Opinion

Goodwill Industries of South Florida, Inc. v. United States

Court: United States Court of Federal Claims
Filed: Nov 7, 2021
Status: Published
Cited by: 0 cases
Authority: More cited than 21.9%

determining that the court lacks jurisdiction over speculative claims concerning the corrective action taken

How later courts described this case

determining that the court lacks jurisdiction over speculative claims concerning the corrective action taken
“The operative phrase ‘in connection with’ is very sweeping in scope.”
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)
explaining that the Court of Federal Claims “does not have jurisdiction over claims that are not ripe”

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

No. 21-1391C

Filed: October 20, 2021

Redacted Version Issued for Publication: November 7, 20211

* * * * * * * * * * * * * * * * ** *

GOODWILL INDUSTRIES OF SOUTH *

FLORIDA, INC., *

Protestor, *

v. *

UNITED STATES,

Defendant. *

* * * * * * * * * * * * * * * * **

Alan M. Grayson, Windermere, FL for protestor.

Eric E. Laufgraben, Department of Justice, Washington, DC, Trial Attorney,

Commercial Litigation Branch, Civil Division, for defendant. With him were Steven J.

Gillingham, Assistant Director, Commercial Litigation Branch, Martin F. Hockey, Jr.,

Acting Director, Commercial Litigation Branch, and Brian M. Boynton, Acting Assistant

Attorney General, Civil Division. Allison Colsey Eck, Defense Logistics Agency, Troop

Support, of counsel.

OPINION

HORN, J.

In the above-captioned pre-award bid protest, protestor Goodwill Industries of

South Florida, Inc. (Goodwill) filed a protest to “enjoin the award or continued

performance of any federal contract or contracts, or the modification of any federal

contract or contracts, awarded to or performed by entities other than Goodwill, for the

production (in whole or in part) of military equipment items known as” Army Combat Pants

and Army Hot-Weather Trousers. Goodwill further contends that it is the “mandatory

source of supply for” the Army Combat Pants and Army Hot-Weather Trousers and the

government’s “procurement of the Goodwill items from any source other than Goodwill is

a violation of procurement statutes and regulations.” Therefore, protestor argues, “as a

matter of law, the presence of the Hot-Weather Trousers and the Combat Pants on the

1 This Opinion was issued under seal on October 20, 2021. The parties were asked to

propose redactions prior to public release of the Opinion. This Opinion is issued with the

redactions that the parties proposed in response to the court’s request. Words which are

redacted are reflected with the notation: “[redacted].”

Procurement List requires that every federal agency, including DLA, purchase these items

from Goodwill.”

FINDINGS OF FACT

Javits-Wagner-O’Day Act and Implementing Regulations

Protestor Goodwill is a “qualified nonprofit agency for other severely disabled”

workers. See 41 U.S.C. § 8501(6) (2018). This definition is significant because it allows

Goodwill to produce products and services on a non-competitive basis. Defendant

explains that “[r]elevant to this case are non-competitive procurements pursuant to the

JWOD Act [Javits-Wagner-O’Day Act]. 41 U.S.C. ch. 85. The JWOD Act established the

AbilityOne program whereby agencies must procure designated products and services

on a non-competitive basis from qualified nonprofit agencies that provide employment

opportunities for blind individuals or individuals with severe disabilities.” The JWOD Act

is titled: “Committee for Purchase from People Who Are Blind or Severely Disabled.” 41

U.S.C. §§ 8501-06 (2018). The JWOD Act lists the purpose of the Act as “[t]o create a

Committee on Purchases of Blind-made Products, and for other purposes.” U.S. Statutes

at Large, 75 Cong. Ch. 697, June 25, 1938, 52 Stat. 1196 (June 25, 1938). The

Committee is now known as the U.S. AbilityOne Program.2

The regulations implementing the JWOD Act explain that

(a) It is the policy of the Government to increase employment and training

opportunities for persons who are blind or have other severe disabilities

through the purchase of commodities and services from qualified nonprofit

agencies employing persons who are blind or have other severe disabilities.

The Committee for Purchase from People who are Blind or Severely

Disabled (hereinafter the Committee) was established by the Javits–

Wagner—O’Day Act, Public Law 92–28, 85 Stat. 77 (1971), as amended,

41 U.S.C. 46–48c (hereinafter the JWOD Act). The Committee is

responsible for implementation of a comprehensive program designed to

enforce this policy.

2 As explained in a notice filed in the Federal Register:

The Committee for Purchase From People Who Are Blind or Severely

Disabled (the Committee) has deliberated and voted to change the name of

the JWOD Program to the AbilityOne Program. The name of the program is

being changed to AbilityOne to give a stronger, more unified identity to the

program and to show a connection between the program name and the

abilities of those who are blind or have other severe disabilities

AbilityOne Program, 71 Fed. Reg. 68492-01 (Nov. 27, 2006).

(b) It is the policy of the Committee to encourage all Federal entities and

employees to provide the necessary support to ensure that the JWOD Act

is implemented in an effective manner. This support includes purchase of

products and services published on the Committee's Procurement List

through appropriate channels from nonprofit agencies employing persons

who are blind or have other severe disabilities designated by the

Committee; recommendations to the Committee of new commodities and

services suitable for addition to the Procurement List; and cooperation with

the Committee and the central nonprofit agencies in the provision of such

data as the Committee may decide is necessary to determine suitability for

addition to the Procurement List.

