The Supreme Court gave its classic elucidation of the requirement of adversity in Welman:

Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.

Id. at 345 (emphasis added). Since Welman, the Supreme Court has applied the principle that federal courts may not adjudicate disputes where the parties have the same interests in the context of declaratory judgments. See Poe v. Ullman, 367 U.S. 497, 506 (1961) (“The Court has been on the alert against use of the declaratory judgment device for avoiding the rigorous insistence on exigent adversity as a condition for evoking Court jurisdiction.”). For instance, in C.I.O. v. McAdory, 325 U.S. 472 (1945), the petitioners sought to enjoin enforcement of two sections of an Alabama statute. The respondent had agreed not to enforce one of those sections so long as another case challenging the validity of that section was pending. The Court held that the petitioners and the respondent were not adverse as to that section and further held that “[t]he Court will not pass upon the constitutionality of legislation in a suit which is not adversary or in which there is no actual antagonistic assertion of rights.” Id. at 475 (internal citations omitted).

Although here there is no challenge to the constitutionality of legislation, the principle of McAdory, Ullman, and Welman, applies. Because plaintiff and defendant agree with one another that the awards to WHR, Lexicon, and Allegiance are invalid and should be set aside, that issue does not present a justiciable case or controversy between them. Defendant seeks to do the very thing plaintiff requests: cancel the awards to WHR, Lexicon, and Allegiance, and conduct a new procurement under a revised solicitation. The only reason defendant has not already taken this action is the pendency of the WHR and Lexicon suits, in which plaintiff and defendant are on the same side. Accordingly, plaintiff and defendant are not truly adverse parties. For that reason, there is no justiciable case or controversy.

Moreover, even granting that there was adversity between plaintiff and defendant before defendant proposed taking corrective action, that proposed corrective action renders any case or controversy moot. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the come.’” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). When the awards to WHR, Lexicon, and Allegiance were initially made, there were certainly “live” issues between plaintiff and defendant, as evidenced by the GAO protest plaintiff filed, supra at 1, challenging those awards. But those live issues were mooted when defendant sought to do exactly as plaintiff wanted and conduct a new procurement.

It is true, of course, that a defendant cannot ordinarily moot a case or controversy simply by promising to cease the challenged conduct. Id. at 726. Instead, a defendant must show that that conduct is not likely to reoccur. Id. Defendant has made that showing here. It would make no sense for defendant to issue the revised solicitation on August 5 if it planned to treat WHR’s, Lexicon’s, and Allegiance’s BPAs as validly awarded. The only reason defendant did not proceed to conduct a new procurement under that revised solicitation was that this court temporarily enjoined defendant from doing so on August 12. The court is therefore persuaded that the only circumstance under which defendant would treat the WHR, Lexicon, and Allegiance BPAs as valid is if the court, in the WHR and Lexicon cases, permanently enjoins defendant from cancelling them.

Additionally, any dispute that does exist between plaintiff and defendant is not ripe for judicial resolution. As with other justiciability doctrines, “the Court of Federal Claims must address ripeness as a ‘threshold consideration’ before addressing the merits.” Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1351-52 (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001)). Ripeness depends on two factors: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). “When a party challenges government action, the first factor becomes a question of whether the challenged conduct constitutes a final agency action.” Systems Application & Technologies, Inc. v. United States, 691 F.3d 1374, 1384 (Fed. Cir. 2012) (citing Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1363 (Fed. Cir. 2008); U.S. Ass’n of Imps. of Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1349-50 (Fed. Cir. 2005)). “As a general matter, two conditions must be satisfied for an agency action to be ‘final’: First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks and citations omitted).

As to the fitness of the “dispute” between the parties for judicial resolution, it is clear that plaintiff’s protest challenges entirely speculative government conduct. Plaintiff acknowledges that defendant “has made multiple indications in the procurement record and during the related protest proceedings that it does not intend to move forward with performance under the invalid WHR, Lexicon, and Allegiance BPAs,” but nevertheless contends that “there are counter-indicia in the record that . . . constitute concrete steps towards the Agency’s use of the BPAs, which could be construed as an endorsement—albeit one that is inconsistent with the record—of their validity.” Pl.’s Response to Order to Show Cause, ECF Dkt. 21, at 7-8. But ripeness does not hinge on whether there have been “counter-indicia,” inconsistent with the government’s own representations, that “could be construed” as endorsing the challenged conduct. Rather, ripeness hinges on the existence of a “final agency action” that is neither “tentative” nor “interlocutory,” but “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 177-78. That “final agency action” is the only “concrete step” that will satisfy the “fitness” prong of the ripeness doctrine. Here, plaintiff has failed to show that defendant has determined to accept the validity of the WHR, Lexicon, and Allegiance BPAs. And given that defendant is currently defending its decision to cancel those BPAs and conduct a new procurement, it is unreasonable to suppose that such a final agency action has taken place.

