Post-Award Bid Protest; Pre-Award Bid Protest; Standing; Justiciability; Mootness; Ripeness
OPINION and ORDER
This is a bid protest filed by Square One Armoring Service, Inc. (Square One or plain *314 tiff) against the General Services Administration (GSA or defendant). Compl. ¶ 1, ECF No. 1, Apr. 2, 2015. Square One challenges as arbitrary and capricious GSA’s evaluation of proposals submitted in response to a Solicitation for the procurement of armored vehicles and its award of the Solicitation to defendant-intervenor, O’Gara-Hess & Eisenhardt Armoring Co., LLC (O’Gara). See id. ¶¶ 1-3.
Prior to the filing of Square One’s complaint, GSA agreed to take corrective action by cancelling the award to O’Gara, revising the Solicitation, and inviting offerors to resubmit proposals. See id. ¶ 9. Square One also challenges the proposed corrective action. Id. ¶¶ 1, 4.
The parties submitted cross-motions for judgment on the administrative record (AR) in accordance with United States Court of Federal Claims Rule (RCFC) 52.1(c). 4 See Pl.’s Mot. J. AR (Pl.’s Mot.), ECF No. 16, May 4, 2015; Def.’s Mot. J. AR (Def.’s Mot.), ECF No. 20, May 21, 2015; see also PL’s Resp., ECF No. 21, June 5, 2015; Def.’s Reply, ECF No. 24, June 15, 2015. Oral argument was not deemed necessary by the court.
For the reasons explained below, plaintiff’s motion is DENIED, and defendant’s cross-motion is GRANTED.
I. Background
A The Solicitation
On May 12, 2014, GSA issued Request for Quotations (RFQ) 873823 for the procurement of armored vehicles on behalf of the Department of Defense (DOD), Army Budget Office, in reference to Solicitation No. ID09140021 (the Solicitation). 5 Tab 11, AR 62(RFQ). The Solicitation was directed to GSA Multiple Award Schedule (MAS) Schedule 84 contract holders, who provide “Total Solutions for Law Enforcement, Security, Facilities Management, Fire, Rescue, Clothing, Marine Craft and Emergency/Disaster Response.” 6 Id. GSA intended to award a firm fixed price task order to furnish and armor thirty vehicles in the base year and forty-eight vehicles in each of four one-year option periods, for a total of 222 vehicles. Id.; Tab 11c, AR 116-17. Specifically, GSA sought the following vehicles with either B4 + or B6 level of ballistic] protection:
*315 • Toyota Landeruiser; 200 Series SUVs, 4x4, LHD, Petro
• Toyota Landeruiser; 200 Series SUVs, 4x4, LHD, Diesel
• Chevrolet Suburban SUV; $ Ton SUVS, 1500, 4x4
• Ford Econoline Passenger Van; E-350 XL, 2WD
• Toyota Hilux Piek-Up; Turbo Diesel 4x4
Tab 11, AR 62; Tab lib, AR 81.
The Bill of Materials (BOM) offered detailed specifications for each of the five vehicles. Each vehicle was required to have “Standard [Original Equipment Manufacturer (OEM) ] Accessories,” see, e.g., Tab lib, AR 91, as well as “Additional Required Accessories,” see, e.g., id. .at 95. Under the latter category, and at issue in this protest, are the requirements that each vehicle be equipped with three spare keys, and that the Toyota Landcruisers (both Petro and Diesel) be equipped with push-button ignitions while the Chevrolet Suburban SUV, Ford Econoline Passenger Van, and Toyota Hilux Pick-Up be equipped with keyed ignitions. Id. at 95, 100, 105, 110, 115.
The Solicitation advised that “[t]he Government intends to award one task order to the responsible Offeror whose quote is determined to be the best value to the Government utilizing a Lowest Price, Technically Acceptable (‘LPTA’) approach from a responsible Offeror with acceptable past performance.” Tab 11, AR 66; see also id. at 72. To be eligible for award, “[o]fferors [were] required to meet all solicitation requirements, such as terms and conditions and technical requirements, as outlined in the GSA Multiple Award Schedule (MAS), Schedule 84.” Id. at 66. The Solicitation further advised that “the Government reserve[d] the right to award no task order at all, depending on the quality of quotations(s) [sic] submitted and the availability of funds.” Id.
Offerors would be evaluated according to the following factors: Technical Acceptability, Past Performance, and Price. Id. at 67. The Technical Acceptability Factor was comprised of the following Sub-Factors: Compliance with Requirements (Sub-Factor la), Ballistic Certifications (Sub-Factor lb), Armoring Facility Locations (Sub-Factor lc), and Warranty/Maintenance (Sub-Factor Id). Id. An Unacceptable rating for any of the Sub-Factors would result in an Unacceptable rating for the entire Technical Factor — a rating that would render an offeror ineligible for award. Id.
The Solicitation advised that Sub-Factor la, which is at issue in this protest, would be evaluated based on the following criteria:
Offerors shall provide a line item list of all proposed items to successfully demonstrate they meet or exceed the requirements in section 6.0 of the BOM. Additionally, each item proposed shall include an easily identifiable, cross referenced MAS Schedule 84 part number, to demonstrate that all items proposed are available on the Offer’s GSA Multiple Award Schedule (MAS), Schedule 84 Contract at the time the Offeror’s quote is submitted to the Government.
