Bid p rotest; Standing; W aiver; 28 U.S.C. § 1491( b )(1); Interested Party ; Prospective Bidder. 

# In th e United States Court of Federal Cl aims

No. 16-1549C (Filed: January 25, 2017) (Re-f iled: February

3, 2017) 1

* * * * * * * * * * * * * * * * * * * * * *

ECOSYSTEM INVESTMENT PARTNERS,

Plaintiff
,

v.

THE UNITED STATES,

Defendant,

and

CROSBY DREDGING, LLC,

Defendant-Intervenor

.

* * * * * * * * * * * * * * * * * * * * * *

Thomas L

. McGovern
, W ashington, D C, with w hom were Brendan M. Lill and Katherine L. Morga , f o r plaintif f

. Geoffrey M. Long
, United States Departm ent o f Justice, Civil Division, Comm ercial Litigation Branch, W ashington, DC, with whom were Benjamin C. M izer
, Principal Deputy Assistant A ttorney General, Robert E. Kirschman, Jr. , Director, and Martin F. Hockey, Jr. , Assistant Director, f or def endant.

John F. Emmett , New Orleans, LA, f or intervenor.

1 This opinion was originally issued under seal pursuant to the protective order entered in this case. The p arties conf e rred and d id not p ropose any r edactions of protected inf

orm ation.OPINION

P laintif f
, Ecosy stem Investm ent Partners (“EIP”), protests the U n i t e d States Army Corps of Engineers’ (the “Corps”) award of a contract to intervenor, Crosby D redging, LLC (“Crosby D redging”), f or the provision of dredging and c onstructi o n services as p art of a com pensatory environm ental

m itigation plan to of

f set other work the Corps was doing t o saf eguard against possible f uture s torm da ma g e

. EIP was not a bidder in connection with this dredging solicitation, but it operated an e nvironm e ntal m i tigation credit b ank, which it argues should have been selected as part of an earlier environm ental adm inistrative a ction to accom plish the necessary m itigation ef f ects. In other words, plaintif

f h a s no critique to of

f er of the current dr e d ge and f ill solicitation other than its arg um ent that the solicitation would have been
unnecessary if the Corps had c orrectly assessed its env i r onm ental options earlier. The c ase r aises the novel question of whether a c h allen g e t o t h e Corps’ a ctions in connection with d eveloping a p lan to m itigate its o wn environm ental im

pacts can be heard as a bid protest.

On D ecem

ber 9, 2 016, def

endant m o ved to dism iss the c om plaint f or lack of s ubject-m atter jurisdiction o r, i n the alternative, to dism iss the

com plaint in part f

o r f a i l u r e to state a claim

. 2 Oral argum e nt was held on January 5, 2 017. A s we announced a t the conclusion of oral argum e n t, we f ind that plaintif

f was not an “ interested party ” w ithin the m eaning of 28 U .S.C. § 1491 (b)(1) (2012), and, in any event, waived i ts right to challenge the term s of the solicitation by n ot f iling a protest prior to bid o pening. In addition, we conclude that plaintif

f’s real dispute h ere do e s n o t raise a m atter “in connection with a procurem ent or a proposed procurem e nt” and thus we lack subject-m atter j urisdiction f or a third reason. W e theref ore grant def

endant’s

m otion to dism i ss f

or lack of subject-m atter jurisdiction.

BACKGROUND

In response to the dam a ge caused by Hurricanes Katrina a nd Rita in 2005, the Corps set out to build a f l ood risk reduction sy stem surrounding the New Orleans m e tropoli t a n area known as the Hurricane and Storm D am age Risk Reduction Sy stem (“HSDRRS”). D uring construction of the $14.5 billion project, various wetland habitats, including wildlif e ref uges in the area,

2 Intervenor joined def

endant’s m otion without separately f iling any brief ing.