41 C.F.R. § 51-1.1 (2021).3 The regulations implementing the JWOD Act additionally

explain that the “AbilityOne Program means the program authorized by the JWOD Act to

increase employment and training opportunities for persons who are blind or have other

severe disabilities through Government purchasing of commodities and services from

nonprofit agencies employing these person.” 41 C.F.R. § 51-1.3 (2021). Defendant notes

that “[o]ver 500 nonprofit agencies participate in the [U.S.] AbilityOne program and their

activities are coordinated through two centralized nonprofit agencies: SourceAmerica

coordinates nonprofit agencies that employ severely disabled individuals; and the

National Institute for the Blind coordinates nonprofit that employ blind individuals,” and

that “[t]he United States currently purchases over $4 billion in goods and services per

year through the [U.S.] AbilityOne program.”

The Code of Federal Regulations explains that

[t]he Committee is responsible for carrying out the following functions in

support of its mission of providing employment and training opportunities

for persons who are blind or have other severe disabilities and, whenever

possible, preparing those individuals to engage in competitive employment:

(a) Establish rules, regulations, and policies to assure effective

implementation of the JWOD Act.

(b) Determine which commodities and services procured by the Federal

Government are suitable to be furnished by qualified nonprofit agencies

The definitions in the JWOD Act explain that

[t]he terms “entity of the Federal Government” and “Federal Government”

include an entity of the legislative or judicial branch, a military department

or executive agency (as defined in sections 102 and 105 of title 5,

respectively) , the United States Postal Service, and a nonappropriated fund

instrumentality under the jurisdiction of the Armed Forces.

41 U.S.C. § 8501 (2018).

employing persons who are blind or have other severe disabilities and add

those items to the Committee's Procurement List. Publish notices of

addition to the Procurement List in the Federal Register. Disseminate

information on Procurement List items to Federal agencies. Delete items no

longer suitable to be furnished by nonprofit agencies. Authorize and

deauthorize central nonprofit agencies and nonprofit agencies to accept

orders from contracting activities for the furnishing of specific commodities

and services on the Procurement List.

and revise those prices in accordance with changing market conditions to

assure that the prices established are reflective of the market.

(d) Monitor nonprofit agency compliance with Committee regulations and

procedures.

(e) Inform Federal agencies about the AbilityOne Program and the statutory

mandate that items on the Procurement List be purchased from qualified

nonprofit agencies, and encourage and assist entities of the Federal

Government to identify additional commodities and services that can be

purchased from qualified nonprofit agencies. To the extent possible,

monitor Federal agencies’ compliance with JWOD requirements.

(f) Designate, set appropriate ceilings on fee paid to these central nonprofit

agencies by nonprofit agencies selling items under the AbilityOne Program,

and provide guidance to central nonprofit agencies engaged in facilitating

the distribution of Government orders and helping State and private

nonprofit agencies participate in the AbilityOne Program.

(g) Conduct a continuing study and evaluation of its activities under the

JWOD Act for the purpose of assuring effective and efficient administration

of the JWOD Act. The Committee may study, independently, or in

cooperation with other public or nonprofit private agencies, problems

relating to:

(1) The employment of the blind or individuals with other

severe disabilities.

(2) The development and adaptation of production methods

which would enable a greater utilization of these individuals.

(h) Provide technical assistance to the central nonprofit agencies and the

nonprofit agencies to contribute to the successful implementation of the

JWOD Act.

(i) Assure that nonprofit agencies employing persons who are blind will have

priority over nonprofit agencies employing persons with severe disabilities

in furnishing commodities.

41 C.F.R. § 51-2.2 (2021). The JWOD Act explains that for the Procurement List,

referenced in 41 C.F.R. § 51-2.2:

(a) Procurement list.--

(1) Maintenance of list.--The Committee shall maintain and publish in the

Federal Register a procurement list. The list shall include the following

products and services determined by the Committee to be suitable for the

Federal Government to procure pursuant to this chapter:

(A) Products produced by a qualified nonprofit agency for the

blind or by a qualified nonprofit agency for other severely

disabled.

(B) The services those agencies provide.

(2) Changes to list.--The Committee may, by rule made in accordance with

the requirements of section 553(b) to (e) of title 5, add to and remove from

the procurement list products so produced and services so provided.

41 U.S.C. § 8503(a) (2018) (emphasis in original). The JWOD Act also explains that

[a]n entity of the Federal Government intending to procure a product or

service on the procurement list referred to in section 8503 of this title shall

procure the product or service from a qualified nonprofit agency for the blind

or a qualified nonprofit agency for other severely disabled in accordance

with regulations of the Committee and at the price the Committee

establishes if the product or service is available within the period required

by the entity.

