78 Fed. Cl. 351 | Fed. Cl. | 2007
OPINION
This post-award bid protest action is before the court following cross-motions for judgment on the administrative record, filed under Rule 52.1 of the Rules of the United States Court of Federal Claims (RCFC). Plaintiff Ironclad/EEI, A Joint Venture (plaintiff, Ironclad) is a joint venture comprised of Ironclad Sendees, Inc. (Ironclad Services) and Enfield Enterprises, Inc. (EEI). In this suit, Ironclad challenges twelve contracts for temporary roof repair awarded by the United States Army Corps of Engineers in 2006. Plaintiff claims that the Corps made several errors during the procurement process leading up to those awards which deprived Ironclad of the right to full and open competition for the work offered. Plaintiff asks the court to order that the awards be cancelled and the work resolicited.
BACKGROUND
On November 30, 2005, the United States Army Engineer District, Mobile Contracting Division, Mobile, Alabama (the Corps) issued Request for Proposals Solicitation W9127806-R-0007 (the solicitation). AR at 30. Through the solicitation, the Corps requested proposals for multiple Indefinite Delivery/Indefinite Quantity (IDIQ) contracts for Contingency Contract Initiative (CCI) Temporary Roof Repairs in support of the Corps’ and the Federal Emergency Management Agency’s (FEMA) disaster response in Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas.
The solicitation provided that the maximum dollar amount for each contract was not to exceed $100 million for the unrestricted, HUBZone and SDVOB awards, and $25 million for the section 8(a) awards. Id. at 145. It also stated that “[f]rom those offers that have passed the Proposal Compliance Review, the Source Selection Authority may limit the number of offers to be passed on to the Source Selection Evaluation Board to the lowest priced Offerors (usually, the lowest 5-7) under the socioeconomic categories described below.” Id. at 112. The document further advised offerors that “[rjegardless of how many contracts are awarded, each Offer- or will be eligible for award on only one contract.” Id. at 190.
Plaintiff alleges that, at some time in 2005, a representative of EEI contacted the SBA, the federal agency charged with enforcing the provisions of the Small Business Act, and inquired about the size standards applicable to the procurement. Specifically, EEI asked
On February 2, 2006, plaintiff submitted a proposal to the Corps which requested consideration for the SDVOB and unrestricted portions of the procurement. AR at 659 et seq. On April 7, 2006, Ironclad was awarded the SDVOB contract. On April 13, 2006, ESA South, Inc. (ESA South), an unsuccessful offeror on the SDVOB contract, filed a size protest with the Corps which alleged that Ironclad exceeded the applicable size standard for the SDVOB portion of the solicitation. Id. at 426. Ironclad learned of the protest on May 1, 2006. Two days later, on May 3, 2006, plaintiff sent a letter to the Corps which acknowledged that the joint venture exceeded the size limit for the SDVOB contract, and requested that Ironclad continue to be considered for the unrestricted awards. See id. at 419.
Eleven other contracts were ultimately awarded by the Corps. Intervenor-defendant Crown Roofing Services, Inc. (Crown) was awarded two section 8(a) contracts, in spite of the solicitation’s provision that only one contract could be awarded to each offer- or. Id. at 1568, 1569. Intervenor-defendants MGC/Campbell Roofing & Construction, Inc. (MGC/Campbell) and RL Campbell Roofing Company, Inc. (RL Campbell) were each awarded one section 8(a) contract. Id. at 1543, 1545. Intervenor-defendant Campbell Roofing & Construction, Inc. (Campbell) secured an unrestricted award. Id. at 1715.
On May 4, 2006, defendant issued Solicitation Amendment 0012 (Amendment 12), which eliminated the solicitation’s restriction providing that only one contract could be awarded to each offeror. There is no question that this amendment was issued after the Corps had already awarded two contracts to Crown Roofing. Defendant, however, asserts that “the Corps had intended to eliminate this provision when the geographic scope of the contract was expanded,” as a part of Amendment 001 to the solicitation (Amendment 1), and that, after the Corps learned that the change had not been accomplished via Amendment 1, the agency issued Amendment 12 “to clarify the [solicitation and to make clear that one offeror could be awarded more than one contract under the [solicitation.” Def.’s Mot. at 16 (citing AR at 122-25, 441); Sawyer Aff. ¶ 12 (explaining that the Mobile District discovered on or about May 3, 2006, that the limitation of one contract per offeror had not been deleted from the solicitation as had been intended by the agency when it issued Amendment 1, and that it issued Amendment 12 on May 4, 2006 “to simply correct a clerical error in the issuance of Amendment 1”).