2were dam aged. The C l e an W ater Act (“CW A”) a nd the W ater R esources

Developm ent Act of 1986 (“W RDA”), as am ended, require that the Corps, as would any private party , act to m itigate such dam age by im plem enting a p lan
to o f f set e nvironm ental im

pacts. Specif

ically
, the Corps is r equired to ensure that i m pacts to a p articular habitat are m itigated through m easures t o preserve that sam e ty

pe of habitat.

Required habitat m itigation c a n be accom plished through dif

f erent

m eans, including m itigation b anking ( b uy ing credits f r om an authorized “bank”), contracting with an “in-lieu” f ee provider (e x p l a ined below), or through a Corps-constructed resto r a tion project. In the case of m itigation banking, the credit provider places a perm anent e nc um brance on its land in exchange f

or a certain am ount of credits, which it can then sell t o p rivate developers, or, in this c ase, to the C orps itself

. A second option, not relevant in this c ase, is the use of in-lieu f ee providers, where the credit provider i s given provisional credits that i t can m arket. Once it com pletes a transaction, the in-lieu f

ee p r ovider then has the responsibility of securing land and placing

a conservation e asem ent on that land. See generally Pioneer Reserve, LLC v. United States
, 128 F ed. Cl. 483 (2016). A third option f o r the Corps here was that it could design a nd im plem ent its own r estoration project. T he m itigation plan adopted by the Corps in this case included both the purchase of m itigation credits and Corps-constructed restoration projects.

One f actor lim iting the C orps’ options was a policy of the U nited States Fish a nd W ildlif

e S ervice to the ef

f e c t that, when the i m

p acts occur on national wildlif e ref uge property , m it i g a t i o n also m ust take place on ref

uge property

. See Final Policy on the National W ildlif e Ref uge Sy stem

and Com pensatory Mitigation under the Section 10/404 Program
, 64 Fed. Reg. 49229 (Septem ber 10, 1999). As a practical matter, this policy had the ef f ect of rem oving the option of purchasing p rivate m itigation banking c redits in order to m itigate f or environm ental im

pacts occurring on national wildlif e ref uge property

.

The C orps’ initial propose d m itigation p lan was described and evaluated in Program m a tic Individual Environm en t a l Report #36 (“PIER #36”), which was p repared in accordance with the National E nvi r o n m ental Policy Act, 42 U.S.C. §§ 4321-4370h (2012). PIER #36’s stated purpose was to comp e n s a t e f

or habitat losses caused by the construction of HSDRRS. It addressed six ty

pes of habitats: swam

p, bottom land h ardwood (“BLH”)-dry
, BLH-we t, f

resh m arsh, i nterm ediate m a r sh, and brackish m arsh. PIER # 36 proposed to m eet n early 40% of its total m itigation needs through the purchase

3of m itigation credi ts f or the swam

p and B LH wet/dry habitat im pacts. In relevant part, t h e plan also proposed that the Bay ou S auvage Marsh Restoration p roject would provide all the necessary m itigation f o r both on- and of f -ref uge brack i s h ma r s h im

pacts. This plan m eant that EIP would not be able to s ell the b rackish ma r s h m itigation credits generated by its Chef Menteur Pass Mitigation Bank (“Ch e f Bank”) in connection w ith the

m itigation p l an. PIER #36 was released f or public review and c o mm ent f rom August 12, 2013 to Septem ber 25, 2013. During this tim e, EIP m ade a num ber of com m ents, including a recom m endation that PIER #36 recognize its Chef Bank “as a source of brackish m arsh m itigation available f o r H S D RRS u se either as the pref

erred alternative (subject t o credit availability and price at tim e o f solicitation) or at least as a source of alternative m itigation if the c orpsconstructed alternatives prove to be unf easible or overly e xpenses.” AR 1509.

