United States Court of Federal Claims

No. 13-592 C

October 4, 2013

_______________________________________

BROOKFIELD RELOCATION INC.,

Plaintiff, Pre-award bid protest; Subjectmatter jurisdiction; Ripeness;

v. Standing; Mootness

UNITED STATES OF AMERICA,

Defendant.

____________________________________

Seamus Curley, DLA Piper US LLP (DC), Washington, DC, for plaintiff.

Devon A. Wolak, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

Block, Judge.

This bid protest concerns a procurement conducted by the Federal Bureau of 

Investigation (“FBI”) for relocation services. It is directly related to two consolidated bid 

protests currently before the court on motions for judgment on the administrative record, WHR 

Group, Inc. v. United States, 13-cv-515, and Lexicon Gov’t Services, LLC v. United States, 13-

cv-545.

The basic facts underlying the dispute at the center of these cases are as follows. 

Presently, the FBI procures relocation services from plaintiff under an expired task order. Earlier 

this year, the FBI awarded three Blanket Purchase Agreements (“BPAs”) to plaintiff’s 

competitors, WHR Group, Inc. (“WHR”), Lexicon Government Services, LLC (“Lexicon”), and 

Franconia Real Estate Services d/b/a Allegiance Relocation Services (“Allegiance”). These three 

firms were the lowest-priced technically acceptable offerors. Plaintiff protested the awards 

before the Government Accountability Office (“GAO”). The FBI then granted plaintiff a fourth 

BPA, despite plaintiff being the sixth lowest-priced technically acceptable offeror. When two 

other offerors, Capital Relocation Services, LLC, and TRC Global Solutions, Inc., filed GAO 

protests challenging the award to plaintiff, the FBI decided to cancel all four BPAs and conduct 

the procurement anew under a revised solicitation.

Thereafter, WHR and Lexicon filed protests in this court challenging this “corrective 

action.” Plaintiff intervened in those protests. At this time the court is considering whether to 

permanently enjoin the FBI from (1) cancelling the BPAs, (2) conducting a new procurement, 
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and (3) continuing to procure relocation services from plaintiff under the expired task order. 

Throughout the WHR and Lexicon protests, plaintiff in this matter and defendant have contended 

that the FBI’s chosen corrective action is reasonable and proper and should be sustained by the 

court.

Despite its apparent agreement with defendant’s position, plaintiff filed the instant bid 

protest challenging the award of BPAs to WHR, Lexicon, and Allegiance. In its complaint, 

plaintiff contends that the FBI’s evaluation of WHR’s, Lexicon’s, and Allegiance’s proposals 

was arbitrary and capricious on a number of grounds. Effectively, plaintiff seeks injunctive 

relief requiring the FBI to take the corrective action it has already decided to take. Specifically, 

plaintiff is asking the court to enjoin the FBI from procuring relocations services through the 

BPAs awarded to WHR, Lexicon, and Allegiance. At the same time, the FBI has announced that 

it will not procure relocation services through those BPAs, and will instead conduct a new 

procurement for its relocation services. Indeed, the FBI is currently defending its decision to 

take this corrective action in the WHR and Lexicon cases, in which plaintiff supports defendant 

as a defendant-intervenor.

Concerned that there may not exist a genuine case or controversy for it to adjudicate, the 

court sua sponte ordered plaintiff to show cause that subject-matter jurisdiction exists. In its 

response, plaintiff contends that there exists a genuine dispute ripe for adjudication in which 

plaintiff has standing. Defendant disagrees, arguing the agreement between the parties that the 

FBI’s corrective action should stand deprives the court of a justiciable case or controversy. For 

the reasons stated herein, the court agrees with defendant that it lacks subject-matter jurisdiction.

