Opinion

L3 Technologies, Inc. Communication Systems-West v. United States

Court: United States Court of Federal Claims
Filed: Jul 22, 2022
Status: Published
Cited by: 0 cases
Authority: More cited than 22.9%

“‘The Court of Federal Claims, though an Article I court, . . . applies the same standing requirements enforced by other federal courts created under Article III.’”

How later courts described this case

“‘The Court of Federal Claims, though an Article I court, . . . applies the same standing requirements enforced by other federal courts created under Article III.’”
“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2004
explaining that a federal court must satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case
“An objection to a court's subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506)

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

No. 21-1819C

Filed: January 31, 2022

Redacted Version Issued for Publication: July 22, 20221

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

L3 TECHNOLOGIES, INC. *

COMMUNICATION SYSTEMS-WEST, *

Protestor,

v. *

UNITED STATES,

Defendant, *

NORTHROP GRUMMAN SYSTEMS *

CORPORATION, *

Defendant-Intervenor. *

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

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

protestor. With him were Mark D. Colley, Kara L. Daniels, Michael D. McGill, Thomas

A. Pettit, Trevor G. Schmitt, and Aime JH Joo, Arnold & Porter Kaye Scholer LLP,

Washington, DC.

Steven M. Mager, Senior Trial Counsel, Department of Justice, Commercial

Litigation Branch, Civil Division, Washington, DC, for defendant. With him were Douglas

K. Mickle J., Assistant Director, Commercial Litigation Branch, Patricia M. McCarthy,

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

General, Civil Division. Theresa M. Francis and Thy Nguyen, Department of the Navy,

of counsel.

Jason A. Carey, Covington & Burling LLP, Washington, DC, for intervenor. With

him were Kayleigh M. Scalzo, J. Hunter Bennett, Andrew R. Guy, Peter B. Terenzio

III, and Paul Rowley, Covington & Burling LLP, Washington, DC.

1 This Opinion was issued under seal on January 31, 2022. 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].” The delay in publication of the

redacted Opinion was due to related court proceedings.

OPINION

HORN, J.

In the above-captioned bid protest, protestor L3 Technologies, Inc.

Communication Systems-West (L3Harris CSW) “challenges the implementation by the

Department of the Navy, Naval Air Systems Command of an arbitrary U[nited] S[tates]

Government Accountability Office [GAO] decision. The GAO decision, in violation of

procurement law and without reasoned basis, sustains, in part, the procedurally and

substantively deficient bid protests of Northrop Grumman Systems Corporation-Mission

Systems against the lawful Navy awards to L3Harris CSW . . . under Solicitation Nos.

N00019-19-R0069 and N00019-19-R0069-A.” (internal references omitted). As

discussed below, the Navy declined to fully implement the GAO recommendations,

specifically declining to re-open discussions, request revised proposals, evaluate

proposals consistent with the evaluation criteria, and make a new source selection

decision. L3Harris CSW had filed a bid protest in this court prior to the Navy’s final

decision to proceed with its original awards to L3Harris CSW. Thereafter, defendant and

intervenor, Northrop Grumman Systems Corp. (Northrop), filed motions to dismiss

L3Harris CSW’s protest as lacking standing and as moot.

FINDINGS OF FACT

The procurements at issue in this protest have a lengthy procedural history, only

some of which is relevant to the motions to dismiss currently under review in this protest

and this Opinion. Therefore, only the following limited facts are included below.

By way of background, the GAO explained:

On November 17, 2017, the Navy issued a broad agency announcement

(BAA) No. N0019-18-R-0008 for the award of demonstration of existing

technologies (DET) contracts to gather information for development . . . . In

October 2018, the agency awarded two DET contracts, one to Northrop and

a second to L3 Technologies, Inc. . . . The data gathered from both DET

contracts aided the Navy in drafting specifications for the NGJ-LB CB-1

procurement at issue in this case. While the contractors were performing

the DET contracts, the Navy began drafting the CB-1 specifications. To that

end, on May 15, 2019, the Navy released a request for information (RFI) to

industry, describing the NGJ-LB program and draft requirements. The RFI

was part of the Navy’s market research to evaluate the feasibility of

conducting an unrestricted procurement, as well as its continued pursuit of

data for the development of the CB-1 specifications.

Northrop Grumman Sys. Corp.--Mission Sys., B-419560.3, 2021 WL 4054164, at *1

(Comp. Gen. Aug. 18, 2021) (footnotes and internal references omitted).

On September 9, 2019, the Navy issued Solicitation No. N00019-19-R0069 (CB-1

RFP),2 for the design, development, and manufacture of prototypes for the Navy. As noted

by the GAO, “[t]he resulting contract will require the successful firm to ‘design, develop,

build, integrate, test, and maintain’ operational prototypes” for the Navy. Id.

The CB-1 RFP contemplated “the award of a single cost-plus-incentive-fee

contract to the offeror that provides the best value to the government considering two

factors: technical and cost.” id., and with the Technical factor being significantly more

important than the Cost factor. The winning proposal, according to the CB-1 RFP, “must

demonstrate to the Government’s satisfaction that the Offeror will provide a program that

will ensure the successful accomplishment of the solicitation requirements and overall

program objectives.”

The Technical factor consisted of eleven elements that “are not individually

weighted and will be evaluated as a whole.” The CB-1 RFP described the Technical

Rating as “an assessment of compliance with the solicitation requirements and merit

which considers the benefits and detriments related to program performance and

operations.”

The CB-1 RFP also provided that the “[f]ailure to address part or parts of the

technical factor caused by a lack of information may be assessed as a weakness,

significant weakness or multiple significant weaknesses,” and a “combination of

significant weaknesses that increase the risk of unsuccessful contract performance to an

unacceptable level may be considered a deficiency.” “The Cost factor included a

determination of total evaluated cost, which would be calculated by adding together

various cost plus incentive fee and firm fixed price CLINs, plus the total evaluated cost

from the RFP addendum.”

Two offerors, the protestor L3Harris CSW and the intervenor Northrop, submitted

proposals in response to the CB-1 RFP and the Addendum RFP, and on February 25,

2020, the Navy established a competitive range that included both L3Harris CSW and

Northrop. As indicated in the protestor’s complaint: “Between February 2020 and October

2020, the Agency conducted ten rounds of discussions with L3Harris CSW and Northrop,

issuing a total of 971 evaluation notices (‘ENs’) ‘with an additional 350 ENs issued for the’

Addendum RFP and requesting multiple revised proposals. The Agency closed

discussions on October 29, 2020.” Subsequently on November 5, 2020, L3Harris CSW

and Northrop submitted their final proposal revisions.

