128 Fed. Cl. 656
Fed. Cl.2016Background
- Proxtronics (plaintiff), a longstanding reseller/incumbent of Panasonic-brand thermoluminescent dosimeter (TLD) badges, sued after the Air Force awarded annual TLD contracts to RDC, Panasonic’s authorized distributor.
- Panasonic changed its distribution strategy in early 2014, directing sales of TLD badges through RDC; Panasonic informed both Proxtronics and the Air Force.
- For FY2014 the Air Force posted sources-sought notices, received only RDC’s response, issued a sole-source award to RDC (Sept. 2014), and the contract was fully performed by Aug. 2015.
- For FY2015 the Air Force initially posted a sources-sought; Proxtronics responded, was initially told it could not be considered because it wasn’t an authorized reseller, filed a GAO protest, then provided documentation showing it could obtain badges via a European partner; the Air Force proceeded to a competitive solicitation, received proposals from Proxtronics and RDC, found both technically acceptable, awarded to RDC based on lower price (Sept. 2015).
- Proxtronics brought a bid protest in the Court of Federal Claims alleging improper sole-source award (2014), failure to set aside for small business and failure to conduct a size determination (2015), Lanham Act and other non-Tucker Act claims, and requested jurisdictional discovery.
- The court considered defendant’s Hasen declaration and exhibits, granted the government’s motion to dismiss, and denied jurisdictional discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Court’s jurisdiction over Lanham Act and district-court statutes | Proxtronics invoked Lanham Act and 28 U.S.C. §§ 1331/1332/1338 to support jurisdiction | Only §1491(b) supports bid-protest jurisdiction in the Court of Federal Claims; Lanham and district-court statutes lie with district courts | Dismissed for lack of jurisdiction; Lanham Act and cited district-court statutes not entertainable in this court |
| Standing for FY2014 sole-source award | Proxtronics argued it was an interested party and that Panasonic’s dealer arrangement made RDC the only source | Proxtronics did not respond to the SSS/NOI or submit a proposal pre-award, so it was not an actual or prospective offeror | No standing: dismissed (no status as actual/prospective offeror) |
| Waiver/timeliness for FY2014 | Proxtronics cited contemporaneous complaints to SBA/FTC and senators | Government: Proxtronics failed to file protest with procuring agency, GAO, or this court before award; letters to SBA/FTC/congressional inquiries do not preserve protest | Waived: failure to timely protest or respond to SSS/NOI pre-award bars later challenge |
| Mootness of FY2014 claims | Proxtronics sought remedies for sole-source award | Government: contract was fully performed before filing in this court, so injunctive relief and bid costs unavailable | Moot: post-completion protest dismissed |
| Standing and merits for FY2015 award | Proxtronics argued Air Force failed to set aside procurement for small business and failed to do a size determination | Govt: Air Force conducted market research, reversed prior strategy after Proxtronics showed it could supply badges, proceeded to competitive solicitation, both bidders were small businesses, RDC had lower evaluated price | Standing exists (Proxtronics was an actual offeror) but protest waived: Proxtronics failed to timely challenge solicitation terms (set-aside issue) before close of bidding; dismissal warranted |
| Jurisdictional discovery request | Proxtronics sought discovery to rebut jurisdictional defenses and to show bad faith/antitrust concerns | Govt: plaintiff offered only speculation; discovery unnecessary because record and facts are not materially disputed and do not cure standing/waiver/mootness defects | Denied: plaintiff failed to show specific, well-grounded need or likelihood discovery would overcome presumption of regularity |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (untimely challenges to solicitation or failure to object pre-award waive later protest)
- Bannum, Inc. v. United States, 779 F.3d 1376 (Fed. Cir. 2015) (timeliness/waiver principles for postaward bid protests)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (definition of interested party for §1491(b) jurisdiction)
- Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071 (Fed. Cir. 2001) (substantial chance test for prejudice in sole-source procurements)
- Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366 (Fed. Cir. 2002) (standing requires showing would have been a qualified bidder)
- Rex Serv. Corp. v. United States, 448 F.3d 1305 (Fed. Cir. 2006) (interested party must be actual or prospective bidder)