OPINION AND ORDER
Before the court is the post-award bid protest of Chapman Law Firm Company, LPA (Chapman). Chapman alleges that the Small Business Administration (SBA) failed to conduct a good faith investigation of Chapman’s protest of the size status of the intended awardee of a Department of Housing and Urban Development (HUD) contract set
I. Background
On August 6, 2003, HUD issued a solicitation for the Management and Marketing of Single Family Homes under Request for Proposals Number R-OPC-22505 seeking proposals for the provision of
Management and Marketing services to successfully monitor mortgagee compliance with the Department’s property conveyance requirements, to successfully manage single family properties owned by, or in the custody of, the Department of Housing and Urban Development (HUD), to successfully market those single family properties which are owned by HUD, and to successfully oversee the sales closing activity, including proper accounting for HUD’s sales proceeds.
Complaint (Compl.) 118; Administrative Record (AR) at 2 (Solicitation). The solicitation sought management and marketing services for multiple geographic regions around the United States, including a region comprising Indiana and Illinois. AR at 17 (Solicitation). The solicitation stated that the award would be made to an eligible small business unless the competition was inadequate among small businesses. Id. (Solicitation). HUD determined that the proposal submitted by Chapman was “within the competitive range” for the contract award. Id. at 24 (Letter from HUD to Chapman dated 4/2/04).
On July 7, 2004, the contracting officer issued a pre-award notice to Chapman advising it of HUD’s intent to award the portion of the contract for management and marketing services in Illinois and Indiana to Harrington, Moran, Barksdale, Inc. (HMBI), the defendant-intervenor in this action. See id. at 60 (HUD’s Pre-Award Notice of Intent dated 7/7/04). The following day, July 8, 2004, Chapman filed a size protest with SBA challenging HMBI’s eligibility for the award based on its affiliation with a large business, Cathedral Rock, Inc.
The procedures for challenging a business concern’s eligibility for a small business contract award are set forth in Subpart 19.3 of the FAR, titled “Determination of Small Business Status for Small Business Programs,” and Part 121 of Title 13 in the Code of Federal Regulations, titled “Small Business Size Regulations.” These regulations permit an offeror to protest the small business representation of another offeror in a specific offer. See FAR § 19.302(a) (addressing who may file a protest challenging the small business status of an offeror for “a specific offer”); 13 C.F.R. § 121.1007(a), (b) (providing that only a protest challenging, on specific factual grounds, a “particular procurement” will be acted upon by SBA). To be timely under the regulations, a protest must be received by the contracting officer before the close of the business on the 5th business day after the contracting officer has notified the protester of the identity of the prospective awardee. See FAR § 19.302(d)(1); 13 C.F.R. § 121.1004(a)(2). Upon receipt of a protest, the contracting officer shall promptly forward the protest to the proper SBA Government Contracting Area Office. FAR § 19.302(c)(1). Upon making a formal size determination, the SBA Area Office promptly notifies the contracting officer and the protestor of its decision. See FAR § 19.302(g)(1); 13 C.F.R. § 121.1009(f).
The regulations provide that an “[a]ward ... made on the basis of [the SBA’s] determination ... is final unless it is appealed in accordance with [the regulations] and the contracting officer is notified of the appeal before award.” FAR § 19.302(g)(2) (emphasis added); see also 13 C.F.R. § 121.1009(g)(1) (“A formal size determination becomes effective immediately and remains in full force and effect unless and until reversed by [SBA’s Office of Hearings and Appeals (OHA) ].”). The regulations state that “i[f] an award was made before the time the contracting officer received notice of the appeal, the contract shall be presumed to be
In this case, nearly two weeks after filing a timely size protest with SBA challenging HMBI’s eligibility for the HUD contract award, on July 21, 2004, Chapman supplemented its size protest with SBA with evidence to support a new allegation that HMBI had “formed an illegal partnership with Best Assets,” a large business and the incumbent HUD management and marketing services contractor “for the states of Atlanta, Georgia and Missouri.” Id. at 90 (Chapman’s Supplement to Size Protest dated 7/21/04). On July 23, 2004, SBA’s Area Office in Fort Worth, TX issued its size determination concluding that HMBI was a small business. Id. at 144-52 (SBA’s Size Determination Decision).
Chapman received SBA’s size determination decision on July 26, 2004. Plaintiffs Brief on Jurisdiction and Justiciability (Pl.’s Br.) at 5; Defendant’s Brief With Respect to Jurisdiction and Justiciability (Def.’s Br.) at 2. Four days later, on July 30, 2004, HUD awarded the portion of the contract providing management and marketing services in Illinois and Indiana to HMBI. AR at 153-54 (Letter from HUD to Chapman advising of award to HMBI dated 7/30/04). Ten days after the contract award to HMBI and two weeks after it received notice of SBA’s Size Determination Decision, on August 9, 2004, Chapman appealed the size determination decision to SBA’s Office of Hearings and Appeals (OHA).