41 U.S.C. § 8504 (2018).The implementing regulations define the Procurement List as “a

list of commodities (including military resale commodities) and services which the

Committee has determined to be suitable to be furnished to the Government by nonprofit

agencies for the blind or nonprofit agencies employing persons with severe disabilities

pursuant to the JWOD Act and these regulations.” 41 C.F.R. § 51-1.3 (2021). The

implementing regulations also explain that the JWOD Act has a statutory mandate to

purchase from the Procurement List:

a) Nonprofit agencies designated by the Committee are mandatory sources

of supply for all entities of the Government for commodities and services

included on the Procurement List, as provided in § 51–1.2 of this chapter.

(b) Purchases of commodities on the Procurement List by entities of the

Government shall be made from sources authorized by the Committee.

These sources may include nonprofit agencies, central nonprofit agencies,

Government central supply agencies such as the Defense Logistics Agency

and the General Services Administration, and certain commercial

distributors. Identification of the authorized sources for a particular

commodity may be obtained from the central nonprofit agencies at the

addresses noted in § 51–6.2 of this chapter.

which are on the Procurement List to entities of the Government by contract

to order these commodities from the sources authorized by the Committee.

(d) Procedures for obtaining military resale commodities are contained in §

51–6.4 of this chapter.

(e) Contracting activities procuring services which have included within

them services on the Procurement List shall require their contractors for the

larger service requirement to procure the included Procurement List

services from nonprofit agencies designated by the Committee.

41 C.F.R. § 51-5.2 (2021). Therefore, pursuant to the JWOD Act and also the

implementing regulations, there is a “statutory mandate that items on the Procurement

List be purchased from qualified nonprofit agencies.” 41 C.F.R. § 51-2.2. According to the

statute, the “Committee shall maintain and publish in the Federal Register a procurement

list,” and the Procurement List includes “products and services determined by the

Committee to be suitable for the Federal Government to procure.” 41 U.S.C. § 8503(a).

The implementing regulations at 41 C.F.R. § 51-5.3 describe the “Scope of

requirement” for an item on the Procurement List:

(a) When a commodity is included on the Procurement List, the mandatory

source requirement covers the National Stock Number or item designation

listed and commodities that are essentially the same as the listed item. In

some instances, only a portion of the Government requirement for a

National Stock Number or item designation is specified by the Procurement

List. Where geographic areas, quantities, percentages or specific supply

locations for a commodity are listed, the mandatory provisions of the JWOD

Act apply only to the portion or portions of the commodity indicated by the

Procurement List.

(b) For services, where an agency and location or geographic area are listed

on the Procurement List, only the service for the location or geographic area

listed must be procured from the nonprofit agency, except as provided in §

51–6.14 of this chapter. Where no location or geographic area is indicated

by the Procurement List, it is mandatory that the total Government

requirement for that service be procured from a nonprofit agency.

addition does not affect contracts for the commodity or service awarded

prior to the effective date of the Procurement List addition or options

exercised under those contracts.

41 C.F.R. § 51-5.3 (2021). The regulations at 41 C.F.R. § 51-6.13 also provided that

(a) When a commodity on the Procurement List is replaced by another

commodity which has not been recently procured, and a nonprofit agency

can furnish the replacement commodity in accordance with the

Government's quality standards and delivery schedules, the replacement

commodity is automatically considered to be on the Procurement List and

shall be procured from the nonprofit agency designated by the Committee

at the fair market price the Committee has set for the replacement

commodity. The commodity being replaced shall continue to be included on

the Procurement List until there is no longer a Government requirement for

that commodity.

(b) If contracting activities desire to procure additional sizes, colors, or other

variations of a commodity after the commodity is added to the Procurement

List, and these similar commodities have not recently been procured, these

commodities are also automatically considered to be on the Procurement

List.

permitted to purchase commercial items that are essentially the same as

commodities on the Procurement List.

41 C.F.R. § 51-6.13 (2021).

U.S. AbilityOne Designations

On August 27, 2010, U.S. AbilityOne added to the Procurement List a series of

national stock numbers associated with the Multi- Camouflage Trouser. See Procurement

List Additions, 75 Fed. Reg. 52,724, 52,725 (Aug. 27, 2010). The addition stated, in part:

NPAs: ReadyOne Industries, Inc., El Paso, TX

Goodwill Industries of South Florida, Inc., Miami, FL

Contracting Activity: Department of the Army Research, Development, &

Engineering Command, Natick, MA.

Coverage: C-List for 50% of the requirement of the U.S. Army, as

aggregated by the Department of the Army Research, Development, &

Engineering Command, Natick, MA.

Id.

Defendant explains that “[a]fter adding 50% of the Army’s requirement for multi-

cam trousers for purchase by Army-Natick, the Commission extended that requirement

to additional products, either as replacement items (e.g.., combat pants) or as new

national stock numbers (e.g., female hot weather trousers),” and defendant notes that

“[a]ll items stemming from the Commission’s addition of the multi-cam trousers in 2010

are identified in the administrative record under PL No. 20105144.” (emphasis in original).

Protestor notes that the “Hot-Weather Trousers NSNs were not added to the Procurement

List all at once, but rather, over time.” The parties agree that the Army Combat Pants and

the Army Hot-Weather Trousers are on the Procurement List.

