In the United States Court of Federal Claims

No. 19-1668C

(Filed: December 17, 2019)

NOT FOR PUBLICATION

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LAX ELECTRONICS, INC.

d/b/a AUTOMATIC CONNECTOR,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

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OPINION

This is a challenge to the Defense Logistics Agency’s (“DLA”)

decision to remove plaintiff from its Qualified Parts List (“QPL”) for certain 

electronic connectors that plaintiff manufactures. Not being on the list, 

plaintiff may not respond to solicitations from DOD entities for these parts 

nor may other contractors offer to the government plaintiff’s parts. 

Defendant has moved to dismiss for lack of jurisdiction on the basis that the 

DLA’s removal of plaintiff from the QPL is not an action taken in connection 

with a procurement or proposed procurement, and thus there is no bid protest 

jurisdiction under 28 U.S.C. § 1491(b) (2012) over this claim. We agree in 

part and transfer Count I and dismiss Count II.

BACKGROUND

Plaintiff, LAX Electronics, Inc., doing business as Automatic 

Connector, supplies electronic connectors to contractors and directly to the 

government. For over 50 years, plaintiff has had parts listed on DLA’s QPL. 

In June 2019, a DLA Auditor, Sonya Taylor, performed an audit of plaintiff’s 

facility. The resulting audit report identified several deficiencies relating 

primarily to a recently-issued DLA standard for electric and fiber optic parts 

(MIL-STD-790). Ms. Taylor’s report further states that corrective action for 

Pre-award bid protest; Motion 

to dismiss; Jurisdiction; 

Standing; Failure to state a 

claim; Qualified parts list; 

FAR § 9.205; Transfer of 

complaint.
2

the identified problems was required within 30 days and that the corrections 

had to then be accepted by DLA. DLA then sent a letter, dated July 2, 2019, 

which ordered plaintiff to stop shipment and production of the connectors 

due to the deficiencies noted in the audit report. Plaintiff responded to DLA 

with its Corrective Action Reports for the noted deficiencies on August 6, 

2019. 

Since August, plaintiff alleges that it has further attempted to discuss 

the matter with DLA on numerous occasions, but DLA has not responded. 

Instead, on August 13, 2019, DLA sent a notice to plaintiff that LAX may be 

required to issue a notice to the Government-Industry Data Exchange 

Program (“GIDEP”) for the accused parts. Plaintiff notes that the letter does 

not mention LAX’s CARs nor its attempts to contact DLA regarding the 

audit report. 

Automatic responded two days later by letter, asserting that no GIDEP 

notice was necessary nor was any required by regulation and that there are in 

fact no problems with plaintiff’s parts. On September 12, 2019, DLA 

removed plaintiff from the QPL due to repeated program violations and 

plaintiff’s refusal to issue a GIDEP notice. The practical import of which, 

according to plaintiff, is that it will now be forced to requalify all of its parts 

at significant and prohibitive cost to it. 

On October 9, 2019, DLA sent a letter to LAX, notifying plaintiff of 

the government’s intent to issue a GIDEP alert by the end of the month to 

alert government and industry members of plaintiff’s nonconformance to 

military specifications. Plaintiff’s counsel contacted counsel for DLA and 

requested that no GIDEP action be taken pending a protest brought by 

plaintiff. That request was rebuffed.

On October 28, 2019, plaintiff filed suit here. Along with its 

complaint, it filed a motion for a temporary restraining order and preliminary 

injunction. We held a status conference on November 1, 2019, at which the 

issue of jurisdiction was raised by defendant. We thus set a schedule for 

briefing on a motion to dismiss prior to further action on the merits and 

plaintiff’s request for preliminary relief. 