Id. at 68.
B. Square One’s Offer and Clarification Questions
Square One submitted a timely offer on July 11, 2014. See Tab 27, AR 420-576. Under the “Additional Required Accessories” heading of its Technical Proposal, Square One listed the following for each of the five vehicles:
Spare Keys (3 keys total per vehicle) (Included with OEM vehicle, available as an add-on under GSA' contract)
Ignition: Ml vehicles will have a push-button ignition (Included with OEM vehicle, available as an add-on under GSA contract)
Id. at 430, 437, 444,452, 460.
On September 16, 2014, a GSA representative sent Square One clarification questions regarding Square One’s proposal via email. Tab 31, AR 689. The email stated in relevant part:
For each of the proposed vehicles, your quote states that the 3 spare keys and the push-button ignition are “included with the OEM vehicle, available as an add-on under GSA contract.” The government has the following clarification questions:
*316 1. Provide the MAS Schedule 84 part number for the following items included in your proposed solution:
a. Spare Keys (3 keys total per vehicle).
b. Ignition: All vehicles will have a push-button ignition.
2. In addition to providing MAS Schedule 84 part numbers, if the part is “Included as an OEM item,” please provide a copy of the vehicle’s OEM specification demonstrating the part is included. If the part is “Available as an add-on under GSA contract” please provide documentation demonstrating the part is currently available on Square One’s GSA Schedule 84 contract.
Id.
Square One responded three days later, also by email:
Items such as the spare keys and push button ignition do not have MAS Schedule 84 part numbers because they cannot be sold alone under our GSA contract. These items in particular are specific option items that each government customer may or may not require their OEM vehicles to contain. Our GSA contract is for armor packages and each armor package we offer has a part number. We also offer various optional add-on items, such as the OEM vehicle itself, spare parts, winches, etc., that can be added to the armor package, but cannot be purchased as stand-alone items off of our GSA contract. (Some government, agencies provide them own OEM vehicles to be armored, which is why we list them as an option and not part of the armor package itself.)
As an example, please refer to the attached Advantage screen shot image of one of the armor packages offered in response to this RFQ (attachment contains pricing). You will note the base product part number is “CENB4 + P-TOYLC-200”, and the item name is “CEN B4+ Land Cruiser 200 w/ partition”. There is also a list of ten Options Available which can be added to the base product. Among these is the OEM vehicle. Please refer to the second attachment titled PP 3 GSA Approved Price List (attachment contains pricing). This is a copy of Square One’s price list approved and signed by GSA on July 2, 2014. It was submitted as part of our Price Proposal response to this RFQ, and a redacted (prices removed) version was submitted as part of our Technical Proposal for part number cross referencing. Please see the top of page 2 where there is a note for Group 4 (OEM Vehicles). This note states, “The OEM prices shown below reflect current MSRP (Manufacturer Suggested Retail Price) for each make and model, for budgeting purposes. At the time of RFQ, Square One may be able to locate vehicles priced significantly lower, depending on each customer’s desired OEM specifications. Customers are encouraged to submit detailed/desired specifications with each RFQ in order to ensure the best possible price. OEM vehicles may only be purchased with an Armor Package.” For each vehicle model we offer, there is an “up to [max price listed], depending on desired features and options listed on RFQ for OEM vehicle.” The OEM vehicle prices vary on a case by case basis, depending on what OEM features and/or OEM upgrades each customer desires/requires (fuel type, transmission type, upholstery type, steel or aluminum wheels, extra keys, etc.).
The vehicles Square One would procure for this project would be equipped with 3 keys total, as required by the RFQ. Attached please find OEM vehicle specification sheets for each vehicle type, as provided by our vehicle suppliers. There is no MAS Schedule 84 part number for the keys as they are considered a feature of the OEM vehicle, which can be purchased as an option only under our current GSA schedule. Please note that all items on our proposal which were listed as “included as an OEM item” (car alarm, radio, and keys) are marked with an asterisk on the attached spec sheets.
Regarding the push-button ignition, we have identified a typographical/formatting error in our proposal, wherein each vehicle listed on the proposal is described as having a push button ignition. Square One confirms we can and would comply with the RFQ’s specifications which are: the *317 Toyota Land Cruisers (petrol) have push-button ignition, the Chevy Suburbans have key ignition, the Ford vans have key ignition, the Toyota Hilux have key ignition, and the Toyota Land Cruiser (diesel) have push-button ignition. Alternatively, should the government accept our proposal as originally submitted which reflected all models being equipped with push-button start, Square One is prepared to fulfill the order with the additional feature at the originally proposed price. The vehicles would be procured from our vehicle suppliers/dealers to include this added feature. Regarding the items that were listed as “available as an add-on under GSA contract”, please refer to attachment PP 3 GSA Approved Price List (attachment contains pricing). Group 6 of our price list contains Options/Accessories. Among these, are the items Square One referenced as available as an add-on under GSA contract. These items are: run flat assemblies, tool kit, winch, road warning triangle, PA system, and spare parts. In addition, please see each of the attached Advantage screen shots which show the brief drop-down menu description of the options (attachments contain pricing). All items proposed are currently offered under our GSA contract, (please note: the tool kit, winch, winch accessories, and road warning triangles are all contained under the option named Winch Kit)
Lastly, the GSA Advantage description for the CEN B4 + armor package used in the above examples states, “SQI CEN B4+ armor package with fixed partition behind second row, installed in a Toyota Land Cruiser 200 series ... For complete armor package description and included options/accessories, please see GSA catalog”. Attached please find the armor package summary pages contained in our GSA catalog, for each of the armor packages contemplated in this RFQ/proposal. Please note this catalog is available (and has been available since before the proposal due date) on our GSA Advantage page as required by GSA. These summaries will confirm that any items listed on our proposal as “included as part of armor package on GSA contract” are in fact part of our base armor packages offered under GSA. Examples of this include the operable window back-up manual lifters and the first aid kit.
