In the United States Court of Federal Claims

No. 20-758C

Filed: November 23, 2020

Reissued: November 30, 20201

MELWOOD HORTICULTURAL 

TRAINING CENTER, INC.,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

Keywords: Motion to 

Dismiss; RCFC 12(b)(1); 

Ripeness; Pre-Award Bid 

Protest; AbilityOne; Section 

898, National Defense 

Authorization Act of Fiscal 

Year 2017, Pub. L. No. 114-

328, 130 Stat 2000; JavitsWagner O’Day Act, 41 U.S.C. 

§§ 8501–06; 41 C.F.R. 51

Meghan A. Douris and Alix K. Town, Oles Morrison Rinker & Baker, LLP, Seattle, WA, for the 

Plaintiff.

Steven C. Hough, Trial Attorney, with whom were Douglas K. Mickle, Assistant Director, Robert 

E. Kirschman, Jr., Director, Commercial Litigation Branch, Jeffrey Bossert Clark, Acting 

Assistant Attorney General, Civil Division, United States Department of Justice, Washington, 

D.C., Robert B. Neill, Mark T. Robinson, United States Army, and Timi N. Kenealy, United 

States AbilityOne Commission, Of Counsel, for the Defendant.

MEMORANDUM OPINION AND ORDER

TAPP, Judge.

This is an unconventional pre-award, pre-solicitation bid protest involving the second 

iteration of a Pilot Program purportedly authorized by a panel established under Section 898 of 

the 2017 National Defense Authorization Act. Plaintiff, Melwood Horticultural Training Center 

(“Melwood”), challenges not only the United States’ intent to recompete a contract for base 

operations support services provided to the U.S. Army, but also the selection of Fort Meade, 

Maryland for the Pilot Program. The United States argues that this case is not yet ripe. 

Melwood brought these challenges on June 23, 2020, before the United States solicited 

bids for a new contract award. (Compl., ECF No. 1). That same day, Melwood filed a Motion for 

1 This Opinion was originally issued under seal. On November 30, 2020, the parties notified the 

Court that no redactions were necessary. (ECF No. 54). The Court therefore reissues this 

Opinion without redactions but with two immaterial typo corrections. 
2

Temporary Restraining Order, seeking an order enjoining the United States, acting through the 

AbilityOne Commission (“AbilityOne” or “the Commission”), from issuing a request for 

proposals. The Court denied that Motion on June 26, 2020. (Order Denying TRO, ECF No. 11). 

On July 15, 2020, the United States issued an opportunity notice for a Base Operations 

and Maintenance services contract at Fort Meade. (Administrative Record (“AR”) at 2, 1543,

ECF No. 22). The United States filed the administrative record for its decision on July 24, 2020.

Soon thereafter, the Court denied Melwood’s Motion to Supplement the Administrative Record.

(Order Denying Mot. to Suppl., ECF No. 33; Pl.’s Mot. to Suppl. AR, ECF No. 26).2

On August 26, 2020, Melwood moved for judgment on the administrative record. (Pl.’s 

MJAR, ECF No. 34). When the United States filed its Response and Cross-Motion for Judgment 

on the Administrative Record (Def.’s Mot., ECF No. 42), the United States moved to dismiss 

Melwood’s claims under RCFC 12(b)(1) and 12(b)(6). The parties each filed timely reply briefs. 

This matter now stands submitted. 

For the reasons set forth below, the Court GRANTS the United States’ Motion to 

Dismiss, DENIES AS MOOT Melwood’s Motion for Judgment on the Administrative Record, 

and DENIES AS MOOT the United States’ Cross-Motion for Judgment on the Administrative 

Record. 

I. Background

A. The AbilityOne Program

In 1971, Congress passed the Javits-Wagner O’Day Act (“JWOD”), which updated the 

Wagner-O’Day Act of 1938. Pub. L. No. 92–28, § 1, 85 Stat. 77 (1971) (codified as amended at 

41 U.S.C. §§ 46–48c (2006)).3 JWOD established the “Committee for Purchase From People 

Who Are Blind or Severely Disabled.” 41 U.S.C. § 8502. That Committee, colloquially known 

as the AbilityOne Commission, exists to carry out the Federal Government’s policy of 

“increas[ing] employment and training opportunities for persons who are blind or have other 

severe disabilities through the purchase of commodities and services from qualified nonprofit 

agencies employing persons who are blind or have other severe disabilities.” 41 C.F.R. § 51-1.1. 

In order to implement these policy goals, procurements under the JWOD function

differently than traditional government procurements. For example, AbilityOne maintains a 

Procurement List, which it publishes to the Federal Register, containing products and services 

produced or provided by qualified nonprofit agencies (“NPA”) and available for purchase by the 

2 Although Melwood moved to supplement the record, because it sought to fill “gaps in the 

record” rather than add to it, the Court construed Melwood’s request as a motion to complete the 

administrative record. Because Melwood “produced no ‘clear evidence of material that was 

generated or considered by the agency but excluded from the record,’” the Court held that it was 

“entitled to rely on the presumption that the record the United States has submitted is complete.” 

(Order Denying Mot. to Suppl. at 2).

3 Congress amended JWOD in 2011 and recodified it at 41 U.S.C. §§ 8501–06.
3

Federal Government. 41 U.S.C. §§ 8503–8504. Qualified NPAs must employ “blind or other 

severely disabled individuals for at least 75 percent of the hours of direct labor required for the 

production or provision of the products or services.” § 8501. The Federal Government purchases

products and services from the Procurement List at Fair Market Prices that are determined by the 

Commission. § 8503(b). The Commission may, “from time to time . . . revise its price 

determinations . . . in accordance with changing market conditions.” § 8503(b).

AbilityOne also must designate central nonprofit agencies (“CNA”) to help “facilitate the 

distribution” of government contracts among the qualified nonprofit agencies. § 8503(c). 

