Management & Training Corporation v. United States

In the United States Court of Federal Claims

No. 18-556C

(E-Filed: May 3, 2018)1

)

MANAGEMENT & TRAINING )

CORP., )

)

Plaintiff, )

) Bid Protest; Motion to Dismiss for

v. ) Lack of Standing, RCFC 12(b)(1).

)

THE UNITED STATES, )

)

Defendant. )

Alex P. Hontos, Minneapolis, MN, for plaintiff. Daniel D. Falknor and Phil Steger,

Minneapolis, MN, of counsel.

Antonia R. Soares, with whom were Chad A. Readler, Acting Assistant Attorney

General, Robert E. Kirschman, Jr., Director, Franklin E. White, Jr., Assistant Director,

United States Department of Justice, Washington, DC, for defendant. Dennis Adelson,

Peter Dickson, and Vijaya Surampudi, Office of the Solicitor, United States Department

of Labor, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

The court has before it defendant’s motion to dismiss, ECF No. 16, which is

brought pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal

1

This opinion was issued under seal on April 30, 2018. Pursuant to ¶ 4 of the

ordering language, the parties were invited to identify source selection, proprietary or

confidential material subject to deletion on the basis that the material was

protected/privileged. No redactions were proposed by the parties. Thus, the sealed and

public versions of this opinion are identical, except for the publication date, this footnote

and the correction of one typographical error.

Claims (RCFC). The motion has been fully briefed, as follows: (1) defendant’s motion

to dismiss and appendix, ECF Nos. 16 and 16-1; (2) plaintiff’s response, ECF No. 17;

and, (3) defendant’s reply and appendix, ECF Nos. 18 and 18-1. For background

purposes, the court has also considered the complaint, ECF No. 1, plaintiff’s

memorandum and exhibits in support of its application for a temporary restraining order

and/or preliminary injunction, ECF No. 5, and plaintiff’s supplemental brief and exhibits,

ECF Nos. 12 and 12-1. Oral argument was deemed unnecessary. For the reasons set

forth below, defendant’s motion is GRANTED and the complaint is DISMISSED.

I. Factual Background

The award that underlies this protest is for contracted services for the operation of

the Gary Job Corps Center (Gary) in San Marcos, Texas. ECF No. 1 at 1. There are

actually two procurements concerning Gary that provide the background for this dispute.

One is a longer term five-year contract for the operation of Gary that was solicited, first,

on August 9, 2016, which resulted in a contract award to Adams and Associates (Adams).

ECF No. 16-1 at 102. That contract was awarded on October 30, 2017 and was

scheduled for a term of January 1, 2018 through December 31, 2022, with an initial

phase-in period of December 1-31, 2017. Id. The contract award, however, provoked a

Government Accountability Office (GAO) protest brought by Management & Training

Corporation (MTC), the incumbent contractor at Gary. Id.

After the procuring agency, the United States Department of Labor (DOL),

decided to take corrective action, MTC’s protest was dismissed as academic on

December 6, 2017. Id. Past performance of all offerors was then re-evaluated by DOL

and Adams was again selected as the awardee. Id. The contract won by Adams was

modified to start the phase-in period as of February 1, 2018; however, performance of the

modified contract was interrupted by a second GAO protest brought by MTC. Id.

In response to MTC’s second protest, DOL again proposed corrective action, and

also, according to the complaint, canceled the award to Adams. ECF No. 1 at 5; see also

ECF No. 5 at 85 (describing the selection decision in favor of Adams as “void”). MTC’s

second protest was dismissed by the GAO as academic. ECF No. 1 at 6. MTC continues

to operate Gary under extensions of its incumbent contract through April 30, 2018. ECF

No. 12 at 2-3; ECF No. 16-1 at 102. Thus, at this moment in time, DOL has not

successfully completed its procurement for the next longer term contract for an operator

of Gary, and is in the process of taking corrective action regarding its consideration of

proposals received in response to the solicitation issued in 2016. See ECF No. 17 at 3

(stating that “MTC’s bid is still under consideration by DOL after DOL’s second round

of corrective action for the full five-year contract to operate the Gary JCC.”).

The court turns to the other procurement activity that underlies this suit. DOL, in

March of 2018, solicited bids from a pool of recipients of Indefinite Delivery Indefinite

Quantity (IDIQ) contract awards to operate Gary on an interim basis after MTC’s

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contract expires on April 30, 2018. ECF No. 16-1 at 102; ECF No. 12-1 at 96. The

“Contingency Contract Vehicle (CCV)” may be used to increase competition for interim

services when a Job Corps Center’s longer term contract award is delayed by bid protests.

ECF No. 16 at 1; ECF No. 16-1 at 102; see also ECF No. 5 at 7 (“The purpose of the

CCV was to obtain operators of a DOL Job Corps Center . . . in a contingency-type

situation.”). The CCV IDIQ competition provided DOL with fourteen contractors ready

to step in to operate a Job Corps Center on an interim basis. ECF No. 16 at 1-2. MTC is

one of these CCV IDIQ contractors. Id. at 1.

As a result of this competition, DOL selected Res-Care, Inc. (Res-Care) as the

CCV contractor to perform the task order services at Gary. ECF No. 1 at 1-2. The

phase-in period is taking place in April 2018, with Res-Care operating Gary from May 1,

2018 through September 30, 2018 as an initial performance period, with an additional six

month option period available, if exercised. ECF No. 16-1 at 102-03. MTC was not

informed of this task order competition, although the other thirteen CCV contractors

were. ECF No. 16 at 2. MTC filed a protest of the task order award to Res-Care on April

5, 2018 at the GAO. ECF No. 1 at 1-2.

DOL did not halt performance of Res-Care’s task order or issue a stop work order

in response to MTC’s protest. ECF No. 1 at 2. MTC filed a bid protest in this court on

April 17, 2018 challenging the agency’s failure to stay contract performance by Res-Care

in response to MTC’s GAO protest. DOL filed a justification of its override of the

automatic stay provided by the Competition in Contracting Act, 31 U.S.C.

§ 3553(d)(3)(A) (2012) (CICA stay), at the GAO on April 19, 2018, and filed its

justification of the CICA stay override in this court on April 20, 2018. ECF No. 16 at 3;

ECF No. 12 at 2. Motions to dismiss, alleging MTC’s lack of standing to protest the task

order award to Res-Care, have been filed in both fora, on April 18, 2018 at the GAO, and

on April 23, 2018 in this court. ECF No. 16 at 1-2. The court reserves discussion of

other relevant facts for the analysis section of this opinion.

II. Legal Standards

A. Standard of Review for Motions Brought Under RCFC 12(b)(1)

When reviewing a complaint to determine its jurisdiction over a plaintiff’s claims,

this court must presume all undisputed factual allegations to be true and construe all

reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982);

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citations

omitted). However, “[a] trial court may weigh relevant evidence when it considers a

motion to dismiss that challenges the truth of jurisdictional facts alleged in a complaint.”

Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003) (citations omitted).

Plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc.

v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors

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Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and it must do so by a

preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). If

jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3).

B. Bid Protest Standing

As a threshold jurisdictional matter, the plaintiff in a bid protest must show that it

has standing to bring the suit. Info. Tech. & Applications Corp. v. United States, 316

F.3d 1312, 1319 (Fed. Cir. 2003) (ITAC); Myers Investigative & Sec. Servs., Inc. v.

United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (citation omitted). Standing arises

from prejudice, which is present if the plaintiff establishes that it is an interested party

with a direct economic interest in the procurement. ITAC, 316 F.3d at 1319 (citing Am.

Fed’n of Gov’t Employees v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)

(AFGE)). Bid protest standing is limited to those plaintiffs who are “‘actual or

prospective bidders or offerors whose direct economic interest would be affected by the

award of the contract or by the failure to award the contract.’” Weeks Marine, Inc. v.

United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009) (quoting AFGE, 258 F.3d at 1302).

There are two prongs to the test for bid protest standing in the post-award context.

The protestor must “establish that it (1) is an actual or prospective bidder, and

(2) possesses the requisite direct economic interest.” Rex Serv. Corp. v. United States,

448 F.3d 1305, 1307 (Fed. Cir. 2006) (citing Myers, 275 F.3d at 1369). Generally, to

show direct economic interest, the protestor must have had a substantial chance of

winning the contract requirement but for the errors in the procurement. See id. at 1308

(citing Myers, 275 F.3d at 1370; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582

(Fed. Cir. 1996)). In some procurement scenarios, direct economic interest may be

established by the fact that a qualified contractor was “deprived of the opportunity to

compete” for the procured services. Distributed Sols., Inc. v. United States, 539 F.3d

1340, 1345 (Fed. Cir. 2008) (Distributed).

III. Analysis

The dispute as to MTC’s standing to bring this bid protest is straightforward under

binding precedent.2 In essence, two factual hypotheses might establish standing for MTC

2

The court promised the parties to render a decision within a short time-frame, and

truncates its analysis to keep that promise. Although both parties rely on decisions of this

court, none of the fact patterns in those cases is analogous to this case, and the court has

found the Court of Federal Claims cases cited by the parties to be unhelpful. Given the

need for a timely decision, the distinguishable fact patterns of the cited cases, and the rule

that decisions of this court are not binding precedent for this case, e.g., W. Coast Gen.

Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994), the court restricts its standing analysis

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in these circumstances. First, plaintiff could argue that MTC was a prospective bidder

and had a substantial chance of winning the CCV task order award that was won by

Res-Care. Myers, 275 F.3d at 1370 (stating that “the substantial chance rule continues to

apply”). Second, plaintiff could argue that MTC was a prospective bidder on a different

type of contract vehicle for interim services at Gary, that DOL deprived MTC of an

opportunity to compete for such a contract, and that this deprivation of a competitive

opportunity confers standing on MTC under Distributed. See 539 F.3d at 1345 (stating,

under the facts of that appeal, that the deprivation of “the opportunity to compete” for

services never procured directly by the government showed that the appellants possessed

“a direct economic interest in the government action at issue”). Neither of these

hypotheses is supported by the factual record before the court, which is undisputed, in

relevant part, by plaintiff.

A. Substantial Chance Requirement Not Satisfied

Plaintiff barely addresses the question of whether MTC had a substantial chance of

winning the task order awarded to Res-Care. Indeed, the only sentence in plaintiff’s

response brief that squarely addresses this issue is as follows:

And MTC likely would have prevailed over Res-Care: in both prior

procurements for the full five-year contract to operate the Gary JCC, the

agency rated MTC higher than Res-Care overall.

ECF No. 17 at 3 (citing ECF No. 5 at 70). This statement does not address the central

issue posed by the government’s motion to dismiss. As a CCV contractor, MTC is

prohibited from competing for any interim services task order for operating a Job Corps

Center for which it is the incumbent contractor. See ECF No. 16-1 at 15, 65 (“It is

understood and agreed that if an awardee operates a Center for which operation is being

changed, the incumbent is ineligible for award of the task order.”).

Thus, the court finds that because MTC was not eligible for the task order

competition for Gary, it did not have a substantial chance of winning the task order.

Indeed, MTC had no chance of winning the task order. Under Myers, MTC lacks

standing to protest the award of the task order to Res-Care.

B. MTC Does Not Have Standing under Distributed

The court begins with a review of the Distributed litigation. Acquisition of

software and related services was contemplated by the government, as part of a larger

project. Distributed, 539 F.3d at 1342. Rather than following through on a direct

to binding precedent, supplemented by guidance from a GAO decision that is factually

indistinguishable from this case.

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purchase procurement, the government chose to assign this software acquisition task to

one of its project contractors, which then competed subcontracts to fulfill this need. Id. at

1343.

Disappointed potential software vendors lodged a protest, alleging that the

government violated statutes and regulations when it delegated the acquisition function to

the project contractor. Id. at 1344-45. This court found, because the government never

“commence[d] acquisition” of the software services, “that a Federal agency procurement

[wa]s not at issue.” Distributed Sols., Inc. v. United States, 76 Fed. Cl. 524, 527-28

(2007) (citations omitted), rev’d, 539 F.3d 1340 (Fed. Cir. 2008). The protest was

dismissed for lack of jurisdiction, and the issue of standing was not addressed by the trial

court. Id.

On appeal, the primary holding of the United States Court of Appeals for the

Federal Circuit was that the government’s decision to change course from a direct

acquisition of software to an assignment of that acquisition task to its project contractor

was a government action in connection with a proposed procurement. Distributed, 539

F.3d at 1343-46. The government’s solicitation of information from outside vendors,

accompanied by its ultimate decision to incorporate the acquisition task within the scope

of its project coordinator’s contract, constituted “pre-procurement decisions” subject to

protest under 28 U.S.C. § 1491(b) (2012). Id. at 1346. On this ground the Federal

Circuit reversed the trial court. Id.

In the course of its analysis, the Federal Circuit also found that the appellants

possessed standing to bring their protest, fulfilling both prongs of the test for standing.

Id. at 1344-45 (citing Rex, 448 F.3d at 1307). First, the protestors “established

themselves as prospective bidders in that they submitted qualifying proposals in response

[to the government’s request for information] and, according to their complaint, were

prepared to submit bids.” Id. at 1345. Second, the Federal Circuit found that the

appellants “possess[ed] a direct economic interest in the government action at issue in

that they were both deprived of the opportunity to compete for the provision of

acquisition and assistance solutions for [the project].” Id.

The discussion of standing in Distributed is very brief and contains no guidance as

to the particularity or breadth of any nuanced test for standing that might be discerned

therein. Indeed, although the Federal Circuit has often relied on Distributed for its

primary holding regarding the types of government actions which may be protested, e.g.,

AgustaWestland N. Am., Inc. v. United States, 880 F.3d 1326, 1330 (Fed. Cir. 2018), the

discussion of standing in Distributed has never been cited in another Federal Circuit

decision. In the court’s view, Distributed applies established Federal Circuit precedent

regarding bid protest standing to the facts of that case, but its discussion of standing has

limited usefulness in other factual scenarios.

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The only principle regarding standing that is made clear in Distributed is that the

deprivation of an opportunity to compete may, in some circumstances, indicate that a

protestor possesses a direct economic interest in a procurement, as required by the second

prong of the bid protest standing test. That test, as stated in Rex, holds that the protestor

must “establish that it (1) is an actual or prospective bidder, and (2) possesses the

requisite direct economic interest.” 448 F.3d at 1307 (citing Myers, 275 F.3d at 1369).

The particular facts of a case determine whether a contract award in a narrowed

competition may be protested by an excluded contractor, whose standing derives from the

protestor’s substantial chance of obtaining a contract award in a less exclusive

competition. See, e.g., Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d

1353, 1360 (Fed. Cir. 2015) (Tinton Falls) (“In short, the question of standing hinges on

whether Tinton Falls could compete for [an unrestricted] reopened bid if it wins its

protest of the initial contract award.”); see also id. at 1360 n.3 (“We hold only that under

the particular facts of this case, the Claims Court did not clearly err in finding that Tinton

Falls had a substantial chance of winning a reopened bid [with substantially different

eligibility requirements] should it prevail in its bid protest.”).

As explained in Myers, a protestor seeking a “rebid” of a narrow competition

“need only establish that it ‘could compete for the contract’ if the bid process were made

competitive.” 275 F.3d at 1370 (emphasis added) (quoting Impresa Construzioni Geom.

Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 2001)). In one subset

of these “rebid” protests, the Federal Circuit has emphasized that the protestor of a

sole-source contract award may establish prejudice, and standing, if it has a substantial

chance of receiving a contract award in a more competitive procurement process:

A disappointed party can establish prejudice . . . by showing [that]

proceeding without the violation would have made the procurement official’s

decision to make a sole-source award rather than to conduct a competitive

bidding process irrational, and in a competitive bidding process, the

complaining party would have a substantial chance of receiving the award[.]

Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2001)

(Emery) (emphasis added) (citations omitted). Considering these authorities -- namely

Distributed, Myers, Emery, and Tinton Falls -- a protestor may satisfy the “direct

economic interest” requirement for standing when the government agency’s limitations

on competition are challenged in order to give the protestor a substantial chance of

winning a contract in a more competitive selection process.

It would turn this type of standing analysis on its head to conclude that MTC has

standing for its protest before GAO. DOL invested many months recruiting and selecting

IDIQ contractors for its CCV contractor pool. This competitive process produced

thirteen CCV contractors eligible to compete for the interim services task order for Gary.

DOL then solicited bids from the eligible CCV contractors to obtain, competitively, the

most advantageous offers. Res-Care was selected through this competitive process and is

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transitioning to perform at Gary. This is neither a sole-source award, nor a particularly

narrow or limited competitive process.

MTC’s protest, on the other hand, seeks to replace that competitive process, and

Res-Care, with an extension of MTC’s sole-source contract so that, without any

competition whatsoever, MTC can continue to perform at Gary until its latest protest at

the GAO is concluded. See ECF No. 12 at 3 (suggesting that MTC’s latest sole-source

contract should be extended); see also ECF No. 18-1 at 42 (extension clause in MTC’s

latest sole-source contract). Under these facts, MTC, a participant in the CCV

competition and a beneficiary of robust competition in that regard, asserts that it has

standing to cut off any further competition so that it may continue to monopolize the

contracting opportunity at Gary. This does not fit within the standing framework applied

in Distributed or in the other Federal Circuit decisions discussed in this opinion. Under

Distributed and other binding precedent, MTC does not have standing to challenge

DOL’s award to Res-Care.

C. GAO Decision on Indistinguishable Facts

Both parties cite to a GAO decision which the court finds persuasive. See

MINACT, Inc., B-414615, B-414615.2, 2017 CPD ¶ 221, 2017 WL 3001422 (Comp.

Gen. July 12, 2017). The facts in MINACT are indistinguishable from the facts of the

instant case. In MINACT, an incumbent Job Corps Center contractor, MINACT, Inc.

(MINACT), was operating that center through a sole-source contract. 2017 WL

3001422, at *2. As that sole-source contract reached the end of its term, DOL chose to

compete interim services for the center through the CCV vehicle. Id.

MINACT, a CCV contractor for DOL, did not receive the task order and protested

the task order award at the GAO. Id. DOL moved to dismiss the protest on the grounds

that MINACT was ineligible for the task order due to its incumbency and due to an

exclusionary clause in its CCV contract similar to the one at issue in the instant protest.

Id. at *2-3. The GAO agreed with DOL and found that MINACT was not an interested

party and thus lacked standing to protest the award of the task order to an eligible CCV

contractor. Id. at *3. The court finds the GAO’s reasoning to be persuasive and follows

that decision in this case.3

3

Plaintiff’s attempt to distinguish MINACT, on the basis that MTC’s GAO protest

challenges the legality of the exclusionary CCV clause and MINACT’s protest did not, is

not well taken. See ECF No. 17 at 8. Although the “legality” issue is raised in a footnote

in MTC’s GAO protest, ECF No. 18-1 at 91, and may not have been raised in the

MINACT protest, the “legality” challenge to the CCV contract clause is barred on

timeliness grounds. See infra.

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D. Untimely Protest

The court notes that another threshold problem affects MTC’s GAO protest.

According to GAO timeliness rules, “challenges which go to the heart of the underlying

ground rules by which a competition is conducted, should be resolved as early as

practicable during the solicitation process, but certainly in advance of an award decision

if possible, not afterwards.” Caddell Constr. Co., B-401281, 2009 CPD ¶ 130, 2009 WL

1771287, at *3 (Comp. Gen. June 23, 2009); see also 4 C.F.R. § 21.2 (2017) (“Protests

based upon alleged improprieties in a solicitation which are apparent prior to bid opening

or the time set for receipt of initial proposals shall be filed prior to bid opening or the

time set for receipt of initial proposals.”). The clause in MTC’s CCV contract which

excludes MTC from competing for an interim CCV task order to manage Gary, i.e., the

contract term which produced the result which plaintiff now alleges is “illegal,” ECF No.

17 at 7-8, could have been protested by MTC, before its CCV award, but was not, as

evidenced by MTC’s CCV contract. Further, the CCV IDIQ competition was

contemporaneous with the competition for the longer term contract at Gary, where MTC

was both a bidder on the new longer term contract and the incumbent contractor. See

ECF No. 16-1 at 59, 102. MTC cannot claim that it did not know that its CCV contract

contained a clause that would eliminate its eligibility for a CCV task order at Gary.

Thus, no protest regarding the legality of that contract clause, ECF No. 16-1 at

65, is timely before the GAO so many months after the CCV contract was awarded to

MTC in 2016. Such a timeliness problem is a threshold issue. See, e.g., COMINT Sys.

Corp. v. United States, 700 F.3d 1377, 1383 (Fed. Cir. 2012) (finding that a protest of a

contract requirement that was known to the protestor before award was waived after

award); Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007)

(“We also hold that a party who has the opportunity to object to the terms of a

government solicitation containing a patent error and fails to do so prior to the close of

the bidding process waives its ability to raise the same objection subsequently in a bid

protest action in the Court of Federal Claims.”); Armorworks Enters., LLC, B-400394,

B-400394.2, 2008 CPD ¶ 176, 2008 WL 4415709, at *4 (Comp. Gen. Sept. 23, 2008)

(“Where alleged improprieties do not exist in the initial solicitation, but are subsequently

incorporated into the solicitation (e.g., via an amendment to the solicitation), they must

be protested not later than the next closing time for receipt of proposals following the

incorporation.”) (citations omitted). Because MTC’s challenge to its ineligibility for the

CCV task order award is untimely under these authorities, the GAO’s timeliness rule

provides an additional reason for the court to grant defendant’s motion to dismiss MTC’s

protest in this court.

IV. Conclusion

For the reasons stated in this opinion, MTC’s bid protest must be dismissed

because MTC is not an interested party and lacks standing to bring this action. Further,

even if the court’s standing analysis is incorrect, plaintiff’s ineligibility for the task order

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competition, along with its waiver of any challenge to the contract clause which

eliminates it from consideration for the task order competition, compel a finding that

plaintiff has not met its burden to show likelihood of success on the merits of its

challenge to DOL’s override of the CICA stay. Thus, plaintiff’s application for a

temporary restraining order and/or preliminary injunction, ECF No. 4, must be denied.

Accordingly,

(1) Plaintiff’s Application for a Temporary Restraining Order and/or

Preliminary Injunction (ECF No. 4), filed April 17, 2018, is

DENIED;

(2) Defendant’s Motion to Dismiss (ECF No. 16), filed April 23, 2018,

is GRANTED;

(3) The clerk’s office is directed to ENTER final judgment

DISMISSING plaintiff’s complaint, without prejudice, for lack of

subject matter jurisdiction; and

(4) On or before May 14, 2018, the parties shall CONFER and FILE a

Proposed Redacted Version of this opinion, with any competition-

sensitive or otherwise protectable information blacked out.

IT IS SO ORDERED.

s/ Patricia Campbell-Smith

PATRICIA CAMPBELL-SMITH

Judge

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