Public Warehousing Co. K.S.C. v. Defense Supply Center PhiladelphiaPublic Warehousing Co. K.S.C. v. Defense Supply Center Philadelphia
MEMORANDUM OPINION
Plaintiff Public Warehousing K. S.C., through its subsidiary PWC Logistics Services (collectively, “PWC”) is a United States government contractor providing food products to the U.S. military in the Middle East pursuant to contracts with the Defense Supply Center Philadelphia (“DSCP”). Plaintiff brings this action against DSCP, the Defense Logistics Agency, and the Department of Defense seeking relief from (1) DSCP’s alleged refusal to provide other government procurement agencies with past performance evaluations and information on the DSCP contracts and (2) DSCP’s inclusion of allegedly improper information in one recent evaluation. Plaintiff contends that DSCP’s actions violate the Federal Acquisition Regulations, 48 C.F.R. §§ 42.1502-.1503, and are arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 706. Plaintiff further contends that DSCP’s actions result in constructive debarment of PWC from the government contracting industry in violation of its right to due process.
Plaintiff seeks a preliminary and permanent injunction against DSCP Defendants have moved to dismiss for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted pursuant to Fed. R.Civ.P. 12(b)(1) and (b)(6). 1 The parties have agreed to consolidate plaintiffs motion for preliminary injunction with plaintiffs request for a permanent injunction and final resolution of this action pursuant to Fed.R.Civ.P. 65(a)(2), and hence a consolidated hearing on the motions was held on April 26, 2007. For the reasons explained below, the Court will grant defendants’ motion to dismiss for lack of subject matter jurisdiction, and will deny plaintiffs motion for a preliminary or permanent injunction.
BACKGROUND
Plaintiff and DSCP have entered into three Subsistence Prime Vendor contracts covering the provision of food products and related services to U.S. military dining facilities in the Middle East. Decl. of Toby Switzer ¶¶ 5-7 (PL’s Mem., Ex. B) (“Swit-zer Decl.”). These contracts are referred to as PV1 (Contract No. SP0300-03-D-3061), PV Bridge (Contract No. SPM300-05-D3119), and PV2 (Contract No. SPM300-05-D-3128).
Id.
The first contract, PV1, had an estimated value of $1.4 billion, and expired on February 15, 2005.
Id.
¶ 6; Contractor Performance Assessment Report for PV1 (Pl.’s Mem., Ex. K). The second contract, PV Bridge — in essence, a “bridge” contract for the continuation of services until the finalization of the next contract — had an estimated value of $1.5 billion, and expired on December 4, 2005. Switzer Decl. ¶ 2; Contractor Performance Assessment Report for PV
The Federal Acquisition Regulations on “Contractor Performance Information” are set forth at 48 C.F.R. subpart 42.15. Section 42.1502(a) provides that agencies “shall” prepare an evaluation of contractor performance at the time the work under the contract is completed. Id. § 42.1502(a). It further recommends that “interim” evaluations “should” be prepared where the contract exceeds one year, in order to provide current information for source selection purposes. Id. In addition to interim and final evaluations, “past performance information” may be developed in the form of interviews or comment documents to assist in other contracting decisions. Id. § 42.1503(c). By regulation, agencies “shall” share past performance information with other agencies to support future award decisions. Id. Past performance information is weighed as an “indicator of an offeror’s ability to perform the contract successfully,” 48 C.F.R. § 15.305(a)(2)(i), and is thus “a significant, and often the most significant, factor in the evaluation process.” See Decl. of Pamela Cooper ¶ 6 (Pl.’s Mem., Ex. H).
PWC has received very positive feedback from DSCP until quite recently. The final DSCP performance evaluation on the PV1 contract assigned PWC an overall rating of “very good to exceptional,” and commented that, if given a choice, DSCP “definitely would award to [PWC] today” given its demonstrated ability to execute the promises made in its proposal. CPAR for PV Bridge at 5 (Pl.’s Mem., Ex. K). The Defense Logistics Agency awarded PWC the “new contractor of the year” award in 2004, and DSCP has recognized plaintiff for outstanding customer service three years in a row. Switzer Decl. ¶ 8. DSCP also sent PWC a letter of appreciation for its “significant accomplishments” in the performance of the PV Bridge contract (see Letter from Haverstick to Bland dated Nov. 18, 2005) (Pl.’s Mem., Ex. N), and PWC anticipated receiving a positive performance evaluation for its successful completion of that contract, too. However, the issuance of that evaluation was delayed until after this litigation commenced, and fell short of PWC’s expectations. See infra at 6.