2 The parties, as well as the GAO, refer to Solicitation No. N00019-19-R0069 as “CB-1

RFP.” Similarly, the parties and the GAO refer to Solicitation No. N00019-19-R0069-A as

the “Addendum RFP.” The court adopts the same terminology in this Opinion, and refers

to Solicitation No. N00019-19-R0069 as the CB-1 RFP, and Solicitation No. N00019-19-

R0069-A as the Addendum RFP. The GAO noted that the Navy issued the Addendum

RFP as a separate solicitation; “however, the RFP provided that the Navy would award

contracts for the CB-1 RFP and the Addendum RFP to one offeror.” Northrop Grumman

Sys. Corp.--Mission Sys., 2021 WL 4054164, at *1.

In the January 21, 2021 debriefing the Navy provided the following chart comparing

the L3Harris CSW and Northrop proposals:

Factor L3Haris CSW Northrop

Rating Outstanding Unacceptable

Technical

Risk Moderate Unacceptable

Price $544.4 Million $496.0 Million

Terms and Conditions No issues No issues

Awardability Awardable Not Awardable

As indicated in L3Harris CSW’s bid protest complaint:

L3Harris CSW earned [redacted] strengths under the Technical Factor—

with “at least one strength in each element that could award a strength”—

demonstrating “its exceptional approach” and resulting in an Outstanding

Technical Compliance rating. . . . “The Government’s analysis of [L3Harris

CSW]’s design concluded that [redacted] are projected to meet

requirements.” L3Harris CSW's Moderate Risk rating resulted from “the

compilation of [redacted] significant weaknesses and [redacted] risk

reducers.” L3Harris CSW's risk reduction efforts gave the SSAC confidence

that L3Harris CSW will “overcome these risks with special contractor

emphasis and close Government monitoring.”

(internal references omitted).

By contrast, as indicated in L3Harris CSW’s bid protest complaint:

The Agency assigned Northrop Unacceptable Technical and Risk ratings

based on the compilation of seven significant weaknesses . . . and a

deficiency for Addendum RFP Section 2.4.7. The SSAC noted “six risk

reducers” for Northrop “that do not mitigate any of the significant

weaknesses or deficiency.” The Unacceptable ratings rendered Northrop's

proposal ineligible for award.

(internal references omitted).

On December 15, 2020, the Source Selection Authority concluded: “Any capability

that has the potential to significantly increase the Navy's air superiority, while reducing

mission load is well within the moderate risk associated with this design and development

program. Therefore, I believe L3H’s NGJ-LB proposal does represent the best value to

the Government.” L3Harris CSW, therefore, was awarded both contracts pursuant to the

CB-1 RFP and the Addendum RFP on December 18, 2020.

As noted in L3Harris CSW’s complaint, Northrop subsequently “filed eight protests

and supplemental protests, including conflict of interest allegations (against the former

acting Secretary of the Navy, a retired admiral, and a Navy electronics engineer) and

technical evaluation challenges.” Relevant to the current bid protest in this court are two

decisions issued by the GAO on August 18, 2021,3 the first of which alleged a conflict of

interest involving [redacted], a former Navy official who was involved in both the DET

contracts and the NGJ-LB procurement during his time at the Navy, and who presently

works for L3Harris CSW. In the United States Court of Federal Claims Northrop has

alleged “[redacted] began pursuing employment with L3Harris in August 2019, during

performance of the DET contracts and approximately one month before the Navy issued

the CB-1 RFP,” “[redacted] accepted the job offer from L3Harris on October 1, 2019,” and

“[d]uring the time in which he was pursuing — and after he accepted — employment with

L3Harris, [redacted] worked on the CB-1 RFP and DET contracts on a ‘full time’ and

uninterrupted basis. He served as the Navy’s foremost technical expert” on the subject

matter of the contracts at issue in the above captioned protest.

On May 10, 2021, Northrop filed a protest with GAO “alleging that [redacted] failure

to recuse from his work on the CB-1 RFP and DET contracts while he pursued — and

after he accepted — employment with L3Harris created a conflict of interest and

appearance of impropriety under FAR 3.101-1.” In the GAO decision, the GAO indicated:

The record shows, and the agency does not dispute, that during the period

of August through early October of 2019, X[4] was negotiating for

employment with L3Harris while actively participating in the development of

the CB-1 specifications, and working closely with Northrop and L3Harris on

the performance of their DET contracts. X engaged in this conduct without

qualification or reservation notwithstanding the prohibition of FAR section

3.104-2(b), and the related applicable government ethics rules identified

under this FAR provision, which provide that a person should be disqualified

from participating substantially in an acquisition while negotiating for

employment with an offeror such as L3Harris. In defense of the award, the

agency essentially argues that X’s actions had no impact on the

competition. According to the agency any perceived conflict associated with

X’s employment negotiations did not taint the competition because his work

on the DET contract and the CB-1 specifications was limited and had no

3 As explained in protestor’s bid protest complaint, also on August 18, 2021, the GAO

“dismissed and denied” Northrop’s B-419557.2 and B-419557.3 protests relating to the

Addendum RFP, “upholding the Navy’s decision that Northrop was technically

unacceptable and thus ineligible for award under either contract based on Northrop’s

failure to propose an approach that could meet the Addendum RFP requirements.”

4 In the publicly available GAO decision, the GAO uses “X” to refer to [redacted].

discernable impact on the evaluation of Northrop’s and L3Harris’s

proposals. Based on our review of the record, we conclude that X’s actions

created the appearance of an unfair competitive advantage in favor of

L3Harris and that the agency's consideration of the conflict was

unreasonable. As detailed below, the record reflects X’s extensive

participation in developing the requirements for the CB-1 RFP at the same

time he engaged in employment negotiations with L3Harris, a known

potential competitor for the CB-1 procurement, and ultimate awardee. We

reject the agency’s conclusion that any apparent conflict did not have an

impact on the competition because the conclusion was without a reasonable

basis. We therefore sustain the protest.

