# ORIGINAL

3Jn tbe Wniteb $tates**~ourt** 

# ofjfeberal**~Iaitns** No. 17-1016C (Filed: January 12, 2018) 

### ********************************** ) 

# FILED JAN 122018 U.S

. COURT OF FEDERAL CLAIMS 

### PHILIPABRAHAM PREMYSLER, ) ) 

### Plaintiff, ) ) Claim ofbreach ofcontract; prize competitionunder§ 655 ofthe Energy Independence and SecurityActof2007; subjectmatterjurisdiction v. ) ) 

### UNITED ST ATES, ) ) Defendant. ) ) 

### ********************************** Philip Abraham Premysler,

### pro se, Davie, Florida.
Daniel B

.Volk, Trial Attorney, Commercial Litigation Branch, Civil Division, United States DepartmentofJustice, Washington, D.C., for defendant. With him on the briefs were Chad A. Readier, Principal Deputy Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C.


### OPINIONAND ORDER LETTOW, Judge. Plaintiff, Philip Premysler, seeks monetary and injunctivereliefin a suit againstthe United States for harms arising from its breach ofan implied conh·act allegedly arising from a prize competition. In May 2008, the United States Department ofEnergy ("DOE") issued the Bright Tomorrow Lighting Competition to encourage the development ofa LED replacement for the traditional 60-watt incandescent lightbulb. Thecompetition offered a $10,000,000 prizeto the first successful entrant. Mr. Premysler became aware ofand interested in the competition, and in January 2011, he began working with the New York State Energy Research and Development Authority ("New York DevelopmentAuthority") to obtainfunding to further develop a LED bulb respecting which he had previously submitted a patent application. Before he secured such funding, DOE announced that Philips LightNorthAmericahadwon the competition'sprize as the first successful enh·ant. Afterthe announcement, theNew York DevelopmentAuthority became skeptical ofthe viability ofMr

.Premysler's development projectbecause the prize had already beenawarded. Mr. Premysler and the Authority reached an impasse soon thereafter

- no funding was secured and Mr. Premysler never submitted an entryto the competition. Mr. Premysler filed the complaint in this case on July 27, 2017, alleging abreach ofan implied contract createdby the prize competition 

### i.e., a contract betweenthe United States and himselfas a United States citizen interested in participating in the competition. He asserts that DOE breached the implied contract by awarding the prize to Philips, an allegedly ineligible entrant. Pending before the court is the government's motion to dismiss for lack ofsubject matter jurisdictionpursuant to Rule 12(b)(l) ofthe Rules ofthe Court ofFederal Claims ("RCFC"). Def.'s Mot. to Dismiss ("Def.'s Mot."), ECFNo. 5. Mr. Premyslerhas responded in opposition to the government's motion. Pl.'s Opp'n, ECF No. 9. Forthe reason stated, the court grants the government's motion for dismissal. 

### BACKGROUND

Pursuantto Section 655 ofthe Energy Independence and Security Act of2007, Pub. L. No. 110-140, tit. VI, § 655, 121 Stat. 1492, 1700 (codified in relevant part at 42 U.S.C. § 17243), the Secretary ofDOE "shall establish and award Bright Tomorrow Lighting Prizes for solid state lighting" "[n]ot later than [one] year after December 19, 2007." 42 U.S.C. § 17243(a). On May 28, 2008, consistent withthe statute, DOE announced the Bright Tomorrow Lighting Competition. Comp!. Ex. 1 (announcement ofthe Competion), at 1, 3. The competitionwas "intendedto encourage development and deployment ofhighly energy efficient solid-state [lightbulbs] to replace several ofthe most common [lightbulbs] cuTI'ently used in the United States," particularly "60-watt A19 incandescent and PAR 38halogen incandescent [bulbs]." Comp!. Ex. 1, at 3. DOE was especially interested in the creation ofa viable LED replacement for the traditional 60-watt incandescentbulb. 

### See Comp!. 

### iii! 1-3; Comp!. Ex. 2 (Competition, rev. 1 ), at 3. The agency offered a $10,000,000 prize to the first entrant that succeeded in achieving that goal. Comp!. Ex. 1, at 3.
In January 2011, Mr. Premysler "submitted an application for funding to the New York State Energy Research and Development Authority for a projectto develop [a] LED lightbulb" along the lines ofthe lightbulb addressed in a patent application he filed May 15, 2007. Comp!. 

