             In the United States Court of Federal Claims
                                           BID PROTEST
                                            No. 18-1751C
                                    Filed Under Seal: July 1, 2019
                                       Reissued: July 10, 2019*

                                                  )
    VETERAN TECHNOLOGY                            )
    INTEGRATORS, LLC,                             )
                                                  )
          Plaintiff,                              )        Post-Award Bid Protest; Judgment Upon
                                                  )        the Administrative Record; RCFC 52.1;
    v.                                            )        Injunctive Relief; Standing; Waiver;
                                                  )        Subject-Matter Jurisdiction; RCFC
    THE UNITED STATES,                            )        12(b)(1).
                                                  )
          Defendant.                              )
                                                  )

       Theodore P. Watson, Counsel of Record, Watson & Associates, LLC, Aurora, CO;
Wojciech Z. Kornacki, Watson & Associates, LLC, Of Counsel, for plaintiff.

      Robert C. Bigler, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC; Edward Weber,
Of Counsel, United States Department of Commerce, for defendant.

                           MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge

I.       INTRODUCTION

         Plaintiff, Veteran Technology Integrators, LLC (“VTI”), brings this post-award bid
protest action challenging the United States Department of Commerce’s (the “Commerce
Department”) decision to reject its proposal in response to a solicitation for cyber security unity
support services as non-conforming to the solicitation’s requirements and to award a blanket


*
  This Memorandum Opinion and Order was originally filed under seal on July 1, 2019 (docket entry no.
23). The parties were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted from the Memorandum Opinion and Order. The parties filed a
joint status report on July 9, 2019 (docket entry no. 25) indicating that no redactions are necessary. And
so, the Court is reissuing its Memorandum Opinion and Order, dated July 1, 2019 as the public opinion.
purchase agreement for these services to Goldbelt Hawk, LLC. The government has moved to
dismiss this matter for lack of subject-matter jurisdiction, pursuant to RCFC 12(b)(1). See
generally Def. Mot. The parties have also filed cross-motions for judgment upon the
administrative record, pursuant to RCFC 52.1. See generally Pl. Mot.; Def. Mot.

        For the reasons discussed below, the Court: (1) GRANTS the government’s motion to
dismiss; (2) DENIES-AS-MOOT the parties’ cross-motions for judgment upon the
administrative record; and (3) DISMISSES the complaint.

II.     FACTUAL AND PROCEDURAL BACKGROUND1

        A.      Factual Background

        In this post-award bid protest matter, VTI challenges the Commerce Department’s
decision to reject its proposal as non-conforming and to award a blanket purchase agreement to
provide cyber security unity support services to Goldbelt Hawk, LLC (the “Cybersecurity
Contract”). Compl. at ¶ 1; see also AR Tab 19 at 718. Specifically, VTI alleges that the
Commerce Department incorrectly determined that VTI was noncompliant with the mandatory
requirements of the solicitation for the Cybersecurity Contract and that the agency’s contracting
officer wrongfully excluded VTI from consideration for award. Compl. at ¶ 1. As relief, VTI
requests that the Court: (1) declare that the Commerce Department violated the Competition in
Contracting Act (“CICA”) and misapplied the rules of mentors and protégés under the Small
Business Administration (“SBA”) All-Small Mentor Protégé Program; (2) direct the agency to
evaluate VTI’s proposal; and (3) award VTI costs, including reasonable attorneys’ fees. Id. at
Prayer for Relief.

                1. The Solicitation

       As background, VTI is a joint venture pursuant to the SBA’s All-Small Mentor Protégé
Program between Mainstay Information Solutions, LLC (the protégé) and Technatomy
Corporation (the mentor). Compl. at ¶ 2.