Chapman filed this action on October 14, 2004. Compl. at 1. Chapman complains that SBA acted arbitrarily and capriciously by failing to consider certain information about HMBI, id. 1ÍH 33-37, failing to investigate HMBI’s size status, id. H1Í 38 — 40, and failing to follow its own regulations, id. 111Í41-45. Chapman asks the court to remand the matter to SBA’s OHA for a good faith investigation of HMBI’s size status. Id. at 11.
Further to a telephonic status conference with the parties and the court’s Scheduling Order of October 15, 2004, the parties have submitted briefing for the purpose of permitting the court to determine its jurisdiction over and the justiciability of plaintiffs Motion for Preliminary Injunction. The court heard oral argument on the jurisdiction and justiciability issues on November 5, 2004.
II. Discussion
A. Standard of Review
Plaintiff has brought this action alleging jurisdiction under the Tucker Act. Compl. 116. The Tucker Act, as amended by the Administrative Disputes Resolution Act (ADRA), confers jurisdiction on this court
*29 to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or proposed procurement.
28 U.S.C. § 1491(b)(1) (2000) (emphasis added).
A court reviews a bid protest action under the standard set forth in the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2000). NVT Techs., Inc. v. United States,
The Federal Circuit has stated that, under the APA standard applied in Scan-well, and now under the ADRA, “ ‘a bid award may be set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’ ” Id. (quoting Impresa,
Standing to bring a protest as an “interested party” under the ADRA, id. f 7, is “ ‘limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract.’” Banknote Corp.,
The court now addresses the threshold issues of whether it has jurisdiction to hear this protest and whether this matter is justiciable. The court then considers whether, in the circumstances of this case, a decision on justiciability in effect constitutes a decision on the merits.
B. Whether the Court Has Jurisdiction to Hear This Case
Plaintiff relies on the language of ADRA permitting an interested party to bring an action challenging “any alleged violation of statute or regulation in connection with a procurement.” Compl. 116 (citing 28 U.S.C. 1491(b)(1)). Plaintiff argues that this court has jurisdiction under ADRA to consider its appeal from SBA’s dismissal of plaintiffs size protest as demonstrated by its previous deei
Defendant does not dispute this court’s “jurisdiction to consider determinations of the [SBA] that affect the award of a contract to an interested party.” Def.’s Br. at 3 (citing Mark Dunning II,
HMBI, the defendant-intervenor in this matter, argues that this court lacks jurisdiction to hear this bid protest action because plaintiff has “allege[d] a violation of [a] statute or regulation in connection with a yet unknown future procurement” and not in connection with “the protested procurement.” Intervenor-Defendant’s Response to Plaintiffs Brief (Intervenor’s Br.) at 1-2. HMBI explains that the impact of an SBA size protest and appeal, when filed after a contract award, is not on the current procurement but can only be on a future procurement under the governing FAR regulation. See id. at 8-9 (citing FAR § 19.302(i)). The court addresses this argument in its discussion of the justiciability issue. See Part II.C infra.
HMBI alternatively argues that the court lacks jurisdiction to review matters “entirely beyond the contracting officer’s authority.” Id. at 2. To support its argument, HMBI cites the Red River Service case in which the Court of Federal Claims declined to extend Tucker Act jurisdiction to review a SBA decision concerning a protest challenging the selection of a particular North American Industry Classification System code. Id. at 10. HMBI relies primarily on the court’s reasoning in Red River Service Corporation v. United States,
In addressing the jurisdictional issue, the court examines the principal cases on which the parties rely for their respective positions, specifically Mark Dunning and Red River Service.
In Mark Dunning II, this court exercised its jurisdiction to consider a post-award bid protest challenging SBA’s denial of a HUBZone status protest in connection with a procurement contract for trash collection and disposal services.
The court’s exercise of jurisdiction in Mark Dunning II appears to be premised on the plaintiffs allegation in Mark Dunning I that “the procurement procedure used with regard to th[e] contract involved a clear and prejudicial violation of applicable statutes and regulations.” Mark Dunning I,
In Red River Service, however, the court reached a different conclusion in a pre-award protest. See
The court in Red River Service examined the Federal Circuit’s decision in Cavalier Clothes, Inc. v. United States,
The decision in Cavalier Clothes ... completely begs the question of what court has jurisdiction to review SBA decisions. The Federal Circuit simply concluded that in light of the Federal Courts Improvement Act of 1982, which provided the United States Claims Court, and ultimately the United States Court of Federal Claims, with injunctive relief prior to the award of a contract, “there is no basis for any inference that Congress intended to exclude the SBA when it later authorized injunctive relief against agencies and departments generally on pre-award contract claims.” Jurisdiction, however, cannot be conveyed by congressional inference or silence.
