Wildflower International, Ltd. v. United States
105 Fed. Cl. 362
Fed. Cl.2012Background
- Wildflower challenges CBP's termination for convenience of its delivery order under the FirstSource contract and the reissuance of the RFQ with a revised SOW.
- CBP used FedBid reverse auctions; four offerors bid, Wildflower had the lowest price, Govplace the highest.
- CBP initially found some Wildflower equipment not meeting 802.1AE at award time and sought retrofit within the contract period.
- CBP terminated Wildflower’s order for convenience and issued a revised RFQ with a new SOW to clarify timing of 802.1AE compliance.
- GAO was protested by Wildflower prior to filing suit; Wildflower filed this bid protest in November 2011 in this court.
- The 2012 NDAA amended the sunset provision; the government argues this could retroactively divest jurisdiction, but the court ultimately finds otherwise.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FASA barred Wildflower’s 2011 bid protest | FASA’s limitation expired May 27, 2011, so action is timely. | FASA limitation applies and could bar pending challenges. | No; the limitation expired and did not bar Wildflower’s November 2011 action. |
| Whether the 2012 NDAA restoration retroactively divests pending actions | Restoration applies to pending actions and divests jurisdiction. | Restoration should revive the limitation and divest pending actions. | No; retroactivity analysis shows restoration does not divest this pending action. |
| Whether the Tucker Act as amended by ADRA provides jurisdiction absent FASA | ADRA broad bid-protest jurisdiction covers corrective actions in procurement. | Without FASA, jurisdiction is uncertain. | Yes; ADRA provides Tucker Act jurisdiction over corrective-action bid protests. |
| Whether CBP's corrective action was reasonable | Corrective action was unnecessary or improperly tailored to cure ambiguity. | Corrective action was rational and tailored to fix ambiguity in timing of 802.1AE compliance. | CBP’s corrective action was reasonable and not arbitrarily or capriciously taken. |
| Whether Wildflower has standing and the action is ripe | Wildflower has direct economic interest as a post-award protester and is sufficiently harmed. | Standing or ripeness concerns preclude review. | Wildflower has standing and the action is ripe. |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (presumption against retroactivity; two-step retroactivity framework)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (U.S. 2006) (two-step retroactivity analysis guidance)
- MORI Assocs., Inc. v. United States, 102 Fed.Cl. 503 (Fed. Cir. 2011) (statutory sunset interpretation; retroactivity considerations)