The Tolliver Group, Inc. v. United States

In the United States Court of Federal Claims

Nos. 20-1108C and 20-1290C

(Filed: November 30, 2020)

)

THE TOLLIVER GROUP, INC.,

) Solicitation cancellation; Small

) Business Act; Rule of Two; set-aside;

and

) withdrawal; Federal Supply Schedule

PEOPLE, TECHNOLOGY AND ) (FSS); multiple award contract; IDIQ;

PROCESSES, LLC, ) RAMCOR; SRA Int’l; Federal

) Acquisition Streamlining Act (FASA);

Plaintiffs, ) Administrative Dispute Resolution

v. ) Act of 1996 (ADRA); Competition in

) Contracting Act (CICA); GAO protest

THE UNITED STATES, ) jurisdiction; Tucker Act jurisdiction;

) FAR Part 8; FAR Part 14; FAR Part 15;

Defendant. ) FAR Part 19.

)

Jon D. Levin, Maynard, Cooper & Gale, PC, Huntsville, AL, for Plaintiff, The Tolliver

Group, Inc. With him on the briefs were W. Brad English, Emily J. Chancey, and Michael

W. Rich.

Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Plaintiff,

People, Technology and Processes, LLC. With him on the briefs was Nathaniel E.

Castellano.

David R. Pehlke, United States Department of Justice, Civil Division, Washington, DC,

for Defendant. With him on the briefs were Jeffrey Bossert Clark, Acting Assistant

Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Douglas K.

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

Department of Justice, Washington, DC.

OPINION AND ORDER

SOLOMSON, Judge.

This case presents the question of whether, or under what circumstances, an

agency – in this case, the Department of the Army (“Army” or the “agency”) – may

cancel a Federal Acquisition Regulation (“FAR”) Part 8 procurement for the express

purpose of moving it from a service disabled veteran-owned small businesses

(“SDVOSB”) set-aside under a General Service Administration (“GSA”) Federal Supply

Schedule (“FSS”) to a multiple award indefinite quantity indefinite delivery

1

(“MAIDIQ”) vehicle, a contract that the Plaintiffs in this case do not hold. Additionally,

the Court must address the source, if any, of this Court’s jurisdiction to decide

complaints challenging an agency’s cancellation of a FAR Part 8 procurement.

Plaintiffs, The Tolliver Group, Inc. (“TTGI” or “Tolliver”), and People,

Technology and Processes, LLC (“PTP”), claim that the agency’s decision to cancel two

GSA FSS support staffing solicitations fails the Administrative Procedure Act (“APA”)

standard of review applicable in actions brought pursuant to 28 U.S.C. § 1491(b)(1),

which requires that an agency action must not be arbitrary, capricious, or otherwise

contrary to law. Plaintiffs allege the agency’s cancellation decisions fail the APA

standard of review based on the extreme brevity of the analysis underlying the agency’s

decision and, in Plaintiff’s view, the agency’s ipse dixit conclusions. More significantly,

Plaintiffs assert that the agency’s decision and supporting rationale – namely, to move

the solicitations at issue to a recently awarded MAIDIQ – violates FAR 19.502-2(b),

commonly known as the “Rule of Two.” Plaintiffs seek permanent injunctive relief,

including an order preventing the Army from cancelling the set-aside solicitations and

resoliciting the work under the MAIDIQ until the agency complies with the Rule of

Two and other relevant regulations.

Defendant, the United States, counters that the agency acted reasonably under

the APA review standard, or, in the alternative, because the agency’s power to cancel a

FAR Part 8 solicitation is virtually plenary, the decision should be reviewed only for

“bad faith,” which, the government claims is unsupported based on the record. The

government further contends that Plaintiffs’ Rule of Two claim is foreclosed by the

Federal Acquisition Streamlining Act (“FASA”) task order protest bar and, that on the

merits, an agency is not required to perform a Rule of Two analysis before soliciting

work under an existing MAIDIQ.

For the reasons explained below, the Court holds: (1) in the context of the facts of

this case, this Court has jurisdiction based upon an “alleged violation of statute or

regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.

§ 1491(b)(1); (2) the FASA task order bar does not pose a jurisdictional hurdle to

Plaintiffs’ respective causes of action, including the Rule of Two arguments; and (3)

pursuant to the APA review standard, which applies here, the agency’s decision is

inadequate, both in terms of the dearth of its analysis and because the agency has not

complied with the FAR’s Rule of Two and other provisions of law. Consequently, the

Court holds that Plaintiffs are entitled to the equitable relief that they seek.

2

I. Factual and Procedural Background 1

TTGI and PTP are both Florida-based SDVOSBs which provide, among other

things, staffing and technical support services. ECF 21 (“TTGI Am. Compl.”) at ¶ 5;

People, Technology and Processes, LLC, v. United States, Fed. Cl. No. 20-1290, ECF No. 1

(“PTP Compl.”) at ¶¶ 15–17. The Army maintains the Fires Center of Excellence

(“FCoE”), 2 a field artillery school located at Fort Sill, Oklahoma, that “trains soldiers,

officers, and marines in tactics, techniques, and procedures for the use of fire support

systems in combat.” PTP Compl. at ¶ 16. From 2010 until 2016, the Army had utilized

a long-term omnibus multiple award IDIQ (“OMNIBUS MAIDIQ”) contract to procure

training and instructor services at Fort Sill. ECF No. 25 (“Administrative Record” or

“AR”) at 617–20 (AR 613–16). 3 Following the expiration of those contracts, the Army

utilized a series of short-term contracts to procure those services. Id. at 617 (AR 613).

This case arises out of the Army’s issuance of two solicitations in early 2020 — the 13F

and Joint Fires Observer Course (“JFOC”) Solicitations — for procuring training

instructors for fire support specialists at Fort Sill, awarding contracts pursuant to those

solicitations, and subsequently cancelling both the contracts and the solicitations, the

latter for the purpose of transferring their scopes of work to an existing MAIDIQ. This

section summarizes this matter’s factual background and procedural history.

A. The 13F And JFOC Solicitations And Award Of The Contracts

On April 3, 2020, the Army’s Mission and Installation Contracting Command

(“MICC”) 4 at Fort Sill issued Solicitation No. W9124L-20-R-0016 (the “13F Solicitation”)

pursuant to the GSA Multiple Award Schedule (“MAS”) 5 as a 100% SDVOSB set-aside

using primarily the procedures outlined in FAR 8.4 and incorporating certain FAR Part

15 provisions. ECF No. 25 at 5–7, 346 (AR 1–3, 342). Specifically, the 13F Solicitation

sought to procure “20 fully qualified personnel to instruct 13F [Advanced Individual

1 See, infra, Section III.A.

2 See Fort Sill Fire Center of Excellence, Fort Sill Values, https://sill-www.army.mil/index.html

(last visited Nov. 11, 2020).

3Throughout this opinion, the dual citations to the Administrative Record account for

discrepancy between the page number indicated in the Court’s CM/ECF stamp on the PDF

document and the AR page cite.

4The MICC “provides contracting support for Soldiers across Army commands, installation and

activities” and is “responsible for contracting goods and services in support of Soldiers as well

as readying trained contracting units for the operating force and contingency environment

when called upon.” See https://www.army.mil/micc#org-locations (last visited Nov. 15, 2020).

5GSA Schedules are referred to as a Multiple Award Schedules (“MAS”) and Federal Supply

Schedules (“FSS”). See https://www.gsa.gov/buying-selling/purchasing-programs/gsa-

schedules (last visited Nov. 25, 2020); see also FAR Part 8.

3

Training] courses” regarding “[p]lanning and coordinating fire support for the

maneuver commander, locate and engage targets utilizing calls for indirect fire to

mortars, field artillery and naval surface fire support assets and battlefield information

reporting.” Id. at 40, 44, 83 (AR 36, 40, 79). This solicitation contemplated the award of a

contract with a “twelve (12) month base period [of performance] to include a 90 day

[sic] phase-in period, followed by one (1), one-year option period.” Id. at 40 (AR 36).

On April 6, 2020, the MICC separately issued Solicitation No. W9124L-20-R-0020

(the “JFOC Solicitation”), pursuant to the GSA MAS, also as a 100% SDVOSB set-aside.

Id. at 386–88 (AR 382–384). Specifically, the JFOC Solicitation sought to procure “14

qualified personnel” to provide “JFOC instruction to multi-service and coalition

students attending Field Artillery Basic Officer Leader Course.” Id. at 428–29 (AR 424–

25). This solicitation contemplated the award of a contract with a “twelve (12) month

base period [of performance] to include a 90 day [sic] phase-in period, followed by one

(1), one-year option period.” Id. at 428 (AR 424).

In sum, both the 13F and JFOC Solicitations contemplated relatively short-term

contracts that the agency designated as 100% SDVOSB set-asides. 6 Several eligible

small businesses submitted timely proposals under both solicitations, including TTGI

and PTP, the latter which was the incumbent provider of these services at Fort Sill.

TTGI Am. Compl. at ¶ 14; PTP Compl. at ¶¶ 26, 34. On April 30, 2020, the agency

awarded the 13F contract to TTGI. TTGI Am. Compl. at ¶ 16; ECF No. 25 at 244–49 (AR

240–45). On May 18, 2020, the agency awarded the JFOC contract to Navigation

Development Group, Inc. (“NDGI”), another SDVOSB. Id. at 565, 576 (AR 561, 572).

B. Bid Protests And Corrective Actions

1. PTP’s 13F GAO Protest 7

On July 17, 2020, PTP filed a post-award bid protest with GAO, challenging the

6The Veterans Benefit Act of 2003 (“the Act”), amending the Small Business Act, created the

SDVOSB program to facilitate the participation of service-disabled veteran-owned small

businesses in federal contracting. Pub. L No. 108-183, 117 Stat. 2651. The Act contemplates the

use of “set asides,” which permits federal agencies to limit certain procurements for exclusive

competition among SDVOSBs. See 15 U.S.C. § 657f. This program is implemented via FAR

provisions and Small Business Administration (“SBA”) regulations. See FAR 6.206, 19.1401–

19.1408; 13 C.F.R. §§ 125.11–125.33.

7 On May 8, 2020, PTP filed its first post-award protest before GAO, alleging that the agency

did not reasonably evaluate its price proposal and that certain provisions in the 13F Solicitation

were ambiguous. See ECF No. 25 at 327, 343 (AR 323, 339). The Army took corrective action on

May 21, 2020 and, after re-evaluating the relevant proposals, on July 9, 2020, once again,

awarded the task order to TTGI. Id. at 342–57 (AR 338–53). For purposes of the pending

motions, however, the particulars of PTP’s first GAO protest is not relevant.

4

agency’s award of the 13F contract to TTGI. ECF No. 25 at 358–81 (AR 354–77). PTP

alleged, among other things, that the method the agency employed to evaluate PTP’s

professional compensation, in comparison to that of TTGI, was improper and that, in

awarding the task order to TTGI, the agency had “departed from the Solicitation's

required evaluation process, held PTP and Tolliver to unequal standards, and

conducted a[] flawed price realism evaluation.” Id. at 359 (AR 355).

On July 29, 2020, Contracting Officer (“CO”) Pauline K. Abraham issued a

Notice of Corrective Action. Id. at 382 (AR 378). CO Abraham acknowledged that

“[t]he Army believes that taking corrective action would better serve the procurement

process” and identified the measures that the agency would take, as follows:

a. Cancel the task order award to The Tolliver Group, Inc.

b. Re-evaluate the requirement and acquisition strategy to

ensure that it accurately reflects the Army’s current need.

c. Once the reevaluation is complete, the solicitation will

either be cancelled or amended.

d. If the solicitation is amended, the Army will evaluate

revised proposals, conduct discussions if necessary, and

make a new award decision.

Id. (emphasis added). While the Notice of Corrective Action did not elaborate on what

considerations the agency would weigh as part of its re-evaluation, CO Abraham, in an

internal agency memorandum (dated July 29, 2020), further explained that the rationale

behind the agency’s “reevaluat[ing] its acquisition strategy” was that “[o]n 21 July 2020,

MICC-Fort Eustis awarded the Training Management Support (‘TMS’) Multiple Award

Indefinite Delivery Indefinite Quantity contract, which may provide a potentially better

procurement vehicle for this requirement than the [current GSA MAS].” Id. at 383 (AR

379) (emphasis added). Following the Army’s July 29, 2020 Notice of Corrective Action,

the GAO dismissed PTP’s bid protest “as academic.” Id. at 385 (AR 381).

2. PTP’s JFOC GAO Protest

A similar situation unfolded with the JFOC contract. On May 28, 2020, PTP filed

a post-award bid protest before the GAO, challenging the agency’s award of the JFOC

contract to NDGI. ECF No. 25 at 581 (AR 577). PTP alleged that the agency’s price

evaluation did not comply with the solicitation, that the agency had conducted an

improper best value decision, and that the agency had evaluated PTP’s past

performance in an unreasonable manner. Id. at 582–602 (AR 578–98).

5

On July 29, 2020, CO Lisa Slagle 8 issued a Notice of Corrective Action that was

similar to the one CO Abraham had issued in response to PTP’s 13F bid protest. Id. at

612 (AR 608). CO Slagle’s Notice of Corrective Action outlined the same steps that the

agency intended to take in response to the JFOC bid protest as the agency did for the

13F bid protest: cancel the contract award, re-evaluate the Army’s needs, and either

amend the solicitation or cancel it. Id. CO Slagle also authored an internal agency

memorandum (dated July 29, 2020), which similarly explained that the agency’s re-

evaluation of its acquisition strategy was based on the availability of the recently

awarded TMS MAIDIQ. Id. at 613–14 (AR 609–10). The GAO also dismissed PTP’s bid

protest of the JFOC award as “academic.” Id. at 615–16 (AR 611–12).

C. The TMS MAIDIQ

As noted above, the Army previously had procured training and instructor

services using the OMNIBUS MAIDIQ, which expired in 2016, thus necessitating the

use of the GSA MAS contracts. ECF No. 25 at 617–20 (AR 613–16). On October 31, 2017,

the Army approved the creation of a new contractual vehicle – the TMS MAIDIQ – for

the purpose of procuring these services. Id. at 618 (AR 614). While the Army initially

intended the TMS MAIDIQ to be a small business set-aside, the Army determined, after

conducting market research, that – given the breadth of the MAIDIQ’s anticipated scope

of work – none of the small business proposals could meet the requirements; the set-

aside plan for the TMS MAIDIQ thus was abandoned in coordination with the SBA. Id.

at 618, 1194–1212 (AR 614, 1190–1208). On September 13, 2018, the Army issued the

TMS MAIDIQ Solicitation as a full and open competition. Id. at 618, 1207 (AR 614,

1203). After numerous delays in the evaluation process, the agency, on July 21, 2020,

awarded TMS MAIDIQ contracts to five companies, all of which were large businesses.

Id.; ECF No. 21 at ¶ 26. Plaintiffs in this case do not hold a TMS MAIDIQ contract.

D. The Army’s Cancellation Of The 13F And JFOC Contracts

On August 10, 2020, CO Abraham – presumably as part of the agency’s

correction action processes – authored an internal agency Memorandum For Record

(the “August 10 MFR”), “[t]he purpose” of which was “to capture the background for

the recently award Training Management Support (TMS) Multiple Award Indefinite

Delivery Indefinite Quantity Contract awarded by MICC-Fort Eustis.” ECF No. 25 at

617 (AR 613); see generally ECF No. 25 at 617–20 (AR 613–16). In her four-page

memorandum, CO Abraham detailed the history of the 13F and JFOC Solicitations, as

well as the TMS MAIDIQ, and in the last paragraph concluded:

Based upon the above information, I believe the Government’s

best interests can be met by competing the JFO, 13F and KMS

8Apparently, CO Slagle retired, two days later, on July 31, 2020, and was replaced by another as

the cognizant contracting officer for the JFOC procurement. ECF No. 40 at 5.

6

requirements under the MICC-Fort Eustis recently awarded

TMS MAIDIQ. Both time and money can be saved by the

Government in pursuit of this avenue. Time and money are

expended on soliciting and awarding interim short term

contract actions to support on-going requirements. Contract

periods can be adjusted to support a Base and Four Option

periods on most requirements thus saving manpower and

costs tied to phase-in and certification of new contractor

employees. Longer periods of performance also support the

Government’s ability to successfully recruit and retain

qualified personnel on existing requirements, thereby

ensuring continuity of the training mission.

Id. at 620 (AR 616) (emphasis added). Her memorandum also referenced 11 enclosures

that further detailed the development and scope of the TMS MAIDIQ, but that did not

otherwise address, in any way, the corrective action or any cancellation decisions. Id. at

621–862 (AR 617–858). 9 The August 10 MFR does not itself purport to be a solicitation

cancellation decision, nor is it a recommendation to another agency official.

E. Procedural History

On August 31, 2020, TTGI filed its initial complaint against the United States, in

this Court. See ECF No. 1. On September 3, 2020, PTP filed an Unopposed Motion to

Intervene, pursuant to Rule 24 of the Rules of the United States Court of Federal Claims

(“RCFC”), which the Court granted. Minute Order (Sep. 3, 2020). On September 4,

2020, TTGI filed an amended complaint. TTGI Am. Compl. at 1.

