United States Court of Appeals 

for the Federal Circuit ______________________ 

VAS REALTY, LLC,

Plaintiff-Appellant

v.

UNITED STATES, CAPE MORAINE, LLC,

Defendants-Appellees

______________________ 

2021-1962

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:20-cv-01417-LKG, Judge Lydia Kay Griggsby.

______________________ 

Decided: February 18, 2022

______________________ 

ANUJ VOHRA, Crowell & Moring LLP, Washington, DC, 

argued for plaintiff-appellant. Also represented by 

ALEXANDRA BARBEE-GARRETT, CHRISTIAN CURRAN, MONICA 

ROSE STERLING. 

 STEPHEN CARL TOSINI, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. 

Also represented by BRIAN M. BOYNTON, MARTIN F.

HOCKEY, JR., DOUGLAS K. MICKLE; NANCY ELLEN 

OCONNELL, United States General Services Administration, Boston, MA. 

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2 VAS REALTY, LLC v. US

 STEVEN D. GORDON, Holland & Knight, LLP, Washington, DC, argued for defendant-appellee Cape Moraine, 

LLC. Also represented by HILLARY FREUND, GORDON 

GRIFFIN, ROBERT MACKICHAN, JR. 

 ______________________ 

Before NEWMAN, DYK, and REYNA, Circuit Judges.

REYNA, Circuit Judge. 

VAS Realty, LLC appeals a decision by the U.S. Court 

of Federal Claims dismissing VAS’s bid protest for lack of 

standing on the ground that VAS failed to show it has a 

substantial chance of winning the lease at issue. If VAS’s 

protest proves successful, VAS would have an opportunity 

to participate in any new procurement. We have previously held that under such circumstances, a protester has 

a substantial chance of winning the award for standing 

purposes. This precedent applies in this case. We therefore hold that the Court of Federal Claims erred when it 

dismissed VAS’s protest for lack of standing. We reverse

the Court of Federal Claims’ decision dismissing VAS’s protest for lack of standing and remand for further proceedings. 

BACKGROUND

Prior to 2017, VAS Realty, LLC (“VAS”) leased a facility to the government that housed the Department of 

Homeland Security, Immigration and Customs Enforcement (“ICE”) in Warwick, Rhode Island. On September 18, 

2017, the General Services Administration (“GSA”) issued 

a request for lease proposals (“RLP”) for a facility to house 

ICE in Rhode Island. J.A. 10049. The lease term was initially 10 years, 7 years firm. Id. The RLP required a 

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VAS REALTY, LLC v. US 3

building with 20,579 ABOA1 square feet of usable office 

space. Id. The RLP also required 130 onsite parking 

spaces. Id. According to the RLP, GSA would award a contract to the lowest-priced, technically acceptable offer. 

J.A. 10061. 

On October 11, 2017, the due date for initial proposals,

three entities submitted proposals: VAS, Raith Capital Investors, LLC (“Raith”), and a third offeror that later withdrew its proposal. J.A. 10565. VAS offered the same 

building that ICE was already occupying. In Section II of 

the RLP response form, VAS indicated that the building 

consisted of 26,087 ABOA square feet, 30,000 rentable 

square feet, and 130 parking spots. J.A. 10157. The building therefore had 5,508 ABOA square feet beyond what the 

RLP required. 

On October 31, 2017, GSA sent VAS a deficiency letter. 

GSA indicated that the information VAS had provided in 

Section II with respect to ABOA square feet and rentable 

square feet (Boxes 9 and 10, respectively) was “incomplete 

[and] incorrect.” J.A. 10201. GSA asked VAS to revise its 

proposal by “[p]lac[ing] the maximum amount noted in 

RLP Para 1.02 (20,579 ABOA)” in Box 9, and to “correct the 

offered [rentable square feet] amount” in Box 10. Id. VAS 

submitted a revised proposal on November 7, 2017, that 

changed the office area’s ABOA square feet (Box 9) to 

20,579 and reduced the rentable square feet figure 

(Box 10). J.A. 10203–04, 10214. VAS explained that the 

extra space of 5,508 square feet would be rendered unmarketable so it was “still willing to allow Government use of 

the unmarketable space as it deems acceptable.” 

J.A. 10205. 

1 “ABOA” refers to American National Standards Institute/Building Owners and Managers Association 

(“ANSI/BOMA”) Office Area. 

