     In the United States Court of Federal Claims
                                No. 14-1168C
                     (Originally Filed: February 6, 2015)
                        (Reissued: February 10, 2015)*


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ADAMS AND ASSOCIATES, INC.,

                     Plaintiff,
                                              Bid protest; Job Corps Centers;
v.                                            Small Business Set-Asides;
                                              Statutory Construction;
THE UNITED STATES,                            Workforce Investment Act

                     Defendant.


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        Gail Lindsay Simmons, Washington, DC, and Hopewell H. Darneille
III, for plaintiff.

       Elizabeth Ann Speck, Civil Division, Department of Justice,
Washington, DC, with whom were, Joyce R. Branda, Acting Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Kirk T. Manhardt,
Assistant Director, for defendant. Amanda L. Tantum, Civil Division,
Department of Justice, Washington, DC, argued for defendant. David R.
Koeppel, Peter J. Dickson, and Savannah Wilson, Office of the Solicitor,
United States Department of Labor, Washington, D.C., of counsel.

                              _______________

                                 OPINION
                              _______________



       *
        This opinion was originally filed under seal. Publication was deferred
pending parties’ review for redaction of protected material. The parties did not
propose any redactions. After updating the citation to the contemporaneous
order in the companion case, the opinion is now prepared for release.
BRUGGINK, Judge.

       This bid protest, brought by Adams and Associates, Inc., (“Adams” or
“plaintiff”), once again challenges the solicitation by the Department of Labor
(“DOL”) for operation of the Shriver Job Corps Center (“Shriver”) in
Massachusetts. The agency began the solicitation process in 2012 at a time
when Adams was the incumbent on a contract set to expire in 2013. Adams
previously protested this procurement in 2012. The basis of that challenge,
and the current one, is that DOL improperly set aside the procurement for
small businesses, making Adams, a large business, ineligible to compete. The
first protest was unsuccessful. We held that the agency had properly
conducted a “rule of two” analysis and that the set-aside did not violate the
Workforce Investment Act, Pub. L. No. 105 220, 112 Stat. 936 (1998)
(“WIA”) (amending various sections codified throughout Title 29). Adams &
Assocs., Inc. v. United States, 109 Fed. Cl. 340 (2013). That decision was
affirmed on appeal. 741 F.3d 102 (Fed. Cir. 2014). Adams’ effort to obtain
rehearing en banc was also unsuccessful. Adams & Assocs., Inc. v. United
States, Nos. 13-5077 & 13-5080 (Fed. Cir. Mar. 14, 2014) (order denying
rehearing en banc).

        When DOL, having weathered Adams’ challenge, began moving ahead
with the procurement as a small business set-aside, Adams filed a protest in
April 2014 with the Government Accountability Office (“GAO”). The thrust
of the challenge was that, in the interim, Congress had taken certain legislative
measures which directly impacted the procurement. The GAO rejected that
challenge, in part because it viewed the new allegations as subject to res
judicata; and because the allegations were or could have been brought before
the Federal Circuit. Adams & Assoc., Inc., B-409680 et al., 2014 WL 1614214
(Comp. Gen. Apr. 22, 2014). Adams sought reconsideration, which was
denied in November of 2014. Adams & Assoc., Inc., B-409680.2 et al. (Comp.
Gen. Nov. 12, 2014).

       On December 4, 2014, Adams filed the present suit, attempting to block
DOL from moving forward with the procurement in the face of congressional
instructions, issued subsequent to our prior decision, to consider award to
“high-preforming incumbent contractors” such as Adams. Essential to Adams’
present complaint is its assumption that the agency’s delay in moving ahead
with the procurement in 2013 or 2014, particularly in light of legislation
affecting the Job Corps program, amounted to a defacto new procurement
decision. We disagree.


                                       2
        Pending are plaintiff’s motion for judgment on the administrative
record, defendant’s cross-motion for judgment on the administrative record,
or in the alternative, motion to dismiss for lack of jurisdiction, and defendant’s
motion to strike the extra-record material offered by plaintiff. The motions are
fully briefed, and we heard oral argument on February 5, 2015.2 For the
reasons explained below, we grant defendant’s motion to strike and its motion
to dismiss. We deny plaintiff’s cross-motion.

                               BACKGROUND

       Given the extensive writing by three fora on the factual background of
this procurement, we limit ourselves to the essentials and what plaintiff
contends are developments after our first decision.