SourceAmerica is the CNA applicable to this action. (Compl. at 3). The process for 

“determin[ing] the fair market price of products and services contained on the procurement list” 

involves the “contracting activity,” the qualified nonprofit agency, and the CNA (in this case, 

SourceAmerica). 41 C.F.R. § 51-2.7(a). The “contracting activity” is “any element of an entity of 

the Government that has responsibility for identifying and/or procuring Government 

requirements for commodities or services.” 41 C.F.R. § 51-1.3. The “initial price is based on 

Committee procedures, which permit negotiations between the contracting activity and the 

nonprofit agency which will produce or provide the commodity or service to the Government, 

assisted by the appropriate central nonprofit agency.” 41 C.F.R. § 51-2.7(a). “Recommendations 

for initial fair market prices, or changes thereto, shall be submitted jointly by the contracting 

activities and nonprofit agencies concerned to the appropriate central nonprofit agency.” 41 

C.F.R. § 51-2.7(c). SourceAmerica will then submit the recommended price to AbilityOne. 41 

C.F.R. § 51-2.7. Because the policy of the AbilityOne program is to “increase employment and 

training opportunities for persons who are blind or have other severe disabilities,” procurements 

under the program are designated as “other than competitive.” See 41 U.S.C § 3304(a)(5). The 

effect of being designated “other than competitive” is that for procurements in the AbilityOne

program, “[f]ull and open competition need not be provided[.]” FAR 6.302-5(a)(2), (b)(2). 

B. The 2017 National Defense Authorization Act (NDAA) and the Pilot Programs

On December 23, 2016, Congress passed the National Defense Authorization Act For

Fiscal Year 2017 (“NDAA”). NDAA For Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat 2000

(2016). Section 898 of the NDAA stated that “[t]he Secretary of Defense shall establish a panel 

to be known as the ‘Panel on Department of Defense and AbilityOne Contracting Oversight, 

Accountability, and Integrity’” (the “898 Panel”). The 898 Panel was tasked to: 

(4) recommend changes to law, regulations, and policy that the Panel 

determines necessary to eliminate vulnerability to waste, fraud, and abuse 

with respect to the performance of contracts of the Department of Defense;

. . .

(6) recommend ways the Department of Defense and the AbilityOne 

Commission may explore opportunities for competition among qualified 

nonprofit agencies or central nonprofit agencies and ensure an equitable 

selection and allocation of work to qualified nonprofit agencies;
4

NDAA § 898(c)(4), (6). The 898 Panel was also directed to “consult[] with central nonprofit 

agencies and qualified nonprofit agencies” and “suggest milestone dates for implementation of 

the recommendations made under subsection (c)[.]” NDAA § 898(f)(1). These recommendations 

would also be compiled in an annual report to Congress required by § 898(i). See also Pride 

Indus., Inc. v. Comm. for Purchase From People Who Are Blind or Severely Disabled, 420 F. 

Supp. 3d 1035, 1039 (E.D. Cal. 2019) (summarizing the required contents of the annual report). 

The authority to implement these recommendations is somewhat ambiguous. Under 

subsection (e), the 898 Panel has the “authority [to] request documentation or other information 

needed from the AbilityOne Commission, central nonprofit agencies, and qualified nonprofit 

agencies.” NDAA § 898(e). If AbilityOne fails to substantially implement the recommendations, 

the Secretary of Defense, upon receiving notification, “may suspend compliance with the 

requirement to procure a product or service [from the Procurement List] until the date on which 

the Secretary notifies Congress, in writing, that the AbilityOne Commission is substantially 

implementing the [898 Panel’s] recommendations[.]” NDAA § 898(g)(1)(A). 

On July 18, 2018, the 898 Panel submitted its First Annual Report to Congress. (AR15–

84). In its First Annual Report, the 898 Panel stated that “CNA and NPA perception that a 

designated NPA remains the provider of a product or service in perpetuity can erode 

performance, escalate prices, and impact customer satisfaction, and the AbilityOne Program 

Reputation and employment.” (AR44). Therefore, the 898 Panel recommended “changes to how 

work is assigned or re-assigned, and also changes to Title 41 CFR 51.” (AR44).4 The proposed 

changes included “adding policy which would establish mandatory source selection procedures” 

that “would require CNAs to use a specific list of measurable qualifications when choosing an 

NPA for the project assignment, such as price, technical capability for the work, past 

performance, and the percentage of disabled hours.” (AR44) (emphasis added). For 

procurements, the 898 Panel proposed “[r]equir[ing] [a] best value trade-off analysis process that 

considers price . . ..” (AR45). 

In spring of 2019, the Army advised Pride Industries, Inc.—an AbilityOne NPA 

contractor—that it would extend Pride’s Facilities Support Operations contract at Fort Bliss until 

January 2020, after which “the contract would be performed by the party awarded the contract by 

AbilityOne through a new, pilot procurement process.” Pride Indus., 420 F. Supp. 3d at 1040. 

On June 10 and 11, 2019, AbilityOne announced two new policies which would comprise its 

new Pilot Program for the AbilityOne procurement process. (AR85–87, 88–90). The first, 

Interim Policy 51.301.1, announced “changes relevant to pilot test(s), in which a competitive 

nonprofit agency (NPA) recommendation process will be conducted, considering technical 

capability, past performance, and price.” (AR85) (emphasis added). The second policy, Interim 

Policy 51.320.1, directed CNAs “not [to] provide technical and/or pricing assistance to any NPA 

participating in the pilot test.” (AR89). Instead, NPAs were instructed to “provide their pricing 

4 The regulations pertinent to the AbilityOne Program are contained in Title 41 C.F.R. Chapter

51.
5

information in accordance with the instructions included in the Opportunity Notice as well as 

existing and interim Commission policy and procedures.” (AR89). 

On July 31, 2019, the AbilityOne Commission initiated the first iteration of this Pilot 

Program procurement at Fort Bliss. See Pride Indus., 420 F. Supp. 3d at 1041; (see also AR325, 

1470). In that procurement, the incumbent, Pride Industries, was reselected to perform the 

Facilities Support Contract and the Army recognized a 20 percent cost savings over the life of 

the contract. (AR1470). 

C. Melwood’s Base Operations Support Services Contract at Fort Meade 

Melwood is a not-for-profit organization which employs persons who are blind or 

otherwise severely disabled. (See Pl.’s MJAR at 4; Compl. at 1). In May 2011, Melwood was 

added to the Procurement List as a qualified NPA contractor. (AR2). Melwood was enlisted to 

provide Base Operation Support Services for multiple buildings at Fort Meade, an Army 

installation in Maryland that is home to approximately 55,000 military and civilian personnel. 

(See AR137). These support services include facilities maintenance, refuse removal, 

groundskeeping, snow and ice removal, and other similar services. (AR91–108). 

In recognition of saved costs and other benefits from the first Pilot Program procurement 

at Fort Bliss, the Army requested that AbilityOne conduct a second iteration of its Pilot Program 

for the Base Operations Support Services Contract (“BOSS Contract”) at Fort Meade. (AR1471). 

