NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

HVF WEST, LLC,

Plaintiff-Appellee

v.

UNITED STATES,

Defendant-Appellant

LAMB DEPOLLUTION, INC.,

Defendant-Appellant

______________________

2020-1414, 2020-1583

______________________

Appeals from the United States Court of Federal 

Claims in No. 1:19-cv-01308-MMS, Chief Judge Margaret 

M. Sweeney.

______________________

Decided: February 19, 2021

______________________

EDWARD SANDERSON HOE, Covington & Burling LLP, 

Washington, DC, argued for plaintiff-appellee. Also represented by ANDREW GUY, DARBY ROURICK.

 STEVEN MICHAEL MAGER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellant 

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2 HVF WEST, LLC v. UNITED STATES

United States. Also represented by JEFFREY B. CLARK, 

ROBERT EDWARD KIRSCHMAN, JR., DOUGLAS K. MICKLE.

 SHAR BAHMANI, Sacks Tierney P.A., Scottsdale, AZ, argued for defendant-appellant Lamb Depollution, Inc. Also 

represented by JOE KEENE.

 ______________________

Before PROST, Chief Judge, CLEVENGER and HUGHES,

Circuit Judges.

CLEVENGER, Circuit Judge.

The United States (“Government”) and Lamb Depollution, Inc. (”Lamb”) appeal the final judgment of the United 

States Court of Federal Claims (“Claims Court”) in this bid 

protest case holding that it had subject matter jurisdiction 

to hear HVF West, LLC’s (“HVF”) bid protest claim and

that HVF had standing to bring the claim, and further 

granting HVF’s motion for judgment on the administrative 

record. HVF West, LLC v. United States, 146 Fed. Cl. 314 

(2019). For the reasons set forth below, we reverse. 

I

The contract in suit stems from a solicitation issued by 

the Defense Logistics Agency Disposition Services 

(“agency”) for the purchase and destruction of surplus Government military property. Prior to taking title of the purchased property, the contractor was required to 

demilitarize or mutilate the property to prevent design information from being released. The contractor would then 

own the scrap residue resulting from the property’s destruction. 

The solicitation described itself as a “sales contract,”

but clearly called for the performance of demilitarization or 

mutilation services for the agency by the winning bidder. 

The solicitation requested that sealed bids include only the 

price that the contractor would pay per pound for the 

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HVF WEST, LLC v. UNITED STATES 3

property. Although bidders were required to meet certain 

non-price criteria (e.g., technical ability to perform the 

work), the solicitation did not clearly indicate whether all 

bidders would be evaluated together under the criteria or 

whether only the highest bidder’s non-price qualifications

would be evaluated. The agency’s contracting officer (“CO”) 

received four bids in total. Lamb had the highest bid and 

HVF had the lowest bid with two other bidders in between. 

The CO only evaluated the non-price criteria for Lamb, and 

awarded the contract to Lamb after finding it met all the 

non-price criteria. HVF unsuccessfully protested the award 

to Lamb, first at the agency, and then at the Government 

Accountability Office (“GAO”), and finally filed a bid protest suit in the Claims Court.

28 U.S.C. § 1491(b)(1) vests the Claims Court with jurisdiction to hear bid protest claims by an interested party 

in connection with a procurement contract. In order to have 

standing to bring the bid protest, a losing bidder must show 

that it had a substantial chance of winning the contract but 

for the alleged error. HVF argued that the contract at issue 

called for a procurement of services and thus satisfied 

§ 1491(b)(1). Although HVF was fourth in line on price, it

asserted that it had standing to protest the contract award 

based upon detailed allegations in the complaint that 

Lamb had failed to satisfy specific non-price criteria required under the “pre-award survey,” and that the two 

other intervening bidders “failed to meet the standards for 

a successful pre-award survey.” J.A. 59. In its motion for 

judgment on the administrative record, HVF further alleged that two intervening bidders were ineligible to receive the contract either because they lacked experience in 

demilitarization services or had never received a federal 

contract with a money obligation as great as the one for the 

contract at issue. By challenging the qualification of the 

price winner, Lamb, and questioning the two intervening 

and better-priced bidders, HVF claimed that it had a substantial chance of receiving the award. Thus, according to 

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4 HVF WEST, LLC v. UNITED STATES

HVF, the Claims Court had subject-matter jurisdiction 

over its complaint, it had standing to protest the contract 

award, and it could show that the CO had erred in finding 

that Lamb satisfied all the non-price criteria required for 

the award of the contract. Lamb and the Government challenged the subject-matter jurisdiction of the Claims Court

on the ground that the contract was in connection to a sale 

of property, rather than procurement of property or services, and alleged that HVF lacked standing to bring the 

claim. Lamb further alleged that the CO had correctly determined that Lamb met all the non-price criteria. 

In its final judgment on the administrative record, the 

Claims Court held that the solicitation’s procurement of 

services provided more than a de minimis value to the 

agency sufficient to meet the jurisdictional statute, that 

HVF satisfied the legal test for standing, and that HVF 

successfully showed that the CO erred in finding Lamb satisfied all non-price criteria in the solicitation. Accordingly, 

the Claims Court ordered the agency to cancel the contract 

awarded to Lamb. 