Nor does the hardship prong favor a finding of ripeness. The issues presented by this protest are precisely the issues being adjudicated in the WHR and Lexicon protests. The only difference is that WHR and Lexicon, unlike plaintiff, actually disagree with defendant’s position on the validity of their BPAs and the propriety of the corrective action. There is no reason why plaintiff, as intervenor-defendant in those cases, cannot argue that the BPAs are invalid and the corrective action is justified—in fact, plaintiff, as defendant-intervenor, has argued just that.

Finally, the lack of ripeness illustrates that, as of yet, plaintiff has not suffered an injury sufficient to give it standing. Article III standing requires a plaintiff to show (1) a “concrete and particularized,” as well as “actual or imminent,” injury in fact, (2) that the injury is “fairly traceable” to the challenged government conduct, and (3) that the injury is “like” to be “redressed by a favorable decision.” Lujan, 504 U.S. at 560 (1992). In the context of a post-award bid protest, the injury an actual or prospective bidder must show is that the agency action has deprived the bidder of a “substantial chance” to win the award. Orion Technology, Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (citing Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006)). Here, defendant is currently defending a proposed corrective action that would cancel awards to plaintiff’s competitors and invite a new procurement in accordance with plaintiff’s wishes. Since plaintiff’s injury is entirely contingent upon defendant losing in the WHR and Lexicon protests, it is not possible to conclude that plaintiff has currently suffered the injury requisite for standing.

In short, the court concludes that plaintiff’s protest fails to meet the standards for several justiciability doctrines. First, the parties are not truly “adverse.” Second, whatever adversity may have once existed, it has been rendered “moot” by defendant’s proposed corrective action. Third, to the extent any dispute exists between the parties, it is not “ripe” for adjudication. Fourth, and finally, because plaintiff’s asserted injury has not come to fruition, plaintiff has no standing to maintain this protest.

In conclusion, for the foregoing reasons, plaintiff’s protest is DISMISSED, without prejudice, for lack of subject-matter jurisdiction. The Clerk is directed to take the necessary steps to dismiss this matter.  (Brookfield Relocation Inc. v. U. S., No. 13-592C, October 4, 2013)  (pdf)

This court possesses jurisdiction to review an agency’s override of the CICA stay pursuant to 28 U.S.C. § 1491(b)(2) because the decision whether to override the CICA stay is agency action “in connection with a procurement.” RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (“Where an agency’s actions under a statute so clearly affect the award and performance of a contract, this court has little difficulty concluding that that statute has a ‘connection with a procurement.’”). However, the Court’s review of the override decision is limited and does not involve review of the underlying protest before the GAO. Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705, 710 (2006).

Defendant and defendant-intervenor move to dismiss plaintiff’s action for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”) because of three events that they claim have rendered this action moot: (1) DOI’s issuance of a stop-work order to Stanley on October 19, 2010; (2) GAO’s dismissal of Harris’s protest as academic because of DOI’s decision to undertake corrective action; and (3) DOI’s representation that the stay of performance of the follow-on CONNECT contract will remain in effect “during the pendency of the corrective action.” Def.’s Renewed Mot. at 8; Stanley’s Mot. at 3; Defendant’s Reply in Support of Its Renewed Motion to Dismiss at 6 (docket entry 51, Nov. 19, 2010) (“Def.’s Reply”); see also Revised Corrective Action Letter at 2. The burden rests with defendant to demonstrate that an action is moot. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., (TOC) Inc., 528 U.S. 167, 190-92 (2000) (contrasting mootness with standing and holding that defendant bears the burden to demonstrate mootness because of the potential for “sunk costs” to the judicial system in cases where the court possessed jurisdiction initially only to have the case subsequently dismissed as moot); see also Alexander v. United States, 52 Fed. Cl. 710, 713 (2002); Nat’l Med. Enters., Inc. v. United States, 11 Cl. Ct. 329, 332 (1986).

