Three S Consulting v. United States
104 Fed. Cl. 510
Fed. Cl.2012Background
- Post-award bid protest under Tucker Act relating to Army Residential Communities Initiative survey services.
- Alleged CICA violations tied to MHLI award under MOBIS/FSS and to alleged post-award private agreements after MHLI’s contract termination.
- RFQ required MOBIS survey contract; MHLI awarded contract May 2010; plaintiff lacked MOBIS contract at bid close (nonresponsive).
- GAO protest dismissed as to MOBIS contract issue; later, plaintiff alleges government officials facilitated private agreements for 2010 surveys.
- Court granted government’s motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim; no standing to challenge MHLI award; alleged post-termination procurement not within the court’s jurisdiction.
- Court dismisses remaining claims as to a second procurement because Clark’s actions were not a procurement; injunctive relief claim deemed not ripe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge MHLI award | Three S claims standing under ATA exception | Three S did not have MOBIS contract; nonresponsive bidder lacks standing | Plaintiff lacks standing; no jurisdiction over Count I |
| Whether a second procurement occurred post-termination | Clark coordinated private agreements; constitutes sole source procurement | Actions not a procurement on behalf of the United States | Dismissed; Clark’s actions not a procurement or ratified by contracting authority |
| Ratelation to post-award injunctive relief and notice | SEEK injunction requiring notice before future procurements | No ripe controversy; no basis for injunctive relief | Not reached; moot due to lack of jurisdiction on primary claims |
Key Cases Cited
- Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366 (Fed. Cir. 2002) (standing requires an interested party and prejudice)
- Rex Serv. Corp. v. United States, 448 F.3d 1305 (Fed. Cir. 2006) (direct economic interest and prejudice required for standing)
- Labatt Food Serv., Inc. v. United States, 577 F.3d 1375 (Fed. Cir. 2009) (prejudice; substantial chance to obtain the contract in post-award protests)
- Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed. Cir. 2008) (procurement scope includes all stages from need determination to closeout)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (waiver of objections to patent errors in RFQs; timely objections required)