Microgenics Corporation v. United States

In the United States Court of Federal Claims

No. 21-896C

(Filed: March 30, 2021)

)

MICROGENICS CORPORATION, ) Post-award protest of a contract issued by

) the Administrative Office of the United

Plaintiff, ) States Courts; jurisdiction; 28 U.S.C. §

) 1491(b)(1); 28 U.S.C. § 451

v. )

)

UNITED STATES, )

)

Defendant, )

)

and )

)

)

SIEMENS HEALTHCARE )

DIAGNOSTICS, INC., )

)

Defendant-Intervenor. )

)

Richard J. Webber, Arent Fox LLP, Washington, D.C., for plaintiff Microgenics

Corporation. With him on the brief were Kevin Pinkney and Travis L. Mullaney, Arent Fox

LLP, Washington, D.C.

Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for the United States. With her on the briefs

were Brian M. Boynton, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director,

Douglas K. Mickle, Assistant Director, United States Department of Justice, Washington, D.C.,

and Michael K. Greene, Assistant General Counsel, Office of the General Counsel,

Administrative Office of the United States Courts, Washington, D.C.

Jeffery M. Chiow, Rogers Joseph O’Donnell, PC, Washington, D.C., for defendant-

intervenor Siemens Healthcare Diagnostics, Inc. With him on the briefs were Robert S. Metzger,

Stephen L. Bacon, and Eleanor M. Ross, Rogers Joseph O’Donnell, PC, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiff Microgenics Corporation (“Microgenics”) protests an award by the

Administrative Office of the United States Courts (“AOUSC” or “Administrative Office”) of a

contract for equipment, supplies, and consumables used to operate on-site drug testing

laboratories. Pending before the court in this post-award bid protest are defendant’s and

defendant-intervenor’s motions to dismiss plaintiff’s complaint pursuant to Rule 12(b)(1) of the

Rules of the United States Court of Federal Claims (“RCFC”). See Def.’s Mot. to Dismiss

(“Def.’s Mot.”), ECF No. 28; Def.-Intervenor’s Mot. to Dismiss (“Def.-Intervenor’s Mot.”), ECF

No. 27. After briefing, see Pl.’s Resp., ECF No. 32; Def.’s Reply, ECF No. 34; Def.-

Intervenor’s Reply, ECF No. 33, the court held a hearing on March 17, 2021.

For purposes of the court’s jurisdiction over bid protests pursuant to 28 U.S.C. §

1491(b)(1), the court concludes that the AOUSC is not an “agency” as defined by 28 U.S.C. §

451. Therefore, the court lacks jurisdiction over Microgenics’ protest. Defendant’s and

defendant-intervenor’s motions to dismiss are GRANTED.

BACKGROUND 1

The AOUSC, an entity within the judicial branch, is a product of legislative creation. See

28 U.S.C. § 601. The Administrative Office “provides a broad range of legislative, legal,

financial, technology, management, administrative, and program support services to federal

courts.” Judicial Administration, UNITED STATES COURTS, https://www.uscourts.gov/about-

federal-courts/judicial-administration (last visited March 29, 2021). As “the administrative

officer of the courts,” the Director of the AOUSC is responsible for “enter[ing] into and

perform[ing] contracts and other transactions upon such terms as the Director may deem

appropriate.” 28 U.S.C. § 604(a)(10)(C).

On September 4, 2020, the AOUSC issued Solicitation No. USCA20R0151 for the

provision of “equipment, supplies, and consumables necessary to successfully operate and

maintain on-site district [drug testing] laboratories.” Compl. Ex. A at 2, 6, ECF No. 1-1.

Specifically, the solicitation required the successful bidder to provide “automated analyzers,

forensic use immunoassay reagents, controls, calibrators, all supplies and consumables necessary

to operate the analyzers; maintenance of the analyzers; training; water systems; quality control,

and a data management system with the capability to export results to” laboratories of the United

States Probation and Pretrial Services Offices. Id. at 6. The solicitation also stated that the

award would be made to “the lowest priced technically acceptable offer.” Id. at 31. After

receiving initial proposals from Microgenics and Siemens, the AOUSC conducted two rounds of

discussion with the offerors. Compl. ¶ 70; Def.-Intervenor’s Mot. at 2. The Administrative

Office amended the solicitation four times, eventually setting November 30, 2020, as the

submission deadline for revised proposals. See Compl. Exs. B-E, ECF Nos. 1-2 to 1-5.

