# In the United States Court of Federal Claims

No. 18

- 998 C

Filed: May 2 2

, 2019

Reissued: June 11 , 2019 1

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MLS

- MULTINATIONAL LOGISTIC SERVICES, LTD

,

Protestor,

v.

UNITED STATES,

Defendant,

v.

GLOBAL DEFENSE LOGISTICS,

SRL

,

Defendant

- Intervenor.

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- Award Bid Protest ; Motion to Dismiss; Lack of Subject Matter Jurisdiction; Standing; Wavier ; Contract Disputes Act

.

Walter A.I. Wilson

, Polsinelli , PC, Washington, D.C. , for protestor. Of counsel

were Daniel J. Donohue, Claude P. Goddard, Jr. and Abbi M. Jankowski

, Polsi nelli

, PC, Washington , D.C.

Michael D. Snyder , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Amelia Lister

- Sobotkin , Trial Attorney, Franklin E. White, Jr

. , Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr. , Director, Commercial Litigation Branch, and Joseph H. Hunt , Assistant Attorney General, Civil Division, Department of

Justice. Of counsel were Andre Ahuna

, Sandra Cain, and Scot t E. Miller

, United States Navy

.

1 This O pinion was issued under seal on May 22, 2019 . The parties were given the opportunity to propose possible redactions, but no redactions were proposed. The original opinion is hereby unsealed and reissued without redaction

.2

Robert K. Tompkins

, Holland & Knight LLP, Washington, D.C., for defendant

intervenor. Of counsel were Leila George

- Wheeler and Rodney M. Perry

, Holland & Knight LLP, Washington, D.C.

O P I N I O N

HORN, J.

Protestor

, MLS

- Multinational Logistics Services L td (MLS), filed the above captioned protest to challenge the terms of Solicitation No. N68171

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- 0004 (the Solicitation), for maritime husbanding support services for the United States Navy as “contrary to applicable law and impossible to perform, prejudicing MLS by preventing MLS from offering its best terms in a proposal under the solicitation and from having a fair opportunity to compete for the contract and task orders under it.”

FINDINGS OF FACT

As the protes tor and defendant have jointly stipulated:

O n September 14, 2017, the Navy, through its Naval Supply Systems

Command Fleet Logistics Command (NAVSUP FLC), Sigonella,

Detachment Naples, issued Solicitation No. N68171

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- 0004 (the Solicitation), seeking proposals for firm fixed price, multiple

- award indefinite delivery/indefinite quantity (IDIQ) contracts to provide maritime husbanding
support services to Navy and United States Coast Guard vessels visiting foreign ports in the Middle East within the Unite d States Central Command (CENTCOM), Fift h Fleet area of responsibility.

The Solicitation indicated that that multiple awards would be made based upon a lowest price technically acceptable source selection decision

. The Solicitation provided that “[o]ffero rs shall propose firm

- fixed unit prices for the basic contract and those prices shall be used for evaluation for award of the basic contracts, and serve as maximum prices.”

The Solicitation sought awardees to provide husbanding services, which the join t stipulations state

, “can include a wide range of items such as arranging for berthing locations, supplying pilots, tug boats, and water taxis, removing trash and sewage, and providing fuel an d utilities, among other things. ” The joint stipulations provid e that husbanding service providers are involved in organizing a “ shi p’s visit from the pre

- arrival arrangements to the ship’s departure and after the ship’s departure.” The joint stipulations

also provide that “[h]usbanding support services are services p rovided to a ship when it is in port, i ncluding so

- called ‘Port Tariff’ items. The solicitation states: ‘Port Tariff items and Port Dues are services rendered by a Port Authority’s conce ssionaire.’”

The Navy’s policy is to procure husbanding services thr ough contracts with husbanding service providers covering specific geographic regions, and the Solicitation

at issue was to cover husbanding support services in all ports in Bahrain, Jordan,3

Pakistan, United Arab Emirates, Egypt, Kuwait, Qatar, Yemen, Iraq , Oman, and Saudi

Arabia , or as indicated in the Solicitation, the Fifth Fleet area of responsibility

.

The Solicitation contemplated making multiple contract awards and for contract

awardees to “ compete at the task order level for task orders to provide husbanding services for particular port visits.” The joint stipulated facts indicate “[t] he Solicitation requires that, for task order proposals, offerors are to propose fixed prices that include all costs of providing the required husbanding services, inc luding, as relevant here, port tariff

services

. ” The joint stipulations further state:

T he Solicitation provides that one or more task orders may be issued during performance of the contract. Pursuant to the terms of the Solicitation, requests for task or der proposals (RTOP) for specific port visits are issued and contractors have the opportunity to submit offers. A selection would then be made, in most cases, based upon a lowest price technically acceptable basis.

(capitalization in original). The Solici tation indicated that for the requests for task order proposals , “all proposed prices at the task order level” “shall not exceed the m aximum prices indicated in the basic contract. ” In addition, offerors were to propose fixed prices

that include all costs of providing the required husbanding services, including port tariff

services in the task order proposals

.

The Solicitation stated that husbanding service providers “ sh all not be reimbursed, paid, or otherwise compensated for any port use charges, fees, dues or similar costs at ports at which existing host country agreements exempt vessels of the United States from such charges, fees , or dues.” The Solicitati on’s Performance Work Statement, in a “description of contractual scope,” further specified:

T h e services to be provided through performance consist of maritime husbanding support. The holder of this contract is a U.S. Navy contractor,

a husbanding service provider (HSP), and is NOT an agent of the U.S. Navy

and does not have the authority to bind t he U.S. Navy. Maritime husbandi ng support is provided by a HSP from a standard list of supplies/services at a contract fixed p rice. The HSP shall ensure that ordered supplies and

servic es conform to the general requireme nts of the contract pursuant to

this PWS [ Performance Work Statement] . The geographic scope and region covered by this contract includes ALL commercial and military ports located in the United States Central Command (CENTCOM) area of responsibility (AOR).

(capitalization and emphasis in ori ginal). The Solicitation , at Schedule Note 3, also provided that :

Port Tariff i tems and Port Dues are services rendered by a Port Authority’s

con cessionaire. These services are considered as “Reser ved Items” and4

are grayed out in the ELIN spreadsheets (E xhibit A, B, and C) and a firm

fixed

- price (FFP) will be pro posed by the HSP at the Request for Task Order Proposal (RTOP) level. The Government expects HSPs to be the prime contractors for services rendered in a port. If contractors en counter an issue

reg arding Port Tariffs and /or Port Dues at the Task Order level, th ey shall immediately notify the Contracting Officer. In cases where prices are regulated by governments, such as certain Port Tariffs, they will be

identified at the RTOP level . Port Tariff do cumentation may be required to accompany invoices upon completion o f individual task orders during performance of the contract. If this is contrary to local laws or regulations,
HSPs shall imm ediately notify the Contracting Officer.

(capitalization in or iginal).

Regarding the evaluation of the offerors’ proposals, the Solicitation provided that “[t]his is a multiple award, lowest price technically acceptable (LPTA) source selection.

The Government intends to award on initial offers but reserves the right to conduct discussions,” and “[t]he Government has complete discretion to determin e the number of awards for each region with evaluated price being the deciding factor when comparing technically acceptable offerors in a particular region.” The Solicitatio n indicated that:

The following factors will be used to evaluate proposals: Technical Acceptability and Price.

Technical Acceptability will be evaluated on an Acceptable/Unacceptable

basis and will consist of evaluation of two sub

- factors: 1) The propos al does not take exception to any term of the Solicitation, and, 2) the proposal provides a price for all ELINs [Exhibit Line Item Numbers] not grayed out in the Exhibit A, B, and C Pricing Schedules. Proposals must receive an “Acceptable” evaluation in ea ch of the two Technical Acceptability subfactors in order to receive an overall rating of Technically Acceptable. Only those proposals that receive an overall rating of Technically Acceptable can be eligible for award.

Price: The Government will only make award to responsible offerors with the lowest price proposal whose non

- price factors are evaluated Technically Acceptable.

. . .

A fter rating offerors for Technical Acceptability and completing the price analysis, the contracting officer will determine whether the low price, technically acceptable offerors are responsible. Awards will only be made5

to those among the lowest priced Technically Acceptable offers that satisfy the general responsibility standards of FAR 9.104

- 1. [ 2 ]

The Solicitation made cl ear that “[a]ny exception taken to line item descriptions or units of issue shall be submitted in writing to the Contracti ng Officer prior to the date of solicitation closing,” and indicated that “[p]roposals that take exception to any term of the

solicita tion will not be considered for award; therefore, any exception to the Government’s terms must be resolved prior to the solicitation closing date.”

The Navy had previously issued solicitations and awarded contracts to various

contractors to provide mari time husbanding support services to Navy and United States Coast Guard vessels visiting foreign ports in the Middle East

. The joint stipulations state that “MLS is a long

- time Husbanding Service Provider (HSP) contractor to the United States Department of the Navy (Navy).” MLS’ previous contract for husbanding services provided:

The services to be provided through performance consist of maritime husbanding support. The holder of this contract is a U.S. Navy contractor,

a husbanding service provider (HSP), and is NOT an agent of the U.S. Navy

and does not have the authority to bind the U.S. Navy. Maritime husbanding support is provided by a HSP from a standard list of supplies/services at a

contract fixed price or at a port tariff (PT) established by a Por t Authority. Any other service/supply ordered by the ship, but not priced under this contract, will be procured by the Supply Officer of the ship using his/her own contracting authority, or by NAVSUP FLCSI, Detachment Naples, contracting offic ers using an alternative contracting approach i.e [sic] via modification to the contract under the authority of FAR clause 52.243

- 1 “Changes

- Fixed Price, Alternate II” or via a separate contract. The geographic scope and region covered by this contract in cludes ALL commercial and military ports located in the U.S. Central Command (CENTCOM) Fifth Fleet Area of Responsibility (AOR)

. . . .

(capitalization in original). Although the above quoted portion of MLS’ previous contract

was similar to the language i n the Solicitation currently at issue

, MLS’ previous contract language regarding port tariffs was different. MLS’ previous contract provided:

Port Tariff i tems are services rendered by a Port Auth ority’s concessionaire

at rates est ablished and controlled by Port Authorities and published in a public list. The abbreviation “PT” in the pricing schedule identifies the port tariff items that the HSP is not required to price. When the HSP obtains a supply or service from a port or local government

- type organiza tion and the

2 As discussed below, MLS received a contract award from the Navy, so the court does not focus on the ratings that MLS received, or any other potential offeror ’ s ratings, in this Opinion. Moreover, in filing the above captioned protest as a pre

- award protest, MLS is challenging the terms of the Solicitation, and not the evaluations undertaken by the Navy.6

price of that item is set by a published price list then the HSP shall charge the published price of the item. The HSP shall not be paid an amount in excess of the published price of the item . English translated copies of the published price l ist and documentation from t he port authori ty establishing the provider as a mandatory source shall be provided with t he estimat e to the Supply Officer (SUPPO) or Naval Supply System Command (NAVSUP) Fleet Logistic Center Sigonella (FLCSI) contr acting offi cer. If Port Tariffs apply in a port the HSP will provide fixed price items to support the por t provided service. As an example, water or trash is port provided b ut the ship

anchors out and the HSP requires a barge to get the service to the ship.

The H SP m ust have a firm fixed price for the required barge in their pricing

schedule to include any mobilization and demobilization costs. The
Government has provided quantity estimates for PT items based on historical experience to facilitate offerors’ developmen t of fixed prices for

associated items

.

(capitalization in original).

As indicated in its complaint, early in the procurement process, MLS was troubled by the Port Tariff provisions in the Solicitation. MLS raised its concerns regarding the
Solicitatio n’s different P ort T ariff provisions with the Navy during the pre

- proposal questions and answers portion of the Solicitation process

. In Question 2, MLS asked the Navy : “ Host nation regulations stipulate that all ships berthed in ports of CENTCOM

should ha ve a licensed agent. How will the contractor meet the requirement of declaration as agent to the port if the contract does not permit it?” (capitalization in original). 3 The Navy responded:

The solicitation does not prohibit, nor does it limit, the abi li ty of any contractor from entering into any legal arrangement with subcontractors or port authorities that they determine necessary in or der to fulfill their

contracted and legally binding obligations under the U.S. government

3 As discussed below, MLS raised the issue of the Port Tariff provisions during the questions and answers portion of the Solicitation, as well as during its agency level protest. Moreover, MLS ’ attorney of record, at oral argument represented that, once performing as a contractor,

we followed the requirements of the contract and notified the Navy of that [ the issue of the port regulations not allowing MLS to work in the port unless they were an agent of the Navy], and the Navy went out and got another

contractor who was willing to say they were an agent of the Navy to perform the service, and we were

– notified [by] the Navy of that fact. They threatened to terminate us unless we’d stop saying that.

Intervenor Global Defense Logistics, SRL (Global Defense Logistics) subsequently

rec eived the task order awards that MLS was unwilling or unable to perform

.7

contract. How a contractor wh o is awarded a U.S. government contract

under this solicitation meets its con tractual obligations with their own

subcontractors or with port authorities is entirely within the discretion of the respective contractor.

In Question 7, MLS asked the Navy :

H as the Navy conducted verifications ahead of the solicitation with local port

authorities in the AOR [Area of Responsibility] to determine whether or not they will accept an HSP as the Navy’s prime contractor and
contempor aneously not being its agent?” Thi s schedule note makes absolutely no sense since no port authority in the world would ever subjugate themselves to a US Navy Husbanding contractor based in any jurisdiction of the world, port agent or any other vessel owner

- even the US Navy. This is the c ase especially with respect to Military ports that are completel y under the control of the host government. This solicitation attempts to render the H SP the prime contractor for the Navy and contemporaneously declaring t hat it is not the Navy’s agent. The port
authorities in the AOR take a dire ctly opposite view and hold the HSP responsible as though he is the Navy’s agent. Th is is the legal position and

the solicitation i s completely undermining it and underestimating the serious legal consequ ences which w ill flow from such legal chaos. There is a legal

void here between the Navy’s position and the port authorities’ position

w hich cannot be reconciled. Since the reality is that port authorities will not agree to this subjugation, the entire schedule not e #3 [ 4 ] should be removed

from the solicitation/contract as it is illegal and unenforceable.

