United States Court of Appeals 

for the Federal Circuit ______________________ 

22ND CENTURY TECHNOLOGIES, INC.,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

FIBERTEK, INC.,

Defendant

______________________ 

2022-1275

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:21-cv-01922-NBF, Senior Judge Nancy B. Firestone. 

______________________ 

Decided: January 10, 2023

______________________ 

WALTER BRAD ENGLISH, Maynard, Cooper & Gale, PC, 

Huntsville, AL, argued for plaintiff-appellant. Also represented by EMILY J. CHANCEY, NICHOLAS PATRICK GREER,

MARY ANN HANKE, JON DAVIDSON LEVIN; JOSHUA B.

DUVALL, Washington, DC. 

 MIKKI COTTET, Appellate Staff, Civil Division, United 

States Department of Justice, Washington, DC, argued for 

defendant-appellee. Also represented by BRIAN M.

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2 22ND CENTURY TECHNOLOGIES, INC. v. US

BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.

MCCARTHY; DANA J. CHASE, JASON COFFEY, Contract Litigation and Intellectual Property Division, United States 

Army Legal Service Agency, Fort Belvoir, VA; 

CHRISTOPHER MCCLINTOCK, Office of Litigation, United 

States Small Business Administration, Washington, DC. 

 ______________________ 

Before LOURIE, DYK, and HUGHES, Circuit Judges. 

DYK, Circuit Judge. 

22nd Century Technologies, Inc. (“22nd Century”) appeals a decision of the Court of Federal Claims (“Claims 

Court”) holding that the Claims Court lacked jurisdiction 

to review 22nd Century’s challenge to a size determination 

made by the U.S. Small Business Association (“SBA”) Office of Hearings and Appeals (“OHA”). Because OHA’s size 

determination was made in connection with the issuance of 

a task order, the Federal Acquisition Streamlining Act of 

1994 (“FASA”), 10 U.S.C. § 3406(f), barred the Claims 

Court from exercising jurisdiction over 22nd Century’s bid 

protest. A claim based on improper contract termination 

would fall under the Contract Disputes Act (“CDA”), 

41 U.S.C. §§ 7101–09, and 22nd Century failed to present 

its claim to the contracting officer as required by the CDA. 

We affirm.

BACKGROUND

This case relates to a task order issued under an Indefinite Delivery, Indefinite Quantity Multiple Award

(“IDIQ”) contract. An agency can issue IDIQ contracts to 

multiple companies, which may then be eligible to compete

for subsequent task orders solicited under the overarching 

IDIQ contract. The IDIQ procurement vehicle allows an 

agency to issue a broad solicitation for a general procurement goal and then more detailed solicitations for individual task orders as specific needs arise.

Case: 22-1275 Document: 42 Page: 2 Filed: 01/10/2023
22ND CENTURY TECHNOLOGIES, INC. v. US 3

On March 25, 2015, the Department of the Army 

(“Army”) solicited proposals for a Responsive Strategic 

Sourcing for Services IDIQ Contract (“RS3 IDIQ Solicitation”). The Army issued the solicitation to secure

“knowledge-based support services for requirements with

Command, Control, Communications, Computers, Intelligence, Surveillance, and Reconnaissance related needs.” 

J.A. 24. The solicitation was unrestricted, that is, not set 

aside for small businesses. Though the solicitation was not 

itself limited to small businesses, it allowed the Army to 

restrict subsequent task order competitions under the contract to small businesses, in which case “[o]nly contractors 

eligible to compete as a small business” could submit bids. 

J.A. 60 (quoting RS3 IDIQ Solicitation § H.2.4); see also 

J.A. 25. 

On May 6, 2015, 22nd Century submitted a proposal in 

response to the RS3 IDIQ Solicitation, and on March 1, 

2019, the Army awarded 22nd Century an RS3 IDIQ contract (“RS3 IDIQ Contract”). In 2015, when 22nd Century 

submitted its proposal, it was a small business.

On December 29, 2020, the Army issued a Task Order 

Request for Proposals (“Task Order RFP”) under the RS3 

IDIQ Contract, which provided that “[o]nly contractors eligible to compete as a small business may submit a proposal

in response to the task order RFP.” J.A. 60–61 (citation 

omitted); see also J.A. 25. The Task Order RFP required a 

contractor submitting a bid to represent whether or not it 

was a small business for purposes of the task order. On 

February 8, 2021, 22nd Century submitted a proposal for 

the Task Order RFP. Though it was no longer a small business at the time of the task order solicitation, 22nd Century 

represented that it had been “a small business for this 

[RS3] IDIQ,” i.e., at the time of its original RS3 IDIQ proposal. J.A. 26.