A.  Plaintiff Is Not Entitled to an Order Requiring DOI to Maintain the “Status Quo” After Dismissal of Plaintiff’s GAO Protest

1.  Plaintiff’s Original Request for Relief is Now Moot

The mootness doctrine is one of several justiciability doctrines originating from the “case or controversy” requirement of Article III of the Constitution.  “A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir. 1998) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). Additionally, while “subsequent acts may moot a request for particular relief or a count, the constitutional requirement of a case or controversy may be supplied by the availability of other relief.” Intrepid v. Pollock, 907 F.2d 1125, 1131 (Fed. Cir. 1990).

Although defendant’s burden is a “heavy” one, Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979), the Government has met its burden in this case. There is no doubt that the equitable relief originally requested by plaintiff is moot. Plaintiff’s complaint sought to enjoin DOI from permitting Stanley to continue performance of the awarded task order and a declaration that “DOI’s override decision is invalid and has no effect.” Compl. at 13. On October 19, 2010, DOI issued a stop-work order to Stanley, and DOI never made an “override decision.” Thus, there is no override the court could declare invalid or enjoin. See Eskridge Research Corp. v. United States, 92 Fed. Cl. 88, 93-94 (2010).

2.  Plaintiff is Not Entitled to an Order Requiring DOI to “Maintain the Status Quo”

After DOI represented that it intended to take corrective action and after GAO dismissed Harris’s protest, plaintiff argued that the Court should require DOI to “maintain the status quo” while the agency undertook corrective action. Pl.’s Resp. at 17. Relying on dicta from the district court’s decision in Dairy Maid Dairy, Inc. v. United States, 837 F. Supp. 1370 (E.D. Va. 1993), plaintiff argued that the Court should order the DOI to “maintain the status quo . . . during the time required for compliance with the GAO’s decision.” Pl.’s Resp. at 19 (quoting Dairy Maid, 837 F. Supp. at 1385) (emphasis supplied by plaintiff). However, this argument is based on an overly-broad reading of CICA.

CICA precludes an agency from permitting performance by the awardee “while the protest is pending.” 31 U.S.C. § 3553(d)(3)(B). The CICA stay was intended to prevent an agency from allowing performance of a protested contract during GAO’s consideration of a protest because such performance could well place the protester at a disadvantage. Pl.’s Resp. at 18; see also H. REP. NO. 98-1157 at 24 (1984); Dairy Maid, 837 F. Supp. at 1377 (observing that “Congress enacted CICA, and incorporated the stay provisions here at issue, in an attempt to provide effective and meaningful review of procurement challenges before the protested procurement[]” becomes a fait accompli) (citing Ameron Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875, 878 (3d Cir. 1986)). When DOI announced it intended to take corrective action and GAO dismissed Harris’s protest as academic, Revised Corrective Action Letter at 2; Harris Patriot Healthcare Solutions, LLC, B-404136.1, Decision (Nov. 2, 2010), that dismissal removed a prerequisite to CICA’s automatic stay—the pendency of a GAO protest.

Given the fact that dismissal of the GAO protest ended the automatic stay of performance of the follow-on CONNECT contract, it is unclear what relief plaintiff would be entitled to in order to “maintain the status quo.” The relief that plaintiff sought in its protest at GAO was a re-evaluation of DOI’s award decision taking into account plaintiff’s allegations.  But DOI is now taking corrective action in response to plaintiff’s GAO protest, agreeing to investigate the grounds on which plaintiff based its protest. Moreover, DOI has committed to maintain the stay of performance of the follow-on CONNECT contract during the pendency of the corrective action. Revised Corrective Action Letter at 2. Therefore, DOI has provided Harris with the relief it would have been entitled to if the CICA stay had remained in effect.

3.  The Court Declines to Order the Agency to Permit Harris to Retain the GFE/GFI

Next, plaintiff argues that its action is not moot because Harris seeks an order precluding DOI from requiring the return of the GFE and GFI. Pl.’s Resp. at 29-30. Plaintiff contends that requiring the return of GFE/GFI would [***]. Id. at 24-25. Further, “requiring the return of the GFE/GFI while the corrective action is on-going is illogical and an unnecessary drain on the public fisc at a time of great economic strain.” Id. at 25; see also Nov. 12 Tr. at 86 (stating that prohibiting the Government from requiring “the return of the GFE” would “provide frankly all the relief” plaintiff requires) (statement of counsel for Harris).