Microgenics and Siemens submitted their final proposals on November 24, 2020. See Compl. ¶¶

78-81; Def.-Intervenor’s Mot. at 2.

1

The recitations that follow do not constitute findings of fact, but rather are recitals

attendant to the pending motions and reflect matters drawn from the complaint, the parties’

briefs, and records and documents appended to the complaint and briefs.

2

On December 1, 2020, the AOUSC awarded the contract to Siemens and provided notice

to Microgenics of the award. See Compl. Ex. H, ECF No. 1-8; Compl. ¶ 82. Pursuant to the

Guide to Judiciary Policy, Microgenics timely requested an award debriefing. See Compl. ¶ 84;

see also UNITED STATES COURTS, GUIDE TO JUDICIARY POLICY, Vol. 14, § 330.73 (2020). The

Administrative Office debriefed Microgenics on December 9, 2020. Compl. ¶ 85. Five days

later, Microgenics filed a bid protest at the Government Accountability Office (“GAO”). Compl.

¶ 86; Microgenics Corp., B-419470, 2021 WL 494646, at *2 (Comp. Gen. Feb. 2, 2021). After

acknowledging its jurisdiction “to resolve bid protests concerning solicitations and contract

awards that are issued ‘by a Federal agency,’” Microgenics, 2021 WL 494646, at *2 n.4, GAO

dismissed the protest as untimely, id. at *7. GAO explained that the debriefing provided by the

AOUSC to Microgenics was not “required” under GAO’s regulations. Id. Therefore,

Microgenics could not rely on the “debriefing exception” in filing more than ten days after it

“knew or should have known of [its] basis of protest.” Id.

On February 8, 2021, Microgenics filed suit in this court, see Compl., and Siemens

subsequently moved to intervene, see Mot. to Intervene, ECF No. 14, which motion the court

granted, Order of Feb. 9, 2021, ECF No. 15. Microgenics moved for a preliminary injunction,

see Pl.’s Mot. for a Prelim. Inj., ECF No. 4, but the court deferred ruling on the motion to

consideration of the merits, see Order of Feb. 11, 2021, ECF No. 18. The government and

Siemens moved to dismiss the complaint on February 22, 2021. See Def.’s Mot.; Def.-

Intervenor’s Mot.

STANDARDS FOR DECISION

The Tucker Act vests this court with jurisdiction to “render judgment on an action by an

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

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

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

1491(b)(1). Accordingly, this court’s jurisdiction over bid protests is limited to those involving

contract awards made “by a Federal agency.” Id.

Microgenics, as plaintiff, must establish jurisdiction by a preponderance of the evidence.

See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When ruling on

the government’s motion to dismiss for lack of jurisdiction, the court must “accept as true all

undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor

of the plaintiff.” Id. (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “If a

court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of law.”

Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.)

506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC

12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.”).

3

ANALYSIS

In their respective motions to dismiss, the government and Siemens assert that this court

lacks jurisdiction over Microgenics’ protest because the AOUSC is not a “Federal agency” under

28 U.S.C. § 1491(b)(1). See Def.’s Mot. at 5-12; Def.-Intervenor’s Mot. at 5-9. Microgenics,

the government and Siemens claim, has failed to establish that the AOUSC falls under the

definition of “agency” provided in 28 U.S.C. § 451. See Def.’s Mot. at 5-6; Def.-Intervenor’s

Mot. at 4-5. Microgenics, in turn, counters that the AOUSC is a “Federal agency” under 28

U.S.C. § 1491(b)(1) because it qualifies as one of the entities listed in 28 U.S.C. § 451. Compl.

¶¶ 11-12; Pl.’s Resp. at 6-9.

I. The Statutory Basis for Jurisdiction Over Bid Protests

“While Title 28 of the United States Code does not define ‘[F]ederal agency,’ it does

define ‘agency.’” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1080 (Fed.