Under Article III of the Constitution, the “judicial Power of the United States” is vested 

in courts empowered to decide certain “Cases” and “Controversies.” U.S. Const. Art. III. These 

terms, though not defined in the Constitution itself, refer to the “common understanding of what 

activities are appropriate . . . to courts.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

(1992). Historically, this has meant that courts do not answer abstract legal questions; rather 

they adjudicate concrete disputes involving at least two parties with opposing interests. As the 

Supreme Court explained in Flast v. Cohen, the case or controversy requirement serves a “dual 

function.” 392 U.S. 83, 95 (1968). First, the requirement “limit[s] the business of federal courts 

to questions presented in an adversary context and in a form historically viewed as capable of 

resolution through the judicial process.” Id. Second, the case or controversy requirement 

“define[s] the role assigned to the judiciary in a tripartite allocation of power to assure that the 

federal courts will not intrude into areas committed to the other branches of government.” Id. 

“Justiciability is the term of art employed to give expression to this dual limitation placed upon 

federal courts by the case-and-controversy doctrine.” Id.

The Court of Federal Claims, of course, is not an Article III court. Anderson v. United 

States, 344 F.3d 1343, 1350 n.11 (Fed. Cir. 2003); Kanemoto v. Reno, 41 F.3d 641, 644 (Fed. 

Cir. 1994); cf. Williams v. United States, 289 U.S. 553, 567-81 (1933). Nevertheless, it is wellsettled that Congress has made the various “justiciablilty” doctrines of Article III applicable to 

this court. Anderson, 344 F.3d at 1350 n.11; Glass v. United States, 258 F.3d 1349, 1355 (Fed. 

Cir. 2001). To be sure, Congress has provided by statute that the final judgments of this court 

have binding, conclusive effect in the “case[s]” and “controvers[ies]” within this court’s 

jurisdiction. 28 U.S.C. § 2519. In short, “[a]lthough this [c]ourt is not an Article III court, the 

‘case or controversy’ requirement of Article III is still applicable.” First Hartford Corporate 
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Pension Plan & Trust v. United States, 54 Fed. Cl. 298, 304 n.10 (2002) (citing Freytag v. 

Comm’r, 501 U.S. 868, 889 (1991)).

A basic aspect of the requirement of justiciability is that a case or controversy must 

involve parties that are “adverse.” See Richardson v. Ramirez, 418 U.S. 24, 36 (1974) (“[W]e 

are limited by the case-or-controversy requirement of Art. III to adjudication of actual disputes 

between adverse parties.”). The need for “adverse” parties is a requirement that the parties have 

opposing interests—that they disagree about who should be entitled to a sum of money, or about 

whether a defendant should be enjoined from taking a certain action affecting the plaintiff, or 

about whether a criminal defendant should have his conviction overturned. Something real must 

be at stake, and the parties’ interests with respect to that real thing must be antagonistic. See 

Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 344-45 (1982).

The Supreme Court gave its classic elucidation of the requirement of adversity in 

Welman:

Whenever, in pursuance of an honest and actual antagonistic assertion of rights by 

one individual against another, there is presented a question involving the validity 

of any act of any legislature, state or federal, and the decision necessarily rests on 

the competency of the legislature to so enact, the court must, in the exercise of its 

solemn duties, determine whether the act be constitutional or not; but such an

exercise of power is the ultimate and supreme function of courts. It is only in the 

last resort, and as a necessity in the determination of real, earnest, and vital 

controversy between individuals. It never was the thought that, by means of a 

friendly suit, a party beaten in the legislature could transfer to the courts an 

inquiry as to the constitutionality of the legislative act.

