In the United States Court of Federal Claims

No. 18-927C

(Filed: September 18, 2020)

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

ELECTRA-MED CORPORATION, et al.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant,

and

AMERICAN MEDICAL DEPOT, et al.,

Intervenors. 

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Eric S. Crusius, Tysons Corner, VA, for plaintiffs. David S. Black, 

Gregory R. Hallmark, and Mary Beth Bosco, of counsel.

David M. Kerr, Trial Attorney, United States Department of Justice,

Civil Division, Commercial Litigation Branch, Washington, DC, with whom

were Ethan P. Davis, Acting Assistant Attorney General, Robert E.

Kirschman, Jr., Director, Claudia Burke, Assistant Director, for defendant.

Jason Fragoso, U.S. Department of Veterans Affairs, Office of General 

Counsel, of counsel.

ORDER

Plaintiffs filed their bid protest complaint on June 27, 2018, alleging 

that the Department of Veterans Affairs (“VA”) improperly modified four 

already-existing prime vendor contracts to avoid competition for the items 

that those vendors would be distributing to the VA. The contract 

modifications had the effect of putting the selection of items and suppliers 

for its VA hospital formulary in the hands of the prime vendors instead of 

selecting those suppliers and items through normal federal contracting 

processes. 

Bid protest; Prime vendor 

contracts; Contract 

modification; Injunction;

Balance of harms;

Remand after appeal; 

Jurisdiction; Mootness. 
2

We eventually agreed with the protestors that the justification for 

having done so was insufficient, meaning that the contract modifications 

were an illegal attempt at avoiding competition and veteran preference

requirements for VA contracting. Electra-Med Corp. v. United States, 140 

Fed. Cl. 94, 104-106 (2018). We did not afford relief, however, because the 

government established that the harm to the VA from an injunction would

outweigh the harm to the plaintiffs. Id. at 106-107 (the VA’s inability to 

centralize and standardize its medical supply chain outweighed plaintiffs’

loss of opportunity to compete). We noted in our consideration of the harm 

to the plaintiffs that, although the loss of opportunity to compete was 

irreparable, it was somewhat limited by the potential that the plaintiffs might 

still be selected by the prime vendors as suppliers for particular items and by 

the fact that the contracts modified by the VA would, if the option periods 

went unexercised, expire in 18 months. Id. at 106. We also found that the 

public had a weighty interest in the provision of “high quality healthcare to 

veterans” that was, in this instance, greater than the public’s interest in a 

legally sound procurement. Id. at 107. The weighing of those factors did 

not favor an injunction, and thus relief was denied. 

Plaintiffs appealed. The Federal Circuit affirmed, finding no abuse 

of discretion in our weighing of the equities, especially considering the very

temporary nature of the prime vendor contracts. 791 Fed. App’x 179, 182 

(Fed. Cir. 2019). At the time of the circuit’s decision, only six months 

remained on the prime vendor contracts if the options went unexercised. Id. 

Given the possibility that the life of the prime vendor contracts might be 

extended, however, the court remanded the matter for this court to retain 

jurisdiction and consider whether the harms still favored the government 

should the options be exercised. Id. at 182-83. 

In a May 2020 status report, defendant reported that the VA chose not 

to exercise the prime vendor contract options and instead put four “shortterm bridge contracts in place to fill the gap until it can award the MSPV 2.0 

vendor contracts.” Joint Status Report at 1 (May 11, 2020) (ECF No. 72). 

The parties reported that the VA intended to award the new contracts in 

September. Id. Defendant and intervenors indicated that they believed that 

the protest should now be dismissed due to the expiration of the prior prime 

vendor contracts, while plaintiffs represented that their position was that the 

bridge contracts were an extension of the status quo in all but name only and 

that they continued to be harmed by the VA’s actions. Id. at 2-3. We held a 

status conference on July 29, 2020, at which the parties reiterated these
3

positions. We thus directed defendant to file a motion to dismiss. That 

motion (ECF No. 74) is now fully briefed; oral argument is unnecessary. 