Cir. 2001). Under 28 U.S.C. § 451, “[t]he term ‘agency’ includes any department, independent

establishment, commission, administration, authority, board or bureau of the United States or any

corporation in which the United States has a proprietary interest, unless the context shows that

such term was intended to be used in a more limited sense.” 28 U.S.C. § 451. Therefore, if

Microgenics’ bid protest is to be considered “an action by an interested party objecting to . . . the

award of a contract” by “a Federal agency,” id. § 1491(b)(1), the AOUSC must qualify as one of

the entities listed in Section 451, see Emery, 264 F.3d at 1080 (concluding that “‘federal agency’

as used in 28 U.S.C. § 1491(b)(1) falls within the ambit of ‘agency’ as used in 28 U.S.C. § 451”).

While Microgenics asserts that the AOUSC qualifies as an “agency” under Title 5, Pl.’s Resp. at

9, and that the AOUSC “holds itself out to the public as an ‘agency,’” id. at 9 n.2, the relevant

definition of “agency” is found in 28 U.S.C. § 451, see Emery, 264 F.3d at 1080. 2

The court concludes that traditional methods of statutory interpretation guide its decision.

On that basis, the court ultimately finds that the AOUSC cannot be characterized as any of the

entities listed in Section 451. The court therefore lacks jurisdiction over Microgenics’ claims, as

the AOUSC is not a “Federal agency” as the term is used in Paragraph 1491(b)(1) of the Tucker

Act.

2

Microgenics advances the argument that the government’s representation of the AOUSC

operates as a concession “that the AOUSC constitutes an ‘agency’ under 28 U.S.C. § 451.” Pl.’s

Resp. at 11-12. Given that the authority of the Department of Justice extends to “litigation in

which the United States, an agency, or officer thereof is a party, or is interested,” 28 U.S.C. §

516, Microgenics contends that defendant’s appearance in this case indicates that the AOUSC is

an agency for jurisdictional purposes. Id. at 12 (citing 28 U.S.C. § 516). This argument ignores

the full scope of the Department of Justice’s authority. “[T]he Department of Justice has a duty

of representation in suits filed in the Court of Federal Claims in which the United States is

interested.” Def.’s Reply at 11 (citing 28 U.S.C. § 518). The United States certainly has an

interest in litigation over bid protests involving the AOUSC. The government’s appearance in a

case “in which the United States . . . is interested” thus does not operate as a concession that the

AOUSC is an “agency” under Section 451. 28 U.S.C. § 516.

4

A. Whether the AOUSC Is an “Independent Establishment” Under 28 U.S.C. § 451

Microgenics first argues that this court has jurisdiction over its claims because the

AOUSC qualifies as an “establishment” under 28 U.S.C. § 451. Compl. ¶ 11; Pl.’s Resp. at 7-8.

The government emphasizes that an establishment must be an “independent establishment” to be

considered an agency under Title 28. Def.’s Mot. at 8-12 (quoting 28 U.S.C. § 451) (emphasis

added). Siemens further adds that “‘independent establishment’ is a legislative term of art that

has been used by Congress on various occasions to describe executive branch entities.” Def.-

Intervenor’s Mot. at 7 (emphasis in original).

“It is . . . ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the

whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be

superfluous, void, or insignificant.’” Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461,

489 n.13 (2004) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)) (in turn quoting Duncan

v. Walker, 533 U.S. 167, 174 (2001)). In arguing that the AOUSC is an “establishment,”

therefore, Microgenics must prove that the entity is an “independent establishment” as specified

by the plain text of Section 451. 28 U.S.C. § 451 (emphasis added); see also Emery, 264 F.3d at

1080 (concluding that the United States Postal Service, “statutorily defined as an ‘independent

establishment of the executive branch of the United States[,]’ . . . is an ‘agency’ for purposes of

28 U.S.C. § 451”) (quoting 39 U.S.C. § 201) (emphasis added).

In contrast to entities such as the United States Postal Service and the Office of Personnel

Management, the AOUSC is not statutorily defined as an “independent establishment.”

Compare 39 U.S.C. § 201 (“There is established, as an independent establishment of the

executive branch of the Government of the United States, the United States Postal Service.”),

and 5 U.S.C. § 1101 (“The Office of Personnel Management is an independent establishment in

the executive branch.”), with 53 Stat. 1223 (“There shall be at the seat of government an

establishment to be known as the Administrative Office of the United States Courts.”).