Defendant, however, states that Harris’s obligation to return the GFE and GFI is an obligation imposed by the now-expired bridge contract, which incorporated FAR § 52.245-1. Sole-Source Bridge RFQ Ex. B. at 8; Nov. 12 Tr. at 15; see also Def.’s Reply at 9 (“[T]he Government is well within its rights to request the return of its own property for purposes of closing out Harris’[s] now-expired contract.”) (emphasis in original). That provision, entitled “Government Property,” permits the Government at any time, upon written notice, to “[w]ithdraw authority to use [the] property.” FAR § 52.245-1(d)(3)(i)(C). Defendant thus argues that it has a contractual right to require the return of the GFE/GFI. Def.’s Reply at 9. The Court agrees.

To the extent that Harris were to conclude in the future that returning the GFE/GFI had unfairly affected DOI’s evaluation of Harris’s proposal, Harris could protest the award decision.  Finally, although plaintiff’s argument regarding the public fisc may turn out to have merit, this Court’s bid protest jurisdiction does not allow the Court to second guess the agency’s discretionary decisions regarding contract management.  See Gov’t Technical Servs. LLC v. United States, 90 Fed. Cl. 522, 527 (2009) (holding that Contract Disputes Act is the “exclusive mechanism” for resolution of disputes regarding contract management).

4.  The Voluntary Cessation Doctrine Is Inapplicable

The agency’s issuance of a stop-work order would not necessarily be enough to moot plaintiff’s action because “[i]t is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’” Friends of the Earth, 528 U.S. at 189 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)); see also Parents Involved in Cmty. Schols v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007); Unisys Corp. v. United States, 90 Fed. Cl. 510, 517 (2009). If a defendant’s voluntary cessation of challenged conduct could always render a case moot, defendant would be “free to return to [its] old ways” and resume the conduct in question once the case was dismissed. Friends of the Earth, 528 U.S. at 189 (quoting City of Mesquite, 455 U.S. at 289 n.10). Nonetheless, defendant’s “voluntary cessation” of the challenged practice can render an action moot if defendant “can demonstrate that ‘there is no reasonable expectation that the wrong will be repeated.’” United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 448 (2d Cir. 1945) (L. Hand, J.)).

Again, while “[t]he burden is a heavy one,” id., defendant has adequately shown that there is no reasonable expectation that DOI’s violation of the CICA stay will be repeated because there is no longer any CICA stay in effect. See Nov. 12 Tr. at 30 (“Here there can be no reasonable expectation that the alleged violation, the allegedly wrongful behavior, could be expected to [recur] . . . [because] there is no CICA stay to either ignore or to override. The stay no longer exists.”) (statement of counsel for Stanley). Plaintiff overstates the agency’s obligations under CICA when it argues that the case is not moot because “the risk that the Government will again disrupt the status quo is clear and substantial.” Pl.’s Resp. at 16.

CICA does not preclude every alteration to the status quo; DOI’s obligation under CICA is narrower. In this case, DOI has agreed to re-evaluate the quotations of Stanley and Harris in light of the allegations made in Harris’s GAO protest. And DOI has stated that it intends to investigate each of Harris’s allegations. It has also represented that the stay of performance of the follow-on CONNECT contract will remain in place during the pendency of DOI’s corrective action. Any action the agency may take during or as a result of its corrective action would likely constitute a separate procurement decision that Harris could seek to challenge in an appropriate forum. However, the Government’s voluntary cessation of performance during the pendency of DOI’s corrective action and statements of Government counsel regarding DOI’s lack of any present intention to request that Stanley or any other contractor perform tasks covered by the follow-on CONNECT contract are sufficient to show, with the requisite clarity, that there is no reasonable expectation that DOI’s past violations of CICA will be repeated.

B.  Any Challenge to DOI’s Conduct in Taking Corrective Action Is Not Ripe For Review

Plaintiff next argues that there remains a live controversy because DOI may be setting itself up to be able to allow Stanley to perform tasks covered by the follow-on CONNECT contract through some contracting vehicle other than the follow-on CONNECT contract. See Revised Corrective Action Letter at 2 (confirming “that, during the pendency of the corrective action, the stay of performance of the [CONNECT] Solution 2010 contract shall remain in place.”) (emphasis added). Plaintiff argues that the Court should “enjoin[] the Government during the pendency of the corrective action process . . . from allowing Stanley to perform tasks covered by the CONNECT Solution 2010 Solicitation . . . either under the awarded contract or any other contract.” Pl.’s Resp. at 29-30. Putting aside the presumption of good faith that the Government is afforded when it undertakes corrective action, Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 940 (Fed. Cir. 2007), plaintiff’s theory runs afoul of another justiciability doctrine: ripeness.