4 As quoted above, Schedule Note 3 of the Solicitation provides:

Port Tariff items and Port Dues are services rendered by a Port Authority’s

concessionaire. These services are consid ered as “Reserved Items” and are grayed out in the ELIN spreadsheets (Exhibit A, B, and C) and a firm

fixed

- price (FFP) will be proposed by the HSP at the Request for Task Order Proposal (RTOP) level. The Government expects HSPs to be the prime

contractors for services rendered in a port. If contractors encounter an issue regarding Port Tariffs and/or Port Dues at the Task Order level, they shall immediately notify the Contracting Officer. In cases where prices are regulated by governments, such as certain Port Tariffs, they will be identified at the RTOP level. Port Tariff documentation may be required to accompany invoices upon completion of individual task orders during performance of the contract. If this is contrary to local laws or regulations,

HSPs sh all immediately notify the Contracting Officer.

( c apitalization in original).8

(capitalization in original). The Navy responded: “ The Navy has not conducted such verifications and does not expect to do so. Any such verification with port au thori ties is the responsibility of the contractor intending to propose under the solicitation. See also, response to question 2, above.”

The joint stipulations indicate that “ MLS timely submitted a proposal in response to the Solicitation on December 6, 2017 . MLS acknowledged all amendments and submitted required information and pricing in a ccordance with the Solicitation

. ” The joint stipulations also indicate that “[n]one of the revisions t o the Solicitation requested by MLS in its second agency level protes t were made by the Navy, and that the Solicitation closed on December 13, 2017. ” 5

Prior to the proposal due date

, on November 25, 2017, MLS had filed an agency level protest regarding the P ort T ariff provisions in the Solicitation and had requested that the Navy revise the Solicitation to resolve the conflict between the Solicitation ’s P ort T ariff provisions and local port regulations and to allow offerors to submit proposals in respo nse to the revised requirements. The three issues raised in the agency l evel protest were:

1. The Solicitation’s provisions concerning Port Tariff items are contrary to the regulations of the Ports. Port regulations require that Port Tariff items be obtained by the owner of the vessel or an authorized agent of the owner.

The Solicitation expressly states that the HSP contractor is NOT the agent of the Navy. It is therefore impossible for the HSP contractor to perform according to the terms of the Solicitation. Thus, the Solicitation does not state the Navy’s actual requiremen ts for Port Tariff items. The Solicitation must be revised so that either a.) the Navy deals directly with the Port for Port Tariff items, as historically has been the Navy’s practice, or b.) to make the HSP contractor the agent of the Navy for purposes of obtaining Port Tariff items on behalf of the Navy.

2. The Solicitation also requires the HSP contractor to agree to terms and conditions beyond those covered by a Port tariff, but that the Navy will only pay the HSP the Port Tariff amount. The Solicitati on must be revised to allow the HSP to price these additional terms and conditions.

3. Some of the Navy’s terms and conditions in the Solicitation are contrary to the Ports’ regulations in other respects. For example, Ports’ regulations provide that the v essel owner is liable for damage done by the vessel and fines imposed on the vessel. But this Solicitation provides that the HSP, not the Navy, is liable for such things. Although this Solicitation treats a Port as

5 As reference d in th e joint stipulations , MLS had previously filed an agency level protest on September 20, 2017, challenging the 7 day limit for submitting questions. On Sept ember 22, 2017 the Navy issued Amendment 0001 to the Solicitation , which extended the period for questions from 7 day s to 21 days from the date the S olicitation

was issued , rendering MLS’ first agency level protest moot

.9

the subcontractor of the HSP, the Ports h ave refused to comply with requirements this Solicitation imposes on subcontractors. The Solicitation must be revised to eliminate the terms and conditions that are contrary to the Ports’ regulations.

(capitalization in original). After raising these issu es in the agency level protest , MLS requested “that the Navy revise this Solicitation to make it consistent with Port regulations to make it possible for the HSP to perform and so that the Solicitation accurately states the Navy’s actual requirements for o btaining Port Tariff items. We also ask the Navy to extend the time for submission of proposals so that MLS and other offerors have an opportunity to submit proposals based on the Navy’s actual requirements for Port Tariff

items.” (capitalization in origin al). The Navy did not respond to MLS’ second agency level protest before proposals were due. MLS, without the benefit of the Navy’s decision, decided to submit a proposal anyway.

After MLS submitted its proposal, but before contract awards were made, on J anuary 19, 2018, the Navy denied MLS’ agency level protest. The Navy’s denial stated, in part:

C ontrary to the protest, at the ports covered by this solicitation the Navy has not historically followed the practice of dealing directly with the port for por t tariff items. Rather, supplies and services covered by a port tariff have almost universally been acquired under the applicable husbanding contract. The Government reiterates its position that the solicitation does not authorize the HSP to agree with a port that it has agency authority to bind a Navy ship covered by an order to be issued under the contract. The Government intends to contract with the HSP for supplies and services and depends on the HSP to, in turn, ensure that those supplies and service s are provided. That may require, at times, that the HSP contract with a port authority or its designated provider to supply the required supplies and services to the Navy ship.

The Government recognizes that different ports may have different rules

an d regulations and that those rules and regulations may change from time to time. When an HSP looks at the solicitation and the ports covered by the solicitation, the Government reasonably expects it will consider the applicable local rules and regulations , the manner in which the rules and regulations have been applied and enforced, and alternatives that may exist (or can be suggested) to allow port visits to proceed in accordance with the

model set out in the solicitation. The solicitation covers a numbe r of named ports as well as all other ports in each of the countries included in the solicitation. The Government depends on the HSP to know those terms and conditions and to apply approaches that will allow the Government/HSP contract/supplier model in t he solicitation to be applied. In some ports that may just require that the HSP explain the Navy’s contractual relationship with the HSP, while at other ports more innovative solutions may be needed10

such as the HSP providing the port or the port designate d provider some type of a bond. If these alternative approaches result in added cost to the HSP, the HSP may wish to consider including allowance for such costs when determining its fixed prices for supplies and services at the port.

Regardless of what approach may be necessary, the Navy does not authorize the HSP to agree that the HSP has agency authority to contractually bind the Navy or its ships. In limited instances, it may be that one HSP is able to come to agreement with a port for a supply or s ervices in a way that does not purport to bind the Navy while another HSP is unable to reach an agreement. If such a case should happen, then it may result in

a situation in which one HSP but not another is able to submit an offer for a specific port or po rt visit. Such a situation would not be unlike other situations in which one HSP is able to identify and arrange for services in support of a port visit but another HSP is unable to do so and, thus, is unable to submit a complete offer or RTOP response. Th e protest included several examples of port tariff regulations. However, only one, the Bahrain Ports Tariff Terms and Definitions, is for services at ports covered by the solicitation. Husbanding services in Bahrain have historically been acquired through the HSP rather than directly from the port or the port directed service provider. Based on this rationale, the protest request is denied.

(capitalization in original).

After the Navy denied MLS’ agency level protest, on January 29, 2018, MLS filed

a protest at the United States Government Accountability Office (GAO). On March 15, 2018, the GAO issued a decision and determined that MLS’ GAO protest was untimely, indicating that :

W ith respect to the arguments raised in their agency

- level protest, they are untimely because those arguments were raised with our Office more than 10 days after the protester had actual or constructive knowledge of adverse agency action, that is, when the Navy proceeded with the receipt of proposals without amending the RFPs a nd extending their deadline for proposals as requested by MLS.

MLS

- Multinational Logistic Servs., Ltd. , B

- 415971 (Comp. Gen. Mar

. 15, 2018) (citing 4 C.F.R. § 21.2(a)(3)). 6 At the GAO the Navy argued that MLS was not an interested party,

6 The court notes that in addition to the March 15, 2018 GAO decision in MLS

Multinational Logistic Services, Ltd. , B

- 415971, on March 7, 2018, the GAO issued a separate decision in which MLS was protesting a different solicitation at the GAO for

h usbanding services at various ports throug hout Southeast Asia and the Western Pacific region. See generally MLS

- Multinational Logistic Servs., Ltd. , B

- 415782 , 2018 WL

1292614 (Comp. Gen. Mar

. 7, 2018). Similar to the GAO protest for the Solicitation at issue in this protest, the GAO decision for t he husbanding services at various ports11

however, the GAO concluded that “MLS is an interested party for the purposes of these procurements, because the protester’s argument is that the solicitations must be amended in a way that reasonably could materially affect the resulting competitions, both

at the contract and task order levels.” Id.

After the March 15, 2018 decision by the GAO, on April 30, 2018, the Navy

awarded contract number N6817118D0003 to MLS. MLS was one of nine contractors to

receive a contract award. 7 According to the joint stipulations, subseq uently “MLS has received multiple task orders to provide husbanding services under the Contract.” O n July 11, 2018, and after the contract s were awarded under the Solicitation, MLS filed the above captioned protest in the United States Court of Federal Cla ims. MLS indicated that it was protesting

the terms of a solicitation as contrary to applicable law and impossible to perform, prejudicing MLS by preventing MLS from offering its best terms in a proposal under the solicitation and from having a fair oppo rtunity to compete for the contract and task orders under it. MLS seeks declaratory and injunctive relief to the effect that the solicitation must be revised to be consistent with applicable law and so that MLS will have a fair opportunity to compete for a ward of a contract and task orders under it.

MLS seeks :

A declaratory judgment that the Solicitation’s Port Tariff provisions are in violation of applicable law and regulations, and must be revised so that its Port Tariff provisions are consistent with a pplicable laws and regulations,
and to allow MLS and other offerors to compete on a fair and equal basis

for award of a contract under the Solicitation and for task orders thereunder. The Solicitation’s Port Tariff provisions must be revised so that they e ither: 1) provide for the Navy to contract directly with the Port for Port Tariff items, as the Navy has done in the past; or 2) make the HSP the Navy’s agent

authorized to contract with the Port on behalf of the Navy and to bind the Navy.

After the bid p rotest complaint was filed in the United States Court of Federal Claims, th is court held an initial hearing 8 and the parties agreed to a schedule to brief the

throughout Southeast Asia and the Western Pacific region a lso address ed the P ort Tariff provisions and the GAO similarly dismissed that protest as untimely under the GAO’s ten day rule. See id

.

7 Intervenor Global D efense Logistics also received a contract award.

8 In addition to declaratory relief, MLS also sought preliminary injunctive relief, but at the initial hearing the protestor indicated it was not pursuing preliminary injunctive relief and was ready to bri ef all issues on the merits.12

parties’ cross

- motions for judgment on the Administrative Record

, as well as defendant ’s

and inte rvenor’s motions to dis miss MLS’ complaint for lack of subject matter jurisdiction

. After briefing was completed, the court held oral argument in the above captioned protest. 9

DISCUSSION

As a threshold matter, the court addresses defendant ’s and interve nor’s motion to dismiss pursuant to Rule 12(b)(1) (2018) of the Rules of the United States Cour t of

Federal Claims

. D efendant argues that the court should dismiss protestor’s complaint “for lack of subject matter jurisdiction because MLS’s bid protest acti on is untimely, MLS lacks standing, MLS’s claims raise contract administration issues that do not fall within this Court’s bid protest jurisdiction. . . .” Defendant specifically questions

[w] h ether MLS can protest the terms of a solicitation where it fa iled to diligently pursue its claims and did not initiate this bid protest until nearly four months after its protest before the United States Government Accountability Office (GAO) was dismissed, and approximately two and a

half months after it was awarde d contract number N68171

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- D

- 0003 (the Contract) under solicitation number N68171

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- 0004 (the Solicitation)

.

Defendant also questions “[w]hether MLS has standing to maintain its bid protest where it is an awardee of a contract under the Solicitation, has been awarded more than 20 task orders under the Contract, valued at more than $1.2 million, and was not prejudiced by

the terms of the Solicitation.”

Intervenor similarly argues that “ MLS slept on its rights for approximately half a year and failed t o present its protest in a timely way. After losing an agency

- level protest and then filing an untimely protest with the Government Accountability Office (GAO), MLS waited many months to bring its protest at this Court. ” Intervenor also asserts that

becaus e the Navy choose MLS as a n awardee under S olicitation

, “ at best MLS’ complaints can be no more than matters of contract administration subject to the requirements, jurisdictional and otherwise, of the Contracts [sic] Disputes Act (CDA).

Such contractor cl aims cannot be heard under this Court’s bid protest jurisdiction pursuant to 28 U.S.C. [ § ] 1491(b).” Intervenor further argues, “[n]ow that it has become an awardee, MLS cannot establish that it is an actual or prospective bidder as required

to establish s tanding,” and, therefore, MLS “ cannot establish sufficient prejudice to demonstrate that it is an interested party.” MLS responds that “ MLS properly and timely asserted its protest rights in an agency

- level protest and thereafter diligently pursued them,” and also argues that “MLS has standing as an actual offeror challenging the terms

of the Solicitation.”

9 The court notes that oral argument was delayed significantly at the parties’ request, in part because of the parties’ unavailability, and then delayed again for 35 days by the government shutdown. Oral argument finally was able to be scheduled in March 2019.13

D efendant also argues that “[t] he doctrine of waiver compels dismissal of MLS’s protest,” citing to Blue & Gold Fleet, L.P. v. United States , 492 F.3 d 1308 (Fed. Cir. 2007). In contrast, protestor argues that MLS “ indisputably met the Blue & Gold Fleet standard.”

In Blue & Gold , the United States Court of Appeals for the Federal Circuit addressed

whether if an offeror had the opportunity to object to a patent error in the terms of a solicitation, but failed to do so, did the offeror waive the right to challenge that same error in a subsequent bid protest. See id. at 1313. In Blue & Gold , the protestor challenged the

National Park Service’s award of a co ntract to Hornblower Yachts, Inc. (Hornblower) for ferry services to Alcatraz Island. See id. at 1310

- 11. The protestor argued that Hornblower’s proposal did not include employee wage and benefits information required by the Service Contract Act, thus, mak ing the P ark Service mistakenly evaluate the cost of Hornblower’s proposal. See id. at 1312. The Federal Circuit acknowledged that “[b]y statute, the Park Service must ‘evaluate . . . proposals and make an award based solely on the factors specified in th e solicitation.’” Id. at 1313 (quoting 10 U.S.C. § 2305(b)(1)). Moreover, in Blue & Gold , the Federal Circuit acknowledged that “[i]n this case, it is true that the decision not to apply the Service Contract Act to the contract may have influenced

the eval uation of the proposals; however, the Park Service made this decision during the solicitation, not evaluation, phase of the bidding process.” Id. The Federal Circuit in Blue
& Gold noted that the solicitation “ did not include any requirement that the bidde rs consider the Service Contract Act,” id. , and that the protestor had not raised any objection

to the exclusion of the Service Contract Act requirements prior to the submission of proposals. Therefore, the Federal Circuit found that the protestor was chal lenging the terms of the solicitation, not the agency’s evaluation of Hornblower’s proposal. See id.

