United States Court of Appeals 

for the Federal Circuit 

__________________________ 

TODD CONSTRUCTION, L.P., 

(FORMERLY KNOWN AS TODD CONSTRUCTION CO., 

INC.), 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5166 

__________________________ 

Appeal from the United States Court of Federal 

Claims in case no. 07-CV-324, Judge George W. Miller. 

__________________________ 

Decided: August 29, 2011 

___________________________ 

MARVIN LAWS, Hayes Magrini & Gatewood, of Oklahoma City, Oklahoma argued for plaintiff-appellant. 

With him on the brief was ROBERT L. MAGRINI. 

MATTHEW H. SOLOMSON, Trail Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendantappellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, 

and FRANKLIN E. WHITE, JR., Assistant Director. 
TODD CONSTRUCTION v. US 2

__________________________ 

Before LINN, DYK, and PROST, Circuit Judges. 

DYK, Circuit Judge. 

Todd Construction, L.P. (“Todd”) is a government contractor. Todd filed suit in the Court of Federal Claims 

(“Claims Court”) under the Tucker Act, 28 U.S.C. § 1491, 

and the Contract Disputes Act (“CDA”), 41 U.S.C. § 601 et 

seq., alleging that the United States Army Corps of Engineers (the “government”) gave it an unfair and inaccurate 

performance evaluation. The Claims Court held that the 

CDA provided it with subject matter jurisdiction over 

such a claim, but dismissed Todd’s complaint for lack of 

standing and failure to state a claim. Todd Constr. L.P. v. 

United States, 85 Fed. Cl. 34 (2008) (“Todd I”); Todd 

Constr. L.P. v. United States, 88 Fed. Cl. 235 (2009) 

(“Todd II”); Todd Constr. L.P. v. United States, 94 Fed. Cl. 

100 (2010) (“Todd III”). We affirm both the Claims 

Court’s determination that it had jurisdiction under the 

CDA and its dismissal of Todd’s complaint on the grounds 

of lack of standing and failure to state a claim. 

BACKGROUND

In 2003, Todd entered into two task order contracts 

with the government on two construction projects for roof 

repairs of government buildings. The parties refer to 

these projects as “Building 2121” and “Building 3611.” 

The government agreed to amended completion dates, 

making the completion dates June 25, 2004, for the Building 2121 project and July 30, 2004, for the Building 3611 

project. Due to a series of delays (some of which Todd 

alleges were caused by its subcontractors, the government, or other circumstances outside of its control), the 

projects were not completed and accepted by the govern-
3 TODD CONSTRUCTION v. US

ment until September 30, 2005, and October 14, 2005, 

respectively. 

At the time, the Federal Acquisition Regulations 

(“FAR”) required that for “each construction contract” for 

“$550,000 or more,” a “[performance] report shall be 

prepared . . . in accordance with agency procedures” and 

that “[e]ach performance report shall be reviewed to 

ensure that it is accurate and fair.”1 48 C.F.R. § 36.201 

(2006). The government issued ER 415-1-17 to implement 

FAR § 36.201 and establish procedures for contractor 

performance evaluations. See U.S. Army Corps of Engineers Regulation 415-1-17 (“ER 415-1-17”). That regulation, inter alia, required: (1) “[N]oti[ce] [to] the 

contractor . . . of the performance elements against which 

his performance will be evaluated;” (2) a conference with 

the contractor prior to the issuance of interim unsatisfactory performance ratings; (3) “re-evaluation of [any] 

interim unsatisfactory rating every three months;” (4) and 

issuance of a final evaluation within sixty days of “substantial completion of the work.” Id. 415-1-17(5)(a)–(c). It 

also permitted contractors to “submit written comments, 

which should be addressed and included in the report,” 

and allowed contractors to appeal a final unsatisfactory 

performance evaluation “to one level above the Contracting Officer.” Id. 415-1-17(5)(c)(2), (3)(f). The regulation 

explained that the evaluations would typically be prepared by the “resident engineer” and reviewed and approved by the contracting officer. Id. 415-1-17(5)(c)(1). 