Indeed, the relationship between DSCP and PWC reached a turning point in or around January 2007 when the Department of Justice (“DOJ”) initiated an investigation into PWC’s activities. Around that time, DOJ and the U.S. Attorney’s Office in Atlanta, Georgia began investigating whether certain “prompt payment” discounts that PWC received from its suppliers had been improperly withheld from DSCP and whether PWC has an affiliation with one of its suppliers, The Sultan Center, that might suggest improper pricing. Switzer Decl. ¶ 12;
see also
Am. Compl. ¶¶ 11-12. PWC denies that it has engaged in any wrongdoing, and has proffered a
In the meantime, DSCP has continued to receive requests for past performance information from other federal agencies who are considering PWC’s bids for proposed federal contracts. See Pl.’s Opp. to Defs.’ Mot. to Dismiss, Ex. A (“Pl.’s Opp.”). On February 28, 2007, however, Linda Ford, the DSCP contracting officer, advised PWC that “DSCP will not participate in past performance surveys for other agencies during the period of the DOJ investigation.” Email from Ford to Swit-zer dated Feb. 28, 2007 (Pl.’s Mem., Ex. I). DSCP reiterated this refusal to provide past performance surveys through its Office of Counsel on March 6, 2007. See Email from Surrena to Switzer dated Mar. 6, 2007 (Pl.’s Mem., Ex. A). DSCP also will not provide the final performance evaluation for PV 1 to requesting agencies, although it remains available in the Contractor Performance Assessment Reporting System database (“CPARS”) for those agencies that initiate a search for it. See Switzer Decl. ¶¶ 11, 19; see also PL’s Mem. at 13 n. 5 (further explaining that other agencies may rely on DCPS rather than CPARS to provide evaluations). In the absence of past performance evaluations and information, PWC will receive “neutral” ratings on its bids for future government contracts. See Cooper Decl. ¶ 10; 48 C.F.R. § 15.305(a)(2)(iv). Plaintiff has presented credible evidence indi-eating that the net result of this informational void is that it “has very little chance of winning future contracts.” Cooper Decl. ¶ 9.
On March 15, 2007, plaintiff filed this action seeking relief from DSCP’s refusals to provide past performance evaluations and information. In Count One, plaintiff contends that DSCP has violated 48 C.F.R. §§ 42.1502(a) and 42.1503(c) by its refusal to provide plaintiff a past performance evaluation for the PV Bridge contract and its refusal to provide past performance information to requesting procurement agencies as to any of the PV contracts. Compl. ¶¶ 28-30, 32-34. Plaintiff further contends that DSCP has acted arbitrarily and capriciously in refusing to provide interim evaluations pursuant to § 42.1502(a) for the PV2 contract. Id. ¶ 31. In Count Two, plaintiff contends that DSCP’s refusal to provide contracting officers with past performance evaluations and information constitutes a constructive debarment of PWC from the government contracting industry, thus resulting in the deprivation of property without due process of law. Id. ¶¶ 35-36.
After defendants filed a motion to dismiss, DSCP completed and provided the performance evaluation of PV Bridge. Contractor Performance Assessment Report for PV Bridge (Defs.’ Suppl. Mem., Ex. 2). Defendants anticipated that the evaluation would render moot some or all of plaintiffs claims. The evaluation, how
Plaintiff has advised the Court that it is in the process of exhausting its administrative remedies with respect to the PV Bridge evaluation — that is, preparing a ■written response as it is entitled to do under 48 C.F.R. § 42.1503(b) and, if necessary, seeking relief from a supervisory contracting officer under that regulation. 4 Hr’g Tr. at 8-9. In plaintiffs view, however, its need for expedited relief remains unchanged. Plaintiff has submitted several bids in response to federal solicitations since it was first advised of the DOJ investigation and anticipates submitting about 50 bids in the foreseeable future, worth about $2 billion in annual revenues. See Switzer Decl. ¶ 9. DSCP remains firm in its position that, during the period of the DOJ investigation, it will not provide past performance evaluations or information in response to requesting agencies or in response to PWC’s request on behalf of such agencies. Consistent with the parties’ supplemental briefs and arguments at the motions hearing, the Court will treat plaintiffs motion for preliminary and permanent injunction, and defendants’ motion to dismiss, as applying to the amended complaint.