On or about May 16, 2006, plaintiff sent a letter to the SBA which stated that, upon review of ESA South’s protest and the applicable regulations, it appeared that Ironclad did not qualify as a small business, and plaintiff would not oppose ESA South’s size protest. Id. at 419, 423. On the next day, the SBA issued Size Determination No. 3-2006-58, in which it concluded that plaintiff was not a small business under the applicable size standard, making it ineligible for the SDVOB award. Id. at 423.
On or about May 25, 2006, Ironclad learned that it had been eliminated from the competitive range for the unrestricted portion of the procurement. Plaintiff claims that, on this date, it requested a post-award
On June 8, 2006, the Corps issued Modification P00001 to Ironclad’s SDVOB contract. That document, in furtherance of the SBA’s Size Determination No. 3-2006-58, amended the SDVOB contract to reflect a no-cost settlement agreement between the parties on the ground that the SBA, as the intermediary in SDVOB contracting, had declined to enter into an SDVOB contract with plaintiff. This contract termination was issued pursuant to Federal Acquisition Regulations (FAR) 49.101(b) and 46.603-6. AR at 1776. On June 13, 2006, Ironclad attempted to appeal the SBA’s decision that it was “other than small” to the SBA’s Office of Hearings and Appeals (OHA), on the ground that ESA South lacked standing to challenge the award to plaintiff. See id. at 419. Eight days later, on June 21, 2006, Ironclad submitted its own size determination protest to the SBA regarding several of the other contract awardees. Plaintiff states that the SBA never responded to that protest.
On July 13, 2006, OHA dismissed Ironclad’s appeal of ESA South’s protest as untimely and, alternatively, as meritless. In its dismissal order, OHA noted that the appeal was unfounded, given plaintiffs admission that it was ineligible for the SDVOB award. Ironclad filed this suit in the Court of Federal Claims almost ten months later, on May 4, 2007.
DISCUSSION
I. Jurisdiction
As stated, this is a post-award bid protest action. There is no question that the Tucker Act provides the United States Court of Federal Claims with bid protest jurisdiction. 28 U.S.C. § 1491(b)(l)-(4) (2000); Am. Fed’n of Gov’t Employees, AFL-CIO v. United States, 258 F.3d 1294, 1300 (Fed.Cir.2001); Hunt Bldg. Co. v. United States, 61 Fed.Cl. 243, 268-69 (2004). The statute explicitly provides that this court “shall have jurisdiction 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 a proposed procurement.” 28 U.S.C. § 1491(b)(1); see Hunt Building, 61 Fed.Cl. at 269 (quoting 28 U.S.C. § 1491(b)(1)). The statute also states that the Court of Federal Claims “shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.” 28 U.S.C. § 1491(b)(1). Accordingly, this court has jurisdiction to entertain post-award bid protests such as this one.
II. Standards of Review
A. Lack of Subject Matter Jurisdiction
Defendants argue that this suit must be dismissed because plaintiff lacks standing to challenge the awards at issue in this protest, and therefore, the court has no subject matter jurisdiction over Ironclad’s claims. It is not altogether clear, under the law of this circuit, whether a motion to dismiss for lack of standing should be analyzed under RCFC 12(b)(1), which concerns the absence of subject matter jurisdiction, or RCFC 12(b)(6), which addresses failure to state a claim upon which relief can be granted. See Boston Edison Co. v. United States, 64 Fed.Cl. 167, 174 (2005) (citing and comparing Landmark Land Co. v. Federal Deposit Ins. Corp., 256 F.3d 1365, 1380 (Fed.Cir.2001); Animal Le
The court’s determination of jurisdiction begins with an examination of the complaint, “which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.1997). The court must presume all undisputed factual allegations to be true, and construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); Boston Edison, 64 Fed.Cl. at 174 (stating that “[rjegardless of which standard is used, for purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party” (internal quotations omitted) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975))). However, “ ‘[f]act finding is proper when considering a motion to dismiss where the jurisdictional facts in the complaint ... are challenged.’ ” Boston Edison, 64 Fed.Cl. at 174 (quoting Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999)). The nonmovant bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Cubic Def. Sys., Inc. v. United States, 45 Fed.Cl. 239, 245 (1999) (citing Cedars-Sinai. Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cfr.1993); Reynolds, 846 F.2d at 748; Maniere v. United States, 31 Fed.Cl. 410, 413 (1994)); see also Boston Edison, 64 Fed.Cl. at 174 (stating that a plaintiff invoking federal jurisdiction bears the burden to establish the elements of standing).
