M. Nicolas Enterprises, Llc.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

_____________________________________

)

M NICOLAS ENTERPRISES, LLC, )

d/b/a WORLD WIDE HEALTH SERVICES, )

and MICHELLE NICOLAS, individually, )

)

Plaintiffs, )

)

v. ) No. 20-cv-691C

)

THE UNITED STATES, ) Filed: September 1, 2021

)

Defendant. )

_____________________________________)

OPINION AND ORDER

Plaintiffs M Nicolas Enterprises, doing business as World Wide Health Services

(“WWHS”), and Michelle Nicolas bring this action seeking relief under the Tucker Act, 28 U.S.C.

§§ 1491(a)(1) and (b)(1) (2011); the Administrative Procedure Act (“APA”), 5 U.S.C. § 706

(2011); and the Contract Disputes Act (“CDA”), 41 U.S.C. § 7101 et. seq. (1966), for alleged

violations of law in connection with a U.S. Department of Veterans Affairs (“VA”) solicitation to

procure adult day care services. The Government moved to dismiss Plaintiffs’ claims, with the

exception of WWHS’s § 1491(b)(1) bid protest claim, for lack of jurisdiction under Rule 12(b)(1)

of the Rules of the United States Court of Federal Claims (“RCFC”). For the reasons that follow,

the Government’s partial motion to dismiss is GRANTED. The Court lacks jurisdiction as to each

claim except WWHS’s § 1491(b)(1) claim.

I. BACKGROUND

A. Factual History

Ms. Nicolas is the sole owner and President of WWHS, which operates as an adult day care

facility in West Palm Beach, Florida. Pls.’ Am. Compl. Pursuant to R. 3.1 ¶¶ 4–5, 12, ECF No.

57. On January 29, 2018, Ms. Nicolas, acting through and on behalf of WWHS, submitted a

proposal to VA Network Contracting Office 8 (“NCO 8”) in response to a VA solicitation

(“Solicitation”) seeking to procure adult day care services for veterans at community facilities

under indefinite delivery contracts. Id. ¶¶ 10(c), 13–14. The Solicitation anticipated multiple

awards. Id. ¶ 13.

As the first step in considering WWHS for a contract award, the VA inspected WWHS’s

facility in March 2018. Id. ¶ 17. Plaintiffs allege that the VA employee conducting the inspection

informed Ms. Nicolas of only a few minor items that needed correction but otherwise stated that,

once corrected, he would not need to return to the facility. Id. ¶ 18. He allegedly mentioned,

however, that he wanted to get more information about whether the facility needed additional fire

equipment. Id.

About a week later, Ms. Nicolas received an email from VA employee Charlene Crace,

attaching a copy of the inspection report. Id. ¶ 19. Ms. Crace allegedly stated that the initial

inspection had identified ten deficiencies and told Ms. Nicolas that she had until April 21, 2018,

to submit a corrective action plan to the VA’s West Palm Beach Community Program Office. Id.

¶¶ 19, 21. As relevant here, the most substantial deficiency identified in the report was the need

for a fire alarm system with “manual means of activation as well as smoke detection,” id. ¶ 21,

despite the fact that WWHS had an existing fire alarm system, id. ¶ 23. Plaintiffs claim the

inspection report contained several inaccuracies regarding WWHS’s facility, id. ¶ 20, but it

nonetheless stated that WWHS was “recommended for placement pending corrective action” of

the listed deficiencies, id. ¶ 22 (emphasis omitted).

Plaintiffs allege that Ms. Nicolas promptly cured all the deficiencies, with the exception of

the fire alarm system, and sent Ms. Crace documentation that the deficiencies had been fully

2

addressed. Id. ¶¶ 21, 23. Ms. Nicolas’s email also sought clarification regarding the fire alarm

requirement, which she believed unnecessary and contrary to the applicable life safety code in

effect at the time. See id. ¶ 22 n.4. The next day—several weeks before the deadline to correct

deficiencies—Ms. Crace allegedly notified Ms. Nicolas via email that the VA would not be

moving forward with WWHS’s proposal for reasons that Plaintiffs claim contradict the realities of

WWHS’s facility. 1 Id. ¶ 24.

Frustrated, Plaintiffs claim that Ms. Nicolas emailed her communications with Ms. Crace

to Rodney Cassidy, the VA Administrative Contracting Officer in Tampa and the named contact

for the Solicitation. Id. ¶ 27. According to Plaintiffs, Mr. Cassidy told Ms. Nicolas that Ms.

Crace’s denial was sent erroneously, and Ms. Nicolas should disregard it. Id. When a letter from

Ms. Crace confirming the denial arrived soon after, Plaintiffs claim Ms. Nicolas again contacted

Mr. Cassidy, who again told her to disregard the denial. Id. ¶ 28. In an email received on April 3,

2018, Mr. Cassidy allegedly told Ms. Nicolas to “go ahead and put in the smoke detection (smoke

alarms)” and assured her that he “d[id] not foresee . . . any problems when you have your

reinspection.” Id. ¶ 29.

Several weeks later, Ms. Nicolas allegedly sent a copy of the contract for the installation

of a fire alarm system costing $10,000 to the VA’s West Palm Beach office, as well as to Mr.

Cassidy. Id. ¶¶ 31–32. Once the fire alarm system was fully installed, Ms. Nicolas allegedly sent

documentation to the VA confirming its installation. Id. ¶ 34. Plaintiffs claim Ms. Nicolas then

received an email from Mr. Cassidy confirming “that your fire inspection plan 3-15-2018 has been

satisfied” and indicating that the VA would be conducting a second inspection. Id.

1 Plaintiffs’ Amended Complaint does not specify the reason(s) provided in Ms. Crace’s

email.

3

After the second inspection in July 2018, Ms. Nicolas allegedly contacted Mr. Cassidy for

an update and raised concerns about the lack of communication regarding the status of WWHS’s

proposal. Id. ¶¶ 35–36. Mr. Cassidy allegedly informed Ms. Nicolas, who is African American,

that it “may be the color of your skin” that was causing the difficulty. Id. ¶ 36.

On August 8, 2018, Ms. Nicolas received, via email from Mr. Cassidy, a letter from VA

Contracting Officer Yamil Rodriguez stating that the VA was not recommending WWHS for

approval of the solicitation contract. Id. ¶ 37. Plaintiffs allege the letter contained a list of the

same deficiencies Ms. Nicolas purportedly corrected, as well as a series of new ones. Id. In

response to a subsequent email from Ms. Nicolas, Ms. Rodriguez allegedly stated that the denial

was based on the second inspection and that WWHS had “more than a fair opportunity” in the

bidding process considering that it had two inspections, despite the terms of the Solicitation only

requiring one. Id. ¶ 38.