Melwood’s Fort Meade contract was set to expire at the end of June 2020 but given several 

options to extend the contract. (AR342, 354). The Army had undertaken an Independent 

Estimate for pricing of the Fort Meade contract on December 11, 2019. (AR334). This estimate 

showed a base year total cost of $26,062,290.04 and a five-year total cost of $136,521,931.90. 

(AR334, 339). On December 19, 2019, AbilityOne responded to the Army’s interest via email, 

stating that it would be “happy to work with” the Army on a second Pilot Program procurement. 

(AR341).

On May 12, 2020, the Army published a press release announcing Fort Meade had been 

selected for the second iteration of the Pilot Program. (AR347). Several days later, AbilityOne 

notified Melwood of this press release by email. (AR347). On May 28, 2020, the Executive 

Director of AbilityOne signed a Memorandum of Agreement formalizing the decision to initiate 

the Pilot Program at Fort Meade. (AR358–61). 

On June 23, 2020, Melwood filed a pre-solicitation, pre-award bid protest challenge, 

seeking to “prevent the issuance of the Opportunity Notice and/or RFP” and to “challenge . . . 

the Government’s intent to compete the Fort Meade Base Operations contract.” (Compl. at 1) 

(emphasis added). Melwood also moved for a temporary restraining order, alleging it would

suffer irreparable reputational harm should the United States be permitted to proceed with the 

solicitation. (See Order on TRO, ECF No. 11). On June 26, 2020, the Court denied Melwood’s 

request. (Id.). On July 14, 2020, AbilityOne formally authorized the Pilot Program procurement 

process for the BOSS Contract at Fort Meade and directed SourceAmerica to post the 

opportunity notice. (AR1468–74). SourceAmerica then posted the opportunity notice on July 15, 

2020. (See AR1543). 
6

II. Analysis

Melwood’s Complaint challenges the procurement at Fort Meade on three grounds. First, 

Melwood alleges that “the Commission has violated FAR 8.705-4 by improperly canceling the 

Fort Meade [BOSS] contract with Melwood.” (Compl. at 9). Second, Melwood argues that 

AbilityOne’s “source selection plan for the Fort Meade [BOSS] re-procurement violates 41 

U.S.C. § 8503, FAR 8.707, FAR 6.302-5(b)(2), and 41 C.F.R. § 51-2.7 as [it] relinquishes 

[AbilityOne’s] responsibility to establish a fair market price to a competition between the 

nonprofit agencies, which is specifically prohibited.” (Compl. at 10). Third, Melwood alleges a 

violation of the Administrative Procedures Act, 5 U.S.C. § 701–706, and seeks a declaratory 

judgment that “the Section 898 Panel’s pilot program and the selection of the Fort Meade 

[BOSS] contract’s participation in that program is arbitrary, capricious, an abuse of discretion, 

and otherwise in violation of law.” (Compl. at 10–11).

Each party has moved for judgment on the administrative record with respect to these 

challenges. The United States has also moved to dismiss Melwood’s Complaint on various 

jurisdictional grounds. (See generally, Def.’s Mot.) (seeking dismissal for want of subject matter 

jurisdiction, for being unripe, and for failure to state a claim). Because jurisdiction is a threshold 

issue, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998), the Court will 

address these arguments first before turning to the remaining challenges.

A. Legal Standards

i. Bid Protests 

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid 

protests brought 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(b)(1). In bid protest cases, this Court reviews agency actions 

under the Administrative Procedure Act’s “arbitrary and capricious” standard. See 28 U.S.C. § 

1491(b)(4). Under this standard, an “award may be set aside if either (1) the procurement 

official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation 

of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 

F.3d 1324, 1332 (Fed. Cir. 2001).

In this regard, the United States Court of Appeals for the Federal Circuit has explained 

that: “when a challenge is brought on the first ground, the test is ‘whether the contracting agency 

provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed 

bidder bears a “heavy burden” of showing that the award decision had no rational basis.’” Id. at 

1332–33. “When a challenge is brought on the second ground, the disappointed bidder must 

show a clear and prejudicial violation of applicable statutes or regulations.” Id. at 1333. In 

addition, when reviewing an agency’s procurement decision, the Court should recognize that the 

agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton Park, 

Inc. v. Volpe, 401 U.S. 402, 415 (1971), overruled on other grounds by Califano v. Sanders, 430 

U.S. 99 (1977). “The [C]ourt should not substitute its judgment for that of a procuring agency.” 

Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997). And so, “[t]he protestor must 
7

show, by a preponderance of the evidence, that the agency’s actions were either without a 

reasonable basis or in violation of applicable procurement law.” Info. Tech. & Applics. Corp. v. 

United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003) (citation 

omitted).

The Court’s standard of review “is highly deferential.” Advanced Data Concepts, Inc. v. 

United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for 

the agency’s action, the court should stay its hand even though it might, as an original 

proposition, have reached a different conclusion.” Honeywell, Inc. v. United States, 870 F.2d 

644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. 

Cir. 1971)). But, if “the agency ‘entirely fail[s] to consider an important aspect of the problem 

[or] offer[s] an explanation for its decision that runs counter to the evidence before the agency,’”

then the resulting action lacks a rational basis and, therefore, is defined as “arbitrary and 

capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. 

Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983)).

ii. Motion to Dismiss

To survive a Motion to Dismiss under RCFC 12(b)(1), the Complaint must “allege 

sufficient facts to establish the court’s jurisdiction,” the basis of which must be “affirmatively 

and distinctly set forth.” DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318–19 (Fed. 

Cir. 2006). The burden of establishing subject matter jurisdiction rests with the plaintiff, who 

must do so by a preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 

561 (1992); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). This 

Court’s jurisdiction to entertain claims and grant relief depends on the extent to which the United 

States has waived sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976). When 

faced with a motion to dismiss for lack of subject matter jurisdiction pursuant to the RCFC Rule 

12(b)(1), the Court must assume that all undisputed facts alleged in the complaint are true and 

draw all reasonable inferences in the plaintiff’s favor. Scheuer v. Rhodes, 416 U.S. 232, 236 

(1974); see also Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The movant, 

however, may challenge the truth of any facts upon which jurisdiction depends. See Raymark 

Indus. v. United States, 15 Cl. Ct. 334, 338 (1988). If it does, the plaintiff must come forward 

with prima facie showing of jurisdiction. Id. The plaintiff cannot rely only on its allegations. See 

Hornback v. United States, 52 Fed. Cl. 374, 377 (2002). 