Northrop Grumman Sys. Corp.--Mission Sys., 2021 WL 4054164, at *6 (footnotes and

internal citations omitted). The GAO decision indicated that

The record reflects that the Navy employed X as an electronics engineer

from 2013 to November 1, 2019. Between December 2017 and October

2019, X, based on his subject matter expertise, worked as a team leader

within the NGJ-LB program, specifically, the [DELETED] Lead. In this role,

X participated on the government/contractor technical teams for both

Northrop and L3Harris during the execution of their respective contracts; he

was familiar with both Northrop's and L3Harris's DET designs, and attended

working group and design status meetings with both contractors. As noted

above, the Navy used information gathered during the execution of the DET

contracts to ascertain the maturity of the technology for the NGJ-LB

program and to aide in drafting the CB-1 specifications. X also was part of

the Navy team that developed the CB-1 specifications and provided input

for the CB-1 evaluation criteria. In this capacity, even though X was not

authorized to approve CB-1 requirements unilaterally, he made

recommendations to the Chief Engineer. In 2019, an L3Harris employee

contacted X about a resume he had previously submitted to Harris's space

unit several years earlier. On September 9, 2019, the Navy issued the CB-

1 solicitation. On September 13, X applied for the Lead, [DELETED]

Systems Engineer with L3Harris SAS and was offered a position on

September 25. X met with Navy ethics counsel on September 30, at which

point he was advised that he did not need a post-government employment

ethics opinion and that he could accept employment with L3Harris SAS.

Although ethics counsel informed X about his obligation to the Navy and

with respect to confidential contractor information, the record does not

reflect that ethics counsel discussed X’s activities during the period of his

employment negotiations. Thereafter, X accepted L3Harris SAS's offer and

notified Northrop and L3Harris during individual team meetings held on

October 1 and 2 that he would be leaving the Navy to work for L3Harris

SAS. X performed his duties on the DET contracts and the CB-1 RFP until

his employment with the Navy ended on November 1. While X’s last day

physically in his office was October 18--he was on leave from October 19

through October 31--X continued to work on the CB-1 RFP specifications

by answering email from a colleague and providing his input for the agency's

response to an offeror's question.

Id. at *7 (footnote and internal citations omitted; redactions in original). The GAO also

noted that

[w]ith regard to the DET contracts, X was part of the technical team for both

Northrop and L3Harris during the execution of each of their individual

contracts and the record reflects that between August 1 through October 2,

X participated in contract data requirements list (CDRL) reviews, DET

program management reviews/technical interchange meetings (PMR/TIM)

with Northrop and L3Harris.

Id. at *8 (footnote and internal citations omitted). The GAO referenced that the Navy

conducted an investigation of [redacted] and noted that

[t]he contracting officer’s investigation also examined X’s participation in the

CB-1 procurement from August 1 through November 13. The contracting

officer found that X participated in the procurement in four different ways:

(1) drafting government responses to industry questions on the draft and

final CB-1 RFP; (2) developing section L, instructions to offerors; (3)

developing the SOW and CDRL; and (4) developing SPS requirements. For

example, the record establishes that X participated in providing agency

responses to industry questions on the draft and final solicitation that

included updated technical details that remained in the final solicitation. X

also recommended changes to section L.2.1.3 of the RFP, under

instructions to offerors . . . These recommended changes were incorporated

in the final RFP and the Navy evaluated Northrop and L3Harris on their

compliance with these requirements. The investigation also showed that X

recommended changes to the SOW/CDRL, as well as made substantive

changes to several SPS requirements. As the record makes clear, X’s

recommendations were approved and included in the final RFP. X

recommended substantive changes to several specifications that were

reflected in the final RFP. In particular, X added significant detail to the draft

cSPS-1128 specification . . . dictated the required level of performance. The

draft SPS requirements did not fully define the cSPS-1128 specification and

the requirement was not measurable. X recommended edits on August 16,

2019, that defined the cSPS-1128 requirement; X updated the specification

text and a new table was added using numbers derived from X and his

team's analysis that defined performance metrics for [DELETED].

Id. at *8-*9 (internal citations omitted; redactions in original). The GAO explained that

regarding X's involvement with the CB-1 specifications, the agency points

to the fact that its investigation found that X had no authority to approve

changes to the requirements and that all changes were approved at least

two levels above him. The agency also highlights aspects of the agency's

investigation, which found that X's work in developing the CB-1

requirements had no impact on the ultimate evaluation, or that such an

impact may have actually benefited Northrop. For example, the contracting

officer found that X's recommendations had minimal impact on the CB-1

procurement because neither offeror took exception to the SOW/CDRL

changes. The contracting officer also concluded X’s contributions were

minimal because the SPS requirement changes were unrelated to technical

findings in the agency's evaluation, concluding, without explanation, that X’s

updated cSPS-1128 specification would affect all proposals. Additionally,

the contracting officer noted that Northrop received no technical findings

from the agency's evaluation related to the cSPS-1128 requirement,

whereas L3Harris received a significant weakness for this requirement.

Regarding the DET contracts, the Navy found that X's participation in

PMR/TIM meetings and the comments he made during the meetings did not

provide direction to change the contractors’ designs and did not have a

significant impact on the CB-1 evaluation.

Id. at *9-*10 (internal citations omitted).

The GAO decision reiterated that “[t]he facts are clear and there is no dispute that

X participated in the development of CB-1 specifications and the execution of the DET

contracts, while engaged in employment negotiations with L3Harris. Accordingly, the

record is consistent with the circumstances attendant to a ‘biased ground rules’ conflict

of interest.” Id. at *9. With respect to the Navy’s arguments regarding its investigation,

GAO reasoned

the agency’s conclusion about its investigation reflects a circular logic.