Unsatisfied with Ms. Rodriguez’s response, Plaintiffs allege that Ms. Nicolas elevated

WWHS’s case to the Division Chief of NCO 8. Id. ¶ 39. He allegedly informed Ms. Nicolas that

the Solicitation omitted VA Handbook 1147.1 (the “Handbook”), which he attached to the email.2

Id. ¶ 40. According to Plaintiffs, this document appeared to be a draft and not an official

government handbook. Id. Moreover, they allege it is not the handbook specifically referenced

in the Solicitation. Id. ¶ 41 n.8 (citing Handbook 1141.03, “Adult Day Health Care”). On August

29, 2018, the Division Chief allegedly sent a follow up email providing a cursory explanation of

the basis for denying WWHS’s proposal, which Plaintiffs allege contained several inaccuracies.

Id. ¶ 43.

From there, Ms. Nicolas was put in contact with the Deputy Director of Contracting for

2 Plaintiffs do not attach a copy of the Handbook to the Amended Complaint.

4

NCO 8. Id. ¶ 44. Per his request, Ms. Nicolas allegedly sent a list of five “questions she wanted

answers to” regarding her concerns of bias and discrimination in the solicitation process. Id. ¶

44(1)-(2). On September 11, 2018, the Division Chief responded by email, allegedly stating that:

(1) despite being unable to verify the accuracy of the copy provided, the Handbook was

nonetheless current; (2) he could not detect any bias or prejudice in the evaluation of WWHS’s

proposal, (3) WWHS did in fact receive a fair opportunity to apply for a solicitation contract, and

(4) no further action would be taken on WWHS’s proposal. Id. ¶ 45(a)-(d). The Division Chief

further stated that any remedies to resolve concerns about “direction given to members of

[WWHS]” during the solicitation process should be addressed in accordance with Part 33 of the

Federal Acquisition Regulations (“FAR”) or through other legal remedies. Id. ¶ 45(e).

Plaintiffs claim that Ms. Nicolas thereafter contacted the Executive Director of the VHA

Regional Procurement Office East, who allegedly stated that an independent team had conducted

a review and determined errors existed in the September 11 response. Id. ¶ 47. Plaintiffs claim

that the Executive Director apologized for not properly handling WWHS’s proposal. Id. Despite

allegedly assuring Ms. Nicolas that a new solicitation would be issuing in October 2018, none had

issued as of the date Plaintiffs filed their complaint. Id.

B. Procedural History

Plaintiffs first filed their Complaint (ECF No. 1) in the United States District Court for the

Southern District of Florida on May 13, 2019, followed by an Amended Complaint (ECF No. 35)

filed in January 2020. After the Government moved to dismiss the Amended Complaint for lack

of jurisdiction, the district court entered an order in April 2020 transferring the case to the Court

of Federal Claims. See Order Transferring Venue, ECF No. 40.

On August 21, 2020, Plaintiffs filed in this Court an Amended Complaint Pursuant to

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RCFC 3.1, alleging that in considering WWHS’s proposal the VA violated the terms of the

Solicitation; unlawfully imposed terms in excess of the Solicitation, giving rise to a breach of an

implied-in-fact contract; discriminated against Plaintiffs in violation of the Fifth Amendment’s

right to due process and equal protection; and arbitrarily and capriciously denied Plaintiffs an

award under the Solicitation. See generally ECF No. 57. Plaintiffs assert their claims under

Tucker Act §§ 1491(a)(1) and (b)(1), APA § 706, and the CDA. See id.

On September 25, 2020, the Government moved to dismiss under RCFC 12(b)(1) for lack

of subject matter jurisdiction. See Def.’s Sealed Mot. to Dismiss, ECF No. 68 (redacted version).

According to the Government, Plaintiffs’ § 1491(a)(1) claims should be dismissed because bid

protest claims arising in the procurement context must be brought exclusively under § 1491(b)(1).

Id. at 6–8. Furthermore, it argues that the APA and Fifth Amendment claims are beyond the

Court’s jurisdiction, since neither source of law is money-mandating under the Tucker Act. Id. at

8. As to Plaintiffs’ CDA claims, the Government argues that Plaintiffs failed to comply with the

CDA’s prerequisites, namely they failed to submit a written claim to the contracting officer and

never received her final decision on that claim. Id. at 9–10. Finally, the Government contends

that Ms. Nicolas lacks standing to bring any claims individually. Id. at 10. As the Government

sees it, only WWHS’s § 1491(b)(1) bid protest claim can survive dismissal. Id. at 1, 10.

Plaintiffs disagree. As to their § 1491(a)(1) claims, they argue that by requiring WWHS

to install a duplicate fire alarm system—based on a handbook that was outside the specifications

of the Solicitation—the Government entered into an implied-in-fact contract with Plaintiffs, which

is distinct from their § 1491(b)(1) claim. Pls.’ Mem. in Opp’n to Def.’s Mot. to Dismiss at 4–6,

ECF No. 67. They also raise a new argument, claiming that the Government’s addition of

requirements outside the terms of the Solicitation resulted in an illegal exaction. Id. Additionally,

6

they state that their Count II APA and Fifth Amendment claims are “substantive elaborations or

applications of the jurisdictional claims of § 1491(b)(1), as incorporated through § 1491(b)(4), or

those not otherwise covered by the claims and issues under Count I under § 1491(a)(1).” Id. at 11.

Finally, Plaintiffs contend that they met the CDA prerequisites, albeit without the degree of

formalism the Government argues is necessary. Id. at 15. Plaintiffs further argue that Ms. Nicolas

is a real party of interest vis-à-vis the § 1491(a)(1) claims because she personally incurred costs

on behalf of WWHS and “it is through [Ms. Nicolas] that her entity acquired a racial identity”

resulting in the alleged discrimination. Id. As the sole owner of WWHS, Plaintiffs assert she also

has third party standing as to both the §§ 1491(a)(1) and (b)(1) claims. Id. at 16.

II. LEGAL STANDARDS

A. Jurisdiction of the Court of Federal Claims

Establishing the Court’s subject matter jurisdiction is an “inflexible” threshold matter.