Moreover, the Court may look to evidence outside of the pleadings in order to ascertain 

the propriety of its exercise of jurisdiction over a case. Rocovich v. United States, 933 F.2d 991, 

994 (Fed. Cir. 1991), aff’d in relevant part, Martinez v. United States, 281 F.3d 1376 (Fed. Cir. 

2002). In that vein, a Court may refrain from exercising its jurisdiction over a claim that is not 

yet ripe. Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725 (1997); Reno v. Catholic Soc. 

Servs., Inc., 509 U.S. 43, 58 n.18 (1993) (“We have noted that ripeness doctrine is drawn both 

from Article III limitations on judicial power and from prudential reasons for refusing to exercise 

jurisdiction.”). Thus, dismissal of an unripe claim is most appropriate under RCFC 12(b)(1). If 

the Court determines at any time that subject matter jurisdiction is lacking, it must dismiss the 

complaint. See RCFC 12(h)(3).
8

B. Count I Must be Dismissed Under RCFC 12(b)(1) for Lack of Subject Matter 

Jurisdiction

Count I of Melwood’s Complaint alleges that “the Commission has violated FAR 8.705-4 

by improperly canceling the Fort Meade Base Operations Support Services contract with 

Melwood.” (Compl. at 9). The United States’ Cross-Motion and Motion to Dismiss argues that 

Count I “involves a dispute arising out of the contract between the parties, and therefore must be

brought under the Contract Disputes Act (CDA)—not under the Court’s bid protest jurisdiction.”

(Def.’s Mot. at 14) (internal citations and alterations omitted). Consequently, the United States 

argues, Count I must be dismissed for either lack of subject matter jurisdiction under RCFC 

12(b)(1) or for failure to state a claim under RCFC 12(b)(6). (Def.’s Mot. at 14). The Court 

agrees that, under its bid protest jurisdiction, it lacks subject matter jurisdiction to adjudicate 

what is essentially a wrongful termination of contract claim, and thus dismissal under RCFC 

12(b)(1) is appropriate. 

Melwood maintains that its claim “is a proper pre-award protest – not a [CDA] claim.” 

(Pl.’s Opp. at 9). Melwood argues that “once a party objects to a procurement, [28 U.S.C.] 

section 1491(b)(1) provides a broad grant of jurisdiction[.]” (Id. (citing 41 U.S.C. § 111, which 

defines “procurement” as “all stages of the process of acquiring property or services, beginning 

with the process for determining a need for property or services and ending with contract 

completion and closeout.”)). Melwood has indeed brought its claims under 28 U.S.C. § 1491(b) 

(bid protest jurisdiction) and 5 U.S.C. § 702 (judicial review under the APA). (See Compl. at 2). 

However, Count I concerns the improper cancellation of a contract, which is inherently a 

contract administration challenge that must be brought under the Contract Disputes Act. 

Melwood cannot attempt to reframe this contract administration challenge as a bid protest 

through its briefs. 

“When a plaintiff’s claim involves a breach of a contract with the Government before the 

expiration of the contract, the court cannot hear the claim as a bid protest because ‘28 U.S.C. § 

1491(b) provides no jurisdiction for claims of wrongful termination or breach.’” GonzalezMcCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 716 (2010) (quoting The Ravens 

Group v. United States, 78 Fed. Cl. 390, 398 (2007)). “[C]laims related to the ongoing 

administration and management of a government contract, including claims for breach of 

contract or termination, must be pursued under the CDA, not under the court’s bid protest 

jurisdiction.” Diversified Maint. Sys., Inc. v. United States, 103 Fed. Cl. 431, 436 (2012) (citing

Cecile Indus., Inc. v. Cheney, 995 F.2d 1052, 1055 (Fed. Cir. 1993) (“The CDA exclusively 

governs Government contracts and Government contract disputes.”)) (citation omitted); Dalton 

v. Sherwood Van Lines, 50 F.3d 1014, 1017 (Fed. Cir. 1995) (“When the Contract Disputes Act 

applies, it provides the exclusive mechanism for dispute resolution”); see also Frazier v. United 

States, 79 Fed. Cl. 148, 160 (2007) (“[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.”), aff’d, 301 Fed. Appx. 974 (Fed. Cir. 2008); Ravens Grp., Inc., 78 Fed. Cl. at 398 

(noting that section 1491(b) provides no jurisdiction for claims of wrongful termination or 

breach). Furthermore, the Court of Federal Claims’ CDA jurisdiction “requires both a valid 

claim and a contracting officer’s final decision on that claim.” M. Maropakis Carpentry, Inc. v. 

United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing James M. Ellett Constr. Co. v. 

United States, 93 F.3d 1537, 1541–42 (Fed. Cir. 1996)).
9

Melwood’s Complaint, on its face, alleges cancellation of a contract before its expiration, 

thus it is a contract administration challenge that must be brought under the CDA, not the 

Court’s bid protest jurisdiction. (See Compl. at 8, 9). Moreover, Melwood has not alleged its 

claim satisfies the prerequisites for a CDA claim and concedes that “the grounds for a CDA 

claim are not before the Court.” (Pl.’s Opp. at 9 n.2, ECF No. 44). Thus, dismissal of Count I 

under RCFC 12(b)(1) for lack of subject matter jurisdiction is proper. 

C. Count II Must Be Dismissed Under RCFC 12(b)(1) Because it Does Not 

Challenge a “Final Agency Action” and is Therefore Unripe 

The United States asserts that Melwood does not challenge a final agency action, but 

rather an inchoate decision by AbilityOne—the “intent to [re]compete the Fort Meade” BOSS 

Contract—therefore its entire Complaint is unripe and must be dismissed. (Def.’s Mot. at 8; see 

also Compl. at ¶¶ 1, 6, 43, 49). Melwood responds that the May 2020 email from AbilityOne 

stating the intent to recompete the BOSS Contract at Fort Meade evidences the consummation of 

the agency decision-making process. (Pl.’s Opp. at 6). Additionally, Melwood argues that even if 

its challenge was not ripe when the Complaint was filed, AbilityOne has now issued a formal 

decision which constitutes final agency action, and thus the Court should find that its challenge 

has ripened. (Id. at 8). 