B. Judgment on the Administrative Record
The parties have also filed cross-motions for judgment on the administrative record, under RCFC 52.1. The standard for evaluating such motions is similar to that used to decide a motion for summary judgment under RCFC 56. Info. Sciences Corp. v. United States, 73 Fed.Cl. 70, 97-98 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed.Cir.2005)). It is beyond cavil that, on a traditional motion for summary judgment, the court must inquire “whether the moving party has proven its case as a matter of fact and law or whether a genuine issue of material fact precludes judgment.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A Rule 52.1 motion, by contrast, calls for a more narrow review of whether, given the disputed and undisputed facts, the plaintiff has met its burden to show that a challenged decision was not in accordance with law. Id. “[T]wo principles commonly associated with summary judgment motions — that the existence of a genuine issue of material fact precludes a grant of summary judgment and that inferences be weighed in favor of the nonmoving party ... are inapplicable to a motion for judgment on the administrative record.... ” Int’l Outsourcing Servs., L.L.C. v. United States, 69 Fed.Cl. 40, 45 (2005) (citing Bannum, 404 F.3d at 1356). In other words, under Rule 52.1,
the existence of a fact question neither precludes the granting of a motion for judgment nor requires this court to conduct a full blown evidentiary proceeding. Rather, such fact questions must be resolved by reference to the administrative record, as properly supplemented — in the words of the Federal Circuit, “as if [this court] were conducting a trial on [that] record.”
Id. at 45-46 (quoting Bannum, 404 F.3d at 1357).
C. Bid Protest Review
It is well settled that “this court’s review of an agency’s decision regarding a contrac
[w]hen a challenge is brought on the first ground, the test is whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis. When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.
Banknote, 365 F.3d at 1351 (internal quotations and citations omitted) (quoting Impresa, 238 F.3d at 1332-33).
If it is determined that a contract was awarded in violation of APA standards, the court must then evaluate whether the plaintiff, as an unsuccessful bidder, was prejudiced significantly by the government’s conduct. Bannum, 404 F.3d at 1353. Indeed, in order to prevail in a bid protest, a claimant must provide evidence of “ ‘not only a significant error in the procurement process, but also that the error prejudiced it.’” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir.2004) (quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.1996)). This requires evidence of a “substantial chance” that the protestor would have received the contract award, but for the alleged error or errors. Id. at 1331; see also Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001) (“To establish prejudice in an action involving an alleged statutory or regulatory violation, a protester must show that absent the error, there was a substantial chance it would have received the contract award.”) (internal quotations omitted) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999)).
III. Merits
A. Waiver
As a threshold matter, the United States argues that Ironclad has waived several of the claims set forth in its complaint, because plaintiff did not address those claims in its briefing. As the United States correctly points out, Ironclad’s motion for judgment on the administrative record provides no argument in support of plaintiffs claims (1) that the Corps assigned the wrong NAICS code to this procurement (Count II); (2) that the SBA committed errors in interpreting that
Defendant is correct in its assertion that, under the law of this circuit, arguments not presented in a party’s principal brief to the court are typically deemed to have been waived. As the United States Court of Appeals for the Federal Circuit explained in Novosteel SA v. United States and Bethlehem Steel Corporation,
[rjaising [an] issue for the first time in a reply brief does not suffice; reply briefs reply to arguments made in the response brief — they do not provide the moving party with a new opportunity to present yet another issue for the court’s consideration. Further, the non-moving party ordinarily has no right to respond to the reply brief, at least not until oral argument.
284 F.3d 1261, 1274 (Fed.Cir.2002) (emphasis in original). In addition, it is imperative that “parties ... give a trial court a fair opportunity to rule on an issue other than by raising that issue for the first time in a reply brief----” Id. For these reasons, courts are constrained to find, “[a]s a matter of litigation fairness and procedure,” that arguments not addressed in moving briefs have been waived. Id.; see also United States v. Ford Motor Co., 463 F.3d 1267, 1277 (Fed.Cir. 2006) (finding that the plaintiff had waived an argument by failing to raise it in its opening brief and stating that “[i]t is unfair to consider an argument to which the government has been given no opportunity to respond”); Norman v. United States, 429 F.3d 1081, 1091 n. 5 (Fed.Cir.2005).
Here, there is no question that Ironclad failed to address counts II, III, IV and VI of its complaint in both its motion for judgment on the administrative record and its response to the defendants’ cross-motions. In fact, in its response brief, Ironclad did not even address the government’s contention that it had waived those aspects of its suit. Plaintiff did provide some detail in regard to the claims in the complaint itself, but that fact is of little significance because “a party does not waive an argument based on what appears in its pleading; a party waives arguments based on what appears in its brief.” Novosteel, 284 F.3d at 1274. The court finds that, because plaintiff has provided no substantive support for these four claims in its motion or response, and defendants have therefore been deprived of an opportunity to respond to them, plaintiff has waived these counts of the complaint. Id.; see also Ford Motor Company, 463 F.3d at 1277; Norman, 429 F.3d at 1091 n. 5.
