Dellew Corporation v. United States
124 Fed. Cl. 429
Fed. Cl.2016Background
- Dellew Corporation filed a post-award bid protest challenging award to Tech Systems, Inc. under an Army RFP for logistics support at Schofield Barracks, Hawaii.
- The parties filed cross-motions for judgment on the administrative record and argued the case; after oral argument the Army elected to take corrective action.
- The Army’s corrective action: terminate TSI’s award for convenience; amend the RFP to reflect changed contract conditions and clarify indirect-rate capping language; reopen discussions and request revised technical and cost proposals from the final six offerors; require subcontractor/offeror confirmation about capped indirect rates; perform new cost-realism analyses; and make a new best-value determination and award.
- Defendant moved to dismiss under RCFC 12(b)(1) as moot; Dellew agreed dismissal was appropriate but sought a ruling it was a "prevailing party" for EAJA fees; intervenor argued the corrective action was overly broad.
- The Army had not completed corrective action at the time of the order, but the court found the corrective action addressed the protest grounds and rendered the dispute nonjusticiable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Army's corrective action moots the protest | Dellew: corrective action does moot the protest but court can still declare Dellew a prevailing party for EAJA fees | U.S.: corrective action eliminates the live controversy; dismiss for lack of justiciability/mootness | Court: Dismissed as moot; rejected advisory EAJA prevailing-party request |
| Whether voluntary corrective action is insufficient to moot the case | Dellew: implied concern that unilateral corrective action may be insufficient | U.S.: corrective action is adequate and there is no reasonable expectation of recurrence | Court: Voluntary cessation moots case where corrective action fully addresses challenged conduct and recurrence is not reasonably expected |
| Whether the scope of corrective action is overbroad relative to the protest | TSI (intervenor): corrective action is too expansive and unnecessary; could alter scope post-award instead | U.S.: amendment was reasonable and required given changes in conditions; new proposals and analyses are appropriate | Court: Intervenor’s assertions insufficient; corrective action rationally related to protest and changed procurement conditions |
| Whether dismissal here is for lack of subject-matter jurisdiction or mootness | Dellew: requested relief (EAJA) implies court retain jurisdiction | U.S.: argued dismissal under RCFC 12(b)(1) for lack of jurisdiction due to mootness | Court: Distinguished jurisdiction from justiciability; court has jurisdiction but case is nonjusticiable (moot); therefore dismissed |
Key Cases Cited
- Powell v. McCormack, 395 U.S. 486 (constitutional standing and live controversy principles)
- Aetna Life Ins. Co. of Hartford v. Haworth, 300 U.S. 227 (controversy must be definite and concrete)
- Church of Scientology of Cal. v. United States, 506 U.S. 9 (subsequent acts moot cases when effectually extinguished)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (voluntary cessation doctrine and heavy burden to prove no recurrence)
- County of Los Angeles v. Davis, 440 U.S. 625 (voluntary cessation may moot case if no reasonable expectation of recurrence)
- Chapman Law Firm v. Greenleaf Constr. Co., 490 F.3d 934 (Fed. Cir.) (corrective action moots protest when it adequately addresses challenged action)
- Intrepid v. Pollock, 907 F.2d 1125 (Fed. Cir.) (case not moot if court can fashion meaningful relief)
- Flast v. Cohen, 392 U.S. 83 (federal courts will not issue advisory opinions)