By way of example, on September 12, 2011, the Committee for Purchase from

People who are Blind or Severely Disabled, sent a Notice of Change to Procurement List

to the Army Contracting Command - Aberdeen Proving Ground, Natick Contracting

Division. The Notice of Change stated: “In accordance with 41 CFR 51-6.13 (a), the

Committee for Purchase From People Who Are Blind or Severely Disabled has approved

the establishment of the following replacement products on the Procurement List at the

prices indicated,” and listed a series of Army Combat Pants with the product name, NSN,

price, and relevant information. The Notice of Change, as it applies to the Army Combat

Pants, stated:

Product Name/NSN: Pants, Army Combat (ACP), OCP, XXL-L / 8415-MD-

001-0303

Product Description: Temperate climate combat pants for Army Combat

Uniform, in OCP camouflage with FR and Permethrin. UOI is PR.

Price Mech: Negotiated

Price Category/Unit of Issue: Normal/PR

FOB-Origin Price: $191.76

FOB-Destination Price: $192.36

PL Designation: C List

The Notice of Change to Procurement List concluded:

Coverage: C-List for 50% of the requirement of the U.S. Army, as

aggregated by the Army Contracting Command – Aberdeen Proving

Ground, Natick Contracting Division, Natick, MA

ReadyOne Industries, Inc., El Paso, TX, a nonprofit agency associated with

NISH, is authorized to accept orders from the Army Contracting Command

– Aberdeen Proving Ground, Natick Contracting Division, Natick, MA for its

requirement for the products listed above.

Goodwill Industries of South Florida, Inc., Miami, FL, a nonprofit agency

associated with NISH, is authorized to accept orders from the Army

Contracting Command – Aberdeen Proving Ground, Natick Contracting

Division, Natick, MA for its requirement for the products listed above.

Prices are effective on the date of this Notice and apply to any orders

received by the nonprofit agencies on or after those dates. Future prices will

be determined according to the price change mechanism indicated.

More recently, on January 11, 2021, U.S. AbilityOne Commission sent a Notice of

Addition to the Procurement List for the Army Contracting Command - Aberdeen Proving

Ground, Natick Contracting Division. The Notice of Addition stated in its entirety:

In accordance with 41 CFR 51-6.13(b), the U.S. AbilityOne Commission

(Commission) has determined that the following products are additional

sizes, colors, or other variations of products already on the Procurement

List (PL) and that these products have not recently been procured.

Accordingly, the products are automatically considered to be on the PL

[Procurement List] at the Fair Market Prices (FMP) indicated

Product Name: Trouser, Improved Hot Weather Combat Uniform

(IHWCU), Permethrin, Women's, Army

Product NSN Size

8415-01-687-6651 25-X Short

8415-01-687-6669 25-Short

8415-01-687-3100 25-Regular

8415-01-687-6659 28-A Short

8415-01-687-6201 28-Short

8415-01-687-6555 28-Regular

8415-01-687-6180 28-Long

8415-01-687-1971 31-X Short

8415-01-687-1339 31-Short

8415-01-687-1353 31-Regular

8415-01-687-6673 31-Long

8415-01-687-2126 31-X Long

8415-01-687-6147 35-Short

8415-01-687-2060 35-Regular

8415-01-687-1345 35-Long

8415-01-687-4018 35-X Long

The following information is applicable to all products listed above

Product Description: The Improved Hot Weather Combat Uniform

(IHWCU) trouser has one (1) button/buttonhole closure with seven (7) belt

loops along with a covered fly with three (3) buttons and buttonhole closure,

two (2) side hanging pockets, two (2) front side pleated cargo pockets with

three (3) buttons/two (2) buttonholes closure flaps. The trousers include a

double needle seat patch and knee reinforcement patches and a mesh

fabric attached on the inside of the trousers at the bottom of the legs as

inner cuffs. Both the bottom of the trousers legs and the inner cuffs have

drawstrings. The trouser is treated with permethrin, wind resistant, and

wrinkle free. UOI is PR.

Unit of issue: PR

FMP Category: Post Treated Garment - Rapid Fielding

FMP Change Mechanism: Negotiated

FOB Origin FMP: $62.34

FOB Destination FMP: $62.50

In accordance with 41 51 CFR 51-2.7, change to the FMP outside of the

approved methodology above and provisions in the U.S. AbilityOne Pricing

Policy 51.610, Pricing AbilityOne Products, must be approved by the

Commission before a contract is awarded or an existing contract is

modified.

Distribution: C-List

Contracting Activity: Army Contracting Command - Aberdeen Proving

Ground, Natick Contracting Division

Mandatory for: 50% of the requirement of the Department of Defense[4]

Designated Source of Supply: Goodwill Industries of South Florida, Inc.,

Miami, FL, a nonprofit agency associated with SourceAmerica, is

authorized to accept orders for the products listed above.

This addition to the Procurement List is effective the date of this notice. In

accordance with 41 CFR 51-5.3, this change does not affect contracts for

the product awarded prior to the effective date of the Procurement List

addition or options exercised under those contracts. Please direct questions

regarding this Notice to Operations@abilityone.gov.

4 The defendant in its motion for judgment on the Administrative Record contends that

“[t]he Commission recently identified this provision as erroneous because the requirement

applies to ‘50% of the requirement of the U.S. Army.’ The Commission intends to issue a

correction.”