 1 In 2009, the regulation was amended and no 

longer contains the same language. The FAR regulatory 

requirements for performance evaluations for government 

contracts in general (rather than merely construction 

contracts) can currently be found at 48 C.F.R. § 42.1502. 

We consider the regulation as it existed during the pertinent events of this case. 
TODD CONSTRUCTION v. US 4

This was apparently the case with Todd’s evaluations. 

The final evaluations are filed in a central database 

where the information is stored for at least six years. 48 

C.F.R. § 36.201(c); ER 415-1-17(5)(c)(1). The information 

is then used by contracting officers in determining future 

contract awards. See 48 C.F.R. §§ 42.1501–1503. 

Todd received negative interim performance evaluations from the resident engineer for both projects on 

February 5, 2004. On March 26, 2006, the resident 

engineer issued his proposed negative final performance 

evaluations for both projects pursuant to 48 C.F.R. 

§ 36.201 and ER 415-1-17. On April 20, 2006, Todd 

submitted comments protesting the proposed evaluations. 

These comments primarily took issue with the purported 

lack of timeliness of its performance, asserting that its 

subcontractors and “other problems” that were “beyond 

Todd’s control” caused the delays. J.A. 41–43. Todd also 

asserted that it “took extraordinary steps to supervise, 

manage, coordinate and control its subcontractors,” that it 

was “responsive to the Government’s concerns,” and that 

its “quality control system” was adequate. Id. The 

evaluations were not changed as a result of Todd’s comments. 

In the final performance evaluations, the resident engineer assigned Todd an overall performance rating of 

unsatisfactory. The resident engineer also assigned 

unsatisfactory ratings for each project in fifteen individual performance categories. Many of these categories 

(e.g., “adherence to approved schedule,” “correction of 

deficient work in a timely manner,” and “resolution of 

delays”) related to the timeliness of Todd’s performance. 

J.A. 35. Todd was also given unsatisfactory ratings in 

categories such as “coordination and control of subcontractor[s],” “quality of workmanship,” “management of 

resources/personnel,” and “cooperation and responsiv-
5 TODD CONSTRUCTION v. US

ness.” Id. The resident engineer also included specific 

comments expanding on the negative ratings. For example, the resident engineer stated that “[the] [f]irst submittal was not received until 22 Dec 03,” that the 

“[c]ontractor did not start work until the week of 29 

March 04,” and that the “[c]ontractor’s quality control 

system allowed subcontractors to field paint damaged roof 

panels without government approval.” Id. 

Following internal reviews within the Department of 

the Army, the final evaluations were issued on July 23, 

2006. Todd sought review by the contracting officer. On 

April 25, 2007, the contracting officer issued a “final 

decision regarding [Todd’s] performance,” concluding that 

“the [u]nsatisfactory performance appraisal [was] justified 

and all required procedures were followed.” J.A. 59. 

On May 25, 2007, Todd filed a complaint in the 

Claims Court, alleging that the government failed to 

follow the proper procedures and that the unsatisfactory 

performance evaluations were arbitrary and capricious 

and seeking, inter alia, a declaratory judgment. In this 

complaint, Todd did not challenge any particular performance ratings. Instead, it merely pled that the government issued overall unsatisfactory performance 

evaluations and that these ratings were arbitrary and 

capricious. In an initial opinion, the Claims Court held 

that it had subject matter jurisdiction over the suit under 

the CDA because the claim that the performance evaluations were inaccurate and improper “relat[ed] to the 

contract,” as required by the CDA. Todd I, 85 Fed. Cl. at 

44–45. However, it also determined that the complaint 

failed to state a claim for relief under Court of Federal 

Claims Rule 12(b)(6). Todd II, 88 Fed. Cl. at 249–50. 