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). The Court may inquire into

jurisdiction even if a defendant does not raise a jurisdictional objection. The jurisdiction of the

Court “cannot be conferred by waiver or acquiescence.” Coastal Corp. v. United States, 713 F.2d

728, 730 (Fed. Cir. 1983). Should the Court determine that jurisdiction is lacking, it must dismiss

a plaintiff’s complaint. See RCFC 12(b)(1), (h)(3).

Under the Tucker Act, the Court of Federal Claims may hear “any claim against the United

States founded either upon the Constitution, or any Act of Congress or any regulation of an

executive department, or upon any express or implied contract with the United States.” 28 U.S.C.

§ 1491(a)(1). The Act, however, “does not create any substantive right” for money damages

against the United States. United States v. Testan, 424 U.S. 392, 398 (1976). To establish the

Court’s jurisdiction under § 1491(a)(1), a plaintiff must identify a source of substantive law

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mandating the payment of money damages. Fisher v. United States, 402 F.3d 1167, 1172 (Fed.

Cir. 2005). The Court also has jurisdiction under the Tucker Act over actions by interested parties

“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).

Under the CDA, the Court has jurisdiction over a contractor’s appeal from a decision by a

contracting officer relating to a contract for the procurement of services. 41 U.S.C. §§ 7102(a)(2),

7104(b); see 28 U.S.C. § 1491(a)(2). CDA jurisdiction “requires both that a claim meeting certain

requirements [has] been submitted to the relevant contracting officer and that the contracting

officer [has] issued a final decision on that claim.” K-Con Bldg. Sys., Inc. v. United States, 778

F.3d 1000, 1005 (Fed. Cir. 2015); see 41 U.S.C. §§ 7103, 7104(b).

B. Standard of Review

The burden of establishing jurisdiction by a preponderance of the evidence falls upon the

plaintiff. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); see Kemp

v. United States, 65 Fed. Cl. 818, 820 (2005). In deciding a motion to dismiss pursuant to RCFC

12(b)(1), “the court assumes that all well-pleaded facts alleged in the complaint are true and draws

all reasonable inferences in favor of plaintiff.” Kemp, 65 Fed. Cl. at 820 (citing Scheuer v. Rhodes,

416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).

If jurisdictional facts are disputed, the plaintiff may not rest on mere allegations; instead, it must

produce competent proof sufficient to support its allegations. McNutt v. Gen. Motors Acceptance

Corp. of Ind., 298 U.S. 178, 189 (1936); Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.

2002). The Court is free in such case to “look beyond the pleadings and ‘inquire into jurisdictional

facts’ to determine whether jurisdiction exists.” K-Lak Corp. v. United States, 93 Fed. Cl. 749,

8

752 (2010) (quoting Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)).

III. DISCUSSION

Other than WWHS’s § 1491(b)(1) bid protest claim, Plaintiffs’ claims must be dismissed

pursuant to RCFC 12(b)(1) because the allegations in the Amended Complaint do not establish

subject matter jurisdiction. Plaintiffs likewise fail to demonstrate that Ms. Nicolas has standing to

pursue claims individually.

A. The Court Lacks Jurisdiction to Hear Plaintiffs’ § 1491(a)(1) Claims.

1. The Allegations Asserted in Count I Are Bid Protest Claims.

Count I of the Amended Complaint alleges claims under both §§ 1491(a)(1) and (b)(1)

related to the VA’s consideration and denial of WWHS’s proposal. The Government contends

that Plaintiffs’ allegations, properly construed, assert only a bid protest claim related to the VA’s

procurement of services, and thus the Court’s jurisdiction is limited exclusively to § 1491(b)(1).

ECF No. 68 at 7; Def.’s Reply to Pls.’ Opp’n to Mot. to Dismiss at 2–3, ECF No. 73 (redacted

version). The Court agrees.

What the Amended Complaint categorizes as § 1491(a)(1) claims more aptly allege a bid

protest challenging the VA’s solicitation process and decision not to award Plaintiffs a contract.

See e.g., ECF No. 57 ¶ 49 (alleging that the VA violated the express terms of the Solicitation,

imposed additional terms in excess of the Solicitation, unlawfully denied award of the Solicitation,

and discriminated against Plaintiffs in the solicitation process). There is also no dispute that the

solicitation at issue relates to an Executive agency’s procurement of services. ECF No. 68 at 7;

ECF No. 57 ¶ 13; see Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008)

(defining procurement under § 1491(b)(1) to include “all stages of the process of acquiring

property or services, beginning with the process for determining a need for property or services

9

and ending with contract completion and closeout” (emphasis omitted) (quoting 41 U.S.C. §

403(2) (2011)).

The Federal Circuit determined in Resource Conservation Group, LLC v. United States,

597 F.3d 1238 (Fed. Cir. 2010), and more recently in Safeguard Base Operations, LLC v. United

States, 989 F.3d 1326 (Fed. Cir. 2021), that this Court’s jurisdiction over a bid protest claim in the

procurement context arises “under § 1491(b)(1), and only § 1491(b)(1).” Safeguard Base

Operations, 989 F.3d at 1342; see Res. Conservation Grp., 597 F.3d at 1246. In Reservation

Conservation Group, the Federal Circuit addressed the effect of the Administrative Dispute

Resolution Act of 1996 (“ADRA”) on the Court of Federal Claims’ jurisdiction over bid protest

claims under § 1491(a)(1). See Res. Conservation Grp., 597 F.3d at 1245–46. As the Court

explained, prior to the enactment of ADRA, the Court of Federal Claims exercised jurisdiction

under § 1491(a)(1) over “suits by disappointed bidders challenging contract awards based on

alleged improprieties in the procurements process” under an implied contract theory that the

Government would fairly and honestly consider proposals for government contracts. See id. at

1242. To eliminate problems that arose after the decision in Scanwell Labs., Inc. v. Shaffer, 424

F.2d 859 (D.C. Cir. 1970), which held that federal district courts can review agency procurement

decisions under the APA, ADRA expanded the Court of Federal Claims’ jurisdiction by

authorizing it under § 1491(b)(1) to entertain the “full range of procurement protest cases.” Res.

Conservation Grp., 597 F.3d at 1243 (quoting H.R. Rep. No. 104-841, at 10 (1996)). While

holding that the pre-existing implied-in-fact-contract jurisdiction under § 1491(a)(1) survived

ADRA in non-procurement bid protests, Reservation Conservation Group determined that §

1491(b)(1)’s jurisdiction is “exclusive where [§] 1491(b)(1) provide[s] a remedy (in procurement

cases).” Id. at 1246.