Tab 32, AR 591-92.
C. Evaluation of Offers and Award Decision
Seven MAS Schedule 84 contract holders submitted offers in response to the Solicitation. Tab 38, AR 660. The Technical Evaluation Team determined that six of the offer-ors, including Square One, were technically ' unacceptable. Id. at 674-92. Only the offer from O’Gara received a rating of Acceptable for the Technical Factor. Id. at 669-71. Because its Past Performance Factor was also rated Acceptable, O’Gara was considered the lowest priced technically acceptable offeror, with a price of $34,159,804.96. See id. at 693. The government awarded O’Gara the task order on February 3, 2015. 7 Tab 39, AR 694.
On February 4, 2015, after receiving an email notification that O’Gara had been awarded the task order, Square One requested an explanation of the award decision pursuant to FAR 8.405-2(d) (2014). Tab 41, AR 745; see FAR 8.405-2(d) (“If an unsuccessful offeror requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the award decision shall be provided.”). GSA responded the next day with the following explanation:
Your quote was rated Technically Unacceptable and was ineligible for award for the following two reasons:
1. Your quote failed to meet the requirements of the BOM in section 6.0 for the following vehicles:
5 Chevrolet Suburban; 1/2 Ton SUV’s, 1500, 4x4
5 Ford Econoline Passenger Van; E-350 XL, 2WD
5 Toyota Hilux Pick-up, Turbo Diesel 4x4
These technical requirements as outlined in the BOM required the above vehicles to *318 be supplied having keyed ignitions. Your proposed solution included the above vehicles with push button start ignitions.
2, Your quote failed to include the following accessory as a GSA MAS Contract item. Doing so is not in accordance with the rules governing the use of the Federal Supply Schedules (FSS) and the terms of the RFQ:
1. Spare Keys
In accordance with the FSS and MAS Schedule 84, an agency is not permitted to purchase open market items in an amount exceeding the micro-purchase threshold using the FSS procedures set forth in FAR subpart 8.4. The micro-purchase level applies to all open market items, in aggregate.
a. Therefore, Square One Armoring was rated Technically Unacceptable on the following evaluation factor in Section 3.1. “Factor 1, Technical Acceptability / Sub factor la, Compliance with requirements:”
Offerors shall provide a line item list of all proposed items to successfully demonstrate they meet or exceed the requirements in section 6.0 of the BOM. Additionally, each item proposed shall include an easily identifiable, cross referenced MAS Schedule 84, part number, to demonstrate that all items proposed are available on the Offer [or]’s GSA Multiple Award Schedule (MAS), Schedule 84 Contract at the time the Offeror’s quote is submitted to the Government.
b. In addition, Square One Armoring was rated Technically Unacceptable in accordance with the terms of the RFQ set forth in the following requirements on page 2, paragraph 3 and 4:
“You are to submit a quotation based on the identified items/material requested for award consideration, to include GSA Schedule Items Only. ”
“Open Market items, in a total aggregate of $3,000.00 or less, are acceptable”.
The awardee, O’Gara-Hess & Eisenhardt Armoring Company LLC submitted the Lowest Priced, Technically Acceptable offer ($34,159,804.96). Your company’s interest in doing business with The General Services Administration, and the time and effort you expended in responding to this solicitation, are very much appreciated.
Tab 44, AR 762-63.
D. Procedural History
On February 9, 2015, Square One filed a protest at the Government Accountability Office (GAO). 8 See Tab 48, AR 778. After reviewing Square One’s protest, GSA “determined that corrective action [was] in the best interests of the Government.” Tab 61, AR 1084. On March 10, 2015, GSA filed a Notice of Corrective Action with the GAO, stating that GSA would recommend that any corrective action “include an opportunity for the resubmission of proposals following a revision of the solicitation documents to provide more precise instructions to the offerors on the preparation of quotes.” Id. In light of the proposed corrective action, GSA requested that the GAO dismiss Square One’s protest.’ Id.
Three days later, on March 13, 2015, the GAO dismissed Square One’s protest, stating that “[w]here, as here, an agency undertakes corrective action that will supersede and potentially alter its prior source selection decision, our Office will generally decline to rule on a protest challenging the agency’s prior decision on the basis that the protest is rendered academic.” Tab 63, AR 1088.