1
  The facts recited in this Memorandum Opinion and Order are taken from the administrative record
(“AR”); plaintiff’s complaint (“Compl.”); plaintiff’s motion for judgment upon the administrative record
(“Pl. Mot.”); and the government’s motion to dismiss and cross-motion for judgment upon the
administrative record (“Def. Mot.”). Except where otherwise noted, all facts recited herein are
undisputed.


                                                                                                           2
       On April 5, 2018, the Commerce Department issued Solicitation No. SS1301-18-RP-
0005 (the “Solicitation”) seeking proposals to provide critical Department-wide cyber security
unity support services from a small-business set aside. AR Tab 8 at 88-174. The Solicitation
was for the award of a single blanket purchase agreement (“BPA”), with a five-year ordering
period. AR Tab 8 at 91; AR Tab 9 at 181. The task orders issued pursuant to the BPA, would be
fixed-price services and/or supply task orders. AR Tab 8 at 108.

       Of particular relevance here, Section 1.4 of the Solicitation requires that all offerors hold
a General Services Administration (“GSA”) Federal Supply Schedule 70 Contract (“FSS 70
Contract”). AR Tab 9 at 181. In this regard, the Solicitation provides that “[i]n order to be
eligible for award an offeror must hold a [GSA] FSS 70 contract with SIN 132-51.” Id.

       In addition, Section 1.3 of the Solicitation requires that a prospective bidder hold its own
top secret facility clearance (“TS-FCL”). Id. In this regard, the Solicitation provides that:

       Fulfillment of this requirement will require the prime contractor to have and
       maintain a Top Secret Facility Clearance (TS-FCL) with eligibility for access to
       Sensitive Compartmented Information (SCI). The Facility Clearance must be
       possessed and be current at the time of proposal submission. Any proposal that is
       submitted by a contractor that does not hold a TS-FCL will not be considered for
       award.

Id.

       With regards to the evaluation of responsive proposals, the Solicitation also provides that
the Commerce Department will consider three evaluation factors: (1) Technical; (2) Past
Performance; and (3) Price. AR Tab 8 at 102. The Solicitation further provides that the agency
will make an award decision based upon the best value to the government. Id. Lastly, the
Solicitation provides that the Technical factor is more important than the Past Performance factor
and that these two non-price factors, when combined, are approximately equal to Price. Id.

       On May 10, 2018—prior to the deadline to submit responsive proposals—the SBA
informed VTI that it was not eligible for award of the Cybersecurity Contract because VTI did
not hold a FSS 70 Contract. AR Tab 30 at 865; see also AR Tab 9 at 336 (stating that the
deadline to submit proposals was May 14, 2018). Specifically, the SBA informed VTI that:




                                                                                                       3
       [A Joint Venture] JV must have an IT 70 Schedule. GSA policy does not transfer
       the JV partners Schedule to the JV. Based on that, your JV would not be eligible
       to compete on this set-aside.

AR Tab 30 at 865. On May 11, 2018, VTI timely submitted its proposal. See generally AR Tab
13.

               2. Evaluation Of Proposals And Award

       During the evaluation of proposals for the Cybersecurity Contract, the contracting officer
determined that four proposals, including VTI’s proposal, did not comply with the Solicitation’s
mandatory requirements. AR Tab 17 at 637-38. And so, the contracting officer eliminated
VTI’s proposal from further consideration. Id. at 638.

       After conducting an evaluation of the remaining responsive proposals, the agency
performed a best value analysis and determined that Goldbelt Hawk, LLC provided the best
value to the government. AR Tab 19 at 718. And so, the Commerce Department awarded the
Cybersecurity Contract to Goldbelt Hawk, LLC on August 20, 2018. Id.; see generally AR Tab
20.

