SRA Int'l, Inc. v. United States

• Decision Date: 14 January 2014
• Docket Number: No. 13-969 C,13-969 C
• Parties: SRA INTERNATIONAL, INC., Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

SRA INTERNATIONAL, INC., Plaintiff, v. THE UNITED STATES, Defendant.

No. 13-969 C

United States Court of Federal Claims

Filed under seal: January 13, 2014^*

Reissued for publication: January 14, 2014

Administrative Procedure Act,

5 U.S.C. § 706(2)(A) (arbitrary

and capricious action);

Federal Acquisition Streamlining Act

of 1994;

Jurisdiction;

Organizational Conflicts of Interest,

48 C.F.R. § 9.500(a);

Waiver of Conflict of Interest,

48 C.F.R. § 9.503;

4 C.F.R. § 21.11 (advisory opinion);

12 C.F.R. § 366.1 ("minimum

standards of integrity and fitness

required by Federal Deposit

Insurance Corporation

contractors");

12 U.S.C. § 1819(a) (corporate

powers of the Federal Deposit

Insurance Corporation);

12 U.S.C. § 1822(f) (conflicts of

interest governing Federal

Deposit Insurance Corporation

contractors);

31 U.S.C. § 3554(b)-(c) (decisions

on bid protests by the United

States Government

Accountability Office).

Robert S. Metzger, Patricia A. Meagher, Jeffery M. Chiow, Oliya S. Zamaray, Rogers Joseph O'Donnell PC, Washington, D.C., Counsel for the Plaintiff.

Christopher James Carney, United States Department of Justice, Trial Attorney, Commercial Litigation Branch, Washington, D.C., Counsel for the Government.

Marie Cochran, United States General Services Administration, Assistant General Counsel, Personal Property Division, Washington, D.C., Counsel for the Government.

Duncan N. Stevens, Robert J. Brown, Federal Deposit Insurance Corporation, Arlington, VA, Counsel for the Government.

MEMORANDUM OPINION AND ORDER

BRADEN, Judge.

I. RELEVANT FACTUAL BACKGROUND.¹

To date, SRA International, Inc. ("SRA" or "Plaintiff") has provided network infrastructure support to the Federal Deposit Insurance Corporation ("FDIC"), pursuant to a September 2009 FDIC Infrastructure Support Contract ("ISC-2 Contract").² Compl. ¶ 11; Pl. Mem. Ex. A at A0003. The ISC-2 Contract was a task order, issued under the General Services Administration's ("GSA") Millenia Government-Wide Acquisition Contract ("Millenia GWAC"). Pl. Mem. Ex. A at A0008; Pl. Mem. Ex. G ¶ 1 (Contracting Officer's September 25, 2012 Statement of Facts in the United States Government Accountability Office Protest of SRA International, Inc., B-407709.5 (hereinafter the "CO's Statement")).

On June 21, 2012, the GSA Federal Systems Integration and Management Center ("FEDSIM") issued Task Order Request #GSC-QF0B-12-0020, on behalf of the FDIC, pursuant to the Alliant GWAC (that superseded the Millenia GWAC). Pl. Mem. Ex. G ¶ 1 (CO's Statement). On October 22, 2012, the GSA awarded Task Order #GST0013AJ0013 to Computer Sciences Corporation ("CSC"). After SRA filed a protest at the United States Government Accountability Office ("GAO"), GSA terminated the October 22, 2012 Task Order for convenience on December 13, 2012. Pl. Ex. G ¶ 2.

After a series of corrective amendments,³ on August 14, 2013, the GSA awarded Task Order #GST0013AJ0084 ("ISC-3 Contract" or "Task Order") to CSC for a price of $365,462,364, including all options. Pl. Mem. Ex. G ¶ 24. During an August 21, 2013 debriefing with SRA, the GSA confirmed that Blue Canopy Group, LLC ("Blue Canopy") was going to be a subcontractor for CSC on the ISC-3 Contract. Compl. ¶ 13. During the last fiveyears, however, Blue Canopy worked under a FDIC contract to conduct security audits of SRA's network security, providing Blue Canopy with "access to SRA's proprietary information" and knowledge of "how the FDIC evaluated SRA's work." Compl. ¶ 15.

Accordingly, on August 26, 2013, SRA filed a second protest with the GAO, citing two organizational conflicts of interest ("OCI") resulting from Blue Canopy's FDIC work: (1) impaired objectivity; and (2) unequal access to information. Compl. ¶ 14.⁴

On September 25, 2013, the GSA informed the GAO that Blue Canopy would not work on the ISC-3 Contract. Compl. ¶ 20; Pl. Mem. Ex. F at A0110. SRA agreed that this resolved the impaired objectivity OCI, but not the unequal access to information conflict. Compl. ¶ 23.