The Federal Circuit also noted that the protestor in Blue & Gold had failed to challenge the terms of the solicitation until after the Park Service had s elected Hornblower

for contract award. See id. at 1311. In considering if the protestor had waited too long to challenge the solicitation, the Federal Circuit noted that decisions of the Court of Federal

Claims had concluded “that where there is a ‘defici ency or problem in a solicitation . . . the proper procedure for the offeror to follow is not to wait to see if it is the successful offeror before deciding whether to challenge the procurement, but rather to raise the objection in a timely fashion.’” Id. at 1314 (quoting N.C. Div. of Servs. for the Blind v.

United States , 53 Fed. Cl. 147, 165 (2002), aff’d , 60 F. App’x 826 (Fed. Cir. 2003)) (omission in original); see also Draken Int’l, Inc. v. United States , 120 Fed. Cl. 383, 393 (2015). In Blue & Gold , t he Federal Circuit held:

[A] party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subseque ntly in a bid protest action in the Court of Federal Claims.

Blue & Gold Fleet, L.P. v. United States , 492 F.3d at 1313; see also Per Aarsleff A/S v.

United States , 829 F.3d 1303, 1312 (Fed. Cir. 2016); Land Shark Shredding, LLC v.

United States , 142 Fe d. Cl. 301, 311 (2019); MSC Indus. Direct Co. v. United States , 140 Fed. Cl. 632, 641 (2018); Phoenix Mgmt., Inc. v. United States , 125 Fed. Cl. 170, 181 (2016); Universal Marine Co., K.S.C. v. United State s , 120 Fed. Cl. 240, 248

- 49 (2015) ;14

Northeast Constr., Inc. v. United States , 119 Fed. Cl. 596, 609 (2015) ; Innovative Mgmt. Concepts, Inc. v. United Stat es , 119 Fed. Cl. 240, 245 (2014) ; CliniComp Int ’ l, Inc. v.
United States , 117 Fed. Cl. 722, 737

– 38 (2014) ) (“The rule in Blue and Gold Fleet thus bars a protester from raising objections to patent errors or ambiguities in the terms of a solicitation after the closing of bidding if such errors or ambiguities were apparent on the face of the solicitation,” and “[w]hen a solicitation contains a patent ambiguity, the offeror has ‘“a duty to seek clarification from the government, and its failure to do so precludes acceptance of its interpretation”’ in a subsequent court action.” (quoting Blue & Gold Fleet

L.P. v. United States , 492 F.3d at 1313 (quoting Stratos Mobile Networks USA, LLC v.

United States , 213 F.3 d 1375, 1381 (Fed. Cir. 2000)))). The Federal Circuit in Blue & Gold reasoned that such a waiver rule, “requir[ing] that a party object to solicitation terms during the bidding process,” furthered the mandate in 28 U.S.C. § 1491(b) that, “‘ the courts shall give due regard to the interests of national defense and national security and the need for expeditious resolution of the action .’” Blue & Gold Fleet, L.P. v. United States , 492

F.3d at 1313 (quoting 28 U.S.C. § 1491(b)(3)) (emphasis in original).

The Federal Circuit also explained in Blue & Gold :

“It would be inefficient and costly to authorize this remedy after offerors and the agency had expended considerable time and effort submitting or evaluating proposals in response to a defective solicitation. Vendors cannot sit on their rights to challenge what they believe is an unfair solicitation, roll the dice and see if they receive award [sic] and then, if unsuccessful, claim

the solicitation was infirm.”

Id. at 1314 (alteration in original) (quoting Ar gencord Mach. & Equip., Inc. v. United States

, 68 Fed. Cl. 167, 175 n.14 (2005)); see also Bannum, Inc. v. United States , 115 Fed. Cl. 257, 274 (2014).

Additionally, the Federal Circuit has repeatedly determined that waiver can apply
to pre

- award protests as well as to post

- award protests. The Federal Circuit in COMINT Systems Corp. v. United States , 700 F.3d 1377 (Fed. Cir. 2012) , extended the logic of

Blue & Gold to all pre

- award situations, as follows:

In Blue & Gold Fleet, L.P. v. United States , this court held that “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection afterwards in a § 1491(b) action in the Court of Federal Claims.” [ Blue & Gold Fleet, L.P. v.

United States ,] 492 F.3d 1308, 1315 (Fed. Cir. 2007). Comint points out that

Blue & Gold ’

s holding does not explicitly apply to this case since Comint had no opportu nity to challenge the solicitation before “the close of the bidding process,” Amendment 5 having been adopted after the bidding process closed. Amendment 5 was, however, adopted before the award, and we think the reasoning of Blue & Gold applies to all sit uations in which the protesting party had the opportunity to challenge a solicitation before15

the award and failed to do so.

There is no question that Comint could have challenged the solicitation before the award. The Federal Acquisition Regulations requi re that agency contracting officers “consider all protests . . . whether protests are submitted

before or after award .” 48 C.F.R. § 33.102(a) (emphasis added). If efforts to obtain relief from the contracting officer fail, the Tucker Act specifically

autho rizes pre

- award challenges. The statute gives the Claims Court “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency,” and further provides that the Claims Court has jurisdiction “without regar d to whether suit is instituted before or after the contract is awarded.” 28 U.S.C. § 1491(b)(1).

The same policy underlying Blue & Gold supports its extension to all pre

award situations. In Blue & Gold , we explained:

In the absence of a waiver rule, a contractor with knowledge of a solicitation defect could choose to stay silent

. . . . If its [ ] proposal loses to another bidder, the contractor could then come forward with the defect to restart the bidding process, perhaps with increased knowledge of it s competitors. A waiver rule thus prevents contractors from taking advantage of the government and other bidders, and avoids costly after

the

- fact litigation.

[ Blue & Gold Fleet, L.P. v. United States, ] 492 F.3d at 1314.

To be sure, where bringing the c hallenge prior to the award is not practicable, it may be brought thereafter. But, assuming that there is adequate time in which to do so, a disappointed bidder must bring a challenge to a solicitation containing a patent error or ambiguity prior to the

aw ard of the contract.

COMINT Sys. Corp. v. United States , 700 F.3d at 1382 (footnote omitted; alteration and emphasis in original); see also Per Aarsleff A/S v. United States , 829 F.3d at 1312 ; Comm’n Constr. Servs., Inc. v. United States , 116 Fed. Cl. 233 , 261

- 62 (2014) (“[P]arties who have the opportunity to object to the terms of a solicitation containing patent errors or ambiguities and fail to do in a timely fashion waive their ability to subsequently raise the same objections. . . . The Blue & Gold w aiver rule as extended by COMINT is simple: if there is a patent ambiguity or error in the solicitation, a plaintiff must seek redress in court prior to award.”).

The Federal Circuit also explained in Bannum, Inc. v. United States :

Our waiver rule implem ents Congress’s directive in the Administrative Dispute Resolution Act (ADRA) of 1996, Pub. L. No. 104

- 320, § 12, 11016

Stat. 3870, 3874, that courts “shall give due regard to . . . the need for expeditious resolution” of protest claims. 28 U.S.C. § 1491(b)( 3); see Blue & Gold, 492 F.3d at 1313. A waiver rule implements this statutory mandate by reducing the need for the “inefficient and costly” process of agency rebidding “after offerors and the agency ha[ve] expended considerable time and effort submitting or evaluating proposals in response to a defective

solicitation.” Blue & Gold , 492 F.3d at 1314 (internal quotation marks and citation omitted). In this context, clarity is not just readily achievable but important. Requiring that the prescribed formal rou tes for protest be followed (to avoid waiver) reduces uncertainty about whether the issue is joined and must be resolved, and thereby helps prevent both the wasted and duplicative expenses (of all bidders and the government) and the delayed implementation of the contract that would likely follow from laxer standards of timely presentation of solicitation challenges.

Bannum, Inc. v. United States , 779 F.3d 1376, 1380 (Fed. Cir. 2015) (alterations in original)

. The Federal Circuit in Bannum also emphasized t hat:

The solicitations at issue and the governing regulations put Bannum on notice of the formal requirements for filing a “protest” that would trigger an agency obligation of response and prompt resolution. Bannum did not comply with those requirements; nor did it pursue other available means of formal protest ( e.g., to the GAO or the Court of Federal Claims) until after the awards. In these circumstances, it waived its solicitation challenges.

Id. (emphasis in original).

It is undisputed by the partie s that MLS raised its objections regarding P ort T ariff provisions with Navy before the close of the Solicitation

. According to the joint stipulations :

“ On November 25, 2017, prior to the due date for receipt of proposals , MLS submitted to the Navy contract ing officer a second agency

- level pre

- proposal protest under FAR 33.103 objecting to the Solicitation’s port tariff provisions. ” (emphasis added). It

, therefore, is evident that MLS met the requirement of Blue & Gold , which , as discussed above, instructed that

a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest a ction in the Court of Federal Claims.

Blue & Gold Fleet, L.P. v. United States , 492 F.3d at 1313

. As noted above, t he policy objectives underlining Blue & Gold are:

In the absence of a waiver rule, a contractor with knowledge of a solicitation

defect c ould ch oose to stay silent when submitting its first proposal. If its

first proposal loses to another bidder, the contractor could then come17

forward with the defect to restart the bidding process, perhaps with increased knowledge of its competitors. A waiv er rule thus prevents contractors from taking advantage of the government and other bidders, and avoids costly after

- the

- fact litigation.

Id. at 1314; see also COMINT Sys. Corp. v. United States , 700 F.3d at 1382 . Instead of trying to gain an advantage o ver its competitors

, MLS tried to clarify

, on behalf of itself and all other potential offerors, what, to MLS, seemed like an obvious problem, the P ort
Tariff provisions require the contractors to be agent s , but the Solicitation did not permit

the contract or s to be agent s of the Navy . MLS raised this potential issue to the Navy during both the question and answer portion of the Solicitation process and during its agency level protest . As noted above in Bannum :

The solicitations at issue and the governing r egulations put Bannum on notice of the formal requirements for filing a “protest” that would trigger an agency obligation of response and prompt resolution. Bannum did not comply with those requirements; nor did it pursue other available means of formal pr otest ( e.g., to the GAO or the Court of Federal Claims) until after the awards. In these circumstances, it waived its solicitation challenges.

Bannum, Inc. v. United States , 779 F.3d at 1380 (emphasis in original) . Here, MLS filed its agency level protest in advance of the close of the Solicitation, but unlike the Federal

Circuit’s expectation in Bannum of an “ agency obligation of response and prompt

resolution

, ” the Navy did not promptly respond to the agency level protest filed by MLS

, and did not respon d before proposal submission s were due . MLS filed its agency level
protest on November 25, 2017, and without having received an answer from the agency

, submitted its proposal on December 6, 2017 . The Navy did not respond until on January 19, 2018 when it d enied MLS’ agency level protest , which was after December 13, 2017

, the date proposals were due

.

Despite acknowledging that MLS timely filed an agency level protest in advance of the close of the Solicitation, d efendant nevertheless argues that MLS’ “fa ilure to diligently pursue its claims afterward waived its right to maintain its present protest.” Defendant notes that after MLS filed its protest MLS submitted its proposal, MLS did not take any exceptions to the Solicitation in its proposal

, 10 and also d id not file a protest at the GAO

or in the United States Court of Federal Claims before the Solicitation closed. Defendant

stresses “MLS waited 47 days after the Solicitation closed before filing its GAO protest, which was dismissed as untimely on March 15 , 2018,” and that “[i]t was not until July 11, 2018, nearly four months after its GAO protest was dismissed, and two

- and

- a

- half months

10 The court notes that the Solicitation specifically provides that “[a]ny exception taken to line item descriptions or units of issue shall be submitted in writing to the Contracting Officer prior to the date of solicita tion closing,” and indicated that “[p]roposals that take exception to any term of the solicitation will not be considered for award; therefore, any exception to the Government’s terms must be resolved prior to the solicitation closing

date.”18

after it was awarded the Contract, that MLS filed this bid protest contesting t he terms of

the Solicitation.” According t o d efendant

, “ MLS has not attempted to explain how its present protest could be timely given the long delay between the dismissal of its untimely GAO protest and its initiation of the present bid protest. Instead, it relies on its agency

level protest and is wholly silent on the delays that followed.” (internal reference omitted).

Defendant cites to CGI Federal, Inc. v. United States

, Rex Service Corp. v. United States

, and Digitalis Education Solutions, Inc. v. United States , to argue that a failure to di ligently pursue a claim after denial of an agency level protest and/or a GAO protest can result in

waiver.

In CGI , the United States Department of Health and Human Service’s Centers for Medicare and Medicaid Services issued requests for quotes in order t o issue contracts that would use the awardees to determine if Medicare claims had been correctly paid.

See CGI Fed.

, Inc. v. United States , 779 F.3d 1346, 1347 (Fed. Cir. 2015). The Federal Circuit indicated if the contractor identified an overpayment, the agency would send a demand letter to the provider and repayment, and then pay the contractor a contingency

fee. See id. In CGI , CGI protested the payment terms of the requests for quotes, contending that the terms violated certain statutory and regulatory provisions. See id. As noted by the Federal Circuit:

Five different contractors bid on the 2014 RFQs, but CGI did not. Instead, before bidding closed, CGI filed a timely pre

- award protest at the Government Accountability Office (“GAO”) challenging the r evised payment terms. While the GAO protest was pending, the bidding period closed. The GAO subsequently denied the protest. Three business days later, CGI filed a protest in the United States Court of Federal Claims.

Id. at 1348. In CGI , th e Federal Circ uit recognized that “ CGI never submitted a bid in response to the 2014 RFQs and thus is not an actual bidder. CGI must therefore show that it was a prospective bidder at the time it filed its protest in the Court of Federal Claims.

We hold th at it has made such a showing.” Id. As explained by the Federal Circuit:

CGI was a prospective bidder when it promptly initiated and diligently pressed its protest in the GAO forum, which Congress has encouraged protestors to use before suing in court. Unsuccessful in the GAO, it immediately filed for relief in court. We do not think that Congress meant for a protestor in CGI's position to lose its entitlement to sue just because delays engendered by the GAO adjudicatory process pushed completion past the closing date f or bid submissions. Concluding, as we do, that CGI filed a protest prior to the close of bidding and thereby established its prospective bidder status, and that CGI thereafter diligently pursued its rights, CGI has prospective bidder status to pursue its C ourt of Federal Claims protest.

Id. at 1351. Furthermore, in CGI

, the Federal Circuit determined that “CGI retained its prospective bidder status throughout the pendency of its GAO protest because it was19

continuously pursuing its challenge to the payment terms in the 2014 RFQs.” Id. at 1349

- 50 (footnote omitted).

