United States Court of Appeals 

for the Federal Circuit ______________________ 

DAVID FRANKEL,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2015-5146

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 13-546C, Judge Thomas C. Wheeler.

______________________ 

Decided: December 1, 2016

______________________ 

MATTHEW JAMES DOWD, Dowd PLLC, Washington, 

DC, argued for plaintiff-appellant.

MEEN GEU OH, Commercial Litigation Branch, Civil 

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

by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

STEVEN J. GILLINGHAM; THEODORE P. METZLER, Office of 

General Counsel, Federal Trade Commission, Washington, DC. 

______________________ 
2 FRANKEL v. US

Before PROST, Chief Judge, NEWMAN and DYK, Circuit 

Judges.

PROST, Chief Judge. 

This appeal arises from plaintiff David Frankel’s suit 

against the United States in the Court of Federal Claims 

for events arising out of the “Robocall Challenge,” a prize 

competition sponsored by the United States Federal 

Trade Commission (“FTC”). Proceeding pro se, Mr. 

Frankel requested that the FTC rescore the contest 

entries and sought money damages. The Court of Federal 

Claims construed Mr. Frankel’s rescoring request as 

seeking injunctive relief under the bid protest provisions 

of 28 U.S.C. § 1491(b) and his request for money damages 

as a breach of contract claim. The Court of Federal 

Claims subsequently dismissed the request for injunctive 

relief for failure to state a claim and, after discovery, 

granted summary judgment in favor of the government on 

the breach of contract claim. Mr. Frankel now appeals 

those rulings. 

For the reasons discussed below, we affirm. 

BACKGROUND

On October 23, 2012, the FTC announced the “Robocall Challenge,” a prize competition under 15 U.S.C. 

§ 3719(b). J.A. 43. Members of the public were invited to 

participate by “creat[ing] innovative solutions to block 

illegal robocalls.”1 Id. Under the competition rules, each 

submission would be evaluated by a panel of judges based 

on three criteria—(1) whether the solution would successfully block robocalls, worth 50%; (2) how easily could a 

consumer use the solution, worth 25%; and (3) whether 

the solution could feasibly be implemented in practice, 

worth 25%. After judging, the submission with “the 

 

1 A “robocall” is an automated sales call.
FRANKEL v. US 3

highest overall scores” would be awarded a $50,000 prize. 

J.A. 46–47. As conditions of entry, contestants granted 

the FTC “non-exclusive, irrevocable, royalty free and 

worldwide license to use” their submissions, and agreed to 

release the FTC from “any and all liability in connection 

with the Prizes or Contestant[s’] participation in the 

Contest.” J.A. 45, 49. 

By the end of the competition, the FTC received close 

to 800 submissions. After a preliminary review, of these, 

266 were forwarded to the judges for consideration. The 

contest rules provided limited guidance to the judges. 

The only express limitations on their discretion were that 

judges were required to be impartial and to evaluate 

submissions based on the criteria identified in the rules. 

Accordingly, at the start of the judging process, the FTC 

informed the judges that they did not need to provide a 

numerical score for each submission and were free to 

communicate with each other at any time. 

Due to the large number of submissions, the judges 

determined that they would need a way to cull the submissions to a group of finalists. After reviewing the 

forwarded submissions, the judges decided that the frontrunners would be those entries that proposed using 

filtering as a service (“FaaS”) to block robocalls. The 

judges based this decision, in part, on a belief that other 

solutions would not work. Having made this determination, the judges then proceeded to numerically score the 

FaaS solutions to find the winning submissions. After the 

judges finished their deliberations, they announced the 

winners. The judges also released the numerical scores 

for the two winning entries, which had tied. 

Mr. Frankel is the author of a submission that was 

among the entries given to the judges, but not ultimately 

selected. Unlike the winning entries, which were FaaS 

solutions, Mr. Frankel’s submission proposed a “traceback” solution, which would trace a robocall back to its 
4 FRANKEL v. US

source number, which could then be blocked. Though 

neither selected as a front-runner nor scored by all three

judges, Mr. Frankel’s submission did receive a numerical 

score from one judge which was the same as the score 

awarded to the winning entries. 

Believing his submission to be superior to the FaaS 

solutions, Mr. Frankel filed suit against the government 

in the Court of Federal Claims seeking to have the FTC 

rescore all the submissions. In addition, Mr. Frankel 

asked that, if the Court of Federal Claims were to grant 

his request, he “be compensated for his time and expenses 

in bringing the action.” 