According to the Navy, because there is no evidence in the evaluation

record to demonstrate that Northrop's proposal received adverse technical

findings for requirements that X worked on while negotiating employment

with L3Harris, or that L3Harris received favorable ratings, there was no

harm. The failure to find such proof in the evaluation findings, however,

does not suggest the lack of a conflict, or the lack of bias in the

specifications because, as explained above, the potential harm from such a

conflict is by its nature, not susceptible to such proof. See Teledyne Brown

Eng’g, Inc., supra [B-418835, 2020 WL 5760360 (Comp. Gen. Sept. 28,

2020)]; Department of the Navy--Recon., supra [B-286194.7, 2002 WL

1120729 (Comp. Gen. May 29, 2002)].The hard facts that are required are

those which establish the existence of the organizational conflict of interest,

not the specific impact of that conflict. See HBI-GF, JV, B-415036, Nov. 13,

2017, 2017 CPD ¶ 331 at 7; Satellite Tracking of People, LLC, B-411845,

B-411845.2 Nov. 6, 2015, 2015 CPD ¶ 347 at 8 (where the contracting

officer identified a conflict of interest, but undertook no actions to safeguard

the procurement process, GAO “need not resolve the question of whether

the program manager's participation in the acquisition favored, disfavored,

or had no impact” on the protester. “To maintain the integrity of the

procurement process, we will presume that the protester was prejudiced,

unless the record includes clear evidence establishing the absence of

prejudice.”). Because the circumstances of X's apparent conflict concerned

the integrity of the ground rules of the competition, the agency should have

instead focused its inquiry on the integrity of the specifications and their

potential for bias; rather than the resulting evaluation. For example, we have

found that allegedly biased specifications can be mitigated by subsequent

activities by unbiased individuals. See e.g., BAE Sys. Tech., B-411810.3,

June 24, 2016, 2016 CPD ¶ 174 at 13-15 (contracting officer reasonably

concluded that significant changes to solicitation requirements reasonably

mitigated potential biased ground rules conflict). Having failed to do so, we

cannot find that the agency has presented clear evidence to establish the

absence of prejudice.

Northrop Grumman Sys. Corp.--Mission Sys., 2021 WL 4054164, at *11.

Therefore, the GAO concluded: “For the above reasons, the appearance of

impropriety resulting from the biased ground rules conflict of interest at issue here tainted

the integrity of the procurement, and we therefore sustain the protest.” Id. In its

recommendations section, GAO recommended:

In this protest we sustain the allegation that an apparent conflict of interest

was created when X, who was engaged in employment negotiations with

L3Harris also developed specifications for the CB-1 solicitation. The

ordinary remedy where a conflict cannot be mitigated is the elimination of

that competitor from the competition. See The Jones/Hill Joint Venture,

supra at 22 n.26. Here, we are mindful that it is neither feasible nor desirable

to eliminate L3Harris from the competition and it may be possible to mitigate

the conflict by engaging individuals without a conflict to review the

specifications tainted by X’s conflict of interest. We therefore recommend

that the Navy engage individuals with the requisite technical expertise to

conduct an independent review of X’s input during the relevant period of

conflict on the CB-1 specifications to determine whether X’s input was

consistent with the Navy’s actual requirements.

If the agency concludes that the specifications continue to reflect its needs,

we recommend that the agency reopen discussions and request revised

proposals, evaluate proposals consistent with the evaluation criteria, and

make a new source selection decision. Alternatively, if the agency decides

that its specifications have changed, we recommend that the agency issue

an amendment reflecting its updated requirements, request revised

proposals, and make a new source selection decision.

We also recommend that Northrop be reimbursed its reasonable costs of

filing and pursuing its protest, including attorneys’ fees. 4 C.F.R. §

21.8(d)(1). The protester’s certified claim for costs, detailing the time

expended and costs incurred, must be submitted directly to the agency

within 60 days after receipt of this decision.

Northrop Grumman Sys. Corp.--Mission Sys., 2021 WL 4054164, at *11-*12.

Also on August 18, 2021, the GAO issued a second related decision. See generally

Northrop Grumman Sys. Corp.-Mission Sys., B-419560.6, 2021 WL 4902511 (Comp.

Gen. Aug. 18, 2021). Northrop protested the award L3Harris CSW and alleged that “the

agency misevaluated the awardee’s proposal when it rated the proposal as acceptable

despite the fact that the proposal did not demonstrate compliance with a material

solicitation requirement.” Id. at *1. In this second GAO decision, the GAO indicated that

“Northrop alleges that L3Harris did not propose an approach to meet the cSPS–1128

specification,” and

that the Navy should have assessed L3Harris’s proposal a deficiency for

failing to meet this threshold requirement instead of a significant weakness.

In challenging the agency evaluation, Northrop disputes the agency’s

contention that L3Harris merely had to propose ‘a path to meeting’ the

threshold requirement, and argues, in any event, that L3Harris offered no

path. According to Northrop, L3Harris’s proposal was technically

unacceptable and ineligible for award.

Id. at *4. The GAO noted that

[t]he agency makes several arguments in response to Northrop. Essentially,

the Navy contends that the RFP did not require L3Harris to demonstrate a

design approach that met the specification because the solicitation did not

require offerors to submit a complete design before contract award. Thus,

proposing to improve its approach during the performance of the contract

did not reflect a failure of L3Harris to meet solicitation requirements. The

agency maintains that it properly assessed the level of risk associated with

L3Harris's proposed design approach to meet requirements as “significant”

and found that L3Harris proposed a “credible” path to meet the

requirements. In this regard, the Navy contends that it consistently

assessed a significant risk when either Northrop or L3Harris proposed a

credible path to meet the requirement or proposed a design that improved

upon the design that generated most of the substantiating data.

Id. at *5 (internal references omitted). Despite the explanations offered by the Navy, the

GAO concluded:

Notwithstanding the agency’s arguments to the contrary, we agree with the

protester that the agency's evaluation of L3Harris’s proposal was not

consistent with the terms of the solicitation. While the solicitation did not

require complete pod designs at the time of proposal submission, the

solicitation did identify certain “threshold” requirements, to include the . . .

specification. For these threshold requirements, offerors were to “describe

how [their] design approach meets” the . . . requirements. By use of the

present tense “meets,” the plain language of the solicitation required

offerors to demonstrate in their proposals that their design approach

“meets” the threshold requirements. Despite the clear language of the

solicitation, requiring offerors to describe how their design approach

“meets” the cSPS–1128 threshold requirements, the record shows that the

agency's evaluators considered L3Harris’s proposed design approach as

acceptable, albeit with significant risk, notwithstanding the fact that

L3Harris’s proposal did not describe an approach that actually “meets”

these requirements.

Specifically, the agency found that L3Harris’s proposed approach “has not

been fully substantiated to enable full compliance with [DELETED]

requirement, (cSPS–1128) resulting in potential technical and schedule

risk.” The agency also specifically observed that L3Harris's proposed

[DELETED] “does not meet requirements at some [DELETED] frequencies”

and that L3Harris planned to [DELETED] for the [DELETED] frequencies

where the requirement could not be met. The agency noted that while

L3Harris's proposed [DELETED] showed “up to [DELETED] improvement;

. . . . however, [L3Harris] does not directly compare the proposed improved

performance to requirements.”