Id. at 345 (emphasis added). Since Welman, the Supreme Court has applied the principle that 

federal courts may not adjudicate disputes where the parties have the same interests in the 

context of declaratory judgments. See Poe v. Ullman, 367 U.S. 497, 506 (1961) (“The Court has 

been on the alert against use of the declaratory judgment device for avoiding the rigorous 

insistence on exigent adversity as a condition for evoking Court jurisdiction.”). For instance, in 

C.I.O. v. McAdory, 325 U.S. 472 (1945), the petitioners sought to enjoin enforcement of two 

sections of an Alabama statute. The respondent had agreed not to enforce one of those sections 

so long as another case challenging the validity of that section was pending. The Court held that 

the petitioners and the respondent were not adverse as to that section and further held that “[t]he 

Court will not pass upon the constitutionality of legislation in a suit which is not adversary or in 

which there is no actual antagonistic assertion of rights.” Id. at 475 (internal citations omitted).

Although here there is no challenge to the constitutionality of legislation, the principle of 

McAdory, Ullman, and Welman, applies. Because plaintiff and defendant agree with one another 

that the awards to WHR, Lexicon, and Allegiance are invalid and should be set aside, that issue 

does not present a justiciable case or controversy between them. Defendant seeks to do the very 

thing plaintiff requests: cancel the awards to WHR, Lexicon, and Allegiance, and conduct a new 

procurement under a revised solicitation. The only reason defendant has not already taken this 

action is the pendency of the WHR and Lexicon suits, in which plaintiff and defendant are on the 

same side. Accordingly, plaintiff and defendant are not truly adverse parties. For that reason, 

there is no justiciable case or controversy.
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Moreover, even granting that there was adversity between plaintiff and defendant before 

defendant proposed taking corrective action, that proposed corrective action renders any case or 

controversy moot. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ 

for purposes of Article III—‘when the issues presented are no longer ‘live’ or the parties lack a 

legally cognizable interest in the come.’” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) 

(quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). When the awards to WHR, 

Lexicon, and Allegiance were initially made, there were certainly “live” issues between plaintiff 

and defendant, as evidenced by the GAO protest plaintiff filed, supra at 1, challenging those 

awards. But those live issues were mooted when defendant sought to do exactly as plaintiff 

wanted and conduct a new procurement.

It is true, of course, that a defendant cannot ordinarily moot a case or controversy simply 

by promising to cease the challenged conduct. Id. at 726. Instead, a defendant must show that 

that conduct is not likely to reoccur. Id. Defendant has made that showing here. It would make 

no sense for defendant to issue the revised solicitation on August 5 if it planned to treat WHR’s, 

Lexicon’s, and Allegiance’s BPAs as validly awarded. The only reason defendant did not 

proceed to conduct a new procurement under that revised solicitation was that this court 

temporarily enjoined defendant from doing so on August 12. The court is therefore persuaded 

that the only circumstance under which defendant would treat the WHR, Lexicon, and 

Allegiance BPAs as valid is if the court, in the WHR and Lexicon cases, permanently enjoins 

defendant from cancelling them.

Additionally, any dispute that does exist between plaintiff and defendant is not ripe for 

judicial resolution. As with other justiciability doctrines, “the Court of Federal Claims must 

address ripeness as a ‘threshold consideration’ before addressing the merits.” Casitas Mun. 

Water Dist. v. United States, 708 F.3d 1340, 1351-52 (quoting Palazzolo v. Rhode Island, 533 

U.S. 606, 618 (2001)). Ripeness depends on two factors: “the fitness of the issues for judicial 

decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. 

Gardner, 387 U.S. 136, 149 (1967). “When a party challenges government action, the first 

factor becomes a question of whether the challenged conduct constitutes a final agency action.” 

Systems Application & Technologies, Inc. v. United States, 691 F.3d 1374, 1384 (Fed. Cir. 2012) 

(citing Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1363 (Fed. Cir. 2008); U.S. 

Ass’n of Imps. of Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1349-50 (Fed. 

Cir. 2005)). “As a general matter, two conditions must be satisfied for an agency action to be 

‘final’: First, the action must mark the consummation of the agency’s decisionmaking process—

it must not be of a merely tentative or interlocutory nature. And second, the action must be one 

by which rights or obligations have been determined, or from which legal consequences will 

flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks and citations 

omitted).

