      In the United States Court of Federal Claims
                                    No. 16-1023C
                             (Filed December 13, 2016)
                             NOT FOR PUBLICATION

* * * * * * * * * * * * * * * * * *
                                  *
                                  *
FIELD TRAINING SUPPORT            *
SERVICES,                         *
                                  *
                 Plaintiff,       *
                                  *
      v.                          *
                                  *
THE UNITED STATES,                *
                                  *
                 Defendant,       *
      and                         *
                                  *
QUADRANT TRAINING SOLUTIONS, *
                                  *
           Defendant-Intervenor.  *
                                  *
* * * * * * * * * * * * * * * * * *


                                      ORDER

       This case is a pre-award bid protest challenging a determination made by the
Small Business Administration’s (SBA) Office of Hearings and Appeals (OHA) that
plaintiff, Field Training Support Services (FTSS), was not a small business eligible
to compete for a contract award under the portion of a multiple award contract
solicitation that was set aside for small businesses. In its decision, OHA
determined that plaintiff, which is a joint venture, was not a small business because
one of its members (LB&B Associates) is a large business. This decision, which
reversed a finding by the SBA’s Area Office, was based on a determination that
plaintiff did not qualify for an exemption from the affiliation rules available to
certain joint-ventures involving one small and one large business which have an
approved “mentor/protégé” relationship. See 13 C.F.R § 124.520 (rules for the SBA
mentor/protégé program). All of the requirements for this exemption were found to
be met save one: OHA determined that there was no evidence that SBA had
approved the continuation of the mentor/protégée agreement between the members
of the joint venture for the relevant year, namely 2014–15. See Id. § 124.520(e)(4)
(2015) (stating that SBA will annually review mentor-protégé agreements to
determine if they should be renewed for another year). The Area Office determined
that, based on the evidence before it, the approval had occurred. But OHA, based
on the same evidence, reversed that determination. Plaintiff responded with this
bid protest.

        The government has moved to dismiss the protest under Rule 12(b)(1) of the
Rules of the United States Court of Federal Claims (RCFC) on grounds of mootness
or, in the alternative, to remand this matter to OHA under 28 U.S.C. § 1491(a)(2),
because OHA wants to reconsider its decision. Def.’s Mot. to Dismiss, or in the
Alternative, for Remand (Def.’s Mot.) at 1. † Reconsideration is sought because the
government found in the record a document that was not addressed by the parties
or OHA, but may be relevant to the issue of whether continuation of the
mentor/protégé agreement had been approved for the relevant time period. Id. at
3–4. Plaintiff opposes dismissal of the case, but not a remand. Pl.’s Resp. to Def.’s
Mot. (Pl.’s Resp.) at 1. Intervenor opposes both alternatives. Intervenor’s Opp’n to
Def.’s Mot. (Intervenor’s Opp’n) at 1.

       Plaintiff ’s protest is not moot, and this is made clear by the government’s
own motion --- in which it represents that OHA will reconsider the matter and
“potentially issue a new decision.” Def.’s Mot. at 6. For a case to be moot, as the
government also notes, id., the relief sought must have already been granted, or the
court must find that “the questions originally in controversy between the parties are
no longer at issue.” Chapman Law Firm Co. v. United States, 490 F.3d 934, 939–
440 (Fed. Cir. 2007). This is not the case here given that, as things now stand,
OHA’s determination in this matter remains --- until its decision is revoked or
modified --- that plaintiff is not a small business and thus is excluded from the
competition. Unlike a bid protest challenging the evaluation of proposals, for which
a reevaluation is the standard relief, in this case plaintiff is not seeking a new
decision from OHA. Rather, plaintiff wants the decision declared invalid and
reversed. Compl. at 24. While OHA’s reconsideration of the matter might result in
a new decision sustaining the Area Office determination and rendering this case
moot, it has not happened yet.

      Given OHA’s desire to reconsider its decision, however, and the fact that a
favorable decision would make this protest moot, remand seems appropriate.
Intervenor objects to a remand on three grounds. First, it asserts that OHA no
longer has jurisdiction over this matter, arguing that such jurisdiction terminated
20 days after the entry of the initial decision. Intervenor’s Opp’n at 3–4 (citing 13

† Mootness presents a question of subject-matter jurisdiction and is thus properly
the subject of an RCFC 12(b)(1) motion. CBY Design Builders v. United States, 105
Fed. Cl. 303, 328–29 (2012); Technical Innovation, Inc. v. United States, 93 Fed. Cl.
276, 278 (2010).
                                         -2-
C.F.R. § 134.227(c)). But the regulation it relies upon imposes a 20-day limit on
reconsideration motions of parties, not on reconsiderations done on OHA’s own
initiative. See 13 C.F.R. § 134.227(c). In any event, such a regulation cannot limit
our court’s power to remand appropriate matters, see 28 U.S.C. § 1491(a)(2), which
may be exercised at the request of the government --- even when reconsideration is
not based on an admission of error, see Bias v. United States, 124 Fed. Cl. 663, 667
(2016) (citing SKF USA Inc. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001)).
Second, intervenor argues that a remand would be futile, as the document OHA
wishes to consider was in the record when three previous size determinations went
against plaintiff ’s members. Intervenor’s Opp’n at 5–6. But reconsideration is
sought because no party brought this document to OHA’s attention, Def.’s Reply at
4, and plaintiff apparently was unaware of its existence in the SBA’s records, Pl.’s
Reply at 5. Intervenor’s final argument against a remand was based on a
misunderstanding of the government’s stay of contract award. See Intervenor’s
Opp’n at 6–7. Defendant has clarified that the stay would remain in place while
OHA reconsidered its decision, Def.’s Reply at 5, and the Court presumes that no
contracts will be awarded until this protest is resolved.

      For the foregoing reasons, defendant’s motion to dismiss the protest as moot
is DENIED and its motion for a remand to the SBA’s OHA is GRANTED.
Pursuant to RCFC 52.2(b), the Court provides the following directions to the parties
on remand:

      (1) The remand period shall terminate on Monday, February 13, 2017, and
      proceedings in this case are STAYED until that date. If the SBA’s Office of
      Hearings and Appeals has not responded on or by Monday, February 13,
      2017, the parties shall follow the procedures set forth in RCFC 52.2(d).

      (2) The SBA’s Office of Hearings and Appeals shall reconsider whether FTSS
      was an approved mentor/protégé entity at the time it submitted a proposal on
      solicitation number N61340-15-R-0052 in light of a document in the
      record entitled “8(a) Annual Review Requirements List” and dated July
      24, 2015, and any other arguments or evidence which OHA decides to
      consider.

      (3) When proceedings before the SBA’s Office of Hearings and Appeals have
      concluded, OHA shall forward two copies of its decision to the clerk of the
      Court of Federal Claims pursuant to RCFC 52.2(e). Within thirty (30) days of
      the filing of the SBA’s response, the parties shall then file the notices
      required by RCFC 52.2(f)(1).

The Clerk is directed to serve a certified copy of this order on the SBA’s Office of
Hearings and Appeals at: Office of Hearings and Appeals, U.S. Small Business
Administration, 409 Third Street, SW, Washington, DC 20416.

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IT IS SO ORDERED.


                    s/ Victor J. Wolski
                    VICTOR J. WOLSKI
                    Judge




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