(capitalization and emphasis in original).5

As noted above, Goodwill is a “qualified nonprofit agency for other severely

disabled” workers. Protestor argues that “[a]ccording to the Procurement List maintained

by the Committee for Purchase from People Who Are Blind or Severely Disabled a/k/a

AbilityOne, Goodwill is the mandatory source of supply for the Combat Pants and the Hot-

Weather Trousers.” (internal reference omitted). Protestor’s complaint indicates that

“Goodwill has received, has performed, and is performing military contracts for the

Goodwill items. Goodwill has been producing the ACP [Army Combat Pants] for a

decade.”6 Protestor also alleges that “Goodwill also has received Contract No. W911QY-

21-C-0042, to supply the Women’s IHWCU Trousers,” and both “[t]he ACP and the

Women’s IHWCU Trousers are in production at Goodwill.” The government agrees,

indicating “[a]fter the Commission allocated a portion of Army-Natick’s requirement for

combat pants to the Procurement List, Army-Natick issued a series of product

development contracts to Goodwill,” and notes that the “Army-Natick’s most-recent

contract with Goodwill called for 68,991 pants to be delivered in monthly installments in

quantities ranging from 2,000 to 6,370,” and the “Army-Natick also entered into a contract

with Goodwill to produce the female hot weather trousers to support its product

development efforts.” The government indicates that “[w]hen Army-Natick proposed to

add a portion of its requirement to the Procurement List, its estimated annual quantity

was 86,688 trousers.”

DLA Procurements

The government explains that “DLA is a ‘defense agency’ under the authority,

direction, and control of the Department of Defense.” (citing 10 U.S.C. §§ 191-92; Dep’t

of Defense Directive (DoDD) 5105.22 (June 29, 2017)). The government also indicates

that:

The agency’s primary mission is to “manage[s] the global supply chain—

from raw materials to end user to disposition—for the Army, Marine Corps,

Navy, Air Force, Space Force, Coast Guard, 11 combatant commands,

other federal agencies, and partner and allied nations.” DLA Troop Support

requirements are unique given that it is responsible for “manag[ing] the

5 Protestor’s complaint alleges the same notice was provided to Goodwill in a letter from

AbilityOne on April 8, 2021. The Administrative Record also includes a Notice of Addition

to the Procurement List for the Army Contracting Command - Aberdeen Proving Ground,

Natick Contracting Division similarly dated April 8, 2021. The April 8, 2021 Notice of

Addition to the Procurement List changed a single Product NSN: 8415-01-687-6555, and

noted: “Product Name: Trouser, Improved Hot Weather Combat Uniform (IHWCU),

Permethrin, Women's, Army, 28-Regular.” (capitalization and emphasis in original).

6Protestor identifies the following Combat Pants contract Goodwill has performed:

W911QY-11-F-0170; W911QY-12-F-0095; W911QY-14-F-0067; W911QY-14-F-0136;

W911QY-18-C-0115; W911QY-20-C-0024.”

supply chains for food, textiles, construction material, industrial hardware

and medical supplies and equipment, including pharmaceuticals.” Within

DLA Troop Support, the clothing and textiles supply chain “outfit[s] every

soldier, sailor, airman and Marine around the world, from their first day of

service in boot camp, to camouflage uniforms worn on the battlefield and

service dress uniforms.”

(citations omitted). The Code of Federal Regulations at 48 C.F.R. § 8.703 notes that

“GSA, DLA, and VA are central supply agencies from which other Federal agencies are

required to purchase certain supply items on the Procurement List.” 48 C.F.R. § 8.703

(2021). Defendant contends that “[h]aving completed the technical design of the combat

pants and female hot weather trousers, Army-Natick transferred these products to DLA

Troop Support for procurement at sustainment levels.”

Army Hot-Weather Trousers

The government explained “DLA Troop Support intends to award two IDIQ

contracts—one restricted to small businesses, the other restricted to HUBZone

businesses—to procure the female hot weather trousers, and to select contractors based

on best value.” DLA has not yet issued the solicitation for Army Hot-Weather Trousers.

DLA, however, has drafted the Individual Acquisition Plan for the Army Hot-Weather

Trousers, and the Individual Acquisition Plan explained:

The solicitation will result in the award of two Fixed Price Indefinite-Delivery,

Indefinite-Quantity (IDIQ)-type contracts for a minimum and maximum as

detailed below. Individual delivery orders will be placed based on the

Government’s need for the items. The contracts will have a lead-time of 180

days for the initial orders and 150 days for subsequent orders.

The Individual Acquisition Plan for the Army Hot-Weather Trousers stated that

[t]he quantities available and set-asides are based on the results of market

research. The quantities available fall within the range of

minimum/estimated/maximum production quantity results received as part

of market research. Lots were designed to be small enough in order to allow

for maximum participation by small businesses, and to ensure that multiple

sources are available to provide for the continuous availability of reliable

sources of supplies.

The Individual Acquisition Plan for the Army Hot-Weather Trousers continued:

The solicitation will be evaluated utilizing the Best Value Trade-off Source

Selection Method. The Government will make award to the responsible

offeror(s) whose offer conforms to the solicitation and is most advantageous

to the Government, cost or price, and other evaluation factors considered.