On August 14, 2009, Todd filed its amended complaint 

as permitted by the Claims Court. Although Todd added 
TODD CONSTRUCTION v. US 6

a series of factual allegations, it again did not specifically 

identify which unsatisfactory ratings were arbitrary and 

capricious. The complaint appeared to challenge primarily the unsatisfactory ratings related to Todd’s timeliness 

of performance.2 For each project, Todd asserted that 

particular delays were caused by its subcontractors, the 

government, or other “unforeseeable event[s] [ ] not 

caused by Todd.” J.A. 108. For example, it alleged that it 

had to terminate a subcontractor for default because of 

unsatisfactory performance; that the government delayed 

decisions about how to approach differing site conditions 

discovered at one project site; and that forty days of 

inclement weather made work impracticable during one 

period. In sum, Todd alleged that there were “significant 

problems with the . . . unsatisfactory ratings on account of 

the delays which were caused by unforeseen events, many 

of which were neither the fault nor the responsibility of 

Todd.” J.A. 113. Todd also alleged that the government 

failed to comply with the procedural requirements of ER 

415-1-17. 

In its third and final opinion, the Claims Court reaffirmed that it had subject matter jurisdiction over Todd’s 

complaint. See Todd III, 94 Fed. Cl. 107–112. However, 

the Claims Court also held that Todd lacked standing to 

sue for the alleged procedural violations because “there 

[was] no discernible injury to the plaintiff from the error.” 

Id. at 113. With respect to Todd’s claim that the performance evaluation was unfair and inaccurate, the Claims 

 2 The only apparent exception was a conclusory 

statement that Todd’s problems with its subcontractors 

were not “a reflection on [its] management or supervisory 

capabilities.” J.A. 108, 110. This statement appeared to 

take issue with its negative evaluation for “coordination 

and control of subcontractor[s]” and “effectiveness of job 

site supervision.” Id. at 114. 
7 TODD CONSTRUCTION v. US

Court held that Todd did have standing. Id. at 107–112. 

However, the court held that Todd failed to state a claim 

under Rule 12(b)(6) because Todd was responsible for the 

acts of its subcontractors as a matter of law and “there 

[was] nothing in the amended complaint beyond Todd’s 

bare assertion of non-responsibility to support any conclusion that assigning ‘unsatisfactory ratings’ was an abuse 

of discretion.” Id. at 115. 

Todd timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

DISCUSSION

We review de novo the Claims Court’s determination 

that it had subject matter jurisdiction, its dismissal of a 

complaint on the grounds of standing, and its dismissal 

for failure to state a claim under Rule 12(b)(6). M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 

1327 (Fed. Cir. 2010); Bank of Guam v. United States, 578 

F.3d 1318, 1325 (Fed. Cir. 2009). 

I 

We first consider the government’s contention that 

the Claims Court lacked subject matter jurisdiction under 

the CDA. The Tucker Act provides the Claims Court with 

jurisdiction over “any claim by or against, or dispute with, 

a contractor arising under [the CDA], including . . . nonmonetary disputes on which a decision of the contracting 

officer has been issued under section 6 of [the CDA].” 28 

U.S.C. § 1491(a)(2). The CDA, however, does not define 

such a “claim.” We held in H.L. Smith, Inc. v. Dalton, 49 

F.3d 1563, 1564–65 (Fed. Cir. 1995), that the definition of 

the term “claim” in the FAR governs. The FAR defines 

“claim” as “a written demand or written assertion by one 

of the contracting parties seeking, as a matter of right, 

the payment of money in a sum certain, the adjustment or 
TODD CONSTRUCTION v. US 8

interpretation of contract terms, or other relief arising 

under or relating to the contract.” 48 C.F.R. § 2.101 

(emphasis added). The government does not dispute on 

appeal that there was a final decision of the contracting 

officer or a “written demand” seeking relief “as a matter of 

right.” The sole dispute here is whether Todd’s requested 

relief––in essence a declaratory judgment that the 

government’s performance evaluations were unfair and 

inaccurate––“relat[es] to the contract.”3 If so, it is a 

“claim” under the CDA, and the Claims Court has 

jurisdiction under the Tucker Act. 