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Following the conclusion of briefing in this case, Safeguard Base Operations addressed

the enduring ambiguity of whether the same implied-in-fact contract jurisdiction survived in the

procurement context, and if so, whether jurisdiction fell under §§ 1491(a)(1) or (b)(1). 989 F.3d

at 1341–42. Answering this question, the Federal Circuit held that, in a procurement action, the

Court of Federal Claims has jurisdiction over a claim that the Government breached an implied-

in-fact contract to fairly and honestly consider a bidder’s proposal “under § 1491(b)(1), and only

§ 1491(b)(1).” Id. at 1342. Central to the Federal Circuit’s holding was Congress’s intent “[not]

to limit the Claims Court’s jurisdiction over any type of procurement bid protest” but “to

consolidate jurisdiction over all such matters in the Claims Court.” Id. (explaining that Congress

intended for the APA standard of review to apply “to all procurement protest cases in the Court

of Federal Claims.” (emphasis added) (quoting H.R. Rep. No. 104-841, at 10)); see also Res.

Conservation Grp., 597 F.3d at 1246 (“The legislative history makes clear that the ADRA was

meant to unify bid protest law in one court under one standard.”).

Accordingly, the only claim in Count I that can survive dismissal is the bid protest under

the Court’s § 1491(b)(1) jurisdiction.

2. Assuming the Allegations Are Construed as Separate § 1491(a)(1) Claims,

Plaintiffs Have Not Demonstrated Jurisdiction.

Plaintiffs’ Opposition does not take issue with the Federal Circuit’s precedent or the

legislative history of ADRA but rather argues that nothing prohibits the Court from exercising

concurrent jurisdiction under both §§ 1491(a)(1) and (b)(1). ECF No. 67 at 10. They contend that

the VA’s imposition of the fire alarm requirement exceeded the terms of the Solicitation, and thus

gave rise to separate implied-in-fact contract and constitutional claims under § 1491(a)(1). ECF

No. 57 ¶ 49(b), (d)–(f); ECF No. 67 at 4. In their brief, Plaintiffs allege for the first time that such

allegations support an illegal exaction claim, as well. ECF No. 67 at 4–6. As discussed above, it

11

would be a stretch to construe Plaintiffs’ § 1491(a)(1) claims as distinct from their § 1491(b)(1)

bid protest claim; but even assuming they were, Plaintiffs have failed to demonstrate that the Court

would have jurisdiction to entertain them.

a. Implied-In-Fact Contract Claim

Plaintiffs allege a breach of an implied-in-fact contract with the VA based on: (1) the VA’s

alleged assertion that WWHS would move forward with the Solicitation if it installed a duplicative

fire alarm system in its facility, (2) Plaintiffs’ reliance to their detriment on the VA’s

representations by incurring costs to install the new system, and (3) the VA’s decision not to award

WWHS a contract under the Solicitation despite compliance with the fire alarm requirement. ECF

No. 57 ¶ 49(b); see ECF No. 67 at 4. Plaintiffs specifically allege in Count I that imposing such

requirement was unlawful because it was unauthorized by (and exceeded the terms of) the

Solicitation. Id. The Government contends in its Reply that the CDA applies to Plaintiffs’ contract

claim, and thus “provides the ‘exclusive’ remedy for breach.” 3 ECF No. 73 at 3 (quoting Dalton

v. Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir. 1995)). The Court will address its

CDA jurisdiction below, but as an initial matter, Plaintiffs’ implied-in-fact contract claim fails for

a more fundamental reason: it fails to plead all the elements of such claim.

To demonstrate jurisdiction under § 1491(a)(1), Plaintiffs must assert a “well pleaded

allegation” of a breach of implied-in-fact contract. Bank of Guam v. United States, 578 F.3d 1318,

1325 (Fed. Cir. 2009). The Federal Circuit has “held that jurisdiction under this provision requires

no more than a non-frivolous allegation of a contract with the government.” Engage Learning,

Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (emphasis in original) (citing Lewis v. United

3If the CDA does apply to Plaintiffs’ breach of contract claim, then the CDA—not §

1491(a)(1)—would be the exclusive remedy. Dalton, 50 F.3d at 1017.

12

States, 70 F.3d 597, 602, 604 (Fed. Cir. 1995)). Whether a contract actually existed—i.e., whether

a plaintiff has established all the elements necessary to the formation of a valid contract—is not a

jurisdictional question. See id. at 1354–55. Nonetheless, the jurisdictional inquiry “‘starts with

the complaint, which must . . . state the necessary elements of the plaintiff’s claim, independent of

any defense that may be interposed.’” Perry v. United States, 149 Fed. Cl. 1, 17 (2020) (quoting

Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997), aff’d, 2021 WL 2935075 (Fed. Cir.

July 13, 2021)). Accordingly, to show jurisdiction, a plaintiff must at least plead the elements of

a contract: “(1) mutuality of intent to contract; (2) consideration; (3) an unambiguous offer and

acceptance; and (4) actual authority on the part of the government’s representative to bind the

government.” Marchena v. United States, 128 Fed. Cl. 326, 331 (2016) (citation omitted).

Here, Plaintiffs’ allegations with respect to the fourth element (authority) are fatal to their

contract claim. Not only do Plaintiffs fail to allege that the VA employees upon whose alleged

representations they relied had actual authority to bind the Government, they expressly aver they

did not. Specifically, Plaintiffs allege that conditioning WWHS’s ability to move forward in the

solicitation process on the requirement that it install a new fire alarm system was “unauthorized

by the solicitation” and “in excess” of the Solicitation’s terms. ECF No. 57 ¶ 49(b); ECF No. 67

at 4. Indeed, in pleading the same implied-in-fact contract as the basis of the CDA claim in Count

III, Plaintiffs specifically allege that it constituted an “unauthorized commitment.” ECF No. 57 ¶

66. They do not allege that such commitment was ratified by the VA, either on the individual or

agency level. Rather, Plaintiffs claim that the VA’s failure to award WWHS a contract under the

Solicitation after it satisfied the fire alarm requirement “necessitate[s] the ratification of an

unauthorized commitment pursuant to 48 C.F.R. [§] 801.602-3.” Id. ¶ 69. That VA regulation

merely sets forth the procedures for a contracting officer to request ratification from an appropriate

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VA approving authority. 48 C.F.R. § 801.602-3 (2008). It does not require ratification in any

circumstance, nor does it purport to create any right or benefit enforceable at law by a party in a

civil action.