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4 22ND CENTURY TECHNOLOGIES, INC. v. US

On May 7, 2021, the Army issued the task order to 

22nd Century, rejecting the bids of two other companies, 

Fibertek, Inc. and Ideal Innovations, Inc. Fibertek and 

Ideal Innovations timely filed size protests with the SBA, 

alleging that 22nd Century was ineligible for the award because it was not a small business at the time it submitted 

the Task Order bid as required by the Task Order RFP.

On June 4, 2021, the SBA Area Office issued two nearly 

identical formal size determinations in response to the protests, finding that 22nd Century was “other-than-small” for 

purposes of the Task Order RFP. J.A. 43; J.A. 52. As part 

of the size determinations, the Area Office held that “when 

the contracting officer requested all offerors to certify to or 

‘checking off’ [sic] the appropriate box to indicate whether 

they are a small business . . . or not, even though he did not 

specifically state so, he effectively requested all offerors to 

recertify for the Task Order.” J.A. 42; J.A. 51.

On June 16, 2021, 22nd Century appealed the Area Office’s size determinations to the SBA OHA, and on September 21, 2021, OHA affirmed the size determinations. OHA 

concluded that “the Area Office properly determined the 

Task Order Solicitation as requiring recertification at the 

task order level.” J.A. 73. Following the SBA’s size determinations, the Army terminated the task order awarded to 

22nd Century. 

On September 28, 2021, 22nd Century brought the present bid protest under the Tucker Act, 28 U.S.C. 

§ 1491(b)(1), requesting that the Claims Court set aside

OHA’s size determination and enjoin the Army from terminating the task order based on OHA’s size determination. 

22nd Century claimed that “[b]ecause the [Task Order 

RFP] did not contain an explicit request for recertification, 

SBA must measure 22nd Century’s size on the date it submitted its proposal for the RS3 IDIQ, when it was unquestionably small.” J.A. 28 ¶ 26.

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22ND CENTURY TECHNOLOGIES, INC. v. US 5

The government and Fibertek, the new task order 

awardee, both moved to dismiss the complaint, arguing

that FASA, 10 U.S.C. § 3406(f),1 barred review of 22nd 

Century’s bid protest because the challenged actions by the 

SBA and the Army were “in connection with the issuance 

or proposed issuance of a task or delivery order.” J.A. 2 n.2 

(quoting the provision now located at 10 U.S.C. 

§ 3406(f)(1)). The government and Fibertek also argued 

that 22nd Century had failed to allege a ripe termination 

claim under the CDA and § 1491(a)(2) of the Tucker Act.

The Claims Court granted the motions to dismiss, holding that FASA barred jurisdiction over 22nd Century’s 

claims. This appeal followed. We have jurisdiction under

28 U.S.C. § 1295(a)(3).

DISCUSSION

“We review decisions of the [Claims Court] on the scope 

of its jurisdiction . . . [and] questions of statutory and regulatory construction without deference.” SRA Int’l, Inc. v. 

United States, 766 F.3d 1409, 1412 (Fed. Cir. 2014) (citations omitted).

The Claims Court’s jurisdiction “is circumscribed solely 

by the Tucker Act, 28 U.S.C. § 1491.” Murphy v. United

States, 993 F.2d 871, 874 (Fed. Cir. 1993). Under the 

Claims Court’s Tucker Act bid protest jurisdiction, the 

Claims Court may review “an action by an interested party 

objecting to [(i)] a solicitation by a Federal agency for bids 

or proposals for a proposed contract or to [(ii)] a proposed 

award or the award of a contract or [(iii)] any alleged violation of statute or regulation in connection with a 

1 This provision, formerly located at 10 U.S.C. 

§ 2304c(e), was moved to § 3406(f) effective January 1, 

2022. Pub. L. No. 116-283, div. A, tit. XVIII, 

sec. 1820(e)(1), 134 Stat. 3388, 4194 (2021). 

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6 22ND CENTURY TECHNOLOGIES, INC. v. US

procurement or a proposed procurement.” 28 U.S.C. 

