Terry v. United States
96 Fed. Cl. 131
Fed. Cl.2010Background
- Plaintiff Terry, doing business as Shirt Shack, protests AAFES Fort Benning concession award to T-Shirt House for a T-shirt concession contract.
- Plaintiff alleges the award disregarded solicitation requirements and that she owned the required equipment, spurring a bid protest under 28 U.S.C. § 1491(b).
- AAFES is a non-appropriated fund instrumentality (NAFI); plaintiff also asserts a Contract Disputes Act (CDA) claim concerning a separate Fort Benning kiosk contract.
- Contracting officer Kay K. Dunbar conducted the procurement; award to T-Shirt House was for best value based on proposed fees and MPOS submissions.
- Plaintiff contends biased procurement and that she was the only qualified bidder due to equipment ownership; AAFES denied protest and the award stood.
- Court dismisses CDA claim for lack of CDA claim submission and lack of jurisdiction; court finds jurisdiction over the bid protest claim under 1491(a)(1) implied-in-fact contract theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 1491(b) jurisdiction extends to AAFES procurements (NAFI). | Terry asserts the court has 1491(b) jurisdiction over NAFI bid protests. | AAFES is not a ‘Federal agency’ under 1491(b) due to the NAFI doctrine; ADRA does not give 1491(b) jurisdiction here. | No 1491(b) jurisdiction for this NAFI procurement. |
| Whether implied-in-fact contract jurisdiction under 1491(a)(1) remains available for pre/post‑award bid challenges to AAFES procurements. | Implied-in-fact contract theory provides a basis to challenge the fairness of bid consideration. | ADRA shifts bid protest review exclusively to 1491(b) and eliminates pre‑Award implied contracts. | Court retains 1491(a)(1) implied-in-fact contract jurisdiction; protest viable under 1491(a)(1) for monetary relief. |
| Whether the CDA claim lacks jurisdiction due to failure to submit a proper contracting officer claim and other defects. | CDA applies to disputes arising from contract-related matters and may be pursued. | Plaintiff did not submit a proper CDA claim to the contracting officer nor plead a valid CDA basis; discrimination claims also fall outside this court. | CDA claim dismissed for lack of a proper CDA claim submission and lacking jurisdiction for discrimination claims. |
| Whether discriminatory claims (racial and gender) fall within this court's jurisdiction. | Discrimination occurred in the administration of the concession contract. | Discrimination claims fall within district court jurisdiction under civil rights statutes. | Discrimination claims dismissed for lack of jurisdiction. |
Key Cases Cited
- Resource Conservation Group, LLC v. United States, 597 F.3d 1238 (Fed.Cir.2010) (affirms implied-in-fact contract jurisdiction when 1491(b) does not apply)
- American Federation of Government Employees, AFL-CIO v. United States, 258 F.3d 1294 (Fed.Cir.2001) (discusses ADRA, Scanwell, and 1491(b) jurisdiction and standing)
- L-3 Communications Integrated Systems, L.P. v. United States, 94 F.3d 394 (Fed.Cl.2010) (upholds implied-in-fact contract relief under 1491(a)(1) post‑ADRA)
- United States v. Hopkins, 427 U.S. 123 (U.S. 1976) (NAFI designation and funding implications for federal entities)
- United States v. John C. Grimberg Co., 702 F.2d 1362 (Fed.Cir.1983) (precedes ADRA; framework for bid protest jurisdictional analysis)