In drawing a contrast with the protestor in CGI , the Federal Circuit described the procedural history in Rex Service Corp. v. United States , 448 F.3d 1305 (Fed. Cir. 2006)

, as follows:

Rex initi ally filed a pre

- award protest with the agency. The agency denied its protest, and Rex, having not submitted a bid, did not pursue the matter further. The agency subsequently awarded the contract to another party

and

- two months after the award and three mo nths after the agency denied its initial protest

- Rex filed a post

- award protest in the Court of Federal Claims, raising issues entirely different from those raised in its agency

pr otest

. We held that Rex was not a prospective bidder because it “could

have bid, but chose not to.” We noted that in Rex's case, its pre

- award agency protest was “not relevant” to determining its prospective bidder

status. We again noted that “‘the opportunity to qualify either as an actual or a prospective bidder ends when the proposal period ends.’” We held that “In the end, Rex did not submit a bid; nor did it file a timely bid protest in the

Court of Federal Claims.”

CGI Fed.

, Inc. v. United States , 779 F.3d at 1349 (citations omitted). The Federal Circuit

in CGI continued :

In Rex, the protestor waited nearly three months after the agency denied its initial protest before filing the protest at issue and, in the interim, the agency

awarded the contract to another bidder. Rex , 448 F.3d at 1307. Here, CGI

filed its Court of F ederal Claims protest within three business days of receiving its dismissal from the GAO and before CMS [ United States Department of Health and Human Service's Centers for Medicare and

Medicaid Services ] had awarded the contract. CGI, having secured

prospe ctive bidder status by filing its timely GAO protest

, did not lose it in the three business days it took to file in the Court of Federal Claims. We acknowledge that Rex explained that the timely filed agency protest was

“not relevant to Rex's status” as a prospective bidder at the time that it filed its Court of Federal Claims protest. This, we conclude, is because Rex failed to continue to pursue its rights in a diligent fashion, and thus ceased to be a prospective bidder. Rex's agency denial was met with inaction. That inaction persisted for months, and during that time the government awarded the contract. By the time Rex filed its Court of Federal Claims protest, its agency protest was no longer relevant.

CGI Fed.

, Inc. v. United States , 779 F.3d at 13 50

- 51 (footnotes omitted). The Federal
Circuit in CGI stated:

The same cannot be said of CGI, which diligently and continuously pursued its rights in the GAO and then, immediately upon dismissal by the GAO, in20

the Court of Federal Claims. Neither party d isputes that CGI qualified as a prospective bidder on the day that it filed its GAO protest. Thus, it “achieve[d] prospective bidderhood” at that time. MCI , 878 F.2d at 365 . The

fact that

- as MCI, Federal Data , and Digitalis all make clear

- CGI’s opportunity to qualify as a prospective bidder ends when the solicitation period ends does not doom CGI because it had already achieved prospective bidder status with its timely GAO protest. It seems equally clear that CGI retained its prospective bidder status throu ghout the pendency of its GAO protest because it was continuously pursuing its challenge to the payment terms in the 2014 RFQs.

CGI Fed.

, Inc. v. United States , 779 F.3d at 1349

- 50 (emphasis in original; footnotes omitted).

In Digitalis Education Soluti ons, Inc. v. United States

, 664 F.3d 1380 (Fed. Cir. 2012) , the protestor , Digitalis Education Solutions, Inc . ( Digitalis ) was a manufacturer of digital planetariums, and the Department of Defense published a notice on Fe dB iz O pps of its intention to award a sole source contract to a company called Science First for the digital planetariums. See i d. at 1383. After the Department of Defense award ed the
contract to Science First on September 25, 2010 , Digitalis initially complained

, not to the Department of De fense

, but to a member of Congress, who forwarde d Digitalis’ complaint

to the Department of Defense. See id. The “ Department responded to the Congressman stating that because Digitalis did not file a capability statement or otherwise protest the

sole

- sourc e award, the Departme nt would not consider Digitalis’ s objections. ” I d. Only

a fter this rejection did Digitalis object directly to the Department of Defense on December 2, 2010, and the n filed a protest at the United States Court of Federal Claims on Decem ber 6, 2010

. See id. The defendant in Digitalis argued that :

Digitalis is not an “interested party” und er 28 U.S.C. § 1491(b)(1) because it fails both prongs of the relevant test: it is not an actual or prospective

bidder a nd it does not possess a direct economic interest. The government argues that Digitalis was not an “actual or prospective bidder” because it failed to submit a capability statement. It analogizes to Rex Service where we held that if a party does not bid du ring the bid period, it does not have standing regardless of any illegalities by the government in the bid process.

Di gitalis Educ. Sol s

. , Inc. v. United States

, 664 F.3d at 1 384. The Federal Circuit in Digitalis noted:

We held that Rex Service did not s atisfy either prong of the test for standing because it failed to submit a proposal during the prescribed time. Id. [ Rex Service Corp. v. United States , 448 F.3d] at 1307

– 08. We noted that “in order to be eligible to protest, one who has not actually submitted an offer

must be expecting to submit an offer prior to the closing date of the solicitation” and that the opportunity to become a prospective bidder ends when the proposal period ends. Id. at 1308 (quoting MCI , 878 F.2d at 365).21

We further held that Rex Service had no direct economic interest because

it had no substantial chance to be awarded the contract due to its failure to

submit a bid. Id. at 1308.

We see no reason to limit this rule to competitive procurements. Indeed, the Court of Federal Claims has already extended it to sole

- source contracts
under similar facts. See I nfrastructure Def. Techs. v. United States , 81 Fed. Cl. 375 (2008) . In a sole

- source award s uch as this one, the notice of intent issued by the government is analogous to a request for a proposal. Interested parties are invited to submit statements of capability in order to convince the government that it should hold a full competition for the

co ntract rather than sole

- source the contract to the proposed contractor. We therefore hold that in order to be an actual or prospective bidder, a party must submit a statement of capability during the prescribed period. Failure to do so also means that a pa rty does not have the requisite direct economic interest because it cannot have a “substantial chance” of convincing the government to hold a formal competition and subsequently bid on the

contract. Rex Ser v. , 448 F.3d at 1308

.

Digitalis Educ. Sols. , Inc. v. United States

, 664 F.3d at 1385 (emphasis in original).

In all three cases, the Federal Circuit considered whether delay caused the protestor to lose its prospective bidder status. In commenting that delays of months prior to filing a protest in the United States Court of Federal Claims in both Rex Service and Digitalis

, the Federal Circuit in CGI specifically noted that the lengthy delays caused the protestors to lose their “prospective bidder” statu s

. See CGI Fed.

, Inc. v. United States

, 779 F.3d at 1349, 1351. In none of the three decisions cited by defendant, however, had the protestor actually submitted a proposal. T herefore, t he issue before the courts in the three cases turned on whether the pro testor s who had never submitted bids in response to the respective solicitations could be considered prospective bidder s . Despite the issues MLS had with the Solicitation, MLS timely submitted a proposal without taking any exceptions to the Solicitation, a nd was an actual offeror when the Solicitation closed. In MLS’ protest before the court , there is no debate about MLS’ status as a bidder

, specifically, that MLS timely filed a proposal with the Navy before the close of the

Solicitation

.

The defendant al so points to the language in Blue & Gold that pursuant to 28 U.S.C. § 1491(b) (2018) , “‘ the courts shall give due regard to the interests of national defense and national security and the need for expeditious resolution of the action .’” Blue & Gold Fleet, L.P. v. United States , 492 F.3d at 1313 (quoting 28 U.S.C. § 1491(b)(3)) (emphasis in original). T he court notes , however, that MLS has a reasonable explanation

for the time between when the MLS’ GAO protest was dismissed and when MLS decid ed

to file suit in this court

. 11 As indicated above, the defendant points out that protestor did

11 As noted a bove, the GAO protest was considered untimely by the GAO because the arguments in the agency level protest “ were raised with our Office more than 10 days22

not file suit in this court until July 11, 2018, nearly four months after MLS’ GAO protest

was dismissed and nearly seven months after the Solicitation closed

. In its reply bri ef, MLS states that “[a]t the Navy’s invitation, MLS sought to resolve its objections to the solicitation with the appropriate naval authorities over the course of several months.” MLS

states that after the GAO protest was dismissed,

Navy counsel invited MLS to engage in discussions prior to filing this protest in an effort to resolve the issues MLS had raised in its protests to the Navy and GAO. Throughout March, April, May and June 2018, MLS and representatives of the Navy engaged in such discussions. T hose discussions concluded on June 26, 2018 without agreement.

MLS’ good faith discussions with the Navy, 12 and hope for a resolution, explain s the delay between the dismissal of the GAO protest and MLS filing suit in the United States Court

of Federal Cla ims. The court finds th at MLS had not waived its challenge to the terms of

the Solicitation when protestor filed its complaint in this court on July 11, 2018.

Next, defendant argues that protestor lacks standing “to maintain this bid protest

because it i s the awardee of a contract under the Solicitation

. . . .” Intervenor echoes

defendant’s contention, arguing “[t] he Court lacks bid protest jurisdiction under 28 U.S.C. § 1491(b) over MLS’ claims since they concern post

- award contract administratio n matters. Such claims can only be heard pursuant to the Court’s CDA jurisdiction under 28 U.S.C. § 1492(a)(2), not the Court’s bid protest jurisdiction, upon which MLS’ Complaint exclusively

relies.” MLS responds that “MLS has standing here despite the fact it is a contract

awardee.”

It is well established that “‘subject

- matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp. , 546 U.S. 500, 514 (2006) (quoting Unit ed States v. Cotton , 535 U.S. 625, 630 (2002)). “[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either o verlook or elect not to press.” Henderson ex rel.

after the protester had actual or constructive knowledge of adverse agency action, that is, when the N avy proceeded with the receipt of proposals without amending the RFPs and extending their deadline for proposals as requested by MLS.” MLS

- Multinational Logistic Servs., Ltd. , B

- 415971 (citing 4 C.F.R. § 21.2(a)(3)). There is no comparable ten

day rule in the United States Court of Federal Claims.

12 In the Navy’s June 26, 2018 letter to MLS, the Navy emphasized that “[i]t is our intention to review your recommendation in the context of the overall acquisition strategy and solicitation development for the up coming worldwide husbanding solicitation. We can assure you that the specific issue you raise will get significant contracting and legal attention.” Neither the defendant nor the intervenor challenges the authenticity or veracity of the letter provided by MLS regarding the Navy’s conduct for the time between the GAO dismissal and MLS filing suit in this court.23

Henderson v. Shinseki , 562 U.S. 428 (2011); see also Hertz Corp. v. Friend , 559 U.S. 77, 94 (2010) (“Courts have an independent obligation to determine whether subject

- matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp

. , 546 U.S. at 514)); Special Devices, Inc. v. OEA, Inc. , 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a case.” (citing

Johannsen v. Pa y Less Drug Stores N.W., Inc. , 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng'g, Inc. v. Robotic Vision Sys., Inc. , 115 F.3d 962, 963 (Fed. Cir. 1997) (“ [C]ourts must always look to their jurisdiction, whether the parties raise the issue or not.” ). “The

ob jection that a federal court lacks subject

- matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp. , 546 U.S. at 506; see al so Hymas v. United
States , 810 F.3d 1312, 1317 (Fed. Cir. 2016) (explaining that a federal court must satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case); Cent. Pines Land Co., L.L.C. v. United States , 697 F .3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection to a court's subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp. , 546 U.S. at 50 6)); Rick’s Mushroom Serv., Inc. v. United States

, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp. , 546 U.S. at 506; Folden v. Uni ted States , 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied , 545 U.S. 1127 (2005); and Fanning, Phillips

& Molnar v. West , 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States , 97 Fed. Cl. 71, 76, ap peal dismissed , 425 F. App’x 902 (Fed. Cir. 2011). In fact, “[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte , even where . . . neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings

, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp.

, 134 F.3d 1481, 1485 (Fed. Cir.)

, reh’g denied and en banc suggestion declined (Fed. Cir.), cert. denied

, 525 U.S. 826 (1998)), reh’g and reh’g en ban c denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc. , 546 U.S. 975 (2005),

cert. dismissed as improvidently granted , 548 U.S. 124 (2006).

This court has jurisdiction to hear bid protests pursuant to 28 U.S.C. § 1491(b)(1) of the Tucker Act, which provides that this court has

jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed
contract or to a pro posed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1); see also Weeks Marine, Inc. v. United States , 575 F.3d 1352, 1359 (Fed. Cir. 2009 ). The Administrative Dispute Resolution Act of 1996, codified at 28 U.S.C. § 1491(b)(1)

– (4), amended the Tucker Act to establish a statutory basis for bid protests in the United States Court of Federal Claims. See Impresa Construzioni Geom.

Domenico Garuf i v. United States , 238 F.3d 1324, 1330

– 32 (Fed. Cir. 2001).24

The Tucker Act grants the United States Court of Federal Claims “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(a)(1) (2012). In order to have standing to sue as an “interested party” under this provision, a disappointed bidder must show that it suffered competitive injury or was “prejudiced” by the alleged error in the
procurement process. See Todd Constr., L.P. v. United States , 656 F.3d 1306, 1315 (Fed.

C ir. 2011) (To prevail, a bid protester must first “‘show that it was prejudiced by a significant error’ (i.e., ‘that but for the error, it would have had a substantial chance of securing the contract).’” (quoting Labatt Food Serv., Inc. v. United States , 5 77 F.3d 1375, 1378, 1380 (Fed. Cir. 2009)); Blue & Gold Fleet, L.P. v. United States , 492 F.3d at 1317;

see also Sci. Applications Int’l Corp. v. United States , 108 Fed. Cl. 235, 281 (2012); Linc Gov’t Servs., LLC v. United States , 96 Fed. Cl. 672, 693 (20 10) (“In order to establish standing to sue, the plaintiff in a bid protest has always needed to demonstrate that it suffered competitive injury, or ‘prejudice,’ as a result of the allegedly unlawful agency decisions.” (citing Rex Serv. Corp. v. United Sta tes

, 448 F.3d at 1308; Statistica, Inc. v. Christopher

, 102 F.3d 1577, 1580

– 81 (Fed. Cir. 1996); Vulcan Eng’g Co. v. United States

, 16 Cl. Ct. 84, 88 (1988); Morgan Bus. Assocs., Inc. v. United States

, 223 Ct. Cl. 325, 332 (1980))). In order to establish w hat one Judge on this court has called “allegational prejudice” for the purposes of standing, the bidder must show that there was a “substantial chance” it would have received the contract award, but for the alleged procurement error.