9 Subsequently, on August 21, 2020 – presumably based on her August 10 MFR – CO Abraham

authored an additional internal agency memorandum, documenting that “a reevaluation of the

acquisition strategy has resulted in the decision to solicit [the 13F Solicitation] requirement

under the recently awarded [TMS] Contract awarded by the [MICC] Fort Eustis” as “[t]he

requirements addressed by this specific task order were included within the scope of the TMS

and support the long term, continuous service need of Fort Sill.” Id. at 1235 (AR 1231). That

same day, the Army notified PTP and TTGI that “after thoughtful review, the decision has been

made to utilize [the TMS MAIDIQ] contract to support [the 13F Solicitation] requirement.” Id.

at 1236–37 (AR 1232–33) (August 21, 2020 letter to PTP); ECF No. 1 Appendix A (August 21,

2020 letter to TTGI). Regarding the JFOC Solicitation, however, the Administrative Record does

not appear to contain any materials documenting the agency’s final decision to utilize the TMS

MAIDIQ instead of the JFOC Solicitation (i.e., subsequent to the August 10 MFR). The

Administrative Record also does not appear to contain any actual cancellation of the 13F or

JFOC Solicitations. Nevertheless, the parties do not dispute – and the Court agrees – that, as a

practical matter, the agency’s decision to abandon the 13F and JFOC Solicitations constitutes a

final agency decision that is ripe for review.

7

In the amended complaint, TTGI maintains that the Army’s decision to cancel the

13F Solicitation was not rationally related to the “alleged procurement defect” which

had been raised in PTP’s GAO protest and was instead a “decision solely because [the

Agency] likes the New Ft. Sill IDIQ better than the GSA schedule contract it used

originally.” TTGI Am. Compl. at ¶¶ 30, 33. Moreover, TTGI contends that by

“mov[ing] the unchanged requirements to the New Ft. Sill IDIQ, where only large

businesses are eligible for award” the Army violated the “Rule of Two.” Id. at ¶¶ 36–38.

Accordingly, TTGI asks that this Court “permanently enjoin the Agency proceeding

with its corrective action as implemented.” Id. at 10–11.

Although PTP initially entered this case as an intervenor, PTP sought leave to file

a separate complaint and requested that its new case be consolidated with TTGI’s case.

ECF No. 26. On September 29, 2020, the Court granted PTP’s motion to file its own

complaint. ECF No. 28. 10 PTP’s complaint advances similar claims to those of TTGI.

Specifically, PTP alleges that the Army’s decision to cancel the 13F and JFOC

Solicitations was arbitrary and capricious because “there is no documented cancelation

decision for either procurement. And, to the extent there are any record materials that

shed light on the Agency’s decision, the record materials do not justify cancellation.”

PTP Compl. at ¶¶ 5, 45–48. Further, PTP contends that, by cancelling the 13F and JFOC

Solicitations for the purpose of reissuing the requirements using the TMS MAIDIQ, the

Army violated the Rule of Two. Id. at ¶¶ 87–90, 104–08. Accordingly, PTP seeks

injunctive relief, ordering the Army to refrain from cancelling (or to reinstate) the 13F or

JFOC Solicitations and from resoliciting those requirements “absent Agency compliance

with the Rule of Two and all other applicable regulations.” Id. at ¶¶ 66, 78, 95, 111.

On September 18, 2020, the government filed the Administrative Record. ECF

No. 25. On September 5, 2020, TTGI and PTP filed motions for judgment on the

Administrative Record (“MJAR”) and the government filed a cross-motion for

judgment on the Administrative Record. ECF No. 29-1 (“PTP MJAR”); ECF No. 30

(“Def. MJAR”); ECF No 31 (“TTGI MJAR”). On October 12, 2020, the parties filed their

respective response briefs. ECF No. 32 (“PTP Resp.”); ECF No. 33 (Def. Resp.”); ECF

No. 34 (“TTGI Resp.”).

On October 16, 2020, the Court held oral argument. ECF No. 35. Following oral

argument, the Court ordered the parties to file supplemental briefs addressing a variety

of specific issues that had not been covered in the parties’ briefs or at oral argument.

ECF No. 39. In particular, the Court ordered supplemental briefing for the parties to

address several issues, including the application of 10 U.S.C. § 2305(b)(2) to the agency’s

cancelation decision. ECF No. 39; see 10 U.S.C. § 2305(b)(2) (“[A] solicitation may be

10The caption in this case has been revised to reflect PTP’s position as a plaintiff only, given the

nature of PTP’s claims in its complaint and the arguments in PTP’s motion for judgment on the

administration record.

8

rejected if the head of the agency determines that such action is in the public interest.”).

On October 28, 2020, the government filed its supplemental brief, ECF No. 40 (“Def.

Supp. Br.”), and, on November 2, 2020, both PTP and Tolliver filed their respective

supplemental briefs. ECF No. 41 (“PTP Supp. Br.”); ECF No. 42 (“TTGI Supp. Br.”).

II. Jurisdiction

Both Plaintiffs seek relief pursuant to 28 U.S.C. § 1491(b)(1). TTGI Am. Compl. at

¶ 2; PTP Compl. at ¶ 18. In that regard, the Tucker Act, as amended by the

Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub. L. No. 104-320, 110 Stat.

3870, provides this Court with “jurisdiction to render judgment on an action by an

interested party objecting [1] to a solicitation by a Federal agency for bids or proposals

for a proposed contract or [2] to a proposed award or [3] the award of a contract or [4]

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

proposed procurement.” 28 U.S.C. § 1491(b)(1) (emphasis and alterations added). 11

The government concedes that this “Court’s jurisdiction extends to an agency’s

decision to cancel a solicitation.” Def. MJAR at 15 (citing Madison Servs., Inc. v. United

States, 92 Fed. Cl. 120, 125–26 (2010), and FFTF Restoration Co., LLC v. United States, 86

11This Court reads the statute as the United States Court of Appeals for the Federal Circuit, our

appellate court, interpreted it in Sys. Application & Techs., Inc. v. United States, where the Federal

Circuit counted four separate causes of action: “On its face, the statute grants jurisdiction over

[1] objections to a solicitation, [2] objections to a proposed award, [3] objections to an award,

and [4] objections related to a statutory or regulatory violation so long as these objections are in

connection with a procurement or proposed procurement.” 691 F.3d 1374, 1380–81 (Fed. Cir.

2012); see also Jacobs Tech. Inc. v. United States, 100 Fed. Cl. 173, 174 (2011) (explaining that “this

provision [§ 1491(b)(1)] grants the Court jurisdiction over [objections to] (1) a ‘solicitation,’ (2) a

‘proposed award’ (3) an ‘award’ or (4) ‘any alleged violation of statute or regulation in

connection with a procurement or a proposed procurement’”). The government, on occasion,

also has counted four separate prongs. FFTF Restoration Co., LLC v. United States, 86 Fed. Cl.

226, 234 (2009) (“The government further contends that, because 28 U.S.C. § 1491(b)(1) only

allows for objections to (1) ‘a solicitation by a Federal agency for bids or proposals for a

proposed contract,’ (2) ‘a proposed award,’ (3) ‘the award of a contract,’ or (4) ‘any alleged

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

see 28 U.S.C. § 1491(b)(1). . . .”). Although some decisions group the statute into just three

prongs, Angelica Textile Servs., Inc. v. United States, 95 Fed. Cl. 208 (2010), the critical point, as

explained infra, is that the objection “to a solicitation” prong or cause of action is distinct from

the others, and the first two or three prongs – again, depending on how they are counted – are

themselves distinct from the final prong, permitting an objection to “any alleged violation” of

law in connection with a procurement. 95 Fed. Cl. at 212 (“The first two portions of Section

1491(b)(1) address pre-award and post-award bid protests” while “the third portion of the

Section concerns protests involving ‘any alleged violation of statute or regulation in connection

with a procurement or a proposed procurement.’”).

9

Fed. Cl. 226, 236–37 (2009)). This Court has a duty, however – as does every Federal

court – to assure itself of jurisdiction over any complaint or cause of action. Folden v.

United States, 379 F.3d 1344, 1354 (Fed Cir. 2004) (“Subject-matter jurisdiction may be

challenged at any time by the parties or by the court sua sponte.”); RCFC 12(h)(3). Thus,

although the Court generally agrees with both Plaintiffs and the government with

regard to jurisdiction here, we write at greater length to address the unique aspects of a

FAR Part 8 procurement, generally, and the facts and circumstances of the

procurements at issue here, in particular.

A. Source Of Jurisdiction For Challenges To Cancellation Of FAR Part 8

Procurements

We begin, as always, with the plain language of the applicable jurisdictional

statutory provision, in this case 28 U.S.C. § 1491(b)(1). A plaintiff’s claim that a

government agency improperly has cancelled a solicitation is plainly not a challenge

“[1] to a solicitation . . . or [2] to a proposed award or [3] the award of a contract…”

(alterations added). For the reasons explained in this subsection, this Court concludes,

however, that it possesses jurisdiction to decide Plaintiffs’ claims that the agency

improperly decided to cancel the solicitations at issue, pursuant to the fourth prong of

28 U.S.C. § 1491(b)(1); Plaintiffs sufficiently have alleged “[a] violation of statute or

regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. §

1491(b)(1). In that regard, “[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)). That standard is easily met here. TTGI Am. Compl. at ¶¶ 31–38; PTP

Compl. at ¶¶ 64–66, 76–78, 81–95; see also TTGI Supp. Br. at 3; PTP Supp. Br. at 6–7. In

particular, Plaintiffs’ respective complaints regarding the agency’s cancellation

decisions sufficiently allege a violation of FAR 1.602-2(b) and 10 U.S.C. § 2305(b)(2). 12

1. FAR 1.602–2(b)

The basis for this Court’s jurisdiction to decide a challenge to an agency’s

cancellation of a procurement solicitation is not unambiguous; it is certainly not explicit

12This subsection only addresses the Court’s jurisdiction to review the merits of the agency’s

solicitation cancellation decisions. The Court separately has jurisdiction – pursuant to the

fourth prong of 28 U.S.C. § 1491(b)(1) – to consider Plaintiffs’ independent claims that the

government violated FAR 19.502-2 and FAR 19.502-9, provided that the FASA task order

protest bar does not apply to such allegations. See, infra, Section II.B. The Court recognizes that

the question of whether Plaintiffs may obtain relief for the government’s alleged violation of

any of these provisions may be more accurately viewed as merits issues, Perry v. United States,

149 Fed. Cl. 1, 10-14 (2020), but that distinction is not critical here given the outcome.

10

in the text of 28 U.S.C. § 1491. While the Federal Circuit has upheld this Court’s

jurisdiction to consider challenges to an agency’s allegedly improper cancellation of a

solicitation, those decisions involved solicitations issued pursuant to FAR Part 14 or 15,

which contain specific provisions governing cancellation. For example, in Croman Corp.

v. United States, 724 F.3d 1357, 1359, 1363 (Fed. Cir. 2013), the Federal Circuit reviewed

the reasonableness of the cancellation of a FAR Part 15 (“Contracting By Negotiation”)

procurement, where the regulations require that “[t]he source selection authority may

[only] reject all proposals received in response to a solicitation, if doing so is in the best

interest of the government.” FAR 15.305(b) (emphasis added). More recently, in Veterans

Contracting Grp., Inc. v. United States, 920 F.3d 801, 806 (Fed. Cir. 2019), the Federal

Circuit addressed whether an agency acted reasonably in canceling a FAR Part 14

(“Sealed Bidding”) procurement, where the regulations mandate that after the opening

of bids there must be “a compelling reason to reject all bids and cancel the invitation.”

FAR 14.404-1(a)(1) (emphasis added); see FAR 14.404-1(c).

In such cases, the Federal circuit has invoked the APA standard of review

applicable to § 1491(b)(1) claims, explaining that “[u]nder this standard, a procurement

decision may be set aside if it lacked a rational basis or if the agency’s decision-making

process involved a clear and prejudicial violation of statute, regulation, or procedure.”

Croman, 724 F.3d at 1363. In particular, in Croman, the Federal Circuit observed that

“[i]n reviewing [an agency’s] exercise of discretion, this court has articulated relevant

factors as general guidelines in determining whether [the agency’s] actions were

arbitrary, capricious, or an abuse of its discretion.” 724 F.3d at 1365. “‘[R]elevant

factors include: subjective bad faith on the part of the officials; the absence of a

reasonable basis for the administrative decision; the amount of discretion entrusted to

the procurement officials by applicable statutes and regulations; and proven violation

of pertinent statutes or regulations.’” Id. (quoting Prineville Sawmill Co., Inc. v. United

States, 859 F.2d 905, 911 (Fed. Cir. 1988) (quoting Keco Indus., Inc. v. United States, 492

F.2d 1200, 1203–04 (Ct. Cl. 1974))). 13

In neither Croman nor Veterans Contracting, however, did the Federal Circuit

identify which prong of § 1491(b)(1) was at issue, but, notably, both Prineville Sawmill

13 There is a difference in the requirements applicable to the cancellation of a sealed bidding

procurement as compared to a negotiated procurement. “In contrast to sealed bidding, in a

negotiated procurement . . ., [GAO] decisions have found that ‘the contracting officer need only

have a reasonable basis for cancellation after receipt of proposals, as opposed to the cogent and

compelling reason required for cancellation of a solicitation after sealed bids have been opened

[,] ... because in sealed bidding competitive positions are publicly exposed as a result of the

public opening of bids, while in negotiated procurements there is no public opening.’” DCMS-

ISA, Inc. v. United States, 84 Fed. Cl. 501, 511 (2008) (quoting Cantu Servs., Inc., B–219998, 89-1

CPD ¶ 306, 1989 WL 240549, *1 (Mar. 27, 1989) (internal quotations omitted)).

11

and Keco Indus., Inc. involved a prior version of the Tucker Act, pursuant to which this

Court’s predecessor had jurisdiction under § 1491(a) to decide whether the government

breached an implied contractual duty to fairly consider responsive bids or proposals.

Prineville Sawmill, 859 F.2d at 909 (“An invitation for bids issued by the government

carries, as a matter of course, an implied contractual obligation to fairly and honestly

consider all responsive bids.”); see also Parcel 49C Ltd. P'ship v. United States, 31 F.3d

1147, 1153 (Fed. Cir. 1994) (holding that plaintiff “showed that GSA had no rational basis

for the cancellation” in case brought pursuant to § 1491(a) and the prior version of the

Tucker Act, as amended by the Federal Courts Improvement Act of 1982, Pub. L. No.

97-164, § 133(a), 96 Stat. 25 (emphasis added)). This, of course, tends to demonstrate

that our jurisdiction to decide such procurement cancellation cases was imported into

§ 1491(b), following ADRA. Res. Conservation Grp., LLC v. United States, 597 F.3d 1238,

1246 (Fed. Cir. 2010) (holding that “[t]he legislative history makes clear that the ADRA

was meant to unify bid protest law in one court under one standard” and that “it seems

quite unlikely that Congress would intend that statute to deny a pre-existing remedy

without providing a remedy under the new statute”).

Turning back to 28 U.S.C. § 1491(b)(1), while the case law makes clear that a

plaintiff’s challenge to the rationality of an agency’s cancellation of a solicitation may be

brought as an alleged violation of FAR 14.404-1 or FAR 15.305(b) in, respectively, a

sealed bid (FAR Part 14) or negotiated procurement (FAR Part 15), the jurisdictional

(and merits) questions in this case are complicated by the fact that the cancelled

solicitations were issued pursuant to FAR Part 8, under the FSS program, and thus are

not subject to either FAR Part 14 or FAR Part 15 cancellation provisions. See 28 U.S.C.

§ 1491(b)(1) (covering an “alleged violation of statute or regulation in connection with a

procurement or a proposed procurement”). In other words – given the absence of any

analogous FAR Part 8 provision governing an agency’s solicitation cancellation – does

our Court possess jurisdiction to decide a challenge to an agency’s cancellation of a

solicitation issued under FAR Part 8?

Judge Wolski decided that precise question in MORI Assocs., Inc. v. United States,

102 Fed. Cl. 503 (2011). In that case, Judge Wolski held that “the protest of a

cancellation of a solicitation is not an ‘objecti[on] to a solicitation ... for bids or proposals

for a proposed contract or to a proposed award or the award of a contract.’” 102 Fed.

Cl. at 523 (quoting 28 U.S.C. § 1491(b)(1)). Therefore, the statutory “phrase ‘or any

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

proposed procurement,’ . . . must be the vehicle by which the remainder of our pre-

existing jurisdiction over procurement protests was preserved.” 102 Fed. Cl. at 523.

This Court concurs with MORI that the fourth-prong of 28 U.S.C. § 1491(b)(1) –

covering an alleged violation of law in connection with a procurement or a proposed

12

procurement – provides the necessary ballast for solicitation cancellation cases, 14 but, as

Judge Wolski correctly observed, and as noted above, FAR 15.305(b) “does not apply to

FSS procurements such as the . . . procurement cancelled” in the instant case. Id. (citing

FAR 8.404(a) and rejecting various “provisions plaintiff cites from the FSS subpart of the

FAR” as a basis for such jurisdiction). In the absence of a specific cancellation

provision, “[the Court] should look for a regulation codifying the duty to fairly consider

bids, as the repository of the remainder of our bid protest jurisdiction.” 102 Fed. Cl. at

523 (explaining that pre-ADRA, “our court’s jurisdiction over challenges to solicitation

cancellations was not based on the violation of a regulation specifically addressing

cancellation, but rather on the implied contract to fairly and honestly consider bids”).

In that regard, MORI “holds that that the FAR section 1.602–2(b) requirement that

contracting officers shall ‘[e]nsure that contractors receive impartial, fair and equitable

treatment’ is, among other things, the codification of the government’s duty, previously

implicit, to fairly and honestly consider bids.” 102 Fed. Cl. at 523–24 (concluding that

“numerous opinions of our court have treated FAR section 1.602–2(b) as a binding

requirement the violation of which may be reviewed in a bid protest”). In other words,

just as this Court, pre-ADRA, would have been able to hear a challenge to the

cancellation of a solicitation under the FSS program pursuant to 28 U.S.C. § 1491(a), we

may continue to do so under the fourth prong of § 1491(b) as an alleged violation of

FAR 1.602-2(b).

