Continental Service Group, Inc. v. United States
17-664
Fed. Cl.Dec 4, 2017Background
- ED awarded 22 identical 2009 GSA Schedule task orders to private collection agencies (PCAs) for defaulted student-loan collections; Section H.4 allowed the Government to grant Award Term Extensions (ATEs) to eligible PCAs based on CPCS performance scores.
- In 2015 ED awarded five 2015 ATEs and denied ATEs to four firms (including Alltran and Pioneer); those firms filed bid protests in the Court of Federal Claims; the Federal Circuit later held the Claims Court had jurisdiction over ATE awards.
- ED conducted corrective action in early 2017 and on April 28, 2017 offered 2017 ATE Task Orders to Coast Professional, NRI, Alltran, and Pioneer; Alltran and Pioneer accepted.
- ConServe (a 2009 task-order awardee and holder of a 2015 ATE) filed this protest challenging ED’s April 28, 2017 corrective-action awards as contrary to full-and-open-competition requirements and as arbitrary and capricious.
- The Government moved to dismiss for lack of standing; ConServe argued it remained a prospective bidder because Section H.4 permits multiple ATEs and it had qualifying CPCS scores.
- The Court found it had subject-matter jurisdiction under 28 U.S.C. § 1491(b)(1) but held ConServe lacked standing as an “interested party” and dismissed the amended complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction over ATE awards | ATE issuance is a contract award under §1491(b)(1) and thus cognizable | Same; Government conceded jurisdiction after Coast Professional II | Court: Jurisdiction exists under §1491(b)(1) (Coast Professional II controlling) |
| Standing — direct economic interest / "substantial chance" of award | ConServe eligible by CPCS score and Section H.4 permits a contractor to earn multiple ATEs; thus had substantial chance | ConServe already received and performed a 2015 ATE; Section H.4 is discretionary ("may") and did not guarantee a second ATE; no substantial chance | Court: ConServe failed to show a substantial chance and thus lacks standing as an interested party |
| Standing — prospective bidder / offeror status for post-award protest | ConServe was a potential bidder for additional ATEs under the 2009 task order and diligently pursued protest rights | It was a contractor, not an actual offeror for the 2017 awards, and it would be nonsensical to award a second ATE as corrective action | Court: ConServe was not an interested prospective bidder for the 2017 ATEs and lacks standing |
| Requirement of full and open competition for ED's corrective awards | New ATE awards are new contract awards so must be procured via full and open competition absent justification | Coast Professional II addressed jurisdiction only; full-and-open-competition requirement not established here; only a limited pool qualified by CPCS | Court: Did not decide that full-and-open competition was required because ConServe lacked standing to press that claim |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (jurisdiction is a threshold issue)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (plaintiff bears burden to establish standing)
- Coast Prof'l, Inc. v. United States, 828 F.3d 1349 (Fed. Cir. 2016) (issuance of new task orders under GSA Schedule constitutes award of a contract for §1491 jurisdiction)
- Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016) (GSA Schedule orders create contractual obligations)
- Myers Investigative & Sec. Servs. v. United States, 275 F.3d 1366 (Fed. Cir. 2002) (standing is threshold; interested-party requirements)
- Rex Serv. Corp. v. United States, 448 F.3d 1305 (Fed. Cir. 2006) (interested-party definition under CICA applied to §1491 protests)
- Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir. 2003) (direct economic interest/substantial chance standard)
- Labatt Food Serv., Inc. v. United States, 577 F.3d 1375 (Fed. Cir. 2009) (prejudice relates to standing in bid protests)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (waiver rule for patent solicitation errors)
- Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573 (Fed. Cir. 1993) (Court may consider jurisdictional facts beyond pleadings)