See Linc Gov’t Servs. , LLC v. United States , 96 Fed. Cl. at 675; Hyperion, Inc. v. United
States , 115 Fed. Cl. 541, 550 (2014) (“The government acknowledges that proving prejudice for purposes of standing merely requires “allegational prejudice,” as contrasted to prejudice on the merits . . . .”); Bannum, Inc. v. United States , 115 Fed. Cl. 148, 153 (2014); see also Bannum, Inc. v. United States

, 404 F.3d 1346, 1358 (Fed. Cir. 2005); Galen Med. Assocs., Inc. v. United States

, 369 F.3d 1324, 1331 (Fed. Cir.), reh’g denied (Fed. Cir. 2004); Info. Tech. & Applications Corp. v. United States

, 316 F.3d 1312, 1319 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003); Statistica, Inc. v. Christopher

, 102 F.3d at 1581; Archura LLC v. United States , 112 Fed. Cl. 487, 497 (2013); Lab. Corp.

of Am. v. United States , 108 Fed. Cl. 549, 557 (2012). Because standing is a jurisdictional issue, this showing of prejudice is a threshold issue. See Corus Grp. PLC. v. Int’l Trade

Comm'n , 352 F.3d 1351, 1357 (Fed. Cir. 2003); Myers Investigati ve & Sec. Servs., Inc.

v. United States , 275 F.3d 1366, 1370 (Fed. Cir. 2002).

In the context of a pre

- award bid protest, the United States Court of Appeals for the Federal Circuit has determined that to show the requisite “direct economic interest,”

and , therefore, to be an “interested party” under the Tucker Act, the protestor has to have

suffered a “‘non

- trivial competitive injury which can be redressed by judicial relief.’” See Orion Tech., Inc. v. United States , 704 F.3d 1344, 1348 (Fed. Cir. 2013) ( quoting Weeks Marine, Inc. v. United States , 575 F.3d at 1362

– 63); see also COMINT Sys. Corp. v.

United States , 700 F.3d at 1383 n.7 (“[I]n Weeks Marine this court specifically held that

the ‘non

- trivial competitive injury’ standard was applicable to ‘a pr e

- award protest.’” (quoting Weeks Marine, Inc. v. United States , 575 F.3d at 1362)) (emphasis in original); MVS USA, Inc. v. United States , 111 Fed. Cl. 639, 647 (2013) ; Miles Constr., LLC v.25

United States , 108 Fed. Cl. at 797. This is a lower standard tha n the “substantial chance” standard used in post

- award bid protests, but still requires a “showing of some prejudice.” Orion Tech., Inc. v. United States , 704 F.3d at 1348

- 49 (quoting Weeks Marine, Inc. v.
United States , 575 F.3d at 1362) (emphasis in orig inal).

As explained by the United States Court of Federal Claims in Digitalis Education Solutions, Inc. v. United States :

Only an “interested party” has standing to challenge a contract award. Rex Serv. Corp. v. United States , 448 F.3d 1305, 1307 (Fed. Cir. 2006) . An interested party is an actual or prospective bidder whose direct economic interest would be affected by the award of the contract. Id. Thus, a party must show that it is 1) an actual or prospective b idder and 2) that it has a direct economic interest. “[I]n order to be eligible to protest, one who has not actually submitted an offer must be expecting to submit an offer prior to the closing date of the solicitation.” MCI Telecomms. Corp. v. United States

, 878 F.2d 362, 365 (Fed. Cir. 1989) . To prove a direct economic interest, a party must show that it had a “substantial chance” of winning the contract.

Rex Serv. , 448 F.3d at 1308

.

Digitalis Educ. Solutions, Inc. v. United States

, 664 F.3d at 1384 ; see also Am. Fed ’ n of Gov't Emps. v. United States , 258 F.3d 1294, 1302 (Fed. Cir. 2001), cert. denied , 534 U.S. 113 (2002); Centech Grp., Inc. v

. United States , 78 Fed. Cl. 496 , 503

- 504 (2007)

.

Defendant and intervenor argue that MLS cannot satisfy the interested party standard, first because MLS received a contract award. A number of decisions by judges of the United States Court of Federal Claims support the defendant ’s and the intervenor’s argument that awardees of contracts can only bring claims under the court’s CDA jurisdiction, see 41 U.S.C. § 7101 et seq. (2018)

, and not pursuant to the court’s bid protest jurisdiction. See 28 U.S.C. § 1491(b)(1)

. For example, d efendant and intervenor

cite to Kellogg Brown & Root Serv ices , Inc. v. United States , 117 Fed. Cl. 764 (2014 ).

The Kellogg Brown & Root court indicated that the case originated from a solicitation to

cond uct closeout activities for Kellogg Brown & Root Services, Inc

. , which the court noted was commonly referred to as the LOGCAP III Contract. See i d. at 765. The Kellogg Brown

& Root court explained that “[u] nder LOGCAP III, KBR provided support services and logistics to the United States Army in connection with the wars in Iraq and Afghanistan. The contract was largely conducted on a cost

- reimbursement basis. The performance period for the contract ran from December of 2001 through December 13, 2011 .” Id. at

766. The Kellogg Brown & Root court noted that the LOGCAP III Contract did not address

how its closeout would be conducted after the end of contract performance

. The Kellogg

Brown & Root court indicated that

[a]lthough there were discussions prior to th e end of the contract, no final agreement regarding closeout was reached before the end of contract performance in December, 2011. The LOGCAP III closeout activities had since that time been paid for under a series of modifications to Task Order26

160, which had been issued December 10, 2010, to create a small program

managemen t office unrelated to closeout.

Id. (internal references omitted and footnote omitted ). Subsequently, the Army proposed Kellogg Brown & Root submit a firm

- fixed price, rather than a co st

- reimbursement, proposal for the LOGCAP III Contract closeout. Kellogg Brown & Root ob jected, and rather than respond to the Army’s proposal, filed a protest with the GAO, and after the GAO protest was dismissed, filed a bid protest in the United States Court of Federal

Claims. See id. at 766

- 67. In this court, the government argued that Kellogg Brown &

Root , as a contract awardee, was obligated to resolve any disputes related to the closeout of the LOGCAP III Contract under the procedures contained in th e CDA. The J udge of

t he United States Court of Federal Claims in Kellogg Brown & Root concluded :

The Court is not persuaded that this matter comes under our bid protest jurisdiction. First, the Court agrees with the line of cases holding that when
a party brings a challenge in our court to an agency action which affects that party because it is a contractor and not because it is (or might be) an offeror, the only vehicle it may use is the CDA. Although most federal contractors were at one point offerors fo r the contracts they received, once the contracts are awarded their interests in disputes with the government are those of contractors, not offerors. Thus the CDA, which mandates that “[e]ach claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision,” 41 U.S.C. § 7103(a)(1) , must be followed to ripen the matter for court review.

See 28 U.S.C. § 1491(a)(2)

.

Kellogg Brown & Root Servs., Inc. v . United States , 117 Fed. Cl. at 769 (footnote omitted).

The Kellogg Brown & Root court further limited when awardees could bring bid protest claims by indicating that

[t] he Court d oes not believe that the terms “bids or proposals” are in the plural by accident. Rather, they are used because the purpose of this provision is to allow protests to the terms of competitive solicitations, in which a contract may be lost to another bidder due to an improper advantage. The provision is not designed to allow a p arty to object to a request for a proposal directed to that party alone and no others.

Id. at 770 (footnote s omitted). Notably, the Kellogg Brown & Root court wrote in a footnote

that : “Of course, when a proposed corrective action effectively restores an awardee to the status of bidder by requiring it to compete again for a contract award, this action may be challenged by the former awardee in a bid protest.” Id. at 769 n.5

.

In addition to Kellogg Brown & Root Services , defendant and intervenor cite to:

TransAtlantic Lines LLC v. United States , 126 Fed. Cl. 756 (2016); I T tility, LLC v. United

States , 124 Fed. Cl. 452 (2015); Trailboss Enterprise, Inc. v. United States , 111 Fed. Cl. 338 (2013); Diversified Maintenance Sys tem s, Inc. v. United States , 103 Fe d. Cl. 43127

(2012); and Outdoor Venture Corp

. v. United States , 100 Fed. Cl. 146 (2011)

, cases in

which the courts found the contractor lack ed standing to bring a bid protest action

. In
TransAtlantic Lines LLC v. United States , 126 Fed. Cl. 756, in 2012, th e United States Transportation Command (USTRANSCOM) awarded 28 offerors i ndefinite delivery/indefinite quantity contracts to provide international cargo transportation and distribution services for Department of Defense cargo. See id. at 757. After the con tracts were set to expire, USTRANSCOM decided to pursue the next generation of cargo contracts, but due to post

- award protests at the GAO, USTRANSCOM issued sole source bridge contracts for a six month term and a five percent increase for carrier rates. Se e id.

The TransAtlantic court noted that the same day that USTRANSCOM decided on the sole

source bridge contracts, TransAtlantic contacted to USTRANSCOM to “ inquire whether

TransAtlantic would be allowed to add inland trucking rates, i.e., ‘late rates,’ on the West Azores route during the six

- month extension period. USTRANSCOM decided that

TransAtlantic would not be able to add the inland trucking rate, because the Government

was not ‘ refreshing rates at this time.’” Id. (footnote and internal reference omi tted). TransAtlantic subsequently file d a bid protest in the United States Court of Federal Claims arguing USTRANSCOM ’s failure to accept their proposed land rates was arbitrary and capricious. See id. The TransAtlantic court noted that :

TransAtlantic re turned the executed bridge contract to USTRANSCOM, thereby accepting the terms therein. TransAtlantic's claims concerning USTRANSCOM's rejection of TransAtlantic's proposed land rates are disputes that concern the “late rates” provisions

- Paragraphs 1.1, 1. 41

– 1.42,

and 1.5

- of the USC

- 7, that were incorporated by reference into the bridge

con tract. Therefore, TransAtlantic’ s dispute is a matter a contract administration, that must be a djudicated pursuant to the CDA.

Id. at 763

- 64. Notably, the TransAtlantic court indicated that “TransAtlanti c did not claim
that USTRANSCOM’ s bridge contract violated CICA or that USTRANSCOM must conduct a new competition,” but quot ing the TransAtlantic defendant’s brief, noted that

“ TransAtlantic ‘seeks to renegotiate a small p iece of the contract.’” Id. at 763. Crucially

, the TransAtlantic court noted that “TransAtlantic does not dispute that it could resolve this matter with the Government through the CDA claim process.” Id

.

In IT ility, LLC v. United States , 124 Fed. Cl. 452 , the protestor , ITility, LLC (ITility), was awarded a contract by the Air Force in 2013, which sought program management support for the Air Force ’ s Air Combat Command A6C

– T User Defined Operational Picture (UDOP) Rapid Innovation Funds effort. See id. a t 455. The IT ility court explained

that

[a]fter numerous disputes between ITility and the Ai r Force with regards to ITility’ s performance under the c ontract

- including the Air Force’ s issuance of three deficiency notices, a corrective action request, and a cure notice

the Air Force finally issued a stop

- work order on the contract on June 27, 2014, and the period of performance was allowed to expire. Then, on November 5, 2014, the Air Force’ s Contracting Officer, issued an interim28

Contractor Performance Ass essment Report (CPAR) concerning the

contract.

Id. In response, IT ility “ claimed that it was not responsible for the failed contract, instead arguing that the Air Force was to blame because the Air Force had ‘never given’ ITility

‘access to the current UD OP server s within [the Air Force’ s] sole possession,’ which was necessary in order for ITility ‘to per form work under the [c]ontract. ’ ” Id. (alterations in original). ITility subsequently filed a bid protest complaint in the United States Court of

Federal Claims

. See id. The I T ility court explained:

The first two counts of the complaint are challenges to the substance of the Air Force CPAR. In the first count, ITility alleges that the assessment of its contract performance “includes inaccurate and misleadi ng facts, as well as material omissions,” in viol ation of 48 C.F.R. § 42.1503(b). In the second count, plaintiff contends that the official who reviewed the assessment failed to “consider disagreements between the parties,” in violation of 48 C.F.R. § 42.1503(d) , and failed to ensure that the record contained accurate information based on objective facts, reiterating the alleged violation of 48 C.F.R. § 42.1503(b) . Because these counts allege violations of a regulation in connection with a procurement, ITility maintains that they may be brought

under our court’ s 28 U.S.C. § 1491(b)(1) bid protest jurisdiction.

IT ility, LLC v. United States , 124 Fed. Cl. at 458 (in ternal citations omitted). The IT ility

c ourt rejected the protestor’s arguments, concluding :

There are several problems with this argument. Perhaps the most fundamental problem is that, while the CPAR was indeed created “in connection with a procurement,” 28 U.S.C. § 1491(b)(1), the procurement in question was one in which ITility performed as the contractor, not one in which plaintiff was merely an offeror or prospective offeror. As the Court has explained, see Kellogg Brown & Root Servs., Inc. v. United States , 117 Fed. Cl. 764, 768

- 69 (2014), a long line of our cases has held that the “interested party” standing to bring a bid protest does not extend to the complaints of contractors concerning the administration of contracts they have been awarded and pe rforming. When a party objects to a decision by a federal agency that was made because that party was a government contractor, and not because the party was an offeror for a contract to be awarded, then the matter is properly viewed as seeking “relief aris ing under or relating to the contract” held by the party, 48 C.F.R. § 2.101, rather than presenting a circumstance in which the party’ s “direct economic interest would be affected by the award of the contract or by failure to award the contract,” 31

U.S.C. § 3551(2) Although a procurement may run through “contract completion and closeout,” see Distributed Sols., Inc. v. United States , 539 F.3d 1340, 1345 (Fed. Cir. 2008) (quoting what was then 41 U.S.C. § 403(2), now found at 41 U.S .C. § 111), the impact of a contract award (or the failure to award) ceases to be relevant once a party becomes the contractor for that procurement. At that stage, the interest of the party29

changes from that of an offeror to that of a contractor, and the C DA becomes the vehicle for resolving disputes.

IT ility, LLC v. United States , 124 Fed. Cl. at 458 (citing Kellogg Brown & Root Servs. v. United States , 117 Fed. Cl. at 769

– 70) (footnote omitted).

In Trailboss Enterprise, Inc. v. United States , 111 Fed. Cl. 338 , the Air Force issued

a solicitation in 2012, for transient alert services, with a requirement that offerors hold their pricing offers firm for 90 calendar days after the date specified for final receipt of

offers. Trailboss submitted an offer on September 21, 2012, agreeing to hold its prices for the 90 day limit, and Trailboss was awarded a contract on November 14, 2012. See

id. at 340 . The Air Force issued a stop work order due to a protest by another offeror and

took corrective action on Januar y 14, 2013. See id.