Square One filed its complaint in this court on April 2, 2015. Four days later, GSA terminated the task order awarded to O’Gara pursuant to FAR 8.406-5. Tab 67, AR 1140-41. The court understands that GSA either has cancelled or intends to cancel the Solicitation prior to re-procuring the requirement. *319 See Pl.’s Mot. 2 (challenging GSA’s “cancellation of the solicitation”); Def.’s Mot. 15 (“GSA is taking corrective action that will include re-procuring the requirement.”); Pl.’s Resp. 2 (challenging GSA’s decision “to cancel the solicitation and to take corrective action to reprocure”). Defendant represents that “GSA has not yet issued a new solicitation.” Def.’s Mot. 13.
Plaintiffs complaint includes challenges to GSA’s original evaluation of proposals and the award to O’Gara, see Compl. ¶¶ 37-46 (Count 1.A), 51-86 (Counts 2-5); and challenges to GSA’s proposed corrective action, see id. ¶¶ 47-50 (Count l.B), 87-90 (Count 6). Plaintiff asks the court to find that O’Gara was ineligible for contract award, that Square One should be awarded the task order, and that the proposed corrective action is “inadequate” and in violation of the Competition in Contracting Act. Id. at 39-40; Pl.’s Mot. 25-26.
The government asserts that the court has no jurisdiction to entertain plaintiffs protest because plaintiff cannot establish standing. Def.’s Mot. 13-20; Def.’s Reply 2-5. Alternatively, the government asserts that even if plaintiff does have standing, the GSA’s corrective action was rational. Def.’s Mot. 20-24. In the further alternative, the government asserts that even if plaintiff has standing and the court finds that the GSA’s corrective action was irrational, the court cannot direct award to plaintiff but, instead, should order GSA to reevaluate all the proposals. Id. at 24-26.
II. Legal Standards
The court has “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) (2012). The court’s “bid protest” jurisdiction encompasses the following types of agency actions: “(1) pre-award protests (i.e., objections ‘to a solicitation by a Federal agency for bids or proposals for a proposed contract’ or award); (2) post-award protests (i.e., objections to ‘the award of a contract’); and (3) any ‘alleged violation of statute or regulation in connection with a procurement or a proposed procurement.’”
Sheridan Corp. v. United States,
A plaintiff must establish standing to invoke the court’s bid protest jurisdiction.
See Sicom Sys., Ltd. v. Agilent Techs., Inc.,
To establish standing under the Tucker Act, a protestor must establish that it qualifies as an “interested party.”
9
See
28
*320
U.S.C. § 1491(b)(1) (providing that “an interested party” may object “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”);
Weeks Marine, Inc. v. United States,
A protestor’s showing of prejudice differs depending upon the nature of the protest. In a post-award bid protest, a protester demonstrates the requisite prejudice by showing that it would have had a “súbstantial chance” of receiving the contract award but for the alleged errors in the procurement process.
CW Gov’t Travel, Inc. v. United States,
In addition to establishing that the court possesses jurisdiction over a bid pro
*321
test dispute, a plaintiff must also meet the Article III justiciability requirements.
10
Article III of the Constitution provides that the “judicial Power of the United States” is vested in courts empowered to decide certain “Cases” and “Controversies.” U.S. Const, art. III. The ease or controversy requirement serves a dual function.
Flast v. Cohen,
Although the Court of Federal Claims is not an Article III court, it is well-established that various justiciability doctrines of Article III apply to this court.
Anderson v. United States,
III. Discussion
A. Square One’s Challenge to GSA’s Pri- or Evaluation of Proposals and Award to O’Gara
Plaintiff contends that GSA’s evaluation of proposals and award to O’Gara were flawed, improper, arbitrary and capricious, and in violation of both the Federal Acquisition Regulations and the implied duty of good faith and fair dealing. See Compl. ¶¶ 37-46 (Count 1.A), 51-86 (Counts 2-5). Plaintiff requests that the court undertake “de novo review” of GSA’s prior evaluation of proposals, Pl.’s Resp. 1, 14, and urges the court to find that GSA “should have correctly selected Square One for contract award,” because “Square One’s proposal was compliant with the solicitation requirements,” id. at 5.
1. Standing
Here, the court addresses plaintiffs challenge to GSA’s original evaluation of propos- *322 ais and award decision. Cf. infra Part III. B.l (addressing plaintiffs standing to challenge GSA’s proposed corrective action). This challenge is decidedly a post-award protest. It is beyond dispute that Square One was an actual offeror in the original Solicitation. Thus, Square One’s standing hinges on whether it can demonstrate that it would have had a “substantial chance” of receiving the contract award but for the alleged errors in the procurement process. See supra Part II (discussing elements of standing).
Defendant argues that because Square One’s technical proposal was deemed unacceptable, Square One cannot establish that it had a substantial chance of receiving award. Def.’s Mot. 17;
see also id.
at 20 (“Because of its Unacceptable rating for its Technical proposal, Square One could not be eligible for award under the original Solicitation. Accordingly, Square One has failed to demonstrate standing pursuant to the Tucker Act in this case.”); Def.’s Reply 2 (similar).
11
As defendant correctly observes, “GSA rated Square One’s proposal as ‘Unacceptable’ for the Technical factor, after GSA determined that Square One failed to comply with the requirements of the Solicitation.” Def.’s Mot. 17. Defendant argues that GSA’s determination that Square One failed to comply with the Solicitation’s technical requirements had a rational basis.
