Miles Construction, Llc v. United States
108 Fed. Cl. 792
Fed. Cl.2013Background
- Miles Construction, LLC is a Pennsylvania SDVOSB; CVE verified SDVOSB status on March 5, 2012.
- Miles bid as apparent low bidder on VA Solicitation VA-244-12-B-0455, a storm sewer repair set-aside for SDVOSBs.
- The second-lowest bidder protested Miles’s SDVOSB eligibility, prompting OSDBU review.
- OSDBU determined Miles did not have unconditional ownership due to restrictions in Miles’s Operating Agreement (Articles X, XI, XII), and Miles was removed from the VIP database on August 27, 2012.
- Miles filed a pre-award bid protest in this court seeking reinstatement and the contract; the court has jurisdiction under 28 U.S.C. § 1491(b)(1) and reviews under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review a VA SDVOSB status protest. | Miles asserts jurisdiction under § 1491(b)(1) and related caselaw. | Government contends limited standing and role of protest. | Court grants jurisdiction under § 1491(b)(1). |
| Whether Miles has standing as an actual bidder with a substantial chance of award. | Miles was the apparent low bidder and suffered injury from removal. | Miles’ status removal precludes substantial chance of award. | Miles has standing; substantial chance shown. |
| Whether OSDBU reasonably interpreted unconditional ownership under 38 C.F.R. § 74.3(b) and used proper procedures. | Miles argues Article XI’s ROFR is not an executory impediment and OSDBU acted arbitrarily. | OSDBU may rely on guidance and the VAB; process was proper. | OSDBU’s interpretation and procedures were arbitrary and capricious and unlawful. |
| Whether OSDBU violated due process by conducting an unconditional-ownership review not raised in protest. | Miles claims OSDBU expanded the protest without notice or opportunity to respond. | OSDBU acted within agency protest framework and timing. | OSDBU’s due-process deficiencies render its decision invalid under the APA. |
| Whether Miles suffered prejudice and whether relief should issue. | Miles would have had a substantial chance but for OSDBU’s errors. | Relief should be limited due to limited remedy and other factors. | Miles shown prejudice; relief granted in part; OSDBU’s removal set aside. |
Key Cases Cited
- RAMCOR Servs. Group, Inc. v. United States, 185 F.3d 1286 (Fed. Cir. 1999) (§1491(b)(1) scope includes procurement-related statutory violations)
- Angelica Textile Servs. v. United States, 95 Fed. Cl. 208 (2010) (broad definition of procurement ‘in connection with’)
- Systems Application & Techs., Inc. v. United States, 691 F.3d 1374 (Fed. Cir. 2012) (jurisdiction and standing standards in bid protests)
- PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir. 2004) (standards for injunctive relief and equitable relief in bid protests)
- Centech Grp., Inc. v. United States, 554 F.3d 1029 (Fed. Cir. 2009) (four-factor test for permanent injunction in bid protests)