GEORGE W. MILLER, Judge.
In this post-award bid protest, plaintiff Harris Patriot Healthcare Solutions, LLC ("Harris") filed its complaint on October 18, 2010, protesting defendant's failure to immediately comply with the automatic stay imposed by the Competition in Contracting Act ("CICA"), 31 U.S.C. § 3553(d) (2006). Plaintiff sought to enjoin the Department of the Interior ("DOI") from permitting defendant-intervenor Stanley Associates, Inc. ("Stanley") to continue work on an awarded task order. Compl. ¶ 1 (docket entry 1, Oct. 18, 2010). One day after this action was commenced, DOI implemented the CICA stay by issuing a stop-work order to Stanley. Defendant filed a motion to dismiss plaintiff's complaint on October 27, 2010 on mootness grounds. Defendant's Motion to Dismiss and Opposition to Plaintiff's Application for a Temporary Restraining Order and Motion for a Preliminary Injunction (docket entry 30, Oct. 27, 2010) ("Def.'s Mot."). After defendant filed its motion to dismiss, DOI decided to take corrective action in response to Harris's protest filed October 4, 2010 at the Government Accountability Office ("GAO"). As a result, GAO dismissed Harris's protest as academic on November 2, 2010.
At this time, the parties tentatively agreed that defendant's actions had rendered plaintiff's action moot. During discussions on filing a stipulation of dismissal, defendant clarified that, during the pendency of the corrective action, DOI would not permit Stanley to perform work under the protested task order; however, DOI would not forfeit the ability to have Stanley or another company perform work covered by the task order using a different contractual vehicle in order "to meet its immediate and short term needs." Transcript of November 12, 2010 Hearing at 8 (docket entry 49, filed Nov. 16, 2010) ("Nov. 12 Tr."). Unsatisfied that DOI had reserved the right to have work covered by the task order performed in the future to meet "immediate and necessary needs," id. at 14, Harris announced that it contended the case was not moot. See Transcript of October 29, 2010 Status Conference at 12-13 (docket entry 40, filed Nov. 4, 2010) ("Oct. 29 Tr."); Plaintiff's Response to Defendant and Defendant-Intervenor's Motions to Dismiss and Supplemental Memorandum in Support of Motion for Preliminary Injunction at 1 (docket entry 46, Nov. 10, 2010) ("Pl.'s Resp.").
On November 3, 2010, defendant filed a renewed motion to dismiss, again contending that the action was moot. Defendant's Renewed Motion to Dismiss (docket entry 34) ("Def.'s Renewed Mot."). Stanley also filed a motion to dismiss on mootness and ripeness grounds. Stanley's Motion to Dismiss (docket entries 35 & 36, Nov. 3, 2010) ("Stanley's Mot."). The parties participated in a hearing on these motions on November 12, 2010. For the reasons set forth below, defendant's renewed motion to dismiss and defendant-intervenor's motion to dismiss are
Harris was awarded a contract in 2008 by the Acquisition Services Directorate ("AQD"), a part of the DOI, for the development and maintenance of the CONNECT software system.
Harris's contract was set to expire in March 2010, but DOI issued a sole-source bridge contract extending Harris's contract until September 24, 2010. Declaration of Tony Galluscio ¶ 8 (docket entry 10, Oct. 18, 2010) ("Galluscio Decl."). This bridge contract permitted Harris to continue work on the CONNECT system pending a competition for the CONNECT follow-on contract. Sole-Source Bridge Request for Quote ("RFQ") at 1, attached as Ex. 1 to Pl.'s Mem.; Galluscio Decl. ¶ 9; Def.'s Mot. at 2.