Regarding plaintiffs request for permanent injunctive relief, however, the court concludes that a finding of waiver is not necessarily mandated in this instance. The Federal Circuit has made it clear that waiver is “not governed by a rigid rule,” and that exceptions to the waiver doctrine may be appropriate in instances “where circumstances indicate that it would result in basically unfair procedure.” Norman, 429 F.3d at 1091 n. 5 (internal quotations omitted) (quoting Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.Cir.1990)). Here, although Ironclad did not address injunctive relief in its moving brief, plaintiffs response did include arguments related to that matter. The court agrees with plaintiff that, because defendants were able to fully respond to Ironclad’s contentions regarding permanent injunctive relief in their reply briefs, the concept of waiver announced in Novosteel is inapplicable. See 284 F.3d at 1274. The court will consider Ironclad’s arguments regarding the propriety of permanent injunctive relief, if and when such consideration is required.
B. Standing
Defendants argue that Ironclad lacks standing to protest the unrestricted awards made pursuant to the solicitation.
As explained, the Tucker Act provides the Court of Federal Claims with “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency.” 28 U.S.C. § 1491(b)(1) (emphasis added). The statute does not define the term “interested party.” See id. However, the Federal Circuit has adopted the definition of that term which is used in another federal procurement statute, the Competition in Contracting Act, and applied it to the bid protest context, so that standing to protest a contract award in the Court of Federal Claims is “ ‘limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract.’ ” Banknote, 365 F.3d at 1351-52 (quoting Am. Fed’n of Gov’t Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001)). To satisfy this standard, a plaintiff must establish that it was an actual or prospective bidder or offeror on the procurement being challenged, and that the plaintiff “had a substantial chance of being awarded the contract but for the alleged violation of the procurement statute or regulation.” Hamilton Sundstrand, 75 Fed.Cl. at 515. Thus, in conducting an inquiry into standing, which must occur “at the threshold of the merits inquiry,” the court must “consider [the protestor’s] plausible allegations and merely ask whether, if they turn out to be correct, [the protestor] had more than an insubstantial chance of receiving the award.” Id. In doing so, the court is “required to make factual findings ... from the record evidence as if it were conducting a trial on the record.” Bannum, 404 F.3d at 1357.
Here, there is no question that plaintiff submitted a proposal in an attempt to secure the unrestricted awards offered under the solicitation. Ironclad has therefore satisfied the first part of the two-part test for standing in relation to those awards. See Banknote, 365 F.3d at 1352. The parties disagree, however, on whether plaintiff can carry its burden of proof regarding the second requirement, which centers on the question of prejudice.
In its briefing, Ironclad concedes that it was not one of the offerors chosen to comprise the competitive range for the unrestricted awards. Pl.’s Eesp. at 22. That fact, which is also established by the administrative record, is a serious impediment to plaintiffs claim of standing. See Galen Med. Assocs., Inc. v. United States, 56 Fed.Cl. 104, 108 (2003) (stating that the standard for an “interested party” in bid protest cases
if defendant had properly issued Amendment 12 to Ironclad/EEI as it did to other offerors, it would have had a substantial chance of being awarded an unrestricted contract (i.e. being among the lowest 5-7 offerors) considering the exemplary ratings it received for the SDVOB evaluation. A review of the administrative record evidences that plaintiff’s ratings for the most important three factors were significantly higher than the three firms who were awarded the contracts. Since plain tiff’s proposed price would have been measurably lower if it had received Amendment 12, there is a substantial chance it would have been included in the competitive range and awarded one of the unrestricted contracts. In other words, but for defendant’s violation of the law and RFP, plaintiff had a substantial chance of receiving one of the unrestricted awards. As such, plaintiff has standing to protest the unrestricted awards herein.
Id. at 11-12 (internal citations omitted).
Defendants respond by arguing first that plaintiff has identified no error in the procurement process which is relevant to Ironclad’s ability to secure an unrestricted award. The United States claims that plaintiff was not entitled to a copy of Amendment 12, because Ironclad had been eliminated from the competition before the amendment was issued. Defendants point out that under 48 C.F.R. § 15.206(e) (2006), amendments issued after the deadline for receipt of proposals must only be sent to those offerors which have not been eliminated from competition. The United States claims that even if an exception to that rule as described by plaintiff does exist, there is no evidence that Amendment 12 related directly to the reason why Ironclad had been eliminated from the competitive range. In the government’s view, Amendment 12 related not to price, but instead, to the question of which of the parties would be eligible for each award. Defendants further insist that, because Ironclad was not among the offerors chosen to comprise the competitive range for the unrestricted awards, and has identified no error in the procurement process relevant to its elimination, plaintiff cannot show that it was within the “zone of active consideration” for the unrestricted awards, such that it had a substantial chance of winning one of them. Def.’s Mot. at 10; Campbell and MGC/Campbell’s Mot. at 8.