II

Lamb and the Government timely appeal from the final 

decision of the Claims Court. We have jurisdiction under 

28 U.S.C. § 1295(a)(3) and review questions of standing de 

novo. Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 

1294, 1298 (Fed. Cir. 2001). 

Lamb and the Government argue that the solicitation 

does not satisfy the jurisdictional requirements of 

§ 1491(b)(1) because it is for a contract for sale of property 

rather than for a procurement of property or services, and 

any services required in the solicitation are merely a condition to sale that does not transform the underlying nature of the contract. Lamb also challenges HVF’s standing 

and asserts error in the Claims Court’s finding that Lamb 

failed to satisfy all the non-price criteria. Because we hold 

that HVF lacks standing to bring the protest, we reverse 

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HVF WEST, LLC v. UNITED STATES 5

on that ground and do not reach the other grounds for reversal argued by Lamb and the Government. 

III

Standing under § 1491(b)(1) “imposes more stringent 

standing requirements than Article III” by requiring the 

losing bidder to be an “interested party.” Weeks Marine, 

Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). 

We have held that an interested party is an actual or prospective bidder whose “direct economic interest would be 

affected by the award of the contract or by failure to award 

the contract.” Am. Fed’n, 258 F.3d at 1302. To succeed in 

showing that it had a direct economic interest, HVF had to 

make a sufficient showing that it had a “substantial 

chance” of winning the contract. Eskridge & Assocs. v. 

United States, 955 F.3d 1339, 1345 (Fed. Cir. 2020).

In order for HVF to show that it had a substantial 

chance of winning the award for this solicitation, it had to 

sufficiently challenge the eligibility of Lamb and both of the 

intervening bidders. See, e.g., United States v. Int’l Bus. 

Machines Corp., 892 F.2d 1006, 1010 (Fed. Cir. 1989);

Eskridge, 955 F.3d at 1344 (protesting party lacked standing upon failure to “make a credible challenge to the technical acceptability of four lower [price] bids”). However, 

HVF only proffers allegations based upon conjecture that 

are insufficient to show it had a substantial chance of winning the award. See Bannum, Inc. v. United States, 404 

F.3d 1346, 1358 (Fed. Cir. 2005) (“There is nothing besides 

Bannum’s conjecture to support the contention that another review . . . would provide it a substantial chance of 

prevailing in the bid.”). In its complaint, HVF alleged only

that the intervening bidders “failed to meet the standards 

for a successful pre-award survey.” J.A. 59. This conclusory 

statement is insufficient to question the eligibility of the

intervening bidders. 

In an attempt to support its allegation with extrinsic 

evidence, HVF purported that the website of one 

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6 HVF WEST, LLC v. UNITED STATES

intervening bidder made no mention that the company performed demilitarization work or would be capable of performing such work. However, these speculative assertions 

do not account for the fact that the solicitation stated that 

non-price considerations, such as experience, could be 

demonstrated through the facilities of a subcontractor and 

need not be shown through a bidder’s own facilities. HVF 

also alleged that the individual representing the other intervening bidding entity had never received a federal contract that was close to the value of the contract at issue.

But this does not indicate on its own that the intervening 

bidding entity, rather than its associated individual, would 

have been unable to fulfill the contract. 

Again, HVF’s speculative conclusions fail to provide a 

sufficient reason to question the eligibility of the intervening bidders. See Orbital Maint. & Constr. Co. v. United 

States, 145 Fed. Cl. 71, 76 (2019) (determining that plaintiff failed to challenge the two other offerors’ eligibility because its arguments were highly speculative and thus, it 

had no standing); see also Esilux Corp., B-234689, 89-1 

CPD ¶ 538, (Comp. Gen. June 8, 1989) (protester had no 

standing because it failed to provide support for bare allegations that the second-lowest offeror was not responsible 

and its offer unacceptable). Without more, HVF falls short 

of the threshold to establish it had a substantial chance of 

winning the award. Cf. Hyperion, Inc. v. United States, 115 

Fed. Cl. 541, 550 (2014) (plaintiff had standing because it 

adequately alleged that three lower-priced proposals were 

improperly considered technically acceptable); Bluewater 

Mgmt. Grp., LLC v. United States, 150 Fed. Cl. 588, 608–09 

(2020) (plaintiff substantively alleged with detailed reference to specific contract requirements that two lowerpriced bidders had non-compliant or deficient bids, which 

was sufficient to establish that it had a substantial chance 

of winning).

The Claims Court’s decision, entered on November 22, 

2019, did not have the benefit of our subsequent decision 

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HVF WEST, LLC v. UNITED STATES 7

in Eskridge. In that case, we made clear that even when an 

agency assesses price-ranked bidders together for technical 

compliance to select the bid most advantageous to the Government, as HVF asserts the agency should have done in 

this solicitation, the least favored price-ranked bidder has 

standing only upon mounting a credible challenge to the 

technical acceptability of the better price-ranked bidders in 

line and in front of the protesting party. In this case, HVF 

failed to mount such a challenge. 

IV

For the foregoing reasons, we reverse the Claims 

Court’s judgment that HVF had standing to bring its bid 

protest suit. This case is remanded to the Claims Court for 

dismissal of HVF’s complaint. 

REVERSED AND REMANDED

COSTS

No costs.

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