       On December 14, 2012, DOL issued solicitation DOL12QA20003 for
the operation of the Shriver center as a small business set-aside. AR at 3. By
designating the contract for competition solely among small businesses,
Adams, which is a large business, was excluded from competing. See 741
F.3d at 105; 109 Fed. Cl. at 346. The DOL solicitation and set-aside decision
were upheld by this court, the Federal Circuit, and GAO. Adams is the
incumbent operator for Shriver under contract DOLJ08QA00002, which
originally ran from June 1, 2008 to May 31, 2013, but because of these
protests, has been extended through bridge contracts until May 31, 2015.

        On January 17, 2014, while the appeal to the Federal Circuit from our
first decision was pending, Congress passed the Consolidated Appropriations
Act of 2014 (“the Act”), the purpose of which is to fund various governmental
programs. Pub. L. No. 113-76, 128 Stat. 5. The Act provides the following:
“[t]o carry out subtitle C of title I of the WIA . . . $1,688,155,000, plus
reimbursements, as follows: (1) $1,578,008,000 for Job Corps Operations,
which shall be available for the period July 1, 2014 through June 30, 2015.”
128 Stat. 349-50. It is undisputed that the appropriation involves funds that
will be used to perform the contract in question. I.e., the legislation squarely
affects this contract.



       2
         Contemporaneously herewith we are issuing an order in a related
matter, Adams and Associates, Inc. v. United States, No. 14-1180 (Fed. Cl.
Feb. 10, 2015) (“Gadsden”), which involves the Job Corps Center in Gadsden,
Alabama. Plaintiff in Gadsden makes the same arguments as in this case.

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       Section 4 of the Act provides as follows:

       The explanatory statement regarding this Act, printed in the
       House of Representatives section of the Congressional Record
       on or about January 15, 2014 by the Chairman of the Committee
       on Appropriations of the House, shall have the same effect with
       respect to the allocation of funds and implementation of
       divisions A through L of this Act as if it were a joint explanatory
       statement of a committee of conference.

128 Stat. 7. The Joint Explanatory Statement (“JES”) referred to provides in
relevant part that,

       When evaluating contract renewals or re-bids, due consideration
       should be provided to the federal investment already made in
       high-performing incumbent contractors as a part of a full, fair,
       and open competitive process. As part of this process, the
       Department of Labor (DOL) should consider documented past
       performances of student outcomes and cost-effective
       administration as important factors in Job Corps procurements.

160 Cong. Rec. H475 (daily ed. Jan. 15, 2014).

        On the same day that the Act became law, DOL placed a special notice
on a public website, FedBizOpps, whereby DOL released its “plan for all
upcoming procurements for Job Crops center operations, Outreach and
Admissions, and Career Transition Services . . . in order to give contractors the
opportunity to review the plan” and provide feedback. AR at 627 (emphasis
supplied). DOL expressed an interest in input from potential bidders regarding
the maximum and optimal number of proposals that contractors could prepare
and submit. DOL emphasized that it sought “generalized feedback” and that
it was “not seeking, nor will it entertain contractor input regarding the release
date, closing date or award date of specific procurements.” AR at 628.
Attached was a list of upcoming procurements with projected dates for
requests for proposals (“RFP”). Because the RFP for Shriver already had been
released, that facility was not included on the list. AR at 630.

       After receiving feedback, DOL released a revised procurement plan on
March 27, 2014, which included estimated dates by which DOL intended to
release RFPs and then to make awards with respect to upcoming procurements.
AR at 632. The revised procurement plan added a new list of “Ongoing

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Procurements,” however, with anticipated award dates. Shriver appeared on
the latter list with an anticipated award date in May 2014. AR at 633. This list
was updated in August 2014 and reflected that the Shriver award date was
“TBA” because the “procurement is under protest.” AR 636.3

                                 DISCUSSION

        Having lost its prior challenge to this same procurement, plaintiff
obviously faces a daunting task in resurrecting standing to thwart the agency’s
much-delayed award,4 particularly as there is nothing in the administrative
record that looks like a reopening of the solicitation. As we understand
plaintiff’s argument, it contends that the agency did, in fact, reopen the
solicitation, as demonstrated by the January 17 FedBizOpps announcement
and that, having done so, the “old” solicitation becomes irrelevant. According
to plaintiff, DOL is now subject to new directions from Congress, as expressed
in the JES, to give due consideration to the federal investment already made
in high-performing incumbent contractors as a part of a full, fair, and open
competitive process and should consider documented past performances of
student outcomes and cost-effective administration. Presumably, Adams
would benefit from such consideration.