On October 20, 2015, the Corp s i ssued the Individual Environm ental Report Prepared to Supplem e nt: Program m atic Individual E n v ironm ental Report (PIER) 36 Bay o u Sauvage, Turtle Bay ou & New Zy deco Ridge Restoration Project Saint Tamm any & Orleans Parishes, Louisiana PIER 36, Supplem e nt 1 ( “SIER 1”). SIER 1 explained that, due to i ncreased cost estim ates, the B ay ou Sa uvage Marsh Restoration project was no longer considered f

easible. T h e C o rp s d ecided to m o ve the location of these restoration f

eat u r e s w i thin the sam e area in o rder to lower the cost of the
p r oject. SIER 1 stated that “[ t]his relocation b rought the cost of the pr o j e c t back d own such that the exploration of other options to m it igate the requirem ent was unnecessary

. ” AR 1924.

The new Bay ou Sauvage Floodside Brackish Marsh project, however, only m et roughly 81 % o f the Corps’ brackish m arsh m itigation needs. The Corps proposed to m itigate f or the rem aining a m ount of brackish m arsh im p acts that the Bay ou Sauvage Floodside Brackish Marsh project could not produce, along with brackish m arsh i m pacts incu r r ed in order t o provide construction access f

or several restoration p rojects on national wildlif e ref uge properties, by creating approxim a tely 8 2.3 acres of new brackish m arsh as part

o f t he New Zy deco Ridge Restoration project o n the Big B ranch Mar s h National W ildlif

e Ref uge. EIP argues as part of this proceeding that it owned

m itigation credits that should have been used to c om pensate f or the of f -ref uge b r ackish m arsh m itigation needs lef t unf ulf illed by the Bay ou Sauvage Floodside Marsh project, rather than those needs being satisf ied as part of the New Zy deco Ridge Restoration project. It contends that f ederal law prioritizes

m itigation in a way that f avors use of m itigation banks, an d t h a t t h e C orps’

4actions violated that law. See 33 U .S. C

. §2317b (2012); 3 3 C.F.R. §

332.3(b)(2) (2017). I t did n o t , h o w ever, comm ent on SIER 1 when it was distributed f

o r a 30-day com m ent period f rom July 9, 2014 t o August 8
, 2014.

The Corps issued solicita t i o n No. W 912P8-16-B-0027 (the “Solicitation”) on May 13, 2016, seeking bids f or w ork to be perf

o r me d in

con n e c t i on with the New Zy deco Ridge Brackish Marsh Restoration,

m entioned above. T he s olicitation s t a t ed the f ollowing as its description of work: “The work consists of wetland restoration in existing shallow open water via b orrow dredging f rom a d esignated borro w p i t within Lake Pontchartrain.

. . . T he work requires retention dike construction, board road placem ent, and a j ack-and-bore ef f ort to provide the dredge disposal pipeline

a c c e s s to the construction site.” AR 885. Af ter several am endm ents to the solicitation, the f

inal bid opening date was set f or A ugust 4, 2016. E IP d id not subm it a bid in response to the solicitation. Crosby Dredging was the lowest bidder of the six bids subm itted at the tim e o f t he b id o pening a nd was awarded the contract on Novem b er 18, 2016.

Throughout the solici t ation process f or the d redging work, EIP was involved in a num

ber of discussions with the Corps attem pting to reopen the question of

whether m i tigation banking credits should have been used rather than owner-initiated m itigation. It q uestioned both the scoring m ethods used
to determ i ne the available am ount and cost o f credits a t C h e f Bank and the Corps’ planned restor a t ion ef f orts at New Zy deco R idge. O n June 1 6, 2016, EIP sent a letter to the Corps expressing its concerns. The letter stated that it

was “essential that there is a consistent, f a ir a nd transparent process f or the evaluation of m itigation options.” AR 290-91. F inally
, on August 3
, 2016, E IP
sent a letter to t h e C o mm ander and D istrict Engineer of the New O rleans Dist r i c t , Colonel Michael N. Clancy
, seeking “to provide comm ents f or the District’s consideration on [ SIER 1] and [ the solicitation].” AR 2 93. It d id not characterize itself

as a protest to the solicitation.