The Government will award the contract only to concerns whose technical

proposal establish that they can meet the requirements of the Government.

For this solicitation, all evaluation factors other than cost or price, when

combined are significantly more important than cost or price. As other

evaluation factors become more equal, the evaluated cost or price becomes

more important.

(capitalization in original). The Individual Acquisition Plan for the Army Hot-Weather

Trousers noted:

Adequate competition is expected for this current requirement as DLA

Troop Support received numerous responses to a market survey and has

historically received numerous offers for similar items. Each lot is structured

in response to the market survey, creating an expectation of at least two

viable offers on each lot. Adequate competition necessary for price

reasonableness determinations is expected.

Army Combat Pants

On January 28, 2021, the Defense Logistics Agency (DLA) issued a solicitation for

Army Combat Pants. The Individual Acquisition Plan for the Army Combat Pants

explained:

The Government intends to award two Indefinite Delivery, Indefinite

Quantity (IDIQ) Type Contracts (one for each Lot) to two different

contractors. It is noted that in order to ensure that multiple sources are

available for Advanced Combat Pants and to ensure the continuous

availability of reliable sources of supplies, the Government reserves the

right to exclude, under the authority of FAR 6.202, an awardee under one

of these portions from being eligible for award under the other portion. Each

resultant contract will contain a five (5) year ordering period with tiered

pricing as detailed in bullet 2 above. This will permit the Government

flexibility in delivery schedules and ordering/shipping as requirements

materialize, with continuing access to the item on short notice as demand

increases. This will also reduce cost in the areas of procurement,

administration, and storage, rather than requiring large, pre-programmed,

periodic deliveries to depot stock. In addition, a price analysis will be

accomplished to determine if all five tier prices are fair and reasonable.

The Army Combat Pants solicitation indicated that “[t]he Government intends to make two

separate awards for the Advanced Combat Pants; 50% Unrestricted and 50% Total Small

Business Set-Aside.” (capitalization in original). The solicitation continued:

The award made under this solicitation will result in a firm-fixed price,

indefinite delivery, indefinite quantity type contract that will have a five (5)

year ordering period. Within the five (5) year ordering period, there will be

five (5) tier periods. Acceptance of each of the five (5) tiers is mandatory.

Offerors are to provide an offered price for each of the five (5) 12-month tier

periods. Failure to indicate acceptance of each tier by providing a unit price

for each below may be deemed as non-acceptance of the terms and

conditions and may result in the rejection of the offeror's entire proposal.

The solicitation also explained that “[t]his acquisition is utilizing BEST VALUE TRADEOFF

Source Selection Procedures, FAR 15.101-1. As such, the Government intends to make

an award to the firm that demonstrates the greatest probability of success and that will

perform in a manner which will nest [sic] meet the Governments [sic] stated

requirements.” (capitalization in original). Notably, as explained in the defendant’s cross-

motion for judgement on the Administrative Record, “the procurement is currently on hold

because the Army is making technical changes to the combat pants’ design specification.”

Once defendant decided to put the Army Combat Pants solicitation “on hold,” DLA issued

an amendment to the Army Combat Pants solicitation which stated:

THIS SOLICITATION IS HEREBY EXTENDED INDEFINITELY. DLA IS

WAITING FOR SPECIFICATION CHANGES TO THE PURCHASE

DESCRIPTION AND TECHNICAL DATA. A SUBSEQUENT AMENDMENT

WILL BE ISSUED WITH UPDATED TECHNICAL INFORMATION AND A

NEW CLOSING DATE WILL BE ESTABLISHED.

(capitalization in original). The amendment provided no further information about what the

specification changes would be or what additional technical data was required.

Procedural History

On May 24, 2021, Goodwill filed its bid protest complaint, which has three very

similar counts. In count one, protestor “seeks injunctive relief prohibiting federal

procurement of the Goodwill items” “from anyone other than Goodwill,” in count two,

Goodwill “seeks injunctive relief prohibiting DLA from procurement of the Goodwill items”

“from anyone other than Goodwill,” and in count three, protestor argues “[b]ecause

Goodwill is the mandatory source of supply for the Goodwill items, if DLA can issue

solicitations for the Goodwill items at all, DLA should require awardees under the

Solicitations to acquire the Goodwill items from Goodwill. DLA has not done so. This

violates 41 C.F.R. § 51-5.2.” Therefore, Goodwill asks the court to enjoin “federal

acquisition of the Goodwill items, and any replacement item or variation of the Goodwill

items, and any item that is ‘essentially the same’ or ‘similar,’ from any source other than

Goodwill.”

The day after protestor filed the complaint the court held an initial hearing with the

parties, and set a schedule for briefing cross-motions for the judgment on the

Administrative Record. In protestor’s motion for judgment on the Administrative Record,

Goodwill argues that if an item is on the AbilityOne Procurement List, it creates a

mandatory source of supply for the government, including DLA. Furthermore, according

to protestor: “Goodwill maintains that as the mandatory source of supply, it should not

have been required to submit a proposal to DLA in order to be awarded this requirement.”