Id.
at 17-19. Defendant’s argument, however, goes to the merits of Square One’s protest.
See Sci. Appls. Int’l Corp. v. United States,
The court, however, must “avoid examining the parties’
arguments on
the merits in order to resolve standing.”
Textron, Inc. v. United States,
Square One alleges that GSA should have rated its Technical Proposal as Acceptable, because “the clarifications submitted by Square One[ ] confirm that Square One was in compliance with all required terms and items of the solicitation and all items were listed on their GSA Schedule contract.” Compl. ¶ 30; see also id. ¶ 52. Plaintiff maintains that GSA “ignored” Square One’s clarifications. Id. ¶¶ 34, 55, As discussed in more detail above in Part I.C, after reviewing Square One’s responses to its clarification questions, GSA rated Square One’s Technical Proposal as Unacceptable because Square One (1) failed to include a MAS Schedule 84 part number for the three spare keys, and (2) failed to offer the requisite vehicles with keyed ignitions. Tab 44, AR 762-63; see Tab lib (RFQ), AR 95, 100, 105, 110, 115 (requiring each vehicle be equipped with three spare keys, and that the Chevrolet Suburban SUV, Ford Econoline Passenger Van, and Toyota Hilux Pick-Up be equipped with keyed ignitions).
First, Square One alleges that its clarification clearly confirmed that each vehicle would be equipped with three keys, as the solicitation required. Compl. ¶ 58; Pl.’s Resp. 11. Plaintiff submits that “Square One has prove[n] in its clarification responses and its attachments, that the third ... spare key was part of the OEM add-ons ordered from the manufacturer. The keys were not open market [items], they did not need a separate [part number] under Square One’s GSA Schedule.” Pl.’s Mot. 23; see Tab 32, AR 592 (clarification) (stating same); cf. Tab 38, AR 684 (stating that the Technical Evaluation Team’s “expert consensus” was that spare keys are no.t OEM items and therefore do not come standard with vehicles); Pl.’s Mot. 15-19 (disputing the Technical Evaluation Team’s determination).
Next, Square One alleges that its clarification- explained that its Technical Proposal merely contained a “typographical/formatting error,” which identified the Chevrolet Suburban SUV, Ford Econoline Passenger Van, and Toyota Hilux Piek-Up as having a push-button ignition. Compl. ¶ 59; Pl.’s Resp. 10. Plaintiff states that its clarification “confirmed that these vehicles are equipped from factory with a keyed ignition and that Square One understood and would comply with the solicitation’s ignition requirements.” Pl.’s Resp. 10; see Tab 32, AR 592 (clarification) (stating same); cf. Tab 38, AR 688 (characterizing Square One’s clarification response as an attempt to either “correct their quote to be in technical compliance with the requirements, or ... provide vehicles with altered technical specifications” — neither of which “[could] be accepted”); PL’s Mot. 15, 23-24 (disputing GSA’s characterization).
Finally, Square One alleges — and the government concedes, Def.’s Mot. 24 — that *324 O’Gara’s Technical Proposal failed to comply with the Solicitation’s requirements, and that it therefore should have received an Unacceptable rating, Compl. ¶ 29; Pl.’s Resp. 12.
The court finds that Square One has established that its chance of securing the award, but for the alleged errors, was not insubstantial.
See Info. Tech.,
Although Square One has standing to pursue this post-award bid protest, the court finds that plaintiffs challenge to the original evaluation and award must nevertheless be dismissed on mootness grounds.
2. Mootness
Defendant argues that “GSA’s prior evaluation of proposals is no longer at issue because the award to O’Gara was cancelled prior to the filing of the complaint in this case, and GSA is taking corrective action that will include re-procuring the requirement.” Def.’s Mot. 15. Defendant argues that “[o]nce the award to O’Gara was cancelled, any alleged injury stemming from that award was eliminated, and there is no case or controversy for this Court to adjudicate.”
Id.
Although framed as a challenge to plaintiffs Article III standing,
see id.
at 14-17, defendant essentially argues that GSA’s cancellation of the award and proposed corrective action renders the original evaluation of proposals and award moot,
cf. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
The mootness doctrine is one of several justiciability doctrines that applies to this court. “A case becomes moot — and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III — Vhen the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’”
Already, LLC v. Nike, Inc.,
— U.S. -,
To be sure, when the award to O’Gara was originally made, the propriety of that award and the propriety of GSA’s evaluation of proposals were “live” issues — issues that were raised by plaintiff before the GAO. See Tab 48, AR 778-926. But those issues were rendered moot when GSA cancelled the award and filed a notice of corrective action. Indeed, it is this rationale that prompted GAO to dismiss plaintiffs protest, stating “[w]here, as here, an agency undertakes corrective action that will supersede and potentially alter its prior source selection decision, our Office will generally decline to rule on a protest challenging the agency’s prior decision on the basis that the protest is rendered academic.” Tab 63, AR 1088; cf. Tab 68, AR 1142 (dismissing as moot The Armored Group’s agency-level protest in light of GSA’s notice of corrective action).