On January 16, 2013, Trailboss informed the Air Force that the pricing contained in its initial offer was no longer valid because 90 days had passed and Trailboss no longer was willing to perform at the price it initially offered.

On J anuary 18, 2013, the Air Force informed Trailboss that, notwithstanding

Trailboss’ s interpretation of its firm price offer, the Air Force intended to

retain Trailboss as the contractor and to hold it to the September price.

Id. In response, Trailboss filed a bid protest complaint in the United States Court of

Federal Claims seeking to enjoin the Air Force from forcing Trailboss to compete under

the contract and “a declaratory judgment that the Ai r Force’ s decision to award the

contract to Trailboss and to r equire it to perform under its terms is arbitrary and capricious, an abuse of discretion, and is otherwise not in accordance with law. ” Id. at 339. The

Trailboss court wrote:

Here, Trailboss won the contract on November 14, 2012, well within the 90

– day per iod for which it agreed to hold open its offer. Since the Air Force

never terminated

- or even expresse d intent to terminate

- Trailboss’ s contract, Trailboss’ s claim concerning the 90

– day firm offer period is a matter of post

- award contract administration gov erned by this court's contract dispute jurisdiction. Accordingly, Trailboss, as the contract awardee lacks standing under the bid protest provisions of 28 U.S.C. § 1491(b)(1) to challenge the t erms of its contract. Trailboss’ s complaint

must be dismissed to the e xtent it is based on this court s bid protest jurisdiction.

Trailboss Enter

., Inc. v. United States , 111 Fed. Cl. at 341

.

In Diversified Maintenance Sys tems, Inc. v. United States , 103 Fed. Cl . 431 , the Navy awarded a contract to Diversified Maintenance Sys tems, Inc. (DMS) for a job order contract to provide services in support of Naval Support Activity Panama City. See id

. at 432. After contract award,

[t]he Navy informed DMS that the subjec t contract had been solicited and awarded with the wrong specifications. For that reason, the Navy requested that DMS agree to substitute new specifications for those that had been set30

forth in the solicitation. DMS agreed to accept the new specifications without any adjustment in contract price and also entered into several other agreements with the Navy regarding the administration and performance of

the contract.

Id. at 432

- 33. DMS performed under the co ntract, but asserted that the Navy had withheld

pa yments after performance on specific task orders

, based on delays that allegedly were caused by the government ’ s mismanagement of the job order contract

. See id. at 433.

Unable to resolve the issue with the c ontracting o fficer, th e protestor filed a bid pr otest

action in the United States Court of Federal Claims. See id. In its bid protest complaint
DMS stated:

DMS asserts that the Navy has breached the express terms of its contract with DMS. Plaintiff also alleges that the Navy has breached its implied

d uties of good faith and cooperation, and has effected a cardinal change to the requirements of the job order contract. DMS requests damages in the amount of $614,142.40, which represents the difference between the amount billed by DMS for work performed un der the contract and the amount actually paid to DMS by the Navy. DMS also requests a preliminary injunction ordering the immediate payment of all invoices submitted by DMS to the Navy, as well as a preliminary injunction invalidating all clai m waivers

on delivery orders.

Id. (footnote omitted). The DMS court noted that the DMS protestor did not “ assert that it is challenging a solicitation or the award or proposed award of a contract. Rather, DMS argues that the claims set forth in its complaint are based upon alleged violati ons of statutes or regulations ‘ in connection with a procurement. ’ ” Id. at 435.

The Diversified Maintenance Sys tems court determined:

Here, DMS is not an actual or prospective bidder or offeror; on the contrary, plaintiff was awarde d the subject contract before the occurrence of any of

the events that form the basis of its claims in this suit. This court has explained that a contractor challenging the administration or management of its contract is not a disappointed bi dder for purpo ses of this court’ s bid protest jurisdiction:

The court does not see how a plaintiff asserting claims pertaining to a contract it has made with the government could be a “disappointed bidder” for bid protest purposes. Rather, such a plaintiff is a contrac tor asserting a claim “relating to a contract” and is subject to the [CDA] jurisdiction of this court,

as set forth in 41 U.S.C. § 609 . Because plaintiffs

. . . received contract awards under the solicitation complained of, they are not disappointed b idders and do not have standing to assert this protest.31

Diversified Main. Sys ., Inc. v. United States , 103 Fed. Cl. at 436 (quotin g ABF Freight Sys., Inc. v. United States , 55 Fed. Cl. 392, 397 (2003) ) ( alt erations in original ) . As noted by the court in Diversified Maintenance Sys tems , the protestor did not dispute the fact that its job order contract was a contract which fell within the category of either an express or implied

- in

- fact contract as set forth in the CDA. See i d. at 435. Moreover, the protestor did not assert it was challenging a solicitation or the award of a contract. See id.

In Outdoor Venture Corp

. v. United States , 10 0 Fed. Cl. 146

, the protestor

, Outdoor Venture Corporation (OVC), brough t a post

- award bid protest in the United States Court

of Federal Claims

, pursuant to a solicitation issued by the Defense Logistics Agency Troop Support (DLA) for which OVC was awardee of a n indefinite delivery/indefinite quantity co ntract for two man comb at tents See i d. at 148. Prior to OVC filing suit in this
court, a disappointed bidder protested the outcome at the GAO, causing the DLA to stay OVC’s performance. The GAO referred the protest to the Small Business Authority (SBA)

, which sought information about OVC’s status as a small business concern. Due to clerical errors, OVC did not timely appeal an SBA determination to the SBA ’ s Office of Hearings and Appeals. See id. In response, OVC filed a complaint in this court . A s indicated in the court’s opini on:

OVC requests that the court “ declare that any termination of the contract award to OVC without a reopening of the [s]ize [d]etermination by [SBA]
pursuant to 13 C.F.R. § 121.1009(b) would be arbitrary and capricious. ”

OVC fu rther requests that the court “e njoin defendant from terminating the award to OVC and direct[ ] that [SBA] reopen the OVC [s]ize [d]etermination. ”

Outdoor Venture Corp. v. United States , 100 Fed. Cl. at 150 (alterations in original ; internal citati ons omitted ). The Outdoor Venture Corp. court first determined that “Contract awardees such as OVC must instead bring contract claims pursuant to the Contract Disputes Act of 1978. . . . ” Outdoor Venture Corp. v. United States , 100 Fed. Cl

. at 152 (alterat ions in original)

. The Outdoor Venture Corp. court emphasized that: “‘ [P]ure contract claims are not appropriate in a bid protest, even if clothed in the guise of a protest of an alleged statutory violation occurring in relation to a procurement. ’ ” Id. (q uoting
Frazier v. United States , 79 Fed. Cl. 148, 160 (2007) ) (alteration in original). The Outdoor Venture Corp. court acknowledged cases in which

“[t] his Court has held that where a plaintiff, as the contract awardee, files a protest challenging an agency’ s decision to reso licit a proposal, the plaintiff’ s protest is in the nature of a pre

- award claim.” Ceres Gulf, Inc. v.

United States , 94 Fed. Cl. 303, 315 (2010) (inte rnal quotations omitted). In each of the cases cited by plaintiff, this court found that contract awardees had standing to bring pre

- award bid protests because the government resolicited or began to resolicit the contract.

Outdoor Venture Corp. v. United S tates , 100 Fed. Cl. at 153 (citations omitted) . T he
Ou tdoor Venture Corp. court, however, found that:32

I n this case, OVC’ s award has been stayed, but OVC does not allege that the government has resolicited the contr act or that it intends to do so.

Because there has been no resolicitation

- as there was in the cases cited b y plaintiff

- OVC’ s protest is not in the nature of a pre

- award claim. Therefore, OVC has failed to establish that it is an interested party with stan ding to bring this bid protest.

Id. (inter nal references omitted). The cases discussed immediately above all reflect that

in order for a contract or to have standing to bring a bid protest challenge in this court , the

contractor m u st demonstrate that its claims do no t relate to contract performance

, but

instead relate to a challenge to the underlying solicitation. As noted by both the Kellogg

Brown & Root court and the Outdoor Venture Corp. court, one way a contract awardee could demonstrate standing is if “the government resolicited or began to re solicit the contract,” Outdoor Venture Corp. v. United States , 100 Fed. Cl. at 153 , or “ when a proposed corrective action effectively restores an awardee to the status of bidder by requiring it to compete again for a contract award, this action may be chal lenged by the former awardee in a bid protest.” Kellogg Brown & Root Servs., Inc. v. United States , 117
Fed. Cl. at 769 n.5.

I n contrast to the cases cited above by defendant and intervenor, o ther decisions in the United States Court of Appeals for the F ederal Circuit and the United States Court of Federal Claims have found contract awardees can have standing to bring a bid protest

claim , provided that c orrective action has been taken . For example, in Systems Application & Technologies, Inc.

, 691 F.3d 137 4 (Fed. Cir. 2012) , the United States Court of Appeals for the Federal Circuit considered the situation in which protestor, Systems Application & Technologies, Inc., ( SA

– TECH), the contract awardee for aerial target flight and maintenance services, protest ed the Army’s decision to take corrective action instead of upholding SA

– TECH’s award. See id. at 1377. After SA

- TECH was awarded the contract, a disappointed bidder filed a protest at GAO alleging the Army im properly had added a new requirement to the sol icitation, and then filed a supplemental protest. The GAO attorney informed the Army of the merit to the supplemental protest, and the Army contacted the parties and indicated : “After review of the supplemental issues, the Army

has determined that it is in its best interest to take corrective action

. The Army

intends to terminate the contract awarded to SA

– TECH so that it can reopen the original

solicitation.” Id. at 1379 (emphasis in original). SA

- TECH filed a bid protest in the United

States Court of Fede ral Claims, alleging that the Army’s decision to take corrective action was arbitrary, capricious, and unreasonable. The Court of Federal Claims found jurisdiction under 28 U.S.C. § 1491(b)(1)

. See Sys. Application & Techs., Inc. v. United
States , 691 F.3d at 1380. The Federal Circuit indicated that:

The trial court also found that SA

– TECH had demonstrated proper standing and ripeness. On the merits, the Court o f Federal Claims found that the Army’ s decision to take correctiv e action was arbitrary, capricious, and an

abuse of discretion

. The trial cour t also granted SA

– TECH’ s request for injunctive relief, which prohibited the Army from implementing the proposed

corrective action

.33

Id. (citations omitted). The Federal Circuit in Syste ms Application & Technologies

indicated:

In this case, SA

– TECH objected to a solicitation and alleged violations of statutes and regulations governing the procurement process. The Army has not shown that this protest has no ‘connection with a procurement. ’ Rather

SA

– TECH’s complaint specifically challenged the Army’s announced

decision to amend or revise the solicitation

- an unambiguous objection ‘to a solicitation’ covered by the Tucker Act.

Id. at 1381. The Federal Circuit continued: “In this case, the A rmy had not yet implemented the corrective action. Moreover, SA

– TECH was the contract awardee. Neither of these facts are material to the question of jurisdiction,” as the Federal Circuit concluded: “This court has made clear that bid protest jurisdiction arises when an agency decides to take corrective action even when such action is not fully implemented.” Id. The
Federal Circuit determined that:

SA

– TECH’ s attempt to enjoin the government from terminating its contract did not transform its otherwise prop er protest under the Tucker Act into a claim which could only be adjudicated under the Contract Disputes Act and its concomitant procedural requirements. This court confronted and rejected a similar argument in Turner Cons truction , 645 F.3d at 1387

- 88. A request for injunctive relief r egarding the government’ s termination of a contract concerns the scope of the Court of Federal Claims’ equitable powers; it is not an issue of Tucker Act jurisdiction. Id. at 1388. Thus, the Court of

Federal Cla ims properly exercised its jurisdiction under the Tucker Act as
SA

– TECH both objected to a solicitation and alleged violation of statute or regulation in connection with a procurement.

Sys. Application & Techs., Inc. v. United States , 691 F.3d at 1381

- 82.

Similarly, in CBY Design Builders v. United States

, 105 Fed. Cl. 30 3 (2012)

, the Army Corps of Engineers (the Corps) issued a solicitation for a permanent canal project in New Orleans to prevent future flood damage. See id. at 309

. On April 13, 2011, CBY Design Builders (CBY) was awarded a contract, however, prior to award, one of the other offerors had raised an organizational conflict of interest (OCI) regarding a former employee of the Corps. See id. at 317

- 18. After the Corps found no merit to the OCI

, another offeror raised a separate OCI allegation, regarding the same employee related to a possible violation of the Procurement Integrity Act (PIA) . The contracting officer “concluded that the alleged PIA violations would have had no impact on the selec tion of CBY for the contract award, and found no evidence to support PCCP ’ s [the offeror’s] allegations.” Id. at 319. Subsequently, on April 26, 2011, both offerors who raised the possible OCI issues filed protests at the GAO. See id. The CBY court noted t hat

p rotests filed with the GAO resulted in the August 4, 2011 recommendation that the Corps conduct a new OCI investigation, amend the solicitation to clarify the approach to price, conduct discussions regarding the issues in34

those protests “if necessary ,” “accept and evaluate revised proposals, and

make a new source selection decision con sistent with” the GAO decision. After the third OCI investigation was completed, on October 21, 2011, the Corps contacted the five offerors in the competitive range to i nform them that no OCI existed; that “[i]n accordance with the recommendation from GAO, and in order to address the current needs of the agency, it is [the Corps’ s] intent to request, accept, and evaluate new proposal revisions from

all short listed offero rs”; and that it “intends on issuing an Amendment to the

solicitation which will make” at least ei ght changes to the solicitation . The following week, per its proposed schedule, the Corps sent a draft of the proposed amendment to the offerors, which was to be issued in final form

one month later after comments were to have been received and considered. One week later, on November 4, 2011, CBY filed its protest

here.