In the alternative, defendants claim that even if Ironclad had been entitled to receive Amendment 12, the Corps’ failure to provide that document to Ironclad did not deprive plaintiff of a “substantial chance” to win an unrestricted award. According to intervenors, Ironclad has presented no persuasive evidence to show that, had plaintiff received
Before examining the parties’ contentions, it warrants repeating that Ironclad, as the party which seeks to invoke this court’s bid protest jurisdiction, bears the burden of proof on the question of whether plaintiff had a direct economic interest in the unrestricted awards. See Myers, 275 F.3d at 1369 (“The party invoking federal jurisdiction bears the burden of establishing [the] elements [of standing].” (internal quotations omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))). To carry its burden, Ironclad “must demonstrate more than ‘a mere possibility that [it] would have received the contract but for the error in the procurement process.’ ” Asia Pacific, 68 Fed.Cl. at 18 (quoting Data General, 78 F.3d at 1562). On the other hand, plaintiff “is not required to show that but for the alleged error, [Iron-dad] would have been awarded the contract.” Data General, 78 F.3d at 1562; Asia Pacific, 68 Fed.Cl. at 18; see also North Carolina Div. of Servs., for the Blind v. United States, 53 Fed.Cl. 147, 161 (2002). Instead, Ironclad’s burden falls somewhere in the middle, requiring it to demonstrate that “had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract.” Data General, 78 F.3d at 1562. The plaintiffs chance of winning the award, in other words, “must not have been insubstantial.” Information Technology & Applications, 316 F.3d at 1319. This “standard reflects a reasonable balance between the importance of (1) averting unwarranted interruptions of and interferences with the procurement process and (2) ensuring that protesters who have been adversely affected by allegedly significant error in the procurement process have a forum available to vent their grievances.” Data General, 78 F.3d at 1563; Asia Pacific, 68 Fed.Cl. at 18.
Here, a careful examination of the facts which led to this protest undermines Ironclad’s assertions regarding the relevance of Amendment 12. First, Ironclad’s claim of entitlement to Amendment 12 is poorly founded. True, the Government Accountability Office (GAO) has held that offerors eliminated from the competitive range are entitled to receive amendments issued after their elimination from competition, when those amendments relate directly to the reason for their elimination. See Information Ventures, B-232094, 88-2 CPD ¶443 (explaining that “if the agency knows that a potential offeror was excluded from the competitive range for a reason that no longer exists after a subsequent amendment relaxing the solicitation’s terms, the offeror should be notified of the changes, especially of any relaxed requirements, since the firm, after the amendment, is potentially fully capable of fulfilling the agency’s needs”).
Further, and more importantly, even when all of the facts alleged by plaintiff are assumed to be true, plaintiff has presented no persuasive argument regarding how plaintiff was prejudiced by its failure to receive Amendment 12. First, it is clear that the amendment was issued after all proposals for the unrestricted portion of the procurement had been submitted to the Corps. See AR at 444. In addition, the record is uncontroverted that the agency did not permit offerors to amend their proposals in response to it. It follows that, even if Ironclad had received a copy of Amendment 12, plaintiff would not have been able to change the pricing information included in its proposal. Ironclad’s allegation that it would have lowered its offering prices in response to Amendment 12 is therefore unsupportable.
The court also agrees with the government that all of Ironclad’s allegations regarding the probable outcome of the solicitation, had plaintiff received Amendment 12 and been permitted to amend its proposal, are at best speculative. As defendant correctly points out, Amendment 12 provided only for the possibility that an offeror could be awarded more than one contract. In addition, the contracts granted under this procurement were designated as IDIQ awards, meaning that an undetermined quantity of work would be ordered by the Corps pursuant to each contract. For these reasons, it is clear that Amendment 12 did not necessarily guarantee a higher volume of work to any one awardee. Accordingly, no definitive determination regarding Amendment 12’s effect on performance cost or pricing can be made here, whether by the parties or by the court. Cf. Candle Corporation, 40 Fed.Cl. at 665 (“Here, Candle’s price was significantly higher than Boole’s and the total price for PQEdit, the component providing the capability to edit message contents, was only a small fraction of the total. Thus, if the government had complied with its legal obligations and notified Candle that this capability was no longer a minimum essential requirement, the record indicates Candle’s price still would have been considerably more expensive than Boole’s.” (internal citation omitted)).