DOI received two quotations, one from Harris and one from Stanley. Award Notice at 1, attached as Ex. 5 to Pl.'s Mem. Although Harris's quote was nearly [***] less than Stanley's, "Harris's technical quote was not rated as highly as Stanley Associates' technical quote." Basis for Award Decision at 2, attached as Ex. 10 to Pl.'s Mem. Thus, DOI determined that Stanley's proposal offered the best value to the Government "due to its higher technical [rating] and slightly higher price" and awarded the task order to Stanley on September 24, 2010. Id. Harris requested a debriefing. In response, the DOI sent Harris a two-page letter on October 4, explaining that Harris was not selected despite its lower price because of Stanley's superior technical rating.
Meanwhile, on the day of the award to Stanley, which was also the day Harris's bridge contract was set to expire, DOI advised Harris that it wished to "extend [Harris's bridge contract] for 60 days for transition" to Stanley. Administrative Record ("AR") Tab 1 at 1 (docket entry 29, Oct. 27, 2010) (E-mail from Shelita Saint-Louis of AQD to Harris (Sept. 24, 2010, 7:26 PM)); Id. at 2-8 (Bridge Transition SOW); Galluscio Decl. ¶ 15. DOI provided Harris with a statement of work that charged Harris with, "developing an effective transition plan" to Stanley and continuing operation of the CONNECT system during the transition period. AR Tab 1 at 2-3.
DOI required Harris to submit a transition plan proposal within two working days, or "no later than Monday, September 27 at 3:00 PM EST." AR Tab 1 at 1. On September 27, Harris wrote to the agency requesting a three-day extension, until "close of business Friday October 01, 2010." AR Tab 2 at 9 (Letter from Vance Rowland of Harris to Shelita Saint-Louis of AQD (Sept. 27, 2010)). The contracting officer granted Harris an extension until September 28, but explained that no further extension would be granted because DOI wanted to use Fiscal Year 2010 money to fund the transition contract.
On September 28, Harris sent another letter to the contracting officer stating: "We only ask consideration for our business processes to allow us to submit our response with appropriate levels of review and approval as indicated in our letter yesterday." AR Tab 3 at 12 (Letter from Vance Rowland of Harris to Shelita Saint-Louis of AQD at 1 (Sept. 28, 2010)). Harris received no "further communication from DOI regarding the transition work." Galluscio Decl. ¶ 20. Defendant asserts that DOI was unable to extend Harris's deadline because DOI did not receive a proposal from Harris in time to fund the contract with FY 2010 money. Def.'s Mot. at 3.
Because DOI did not receive a transition quote, it declined to offer Harris a contract for transition work. Def.'s Mot. at 3. DOI then orally and thereafter in writing requested that Harris return to DOI all government furnished equipment ("GFE") and government furnished information ("GFI") in its possession pursuant to the 2008 contract and the bridge contract. E-mail from Shelita Saint-Louis of AQD to Harris (Oct. 15, 2010, 5:29 PM), attached as Ex. 12 to Pl.'s Mem. On October 18, 2010, plaintiff sought "clarification and guidance" regarding the means and timing for the return of GFE and GFI. Letter from Vance Rowland of Harris to Shelita Saint-Louis of AQD at 1-2 (Oct. 18, 2010), attached as Ex. 13 to Pl.'s Mem.
Plaintiff expressed particular concern about returning certain GFE and GFI that plaintiff believed [***]. Galluscio Decl. ¶¶ 32-36. Plaintiff's task order quote [***] based on Harris's already possessing this GFE and GFI. Harris claims it [***] if it is required to transfer the GFE and GFI back to the Government. Id. ¶ 37. Harris asserts that returning the GFE and GFI to the Government would alter the status quo and disadvantage Harris competitively in any re-evaluation of the quotations. See Nov. 12 Tr. at 68-69 ("[***]").
As of the hearing on November 12, 2010, DOI continued to request that Harris return certain GFE and GFI to the Government. See id; E-mail from Shelita Saint-Louis of AQD to Harris ¶¶ 1, 3 (Oct. 28, 2010 1:21 PM), attached as Ex. 16 to Pl.'s Resp. (requesting that Harris return "[***] . . . to" the Government's designated representative, "Mr. [***] of the MITRE Corporation."). However, according to Harris, DOI had not, as of the date of the hearing, required it to return the "[***]," and this GFE/GFI "remains in Harris'[s] possession." Pl.'s Resp. at 23-24.
