DIAZ v. United States
1:16-cv-00138
Fed. Cl.Jul 27, 2016Background
- Pro se plaintiff Kevin Diaz (appearing to act for a small business named MERAD) submitted an unsolicited proposal to the Navy (IHEODTD) for a shockwave/fragmentation-protection technology in Sept. 2015.
- The Navy contracting officer rejected the proposal in writing (Nov. 2, 2015), finding it failed FAR 15.603(c) requirements (not sufficiently detailed, not shown to be innovative/unique, and uncertain origin). A reconfirmation followed Nov. 19, 2015.
- Diaz filed an ASBCA protest seeking relief; ASBCA dismissed for lack of contract jurisdiction. While that appeal was pending, Diaz filed suit in the U.S. Court of Federal Claims seeking $1.4M (and other relief) alleging FAR Subpart 15.6 violations.
- Government moved to dismiss for lack of Tucker Act jurisdiction (no money-mandating provision / no interested-party standing) and for failure to state a claim (no implied-in-fact contract). Diaz opposed and moved for summary judgment.
- The Court found Diaz likely attempting to litigate on behalf of MERAD (a business entity) but Diaz is not a licensed attorney and thus may not represent an entity under RCFC 83.1(a)(3). The Court also found insufficient evidence that the unsolicited proposal had a "substantial chance" of award (no prejudicial competitive injury).
- Holding: Court granted defendant’s motion to dismiss for lack of jurisdiction / failure to state a claim; Diaz’s summary-judgment motion was moot; complaint dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Court has Tucker Act jurisdiction under 28 U.S.C. §1491(b)(1) for alleged FAR 15.6 violation | Diaz says FAR Subpart 15.6 violation in connection with procurement gives jurisdiction and seeks money relief | Gov't says FAR/15.6 does not create a money-mandating right and Diaz lacks an identifiable money-mandating source | Dismissed: plaintiff failed to identify a money-mandating provision and failed to establish standing as an "interested party" |
| Standing as an "interested party" (prejudice / substantial chance of award) | Diaz contends Navy's review was unreasonable and communications show a substantial chance of funding/contract | Gov't argues the initial rejection complied with FAR 15.603/15.606 process and no promise or competitive injury is shown | Dismissed: no demonstrable substantial chance of receiving award; no prejudicial competitive injury |
| Capacity to sue / represent MERAD (entity representation by pro se litigant) | Diaz proceeds pro se but submitted proposal showing MERAD as prime offeror and named himself as MERAD contact | Gov't notes RCFC 83.1(a)(3) bars non-attorneys from representing corporations/entities; pro se may only represent self or immediate family | Dismissed: complaint appears to assert claims on behalf of MERAD; Diaz may not represent an entity pro se under RCFC 83.1(a)(3) |
| Adequacy of agency review under FAR 15.603/15.606 | Diaz asserts the contracting officer omitted consideration of proposal's "fragmentation protection" and acted unreasonably | Gov't shows contracting officer performed initial review, provided detailed written reasons, and reconfirmed after additional submission | Held: agency afforded the required review; presumption of regularity not rebutted; rejection reasonable |
Key Cases Cited
- United States v. Sherwood, 312 U.S. 584 (establishes that claims against non-government defendants must be dismissed in Claims Court)
- Haines v. Kerner, 404 U.S. 519 (pro se pleadings are liberally construed)
- Arbauqh v. Y & H Corp., 546 U.S. 500 (subject-matter jurisdiction may be raised at any time)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (explains "substantial chance"/prejudice standard for standing in bid protests)
- Rizzo v. Shinseki, 580 F.3d 1288 (presumption of regularity for government action)