Despite the fact that L3Harris’s proposed design approach did not meet the

stated requirements, the agency noted that L3Harris intends to continue to

improve the [DELETED] during the performance of the CB–1 contract and

found that L3Harris's proposed approach to use the [DELETED] “provides

a credible path to meeting [DELETED] requirements” even though the

proposed design is not fully substantiated. The agency concluded that this

limited substantiation increased the risk of meeting . . . compliance. The

agency also concluded that this risk, combined with another risk not relevant

to this discussion, warranted a significant weakness for L3Harris’s

overall . . . approach.

There is no dispute that the Navy’s own evaluators found that L3Harris's

proposal did not demonstrate an approach that met the threshold

requirements for the cSPS–1128 specification. L3Harris’s proposal includes

a table identifying 16 frequencies that do not achieve the [DELETED]

threshold requirements and even with L3Harris’s anticipated modifications

identified in its proposal, L3Harris’s approach will not meet the requirement

for 12 frequencies. Accordingly, we agree with the protester that L3Harris’s

proposal did not comply with the cSPS–1128 requirements. To the contrary,

L3Harris's proposal clearly reflected a design approach that did not meet

these requirements. Accordingly, the agency erred by failing to assign L

3Harris’s proposal a deficiency for this failure. Throughout its defense, the

agency insists that it properly focused on the risk related to L3Harris's

limited substantiation for its [DELETED] because L3Harris proposed a

credible path forward to meet the requirement. The agency’s argument,

however, reflects a misunderstanding of the fundamental problem with the

evaluation. The error in the agency’s evaluation is not whether, or the

degree to which, L3Harris substantiated its design approach. Rather, the

error is the agency's failure to properly assess L3Harris’s failure to comply

with the requirement to provide a design approach that “meets” the cSPS–

1128 specification threshold requirements. In other words, per the terms of

the solicitation, L3Harris was required to demonstrate a compliant approach

in its proposal, not after award. While the agency could reasonably consider

the risks associated with the viability of a proposed approach, the approach

had to some degree demonstrate that it met requirements in the first

instance. The agency’s consideration of risks of L3Harris's substantiation of

an approach that did not, as a threshold matter, demonstrate the ability to

meet the requirement as proposed, is therefore beside the point.

As explained above, L3Harris’s proposal clearly showed how its approach

fell short of many of the threshold requirements set forth under the cSPS–

1128 specification. L3Harris clearly identified each of the non-compliant

frequencies, which it referred to as “less than ideal.” L3Harris’s alleged “path

forward” was little more than the firm's cautiously optimistic statements

about a potential ability to comply, although hedging that “improvements . .

. do not directly translate to an increase in compliance” and that positive

impacts on BAPs were “as of yet, unquantified.” L3Harris’s proposal was

therefore technically unacceptable. Based on this record, the agency

unreasonably evaluated L3Harris’s proposal as technically acceptable and

we sustain the protest.

Id. at *5-*6 (footnote and internal citations omitted). In its recommendations section, the

GAO recommended:

In this protest, we sustain the allegation that the Navy unreasonably

evaluated L3Harris’s proposal as technically acceptable when L3Harris's

proposed approach did not meet the solicitation's material requirements.

We therefore recommend that the Navy reopen discussions and request

revised proposals; evaluate proposals consistent with the evaluation

criteria; and make a new source selection decision. Alternatively, if in

conjunction with our recommended corrective action in Northrop Grumman

Systems Corporation-Mission Systems, B–419560.3 et al., supra, the

agency concludes that its specifications should be revised, we recommend

that the agency issue an amendment to the solicitation reflecting updated

specifications, request revised proposals, and make a new source selection

decision. We also recommend that Northrop be reimbursed its reasonable

costs of filing and pursuing its protest, including reasonable attorneys' fees.

4 C.F.R. § 21.8(d)(1). The protester's certified claim for costs, detailing the

time expended and costs incurred, must be submitted directly to the agency

within 60 days after receipt of this decision.

Northrop Grumman Sys. Corp.-Mission Sys., 2021 WL 4902511, at *7 (footnote omitted).

On September 7, 2021, protestor L3Harris CSW filed this bid protest complaint in

this court. The complaint lists three counts. Count 1 is titled: “The implementation of the

GAO decision lacks reason and contravenes the law given that Northrop lacked standing

to protest the L3Harris CSW awards,” and regarding Count 1, protestor argues “[d]uring

the protest process, the Contracting Officer affirmed that L3Harris offered the only viable

solution and Northrop’s solution remained deficient” and that “Northrop did not contest

any of the findings underlying its assessed deficiency and GAO denied Northrop's

Addendum RFP protest in any event.” Protestor claims that “GAO did not address (much

less resolve) the standing motions before it,” and therefore “GAO’s decision is arbitrary,

capricious, and contrary to law and any action to implement GAO’s recommendation also

necessarily lacks a rational basis.” Count 2 is titled: “GAO’s Decision regarding [redacted]

in Northrop Grumman Sys. Corp.-Mission Sys., B-419560.3, B-419560.4, B-419560.5,

and B-419560.7 is arbitrary, capricious, an abuse of discretion, and otherwise contrary to

law rendering implementation of the GAO [redacted] recommendation flawed.” Protestor

argues, regarding Count 2, “GAO lacked jurisdiction to review Northrop's PIA

[Procurement Integrity Act] claims,” and “GAO arbitrarily failed to address that Northrop

had waived its protest under established procurement law.” Protestor also argues that

“GAO's decision ignored the material fact that Legacy Harris (including the entity that

hired [Mr. X]) supports Northrop,” as well as “GAO in violation of procurement law and

without explanation took the ‘Most Unusual’ step of disregarding the contemporaneous

guidance provided by Navy Ethics Officials,” and “GAO violated well established law by

not deferring to the contracting officer's reasonable conflict of interest investigation and

conclusions.” (capitalization in original). For Count 3, titled: “GAO irrationally sustained

Northrop Grumman Sys. Corp.-Mission Sys., B-419560.6, rendering the Navy’s

implementation decision improper,” protestor claims that “[t]he GAO failed to address the

untimeliness of Northrop’s” arguments. Protestor also argues “GAO improperly

substituted its judgment for the reasoned, highly-technical conclusions of the agency

experts.” (capitalization in original).