“[T]he ripeness doctrine . . . prevent[s] . . . courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also . . . protect[s] 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. 136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Agency action is ripe for review when it (1) “marks ‘the consummation of the agency’s decisionmaking process,’ i.e., it [is] not . . . merely tentative or interlocutory” and (2) it is one that determines “rights or obligations” or is one “from which legal consequences will flow.” NSK Ltd. v. United States, 510 F.3d 1375, 1385 (Fed. Cir. 2007) (quoting Bennett v. Spear, 520 U.S. 154, 177 (1997)). This court has recognized in similar contexts that “[a] claim is not ripe where it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Eskridge, 92 Fed. Cl. at 94 (quoting Tex. Bio & Agro-Def. Consortium v. United States, 87 Fed. Cl. 798, 804 (2009)); see also Commonwealth Edison Co. v. United States, 56 Fed. Cl. 652, 658 (2003).

Plaintiff’s suspicions about DOI’s future actions are simply too speculative to create a ripe controversy. In Madison Services, Inc. v. United States, 90 Fed. Cl. 673, 676 (2009), the plaintiff filed a protest in this court challenging the Federal Emergency Management Agency’s “expressed intention” to follow the recommendation of the GAO in a previous bid protest. The Government moved to dismiss on the ground that the agency had not yet definitively determined whether and how to implement GAO’s recommendation. Id. at 677. After the motion to dismiss had been fully briefed, the Government filed a renewed motion to dismiss informing the court that the underlying procurement had been cancelled. Id.

Like the plaintiff in Madison Services, Harris “cannot avoid dismissal by speculating as to what [DOI] might do.” Id. (emphasis added); see also Forestry Surveys & Data v. United States, 44 Fed. Cl. 485, 492 (1999) (declining to grant relief regarding agency’s potential use of past performance ratings in awarding future contracts because “no action can be maintained regarding future, and at this point speculative, contracts”). As Madison Services further demonstrates, speculation as to what the agency might do cannot give rise to a ripe controversy because the agency can decide to pursue a different course of action, as it did in Madison Services by cancelling the solicitation altogether.

Indeed, plaintiff is arguably in a worse position than the plaintiff in Madison Services because its concern is not only speculative, but also contradicted by Government counsel’s representation that DOI has no present intention of permitting Stanley or any other contractor to perform tasks covered by the follow-on CONNECT contract under that contract or any other contractual vehicle. Nov. 12 Tr. at 6-8. If future circumstances lead the DOI to change its mind in order to “meet its immediate and short term needs,” id. at 8, plaintiff may at that point seek to challenge DOI’s action in an appropriate forum. See id. at 25 (“[DOI] would have a right to explain the basis for wanting to utilize Stanley or someone else, and this Court would then have an opportunity to . . . review . . . that action, and determine its propriety, as well as weigh any harm that Harris would suffer as a result of that usage, and any harm that the government might suffer by being enjoined from using it, and where the public interest lies.”) (statement of counsel for defendant). But until the agency acts in a way that is not “merely tentative or interlocutory,” NSK, Ltd., 510 F.3d at 1385, this court may not adjudicate plaintiff’s unripe claims.

C.  The Court Declines to Stay Proceedings and Lacks Authority to Retain Jurisdiction Pending Future Developments

Plaintiff alternatively requests that the Court stay proceedings and retain jurisdiction over this action “to ensure that Harris has an opportunity for a bid protest remedy.” Pl.’s Resp. at 31.  Plaintiff fears that DOI may elect to contract using a vehicle “arguably insulated from traditional bid protest review, separate and apart from the override issues before this Court.” Id.

Although plaintiff may be correct that future action by the DOI could leave it without a forum to hear its bid protest, such an outcome would be the result of the interplay of statutes regulating federal government procurement enacted by Congress at different times. The jurisdictional limitations that might prevent challenges to agency action in this court would remain applicable whether or not proceedings in this case were stayed. Plaintiff’s concerns about the limitations Congress has imposed on this Court’s jurisdiction over bid protests do not provide a basis for this Court’s retaining jurisdiction and do not present a “pressing need for [a] stay” of proceedings in this case. Cherokee Nation of Okla. v. United States, 124 F.3d 1413, 1416 (Fed. Cir. 1997).