On October 4, 2010, the day Harris received DOI's response to its request for a debriefing, Harris filed a protest of the award to Stanley at the GAO. See Harris Patriot Ealthcare Solutions, LLC, B-404136.1 (Oct. 4, 2010); Galluscio Decl. ¶ 21. Plaintiff contends that on October 8, 2010, counsel for DOI asserted that by failing to submit a timely proposal for the transition work, "Harris had walked off the job and was not willing to perform." Pl.'s Mem. at 8. Plaintiff also contends that because of this perceived failure on Harris's part, upon the filing of its protest at GAO, DOI stated that it "intended to move forward with the override" of the automatic stay provided for by 31 U.S.C. § 3553(d). Id. In response, Harris submitted a letter to DOI that same day stating that "[t]here should be no confusion. Harris is willing and able to continue to perform the CONNECT contract services as it has for the past 2 ½ years." AR Tab 9 at 34.
DOI received notice of Harris's GAO protest of the award of the follow-on CONNECT contract to Stanley on the same day it was filed. AR Tab 5 at 18. Following discussions with HHS personnel at the Office of the National Coordinator ("ONC") for Health Information Technology, DOI initially determined that it would seek to override the CICA stay pursuant to § 3553(d)(3)(C), on the ground that an override was "in the best interests of the United States." AR Tab 10 at 40-46 (Initial Draft of Determination and Finding ("D&F")).
During the time DOI continued to draft its D&F, Stanley continued to perform under the the follow-on CONNECT contract as the awardee. AR Tabs 12-14; Nov. 12 Tr. at 5. By October 15, 2010, the lawyers at DOI appeared ready to "sign off" on the proposed D&F so that the head of the procuring activity could execute the final D&F. AR Tab 12 at 78. However, DOI postponed promulgation of the final D&F until the following Monday, October 18, 2010, in order to permit final revisions. AR Tab 12 at 81.
On October 18, 2010, plaintiff filed the pending action.
On October 19, 2010, the Court conducted an initial status conference with the parties. At the start of the status conference, counsel for defendant announced that DOI had that day issued a stop-work order to Stanley in recognition of the CICA stay.
By the time defendant responded to plaintiff's motion for interlocutory relief on October 27, DOI had decided that it did not "intend to override the stay at all." Def.'s Mot. at 10 (emphasis in original); Declaration of Shelita Saint-Louis ¶ 7 (Oct. 27, 2010) ("Saint-Louis Decl."), attached as Ex. A. to Def.'s Mot. ("After consulting with ONC regarding its immediate needs, ONC now advises that it does not need to override the automatic stay and will not need to do so during the pendency of Harris'[s] GAO protest. In light of HHS'[s] re-evaluation of its needs, DOI does not intend to override the automatic CICA stay prior to the completion of the GAO protest.") (emphasis added).
Subsequently, on October 28, 2010, DOI submitted a letter to GAO indicating that it intended to take corrective action in response to the allegations made by Harris in its protest. Letter from DOI to Lynn H. Gibson, General Counsel, GAO at 2 (Oct. 28, 2010), attached as Ex.
B to Def.'s Renewed Mot. DOI outlined the steps it intended to take as corrective action and stated that "during the pendency of the corrective action, the stay of performance of the [CONNECT] Solution 2010 contract shall remain in place." Letter from DOI to Lynn H. Gibson, General Counsel, GAO at 2 (Oct. 29, 2010) ("Revised Corrective Action Letter"), attached as Ex. C to Def.'s Renewed Mot. In light of DOI's representation that it intended to take corrective action, GAO dismissed Harris's protest as academic on November 2, 2010. Harris Patriot Healthcare Solutions, LLC, B-404136.1, Decision (Nov. 2, 2010), attached as Ex. D to Def.'s Renewed Mot.