### ii 24. 1 The proposal that Mr. Premysler submitted along with his application to the Authority requested $300,191 in funding. Comp!. 

### ii 24. The goal ofthe proposed projectwas to generate a lightbulb suitable for submission in DOE's competition. The Authority expressed interest in "pursuing the proposal" and, on August 2, 2011, sentMr. Premysler an e-mail "thatincluded a statement ofwork." 

### See Comp!. 

### iii! 25-26. The very next day, however, DOE announced that Philips Light North Americahad won the competition prize of$10,000,000 for developing a LED 60-watt replacement bulb. 

### See Comp!. 

### iii! 2-3. Subsequently, the Authority sent Mr. Premysler a "revised statement ofwork" in October 2011, and Mr. Premysler metwith a representative ofthe Authority on February 24, 2012. Comp!. 

### iii! 28-29. At that meeting, the representative ofthe Authority "repeatedly questioned the viability of [Mr. Premysler's]

... project inview ofthe fact that the [competitionprize] had been awarded to Philips." Comp!. 

### ii 29 (emphasis omitted). Thereafter, Mr. Premysler and the Authority "reached an impasse" as to

1Based upon Mr. Premysler's patent application, U.S. PatentNo. 8,680,754 was ultimately issued on March 25, 2014. 

### See Comp!. Ex. 11.
2Mr. Premysler's funding application. Comp!. 

### if 29. Mr. Premysler never submitted an entry to the competition. See Def.'s Mot at2.

Mr. Premysler filed the complaint in this case onJuly 27, 2017, allegingthat Philips was an ineligible entrant and that byimproperly awarding Philips the competition prize DOE had contravened "an implied contract between the United States and

... United States citizens interested in fairly participating inthe competition." See Comp!. at 2. This breach harmed Mr. Premysler, in his view, because the improper awardto Philips led to "animpasse" with the New York Development Authority and prevented him from securing the funding necessary to further develop the lightbulb covered by his patent application and enterthe competition. See Comp!. 

### ifif 24-29. As a remedy for this harm, Mr. Premyslerrequests thatthe awardto Philips ofthe $10,000,000 prize be rescinded, thatthe prize be awarded to him "for [his] patented LED lightbulb,"thathebe compensated in the amount of$300,191, the amounthe "wouldhave received from [the New York Development Authority]," and any "other compensation

...the court may see fit" to grant him. Comp!. 

### ifif 31-34.
STANDARDS FORDECISION

In any action, the plaintiffhas the burden ofestablishingjurisdiction. Reynolds v. Army & AirForce Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Whenruling on a motionto dismiss for lack of jurisdiction,the court must "accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor oftheplaintiff." Trusted Integration, Inc. v. UnitedStates, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The leniency afforded to apro se plaintiffwith respectto formalities does notrelieve such a litigant from satisfying jurisdictional requirements. Kelley v. Secretary, UnitedStates Dep 't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).
TheTucker Act provides this court withjurisdictionover "any express or implied contract withthe United States." 28 U.S.C. § 149l(a)(l). There is a low bar for establishing subject matterjurisdiction over such contract claims. See Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) ("[J]urisdictionunder [the Tucker Act] requires no more than a non-frivolous a/legation ofacontract with the government.") (emphasis in original) (citing Lewis v. UnitedStates, 70 F.3d 597, 602, 604 (Fed. Cir. 1995); Gould, Inc. v. UnitedStates, 67 F.3d 925, 929-30 (Fed. Cir. 1995)). "The general rule is that so long as the plaintiffs have made
a non-frivolous claim that they are entitled to money from the United States

... because they have a contract right, this court hasjurisdictionto settle the dispute."Anchor TankLines, LLCv. UnitedStates, 127 Fed. Cl. 484, 493 (2016) (citingAdarbe v. UnitedStates, 58 Fed. Cl. 707, 714 (2003)) (additional citations and internal quotation marks omitted).
ANALYSIS

Mr. Premysler alleges thatthe competition created an implied contract between DOE and him, as a U.S. citizen interested in enteringthe competition. See Comp!. at 2 ("[The competition] established an implied contract betweenthe United States and

...United States citizens interested infairly participating inthe competition

... [,]including [Mr. Premysler]."). "The general requirements for a binding contract withthe United States are identical for both

3express and implied contracts. The party alleging a contract must show a mutual intent to contract including an offer, an acceptance, and consideration." Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997) (citations omitted). Moreover, "[i]tis settled law that entrants to a contest are bound by