Moreover, the requirement that the parties be involved in a live dispute—i.e., one that is neither moot nor unripe—is a fundamental prerequisite to the court’s jurisdiction, namely, the requirement of a justiciable controversy. See Massachusetts v. Envtl. Protection Agency, 549 U.S. 497, 516 (2007); see also Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1336 (Fed. Cir. 2008) (discussing the Supreme Court’s development of “various more specific but overlapping doctrines rooted in the same Article III inquiry, which must be met for a controversy to be justiciable, including standing, ripeness, and a lack of mootness”). Staying the case while retaining jurisdiction is simply not an option because, having found that plaintiff’s claims are either moot or unripe, the Court has no jurisdiction to hear them, and “must dismiss the action.” RCFC 12(h)(3) (emphasis added); see also Chapman Law Firm, 490 F.3d at 939-40 (after a finding that the action was moot, “the Court of Federal Claims should have dismissed the case”).  (Harris Patriot Healthcare Solutions, LLC v. U. S. and Stanley Associates, Inc., No. 10-708C, December 14, 2010)  (pdf)

In this bid protest action, Plaintiff, Ezenia!, Inc. (Ezenia), as well as the Defendant- Intervenor Carahsoft Technology Corp. (Carahsoft), are vendors on the Army’s Federal Supply Schedule that provide commercial software to the military. The military, and in particular the Army, use different types of software for command and control of soldiers, especially those who are engaged in combat operations. These products allow video-teleconferencing on a computer via the internet in a secure environment, while at the same time allowing the computer screen to show the windows from other computer programs such as PowerPoint presentations or battle plan diagrams. Two such products are Adobe Breeze (now called Adobe Connect) and Ezenia’s InfoWorkspace (IWS). Because of the need for interoperability, the Army standardized the software through an evaluation technique called “Best of Breed” and chose Adobe Breeze as its computer software. Ezenia clearly states in its papers that it is not protesting the actual decision of the Army to standardize, but rather is challenging the award of sole-source contracts for the brand name Adobe Connect product. Ezenia alleges that three contracts were procured in violation of the proper statutory and regulatory guidelines governing those awards. As such, Ezenia asserts that it is an interested party protesting the Army’s actions in connection with these procurements. Defendant and Defendant-Intervenor move this Court to dismiss Plaintiff’s action pursuant to Rule 12(b)(1) for want of subject-matter jurisdiction. Both Defendant and Defendant-Intervenor argue that the matter must be dismissed because Plaintiff fails to identify a procurement action within this Court’s jurisdiction, and/or that Plaintiff is not an “interested party” with standing to bring this action. Both assert that Ezenia is not an “interested party” because Ezenia is not a qualified bidder. Both further contend that Ezenia is really protesting the standardization decision of the Army to use the Adobe product and that this Court is without jurisdiction to entertain such a protest. After briefing, oral argument and careful consideration, the Court finds that it must dismiss this matter. It is clear to the Court that even though Ezenia states clearly that it is not challenging the Army’s decision to standardize, that is exactly what Ezenia is challenging. The procurements that have been identified by both Plaintiff and Defendant are purchases that were properly done within the statutory and regulatory guidelines. Although not necessary, the Court also finds that Plaintiff is not an interested party. The Court, therefore, GRANTS Defendant’s and Defendant- Intervenor’s Motions to Dismiss.  (Ezenia!, Inc. v. U. S. and Carahsoft Technology Corporation, No. 07-759C, Reissued after seal on January 4, 2007)