Assuming the truth of Plaintiffs’ allegations, as the Court must at this stage, Plaintiffs have

pled themselves out of court with respect to an implied-in-fact contract claim through allegations

that negate at least one element of their claim.

b. Illegal Exaction Claim

In their Opposition, Plaintiffs raise—for the first time—an alternative argument that (if not

an implied-in-fact contract) the imposition of the fire alarm requirement resulted in an illegal

exaction. ECF No. 67 at 4–5. Specifically, Plaintiffs argue that the VA used the Handbook to

impose an unlawful requirement that “resulted in the payment of money . . . to better the

governments [sic] deal beyond the terms of the solicitation.” Id. at 5. Despite arguing that such

claim is “plain in the facts of the pleading,” id. at 4, the Amended Complaint contains no

articulation of an illegal exaction claim, as the Government notes, see ECF No. 73 at 3. It is well

established that a plaintiff may not amend its pleading by raising claims for the first time in

responsive briefing. See Perry, 149 Fed. Cl. at 17 n.11 (collecting cases). Plaintiffs’ illegal

exaction claim is, therefore, not properly before the Court.

Even were this not the case, Plaintiffs have not adequately pled an illegal exaction claim

sufficient to invoke the Court’s jurisdiction. To do so, Plaintiffs’ Amended Complaint would need

to contain, at a minimum, “the requisite factual allegations necessary to support such a claim.” Id.

at 33; see Perry, 2021 WL 2935075, at *3 (agreeing that trial court lacked jurisdiction over the

plaintiff’s illegal exaction claim where he failed to plead the relevant factual assertions). An illegal

exaction may be brought where “(1) money was taken [from the plaintiff] by the government and

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(2) the exaction violated a provision of the Constitution, a statute, or a regulation.” Piszel v. United

States, 121 Fed. Cl. 793, 801 (2015) (citation omitted), aff’d, 833 F.3d 1366 (Fed. Cir. 2016); see

Aerolineas Argentinas v. United States, 77 F.3d 1564, 1572–73 (Fed. Cir. 1996). Exactions can

be “direct” when money was paid directly to the Government or “in effect” when money “was

paid to others at the direction of the government to meet a governmental obligation.” Aerolineas,

77 F.3d at 1572–73. In the latter case, “the government has ‘in its pocket’ money corresponding

to the payments that were the government’s . . . obligation” to make. Id. at 1573; Clapp v. United

States, 127 Ct. Cl. 505, 512 (1954) (describing illegal exaction as occurring when “the Government

has the citizen’s money in its pocket.”).

Plaintiffs have not alleged that they paid money directly to the VA. Thus, to sufficiently

plead an exaction in effect, they must state facts showing that the purchase of the fire alarm system

from a third-party was made on the Government’s behalf. Piszel, 121 Fed. Cl. at 801. 4 Two cases

illustrate when the Government exacts money in effect. In Aerolineas, the Immigration and

Naturalization Service (“INS”) required two airlines to pay the housing and protection costs of

alien asylum seekers who arrived in the United States on the airlines’ planes without entry

documents. 77 F.3d at 1568. There, a statute explicitly required INS to bear such costs. Id. at

1571–72. The Federal Circuit determined that an exaction in effect had occurred by the

Government attempting to push these costs—which it was required by law to pay—on to the

airlines. Id. at 1573–74. Alternatively, an exaction in effect may occur when a third-party obtains

payment from the plaintiff on behalf of the Government and then remits that payment to the

Government. For example, in Camellia Apartments, Inc. v. United States, 334 F.2d 667, 669 (Ct.

4 A plaintiff may also plead an exaction in effect by alleging that the Government exacted

its property, sold it, and received money from the sale. See Piszel, 121 Fed. Cl. at 801. Since

Plaintiffs do not allege this circumstance, the Court need not address it here.

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Cl. 1964), the Court of Claims determined it had jurisdiction over claims that the Federal Housing

Administration (“FHA”) had exacted money from three corporations owning apartment houses by

requiring them, during a refinancing of their mortgages, to pay prepayment charges to private

mortgagees who then remitted those charges to the FHA. 5

A similar situation is not pled here. Though Plaintiffs have alleged that the $10,000 spent

on the fire alarm system was the result of an unlawful condition imposed on Plaintiffs by the VA,

nowhere does the Amended Complaint allege that Plaintiffs made payments to any third-party on

the VA’s behalf, either to cover an obligation of the VA or for remittal to the VA. See Aerolineas,

77 F.3d at 1573–74; Camellia Apartments, 334 F.2d at 669. Plaintiffs’ contention that the VA

obtained a better deal from the fire alarm system’s installation is legally insufficient to invoke the

Court’s jurisdiction over an illegal exaction claim. 6 Aerolineas, 77 F.3d at 1573 (exaction occurs

where money was “paid to others at the direction of the government to meet a governmental

obligation.” (emphasis added)); see Piszel, 121 Fed. Cl. at 801. According to the Amended

Complaint, the alleged obligation under the Handbook to install the fire alarm system belonged to

Plaintiffs, not the VA. ECF No. 57 ¶ 21; see ECF No. 67 at 5. Nor do Plaintiffs point to any

source of law obligating the VA to bear the costs of WWHS installing the system.

Because the Amended Complaint does not contain facts demonstrating that any exaction,

5 Plaintiffs cite Camellia Apartments to support their argument that jurisdiction is satisfied

because the Government required a payment under a regulation or statute, regardless of to whom

the payment was made. ECF No. 67 at 5–6 (citing Camellia Apartments, 334 F.2d at 669). In

Camellia Apartments, however, the Court of Claims determined it had jurisdiction over the

plaintiffs’ claims precisely because the payments made by the plaintiffs to third-party mortgagees

were remitted to the Government. See 334 F.2d at 669. Moreover, the language Plaintiffs quote

was not about the court’s jurisdiction over illegal exaction claims but rather its jurisdiction to hear

actions founded upon Acts of Congress or Executive agency regulations. See id.

6 Plaintiffs’ contention is also inconsistent with the fact that the VA did not actually receive

a “deal” because it ultimately did not award Plaintiffs a contract. See ECF No. 57 ¶ 37.