                     3. VTI’s Debriefing

       Thereafter, the Commerce Department notified VTI that its proposal was not evaluated
due to noncompliance with the Solicitation’s mandatory requirements. AR Tab 25 at 852-54. In
this notice, the agency advised that “[t]he compliance review performed for VTI’s proposal did
not locate any information verifying that VTI holds a FSS 70 contract.” Id. at 854. The agency
also advised that:

       The compliance review also did not locate any information verifying that VTI
       holds a TS-FCL notwithstanding the TS-FCL clearances held by Mainstay
       Information Solutions, LLC and Technatomy Corporation. Although Mainstay
       and Technatomy appear to hold the required clearances, the proposal is not
       submitted by either of these companies in their capacity as a prime.

Id. And so, the agency concluded that, “[d]ue to the fact that . . . VTI did not meet the
mandatory requirement of holding a FSS 70 contract and a TS-FCL the proposal it submitted
was not evaluated per the terms of the solicitation.” Id.




                                                                                                   4
          B.     Procedural History

          On November 13, 2018, VTI filed the complaint in this bid protest matter. See generally
Compl. On December 4, 2018, the government filed the administrative record. See generally
AR.

          On January 3, 2019, VTI filed a motion for judgment upon the administrative record. See
generally Pl. Mot. On March 13, 2019, the government filed a motion to dismiss this matter for
lack of subject-matter jurisdiction, or in the alternative, a cross-motion for judgment upon the
administrative record. See generally Def. Mot.

          On March 27, 2019, VTI filed a response and opposition to the government’s motion to
dismiss and cross-motion for judgment upon the administrative record. See generally Pl. Resp.
On April 10, 2019, the government filed a reply in support of its motion to dismiss and cross-
motion for judgment upon the administrative record. See generally Def. Reply.

          These matters having been fully briefed, the Court resolves the pending motions

III.      LEGAL STANDARDS

          A.     Bid Protest Jurisdiction And Standing

          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 (“APA”) “arbitrary and capricious” standard. See 28
U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the APA). 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.’”
Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting
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


                                                                                                     5
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.
(quoting Impresa, 238 F.3d at 1332-33) (citation omitted). “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. (quoting Impresa, 238 F.3d at 1333) (internal quotations omitted).
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 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. &
Applications 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)).

       Standing is a threshold issue which implicates the Court’s subject-matter jurisdiction.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). And so, if a plaintiff cannot
establish standing, the Court is without jurisdiction to render a decision on the merits of a claim.
See Myers Investigative & Sec. Servs. v. United States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002).




                                                                                                       6
        When evaluating who qualifies as an interested party with standing to bring a bid protest
claim, the Court looks to the definition of “interested party” provided in the Competition in
Contracting Act (“CICA”). Myers, 275 F.3d at 1370 (quoting Am. Fed’n of Gov’t Emps. v.
United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)); see 31 U.S.C. § 3551(2). And so, to have
standing a plaintiff must show that: “‘it [(1)] is . . . an actual or prospective bidder and [(2)] . . .
has a direct economic interest’ in the procurement or proposed procurement.” Diaz v. United
States, 853 F.3d 1355, 1358 (Fed. Cir. 2017) (alterations in original) (quoting Digitalis Educ.
Sols., Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012)); see also 31 U.S.C. § 3551(2).

        In determining the second prong of standing—whether a plaintiff has a “direct economic
interest” in the procurement—the Court generally applies the “substantial chance test,” and
inquires as to whether the plaintiff would have had a substantial chance of being awarded the
contract, but for the alleged error in the procurement.2 Orion Tech., Inc. v. United States, 704
F.3d 1344, 1348 (Fed. Cir. 2013). And so, while a plaintiff need not show that it would have
received the award in a competition, a plaintiff must show that it would have been a qualified
bidder or offeror to establish standing. Myers, 275 F.3d at 1370–71.