Microgenics proposes looking beyond Section 451 “to procurement statutes for relevant

‘context’ to inform the meaning of 28 U.S.C. § 451,” namely 40 U.S.C. § 102(5). Pl.’s Resp. at

7-8. However, “this court, unlike . . . GAO and [the General Services Board of Contract

Appeals], does not derive its bid-protest jurisdiction from a federal procurement law.” Hewlett-

Packard Co. v. United States, 41 Fed. Cl. 99, 104 (1998). Furthermore, 40 U.S.C. § 102(5)

cannot be reconciled with the plain language of 28 U.S.C. § 451. Section 102(5) defines

“Federal agency” as “an executive agency or an establishment in the legislative or judicial

branch of the Government.” 40 U.S.C. § 102(5). While the AOUSC would appear to qualify as

a “Federal agency” under this definition, the lack of the term “independent establishment” is

conspicuous. To resort to this broader definition of “Federal agency” in Subsection 102(5)

would render the word “independent” in Section 451 “superfluous, void, or insignificant.”

Alaska Dep’t of Env’t Conservation, 540 U.S. at 489 n.13 (citations omitted).

Microgenics points to cases in which the Smithsonian Institute was deemed an

“independent establishment” despite “the lack of the word ‘independent’ in its creation statute.”

Pl.’s Resp. at 8 (citing O’Rourke v. Smithsonian Inst. Press, 399 F.3d 113, 116 (2d Cir. 2005);

Dolmatch Grp., Ltd. v. United States, 40 Fed. Cl. 431 (1998)). This argument, however,

5

overlooks the fact that these cases were not bid protests under Paragraph 1491(b)(1). O’Rourke

addressed subject-matter jurisdiction over copyright infringement claims brought against the

United States. O’Rourke, 399 F.3d at 122-23. Dolmatch, in turn, involved “a dispute arising

from an alleged contract between plaintiff and the Smithsonian Institution to distribute

videotaped Smithsonian programs.” Dolmatch, 40 Fed. Cl. at 432. The lack of the phrase

“independent establishment” in the AOUSC’s foundational statute, when compared to other

statutes expressly establishing such entities in the federal government, leads the court to

conclude that Microgenics has failed to show by a preponderance of evidence that the AOUSC is

an “independent establishment” under Section 451.

B. Whether the AOUSC Is an “Administration” Under 28 U.S.C. § 451

Microgenics contends that the AOUSC is an “administration” under 28 U.S.C. § 451

because Congress used the term “administration” when it created the entity. See Compl. ¶ 12;

Pl.’s Resp. at 6-7. The government avers that Congress nevertheless failed to designate the

AOUSC as an administration because the word is not used in its title. See Def.’s Mot. at 6-8.

Siemens argues that the AOUSC cannot be an administration because “an ‘administration’ is

overseen by the executive branch.” Def.-Intervenor’s Mot. at 9 (footnote omitted).

One prominent difference between the AOUSC and administrations such as the Federal

Aviation Administration and the Transportation Security Administration is evident in the

founding statutes for these entities. While Congress expressly provided that “[t]he Federal

Aviation Administration is an administration in the Department of Transportation,” 49 U.S.C. §

106(a) (emphasis added), and that “the Transportation Security Administration shall be an

administration of the Department of Homeland Security,” id. § 114(a) (emphasis added),

Congress described the AOUSC as an “establishment,” 53 Stat. 1223. Of note, the chapter in

which Congress created the AOUSC is titled, “The Administration of the United States Courts.”

Id. However, Congress appears to have used the word “administration” in this context to refer to

“the act or process of administering something,” not “a body of persons who administer.”

Administration, MERRIAM-WEBSTER, https://www.merriam-

webster.com/dictionary/administration (last visited March 29, 2021). In short, Congress created

the AOUSC not as an administration, but as an “establishment” which “provide[s] for the

administration of the United States courts.” 53 Stat. 1223. To adopt Microgenics’ view of the

word “administration” would be to change the meaning of the word as it is used in 53 Stat. 1223.

The court thus concludes that the AOUSC is not an “administration” under 28 U.S.C. § 451.

C. Whether the AOUSC Is a “Department” Under 28 U.S.C. § 451

In its response to defendants’ motions to dismiss, Microgenics adds that the AOUSC

should be viewed as a “department” under 28 U.S.C. § 451 because the Classification Act of

1949 included the AOUSC within its definition of “department.” Pl.’s Resp. at 8-9 (citing 63

Stat. 954). 3 The government and Siemens aver that the Classification Act itself and Section 451

refute Microgenics’ position. Def.’s Reply at 6; Def.-Intervenor’s Reply at 10-11.