In addition, the affidavit from Mr. Curnutte, which is at the heart of Ironclad’s claim of prejudice, is conclusory and unpersuasive. With regard to price changes, Mr. Curnutte avers only that the joint venture would have lowered its prices and that “[t]his resultant price decrease would be approximately 13.77% for installation of government furnished [materials], and approximately 6.88% lower for furnishing and installing structural panels, joists and rafters.” Curnutte Aff. ¶ 7. Notably, the affidavit does not explain the manner in which these percentage decreases were calculated. Ironclad likewise has not presented additional evidence to support the allegations contained in that affidavit. Cf MVM, Inc. v. United States, 46 Fed.Cl. 137, 140-41 (2000) (court conducted “paper trial” to examine expert witness reports regarding the manner in which an agency’s change to solicitation requirements would have affected offerors’ prices had an amendment been issued). In the court’s view, plaintiff relies on no more than a post-hoc assertion of what it “might have done” regarding pricing, had the circumstances been different. Similar arguments presented in this court have had little success. In Candle Corporation, for example, the court determined that a verifiable change in pricing due to an agency’s de facto change to solicitation requirements would not have altered the outcome of the solicitation, and then went on to reject the plaintiffs generalized argument that “it may not have ‘employed the same proposal pricing strategy,’ ” had it known of the change. 40 Fed.Cl. at 665. The court indicated, in that case, that the plaintiffs claim was particularly unpersuasive because it was not supported by affidavits or other evidence. Id. Here, of course, plaintiff has supplied an affidavit in support of its argument, but the court finds that the affidavit, which includes only conclusory and self-serving allegations, does little to satisfy Ironclad’s burden of proof.
In sum, the agreed upon facts of this case demonstrate that plaintiff was eliminated from the competitive range with regard to the unrestricted portion of this solicitation because the prices set forth in its proposal were not competitive. In that regard, plaintiff had no right to receive further solicitation amendments. Additionally, Ironclad’s assertion that it would have changed that pricing information, had it been privy to Amendment 12, is speculative and unpersuasive, at best. Ironclad is simply “[a] disappointed offeror that has made a business judgment to propose an expensive product,” and under the law of this circuit, plaintiff “cannot utilize the protest system to obtain the proverbial second bite at the apple.” Candle Corporation, 40 Fed.Cl. at 665-66 (quoting Alfa Laval Separation, Inc. v. United States, 40 Fed.Cl. 215, 235 (1998), rev’d on other grounds, 175 F.3d 1365 (Fed.Cir.1999)); see also Data General, 78 F.3d at 1564. Finally, the government has shown that because no offerors were permitted to alter their prices after the issuance of Amendment 12, the amendment would have had no impact upon Ironclad’s price.
For the foregoing reasons, the court concludes that the Corps was not required to provide Ironclad with Amendment 12 and, even if the Corps erred when it did not provide Amendment 12 to Ironclad, plaintiff has not carried its burden to establish that it was prejudiced by that error. Any claimed error was therefore harmless. See Galen Medical Associates, 369 F.3d at 1330. Plaintiffs contentions regarding Amendment 12 do not vest Ironclad with standing to challenge the unrestricted awards. Defendants’ motions to dismiss plaintiffs challenge to those awards, and any claim of error related to Amendment 12, are granted.
C. Plaintiff’s Final Contention: Termination of the SDVOB Contract, Institutional Waiver and the Duty of Fairness
Ironclad also claims that the Corps’ decision to terminate its April 2006 SDVOB contract was improper. Plaintiff argues, specifically, that the contracting officer (CO) abused his discretion when he decided to apply the SBA’s findings regarding Ironclad’s size status to that SDVOB award, rather than treating these findings as prospective only. To show that immediate application of the SBA decision was unfair, plaintiff claims that the CO simultaneously permitted section 8(a) awards to other companies to go forwai’d, despite the fact that he should have been aware that those companies also did not qualify for the work under the relevant size standards.
Defendants request judgment on the administrative record on this multifaceted claim. They contend, first, that the CO’s termination of Ironclad’s SDVOB contract was not an exercise of discretion by the CO, but was, instead, a requirement since the SBA found Ironclad to be ineligible for award. Defendants further insist that the CO did not give preferential treatment to the section 8(a) awardees by ignoring questions related to their size, but instead, properly relied on the SBA size certification letters submitted by those companies along with their proposals. And more generally, defendants assert again that, even if Ironclad’s allegations of error are correct, plaintiff cannot demonstrate prejudice. Defendants claim that, given Ironclad’s admission that it is not eligible for the SDVOB award, plaintiff cannot legally perform the SDVOB contract and therefore has nothing to gain from a reinstatement of that contract or an order to resolicit proposals for the SDVOB award.
As defendants correctly point out, 13 C.F.R. § 121.1009 governs the effect of SBA size determinations on federal procurements. That regulation provides, in relevant part, as follows:
(g) Results of an SBA Size Determination.
(1) A formal size determination becomes effective immediately and remains in full force and effect unless and until reversed by OHA.
(2) A contracting officer may award a contract based on SBA’s formal size determination.
(3) 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.