        B.      RCFC 12(b)(1)

    When deciding a motion to dismiss upon the ground that the Court does not possess subject-
matter jurisdiction pursuant to RCFC 12(b)(1), this Court must assume that all factual allegations
in the complaint are true and must draw all reasonable inferences in the non-movant’s favor. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC 12(b)(1). But, a plaintiff bears the burden of
establishing subject-matter jurisdiction, and it must do so by a preponderance of the evidence.
See Reynolds v. Army & Air Force Exch. Servs., 846 F.2d 746, 748 (Fed. Cir. 1988). Should the




2
  The Federal Circuit has held that in certain pre-award bid protest matters involving a challenge to the
terms of a solicitation, the Court may apply a different test to determine direct economic interest, namely,
whether a plaintiff has a “non-trivial competitive injury which can be addressed by judicial relief.” Weeks
Marine, Inc. v. United States, 575 F.3d 1352, 1362 (Fed. Cir. 2009). This standard may apply when
circumstances provide insufficient facts to determine whether a plaintiff had a substantial chance of an
award. Id. at 1361. But, as the Federal Circuit recognized in Orion Tech., Inc. v. United States, the
“non-trivial competitive injury” test applies when there is a challenge to a solicitation before the award.
704 F.3d 1344, 1348–49 (Fed. Cir. 2013). And so, this test does not necessarily apply to all pre-award
bid protests. Id.


                                                                                                           7
Court determine that “it lacks jurisdiction over the subject matter, it must dismiss the claim.”
Matthews v. United States, 72 Fed. Cl. 274, 278 (2006); see RCFC 12(h)(3).

        C.     Judgment Upon The Administrative Record

    Generally, RCFC 52.1 limits this Court’s review of an agency’s procurement decision to the
administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374,
1379 (Fed. Cir. 2009) (“‘[T]he focal point for judicial review should be the administrative record
already in existence.’”) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). And so, unlike a
summary judgment motion brought pursuant to RCFC 56, “the existence of genuine issues of
material fact does not preclude judgment on the administrative record” under RCFC 52.1. Tech.
Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 (2011) (citations omitted); RCFC 52.1. Rather,
the Court’s inquiry is whether, “given all the disputed and undisputed facts, a party has met its
burden of proof based on the evidence in the record.” A & D Fire Prot., Inc. v. United States, 72
Fed. Cl. 126, 131 (2006).

        D.     Injunctive Relief

        Lastly, under its bid protest jurisdiction, the Court “may award any relief [it] considers
proper, including declaratory and injunctive relief.” 28 U.S.C. § 1491(b)(2); see also Centech
Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether to issue a
permanent injunction, the Court “considers: (1) whether . . . the plaintiff has succeeded on the
merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds
injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of
injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.” PGBA,
LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco Prod. Co. v. Vill.
of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary injunction is
essentially the same as for a permanent injunction with the exception that the plaintiff must show
a likelihood of success on the merits rather than actual success.”)); see also Centech Grp., Inc.,
554 F.3d at 1037. In this regard, the United States Court of Appeals for the Federal Circuit has
held that:

        No one factor, taken individually, is necessarily dispositive. If a preliminary
        injunction is granted by the trial court, the weakness of the showing regarding one
        factor may be overborne by the strength of the others. If the injunction is denied,



                                                                                                     8
       the absence of an adequate showing with regard to any one factor may be sufficient,
       given the weight or lack of it assigned the other factors, to justify the denial.

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted).

       A plaintiff who cannot demonstrate actual success upon the merits cannot prevail upon a
motion for preliminary injunctive relief. Cf. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd.,
357 F.3d 1319, 1324–25 (Fed. Cir. 2004) (finding that a plaintiff who cannot demonstrate likely
success upon the merits cannot prevail upon its motion for preliminary injunctive relief). This
Court has also found success upon the merits to be “the most important factor for a court to
consider when deciding whether to issue injunctive relief.” Dellew Corp. v. United States, 108
Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312
(Fed. Cir. 2007)). But, while success upon the merits is necessary, it is not sufficient alone for a
plaintiff to establish that it is entitled to injunctive relief. See Contracting, Consulting, Eng’g
LLC v. United States, 104 Fed. Cl. 334, 353 (2012) (“Although plaintiff’s entitlement to
injunctive relief depends on its succeeding on the merits, it is not determinative because the three
equitable factors must be considered, as well.” (citations omitted)).