The Court agrees that Melwood brought this challenge too early, before a final agency 

action was taken, and crucially, has not attempted to cure this defect with an amended 

complaint.5 However, because the Court finds Counts I and III are more appropriately dismissed 

on other grounds, its holding that Melwood’s claim is unripe applies only to Count II. 

For an action to be “ripe,” the protestor must establish “both the fitness of the issues for 

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

Labs. v. Gardner, 387 U.S. 136, 149 (1967); see also Caraco Pharm. Labs., Ltd. v. Forest Labs., 

Inc., 527 F.3d 1278, 1294–95 (Fed. Cir. 2008); Tex. v. United States, 134 Fed. Cl. 8, 17 (2017)

(“It is protestor’s burden to establish ripeness.”). “[A]n action is fit for judicial review where 

further factual development would not ‘significantly advance [a court’s] ability to deal with the 

legal issues presented.’” Caraco Pharm. Labs., 527 F.3d at 1295. (quoting Nat’l Park Hospitality 

Ass’n v. Dep’t of Interior, 538 U.S. 803, 812 (2003)). Hardship to the parties may be present 

where “the complained-of conduct has an ‘immediate and substantial impact’ on the plaintiff.”

Id. (quoting Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 171 (1967)).

5 The Court passes no judgment on whether an amended complaint would have ripened this case. 

Melwood has repeatedly maintained that this challenge is to the agency’s intent recompete the 

Fort Meade BOSS Contract, not a challenge to the solicitation itself. During Oral Argument on 

Melwood’s Motion to Supplement the Administrative Record, Melwood affirmed that only 

“Count III of our complaint actually challenges the decision itself to include . . . Fort Meade as 

part of the Pilot Program.” (Tr. of OA on Mot. to Suppl. at 12:1–8, ECF No. 39). In fact, the 

Court specifically pointed out that this “seems to be . . . a challenge to the decision to 

contemplate recompeting the Fort Meade contract rather than the actual decision to recompete 

the contract.” (Id. at 8:7–12).
10

However, before examining whether Melwood’s claim satisfies both elements of being 

“ripe,” the Court must first address the parties’ contradicting assertions about when ripeness 

should be determined.

i. Ripeness is Evaluated at the Time the Complaint is Filed 

Melwood argues that even if it was not ripe when filed, its claim is “unquestionably” ripe 

now. (Pl.’s Opp. at 8). However, this argument misunderstands and misapplies the ripeness 

doctrine. The Court agrees with the United States that accepting such an argument would defeat 

the purpose of the doctrine, which is “to prevent the courts, through avoidance of premature 

adjudication, from entangling themselves in abstract disagreements over administrative policies, 

and also to protect the agencies from judicial interference until an administrative decision has 

been formalized and its effects felt in a concrete way by the challenging parties.” Sys. 

Application & Techs., Inc. v. United States, 691 F.3d 1374, 1383 (Fed. Cir. 2012) (internal 

citations and quotations omitted). 

Ripeness, for the purposes of a trial court’s jurisdiction, must be evaluated when the 

Complaint is filed. Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 734 n.2 (Fed. 

Cir. 1988). “The presence or absence of jurisdiction must be determined on the facts existing at 

the time the complaint under consideration was filed.” Id. (citing Jervis B. Webb Co. v. Southern 

Sys., Inc., 742 F.2d 1388, 1398 (Fed. Cir. 1984) (“[A] case or controversy must exist as of the 

date of the filing of the declaratory judgment action”)). “[S]ubject matter jurisdictional facts 

must be pleaded, and proved when challenged, and . . . later events may not create jurisdiction 

where none existed at the time of filing.” Spectronics Corp. v. H.B. Fuller Co., 940 F.2d 631, 

635 (Fed. Cir. 1991).

However, Melwood points to two cases in which the Supreme Court suggested that 

ripeness may be evaluated on a “rolling basis.” (Pl.’s Opp. at 8). However, these decisions apply 

to the prudentialism of appellate courts reviewing events that occurred after a lower court’s 

decision.

6

In Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 137 (1974), the Supreme 

Court considered the “conveyance taking” of land for rail use under the Rail Act and the Fifth 

Amendment.7 At the trial court below, the District Court determined that review of the issues 

would be premature since the challenged conveyance decision required several further steps 

6 Melwood relies on a third case, from another Judge on the Court of Federal Claims, in making 

its argument. That case, CBY Design Builders v. United States, 105 Fed. Cl. 303, 329 n.20 

(2012), stated in dicta that “jurisdictional questions of ripeness are not based on the state of 

affairs at the time of filing, as subsequent events may make a matter ripe.” (citing Blanchette and 

Buckley). However, that case had no need to grapple with the prudential concerns of the ripeness 

doctrine as it primarily addressed mootness, but in any event, is not binding precedent on this 

Court.

7 Blanchette is often alternatively cited as Regional Rail Reorganization Act Cases, 419 U.S. 102 

(1974). 
11

before it would constitute a “final” action. Id. at 138 (“The District Court’s holding of 

prematurity was influenced by the statutory scheme that requires several decisional steps before 

the final conveyance.”). However, soon after the District Court’s decision, those “decisional 

steps” were completed. Id. at 139 (“subsequent to the District Court’s opinion, the Penn Central 

Reorganization Court determined that the Rail Act did not provide a process that would be fair 

and equitable to the estate[.]”). The Supreme Court decided that, for prudential reasons, even 

though the issues may have been unripe for the district court, a remand would be wasteful and 

unnecessary since the issues had since matured. Id. at 140 n.25 (“It might be appropriate under 

different circumstances only to decide that the issues are ripe, and to remand to the District Court 

for their determination on the merits. However, such a remand here would be both undesirable 

and unnecessary.”). 

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court considered the 

constitutionality of several provisions of the Federal Election Campaign Act of 1971, as well as 

not-yet-final rulings and determinations by the Federal Election Commission. After the Court of 

Appeals for the D.C. Circuit issued its decision, the Federal Election Commission promulgated 

several rules and regulations under the authority of that Act. Id. at 115–16. Again, for prudential 

reasons, the Supreme Court determined that it should consider these new regulations on appeal, 

despite not being presented to the courts below. Id. at 117. (holding that the Supreme Court was 

“warranted in considering all . . . aspects of the Commission’s authority which have been 

presented by the certified questions.”).