Congress’ overall purpose to confer comprehensive 

jurisdiction under the CDA confirms that we should read 

the definition of “claim” broadly. We have previously 

recognized that “[i]n defining the jurisdiction of the 

[Claims Court] over CDA disputes, Congress has chosen 

expansive, not restrictive, language.” Alliant 

Techsystems, Inc. v. United States, 178 F.3d 1260, 1268 

(Fed. Cir. 1999). The Tucker Act provides jurisdiction to 

“render judgment upon any claim by or against . . . a 

contractor arising under section 10(a)(1) of the [CDA], 

including . . . nonmonetary disputes on which a decision of 

the contracting officer has been issued under section 6 of 

the [CDA].” 28 U.S.C. § 1491(a)(2) (emphases added). In 

Alliant, the government argued that “nonmonetary 

disputes” should be read narrowly to exclude “disputes 

arising prior to the completion of work on a contract” and 

 3 The Claims Court held that injunctive relief was 

not available. Todd II, 88 Fed. Cl. at 243. Todd did not 

object to this conclusion on appeal. Hence, we need not 

decide whether an injunction was available pursuant to 

the Claims Court’s “power to remand appropriate matters 

to any administrative or executive body or official with 

such direction as it may deem proper and just.” 28 U.S.C. 

1491(a)(2). 
9 TODD CONSTRUCTION v. US

“disputes that have not yet ripened into a monetary 

dispute but . . . could” if the contractor “could convert the 

claim into one for monetary relief” by its own actions. 178 

F.3d at 1268 (internal quotation marks omitted). We 

rejected this narrow reading, emphasizing that the 

provision “begins by broadly granting the court 

jurisdiction over ‘any claims,’” uses the “nonrestrictive 

term (‘including’),” and ends the provision with “equally 

nonrestrictive language” concerning “nonmonetary 

disputes.” Id. We also explicitly recognized that “[t]he 

FAR has . . . ensured that review of contract claims will 

be relatively easy to obtain, by defining the term ‘claim’ 

broadly, to include a demand or assertion seeking . . . 

relief arising under or relating to the contract.” Id. at 

1271. Therefore, the broad language of the statute and 

FAR provision supports a broad reading of the term 

“claim.” 

The legislative history of the CDA and Tucker Act 

also supports a broad reading of the term “claim.” Both 

the House and Senate Reports explained that the CDA 

was intended to “implement[ ] recommendations of the 

Commission on Government Procurement.” S. Rep. No. 

95-1118, at 1 (1978), reprinted in 1978 U.S.C.C.A.N. 5235; 

see also H.R. Rep. No. 95-1556, at 1 (1978). The 

Commission on Government Procurement had 

recommended that Congress “[e]mpower . . . 

administrative forums to decide all claims or disputes 

arising under or growing out of or in connection with the 

administration of [government contracts].” 4 Report of 

the Commission on Government Procurement 22 (1972). 

In 1992, when Congress amended the Tucker Act to 

provide jurisdiction over “nonmonetary disputes on which 

a decision of the contracting officer has been issued under 
TODD CONSTRUCTION v. US 10

section 6 of [the CDA],”4 the bill’s sponsor reiterated the 

broad scope of disputes covered by the CDA. He noted 

that the bill would “amend the Tucker Act to clarify the 

power of the Court of Federal Claims to hear appeals of 

all contracting officers’ final decisions, regardless of 

whether the dispute involves a claim for money currently 

due.” 138 Cong. Rec. S17799 (daily ed. Oct. 8, 1992) 

(emphasis added). 

Not only is the term “claim” broad in scope, the 

“relating to” language of the FAR regulation itself is a 

term of substantial breadth. The term “related” is 

typically defined as “associated; connected.” See Random 

House Webster’s Unabridged Dictionary 1626 (2d ed. 

1998); see also Black's Law Dictionary 1288 (6th ed. 1991) 

(defining “related” as “[s]tanding in relation; connected; 

allied; akin”); Oxford English Dictionary 1695 (3d ed. 

1947) (defining “relation” as “any connection, 

correspondence, or association, which can be conceived as 

naturally existing between things”). 

The Supreme Court has interpreted the term “related 

to” broadly. See, e.g., Celotex Corp. v. Edwards, 514 U.S. 

300, 307–08 (1995) (holding that Congress’ jurisdictional 

grant to bankruptcy courts to hear proceedings “related 

to” a bankruptcy case “suggests a grant of some breadth” 

and includes, inter alia, suits between third parties which 

have an effect on the bankruptcy estate); Morales v. Trans 

World Airlines, Inc., 504 U.S. 374, 383–84 (1992) (holding 

that preemption provision of Airline Deregulation Act––

preempting laws “relating to rates, routes, or services” of 

any air carrier––should be broadly construed); Shaw v. 