In its complaint, Centech alleges that (1) GAO lacked jurisdiction over Tybrin’s protest, (2) Tybrin’s protests before GAO were untimely, and (3) GAO acted “illegally” and “arbitrarily,” in granting Tybrin’s protest. Compl. ¶ ¶ 22-25, 28, 42, 44-47, 48-52, 56-57, 59-61, 63-69, 81, 85-90. This Court, however, will not undertake a review of GAO’s procedural or substantive decisions. GAO is an arm of the Congress, and its bid protest jurisdiction apparently derives from its authority to settle claims against the Government and to certify and revise public accounts.18 GAO’s decisions are recommendations and are not subject to review in any court. In 1984, under CICA, GAO for the first time acquired explicit statutory authority to preside over “protest[s] concerning an alleged violation of a procurement statute or regulation.” 31 U.S.C. § 3552. If a protest is sustained, CICA permits GAO to recommend an appropriate remedy “to promote compliance with procurement statutes and regulations,” which may include ordering a new solicitation, terminating the contract, limiting the existing contract to bring it into compliance with procurement law, or awarding the protester its bid preparation and protest costs. 31 U.S.C. § 3554.19 Because the Comptroller General may only “recommend” a remedy upon finding a procurement violation, GAO’s rulings do not legally bind the parties to a bid protest. 31 U.S.C. § 3554(b), (c); see Cubic Applications, Inc. v. United States, 37 Fed. Cl. 339, 341 (1997) (“Neither the agency nor this court is bound by the determination of the GAO.”); see also Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (finding that trial court is not bound by GAO recommendation and must determine whether GAO’s decision itself was irrational in reviewing agency action which relied upon GAO decision). Section 1491(b) gives this Court jurisdiction to review an agency procurement decision, not the GAO’s review of that agency procurement decision. See Advanced Constr. Servs., Inc. v. United States, 51 Fed. Cl. 362, 365 (2002) (“Construing § 1491(b)(1) in the expansive manner advocated by [Plaintiff] would violate the well-settled principle that it is the agency's decision, not the decision of the GAO that is the subject of judicial review when a bid protestor protests an award previously reviewed by the GAO.”). Although GAO’s actions are not reviewable in this Court, this does not mean that the Court cannot consider GAO’s decision at all. Indeed, CICA requires that the GAO decision be part of the administrative record in the Court’s protest action. See 31 U.S.C. § 3556. Further, to the extent that the agency relied upon GAO’s decision as a basis for taking corrective action, GAO’s decision is pivotal for the Court’s review of the agency’s procurement decision. See, e.g., Honeywell, 870 F.2d at 648 (stating that in deciding whether an agency justifiably followed GAO’s recommendation, this court’s controlling inquiry is whether GAO’s decision was rational and cautioning the court not to undertake a de novo review of the underlying issue).  (The Centech Group, Inc., v. U. S. and Tybrin, Inc., 07-513C, Filed September 25, 2007; Reissued September 27, 2007)  (pdf)

What makes this bid protest unusual is the jurisdictional issue arising from the solicitation’s citation to the Randolph-Sheppard Act. Despite KDB’s bid protest challenging the Army’s contract award to another offeror, the key question in this case is whether State Licensing Agencies like KDB must seek relief under the RSA’s arbitration scheme before filing a post-award bid protest. Weinberger’s statutory interpretation is sound.

A good example which happens to be of particular relevance to the present case is Randolph- Sheppard Vendors of America v. Weinberger, 795 F.2d 90 (D.C. Cir. 1986). In Weinberger, the Court of Appeals for the D.C. Circuit focused on the “clear and explicit system for resolution of disputes arising under the Act” to construe the meaning of the RSA as a whole and Congress’s intent to construct a mandatory arbitration process. Id. at 102.  This court concludes not only that Weinberger is persuasive, but also that it represents the best rationale for evaluating the scope of the RSA’s arbitration scheme and its implicit requirement of administrative exhaustion before judicial intervention will obtain. Other courts have also conclusively adopted exhaustion as the rule in RSA disputes. See, e.g., Comm’r of Blind Vendors v. District of Columbia, 28 F.3d 130, 135 (D.C. Cir.1994) (“[T]he text of the Act manifests Congress’s intent that aggrieved vendors pursue their administrative remedies before resorting to Article III adjudication.”) (citing Weinberger, 795 F.2d at 101-04); Fillinger v. Cleveland Soc. for the Blind, 587 F.2d 336, 338 (6th Cir. 1978) (“Congress’ decision to provide administrative and arbitration remedies for aggrieved blind vendors clearly evidences a policy judgment that the federal courts should not be the tribunal of first resort for the resolution of such grievances. Rather congressional policy as reflected in the 1974 amendments is that blind vendors must exhaust their administrative and arbitration remedies before seeking review in the district courts.”); Middendorf v. United States, 92 F.3d 1193 (9th Cir. 1996) (table opinion) (“Judicial review of a vendor’s claim may only occur after the decision of an arbitration panel convened by the Secretary.”); Morris v. Maryland, 908 F.2d 967 (4th Cir. 1990) (table opinion) (“A reading of the statute demonstrates that the Randolph-Sheppard Act mandates the exhaustion of the administrative remedies prior to instituting an action in the federal courts.”); Ala. Dept. of Rehab. Servs. v. U.S. Dep’t of Veterans Affairs, 165 F. Supp.2d 1262,1269 (M.D. Ala. 2001) (“The Randolph-Sheppard Act’s plain language does not expressly require exhaustion, but courts have construed the act’s administrative framework to be mandatory.”) (citing Comm’r of Blind Vendors, 28 F.3d at 134); New York v. U. S. Postal Serv., 690 F. Supp. 1346, 1349 (S.D.N.Y. 1988) (citing Weinberger as a “thorough and exhaustive opinion” whose “reasoning is persuasive,” the court concluded that an argument in favor of voluntary arbitration was “less than compelling”); Mass. Elected Comm’r of Blind Vendors v. Matava, 482 F. Supp. 1186 (D. Mass. 1980) (“The conclusion reached by the Sixth Circuit in Fillinger is a sound one.”). (Commonwealth of Kentucky, Eduaction Cabinet, Department for the Blind v. U. S., No. 04-831C, October 13, 2004) (pdf)