Blanchette and Buckley are an exception, not the rule, to the ripeness doctrine. Nothing in 

this case warrants a departure from the Federal Circuit’s ripeness jurisprudence which dictates 

that “[t]he presence or absence of jurisdiction must be determined on the facts existing at the 

time the complaint under consideration was filed.” Arrowhead Indus. Water, Inc., 846 F.2d at 

734 n.2. Thus, the Court must assess the ripeness of Melwood’s claims from the time the 

Complaint was filed on June 23, 2020, prior to AbilityOne’s formal authorization of the Pilot 

Program. 

ii. The Inchoate Procurement Decision Melwood Challenges Does Not 

Satisfy the “Fitness” Prong 

“When a party challenges government action, the [fitness] factor becomes a question of 

whether the challenged conduct constitutes a final agency action.” Sys. Application & Techs., 

Inc., 691 F.3d 1374, 1384 (Fed. Cir. 2012) (citing Tokyo Kikai Seisakusho, Ltd. v. United States,

529 F.3d 1352, 1363 (Fed. Cir. 2008) and U.S. Ass’n of Imps. of Textiles & Apparel v. U.S. Dep’t 

of Commerce, 413 F.3d 1344, 1349–50 (Fed. Cir. 2005)). “Final agency action hinges on two 

points: ‘First, the action must mark the “consummation” of the agency’s decision-making 

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

must be one by which “rights or obligations have been determined,” or from which “legal 

consequences will flow.”’” Sys. Application & Techs., Inc., 691 F.3d at 1384 (quoting Bennett v. 

Spear, 520 U.S. 154, 177–78 (1997) (citations omitted)).

The United States alleges that “final agency action” in this case occurred when the 

AbilityOne Commission took a formal written vote on July 14, 2020, authorizing the 

Commission to initiate the competitive process among qualified nonprofit agencies. (Def.’s Mot. 
12

at 10; AR1469, 1473). Melwood alleges that final agency action was taken when AbilityOne 

communicated the Army’s intent to select Fort Meade for the competition pilot. (Pl.’s Opp. at 6–

7). Melwood frames the final agency action as the informal decision not to continue the contract 

with Melwood as the provider of Base Operations Support Services at Fort Meade. (Id.) (“No 

further documentation was necessary to establish the agency’s final decision.”).

The Court agrees with the United States that “final agency action” occurred when the 

formal written vote was taken and that Count II challenges agency action before a final agency 

decision. At any point, up until AbilityOne took a formal vote to authorize the Pilot Program, 

“[t]he Government could have changed its mind and decided not to proceed with the competition 

pilot, and the Commission could have voted to deny authorization for it to move forward.” (See

Def.’s Mot. at 10). Only when the decision was final, and the parties were assured that the Pilot 

Program would proceed, could “legal consequences flow.” As previously stated, Melwood filed 

its Complaint on June 23, 2020, and a final vote did not occur until several weeks later. Melwood 

has not sought leave to amend its Complaint to challenge this vote, which the United States has 

conceded would constitute “final agency action.” (See id.). Therefore, Melwood fails to 

challenge a “final agency action” necessary to satisfy the “fitness” prong of the ripeness inquiry. 

iii. Melwood Has Not Asserted it Will Suffer “Hardship” Without Review 

and Thus Has Conceded That Issue

To be “ripe,” a plaintiff’s claim must also satisfy the second prong by demonstrating a 

“hardship” that would be presented if the Court withheld consideration of the issues. Thus, 

Melwood must be able to show it has suffered an “immediate and substantial impact” stemming 

from the Government’s conduct. Caraco Pharm. Labs., 527 F.3d at 1295 (quoting Gardner, 387 

U.S. at 171). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that 

may not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 

296, 300 (1998) (quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 

580–581 (1985)).

Even if it could satisfy the “fitness” prong, Melwood has not demonstrated, or even 

offered an argument, that it will suffer “hardship” in response to the United States’ Motion to 

Dismiss. (See Pl.’s Opp. at 5–8 (discussing the point of litigation at which ripeness is 

determined, and the fitness of the issues, but omitting discussion of hardship to Melwood)); see 

also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, 

hunting for truffles buried in briefs.”). 

In any event, failure to respond to the United States’ ripeness arguments on the merits can 

be construed as a concession of the issue. Cardiosom, LLC v. United States, 91 Fed. Cl. 659, 664 

(2010), rev’d sub nom., Cardiosom, L.L.C. v. United States, 656 F.3d 1322 (Fed. Cir. 2011)

(“[B]y failing to respond to Defendant’s argument regarding the jurisdictional defect of the . . . 

claim, Plaintiff has effectively conceded the issue.”); Philadelphia Auth. for Indus. Dev. v. 

United States, 114 Fed. Cl. 519, 527 (2014) (Sweeney, J.) (construing plaintiff’s silence on the 

merits of defendant’s arguments as waiver); Winnemucca Indian Colony v. United States, No. 

13-874, 2014 WL 3107445, at *4 (Fed. Cl. July 8, 2014) (Firestone, J.) (“[P]laintiffs have not 

responded to these arguments. As such, they are deemed conceded”). 
13

Because Melwood has not identified any hardship it would suffer if the Court declines to 

review this unconventional, pre-solicitation challenge, the Court construes that silence as a 

concession that Melwood will suffer no hardship. Therefore, even if Melwood’s claims in Count 

II were “fit” for judicial review, which they are not, Melwood cannot demonstrate a hardship 

necessary to establish ripeness of the issues for judicial review. Because Count II is unripe, the 

Court lacks jurisdiction to hear it. See Morris v. United States, 392 F.3d 1372 (Fed. Cir. 2004)

(explaining that a Court “does not have jurisdiction over claims that are not ripe”); RCFC 12(h) 

(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action”). Consequently, the Court dismisses Count II without prejudice under RCFC 

12(b)(1) for lack of jurisdiction. Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1350 

(Fed. Cir. 2015) (“If a claim is not yet ripe for judicial review, it should generally be dismissed 

without prejudice.”).

D. The Court Lacks Subject Matter Jurisdiction Over the Administrative Procedures 

Act, Thus Count III Should be Transferred to the U.S. District Court for the 

District of Maryland 

Count III of Melwood’s Complaint alleges a violation of the Administrative Procedures 

Act (“APA”), 5 U.S.C. § 701–706, and seeks a declaratory judgment that “the Section 898 

Panel’s pilot program and the selection of the Fort Meade BOS contract’s participation in that 

program is arbitrary, capricious, an abuse of discretion, and otherwise in violation of law.”