Delta Air Lines, Inc., 463 U.S. 85, 96–97 (1983) (holding 

that state law “relates to” an employee benefit plan and is 

 4 See Federal Courts Administration Act, Pub. L. 

No. 102-572 § 907 (Oct. 29, 1992). 
11 TODD CONSTRUCTION v. US

therefore preempted by ERISA “if it has a connection 

with, or reference to, such a plan”). Similarly, in Tyco 

HealthCare Group LP v. Ethicon Endo-Surgery, 587 F.3d 

1375, 1378 (Fed. Cir. 2009), we recognized that “[i]n 

general, ‘related to’ means one thing has some . . . 

connection to another thing,” and “[i]n legal parlance,” the 

term has “similar breadth.” We therefore interpreted the 

contractual phrase “related to pending litigation” broadly. 

Id. at 1379. 

In line with this authority, we have previously held 

that to be a claim “relating to the contract” under the 

CDA, the claim “must have some relationship to the terms 

or performance of a government contract.” Applied Cos. v. 

United States, 144 F.3d 1470, 1478 (Fed. Cir. 1998).5 The 

performance evaluations at issue have a direct connection 

and association with Todd’s government contracts and, 

under this “ordinarily broad understanding of the 

phrase,” Tyco, 587 F.3d at 1379, appear to be “relat[ed] to 

the contract.” While the unsatisfactory performance 

evaluations may not relate to the terms of the contract 

itself, they relate to Todd’s performance under the 

contract. As the Claims Court recognized:

 5 In Applied, the government made two overpayments to the contractor because of a computer error. 144 

F.3d at 1473. The government decided to discharge the 

contractor’s debt on these overpayments “by setting it off 

against the amount the government had agreed to pay 

[the contractor] pursuant to” a settlement agreement on 

another contract. Id. at 1472. Applied argued that the 

government’s attempt to recoup the overpayments in this 

fashion was a “claim” under the CDA and that CDA 

procedures should apply. Id. at 1477. However, we 

rejected this argument because the overpayments had no 

relationship to the parties’ performance under the contract, as the overpayments were not due under a contract 

and were not for work performed under a contract. Id. at 

1478. 
TODD CONSTRUCTION v. US 12

The subject of the evaluations is the quality of the 

contractor’s performance under the terms of the 

contract . . . . As a matter of logic, a performance 

evaluation relates to the contractor’s performance 

under the contract, in the same way that any 

evaluation relates to the thing evaluated. 

BLR Grp. of Am., Inc. v. United States, 94 Fed. Cl. 354, 

373 (2010) (quoting Todd I, 85 Fed. Cl. at 44–45). 

The government does not contend that the contracting 

officer’s decision regarding the negative performance 

evaluations bore no relationship to Todd’s performance 

under the contract. Rather, relying on Paragon Energy 

Corp. v. United States, 645 F.2d 966 (Ct. Cl. 1981), the 

government argues that Todd’s claim cannot “relat[e] to 

the contract” unless it is based on a “valid contractual 

theory,” (e.g., breach of contract or mistake). Paragon

imposes no such limitation. While as a general matter 

Paragon found that the CDA statute “should not be 

interpreted quite so broadly as its language at first blush 

would suggest,” it recognized that the “language is 

obviously quite broad.” Id. at 971. It found that a 

narrower interpretation was required only in one respect–

–the term “claim” should not be interpreted to include a 

challenge that the legislative history showed Congress 

intended to exclude. Id. at 973–75. 

Specifically, the Court of Claims held that a challenge 

to the government’s denial of a request for contract 

modification under Public Law 85-804 was not a “claim” 

under the CDA. Id. at 972. Public Law 85-804 gave 

government agencies the discretionary authority to 

modify contracts if the modifications would facilitate the 

national defense. Id. at 968. Congress was concerned 

that a bill which granted CDA jurisdiction over Public 

Law 85-804 challenges would allow “agencies to settle 
13 TODD CONSTRUCTION v. US

claims independent of their legal or contractual merits,” 

i.e. “horse trade settlements”, which could only be done 

“through resort to Public Law 85-804 with its [attendant] 

safeguards including congressional review.” Paragon, 645 

F.2d at 973 (quoting S. Rep. No. 95–1118, at 5). 