As to the fitness of the “dispute” between the parties for judicial resolution, it is clear that 

plaintiff’s protest challenges entirely speculative government conduct. Plaintiff acknowledges 

that defendant “has made multiple indications in the procurement record and during the related 

protest proceedings that it does not intend to move forward with performance under the invalid 

WHR, Lexicon, and Allegiance BPAs,” but nevertheless contends that “there are counter-indicia 

in the record that . . . constitute concrete steps towards the Agency’s use of the BPAs, which 

could be construed as an endorsement—albeit one that is inconsistent with the record—of their 

validity.” Pl.’s Response to Order to Show Cause, ECF Dkt. 21, at 7-8. But ripeness does not 
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hinge on whether there have been “counter-indicia,” inconsistent with the government’s own 

representations, that “could be construed” as endorsing the challenged conduct. Rather, ripeness 

hinges on the existence of a “final agency action” that is neither “tentative” nor “interlocutory,” 

but “by which rights or obligations have been determined, or from which legal consequences will 

flow.” Bennett, 520 U.S. at 177-78. That “final agency action” is the only “concrete step” that 

will satisfy the “fitness” prong of the ripeness doctrine. Here, plaintiff has failed to show that 

defendant has determined to accept the validity of the WHR, Lexicon, and Allegiance BPAs. 

And given that defendant is currently defending its decision to cancel those BPAs and conduct a 

new procurement, it is unreasonable to suppose that such a final agency action has taken place.

Nor does the hardship prong favor a finding of ripeness. The issues presented by this 

protest are precisely the issues being adjudicated in the WHR and Lexicon protests. The only 

difference is that WHR and Lexicon, unlike plaintiff, actually disagree with defendant’s position 

on the validity of their BPAs and the propriety of the corrective action. There is no reason why 

plaintiff, as intervenor-defendant in those cases, cannot argue that the BPAs are invalid and the 

corrective action is justified—in fact, plaintiff, as defendant-intervenor, has argued just that.

Finally, the lack of ripeness illustrates that, as of yet, plaintiff has not suffered an injury 

sufficient to give it standing. Article III standing requires a plaintiff to show (1) a “concrete and 

particularized,” as well as “actual or imminent,” injury in fact, (2) that the injury is “fairly 

traceable” to the challenged government conduct, and (3) that the injury is “like” to be 

“redressed by a favorable decision.” Lujan, 504 U.S. at 560 (1992). In the context of a postaward bid protest, the injury an actual or prospective bidder must show is that the agency action 

has deprived the bidder of a “substantial chance” to win the award. Orion Technology, Inc. v. 

United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (citing Rex Serv. Corp. v. United States, 448 

F.3d 1305, 1308 (Fed. Cir. 2006)). Here, defendant is currently defending a proposed corrective 

action that would cancel awards to plaintiff’s competitors and invite a new procurement in 

accordance with plaintiff’s wishes. Since plaintiff’s injury is entirely contingent upon defendant 

losing in the WHR and Lexicon protests, it is not possible to conclude that plaintiff has currently 

suffered the injury requisite for standing.

In short, the court concludes that plaintiff’s protest fails to meet the standards for several 

justiciability doctrines. First, the parties are not truly “adverse.” Second, whatever adversity 

may have once existed, it has been rendered “moot” by defendant’s proposed corrective action. 

Third, to the extent any dispute exists between the parties, it is not “ripe” for adjudication. 

Fourth, and finally, because plaintiff’s asserted injury has not come to fruition, plaintiff has no 

standing to maintain this protest. 

In conclusion, for the foregoing reasons, plaintiff’s protest is DISMISSED, without 

prejudice, for lack of subject-matter jurisdiction. The Clerk is directed to take the necessary 

steps to dismiss this matter.

IT IS SO ORDERED.

s/Lawrence J. Block

Lawrence J. Block

Judge