(Compl. at 10–11). 

The United States has moved for dismissal of this claim under RCFC 12(b)(1), asserting 

that the Court of Federal Claims lacks subject matter jurisdiction to hear APA claims. (Def.’s 

Mot. at 15 (citing Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1370 n.11 (Fed. Cir. 2005)

(“Of course, no APA review is available in the Court of Federal Claims.”))). This is 

unquestionably correct. See, e.g., Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) 

(holding that the Court of Federal Claims lacked general federal question jurisdiction to review 

the propriety of agency action under the Administrative Procedure Act, 5 U.S.C. §§ 701–706 

(2000)).

Melwood, in its Reply brief, recognizes this defect and now seeks transfer to the U.S. 

District Court for the District of Maryland. (Pl.’s Opp. at 11). Transfer may be effected under 28 

U.S.C. § 1631 to cure a lack of jurisdiction if transfer “is in the interest of justice,” and the 

destination court is one “in which the action . . . could have been brought at the time it was filed 

or noticed[.]” Melwood argues that transfer is “in the interest of justice” because its “claims are 

nonfrivolous and should be decided on the merits.” (Pl.’s Opp. at 12 (citing Galloway Farms, 

Inc. v. United States, 834 F.2d 998 (Fed. Cir. 1987) (“The phrase ‘if it is in the interest of justice’

relates to claims which are nonfrivolous and as such should be decided on the merits.”))). 

Melwood asserts that the District of Maryland is the proper venue under 28 U.S.C. § 1391(e) 

because it is where “a substantial part of the events or omissions giving rise to the claim 

occurred” or where “the plaintiff resides[.]” (See Pl.’s Opp. at 12). Of course, the BOSS Contract 

was performed in Maryland, where Fort Meade is located, and alternatively, Melwood’s 

principal place of business in Maryland. (Compl. at 2, 7). Therefore, the District of Maryland 

would indeed be the proper venue. 
14

The United States opposes transfer. (Def.’s Reply at 6, ECF No. 48). The basis of the 

United States’ objection is that this claim is brought “in connection with a procurement or a 

proposed procurement[.]” (Id. at 6–7 (citing § 1491(b)(1))). The United States argues that “the 

Administrative Dispute Resolution Act of 1996 (ADRA) ‘terminated federal district court 

jurisdiction over bid protests[.]’” (Id. at 7 (quoting Emery Worldwide Airlines, Inc. v. United 

States, 264 F.3d 1071, 1079 (Fed. Cir. 2001))). “Congress intended the 1491(b)(1) jurisdiction to 

be exclusive where 1491(b)(1) provided a remedy (in procurement cases).” Res. Conservation 

Grp., LLC v. United States, 597 F.3d 1238, 1246 (Fed. Cir. 2010). 

Although Count III invokes § 1491(b)(1), the thrust of Melwood’s challenge is that the 

implementation of the Pilot Program as a whole is a violation of the Administrative Procedures 

Act. (Compl. at 10). The U.S. District Court for the District of Maryland is better suited to 

address whether this challenge was one which Congress intended to remove from the jurisdiction 

of the federal district courts, and evaluate the claim’s merits. On its face, Count III is a 

nonfrivolous claim that should be decided on the merits by a court with proper jurisdiction and 

venue. Accordingly, the Court transfers Count III to the U.S. District Court for the District of 

Maryland. 

E. Melwood’s and the United States’ Motions for Judgment on the Administrative 

Record are Denied as Moot

As explained above, this Court does not possess jurisdiction over Melwood’s claims for 

various reasons. As such, this Court does not review the Administrative Record to determine 

whether AbilityOne acted arbitrarily and capriciously, abused its discretion, or violated the law

with various aspects of the Pilot Program. However, like the District Court for the Eastern

District of California, which reviewed the first iteration of the 898 Panel’s Pilot Program, the 

Court has grave concerns about the legality of the Pilot Program and AbilityOne’s execution of 

it. See Pride Indus., 420 F. Supp. 3d at 1046 n.4 (noting that the Pilot Program “appears to 

significantly modify if not abandon statutorily prescribed pricing and allocation processes.”). 

The Court’s concerns are threefold. 

First, Melwood raises a novel question of whether the program itself violates the JWOD 

or is authorized by the NDAA. The JWOD establishes a “uniquely tailored statutory scheme for 

providing government services contracts to the blind or severely disabled.” Id. The 898 Panel 

and AbilityOne have, at best, ambiguous authority to implement new procurement procedures 

that widely diverge from those explicitly outlined in JWOD. A plain reading of the NDAA 

indicates that the 898 Panel is only authorized to provide recommendations, not implement new 

procedures for AbilityOne procurements. NDAA § 898(c)(2)–(7). Subsection (e) circumscribes 

the “authority” of the 898 Panel:

To carry out the duties described in subsection (c), the Panel may request 

documentation or other information needed from the AbilityOne 

Commission, central nonprofit agencies, and qualified nonprofit agencies.

NDAA § 898(e). All that is granted, under a plain reading of the text, is the power to collect 

information in order to take the actions contemplated by subsection (c). Notably, seven of the 

eight delineated “duties” of the 898 Panel, as defined in subsection (c), begin with “recommend 
15

actions,” “recommend changes,” “recommend ways,” “recommend criteria,” or “review the 

status” of the program. NDAA § 898(c)(1)–(7). The eighth duty would require a determination 

by the Secretary of Defense, not simply the initiative of AbilityOne or a “contracting activity,” 

such as the Army. The Court believes it is possible, or even likely, that the intended end goal of 

the 898 Panel’s authority was to report to Congress and make recommendations on how to 

change the governing statutes and regulations, rather than implement a Pilot Program that largely 

disregards the procurement procedures of the JWOD and Title 41 C.F.R. Chapter 51. 

Second, the Pilot Program seems to hinge on the addition of a price component, and the 

two iterations so far have championed the Pilot Program’s cost-savings. The Court is skeptical of 

whether the 898 Panel or AbilityOne may lawfully conduct a program that ignores, or runs 

directly counter to, the policy goals outlined by JWOD, and the procurement procedures with

regard to price extensively detailed in 41 C.F.R. 51. While competition on price may not be 

specifically prohibited, JWOD makes clear its preference for evaluation on other components of 

a bid, and the detailed procurement scheme for arriving at an AbilityOne contract’s price 

indicates bids should not contain a price component. There are specific policy reasons for these 

procedures clearly delineated by the statute—providing employment for the blind and severely 

disabled. It is unclear whether Congress intended to permit AbilityOne to drastically modify the 

procurement procedures which encapsulate these policy prescriptions without a clear directive

that the addition of a price component is permissible. 