Red River Service,
Here, unlike the court in Red River Service, the court is persuaded that the Federal Circuit’s pre-ADRA guidance in Cavalier Clothes and the language of the Tucker Act, as amended by ADRA, permit the exercise of jurisdiction over this action, as implicitly recognized by the court in Mark Dunning. In Cavalier Clothes, the Federal Circuit determined that the Claims Court had jurisdiction to entertain a pre-award protest brought by a small business contractor challenging the rejection of its bid to manufacture women’s Army coats.
Nor is this court persuaded that any such inference may be made following the 1996 enactment of ADRA which conferred concurrent jurisdiction upon the Court of Federal Claims and the district courts to hear bid protest actions until January 1, 2001, at which time the exclusive jurisdiction to hear bid protest actions would rest with the Court of Federal Claims. See Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874-76 (1996); Impresa,
In addressing this jurisdictional question, the court also finds instructive the Federal Circuit’s recent guidance in Fisher v. United States,
Here, Chapman, as an interested party, has brought an action alleging that SBA, a federal agency, has violated “one or more statutes and/or regulations in connection with a federal procurement.” Compl. 116. Chapman specifically alleges that, in contravention of its own regulations concerning procedures for size protests, in particular, 13 C.F.R. §§ 121.1007(b), 121.1009(a), SBA arbitrarily dismissed plaintiffs size protest for plaintiffs failure to use certain language in the protest although the basis for the protest was clear. See Compl. ¶¶ 29-31. As a disappointed bidder, plaintiff filed its size protest challenging the eligibility of the awardee of HUD’s management and marketing services contract. Id. ¶¶7, 13. Plaintiffs complaint is a well-pleaded articulation of its “objecti[on] to ... an[ ] alleged violation of [a] statute or regulation in connection with a procurement.” 28 U.S.C. § 1491(b)(1). Consistent with the Federal Circuit’s guidance in Fisher, plaintiff has established the court’s jurisdiction.
C. Justiciability: Whether the Court Should Intervene in the Circumstances of This Case
Plaintiff argues that, under ADRA, this court “‘may award any relief that [it]
Defendant argues that, in this case, “the [c]ourt cannot supply relief to Chapman because, in light of the procedural posture of its appeal to the SBA, any new determination as to HMBI’s status as a small business would not affect the award of the contract to HMBI.” Def.’s Br. at 4. Defendant explains that, if the court “lacks the ability to supply relief,” the dispute is not justiciable. Id. (citing Mercer v. United States,
HMBI also argues that, because “any judicial relief granted by this [c]ourt will only impact Intervenor-Defendant’s size status on future unknown procurements^] ... [plaintiffs Motion for Preliminary Injunction does not present a justiciable controversy.” Intervenor’s Br. at 13. Quoting Blacks Law Dictionary, HMBI asserts that a justiciable controversy refers “[t]o real and substantial controversy which is appropriate for judicial determination, as distinguished from dispute or difference of contingent, hypothetical or abstract character.” Intervenor’s Br. at 12 (quoting Blacks Law Dictionary 777 (5th ed.1979)).
In challenging the justiciability of plaintiffs action, defendant and HMBI rely on Federal Acquisition Regulation (FAR) Sub-part 19.3 which governs the procedures for an interested party to challenge a contract awardee’s self-representation of its small business status.
In this case, the contracting officer issued a pre-award notice to Chapman on July 7, 2004 advising of HUD’s intent to award the portion of the contract for management and marketing services in Illinois and Indiana to HMBI. AR at 60 (HUD’s Preaward Notice of Intent addressed to Chapman dated 7/7/04). Chapman filed a timely size protest the next day, July 8, 2004, with SBA challenging HMBI’s eligibility for the award. Id. at 28 (Chapman’s Size Protest dated 7/8/04). On
The procurement process for this HUD contract involved an award to HMBI based on a size determination by SBA’s Area Office. The contracting officer’s reliance on SBA’s size determination and the subsequent award of contract are presumed to be valid under the FAR. FAR § 19.302(g)(2). The FAR specifically directs that, because Chapman did not file its appeal with OHA until ten days after the contract award, any decision reached by SBA’s OHA would not affect the award of the contract. See FAR § 19.302(g)(2); see also Mid-West Constr., Ltd. v. United States,
D. Whether a Finding of Non-Justiciability in This Case Is, in Effect, a Determination on the Merits
Based on the particular procedural circumstances of this case, the court’s finding of non-justiciability is also, in effect, a finding on the merits because plaintiff has failed to show a “clear and prejudicial violation of [the] applicable statutes or regulations” that would merit relief under the standard of review set forth in Impresa,
While acknowledging that its appeal to OHA was filed after the contracting officer’s award of the contract to HMBI, see Plaintiffs Reply Brief on Brief Jurisdiction and Justiciability (Pl.’s Reply) at 3, Chapman argued that, prior to the issuance of the GAO decision denying its protest, its size appeal to SBA’s OHA was not moot under the applicable law because the performance of the awarded contract had been stayed, id. (citing Olgoonik Logistics LLC, SBA No. SIZ-4518,
Chapman’s ability to challenge the current contract award is not improved by the recent amendments to SBA’s regulations published in the Federal Register as the Small Business Size Regulations, 69 Fed. Reg. 29192 (May 21, 2004) (to be codified at 13 C.F.R. pts. 121, 124, 125, and 134). Of particular interest in this case is the amendment to 13 C.F.R. § 121.1009(g), which provides:
If the formal size determination is appealed to OHA, the OHA decision on appeal will apply to the pending procurement or sale if the decision is received before award. OHA decisions received after contract award will not apply to that procurement or sale, but will have future effect, unless the contracting officer agrees to apply the OHA decision to the procurement or sale.