13 C.F.R. § 121.1009(g) (2007). As the text of this regulation makes clear, initial SBA size determinations take effect immediately. Id. § 121.1009(g)(1). Decisions by OHA, on the other hand, are subject to discretionary application by the CO in cases in which they are received after award. See id. § 121.1009(g)(3). It follows that, here, the SBA’s decision that plaintiff was “other than small” became effective immediately after issuance, and was binding on the subject procurement, as a matter of law. 13 C.F.R. § 121.1009(g)(1). The Corps therefore terminated Ironclad’s SDVOB award immediately following the SBA decision. The CO did not, in other words, exercise discretion regarding the manner in which that decision was applied.
Further, even if the CO had not been required to apply the SBA’s decision to Ironclad’s SDVOB award, the facts of this case would not justify a finding that his decision to do so was an abuse of discretion. It is critical to recognize that plaintiff admitted to the CO and to the SBA, shortly after ESA South’s protest was filed, that Ironclad was
The court must also reject Ironclad’s overarching contentions regarding an alleged “institutional waiver” of the solicitation’s size requirements. Plaintiff is absolutely correct that it is a “ ‘fundamental principle of government procurement ... that contracting officers treat all offerors equally and consistently apply the evaluation factors listed in the [solicitation.’” Hunt Building, 61 Fed.Cl. at 274 (quoting TLT Construction, 50 Fed.Cl. at 216). Here, however, the facts established by the record do not support a claim that the CO violated that principle. Instead, the record demonstrates that the circumstances surrounding Ironclad’s contract eligibility were materially different from the circumstances regarding the other offerors’ qualifications, and thus led to different outcomes. Again, the record is uncontroverted that, after ESA South protested Ironclad’s size, plaintiff conceded that it was ineligible for the SDVOB award. Shortly thereafter, the SBA issued a decision that plaintiff was “other than small.” See AR at 419. Under the SBA regulations, the CO was required to apply that decision to the procurement and terminate the award to plaintiff. 13 C.F.R. § 121.1009(g)(1). The section 8(a) awardees, on the other hand, never made admissions that they were large businesses and therefore ineligible for section 8(a) awards. No decision declaring any of those companies to be “other than small” was ever issued by the SBA. Accordingly, the Corps had no basis on which to revoke those companies’ contracts.
The court is not unsympathetic to Ironclad’s position that, in light of the evidence it alleges that it presented to the CO regarding the size status of the section 8(a) awardees, the agency should have asked the SBA to investigate those companies’ contract eligibility. However, there is no question that, because plaintiff was not an offeror in relation to the section 8(a) contracts, it did not have standing to pursue a size protest in relation to those awards. 13 C.F.R. § 121.1001(a)(2) (2007); see also 13 C.F.R. § 124.517(b) (2007). In addition, it was the exclusive province of the SBA, and not the CO, to determine whether each of the section 8(a) offerors was qualified for award. See 13 C.F.R. § 124.507(b) (2007). The court agrees with defendants that, in this instance, the CO was entitled to rely on the conclusions reached by the SBA through its use of the well-established regulatory process for determining size eligibility in section 8(a) procurements.
Furthermore, it is critical to recognize that the issue presented in this protest is whether plaintiff can show that the CO’s conduct was arbitrary and capricious, an abuse of discretion, or otherwise contrary to law. See 5 U.S.C. § 706(2)(A). Here, plaintiff’s claim of unequal treatment is based largely on the May 30, 2006 letter in which Ironclad outlined the alleged illegal affiliations between various section 8(a) awardees. The government has now presented evidence which indicates that the CO never received that letter. See Hickman Decl. Plaintiff has not controverted that assertion, and, unfortunately, there is no way to definitively determine whether the letter was or was not received by the Corps. Ironclad’s reliance on the letter thus does little to satisfy its burden of proof. Plaintiff also hopes to rely on an affidavit from another Ironclad principal, Mr. Dan Eastman. The admissibility of that document is disputed by the parties. In the court’s view, however, the probative value of that affidavit is slight when it is compared with the balance of the record evidence. Thus, even if the document were to be deemed admissible, it would be of little value to Ironclad. Based on the facts presented here, plaintiff simply has not carried its burden to demonstrate that the CO’s conduct violated the relevant standards.