Defendant’s point is that the modified contracts, which gave rise to 

the protest, are now at an end. The agency did not exercise the option 

periods because it intends to award new prime vendor contracts—we assume 

compliant with procurement statutes and regulations—well before the 

expiration of the option period (November 2021). In fact, the motion and 

attached affidavit of the VA’s Dr. Jamie Wilbur represent that the VA intends 

to award as soon as practicable after a General Accountability Office

(“GAO”) protest is resolved in October 2020. Because there was a gap

between the March expiration and the expected award of the new prime 

vendor contracts, the agency executed four short-term bridge contracts to 

meet its medical supply distribution needs in the interim. Defendant argues 

that the Federal Circuit’s concern that the harms might shift if the option 

periods were exercised has not and cannot materialize, and thus this protest 

is moot. If plaintiffs have an issue with the bridge contracts, defendant

argues, that the challenge must be a separate protest because those contracts 

are not the subject of this bid protest. We agree.

Plaintiffs’ response is, once again, that they continue to be harmed by 

the VA’s use of non-competitive measures to fill its medical supply needs. 

Whether denominated as bridge contracts or extensions of the prime vendor 

contracts, plaintiffs urge that the status quo is unchanged. Thus, the Federal

Circuit’s concern that the continued passage of time would, in effect, increase

the harm to plaintiffs beyond that contemplated by our prior order continues 

to be relevant, argue the protestors. They believe we should retain 

jurisdiction and reconsider our prior holding that an injunction was 

unmerited. Plaintiffs go further and raise the specter of a new legal issue 

resulting from the Defense Logistics Agency’s (“DLA”) announcement of 

future purchasing for the VA. Plaintiffs aver that some of that purchasing 

will cover work included in the prime vendor contracts and will be yet 

another dodge of competition requirements by the VA. Plaintiffs thus

conclude by asking the court to grant plaintiff’s motion for a preliminary 

injunction.1 

1

It is unclear whether this was stated in error at the end of plaintiff’s 

opposition or whether it was in fact a request to reactive plaintiffs’ 2018

request for preliminary relief (ECF No. 4). We denied that request on the 

record on July 12, 2018, and the case continued to resolution through motions 

for judgment on the administrative record. See Order Denying Mot. for 
4

Although we appreciate plaintiffs’ perspective that the harm to them 

continues unabated, the parties’ legal rights have changed. The contract

modifications that harmed plaintiffs are no longer at issue because the prime 

vendor contracts have expired of their own terms. Plaintiffs’ request that 

we consider the legality of the bridge contracts or even the alleged new 

actions taken, or soon to be taken, by DLA with respect to VA’s purchasing 

of medical supplies belies their point. The legality of those actions is

unrelated to our resolution of plaintiff’s 2018 bid protest complaint. We do 

not sit as an agency ombudsman reviewing each VA contracting decision as 

it happens. There is no agency action with respect to the prior prime vendor 

contracts that we could enjoin. The new short-term bridge contracts are 

separate vehicles and their legality is unrelated to the contract modifications 

that are the subject of this bid protest. In other words, no possibility of relief 

remains in this case. There is thus no longer a present case or controversy 

that would supply the necessary jurisdictional hook to keep plaintiffs’

complaint alive. In the absence of such, we must dismiss. See Arkham

Tech. Ltd. v. United States, 145 Fed. Cl. 751, 755 (2019) (denying plaintiff’s 

motion to reopen the judgment because no relief was available and thus no 

case or controversy remained). 

Accordingly, defendant’s motion to dismiss is granted.2 The Clerk 

of Court is directed to dismiss the complaint and to enter judgment 

accordingly. No costs. 

s/Eric G. Bruggink

Eric G. Bruggink

Senior Judge

Prelim. Inj. (July 13, 2018) (ECF No. 35). 

2 Earlier today, plaintiffs filed a request (ECF No. 77) to present 

supplemental briefing regarding a GAO report that, they allege, details 

continuing problems with the award of the new prime vendor contracts and 

states that the contracts will now not be awarded until early next year. No 

response is necessary, however, because, even if we assume these allegations

to be true, they would not change our holding that the court has lost 

jurisdiction due to the expiration of the originally-protested contracts. The 

motion is thus denied.