Plaintiff requests that the court find the award to O’Gara was improper, Compl. at 40, and to further find that “the contract should have rightfully been awarded to Square One,”
id.
at 39;
see also id.
¶¶ 35, 90; PL’s Resp. 6-9 (arguing that the court has the authority to award the contract to Square One). However, GSA has already cancelled the task order award to O’Gara, Tab 67, AR 1140-41, and, notwithstanding plaintiffs contentions to the contrary, the court is without authority to direct the award to Square One.
13
Thus, even if the court were to find improprieties in GSA’s original evaluation and award decision, the court could only enjoin the award to O’Gara, and either order GSA to re-evaluate the original proposals or re-procure the task order — the latter of which is the precise action that GSA has volunteered to undertake.
See infra
Part III.B (addressing plaintiffs challenge to the proposed corrective action). Notably, plaintiff seeks to avoid GSA’s re-evaluation of the original proposals. Pl.’s Resp. 17. Accordingly, the relief that would otherwise be available has already been granted due to GSA’s decision to take corrective action.
See B & B Med. Servs., Inc., v. United States (B & B),
No. 13-463C,
Moreover, plaintiff has not pointed to any ease, and the court is aware of none, in which the court proceeded to address on the merits a protest by an unsuccessful offeror (as opposed to the original awardee) of an agencjfs original evaluation of proposals after the agency had agreed to take corrective action. Rather, ample precedent exists for dismissing as moot plaintiffs challenge to the original evaluation and award based on GSA’s decision to cancel the Solicitation and re-proeure the requirement.
See Coastal Envtl. Grp., Inc. v. United States,
In light of the foregoing, plaintiffs protest as it relates to the original evaluation of proposals and award decision must be dismissed as MOOT.
B. Square One’s Challenge to GSA’s Proposed Corrective Action
Plaintiff next contends that GSA’s proposed corrective action is inadequate, improper, and violates the Competition in Contracting Act, 31 U.S.C. § 3553(d)(3) (2012). 14 See Compl. ¶¶ 47-50 (Count 1.B), 87-90 (Count 6); id. at 39-40; Pl.’s Resp. 2, 16.
The court observes that GSA agreed to take corrective action after reviewing Square One’s bid protest before the GAO and after “examin[ing] the solicitation documents, the contents of the procurement file, and the evaluation files.” Tab 61, AR 1084. Based upon this review and examination, GSA “determined that corrective action [was] in the best interests of the Government.” Id. GSA stated that it would “recommend the corrective action include an opportunity for the resubmission of proposals following a revision of the solicitation documents to provide more precise instructions to the offerors on the preparation of quotes.” Id. GSA subsequently canceled its task order award to O’Gara, Tab 67, AR 1140-41, and the court understands that GSA either has cancelled or intends to cancel the Solicitation prior to re-procuring the requirement, see Pl.’s Mot. 2 (challenging GSA’s “cancellation of the solicitation”); Def.’s Mot. 15 (“GSA is taking corrective action that will include re-procuring the requirement.”); Pl.’s Resp. 2 (challenging GSA’s decision “to cancel the solicitation and to take corrective action to reprocure”). Defendant represents that “GSA has not yet issued a new solicitation.” Def.’s Mot. 13.
“As the Federal Circuit [has] recognized, this [c]ourt possesses jurisdiction to determine if the corrective action taken by a procuring agency as a result of a bid protest was reasonable under the circumstances.”
Centech Grp.,
Although the “court may have subject matter jurisdiction over a type of claim generally, a plaintiff must still establish standing in order to invoke the court’s juris-dietion.”
K-Lak Corp.,
1. Standing
Here, the court addresses plaintiffs challenge to GSA’s proposed corrective action.
Cf. stipra
Part III.A.1 (addressing plaintiffs standing to challenge GSA’s original evaluation and award decision). Challenges to corrective action that involve re-solicitation of proposals have generally been treated as pre-award protests.
See, e.g., Sys. Appl. & Techs.,
The government does not dispute that Square One is a prospective offeror. Thus, Square One’s standing hinges on whether it can demonstrate a non-trivial competitive injury that can be addressed by judicial relief. See supra Part II (discussing elements of standing). '
Defendant essentially argues that Square One cannot demonstrate a non-trivial competitive injury because Square One actually benefits from GSA’s proposed corrective action. See Def.’s Mot. 15. Because GSA is reprocuring the Solicitation, Square One “will have the opportunity to be awarded the task order in any possible future procurement.” • Id. Plaintiff counters that reproeuring the Solicitation “just adds more injury to Square One who must spend more time and money in writing and submitting a third proposal.” 15 Pl.’s Resp. 15; see also id. at 3 (“Square One is harmed and does not benefit from GSA’s re-procurement because it will be an added expense of time and monies in preparing a third proposal.”).
Plaintiff has the burden of establishing its standing by a preponderance of the evidence.
See Lujan,
In the interest of completeness, the court also addresses the justiciability doctrine of ripeness, which serves as an alternative ground for dismissing plaintiffs challenge to-the proposed corrective action.
2. Ripeness
“The justiciability doctrine of ripeness circumscribes the court’s review to cases that present realized rather than anticipated or hypothetical injuries.”