As part of that schedule, we afforded plaintiff an opportunity to 

supplement its motion for preliminary relief in order to identify a 

procurement or procurements that the protested action is in connection with, 

as required by the statute. See 28 U.S.C. § 1491(b) (granting jurisdiction 
3

over challenges to illegal agency action “in connection with a procurement 

or a proposed procurement”) It did so primarily in the form of an affidavit 

from its President, Pierre Lax, which identified two outstanding solicitations 

for parts that plaintiff offers but can no longer sell to the government after 

being removed from the QPL, one closing on November 12, 2019 and the 

other on November 15, 2019. Copies of those solicitations were attached to 

the affidavit. Mr. Lax additionally names three similar solicitations that 

closed after the filing of the protest and before the date of the affidavit 

(November 6, 2019).

Defendant filed its motion to dismiss on November 12, 2019. On 

November 21, 2019, plaintiff filed both a response to the motion and an 

amended complaint. Because an amended complaint would normally moot 

a pending motion to dismiss, we held a status conference on November 25, 

2019, at which the parties agreed that defendant’s motion was not moot and 

to keep the briefing schedule as previously set. The motion is now fully 

briefed, and oral argument was held on December 12, 2019.

DISCUSSION

This court has “jurisdiction 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 any alleged violation of statute or 

regulation in connection with a procurement or a proposed procurement.” 28 

U.S.C. § 1491(b)(1). The issue is whether the alleged agency action is 

properly considered “in connection with a procurement or a proposed 

procurement.” Jurisdiction hangs in the balance. 

The complaint, as amended, identifies five DLA solicitations “that 

were open as of October 28, 2019.” Am. Compl. ¶ 25. The closing dates 

range from October 28, 2019 to November 14, 2019. Id. The amended 

complaint further alleges that plaintiff would have been a bidder for these 

solicitations had it not been for DLA’s improper removal of LAX from the 

QPL. Plaintiff goes on to allege that DLA failed to follow its own 

procedures, Department of Defense Manual (“DoDM”) 4120.24, Enclosure 

14, Sections 11-12 in issuing the stop shipment order, removing plaintiff 

from the QPL, and threatening to issue a GIDEP alert. The amended 

complaint adds the allegation that DLA violated Federal Acquisition 

Regulation (“FAR”) § 9.205(a) by failing to give DLA sufficient time to 

qualify its products prior to award and failed to give proper notice of its intent 

to establish a qualification requirement as required by the regulation. 
4

Plaintiff seeks an injunction to prevent DLA from issuing a GIDEP alert and 

to prevent DLA from issuing any more contracts for parts that plaintiff had 

listed on the QPL, and it seeks a declaration that DLA cannot legally establish 

a qualification requirement and exclude plaintiff from the QPL without 

providing a response to LAX’s CARs.

Defendant argues that these allegations are insufficient to establish 

jurisdiction in this court because plaintiff’s removal from the QPL was not 

taken “in connection with a procurement” and because plaintiff lacks 

standing to challenge any current and future solicitations due to it being 

unqualified to bid on them. Factually, defendant identifies a DLA audit, 

unconnected to a specific procurement or planned procurement, as the 

precipitating event to plaintiff’s removal from the list. Plaintiff does not 

dispute the point. 

Defendant relies on this court’s and the Federal Circuit’s decisions in 

Geiler/Schrudde & Zimmerman v. United States. In Geiler, the protestor

challenged the award of a contract to upgrade the chiller at a Veterans 

Administration (“VA”) hospital in Kentucky. The solicitation was set aside 

for service-disabled veteran owned small businesses (“SDVOSBs”). 133 

Fed. Cl. 578, 582 (2017). The government moved to dismiss on the basis 

that the plaintiff had lost its SDVOSB status during the pendency of the 

protest due to the death of its principle, Mr. Geiler, meaning that the company 

no longer had standing to bring suit because it could not otherwise be 

awarded the contract. Id. This argument triggered the plaintiff to file a 

supplemental complaint in which it alleged that revocation of its SDVOSB 

status was irrational and illegal (lack of due process). Id. at 583. 

Judge Smith denied the motion as to the original grounds of the protest 

because standing is determined at the time of filing of suit, but he dismissed 

plaintiff’s supplemental complaint, holding that the decision to revoke the 

plaintiff’s status was not taken in connection with the subject procurement, 

or any other, and was thus outside of the court’s purview under § 1491(b)(1). 