16

legal or illegal, direct or in effect, has occurred, the Court lacks jurisdiction to hear the claim.

c. Constitutional Claims

Nor can Plaintiffs demonstrate jurisdiction under § 1491(a)(1) based on claims that the VA

violated Plaintiffs’ rights to due process and equal protection. Long-standing, binding precedent

uniformly holds that the Fifth Amendment’s Due Process and Equal Protection Clauses do not

provide a basis for Tucker Act jurisdiction because they do not mandate payment of money by the

Government. See Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987); Smith v. United

States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (citing Leblanc v. United States, 50 F.3d 1025, 1028

(Fed. Cir. 1995)); Carruth v. United States, 627 F.2d 1068, 1081 (Ct. Cl. 1980).

Relying on two cases, Carey v. Piphus, 435 U.S. 247 (1978), and Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), Plaintiffs present the

novel theory that “like illegal exactions . . . there is jurisdiction for two classes of ‘money-

mandating’ constitutional claims: 1) facial provisions (such as ‘just compensation’ in a taking);

and 2) as-applied provisions.” ECF No. 67 at 8. The Court agrees with the Government that this

argument is unpersuasive, especially considering the long line of consistent precedent to the

contrary. See ECF No. 73 at 5–6.

Indeed, the cases Plaintiffs cite are inapposite. Carey held that “damages are available

under [42 U.S.C. § 1983 (1996)] for actions ‘found . . . to have been violative of . . . constitutional

rights and to have caused compensable injury.’” 435 U.S. at 255 (emphasis omitted) (citation

omitted). That case, however, only answered the question of whether a plaintiff had to prove actual

injury due to the deprivation of procedural due process rights to recover more than nominal

damages under § 1983. Id. at 248. Since this Court lacks jurisdiction to adjudicate claims under

§ 1983, the relevance of Carey is unclear. See Blassingame v. United States, 33 Fed. Cl. 504, 505

17

(1995), aff’d, 73 F.3d 379 (Fed. Cir. 1995), reh’g denied, cert. denied, 517 U.S. 1237 (1996). The

same can be said for Bivens, which the Government correctly notes was decided in the context of

a suit against government officials, not the United States itself. ECF No. 73 at 6. It is well

established that this Court lacks jurisdiction to hear claims against individual government officials.

See Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997).

In sum, each of Plaintiffs’ § 1491(a)(1) claims—whether pled as an implied-in-fact

contract, illegal exaction, or constitutional claim—fail for lack of jurisdiction and must be

dismissed.

B. The Court Lacks Jurisdiction Over Count II to the Extent It Asserts an

Independent APA Claim.

Count II of Plaintiffs’ Amended Complaint alleges that the VA acted arbitrarily and

capriciously in considering and denying Plaintiffs’ proposal, failed to provide a reasoned

explanation for its actions and decision, and acted contrary to the Fifth Amendment’s right to equal

protection by treating Plaintiffs in a discriminatory manner. ECF No. 57 ¶¶ 55–60. Plaintiffs seek

monetary damages under the APA, as well as declaratory, injunctive, and mandatory relief. Id. ¶¶

61–63. As the Government correctly argues, the APA does not provide a basis for jurisdiction in

the Court of Federal Claims. ECF No. 68 at 8; see Martinez v. United States, 333 F.3d 1295, 1313

(Fed. Cir. 2003) (citing Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993)); Wopsock v.

Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006) (noting “the APA does not authorize an award of

money damages at all”). Thus, while § 1491(b)(4) directs the Court to apply the APA standard of

review in bid protest cases under § 1491(b)(1), the APA cannot be the statutory basis for an

independent claim. Id.

In any event, both parties agree that the allegations underlying Count II concern the VA’s

decision not to award Plaintiffs a contract under the Solicitation, and thus may elaborate on or

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provide substantive grounds for their remaining § 1491(b)(1) claim. ECF No. 68 at 8; ECF No.

67 at 11. Consequently, while Plaintiffs may assert such allegations in connection with their bid

protest claim, Count II is dismissed to the extent it asserts a standalone APA claim.

C. The Court Lacks Jurisdiction Over Count III’s CDA Claims.

In Count III, Plaintiffs allege that the Court has jurisdiction under the CDA over their

breach of implied-in-fact contract claim.7 ECF No. 57 ¶¶ 65–71; ECF No. 67 at 11–15. Although

the Government does not dispute that the CDA applies to such claim, it contends Plaintiffs have

not pled facts demonstrating the CDA’s jurisdictional prerequisites. 8 ECF No. 68 at 9–10; ECF

No. 73 at 6–9.

The Tucker Act grants the Court of Federal Claims jurisdiction “to render judgment upon

any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of [the

Contract Disputes Act].” 28 U.S.C. § 1491(a)(2); see 41 U.S.C. § 7104(b)(1) (providing for

judicial review in the Court of Federal Claims of the decision of a contracting officer under §

7Plaintiffs’ CDA claim appears to be founded on the same implied-in-fact contract claim

raised under § 1491(a)(1). As discussed above, Plaintiffs have not pled all elements of a valid

implied-in-fact contract, in which case the CDA does not apply. See 41 U.S.C. § 602(a) (2008)

(limiting the CDA to express or implied contracts made by an Executive agency).

8Neither party tries to justify the contention that the CDA applies to Plaintiffs’ breach of

implied-in-fact contract claim. The Court is not entirely satisfied that the alleged representation

by the VA that WWHS “would move forward with the solicitation” if it installed a fire alarm

system qualifies as a procurement contract subject to the CDA, especially where the claim arises

in the context of a procurement solicitation that was not awarded to the plaintiff. ECF No. 67 at

4. The CDA “does not cover all government contracts.” Coastal Corp., 713 F.2d at 730 (rejecting

the argument that the CDA applies to “other contracts tangentially connected with government

procurement of goods and services”); see Lublin Corp. v. United States, 84 Fed. Cl. 678, 682

(2008) (holding that the Government’s agreement to keep feedback provided by a subcontractor

confidential during a quality review of the prime contractor was not a “procurement” where the

Government did not acquire a service from the subcontractor for its direct benefit). In any event,

because the Court agrees that Plaintiffs have not met the CDA prerequisites, it need not address

the threshold applicability argument.

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7103). The Court’s jurisdiction is conditioned on a plaintiff satisfying two prerequisites. First, a

plaintiff must show that it submitted to the contracting officer a written demand containing

“adequate notice of the basis and amount of the claim and . . . a request for a final decision.” M.

Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010); 41 U.S.C. §

7103(a)(1)-(2). Second, it must show that the contracting officer issued a final decision on the

claim or that the contracting officer did not issue a decision within the statutory timeframe, in

which case the claim is deemed denied. James M. Ellett Constr. Co. v. United States, 93 F.3d

1537, 1543 (Fed. Cir. 1996); 41 U.S.C. § 7103(a)(3), (f)(5). If a plaintiff fails to meet both

prerequisites, its CDA claim must fail. See Northrop Grumman Computing Sys., Inc. v. United

States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (“If a purported claim is found to be insufficient for

any reason, the insufficiency is fatal to jurisdiction under the CDA.” (citation omitted)).