Madison Servs., Inc. v. United States,
The court first addresses plaintiffs contention that GSA’s decision to amend the solicitation and re-proeure the task order was “improper” because Square One was “an acceptable [offeror] next in line” for award. Compl. ¶ 90. In plaintiffs view, “[t]here was no need to resolicit,” because “the contract [should have been] issued to Square One.” Id. Plaintiff essentially argues that awarding the contract to Square One was the only reasonable corrective action GSA could have taken under the circumstances — an argument premised on a finding that GSA should have rated Square One’s Technical Proposal as Acceptable. However, the court has already found that GSA’s evaluation of the original proposals is moot. See supra Part III.A.2. Moreover, even assuming arguendo that plaintiff were correct, the court is without authority to direct the award to Square One. See supra note 13.
The court next addresses plaintiffs contention that “[i]n a re-procurement,
*329
Square One would only correct its typographical error and again explain that its armor package under the GSA Schedule does not have GSA part numbers as it is an option, and those part numbers would be a manufacturer number.” Pl.’s Resp. 16. As defendant correctly observes, Def.’s Reply 9, plaintiff may raise any concerns regarding its ability to comply with the amended solicitation in a pre-award bid protest,
see Blue & Gold Fleet, L.P. v. United States,
The court now turns to plaintiffs suggestion that GSA’s decision to reprocure the Solicitation is merely a pretext for affording O’Gara an additional opportunity to correct its proposal. Pl.’s Resp. 3. In plaintiffs view, “there is an appearance of impropriety and a concerted- effort to award to one offeror over the others.” Id. at 15; see id. at 5 (“It appear[s] that the GSA was trying to find fault with Square One and trying to excuse O’Gara.”); Compl. ¶ 81 (“[T]he- corrective action is a breach of good faith and fair dealing because it is merely an excuse and [an attempt] to get more time for [O’Gara] ... to list its items on its GSA Schedule.”).
Plaintiff acknowledges, as it must, that there is “[a] strong presumption that government officials act correctly, honestly, and in good faith when considering bids.” Pl.’s Resp. 15 (citing
Blackwater Lodge & Training Ctr., Inc. v. United States,
The court agrees with defendant that “Square One’s allegation that a re-procurement is a pretext to find a way to award the contract to O’Gara is entirely without basis.”. Def.’s Mot. 15. Where, as here, a plaintiff alleges that the government has acted in bad faith, the plaintiff must offer “well-nigh irrefragable proof’. in support of its claim.
Croman,
The court also agrees with defendant that “[a]ny allegation that GSA’s officials will not act in good faith in executing the corrective action, which includes re-procuring the requirement, raises purely hypothetical arguments about future events that [might] or [might] not occur.” Def.’s Mot. 15;
see also id.
at 15-16 (“Square One’s allegations raise nothing more than a basis for a purely academic discussion about what could happen when GSA re-proeures the task order.”). If at the conclusion of the re-procurement process, the record establishes that GSA “did not properly carry out the corrective action,” Square One will have the opportunity to challenge the new award decision.
See Eskridge,
In light of the foregoing, plaintiffs protest as it relates to the proposed corrective action must -be dismissed as UNRIPE.
C. The Court Lacks Jurisdiction Over Square One’s Claim for Bid Protest Costs
Square One contends that it “is entitled to an award of protests costs, including attorneys’ fees.” Pl.’s Mot. 26;
see
Compl. at 40 (requesting an award of “reasonable attorney’s fees, costs and expenses of this
matter”).
This court, however, does not have jurisdiction to entertain plaintiffs request for bid protest costs or related attorney’s fees. “[T]he Tucker Act only allows recovery for bid preparation and proposal costs.”
S.K.J. & Assocs., Inc. v. United States,
To the extent that Square One seeks bid preparation and proposal costs,
see
Pl.’s Resp. 3, 15, Square One is not entitled to such relief. GSA is re-procuring the Solicitation, and Square One retains the opportunity to compete for the task order. As such, plaintiffs investment in its- proposals is not “a needless expense and [plaintiff] may yet see the fulfillment- of the promise of fair and impartial consideration which induced it to spend its money to prepare its bid.”
Beta Analytics Int'l, Inc. v. United States,
IV. Conclusion
Because plaintiffs bid protest is “trapped between the devil and the deep blue sea of ripeness and mootness,” plaintiff has failed to allege a justiciable controversy.
Madison Servs.,
The Clerk of the Court shall assign to the undersigned any future protests involving re-procurement of the subject solicitation. If a future protest is filed, the parties shall indicate in their filing that the ease is related to this one and request that it be assigned to the undersigned.
IT IS SO ORDERED.
Notes
. The government filed the administrative record (AR) under seal on April 17, 2015 in the form of a CD-ROM. See Def.’s Notice of Filing AR, ECF No. 13.
. GSA initially awarded the task order to O’Gara-Hess & Eisenhardt Armoring Co., LLC (O’Gara). Tab 1, AR 4. Square One filed a bid protest with the Government Accountability Office challenging the award, and GSA decided to take corrective action. See id..-, Compl. ¶ 12. GSA terminated the task order with O'Gara for convenience, cancelled the solicitation, and re-solicited the procurement via the May 12, 2014 RFQ. Tab 1, AR 4; Compl. ¶ 12.