Id. at 584. Plaintiff appealed that dismissal. The Federal Circuit affirmed, 

finding that the revocation of SDVOSB status was not an action taken in 

connection with a procurement or proposed procurement. 743 Fed. App’x 

974, 976-77 (Fed. Cir. 2018). The circuit court first noted that the loss of 

status did not affect VA’s decision to whom it would award the contract. Id.

at 977. Plaintiff argued, however, that all future procurements were at issue 

because, lacking status, it could no longer bid on any work set aside for 

SDVOSB contractors. The court found that link too tenuous. Although 
5

recognizing the broad scope of bid protest jurisdiction under § 1491(b)(1), 

the Federal Circuit found that the possibility that an agency action would 

affect future procurements did not “establish that the violation ‘clearly 

affected’ a contract’s award or performance.” Id. (quoting Ramcor Servs. 

Group, Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999)). 

The court also found support in the statute’s requirement that a protest 

be brought by an “interested party.” Id. at 977-78. The requirement that an 

interested party have a direct economic interest in the outcome of a particular 

procurement suggests that bid protest jurisdiction does not cover allegations 

concerning “unidentified pending and future procurements.” Id. at 978 

(citing Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 

1366, 1370 (Fed. Cir. 2002)).

Although plaintiff here has identified specific solicitations that it has 

been prevented from bidding on after its removal from the QPL, we agree 

with defendant that the removal from the list was not an action taken in 

connection with a procurement or a proposed procurement. The removal 

came about after an audit that revealed a paperwork problem with the 

sourcing of LAX’s parts. The audit was not performed in connection with 

any of the listed procurements from the amended complaint nor any others; 

according to plaintiff, in fact, it was the result of a several year dispute with 

DLA’s auditor, Ms. Taylor.1

 See Am. Compl. ¶¶ 8, 10.

The present case is unlike that relied on by plaintiff in its opposition, 

SAI Industries Corp. v. United States, in which the court exercised 

jurisdiction over a challenge to the disqualification of the protestor from 

receiving a contract to produce aircraft tailpipes because it was not a 

prequalified source. 60 Fed. Cl. 731, 733 (2004). As a preliminary matter, 

as defendant points out, the issue of jurisdiction was not raised nor treated by 

the court. More importantly, the case dealt with the pre-approval process for 

a specific solicitation not a standing QPL. The facts at issue revolved around 

a solicitation, unlike here. We find missing in the present case the necessary 

factual connection between the alleged impropriety and a procurement or 

proposed procurement. Count I then must be dismissed for lack of 

jurisdiction. 

 1 Further, as provided by plaintiff, several of the solicitations since LAX’s 

disqualification have asked for plaintiff’s parts by name. This suggests that 

the procuring activity at DLA certainly was not in cahoots with Ms. Taylor 

to deprive LAX of a chance to bid on a specific procurement. 
6

Plaintiff, however, points out that its amended complaint, in Count II,

also alleges a regulatory violation in connection with the five solicitations 

that it has identified. Plaintiff cites to FAR § 9.205, which states that an 

agency must, “when possible, give sufficient time to arrange for qualification 

before award” if and when “an agency determines that a qualification 

requirement is necessary.” 48 C.F.R. § 9.205(a) (2019). Reading the 

complaint generously, we construe the argument to be that, by not responding 

to plaintiffs CARs and booting it from the QPL, the agency has failed to give 

LAX “sufficient time to arrange for qualification before award” as to the five 

identified solicitations. Although there is no merit to the claim, we have 

jurisdiction over it. 

Count II of the amended complaint puts at issue a regulatory provision 

that plainly applies to public procurements, and plaintiff has identified five 

solicitations, and now presumably five awards, that it argues were issued 

without affording plaintiff “sufficient time to arrange for qualification.” Id. 

The allegation draws a sufficient nexus between an asserted violation of a 

procurement regulation and five specific procurements.2 Thus, Count II is 

within the court’s bid protest jurisdiction, but that is as far as it goes.