STANDARD OF REVIEW
I. Rule 12(b)
“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”
Scheuer v. Rhodes,
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court — plaintiffs here — bears the burden of establishing that the court has jurisdiction.
See U.S. Ecology, Inc. v. U.S. Dep’t of Interior,
When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the Court must determine whether the “[fjactual allegations ... raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.”
See Bell Atlantic Corp. v. Twombly,
— U.S. -,
II. Injunctive Relief
The standard for granting a permanent injunction is much like the standard for a preliminary injunction, and requires consideration of the following factors: (1) success on the merits; (2) whether plaintiff will suffer irreparable injury absent an injunction; (3) whether, balancing the hardships, there is harm to defendants or other interested parties; and (4) whether the public interest supports granting the requested injunction.
See Nichols v. Truscott,
DISCUSSION
The Court first considers the threshold issue of its subject matter jurisdiction over this case. Plaintiff alleges that DSCP’s refusal to provide past performance evaluations and information violates the APA because the refusal is arbitrary and capricious, violates federal
“ ‘It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.’ ”
United States v. Mitchell,
The APA contains a limited waiver of sovereign immunity, providing that:
A person suffering legal wrong because of agency action ... is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity ... shall not be dismissed nor relief therein denied on the ground that it is against the United States....
5 U.S.C. § 702;
See Fornaro v. James,
Here, defendants contend that the ADRA “expressly or impliedly forbids” this Court from exercising jurisdiction over plaintiffs claims because the ADRA vests exclusive jurisdiction over those claims in the Court of Federal Claims. Indeed, the parties agree, in principle, that the ADRA, rather than the APA, sets forth the scope of the government’s waiver
The ADRA is an amendment to the Tucker Act, 28 U.S.C. § 1491, responding to the previous overlapping jurisdiction of the district courts and the Court of Federal Claims with respect to bid protest cases and other challenges to government contracts.
See Emery Worldwide Airlines v. United States,
(b) (1) Both the Unite[d] States Court of Federal Claims and the district courts of the United States 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. Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.
(2) To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief, except that any monetary relief shall be limited to bid preparation and proposal costs.
28 U.S.C. § 1491(b). This provision afforded the Court of Federal Claims and the federal district courts jurisdiction over “the full range of cases previously subject to review under either system.”
See Emery Worldwide Airlines,
The jurisdiction of the district courts of the United States over the actions described in section 1491(b)(1) of title 28, United States Code (as amended by subsection (a) of this section) shall terminate on January 1, 2001 unless extended by Congress.
See Pub.L. No. 104-320, 110 Stat. 3875 (Oct. 19, 1996) (codified at 28 U.S.C. § 1491 note). Congress did not extend the sunset date, and thus district court jurisdiction over claims enumerated in section 1491(b)(1) terminated on January 1, 2001. 6
The meaning of the “violation of statute or regulation” clause has been addressed by the Federal Circuit and this Court on several occasions, albeit in factual contexts different from the present case.
See RAMCOR Servs. Group v. United States,
The starting point is the plain language of section 1491(b)(1) — “any violation of statute or regulation in connection with a procurement or a proposed procurement.” The Federal Circuit has observed that the “operative phrase” of this text is the “in connection with” clause.
RAMCOR Servs. Group,
Much depends, however, on the meaning of the term “procurement” — a term not defined in the ADRA. The Court of Federal Claims has construed “procurement” as used in section 1491(b)(1) to encompass “all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout,” borrowing from Congress’s definition of the term procurement at 41 U.S.C. § 403(2).
7
OTI Amer
The requirement in the Federal Acquisition Regulations to provide contractors with performance evaluations and information fits comfortably within the body of regulations that are “in connection with a procurement or a proposed procurement.” First, a final performance evaluation is encompassed by contract “closeout.” The closeout regulations state that closeout procedures include “[a] statement that all required contract administration actions have been fully and satisfactorily accomplished.” 48 C.F.R. § 4.804-5(b)(10) (emphasis added). According to the Office of Federal Procurement Policy (“OFPP”), “Contract Administration involves those activities performed by government officials ... to determine how well the government and the contractor performed to meet the requirements of the contract.” See OFPP, A Guide to Best Practices for Contract Administration at 5 (Oct.1994) available at www.acquisition.gov/ bestpractices/bestpcont.html (emphasis added). 8 Clearly, - a performance evaluation is an activity performed by government officials to determine how well the contractor performed.