For the above-stated reasons, the court holds that it has jurisdiction to decide whether the Secretary of Agriculture’s determination that it is necessary in the public interest to make a sole source modification to intervenor’s contract is clearly and convincingly justified, as required by 48 C.F.R. § 6.302-7, notwithstanding the discretion provided by 41 U.S.C. § 253(c)(7)(A).  (Spherix, Inc., v. U. S. and ReserveAmerica Holdings, Inc., No. 03-2371C, November 3, 2003)

The term “Federal agency” as used in the Tucker Act does not have a meaning different from the term “agency” in 28 U.S.C. § 451. Defendant has not shown that the Architect of the Capitol is a Legislative Branch entity; or if it is, that the Architect would be excluded from this court’s jurisdiction.  (Bell BCI Company v. U. S., No. 03-796C, May 13, 2003)  (pdf)

In these circumstances there is a question of whether plaintiff’s claim is ripe for review. A claim is not ripe “if it is premised upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). If a claim is not ripe, the court does not have jurisdiction to hear the case, and it must be dismissed without prejudice. Crawford v. United States, 53 Fed. Cl. 191, 195 (2002).  Because plaintiff’s possible entitlement to bid preparation costs cannot be determined until the conclusion of the procurement process, plaintiff’s claim for the remaining relief sought under its complaint is not ripe at this time. “Without a [conclusion of the procurement], plaintiff’s claim before this court is premature.”  Id. at 194. Plaintiff’s complaint as to its claim for bid preparation costs should therefore be dismissed without prejudice.  (Bannum, Inc., v. U. S., No. 03-839C, May 8, 2003)  (pdf)

The court concludes that the term "agency" in 28 U.S.C. § 451 does not reach the judicial branch unless any of the listed entities is the agency in question. This provision lists entities that constitute an "agency," then goes on to suggest that the definition might be limited depending on the context. At argument plaintiffs characterized the listed entities "as a laundry list, unless a more limited context is indicated." See Transcript of Proceedings, Novell, Inc. v. United States, No. 00-66C, at 57 (Fed. Cl. Apr. 19, 2000) ("Tr."). Intervenors rejoined that plaintiffs failed to establish that the AOUSC was an agency, or a department, or an independent establishment, or a commission, or an administration, or an authority, and so forth.  (Novell, Inc., and Software Spectrum, Inc., v. U. S. and Lotus Development Corp. and ASAP Software Express, Inc., No. 00-66C, May 8, 2000)  (pdf)

Pursuant to the Tucker Act, this court maintains concurrent jurisdiction with the district courts to consider pre-award and post-award bid protests actions. See 28 U.S.C.A. § 1491(b)(1) (West Supp. 1998). "Maritime contracts[, however,] are a major exception to this Court's Tucker Act jurisdiction." Phipps v. United States, 21 Cl. Ct. 729, 731 (1990). "Jurisdiction over matters arising in admiralty, including maritime contracts, has traditionally been with the federal district courts." Southwest Marine of San Francisco, Inc. v. United States, 896 F.2d 532, 534 (Fed. Cir. 1990).   (Bay Ship Management, Inc. v. U. S., No. 99-184C, April 16, 1999)