Goodwill also contends that “the presence of the Hot-Weather Trousers and the Combat

Pants on the Procurement List requires that every federal agency, including DLA,

purchase these items from Goodwill.” In the defendant’s cross-motion for judgment on

the Administrative Record, defendant argues that “Goodwill cannot show that the

solicitation violates an applicable procurement statute or regulation.” Defendant argues

that

Goodwill’s protest rises and falls on its argument that the addition of any

product on the Procurement List is without limitation such that all portions

of the Government must procure 100% of its requirements for that product

through the AbilityOne program. But no procurement statute or regulation

imposes that categorical mandate. On the contrary, at least three

Commission regulations authorize the Commission to place scope

limitations by adding portions of a product requirement to the Procurement

List.

(internal reference omitted). Specifically, the government contends that “[t]he

procurement list applies only to Army-Natick’s procurements of 50% of Army

requirements for Combat Pants and Female Hot Weather Trousers,” and “[t]he

Commission’s 2006 clarification further demonstrates that DLA Troop Support is not

bound to purchase the Combat Pants and Female Hot Weather Trousers through The

AbilityOne Program.” In protestor’s reply brief, protestor again argues that the Army

Combat Pants and the Army Hot-Weather Trousers “are on the Procurement List for all

Agencies, Including DLA,” and argues that “[t]he defendant has concocted a fictive

regulatory scheme that is belied by governing statutes and regulations, as well as the

facts of this case.” After the parties fully briefed the cross-motions for judgment on the

Administrative Record, the court held oral argument.

DISCUSSION

As noted above, protestor Goodwill seeks to “enjoin the award or continued

performance of any federal contract or contracts, or the modification of any federal

contract or contracts, awarded to or performed by entities other than Goodwill, for the

production (in whole or in part) of military equipment items known as” Army Combat Pants

and Army Hot-Weather Trousers.

The court notes that “[s]ubject-matter jurisdiction may be challenged at any time

by the parties or by the court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354

(Fed. Cir. 2004) (Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)),

reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); see

also St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 992-93 (Fed. Cir. 2019)

(“[T]he court must address jurisdictional issues, even sua sponte, whenever those issues

come to the court’s attention, whether raised by a party or not, and even if the parties

affirmatively urge the court to exercise jurisdiction over the case.” (citing Foster v.

Chatman, 136 S. Ct. 1737, 1745 (2016)); Int’l Elec. Tech. Corp. v. Hughes Aircraft Co.,

476 F.3d 1329, 1330 (Fed. Cir. 2007); Haddad v. United States, 152 Fed. Cl. 1, 16 (2021);

Fanelli v. United States, 146 Fed. Cl. 462, 466 (2020).

The United States Court of Appeals for the Federal Circuit has stated that the Court

of Federal Claims’ jurisdiction over “any alleged violation of statute or regulation in

connection with a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1)

(2018), “provides a broad grant of jurisdiction because ‘[p]rocurement includes all stages

of the process of acquiring property or services, beginning with the process for

determining a need for property or services and ending with contract completion and

closeout.’” Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1381 (Fed.

Cir. 2012) (emphasis in original) (quoting Res. Conservation Grp., LLC v. United States,

597 F.3d at 1244 (quoting 41 U.S.C. § 403(2))); see also Rockies Exp. Pipeline LLC v.

Salazar, 730 F.3d 1330, 1336 (Fed. Cir. 2013), reh’g denied (Fed. Cir. 2014); Distrib.

Solutions, Inc. v. United States, 539 F.3d 1340, 1346 (Fed. Cir.) (“[T]he phrase, ‘in

connection with a procurement or proposed procurement,’ by definition involves a

connection with any stage of the federal contracting acquisition process, including ‘the

process for determining a need for property or services.’”), reh’g denied (Fed. Cir. 2008);

RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (“The

operative phrase ‘in connection with’ is very sweeping in scope.”). Recently, a Judge of

the United States Court of Federal Claims reiterated that

the Federal Circuit has adopted the statutory definition of “procurement”

found in 41 U.S.C. § 403(2), now codified at 41 U.S.C. § 111. Distributed

Sols., Inc. v. United States, 539 F.3d 1340, 1345-46 (Fed. Cir. 2008). That

statutory definition provides that “the term ‘procurement’ includes all stages

of the process of acquiring property or services, beginning with the process

for determining a need for property or services and ending with contract

completion and closeout.” 41 U.S.C. § 111.

Squire Sols., Inc. v. United States, No. 21-1494C, 2021 WL 4805540, at *9 (Fed. Cl. Sept.

30, 2021).

As noted above, for the Army Hot-Weather Trousers, although the government has

not issued a solicitation yet, DLA has identified the need for the Army Hot-Weather

Trousers and has issued the Individual Acquisition Plan for the Army Hot-Weather

Trousers. For the Army Combat Pants, DLA has issued the solicitation for the Army

Combat Pants. For both items, therefore, DLA has, at a minimum, begun the process of

acquiring property, and, therefore, this court has jurisdiction. See Distrib. Solutions, Inc.

v. United States, 539 F.3d at 1346.

