Diaz v. United States

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No. 16-138C

Fifed: July 27,2016 FILED

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t U,S. COURTOF

KEVIN DIAZ, FEDERAL CLAIMS

Plaintiff, Pro Se Plaintiff; Subject Matter

Jurisdiction; Attorney

v. Representation for a Business

UNITED STATES, et a1.,1 Entity; RCFC 83.1(aX3); Standing.

Defendant.

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Kevin Diaz, pro se, Boston, Ma.

Alison S. Vicks, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With her were

Douglas K. Mickle, Assistant Director, Robert E. Kirschman, Jr., Director, Commercial

Litigation Branch, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,

Civil Division, United States Department of Justice, Washington, D.C.

1 Plaintiffalso lists as defendants: "Renee Brown, Deputy Chief[,] Navy, IHEODTD

Contracting Office and Thomas Kearney, Executive Officer and Director of

Commonality[,] Navy, AEODRS Program and Michael Meyers, Director Future Naval

Capabilities SBIR Transition Program[,] Navy, Office of Naval Research and Lee

Mastroianni, Force Protection Thrust Manager[,] Navy, Office of Naval Research." All

claims filed in the United States Court of Federal Claims, however, must be filed against

the United States as the only defendant. See Rule 10(a) of the Rules of the United States

Court of Federal Claims (RCFC) (2015). The United States Supreme Court has indicated,

for suits filed in the United States Court of Federal Claims and its predecessors, "if the

relief sought is against others than the United States the suit as to them must be ignored

as beyond the jurisdiction of the court." United States v. Sherwood, 312 U.S. 584, 588

(1941) (citation omitted); see also Kurt v. United States, 103 Fed. Cl. 384, 386 (2012);

Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003). Because it is well-established

that this court does not have jurisdiction to hear any claims against defendants other than

the United States, all of plaintiffs claims against any proposed defendant other than the

United States are dismissed.

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OPINION

HORN. J.

FINDINGS OF FACT

Pro ge plaintiff, Kevin Diaz,2 filed a complaint in the United States Court of Federal

Claims on January 28, 2016, alleging that the United States Department of the Navy

(Navy) wrongfully rejected his unsolicited proposal and "failed to comply with Federal

Acquisition Regulation (FAR) Subpart 15.6 during the agency's review process." See 48

C.F.R. S 15.6 (2016). As relief, plaintiff seeks $1,400,000.00 in damages. Before filing a

complaint in this court, plaintiff had filed a similar complaintwith the United States Armed

Services Board of Contract Appeals (ASBCA), alleging substantially the same claims, but

seeking a different amount of monetary relief of $725,000.00 in damages.3 On March 29,

2016, the ASBCA granted defendant's motion to dismiss for lack of jurisdiction on the

basis that plaintiff had not alleged the existence of a contract. See In re Kevin Diaz,

A.S.B.C.A. No. 60369, 2016 WL 1446472 (Mar. 29, 2016).

Plaintiffs comolaint. which was filed in this court while the ASBCA case was still

pending, alleges substantially the same material facts as plaintiff alleged before the

ASBCA. Although, in this court, plaintiff seeks to recover $1,400,000.00 in damages,

plaintiff also states in his complaint that he "has been damaged by the Defendant in the

sum of $2,500,000.00,'which is the price proposed in the unsolicited proposal.a

According to plaintiff s filings in this court, plaintiff purportedly developed what was

described, among other designations, as a "Hybrid UGV/USV Breaching Module System,"

about which he, allegedly, had been communicating with a number of Navy personnel

since 2013. Plaintiff alleges that, on September 28,2015, he submitted an unsolicited

proposal titled "Hybrid UGV/USV Breaching Module System," which was received by the

Navy's Indian Head Explosive Ordnance Disposal Technology Division (IHEODTD), the

division which handles proposals of Explosive Ordnance Disposal (EOD)-related

technology development for the Navy. The unsolicited proposal listed the "Prime Ofieror"

as "MERAD," identified in the unsolicited proposal as a "Small Business," not plaintiff, Mr.

Diaz. Mr. Diaz was listed on the unsolicited proposal as the "Technical and Business

2 The unsolicited proposal and multiple e-mail chains attached to plaintiff's complaint

indicate that the plaintiff identified himself to the Navy as "Kevin Mark Diaz" and also as

"Mark Diaz." Plaintiff, however, signed his pleadings in this court as "Kevin Diaz."

Accordingly, the court refers to the pro se plaintiff as Kevin Diaz.

3 In addition to monetary relief, plaintiff requested that the ASBCA "grant an enforcement

motion and judgment in its'favor and against the defendant with a binding decision for

evaluation, and negotiation with cooperation for contract acceptance as an appropriate

remedy and dispute resolution."

4Capitalization, grammar, punctuation, and other errors are quoted in this opinion as they

appear in plaintiff's submissions.

Contact." According to plaintiff, the unsolicited proposal purportedly explained a

"[t]echnology development . . . for fragmentation protection with simultaneous downward

reactions from shockwaves being patented modular Force Protection."

On November 2 ,2015, a contracting officer from IHEODTD issued a decision letter

to "Mark Diaz" via e-mail, stating that the unsolicited proposal did not meet the

requirements of FAR Subpart 15.606-1. See 48 C.F.R. S 15.606-1 . The decision letter

stated that "it was determined that the information submitted to NSWC [Naval Surface

Warfare Centerl IHEODTD did not include sufficient detail to permit a determination that

Government support could be worthwhile." Therefore, the unsolicited proposal was not

forwarded for further evaluation in accordance with FAR Subpart 1 5.606-1 . After receiving

the decision letter, plaintiff provided additional documents to try to supplement the original

unsolicited proposal, but the contracting officer's decision was not changed, as indicated

in a subsequent letter, dated November 19,2015, from the contracting officer to "Mr. Mark

Diaz."