III.   LEGAL ANALYSIS

       The government has moved to dismiss this matter upon the grounds that VTI has waived
its right to challenge the Solicitation’s requirement that offerors hold a FSS 70 Contract. Def.
Mot. at 10-12. The government also argues that VTI lacks standing to bring this post-award bid
protest matter because it did not hold a FSS 70 Contract, or the required top secret facility
clearance, at the time of its offer. Id. at 12-18. And so, the government requests that the Court
dismiss this matter for lack of subject-matter jurisdiction. Id. at 1.
       VTI counters in its response and opposition to the government’s motion to dismiss that it
has not waived its claims, because VTI diligently pursued its interests after submitting an offer
and the contracting officer reconsidered the decision to exclude VTI’s proposal from
consideration for award of the Cybersecurity Contract. Pl. Resp. at 9-11. VTI also argues that it
has standing to bring this protest because it satisfied the Solicitation’s mandatory requirements
through its mentor protégé relationship with Mainstay Information Solutions, LLC and
Technatomy Corporation. Id. at 16-18. And so, VTI requests that the Court deny the
government’s motion to dismiss. Id. at 42.



                                                                                                       9
       The parties have also filed cross-motions for judgment upon the administrative record on
the issues of whether the Commerce Department: (1) rationally eliminated VTI from the
competition; (2) adequately documented the source selection decision; and (3) violated the
Competition in Contracting Act (“CICA”). Pl. Mot. at 27-56; Def. Mot. at 18-23. In its motion
for judgment upon the administrative record, VTI argues that the Commerce Department’s
contracting officer improperly applied the legal standard under the SBA regulations governing
joint venture agreements in deciding to exclude VTI’s proposal from consideration. Pl. Mot. at
27-39. VTI also argues that the administrative record does not rationally explain the contracting
officer’s decision to exclude its proposal. Id. at 48-51. Lastly, VTI argues that the contracting
officer’s decision to not evaluate its proposal violates the Competition in Contracting Act. Id. at
56-57. And so, VTI requests that the Court set aside the Commerce Department’s decisions to
exclude VTI from consideration for award of the Cybersecurity Contract and to award that
contract to Goldbelt Hawk, LLC. Id. at 5, 58.

       The government counters in its cross-motion for judgment upon the administrative record
that the Commerce Department reasonably decided to eliminate VTI’s proposal from the
competition, and that the agency adequately documented this decision. Id. at 18-23. And so, the
government requests that the Court sustain the Commerce Department’s decisions to exclude
VTI from consideration for award of the Cybersecurity Contract and to award that contract to
Goldbelt Hawk, LLC. Id. at 2.

       For the reasons set forth below, the record evidence makes clear that the Court does not
possess subject-matter jurisdiction to consider VTI’s protest, because VTI has waived its claim
challenging the Solicitation’s requirement that offerors hold a FSS 70 Contract and VTI lacks
standing to pursue this matter. And so, the Court: (1) GRANTS the government’s motion to
dismiss; (2) DENIES-AS-MOOT the parties’ cross-motions for judgment upon the
administrative record; and (3) DISMISSES the complaint.

       A. VTI’s Challenge To The Solicitation’s Mandatory Requirement Is Untimely

       As an initial matter, the government persuasively argues that VTI has waived its right to
challenge the Solicitation’s mandatory requirement that offerors hold a FSS 70 Contract, because
VTI failed to raise any objection to this requirement prior to submitting its offer. This Court has
long recognized that an offeror wishing to challenge the terms of a solicitation must do so before


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offers are due. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007)
(holding that a protestor who knew the agency’s interpretation of a solicitation but failed to
challenge it before bids were due, waived its ability to object afterwards). And so, VTI may not
challenge the Solicitation’s requirement regarding the FSS 70 Contract, if VTI failed to raise
concerns about this requirement prior to the submission of responsive proposals. Id.

