overstreet Elec. Co. v. United

States, 59 Fed. Cl. 99, 117 (2003)). Under a very deferential review standard, see

Gulf Grp., 61 Fed. Cl. at 357, such a challenge is limited to whether an agency

conducting an award competition rationally relied upon the evaluation record and

10 The opinion also inaccurately found that the “violation of statute or regulation”

clause of section 1491(b)(1) would be superfluous if limited to bid protests,

misconstruing the Federal Circuit’s rejection of the argument that the clause is

limited to challenges to contract awards. See Pub. Warehous., 489 F. Supp. 2d at 40

(citing RAMCOR Servs. Grp. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999)).

But in addition to actions that affect bid protests, such as an override of the CICA

stay, see RAMCOR, 185 F.3d at 1290, the clause provides jurisdiction over pre-

award exclusions from competition, see Orion Tech., 704 F.3d at 1347; Med. Dev.

Int’l, Inc. v. United States, 89 Fed. Cl. 691, 701 (2009), as well as other decisions

that prevent interested parties from competing for awards, such as solicitation

cancellations, see MORI Assocs. v. United States, 102 Fed. Cl. 503, 522–25 (2011), or

the decision to forgo competition, see Distributed Sols., 539 F.3d at 1346.

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to procedural defects with the report, as the substance of the underlying CPAR

could not be litigated in a bid protest, Bannum, 404 F.3d at 1353.11

The third count of the complaint concerns the use of the Air Force CPAR by

other agencies. See Compl. ¶¶ 58–62. But instead of alleging that the CPAR has

been relied upon to its detriment, ITility discusses prospective use only, employing

such formulations as “any reliance upon that CPAR . . . would be arbitrary and

capricious,” id. ¶ 58 (emphasis added); “review of the CPAR entry at issue will be

arbitrary,” id. ¶ 60 (emphasis added); “ITility’s position as an offeror . . . will be

adversely affected,” id. ¶ 61 (emphasis added); and “[p]rocuring agencies will view

the inaccurate and unfair CPAR entry . . . and likely deem ITility unacceptable,” id.

¶ 62 (emphasis added). See also id. ¶ 1 (alleging an “imminent violation . . . as

agencies are currently about to evaluate ITility’s past performance”); id. ¶ 2

(alleging “threatened consideration” of the CPAR information).

Concerning this count, it might be enough merely to note that our bid protest

jurisdiction extends over “any alleged violation of statute or regulation in

connection with a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1),

and not over “threatened” or “imminent” or “potential” or “future” violations. That

these matters involve something that has occurred, and not what might occur, is

further underscored by the ADRA’s reference to “the agency’s decision” that is

under review in such cases, 28 U.S.C. § 1491(b)(4). Plaintiff argues that suitably

final decisions are at issue in this protest, both the decision to issue the CPAR and

an unspecified “plan to consider that CPAR entry.” Pl.’s Opp’n at 10. 12 The latter

is presumably a consequence of the FAR provision describing the requirement that

past performance be considered in evaluating offers. See id. at 11 (citing 48 C.F.R.

§ 15.305(a)(2)).

But the requirement that procurement officials consider past performance

information does not mean that they will find any particular performance

evaluation to be relevant to the procurement they are conducting, much less

material to their assessment of an offeror’s ability to perform. Unlike the situation

in which an agency has allegedly violated a statute through the terms of an issued

11 Even if plaintiff’s allegation that the reviewing officer failed to consider the

parties’ disagreements, in violation of 48 C.F.R. § 42.1503(d), were viewed as a

procedural rather than a substantive challenge, the matter would not be ripe for the

reasons explained.

12 Although both parties discuss ripeness in terms of the APA’s required “final

agency action,” see Pl.’s Opp’n at 10; Def.’s Mot. at 28, that portion of the APA was

not incorporated into the ADRA. See CBY Design Builders, 105 Fed. Cl. at 336. But

whether a “final agency action” or a “decision” is required, plaintiff has not

sufficiently alleged either.

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solicitation, see Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1362–63 (Fed.

Cir. 2009), no decision has yet been made that can be said to have inflicted a non-

trivial competitive injury upon plaintiff. Nor can such a decision be presumed. Not

only does the CPAR contain ITility’s comments, see AR 528–47, but the contract

performed was a rather modest effort, totaling only $180,000, AR 525, and utilizing

only 1.2 FTEs, AR 149. Plaintiff estimated that the eleven procurements for which

it submitted offers totaled more than $200 million in potential awards, Compl.

¶¶ 36, 39 --- an average of more than $18 million per contract.13 It is thus far from

likely that a contract of the size performed for the Air Force could even be found

relevant to these procurements, and plaintiff has not alleged anything to the

contrary.14

In sum, the use of a CPAR by a procuring agency may not be challenged

before it has actually been used. ITility has alleged no assessment of its ability, in a

contract award competition, that relied upon the Air Force’s CPAR to its detriment.

Accordingly, the claims in count three of the complaint are not ripe for review, and

must be dismissed for lack of subject-matter jurisdiction.

III. CONCLUSION

For the reasons set forth above, the government’s motion to dismiss the case

for lack of subject-matter jurisdiction, under RCFC 12(b)(1), is GRANTED, and

plaintiff’s motion for a preliminary injunction must therefore be DENIED. The

Clerk shall close the case.

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Judge

13 Plaintiff identified another twenty-seven solicitations to which it intended to

respond which totaled more than $1.5 billion, Compl. ¶¶ 37, 39, which would

average more than $55 million per contract.

14 Indeed, while this protest has been pending, ITility has not filed any

supplemental complaints, under RCFC 15(d), alleging that the CPAR has been

relied upon to its detriment.

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