In this court, plaintiff alleges that defendant's review of the unsolicited proposal

was not in accordance with FAR Subpart 15.6. Plaintiff alleges that the unsolicited

proposal was wrongfully rejected because it "has verbatim requirements of FAR Subpart

15.6," and "the nature of the Defendant's review results is in omission of the highly

relevant factor of Fragmentation Protection." Specifically, plaintiff alleges three claims in

his comolaint:

Claim 1) The Defendant failed to comply with Federal Acquisition

Regulation (FAR) Subpart 15.6 when reviewing the proposal for

requirements, where defendant omitted the Proposal's primary

feature Fragmentation Protection.

Claim 2) The Defendant failed to provide any opportunity for funding

Research, Development, and Acquisition for the Plaintiff, a Small

Business, as delineated in Federal Acquisition Regulation

s15.602.

Claim 3) The Defendant failed in execution to "(2) Ensure the attainment of

state-of{he art DoD emergency and wartime EOD capabilities,"

and (3) Use rapid prototyping capabilities, followed by streamlined

procurement procedures as much as possible, in accordance with

law, regulations, and policy" according to DoD Directive 5160.62.

Plaintiff further alleges that defendant "has made an unreasonable decision" in not

considering "the relevant factor of Fragmentation Barriers within the Proposal." He also

alleges that the FAR requirements were "manipulated subjectively in order to subvert

opportunity away from the Small Business considered for funding for innovation

development to be delivered to the Government," and that "the Contracting Office creates

convoluted circumstances delaying technology development." Plaintiff asserts that the

unsolicited proposal's content "satisfies the regulations as conditions to be met for

evaluation." As a result, plaintiff alleges that "the Contracting Officer's review was not

rational, was in error or did not exercise her discretion for not reviewing the Proposal's

primary Fragmentation Barrier systems experimentation and is clearly an unreasonable

determination." Plaintiff contends that he was "prejudiced by the enor." Plaintiff alleges

that the Navy had acted to obtain funding and indicated to plaintiff that it would continue

to "pursue funding with [plaintiffl as opportunities arise" for the technology proposed in

the unsolicited proposal, and, according to plaintiff, that demonstrates that there was a

"substantial chance" that plaintiff would have received a contract award.

Plaintiff contends that he "will be irreparably harmed by the lost opportunity to

compete for the technology funding" and requests that the court consider "all avenues for

relief and a just decision." In addition to monetary damages, plaintiffs complaint also

seeks other forms of relief, including:

A) Enter into a governmenlindustry partnership with a services contract

venue by the IHEODTD to develop the Fragmentation Barriers to

Technology Readiness Level 9 (TRL-9) through binding alternative

dispute resolution.

B) Work on further simulation tasks under a $150,000 Phase I contract

including Phase ll product prototyping and integration task with a prime

contractor.

C) Receive preparation cost of technical proposal possessing new

Technology & Capability.

D) Enter into assignee agreement for various patents and previous

application rights.

E) Develop the Technology through a two year service contract in the

AEODRS [Advance Explosive Ordnance Disposal Robotic System]

program.

In response to plaintiff's complaint, defendant filed a motion to dismiss pursuant to

RCFC 12(bX1) (2015) and RCFC 12(bXO). Defendant argues that plaintiffs complaint

should be dismissed because "Mr. Diaz has failed to identify a money-mandating

provision as required to confer Tucker Act jurisdiction." Alternatively, defendant argues

that "this case should be dismissed for failure to state a claim because Mr. Diaz has failed

to allege that he has an implied-in-fact contract with the United States, and the facts as

alleged do not support such a finding." Plaintiff opposes defendant's motion to dismiss,

and asserts that he has provided "ample factual evidence . . . regarding the Agency's

FAR review violations and . . . the circumstances of mutual intent to contract." Plaintiff

also moves for summary judgment.

DtscusstoN

This court recognizes that plaintiff is proceeding pro se in this action, without the

assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is

sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction

of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations

contained in a pro se complaint be held to "less stringent standards than formal pleadings

drafted by lawyers") reh'o denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551

U.S. 89, 94 (2007)i Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429

U.S. 97, 106 (1976), reh'q denied, 429 U.S. 1066 (1977); Matthews v. United States, 750

F.3d 1320, 1322 (Fed. Cr.2014i,; Diamond v. United States, 115 Fed. Cl.516,524

(2014),aff'd,603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). "However,

"'[t]here is no duty on the part of the trial court to create a claim which [the plaintiffl has

not spelled out in his [or her] pleading.""' Lenqen v. United States, 100 Fed. Cl.317,328

(2011) (alterations in original) (quoting Scooin v. United States,33 Fed. C|.285,293

(1995) (quoting Clark v. Nat'l Travelers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir.

1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94, aff d,443 F. App'x 542 (Fed.

Cir.2011); Minehan v. United States, 75 Fed. Cl.249,253 (2007). "While a pro se plaintiff

is held to a less stringent standard than that of a plaintiff represented by an attorney, the

oro se plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by

a preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010)

(citing Huohes v. Rowe, 449 U.S. at g and Tavlor v. United States, 303 F.3d 1357, 1359

(Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the

evidence."), reh'q and reh'q en banc denied (Fed. Cir. 2002)); see also Shelkofskv v.