Additionally, putting the closeout function aside, the performance information regulations at Subpart 42.15 also fit easily within regulations that are “in connection with ... a proposed procurement.” Sub-part 42.15 recognizes at its outset that “[p]ast performance information is relevant information, for future source selection purposes.” 48 C.F.R. § 42.1501. The function of the information as “source selection” information for future procurements is repeated throughout Subpart 42.15. Id. § 42.1503(b) (“The completed evaluation shall not be released to other than Government personnel and the contractor ... during the period the information may be used to provide source selection information.”); Id. § 42.1503(c) (“Departments and agencies shall share past performance information with other departments and agencies when requested to support future award decisions.”). This constitutes further support for the conclusion that the Subpart 42.15 regulations are “in connection with a procurement or a proposed procurement.”
Plaintiff contends, however, that “procurement” was intended by Congress to refer to a bid protest — which plaintiff regards as a dispute over an individual contract solicitation or award — and thus does not cover plaintiffs claims because it is not engaged in a bid protest with DSCP.
See
Pl.’s Opp. at 1-2 (“[T]he ADRA applies to claims made ‘in connection with’ bid or
But this “bid protest” limitation was squarely rejected in
RAMCOR
and
Labat-Anderson,
and is also rejected here. Limiting the “violation of statute or regulation” prong to bid protest cases would render it superfluous.
See RAMCOR,
Plaintiff also contends that the heading of section 12 of the ADRA — “Jurisdiction of the United States Court of Federal Claims and the District Courts of the United States: Bid Protests” — demonstrates that Congress intended the matters described therein to be limited to bid protests.
See
Pl.’s Opp. at 5. But this reading is contrary to the canon of statutory construction that “the title of a statute or statutory section generally cannot be used to constrict the plain language of the statute.”
CDI Information Servs., Inc. v. Reno,
Plaintiff finds it significant that all of the cases cited by defendants in support of exclusive jurisdiction in the Court of Federal Claims involved a bid protest or “some other challenge” to a contract award, and a defendant agency with which the plaintiff contractor was bidding or that was involved in the contract award process. PL’s Opp. at 7; PL’s Surreply at 2-3. But looked at another way, every court to address the “violation of statute or regulation” clause outside of a traditional bid protest setting — in plaintiffs words, “some other challenge” — has concluded that the breadth of that clause covers even nontraditional disputes arising from the procurement process as long as the violation is “in connection with a procurement or a proposed procurement.”
See, e.g., RAMCOR,
The Court concludes here that plaintiffs claims fall comfortably within the category of claims that object to “violation of a ... regulation in connection with a procurement or a proposed procurement.” Plaintiff, a government contractor, alleges that DSCP has violated 48 C.F.R. §§ 42.1502 and 42.1503 — the Federal Acquisition Regulations governing the recording and maintenance of performance information— in connection with three procurement contracts. The purpose of creating and maintaining those performance information records, moreover, is to support future proposed procurement selections. See 48 C.F.R. § 42.1501. Thus, all of the performance information plaintiff seeks is necessarily in connection with procurements (i.e., the PV1, PV Bridge, and PV2 contracts) and with future proposed procurements. Indeed, plaintiff has candidly acknowledged that the need for the evaluations in connection with future proposed procurements lies at the heart of this lawsuit. See Am. Compl. ¶ 19 (“Because past performance information is so heavily weighted in a procurement agency’s award decision, DSCP’s refusal to provide such information ... has and will continue to have a significant and negative impact on PWC’s ability to win government contracts.”); Switzer Decl. ¶¶ 9-10 (“PWC is currently in the process of preparing to bid on approximately fifty additional government contracts.... PWC’s proposal for the first of these contracts is due March 18. Another proposal is due March 22.... Many other proposals are due over the next few weeks.... PWC seeks to have DSCP provide past performance evaluations for PWC’s work on the PV Bridge contract and the PV2 contract.”). In short, when DSCP refuses to provide performance information about performed or ongoing contracts — or provides negative performance information in the case of PV Bridge — to requesting procurement agencies relating to future contract bids, the alleged violation of the FAR is “in connection with a procurement or a proposed procurement.” 10
Plaintiff attempts to avoid the impact of exclusive jurisdiction in the Court of Federal Claims under the ADRA by characterizing its due process claim as a distinct claim that is appropriate for this Court’s jurisdiction. Plaintiffs due process claim is grounded upon the theory that the same actions that support its claims under the FAR — DSCP’s refusal to providing requesting procurement agencies with past performance evaluations and information and the allegedly improper PV Bridge evaluation — also has resulted in plaintiffs constructive debarment. Pl.’s Mem. at 18-21.