In response to Mr. Frankel’s complaint, the government moved to dismiss the complaint for failure to state a 

claim under Rule 12(b)(6) of the Rules of the U.S. Court of 

Federal Claims (“RCFC”). The Court of Federal Claims 

construed Mr. Frankel’s request that the submissions be 

rescored as seeking injunctive relief under the bid protest 

provisions of 28 U.S.C. § 1491(b). The court granted the 

government’s motion in part. Reasoning that the Robocall 

Challenge was neither a procurement, nor a proposed 

procurement, the court determined that injunctive relief 

was not available. However, the court determined that 

the complaint made out a claim that a contract had been 

formed between the FTC and each contestant when the 

contestant submitted an entry under the competition 

rules, and that the FTC allegedly breached the contract. 

At the end of discovery, the government moved for 

summary judgment in its favor, arguing that Mr. 

Frankel’s claim was foreclosed by the release clause 

present in the competition rules and, in the alternative, 

that Mr. Frankel did not present evidence of “any fraud, 

bad faith, gross mistake, or dishonesty on the part of the 

judges.” J.A. 2. The court granted the government’s 

motion. In doing so, the court determined that the evidence presented did not show that the contest was con-
FRANKEL v. US 5

ducted unfairly or fraudulently. In the alternative, the 

court determined that, without evidence of fraud or bad 

faith, Mr. Frankel’s claim was barred by the liability 

waiver provision of the rules. This appeal followed. 

We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

I 

We review a grant of a motion to dismiss for failure to 

state a claim de novo. Prairie Cty., Mont. v. United 

States, 782 F.3d 685, 688 (Fed. Cir. 2015). To withstand a 

motion to dismiss under Rule 12(b)(6) of the RCFC, a 

complaint must contain “enough facts to state a claim to 

relief that is plausible on its face.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 

plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion to 

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

allegations pleaded. Id. However, courts are not required 

to accept a complaint’s legal conclusions. Id.

We review a grant of summary judgment de novo. 

Suess v. United States, 535 F.3d 1348, 1359 (Fed. Cir. 

2008). “The court shall grant summary judgment if the 

movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a 

matter of law.” RCFC 56(a). On a motion for summary 

judgment, “all evidence must be viewed in the light most 

favorable to the nonmoving party, and all reasonable 

factual inferences should be drawn in favor of the nonmoving party.” Dairyland Power Coop. v. United States, 

16 F.3d 1197, 1202 (Fed. Cir. 1994).

II

We first address Mr. Frankel’s appeal of the dismissal 
6 FRANKEL v. US

of his claim under 28 U.S.C. § 1491(b). On appeal, the 

parties do not dispute that Mr. Frankel and the FTC 

entered into a binding contract when Mr. Frankel submitted his entry in response to the government’s prize competition announcement. The nature of the relationship 

between a contestant and a sponsoring agency arising out 

of a prize competition under 15 U.S.C. § 3719 is a question of first impression. In the contest context, the majority of courts have long interpreted announcement of a 

contest as a contractual offer by a sponsor and entry into 

the contest by a contestant as acceptance of that offer. 

See, e.g., Nat’l Amateur Bowlers, Inc. v. Tassos, 715 F. 

Supp. 323, 325 (D. Kan. 1989); Johnson v. BP Oil Co., 602 

So. 2d 885, 888 (Ala. 1992). We agree with this view. 

Though the parties do not dispute the existence of a 

contract, they do dispute the nature of this contract. Mr. 

Frankel argues that his contract with the FTC is a procurement contract. As such, Mr. Frankel would have 

standing to object to the prize award because the competition resulted in “the award of a contract . . . in connection 

with a procurement or a proposed procurement.” See 28 

U.S.C. § 1491(b)(1).

The government argues that a prize competition is not 

a procurement contract because, for every prize competition, the agency is required to explain why a prize competition would be preferable “as opposed to other authorities 

available to the agency, such as contracts, grants, and 

cooperative agreements.” See 15 U.S.C. § 3719(p)(2)(B). 

Thus, according to the government, prize competitions are 

distinct from procurement contracts.

Whether a government contract is a procurement contract is a legal question of statutory interpretation. See 

Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378 (Fed. Cir. 

2006). As written, the language of § 3719(p)(2)(B) strongly implies that prize competitions are distinct from “contracts” because the statute contrasts prize competitions 
FRANKEL v. US 7

with other authorities available to an agency. However, 

in isolation, the meaning of “contracts” is unclear. If 

“contracts” were to refer to all contracts, it would render 

the term meaningless because, as the parties agree, a 

contract between the contestants and the agency is 

formed when a contestant submits an entry. There would 

be no difference between prize competitions and contracts. 

Because “a statute is to be construed in a way which gives 

meaning and effect to all of its parts,” the term must 

therefore be given a meaning that is narrower than any 

contract between an agency and a contestant. See

Heinzelman v. Sec’y of Health & Human Servs., 681 F.3d 

1374, 1379 (Fed. Cir. 2012).