United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities

in a pro se plaintiffs complaint, the court'does not excuse [a complaint's] failures."'

(quoting Henke v. United States,60 F.3d 795,799 (Fed. Cir. 1995)); Hanis v. United

States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiffs pleadings are held to a less

stringent standard, such leniency 'with respect to mere formalities does not relieve the

burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed.

Cl. at 253)).

As a threshold issue, the court notes that plaintiff, Mr. Diaz, may be attempting to

litigate the claims raised in the complaint on behalf of a business entity named 'MERAD.'

Plaintiff's submissions to this court indicate that "MERAD" is a "Small Business" entiW.

Below is an excerpt from the unsolicited proposal's cover page:

Prime Offeror

MERAD

Type of Organization: Small Business

Duns Number 968510458

Cage Code75K51

RCFC 83.1 (a)(3) provides that an "individual who is not an attorney may represent oneself

or a member of one's immediate family, but may not represent a corporation. an entity, or

anv other person in any other proceeding before this court." RCFC 83.1(a)(3) (2015)

(emphasis added); see, e.q., Talasila, Inc. v. United States,240 F.3d 1064, 1066 (Fed.

Cir.) ("[A corporation] must be represented by counsel in order to pursue its claim against

the United States in the Court of Federal Claims."), reh'q and reh'q en banc denied (Fed.

Cir. 2001); Affourtit v. United States, 79 Fed. Cl.776,779 (2008) ("A corporation

appearing before the United States Court of Federal Claims . . . must be represented by

an attorney."); Finast Metal Prods.. Inc. v. United States, 12 Cl. Ct.759,761 (1987) ('tA

corporate 'person' can no more be represented in court by a non-lawyer-even its own

president and sole shareholder-than can any individual."). This rule applies despite

possible financial hardship imposed on the plaintiff. See Richdel. Inc. v. Sunspool Corp.,

699 F.2d 1366, 1366 (Fed. Cir. 1983) (holding that even plaintiffs "substantial financial

hardship" did not waive the rule requiring corporations to be represented by counsel);

Balbach v. United States, 119 Fed. Cl. 681, 683 (2015) ("[A] pro se plaintiff cannot

represent a corporation . . . . The Court cannot waive this rule, even for cases of severe

financial hardship," (citing Affourtit v. United States, 79 Fed. Cl. at 780)); Alli v. United

States, 93 Fed. Cl. 172, 176 (2010) (citing 28 U.S.C. S 1654 (2009)) (Although Congress

allowed private individuals to proceed pro se in the courts of the United States, "it has

never permitted corporations or other separate business entities to do the same.").

Plaintiffs sometimes confusing submissions to the court, including his complaint,

allege that the Navy improperly reviewed the unsolicited proposal submitted to the

agency. According to exhibits attached to plaintiffs complaint filed in this court, in

September 2015, 'MERAD," not plaintiff Diaz, submitted an unsolicited proposal to the

Navy, in which MERAD was listed as the "Prime Offeror." As noted above, although it is

not clear whether MERAD is a corporation, MERAD is described in the unsolicited

proposal as a business entity. Specifically, MERAD was described as a "Small Business"

in the unsolicited proposal, with Mr. Diaz listed as the "Technical and Business Contact."

ln the November2,2015 decision letterfrom the IHEODTD contracting officer, the name

"MERAD'appears under plaintiffs name "Mark Diaz." "MERAD" also appears in multiple

e-mails, in which the unsolicited proposal was discussed between plaintiff and several

Navy officials, whereas plaintiff identified himself in these e-mails as the "Project Manager

for MERAD." For example, Plaintiff described himself as "the Project Manager for

MERAD' in an e-mail to the Navy on September 11,2015, and he also identified himself

as the point of contact for MERAD in the unsolicited proposal. Furthermore, the

unsolicited proposal states that, "[t]he company MERAD was started in 2010 as a team

effort. " Plaintiffs complaint, however, sometimes identifies the offeror of the unsolicited

proposal as MERAD, the "Small Business" or "he," presumably, Mr. Diaz, or "Kevin Mark

Diaz." On balance, the record suggests, however, that the actual offeror of the unsolicited

proposal appears to have been "MERAD," a "Small Business," with Mr. Diaz working in

some capacity for "MERAD." Because there is no evidence that Mr. Diaz is an attorney

admitted to the bar of this court, pursuant to RCFC 83.1 (a)(3), and he makes no claims

to be an attorney, having filed the complaint pro se with no reference to a membership in

the bar of any state, he cannot represent either "a corporation, an entity, or any other

person" other than himself or an immediate family member in this court. RCFC 83.1 (a)(3).

Given that it appears plaintiff is attempting to litigate on behalf of, or to represent,

'MERAD,'a business entity, plaintiffs complaint should be dismissed in accordance with

RCFC 83.1(a)(3).

Alternatively, the court also may not consider plaintiff's claims if the court lacks

subject matter jurisdiction. See Barlow & Haun. Inc. v. United States, 805 F.3d 1049, 1060

(Fed. Cir. 2015); Hardie v. United States, 367 F.3d 1288,1290 (Fed. Cir. 2004); PIN/NlP.

lnc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed. Cir. 2002). Generally, this court has

jurisdiction to hear claims pursuant to the Tucker Act, 28 U.S.C. S 1491(b)(1) (2012),

which provides that this court has

jurisdiction to render judgment on an action by an interested party objecting

to a solicitation by a Federal agency for bids or proposals for a proposed

contract or to a proposed award or the award of a contract or any alleged

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

proposed procurement.