... a contract." Frankel v. UnitedStates, 122 Fed. Cl. 287, 290 (2015) ("Frankel!"), ajj"d, 842 F.3d 1246 (Fed. Cir. 2016) ("Frankel II"). "(C]ouiis have long interpreted announcement ofa contest as a contractual offerby a sponsor and entry into the contest by a contestant as acceptance ofthat offer." Frankel II, 842 F.3d at 1250 (citations omitted).
The government asserts that no contract, implied or otherwise, could have been formed "because Mr. Premysler never submitted an entry for the competition," citingFrankel IIfor that proposition. Def.'s Mot. at 3-4. Mr. Premysler claims thatthe instant case is distinguishable from Frankel IIbecause, unlike the "Robocall Challenge" contest at issue there, the DOE competition had "no fixed deadline" for submission ofentries. Pl.'s Opp'n at 1 (emphasis omitted); see also Frankel II, 842 F.3d at 1248-49. DOE's rules for the competition stated that it "w[ould] remain open until one winner

... and two additional qualifiers are declared in each category, or until 24 months have elapsed since the winning award in a given category, whichever comes first." Comp!. Ex. 2, at 8-9. Mr Premysler claims that this case should be treated differently than Frankel IIbecause here the DOE's improper award to Philips "prematurely cut off' Mr. Premysler's "opportunity

...to submit an entry and win the monetary prize." Pl.'s Opp'n at 1 (emphasis omitted).
Mr. Premysler's argument is ultimately unconvincing. This court can only exercise jurisdiction where there is at least a non-frivolous allegation ofa contractwiththe government. See Engage Learning, 660 F.3d at 1353. Respecting his assertion thathe entered into an implied contractwith the United States, see Comp!. at 2, Mr. Premysler fails to allege that he ever submitted an entry to the competition and thereby accepted the government's open offer. Def.'s Mot. at 2; see also Def.'s Reply in Support oflts Mot. to Dismiss ("Def.'s Reply") at 1, ECF No. 10. As noted previously, 

### it is an entry to an announced competition that functions as an acceptance, and an expression ofinterest in or intent to enter the competition is insufficient. See Frankel II, 842 F.3d at 1250. Absent such an acceptance, there can be no contract and, a fortiori, there is nojurisdiction. Even ifthe nature ofthe deadline were relevant, the facts as alleged by Mr. Premysler do not indicate that the timing ofDOE's deadline is whatprevented him from submitting an entry. Rather, it was his inability to secure funding to further develop the lightbulb covered by his patent application. Underthe facts set out in his complaint, Mr. Premyslerhad two years, i.e., until August 3, 2013, to submit his entry and acceptthe government's offer after DOE announced the award to Phillps as the winner ofthe competition. See**Comp!.~** 3; Comp!. Ex. 2, at 8-9. He failed to do so.
Intheir briefing, the parties have touched on whetherthe DOE competition can fairly be understood as a procurement enabling Mr. Premysler to challenge the award ofthe competition prize to Philips as a bid protest "in connectionwith a procurement or a proposedprocurement." 28 U.S.C. § 149l(b)(l). In Frankel II, however, the Federal Circuit determined that Congress viewed prize competitions as distinct from "[procurement] contracts, grants, and cooperative agreements," and therefore contracts relating to the Robocall Challenge contest were not procurement contracts. Frankel II, 842 F.3d at 1251(applying15 U.S.C. § 3719, the general

4federal statute pertinent to federal prize competitions). "Whether a government contract is a procurement contract is a legal question ofstatutory interpretation." Frankel II, 842 F.3d at 1250 (citing Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378 (Fed. Cir. 2006)). The only different statutory element in this case is derived from the Energy Independence and Security Act of2007, and Section 655 ofthe Act contains no language that indicates Congress' intentthat the DOE competition be treated differently than any federal prize competition conducted under 15 U.S.C. 

### § 3719. Therefore the Federal Circuit's holding in Frankel IIapplies with equal force here. The DOE competition cannot be fairly considered a procurement, andthis court does not have jurisdictionover Mr. Premysler's challenge to awards made in connection with it.
CONCLUSION

For the reasons stated, the government's motion to dismiss Mr. Premysler's complaint is GRANTED. The clerk shall enterjudgment in accord with this disposition.

No costs.
It is so ORDERED.

# c~ Judge

5