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4 VAS REALTY, LLC v. US

On November 21, 2017, GSA asked VAS and Raith to 

submit final proposal revisions by December 1, 2017. 

J.A. 10565. However, on the due date, GSA notified both 

offerors that it was canceling the request for final proposal 

revisions, pausing negotiations, and revising the RLP requirements. Id. Ten days later, the GSA Contracting Officer, Mark Shinto, toured VAS’s offered property. J.A. 50. 

Mr. Shinto allegedly suggested to VAS that it could include 

the 5,508 ABOA square feet of unmarketable office space 

in its proposal. Id.; J.A. 10275. 

GSA issued an amendment to the RLP on February 18, 

2018, that modified the lease term to 15 years, 10 years 

firm. J.A. 10028, 10565. GSA reopened the competition 

and requested new final proposals due March 9, 2018. 

J.A. 10273, 10565. VAS submitted its final proposal on the 

due date.2 J.A. 10275. VAS explained that “[a]t the suggestion of the Contracting Officer made during a meeting 

held on 11 December 2017[,] we have added the cost (shell 

rate) for 5,508 ABOA square feet of unmarketable space to 

the proposed rental rate and a 5[-]year option.” Id. Later 

that month, Mr. Shinto informed Cape Moraine, LLC that 

VAS was the only bidder in the procurement and invited 

Cape Moraine to submit a proposal even though the March 

9, 2018 proposal submission deadline had passed. 

J.A. 12132. Cape Moraine accepted Mr. Shinto’s invitation 

and submitted a proposal on April 20, 2018. 

On July 9, 2018, GSA again amended the RLP to reduce the number of parking spots required and requested 

new final proposals. J.A. 10030. That same date, Mr. 

Shinto sent a deficiency letter to VAS. J.A. 10362–63. The 

letter stated that VAS’s current offer was outside of the 

competitive negotiation range and asked VAS to revise its 

offer to a more competitive one. J.A. 10362. The letter did 

2 On this same date, Raith notified GSA that it was 

withdrawing its bid. J.A. 10565–66. 

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VAS REALTY, LLC v. US 5

not, however, specifically mention the 5,508 ABOA square 

feet as a problem that needed correction. See id. 

VAS submitted a revised proposal on July 17, 2018, 

which continued to include the unmarketable space of 

5,508 ABOA square feet. J.A. 10367. The cover letter to

VAS’s revised proposal stated that “annual fees for the 

sally port, outside storage, and the ABOA rate for any 

space that is deemed unmarketable have been noted” and 

that “these fees and unmarketable rate have not been incorporated into the shell rate in Section II, Boxes 16d and 

16e.” J.A. 10364. Boxes 16d and 16e, respectively, corresponded to annual rent per rentable square foot and to annual rent per ABOA square foot. J.A. 10214. 

On August 16, 2018, GSA issued a memorandum 

awarding the contract to Cape Moraine based on its determination that Cape Moraine had submitted the lowestpriced, technically acceptable offer. J.A. 10510–12. GSA 

further explained that the VAS proposal’s “Present Value 

Rate” of $44.40 per ABOA square foot was outside the competition range. J.A. 10507. In October 2018, Cape Moraine 

and GSA signed a lease to house ICE at Cape Moraine’s 

offered property. Shortly thereafter, GSA notified VAS 

that its proposal had been unsuccessful, and that GSA had 

awarded the contract to Cape Moraine. J.A. 10514. 

VAS then submitted a request for post-award debriefing. J.A. 10516. By November 26, 2018, GSA had not provided VAS with a debriefing, and so VAS filed a pro se 

protest with the U.S. Government Accountability Office 

(“GAO”). A month later, GAO dismissed VAS’s protest 

without reaching the merits. 

Over a year later, on March 19, 2020, the GSA Office of 

the Inspector General (“OIG”) issued a report on the procurement. J.A. 10564. The report stated that it had received, via its hotline, a complaint about the procurement. 

Id. The report stated that the OIG had found that the procurement was “significantly flawed, resulting in an 

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6 VAS REALTY, LLC v. US

improper lease award.” Id. Specifically, the OIG stated 

that GSA accepted a late proposal from Cape Moraine; used 

a calculation of the lease’s present value that favored Cape 

Moraine; awarded the contract to Cape Moraine even 

though Cape Moraine did not own or control the property 

at the time of its proposal; failed to timely and adequately 

debrief VAS; and used misleading and unclear acquisition 

terminology. J.A. 10564–73. The OIG explained that, 

“[t]aken together, these deficiencies compromised the integrity of the lease procurement” and that GSA “should determine whether the lease award should be reevaluated.” 

J.A. 10564. 

The following month, in April 2020, VAS received a 

copy of the OIG report. VAS then asked GSA whether it 

intended to take any corrective action based on the report. 

By September 2020, VAS had allegedly learned that GSA 

did not intend to take any corrective action and that Cape 

Moraine had not yet begun construction or build out work. 

On October 19, 2020, VAS filed a complaint in the U.S. 

Court of Federal Claims challenging GSA’s award to Cape 

Moraine based on the infirmities outlined in the OIG report. J.A. 24. Indeed, according to VAS, the OIG report 

was the “real animating factor” for filing the complaint. 

Oral Arg. at 10:51–11:01. In its complaint, VAS requested 

relief in the forms of a declaration that the contract award 

was void, an injunction of performance under the contract, 

and an injunction directing the government to award the 

contract to VAS or, in the alternative, cancel and reissue 

solicitation. See J.A. 49. Shortly thereafter, VAS moved 

for judgment on the administrative record. In response, 

the government and Cape Moraine cross-moved for judgment on the administrative record and moved to dismiss 

for lack of standing. See J.A. 166–334. 

On April 29, 2021, the Court of Federal Claims granted

the motions to dismiss for lack of standing and denied the 

parties’ cross-motions for judgment on the administrative 

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VAS REALTY, LLC v. US 7

record as moot. VAS Realty, LLC v. United States, No. 

20-1417C, 2021 WL 1853382, at *1 (Fed. Cl. Apr. 29, 2021). 

The court reasoned that VAS lacked standing because it 

was ineligible for the award of the ICE lease. Id. at *7. The 

court explained that “the maximum rentable square footage specified in the RLP constitutes a material term of a 

leasehold procurement, because maximum rentable square 

footage is essential to determining the price of the lease 

and addresses the quantity of space that the government is 

procuring.” Id. (citation omitted). And because VAS proposed a square footage greater than the specified maximum, VAS’s proposal did not comply with a material term, 

rendering VAS ineligible for the award. Id. at *8. For that 

reason, VAS did not have a “direct economic interest” in the 

outcome of the procurement and thus lacked standing. Id. 

The court rejected VAS’s arguments that it had standing. Specifically, it was not persuaded by the fact that GSA 

had found VAS’s proposal technically acceptable. The 

court explained that GSA’s determination, by itself, did not 

answer the question of whether VAS had standing. Id. The 

court also rejected VAS’s argument that it had standing on 

the ground that the RLP itself contained procedures for deviating from the RLP’s stated requirements. The court reasoned that “these provisions do not require that GSA accept 

such deviations,” and no evidence established that GSA 

had accepted VAS’s deviation or that VAS complied with 

the RLP’s procedures for deviating. Id. Lastly, the court

rejected VAS’s argument that GSA’s contracting officer directed VAS to include the excess square footage in its proposal. Id. at *9. The court reiterated that this alleged 

“suggestion” by the contracting officer did not absolve VAS 

of its responsibility to comply with the RLP’s procedures 

for deviating from the RLP’s stated requirements. Id. 

VAS appealed. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(3).

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8 VAS REALTY, LLC v. US

STANDARD OF REVIEW

“Whether a party has standing to sue is a question of 

law that we review de novo.” Labatt Food Serv., Inc. v. 

United States, 577 F.3d 1375, 1379 (Fed. Cir. 2009). “The

underlying question of prejudice requires the trial court to 

engage in a factual analysis, which we review for clear error.” Id. 

DISCUSSION

VAS argues that the Court of Federal Claims erred by 

overlooking binding precedent that establishes VAS’s 

standing to file a bid protest. Appellant’s Br. 23–27. In 

particular, according to VAS, two of this court’s decisions—

Impresa Construzioni Geom. Domenico Garufi v. United 

States, 238 F.3d 1324 (Fed. Cir. 2001), and Tinton Falls 

Lodging Realty, LLC v. United States, 800 F.3d 1353 (Fed. 

Cir. 2015)—hold that a bid protester has standing when, 

assuming its protest is successful, it would have an opportunity to participate in a new procurement. Id. VAS also 

contends that the Court of Federal Claims erred by failing 

to consider Cape Moraine’s own ineligibility for the award 

and the resulting need for GSA to rebid the contract. Id. at 

20–23. We agree. 

In Garufi, we explained that

[i]n this case, as the government has conceded at 

oral argument, if appellant’s bid protest were allowed because of an arbitrary and capricious responsibility determination by the contracting 

officer, the government would be obligated to rebid 

the contract, and appellant could compete for the 

contract once again. Under these circumstances, 

the appellant has a “substantial chance” of receiving the award and an economic interest and has 

standing to challenge the award.

238 F.3d at 1334 (citation omitted). 

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VAS REALTY, LLC v. US 9

Similarly, in Tinton Falls, we explained that the bid 

protester, Tinton Falls, had standing even though it was 

not clear “whether Tinton Falls could compete for this hypothetical reopened bid” because it was not a small business concern as required by the solicitation. 800 F.3d at 

1359. Nevertheless, the parties “appear[ed] to agree that 

[the government] would be obligated to evaluate whether it 

could still solicit the contract as a small business set-aside, 

or whether it would need to reopen the bidding process on 

an unrestricted basis.” Id. (emphasis added). We explained, “[A]lthough there is much speculation as to 

whether [the government] would rebid the solicitation on 

an unrestricted basis—thus allowing Tinton Falls to compete for the contract—none of the parties disputes the 

Claims Court’s finding that this is at least a realistic possibility.” Id. at 1359–60. This “realistic possibility” of rebidding the competition on an unrestricted basis thus 

formed the basis for Tinton Falls’ qualification as an interested party under 28 U.S.C. § 1491(b)(1) for standing purposes. 

We conclude that VAS meets the interested party 

standard set forth in Garufi and Tinton Falls. “In deciding 

a motion to dismiss, a court is required to accept as true all 

factual allegations pleaded.” Frankel v. United States, 

842 F.3d 1246, 1249 (Fed. Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). VAS alleged in its complaint 

that GSA’s award of the contract was unlawful for reasons 

identified in the OIG’s report. See J.A. 40–44. For example, VAS alleged that GSA violated the RLP and federal 

regulations including 48 C.F.R. § 552.270-1 by accepting 

Cape Moraine’s proposal a month after GSA’s deadline for 

revised proposals and long after the deadline for initial proposals. J.A. 40–41. VAS also alleged that Cape Moraine’s 

proposal violated the RLP’s requirement to demonstrate

that the offered property’s owner authorized Cape Moraine 

to submit the bid. J.A. 43–44. Neither Cape Moraine nor 

the government disputes these violations of federal 

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10 VAS REALTY, LLC v. US

regulation and the RLP. Nor do the parties dispute that, if 

VAS were to succeed on these challenges, then VAS would 

remain the sole bidder for lease. And to the extent VAS’s 

proposal is not technically acceptable, the government 

would then have to rebid the lease and thus afford VAS another opportunity to bid. Nothing prevented VAS from submitting a qualifying bid in response to the new solicitation 

that excluded the additional square footage. Under these 

circumstances, VAS has a substantial chance of winning 

the lease for purposes of standing. See Garufi, 238 F.3d at 

1334; Tinton Falls, 800 F.3d at 1359. 

CONCLUSION

We hold that the Court of Federal Claims erred in dismissing the case for lack of standing on the ground that 

VAS failed to show it has a substantial chance of winning 

the award. If VAS’s protest proves successful, then, to the 

extent VAS’s own proposal was not technically acceptable, 

GSA would be resigned to rebidding the lease and thus 

providing VAS a new opportunity to bid. Under Garufi and 

Tinton Falls, VAS satisfies the substantial chance requirement. We have considered the parties’ remaining arguments and find them unpersuasive.3 We therefore reverse 

the Court of Federal Claims’ decision dismissing the case 

and remand for further proceedings. 

REVERSED AND REMANDED

3 The government argues for affirmance on an alternative ground that injunctive relief is not available because 

of laches—“VAS waited for two years to file its protest complaint.” Appellee’s Br. 24. But at oral argument, the government conceded that it had failed to show prejudice from 

the delay. See Oral Arg. at 24:35–24:57. The defense of 

laches requires a showing of prejudice, see Costello v. 

United States, 365 U.S. 265, 282 (1961), and therefore the 

laches defense is not available.

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VAS REALTY, LLC v. US 11

COSTS

No costs.

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