28 U.S.C. S 1491(bX1). Based on a liberal construction of Mr. Diaz's pro se pleadings, it

appears that plaintiff is challenging the government's review of the unsolicited proposal

pursuant to FAR Subpart 15.6, and failure to enter into a contract with plaintiff or MERAD

based on the unsolicited proposal. Specifically, plaintiff alleges that defendant "failed to

comply with FAR Subpart 15.6 when reviewing the proposal for requirements," and that

the "Contracting Officer has made an unreasonable decision" when rejecting the

unsolicited proposal. In response, defendant argues that this court does not have

jurisdiction under 28 U.S.C S 1a91 (aX1) because the regulation on which plaintiff tries to

rely does not confer a substantive right to recover money damages.

lf the court does not have subject mafter jurisdiction to consider plaintiffs claims,

then plaintiffs motion for summary judgment becomes moot. See Booth v. United States,

990 F.2d 617,620 (Fed. Cir.) reh'q denied (Fed. Cir. 1993); see also Estes Express Lines

v. United States, 123 Fed. Cl. 538, 550 (2015) (dismissing parties'cross motions for

summary judgment as moot because the court did not possess jurisdiction to consider

plaintiff's claim). lt is well established that "'subject-matter jurisdiction, because it involves

a court's power to hear a case, can never be forfeited or waived. "'Arbauqh v. y & H Corp.,

516 U S 500, 514 (2006) (quoting United States v. Cotton, S3S U.S. 625, 630 (200).

"[F]ederal courts have an independent obligation to ensure that they do not exceed the

scope of their jurisdiction, and therefore they must raise and decide jurisdictional

questions that the parties either overlook or elect not to press." Henderson ex rel.

Henderson v. shinseki, 562 u.s. 428 (2011); see also Gonzalez v. Thaler, 132 s. ct. 641,

648 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are obligated

to consider sua sponte issues that the parties have disclaimed or have not presented.',):

Hertz corp. v. Friend, 559 u.s. 77,94 (2010) ("courts have an independent obligation to

determine whether subject-matter jurisdiction exists, even when no party challenges it.,'

(citing Arbauqh v. Y & H corp., 546 u.s. at 514)); speciar Devices. Inc. v. oEA. In;., 269

F.3d 1340, 1342 (Fed. cir. 2001) ("[A] court has a duty to inqLrrre tnto its

Lirctiction to

pay Less Druq Stores N.W.. inc., 918 F.2d

!9?. ?!d decide a case." (citing Johannsen v.

(Fed. Cir. 1990)); View Enq'o. Inc. v. RoboticVision Svs_ tnc. 11S F.3d 962,

199, 161

963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiciron, whetner the panres

raise the issue or not."). "objections to a tribunal's jurisdiction can be raised at any rrme,

even by a party that once conceded the tribunal's subject-matter jurisdiction over the

controversy." Sebelius v. A_ub.uJn Reo'l Med. Ctr., 133 S. Ct. g17, A2

eO13); see atso

Arbauqh v. Y & H corp., 546 u.s. at 506 ("The objection that a federal court tac'is wuject-

matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any

stage in the litigation, even after trial and the entry of judgment."); cent. pines Land co..

L.L.c. v. United states,697 F.3d 1360, 1364 n.1 (Fed. cir.2014 1An-byEEi'ron to a

court's subject matter jurisdiction can be raised by any party or the court at any stage of

litigation, including after trial and the entry of judgment." (citing Arbauqh v. y & H corp.,

516 U S at 506-07)); Rick's Mushroom Serv., Inc. v. United StLtEsJZT3dl3S, 1346

("[A]ny party may challenge, or the court may raise sua sponte, suoject matter jurisdiction

at any time." (citing Arbauoh v. Y & H Corp., 546 U.S. at 506; Folden v. United States,

379 F.3d 1344, 1354 (Fed. Cir.); and Fanninq. Phillips & Molnar v. West, 160 F.3d 717,

720 (Fed. Cir. 1998))) (Fed. Cir. 2008); Pikulin v. United States, 97 Fed. Cl.71,76, aooeal

dismissed, 425 F. App'x 902 (Fed. *. 20'11). In fact, "[s]ubject matter jurisdiction is an

inquiry that this court must raise sua sponfe, even where . . . neither party has raised this

issue." Metabolite Labs.. Inc. v. Lab. Corp. of Am. Holdinqs,370 F.3d 1354, 1369 (Fed.

Cir.) (citing Textile Prods.. Inc. v. Mead Corp., 134 F.3d 1481 ,1485 (Fed. Cir.), reh'q

denied and en banc suqqestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)),

reh'o and reh'q en banc denied (Fed. Cir. 2004), cert. oranted in part sub. nom Lab. Corp.

of Am. Holdinqs v. Metabolite Labs., lnc., 546 U.S. 975 (2005), cert. dismissed as

imorovidentlv qranted, 548 U.S. 124 (2006); see also Avid ldentification Svs.. Inc. v.

Crvstal lmport Coro.,603 F.3d 967,971 (Fed. Cir.) ("This court must always determine

for itself whether it has jurisdiction to hear the case before it, even when the parties do

not raise or contest the issue."), reh'o and reh'q en banc denied, 614 F.3d 1330 (Fed. Cir.

2010), cert. denied,562 U.S. 1169 (2011).