Finally, there is no basis upon which to conclude that any of the errors alleged by Ironclad in this lawsuit were actually prejudicial to plaintiff. Ironclad admits that it has
Based on all of the above, it is clear that a grant of permanent injunctive relief would not be appropriate in this instance. The record is uncontroverted that Ironclad waited almost one year to file its claims, and plaintiff has presented no explanation for that delay. See PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed.Cir.2004) (setting forth factors to be considered by the court in determining whether to grant injunctive relief, including “whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief’). Ironclad has also failed to achieve actual success on the merits of this suit. Id. Furthermore, the crux of Ironclad’s argument is that, because the Corps allegedly awarded section 8(a) contracts in a manner that ran afoul of various procurement regulations, the agency should likewise be required to grant an SDVOB award to plaintiff despite its status as a large business. A judicial decision granting such relief would be wholly unsupportable, however, as it would effectively serve as a judicial sanction of agency actions which deliberately violate federal procurement law. Such an order would undoubtedly compromise the well-established “overriding public interest in preserving the integrity of the federal procurement process by requiring government officials to follow procurement statutes and regulations,” and, as such, would be intolerable. CW Gov’t Travel, Inc. v. United States, 61 Fed.Cl. 559, 578 (2004).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
(1) Plaintiffs Motion for Judgment Upon Administrative Record, including its request for injunctive relief, filed June 21, 2007, is DENIED. The Motions to Dismiss filed by defendant and intervenor-defendants on July 23 and 24, 2007, are GRANTED. The Cross-Motions for Judgment on the Administrative Record filed by defendant and intervenor-defendants are DENIED as moot;
(2) The Clerk’s Office is directed to ENTER final judgment DISMISSING the complaint in its entirety without prejudice in this action;
(3) On or before October 1, 2007, counsel for the parties shall CONFER and FILE with the Clerk’s Office a redacted copy of this opinion, with any material deemed proprietary marked out and enclosed in brackets, so that a copy of the opinion can then be prepared and made available in the public record on this matter; and
(4) Each party shall bear its own costs.
. The facts which led to this bid protest are agreed upon by the parties, unless otherwise indicated. None of the facts expressed in this section constitute findings of fact by the court. This recitation of the history of the case is provided for informational purposes only.
. The solicitation initially covered only five states, but its geographical reach was expanded by the Corps pursuant to Amendment 001 to the solicitation. See AR at 30.
. “The SBA's section 8(a) program was established to promote the viability of socially and economically disadvantaged small business concerns by empowering the [SBA] to enter into contracts with other federal agencies and to arrange for the performance of such contracts by negotiating or otherwise letting subcontracts to small business concerns.” P.R. Contractors, Inc. v. United States, 76 Fed.Cl. 621, 623 n. 2 (2007) (internal quotation marks omitted) (quoting Baker v. Dep't of Health and Human Servs., 912 F.2d 1448, 1450 (Fed.Cir.1990) and citing 48 C.F.R. § 19.800(a)).
. NAICS codes are used by government agencies and the SBA to establish size standards governing eligibility for small business preferences under government programs and procurements. See Advanced Sys. Tech., Inc. v. United States, 69 Fed.Cl. 474, 475 n. 1 (2006) (citing 13 C.F.R. §§ 121.101, 121.402 (2006)).
. 13 C.F.R. § 125.15(b) (2007) provides that a service disabled veteran owned small business concern, like Ironclad Services, "may enter into a joint venture agreement with one or more other [small business concerns] for the purpose of performing an SDVO contract.” There is no question that EEI is a large business. Thus, under the existing small business regulations, the joint venture between Ironclad Services and EEI is not eligible for an SDVOB award.
. Initially, Ironclad hoped to also challenge the section 8(a) and HUBZone awards made pursu
. Notably, GAO decisions are not binding of the Court of Federal Claims, but are merely advisory. North Carolina, 53 Fed. Cl at 165 n. 13 (citing Bean Dredging Corp. v. United States, 22 Cl.Ct. 519, 522 (1991)).
. Plaintiff additionally claims that the manner in which the Corps terminated the SDVOB contract violated FAR 49.101(b) and 49.603-6. Ironclad claims, specifically, that the Corps erred when it failed to provide plaintiff with a notice of termination in advance of issuing the termination modification which ended the parties’ contractual relationship. This contention is without merit. As defendants have correctly pointed out, the regulations provide for issuance of a no-cost settlement agreement in lieu of a termination notice. See 48 C.F.R. § 49.101(b) (2006) (stating that ”[t]he contracting officer shall effect a no-cost settlement instead of issuing a termination notice” under certain circumstances). In any event, this allegation, correct or not, provides no basis for relief, as it constitutes no more than a de minimis error in the procurement process. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed.Cir.1996); Andersen Consulting v. United States, 959 F.2d 929, 935 (Fed.Cir.1992) (stating that errors which are "so insignificant when considered against the solicitation as a whole that they can safely be ignored and the main purposes of the contemplated contract will not be affected” are de minimis and therefore not
. Any claims which are directly related to the NAICS code assigned to this procurement are relevant to the small business awards only. Because Ironclad concedes that it does not have standing to challenge the small business awards made under the solicitation, these arguments are moot. See Oral Arg. Tr. at 7.