Where there is a possible alternative basis for district court jurisdiction over claims that otherwise fall within the exclusive jurisdiction of the Court of Federal Claims, the determination of whether a claim belongs in the district court or in the Court of Federal Claims depends upon whether the claim is “at its essence” one covered by the relevant Court of Federal Claims statute — here, the ADRA — or is instead a constitutional or other statutory claim.
See Megapulse, Inc. v. Lewis,
As to the first factor — the source of the rights upon which plaintiff bases its claims — it is clear that plaintiffs allegation of constructive debarment is premised entirely on its rights under the Federal Acquisition Regulations, 48 C.F.R. §§ 42.1502 and 42.1503, to receive performance evaluation information regarding the Prime Vendor contracts.
See
Pl.’s Opp. at 13 (“DSCP’s violation of the FAR ... is the direct and immediate cause of PWC’s injury.”). In other words, the success of plaintiffs due process claims does not depend upon some fact, document, or right peripheral to contract administration.
The second factor- — the type of relief sought — likewise supports that conclusion. In plaintiffs own words, the “injunction will require DSCP to comply with the Federal Acquisition Regulations, 48 C.F.R. § 42.1502~.1503, by providing other procurement agencies with past performance evaluations and information related to PWC.” See Pl.’s Mot. for Prelim. Inj. at 2. Thus, the amended complaint seeks primarily (1) an order declaring that “DSCP’s refusal to provide past performance information and evaluations ... to requesting procurement agencies constitutes a violation of the FAR” and further declaring that “DSCP’s reference to the [DOJ] investigation [in the PV Bridge evaluation] constitutes a constructive debarment of PWC because ... this action will severely impact PWC’s ability to compete for and be awarded government contracts”; (2) an injunction “requiring DSCP to provide other procurement agencies with past performance evaluations and information” pursuant to those same regulations; and (3) an injunction requiring DSCP to eliminate references to the pending DOJ investigation from evaluations and past performance information- — -all relief that may be available administratively under 48 C.F.R. § 42.1503. See Am. Compl. at 11-12. Hence, the second factor indicates that this claim is “at its essence” about violation of regulations “in connection with a procurement or a proposed procurement” within the meaning of section 1491(b)(1), and thus comes under the Court of Federal Claims exclusive jurisdiction. Indeed, the few published cases addressing the meaning of those regulations are decisions issued by the Federal Circuit and the Court of Federal Claims — -which underscores the latter court’s unique expertise over such claims. See supra note 10.
Plaintiff next contends that the Court of Federal Claims has held that, as a general rule, this type of constructive debarment claim is within the jurisdiction of a district court, not the Court of Federal Claims, citing
Medina Const., Ltd. v. United States,
CONCLUSION
For the foregoing reasons, the Court will grant defendants’ motion to dismiss and deny plaintiffs motion for preliminary and permanent injunction. A separate order has been issued on this date.
ORDER
Upon consideration of plaintiffs motion for preliminary and permanent injunction and defendants’ motion to dismiss the amended complaint, and for the reasons stated in the memorandum opinion issued on this date, it is hereby
ORDERED that defendants’ motion to dismiss is GRANTED and plaintiffs amended complaint is DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that plaintiffs motion for preliminary and permanent injunction is DENIED.
SO ORDERED.
Notes
. For ease of reference, the Court will refer to plaintiff's memorandum in support of its motion for preliminary injunction as "PL's Mem.” and defendant’s memorandum in support of its motion to dismiss as "Def.'s Mem.”