Third, the Court is troubled by the Army’s ad hoc, back-of-the-napkin math relied upon 

to determine that a resolicitation at Fort Meade could accomplish its legally dubious priceslashing goals. With its Opposition to Melwood’s Motion for Temporary Restraining Order, the 

United States attached a Declaration that estimated “that the fair market price for this acquisition 

will be approximately 33% less than the current contract price. In monetary terms, the projected 

savings [from implementing the Pilot Program at Fort Meade] will be approximately $2.6 - 3M 

per year.” (J. Randall Robinson Decl. at ¶ 8, ECF No. 9-1). Later, the United States submitted a 

Corrected Declaration, this time stating “We anticipate that the fair market price for this 

acquisition will be approximately 11 % less than the current contract price. In monetary terms, 

the projected savings will be approximately $2.2 - $2.9M per year.” (Corr. J. Randall Robinson 

Decl. at ¶ 8). Melwood sought production of any other documents that would support a more 

fulsome analysis of the cost-savings by the Army, but the United States assured the Court that 

such analysis does not exist. (Tr. of OA on Mot. to Suppl. at 21:6–16 (stating that the costsavings analysis “was a pretty simple arithmetic calculation.”)). The Army apparently was not 

prompted to conduct any detailed analysis as to the differences in sizes of the facility where the 

contract would be performed, or the relative performance efficiency of the incumbent 

contractors. In response to a question from the Court, the United States provided the following 

summary of the Army’s comparative cost-savings analysis as it was listed in the first “erroneous” 

declaration: 

My understanding, Your Honor, is that the Army miscalculated – did the 

wrong math as it were. That rather than looking at the cost savings and

applying that 11 percent figure, they took the estimated size of Fort Bliss 

versus the estimated size of Fort Meade, the one fort being a smaller contract 

than the other, and we’re essentially comparing apples to oranges and said, 
16

geez, if the contract is a third the size, or a third less in size, the price should 

be a third less in size as well.

(Id. at 22:20–25, 23:1–4). The Army apparently arrived at the 11 percent figure, the figure from 

the “Corrected Declaration,” much the same way, without regard to disparities in efficiency of 

the incumbent contractor’s performance:

In performing the estimate with the 11 percent cost savings, the Army looked 

at what the price under the old contract at Fort Bliss was and the annual price 

under the new contract at Fort Bliss and did simple arithmetic to realize an 

11 percent cost savings. And that, in Mr. Robinson’s declaration, the 11 

percent cost construction was applied to the new estimated value of the new 

contract. Again, simple arithmetic yielded the cost range that was arrived at.

(Id. at 21:6–16). However, the Army’s own independent estimate contradicts whether it would 

actually save costs from recompeting the BOSS Contract at Fort Meade. The Army’s 

Independent Estimate for pricing of the Fort Meade contract showed a base year total cost of 

$26,062,290.04 and a five-year total cost of $136,521,931.90. (AR334, 339). Melwood asserts 

that it had performed the BOSS Contract at approximately $20.8 million in the previous contract 

year (2019–2020). (Pl.’s MJAR at 5–6). By the Army’s own independent estimate, recompetition 

of the BOSS Contract could actually lead to a contract price increase of $5.2 million in the base 

year. This discrepancy highlights, and calls into question, the efficacy of the Army’s primary 

stated goal for the Pilot Program: cost savings.

The United States argues that “no ‘statutory or regulatory provision . . . precludes’” the 

Pilot Program’s inclusion of a price component. (Def.’s Reply at 12; see also Def.’s Mot. at 22–

23). In the alternative, the United States would place its reliance on a favorable standard of 

review, arguing that even if the competition Pilot Program is contrary to the JWOD, it does not 

present either a “clear” or “prejudicial” violation of the law and thus must be upheld. (See Def.’s 

Mot. at 24). Perhaps the United States is correct, but this is no way to run a railroad. The Court 

tends to agree with its peer, the District Court for Eastern District of California, in observing that 

the United States’ arguments “appear to oversimplify and ignore the statutory scheme Congress 

designed to distance price from the decision process to encourage government hiring of blind and 

severely disabled people.” Pride Indus., 420 F. Supp. 3d at 1046 n.4 (citing 41 U.S.C. § 

3304(a)(5) and F.A.R. 6.302-5(b)(2)). 

Twice now courts have dismissed challenges to this Pilot Program as unripe. The APA 

challenge from Pride Industries was unripe when brought prior to final contact award. Pride 

Indus., 420 F. Supp. 3d at 1045. This Court has now found that Melwood’s challenge under 28 

U.S.C. § 1491(b)(1) is unripe because it was brought prior to a formal vote to issue the 

solicitation, and thus there is no final agency action to review. Despite the Court’s concerns, it 

must reserve judgment for a claim that properly presents the issues for the Court’s review. In 

light of its holding that the Court lacks jurisdiction, both Melwood’s and the United States’ 

Motions for Judgment on the Administrative Record are denied as moot. 

III. Conclusion
17 

The Court does not possess subject matter jurisdiction over Melwood’s Complaint. 

Because it does not possess subject matter jurisdiction, it cannot issue a decision on the merits of 

the parties’ motions for judgment on the administrative record. Accordingly, the Court orders the 

following: 

1. The United States’ Motion to Dismiss, (ECF No. 42) is GRANTED. 

2. Melwood’s Motion for Judgment on the Administrative Record, (ECF No. 34), is 

DENIED AS MOOT. 

3. The United States’ Motion for Judgment on the Administrative Record, (ECF No. 

42), is DENIED AS MOOT. 

4. Count I of Melwood’s Complaint shall be DISMISSED without prejudice. 

5. Count II of Melwood’s Complaint shall be DISMISSED without prejudice. 

6. Count III of Melwood’s Complaint shall be TRANSFERRED to the United 

States District Court for the District of Maryland.

7. No costs or fees shall be awarded. 

8. The parties are DIRECTED to submit their proposed redactions no later than 

December 7, 2020. 

IT IS SO ORDERED.

s/ David A. Tapp 

 DAVID A. TAPP, Judge