A f t er the bid opening, EIP f iled a p rotest a t the Governm en t Accountability Of

f i ce (“GAO”) o n A u g u s t 15, 2016, which G AO dism issed on Novem

ber 15, 2016, as untim ely because EIP had not protested the term s

o f t h e s o licitation p rior to the b id opening on August 4, 2016. Specif ically
, GAO held that EIP’s August 3, 2016 l etter was not i ntended to be an agency

level protest, and that, if it was, it f ailed to conf

orm with the r equirem ents s et out in the solicitation f

or an agency -level protest. Ecosystem Investment Partners
, B-413587, at 4 ( Com p. Gen. N o v. 15, 2016). T hree day s af ter its

5protest was d ism issed at GAO, EIP f i led the present action on Novem ber 18, 2016.

DISCUSSION

The Tuck e r A c t , a s am ended in 1 996, p rovides the Court o f Federal Claim s w ith jurisdiction over actions “by an interested party objecting to a solicitation by a Federal agency f or bids or p roposals f

or a proposed contract or to a proposed award or the award o f a contract or any alleged violation of
statute or regulation in connection w i th a procurem ent or a proposed
p r o c urem ent.” 2 8 U.S.C. § 1491(b)(1). Thus, to establish jurisdiction u n d e r this statute, a p l aintif

f m u s t dem onstrate that it is an “interested party .” This “im poses m o r e s tringent standing requirem e n ts than Article I II” of the Constitution. W

eeks M arine, Inc. v. United States
, 575 F.3d 1352, 1359 (Fed. Cir. 2009). Althoug h t h e t e rm “interested party ” is not def ined w ithin the
sta t u t e, it has been construed to consist of two elem ents: f i rst, plaintif

f m ust establish that i t “is an a c tual or prospective bidder” and second, that it “posses s [e s ] t

h e r e q u isite direct econom ic interest.” I d. ( citing Rex. Serv. Corp. v. United States , 448 F.3d 1305, 1308 (Fed. Cir. 2006)).

There are three independent reasons we c annot entertain this protest, although, given the un ique nature of the protest, it is c hallenging to f r am e them in traditional bid protest language. They all relate, however, t o th e sam e def iciency : plaintif

f’s r eal com

plaint is with the Corp’s adm inistrative action i n electing t o m itigate the environm ental im pact of its o wn constru c t i o n activities by doing dredge a nd f ill on f ederally -owned s ubm erged lands rather than by purchasing m itigation credits f rom plai n t if

f

. Plaintif

f could not

com pete f or that construction work, and it did not challenge the earlier, critical decision, nam ely , how to do m itigation. 3

I. Plaintif f Is Not An “Interested Party ” And Thus Lacks Standing

Def endant a rgues that the com plaint m ust be dism issed because plaintif f lacks standing. Specif

ically
, def endant asserts that EIP cannot show that it is a n “interested party ” under 28 U.S.C. § 1 491(b)(1) because plaintif f

3 W e are not suggesting that the court would have h ad bid protest jurisdiction if plaintif f had challenged the decision to rejec t e n vironm ental banking credits. Presum ably , such an action would have to be brought in a district court.

6is neither an actual nor a prospective bidder. Given that EIP did not subm it a

bid in response t o the solicitation, w e f i nd that EIP is not an a c tual bidder. Def endant argues that EIP also f ailed to establish its status as a p r ospective bidder by not f

iling a protest prior t o the close of the proposal period on August 4, 2 0 1 6

. Plaintif f
, on the other hand, argues that it can qualif y as a prospective b idder without having subm itted a bid because it was deprived of

an opportunity t o do so as a result o f the Corps’ allegedly u n l awf ul c onduct. Plaintif f alleges t h a t the Corps’ decision t o solicit a construction r estoration project was im

proper because it ignored the pref e rence f or m itigation banking by not acknowledging its Chef Bank m itigation c redits as the pref erred source of com p e nsatory m itigation.