Although the statute does not define “claim,” the Federal Circuit has identified three

requirements for a valid CDA claim: “(1) the contractor must submit the demand in writing to the

contracting officer, (2) the contractor must submit the demand as a matter of right, and (3) the

demand must include a sum certain.” H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1565 (Fed. Cir.

1995) (interpreting the definition of “claim” in 48 C.F.R. § 33.201 (2014)). To constitute a written

demand, “a claim must be ‘for something due or believed to be due’ and must ‘provide the

contracting officer with notice of the relief requested and the legal and factual basis for that

request.’” Estes Express Lines v. United States, 123 Fed. Cl. 538, 545 (2015) (citation omitted);

Fed. Contracting, Inc. v. United States, 128 Fed. Cl. 788, 797 (2016) (holding that a demand is at

least an “authoritative or formal type of request”). To submit the demand as a matter of right, a

contractor must “specifically assert entitlement to the relief sought.” Alliant Techsystems, Inc. v.

United States, 178 F.3d 1260, 1265 (Fed. Cir. 1999) (citations omitted). A demand meets the sum

20

certain requirement where it contains “a clear and unequivocal statement of the amount of the

claim.” CPS Mech. Contractors, Inc. v. United States, 59 Fed. Cl. 760, 764 (2004) (emphasis

omitted) (citing Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir.

1987)).

Plaintiffs argue that the Amended Complaint demonstrates the CDA prerequisites, as

evidenced by the allegations detailing Plaintiffs’ communications with various VA officials

beginning on August 8, 2018 and culminating in the NCO 8 Division Chief’s September 11, 2018

email. ECF No. 67 at 14; ECF No. 57 ¶¶ 37–45. As an initial matter, the Amended Complaint

does not include copies of any alleged written correspondence, and thus the Court can rely only

on Plaintiffs’ characterizations and paraphrasing of the communications. Based on those

allegations, Plaintiffs’ interactions with the VA, beginning with the email to Mr. Cassidy on

August 8, are described largely as an “inquiry” into why WWHS’s proposal was rejected and an

effort to show that the grounds stated in the denial letter were inaccurate. See, e.g., ECF No. 57

¶¶ 37–38, 41–43.

Plaintiffs rely specifically on the list of questions Ms. Nicolas sent to the NCO 8 Deputy

Director as demonstrating that they submitted a valid CDA claim. See ECF No. 57 ¶ 44; ECF No.

67 at 14–15. The alleged questions are as follows:

1. Requesting VHA Handbook 1147

2. Requesting Fair Opportunity in Solicitation VA248-17-R-0713 without bias,

without discrimination, and without prejudice.

3. What measures are being taken so to ensure that a fair opportunity will be

provided?

4. What is the current status where my facility currently is in this Solicitation

process and based on what facts?

5. VA required me to put in a fire alarm system in a building I do not own as a

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requirement when no clarity was provided, a $10,000.00 system has been placed,

my hard earned money has been spent to meet what is said to be a requirement and

received email from VA that I have passed the requirements and now no one is

returning my call. How is this considered fair and how are this putting Veterans

first when VA has stated there's a need for the services that my facility provides?

ECF No. 57 ¶ 44. Consistent with prior communications, however, these “questions” do not meet

the CDA claim requirements. See id. First, rather than constituting an “authoritative or formal

type of request,” Fed. Contracting, 128 Fed. Cl. at 797, the questions are, for the most part, merely

inquiries directed at the legitimacy of the solicitation process, see ECF No. 57 ¶ 44. The questions

appear to include two requests—one for an official copy of the Handbook, id. ¶ 44(1), and the

other for a fair opportunity to bid for the Solicitation “without bias, without discrimination, and

without prejudice,” id. ¶ 44(2). These requests, however, do not relate to Plaintiffs’ CDA contract

claim (but rather their bid protest claim), do not request the relief sought in this action under the

CDA, or state a sum certain—i.e., the $10,000 cost incurred by Plaintiffs to install the fire alarm

system. K-Con Bldg. Sys., 778 F.3d at 1005 (discussing importance of claim identification in

determining CDA jurisdiction).

Even question five, with its assertion that Plaintiffs spent $10,000 to install the fire alarm

system, does not clearly assert an “entitlement as a matter of right.” ECF No. 57 ¶ 44(5); Alliant

Techsystems, 178 F.3d at 1265. Indeed, the demand made in question five was for the VA to

explain whether it considered Plaintiffs’ circumstances “fair” or appropriately aimed at “putting

Veterans first.” ECF No. 57 ¶ 44(5); see id. ¶ 37 (describing similar expression of “frustration” in

August 8 email to Mr. Cassidy). The question does not demonstrate entitlement to damages for

installation costs, let alone authoritatively request them. Moreover, none of the questions contain

a request for a final decision of the contracting officer, as required even under the lax standard

cited in Plaintiffs’ Opposition. See ECF No. 67 at 12 (“[T]he requirement of submission of the

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claim to the contracting officer for final decision ‘does not require an explicit request for a final

decision; as long as what the contractor desires by its submissions is a final decision.’” (quoting

James M. Ellet Constr., 93 F.3d at 1543)); see M. Maropakis Carpentry, 609 F.3d at 1328.

Plaintiffs argue that the Division Chief’s September 11 response to Ms. Nicolas

demonstrates that the VA understood her inquires to be a contested claim under the CDA. ECF

No. 67 at 15; see ECF No. 57 ¶ 45(e). In that response, the Division Chief allegedly instructed

Plaintiffs that any remedy to resolve their concern with the “direction given to members of your

firm” in relation to the Solicitation “must be addressed in accordance with FAR Part 33 procedures,

as applicable, or through other legal remedies that may be available to your firm.” 9 ECF No. 57 ¶

45(e). But Plaintiffs’ argument is a leap unsupported by a fair reading of the pleadings. As

Plaintiffs acknowledge, FAR Part 33 covers both protests and contract disputes, and “prescribes

policies and procedures for filing protests and for processing contract disputes and appeals” at the

administrative level. FAR § 33.000 (1985). Given the broad reference to FAR Part 33, it is

difficult to infer what the Division Chief understood Plaintiffs’ list of questions to be. As the

Government notes, such reference could just as easily be interpreted as suggesting that the Division

Chief did not believe Plaintiffs had initiated the necessary administrative procedures to assert a

CDA claim and thus directed Plaintiffs to FAR Part 33 if they desired to do so in the future. ECF

No. 73 at 9.