Therefore, Congress passed a final version of the bill that 

“address[ed] the concerns expressed by [several Senate 

committees] that the Act not permit the Contracting 

Officer or the Agency Boards to grant the discretionary 

relief . . . authorized by Public Law 85-804.” Id. at 974 

(quoting 124 Cong. Rec. 18639–41 (daily ed. Oct. 12, 

1978)). 

In Paragon, while holding that the Public Law 85-804 

claim was not within the scope of the CDA, the court also 

held that the CDA did confer jurisdiction over the contractor’s claim for a contract reformation. Id. at 972, 975. 

The court concluded that “Congress could not have expressed itself more clearly to the effect that all contractor 

claims based upon a valid contractual theory fall within 

[its] jurisdiction under the [CDA].” Id. at 975. Contrary 

to the government’s contention, Paragon merely confirms 

that all claims which are based on a valid contractual 

theory provide the Claims Court with CDA jurisdiction. 

Paragon does not require a claim to be based on “valid 

contractual theory” in order to “relat[e] to a contract.” As 

we made clear in Applied Companies, CDA jurisdiction 

exists when the claim has “some relationship to the terms 

or performance of a government contract.” 144 F.3d at 

1478 (emphasis added).6 A contractor’s claim need not be 

 6 The government suggests that this approach improperly reads the performance evaluation regulation into 

the contract under G.L. Christian & Associates v. United 

States, 312 F.2d 418 (Ct. Cl. 1963), and its progeny. In 

holding that the Claims Court has jurisdiction under the 

CDA, we do not suggest that the performance evaluation 
TODD CONSTRUCTION v. US 14

based on the contract itself (or a regulation that can be 

read into the contract) as long as it relates to its 

performance under the contract.7

Lastly, the government asserts that even if 

performance evaluations “relat[e] to the contract” under 

the CDA, the performance evaluation regulations cannot 

provide Todd with a cause of action because they “[exist] 

primarily for the benefit of the [g]overnment.” Appellee’s 

Br. 42. The government relies on our decisions in 

Freightliner Corp. v. Caldera, 225 F.3d 1361, 1365 (Fed. 

Cir. 2000), Cessna Aircraft Co. v. Dalton, 126 F.3d 1442, 

1451 (Fed. Cir. 1997), and Rough Diamond Co. v. United 

States, 351 F.2d 636, 640–42 (Ct. Cl. 1965), in which we 

held that particular plaintiffs could not sue under a 

statute or regulation if the law was not intended to 

benefit that class of plaintiffs. See also United States v. 

N.Y. & Porto Rico S.S. Co., 239 U.S. 88 (1915). Those 

 

regulation should be read into the contracts. Rather, the 

regulation applies of its own force and directly governs 

the parties’ performance under the contracts. Our decisions in Precision Pine & Timber, Inc. v. United States, 

596 F.3d 817 (Fed. Cir. 2010), and Agredano v. United 

States, 595 F.3d 1278 (Fed. Cir. 2010), are inapplicable 

here. In those cases, the regulations were not designed to 

benefit the contractor and there was no claim that the 

regulations themselves created rights enforceable by the 

contractors apart from the contracts. 

7 The government analogizes a performance evaluation challenge to a debarment challenge, which we have 

held in a non-precedential opinion does not provide the 

Claims Court with CDA jurisdiction. See Schickler v. 

Davis, 10 Fed. Appx. 944 (Fed. Cir. 2001). The CDA only 

applies if there is “a decision of the contracting officer.” 

28 U.S.C. § 1491(a)(2). Unlike a performance evaluation, 

the determination to debar a contractor, is made by an 

agency’s so-called “debarring official,” rather than the 

contracting officer. See 48 C.F.R. § 9.406. 
15 TODD CONSTRUCTION v. US

cases established that a law or regulation must “protect or 

benefit a class of persons in order for that class to be able 

to bring suit against the government” and that the class 

must be more than an “incidental beneficiary” of the 

regulation. Cessna Aircraft, 126 F.3d at 1451–52. 