EIP is c orrect in that, under certain circum stances, a plaintif f can have standing to p rotest a solicitation without being eligible to bid on i t. S ee CCL, Inc. v. United States
, 3 9 F ed. Cl. 780, 790 (1997) (holding that “where a claim is m ade that the governm ent violated CICA by ref using t o e n g a g e in a

com petitive procurem ent, it is suf f icient f or standing purposes if the plaintif f shows that it likely would have com peted f or the contract had the governm ent publicl y i n v i t ed bids”). Plaintif f d oes n ot f

i t into this line of a rgum ent, however, because it f

ailed to d iligently pursue its p rotest rights. In order f or EIP to have standing to c hallenge the validity of the solicitation, it needed to either subm i t a b i d or protest prior t o the b id opening. See MCI Telecomms. Corp. v. United States
, 8 78 F.2d 362 (Fed. Cir. 1989) (solicitation must be pending when protested). As discussed in m ore detail below, we f ind that the August 3, 2016 l etter that EIP’s m anaging partner sent to the Corps w a s not an agency

- level protest. EIP’s “ o p p o r t u n i ty to qualif y as either an actual o r a prospective b i dder end[ e d] when the prop osal period e n d[ ed]” o n August 4, 2016, and it f

a iled to protest the solicitation by this date. Rex Serv. Corp.
, 4 48 F.3d 1305, 1308 (Fed. C ir. 2006) (quoting M CI Telecomms.
, 8 78 F.2d at 365). A c c o r dingly
, we h old that EIP did not tim ely establish i ts status a s a prospective bidder and thus l acks s tandin g t o assert its challenge to the solicitation because i t i s n ot an “interested party ” within the m eaning of §1491(b)(1).

II. Plaintif

f W aived Its Right To Challenge The Term s Of The Solicitation

For related reasons, plaintif f waived i ts claim by f

ailing to f i le a tim ely
agency

- level protest to the term s of the s olicitation. Thus, e ven if w e were to f i nd that p laintif

f has standing to challenge the s olicitation, plaintif f h a s waived its ability to do s o. In Blue & Gol d Fleet, L.P. v. United S tates , the

7Federal Circuit recognized a waiver rule f or bid p rotests, holding that a p arty that “has the opportunity to object t o t he term s of a governm ent solicitation containing a patent error and f ails to do so prior t o the close o f t h e b i d ding
process w ai v e s i t s ability to raise the sam e objection s u bsequently in a bid protest action in the Court o f Federal Claim s.” 492 F.3d 1308, 1 313 (Fed. Cir. 2007). Here, the Corps’ alleged error in not using b rackish m i tigation credits

as part of the m itigation plan was obvious when the solicitation was issued on May 13, 2016. In o r der to avoid waiver, EIP was thus obl i g a t e d t o p rotest prior to the “close of the bidding process,” which was the date of bid opening on August 4, 2016.

Plaintif f a rgues that the waiver rule should not work to def eat its claim because it diligently pursued its objections prior to the b id op e n i n g date. Specif i cally
, plaintif

f ass e r t s that the letter i t sent to the Corps o n August 3, 2016, served as an agency -level protest and preserved its right to challenge the solicitation in this action. Def endant counters by pointing out that this letter

was not f iled wit h t h e c o ntracting of f icer, as directed by the solicitation and Federal Acquisition Regulation (“FAR”) § 33.103(d)(3), a n d p l aintif f also f ailed t o i nclude certain substance required under FAR § 3 3

. 1 0 3(d)(2). Moreover, def

endant disputes whether EIP even intended the letter to serve as

a protest. D ef

endant points t o t h e f

i r s t sentence of the letter, which sim ply

s t a t e s that it was written “to provide c o mm ents f or the District’s consideratio n ” of SIER 1 and the solicitation. AR 293.