Finally, Plaintiffs have not properly pled that they submitted a valid CDA claim to Ms.

Rodriguez, the contracting officer. “Congress deliberately left the language concerning

submission to the contracting officer ‘broad . . . to permit appropriate Government officers to

9 Plaintiffs erroneously refer to the Division Chief as the contracting officer in their

Opposition. Compare ECF No. 67 at 15, with ECF No. 57 ¶ 39.

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receive written claims and forward them to the [contracting officer].’” Dawco Constr. v. United

States, 930 F.2d 872, 880 (Fed. Cir. 1991), overturned in part on other grounds by Reflectone, Inc.

v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995). But although the CDA “does not . . . require that the

claims be sent only to the contracting officer, or necessarily directly to that officer,” Neal & Co.

v. United States, 945 F.2d 385, 388 (Fed. Cir. 1991), Plaintiffs must nonetheless demonstrate that

the dispute was ultimately submitted to Ms. Rodriguez for final decision, Dawco, 930 F.2d at 880.

Plaintiffs’ Amended Complaint lacks sufficient factual allegations to make this conclusion.

The list of questions on which Plaintiffs principally rely was requested by and submitted to the

Deputy Director, and then responded to by the Division Chief. ECF No. 57 ¶¶ 44–45. The

Amended Complaint contains no evidence or allegations that Ms. Rodriguez received Plaintiffs’

list of questions or took any action on them, or that she had any involvement with the September

11 response to those questions. Id. Similar allegations are absent with respect to the alleged

communications directly between Ms. Nicolas and Ms. Rodriguez. Id. ¶¶ 38–39. And because

the Amended Complaint does not allege that a claim was submitted to Ms. Rodriguez for final

decision, it likewise does not allege that Ms. Rodriquez, as contracting officer, issued a final

decision reviewable by this Court. At most, Plaintiffs point to the Division Chief’s September 11

email as evidence of a final decision, but the Division Chief was not the contracting officer.

These deficiencies are fatal, and as such, Plaintiffs’ CDA claim is dismissed.

D. Ms. Nicolas Does Not Have Standing to Pursue the Remaining § 1491(b)(1) Claim.

With all but the § 1491(b)(1) claim dismissed, the Court must address whether Ms. Nicolas

has standing to pursue such claim going forward. The Government contends that because WWHS

submitted the bid in this case, WWHS—and not Ms. Nicolas—is the only interested party in this

action. ECF No. 68 at 10. Plaintiffs argue, without any further explanation, that Ms. Nicolas has

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third-party standing to pursue the § 1491(b)(1) claim because, as sole owner, she has “a close

relationship” with WWHS, has “suffered an injury in fact,” and “there is some hinderance to the

first party filing its own claim.” ECF No. 67 at 16 (citing Powers v. Ohio, 499 U.S. 400, 410–11

(1991)). The Government’s argument is the correct one.

Axiomatic to bid protest jurisprudence is the notion that only an “interested party” has

standing to challenge contract awards under § 1491(b)(1). See Rex Serv. Corp. v. United States,

448 F.3d 1305, 1307 (Fed. Cir. 2006) (citation omitted). The issue of standing in bid protest cases

is controlled by the jurisdiction-granting language of § 1491(b)(1) itself, which “imposes more

stringent standing requirements than Article III.” Weeks Marine, Inc. v. United States, 575 F.3d

1352, 1359 (Fed. Cir. 2009). While the statute does not define “interested party,” the Federal

Circuit has held that “the parties encompassed by that term are limited to ‘actual or prospective

bidders or offerors’” who possess a “direct economic interest [that] would be affected by the award

of the contract or by failure to award the contract.”10 Rex Serv. Corp., 448 F.3d at 1307 (emphasis

in original) (citing Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir.

2001)).

WWHS’s standing is undisputed. See e.g., ECF No. 68 at 1. Ms. Nicolas, as owner and

President of WWHS, submitted a bid under the Solicitation through and on behalf of WWHS, and

thus WWHS is the actual bidder. ECF No. 57 ¶ 12; see id. ¶¶ 14, 24, 30, 37 (references to WWHS

as bidder); CGI Fed., Inc. v. United States, 779 F.3d 1346, 1348 (Fed. Cir. 2015). Similarly, the

Government does not dispute that WWHS—as an actual, disappointed bidder—had a direct

economic interest in the outcome of the Solicitation award. Weeks Marine, 575 F.3d at 1359.

10 Plaintiffs have not explained how the concept of third-party standing can be reconciled

with the standing requirements of § 1491(b)(1), nor have they cited any case law in which such

standing principles were applied to a bid protest claim.

25

Whether the owner of a business soliciting a government contract is an interested party

under § 1491(b)(1) has not been thoroughly fleshed out. In several cases, however, other judges

of the court have drawn a distinction between sole proprietors, who have been found to have

standing, and sole owners of limited liability entities, like Ms. Nicolas, who have not. Compare

Sims v. United States, 112 Fed. Cl. 808, 815–16 (2013) (holding sole proprietor had standing to

bring a § 1491(b) action in her own name), with Innovation Dev. Enters. of Am., Inc. v. United

States, No. 11-217 C, 2012 WL 251985, at *4 (Fed. Cl. Jan. 11, 2012) (denying standing to the

sole owner of a corporation where the corporation was the business entity that could have bid on

the contract, not the sole owner). The reason for drawing this distinction here is simple: WWHS,

as a limited liability company, is a legal entity distinct from Ms. Nicolas. Fla. Stat. § 605.0108

(2013); see ECF No. 57 ¶¶ 4–5.

Consequently, only WWHS has sufficiently pled standing in this matter, and thus, only

WWHS’s § 1491(b)(1) claim can move forward.

IV. CONCLUSION

For these reasons, the Government’s Motion to Dismiss in Part (ECF No. 60) is

GRANTED. All claims in Counts I and II—except for WWHS’s § 1491(b)(1) bid protest claim—

as well as Count III are DISMISSED for lack of subject matter jurisdiction. Additionally, Ms.

Nicolas is DISMISSED for lack of standing.

SO ORDERED.

Dated: September 1, 2021 /s/ Kathryn C. Davis

KATHRYN C. DAVIS

Judge

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