However, it is possible for a regulation or law to benefit 

both the government and a class of private parties. See

Rough Diamond, 351 F.3d at 640. That is the case with 

performance evaluations. 

48 C.F.R. § 42.1502 is the current regulation 

providing for mandatory performance evaluations under 

certain government contracts, including construction 

contracts. Subpart 42.15 of the FAR was added in 1995 to 

“implement[ ] Office of Federal Procurement Policy Letter 

92–5.” 48 C.F.R. § 42.1500 (1996). In that letter, the 

Office of Federal Procurement Policy explained that 

“policies and procedures for collecting, recording, and 

using past performance information [which many 

agencies have already established] . . . are extremely 

important to both the Government and to contractors, and 

requirements are necessary to help ensure their integrity 

and fairness.” Past Performance Information, 58 Fed. 

Reg. 3,573-02, 3,575 (Jan. 11, 1993) (emphasis added). As 

this history demonstrates, even the government viewed 

fair and accurate performance evaluations as providing 

substantial benefits to contractors. This is not a situation 

in which the contractors are merely “incidental 

benefi[ciaries]” of the regulations. Cessna Aircraft, 126 

F.3d at 1452. Performance evaluation regulations were 

intended to directly and significantly benefit contractors. 

II 

The government argues that we should nonetheless 

dismiss Todd’s complaint for lack of standing (with 
TODD CONSTRUCTION v. US 16

respect to its procedural allegations) and failure to state a 

claim (with respect to its substantive allegations). 

As explained above, Todd alleged that the government 

failed to follow four procedural requirements listed in ER 

415-1-7. These were notifying Todd of the performance 

elements that would be used to evaluate it; holding a 

conference with Todd before issuing an interim unsatisfactory performance rating; re-evaluating the interim 

unsatisfactory rating every three months; and issuing of a 

final evaluation within sixty days after project completion. In general, standing requires that the plaintiff show 

an injury in fact, “a casual connection between the injury 

and the conduct complained of,” and that his injury would 

likely be redressable by court action. Lujan v. Defenders 

of Wildlife, 504 U.S. 555, 560 (1992). However, the Supreme Court has also explained that a “person who has 

been accorded a procedural right to protect his concrete 

interests can assert that right without meeting all the 

normal standards for redressability and immediacy.” Id.

at 573 n.7. Some courts of appeals have accordingly 

relaxed the causation requirement when determining 

standing for procedural injuries, finding it satisfied when 

following the correct procedures plausibly may have 

changed the result. See, e.g., Ctr. for Food Safety v. 

Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011); Friends of 

Tims Ford v. TVA, 585 F.3d 955, 968 (6th Cir. 2009); Pub. 

Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 44–49 

(1989). 

These relaxed standards have been applied, however, 

in cases involving fundamental procedural rights, such as 

the right to a hearing, see Lujan, 504 U.S. at 572, 573 n.7, 

the right to an environmental impact statement, Ctr. for 

Food Safety, 636 F.3d at 1172, and the right to have a 

decisionmaker free from ex parte contacts in formal 

administrative hearings, Elec. Power Supply Ass’n v. 
17 TODD CONSTRUCTION v. US

FERC, 391 F.3d 1255, 1262 (D.C. Cir. 2004).8 No case 

has been called to our attention that has applied these 

relaxed standards to minor procedural violations of the 

type involved in this case. For example, in Labatt Food 

Service, Inc. v. United States, 577 F.3d 1375, 1377–78 

(Fed. Cir. 2009), a bid protestor challenged an agency’s 

contract award to another bidder on the ground that the 

agency failed to follow the proper procurement procedures 

by accepting proposal revisions from other bidders via email when revisions were required to be sent by mail or 

facsimile. We held that in these circumstances the plaintiff had no standing because it could not “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”). Id. at 1378, 1380. The alleged procedural 

violations here do not fall into the category of fundamental procedural rights. Hence, we conclude that Todd is 

required to show prejudice. 