Despite the government’s initial concession in its motion for judgment on the

Administrative Record, acknowledging our jurisdiction to review the solicitation

cancellation decisions at issue, see Def. MJAR at 15, 15 the government later “disagree[d]

14See also Def. Supp. Br. at 6 (“An action challenging a cancelation decision does not challenge a

solicitation for bids or proposals or a proposed award.”). This appears to be the government’s

consistent position, and the Court concurs that the government is correct. See MCI Diagnostic

Ctr., LLC v. United States, 147 Fed. Cl. 246, 270 (2020) (noting the government’s argument that

plaintiff “challenges only the VA’s decision to cancel the solicitation ... and the protest of a

cancellation is not an ‘objecti[on] to a solicitation ... for bids or proposals for a proposed contract

or to a proposed award or the award of a contract’”).

15 The government in its MJAR relied upon Madison Servs., Inc., 92 Fed. Cl. at 125–26, and FFTF

Restoration Co., 86 Fed. Cl. at 236–37, in conceding that the Court of Federal Claims possesses

jurisdiction to review an agency’s decision to cancel a solicitation. Def. MJAR at 15. In FFTF

Restoration, Judge Firestone – in addition to relying upon FAR 15.305(b) – “reject[ed] the

government’s attempt to carve out challenges to negotiated procurement cancellations from this

court’s bid protest jurisdiction” because “28 U.S.C. § 1491(b)(1) authorizes this court to review

cancellations of negotiated procurements to ensure compliance with the requirements of

‘integrity, fairness, and openness’ in FAR 1.102(b)(3) and the requirement that ‘[a]ll contractors

and prospective contractors shall be treated fairly and impartially’ in FAR 1.102–2(c)(3).” FFTF

Restoration, 86 Fed. Cl. at 237 & n.15. In Madison Servs., this Court held that “the decision to

13

with the conclusion in MORI that FAR 1.602-2(b) confers jurisdiction upon this Court

over any general allegation of an arbitrary decision to cancel a solicitation that is not

instead based on a specific violation of statute or regulation.” Def. Supp. Br. at 6.

According to the government in its supplemental brief, “a contracting officer cannot

violate FAR 1.602-2(b) by taking an action that a plaintiff deems ‘unfair,’ unless the

contracting officer violated another, specific substantive provision of the FAR.” Id. at 7.

The government’s contentions must be rejected for several reasons. First, a

recent Federal Circuit decision all but precludes the government’s position. Office

Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020) (“The [FAR] requires an

agency to treat offerors fairly and impartially. [FAR] 1.602–2(b) . . . . This obligation

necessarily encompasses an agency’s obligation to fairly and impartially evaluate all

proposals.”). 16 Second, apart from the Federal Circuit’s decision in Office Design Grp.,

the great weight of authority supports Plaintiffs’ position that FAR 1.602-2(b) is indeed

“substantive” and supports a claim under the fourth prong of 28 U.S.C. § 1491(b)(1).

MORI, 102 Fed. Cl. at 524 (cataloging decisions that “reinforce[] the Court’s conclusion

that FAR section 1.602–2(b) is the place where the formerly implied contract now

expressly resides” and holding “that this provision is violated by government actions

which would have breached the implied duty to fairly and honestly consider bids, and

thus such actions—including arbitrary cancellations of solicitations—would be the

‘violation of ... regulation in connection with a procurement’”); R. Nash, FAIR

TREATMENT OF CONTRACTORS: Do FAR Provisions Confer Rights?, 27 NO. 7 Nash &

Cibinic Rep. ¶ 35 (noting that “[t]here are numerous Court of Federal Claims decisions

relying on FAR 1.602-2(b) to find a substantive right of a contractor” and commenting

that “it is good to see the Court of Federal Claims finding that the FAR confers a right of

contractors to fair treatment”). 17

cancel a negotiated procurement remains subject to the court’s review, pursuant to 28 U.S.C.

§ 1491(b) and the APA standard.” 92 Fed. Cl. at 125; see Def. Tech., Inc. v. United States, 99 Fed.

Cl. 103, 114–15 (2011) (surveying the prior case law, and “conclud[ing] that Judge Firestone’s

decision in FFTF Restoration is on point and should be followed by this Court.”).

16 See also Krygoski Const. Co. v. United States, 94 F.3d 1537, 1542–43 (Fed. Cir. 1996) (“CICA

mandates impartial, fair, and equitable treatment for each contractor. This competitive fairness

requirement, with its bid protest remedies, restrains a contracting officer’s contract administration.

If, for instance, a contracting officer discovers that the bid specifications inadequately describe

the contract work, regulations promulgated under CICA may compel a new bid.” (emphasis

added) (citing 10 U.S.C. §§ 2304 and 2305 (1994), and FAR 1.602–2)).

17See also, e.g., MCI Diagnostic Ctr., 147 Fed. Cl. at 272 (“It is, therefore, consistent with Resource

Conservation Group to hold that this court continues to have jurisdiction over alleged arbitrary

cancellations of procurement solicitations. Moreover, given this court's pre-ADRA jurisdiction

to address procurement cancellation issues, it follows that whether or not protestor alleges the

14

2. 10 U.S.C. § 2305(b)(2)

Even if FAR 1.602–2(b) were construed not to provide a basis for this Court’s

review of a challenge to a solicitation cancellation in a FAR Part 8, FSS procurement, the

Court holds that, in this case, 10 U.S.C. § 2305(b)(2) does provide such a predicate for

this Court’s jurisdiction, again pursuant to the fourth prong of 28 U.S.C. § 1491(b)(1). In

that regard, and as noted above, the Court ordered the parties to submit supplemental

briefs addressing 10 U.S.C. § 2305(b)(2), which provides that “[a]ll sealed bids or

competitive proposals received in response to a solicitation may be rejected if the head of

the agency determines that such action is in the public interest” (emphasis added). Given

that FAR 15.305(b) may serve as a jurisdictional predicate where applicable, the Court

has no trouble concluding that almost identical language in 10 U.S.C. § 2305(b)(2)

similarly provides jurisdiction here. Although FAR Part 15 provisions do not apply

wholesale to the procurements at issue, the referenced Title 10 statutory provision does

apply by its terms. The Court further notes that the statutory provision contains a

heightened procedural requirement of a determination by the “head of the agency” and

a heighted substantive requirement that a cancellation be “in the public interest” and

not merely “in the best interest of the government” as in FAR 15.305(b). See 10 U.S.C.

§ 2305(b)(2).

The government contends that 10 U.S.C. § 2305(b)(2) is inapplicable to the

cancelled solicitations because the agency did not seek “competitive proposals.” Def.

Supp. Br. at 1–2. According to the government, the FAR distinguishes between

violation of a specific statute or regulation, this court continues to be able to address

cancellation issues.”); B & B Med. Servs., Inc. v. United States, 114 Fed. Cl. 658, 660 (2014) (“Given

our long history of entertaining such [arbitrary procurement cancellation] protests, the Court

does not find subject-matter jurisdiction to be absent merely because the particular regulation

that is violated by arbitrary cancellation is absent from the complaint.”); Sigmatech, Inc. v. United

States, 141 Fed. Cl. 284, 313 (2018) (“The [FAR] requires that contracting officers ‘[e]nsure that

contractors receive impartial, fair, and equitable treatment.’” (quoting FAR 1.602-2(b))); Centerra

Grp., LLC v. United States, 138 Fed. Cl. 407, 413 (2018) (holding that “[f]airness in government

procurements is enshrined in a number of FAR provisions[,]” including FAR 1.602–2(b));

BCPeabody Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502, 512 (2013) (“Contracting officers

are required to ‘ensure that contractors receive impartial, fair, and equitable treatment.’”

(quoting FAR 1.602–2(b))); Serco Inc. v. United States, 81 Fed. Cl. 463, 482 (2008) (noting “agency’s

fundamental duty to ‘[e]nsure that contractors receive impartial, fair and equitable treatment’”

(quoting FAR 1.602–2))); Precision Images, LLC v. United States, 79 Fed. Cl. 598, 619 (2007) (“The

[FAR] impose[s] upon the Air Force the affirmative duty to ‘[e]nsure that contractors receive

impartial, fair, and equitable treatment’ during the procurement process.” (citing FAR 1.602–2(b))

(emphasis added)), aff’d, 283 F. App’x 813 (Fed. Cir. 2008); Jacobs Tech. Inc. v. United States, 131

Fed. Cl. 430, 445 (2017) (holding that plaintiff “sufficiently alleged that the Army violated

applicable regulations in connection with the . . . procurement” (citing FAR 1.602–2(b))).

15

procurements seeking “competitive proposals” and those involving “competitive

procedures”:

FAR 6.102(d)(3) provides that the “[u]se of multiple award

schedules issued under the procedures established by the

Administrator of General Services consistent with the

requirement of 41 U.S.C.152(3)(A) for the multiple award

schedule program of the General Services Administration is a

competitive procedure” (emphasis added). FAR 6.102(b)

explicitly defines “competitive proposal” as “other” than a

subsection (d) “competitive procedure[.]”

Def. Supp. Br. at 2. The Court rejects the government’s argument for two reasons:

(1) the hypothesized dichotomy between a procurement requesting “competitive

proposals” and a procurement involving “competitive procedures” is false – there is no

inherent contradiction or distinction; and (2) the cancelled solicitations at issue here in

fact sought competitive proposals. This is evident from statutory language, as well as

the mechanics of a typical FAR Part 8 procurement, the latter which the agency did not

follow in this case.

First, Title 10 of the U.S. Code consistently uses the term “competitive proposals”

not in contrast with “competitive procedures” but rather only in contrast with sealed

bids. For example, 10 U.S.C. § 2302(3)(D) incorporates the definition of the term “full

and open competition” found “in chapter 1 of title 41.” The latter statutory section, in

turn, defines “full and open competition” to “mean[] that all responsible sources are

permitted to submit sealed bids or competitive proposals on the procurement.” 41 U.S.C.

§ 107 (emphasis added). Similarly, 10 U.S.C. § 2304(a)(2)(B) provides that “the head of

an agency . . . shall request competitive proposals if sealed bids are not appropriate. . . .”

Cf. 41 U.S.C. § 3701(a) (“An executive agency shall evaluate sealed bids and competitive

proposals, and award a contract, based solely on the factors specified in the solicitation.”

(emphasis added)). The solicitations at issue were not invitations for sealed bids.

Second, although the government relies on FAR 6.102, as explained above, to

argue that “competitive proposals” are synonymous with FAR Part 15 procurements,

that thread quickly unravels as the Court follows it through. For example, FAR 6.401

indicates that “[s]ealed bidding and competitive proposals, as described in parts 14 and

15, are both acceptable procedures for use under subpart[] 6.1,” which, of course,

includes FAR 6.102. Furthermore, FAR 6.401(b) covers “competitive proposals” and

references FAR Part 15 “for procedures”; but, FAR 15.000 itself – similar to the statutory

provisions discussed above – distinguishes only between negotiated procurements and

sealed bidding. See FAR 15.000 (noting that “[t]his part prescribes policies and

procedures governing competitive and noncompetitive negotiated acquisitions” and

providing that “[a] contract awarded using other than sealed bidding procedures is a

16

negotiated contract”). The cancelled solicitations in this case contemplated negotiated

procurements and did not follow “sealed bidding procedures.” Id.

Accordingly, while the Court agrees with the government that the cancelled

solicitations at issue were not subject to FAR Part 15 per se, Def. Supp. Br. at 3–5, the

Court agrees with the PTP that the solicitations nevertheless constituted “negotiated

procurements” that solicited “competitive proposals” pursuant to a Request for

Proposals (“RFP”). See PTP Supp. Br. at 8–9 (“Although the Agency may have had the

authority to structure the Solicitations as RFQs seeking only responsive quotes, the

Agency here issued unmistakable RFPs, seeking competitive proposals that the Agency

could evaluate and accept.” (emphasis in original)). The Administrative Record

thoroughly supports PTP’s position in that regard. For example, the July 10, 2020 Task

Order Decision Document (“TODD”) for the 13F procurement, signed by the

Contracting Officer, see ECF No. 25 at 346–55 (AR 342–51), admits that the “solicitation

was placed against the GSA MAS . . . as a 100% [SDVOSB] set-aside competitive action

using order procedure under [FAR] 8.405-2 in conjunction with FAR Part 15-Contract

by Negotiation and FAR Part 12-Acquisition of Commercial Items.” Id. at 346 (AR 342)

(emphasis added).

Moreover, the Administrative Record confirms that the agency engaged in

negotiations insofar as “[p]roposal revisions were allowed and offerors could submit a

final offer based on changes provided on solicitation amendments.” Id. at 348 (AR 344)

(also citing FAR 15.404-1 regarding price analysis); see also AR 350 (citing FAR 15.403

regarding “adequate price competition”). Similarly, the JFOC Past Performance

Questionnaire explicitly informed prospective references that the agency’s planned

“schedule will allow sufficient time to analyze the data prior to the start of negotiations.”

Id. at 499 (AR 495) (emphasis added). The JFOC TODD indicated that the FAR Part 8

RFP “was placed against the GSA MAS . . . as a 100% [SDVOSB] set-aside competitive

action using FAR Part 15-Contract by Negotiation and FAR Part 12-Acquisition of

Commercial Items.” Id. at 565 (AR 561) (emphasis added). As part of the JFOC

procurement, the agency conducted discussions and permitted final proposal revisions.

AR 563 (indicating that “[t]wo of the four offerors made changes and submitted Final

Offers”). As this Court has noted, “the acid test for deciding whether an agency has

engaged in discussions is whether the agency has provided an opportunity for

proposals to be revised or modified.” Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl.

16, 44 (2010) (quoting Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 230

(2008)). A solicitation that contemplates the submission of proposals and the possibility

of discussions is a negotiated procurement.

The government itself further admits that the procurements at issue in this case

are “negotiated procurement[s].” Def. MJAR at 15 (acknowledging that “[i]n the

context of a negotiated procurement like this one,” the contracting officer’s cancellation

decision is subject to the APA review standard in § 1491(b)(4) (emphasis added)); id. at

16 (addressing the “Court’s review of a cancellation decision in the course of a

17

negotiated procurement” and arguing that “[b]ecause the contracting officer has the

discretion to cancel a negotiated procurement,” a plaintiff must show the decision “had

no rational basis”). As demonstrated above, a negotiated procurement involves

competitive proposals. See PHT Supply Corp. v. United States, 71 Fed. Cl. 1, 12 (2006)

(“This federal statute provides that, in negotiated procurements, agencies ‘shall

evaluate ... competitive proposals and make an award based solely on the factors

specified in the solicitation.’” (quoting 10 U.S.C. § 2305(b)(1))).

The government’s attempt to distinguish the solicitations at issue from a

procurement seeking competitive proposals is particularly unavailing where, as here,

the government did not follow normal FAR Part 8 procedures. In that regard, the

government is correct that, typically, there is a distinction between procurements

conducted pursuant to FAR Parts 14 and 15, on the one hand, and FAR Part 8

procurements, on the other: the former solicit bids or proposals from bidders or

offerors, respectively, while the latter solicits quotations. FAR 2.101 delineates the

difference:

Offer means a response to a solicitation that, if accepted,

would bind the offeror to perform the resultant contract.

Responses to invitations for bids (sealed bidding) are offers

called “bids” or “sealed bids”; responses to requests for

proposals (negotiation) are offers called “proposals”;

however, responses to requests for quotations (simplified

acquisition) are “quotations”, not offers.

FAR 2.101 (emphasis added). 18

The GAO also helpfully has explained that a request for quotation (“RFQ”) is

nothing more than a request for information:

The submission of a bid or proposal constitutes, by its very

nature, an offer by a contractor that, if accepted, creates a

binding legal obligation on both parties. Because of the

binding nature of bids and offers, they are held open for

acceptance within a specified or reasonable period of

time . . . .

18Cf. FAR 13.004(a) (“A quotation is not an offer and, consequently, cannot be accepted by the

Government to form a binding contract. Therefore, issuance by the Government of an order in

response to a supplier's quotation does not establish a contract. The order is an offer by the

Government to the supplier to buy certain supplies or services upon specified terms and

conditions. A contract is established when the supplier accepts the offer.”).

18

A quotation, on the other hand, is not a submission for

acceptance by the government to form a binding contract;

rather, vendor quotations are purely informational. In the

RFQ context, it is the government that makes the offer, albeit

generally based on the information provided by the vendor in

its quotation, and no binding agreement is created until the

vendor accepts the offer. FAR § 13.004(a). A vendor

submitting a price quotation therefore could, the next

moment, reject an offer from the government at its quoted

price. Because vendors in the RFQ context hold the power of

acceptance and their submissions are purely informational,

there is nothing for vendors to hold open.

Sea Box, Inc., B-405711, 2012 CPD ¶ 116, 2012 WL 924951, *2–*3 (Mar. 19, 2012) (internal

citations omitted) (emphasis added). 19

In this case, in contrast, the agency did not merely solicit quotes resulting in a

purchase order to the putative awardees. Rather, the agency solicited competitive

proposals pursuant to RFPs, contemplated negotiations, and awarded contracts based

upon those proposals. 20 ECF No. 25 at 5 (AR 1) (13F Solicitation); id. at 386 (AR 382)

(JFOC Solicitation); id. at 244-45 (AR 240-41) (F13 TODD consistently using the term

“proposals”); id at 565-66 (AR 561-62) (JFOC TODD consistently using the term

“proposals”).

