# In the United States Court of Federal Claims

No. 16

- 1023 C (Filed Decem ber 1 3 , 2016)
NOT FOR PUBLICATION

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

*

*
FIELD TRAINING SUPPORT *

SERVICES

, *

* Plaintiff, *

*

v. *

* THE UNITED STATES, *

*

Defendant

, *

and *

* QUADRANT TRAINING SO LUTIONS

, *

*

Defendant

- Intervenor. *

*

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

ORDER

This case is a pre

- award bid protest challenging a determination made by the
Small Business Administration’s (SBA) Office of Hearing s and Appeals (OHA) that plaintiff, Field Training Support Services (FTSS), was not a small business eligible
to compete for a contract awa rd under the portion of a multiple award contract

solicitation that was set aside for small businesses. In its decision, OHA determined that plaintiff, which is a joint venture, was not a small business because one of its members (LB&B Associates ) is a large business . This decision, which reversed a finding by the SBA’s Area Office, was based on a determination that plaintiff did not qualify for an exemption from the affiliation rules available to certain joint

- ventures involving one small and one large business which have an approved “mentor / protégé” relationship. See 13 C.F.R § 124.520 ( rules for the SBA

mentor/ protégé program)

. All of the requirements for this exemption were found to

be met save one: OHA determined that there was no evidence that SBA had approved the continuation of the mentor / protégée agreement between the members of the joint venture for the relevant year, namely 2014

– 15. See Id. § 124.520 (e)(4)- 2

- (2015) (stating that SBA will annually review mentor

- protégé agreements to determine if they should be renewed for another year). The Area Office determined

that , based on the evidence before it, the a pproval had occurred . But OHA, based on the same evidence, reversed th at determination . Plaintiff responded with th is bid protest

.

The government has moved to dismiss the protest under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) on grounds of mootness

or , in the alternative

, t o remand this matter to OHA under 28 U.S.C. § 1491(a)(2)

, because OHA wants to reconsider its decision. Def.’s Mot. to Dismiss, or in the Alternative, for Remand (Def.’s Mot.) at 1. † Reconsideration is sought because the government found in the record a document that was not addre ssed by the parties or OHA, but may be relevant to the issue of whether continuation of the

mentor / protégé agreement had been approved for the relevant time period

. Id. at

3

– 4. Plaintiff opposes dismissal of the case , but not a re mand. Pl.’s Resp. to Def.’s Mot. (Pl.’s Resp.) at 1. I ntervenor opposes both alternatives

. Intervenor’s Opp ’ n to
Def.’s Mot. (Intervenor’s Opp’n) at 1

.

Plaintiff ’s protest is not moot, and this is made clear by the government’s

own motion

--- in which it represents that OHA will reconsider the matter and “potentially issue a new decision.” Def.’s Mot. at 6. For a case to be moot, as the government also notes, id.

, the relief sought must have already been granted, or the
court must find that “the questions originally in c on troversy between the parties ar e no longer at issu e.” Chapman Law Firm Co. v. United States , 490 F.3d 934, 9 39

– 4 40 (Fed. Cir. 2007) . This is not the case here given that, as things now stand,
OHA’s deter mination in this matter remains

--- until its decision is revoked or
modified

--- that plaintiff is not a small business and thus is excluded from the competition

. Unlike a bid protest challenging the evaluation of proposals, for which a reevaluation is the standard relief, in this case plaintiff is not seeking a new decision from OHA. Rather, plaintiff wants the decision declared invalid and reversed. Compl. at 24 . While OHA’s reconsideration of the matter might result in a new decision sustaining the Area Office determination and rendering this case

moot, it has not happened yet.

G iven OHA’s desire to reconsider its decision, however, and the fact that a

favorable decision would make this protest moot , remand seems appropriate

. Intervenor objects to a remand on three grounds. First, it asse r ts that OHA no longer ha s jurisdiction over this matter, a rguing that such jurisdiction termina ted

20 days after the entry of the initial decision. Intervenor’s Opp’n at 3

– 4 (citing 13

† Mootness presents a question of subject

- matter jurisdiction and is thus properly the subject of an RCFC 12(b)(1) motion. CBY Design Builders v. United States , 105 Fed. Cl. 303, 328

– 29 (2012); Technical Innovation, Inc. v. United States , 93 Fed. Cl. 276, 278 (2010).- 3

- C.F.R. § 134.227 (c) )

. But the regulation it relies upon imposes a 20

- day limit on

reconsideration motions of parties , not on reconsiderations done on OHA’s own

initiative. See 13 C.F.R. § 134.227(c). In any event, such a regulation cannot limit our court’s power to remand appropriate matters, see 28 U.S.C. § 1491(a)(2), which may be exercised at the request of the gov ernment

--- even when reconsideration is not based on an admission of error, see Bias v. United States , 124 Fed. Cl. 663, 667 (2016) (citing SKF USA Inc. United States , 254 F.3d 1022, 1029 (Fed. Cir. 2 001)). Second, intervenor a rgues that a remand would be futile , as the document OHA wishes to consider was in the record when three previous size determinations went against plaintiff ’s members. Intervenor’s Opp’n at 5

– 6

. But reconsideration is sought because no party brought this document t o OHA’s attention, Def.’s Reply at 4, and plaintiff apparently was unaware of its existence in the SBA’s records, Pl.’s Reply at 5. Intervenor’s final argument against a remand was based on a misunderstanding of the government’s stay of contract award

. S ee Intervenor’s Opp’n at 6

– 7 . Defendant has clarified that the stay would remain in place while

OHA reconsidered its d ecision, Def.’s Reply at 5, and the Court presumes that no contracts will be awarded until this protest is resolved.

For the foregoing reasons, defendant’s motion to dismiss the protest as moot

is DENIED and its motion for a remand to the SBA’s OHA is GRANTED

. Pursuant to R CFC 52.2(b), the Court provides the following directions to the parties

on remand:

(1) The remand period shall terminate on Monday

, February 1 3 , 201 7 , and proceedings in this case are STAYED until that date. If the SBA’s Office of Hearing s and Appeals has not responded on or by Monday

, February 1 3

, 201 7

, the parties shall follow the procedures set forth in RCFC 52.2(d).

(2) The SBA’s Office of Hearing s and Appeals s hall r econsider whether FTSS was an approved mentor/protégé entity at the t ime it submitted a proposal on

solicitation number N61340

- 15

- R

- 0052 in light of a document in the record entitled “8(a) Annual Review R equirements List” and date d July
24, 2015, and any other arguments or evidence which OHA decides to

consider.

( 3 ) When proceedings before the SBA’s Office of Hearing s and Appeals have concluded, OHA shall forward two copies of its decision to the clerk of the Court of Federal Claims pursuant to RCFC 52.2(e). Within thirty (30) days of the filing of the SBA’s response , the parties shall then file the notices required by RCFC 52.2( f)(1).

The Clerk is directed to serve a certified copy of this order on the SBA’s Office of Hearing s and Appeals at: Office of Hearing s and Appeals

, U.S. Small Business

Administration

, 409 Third Street, SW

, Washington, DC 20416

.- 4

- IT IS SO ORDERED.

s/ Victor J. Wolski
VICTOR J. WOLSKI Judge