       A review of the administrative record shows that VTI has waived this claim. First, it is
undisputed that Section 1.4 of the Solicitation provides that “to be eligible for award an offeror
must hold a FSS 70 contract.” AR Tab 9 at 181. It is also undisputed that VTI did not hold its
own FSS 70 Contract at the time that it submitted a proposal in response to the Solicitation. Pl.
Resp. at 17. And so, there is no genuine dispute that VTI did not satisfy the Solicitation’s
mandatory requirement in this regard.

       It is similarly undisputed that VTI was aware that it was ineligible to compete for the
award of the Cybersecurity Contract for this reason prior to submitting an offer. AR Tab 30 at
865. In this regard, the administrative record shows that, on May 10, 2018—four days before the
deadline to submit responsive proposals—the SBA informed VTI that its joint venture would not
be eligible to compete for the award of the Cybersecurity Contract because GSA’s policy does
not transfer a joint venture partner’s FSS 70 Contract to the joint venture. Id.; see also AR Tab 9
at 336 (stating that the deadline to submit proposals was May 14, 2018). Given this undisputed
evidence, VTI could have—and should have—raised any concerns about the application of the
Solicitation’s mandatory requirement that offerors hold a FSS 70 Contract to its joint venture
with the Commerce Department prior to submitting an offer. Because VTI failed to do so, the
Court agrees with the government that VTI has waived this claim. Blue & Gold Fleet, 492 F.3d
at 1313 (citing Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed.
Cir. 2000)).

       VTI’s argument that it was unaware that it was ineligible to compete for the
Cybersecurity Contract prior to the award of this contract is also unsupported by the record
evidence. Pl. Resp. at 14-16. As discussed above, the administrative record makes clear that
VTI became aware that it was ineligible to compete for the Cybersecurity Contract four days
before responsive proposals were due. AR Tab 30 at 865; see also AR Tab 11 at 365.




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        VTI’s argument that this claim is timely because it was “triggered” by the contracting
officer’s August 22, 2018, letter informing VTI of the decision to exclude its proposal is also
belied by the record evidence. Pl. Resp. at 9-10; see also AR Tab 25 at 852-54. VTI correctly
observes that it continued to communicate with the Commerce Department’s contracting officer
about the decision to exclude its proposal after the date of this letter. Pl. Resp. at 9-11; see also
AR Tabs 26-29. But, VTI simply fails to explain why it did not raise any concerns about the
Solicitation’s mandatory requirement that offerors hold a FSS 70 Contract prior to submitting an
offer. See Pl. Resp. at 9-16. And so, the Court must dismiss this claim for lack of subject-matter
jurisdiction. RCFC 12(b)(1).3

        B. VTI Lacks Standing To Bring This Bid Protest

        The administrative record also makes clear that VTI lacks standing to pursue this bid
protest matter because it is not an interested party. To have standing, VTI must show that: “‘it
[(1)] is . . . an actual or prospective bidder and [(2)] . . . has a direct economic interest’ in the
procurement or proposed procurement.” Diaz v. United States, 853 F.3d 1355, 1358 (Fed. Cir.
2017) (alterations in original) (quoting Digitalis Educ. Sols., Inc. v. United States, 664 F.3d
1380, 1384 (Fed. Cir. 2012)); see also 31 U.S.C. § 3551(2). In determining whether VTI has a
“direct economic interest,” the Court generally applies the “substantial chance test” and inquires
as to whether VTI would have had a substantial chance of being awarded the contract, but for the
alleged error in the procurement. Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed.
Cir. 2013).

        VTI has not met its burden to show that it is an interested party with standing to bring this
bid protest case for two reasons.