When deciding a case based on a lack of subiect matter iurisdiction or for failure

to state a claim, this court must assume that all undisputed facts Llleged in the complaint

are true and must draw all reasonable inferences in the non-movant's favor. see Erickson

v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to Oismiss, a;uOge

must accept as true all of the factual allegations contained in the complaint." (citing Bell

Atl. Cor:p. v. Twomblv, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema NE

q3-4 ursr 506, 508 n.1 (2002)))); Fid. & cuar. Ins. underwiiters, Inc. v. unit,ed states, 805

F.3d 1082, 1084 (Fed. cir.2015); Trusted Inteoration, Inc. v. united states,659 F.3d

1159, 1163 (Fed. Cir.2011).

In addition to the complaint, the court may consider exhibits to the complaint. see

RcFc 10(c) ("A copy of a written instrument that is an exhibit to a pleading is part of ihE

pleading for all purposes."). Moreover, "the court 'must . consider documents

Incorporated into the complaint by reference and matters of which a court may take

ju-dicial notice "'Bell/Heervv. united states. 106 Fed. ct.300, 307 (2012),

affd,739 F.3d

1324 (Fed. Cir.), reh,q and relrs: e+ gata denied (Fed. Cir. 201a) (quotinlj t-Ei-taUs. tnc. v.

Makor,lssues & Riohts. Ltd..551 u.s. 308,322, (2007)) (omissidn'in aerfH;;rvv. united

states). The court also may consider a document when the complaint relielTEvi,y upon

its terms and effect, which renders the document integral to the complaint. see id. at 307-

08. Moreover, "[i]n deciding whether to dismiss a complaint under Rule 12@i-16frhe court

may consider matters of public record." sebastian v. United states. 1gs F.3ci isaa, Bla

(Fed. Cir 1999), cert. denied, SZS U.S

gorp. v. United states. 11o_Fed. cL2s1 261-62 (20131, DeKah dtv--Ga.rr united

States. 108 Fed. C|.681,692 (2013).

lf Mr. Diaz could be verified as the proper plaintiff, an alleged violation of FAR

Subpart 15.6 might suffice to establish subject matter jurisdiction, h6wever, plaintiff must

also establish standing as an interested party in order to pursue his complaint in this

court.s See48 C.F.R. S 15.6; Distributed Sols.. lnc. v. United States, 539 F.3d 1340, 1345

n.1 (Fed. Cir. 2008) ("A non-frivolous allegation of a statutory or regulatory violation in

connection with a procurement or proposed procurement is sufficient to establish

jurisdiction."); see also, Def. Tech.. Inc. v. United States, 99 Fed. Cl. 103, 114-15 (2011)

(finding that court has jurisdiction over plaintiffs bid protest claim because plaintiff alleges

a violation of FAR Subpart 15.305(b) which is "in connection with a procurement or a

proposed procurement" (quoting 28 U.S.C. S 1a91(bXl)); Maqnum OpusTechs.. Inc. v.

United States, 94 Fed. Cl. 512, 527 (2010) (finding that court possesses jurisdiction over

plaintiffs' complaint that the Air Force exercised the options in violation of law and

regulation, namely CICA [Competition in Contracting Act] and FAR Subpart 17.207(f));

FFTF Restoration Co.. LLC v. United States, 86 Fed. Cl. at237-38 ("[T]he court finds that

the violations of FAR 1 .1 02 alleged by the plaintiff in the context of the cancellation of a

negotiated procurement constitute 'alleged violation[s] of statute or regulation in

connection with a procurement,' over which this court has jurisdiction pursuant to 28

U.S.C. S 1a91(b)(1)."); ES-KO. Inc. v. United States,44 Fed. Cl. 429, a32 (1999) ("This

court . , . has jurisdiction to render judgment on plaintiffs action, which alleges a violation

of FAR $ 33.1 03(0(3), a regulation 'in connection with a procurement."' (quoting 28 U.S.C.

s 14e1(b)(1))).

Pursuant to 28 U.S.C. S 1491(b)(1), this court has 'lurisdiction to render judgment

on an action by an interested party" objecting to "any alleged violation of statute or

regulation in connection with a procurement or a proposed procurement," including a

violation of a FAR provision. 28 u.s.c. S 1491(b)(1). In the context of kaditional pre ano

post award bid protests, which typically allege violations of various FAR provisions, rn

order to have standing to sue as an "interested party" under the Tucker Act, 2g U.s.c.

S 1491 (b)(1), a protestor must establish that "it is (1) an actual or prospective bidder and

(2) that it has a direct economic interest" in the contract award, or failure to awaro a

gontract. ccl Fed. Inc. v. unl ,779 F.3d 1946, 1348 (Fed. cir. 2015) (citing

Dioitalis Educ. solutions. Inp. v. United states.664 F.3d 1380, 1384 (Fed. cir.'2012)):

lgq glsg Sys. Application & Techs.. Inc. v. United States, 691 F.3d 1374,1382 (Fed. Cir.

2012) (citations omitted) (also noting that the "'interested party' standard is more strrngenr

than" the "'case or controversy"' requirement of Article lll of the United states

constitution); weeks Marine, Inc. v. United states, 57s F.3d 13s2, 1375 (Fed. cir. 2009);

5 Plaintiff also alleges that defendant violated "DoD directive 5160.62 to ,(2) Ensure tne

attainment of state-of-the art DoD emergency and wartime EoD capabilities, and (3) Use

rapid prototyping capabilities, followed by streamlined procurement procedures as much

as possible, in accordance with law, regulations, and policy."' Jurisdiction over a

challenge to DoD directive 5160.62 under the Tucker Act, however, is not viable. see Am.