. The Multiple Award Schedule (MAS) program, which is also referred to as the Federal Supply Schedule (FSS) program, "is directed and managed by GSA and provides [Qederal agencies ... with a simplified process for obtaining commercial supplies and services at prices associated with volume buying.” FAR 8.402(a); see Tab 1, AR 3 ("The Federal Supply Schedule Program (FSS) affords federal agencies the ability to procure commonly used commercial items, such as the vehicles, customization and delivery services needed within this acquisition from prequalified sources at or below commercially available prices for an extended period of time.”).
Under the MAS program, GSA awards indefinite delivery base contracts to provide supplies and services at stated prices for fixed periods of time. FAR 8.402(a). In Sharp Electronics Corp. v. McHugh, the Federal Circuit succinctly explained how the MAS program operates:
GSA "acts as the' contracting agent” for the federal government, negotiating base contracts with suppliers of commercial products and services. Each supplier publishes an Authorized Federal Supply Schedule Pricelist listing the items offered pursuant to its base contract, as well as the pricing, terms, and conditions applicable to each item. See FAR 8.402(b). Individual agencies jssue purchase orders under the base contract ás needed. The terms of the base contract, referred to as the "schedule” contract, are incdrporated by reference into the order.
Orders placed against schedule contracts are "considered to be issued using full and open competition” and are not subject to FAR 15, which governs negotiated procurements. See FAR 8.404(a). Thus, agencies are advised that when "placing ordfers under Federal Supply Schedule contracts ...., [agencies] shall not seek competition outside of the Federal Supply Schedules.” Id.
. The originally anticipated award date for the task order was October 3, 2014. Tab 38, AR 662. The award was delayed, however, due to funding availability concerns. Id.
. Two of the unsuccessful offerors, The Armored Group and Scaletta Armoring, lodged agency-level protests on February 6 and February 10, 2015, respectively. Tab 46, AR 766-76 (The Armored Group); Tab 55, AR 959-64 (Scaletta Armoring). Both protests were ultimately dismissed. See Tab 55, AR 963-64 (Scaletta Armoring) (dismissing for "fail[ing] to meet the requirements of a valid protest”); Tab 68, AR 1142 (The Armored Group) (denying as moot given GSA’s decision to take corrective action).
. Defendant argues that plaintiff lacks both Article III standing and Tucker Act standing. Def.'s Mot. 14-20. Defendant cites to
Weeks Marine, Inc. v. United States,
In
Jacobs Technology, Inc. v. United States,
What [Weeks Marine] says is that the Article III standing requirements are binding on the Court of Federal Claims and that so are the standing requirements of the Tucker Act. The \Weeks Marine\ court also observed that the Tucker Act has even more stringent standing requirements than does Article III. The Weeks Marine court, then — in the context of a bid protest — did not perform any analysis under Article III, but, instead, proceeded to analyze the standing issue only under the Tucker Act.
Id.
at 184 (internal citations omitted). The Jacobs court concluded that "since the Tucker Act has even more stringent requirements on standing than Article III, it is sufficient to decide the issue of standing with reference only to the Tucker Act.”
Id.', see also Mgmt. & Training Corp. v. United States,
115 FecLCl. 26, 35 (2014) ("[A] party that meets the Tucker Act’s standing requirement presumably also satisfies the constitutional standing requirement.”). The court finds no reason to deviate from this approach. ‘ Accordingly, the court examines only whether plaintiff meets the standing requirements of the Tucker Act.
See Jacobs Tech.,
. "The court’s inquiry into the justiciability of a case is distinct from its inquiry into whether it has jurisdiction over the case’s subject matter. In other words, the court may find that it possesses jurisdiction over the subject matter of a case but that the dispute is nevertheless nonjusticiable."
B & B Med. Servs., Inc., v. United States (B & B),
No. 13-463C,
. Defendant points to
HomeSource Real Estate Asset Services, Inc. v. United States,
In
HomeSource,
the offeror’s technical proposal was rated unacceptable by the agency.
In
Dismas,
offerors were required to submit a Final Proposal Revision with a 120-day start-up schedule, but Dismas intentionally submitted a proposal with a 240-day start-up schedule.
Thus, although in certain cases it may be true that a protestor with an unacceptable technical proposal may be unable to demonstrate standing, defendant is mistaken that technical unacceptability necessarily precludes k protestor from establishing standing.
. A protester must also establish prejudice to succeed on the merits.
See Data Gen. Corp. v. Johnson,
. "It is indisputable that the ultimate grant of a contract must be left to the discretion of a government agency; the courts will not make contracts for the parties.”
Scanwell Labs., Inc. v. Shaffer (Scanwell),
. Unlike plaintiff’s challenges to the original evaluation of proposals and award decision, plaintiff's challenges to the proposed corrective action are not moot.
See Croman Corp.
v.
United States,
. The proposed corrective action will be the second corrective action taken by GSA in this procurement. See supra note 5 (referencing the first corrective action).
. To be sure, the court has consistently found that requiring the original contract awardee to recompete for contract award further to an agency’s corrective action qualifies as a non-trivial competitive injury.
See, e.g., Sys. Appl. & Techs.,