Distributed Solutions, Inc. v. U.S.

• Decision Date: 28 August 2008
• Docket Number: No. 2007-5145.,2007-5145.
• Citation: 539 F.3d 1340
• Parties: DISTRIBUTED SOLUTIONS, INC., and STR, L.L.C., Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

539 F.3d 1340 DISTRIBUTED SOLUTIONS, INC., and STR, L.L.C., Plaintiffs-Appellants,
v.
UNITED STATES, Defendant-Appellee. No. 2007-5145. United States Court of Appeals, Federal Circuit. August 28, 2008.

[539 F.3d 1342]

Thomas A. Coulter, LeClairRyan, of Richmond, VA, argued for plaintiffs-appellants.

Sean M. Dunn, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant Director.

Before LOURIE, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE, Circuit Judge.

MOORE, Circuit Judge.

Plaintiffs-appellants Distributed Solutions, Inc. (DSI) and STR, L.L.C. (STR) (collectively, the contractors) appeal the dismissal of their complaint by the United States Court of Federal Claims. For the reasons set forth below, we reverse the dismissal for lack of jurisdiction and remand for proceedings consistent with this opinion.

BACKGROUND

This case arises from a dispute related to the procurement of software for the Joint Acquisition and Assistance Management System program (JAAMS), a program initiated by the United States Agency for International Development (USAID) and the Department of State (DoS) to develop a common computer platform between the two agencies.

In November 2003, the government issued a task order to SRA International, Inc. (SRA), one of nine prime contractors that had been previously awarded a Millennia Government Wide Acquisition Contract (GWAC) from General Services Administration (GSA) to provide technical services and support for information technology purposes. This task order, known as the Principal Resource Information Management Enterprise-wide task order (PRIME 2.2 task order), required SRA to "[s]upport USAID's acquisition and assistance function used for contracts and grants worldwide," and to enable "integration of commercial off-the-shelf packages from various vendors generally and the integration of these acquisition and assistance (A & A) systems with USAID and DoS accounting systems, Federal Procurement Data Systems and other e-gov initiatives."

In June 2005, the government, assisted by SRA, developed and issued a Request for Information (June RFI) soliciting software vendor responses. The June RFI stated that "[t]he purpose for this Request for Information (RFI) is to research possible commercial off-the-shelf (COTS) Acquisition and Assistance (A & A) solutions for JAAMS." It requested that vendors submit self-assessments of their products that would satisfy the requirements of JAAMS and present demonstrations of these products, which the RFI specified would be "for market research purposes only" and would "not result in a contract award." According to the RFI, the government would "review the results of the vendor self-assessments and the presentations to determine the next course of action for the JAAMS effort."

After completing its review of the responses to the June RFI, the government announced that it had "decided to pursue alternative courses of action." The government

539 F.3d 1343

also decided that it would use SRA to integrate the various acquisition and assistance functions necessary to implement JAAMS under the PRIME 2.2 task order. SRA was thus tasked with selecting the vendors who would provide the software for the relevant functions, which it did by issuing an RFI of its own on August 12, 2005 to collect information on various types of product solutions (August RFI).

Based on the responses to this second RFI, SRA, with approval from the government, selected and awarded subcontracts to vendors providing the necessary software. Although DSI and STR had each submitted and demonstrated application software in response to the June RFI and the August RFI, neither contractor was selected by SRA as a subcontractor for JAAMS. The contractors separately filed protests with the General Accountability Office (GAO), which the GAO dismissed because "the procurement here was not `by' the government" and "the procurement at issue was not conducted by a federal agency or a contractor acting as a procurement agent for a federal agency and thus is not subject to our jurisdiction."

The contractors then consolidated their protest for purposes of filing their complaint with the trial court. The contractors also filed a motion to supplement the administrative record. The government opposed this motion and concurrently moved to dismiss the contractors' complaint for lack of jurisdiction, arguing that the protest was not viable, as the contractors were essentially protesting the award of subcontracts by a contractor with a federal agency, and not an award of a contract by an actual federal agency.

The trial court agreed with the government, interpreting the contractors' complaint as based on "an expansive interpretation of 28 U.S.C. § 1491(b) to encompass the process which resulted in competition for the award of subcontracts rather than the award of federal agency contracts." The trial court concluded that the decision to task SRA with selecting software vendors for JAAMS was simply adding to the work of an existing task order that had already been awarded under a competitive process. Specifically, the trial court reasoned that the government's choice to conduct market research through the June RFI before determining that SRA would select vendors for JAAMS was functionally no different from a situation where the government would have initially included the JAAMS software procurement requirement in SRA's PRIME 2.2 task order. The trial court also concluded that, because SRA was not a purchasing agent for the government, the subcontracts awarded were not on behalf of a federal agency and therefore were not subject to a bid protest. Given its conclusion that jurisdiction was not present, the trial court declined to consider the contractors' motion to supplement the administrative record.

The contractors have timely filed their appeal. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

As it involves a question of law, we review whether the Court of Federal Claims possesses subject matter jurisdiction de novo. See Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1300 (Fed.Cir.2004). We review factual determinations for clear error. See Rocovich v. United States, 933 F.2d 991,...