Tel. .& Tel. co. v. united States, 307 F.3d 1374, 13Bo (Fed. cir. 2002) (hotdrng that

cautionary and informative regulations and directives including DoD Directive sboo.1

provide only internal governmental direction, which "supply no remedy for private parties

a judicial forum") (emphasis added); FFTF Restoration co., LLC v. uniied staies,

I

Fed. cl. 226,239 (2009) (finding that the court has no lurisdiction-veia-EiGnge to

86

particular procurement regulations that are only "cautionary and informative regulaiions

and directives").

MVS USA. Inc. v. United States, 111 Fed. C|.639, 647 (2013); Preferred Svs. Solutions.

Inc. v. United States, 110 Fed. C1.48,56 (2013); Miles Constr., LLCv. United States, 108

Fed. Cl. 792,797 (2013).

In a traditional pre or post award bid protest, to demonstrate the requisite direct

economic interest, a disappointed bidder must show that it suffered a competitive injury

or was "prejudiced" by an alleged error in the procurement process. See Tinton Falls

Lodqinq Realtv, LLC v. United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015) ("To establish

standing, Tinton Falls must show that it is an interested party that will be prejudiced by

the award of the contract to DMC [another contractor]." (citing Info. Tech. & Applications

Coro. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.), reh's and reh'q en banc denied

(Fed. Cir. 2003))); CGI Fed. Inc. v. United States,779 F.3d at 1351; Dioitalis Educ.

Solutions, Inc. v. United States.664 F.3d at 1384; Todd Constr.. L.p. v. United States,

656 F.3d 1306, 1315 (Fed. cir.2011)(To prevail, a bid protester mustfirst "'showthat it

was prejudiced by a significant error'(i.e., 'that but for the error, it would have had a

substantial chance of securing the contract')." (quoting Labatt Food serv.. Inc. v. united

States,577 F.3d 1375, 1378, 1380 (Fed. Cir.2009))); Btue & Gotd Fteet, L.p. v. United

states, 492 F.3d 1308, 1317 (Fed. cir.2007); see also sci. Applications lntl corp. r,r.

United states, 108 Fed. c|.235, 281 (2012); Linc cov't servs.. LLC v. uniied states,96

Fed. Cl. 672, 693 (2010) ("ln order to establish standing to sue, the ptaintitf ln a OrO protest

has always needed to demonstrate that it suffered competitive injury, or 'prejudice,' as a

result of the allegedly unlaMul agency decisions." (citing Rex serv. ioro. v. United

States,448 F.3d 130s, 1308 (Fed. Cir.2006); Statisiica, lnc'V. CnristoprrEfTOZ f.aO

1577,1580-81 (Fed. Cir. t996;; Vulcan Enq,q Co. v. United Stat,es, 16 Cl. Ct.84,88

(1988); Mgroan Bus. Assocs.. Inc. v. United states ,223 crf'L 32sj,32 (1980))). In

order

to establish what one Judge on this court has called "allegational prejudice,;i'he bidder

must show that there was a "substantial chance" it would have received the contract

award, but for the alleged pgc_urgmenJ error. see Tinton Falls Lodqino Realtv, LLC v.

United states, 800 F.3d at 1358; Linc Gov't servs., LL@. cr. at

675; see also Bannum. Inc. v.-United states, 404 F.3d 1 346, 13'"8 (Fed. cir. 2005); Galen

Med. Assocs.. Inc. v. United,States, 369 F.3d 1324, 1331 (Fed. Cir.), r."lg OC*b

Cir..2004); Info..Te_ch. &Appticatlols.Corp. v. United States,316 F.i;Al:19,

A"+

rch!Ald

fgh'q gn bancdenied (Fed._Cir.2003); Siatisticalnc. v. Christopher, f OZ f.S'd a-581

Hvperion..lnc. v. United states, tts reo. cLT+L-5so-@r+) (.The government

acknowledges that proving prejudice. . . merely requires ,'allegitional p16ludice,,' as

contrasted to prejudice on the merits . . . ."); see aiso Bannum. Inc-. v. united states, 115

feo Qt 148, 153 (2014);Arclura LLc v. United Stai@13);

Lab corp. of Am. v. United states, 108 Fed. cl. 549, ss7 (2012). ptainiifr bears the

burden of proving that there was a substantial chance of receiving a contract award. see

Batngn'-lnq. y. United states, 404 F.3d at 1358; sims v. united S-tates ,112Fed. ct. 808,

81512013); Info.Tech.&ABpticatignscorp v.unitedsGGsJGFJTatl3lg; statistica,

Inc. v. Christopher, 102 F.3d at 1S82.

ln the above-captioned case, plaintiff argues that defendant wrongfully rejected the

unsolicited proposal because the contracting officer failed to proierly review the

unsolicited proposal, "failed in the simple assignment to identify tne eioposat's pflmary

10

feature Fragmentation Protection," and violated FAR Subpart 15,602 to provide any

opportunity for funding "Research, Development and Acquisition for the Plaintiff, a Small

Business." The unsolicited proposal, included as an attachment to plaintiffs complaint,

appears to describe a technology to dissipate shockwaves over time so that the

"shockwave hitting the soldier, civilian, vehicle or robot is partially by-passed." According

to the unsolicited proposal, "[t]he reaction dynamics within the device have the means

and methods for wave dissipation and transmission to reduce the amplitude of the

shockwave as it passes through this new advanced material and device." The unsolicited

proposal mentions the words "fragmentation protection" along with the "shockwave." The

contracting officer's decision letter, dated November 2, 2015, states that, "[a]ccording to

the abstract, the primary proposal seems to be the design of shockwave mitigation

technology which could be integrated onto a UGV (based on context, presumed to mean

'Unmanned Ground Vehicle' (the acronym is never spelled out)[)]."