Because the solicitations at issue here were RFPs seeking competitive proposals

as part of a negotiated procurement – and were neither Invitations for Bids (“IFBs”) nor

Requests for Quotations (“RFQs”), see PTP Supp. at 8 – the Court concludes that the

agency had to comply with 10 U.S.C. § 2305(b)(2). The FAR’s definition of “solicitation”

19“Though GAO opinions are not binding on this court, . . . this court may draw on GAO’s

opinions for its application of this expertise.” Allied Tech. Grp., Inc. v. United States, 649 F.3d

1320, 1331 n.1 (Fed. Cir. 2011) (citing Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.

Cir. 1989)); see Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105, 140 n.6 (2020) (“GAO

decisions are not binding on the Court but may be treated as persuasive authority in light of

GAO’s expertise in the bid protest arena.”).

20The GSA itself warns against using an RFP for FSS purchases, but that is exactly what the

agency did here. https://interact.gsa.gov/wiki/its-rfq-quote-rather-rfp-offer-when-talking-

about-orders-against-schedules-far-84 (“It is inappropriate and contrary to FAR SubPart 8.4 to

call a Schedule order request for quotation an ‘RFP.’ The FAR never recognizes ‘RFP’ as a

suitable substitute for a Schedule order’s ‘RFQ.’ As the FAR (as well as the Government

Contracts Reference Book and other sources) point out, ‘RFP’ and ‘RFQ’ are not

interchangeable. They differ in when offer and acceptance occurs. When talking about

Schedule orders, only ‘RFQ’ is recognized by the FAR.”) (last visited Nov. 25, 2020).

19

proves the point: “Solicitation means any request to submit offers or quotations to the

Government. Solicitations under sealed bid procedures are called ‘invitations for bids.’

Solicitations under negotiated procedures are called ‘requests for proposals.’” FAR 2.101

(emphasis added). Accordingly, in this case, the cancelled solicitations were not IFBs or

RFQs, but rather were RFPs – that is, “requests for proposals” as part of negotiated

procurements conducted under FAR Part 8. Id. That is all that is necessary for 10 U.S.C.

§ 2305(b)(2) to apply, and the government cannot now, for the purposes of litigation,

recharacterize the procurements as typical FSS purchases seeking only quotations.

Aiken v. United States, 4 Cl. Ct. 685, 694 (1984) (“party characterizations or mere contract

formalisms cannot alter the substance of a transaction”); Burstein v. United States, 622

F.2d 529, 537 (Ct. Cl. 1980) (“[W]e must look to the substance of the transaction; the true

nature of the arrangement cannot be altered by mere contractual formalisms.”); see IBM

U.S. Fed., A Div. of IBM Corporation, B-409806, 2014 CPD ¶ 241, 2014 WL 4160022, *6

(Aug. 15, 2014) (“Where, as here, an agency . . . uses an approach more akin to a

competition in a negotiated procurement than to a simple FSS buy, GAO will review the

record to ensure that the procurement was conducted on a fair and reasonable basis and

consistent with standards generally applicable to negotiated procurements.”); Omniplex

World Servs. Corp., B-291105, 2002 CPD ¶ 199, 2002 WL 31538212, *3 (Nov. 6, 2002)

(“[W]hile the provisions of FAR Part 15, which govern contracting by negotiation, do

not directly apply, . . . we analyze [the protestor’s] contentions by the standards applied

to negotiated procurements.”); Allied Tech. Grp., Inc., B-402135, 2010 CPD ¶ 152, 2010

WL 2726056, *4 n.8 (Jan. 21, 2010) (“The procurement here was conducted under the FSS

provisions of FAR subpart 8.4, and thus the negotiated procurement provisions of FAR

part 15 do not directly apply. However, our Office has held that where agencies use the

negotiated procurement techniques of FAR part 15 in FSS buys, such as discussions, we

will review the agency's actions under the standards applicable to negotiated

procurements.”). 21

* * * *

Plaintiffs also allege violations of FAR 19.502-2 and FAR 19.502-9, TTGI Am.

Compl. at ¶¶ 36–38; PTP Compl. at ¶¶ 87–90, 104–08, independently vesting this Court

21The Court acknowledges that the GAO’s decision in The MIL Corp., B-297508, 2006 CPD ¶ 34,

2006 WL 305965 (Jan. 26, 2006), may be read to have reached a contrary conclusion, in part in

reliance upon this Court’s decision in Systems Plus, Inc. v. United States, 68 Fed. Cl. 206, 209–210

(2005). Both cases are distinguishable, however, because while they involved FSS procurements

having elements of negotiated procedures, they involved RFQs and not RFPs. The MIL Corp.,

2006 WL 305965, *5 (“Here, the procurement was not conducted pursuant to the negotiated

procedures of FAR Part 15, nor did it involve the issuance of a request for proposals. Rather, the

procurement here was conducted under the FSS program, pursuant to the procedures set forth

in FAR Subpart 8.4 and using a request for quotations.” (emphasis added)); Sys. Plus, Inc., 68 Fed.

20

with jurisdiction to consider those claims pursuant to the fourth prong of 28 U.S.C.

§ 1491(b)(1). Finally, even if Plaintiffs were unable to rely on any particular statute or

regulation to challenge the cancellation of the solicitations at issue pursuant to 28 U.S.C.

§ 1491(b)(1), the Court still would have jurisdiction under 28 U.S.C. § 1491(a), although

the available relief would include only proposal costs, and not injunctive relief. See Eco

Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6, 41–42 (2013) (“[E]quitable relief is

. . . unavailable in implied contract bid protests pursued under section 1491(a).”).

B. The FASA Task Order Protest Bar

The FASA task order protest bar provides that “[a] protest is not authorized in

connection with the issuance or proposed issuance of a task or delivery order . . . .” 41

U.S.C. § 4106(f)(1) (emphasis added). The government does not contend that the FASA

task order protest bar precludes this Court’s jurisdiction over Plaintiffs’ claim generally

challenging the propriety of the agency’s solicitation cancellation decisions (i.e., even

though the agency intends to utilize a task order vehicle for the replacement

procurement). The government argues, however, that this Court is precluded from

deciding Plaintiffs’ claims to the extent that they depend upon this Court’s ruling on the

application of the Rule of Two. Def. MJAR at 30–33.

Relying on Federal Circuit precedent in SRA Int’l, Inc. v. United States, 766 F.3d

1409 (Fed. Cir. 2014), where that court held that “nothing in FASA’s language

automatically exempts actions that are temporally disconnected from the issuance of a

task order,” id. at 1413, the government asserts that SRA “affirms the broad reach of

FASA and establishes that a protest of the failure to conduct a rule of two analysis prior

to issuing a task order [under an IDIQ] is not a colorable basis to avoid the statutory

Cl. at 206 (noting that the procurement at issue was an RFQ). Moreover, the GAO in The MIL

Corp. explicitly agreed with our determination here that “the use of negotiated procedures in

accordance with [FAR] Part 15 and as evidenced by the issuance of a request for proposals, constitutes

a procurement conducted on the basis of competitive proposals.” The MIL Corp., 2006 WL 305965, *5

(emphasis added) (citing cases in which the GAO equated “a negotiated procurement with a

procurement conducted on the basis of competitive proposals”); see also Comfort Inn South, B-

270819, 96-1 CPD ¶ 225, 1996 WL 251441, *2 (equating the term “competitive proposals” in 10

U.S.C. § 2304(a)(2)(B) with “negotiated procedures”). On another note, the Court finds it very

hard to believe that the government would argue that Plaintiffs’ proposals are subject to public

disclosure. See 41 U.S.C. § 4702 (“Prohibition on release of contractor proposals”) (providing

that “[a] proposal in the possession or control of an executive agency may not be made available

to any person under [the Freedom of Information Act,] section 552 of title 5” where “proposal”

is defined as “including a technical, management, or cost proposal, submitted by a contractor in

response to the requirements of a solicitation for a competitive proposal” (emphasis added)); see also

10 U.S.C. § 2305(g) (same).

21

[task order protest] bar.” Def. Mot. at 30–31. 22 Furthermore, the government notes that

the Federal Circuit in RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289

(Fed. Cir. 1999), has interpreted broadly the phrase “in connection with” in the Tucker

Act, 28 U.S.C. § 1491(b)(1). 23 Def. Resp. at 8–9. Accordingly, the question that the

government fairly raises is whether Plaintiffs’ claims that the Army failed to perform

the Rule of Two analysis (before deciding to move the 13F and JFOC scopes of work to

the TMS MAIDIQ) constitute a “protest” that is “in connection with the issuance or

22 Candidly, the Court notes that the government’s position is far more persuasive than the

Court at oral arguments gave the government credit for and, thus, the Court addresses the

relevant issues at greater length.

23The filing of a protest with the General Accounting Office (“GAO”) may trigger an automatic

stay of a procurement under the provisions of the Competition in Contracting Act (“CICA”), 31

U.S.C. §§ 3551–56, prohibiting an agency from awarding a new contract pending a decision on

the protest. See 31 U.S.C. § 3553(c)(1). CICA, however, also allows an agency to override the

automatic stay if it issues a written finding that “urgent and compelling circumstances which

significantly affect interests of the United States will not permit waiting” for the bid protest

decision. 31 U.S.C. § 3553(c)(2); see RAMCOR, 185 F.3d at 1287. In RAMCOR, the Federal

Circuit addressed the question of “whether an objection to a [31 U.S.C.] § 3553(c)(2) override can

serve as a jurisdictional basis under § 1491(b)(1).” Id. at 1289. The Federal Circuit thus had “to

determine whether § 3553(c)(2) is a statute ‘in connection with a procurement,’ as required by

§ 1491(b)(1).” Id. While the Court of Federal Claims had held that a plaintiff protestor “could

only invoke § 1491(b)(1) jurisdiction by including in its action an attack on the merits of the

underlying contract award” – and that this Court accordingly lacked jurisdiction to decide an

override challenge – the Federal Circuit reversed. Id. The Federal Circuit explained its

reasoning as follows:

The language of § 1491(b) . . . does not require an objection to the

actual contract procurement, but only to the “violation of a statute

or regulation in connection with a procurement or a proposed

procurement.” The operative phrase “in connection with” is very

sweeping in scope. As long as a statute has a connection to a

procurement proposal, an alleged violation suffices to supply

jurisdiction. Section 3553(c)(2) fits comfortably in that broad

category. After all, [the agency’s] § 3553(c)(2) override allowed it

to procure immediately [the awardee’s] services. Moreover, under

that procurement, [the contact awardee] could have immediately

commenced work. Where an agency’s actions under a statute so

clearly affect the award and performance of a contract, this court

has little difficulty concluding that that statute has a “connection

with a procurement.”

Id. (emphasis added).

22

proposed issuance of a task or delivery order.” Def. MJAR at 30 (discussing 41 U.S.C. §

4106(f)(1)). 24 According to the government, “[t]here simply is no way to view the

protests of the TMS MAIDIQ as anything other than the protest of a proposed task

order.” Id. at 32–33 (emphasis added).

This Court disagrees that Plaintiffs are protesting either the TMS MAIDIQ itself

or even the “proposed issuance” of a task order. The Court further disagrees with the

government that the FASA protest bar is at all applicable here.

The Court must first appropriately frame Plaintiffs’ Rule of Two arguments. All

of the parties (and the Court) appear to agree that the Army’s decision to cancel the

solicitations at issue depends upon the availability of the TMS MAIDIQ as a viable

alternative under which the procurements may be conducted. In other words, there is

no question about the agency’s continuing need for the precise services sought pursuant

to the 13F and JFOC Solicitations. Accordingly, there are several possible ways to view

Plaintiffs’ Rule of Two arguments. One possible way is that the agency’s cancellation

decisions are irrational to the extent the agency has not performed a Rule of Two

analysis in order to know whether the TMS MAIDIQ is, in fact, a viable alternative.

Another possible way to view Plaintiffs’ claims is that because the agency has selected

the TMS MAIDIQ vehicle as part of a revised acquisition strategy, that selection itself

violated the Rule of Two, irrespective of the rationale offered in the agency’s August 10

MFR. 25 The first view ties the Rule of Two issue to the propriety or legality of the

agency’s cancellation decisions, while the latter view constitutes a challenge to the

legality of an independent agency action. Viewed either way, Plaintiffs’ actions before

this Court do not constitute a “protest . . . in connection with the issuance or proposed

24 In terms of the FASA task order protest bar, the government relies exclusively upon the

provision in Title 41, notwithstanding the government’s contention in its supplemental brief

that “Section 3701(b) of Title 41 does not apply here because nothing in Title 41, Subtitle I,

Division C (§§ 3101 – 4714) applies to the Department of Defense.” Def. Supp. Br. at 2 (citing 41

U.S.C. § 3101(c)(1)(A)). The government nowhere addresses 10 U.S.C. § 2304c(e), the task order

protest bar applicable to Department of Defense (“DOD”) procurements. The difference

between the two statutes is the dollar value of the GAO jurisdictional threshold; for DOD

procurements, the applicable threshold is $25 million. 10 U.S.C. § 2304c(e)(1)(B). Because there

is no practical difference between the two provisions for the purposes of this decision, the

instant decision discusses 41 U.S.C. § 4106(f), the statutory provision upon which the

government has relied in its briefs.

25Even on that point, however, the government is noncommittal, in one sentence asserting that

“there is no uncertainty as to what contracting vehicle would be selected,” and then in the very

next sentence asserting that “the administrative record demonstrates that the agency has decided

already to use the TMS MAIDIQ.” Def. MJAR at 32 (emphasis added).

23

issuance” of a task order, nor does the Court agree with the government that Plaintiffs

are protesting the TMS MAIDIQ itself (or the proposed issuance of a task order).

For the reasons explained below, the Court finds that the FASA task order bar

does not apply to the present case because: (1) FASA only applies to a “protest” but that

term does not necessarily encompass an action alleging an independent “violation of

statute or regulation in connection with a procurement or proposed procurement”; (2)

even where an action properly may be considered a “protest,” FASA only applies

where there is some relationship to a “proposed issuance or issuance of a task order” –

that is, where a plaintiff is, in effect, a disappointed bidder or offeror; and (3) a

challenge to an agency’s alleged failure to conduct a Rule of Two analysis is not “in

connection with” a task order, no matter how Plaintiffs’ claims are viewed or how the

other operative language in FASA is interpreted or parsed.

As with any question of statutory analysis, this Court starts, as it must, with the

applicable statutory language. 26 The FASA task order protest bar provides, in its

entirety, as follows: “[a] protest is not authorized in connection with the issuance or

proposed issuance of a task or delivery order except for— (A) a protest on the ground

that the order increases the scope, period, or maximum value of the contract under

which the order is issued; or (B) a protest of an order valued in excess of $10,000,000.”

41 U.S.C. § 4106(f)(1) (emphasis added). With respect to the latter exception, the GAO

has exclusive jurisdiction to decide such claims. Id. § 4106(f)(2).

The interpretative difficulty is that FASA does not provide any further

definitional clarity regarding its operative terms. Solving this puzzle requires paying

close attention to the entirety of the FASA’s statutory language. While decisions from

this Court and the Federal Circuit generally have focused on the “in connection with”

language 27 – and that phrase’s “very sweeping . . . scope,” RAMCOR, 185 F.3d at 1289 –

that is but one-third of the FASA statutory equation. The remaining operative language

that remains to be unpacked is (a) “protest” and (b) “issuance or proposed issuance of a

task or delivery order,” 41 U.S.C. § 4106(f)(1), both of which, in this Court’s view,

considerably narrow the FASA’s jurisdictional bar. Cf. Maracich v. Spears, 570 U.S. 48, 60

(2013) (“[T]he phrase ‘in connection with’ provides little guidance without a limiting

principle consistent with the structure of the statute and its other provisions.”).

26Dyer v. Dep't of the Air Force, 971 F.3d 1377, 1380 (Fed. Cir. 2020) (quoting Kingdomware Techs.,

Inc. v. United States, –– U.S. ––, 136 S. Ct. 1969, 1976 (2016), for the proposition that “[i]n

statutory construction, we begin with the language of the statute” (internal quotes omitted)).

27BayFirst Sols., LLC v. United States, 104 Fed. Cl. 493, 502 (2012) (“There seems to be some

variation in this court’s approach to interpreting the term ‘in connection with’ when applying

the ban on task order protests in particular cases.”).

24

1. FASA Does Not Necessarily Bar Claims Alleging A “Violation Of

Statute Or Regulation In Connection With A Procurement Or

Proposed Procurement”

The FASA task order bar applies only to “protest[s].” This Court therefore must

decide whether Plaintiffs’ claims in this case – specifically with respect to the agency’s

alleged violation of the Rule of Two – constitute a “protest.” The Court is unconcerned

with how that word is employed colloquially to describe § 1491(b) actions generally;

instead, the Court focuses on the language that Congress actually enacted in its statutes.

Azar v. Allina Health Servs., 587 U.S. ––, 139 S. Ct. 1804, 1812 (2019) (“This Court does not

lightly assume that Congress silently attached different meanings to the same term in . .

. related statutes.”). In that regard, on the one hand, neither the FASA task order

protest bar provision nor the Tucker Act defines the term “protest” and the question of

what that term includes is not straightforward. On the other hand, the GAO’s bid

protest jurisdictional statute, the Competition in Contracting Act (“CICA”), 28 defines

that term as follows:

The term “protest” means a written objection by an interested

party to any of the following:

(A) A solicitation or other request by a Federal agency for

offers for a contract for the procurement of property or

services.

(B) The cancellation of such a solicitation or other request.

(C) An award or proposed award of such a contract.

(D) A termination or cancellation of an award of such a

contract, if the written objection contains an allegation that

the termination or cancellation is based in whole or in part on

improprieties concerning the award of the contract.