In order to construe the term, we look to the surrounding context under the interpretive canon of noscitur 

a sociis. “This maxim, literally translated as ‘it is known 

by its associates,’ counsels lawyers reading statutes that a 

word may be known by the company it keeps.” Graham 

Cty. Soil & Water Conservation Dist. v. United States ex

rel. Wilson, 559 U.S. 280, 287 (2010).

Here, the term “contracts” is followed by “grants” and 

“cooperative agreements.” These latter terms relate to 

the government “acquiring property and services” and are 

discussed in Title 31, Chapter 63 of the United States 

Code. See 31 U.S.C. § 6301(1). In passing this chapter, 

Congress expressed a desire to “promote increased discipline in selecting and using procurement contracts, grant 

agreements, and cooperative agreements . . . .” Id.

§ 6301(3) (emphasis added). Thus, Congress viewed 

grants and cooperative agreements as alternatives to 

procurement contracts. See id.; see also id. §§ 6303–05 

(detailing rules for the use of procurement contracts, 

grant agreements, and cooperative agreements). Because 

15 U.S.C. § 3719(p)(2)(B) distinguishes prize competitions 

from “contracts, grants, and cooperative agreements,” and 

because grants and cooperative agreements are alterna-
8 FRANKEL v. US

tives to procurement contracts, it follows that, in this 

context, “contracts” are “procurement contracts.”

Therefore, we agree with the Court of Federal Claims 

that Mr. Frankel’s contract with the FTC arising out of 

the Robocall Challenge was not a procurement contract 

and, consequently, Mr. Frankel did not have standing to 

register an objection to the prize award under 28 U.S.C. 

§ 1491(b).

III

We next turn to Mr. Frankel’s appeal of the grant of 

summary judgment of his monetary claims. In a contract 

arising out of a prize competition, the parties are bound 

by the terms and conditions of the contest; contestants 

agree to abide by any eligibility requirements present, 

and the sponsor agrees to consider eligible entries for a 

prize. See, e.g., Scott v. People’s Monthly Co., 228 N.W. 

263, 265–66 (Iowa 1929); Johnson v. N.Y. Daily News, 97 

A.D.2d 458, 458 (N.Y. App. Div. 1983), aff’d without 

opinion, 462 N.E.2d 839 (N.Y. 1984). When, as here, the 

terms and conditions of a contest include a limitation of 

liability, a breach of contract claim brought by an unsuccessful competitor will generally succeed only if the plaintiff shows “fraud, irregularity, intentional misconduct, 

gross mistake, or lack of good faith involved in the contest.” BP Oil Co., 602 So. 2d at 888 (collecting cases); see 

also Tassos, 715 F. Supp. 323 at 325 (collecting cases). 

Clear rule violations may fall into one of these categories. 

See Groves v. Carolene Prods. Co., 57 N.E.2d 507, 509 (Ill. 

App. 1944).

Mr. Frankel does not argue that there was fraud, intentional misconduct, or a lack of good faith by the FTC. 

Instead, Mr. Frankel argues that there was irregularity 

and gross mistake when the judges failed to provide 

numerical scores to all eligible submissions, determined 

that only entries proposing FaaS solutions would be 
FRANKEL v. US 9

eligible to win, and did not appropriately apply the published judging criteria.

These arguments are unconvincing. Though the contest rules do provide weights for the judging criteria, they 

are silent as to whether judges were required to assign 

numerical scores to each entry. Other than laying out the 

criteria by which entries were to be evaluated, the rules 

did not otherwise cabin the judges’ discretion. Consequently, the judges had discretion to proceed in the manner they thought best. In doing so, the judges decided 

that entries not using a FaaS solution would categorically 

not work. It may be that, as Mr. Frankel argues, the 

judges were mistaken in their belief that other solutions, 

such as Mr. Frankel’s, would be unsuccessful (although it 

is not clear that Mr. Frankel proposed a true blocking 

solution). But, even assuming the judges were mistaken, 

they acted in accordance with the published judging 

criteria. This is not a “gross mistake” or “irregularity.” 

Cf. Minton v. F.G. Smith Piano Co., 36 App. D.C. 137, 

147–48 (Ct. App. 1911) (finding a breach of contest terms 

when the judges went beyond the judging criteria by 

adding “neatness and legibility” requirements when, 

under the contest rules, judges were only required to 

evaluate a numerical entry for correctness).

Because Mr. Frankel is unable to show “fraud, irregularity, intentional misconduct, gross mistake, or lack of 

good faith involved in the contest,” any other breach of 

contract claim based on the judging process is barred by 

the contest’s limitation of liability clause. Therefore, the 

Court of Federal Claims correctly granted summary 

judgment in favor of the government on Mr. Frankel’s 

breach of contract claim.

CONCLUSION

For the foregoing reasons, the judgment of the Court 

of Federal Claims is affirmed.
10 FRANKEL v. US

AFFIRMED

COSTS

Each party shall bear their own costs.