. DSCP estimated that the written contract modification formally renewing the option would be issued within eight to ten weeks of its written notice — roughly late May to early June of this year. See Notice of Intent Mem. at 1
. Plaintiff contends that the contracts authorized PWC not to pass on “prompt payment” discounts to DSCP. Plaintiff explains that its proposals for PV1 and PV2 each included the following statement: "Delivered Price is not reduced by cash discounts for prompt payment available to PWC or its supplier.” See PL’s Mem. at 7 (quoting Ex. C at 12 and Ex. D at 6). Plaintiff also quotes a DSCP email to PWC confirming this understanding. Id. at 8 & Ex. F (email from PV2 contracting officer Timothy Dlugokecki rescinding his request for explanation of prompt payment discounts, and further stating: "I was informed the following: 'Discounts or rebates received by the prime vendor from its supplier as a result of prompt or early payment made by the prime vendors to such suppliers are not required to be passed to DSCP or its customers.' ”). Plaintiff also has informed DOJ in writing that The Sultan Center is neither a parent nor a subsidiary of PWC. Pl. Mem., Ex. G.
. This regulation provides: "Contractors shall he given a minimum of 30 days to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate con-elusion on the performance evaluation is a decision of the contracting agency. Copies of the evaluation, contractor response, and review comments, if any, shall be retained as part of the evaluation.” 48 C.F.R. § 42.1503(b).
. A court may also resolved disputed jurisdictional facts as long as any necessary procedural protections, such as discovery or an evidentiary hearing, are provided.
See Herbert v. National Academy of Sciences,
. For a full discussion of the overlapping jurisdiction of the district courts and the Court of Federal Claims prior to enactment of the ADRA,
See Emery Worldwide Airlines,
. Under this and related provisions, Congress established the Office of Federal Procurement
. Plaintiff argued at the motions hearing that performance evaluations are separate and independent from closeout, which is evidenced by its absence from the items enumerated in 48 C.F.R. § 4.804-5. Hr’g Tr. at 31-32, 34-35. This construction of "closeout” is not consistent with the quoted provision of the regulation. In any event, the closeout regulation provides that the list is not exclusive, specifying that “these closeout actions may be modified to reflect the extent of administration that has been performed.” Id. § 4.804-1(b).
. Indeed, in
RAMCOR,
the Federal Circuit reversed the lower court’s dismissal where the rationale for dismissal was that "the ADRA covers primarily pre- and post-award bid protests” and an attack on an underlying contract award was thus necessary to support jurisdiction under section 1491(b)(1).
. Consistent with its position that section 1491(b)(1) is limited to bid protests, plaintiff asserts that the Court of Federal Claims will not exercise jurisdiction over the alleged violation of the FAR performance information regulations, and asks the Court to weigh that anticipated outcome in the section 1491(b)(1) analysis. The Court cannot base its decision on unsupported speculation that the Court of Federal Claims may reach a result at odds with the judicial precedent addressing the meaning of section 1491(b)(1) and the sunset provision. The cases cited by plaintiff in sup
It bears noting that this Court's conclusion that plaintiff’s claims lie within the exclusive jurisdiction of the Court of Federal Claims does not necessarily mean that plaintiff’s claims will survive dismissal there. Defendants contend that plaintiff lacks standing to sue based on lack of an imminent injury. Defs.’ Mem. at 9-14. Defendants also contend that, regardless of who has jurisdiction, plaintiff fails to state a claim upon which relief can be granted because §§ 42.1502 and 42.1503 do not create rights that are legally enforceable by contractors. Defs.' Mem. at 14-16. Additionally, defendants suggest that, as to the PV Bridge evaluation, plaintiff has failed to exhaust its administrative remedies under 48 C.F.R. § 14.1503(b) and that, in any event, the substance of an evaluation is committed to the "sole and final discretion” of the evaluating agency. Defs.' Reply at 5-6. The determination of these issues remains for the Court of Federal Claims.
. The court in
Forest Service Employees for Envt’l Ethics
also suggested, without analysis or discussion of the relevant case law, that the "violation of statute or regulation” clause should be narrowly construed.
. It bears noting that Medina Construction was decided before the sunset provision of the ADRA went into effect in 2001, and hence while Scanwell jurisdiction remained in effect. Any broad generalizations by the Court of Federal Claims before that date on matters falling within a district court’s jurisdiction must be examined anew in light of the termination of district court jurisdiction over matters within section 1491(b)(1).
. Assuming
arguendo
that the constructive debarment claim were within the jurisdiction of this Court, plaintiff would face formidable hurdles on this claim. The standard for constructive debarment (often referred to as
de facto
debarment) is high.
See TLT Const. Corp.,