In fact, Todd has alleged nothing to indicate that the 

outcome of the performance evaluations would have been 

any different if the purported procedural errors had not 

occurred. Todd did not allege that government compliance with its procedural standards would have changed 

its actions. Although Todd alleged it was not provided “an 

opportunity to cure any perceived deficiencies in its 

performance,” J.A. 109, Todd did not allege that if the 

required procedures had been followed, it would have 

taken curative action or that the performance evaluation 

 8 See also Richard J. Pierce, Jr., Making Sense of 

Procedural Injury, 62 Admin. L. Rev. 1, Winter 2010 

(“Each of the contexts in which courts have applied [the 

relaxed standard] . . . involved deprivation of a fundamental procedural right. Each of the procedural rights at 

issue was either . . . constitutionally required or the 

subject of a statute in which Congress required the agency 

to provide the procedure.”) 
TODD CONSTRUCTION v. US 18

would have been different. Therefore, Todd lacks standing to sue with respect to the procedural violations. 

Todd clearly does have standing to sue based on its 

substantive allegation that the government acted arbitrarily and capriciously in assigning an inaccurate and 

unfair performance evaluation. However, the government 

contends that Todd failed to state a claim entitling it to 

relief. We must dismiss a complaint for failure to state a 

claim where the complaint does not “state a claim to relief 

that is plausible on its face,” i.e., where the plaintiff fails 

to “plead[ ] factual content that allows [a] court to draw 

the reasonable inference that the defendant is liable for 

the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 

1937, 1949 (2009). Here, Todd must plead facts which 

give rise to a plausible inference that the government 

abused its discretion in awarding the negative performance ratings. 

The government argues that Todd failed to meet this 

burden because it failed to “allege that the performance 

evaluations at issue . . . were based solely––or even substantially––upon the specific performance difficulties” 

that Todd claimed were not its fault. Appellee’s Br. 56–

57. Comparing the factual allegations in the complaint 

with the performance evaluations, we conclude that the 

government is correct. All of the facts alleged by Todd 

could be true and yet it does not follow that any of the 

unsatisfactory ratings were an abuse of discretion or 

should be changed. 

Todd’s complaint raised issues related to the timeliness of its performance (e.g., “adequacy of initial progress 

schedule,” “adherence to approved schedule,” “submission 

of required documentation,” and “resolution of delays”). 

J.A. 114. In this respect, Todd merely alleged that the 

“delays . . . were caused by unforeseen events, many of 
19 TODD CONSTRUCTION v. US

which were neither the fault nor the responsibility of 

Todd.” Id. at 113 (emphasis added). Although Todd 

alleged that numerous specific delays were not Todd’s 

responsibility, those allegations cannot change the fact 

that Todd admits in its appeal brief that some delays 

were not the government’s fault but were instead caused 

by Todd’s subcontractors. We have previously explained 

that “a contractor is responsible for the unexcused performance failures of its subcontractors.” See, e.g., Johnson Mgm’t Grp. CFC Inc. v. Martinez, 308 F.3d 1245, 1252 

(Fed. Cir. 2002). Todd has failed to allege facts that 

would excuse its subcontractors’ delays. Todd’s bare 

assertion that it is not responsible for the actions of its 

subcontractors is a legal conclusion, and we are not required to assume that legal conclusions are true. See

Iqbal, 129 S.Ct. at 1949–50. Todd also specifically admitted in the complaint that it delivered only “the majority 

[i.e., not all] of the [required] submittals” to the government on time. J.A. 107, 110. The performance evaluations do not specify how much delay the government 

attributed to Todd; they simply indicate that Todd’s 

performance was untimely. To raise a plausible inference 

that the ratings were arbitrary and capricious, the contractor would, at the very least, need to allege facts indicating that all of the substantial delays were excusable.9 

Todd has not done so, and we therefore agree with the 

Claims Court that its complaint was properly dismissed 

under Rule 12(b)(6). 

 9 Apart from Todd’s allegations on delay, Todd also 

specifically asserts that its problems with subcontractors 

did not reflect poorly on its management or supervisory 

capabilities. Again, Todd’s conclusory statement that the 

performance of its subcontractors could not reflect negatively on its own performance does not support a claim 

that its performance ratings for effectiveness of management and control of subcontractors should be changed. 
TODD CONSTRUCTION v. US 20

AFFIRMED 

COSTS

 No costs.