Although the court has jurisdiction under the Tucker Act for a procurement for the

Army Hot-Weather Trousers and the Army Combat Pants, the court must still determine

if protestor’s allegations are ripe. Ripeness is a doctrine of justiciability that concerns the

readiness of an issue for judicial review. See Abbott Labs. v. Gardner, 387 U.S. 136, 149

(1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also

Fisher v. United States, 402 F.3d 1167, 1176 (Fed. Cir. 2005). The ripeness doctrine

“circumscribes the court’s review to cases that present realized rather than anticipated or

hypothetical injuries.” Madison Servs., Inc. v. United States, 90 Fed. Cl. 673, 678 (2009).

The purpose of the ripeness doctrine is “to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a concrete way by the

challenging parties.” Abbott Labs. v. Gardner, 387 U.S. at 149; see also NSK Ltd. v. United

States, 510 F.3d 1375, 1384 (Fed. Cir. 2007). In considering the justiciability of a bid

protest, the United States Court of Appeals for the Federal Circuit has held, “[a] claim is

not ripe for judicial review when it is contingent upon future events that may or may not

occur.” Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1383 (Fed. Cir.

2012). In the bid protest context, anticipation of a future procurement violation is not

sufficient to make a claim ripe. See Brocade Commc’n Sys., Inc. v. United States, 120

Fed. Cl. 73, 79 (2015); see also Tenica & Assocs., LLC v. United States, 123 Fed. Cl.

166, 172 (2015). To assert ripeness, “there are two basic factors: ‘(1) the fitness of the

issues for judicial decision[;] and (2) the hardship to the parties of withholding court

consideration.’” See Sys. Application & Techs., Inc. v. United States, 691 F.3d at 1383-

84 (quoting Abbott Labs. v. Gardner, 387 U.S. at 149); see also Caraco Pharm. Labs.,

Ltd. v. United States, 527 F.3d 1278, 1294-95 (Fed. Cir. 2008). “If a claim is not yet ripe

for judicial review, it should generally be dismissed without prejudice.” Shinnecock Indian

Nation v. United States, 782 F.3d 1345, 1350 (Fed. Cir. 2015); see also Morris v. United

States, 392 F.3d 1372, 1375 (Fed. Cir. 2004) (explaining that the Court of Federal Claims

“does not have jurisdiction over claims that are not ripe”). It is protestor’s burden to

establish ripeness. See Harris Patriot Healthcare Sols., LLC v. United States, 95 Fed. Cl.

585, 596 n.17 (2010); see also Melwood Horticultural Training Ctr., Inc. v. United States,

151 Fed. Cl. 297, 307 (2020).

The first factor “becomes a question of whether the challenged conduct constitutes

a final agency action.” Sys. Application & Techs., Inc. v. United States, 691 F.3d at 1384;

see also Jacobs Tech. Inc. v. United States, 131 Fed. Cl. 430, 446 (2017) (“First, with

respect to fitness for judicial review, the court must determine ‘whether the challenged

conduct constitutes a final agency action.’ Sys. Application & Techs., 691 F.3d at 1384.”).

“[A]n agency decision is not ripe for judicial review until the allegedly offending agency

has adopted a final decision.” See NSK Ltd. v. United States, 510 F.3d at 1384. To be

considered final, an agency’s decision must mark the consummation of the agency’s

decision-making process and cannot be tentative or interlocutory. See id.; see also Sys.

Application & Techs., Inc. v. United States, 691 F.3d at 1384; Madison Servs., Inc. v.

United States, 90 Fed. Cl. at 678. Also, the agency action must be one by which rights or

obligations have been determined or from which legal consequences will flow. Sys.

Application & Techs., Inc. v. United States, 691 F.3d at 1384.

Regarding the second factor, the hardship to the parties, the court considers

whether withholding court consideration would have an “immediate and substantial

impact” on the protestors. Caraco Pharm. Labs., Ltd. v. United States, 527 F.3d at 1295.

“The role of the federal courts is to provide redress for injuries that are concrete in both a

qualitative and temporal sense.” See Shinnecock Indian Nation v. United States, 782 F.3d

at 1351 (internal quotation omitted). “The mere possibility of harm is insufficient.” Jacobs

Tech. Inc. v. United States, 131 Fed. Cl. at 446. Similarly, “[a]bstract, avoidable or

speculative harm is not enough to satisfy the hardship prong.” Pernix Grp., Inc. v. United

States, 121 Fed. Cl. 592, 599 (2015). “In the bid protest context, there is no measureable

hardship, at the time of the protest, flowing from a future, hypothetical agency decision

adverse to the protestor.” Id. “Unlike the standard for obtaining injunctive relief, which

requires a showing of irreparable harm, the standard for ripeness requires a lesser

showing of hardship.” Sys. Application & Techs., Inc. v. United States, 691 F.3d at 1385.

For the Army Hot-Weather Trousers, defendant explained that “DLA Troop Support

intends to award two IDIQ contracts—one restricted to small businesses, the other

restricted to HUBZone businesses—to procure the female hot weather trousers, and to

select contractors based on best value.” Although DLA has drafted the Individual

Acquisition Plan for the Army Hot-Weather Trousers, DLA has not yet issued the

solicitation for the Army Hot-Weather Trousers. As noted above, the Individual Acquisition

Plan explained: