In the United States Court of Federal Claims

No. 13-463C 

(Filed Under Seal: June 23, 2014) 

(Reissued for Publication: July 22, 2014)*

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

B&B MEDICAL SERVICES, INC., * 

* 

Plaintiff, * 

* 

v. * 

* 

THE UNITED STATES, * 

* 

Defendant, * 

* 

and * 

* 

ROTECH HEALTHCARE, INC., * 

* 

Defendant-Intervenor. * 

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

OPINION AND ORDER

Earlier this year, the United States Department of Veterans Affairs (“VA”) awarded a 

contract for home oxygen services to defendant-intervenor Rotech Healthcare, Inc. (“Rotech”). 

Plaintiff B&B Medical Services, Inc. (“B&B”) protested the VA’s award decision, alleging 

errors in the VA’s responsibility determination, past performance evaluation, and best value 

tradeoff. While the parties were engaged in briefing on cross-motions for judgment on the 

administrative record, the VA commenced corrective action and defendant moved to dismiss the 

protest as moot. For the reasons set forth below, the court grants defendant’s motion. 

I. BACKGROUND

A. The Solicitation 

On May 31, 2013, the VA issued solicitation number VA256-12-R-0059 for the Veterans 

Integrated Service Network (“VISN”) 16 Home Oxygen Services contract.1

 AR 129, 2908-09. 

*

 This reissued Opinion and Order incorporates the agreed-to redaction proposed by the 

parties on July 18, 2014. The redaction is indicated with a bracketed ellipsis (“[. . .]”).

1

 The court derives the facts in the background section from the administrative record 

(“AR”) and the exhibit attached to defendant’s motion to dismiss. 

 
The contract work involved the furnishing of “all labor, supervision, equipment, training, 

supplies, delivery and maintenance and incidentals to provide an effective home oxygen services 

program” within VISN 16, an area that included ten VA medical centers serving 6,300 oxygenusing patients in nine southern and midwestern states.2

 Id. at 140-44. The VA anticipated 

awarding two contracts; work for two of the medical centers was set aside for a small business, 

while competition for the remaining work was unrestricted. Id. The contracts were to be 

awarded for one base year, with four one-year option periods. Id. at 140. 

Offerors were to submit their proposals in three parts: a technical proposal, a volume 

containing past performance information for up to ten similar government or commercial 

contracts from the previous three years, and a price proposal. Id. at 232. They were also to 

submit a small business subcontracting plan. Id. at 235. The VA intended to evaluate the 

offerors’ proposals on five factors: (1) technical capability, (2) quality control program, (3) past 

performance, (4) participation of service-disabled veteran-owned small businesses (“SDVOSB”) 

and commitment to small businesses, and (5) price. Id. at 242. Upon evaluating all of the 

proposals on these factors, the VA would “award a contract . . . to the responsible offeror whose 

offer, conforming to the solicitation, [would] be most advantageous to the Government, price and 

other factors considered.” Id. at 241. 

B. The Source Selection Plan

 The exact procedures that the VA would use to evaluate proposals were not set forth in 

the solicitation. Rather, the procedures were outlined in the source selection plan that was 

approved by the contracting officer on May 28, 2012.3 Id. at 99-108. First, the VA would 

determine the acceptability of the proposals, i.e., it would ascertain whether the offerors 

complied with the solicitation. Id. at 106. Second, a source evaluation team, also referred to as a 

technical evaluation board (“TEB”),4 would evaluate the proposals under the technical factors.5 

2

 The nine states are Louisiana, Texas, Oklahoma, Mississippi, Alabama, Florida, 

Arkansas, Missouri, and Kansas. AR 141-44. 

3

 The body of the source selection plan departs from the plan’s table of contents in 

significant respects. For example, the body of the plan does not contain sections describing how 

technical capability, SDVOSB participation, and price would be evaluated and rated, even 

though such sections appear in the table of contents. Indeed, it is difficult to ascertain whether 

certain sections were omitted intentionally or accidentally because the section numbering within 

the body of the plan–specifically within section 4–is inconsistent. For example, there is no 

section 4.0, and there is a section 4.2.2, but no section 4.2.1. Compare AR 100, with id. at 105-

06. 

4

 Compare AR 103 (“source evaluation team”), 106 (“SET”), with id. at 101 (“technical 

evaluation board”), 107 (“TEB”). 

5

 The source selection plan confusingly provides: [. . .]. AR 106 (emphasis added). The 

solicitation does not contain a section M, see id. at 131-32; past performance, SDVOSB 

-2- 

 
Id. Each evaluator was to identify and document the significant strengths, strengths, weaknesses, 

significant weaknesses, and deficiencies of each proposal and then assign a rating–Excellent, 

Good, Marginal, or Unsatisfactory–for each factor.6

 Id. at 104-06. Third, a past performance 

evaluation team would evaluate the proposals under the past performance factor and then assign 

an appropriate confidence rating.

7

 Id. at 106-07. Fourth, the TEB would meet to discuss the 

evaluations and arrive at a consensus, after which the chair of the TEB would prepare a 

“Capability Assessment Memorandum (Consensus Evaluation Report)” summarizing the TEB’s 

findings. Id. at 107. In particular, the report was to include [. . .]. Id. Additionally, the TEB 

was to [. . .]. Id. 

Fifth, upon receipt of the TEB’s report, the contracting officer could, if she chose to do 

so, [. . .] and then place these proposals in a best value pool. Id. Sixth, if a best value pool was 

established, the VA might conduct exchanges with the offerors and/or request proposal revisions. 

Id. at 107-08. Seventh, upon receipt of revised proposals, the TEB would conduct a final 

evaluation, and then the chair of the TEB would [. . .] Id. at 108. The final step of the process 

was the selection of the source: 

[. . .] 

Id.; see also id. at 101 ([. . .]). As described in the following section, the source selection process 

ultimately employed by the VA did not precisely conform to the source selection plan. 

C. Evaluation of Proposals 

The VA received nine proposals by the August 13, 2012 proposal deadline. Id. at 1225-

26, 1234. The contracting officer found [. . .]. See, e.g., id. at 1033-34. From August 26, 2012, 

through August 31, 2012, the TEB convened to evaluate the proposals. Id. at 1220.1. The TEB 

participation, and price were not technical factors or subfactors in the solicitation, see id. at 232-

35, 242-48; only the past performance evaluation team was to evaluate the proposals under the 

past performance factor, see id. at 106; and the TEB was not supposed to have access to price 

information, see id. at 104. However, because the TEB’s actual evaluations reveal that it only 

evaluated the proposals under the technical capability and quality control program factors, see id. 

at 1161-220, the court presumes that that was the intent of the source selection plan. 

6

 Although the body of the source selection plan indicates that the adjectival ratings to be 

used were [. . .], AR 105-06, the scoring sheets attached as exhibits to the source selection plan 

indicate that adjectival ratings of [. . .] should be used, id. at 118, 121. The TEB ultimately used 

the latter, not the former, ratings. See id. at 1161-220, 1227. 

7

 In the source selection plan, only the abbreviation “PPET” is used, AR 106; the 

abbreviation is not defined, nor are the members of the past performance evaluation team 

identified. The earliest document containing the missing information is the contracting officer’s 

January 2, 2013 best value pool determination. See id. at 1221-39. 

-3- 

 
members evaluated the proposals under the technical capability and quality control program 

factors, identifying the proposals’ strengths and weaknesses and assigning appropriate ratings. 

See, e.g., id. at 1161-220. And, it appears that the past performance evaluation team met and 

evaluated the proposals under the past performance factor.

8

 See id. at 1227; see also id. at 1110 

(containing one page of handwritten notes regarding B&B’s past performance), 1135 (containing 

one page of handwritten notes regarding Rotech’s past performance). 

The chair of the TEB sent the TEB’s report to the contracting officer on December 12, 

2012. Id. at 1220.1-.8. In the report, the TEB chair summarized the contents of each of the nine 

proposals with respect to the technical capability and quality control program factors. Id. 

However, contrary to the process set forth in the source selection plan, the report did not include 

an analysis of each proposal’s strengths and weaknesses. Rather, the TEB chair merely noted 

what the offerors included in their proposals, what the offerors did not include in their proposals, 

and, in some cases, the quality of what the offerors included in their proposals. Id. 

Also contrary to the source selection plan, the TEB’s report lacked a recommendation of 

the highest rated technical proposal. Indeed, although the chair of the TEB wrote that the TEB 

identified three offerors who could perform the contract and who should be considered for 

award, id. at 1220.1, he did not name those offerors in the report. Nor did he include the TEB’s 

consensus adjectival ratings for the proposals under the technical capability and quality control 

program factors. 

On January 2, 2013, the contracting officer issued her best value pool determination. Id.

at 1221-39. Based on the contents of the document, the contracting officer considered the 

following information: the TEB’s report; other information provided by the TEB but not 

included in the administrative record, such as the TEB’s consensus ratings; the evaluations of the 

past performance evaluation team, which also were not included in the administrative record; and 

her evaluations of the SDVOSB/small business and price factors. Id. In section IV(c) of the 

document, she reproduced the summaries of the contents of the nine proposals from the TEB’s 

report,

9

 provided summaries of how each proposal fared under the past performance factor, 

8

 There is no contemporaneous documentation, such as evaluation forms or a report, of 

the past performance evaluation team’s meeting. The first indication that the team met appears 

in the contracting officer’s January 2, 2013 best value pool determination. See AR 1221-39; cf.

id. at 1110 (containing an undated page of handwritten notes regarding B&B’s past 

performance), 1135 (containing an undated page of handwritten notes regarding Rotech’s past 

performance). It also bears noting that according to the best value pool determination, the past 

performance evaluation team evaluated past performance using adjectival ratings not previously 

defined in the solicitation or source selection plan: Exceptional, Very Good, Satisfactory, 

Neutral, Marginal, and Unsatisfactory. Id. at 1228. It is unclear how these adjectival ratings 

were translated into the confidence ratings ultimately assigned by the contracting officer. See id. 

at 1235-37; see also id. at 246 (containing the source selection plan’s description of the five 

available confidence ratings). 

9

 The court did not compare the TEB’s report with the best value pool determination 

-4- 

 
summarized her findings under the SDVOSB/small business factor, and discussed the price 

factor. Id. at 1228-39. She ultimately concluded that there should be a best value pool 

consisting of the proposals from three offerors: B&B, Rotech, and [. . .]. Id. at 1238. The 

contracting officer decided to conduct exchanges with these three offerors and then provide them 

with the opportunity to submit revised proposals. Id. at 1239. 

The contracting officer advised the offerors that their proposals were part of the best 

value pool on January 10, 2013. Id. at 1240, 1245. Attached to her notification letters were 

questions that the offerors needed to address in writing and during oral presentations scheduled 

for January 23, 2013. Id. at 1240-49. During the two days following the oral presentations, 

members of the TEB reevaluated the proposals, presumably in light of what they learned during 

the exchanges. Id. at 2747-813.4. Then, on January 25, 2013, the contracting officer advised the 

offerors of the remaining weaknesses with their proposals and invited the submission of revised 

proposals by February 4, 2013. Id. at 1271-73. 

D. Evaluation of Revised Proposals 

Rotech submitted its revised proposal on February 1, 2013, id. at 2746.3, and B&B 

submitted its revised proposal on February 4, 2013, id. at 2746.2. Although the source selection 

plan indicated that the TEB would evaluate the revised proposals and the chair of the TEB would 

modify the TEB’s report in accordance with its final evaluations, the administrative record does 

not contain any evaluation forms, notes from TEB members, or a TEB report postdating the 

receipt of final proposals. However, in her February 12, 2013 source selection decision 

document, the contracting officer asserted that the TEB convened on February 6, 2013, to 

“review” the revised proposals. Id. at 2925. 

E. The Responsibility Determination

 On February 4, 2013, the same date that the proposal revisions were due, the contracting 

officer prepared a responsibility determination for Rotech.10 Id. at 2836-38. In that document, 

she concluded: 

Based on the above, Rotech Healthcare Inc. has been determined to be a 

responsible contractor, in accordance with [Federal Acquisition Regulation 

(“FAR”)] Subpart 9.1, for performance under Contract No. VA260-P-0891 [sic], I 

hereby determine that award be made to Rotech Healthcare Inc. in the amount of 

$68,300,732.76 for the . . . base period of April 1, 2013 to March 31, 2014 with 

word for word, but an examination of the two documents seems to indicate that the contracting 

officer copied and pasted the summaries prepared by the TEB chair. 

10 The administrative record lacks any evidence that the contracting officer prepared 

responsibility determinations for the other two offerors in the best value pool. 

-5- 

 
four (4) twelve (12) month option periods, said contract price being fair and 

reasonable and in the best interest of the U.S. Government. 

Id. at 2838. In other words, two days before the TEB evaluated the revised proposals and eight 

days before she signed and issued the source selection decision document, the contracting officer 

decided to award the contract to Rotech.

F. Selecting a Source

As noted above, the contracting officer issued the source selection decision document on 

February 12, 2013. Id. at 2908-33. In section IV(c) of the document, the contracting officer 

provided a summary of the initial evaluations of the three proposals in the best value pool. 

Instead of reproducing what she included in her best value pool determination, however, she 

provided amended and expanded versions of the technical capability, quality control program, 

and past performance factor summaries.11 For example, in the summaries pertaining to the 

technical capability and quality control program factors, she provided additional details and 

specifically identified strengths and weaknesses. Id. at 2918-24. And, in the summaries 

pertaining to the past performance factor, she provided significantly more detailed information 

regarding the offerors’ past performance. Id. at 2920-24. 

After describing the initial evaluation of proposals in the best value pool, the contracting 

officer summarized what occurred during the exchanges–both the questions that the VA had for 

the offerors and the offerors’ responses. Id. at 2925-28. She also set forth revised ratings for 

each offeror’s proposal and the prices contained in the revised proposals. Id. at 2928-29. 

However, the contracting officer did not indicate whether her summaries or the revised ratings

were derived from the TEB’s consensus after evaluating the revised proposals or reflected her 

independent judgment. 

 Section IV of the source selection decision document concluded with the contracting 

officer’s tradeoff analysis. Id. at 2930-32. The contracting officer concluded this analysis by 

recommending that Rotech be awarded the VISN 16 Home Oxygen Services contract. Id. at 

2932. The contract was, in fact, awarded to Rotech on March 9, 2013, id. at 2934, with 

performance to begin on April 1, 2013, id. at 2937. 

G. Postaward Proceedings

After obtaining a written debriefing from the contracting officer on March 13, 2013, id. at 

3056-57, B&B lodged a protest with the United States Government Accountability Office 

11 Because the additional information included in these summaries was not derived from 

the TEB’s report or any formal documentation from the past performance evaluation team, the 

court presumes that the contracting officer added it as she was preparing her source selection 

decision document. It is unclear why the contracting officer would retroactively add information 

related to the initial evaluation of proposals.

-6- 

 
(“GAO”) on March 18, 2013, id. at 3060-89, and a supplemental protest with the GAO on March 

25, 2013, id. at 3090-145. During the GAO proceedings, the contracting officer submitted a 

statement of facts dated April 17, 2013, id. at 3710-17, as well as an undated supplemental 

statement of facts, id. at 3930-31. The latter fact statement contains the following explanation 

regarding how proposals were evaluated under the past performance factor (all errors are the 

contracting officer’s): 12

[T]he Contracting Officer convened the TEB on August 27-31, 2012 in Jackson, 

MS. . . . Due to the fact the Contracting Officer was on-site to conduct the onsite evaluation, the Contracting Officer was able to meet with the members of the 

Past Performance Evaluation Team (PPET) Offeror to provide instruction on the 

procedures for conducting the past performance evaluations. Explanation for the 

adjectival assessment in the solicitation and to answer questions the PPET may 

have in their role in the evaluation. The PPET was provided with the past 

performance information provided by each Offeror as part of their proposal and 

questionnaire submittals, along with the criteria outlined in the solicitation 

Instruction to Offeror Section and Solicitation Evaluation Factor Section. The 

PPET reviewed the documents provided and then each Offeror was discussed 

with the Contracting Officer and notes on a hotel note pad were taken by one 

member of the PPET. At the conclusion of this meeting the PPET had made a 

determination of ratings for Past Performance for each Offeror. . . . Upon 

returning from the on-site evaluation the Contracting Officer prepared the 

Contracting Office’s Best Value Decision (Source Selection) document which 

contains the Past Performance ratings which were determined by the PPET while 

the Contracting Officer was on-site with the PPET . . . .13

12 The court generally does not consider statements prepared by the contracting officer in 

response to a bid protest if those statements constitute after-the-fact explanations of the basis of 

the contracting officer’s decision-making process. See Jacobs Tech. Inc. v. United States, 100 

Fed. Cl. 198, 208 (2011). The information quoted by the court does not constitute such an

explanation. 

13 The contracting officer did not issue her source selection decision until February 12, 

2013, AR 2908-33, almost six months after she met with the past performance evaluation team. 

The court presumes that the contracting officer meant to refer to her January 2, 2013 best value 

pool determination, which is the earliest-dated document that includes formal past performance 

factor evaluations. See id. at 1221-39. It is unclear from her statement whether the contracting 

officer immediately drafted the summaries of the past performance evaluations upon her return 

to her office after the on-site meeting, or whether she drafted the summaries just prior to issuing 

her best value pool determination on January 2, 2013. The court would be troubled if it was the 

latter, as the administrative record lacks notes or other contemporaneous documentation 

reflecting the past performance evaluation team’s consensus evaluations and ratings from which 

the contracting officer could refresh her recollection. (The handwritten notes by one of the team 

members bear no indication that they represent the team’s consensus evaluations; nor do they 

reflect a confidence rating. Id. at 1110, 1135.) Further, regardless of when the contracting 

-7- 

 
Id. at 3930-31 (footnote added). The GAO dismissed some of B&B’s arguments on April 12, 

2013, id. at 3422, and the remainder of its arguments on June 24, 2013, id. at 4017-27. 

B&B filed the present protest on July 9, 2013. In its amended complaint, it alleges a 

number of errors in the VA’s responsibility determination, past performance evaluation, and best 

value tradeoff. It therefore seeks (1) a declaration that the VA improperly conducted the 

procurement, evaluated the proposals, and awarded the contract to Rotech; (2) a declaration that 

the VA’s responsibility determination was improper; (3) an injunction directing the VA to 

terminate the award to Rotech; (4) an injunction directing the VA to either award it the contract 

or to conduct a new competition; (5) injunctions directing the VA to conduct a new 

responsibility determination, past performance evaluation, and best value evaluation; and (6) 

other necessary, just, and proper relief, including bid preparation and proposal costs. Rotech 

intervened and the court conducted an initial status conference, during which defendant 

represented that the VA had agreed to stay Rotech’s performance of the VISN 16 Home Oxygen 

Services contract for all but one of the affected hospitals.

Pursuant to a scheduling order entered by the court after the status conference, the parties 

began to brief cross-motions for judgment on the administrative record. After reviewing the 

parties’ opening briefs, the court issued an order identifying additional issues not addressed by 

the parties and modifying the remaining briefing schedule to allow the parties to address those 

issues. One week later, defendant filed a notice indicating that the VA “intend[ed] to take 

corrective action . . . by re-conducting its source selection decision among the three offers in the 

Best Value Pool, including with respect to the agency’s consensus evaluations and responsibility 

determination.” Notice, Sept. 13, 2013, at 1. Defendant further stated that once the VA 

commenced its corrective action, it would move to dismiss the protest as moot. The court 

suspended the remaining briefing, and on September 23, 2013, defendant filed a motion to 

dismiss, indicating that the VA had commenced corrective action on September 17, 2013. 

Specifically, in a letter attached as an exhibit to defendant’s motion, the contracting officer 

indicated: 

[The VA] intends to take corrective action . . . . The corrective action to be taken 

will involve re-conducting the source selection decision among the three Offerors 

in the Best Value Pool. . . . 

This corrective action source selection decision will be based on the initial 

proposal submissions dated July 2012, the written submissions and discussions 

held in January 2013, and the revised proposals submitted in February 2013. 

officer prepared the summaries, the record lacks any documentation of the past performance 

evaluation team’s consensus evaluations and confidence ratings, leading the court to presume 

that the contracting officer relied upon her memory when drafting the summaries. 

-8- 

 
Mot. Attach. A. The parties have fully briefed defendant’s motion, and, deeming oral argument 

unnecessary, the court is prepared to rule.

II. DISCUSSION

A. Defendant’s Motion to Dismiss 

Defendant raises its mootness argument in a motion to dismiss B&B’s protest for lack of 

jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims 

(“RCFC”). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a 

legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). 

When a case is moot, there are no justiciable issues upon which the court can render a decision.14 

Flast v. Cohen, 392 U.S. 83, 95 (1968); see also Fisher v. United States, 402 F.3d 1167, 1176 

(Fed. Cir. 2005) (panel portion) (noting that justiciability “encompasses a number of doctrines 

under which courts will decline to hear and decide a cause,” including the “doctrines of standing, 

mootness, ripeness, and political question”). The court’s inquiry into the justiciability of a case 

is distinct from its inquiry into whether it has jurisdiction over the case’s subject matter. Powell, 

395 U.S. at 512; Baker v. Carr, 369 U.S. 186, 198 (1962); Prasco, LLC v. Medicis Pharm. Corp., 

537 F.3d 1329, 1335 n.3 (Fed. Cir. 2008); Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 

1993). In other words, the court may find that it possesses jurisdiction over the subject matter of 

a case but that the dispute is nevertheless nonjusticiable. Thus, while mootness is jurisdictional 

14 The “lack of jurisdiction to review moot cases derives from the requirement of Article 

III of the Constitution under which the exercise of judicial power depends upon the existence of 

a case or controversy.” Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964); see also U.S. Const. 

art. III, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this 

Constitution, the Laws of the United States, and Treaties . . . [and] to Controversies to which the 

United States shall be a Party . . . .”). But see Honig v. Doe, 484 U.S. 305, 329-32 (1988) 

(Rehnquist, C.J., concurring) (questioning the constitutional origins of the mootness doctrine by 

arguing that despite federal courts’ recognition of exceptions to mootness, such exceptions 

cannot be read into Article III’s “case or controversy” requirement); Matthew I. Hall, The 

Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562, 575 (2009) (arguing “that 

if the mootness bar were truly a mandatory, jurisdictional rule imposed by the Constitution, then 

the exceptions . . . could not exist”). The United States Court of Federal Claims (“Court of 

Federal Claims”), as a court established under Article I of the United States Constitution, 28 

U.S.C. § 171(a) (2012), is not bound by the “case or controversy” requirement of Article III, 

Zevalkink v. Brown, 102 F.3d 1236, 1243 (Fed. Cir. 1996). Nevertheless, the Court of Federal 

Claims and other Article I courts traditionally have applied the “case or controversy” 

justiciability doctrines. See id.; Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 

2003); CW Gov’t Travel, Inc. v. United States, 46 Fed. Cl. 554, 558 (2000); cf. 28 U.S.C. § 2519 

(using the phrase “case or controversy” in describing the finality of judgments of the Court of 

Federal Claims). 

-9- 

 
in that it involves the court’s power to adjudicate a case,15 an RCFC 12(b)(1) motion may not be 

the appropriate vehicle by which to dismiss a case as moot.16

 Regardless of whether a moot claim should be dismissed for lack of subject matter 

jurisdiction or for failure to state a claim upon which the court could grant relief, the standard 

applied by the court in reviewing a motion urging dismissal of a claim as moot is the same: the 

court assumes that the allegations in the complaint are true and construes those allegations in the 

plaintiff’s favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).

B. Mootness 

A court “will determine only actual matters in controversy essential to the decision of the 

particular case before it.” United States v. Alaska S.S. Co., 253 U.S. 113, 115 (1920). “The 

controversy must be definite and concrete, touching the legal relations of parties having adverse 

legal interests.” Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41 

(1937). Moreover, the controversy must exist at all stages of the litigation; it is not enough that 

the controversy was alive when the complaint was filed. Steffel v. Thompson, 415 U.S. 452, 459 

n.10 (1974). Subsequent acts will render a case moot if they make it impossible for the court to 

grant “‘effectual relief.’” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) 

(quoting Mills v. Green, 159 U.S. 651, 653 (1895)). However, a case will not be rendered moot 

15 See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-10 (1988) 

(characterizing the justiciability issue of standing as a jurisdictional issue); North Carolina v. 

Rice, 404 U.S. 244, 246 (1971) (per curiam) (“Mootness is a jurisdictional question because the 

Court is not empowered to decide moot questions or abstract propositions . . . .” (internal 

quotation marks omitted)); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 

1366, 1369 (Fed. Cir. 2002) (“[M]ootness . . . is a threshold jurisdictional issue.”); CBY Design 

Builders v. United States, 105 Fed. Cl. 303, 328 (2012) (“The mootness of a case is properly the 

subject of an RCFC 12(b)(1) motion.”). 

16 See, e.g., Baker, 369 U.S. at 196 (holding that a case that is “unsuited to judicial 

inquiry or adjustment” should be dismissed for “a failure to state a justiciable cause of action” 

and not for “a lack of jurisdiction of the subject matter” (internal quotation marks omitted)); 

Oryszak v. Sullivan, 576 F.3d 522, 526-27 (D.C. Cir. 2009) (Ginsburg, J., concurring) (noting 

that when “a plaintiff makes a claim that is not justiciable . . . a court should dismiss the case for 

failure to state a claim” and that “it is important to distinguish among failure to state a claim, a 

claim that is not justiciable, and a claim over which the court lacks subject matter jurisdiction”); 

F. Alderete Gen. Contractors, Inc. v. United States, 715 F.2d 1476, 1480 (Fed. Cir. 1983) 

(reciting “the long-standing rule in the Federal courts that jurisdiction is determined at the time 

the suit is filed and, after vesting, cannot be ousted by subsequent events, including action by the 

parties” (emphasis added)); see also Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (“Clarity would 

be facilitated if courts and litigants used the label ‘jurisdictional’ . . . only for prescriptions 

delineating the classes of cases (subject-matter jurisdiction) and the persons (personal 

jurisdiction) falling within a court’s adjudicatory authority.”). 

-10- 

 
by subsequent acts if some of the requested relief remains available. Intrepid v. Pollock, 907 

F.2d 1125, 1131 (Fed. Cir. 1990); accord Church of Scientology of Cal., 506 U.S. at 12 (holding 

that a case is not moot so long as the “court can fashion some form of meaningful relief” for the 

injured party). 

 In this protest, the subsequent act invoked by defendant is the VA’s decision to take 

corrective action. “A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily 

does not suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

528 U.S. 167, 174 (2000). However, the voluntary cessation of the challenged activity may 

render a case moot if there is no reasonable expectation that the activity will recur and the effects 

of the activity have been completely extinguished. Cnty. of L.A. v. Davis, 440 U.S. 625, 631 

(1979). Thus, when “corrective action adequately addresse[s] the effects of the challenged 

action, and the Court of Federal Claims ha[s] no reasonable expectation that the action would 

recur,” the case should be dismissed. Chapman Law Firm v. Greenleaf Constr. Co., 490 F.3d 

934, 940 (Fed. Cir. 2007). The party asserting mootness bears a heavy burden of establishing 

that the challenged activity will not recur. Friends of the Earth, Inc., 528 U.S. at 189. 

C. B&B’s Protest Is Moot 

Defendant contends that B&B’s protest is now moot because the corrective action 

initiated by the VA–reconducting the source selection decision among B&B, Rotech, and [. . .]–

would entail revisiting all of the decisions that B&B challenged in its protest, i.e., the VA’s 

responsibility determination, past performance evaluation, and best value tradeoff. B&B 

disagrees, asserting that there was no evidence that the VA, in taking the proposed corrective 

action described in the contracting officer’s letter, would “set aside or terminate the award made 

to Rotech, discuss the consensus evaluations, or . . . take corrective action with respect to the 

defective responsibility determination or the flawed past performance evaluations.” Resp. 4. 

More particularly, B&B avers that the VA has left the award to Rotech in place and allowed 

Rotech to proceed with performing the contracted-for services at the one hospital where contract 

performance had not been stayed. And, B&B states, defendant is incorrect to assert that the 

VA’s responsibility determination or past performance evaluations were components of the 

source selection decision that the VA intended to conduct anew. In its reply brief, defendant 

reiterates that the VA’s corrective action would include a new responsibility determination, new 

consensus evaluations, and new past performance evaluations, as reflected in its September 2013 

notice and its motion to dismiss. It further contends that Rotech’s continued performance at the 

one hospital where contract performance was not stayed is irrelevant for two reasons: (1) the 

VA’s corrective action reopens the competition to provide services at the hospital to B&B, 

foreclosing the court’s ability to grant B&B effectual relief; and (2) B&B was not the incumbent 

contractor at the hospital and accordingly never had the right to perform work there. 

The only evidence of the scope of the corrective action being taken by the VA is the 

contracting officer’s letter that defendant attached to its motion to dismiss, which indicates that 

the VA would reconduct the source selection decision among B&B, Rotech, and [. . .] based on 

the initial proposals, discussions, and revised proposals. Specific reference to new consensus 

evaluations, new past performance evaluations, and a new responsibility determination appears 

-11- 
only in defendant’s notice, motion to dismiss, and reply brief. Although the court has no reason 

to doubt the representations made by defendant in these filings, it cannot accept such 

representations as fact. See Del., Lackawanna & W. R.R. Co. v. United States, 54 Ct. Cl. 35, 41-

42 (1919) (“The court can not accept asseverations of counsel, as to facts, made in argument, 

whether denied or conceded by the other side at the bar, without any stipulation duly filed or 

other evidence . . . .”). Thus, the court’s analysis is limited to whether the contents of the 

contracting officer’s letter are sufficient to satisfy defendant’s burden to establish that the VA’s 

corrective action moots this protest. 

The contracting officer states in her letter that the VA’s corrective action would involve 

reconducting the source selection decision and that the decision would be based on initial 

proposals, discussions, and revised proposals. Logically, this process must involve more than 

just the contracting officer rewriting her source selection decision document; if the TEB and the 

past performance evaluation team did not redo their evaluations, then the contracting officer 

would have no need to write a new decision. It makes more sense that the VA would re-evaluate 

the proposals according to the procedures described in the source selection plan. Although the 

source selection plan has numerous omissions and deficiencies, it can be reasonably interpreted 

to provide for, among other things, (1) an evaluation of the technical and quality control program 

factors by the TEB, (2) an evaluation of the past performance factor by the past performance 

evaluation team, (3) the convening of a TEB consensus meeting, (4) the preparation of a 

consensus evaluation report, and (5) a best value tradeoff by the contracting officer. 

Accordingly, B&B’s argument that the VA, in reconducting the source selection decision, would 

not conduct new consensus evaluations or past performance evaluations is without merit. 

More persuasive are B&B’s contentions regarding the need to conduct a new 

responsibility determination. In the solicitation, the VA clearly indicated that the contract award 

would be made to a responsible offeror. Thus, the source selection decision process necessarily 

entails a determination that the successful offeror was responsible. Problematic in this case is 

that the VA has not terminated its contract with Rotech. Accordingly, if the contracting officer 

determined, at the conclusion of the new source selection decision process, that Rotech would 

provide the best value to the VA, there is already an existing determination that Rotech is 

responsible. The contracting officer’s letter contains no indication that she would conduct a new 

responsibility determination for Rotech. Indeed, FAR subpart 9.1 reflects that responsibility 

determinations are for prospective contractors, see generally FAR 9.100, and Rotech is the 

awardee presently performing under the contract based on a currently valid responsibility 

determination. Thus, the contracting officer would not be legally required to redo her 

responsibility determination upon a finding that Rotech provided the best value to the VA.17 

Nevertheless, there is no meaningful relief that the court could award to B&B in these 

circumstances. To be sure, B&B requests an injunction directing the VA to set aside the contract 

17 Nevertheless, given the concerns expressed by the court in its September 16, 2013 

order, it would be foolhardy for the contracting officer to forgo preparing a new responsibility 

determination if she concluded that Rotech’s proposal represented the best value for the VA.

-12- 

 
award to Rotech and conduct a new responsibility determination. However, even if the court 

issued such an injunction, it would have no practical effect because it would lead to a new 

competition, something that is already occurring by virtue of the VA reconducting the source 

selection decision. B&B is among those offerors eligible to be awarded the contract in the new 

source selection decision process, and the court’s granting of B&B’s requested relief (resulting in 

the contract award being set aside and a new responsibility determination being conducted) 

would not give B&B any greater relief than the VA’s corrective action has already provided.18 

In the absence of available meaningful relief, the court cannot proceed. Defendant has met its 

burden to establish that the VA’s corrective action renders B&B’s protest moot. 

III. CONCLUSION

For the foregoing reasons, the court GRANTS defendant’s motion to dismiss and 

DISMISSES B&B’s protest as MOOT. No costs. The clerk shall enter judgment accordingly. 

Should B&B lodge another protest in this court in conjunction with the solicitation at 

issue here, the clerk shall waive the court’s filing fee and assign the protest to the undersigned. 

The court has filed this ruling under seal. The parties shall confer to determine agreed-to 

proposed redactions. Then, by no later than Friday, July 11, 2014, the parties shall file a joint 

status report indicating their agreement with the proposed redactions, attaching a copy of those 

pages of the court’s ruling containing proposed redactions, with all proposed redactions 

clearly indicated.

IT IS SO ORDERED.

 s/ Margaret M. Sweeney 

MARGARET M. SWEENEY

 Judge 

18 Although B&B requests an injunction directing the VA to award it the contract, it is 

well settled that in the event a court determines that the procurement was illegally conducted, the 

protestor has no right to be awarded the contract. Parcel 49C Ltd. P’Ship v. United States, 31 

F.3d 1147, 1152 (Fed. Cir. 1994) (discussing CACI, Inc.-Federal v. United States, 719 F.2d 

1567, 1572-75 (Fed. Cir. 1983), and Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 864 

(D.C. Cir. 1970)). Further, B&B’s request for bid preparation and proposal costs is not yet ripe 

because B&B remains in the competition for the contract and may be awarded the contract. 

-13-