3

The Classification Act reads:

6

The court agrees with defendants that the Classification Act’s definition of “department”

is not determinative of whether this court possesses jurisdiction over Microgenics’ claims. First,

the Classification Act specifies that its definition of “department” is “[f]or the purposes of this

Act.” 63 Stat. 954. Second, as noted by the government and Siemens, 28 U.S.C. § 451 provides

its own specific and particular definition: “[t]he term ‘department’ means one of the executive

departments enumerated in section 1 of Title 5, unless the context shows that such term was

intended to describe the executive, legislative, or judicial branches of the government.” 28

U.S.C. § 451. “When a statute includes an explicit definition,” this court “must follow that

definition, even if it varies from that term’s ordinary meaning.” Stenberg v. Carhart, 530 U.S.

914, 942 (2000) (citing Meese v. Keene, 481 U.S. 465, 484-85 (1987)) (additional citations

omitted). Microgenics has not shown that the AOUSC is a “department” as defined by the

relevant statute, Section 451.

D. Whether the AOUSC Is an “Authority” Under 28 U.S.C. § 451

Microgenics further contends in its response to defendants’ motions that “the AOUSC

qualifies as an ‘authority’ because it is subject to the Administrative Procedure Act.” Pl.’s Resp.

at 10 (citing Goldhaber v. Foley, 519 F. Supp. 466, 480 (E.D. Pa. 1981)). This statute defines

“agency” as “each authority of the Government of the United States,” but excludes “the courts of

the United States” from this definition. 5 U.S.C. § 551(1)(B) (emphasis added). The

government and Siemens point to other judicial decisions holding that the AOUSC is excluded

from the Administrative Procedure Act. Def.’s Reply at 7-8; Def.-Intervenor’s Reply at 11-12.

While Goldhaber provides support for Microgenics’ position, it must be considered

alongside “the legislative history and judicial precedent indicating that Congress has not yet

chosen” to “subject the AOUSC to review under the [Administrative Procedure Act].” Novell,

Inc. v. United States, 109 F. Supp. 2d 22, 26 (D.D.C. 2000). “If legislative history has any

significance at all, it is clear that Congress intended the entire judicial branch of the

[g]overnment to be excluded from the provisions of the Administrative Procedure Act.” In re

Fidelity Mortg. Invs., 690 F.2d 35, 38 (2d Cir. 1982) (citing Wacker v. Bisson, 348 F.2d 602, 608

n.18 (5th Cir. 1965)). Given that “virtually every case interpreting the [Administrative

Procedure Act] exemption for ‘the courts of the United States’ has held that the exemption

applies to the entire judicial branch—at least to entities within the judicial branch that perform

functions that would otherwise be performed by courts,” Microgenics falls short of establishing

that the AOUSC is subject to this Act and that it qualifies, by extension, as an “authority” under

For the purposes of this Act, the term “department” includes (1) the executive

departments, (2) the independent establishments and agencies in the executive

branch, including corporations wholly owned by the United States, (3) the

Administrative Office of the United States Courts, (4) the Library of Congress, (5)

the Botanic Garden, (6) the Government Printing Office, (7) the General

Accounting Office, (8) the Office of the Architect of the Capitol, and (9) the

municipal government of the District of Columbia.

63 Stat. 954.

7

28 U.S.C. § 451. Washington Legal Found. v. United States Sent’g Comm’n, 17 F.3d 1446, 1449

(D.D.C. 1994). 4

E. Synopsis

Based upon the governing statutory texts, the court does not have jurisdiction over bid

protests involving procurements made by the AOUSC. This result is consistent with the

outcomes in the prior decisions of this court rendered in U.S. Sec. Assocs. v. United States, 124

Fed. Cl. 433 (2015), and Novell, Inc. v. United States, 46 Fed. Cl. 601 (2000), albeit on related

but somewhat different rationales. 5

4

In addition to arguing that the AOUSC qualifies as one of the entities listed in 28 U.S.C.