CBY Design Builders v. United States , 105 Fed. Cl. at 33 2

- 33 (internal references omitted)

. The CBY court summarized situations in which contract awardee s were able to purse bid protest claims after corrective action was taken, but no new contract had been

award ed :

[I]n Centech Group our court rejected the argument that corrective action in

whic h a contract award was suspended and the solicitation amended for a new competition was not ripe until an award was made to a party other than the awardee protesting the action. Centech Grp., Inc. v. United S tates, 78

Fed. Cl. 496, 505 (2007) . The court explained that the corrective action was “distinct from any future evaluation and award” and involved “different controversies than those which may arise from the new evaluation and award in the post

- award lan dscape.” Id. In Ceres Gulf , the same ripeness argument was rejected in a case differing from Centech Group only in that

the contract award was terminated. Ceres Gulf, Inc. v. United States, 94

Fed. Cl. 303, 3 17 (2010) . The relevant decision to be consummated for purposes of review was found to be the decision to conduct a new competition, not the decision to award a contract under the second competition. Id. Similarly, our court in Sheridan Corp. found correc tive action, in the form of a request for revised proposals, final for purposes of a bid protest, as it was the rationale for having the new competition that was

at issue. Sheridan Corp. v. United States, 95 Fed. Cl. 141, 150 (2010) . In Jacobs Technology Inc., our court followed the reasoning of Ceres Gulf

, finding the decision to re

- solicit a contract the plaintiff had already won to

be a final decision “which effectively voided its previous decision. ”

CBY Design Builders v. United States , 105 Fed. Cl. at 333 (quoting Jacobs Tech. Inc. v.
United States , 100 Fed. Cl. 173, 177 (2011 ) )

. The CBY court agreed with the above quoted cases in finding “that corrective actions requiring an awardee to compete a second time for a contract are ripe for our review.” Id. The CBY court determined:35

The Court agrees with t his now

- long list of precedents which hold that

correcti ve actions requiring an awardee to compete a second time for a contract are ripe for our review. The relevant de cision that must be

consummated for our purposes, is the decision to have another competition

for the award. It is not disputed that this competition will be held if plaintiff's protest fails . Ab sent this corrective action decision, CBY would ei ther be performing the contract today, or defending its a ward in a bid protest

initiated by the intervenors. Thus, the decision to take corrective action has had legal con sequences, precluding plaintiff fro m performing the contrac t or resolving the propriety of its award. No additional factual development is needed for the alleged arbitrariness concerns not the second evaluation process, but rather the decision to undertake that process. Entertainin g plainti ff's protest would not “ inappropriately interfere with further

administrative action,” for the simple reason that if the decision to recompete the contra ct were an arbitrary one, there is no need for any further such action. Withholding judicial review of the c orrective action

decision would result in hardship to plaintiff, assuming, as we must, that its

well

- pled allegations are true, as the benefits under the contract already
awarded to C BY would be arbitrarily delayed while plaintiff was needles sly

forc ed to expend additional resources to attempt to win the contract a

second time.

Id. at 333

- 34 (citations omitted)

.

Like the Federal Circuit’s decision in Systems Application & Technologies , the CBY

court indicated that an awardee of a contract could sti ll challenge a solicitation under certain circumstances, typically involving corrective action by the agency and the

termination of awardee’s contract

. In Systems Application & Technologies , it was the Army’s decision to terminate the contract awarded to S A

– TECH and reopen the

solicitation that convinced the Federal Circuit that SA

- TECH could properly bring a bid protest in the United States Court of Federal Claims. In CBY , the Corps decided to take corrective action to amend the solicitation. Even though C BY filed its protest before the revised solicitation was issued, the fact that corrective action was taken, and, therefore, CBY lost its contract award, was sufficient for the United States Court of Federal Claims to find CBY was an interested party.

Th e court notes that each of the three grounds on which MLS based its agency level protest c ould have , but did not, result in corrective action before MLS was an

awardee of the Contract and received

, and performed

, task orders under the Contract

. As indicat ed above

, in its agency level protest, MLS argued :

1. The Solicitation’s provisions concerning Port Tariff items are contrary to the regulations of the Ports. Port regulations require that Port Tariff items be obtained by the owner of the vessel or an auth orized agent of the owner. The Solicitation expressly states that the HSP contractor is NOT the agent of the Navy. It is therefore impossible for the HSP contractor to perform according to the terms of the Solicitation. Thus, the Solicitation does not36

stat e the Navy’s actual requirements for Port Tariff items. The Solicitation must be revised so that either a.) the Navy deals directly with the Port for Port Tariff items, as historically has been the Navy’s practice, or b.) to make the HSP contractor the age nt of the Navy for purposes of obtaining Port Tariff items on behalf of the Navy.

2. The Solicitation also requires the HSP contractor to agree to terms and conditions beyond those covered by a Port tariff, but that the Navy will only pay the HSP the Port Tariff amount. The Solicitation must be revised to allow the HSP to price these additional terms and conditions.

3. Some of the Navy’s terms and conditions in the Solicitation are contrary to the Ports’ regulations in other respects. For example, Ports’ regulations provide that the vessel owner is liable for damage done by the vessel and fines imposed on the vessel. But this Solicitation provides that the HSP, not the Navy, is liable for such things. Although this Solicitation treats a Port as

the subcont ractor of the HSP, the Ports have refused to comply with requirements this Solicitation imposes on subcontractors. The Solicitation must be revised to eliminate the terms and conditions that are contrary to the Ports’ regulations.

(capitalization in origi nal). For all three grounds, MLS emphasized to the agency that “[t] he
Solicitation must be revised . . . .” By filing a pre

- award bid protest in this court, MLS , now performing as a contractor pursuant to the Solicitation, its awarded Contract, and its

awar ded task orders

, is attempting to convince the Navy to take c orrective action

, which the Navy did not take before awarding the contracts pursuant to the Solicitation . The relief

that MLS now seeks

, revision of the Solicitation

, would cause MLS and the othe r current

contractors to lose their contract s with the Navy for husbanding services

, as well as the ability to bid on

, and receive

, further task orders

. MLS’ bid protest complaint in this court begins by alleging:

MLS

- Multinational Logistic Services Ltd (“MLS”) protests the terms of a solicitation as contrary to applicable law and impossible to perform, prejudicing MLS by preventing MLS from offering its best terms in a proposal under the solicitation and from having a fair opportunity to compete

for the contract and task orders under it. MLS seeks declaratory and injunctive relief to the effect that the solicitation must be revised to be consistent with applicable law and so that MLS will have a fair opportunity to compete for award of a contract and task orders under it.

In the section titled: “Requests for Relief,” MLS’ complaint seeks :

1. A declaratory judgment that the Solicitation’s Port Tariff provisions are in violation of applicable law and regulations, and must be revised so that its Port Tariff pro visions are consistent with applicable laws and regulations, and to allow MLS and other offerors to compete on a fair and equal basis for award of a contract under the Solicitation and for37 task orders thereunder. The Solicitation’s Port Tariff provisions m ust be revised so that they either: 1) provide for the Navy to contract directly with the Port for Port Tariff items, as the Navy has done in the past; or 2) make the HSP the Navy’s agent authorized to contract with the Port on behalf of the Navy and to bi nd the Navy.

2. A preliminary injunction and permanent injunction enjoining the United States and each and all of its officers, agents, servants, employees, and attorneys, and all those persons acting in concert or participation with any of them, and in part icular the Department of the Navy and the Contracting Officer, and requiring them to revise the Solicitation so that its Port Tariff provisions are consistent with applicable laws and regulations, and to allow MLS and other offerors to compete on a fair

an d equal basis for award of a contract under the Solicitation and for task orders thereunder. Specifically, the Solicitation’s Port Tariff provisions must be revised so that they either: 1) provide for the Navy to contract directly with the Port for Port Ta riff items, as the Navy has done in the past; or 2) make the HSP the Navy’s agent authorized to contract with the Port on behalf of the Navy and to bind the Navy.

(capitalization in original).

The court believes that the relief that MLS seeks in its bid protest compl ai nt is more consistent with a pre

- award protest seeking to change the terms of the solicitation in

advance of contract award, than a post

- award protest seeking to redefine the terms of an already aw arded and operative contract, as reflected i n the some of the cases discussed

above

. The court notes that MLS did not file its protest in this court until after contracts were awarded and MLS was performing task orders under its Contract. The court recognizes that MLS did try to raise its concerns i n advance of making its offer in response

to the Solicitation and before receiving a contract award. Despite MLS’ actions , however, the Navy did not take c orrective action before contract awards , and has not yet done so,

either as a result of MLS’ agency l evel protest, the GAO protest, the protest currently before the court, or at any time before or after contracts and task orders were awarded

. Moreover, performance of the contract s and task orders remain s ongoing. The Navy has

made clear to MLS and to the court that corrective action is not warranted at this time

.

There are some similarities between MLS and the protestors in Systems Application & Technologies and CBY

, cases in which corrective action was taken by the respective agencies and the protestors’ contracts were terminated . I f MLS is correct and

the Port Tariff provision s in the Solicitation need revision

, MLS and the other current

contract awardees would lose the ir contract s and their task orders, requiring the Navy,
MLS

, and the contract holders to go through the solicitation and contract award process again. The courts in Systems Application & Technologies and CBY emphasized that the act of taking corrective action, and the loss of the contract s by the protestors in CBY and
SA

- TECH was determinat ive in finding that protestors had standing to bring their respective cases. I n this court , however

, c orrective action has not been taken by the Navy

and MLS has not lost its Contract , or the ability to bid on future task orders . The crucial38

distinction be tween the above captioned protest and Systems Application & Technologies

and CBY is that in these two reported cases, corrective action was taken by the agencies.

The Federal Circuit in Systems Application & Technologies found, in noting that the Army

inte nded to terminate SA

- TECH’s contract and take corrective actio n, “ [i] n this case, the Army had not yet implemented the corrective action. Moreover, SA

– TECH was the contract awardee. Neither of these facts are material to the question of jurisdiction

. ” Sys. Application & Techs., Inc. v. United States , 691 F.3d at 1381. T he Federal Circuit concluded: “This court has made clear that bid protest jurisdiction arises when an agency decides to take corrective action even when such action is not fully implemented.” Id. In
CBY , in response to the GAO decision, the Corps decided to take corrective action, and in so doing, terminate d CBY’s contract. The CBY c ourt held that: “ Absent this corrective action decision, CBY would either be performing the contract today, or d efending its award in a bid protest initiated by the intervenors. Thus, the decision to take corrective action had legal consequences, precluding plaintiff from performing the contract or resolving the propriety of its award.” CBY Design Builders v. United States , 105 Fed. Cl.

at 333. In both instances, the courts found that corrective action was essential to the

contractor

- protestor having the ability to bring a bid protest , which

, as demonstrated above, has not taken place in the protest currently before the court

.

I n Kellogg Brown & Root

, which determined the contractor

- protestor did not have standing to file a bid protest claim on allegations that would more properly be filed as a CDA claim, the court however, noted, “[o] f course, when a proposed correc tive action effectively restores an awardee to the status of bidder by requiring it to compete again for a contract award, this action may be challenged by the former awardee in a bid protest.” Kellogg Brown & Root Servs., Inc. v. United States , 117 Fed. C l. at 7 69 n.5. Likewise, the
Outdoor Venture Corp. court explained that :

“ T his Court has held that where a plaintiff, as the contract awardee, files a protest challenging an agency’ s decision to reso licit a proposal, the plaintiff’ s protest is in the natur e of a pre

- award claim.” Ceres Gulf, Inc. v.

United States , 94 Fed. Cl. 303, 315 (2010) (internal quotations omitted). In each of the cases cited by plaintiff, this court found that contract awardees

had sta nding to bring pre

- award bid protests because the government resolicited or began to resolicit the contract.

Id. at 153 (citations omitted). The Outdoor Venture Corp. court, however, noted that

[i]n this case, OVC’s award has been stayed, but OVC does not allege that the government has resolicited the contract or that it intends to do so.

Because there has been no resolicitation

- as there was in the cases cited by plaintiff

- OVC’s protest is not in the nature of a pre

- award claim. Therefore,

OVC has failed to establish that it is an interested party with standing to bring this bid protest.

Id. (internal references omitted). Even though performance under the contract in Outdoor

Venture Corp. was stayed, merely staying the contract was not sufficient for the Uni ted
States Cou rt of Federal Claims to find standing for the Outdoor Venture Corp. protestor.
OVC had a stronger argument to have standing with contract performance being stayed, compared to MLS, which as indicated in th e joint stipulations , continues to pe rform task39

orders under the Solicitation and its Contract. Therefore, the court finds that because

corrective action has not yet been taken, and MLS continues to perform under the Contract, MLS cannot satisfy the interested party requirement, and lacks sta nding to bring this pre

- award bid protest.

In the case of MLS, in addition to no corrective action having been taken, and performance of the C ontract and task orders still ongoing, the court questions whether

, even if the court were to find in favor of ML S on the merits, corrective action would necessarily take place

. The Navy has indicated its intention to review MLS’ concerns “in the context of the overall acquisition strategy and solicitation development for the upcoming worldwide husbanding solicitatio n,” but the Navy also has made it clear that the review of the issues raised by MLS is for future husbanding contracts , and not with regard

to the Solicitation that resulted in the current contracts for husbanding services. 13 A s noted above, in its complain t, MLS seeks declaratory relief and injunctive relief, and asks this court to require the Navy “to revise the Solicitation so that its Port Tariff provisions are consistent with applicable laws and regulations, and to allow MLS and other offerors
to compet e on a fair and equal basis for award of a contract under the Solicitation and for

task orders thereunder .” Although under its bid protest jurisdiction the United States Court

of Federal Claims c an issue declaratory relief and issue injunctions in appropri ate government contract related circumstances , the court does not take over the function of deciding what to include in a solicitation

, or how to revise one

. As noted by the Federal
Circuit in Savantage

, determining an agency’ s minimum needs “‘ is a matter within the broad discretion of agency officials . . . and is not for [the] court to second guess. ’ ” Savantage Fin. Servs. v. United States , 595 F.3d 1282, 1284 (Fed. Cir. 2010 ) (quoting Wit Assocs., Inc. v. United States

, 62 Fed. Cl. 657, 662 (2004) ); see also COMINT Sys. Corp. v. United States , 700 F.3d at 1384. But see Klinge Corp. v. United States , 82 Fed. Cl. 127 (2008). 14 In the bid protest currently at issue , t he court should not dictate to the

13 At the March 2019 oral argument, defendant’s counsel stated that Navy

[a] ppreciate[s] that the Court has concern about this issue and are thinking hard about it, and, you know, it's well outside of the sort of boundaries of what's going on in this courtroom, but they are talking to maritime experts and admiralty experts, people in different legal offices in the Navy, which is obviously a very big ag ency, and looking into this, and there's going to be a future procurement that will be the followon to this one at some point, and they are looking at this closely.

Also at the March 2019 oral argument, the government indicated “I feel like we’ve done

the due diligence necessary based on historical information, based on the fact that MLS performed previously under similar terms and conditions as before, and we don’t see that there’s any change. . . .”