Protestor’s complaint alleges that

L3Harris CSW has standing to file this action because the Agency's

decision to implement GAO's irrational and unlawful recommendation

affects L3Harris CSW's direct economic interests in several significant

ways, including by: (1) effectively nullifying the Navy's prior proper contract

award to L3Harris CSW and requiring L3Harris CSW to compete a second

time and win the same contract twice, see CBY Design Builders v. United

States, 105 Fed. Cl. 303, 337-38 (2012); Sheridan Corp. v. United States,

95 Fed. Cl. 141, 149-50 (2010); (2) unnecessarily forcing L3Harris CSW to

expend the time, effort, and expense of recompeting for a contract it has

already lawfully won, see Sys. Application & Techs., Inc. v. United States,

100 Fed. Cl. 687, 710 (2011), aff’d 691 F.3d 1374 (Fed. Cir. 2012); Jacobs

Tech. v. United States, 100 Fed. Cl. 173, 177 (2011); (3) delaying L3Harris

CSW's performance and income under the awarded contract, Sys.

Application, 100 Fed. Cl. at 710; and (4) requiring L3Harris CSW to compete

against itself as the Agency released L3Harris CSW competition-sensitive

information to the unsuccessful offerors during debriefings. Id.; Sheridan

Corp., 95 Fed. Cl. at 150.

L3Harris CSW’s bid protest complaint requested that the court declare “GAO’s flawed

rulings and recommendations and the Agency’s implementation of GAO's flawed rulings

and recommendations irrational and contrary to law;” declare “the Navy's reasoned, lawful

contract awards to L3Harris CSW under the CB-1 RFP and Addendum RFP valid and not

subject to re-competition based on Northrop's untimely and meritless GAO protests or

GAO's flawed rulings and recommendations;” and declare “that the Navy may proceed

with the performance of the lawful contract awards to L3Harris CSW under the CB-1 RFP

and Addendum RFP.” L3Harris CSW also seeks to enjoin the Navy from implementing

the GAO’s decisions and terminating L3Harris CSW’s contract.

After L3Harris CSW filed its bid protest complaint, on October 18, 2021, Vice

Admiral Carl P. Chebi, Commander, Naval Air Systems Command, sent GAO a letter

which stated:

Pursuant to 31 U.S.C. § 3554(b)(3), the Naval Air Systems Command (NA

VAIR or Agency) notifies the Government Accountability Office (GAO) that

the Agency will not fully implement GAO' s recommendations provided in

references (a) and (b). In accordance with 31 U.S.C. § 3554(b)(3), if an

agency does not fully implement the GAO recommendation within 60 days

after receiving the GAO decision, the head of the procuring activity must

notify the GAO not later than 5 days after the end of the 60-day period. GAO

issued references (a) and (b) on 18 August 2021, which allows the Agency

until 22 October 2021 to notify the GAO of its decision whether to implement

GAO's recommendation. This notice is timely and in compliance with the

Agency's statutory obligations.

In references (a) and (b), the GAO sustained the protests of Northrop

Grumman Systems Corp. (NGC), finding the Agency failed to reasonably

consider the potential impact of a conflict of interest created by employment

negotiations between L3 Harris Space and Airborne Systems and a former

government employee (X), and that the Agency unreasonably evaluated L3

Harris Communication Systems West's (CSW) proposal as technically

acceptable. The GAO recommended the Agency (1) engage non-conflicted

individuals with the requisite technical experience to review the

specifications tainted by X’s conflict of interest to determine whether X’s

input was consistent with the Navy's actual requirements; (2) re-open

discussions, request revised proposals, evaluate proposals consistent with

the evaluation criteria, and make a new source selection decision; and (3)

reimburse NGC its reasonable costs of filing and pursuing its protest,

including reasonable attorney fees.

The Agency has implemented GAO’s first recommendation. In response to

that recommendation, the Agency conducted a broad search across the

Department of Defense to determine a pool of individuals with the requisite

technical experience who are not associated with the NGJ-LB program and

who could review the Agency's requirement documents. The Agency further

limited this pool to three qualified individuals and created an Independent

Review Team (IRT) to carry out the GAO's recommended review. To ensure

that the IRT members were objective, the IRT includes one member from

the Office of Naval Research, one member from an Air Force Research

Laboratory, and one member from the Naval Air Warfare Center, Weapons

Division, none of whom were previously involved with the NGJ-LB program

or report to the Program Executive Office for Tactical Aircraft Programs, the

Source Selection Authority. The IRT assessed whether the input X provided

on various specifications was consistent with the Agency's requirement.

After careful review, the IRT determined the specifications with X’s input

were and remain consistent with the Agency's requirement.

The Agency will not implement GAO’s second recommendation. During the

course of the protests, the Agency explained the solicitation requirements

and evaluation criteria, particularly that the solicitation provided the

technical experts with discretion whether or not to assess a deficiency in the

context of this development effort. The Agency believes the second

recommendation does not adequately account for the developmental nature

of the Agency's requirement as it relates to the evaluation criteria and the

Agency's evaluation, and that GAO misinterpreted the solicitation

requirements in this regard. It is therefore unnecessary for the Agency to

reopen discussions and reevaluate revised proposals in order to make a

proper source selection decision. Thus, the Agency respectfully disagrees

with, and will not implement, the GAO's second recommendation.

In response to the GAO's third recommendation, the Agency will negotiate

with NGC for reimbursement of its reasonable costs of filing and pursuing

its GAO protest. Absent further litigation by the parties, the Agency will lift

the stop work order for contract No. N00019-21-0021 on 28 October 2021.

After the October 18, 2021 letter, the court instructed the parties to file a joint status report

as to how to proceed in the above captioned protest, and on October 25, 2021, the court

held a hearing to address the October 18, 2021 letter and the parties’ joint status report.

As indicated the October 25, 2021 hearing, and after discussions with the parties, the

court set a schedule for defendant and the intervenor to file motions to dismiss, if

defendant and the intervenor believed this court lacked jurisdiction over the protestor’s

complaint.

In defendant’s motion to dismiss L3Harris CSW’s bid protest complaint, defendant

argues that “L3Harris CSW’s challenge has been rendered moot,” L3Harris CSW does

not have standing and “[t]his Court does not possess jurisdiction to entertain L3Harris

CSW’s challenge to the agency’s affirmance of its award to L3Harris CSW after corrective

action.” Intervenor argues that “L3Harris has no cognizable harm and no standing.