FAR Subpart 15.600 "sets forth policies and procedures concerning the

submission, receipt, evaluation, and acceptance or rejection of unsolicited proposals,"

and FAR Subpart'15.606 requires agencies to "establish procedures for controlling the

receipt, evaluation, and timely disposition of unsolicited proposals." 48 C.F.R. S 15.600,

S 15.606. FAR Subpart 15.603(c) requires that an unsolicited proposal must:

(1) Be innovative and unique;

(2) Be independently originated and developed by the offeror;

(3) Be prepared without Government supervision, endorsement, direction.

or direct Government involvement;

(4) Include sufficient detail to permit a determination that Governmenr

support could be worthwhile and the proposed work could benefit the

agency's research and development or other mission responsibilities:

(5) Not be an advance proposal for a known agency requirement that can

be acquired by competitive methods; and

(6) Not address a previously published agency requirement.

48 c.F R g 15.603(c). The court notes that, FAR subpart 15.606-1 states that the

government must determine if an unsolicited proposal is valid and meets the requirements

of FAR subpart 15.603(c), "[b]efore initiating a comprehensive evaluation,', wi,ricn coutd

lead to the award of a contract.48 c.F.R. S 15.606-1(a). Thus, the determination as to

wfigther an unsolicited proposal is valid and meets the requirements of FAR subpart

15.603(c) is a preliminary determination that necessarily precedes a potentially more

comprehensive evaluation. In the above-captioned case, the contracting officer

determined that MERAD's or plaintiffs unsolicited proposal was not a viable unsolicited

proposal that warranted a more comprehensive evaluation because it failed to meet

the

requiremen'ts of FAR subpart 15.603(c). As a result, the unsolicited proposal was not

foruuarded for a comprehensive evaluation because it failed to satisiy the prelrmrnary

evaluation. Even if

plaintiffs unsolicited proposal had been fonrrarded for i

comprehensive evaluation, there is no indication or guarantee that the unsolicited

proposal would have had a substantial chance of receiving funding and a contract award.

11

In the above-captioned case, the record indicates that the agency conducted the

initial review of the unsolicited proposal based on the requirements of FAR Subpart

15.603(c). Subsequent to the initial review, the contracting officer, promptly, on November

2,2015, informed plaintiff of the reasons for rejection of the unsolicited proposal in writing.

See 48 C.F.R. S 15.606-1. In the contracting officer's decision letter, issued November 2,

2015, the contracting officer stated that "an initial review was conducted to determine the

validity of the proposal meeting the requirements stated in FAR 15.603(c)." According to

the contracting officer, the unsolicited proposal failed to meet the requirements under FAR

Subpart 15.603(c) to be considered a valid unsolicited proposal. The contracting officer

provided to "Mark Diaz" a careful and specific response, which found, among other

defects in the unsolicited proposal, that the unsolicited proposal failed to "[b]e innovative

and unique" because "there is a distinct lack of specific, clear, and technically coherent

explanation . . . which would lead an evaluator to determine that an innovative or unrque

approach was indeed being proposed." The contracting officer explained that the

unsolicited proposal failed to "[i]nclude sufficient detail to permit a determination that

Government support could be worthwhile and the proposed work could benefit the

agency's research and development or other mission responsibilities," as the unsolicited

proposal was "a compilation of ideas based on research work concepts . . . lthat] offers

no coherent design and test plan that is worthy of Government support." The contracting

officer also determined that "parts of the proposal offer design and fabrication of

unmanned vehicles, which are not unique." As for the requirement that an unsolicited

proposal "[b]e independently originated and developed by the offeror," the contracting

officer concluded that "[i]t could not be determined during the initial review if the

information provided was independently originated and developed by the offeror" because

"[t]he proposal contains language which indicates the offeror is somewhat familiar. . .

with DoD agency elements, program offices, military commands, and mission tasking."

See id. Furthermore, the contracting officer found that "[i]t could not be determined

whether this knowledge was gained via prior military or contract support expenence,

available publicly, or provided from other government agencies to assist in this proposal."

As a result, the contracting officer was unable to conclude that the unsolicited proposal

met the requirement to "[b]e prepared without Government supervision, endorsemenr,

direction, or direct government involvement." Therefore, the contracting officer concluded,

and informed plaintiff, that the information provided "did not include sufficient detail to

permit a determination that Government support could be worthwhile.,,

After further inquiry from Mr. Diaz, and after indicating that "[t]he Government has

completed an additional technical review," on November 19,201s, the contracting officer

reconfirmed her earlier rejection of the unsolicited proposal. In the second letter, dated

November 19, 2015, the contracting officer indicated that the agency "will not conduct

additional technical reviews on the subject." Based on the record before the court, it

appears that the agency undertook a serious review of the unsolicited proposal in

accordance with FAR subpart 15.603(c) and carefully explained the reasons for not

initiating a more comprehensive evaluation of the unsolicited proposal to plaintiff. Plaintiff,

therefore, has failed to establish that plaintiff had a substantial chance of receivino a

contract award.

tz

The court also notes for plaintiff's benefit that, although certainly government

officials are not immune from making mistakes, there is a strong presumption of the

regularity accompanying government proceedings. See, gg, Richev v. United States,

322 F.3d 1317, 1326 (Fed. Cir. 2003); Porter v. United States, 163 F.3d 1304, 1316 (Fed.

Cir. 1998), reh'o denied, en banc suqqestion declined (Fed. Cir.), cert. denied, 528 U.S.