14 In Klinge Corp. v. United States , the protestor alleg ed that the Marine Corps Systems Command (Marine Corps) acted arbitrarily, capriciously, and in violation of law, in awarding a contract for the delivery of Large Field Refrigeration Systems to Sea Box, Inc. (Sea Box). See Klinge Corp. v. United States , 82 Fed. Cl. at 137

- 38. The United States40

Court of Federal Claims Judge ultimately ordered that “[t]he Marine Corps is enjoined from accepting further performance of the contract with Sea Box and is directed to

terminate the contract to Sea Box.” Id. at 139. Although the contract in Klinge was ordered to be cancelled, the facts and circumstances in Klinge were unique. Notably, the Judge

decided:

After preliminary review of the record and the pleadings, the court advised the parties via a telephone conference held on March 18, 2008, that it would remand to the agency so that it could further develop the record and explain its analysis of the TAA compliance issue. Our concern was triggered by what we viewed as clearly contradictory indications in Sea Box’s submi ssion with respect to its TAA compliance. We were particularly concerned that the CO dealt with these contraindications by relying on oral representations

from Sea Box’s in

- house counsel, Mr. Farber, as to what the President of

Sea Box had told him concern ing the manufacturing activities that take place in China. Consequently, in our March 19, 2008 remand order, we directed the agency to “obtain from Sea Box a written explanation of the entire process of manufacturing, assembly, and testing of its refrigera ted containers sufficient for the agency to adequately assess compliance.” Klinge was also given a chance to supplement its explanation of how its proposal satisfied the TAA certification requirement.

Id. at 132. Following this instruction,

Sea Box, after consultation with its parts supplier, admitted that 29 percent of the costs of its parts included in CLIN 0003 were not sourced from the United States or from a designated country. Because of this admission and the fact that nearly one year had passed sinc e the solicitation had been issued, the record reflects that the CO intended to cancel the award to Sea Box and the solicitation and do new market research with the idea of issuing a new solicitation at a later time. The agency, however, changed course

sho rtly thereafter and defendant filed a motion to extend the stay of proceedings in order to give the agency more time to solicit further information from both offerors regarding TAA compliance. We granted that motion on April 8, 2008.

Id. at 132

- 33 (footnot es and internal references omitted). In response, the contracting officer stated her inclination “to allow Sea Box to continue performance of this contract based on its most recent representations,” which the Klinge court indicated, “[w]e take

this to mean that, left to its own, the agency would not insist on manufacture in the United

States.” Id. at 133. After all this, the Klinge court permitted protestor to file an amended complaint. As indicated above, the Klinge court ultimately enjoyed performance of Sea Box’s contract and directed the Marine Corps to terminate the contract to Sea Box. See

id. at 139. The Klinge court did so after the initial review of the protest, a remand to the agency and a finding of arbitrary and capriciousness by the agency.41

Navy the specifics of determining its future needs or dict ate which requirements to

include

, or omit

, from a solicitation, for example, regarding how to handle husbanding

services in the Middle East. In the appropriate case, the agency can be advised by the

courts that it has acted arbitrar il y and capricious ly or violated applicable law

. Certainly the court would expect the agency to take valid concerns seriously , but t he court cannot treat

the Solicitation or MLS’ Contract as if corrective action has been taken

, will occur, or as if the C ontract ha s been cancelle d . I t remains speculative when or if any of those events

will come to pass even if the merits of MLS’ allegations is determined correct

.
Moreover, if this court were to consider MLS’ protest to be similar to those cases

in which corrective action was taken and the corrective action had the effect of voiding

MLS’ contract resulting in the solicitation process having to star t anew

, placing MLS in a position as a potential offeror again, MLS

, as an ongoing contract performer, might have

a difficult time to dem onstrate prejudice

. Defendant also argues that MLS cannot show a

“non

- trivial competitive injury,” because “ MLS’s claim is undermined by the fact that it was awarded a contract under the Solicitation and has competed for and was awarded more

than 20 task o rders. ” Defendant also contends that “ [b]ecause all awardees are bound by the contested terms, MLS is on an equal ground with all other awardees when competing for individual task orders. MLS has not explained how modification of the contested

Solicitation terms would improve its position as contract awardee or improve its ability to compete for individual task orders.” Intervenor argues that “ MLS ignore[s] the fact that all offerors were required to bid against the same Solicitation, and all awardees’ Cont racts
have the same terms. MLS therefore cannot demonstrate that it was in any way disadvantaged or otherwise competitively injured.” In response MLS argues that “[t]he uncertainty created by the RFP’s impossible Port Tariff provisions prejudiced MLS by

pr eventing MLS from offering its best terms in a proposal and from having a fair opportunity to compete for the contract and task orders.” Protestor also argues that “[a] solicitation containing provisions requiring or encouraging the contractor to violate l ocal laws and regulations also favors unscrupulous contractors and does not promote full and open competition.”

As noted above, i n the context of a pre

- award bid protest, the United States Court of Appeals for the Federal Circuit has determined that to sh ow the requisite “direct economic interest,” and, therefore, to be an “interested party” under the Tucker Act, the protestor has to have suffered a “‘non

- trivial competitive injury which can be redressed by judicial relief.’” See Orion Tech., Inc. v. Unite d States , 704 F.3d at 1348 (quoting Weeks Marine, Inc. v. United States , 575 F. 3d at 1362

– 63); see also COMINT Sys. Corp. v.

United States , 700 F.3d at 1383 n.7. As indicated by the Federal Circuit in Systems Application & Technologies , “[a] protest will, by its nature, dictate the necessary factors for a ‘direct economic interest.’ In pre

- award protests, for instance, the plaintiff must show

‘a non

- trivial competitive injury which can be addressed by judicial relief.’” Sys. Application & Techs., Inc. v. Un ited States , 691 F.3d at 1382 (quoting Weeks Marine, Inc. v. United
States , 575 F.3d at 1359).

The court does not agree with defendant and the intervenor that simply because

MLS was an awardee of the Contract

, and was performing under the Contract, or be cause all the offerors “were required to bid against the same Solicitation,” that there is no42

possibility of economic harm. It could be the case that all contractors, and not just MLS,

suffered harm because of the uncertainty of a Solicitation provision , a nd MLS was the only offeror/awardee to raise the issue at the administrative level to the Navy, to the GAO,

and t o bring it t o the court’s attention.

More co nvincingly, in its reply brief defendant argues that

even if it did not offer its best price te rms in its proposal, it suffered no

pre judice. MLS’s claim that it was injured by being unable to offer its best

p rice terms is undermined by the terms of the Solicitation, which permit

awardees to submit task o rder proposals equal to or less than the pric es set
forth in their contracts.

The court notes that the price submitted by MLS in response to the Solicitation when competing for a contract was a maximum, not a fixed amount

, for the potential,

future task orders. The Solicitation indicated that that m ultiple awards would be made based upon a lowest price

, technically acceptable

, source selection decision. The Solicitation provided that “[o]fferors shall propose firm

- fixed unit prices for the basic contract and those prices shall be used for evaluation for award of the basic contracts, and serve as maximum prices .” At the end of the day, each offeror had the ability to propose what it considered the most advantageous price in order to obtain a contract.

Indeed, the Navy intended to award , and has awarde d, specific task orders to carry out the husbanding support services in the various ports. The Solicitation contemplated making multiple awards and for contract awardees to “ compete at the task order level for task orders to provide husbanding services for particular port visits.” The joint stipulations

indicate that “[t] he Solicitation requires that, for task order proposals, offerors are to propose fixed prices that include all costs of providing the required husbanding services, including, as rele vant he re, port tariff services. ” The joint stipulations states that:

T he Solicitation provides that one or more task orders may be issued during performance of the contract. Pursuant to the terms of the Solicitation, requests for task order proposals (RTOP) for specific port visits are issued and contractors have the opportunity to submit offers. A selection would then be made, in most cases, based upon a lowest pric e technically acceptable basis.

The Solicitation provided that for the requests for task order p roposals , “all proposed prices at the task order level” “shall not exceed the maximum prices indicated in the basic contract,” and that for the task order proposals, offerors were to propose fixed prices that

inc lude all costs of providing the required hu sbanding services, including port services. Therefore, even if MLS did not submit its lowest bid to receive a contract in response to

the Solicitation because of its uncertainty with the P ort T ariff provisions before the

pr oposals were due, given the clear direction from the Navy that it would not make any changes to the Port Tariff provisions at this time

, MLS could now p rice that certainty in its

offer when submitting bids for future task orders.43

The court notes that in CBY

, quoted above, the CBY court u ltimately found there

was econ omic harm, and found standing. The CBY court determined that:

The government also moves to dismiss the case on the ground that CBY has “yet to suffer any injury or loss of direct economic interest,” and thus lacks standing to pursue the matter. The corrective action announced by the agency, “to follow the course of action recommended by GAO,” includes amending the solicitation, requesting and evaluating new proposal revisions, and necessarily making a new award. The GAO did no t recommend terminating CBY's contract unless “an offeror other than CBY is selected for award” after the second competition is completed. But CBY has gone from being the awardee, ready to begin performance on the contract (or to help defend against a bid protest in our court) to just one of the offerors, who must compete again. Unlike the more typical pre

- award bid protest, where the challenge occurs before proposals are received and evaluated, see Weeks Marine , 575 F.3d at 1361, here we know that but for the decision being challenged, CBY would be the awardee. If the loss of a substantial chance of being an awardee is a sufficient economic interest to support standing, then the loss of the certain chance of being the awardee (even if a substantial chance o f winning the new competition remains) should also be sufficient for purposes of standing. See Centech Grp. , 78
Fed. Cl. at 504. The Federal Circuit has found that an offeror who had a substantial chance at receiving a large portion of contracts through se aled bidding but an uncertain chance at receiving them as task orders possessed the requisite economic interest to support standing. Weeks Marine, 575 F.3d at 1362. The Court finds the impact of the corrective action on CBY to be similar. If, as CBY allege s, it is arbitrarily being required to win the same award twice, this is certainly the sort of non

- trivial competitive injury sufficient to support its standing to object to the corrective action. See Centech Grp. , 78 Fed. Cl. at 504; Sheridan Corp. , 95 Fe d. Cl. at 149; Jacobs

Tech. , 100 Fed. Cl. at 178; Sys. Appl. & Techs. , 100 Fed. Cl. at 708. By effectively changing this competition from a single

- to a double

- elimination tournament for all offerors in Phase II but CBY, the Corps has inflicted

sufficient competitive injury upon plaintiff to support the protester's standing to challenge this change.

CBY Design Builders v. United States , 105 Fed. Cl. at 336

– 37 (internal references omitted; footnote omitted)

. Although the CBY c ourt found the possibility of C BY protestor having to arbitrarily win the same award twice sufficient harm, MLS is not arguing that it

would arbitrarily have to win an award twice

– rather it is seeking to redo the entire

contract competition. It does not allege that the possibility of going through the solicitation process again would be arbitrary, rather MLS urges cancellation is required. Likewise

, the
CBY court found harm because going through the entire solicitation process again

“ effectively changing this competition from a single

- to a double

- elimination tournament
for all offerors in Phase II but CBY

. ” In the above captioned protest, however, eight other44

offerors were awarded contracts under the Solicitation, and, therefore MLS would not be only offeror impacted by corrective acti on

. Unlike the protestor in CBY , MLS neither would

be able to demonstrate a non

- trivial competitive injury nor prejudice , and, therefore, could

not meet the interested party standard. S ee Digitalis Educ. Sol s

. , Inc. v. United States

, 664 F.3d at 1384 ( citi ng MCI Telecomms. Corp. v. United States , 878 F.2d at 365 ) . In

sum, MLS is not an interested party, and, therefore, does not have standing to bring a protest in this court.

Although the court has found that MLS is not an interested party, and, therefore, the court does not have jurisdiction to decide the merits of MLS’ protest in Case No. 18

- 998C, the court remains troubled by the factual allegations raised by protestor and the

factual information assembled over the course of the proceedings before th is co urt . It is

evident from the record developed in this protest that MLS raised a serious issue regarding the P ort T ariff provisions and whether a contractor can enter the ports without being an agent of the Navy . It appears to the court that winking and nodd ing may be going

on during contact performance in order for the existing contractors to perform the required

services

. As noted in the questions MLS asked the Navy before the contracts were awarded,“ [h] ost nation regulations stipulate that all ships berth ed in ports of CENTCOM

should have a licensed agent. How will the contractor meet the requirement of declaration as agent to the port if the contract does not permit it?” During the questions and answers portion of the Solicitation or after MLS’ agency lev el protest , the Navy did not amend the Solicitation terms, and offered not helpful responses to MLS’ questions . M oreover, the Navy did not respond to MLS’ subsequently filed agency level protest before bid proposals were due

. During the proceedings i n this court, the Navy and the Department of Justice remained skeptical of MLS ’ claims that the agency position would present any problems for the contractors even after counsel for MLS identified two instances , first at the port of Jebel Ali and , second, the po rt of Fujiarah in the United Arab Emirates

, at

which

, MLS advised the ports it was not the agent of the Navy and the ports rejected MLS’ request to enter the port s . As noted above, counsel of record for MLS indicated at oral argument:

[M] y client determine d to be completely straightforward and honest with the port and advised them that we were not an agent for the Navy, and when we advised them we were not an agent, they said two things. They said you may not work in this port as long as you're not the agen t for the Navy, for the vessel; and the vessel may not come into the port until it has a registered agent. And so we followed the requirements of the contract and notified the Navy of that, and the Navy went out and got another contractor who was willing t o say they were an agent of the Navy to perform the service, and we

were

-- notified the Navy of that fact. They threatened to terminate u s unless we'd stop saying that.

Also in this court

, without specifically commenting on the merits of the Port Tariff provisions , defendant and intervenor have argued that these issues are appropriately

considered as issues of contract performance and potentially only subject to CDA claims.

MLS specifically commented, however, that it had chosen, at this time, not to proc eed

with the allegations as contract administration issues . As MLS did not bring a CDA claim45

to the contracting officer, nor file its c omplaint in the United States Court of Federal Claims

as one for a CDA claim , this court does not consider a possible CDA claim at this time

. The court, however, does note the unfortunate position MLS finds itself in, especially as it appears MLS brought the issue s to the Navy’s attention in good faith during the
Solicitation process and before contract award

, with the hope of avoid ing precisely the situation MLS found itself in at the ports of Jebel Ali and Fujiarah

. 15

CONCLUSION

For the reasons described upon, defendant and intervenor’s motions to dismiss for lack of subject matter jurisdiction the above captioned protest are GRANTED . Protestor’s complaint is DISMISSED

.

IT IS SO ORDERED.

s/Marian Blank Horn

MARIAN BLANK HORN

Judge

15 ML S has the option to pursue a CDA claim as a contractor. If MLS decides to file a CDA claim in the United States Court of Federal Claims, in the interest of judicial economy, such a CDA case should be assigned to the undersigned. The undersigned already has carefully reviewed the Solicitation, the Contract and the rest of the lengthy record developed regarding the relevant port regulations, including the necessary, language translations of multiple documents in the record.