Moreover, the concerns raised in L3Harris’s complaint have been mooted by the Navy’s

decision to continue with its awards to L3Harris, and any concerns L3Harris may seek to

raise now about hypothetical future action by the Navy are unripe. L3Harris’s protest

should therefore be dismissed for lack of jurisdiction.” In response, protestor argues that

its bid protest complaint “asserts the necessary injury for standing,” and “L3Harris CSW's

protest is not moot.” Furthermore, L3Harris CSW claims that “[t]he issues and controversy

between the parties remain live.” The defendant and intervenor each filed reply briefs,

reiterating that this court does not have jurisdiction to continue to consider protestor’s

claims. The motions are fully briefed.

After the October 25, 2021 hearing, but before the motions to dismiss were filed in

the above captioned protest, Northrop filed a separate bid protest,5 to protest the Navy’s

decision to continue with its award to L3Harris CSW. See Northrop Grumman Sys. Corp.

– Mission Sys. v. United States, Case No. 21-2099C. Northrop argued in its separately

filed protest: “The Navy made award to L3 Technologies, Inc. Communication Systems-

West even though the company was ineligible for two independent reasons. The U.S.

Government Accountability Office reviewed the procurement and, in two detailed

decisions, explained the Navy’s errors and recommended that the Navy fix them. The

Navy, however, refuses to do so, and intends to proceed with the illegal award to

L3Harris.” (internal references omitted). In its bid protest complaint in Case No. 21-2099C,

Northrop requested that the court “[p]ermanently enjoin the Navy from proceeding with

the illegal contracts awarded to L3Harris,” “[d]eclare L3Harris ineligible by reason of its

failure to comply with a material term of the solicitation,” “[d]eclare L3Harris ineligible by

reason of the conflict of interest created by [Mr.x]’s failure to recuse,” and “[d]eclare that

the Navy’s failure to fully implement the corrective action recommended by GAO was

irrational, inadequately documented, and contrary to law.”

DISCUSSION

In considering defendant’s and intervenor’s motions to dismiss L3Harris CSW’s bid

protest for lack of jurisdiction, the court notes that “[i]t is well established that “‘subject-

matter jurisdiction, because it involves a court’s power to hear a case, can never be

forfeited or waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United

States v. Cotton, 535 U.S. 625, 630 (2002)). “[F]ederal courts have an independent

obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore

they must raise and decide jurisdictional questions that the parties either overlook or elect

5Northrop’s bid protest, Northrop Grumman Systems Corporation – Mission Systems v.

United States, Case No. 21-2099C, was assigned to the undersigned.

not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011); see also

Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Courts have an independent obligation to

determine whether subject-matter jurisdiction exists, even when no party challenges it.”

(citing Arbaugh v. Y & H Corp., 546 U.S. at 514)); Special Devices, Inc. v. OEA, Inc., 269

F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to

hear and decide a case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d

160, 161 (Fed. Cir. 1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962,

963 (Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties

raise the issue or not.”). “The objection that a federal court lacks subject-matter

jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage

in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546

U.S. at 506; see also Hymas v. United States, 810 F.3d 1312, 1317 (Fed. Cir. 2016)

(explaining that a federal court must satisfy itself of its jurisdiction over the subject matter

before it considers the merits of a case); Cent. Pines Land Co., L.L.C. v. United States,

697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection to a court's subject matter

jurisdiction can be raised by any party or the court at any stage of litigation, including after

trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506)); Rick’s

Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party

may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.”

(citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344,

1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S.

1127 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)));

Pikulin v. United States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir.

2011). In fact, “[s]ubject matter jurisdiction is an inquiry that this court must raise sua

sponte, even where . . . neither party has raised this issue.” Metabolite Labs., Inc. v. Lab.

Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead

Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined

(Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir.

2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc.,

546 U.S. 975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006).

This court has jurisdiction to hear bid protests pursuant to 28 U.S.C. § 1491(b)(1)

(2018) of the Tucker Act, which provides that this court has

jurisdiction to render judgment on an action by an interested party objecting

to a solicitation by a Federal agency for bids or proposals for a proposed

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

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

proposed procurement.

28 U.S.C. § 1491(b)(1); see also Harmonia Holdings Grp., LLC v. United States, 999 F.3d

1397, 1403 (Fed. Cir. 2021); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359

(Fed. Cir. 2009). The Administrative Dispute Resolution Act of 1996, codified at 28 U.S.C.

§ 1491(b)(1)–(4), amended the Tucker Act to establish a statutory basis for bid protests

in the United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico

Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed. Cir. 2001).

The Tucker Act grants the United States Court of Federal Claims “jurisdiction to

render judgment on an action by an interested party objecting to a solicitation by a Federal

agency for bids or proposals for a proposed contract or to a proposed award or the award

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

procurement or a proposed procurement.” 28 U.S.C. § 1491(a)(1). In order to have

standing to sue as an “interested party” under this provision, a disappointed bidder must

show that it suffered competitive injury or was “prejudiced” by the alleged error in the

procurement process. See Todd Constr., L.P. v. United States, 656 F.3d 1306, 1315 (Fed.

Cir. 2011) (To prevail, a bid protester must first “‘show that it was prejudiced by a

significant error’ (i.e., ‘that but for the error, it would have had a substantial chance of

securing the contract).’” (quoting Labatt Food Serv., Inc. v. United States, 577 F.3d 1375,

1378, 1380 (Fed. Cir. 2009)); see also Eskridge & Assocs. v. United States, 955 F.3d

1339, 1345 (Fed. Cir. 2020) (“In a post-award bid protest, the relevant inquiry is whether

the bidder had a ‘substantial chance’ of winning the award—specifically, whether a

protestor ‘establish[ed] not only some significant error in the procurement process, but

also that there was a substantial chance it would have received the contract award but

for that error.’” (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir.

1996))) (alteration in original); Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1317;

Blue Origin Fed'n, LLC v. United States, 157 Fed. Cl. 74, 89 (2021); Aero Spray, Inc. v.