DOI has affirmed that it has no present intent to have Stanley or any other company perform work covered by the follow-on CONNECT contract during the pendency of DOI's corrective action. Nov. 12 Tr. at 8-9. However, in response to plaintiff's inquiry, DOI stated that it could not give a binding assurance that it would not permit Stanley or some other entity to perform work covered by the follow-on CONNECT contract using some alternative contractual vehicle in order to "meet its immediate and short term needs." Nov. Tr. at 8 ("[DOI does] not intend to utilize Stanley via a separate contractual vehicle during the pendency of th[e] corrective action period, but . . . the Agency could not, and was not willing to relinquish its rights to utilize any available means to meet immediate needs that might arise during the pendency of th[e] corrective action."); see also Oct. 29 Tr. at 16. In the absence of such an assurance, plaintiff contended, the case was not moot. Pl.'s Resp. at 15.
This court possesses jurisdiction to review an agency's override of the CICA stay pursuant to 28 U.S.C. § 1491(b)(2) because the decision whether to override the CICA stay is agency action "in connection with a procurement." RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) ("Where an agency's actions under a statute so clearly affect the award and performance of a contract, this court has little difficulty concluding that that statute has a `connection with a procurement.'"). However, the Court's review of the override decision is limited and does not involve review of the underlying protest before the GAO. Reilly's Wholesale Produce v. United States, 73 Fed. Cl. 705, 710 (2006).
Defendant and defendant-intervenor move to dismiss plaintiff's action for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims ("RCFC") because of three events that they claim have rendered this action moot: (1) DOI's issuance of a stop-work order to Stanley on October 19, 2010; (2) GAO's dismissal of Harris's protest as academic because of DOI's decision to undertake corrective action; and (3) DOI's representation that the stay of performance of the follow-on CONNECT contract will remain in effect "during the pendency of the corrective action." Def.'s Renewed Mot. at 8; Stanley's Mot. at 3; Defendant's Reply in Support of Its Renewed Motion to Dismiss at 6 (docket entry 51, Nov. 19, 2010) ("Def.'s Reply"); see also Revised Corrective Action Letter at 2. The burden rests with defendant to demonstrate that an action is moot. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., (TOC) Inc., 528 U.S. 167, 190-92 (2000) (contrasting mootness with standing and holding that defendant bears the burden to demonstrate mootness because of the potential for "sunk costs" to the judicial system in cases where the court possessed jurisdiction initially only to have the case subsequently dismissed as moot); see also Alexander v. United States, 52 Fed. Cl. 710, 713 (2002); Nat'l Med. Enters., Inc. v. United States, 11 Cl. Ct. 329, 332 (1986).
The mootness doctrine is one of several justiciability doctrines originating from the "case or controversy" requirement of Article III of the Constitution.
Although defendant's burden is a "heavy" one, Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979), the Government has met its burden in this case. There is no doubt that the equitable relief originally requested by plaintiff is moot. Plaintiff's complaint sought to enjoin DOI from permitting Stanley to continue performance of the awarded task order and a declaration that "DOI's override decision is invalid and has no effect." Compl. at 13. On October 19, 2010, DOI issued a stop-work order to Stanley, and DOI never made an "override decision." Thus, there is no override the court could declare invalid or enjoin. See Eskridge Research Corp. v. United States, 92 Fed. Cl. 88, 93-94 (2010).
After DOI represented that it intended to take corrective action and after GAO dismissed Harris's protest, plaintiff argued that the Court should require DOI to "maintain the status quo" while the agency undertook corrective action. Pl.'s Resp. at 17. Relying on dicta from the district court's decision in Dairy Maid Dairy, Inc. v. United States, 837 F.Supp. 1370 (E.D. Va. 1993), plaintiff argued that the Court should order the DOI to "maintain the status quo . . . during the time required for compliance with the GAO's decision." Pl.'s Resp. at 19 (quoting Dairy Maid, 837 F. Supp. at 1385) (emphasis supplied by plaintiff). However, this argument is based on an overly-broad reading of CICA.