§ 1491(b)(1). The Claims Court can review OHA decisions 

made “in connection with a procurement or a proposed procurement” under the third prong of § 1491(b)(1) as part of 

a bid protest. See Palladian Partners, Inc. v. United States, 

783 F.3d 1243, 1254 (Fed. Cir. 2015).

However, in FASA, 10 U.S.C. § 3406(f), Congress expressly limited the Claims Court’s jurisdiction in the context of protests to task or delivery orders. Subsection 

3406(f)(1) provides that “[a] protest is not authorized in 

connection with the issuance or proposed issuance of a task 

or delivery order,” with two narrow exceptions, namely, 

when the order “increases the scope, period, or maximum 

value of the contract under which the order is issued” or

the order is “valued in excess of $25,000,000.”2 22nd Century does not assert that either exception applies here. We 

have explained that “[t]he statutory language of FASA is 

clear and gives the [Claims Court] no room to exercise 

2 In its entirety, § 3406(f) states:

(1) A protest is not authorized in connection with 

the issuance or proposed issuance of a task or delivery order except for— 

(A) a protest on the ground that the order 

increases the scope, period, or maximum 

value of the contract under which the order 

is issued; or

(B) a protest of an order valued in excess of 

$25,000,000.

(2) Notwithstanding section 3556 of title 31, the 

Comptroller General of the United States shall 

have exclusive jurisdiction of a protest authorized 

under paragraph (1)(B).

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22ND CENTURY TECHNOLOGIES, INC. v. US 7

jurisdiction over claims made ‘in connection with the issuance or proposed issuance of a task or delivery order.’” SRA 

Int’l, 766 F.3d at 1413.

22nd Century’s complaint explicitly asserts jurisdiction under § 1491(b)(1) as a bid protest. The caption of the 

complaint even identifies the complaint as a “bid protest.” 

J.A. 23. The Claims Court held that “22nd Century’s challenge is clearly made in connection with the issuance of a 

task order and is therefore barred by FASA.” J.A. 11. The 

Claims Court concluded this was so because “the allegations made and relief sought in 22nd Century’s complaint 

draw a direct and causal connection between the task order 

and OHA and the Army’s challenged decisions.” J.A. 11 

(citation omitted). The Claims Court rejected 22nd Century’s argument that its claims were not barred by FASA 

because “OHA’s size determination is a ‘discrete and separate’ decision temporally distanced from the Army’s task 

order award to 22nd Century.” J.A. 11–12 (citation omitted). 

On appeal, 22nd Century contends FASA’s task order 

bid protest bar does not reach OHA’s size determination, 

because a size protest is “something totally different” than 

a bid protest. Appellant’s Br. 7.

As 22nd Century notes, in Harmonia Holdings Group, 

LLC v. United States, we did describe differences between 

size protests brought at the SBA and bid protests brought 

at the Claims Court. 999 F.3d 1397, 1402–03 (Fed. Cir. 

2021). We explained:

A “size protest” refers to an administrative challenge to an offeror’s size which is filed with the 

SBA. A “bid protest,” by contrast, generally challenges actions that an agency takes, or fails to take, 

in connection with a procurement or proposed procurement.

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8 22ND CENTURY TECHNOLOGIES, INC. v. US

Id. (citations omitted). But Harmonia never suggested 

that size protests offered a separate basis for Claims Court 

jurisdiction. Indeed, Harmonia cited with approval the 

Claims Court’s decision in White Hawk Group, Inc. v. 

United States, which held that the Claims Court “lacks any 

authority to [separately] entertain a size protest.” 91 Fed. 

Cl. 669, 673 (2010) (citation omitted).

To be sure, as the Claims Court recognized, the court 

also has jurisdiction to consider the propriety of an SBA 

size determination in a bid protest case or other contract 

action over which it has jurisdiction. Where an SBA decision is made “in connection with a proposed procurement,” 

the Claims Court would normally have jurisdiction to review that decision under § 1491(b)(1). Palladium Partners, 

783 F.3d at 1254. Indeed, “a disappointed bidder must generally exhaust its administrative remedies at the SBA before seeking judicial review of a size protest” in the context 

of a bid protest or other contract case. Harmonia Holdings 

Grp., 999 F.3d at 1402; see 13 C.F.R. § 121.1101(a) (“The 

OHA appeal is an administrative remedy that must be exhausted before judicial review of a formal size determination may be sought in a court.”). 

But bid protest jurisdiction here is barred by FASA. 