W e hold that the August 3
, 2016 letter w as not an agency -level p rotest and that plaintif

f thus waived its objections to the solicitation by not properly asserting them prior to the August 4, 2016 bid opening date. The solicitation, along with the relevant regulations, put EIP on notice a s to the requirem ents of a f orm al agency

- l evel protest. 4 The letter that EIP now argues was a tim ely protest was not addressed to the contracting of f icer as req u i r e d b y FAR § 33.103(d)(3). Rather, the letter was sent to th e C o mm ander and District Engineer of the New Orl e a n s D istrict. EIP also f ailed to o btain the written

a c k nowledgm e nt of receipt of the letter f rom the contracting of

f i cer, whic h

was expressly required in the Solicition f or agency -level protests. AR 893. Nor

4 T h e s olicitation incorporated b y f ull text FAR § 52.233-2, which instructs that
any protests, as def

i ned in F AR § 33.101, were to b e served on the c ontracting of f icer and m

u st s eek a w ritten and dated acknowledgm ent of the c ontracting of f icer’s receipt. AR 893.

8did the letter include the s olicitation num ber, c opies of d ocum ents relevant to the alleged protest, or a n express request f or a ruling by t h e a g e n c y —all of which are required under FAR § 33.103(d)(2).

In B a n n u m , Inc. v. United States
, the Federal Circuit spoke to the im p ortance of protest f

orm alities, stating that

[ r]equiring that the prescribed f o rm al r o u t es f

or protest be f ollowed (to avoid waiver) reduces uncertainty about whether the issue is joined and m ust be resolved, and t h e r eby helps prevent both the wasted and duplicative expenses (of a l l bidders and t h e g overnm ent) and the d elay ed i m p lem entation of the
contract that would likely f ollow f rom laxer standards of tim ely presentation of

solicitation challenges.

779 F.3d 1376, 1380 (Fed. C ir. 2015) (holding that “ m ere notice of dissatisf action o r o bjection is insuf f icient to preserve” a def

ective-solicitation challenge). As discussed above, E IP ’ s l etter d isregarded num erous f orm al requirem ents f

or a n agency -level protest. I n sum , the le t t e r s e e m s m erely to be the latest in a continuing series of comm unications between EIP and the Corps. Accordingly
, we hold that EIP w aived its ability to challenge the solicitation.

III. The Com

p ensatory Mitigation Plan W as Not Form ulated “In Connection W i th A Procurem ent”

Even if there had been a tim ely pro test, there is a m o re f undam ental problem with this suit

. T h e governm ent action com plained of

, nam ely
, the decision to i m

p lem e nt a Corp-constructed project rather than purchase

m itigation credits f

rom Chef Bank, was not an act “in connect i o n w i t h a procurem ent o r a proposed procurem ent” and thus we do not have jurisdiction under 28 U.S.C. § 1491(b)(1).

W e recognize that t h e term “procurem ent” has been def i ned broadly
, leaving “[ t]he operative phras e ‘ i n connection with’

. . . very sweeping in scope.” RAMCOR Services Group, Inc. v. United States
, 185 F .3d 1286, 1289 (Fed. Cir. 1999). I n Distributed Solutions, Inc. v. United States
, 539 F.3d 1340 (Fed. C ir. 2008), the Federal C i rcuit c on s i dered what constitutes a “procurem ent” f

or the purposes of § 1491(b)(1). It borrowed the d ef inition that Congress provided in 41 U.S.C. § 403(2) (re-codif ied at 41 U.S.C. § 111),

9which relates to the creation of the Of f ice of Fe d e r a l Procurem ent Policy

. Based on that def

inition, a procurem ent thus includes “all stages of the process of acquiring property or services, beginning with the p rocess f or determ ining

a n e ed f or property or services and ending with contract com pletion an d closeout.” 41 U.S.C. § 111 (2012).