69 Fed.Reg. at 29207. Moreover, during oral argument, defendant asserted that, “[although [under the new rule] the contracting officer has discretion after the date of contract award to listen to OHA and, if he or she desires, to terminate the contract for convenience,” such circumstance is beyond the area of procurement but falls instead within the scope of contract performance. Tr. at 51. The court agrees. Because the HUD contract is presumed valid as awarded and no decision of OHA issued after plaintiffs failure to file a prompt appeal changes that result, an election by the contracting officer to exercise her discretion and apply the OHA decision to the current contract is beyond the scope of the court’s bid protest jurisdiction. See Mid-West Constr.,
Because it is undisputed here that plaintiff did not file its appeal prior to the contract award and it is undisputed that OHA did not issue a decision before HUD awarded HMBI the contract, Chapman cannot establish that the procurement procedure for this HUD contract involved a “clear and prejudicial violation” of the regulations governing the appeal of its SBA size status protest. See Banknote Corp.,
III. Conclusion
For the foregoing reasons, plaintiffs protest is DISMISSED with prejudice. The Clerk of the Court shall enter judgment for defendant. No costs.
IT IS SO ORDERED.
Notes
. In its size protest, Chapman alleged that Cathedral Rock, Inc. is the forty-eighth largest operator of long-term care facilities in the nation, has 31 subsidiary corporations, and generates revenue in excess of one hundred million dollars. AR at 28. The maximum revenue permitted under the contract was six million dollars. See id. at 90.
. Section 121.1009(g)(3) of Title 13 of the Code of Federal Regulations was amended recently by the Final Rule published in the Federal Register, 69 Fed.Reg. 29192 (May 21, 2004) (to be codified at 13 C.F.R. pts. 121, 124, 125, and 134) to afford the contracting officer the discretion to apply an SBA OHA decision received after contract award to that procurement. See
. Following the contract award to HMBI, Chapman also filed a protest before the Government Accountability Office (GAO) challenging the merits of the award. Defendant’s Brief With Respect to Jurisdiction and Justiciability at 2 n. 2. The parties advised the court during an informal telephonic status conference on November 17, 2004 that GAO denied plaintiff’s protest on November 15, 2004.
. In Scanwell, the circuit court upheld the district court’s review of government procurement decisions under the APA. See
. References in this decision to "Mark Dunning" pertain to the litigation that includes Mark Dunning Industries, Inc. v. United States,
. As the court noted in Mark Dunning I,
. The Office of Management and Budget assigns NAICS codes to various industry sectors. Red River Serv.,
. The statutory provision, 15 U.S.C. § 637(b)(7)(A) (1982), made clear that one of the duties of SBA is "to certify to Government procurement officers ... with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern ... to receive and perform a specific Government contract.” Cavalier Clothes,
. The statutory provision stated, in pertinent part, that:
*33 In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter, the Administrator [of the Small Business Administration] may-—
(1) sue and be sued in any court of record of a State having general jurisdiction, or in any United States district court, and jurisdiction is conferred upon such district court to determine such controversies without regard to the amount in controversy; but no attachment, injunction, garnishment, or other similar process, mesne or final, shall be issued against the Administrator or his property ....
See Cavalier Clothes,
. Defendant also refers to Title 13, Part 121 of the Code of Federal Regulations (titled "Small Business Size Regulations"), which also addresses the procedures for an interested party to challenge a contract awardee's self-representation of its small business status. Def.'s Br. at 4.
. Plaintiff in Mid-West filed suit in this court after the contracting officer canceled its award of a road construction contract with the Department of Agriculture based on a determination by the SBA Size Appeals Board that it was not an eligible small business concern as required by the invitation to bid.