              1. VTI Is Not An Interested Party Because It Did Not
                 Possess A FSS 70 Contract When Responsive Proposals Were Due

        First, as discussed above, a careful review of the administrative record makes clear that
VTI is not an interested party because it did not hold a FSS 70 Contract when responsive


3
  VTI’s argument that it does not challenge the terms of the Solicitation in this case is also unpersuasive.
Pl. Resp. at 9-12. A review of VTI’s cross-motion for judgment upon the administrative record makes
clear that VTI challenges how the Solicitation’s requirement that offerors hold a FSS 70 Contract should
apply to its joint venture. Pl. Mot. at 27-48. And so, the Court reads VTI’s claim as a challenge to the
terms of the Solicitation.


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proposals were due, as required by the Solicitation. Section 1.4 of the Solicitation makes clear
that to be eligible for award, VTI must hold a FSS 70 Contract and it is undisputed that VTI did
not hold such a contract at the time that it submitted an offer in response to the Solicitation.4 AR
Tab 9 at 181; Pl. Resp. at 17. Given this, VTI has not shown that it could compete for the
Cybersecurity Contract. Orion Tech., 704 F.3d at 1348; see also Weeks Marine, Inc. v. United
States, 575 F.3d 1352, 1362 (Fed. Cir. 2009).

        The Court is also unpersuaded by VTI’s argument that it has standing to bring this case
because joint ventures are not required to form a separate legal entity under the applicable SBA
regulations. Pl. Resp. at 16-19; see also 13 C.F.R. §§ 121.103, 125.8, and 125.9. In this regard,
the SBA regulation that VTI relies upon provides that “a joint venture . . . may be in the form of
a formal or informal partnership or exist as a separate limited liability company or other separate
legal entity” to qualify as a small business. 13 C.F.R. § 121.103(h). But, this regulation does not
address the requirement for offerors to hold a FSS 70 Contract, or how such a requirement would
apply to the Solicitation at issue in this bid protest dispute. Id.

        VTI also argues without persuasion that it may satisfy the requirement to hold a FSS 70
Contract through the partners in its joint venture. Pl. Resp. at 16-19. But, it is without dispute
that VTI—rather than its joint venture partners—was the offeror in connection with the
Solicitation for the Cybersecurity Contract. See generally AR Tab 13 (showing that the proposal
was submitted by VTI); see also AR Tab 25 at 854. And so, while the partners in VTI’s joint
venture may have independently held a FSS 70 Contract, VTI did not, and this fact precludes
VTI from competing for the Cybersecurity Contract. AR Tab 25 at 854; Pl. Resp. at 17; Arkray
USA, Inc. v. United States, 118 Fed. Cl. 129, 134 (2014).5


4
 The Solicitation was issued pursuant to FAR Part 8 on the GSA Federal Supply Schedule. AR Tab 9 at
181, 194; Def. Mot. at 13.
5
  VTI’s argument that it has standing because a senior GSA contracting officer determined that VTI could
compete for the award of the Cybersecurity Contract is equally unavailing because this determination
does not circumvent the requirement in the Solicitation that the offeror hold its own FSS 70 Contract. Pl.
Resp. at 32. VTI also improperly relies upon RAMCOR Services Group, Inc. v. United States, 185 F.3d
1286 (Fed. Cir. 1991) to show that it has standing. Pl. Resp. at 22-24. In that case, the Federal Circuit
held that “[a]s long as a statute [or regulation] has a connection to a procurement proposal, an alleged
violation suffices to supply jurisdiction.” RAMCOR, 185 F.3d at 1289. But, RAMCOR does not establish
that VTI has standing to pursue this bid protest given the evidence in the record showing that VTI was
ineligible to compete for the Cybersecurity Contract. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–


                                                                                                       13
             2. VTI Is Not An Interested Party Because It
                Did Not Possess A Top Secret Facility Clearance

        The administrative record also makes clear that VTI is not an interested party because it
did not possess the security clearance required under the Solicitation at the time that proposals
were due. In this regard, Section 1.3 of the Solicitation provides that:

        Fulfillment of this requirement will require the prime contractor to have and
        maintain a Top Secret Facility Clearance (TS-FCL) . . . . Any proposal submitted
        that is submitted by a contractor that does not hold a TS-FCL will not be considered
        for award.