In addition, SRA insisted that GAO proceed with the protest, because Section H.9.1 of the Task Order Request also requires compliance with the FDIC ethics regulations, set forth in 12 C.F.R. § 366.1.⁵ Compl. ¶ 28 (citing Section H.9.1 of the Task Order Request). And, Section K of the Task Order Request further advises contractors that the failure to certify compliance with 12 C.F.R. § 366.1 "shall result in the offeror being found non-responsible for award of this task order." Compl. ¶ 29 (quoting Task Order Request, 12 C.F.R. § 366.1).

On November 25, 2013, the GSA issued a Determination and Findings for Waiver of Organizational Conflict of Interest Rules (hereinafter the "Waiver"). Pl. Mem. Ex. A at A0002. The Waiver stated that "FEDSIM believes that the application of the conflicts rules set forth in FAR subpart 9.5 to this [Task Order] is not in the Government's interest and that the waiver in accordance with . . . FAR 9.503⁶ is appropriate." Pl. Mem. Ex. A at A0002. Consequently, on December 3, 2013, the GAO dismissed SRA's protest as "academic." Compl. ¶ 4.

II. PROCEDURAL HISTORY.

On December 9, 2013, SRA filed a post-award bid protest Complaint in the United States Court of Federal Claims. Count I seeks a declaration, under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), that the Waiver violated the FDIC's rules for ethics and conduct, set forth at 12 U.S.C. § 1819(a)⁷ (Tenth) and 12 U.S.C. § 1822(f).⁸ Compl. ¶¶ 32, 38. Count IIseeks a declaration that the Waiver violated FAR 9.503. Compl. ¶ 46. Counts III and IV allege that CSC and Blue Canopy also submitted false and materially misleading certifications, in violation of 12 C.F.R. § 366.1, requiring issuance of a permanent injunction. Compl. ¶¶ 51, 54, 57, 61. The December 9, 2013 Complaint does not include a Count V. Count VI, however, seeks a declaration that the FDIC cannot make "an illegal award to an invalid offeror." Compl. ¶ 65. Count VII seeks a temporary restraining order. Compl. ¶¶ 68-70.

On December 9, 2013, SRA also filed: a Motion For Temporary Restraining Order; a Motion For Preliminary Injunction; and a Motion For A Protective Order. SRA also filed a Memorandum of Points And Authorities In Support Of Plaintiff's Application For A Temporary Restraining Order and Preliminary Injunction.

On December 11, 2013, the court convened a telephone conference to discuss jurisdictional issues raised in the December 9, 2013 Complaint and ordered the parties to brief the issue of the court's jurisdiction.

On December 16, 2013, the Government filed a Motion to Dismiss. On December 20, 2013, SRA filed a Response. On December 23, 2013, the Government filed a Reply, with leave of the court.⁹

III. DISCUSSION.

A. Standard Of Review For Subject-Matter Jurisdiction, Pursuant To RCFC 12(b)(1) And 12(h)(3).

As a matter of law, the court must consider jurisdiction before reaching the substantive merits of a case. See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 648 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented."); see also Special Devices, Inc. v. OEA,Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) ("Jurisdiction is a threshold issue that the court may raise sua sponte."); Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) ("Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed."); View Engg, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not."). Subject-matter jurisdiction may be challenged "at any time by the parties or by the court sua sponte." Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004); see also RCFC 12(b)(1) (allowing parties to assert lack of subject-matter jurisdiction by motion); RCFC 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). When deciding a subject-matter jurisdiction challenge, the court "must accept all well-pleaded factual allegations as true and draw all reasonable inferences in [the plaintiff's] favor." Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000) (citation omitted).

B. The Effect Of The Federal Acquisition Streamlining Act On The Jurisdiction Of The United States Court Of Federal Claims To Adjudicate Bid Protests.

The Tucker Act authorized the United States Court of Federal Claims

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).

The Federal Acquisition Streamlining Act of 1994 ("FASA"),¹⁰ however, precludes the court from adjudicating protests "in connection with the issuance or proposed issuance of a task or delivery order," unless the protest is "on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued." 41 U.S.C. § 4106(f);¹¹ seealso BayFirst Solutions LLC v. United States, 104 Fed. Cl. 493, 502 (2012) ("This court has consistently interpreted the [Section 4106(f)] ban as prohibiting task order protests in this court on any grounds[,] other than the specific excepted allegations of excessive scope, period, or value of the proposed task order."). As to protests "in connection with the issuance or proposed issuance of a task or delivery order . . . . valued in excess of $10,000,000," the FASA vests the Comptroller General of the GAO with exclusive jurisdiction. See 41 U.S.C. § 4106(f).¹²

1. The Government's Argument.

The Government argues that the United States Court of Federal Claims...