Hymas v. United States
117 Fed. Cl. 466
Fed. Cl.2014Background
- The Fish & Wildlife Service (Service) runs cooperative farming agreements on McNary and Umatilla National Wildlife Refuges: private farmers farm refuge land, keep ~75% of crop, and leave the remainder to feed migratory birds. The program dates to the 1970s and refuge plans favor cooperative farming as a low-cost option.
- Jay Hymas sought to participate in 2013 and 2014 farming cycles but was denied under the Service’s "priority system," which gives preference to incumbents, prior landowners, tenants, and local neighbors.
- Hymas filed a bid protest in the Court of Federal Claims arguing the Service should have used competitive procedures under the Competition in Contracting Act (CICA) and the Federal Grant and Cooperative Agreement Act (FGCAA), and that the agency’s reliance on refuge manuals and post-hoc explanations was arbitrary and capricious under the Administrative Procedure Act (APA).
- The Government argued the agreements were "cooperative agreements" (not procurements), exempt under statutes and regulations (including 50 C.F.R. § 29.2 and 16 U.S.C. § 742f), and that some claims were moot; it also relied on the Refuge Manual priority language and a post-complaint Directorate amendment reinstating the Refuge Manual.
- The Court held it had Tucker Act bid-protest jurisdiction, found Hymas had standing, rejected mootness, concluded the Service’s use of a noncompetitive priority system violated CICA and the FGCAA, found agency noncompliance with governing manuals and arbitrary agency reasoning, and enjoined the Service from awarding cooperative farming agreements for the 2015 season and thereafter unless selection complied with CICA, FGCAA, and the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction (was this a "procurement" under §1491?) | Hymas: Agreements procure farming services to feed refuge wildlife and thus fall within the broad Federal Circuit definition of "procurement." | U.S.: These are cooperative agreements (assistance/partnership), not procurements; FGCAA definitions control and the CFC lacks bid-protest jurisdiction. | Court: Agreements are procurements (intermediaries provide services to benefit wildlife); CFC has bid-protest jurisdiction. |
| Standing / Interested party | Hymas: He attempted to bid and had economic interest and a substantial chance but for priority system. | U.S.: Did not contest in substance. | Court: Hymas is an interested party with standing and showed prejudice/substantial chance. |
| Applicability of CICA/FGCAA and statutory exemptions | Hymas: Priority system denied required full and open competition; statutes cited by Government do not exempt the Service; FGCAA requires procurement contract where government acquires services. | U.S.: Statutes (1958 Act, 1966 Admin Act, 1998 Volunteer Act) and 50 C.F.R. §29.2 authorize cooperative agreements and exempt Service from competition; cooperative agreements are appropriate instrument. | Court: Statutes and regulation do not exempt the Service; Service violated CICA and FGCAA because it procured farming services via noncompetitive priority system. |
| APA / agency procedures and remedy (injunction) | Hymas: Service violated Departmental Manual and (effectively resurrected) Refuge Manual; post-hoc rationalizations; relief should include injunction and reprocurement. | U.S.: Actions were reasonable (risk minimization, incumbency justified), retroactive manual amendment cures any procedural defect, injunction would harm wildlife and cooperator investments. | Court: Service failed to follow Departmental Manual and relied on a Refuge Manual that was not in effect (retroactive amendment improper); post-hoc rationalizations insufficient; permanent injunction issued preventing cooperative farming awards for 2015+ until compliant procedures used (but court denied compelling award of specific fields to Hymas). |
Key Cases Cited
- Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed. Cir.) (defines "procurement" broadly for Tucker Act jurisdiction)
- Resource Conservation Group, LLC v. United States, 597 F.3d 1238 (Fed. Cir.) (uses Distributed Solutions procurement scope)
- CMS Contract Mgmt. Servs. v. United States, 745 F.3d 1379 (Fed. Cir.) (intermediary-beneficiary analysis: agreements supplying services to benefit third parties are procurements)
- 360Training.com, Inc. v. United States, 104 Fed. Cl. 575 (Fed. Cl.) (court exercised jurisdiction where agency used cooperative agreements to obtain services)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir.) (RCFC 52.1 trial-on-the-record / judgment on administrative record standard)
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir.) (bid protestors must show clear and prejudicial violation of statutes/regulations)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S.) (arbitrary-and-capricious review standard)
- PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir.) (four-factor injunction test in procurement cases)
- Parcel 49C Ltd. P'ship v. United States, 31 F.3d 1147 (Fed. Cir.) (remedy: set-aside and reprocurement appropriate where award process illegal)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (U.S.) (voluntary cessation doctrine / mootness)