United States, 156 Fed. Cl. 548, 562 (2021); AECOM Mgmt. Servs., Inc. v. United States,

147 Fed. Cl. 285, 290 (2020). In order to establish what one Judge on this court has called

“allegational prejudice” for the purposes of standing, the bidder must show that there was

a “substantial chance” it would have received the contract award, but for the alleged

procurement error. See Hyperion, Inc. v. United States, 115 Fed. Cl. 541, 550 (2014)

(“The government acknowledges that proving prejudice for purposes of standing merely

requires “allegational prejudice,” as contrasted to prejudice on the merits . . . .”); Bannum,

Inc. v. United States, 115 Fed. Cl. 148, 153 (2014); see also Bannum, Inc. v. United

States, 404 F.3d 1346, 1358 (Fed. Cir. 2005); Galen Med. Assocs., Inc. v. United States,

369 F.3d 1324, 1331 (Fed. Cir.), reh’g denied (Fed. Cir. 2004); Info. Tech. & Applications

Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.), reh’g and reh’g en banc denied

(Fed. Cir. 2003); Statistica, Inc. v. Christopher, 102 F.3d at 1581; Archura LLC v. United

States, 112 Fed. Cl. 487, 497 (2013); Lab. Corp. of Am. v. United States, 108 Fed. Cl.

549, 557 (2012). Because standing is a jurisdictional issue, this showing of prejudice is a

threshold issue. See Corus Grp. PLC. v. Int’l Trade Comm'n, 352 F.3d 1351, 1357 (Fed.

Cir. 2003); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370

(Fed. Cir. 2002).

In a post-award bid protest, such as the above-captioned bid protest, the “protestor

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

requisite direct economic interest.’” Mgmt. & Training Corp. v. United States, 137 Fed. Cl.

780, 783-84 (2018) (quoting Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed.

Cir. 2006)); see also Digitalis Educ. Sols., Inc. v. United States, 664 F.3d 1380, 1384

(Fed. Cir. 2012) (“An interested party is an actual or prospective bidder whose direct

economic interest would be affected by the award of the contract. Thus, a party must

show that it is 1) an actual or prospective bidder and 2) that it has a direct economic

interest.”); AECOM Mgmt. Servs., Inc. v. United States, 147 Fed. Cl. at 290; PAE-Parsons

Global Logistics Servs,. LLC v. United States, 145 Fed. Cl. 194, 198 (2019); Timberline

Helicopters, Inc. v. United States, 140 Fed. Cl. 117, 120 (2018); Contract Servs., Inc. v.

United States, 104 Fed. Cl. 261, 269 (2012).

As indicated above, L3Harris CSW was awarded the contracts pursuant to the CB-

1 RFP and the Addendum RFP in December 2020. A Judge of the United States Court

of Federal Claims in Trailboss Enterprises, Inc. v. United States, 111 Fed. Cl. 338 (2013)

found:

To meet the “interested party” standard for standing under Section

1491(b)(1), the plaintiff must be an “actual or prospective bidder” and

demonstrate that it possesses a direct economic interest in the contract

award. See Sys. Application & Tech., Inc. v. United States, 691 F.3d 1374,

1382 (Fed. Cir. 2012) (citation omitted). Where the plaintiff is the awardee

of the contract, however, it no longer has standing under Section 1491(b)(1)

as an interested party for the purpose of challenging the terms of the award.

Diversified Maint. Sys., Inc. v. United States, 103 Fed. Cl. 431, 436–37

(2012) (citing Outdoor Venture Corp. v. United States, 100 Fed. Cl. 146,

152 (2011)); see also Ingersoll–Rand Co. v. United States, 780 F.2d 74, 79

(D.C. Cir. 1985).

Trailboss Enters., Inc. v. United States, 111 Fed. Cl. at 340–41; see also Looks Great

Servs., Inc. v. United States, 145 Fed. Cl. 324, 328 (2019); Kellogg Brown & Root Servs.,

Inc. v. United States, 117 Fed. Cl. 764, 769 (2014). The Judge in TransAtlantic Lines LLC

v. United States, 126 Fed. Cl. 756 (2016) similarly indicated

to satisfy the “interested party” standard, a plaintiff must establish that: “(1)

it was an actual or prospective bidder; and (2) possess[es] the requisite

direct economic interest.” Sys. Application & Techs., Inc. v. United States,

691 F.3d 1374, 1382 (Fed. Cir. 2012) (alteration in original). As such, where

the plaintiff is the awardee of the contract, it no longer has standing under

28 U.S.C. § 1491(b)(1).

TransAtlantic Lines LLC v. United States, 126 Fed. Cl. at 759; see also Harmonia

Holdings Grp., LLC v. United States, 157 Fed. Cl. 292, 303 (2021) (“Plaintiff is the

awardee of a JETS IDIQ contract and therefore is no longer ‘an actual or prospective

bidder or offeror’ with respect to that procurement. Outdoor Venture, 100 Fed. Cl. at 152.

It thus follows that, as an awardee, it is ‘no longer an “interested party” with standing to

bring a bid protest claim under 28 U.S.C. § 1491(b)’ absent limited circumstances not

present here.”). Recently, a Judge of this court noted “[w]here a plaintiff asserts a bid

protest claim arising from its own contract with the Government, the Court must examine

the allegations closely because matters of contract administration and management fall

under the Court’s CDA jurisdiction.” Harmonia Holdings Grp., LLC v. United States, 157

Fed. Cl. at 299.

A Judge of the Court of Federal Claims in Kellogg Brown & Root Services, Inc. v.

United States, 117 Fed. Cl. 764 (2014) noted

[t]he Court does not believe that the terms “bids or proposals” [in 28 U.S.C.

§ 1491] are in the plural by accident. Rather, they are used because the

purpose of this provision is to allow protests to the terms of competitive

solicitations, in which a contract may be lost to another bidder due to an

improper advantage. The provision is not designed to allow a party to object

to a request for a proposal directed to that party alone and no others.

Id. at 770 (footnotes omitted). Notably, the Judge in Kellogg Brown & Root indicated in a

footnote that: “Of course, when a proposed corrective action effectively restores an

awardee to the status of bidder by requiring it to compete again for a contract award, this

action may be challenged by the former awardee in a bid protest.” Id. at 769 n.5; see also

Sys. Application & Techs., Inc. v. United States, 691 F.3d at 1381–82. Protestor’s bid

protest complaint in the above captioned protest, as filed on September 7, 2021, relies

on this exception to the general rule that a contract awardee does not have jurisdiction to

bring a bid protest. The protestor in the protest currently before the court alleges

L3Harris CSW has standing to file this action because the Agency's

decision to implement GAO’s irrational and unlawful recommendation

affects L3Harris CSW’s direct economic interests in several significant