(E) Conversion of a function that is being performed by

Federal employees to private sector performance.

31 U.S.C.A. § 3551(1); see also FAR 33.101 (defining “protest” similarly to CICA). 29

28 Pub. L. No. 98-369, 98 Stat. 1175 (1984) (codified, as amended, at 31 U.S.C. §§ 3551-3557).

29Notably, the CICA’s definition of “protest” explicitly distinguishes between an objection to a

solicitation, an objection to a solicitation’s cancellation, and an objection to “[a]n award or

proposed award.”

25

Focusing on CICA’s definition of the word “protest,” a Tucker Act cause of

action may be “in connection with” the issuance (or proposed issuance) of a task order,

but not subject to the FASA task order protest bar because the cause of action simply

does not qualify as a “protest.”30 As a more obvious practical analogy demonstrating

the accuracy of that conclusion, the government could not contend that a Contract

Disputes Act (“CDA”) claim qualifies as a “protest” subject to the FASA task order

protest bar. Kellogg Brown & Root Servs., Inc. v. United States, 117 Fed. Cl. 764, 770 (2014)

(holding that “this matter is not within our bid protest jurisdiction, but instead involves

questions of contract administration that must be brought under the CDA”); Itility, LLC

v. United States, 124 Fed. Cl. 452, 458 (2015) (noting that “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”); Digital Techs., Inc. v. United States, 89 Fed. Cl. 711, 722, 728–

29 (2009) (“By its terms, the FASA prohibition on bid protests does not apply to a breach

of contract case” or CDA claims). 31

A further comparison of the FASA task order protest bar to the Tucker Act

language (and RAMCOR’s interpretation of the latter) is instructive and demonstrates

that not all § 1491(b)(1) claims qualify as a “protest.” For starters, the Tucker Act

nowhere employs the term “protest” but rather refers repeatedly to “an action” (or “any

action”). 28 U.S.C. § 1491(b). 32 As noted previously, the Tucker Act, as amended by

ADRA, provides for four distinct causes of action related to the procurement process:

“an action by an interested party objecting [1] to a solicitation by a Federal agency for

bids or proposals for a proposed contract or [2] to a proposed award or [3] the award of

30“The CICA and the ADRA are, after all, different statutes, with different definitions of bid

protest.” Alaska Cent. Exp., Inc. v. United States, 50 Fed. Cl. 510, 517 (2001).

31Cf. Cont'l Serv. Grp., Inc. v. United States, 722 F. App’x 986, 992 (Fed. Cir. 2018) (noting

government’s position that a particular claim, dismissed by the trial court, was “a contract

administration claim subject to the [CDA] over which the Claims Court had no bid protest

jurisdiction”).

32CICA explicitly distinguishes between an “action” in this Court and a “protest” before the

GAO. 31 U.S.C. § 3556 (explaining that “nothing contained in this subchapter shall affect the

right of any interested party to file a protest with the contracting agency or to file an action in

the United States Court of Federal Claims”); see also 41 U.S.C. § 2101(6) (“The term ‘protest’

means a written objection by an interested party to the award or proposed award of a Federal

agency procurement contract, pursuant to subchapter V of chapter 35 of title 31.”); 31 U.S.C.

§ 1558 (distinguishing between a “protest filed under subchapter V of chapter 35 of this title,”

on the one hand, and “an action commenced . . . for a judicial remedy” involving a “a challenge

to-- (i) a solicitation for a contract; (ii) a proposed award of a contract; (iii) an award of a

contract; or (iv) the eligibility of an offeror or potential offeror for a contract or of the contractor

awarded the contract” (emphasis added)).

26

a contract or [4] any alleged violation of statute or regulation in connection with a

procurement or a proposed procurement.” Id. § 1491(b)(1) (emphasis added). The first

three causes of action are what we typically refer to as bid “protests,” as that term is

defined in CICA – i.e., challenges, respectively, to a solicitation or to the merits of a

contract award (or a proposed award). In contrast, the fourth prong of § 1491(b)(1) –

pursuant to which a plaintiff may allege a “violation of statute or regulation in

connection with a procurement or a proposed procurement” – is not necessarily a

“protest,” at least as that term is defined in CICA. 33 Indeed, although “ADRA covers

primarily pre- and post-award bid protests,” the Federal Circuit in RAMCOR explicitly

reversed this Court’s determination “that a [plaintiff] could only invoke § 1491(b)(1)

jurisdiction by including in its action an attack on the merits of the underlying contract

award” or the solicitation. RAMCOR, 185 F.3d at 1289 (emphasis added).

Put differently, “[t]he language of § 1491(b) . . . does not require an objection to

the actual contract procurement, but only to the ‘violation of a statute or regulation in

connection with a procurement or a proposed procurement.’” RAMCOR, 185 F.3d at

1289. The Federal Circuit further explained that construing § 1491(b)(1) to require a

plaintiff to object to the merits of a procurement effectively would eliminate the fourth

prong of the statute, as “[a] challenge on the merits would, for example, amount to an

objection to ‘a proposed award or the award of a contract.’” Id. (emphasis added) (“If

§ 1491(b) required a challenge to the merits of the contract award, the contractor would

never need to use the ‘violation’ prong but could always rely on other jurisdictional

grants in § 1491(b)(1).”). Simply put, an action under the last prong of § 1491(b) is not a

“protest” because it is not a challenge to a solicitation or to the proposed award or

award of a contract. In that regard, an axiomatic canon of statutory interpretation is

that “[w]hen construing a statute, this court must, if at all possible, give effect to all its

parts.” 185 F.3d at 1289 (citing Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S.

609, 633 (1973), and noting that “[t]he trial court’s proposed interpretation of §

1491(b)(1) would violate this basic tenet of statutory construction”). Accordingly,

33Thus, while “the Federal Circuit has made clear that a RAMCOR-type action may be brought

independent of whether the plaintiff objects to the actual contract procurement[,] CICA’s

definition of ‘protest’ is more limited than the scope of actions described by the Tucker Act and

does not include an independent ‘violation of statute or regulation in connection with a

procurement or a proposed procurement’ prong[.]” M. Solomson & J. Handwerker,

Subcontractor Challenges To Federal Agency Procurement Actions, 06-3 Briefing Papers 1, *6 (Feb.

2006). That is not to say that the GAO’s protest jurisdiction precludes its consideration of

alleged violations of statutes or regulations, see 31 U.S.C. § 3552(a), but rather the GAO may

only consider such allegations as part of a “written objection by an interested party” that meets

the definition of “protest” in 31 U.S.C. § 3551.

27

§ 1491(b)(1) must be construed to permit a cause of action which is neither a “protest” of

a solicitation, nor of a contract award (or proposed award). 34

The question, then, is what is the nature of Plaintiffs’ Rule of Two claims in this

case? Does an alleged violation of the Rule of Two challenge a solicitation or otherwise

object to an award or proposed award of a contract (i.e., are Plaintiffs’ claims

“protests”)? Or, are Plaintiffs’ claims properly considered only under the fourth prong

of § 1491(b)(1)?

Before answering those questions, the Court returns to the statutory language of

the FASA task order protest bar, and concludes that it applies, by its plain terms, only to

the first three causes of action identified in § 1491(b)(1), where CICA’s definition of

“protest” and the Tucker Act overlap. 35 In that regard, this Court concludes that the in

34As RAMCOR confirms, the protest of a “proposed award” concerns the merits of the agency’s

presumptive award (prior to the actual award), but in any event is not the same thing as a

solicitation protest. 185 F.3d at 1289 (“[a] challenge on the merits would, for example, amount

to an objection to ‘a proposed award or the award of a contract’”); see also, e.g., CGI Fed., Inc., B-

418807, 2020 CPD ¶ 276, 2020 WL 4901733, *4 (Aug. 18, 2020) (holding that although “[u]nder

CICA, protests are defined to include challenges involving solicitations, and awards made or

proposed under those solicitations[,]” the putative protestors did not allege grounds within the

GAO’s jurisdiction “because they do not object to the terms of a solicitation and do not

otherwise concern the award of a contract”); Litton Sys., Inc., B-229921, 88-1 CPD ¶ 448, 1988 WL

227107, *6 (May 10, 1988) (explaining that GAO “generally see[s] nothing improper in an agency

requirement that a proposed award selection be reviewed by higher agency officials” (emphasis

added)). A typical “proposed award,” for example, is an agency’s announcement of its intent to

award a sole-source contract. See, e.g., Wamore, Inc., B-417450, 2019 CPD ¶ 253, 2019 WL 3214259

(July 9, 2019) (“Wamore filed its protest challenging the Army’s planned sole-source contract

award to Airborne Systems.”); eFedBudget Corp., B-298627, 2006 CPD ¶ 159, 2006 WL 3347953

(Nov. 15, 2006) (“eFedBudget Corporation protests the proposed award of a contract on a sole-

source basis to RGII Technologies, Inc.”).

35Alphapointe v. Dep’t of Veterans Affairs, -- F. Supp. 3d --, 2020 WL 4346914, at *6–*7 (D.D.C. July

29, 2020) (transferring case to the Court of Federal Claims, and rejecting, consistent with other

cases, plaintiff’s argument that § 1491(b)(1) only covers “a bid protest or ‘a dispute over an

individual contract solicitation or award.’” (quoting Pub. Warehousing Co. K.S.C. v. Defense

Supply Ctr., 489 F. Supp. 2d 30, 39–40 (D.D.C. 2007)). In Public Warehousing Co., the District

Court correctly explained that the notion of a “‘bid protest’ limitation was squarely rejected in

RAMCOR” because “[l]imiting the ‘violation of statute or regulation’ prong to bid protest cases

would render it superfluous.” 489 F. Supp. 2d at 40 (holding that if “section 1491(b)(1) were

limited to claims challenging the merits of a specific solicitation or contract award, the ‘violation

of statute or regulation’ clause would serve no purpose because the other clauses in section

1491(b)(1) vesting jurisdiction in the Court of Federal Claims would suffice” (citing RAMCOR,

185 F.3d at 1289)). Thus, although the term “bid protest” is generally used to refer to actions

brought pursuant to 28 U.S.C. § 1491(b)(1), it more accurately describes only the first three

prongs of that statutory section. 489 F.2d at 40 (rejecting plaintiff’s contention that “Congress

intended the matters described [in § 1491(b)(1)] to be limited to bid protests,” and citing cases

28

pari materia canon of statutory interpretation 36 should be applied here such that FASA’s

usage of the term “protest” must be read as Congress defined the term in CICA.

First, the Federal Acquisition Streamlining Act of 1994 expressly incorporated the

CICA’s definition of “protest.” See Pub. L. No. 103-355, 108 Stat. 3243 §§ 1004 (“Task

and Delivery Order Contracts”), 1054 (“Task and Delivery Order Contracts”), 1401

(“Protest Defined”), 1438 (“Definition of Protest”). There is no reason to go searching

for another definition of “protest” in FASA (or elsewhere) where Congress literally

defined the term in context.

Second, binding Federal Circuit precedent requires us to apply CICA’s definition

of “interested party” to § 1491(b), and both “interested party” and “protest” are defined

in the very same statutory provision. See 31 U.S.C. § 3551; see also Am. Fed’n of Gov’t

Employees, AFL–CIO v. United States, 258 F.3d 1294 (Fed. Cir. 2001). 37 There is no

plausible justification for applying CICA’s definition of “interested party” to § 1491(b),

while ignoring CICA’s definition of “protest” in interpreting a jurisdictional limit on

§ 1491(b).

Third, the current FASA task order protest bar itself provides GAO with

“exclusive jurisdiction” over a “protest of an order valued in excess of $10,000,000.” 41

U.S.C. § 4106(f)(1)(B) & (F)(2). 38 The term “protest” in the jurisdictional bar must be

read as coterminous with what that term means at the GAO. Viewed from the other

for the proposition that “every court to address the ‘violation of statute or regulation’ clause

outside of a traditional bid protest setting—in plaintiff’s words, ‘some other challenge’—has

concluded that the breadth of that clause covers even non-traditional disputes arising from the

procurement process as long as the violation is ‘in connection with a procurement or a proposed

procurement’” (emphasis added)). “Thus, although it is true that litigation under the ADRA

traditionally has developed around pre- and post-award bid protests, no inference can be

drawn that the ADRA covers only those types of cases.” 489 F. Supp. 2d at 41 (footnote

omitted). The Federal Circuit favorably cited Public Warehousing Co. K.S.C. in Distributed Sols.,

Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008).

36 “Under this canon, courts should interpret statutes with similar language that generally

address the same subject matter together, “‘as if they were one law.’” Strategic Hous. Fin. Corp.

of Travis Cty. v. United States, 608 F.3d 1317, 1330 (Fed. Cir. 2010) (quoting Erlenbaugh v. United

States, 409 U.S. 239, 243 (1972) (internal quotes omitted)).

37See also Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1352 (Fed. Cir. 2004); Rex Serv.

Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006) (noting that “the term ‘interested

party’ in section 1491(b)(1) is construed in accordance with the [CICA], 31 U.S.C. §§ 3551–56”);

Digital Techs., Inc., 89 Fed. Cl. at 722 n.15 (“The United States Court of Appeals for the Federal

Circuit has applied the CICA definition of ‘interested party’ in bid protests . . . .”); Wildflower

Int'l, Ltd. v. United States, 105 Fed. Cl. 362, 377 (2012) (discussing 41 U.S.C. § 4106(f), and CICA’s

definition of “protest”); Technatomy Corp., B–405130, 2011 WL 2321836, at *4 (June 14, 2011)

(employing CICA’s definition of protest in GAO’s analysis of § 4106(f)).

38 Or $25 million for DOD procurements. 10 U.S.C. § 2304c(e)(1)(B).

29

end of the telescope, the word “protest” cannot be read to mean one thing in the task

order protest bar, but something else in the jurisdictional grant to the GAO, as both

provisions are contained within 41 U.S.C. § 4106(f). Henson v. Santander Consumer USA

Inc., –– U.S. ––, 137 S. Ct. 1718, 1723 (2017) (unanimous decision) (explaining that a court

must have a “persuasive reason” to “abandon our usual presumption that ‘identical

words used in different parts of the same statute’ carry ‘the same meaning’” (quoting

IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005))).

With the CICA’s definition of “protest” in mind, the Court concludes that the

FASA task order protest bar does not preclude Plaintiffs’ respective claims that the

agency failed to comply with the Rule of Two, particularly to the extent that such an

alleged violation may be viewed as distinct from the solicitation cancellation decisions

themselves. Although we recognize that CICA’s definition of “protest” includes an

objection to “[t]he cancellation of . . . a solicitation[,]” 31 U.S.C. § 3551(1)(B), and thus

such a claim (or cause of action) is plausibly within the ambit of FASA’s task order

protest bar, (1) the Tucker Act does not even authorize that same, independent action

per se, as demonstrated supra (and as the government itself argues), 39 and (2) the

government itself attempts to disengage the Rule of Two issue here from the challenged

cancellation decisions.

Again, the government does not argue that FASA task order protest bar generally

precludes Plaintiffs’ challenges to the cancellation decisions; indeed, the government’s

FASA protest bar argument is focused entirely upon Plaintiffs’ Rule of Two argument

standing alone and makes no mention of the cancelled procurements. See Def. MJAR at

30–31 (arguing for the “broad reach of FASA” such that “a protest of the failure to

conduct a rule of two analysis prior to issuing a task order is not a colorable basis to

avoid the statutory bar”); Def. Resp. at 11. The Court is not surprised by the

government’s approach because the cancellation decisions themselves are far removed

from the selection of a replacement acquisition vehicle, and the government no doubt

prefers to target something more likely to be considered “in connection with” a task

order process. To repeat: the government does not argue that Plaintiffs’ challenge to the

solicitation cancellations are barred per se by FASA. Thus, the government’s strategy,

understandably, is to tie the Rule of Two claims directly to the agency’s putative

selection of a task order vehicle, and then rely upon the breadth of FASA’s “in

connection with” language to argue for the application of the FASA protest bar.

If the government’s view of the Rule of Two claims is correct, however – i.e., that

it is segregable from the challenge to the solicitation cancellations as such – that means

that Plaintiffs’ “action” alleging a violation of various statutory or regulatory provisions

does not fit within any of CICA’s “protest” categories. And, thus, this Court properly

39That is why, pursuant to the fourth prong of 28 U.S.C. § 1491(b)(1), Plaintiffs must ground

their case here upon an alleged violation of statute or regulation.

30

may consider Plaintiffs’ Rule of Two claims, as explained above, only under the fourth

prong of 28 U.S.C. § 1491(b)(1), just as this Court must for the direct cancellation

decision challenge. Again, the fourth prong of 28 U.S.C. § 1491(b)(1) constitutes an

independent cause of action that is best understood as “cover[ing] even non-traditional

disputes arising from the procurement process as long as the violation is ‘in connection

with a procurement or proposed procurement[.]’” Validata Chem. Servs. v. Dep't of

Energy, 169 F. Supp. 3d 69, 78 (D.D.C. 2016) (quoting Pub. Warehousing Co. K.S.C. v.

Defense Supply Ctr., 489 F. Supp. 2d 30, 40 (D.D.C. 2007) (quoting 28 U.S.C. § 1491(b)(1))).

Again, CICA’s definition of protest contains no analog to that prong of § 1491(b)(1). 40

The Court can demonstrate this conclusion by viewing the problem from yet

another, slightly different, angle. As explained above, the word “protest” cannot mean

one thing in the FASA provision precluding this Court’s jurisdiction over a particular

class of actions, but another thing in conferring exclusive jurisdiction on the GAO for

the very same objections (or “protests”). Accordingly, the FASA statutory provision

only precludes this Court from hearing actions over which GAO would itself have

exclusive jurisdiction were the task order award (or proposed award) valued in excess

of $10 million (or $25 million for DOD procurements). 41 U.S.C. § 4106(f)(2); 10 U.S.C.

§ 2304c(e)(1)(B). The GAO does not have jurisdiction over RAMCOR-type actions

brought pursuant to the final prong of 28 U.S.C. § 1491(b)(1), 41 and, thus, to the extent

Plaintiffs’ respective actions here may be properly considered under that final prong,

but not by the GAO under its jurisdictional statute, the FASA task order protest bar

cannot apply to preclude them. 42 That Plaintiffs’ allegations are properly considered

40To the extent Plaintiffs object to the solicitation cancellations, our jurisdiction to consider such

a challenge is also covered by the fourth prong of 28 U.S.C. § 1491(b)(1), but at least that cause

of action fits comfortably within CICA’s definition of “protest,” although the government does

not argue that the FASA bar applies to such an objection here. 31 U.S.C.A. § 3551(1)(B)

(solicitation cancellation). In contrast, a challenge to an agency’s selection of a replacement

acquisition vehicle as contrary to law, while squarely within 28 U.S.C. § 1491(b)(1), is not

covered per se by CICA’s definition of “protest.”

41See Aerosage, LLC, B-417289, 2019 CPD ¶ 151 n.10 (Apr. 24, 2019) (“A protester desiring to seek

enforcement of CICA’s stay provisions must request relief from a court of competent

jurisdiction-currently the U.S. Court of Federal Claims.”); Aerosage, LLC, B-415267.13, 2018 CPD

¶ 114, 2018 WL 1392945 n.7 (Mar. 19, 2018) (“our Office has no jurisdiction to consider whether

an agency improperly failed to comply with a stay of performance”). A challenge to an

agency’s override of a CICA automatic stay is not characterized as a “protest.” Any

interpretation of the word “protest” in the FASA task order protest bar must come to grips with

the fact that RAMCOR-type actions are not protests.

42Again, even though the CICA’s definition of “protest” does include a challenge to the

“cancellation of . . . a solicitation,” 31 U.S.C. § 3551(1)(B), Plaintiffs here do not challenge the

cancellation of a solicitation “in connection with the issuance or proposed issuance of a task . . .

order” – which language concerns the merits of a task order award (or proposed award), as

explained infra. Moreover, § 1491(b)(1) does not even independently identify solicitation

31

under the final prong of § 1491(b)(1) is a conclusion all but compelled by the Federal

Circuit’s decision in PDS Consultants, Inc. v. United States, 907 F.3d 1345, 1356 (Fed. Cir.

2018) (“PDS Consultants alleged a statutory violation—namely, that the VA acted in

violation of [statute] by awarding contracts without first conducting the Rule of Two

analysis. . . . As an ‘alleged violation of statute or regulation in connection with a

procurement or a proposed procurement,’ PDS Consultants’ action arises under the

Claims Court’s jurisdiction.”); see Glob. Computer Enterprises, Inc. v. United States, 88 Fed.

Cl. 350, 445–49 (2009) (rejecting government’s contention that if plaintiff “can overcome

the jurisdictional bar simply by alleging that a regulation was violated, then that just

eviscerates the jurisdictional bar”).

In sum, our point is only that, even assuming the Rule of Two issue may be

disconnected entirely from the cancellation challenges themselves, as the government

suggests, the FASA task order bar would not apply here because it does not necessarily

reach “actions” brought pursuant to the fourth prong of 28 U.S.C. § 1491(b)(1). Unisys

Corp. v. United States, 90 Fed. Cl. 510, 517 (2009). The Court quotes Unisys at length

because it is particularly instructive in the context of the instant case:

This court therefore reviews an agency’s compliance with

§ 3553 “independent of any consideration of the merits of the

underlying contract award.” Planetspace Inc. v. United States,

86 Fed. Cl. 566, 567 (2009). Although “the Comptroller

General of the United States” has “exclusive jurisdiction”

over protests of task orders valued in excess of $10 million,

this lawsuit does not concern the task order itself, but merely

whether TSA wrongfully failed to comply with 31 U.S.C.

§ 3553. National Defense Authorization Act for Fiscal Year

2008, Pub. L. No. 110–181, § 843, 122 Stat. 3, 236 (codified at 10

U.S.C. § 2304c); see also Digital Techs. v. United States, No. 08–

604C, 2009 WL 4785451 (Fed. Cl. Dec. 9, 2009). This Court thus

possesses jurisdiction to review the alleged violation of

§ 3553.

90 Fed. Cl. at 517 (emphasis added). In terms of the language of § 1491(b)(1), Plaintiffs

allege that, in cancelling the solicitations at issue, based primarily upon the agency’s

cancellations as a separate category of claims, and, thus, any such challenge under the Tucker

Act, as amended by ADRA, must rely upon the final prong of § 1491(b)(1) in any event. Validata

Chem. Servs., 169 F. Supp. 3d at 84 (explaining that “any arguable parallel between CICA and

ADRA breaks down, as explained above, where the plaintiff’s cause of action falls under the

[final] prong of ADRA’s ‘objecting to’ test, which does not require that the plaintiff object to a

federal contract solicitation or award” (citing § 1491(b)(1) and RAMCOR, 185 F.3d at 1289));

Alaska Cent. Exp., Inc. v. United States, 50 Fed. Cl. 510, 517 (2001) (“The CICA and the ADRA are,

after all, different statutes, with different definitions of bid protest.”).

32

intent to use the TMS MAIDIQ, the agency has violated FAR 1.602–2(b), FAR 19.502-2

and FAR 19.502-9 – all of which are regulations “in connection with a procurement or

proposed procurement” under the Tucker Act. TTGI Am. Compl. at ¶¶ 36–38; PTP

Compl. at ¶¶ 98–111; TTGI MJAR at 20–22; PTP MJAR at 21–28.

In any event, neither the terms or parameters of the TMS MAIDIQ itself nor any

specific task order solicitation is at issue. Indeed, at least as of the time of filing of

Plaintiffs’ respective complaints, there was no pending task order solicitation, let alone

a task order award (or proposed award). TTGI Am. Compl. at ¶ 27; PTP Compl. at

¶ 51. 43

2. FASA Only Bars Challenges Related To The “Proposed Issuance

Or Issuance” Of A Task Order

Further supporting the Court’s conclusion that the FASA bar does not apply to

Plaintiffs’ Rule of Two claims is the fact that the FASA task order protest bar – again, by

its terms – only applies to a “protest . . . in connection with the issuance or proposed

issuance of a task . . . order . . . .” 41 U.S.C. § 4106(f)(1) (emphasis added). The latter

phrase further limits the scope of the protest bar insofar as it virtually mirrors only the

second and third prongs of § 1491(b)(1) – i.e., “a proposed award or the award of a

contract” – but with FASA replacing the Tucker Act’s reference to “award” and

“contract” with, respectively, “issuance” and “task order.” As demonstrated, supra,

however, the second and third prongs of § 1491(b)(1), properly understood, include

challenges to the results or merits of a procurement – an award or proposed award of a

contract – but do not cover solicitation protests, the latter which is a distinct cause of

action under both the Tucker Act, as amended by ADRA, and CICA’s definition of

“protest.”

43 The government, in its response brief, notified this Court that:

[t]he agency recently issued a request for task order proposals in

order to be prepared to proceed with the procurement in the event

the Court dismisses plaintiffs’ protest of that procurement. This

precautionary step was taken subsequent to the filing of the complaints

in this action. However, in accordance with the agency’s voluntary

stay to October 20, 2020, no awards will be issued.

Def. Resp. at 8 n.2 (emphasis added). Following a status conference with the parties on

November 12, 2020, Minute Order (Nov. 12, 2020), the government agreed to delay the task

order proposal deadline until November 30, 2020. Because this request for proposals was

issued following the initiation of this action, this Court’s analysis remains limited to the facts as

alleged in Plaintiffs’ complaints. See Walton v. United States, 80 Fed. Cl. 251, 264 (2008) (“[I]t

appears that binding Federal Circuit law has not departed from the established rule that

jurisdiction is determined on the basis of the facts that existed at the time the complaint was

filed.” (emphasis added)), aff’d, 551 F.3d 1367 (Fed. Cir. 2009).

33

Accordingly, just as a challenge to a solicitation is distinct from the challenge to a

proposed award of contract, so too a challenge to the selection (or planned selection) of

a particular (task order) contracting vehicle does not equate to the “proposed issuance”

of a task order. The fact that the agency here has “proposed” to use a MAIDIQ is not

the same as the “proposed issuance” of a task order.44 Again, FASA’s reference to the

“proposed issuance” of a task order mirrors § 1491(b)(1)’s use of “proposed award” –

the former does not cover an agency’s “proposed issuance” of a task order solicitation

any more than the latter includes an agency’s mere issuance of a standard solicitation.

A close reading of FASA’s task order protest bar thus suggests that it is

inapplicable even to a claim explicitly challenging an agency’s selection of a task order

vehicle for a procurement, assuming that is one way to characterize Plaintiffs claims in

this case. To be clear, however, Plaintiffs here challenge neither the terms of a

solicitation, the issuance of a task order solicitation, nor the award (or proposed award)

of a task order. Validata Chem. Servs., 169 F. Supp. 3d at 78 (explaining that where

plaintiff “is not objecting ‘to a [government] solicitation,’ ‘to a proposed award,’ or to an

actual ‘award of a [government] contract,’ . . . neither the first nor the second prong of

44 See supra n. 36. It bears repeating that if a “proposed award” were interpreted to cover the

same cause of action as a challenge to a solicitation, the first prong of the § 1491(b)(1) would be

rendered meaningless, just as the Federal Circuit in RAMCOR explained with respect to the

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

procurement” language. RAMCOR, 185 F.3d at 1289; Jacobs Tech. Inc., 100 Fed. Cl. at

175 (critiquing the “conflat[ion] [of] the separate jurisdiction grounds of solicitation, proposed

award or award, on the one hand, and violation of a statute or regulation, on the other”); Nat'l

Air Cargo Grp., Inc. v. United States, 126 Fed. Cl. 281, 288–89 (2016) (noting that the Court “must

address whether the protestor is objecting to a solicitation, proposed award, award, or violation

of law ‘in connection with a procurement or a proposed procurement’” – all distinct categories).

While this Court has often grouped the first two prongs of § 1491(b)(1) into pre- or post-award

protest categories, as noted supra, the statute clearly distinguishes between an action that is an

objection to a solicitation and one that constitutes a challenge to a proposed award of a contract.

Advanced Sys. Tech., Inc. v. United States, 69 Fed. Cl. 474, 482 (2006) (explaining that “[t]he

statute’s use of the conjunction ‘or’ makes it clear that the Court has jurisdiction over each of the

. . . identified types of actions” and citing RAMCOR, 185 F.3d at 1289, for the proposition that

the “violation of statute or regulation prong” of 28 U.S.C. § 1491(b)(1) provides a grant of

jurisdiction separate and apart from “an objection to ‘a proposed award or the award of a

contract’”). Indeed, Advanced Sys. Tech. specifically referenced “[t]he plain language of the first

prong of 1491(b)(1)” as “provid[ing] that this Court has jurisdiction over ‘an action brought by

an interested party objecting to a solicitation[.]’” Id.; see also DMS All–Star Joint Venture v. United

States, 90 Fed. Cl. 653, 661 n.10 (2010) (noting the protestor challenged not the terms of the

solicitation but the proposed award to a particular offeror). The Federal Circuit similarly has

distinguished between the different categories of § 1491(b)(1) protest-type actions. Res.

Conservation Grp., 597 F.3d at 1245 (referencing “a challenge to an award, proposed award, or

solicitation”).

34

ADRA’s ‘objecting to’ test is implicated”). Instead, Plaintiffs’ focus is on the agency’s

allegedly improper cancellation of two completed procurements.

As explained above, Plaintiffs allege that the agency’s decision to cancel those

solicitations fails the APA standard of review, at least in part because the agency erred

in concluding that it could utilize the TMS MAIDIQ vehicle to procure the work at

issue. In turn, whether the agency correctly (or incorrectly) reached that latter

conclusion depends at least in-part on whether the agency complied with the Rule of

Two. But whether this Court addresses the Rule of Two question simply as a subsidiary

issue in deciding the propriety of the agency’s cancellation decisions or whether we

view Plaintiffs’ Rule of Two claim as a stand-alone allegation of a regulatory violation,

as explained supra, the action in either case is not a “protest . . . in connection with the

issuance or proposed issuance of a task . . . order[.]” 41 U.S.C. § 4106(f)(1) (emphasis added).

Again, Plaintiffs’ action here properly is considered pursuant to the last prong of

§ 1491(b)(1) – an alleged “violation of a statute or regulation in connection with a

procurement or a proposed procurement.” Acetris Health, LLC v. United States, 949 F.3d

719, 728 (Fed. Cir. 2020) (“The reference to ‘proposed procurements’ likewise broadly

encompasses all contemplated future procurements by the agency.”). Put yet

differently, while all “proposed” awards of either contracts or task orders may be

subsumed within the “in connection with a procurement” language, not all alleged

violations of a statute or regulation “in connection with a procurement or proposed

procurement” involve an award or a proposed award. 45 Any contrary interpretation

would read a statutory phrase out of existence.

45Indeed, the phrase “proposed award” in 28 U.S.C. § 1491(b)(1) appears to be a term of art

employed due to this Court’s prior, more limited, pre-ADRA jurisdiction over “bid protests”

pursuant to § 1491(a). Prior to ADRA, this Court had jurisdiction to consider implied contract

claims exclusively from “disappointed bidders” but could only order injunctive relief in pre-

award cases. That meant there was no jurisdiction over solicitation challenges brought prior to

the submission of proposals because such a plaintiff could not be a “disappointed bidder” – no

implied contract to fairly consider a proposal would yet exist. And, once an award was actually

made, a plaintiff might be a “disappointed bidder” but could not obtain injunctive relief. For a

“proposed award,” however, a plaintiff could file a bid protest claim pursuant to § 1491(a) and

obtain injunctive relief. The critical point here is that the phrase “proposed award” – whether

in 28 U.S.C. § 1491 or in FASA – is not intended to cover some future result of a solicitation that

has not been issued or even the future result of an ongoing procurement process, in general.

See, e.g., United States v. John C. Grimberg Co., 702 F.2d 1362, 1367 (Fed. Cir. 1983) (“Thus

[§ 1491](a)(3) made an equitable remedy available when a claim over which the court has

jurisdiction (implied contract under (a)(1)) is filed in the court before a contract has been

awarded.”); Central Ark. Maintenance, Inc. v. United States, 68 F.3d 1338, 1341 (Fed. Cir. 1995)

(pre-ADRA § 1491(a) “jurisdictional grant . . . extends to suits brought by disappointed bidders,

commonly called bid protests, challenging the proposed award of contracts based on alleged

improprieties in the procurement process” (emphasis added)). “Proposed award” was never

understood, pre-ADRA, to encompass pre-solicitation agency decisions or even solicitation

challenges for the simple reason that “[v]iolations of law, rule, or regulation in the structuring

35

The government’s interpretive approach would rewrite the FASA task order

protest bar as applying “in connection with a task order” generally or “in connection

with a task order procurement or proposed procurement.” Congress’ selection of the

phrase “issuance or proposed issuance,” however, must be given meaning. In sum,

while the phrase “in connection with” must be interpreted broadly per the directions of

the Federal Circuit, the Court concludes that the neighboring language in 41 U.S.C.

§ 4106(f)(1) – the phrases “protest” and “issuance or proposed issuance of a task . . .

order” – serve to limit the reach of the FASA task order protest bar. 46

3. The Failure To Conduct A “Rule Of Two” Analysis Challenge Is

Not “In Connection With” A Task Order

Finally, while the Federal Circuit often has recognized that the phrase “in

connection with” should be interpreted broadly, this Court recognizes that the Supreme

Court has cautioned that “a non-hyperliteral reading [of this term] is needed to prevent

the statute from assuming near-infinite breadth.” FERC v. Electric Power Supply Ass’n,

136 S. Ct. 760, 774 (2016); see Maracich, 570 U.S. at 59–60 (citing cases). Although the

government relies upon SRA Int’l, Inc. v. United States, 766 F.3d 1409 (Fed. Cir. 2014),

Def. Mot. at 30–31, that case is distinguishable in a manner that supports jurisdiction

here (even putting aside this Court’s foregoing analysis of the other parts of the FASA

statutory language). In SRA Int’l, the protestor appealed this Court’s dismissal of a

protest, which alleged that the agency improperly had waived a conflict of interest

following the award of a task order. Id. at 1410. This Court held the waiver was not in

connection with the task order because the waiver was issued after the award and was

“a matter left to agency discretion.” Id. at 1412 (quoting SRA Int'l, Inc. v. United States,

114 Fed. Cl. 247, 255–56 (2014)). The Federal Circuit reversed, holding that neither the

of a solicitation . . . are breaches of statutory or regulatory obligations, not contractual ones, and

this court does not have the authority to redress them either in law or equity through a

disappointed bidder suit.” Eagle Const. Corp. v. United States, 4 Cl. Ct. 470, 476–77 (1984) (emphasis

added) (explaining that pursuant to pre-ADRA § 1491(a) jurisdiction, “the court's jurisdiction

over the implied contract of fair dealing in disappointed bidder cases embraces neither claims

challenging terms, conditions, or requirements of solicitations, nor policies and activities which

preceded and resulted in the solicitations”). On the other hand, where offerors had submitted

bids or proposals, “Congress intended 28 U.S.C. § 1491(a)(3) to [provide] . . . an unsuccessful

bidder [with] standing to challenge a proposed contract award on the ground that in awarding the

contract the government violated statutory and procedural requirements.” C.A.C.I., Inc.-Fed. v.

United States, 719 F.2d 1567, 1574 (Fed. Cir. 1983) (emphasis added). In this case, there is no

“proposed award” at issue.

46Glob. Computer Enterprises, Inc., 88 Fed. Cl. at 414–15 (“If Congress intended to prohibit

protests stemming from any action related to a task order contract, then it could have explicitly

drafted a statute that barred any protest in connection with a task order. It did not do so. Instead,

Congress prohibited bid protests in connection with either the issuance or proposed issuance of a

task order. . . .” (emphasis added)).

36

temporal disconnect between the task order and the waiver, nor the latter’s

discretionary nature, adequately separated the protest from the underlying task order.

766 F.3d at 1413. Thus, in SRA Int’l, the Federal Circuit concluded that an “OCI waiver

was directly and causally connected to the issuance of [a task order], despite being

executed after issuance.” 766 F.3d at 1413 (emphasis added). Indeed, “[t]he GSA issued

the waiver in order to go forward with [the selected awardee].” Id. Substitute

“solicitation cancellation” for “OCI waiver,” and the government’s position here – at

least on the surface – would seem to be correct.

Critically, however, the Federal Circuit cautioned that while “nothing in FASA’s

language automatically exempts actions that are temporally disconnected from the

issuance of a task order[,] . . . a temporal disconnect may, in some circumstances, help to

support the non-application of the FASA bar . . . .” 766 F.3d at 1413 (emphases added). In

this case, as previously explained, Plaintiffs’ respective complaints may be read as

contending that the agency’s failure to follow the Rule of Two (1) renders the

solicitation cancellations arbitrary and capricious, and/or (2) independently violated

FAR 19.502-2(b). Either way, for the reasons explained further below, the Rule of Two

issue in the instant case is both conceptually and sufficiently “temporally disconnected

from the issuance of a task order” to avoid it. Id.

Plaintiffs essentially contend that an agency must apply the Rule of Two before an

agency can even identify the possible universe of procurement vehicles which may be

utilized for a particular scope of work. TTGI Am. Compl. at ¶ 36; PTP Compl. at ¶¶ 95,

111; TTGI MJAR at 26; PTP MJAR at 25–27. The Court agrees. Where an agency refuses

to perform the Rule of Two analysis or otherwise disregards the results of such an

analysis, that does not mean an agency necessarily will select an unrestricted vehicle or

as task order vehicle. Indeed, the agency still may solicit the work utilizing

procurement vehicles that have nothing to do with task orders (e.g., a standalone

solicitation contemplating a single awardee but that is not set-aside for small business).

In other words, there is no necessary connection between the Rule of Two analysis (or

the failure to conduct such an analysis) and the issuance of a task order. Proxtronics

Dosimetry, LLC v. United States, 128 Fed. Cl. 656, 680 (2016) (“Necessarily, the decision to

set aside an acquisition for a small business must be made prior to issuing the

solicitation.” (citing FAR 19.508)). In contrast, in SRA Int'l, the agency simply could not

proceed with a task order that the agency already had awarded, absent the challenged

conflict waiver. The conflict waiver thus was necessary to the actual task order award

(and the plaintiff had challenged a specific task order award).

To further illustrate the distinction, consider a hypothetical case in which an

agency purports to have applied the Rule of Two. As a result of the agency’s analysis,

the agency determines that a set-aside is not required. Instead of immediately

proceeding with a particular procurement strategy, however, the agency issues a

request for information (“RFI”), in which the agency indicates that it is considering

various unrestricted vehicles with no set-aside component: e.g., a stand-alone, new

37

solicitation with a single-awardee; an existing MAIDIQ; or the issuance of a new

MAIDIQ. At that stage, following the issuance of the RFI, may a dissatisfied small

business file suit in the Court of Federal Claims, pursuant to 28 U.S.C. §1491(b)(1),

challenging the agency’s decision not to set-aside the procurement? In the Court’s

view, the answer to that question is a straightforward “yes” based upon a simple

syllogism: (1) the RFI is part of the procurement process; (2) the RFI includes the

agency’s decision not to set-aside the procurement; (3) a small business protestor’s

allegation that the agency’s decision violates the Rule of Two constitutes an alleged

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

procurement”; and, thus, (4) the allegation is unquestionably within this Court’s

jurisdiction. Distributed Sols., Inc., 539 F.3d at 1346 (“The statute explicitly contemplates

the ability to protest these kinds of pre-procurement decisions by vesting jurisdiction in

the Court of Federal Claims over ‘proposed procurements.’ A proposed procurement,

like a procurement, begins with the process for determining a need for property or

services.”).

In the hypothetical case outlined above, the FASA task order protest bar clearly

would not apply because, at a minimum, 47 the agency has not yet selected any contract

vehicle (task order or otherwise). Moreover, if the small business were to file suit in this

Court, the government could not subsequently divest this Court of jurisdiction merely

by selecting an IDIQ vehicle. See GAF Bldg. Material Corp. v. Elk Corp., 90 F.3d 479, 483

(Fed. Cir. 1996) (“[J]urisdiction must be determined on the facts existing at the time the

complaint under consideration was filed.”) Nor, for that matter, should jurisdiction

depend upon whether the small business beats the agency to the punch, and files suit to

challenge the set-aside analysis, or whether the agency quickly makes a decision to

utilize a task order vehicle prior to the filing of a suit. In both cases, the agency’s Rule

of Two decision simply has no necessary connection to the selection of the particular

vehicle. 48 See McAfee, Inc. v. United States, 111 Fed. Cl. 696, 709–10 (2013) (holding that

47Pursuant to the Court’s interpretation of the FASA task order protest bar, supra, an objection

to an agency’s selection of a task order vehicle is not, in any event, a “protest . . . in connection

with the issuance or proposed issuance of a task . . . order[.]” 41 U.S.C. § 4106(f)(1). The Court’s

point here is that, even if our statutory interpretation were rejected, SRA Int’l is consistent with

“the non-application of the FASA bar” in this case. 766 F.3d at 1413.

48Again, this assumes, arguendo, that the challenge to an agency’s selection of a task order

vehicle itself would be within the ambit of the FASA task order protest bar, a proposition with

which the Court disagrees. In any event, the Court’s view of the correct result in the

hypothetical fits well with the Court’s interpretation of the FASA statutory language. In

particular, a challenge to an agency’s failure to comply with the Rule of Two is not a “protest”

as that term is defined in CICA. In this case, for example, it is a challenge neither to a particular

solicitation nor to the merits of an award or to a proposed award of a task order. Similarly, in

the Court’s hypothetical case involving the RFI, the small business would be challenging the

agency’s decision not to set-aside the procurement, but would not be objecting to the agency’s

decision to proceed with any particular procurement strategy because none has been selected.

38

“McAfee’s complaint falls under the [final] prong of Section 1491(b)(1), concerning an

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

proposed procurement’” and that “the protested decision is not directly connected to

the award of any particular delivery order”); BayFirst Sols., LLC v. United States, 104 Fed.

Cl. 493, 499, 507–08 (2012) (holding that the FASA jurisdictional bar did not apply to the

agency’s decision to cancel a solicitation, and that although the cancellation of the

solicitation and issuance of the task order were temporally connected, the cancellation

of the solicitation can be viewed as “a discrete procurement decision and thus could

have been the subject of a separate protest”); cf. MORI Assocs., Inc. v. United States, 113

Fed. Cl. 33, 38 (2013) (citing the Court’s earlier decision in MORI Assocs., Inc. v. United

States, 102 Fed. Cl. 503, 533 (2011), for the proposition that “[d]iscrete, preliminary

matters that may not necessarily lead to the proposed issuance of a task order may still

be protested” such as “a ‘Rule of Two’ determination under 48 C.F.R. § 19.502–2(b)”

which is “required prior to the selection of a particular procurement vehicle, since

whether the work must be set aside for small business must be known before an agency

can select the means of fulfilling its needs”). 49

The actual Plaintiffs in this case are similarly situated to the hypothetical small business; their

complaint may be read as challenging the agency’s solicitation cancellation decision and its

refusal to set aside the work at issue, but not the decision to use a task order contact per se. In

contrast, in SRA Int'l, the protestor had filed a post-award bid protest, challenging the issuance

of a task order on the grounds of a conflict (and an improper waiver) – that clearly is a “protest”

that is “directly and causally connected” to the issuance of a task order in way that a challenge

to a Rule of Two violation is not.

49 But cf. Insap Servs., Inc. v. United States, 145 Fed. Cl. 653, 654 (2019). In that case, Judge

Wheeler rejected plaintiff’s argument “that this Court has jurisdiction to hear its protest because

it is challenging the conditions antecedent to the solicitation, not the solicitation itself” and

because “the decision to bundle [certain] services under a single solicitation is not connected to

the solicitation, as it occurs ‘prior to’ and is not ‘mutually dependent on’ the issuance of the task

order.” Id. Insap is distinguishable insofar as it involved a challenge to a bundling decision

where a “Request for Task Order Proposals” already had been issued at the time of the protest.

Id. In any event, the undersigned admittedly does not share Insap’s capacious view of the

Federal Circuit’s decision in SRA Int’l, particularly to the extent Insap relied upon “[p]olicy

considerations[,]” including the assessment that this Court should not “allow a protest to be

heard at this Court after already being heard by GAO” as that “would burden the Government

and negate Congress's intent to streamline.” Id. at 655. Although Insap concluded that “[i]t

would defeat Congress’s purpose if would-be protestors could make an end run around the

FASA’s plain meaning by claiming that they are challenging the conditions of the solicitation,

but not the task order itself[,]” id., this Court disagrees with such an interpretation of the FASA

task order protest bar for the reasons explained herein. See BayFirst Sols., 104 Fed. Cl. at 507–08

(“The cancellation of the Solicitation may be viewed as a discrete procurement decision and one

which could have been the subject of a separate protest. This approach is not unlike the one

employed by the court in MORI, where a preliminary procurement decision, one which should

have occurred before any contract vehicle was selected, was held to be subject to challenge and

39

Finally, at least one GAO decision supports the Court’s view of the jurisdictional

question and the FASA task order protest bar. In LBM, Inc., the protestor challenged

the Army’s decision to acquire certain services under the Logistical Joint Administrative

Management Support Services (“LOGJAMSS”) contracts, when those services

previously had been provided exclusively by small businesses. B-290682, 2002 CPD

¶ 157, 2002 WL 31086989, *1. After the Army decided to transfer the services at issue to

the LOGJAMSS contracts, the agency solicited proposals from LOGJAMSS contractors,

but “did not coordinate with, or notify, the SBA of its intent to withdraw ... services

from exclusive small business competition and to transfer these services to LOGJAMSS

contracts.” Id. at *3. The GAO sustained the protest. Id. at *8. In so doing, the GAO

rejected the Army’s contention that the FASA task order protest bar divested the GAO

of jurisdiction because the protestor challenged the proposed issuance of a task order

under the LOGJAMSS contract; the GAO explained as follows:

LBM is not challenging the proposed issuance of a task order

for these services, but is raising the question of whether work

that had been previously set aside exclusively for small

businesses could be transferred to LOGJAMSS.... This is a

challenge to the terms of the underlying LOGJAMSS

solicitation and is within our bid protest jurisdiction.

Id. at *3. 50 The GAO further held that the FASA “was not intended to, and does not,

preclude protests that timely challenge the transfer and inclusion of work in ID/IQ

contracts without complying with applicable laws or regulations,” id., and explained

that Small Business Act requirements “were applicable to acquisitions prior to the

enactment of [the] FASA, and nothing in that statute authorizes the transfer of

acquisitions to ID/IQ contracts in violation of those laws and regulations,” id. at *4. The

GAO indicated that the “Rule of Two” applied “to ‘any acquisition over $100,000,’” id.

at *7 (quoting 48 C.F.R. § 19.502–2(b)), and therefore determined that the Army was

required to comply with FAR § 19.502–2(b) and conduct the appropriate “Rule of Two”

analysis. Id. (“Whatever the outcome of the FAR § 19.502–2(b) analysis, ... the agency’s

intent to use a task order under LOGJAMSS as the contract vehicle did not eliminate the

legal requirement that the agency undertake that analysis.”).

not barred by § 4106(f), even though the agency eventually issued a task order to fulfill its

needs. 102 Fed. Cl. at 533–34.”). And, again, in any event, Plaintiffs in this case do not challenge

the conditions of any solicitation.

50To be clear, although this Court agrees with the GAO’s view of the scope of task order bar as

applied (or, more accurately, not applied) in LBM, the Court does not concur with the GAO’s

view that a challenge to the agency’s selection of an IDIQ task order contract vehicle constitutes

a solicitation protest.

40

Accordingly, in LBM, Inc., the GAO declined to apply the FASA task order

protest bar even where the protestor directly challenged the agency’s selection of a task

order vehicle and after the agency had issued a task order solicitation under that vehicle

– the latter which, the Court again notes, had not occurred in this case at the time

Plaintiffs filed their respective complaints. Apparently, then, the GAO’s view of the

FASA task order protest bar is consistent with this Court’s reasoning, supra, that even

an objection to a solicitation – a “protest” within the GAO’s jurisdiction – does not

equate to a protest “in connection with” the proposed issuance of a task order. See Glob.

Computer Enter., Inc., 88 Fed. Cl. at 448 (“Although the protest in LBM, Inc. concerned

the underlying contracts . . ., the court nevertheless finds it instructive” because the

protestor “did not challenge the issuance or proposed issuance of a task order under the

existing contract.”).

****

In sum, this Court holds that the FASA task order protest bar is not an obstacle to

considering Plaintiffs’ challenge to the cancellation of a solicitation, even where this

Court will have to reach the merits of their Rule of Two claims – whether because the

rationality of the agency’s cancellation depends upon the availability of the preferred

MAIDIQ vehicle, or because the alleged failure to conduct a Rule of Two analysis

constitutes an independent basis for our jurisdiction pursuant to the last prong of

§ 1491(b)(1).

III. Standards of Review

A. Motion For Judgment On The Administrative Record

Judgment on the Administrative Record, pursuant to RCFC 52.1, “is properly

understood as intending to provide for an expedited trial on the record.” Bannum, Inc.

v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The rule requires the Court “to

make factual findings from the record evidence as if it were conducting a trial on the

record.” Id. at 1354. The Court asks whether, given all the disputed and undisputed

facts, a party has met its burden of proof based on the evidence in the record. See id.

at 1356–57.

B. Challenge To Cancellation Decision

Generally, in an action brought pursuant to § 1491(b) of the Tucker Act, the

Court reviews “the agency’s actions according to the standards set forth in the

Administrative Procedure Act, 5 U.S.C. § 706.” See Nat’l Gov't Servs., Inc. v. United

States, 923 F.3d 977, 981 (Fed. Cir. 2019) (citing 28 U.S.C. § 1491(b)(4)). “In applying this

standard of review, we determine whether ‘(1) the procurement official’s decision

lacked a rational basis; or (2) the procurement procedure involved a violation of

41

regulation or procedure.’” Id. (quoting Weeks Marine, Inc. v. United States, 575 F.3d 1352,

1358 (Fed. Cir. 2009)). “When a challenge is brought on the first ground, the test is

‘whether the contracting agency provided a coherent and reasonable explanation of its

exercise of discretion, and the disappointed bidder bears a heavy burden of showing

that the award decision had no rational basis.’” Banknote Corp. of Am. v. United States,

365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi

v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001)). “When a challenge is brought

on the second ground, the disappointed bidder must show a clear and prejudicial

violation of applicable statutes or regulations.” Impresa Construzioni, 238 F.3d at 1333.

To establish prejudice, a protestor must further demonstrate “that there was a

‘substantial chance’ it would have received the contract award but for the . . . errors in

the bid process.” Bannum, Inc., 404 F.3d at 1357 (quoting Infro. Tech. & Applications Corp.

v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)); see Kiewit Infrastructure West Co. v.

United States, 147 Fed. Cl. 700, 707 (2020) (requiring a showing of prejudice in challenge

to cancellation decision).

In some cases, a statute or regulation may provide a substantive yardstick

against which an agency’s exercise of discretion may be measured or impose a related

procedural requirement. For example, as noted above, in the context of a sealed bid

procurement, FAR 14.404-1 (“Cancellation of invitations after opening”) provides that

“after bids have been opened, award must be made to that responsible bidder who

submitted the lowest responsive bid, unless there is a compelling reason to reject all bids

and cancel the invitation.” FAR 14.404-1(a)(1) (emphasis added). The FAR further

defines what constitutes a “compelling reason” in FAR 14.404-1(c) and imposes a

procedural requirement that “the agency head determine[] in writing” that such a

reason exists. See, e.g., Veterans Contracting Grp., 920 F.3d at 806–07 (framing the issue as

“whether the contracting officer’s decision to cancel the . . . solicitation lacked any

rational basis,” citing Parcel 49C Ltd. P’ship, 31 F.3d 1153–54, for the proposition that

“the government cannot cancel a solicitation solely to satisfy an agency’s whim, we held

that the cancellation was arbitrary and capricious[,]” and holding that the contracting

officer “had a compelling reason to request cancellation”); Nat'l Forge Co. v. United

States, 779 F.2d 665, 668 (Fed. Cir. 1985) (explaining, in a pre-ADRA case, that “[t]he

Claims Court correctly restricted its legal review to whether the contracting officer’s

interpretation of, and later decision to cancel, the solicitation was unreasonable or an

abuse of discretion under the requirements for cancellation set forth in 48 C.F.R. §

14.404–1(c)”).

Here, the 13F and JFOC Solicitations were issued as FAR Part 8, FSS

procurements, which, as the government correctly notes, Def. Supp. Br. at 1–5, do not

contain any provisions providing substantive considerations for, or constraints on,

42

cancellation decisions, similar to those contained in FAR 14.404-1 regarding sealed

bidding.

While the government in its initial briefs conceded that the agency’s cancellation

decision nevertheless should be reviewed pursuant to the standard APA rational basis

test, Def. MJAR at 15–17, 25; Def. Resp. at 1, 5, the government takes the position in its

supplemental brief that the agency action should only be reviewed for “bad faith”

because the procurements were solicited pursuant to FAR Part 8, which does not

contain any substantive yardstick for limiting an agency decision to cancel a

procurement. Def. Supp. Br. at 9-10. While a finding of bad faith may be sufficient, it is

not necessary for the Court to determine that an agency decision is arbitrary and

capricious. Croman Corp. v. United States, 724 F.3d 1357, 1365 (Fed. Cir. 2013) (holding

that “Croman has failed to show that the partial cancellation of the 2011 Solicitation was

in bad faith or lacking in rational basis” (emphasis added)); see also Prineville Sawmill Co., ,

859 F.2d at 911. In this case, even though FAR Part 8 does not specify substantive

cancellation considerations, the Tucker Act, as amended by ADRA, “explicitly imports

the APA standard of review into the Court of Federal Claims’ review of agency

[procurement-related] decisions.” RAMCOR, 185 F.3d at 1290; cf. Strategic Tech. Inst.,

Inc., B-408005.2, 2013 CPD ¶ 229, 2013 WL 5754966, *3 (Oct. 21, 2013) (“Under FAR

subpart 8.4 procedures, an agency need only advance a reasonable basis to cancel a

solicitation.”). 51 Moreover, as explained above, see supra Section II, FAR 1.602–2(b)

permits this Court to conduct an APA review, while 10 U.S.C. § 2305(b)(2) supplies a

procedural requirement and a substantive yardstick, against which we may evaluate

the agency’s decisions here.

IV. The Court Grants Plaintiffs’ Motion For Judgment On The Administrative

Record And Denies The Government’s Cross-Motion For Judgment On The

Administrative Record

Plaintiffs’ motions for judgment on the Administrative Record present two

primary arguments: (1) the agency acted in an irrational and unreasonable manner

when it cancelled the 13F and JFOC Solicitations due, in part, to the agency’s plan to

resolicit the requirements under the TMS MAIDIQ; and (2) the agency violated the

“Rule of Two” (see FAR 19.502-2(b)) and FAR 19.502-9 when cancelling the solicitations

for the purpose of recompeting the requirements under the TMS MAIDIQ. See TTGI

MJAR at 13–22; PTP MJAR at 21–24. The government, in its cross-motion for judgment

on the Administrative Record, contends that (1) the agency decision to cancel the 13F

51TTGI counters that because the cancellation decision arose in the context of a corrective

action, the Court should apply a more demanding review to determine whether the corrective

action was “’rationally related’ to an alleged procurement defect.” TTGI MJAR at 13–14 (emphasis

added) (citing Dell Fed Sys., L.P. v. United States, 906 F.3d 982, 955 (Fed. Cir. 2018)). In either

event, whether the cancellation decision is reviewed on its own merits or as part of corrective

action, this Court ultimately reviews the agency’s decision for “reasonableness.”

43

and JFOC Solicitations for the purpose of transferring the procurements to the TMS

MAIDIQ was rational, and (2) the “Rule of Two” does not apply to the facts of this case.

ECF No. 30 at 17.

For the reasons explained below, the Court agrees with Plaintiffs.

A. The Agency Failed To Provide A Sufficiently Reasonable Explanation

For The Cancellation Of The Solicitations

In determining whether the agency adequately explained the reasoning behind

its decision to cancel the 13F and JFOC Solicitations, we turn to the explanation

provided by the agency at the time of its decision-making. See WHR Group, Inc. v. United

States, 115 Fed. Cl. 386, 399 (2014) (noting that the agency decision must be supported

by the reasoned basis the agency actually provided). The Court notes that in this case

there is no formal cancellation decision or memorandum regarding the 13F and JFOC

Solicitations; rather, the only document that proports to show the agency’s rationale

behind its decision to cancel those solicitations is CO Abraham’s August 10 MFR. ECF

No. 25 at 617–20 (AR 613–16). In that four-page memorandum, CO Abraham describes

the GSA MAS solicitation’s requirements and history at length, and outlined the

features of the TMS MAIDIQ that the agency could use as a replacement. Id. In

discussing the previous solicitations, the memo explained:

After extensive use of the GSA OASIS MAIDIQ and GSA

Multiple Award Schedule, it was determined the contract

vehicles did not meet FCoE mission needs as world events unfolded.

Events included emerging worldwide requirements due to

short notice missions, [Training Resource Arbitration Panels]

requirements, and lack of capability to provide the subject

matter expertise. . . . As conveyed above, GSA OASIS

MAIDIQs and Multiple Award Schedules did not provide the

support required by FCoE to support emerging and known

requirements.”

Id. at 617–18 (AR 613–14) (emphasis added). But, concluding that the prior MAIDIQ

and GSA MAS vehicles were not sufficient for the entire breadth of work contemplated

by the new TMS MAIDIQ is not the same thing as concluding that the latter vehicle is

somehow superior to the GSA MAS vehicles for the purposes of the statements of work at

issue. In that regard, following additional historical details about the awarding of the

GSA MAS, the August 10 MFR concluded with what is the only excerpt of any agency

memoranda in the Administrative Record that reasonably might be characterized as

representing the agency’s rationale for planning to cancel the 13F and JFOC

Solicitations:

44

Based on the above information, I believe the Government’s

best interest can be met by competing the JFO, 13F and KMS

requirements under the MICC-Fort Eustis recently awarded

TMS MAIDIQ. Both time and money can be saved by the

Government in pursuit of this avenue. Time and money are

expended on soliciting and awarding interim short term

contract actions to support on-going requirements. Contract

periods can be adjusted to support a Base and Four Option

periods on most requirements thus saving manpower and

costs tied to phase-in and certification of new contractor

employees. Longer periods of performance also support the

Government’s ability to successfully recruit and retain

qualified personnel on existing requirements, thereby

ensuring continuity of the training mission.

Id. at 620 (AR 616) (emphasis added).

In sum, the agency justified the cancellation on the basis of the assertion that by

transitioning the procurements at issue to the TMS MAIDIQ, the agency would get a

more flexible and longer term of performance while saving time and money. This

explanation, however, without more information – and in the absence of any

supporting citations in the underlying record – does not satisfy the agency’s burden.

Although the Court is mindful that the APA rational basis standard of review is “highly

deferential” and “the court should not substitute its judgment for that of the agency,”

CW Government Travel, Inc. v. United States, 110 Fed. Cl. 462, 479 (2013), that “does not

mean that this [Court’s] review is ‘toothless.’” Orchard Hill Bldg. Co. v. United States

Army Corps of Engineers, 893 F.3d 1017, 1024 (7th Cir. 2018) (quoting Pioneer Trail Wind

Farm, LLC v. FERC, 798 F.3d 603, 608 (7th Cir. 2015)). More specifically, courts are

authorized to set aside agency action where the record fails to articulate a “rational

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see Starry Assoc., Inc. v. United

States, 127 Fed. Cl. 539, 548–49 (2016) (“Where the agency fails to undertake a review or

fails to document such review, we must conclude that it acted irrationally.”).

Here, the August 10 MFR is bereft of any specific context or factual details that

would support its generalized assertions and naked conclusions about the GSA MAS

solicitations not meeting agency needs or how the agency would be better served by

transferring the solicitations from the GSA MAS to the TMS MAIDIQ. See, e.g., Patterson

v. Comm’r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017) (“[T]he dispute here arises

from a problem that has become all too common among administrative decisions

challenged in court – a problem decision makers could avoid by following the

admonition they have no doubt heard since their grade-school math class: Show your

work.”); Highway J Citizens Grp., U.A. v. Dep’t of Trans., 2010 WL 1170572, at *2 (E.D.

Wis. Mar. 23, 2010) (“Defendants cannot simply list cursory comments or other

45

information and then assert a conclusion; rather, they must demonstrate the path of

their reasoning from whatever data they rely on to their conclusion . . . .”).

Take, for example, the August 10 MFR’s first assertion as to the inefficiency of

the GSA MAS to meet the agency’s needs “as world events unfolded.” ECF No. 25 at

617 (AR 613). While this conceivably could be a legitimate concern with the GSA MAS

solicitations justifying cancellation, 52 without factual support for this contention, this

Court cannot evaluate whether there is a rational basis for the assertion. See Kirwa v.

Dep’t of Defense, 285 F. Supp. 3d 257, 270 (D.D.C. 2018) (“APA review may be limited,

but it involves more than a court rubberstamping action based on bare declarations

from the agency amounting to “trust us, we had good . . . reasons for what we did.”).

Again, even if the GSA MAS generally is insufficient to meet the agency’s needs in some

long-term, strategic sense – as compared to the breadth of the new TMS MAIDIQ – that

says nothing about the suitability of the GSA MAS to meet the agency’s current needs

with respect to the 13F and JFOC procurements at issue.

Moreover, consider the August 10 MFR’s naked assertion that “time and money

can be saved by the Government in pursuit of this avenue.” ECF No. 25 at 620 (AR

616). If the Court were to accept this rationale at face value without asking for

supporting details, the government could always include this attractive catch-all at the

end of its decision document to justify almost any solicitation cancellation. Meaningful

judicial review requires more than just accepting such a bald assertion. See Bagdonas v.

Dep’t of Treasury, 93 F.3d 422, 426 (7th Cir. 1996) (“The statement of reason need not

include detailed findings of fact but must inform the court and the petitioner of the

grounds of decision and the essential facts upon which the administrative decision was

based.” (emphasis added)). In this case, the agency does not explain how the TMS

MAIDIQ will save the agency “time and money” in comparison with finalizing

procurements that were all but completed, nor is there any support in the record for

that conclusion beyond the statement itself.

The government, in its cross-motion for judgment on the Administrative Record,

argues that the “supporting materials to the August 10 memorandum documented

multiple benefits that the TMS MAIDIQ was designed to provide” and “the fact that the

current acquisition strategy did not provide those benefits.” Def. MJAR at 12, 22. But

those putative “benefits” reflect the long-term strategic advantages of the TMS MAIDIQ

overall; the government cannot simply point to its general justification for that

MAIDIQ, without more, to support the proposition that it will better meet the agency’s

needs with respect to the precise statements of work at issue. Moreover, although the

agency asserts that the TMS MAIDIQ will provide a longer period of performance than

52See, e.g., Tien Walker, B-414623.2, 2017 CPD ¶ 218, 2017 WL 2954445, *2 (July 10, 2017) (“A

reasonable basis to cancel exists when, for example, an agency concludes that a solicitation does

not accurately reflect its needs.”)

46

the present “short term contract actions,” ECF No. 25 at 620 (AR 616), nowhere does the

agency address the possibility of extending the duration of those contracts beyond the

originally planned 12-month period of performance or why that would be more

difficult than utilizing the TMS MAIDIQ.

The government also points the Court to the following examples of the agency’s

“key finding[s]”:

• The agency “necessitates the use of an IDIQ to meet

contract execution in a timely manner due to MICC

staffing shortfalls.”

• “Using other contract mechanism as opposed to a FCoE

IDIQ will add a minimum of 120 days to the procurement

timeline, potentially eliminate the ability for an expedited

contract action for unforecasted organizational needs, and

put existing requirements at increased risk for gaps on

contracted services.”

• “Costs for the use of non-IDIQ contract mechanism will

increase significantly.”

• “FCoE’s ability to support short term, emerging training

requirements to meet Army demands will be greatly

reduced.”

• “FCoE’s ability to rapidly provide training,

experimentation, analytic, and simulation support will be

reduced. Fires-led experiments and the TRADOC

Campaign of Learning will be interrupted and/or

degraded.”

Id. at 12–13, 22–23 (quoting ECF No. 25 at 675 (AR 671)).

These generalized conclusions, however, do little to provide actual factual

support for the agency’s cancellation decisions at issue here. Rather than engaging in a

factual contrast between the cancelled procurements at issue and the TMS MAIDIQ, the

supporting material’s conclusory assertions fail to provide a meaningful factual

roadmap for the agency’s decision. 53 For example, although the Court has no basis to

53The government also asserts that “[a]n additional benefit of the TMS MAIDIQ is that the

issues that continued to snag the GSA MAS solicitations and send them into bid protests are

eliminated as an issue. . . . This ensured that the TMS MAIDIQ was not subject to a protest and

automatic stay at GAO . . . and it would also provide some comfort that a protest direct to this Court

was not likely . . . .” Def. MJAR at 24 (emphasis added, internal citations omitted). Rather than

47

question the agency’s conclusion that it generally requires a MAIDIQ due to staffing

shortfalls, there is zero record evidence indicating that any such shortfall would impact

the agency’s proceeding with the 13F and JFOC procurements or that moving such

work to the TMS MAIDIQ would improve any putative staffing difficulties for the work

at issue. The timeline comparison also is not specific to the already-completed (albeit

protested) 13F and JFOC procurements; nowhere in the Administrative Record does it

appear that the agency compared the timeline of continuing with those procurements as

opposed to starting from scratch under the MAIDIQ. The agency’s concern about

increased costs for a non-MAIDIQ procurement seems plausible, in general, but CO

Abraham never compares the cost of proceeding with the cancelled procurements, as

opposed to starting a new task order procurement under the preferred TMS MAIDIQ.

And the final two conclusions above regarding the ability of the FCoE to support Army

needs has nothing whatsoever to do with the 13F and JFOC procurements. To be clear,

CO Abraham does not conclude in any way that the proceeding with those

procurements would jeopardize the FCoE’s mission or abilities. Rather, the point is that

the materials upon which she relies merely demonstrates the agency’s general interest

in utilizing the TMS MAIDIQ.

Although there is no universal test for what constitutes an agency’s failure to

provide a sufficient justification for its actions and no one factor is dispositive, see Sierra

Nevada v. United States, 107 Fed Cl. 735, 751 (2012), a cursory review of relevant caselaw

from this Court is illustrative. Compare FMS Investment Corp. v. United States, 139 Fed.

Cl. 221, 223–25 (2018) (finding that the Department of Education acted unreasonably

when it cancelled solicitation for student loan debt collection services because, in part,

the cancellation notice relied on a brief Administrative Record and failed to contain

detailed information to support important assertions made in that notice), and Applied

Business Mgmt. Solutions v. United States, 117 Fed Cl. 589, 605–06 (2014) (holding, in part,

that GSA’s conclusory assertions about “budgetary concerns” and “need to reduce

personnel” failed to provide a rational basis for cancellation decision), with Inverness

Technologies, Inc. v. United States, 141 Fed. Cl. 243, 248, 251–53 (2019) (emphasizing that

Department of Labor’s cancellation of solicitation for veterans job transition program

“provid[ing] some comfort,” this Court is quite troubled by the government’s assertion that the

agency’s decision-making was influenced by a desire to avoid bid protest litigation. See ECF

No. 37 at 22-24 (“Hearing Transcript”) (raising this concern with the government); see also

California Indus. Facilities Resources, Inc. v. United States, 100 Fed. Cl. 404, 412 (2011) (holding that

government conduct taken to “avoid possible bid protests was arbitrary and capricious”).

Notwithstanding the government’s troubling assertion, it is a “foundational principle of

administrative law” that this Court’s role in this context is limited to reviewing “the grounds

that the agency invoked when it took the action.” Oracle America, Inc. v. United States, 975 F.3d

1279, 1290 (Fed. Cir. 2020) (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)). Here, the agency

in its August 10 MFR does not mention this rationale. Rather, the first mention of this rationale

is in the government’s brief in this case. Def. MJAR at 24. Accordingly, this rationale does not

play a role in this Court’s determination that the Army acted unreasonably.

48

services was reasonable because the agency’s memorandum was “comprehensive, well-

considered and logical” and “outlined, in chart form, key differences between the

solicitation and the new requirements”). Some decisions from the GAO also have

found that an agency acts unreasonably when it fails to provide sufficient

documentation of its decision-making. See, e.g., Walker Development & Trading Grp., Inc.,

B-413924, 2017 CPD ¶ 21, 2017 WL 134346, *4–*5 (Jan. 12, 2017) (“We find that the

agency failed to produce agency report that coherently addressed the agency’s rationale

for the cancellation of the solicitation.”); Pro-Fab, Inc., B-243607, 91-2 CPD ¶ 128, 1991

WL 162538, *3 (Aug. 5, 1991) (“The agency’s speculation that increased competition or

cost savings will result from [the cancellation and] solicitation of the identical

requirements is not supported by the record[.]”).

In sum, this Court concludes that although it is not irrational per se for an agency

to prefer one contractual vehicle over another or even for the TMS MAIDIQ to be more

suitable for the Army’s needs in this case, the government here did not provide a

sufficiently documented rationale or meaningful analysis for cancelling the original 13F

and JFOC Solicitations for the purpose of transitioning the work to the TMS MAIDIQ.

B. The Agency’s Cancellation Decision Violates The Law

Plaintiffs argue that the TMS MAIDIQ cannot be leveraged for the work at issue

because doing so would violate the Rule of Two. As explained supra, see Section II.B.,

whether we view Plaintiffs’ argument as merely addressing the rationality of the

cancellation decision or whether we view the agency’s cancellation as representing an

independent decision with respect to its putative set-aside obligations (as the

government appears to do), the result is the same: the central rationale fo

This text is long and has been trimmed here. Open the source document for the complete record.