809 (1999). The doctrine "allows courts to presume that what appears regular is regular,

[and] the burden shift[s] to the [plaintiff] to show the contrary." Rizzo v. Shinseki, 580 F.3d

1288, 1292 (Fed. Cir. 2009) (quoting Butler v. Principi , 244 F.3d 1337, 1340 (Fed. Cir.

2001)).

In Sickels v. Shinseki, the United States Court of Appeals for the Federal Circuit

indicated, "[a]s we stated in Rizzo, '[t]he presumption of regularity provides that, in the

absence of clear evidence to the contrary, the court will presume that public officers have

properly discharged their official duties."' Sickels v. Shinseki, 643 F.3d 1363, 1366 (Fed.

Cir.2011) (quoting Rizzo v. Shinseki, 580 F.3d at 1292 (quoting Mitev v. Principi, 366

F.3d 1343, 1347 (Fed. Cir.2004))). As similady noted in lmpresa Construzioni Geom.

Domenico Garufi v. United States:

The cases also establish that, in determining whether to require an

explanation, the agency decision is entitled to a presumption of regularity.

Bowen v. Am. Hosp. Assn., 476 U.S. 610,626-27 (1986); Motor Vehicle

Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co.,463 U.S.29,43 n.9, (1983).

United States v. Chem. Found., tnc.,272U.S. 1,14-15 (1926) . . . . The

litigant challenging that presumption necessarily bears a heavy burden.

lmpresa Construzioni Geom. Domenico Garufi v. United States,23B F.3d 1324, 133g

(Fed. Cir. 2001) (footnote omitted); see also Tippett v. United States, 98 Fed. Cl. 171,

177 (2011); Ala. Aircraft Indus., Inc.-Birminoham v. United States , 82 Fed. Cl. 757,773

(2008) ("[A]gency decisions, including those of contracting officers, are entiiled to a

presumption of regularity, 'unless that presumption has been rebutted by record evidence

suggesting that the agency decision is arbitrary and capricious.',, (quoting lmoresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1338)).

In the case currently under review, the contracting officer appears to have acted

properly after receiving the unsolicited proposal. The contracting officer's November 2,

2015 decision letter provided Mr. Diaz with a thorough and specific response, stating the

reasons for rejecting the unsolicited proposal. Furthermore, the contracting officer

indicated in the second letter, dated November 19,201s, that the decision of reiettino the

unsolicited proposal "remains unchanged" after the agency "has completed an'additLnal

technical review" of the information that Mr. Diaz submitted on November 4,2o1s to tw

to supplement and explain the original unsolicited proposal.

Alternatively, plaintiff argues that defendant violated the policy in FAR subpart

15 602 to "encourage new ideas from small businesses." 48 C.F.R. S 15.602. FAR

subpart 15.602 only suggests generally that '[i]t is the policy of the Government to

encourage the submission of new and innovative ideas," and that if ,,the new ano

innovative ideas do not fall under topic areas publicized" by the government, "the ideas

IJ

may be submitted as unsolicited proposals." 48 C.F.R. S 15.602 (emphasis added).

Based on the language of the provision, although FAR Subpart 15.602 encourages the

submission of new and innovative ideas, it does not guarantee that an unsolicited

proposal will be funded or even that an unsolicited proposal will be fonivarded for a more

comprehensive evaluation after the initial evaluation, There is no guarantee of a

substantial chance of receiving a contract award. Here, after the initial review, the agency

determined that the initial requirements of FAR Subpart 15.603(c) had not been met.

Plaintiff also alleges that the agency previously had pursued funding for the

technology proposed in the unsolicited proposal. Plaintiff alleges that "there was action

by IHEODTD to seek funding for this technology one year earlier." According to plaintiff,

the agency's alleged intent to pursue funding must indicate that plaintiff has a substantial

chance of receiving a contract award in response to the unsolicited proposal. Plaintiff

further cites to an undated e-mail from an IHEODTD "Customer Advocate for Science and

Technology" which states, "l [the Customer Advocate] will be happy to continue to pursue

funding with you as opportunities arise." This e-mail, however, was not a promise to fund

the unsolicited proposal. Plaintiff fails to show how a statement by a government

"Customer Advocate for Science and Technology" that he would be "happy to continue to

pursue funding" with plaintiff as "opportunities arise" proves that plaintiff would have had

a substantial chance of securing a contract award for funding the unsolicited proposal.

Plaintiff further contends that he had a substantial chance of receiving a contract award

because his unsolicited proposal was put into "the POM IProgram Objective

Memoranduml-16 funded and the POM-1 5 unfunded list," but the attachments to plaintiff's

complaint suggest that the unsolicited proposal only was archived for review "for Fy

[Fiscal Year] 16 or a FY15 Unfunded Requrrement" to see if "there is an application" to

the agency's work. Among all the e-mail chains with Navy officials attached to plaintiff's

complaint, none evidence any kind of promise to fund the work of, or to award a contract

for, the unsolicited proposal at issue in this case.

After reviewing the complaint, including the allegations in plaintiff's complaint and

attachments thereto, the court finds that plaintiff has failed to meet its burden to establish

that the unsolicited proposal had a substantial chance of receiving a contract award.

coNcLusroN

For the reasons discussed above, defendant's motion to dismiss is GRANTED and

plaintiff's complaint is DISMISSED. Plaintiff's motion for summary judgment is

DISMISSED as MOOT. The Clerk of the Court shall enter JUDGMENT consistent with

this ooinion.

IT IS SO ORDERED.

MARIAN BLANK HORN

Judge

't4