AR Tab 9 at 181. VTI acknowledges that that it did not hold a top secret facility clearance prior
to the closing date for the receipt of responsive proposals. Pl. Resp. at 17. Given this, there can
be no genuine dispute that VTI did not, and cannot, satisfy the Solicitation’s mandatory
requirement that the prime contractor “have and maintain a Top Secret Facility Clearance.” AR
Tab 9 at 181. And so, again, the record evidence makes clear that VTI lacks standing because it
is not eligible to compete for the Cybersecurity Contract.

        VTI’s argument that it has standing because VTI could rely upon the facility clearance
held by the members of its joint venture is also misguided. Pl. Resp. at. 18. As discussed above,
the administrative record makes clear that the Solicitation requires that the prime contractor hold
the required facility clearance. AR Tab 9 at 181. The administrative record also makes clear
that VTI was the prime contractor in connection with the Cybersecurity Contract. See generally
AR Tab 13 (showing that the proposal was submitted by VTI); see also AR Tab 25 at 854; Pl.
Resp. at 17. And so, VTI simply has not shown that it was eligible to compete for award of this
contract.

        Because the Court concludes that VTI has waived its right to challenge the Solicitation’s
mandatory requirement that offerors hold a FSS 70 Contract and that VTI has not established
that it has standing to bring this bid protest action, the Court must dismiss this action. For these
same reasons, the Court does not reach the merits of the arguments set forth in the parties’ cross-
motions for judgment upon the administrative record.




61 (1992) (holding that standing is a threshold issue which implicates the Court’s subject-matter
jurisdiction).


                                                                                                    14
       C. VTI Is Not Entitled To Injunctive Relief

       As a final matter, VTI has not established that it is entitled to the injunctive relief that it
seeks in this matter. VTI requests that the Court “order the Agency to end the award that
resulted from this unlawful exclusion” and permanently enjoin further performance under the
Cybersecurity Contract. Pl. Mot. at 58; Pl. Resp. at 39, 41. But, as discussed above, VTI has not
prevailed upon the merits of any of its claims. And so, the Court must deny VTI’s request for
injunctive relief. Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 176 (2005)
(holding that a plaintiff that has not actually succeeded upon the merits of its claims cannot
prevail upon a motion for injunctive relief).

IV.    CONCLUSION

       In sum, the record evidence in this case makes clear that VTI has waived its right to
challenge the Solicitation’s mandatory requirement that offerors hold a FSS 70 Contract and that
VTI lacks standing to pursue this bid protest matter. And so, the Court does not possess subject-
matter jurisdiction to consider any of VTI’s claims.

       For the foregoing reasons, the Court:

       1. GRANTS the government’s motion to dismiss;

       2. DENIES-AS-MOOT the parties’ cross-motions for judgment upon the
          administrative record; and

       3. DISMISSES the complaint.

       The Clerk shall enter Judgment accordingly.

       Each party to bear its own costs.

       Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on
November 27, 2018. This Memorandum Opinion and Order shall therefore be filed UNDER
SEAL. The parties shall review the Memorandum Opinion and Order to determine whether, in
their view, any information should be redacted in accordance with the terms of the Protective
Order prior to publication. The parties shall FILE a joint status report identifying the




                                                                                                     15
information, if any, that they contend should be redacted, together with an explanation of the
basis for each proposed redaction on or before July 26, 2019.

       IT IS SO ORDERED.



                                                  s/ Lydia Kay Griggsby
                                                  LYDIA KAY GRIGGSBY
                                                  Judge




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