CICA precludes an agency from permitting performance by the awardee "while the protest is pending." 31 U.S.C. § 3553(d)(3)(B). The CICA stay was intended to prevent an agency from allowing performance of a protested contract during GAO's consideration of a protest because such performance could well place the protester at a disadvantage. Pl.'s Resp. at 18; see also H. REP. NO. 98-1157 at 24 (1984); Dairy Maid, 837 F. Supp. at 1377 (observing that "Congress enacted CICA, and incorporated the stay provisions here at issue, in an attempt to provide effective and meaningful review of procurement challenges before the protested procurement[]" becomes a fait accompli) (citing Ameron Inc. v. U.S. Army Corps of Eng'rs, 787 F.2d 875, 878 (3d Cir. 1986)). When DOI announced it intended to take corrective action and GAO dismissed Harris's protest as academic, Revised Corrective Action Letter at 2; Harris Patriot Healthcare Solutions, LLC, B-404136.1, Decision (Nov. 2, 2010), that dismissal removed a prerequisite to CICA's automatic stay—the pendency of a GAO protest.
Given the fact that dismissal of the GAO protest ended the automatic stay of performance of the follow-on CONNECT contract, it is unclear what relief plaintiff would be entitled to in order to "maintain the status quo." The relief that plaintiff sought in its protest at GAO was a re-evaluation of DOI's award decision taking into account plaintiff's allegations.
Next, plaintiff argues that its action is not moot because Harris seeks an order precluding DOI from requiring the return of the GFE and GFI. Pl.'s Resp. at 29-30. Plaintiff contends that requiring the return of GFE/GFI would [***]. Id. at 24-25. Further, "requiring the return of the GFE/GFI while the corrective action is on-going is illogical and an unnecessary drain on the public fisc at a time of great economic strain." Id. at 25; see also Nov. 12 Tr. at 86 (stating that prohibiting the Government from requiring "the return of the GFE" would "provide frankly all the relief" plaintiff requires) (statement of counsel for Harris).
Defendant, however, states that Harris's obligation to return the GFE and GFI is an obligation imposed by the now-expired bridge contract, which incorporated FAR § 52.245-1. Sole-Source Bridge RFQ Ex. B. at 8; Nov. 12 Tr. at 15; see also Def.'s Reply at 9 ("[T]he Government is well within its rights to request the return of its own property for purposes of closing out Harris'[s] now-expired contract.") (emphasis in original). That provision, entitled "Government Property," permits the Government at any time, upon written notice, to "[w]ithdraw authority to use [the] property." FAR § 52.245-1(d)(3)(i)(C). Defendant thus argues that it has a contractual right to require the return of the GFE/GFI. Def.'s Reply at 9. The Court agrees.
To the extent that Harris were to conclude in the future that returning the GFE/GFI had unfairly affected DOI's evaluation of Harris's proposal, Harris could protest the award decision.
The agency's issuance of a stop-work order would not necessarily be enough to moot plaintiff's action because "[i]t is well settled that `a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.'" Friends of the Earth, 528 U.S. at 189 (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)); see also Parents Involved in Cmty. Schols v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007); Unisys Corp. v. United States, 90 Fed. Cl. 510, 517 (2009). If a defendant's voluntary cessation of challenged conduct could always render a case moot, defendant would be "free to return to [its] old ways" and resume the conduct in question once the case was dismissed. Friends of the Earth, 528 U.S. at 189 (quoting City of Mesquite, 455 U.S. at 289 n.10). Nonetheless, defendant's "voluntary cessation" of the challenged practice can render an action moot if defendant "can demonstrate that `there is no reasonable expectation that the wrong will be repeated.'"