§ 451, Microgenics contends that this court should recognize the AOUSC as an “agency” under

the rule of ejusdem generis. Hr’g Tr. 49:11-24 (Mar. 17, 2021). “Under the rule of ejusdem

generis, where general words follow an enumeration of specific items, the general words are read

as applying only to other items akin to those specifically enumerated.” Harrison v. PPG Indus.,

Inc., 446 U.S. 578, 588 (1980). Microgenics overlooks the baseline requirement for applying

this rule. While the AOUSC may be similar in some respects to the entities listed under Section

451, the rule of ejusdem generis is not necessarily used to infer an item omitted from a list. See

Harrison, 446 U.S. at 588 (examining the “specifically enumerated provisions” in Section

307(b)(1) of the Clean Air Act). As it happens, 28 U.S.C. § 451 indicates a restriction rather

than a potential broadening of the terms referenced, through the additive clause “unless context

shows that such term was intended to be used in a more limited sense.” In sum, here

Microgenics’ argument is foreclosed by the doctrine of expressio unius est exclusio alterius,

which, “as applied to statutory interpretation[,] creates a presumption that when a statute

designates certain persons, things, or manners of operation, all omissions should be understood

as exclusions.” Silvers v. Sony Pictures Ent., Inc., 402 F.3d 881, 885 (9th Cir. 2005) (citing

Boudette v. Barnette, 923 F.2d 756-57 (9th Cir. 1991)).

5

Microgenics in part relies upon two decisions recognizing this court’s jurisdiction over

bid protests challenging awards by legislative entities. See Pl.’s Resp. at 19-20 (citing Bell BCI

Co. v. United States, 56 Fed. Cl. 465 (2003), and Colonial Press Int’l, Inc. v. United States, 113

Fed. Cl. 497 (2013)). Notably, in holding that subject-matter jurisdiction existed over a bid

protest involving the Architect of the Capitol, the court in Bell BCI concluded that the

government “ha[d] not shown that the Architect of the Capitol is a Legislative Branch entity; or

that if it is, that the Architect would be excluded from this court’s jurisdiction.” Bell BCI, 56

Fed. Cl. at 470. That decision is in some tension with Emery, in which the Federal Circuit’s

analysis turned on whether the United States Postal Service qualified as one of the entities listed

under 28 U.S.C. § 451. Emery, 264 F.3d at 1080. Colonial Press similarly held that the Court of

Federal Claims’ jurisdiction under 28 U.S.C. § 1491(b)(1) extended to the Government Printing

Office, “a legislative agency.” Colonial Press, 113 Fed. Cl. at 518. Although the court

acknowledges, but has doubts about some aspects of the analysis in Bell BCI and Colonial Press

in application to the circumstances at hand, this case is readily distinguishable from them as the

AOUSC is an entity in the judicial branch. See 28 U.S.C. § 601.

8

II. The Separate Basis of GAO’s Jurisdiction Over Bid Protests

This jurisdictional decision does not leave the protestor without a remedy. Although the

Tucker Act does not vest this court with jurisdiction over bid protests involving the AOUSC, the

Competition in Contracting Act (“CICA”) permits GAO to hear such claims. CICA establishes

that GAO has jurisdiction to resolve bid protests involving a “solicitation . . . by a Federal

agency for offers for a contract for the procurement of property or services.” 31 U.S.C. §

3551(1)(A). “The term ‘Federal agency’” as used in CICA “has the meaning given such term by

section 102 of title 40.” Id. § 3551(3). Section 102 defines “Federal agency” as “an executive

agency or an establishment in the legislative or judicial branch of the Government (except the

Senate, the House of Representatives, and the Architect of the Capitol, and any activities under

the direction of the Architect of the Capitol).” 40 U.S.C. § 102(5). Thus, GAO’s jurisdiction

over bid protests involving federal agencies differs from this court’s jurisdiction because GAO is

bound to a different definition of “Federal agency.” Compare 40 U.S.C. § 102(5), with 28

U.S.C. § 451; see also Novell, 46 Fed. Cl. at 613 (“Even though AOUSC is not subject to the

[c]ourt’s protest jurisdiction, it remains subject to GAO[’s] protest jurisdiction.”).

CONCLUSION

For the reasons stated, the defendants’ motions to dismiss are GRANTED. Microgenics’

complaint shall be DISMISSED for lack of subject-matter jurisdiction. The clerk shall enter

judgment accordingly.

No costs.

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Senior Judge

9