Although within the court’s broad protest jurisdiction, the allegation 

is not otherwise well-founded. Plaintiff argues that the agency violated FAR 

§ 9.205 by issuing the solicitations without first having given plaintiff

sufficient notice and more of an opportunity to correct the problems listed in 

the audit report. 

We begin with the obvious. Plaintiff was, until it was removed from 

the QPL, qualified to sell those parts to the government. It is thus the removal 

of plaintiff’s parts from the qualified list—the bona fides of which are not 

properly before us—that, according to plaintiff, triggered an obligation to 

apply FAR § 9.205 and to halt purchasing pending a new notice that a 

 2 It is no answer, as defendant posits, that plaintiff lacks standing due to it 

having been bounced from the qualified list. Count II alleges that plaintiff 

was owed an opportunity to requalify before award of the five procurements 

identified in the complaint. Standing is determined at the time of the 

complaint, when these procurements were still not completed. It has thus 

alleged a non-trivial competitive injury in a pre-award context, but for which 

plaintiff would have competed for the award. In these circumstances, that is 

enough to establish standing. 
7

qualification to bid would be applied and to afford time for the ousted offeror 

to requalify. This reading would flip the purpose of these provisions on its 

head. The obligations on agencies are triggered by the imposition of a new 

qualification. That is not what happened here. Rather, an experienced and 

previously qualified bidder was, independent of any solicitation or new need 

of the agency, removed from the QPL. DLA’s need for qualified parts was 

unchanged and nothing new imposed. Plaintiff’s reading would place an 

untenable burden on agencies; one that the FAR specifically disclaims.

Subpart 9.202 lays out what an agency must do when it wants to 

impose a qualification on bidders. Although the agency must issue a 

justification and afford fair opportunity for bidders to become qualified, 

9.202(e) states that “a contracting officer need not delay a proposed award in 

order to provide a potential offeror with an opportunity to demonstrate its 

ability to meet the standards specified for qualification.” 48 C.F.R. § 

9.202(e). Plaintiff’s argument is thus a nonstarter and need not delay the 

entry of judgment.3

 We thus find it appropriate to dismiss Count II for failure 

to state a claim. See Constant v. United States, 929 F.2d 654, 657 (Fed. Cir. 

1991) (holding that a sua sponte dismissal for failure to state a claim was not 

a denial of due process because the claim was “untenable as a matter of law” 

and thus “no additional proceedings could have enable [plaintiff] to prove 

any set of facts entitling him to relief”). 

Although Count II fails to state a claim for which this court can afford 

relief and Count I is miscast as a bid protest, the challenge to plaintiff’s 

removal from the QPL by DLA appears, on its face, to be subject to review 

as final agency action under the Administrative Procedures Act, jurisdiction 

over which belongs to the district courts. Defendant’s motion posits the 

same. At the conclusion of oral argument, plaintiff made an alternative 

request that the court transfer its complaint to the Eastern District of New 

York should we find jurisdiction in this court wanting. 28 U.S.C. § 1631 

gives authority to federal courts to transfer actions in order to cure a want of 

jurisdiction if the transferring court finds it “to be in the interest of justice.” 

We find a transfer appropriate here. 

 3 The argument that DLA owed plaintiff, and presumably others, a notice of 

the imposition of a qualification is likewise unavailing. Plaintiff has been on 

the QPL for 50 years. Nothing new was imposed on offerors when LAX was 

removed from the list nor has plaintiff pled any independent prejudice to it 

from the alleged lack of notice. 
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CONCLUSION

Because jurisdiction over Count I is appropriate only in district court

and because Count II fails to state a claim, the Clerk of Court is ordered to 

do the following:

1. transfer Count I to the United States District Court for the Eastern 

District of New York; 

2. dismiss Count II for failure to state a claim;

3. enter judgment accordingly.4

No costs. 

s/Eric G. Bruggink 

ERIC G. BRUGGINK

Senior Judge

 4 Plaintiff’s motion for preliminary relief (ECF No. 2) is denied as moot.