Again, while "[t]he burden is a heavy one," id., defendant has adequately shown that there is no reasonable expectation that DOI's violation of the CICA stay will be repeated because there is no longer any CICA stay in effect. See Nov. 12 Tr. at 30 ("Here there can be no requirement."); id. ("[***]"). Any alleged pre-judgment could also be protested if DOI's corrective action ends unfavorably for Harris and if Harris decides to protest DOI's action. reasonable expectation that the alleged violation, the allegedly wrongful behavior, could be expected to [recur] . . . [because] there is no CICA stay to either ignore or to override. The stay no longer exists.") (statement of counsel for Stanley). Plaintiff overstates the agency's obligations under CICA when it argues that the case is not moot because "the risk that the Government will again disrupt the status quo is clear and substantial." Pl.'s Resp. at 16.
CICA does not preclude every alteration to the status quo; DOI's obligation under CICA is narrower. In this case, DOI has agreed to re-evaluate the quotations of Stanley and Harris in light of the allegations made in Harris's GAO protest. And DOI has stated that it intends to investigate each of Harris's allegations. It has also represented that the stay of performance of the follow-on CONNECT contract will remain in place during the pendency of DOI's corrective action. Any action the agency may take during or as a result of its corrective action would likely constitute a separate procurement decision that Harris could seek to challenge in an appropriate forum. However, the Government's voluntary cessation of performance during the pendency of DOI's corrective action and statements of Government counsel regarding DOI's lack of any present intention to request that Stanley or any other contractor perform tasks covered by the follow-on CONNECT contract are sufficient to show, with the requisite clarity, that there is no reasonable expectation that DOI's past violations of CICA will be repeated.
Plaintiff next argues that there remains a live controversy because DOI may be setting itself up to be able to allow Stanley to perform tasks covered by the follow-on CONNECT contract through some contracting vehicle other than the follow-on CONNECT contract. See Revised Corrective Action Letter at 2 (confirming "that, during the pendency of the corrective action, the stay of performance of the [CONNECT] Solution 2010 contract shall remain in place.") (emphasis added). Plaintiff argues that the Court should "enjoin[] the Government during the pendency of the corrective action process . . . from allowing Stanley to perform tasks covered by the CONNECT Solution 2010 Solicitation . . . either under the awarded contract or any other contract." Pl.'s Resp. at 29-30. Putting aside the presumption of good faith that the Government is afforded when it undertakes corrective action, Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 940 (Fed. Cir. 2007), plaintiff's theory runs afoul of another justiciability doctrine: ripeness.
"[T]he ripeness doctrine . . . prevent[s] . . . courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also . . . protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."
Plaintiff's suspicions about DOI's future actions are simply too speculative to create a ripe controversy. In Madison Services, Inc. v. United States, 90 Fed. Cl. 673, 676 (2009), the plaintiff filed a protest in this court challenging the Federal Emergency Management Agency's "expressed intention" to follow the recommendation of the GAO in a previous bid protest. The Government moved to dismiss on the ground that the agency had not yet definitively determined whether and how to implement GAO's recommendation. Id. at 677. After the motion to dismiss had been fully briefed, the Government filed a renewed motion to dismiss informing the court that the underlying procurement had been cancelled. Id.
Like the plaintiff in Madison Services, Harris "cannot avoid dismissal by speculating as to what [DOI] might do." Id. (emphasis added); see also Forestry Surveys & Data v. United States, 44 Fed. Cl. 485, 492 (1999) (declining to grant relief regarding agency's potential use of past performance ratings in awarding future contracts because "no action can be maintained regarding future, and at this point speculative, contracts"). As Madison Services further demonstrates, speculation as to what the agency might do cannot give rise to a ripe controversy because the agency can decide to pursue a different course of action, as it did in Madison Services by cancelling the solicitation altogether.