Plaintif f alleges that the Corps violated f ederal law by not c o m

p l y ing with a regulatory pref

er e nce f or m itigation credits when it adopted the New Zy d e c o R i d ge Restoration project as part of its m itigation plan. Plaintif f considers this to b e a “violation of a statute or regulation in conne c t i o n with

a p rocurem ent or a proposed procurem ent” because of the causal link between the decision not to use m itigation credits and the issuance of the solicitation. W e disagree.

Plaintif f directs the court to a handf ul of cases that involve claim s that it believes a re analogous to i ts challenge to the process of f orm in g t h e

m itigation plan l eading to the solicitation. Unlike the p resent a ction, however, in the cases p l aintif

f cites, the g o v e r n me n t was either a ttem p ting to avoid or otherwise directly violating f ederal procurem ent law. Fo r e xam ple, in Distributed S

o lutions
, the governm ent i s s u ed a r equest f or inf orm ation but then used the responses to determ ine the scope of services it required so it could then add work to an exist i n g contract. I n e f f ect, “the Governm ent initiated a ty

pe o f procurem ent com

p etition without actually comm itting to award a contract to the best of f e ror, thereby circum venting applicable f ederal
procurem ent laws.” VFA, Inc. v. United States
, 118 F ed. C l. 735, 740 (2014) (ho l d i ng that “[ w]hile m any courts h ave cited Distributed Solutions f or the proposition that T ucker Act bid protest jurisdi c t ion is broad, the holding

rem ains lim ited by the f

acts of the case”). Here, the C orps did n ot seek to avoid a com

p etitive procurem ent and EIP does not suggest the s olicitation at issue otherwise violated f e deral procurem e nt law.

Plaintif f’s reliance o n LABAT-Anderson, Inc. v. United States
, 65 Fed. Cl. 570 (2005), is a lso m isplaced. There, the protester successf ully challenged the D e f e n s e Logistics Agency ’s decision to perf orm certain distribution services in-house without f irst p erf orm ing a c o st com

parison, which it a lleged “violated num erous sources of law that m a ndate the procurem ent of supplies and services f

r om the private sector.” Id

. at 574. Plaintif f argues that, as in LABAT-Anderson
, it h as m ade “allegations that a Governm ent agency violated applicable laws d

uring the pre-solicitation stage of a procurem ent.” Pl.’s Resp.
at 13. As def

endant points out, however, unlike E IP’s challenge, the allegedly

10violated regulation s i n LABAT-Anderson were part of the agency ’s overall

procurem ent s chem e f

or the services it s ought to acquire. Here, at the tim e the Corps was considering its options, it was subject to a web o f environm ental policies and regulations that have no necessary connection to the solicitation f or the subsequent dredge and f ill contract.

The Corps’ decision m aking in connection with how to m itigate the ef f ects of its own hurricane protection project m ay have lead to a procurem ent in this case, but it is a distortion of Ramcor to sug g e s t that its prelim i nary environm ental decision m aking was d one “in connection w ith” a procurem ent. As def endant p o ints out, settling o n a n appropriate com pensatory m itigation plan involves try i ng t o m a xim ize ecological ben e f i t s i n light o f a num

ber of ecological f

a ctors which a re wh o lly unrelated to the proper p rocurem ent of services by the governm ent. Accordingly
, we hold that the alleged violation of
a statute with respect to the Corps’ decision to adopt the New Zy deco Ridge R e s t o r ation project as part of its com pensatory m itigation plan was not “ i n connection with a procurem ent” p ursuant to § 1491(b)(1). The court thus lacks subject-m atter jurisdiction over the claim

.

CONCLUSION

For the reasons stated above, we grant def endant’s m o tion to dism iss f or lack of jurisdiction. The clerk’s of f ice is direc ted to enter j udgm ent accordingly

. No costs.

s/Eric G. Bruggink Senior Judge

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