FASA’s unambiguous language categorically bars jurisdiction over bid protests, even those involving a challenge to 

an SBA size determination where the size determination is 

challenged “in connection with the issuance of a task or delivery order.” 10 U.S.C. § 3406(f)(1). FASA “effectively 

eliminates all judicial review for protests made in connection with a procurement designated as a task order—perhaps even in the event of an agency’s egregious, or even 

criminal, conduct.” SRA Int’l, 766 F.3d at 1413.3 The 

3 Relying on a recent Claims Court decision, Tolliver 

Group, Inc. v. United States, 151 Fed. Cl. 70 (2020), 22nd 

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22ND CENTURY TECHNOLOGIES, INC. v. US 9

Claims Court correctly held that 22nd Century’s challenge 

here “is clearly made in connection with the issuance of a 

task order and is therefore barred by FASA.” J.A. 11. That 

is so because 22nd Century’s challenge is to the alleged failure of the task order to require bidders to recertify as small 

businesses, and 22nd Century’s claim is that the only relevant size requirement for purposes of its task order proposal was in the original RS3 IDIQ Contract.

22nd Century alternatively argues that, despite its 

own complaint’s reliance on bid protest jurisdiction, this 

case is in reality a challenge to the termination of the contract, an event logically distinct and temporally disconnected from the issuance of the task order to 22nd 

Century.4 Even if a breach of contract claim under these 

Century argues that FASA does not necessarily reach bid 

protests brought under the third prong of § 1491(b)(1), relating to “action[s] . . . objecting to . . . any alleged violation 

of statute or regulation in connection with a procurement 

or proposed procurement.” This argument is foreclosed by 

SRA International, which held that FASA reached protests 

brought under § 1491(b)(1)—including those brought under the final prong—as long as the protests are “in connection with the issuance or proposed issuance of a task or 

delivery order.” See SRA Int’l, 766 F.3d at 1413. Indeed, 

the contractor’s challenge in SRA International was 

brought under the third prong of § 1491(b)(1), and throughout the opinion we described the challenge as a “protest” 

for both purposes of § 1491(b)(1) and FASA. See id. at 

1411–14.

4 22nd Century argues that FASA adopts the definition of “protest” in another related statute, the Competition 

in Contracting Act, 31 U.S.C. § 3551(1). If that definition

were applicable, an issue we need not decide, a “protest” 

would include a written objection to “[a] termination or 

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10 22ND CENTURY TECHNOLOGIES, INC. v. US

circumstances would not be subject to the FASA bar—an 

issue we do not decide—such a challenge would have to be 

brought pursuant to the CDA and would have to comply 

with CDA requirements. The Tucker Act, 28 U.S.C. 

§ 1491(a)(2), provides that “[t]he [Claims Court] shall have 

jurisdiction to render judgment upon any claim by or 

against, or dispute with a contractor arising under [the 

CDA], including a dispute concerning termination of a contract, . . . on which a decision of the contracting officer has 

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

22nd Century has no claim for relief under the CDA. 

First, while nonmonetary claims may be asserted under 

the CDA, see § 1491(a)(2); Todd Const., L.P. v. United 

States, 656 F.3d 1306, 1310–11 (Fed. Cir. 2011), we are 

aware of no case authorizing an injunction under the CDA 

to prevent termination, as 22nd Century has requested 

here. 

Even if such an injunction were possible, there is a second more obvious problem. To bring a case under the CDA, 

22nd Century would have had to have first filed a claim 

with, and received a final decision from, the contracting officer, neither of which 22nd Century alleges occurred here. 

See 41 U.S.C. § 7103(g); Reflectone, Inc. v. Dalton, 60 F.3d 

1572, 1575 (Fed. Cir. 1995) (“Under the CDA, a final decision by a [contracting officer] on a ‘claim’ is a prerequisite 

cancellation of an award of . . . a contract, if the written 

objection contains an allegation that the termination or 

cancellation is based in whole or in part on improprieties 

concerning the award of the contract.” 31 U.S.C. 

§ 3551(1)(D). 22nd Century’s challenge here may well satisfy this definition as an objection to the termination of the 

task order based on an impropriety in the task order 

award, making it even clearer that it is a “protest” subject 

to FASA. 

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22ND CENTURY TECHNOLOGIES, INC. v. US 11

for . . . jurisdiction.”). 22nd Century’s alternative termination argument is barred for failure to comply with CDA requirements.

CONCLUSION

The Claims Court correctly concluded it lacked jurisdiction. We affirm.

AFFIRMED

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