       There are a number of factual and legal deficiencies in this argument.
The most basic is that the notice issued by DOL on January 17, 2014,
announcing its plan for all upcoming procurements for Job Corps center
operations, on its face, is not a reopening of the Shriver solicitation. Plaintiff’s
argument reduces to this: the agency could and should have reopened the


       3
         On July 22, 2014, Congress enacted the Workforce Innovation and
Opportunity Act (“WIOA”). Pub. L. No. 113-128, 128 Stat. 1425. WIOA
amounts to a rewrite of the Workforce Investment Act, which controls the
present procurement. WIOA does not take effect until July 1, 2015, and thus,
while it deals very much with the same subject matter of the procurement Job
Corps Centers plaintiff does not contend that it controls the result here.
       4
         In order to have standing here, plaintiff must establish “1) that it is an
actual or prospective bidder and 2) that it has a direct economic interest.”
Orion Tech., Inc. v. United States, 704 F.3d 1334, 1348 (Fed. Cir. 2013).
Having failed in its argument that the solicitation should be open to large
bidders, plaintiff would appear to be barred by res judicata from arguing that
it can compete for award.

                                         5
solicitation in view of all the criticism it had been subject to with respect to Job
Corps Centers. It is telling, in plaintiff’s view, that the agency did not go
ahead with award after our decision in January 2013. Thus suggesting,
presumably, that DOL was pondering reissuing the solicitation. What it
neglects to account for is that there have been no more than a couple of weeks
since our first decision in which the solicitation has not been subject to a bid
protest.

       Our jurisdiction requires more solid ground. DOL’s willingness to
receive industry feedback on its long range plan for future procurements
simply does not morph into a new final decision with respect to the Shriver
procurement. Adams has been excluded from competition by an agency action
that was upheld by the courts and there has been no new agency action that
would change that outcome. Adams is a large business and thus has no
standing to object to an award limited to small businesses.

        This fact is not altered by the Consolidated Appropriations Act of 2014
or its appended JES. While Section 4 of the Act provides that the explanatory
statement regarding the Act by the Chairman of House Appropriations
Committee “shall have the same effect with respect to the allocation of funds
and implementation of divisions A through L of this Act as if it were a joint
explanatory statement of a committee of conference,” 128 Stat. 7, we hold that
the Act needs no explanation. It merely appropriates money. There is no
ambiguity as to meaning. The JES is superfluous legislative history, at best,
and, in any event, does not have the weight of law. Neither the Act itself nor
the JES reopen the solicitation. It remains limited to small businesses, and
Adams is thus not a prospective bidder.

        Even if plaintiff had standing, and the sentiments expressed in the JES
were somehow applicable to the agency, the court would be in no position to
decide whether it had given “due consideration” to incumbents or high
performers. The language is precatory and directed at policy makers in the
agency. It is not a proper basis for a legal challenge. Consistent with this
view, we believe, is the high probability that Congress had no intent to
interfere in an ongoing solicitation and instead was giving the agency fair
warning as to how it expected future program monies to be handled.

        In sum, whether viewed in terms of plaintiff’s lack of standing to
enforce legislation that does not affect this procurement, or the absence of a
statute which can be “violated” in connection with this procurement, see 28


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U.S.C. § 1491(b)(1), there is no jurisdiction to consider any aspect of the
complaint.

        We also agree with defendant that the extra-record materials are not
appropriate for inclusion in the administrative record and are not otherwise
necessary for effective judicial review. The court has reviewed the materials
and concludes that, even if taken into account, they would not eliminate the
jurisdictional deficiency here. They illustrate the larger problem with this
protest it is an effort to draw the court into a policy matter. They do not
reflect a reviewable procurement decision.

                              CONCLUSION

       For reasons explained above, we grant defendant’s motion to strike and
grant its alternative motion to dismiss for lack of jurisdiction. Plaintiff’s
motion is denied. The clerk is directed to enter judgment accordingly. No
costs.



                                          s/ Eric G. Bruggink
                                          ERIC G. BRUGGINK
                                          Judge




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