Indeed, plaintiff is arguably in a worse position than the plaintiff in Madison Services because its concern is not only speculative, but also contradicted by Government counsel's representation that DOI has no present intention of permitting Stanley or any other contractor to perform tasks covered by the follow-on CONNECT contract under that contract or any other contractual vehicle. Nov. 12 Tr. at 6-8. If future circumstances lead the DOI to change its mind in order to "meet its immediate and short term needs," id. at 8, plaintiff may at that point seek to challenge DOI's action in an appropriate forum. See id. at 25 ("[DOI] would have a right to explain the basis for wanting to utilize Stanley or someone else, and this Court would then have an opportunity to . . . review . . . that action, and determine its propriety, as well as weigh any harm that Harris would suffer as a result of that usage, and any harm that the government might suffer by being enjoined from using it, and where the public interest lies.") (statement of counsel for defendant). But until the agency acts in a way that is not "merely tentative or interlocutory," NSK, Ltd., 510 F.3d at 1385, this court may not adjudicate plaintiff's unripe claims.
Plaintiff alternatively requests that the Court stay proceedings and retain jurisdiction over this action "to ensure that Harris has an opportunity for a bid protest remedy." Pl.'s Resp. at 31. Plaintiff fears that DOI may elect to contract using a vehicle "arguably insulated from traditional bid protest review, separate and apart from the override issues before this Court."
Although plaintiff may be correct that future action by the DOI could leave it without a forum to hear its bid protest, such an outcome would be the result of the interplay of statutes regulating federal government procurement enacted by Congress at different times. The jurisdictional limitations that might prevent challenges to agency action in this court would remain applicable whether or not proceedings in this case were stayed. Plaintiff's concerns about the limitations Congress has imposed on this Court's jurisdiction over bid protests do not provide a basis for this Court's retaining jurisdiction and do not present a "pressing need for [a] stay" of proceedings in this case. Cherokee Nation of Okla. v. United States, 124 F.3d 1413, 1416 (Fed. Cir. 1997).
Moreover, the requirement that the parties be involved in a live dispute—i.e., one that is neither moot nor unripe—is a fundamental prerequisite to the court's jurisdiction, namely, the requirement of a justiciable controversy. See Massachusetts v. Envtl. Protection Agency, 549 U.S. 497, 516 (2007); see also Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1336 (Fed. Cir. 2008) (discussing the Supreme Court's development of "various more specific but overlapping doctrines rooted in the same Article III inquiry, which must be met for a controversy to be justiciable, including standing, ripeness, and a lack of mootness"). Staying the case while retaining jurisdiction is simply not an option because, having found that plaintiff's claims are either moot or unripe, the Court has no jurisdiction to hear them, and "must dismiss the action." RCFC 12(h)(3) (emphasis added); see also Chapman Law Firm, 490 F.3d at 939-40 (after a finding that the action was moot, "the Court of Federal Claims should have dismissed the case").
For the foregoing reasons, defendant and defendant-intervenor's motions to dismiss pursuant to RCFC 12(b)(1) are
Some information contained herein may be considered protected information subject to the protective order entered in this action on October 20, 2010 (docket entry 19). This Opinion and Order shall therefore be filed under seal. The parties shall review the opinion to determine whether, in their view, any information should be redacted in accordance with the terms of the protective order prior to publication. The Court
The statute contemplates that after receiving notice of the GAO protest, the agency will "immediately direct the contractor to cease performance under the contract." 31 U.S.C. § 3553(d)(3)(A)(ii) (emphasis added). Performance may continue only if the responsible head of the procuring activity makes a "written finding" that performance is in the best interest of the United States or of urgent and compelling circumstances "and after the Comptroller General is notified of that finding." Id. § 3553(d)(3)(C)(i) & (ii) (emphasis added). DOI, however, knew of the GAO protest on October 4, permitted Stanley to perform under the follow-on CONNECT contract while DOI was drafting its D&F, and did not issue the statutorily required stop-work order until October 19, one day after Harris filed this action.
Revised Corrective Action Letter at 2.
