     In the United States Court of Federal Claims
                                No.15-307C
                          (Filed: August 18, 2015)

**********************

SIGMATECH, INC.,

                     Plaintiff,

v.

THE UNITED STATES,

                     Defendant,              Bid protest; 28 U.S.C. § 1500;
                                             mootness.
and

QUANTITECH, INC.,

and

INTUITIVE RESEARCH AND
TECHNOLOGY CORPORATION

                     Intervenors.

*********************

       Roderic G. Steakley, Huntsville, AL, for plaintiff.

       Delisa M. Sanchez, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, DC, with whom were Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Robert E. Kirschman,
Jr., Director, and Martin F. Hockey, Jr., Assistant Director, for defendant.
Capt. Evan Williams, U.S. Army Legal Services Agency, Ft. Belvoir, VA, of
counsel.

       John J. Callahan, Jr., Huntsville, AL, for intervenor QuantiTech, Inc.

       Richard J. R. Raleigh, Jr., Huntsville, AL, for intervenor Intuitive
Research and Technology Corporation

                                    ORDER

BRUGGINK, Judge

        F. Scott Fitzgerald wrote in “The Crack-up” that “the test of a first-rate
intelligence is the ability to hold two opposed ideas in mind at the same time,
and still retain the ability to function.” F. Scott Fitzgerald, The Crack-up 69
(Edmund Wilson, ed., New Direction Publishing 1993) (1936). So we must
credit Intervenor Intuitive Research and Technology Corporation with a first-
rate intellect. How else to view the argument that the court has no jurisdiction
due to the operation of 28 U.S.C. § 1500 (2012), and that it nevertheless
should address the merits of plaintiff’s complaint? This is a particularly
breathtaking argument in view of the fact that the plaintiff itself, Sigmatech,
Inc., has agreed to the government’s motion to dismiss on mootness grounds.

        Mootness, of course, is itself a jurisdictional matter. If the complaint
is moot because of the government’s corrective action, then the court lacks
jurisdiction. We are satisfied that the matter is, indeed, moot. Sigmatech’s
complaint, as later amended, asserted that the Army Contract Command’s
decision to award four blanket purchase agreements under its “AMCOM” 1 and
“EXPRESS”2 programs to other bidders, but not to award such an agreement
to Sigmatech, was arbitrary and capricious and not in accordance with
applicable regulations. Sigmatech sought a declaration that the awards were
improper and an injunction against issuance of task orders under those awards.
It filed a motion for judgment on the administrative record.

        The government and the other intervenor, QuantiTech, did not respond
to Sigmatech’s dispositive motion. Instead, on May 29, 2015, the government
filed a notice of preliminary intent to implement corrective action and sought
a stay of briefing. We granted the motion for a stay of briefing on June 1, and,
on June 4, the government filed a notice stating that

         The Army has decided to terminate the Blanket Purchase
         Agreements (BPAs) awarded to Intuitive Research and


1
    Aviation and Missile Life Cycle Command.
2
    Expedited Professional and Engineering Services Program.

                                        2
       Technology Corporation, BCF Solutions, Inc., QuantiTech, Inc.
       and Trident Technologies, LLC, in September 2014 pursuant to
       RFQ No. W31P4Q-13-T-0050. The terminations will be
       effectuated pursuant to the termination clause in the BPAs.
       After the Army issues the requisite termination notices, the
       United States will move to dismiss this bid protest due to
       mootness. Subsequent to the Court’s dismissal of this bid
       protest, the Army will consider whether additional corrective
       action is feasible in this case. Should the Army determine to
       forgo additional corrective action, it may decide to cancel RFQ
       No. W31P4Q-13-T-0050.

       Despite the court’s stay of briefing, intervenor Intuitive filed a cross-
motion for summary judgment and a motion to dismiss. The motion to dismiss
was predicated on 28 U.S.C. § 1500 (2012), which precludes this court from
exercising jurisdiction in the event the same matter is pending in another court.
According to Intuitive, Sigmatech had previously filed an action in district
court involving the same procurement.

       On June 4, in addition to the notice of corrective action, the government
moved to dismiss on mootness grounds. Plaintiff does not oppose the motion
to dismiss, responding that “[b]y terminating the BPAs, the Army has
effectively mooted Sigmatech’s primary request for relief by precluding any
awards to [the] BPA holders.” Pl.’s Resp. to Mot. to Dismiss 4. Nor does
intervenor QuantiTech oppose the motion, although it is not happy with the
result and reserves the right to seek further injunctive relief in the future
depending on what the Army ultimately does with its procurement.

      Intervenor Intuitive, however, has filed an opposition to defendant’s
motion to dismiss, urging us to resolve instead its own earlier motion to
dismiss on Section 1500 grounds.3 And, in an attempt to get ahead of the


3
 We do not mean to minimize the weight of Intuitive’s Section 1500 motion.
Section 1500 has a ruthless and unpredictable effect. As intervenor points out,
even if the two actions seek different relief, this action would be barred if
Sigmatech has pending elsewhere a claim “for or in respect to” the claim here.
See United States v. Tohono O'Odham Nation, 131 S. Ct. 1723, 1728-29
(2011). It would not matter, for purposes of section 1500, that this court’s
jurisdiction over “any alleged violation of statute or regulation in connection
                                                                  (continued...)

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government’s motion to dismiss on mootness grounds, Intuitive urges us first
to examining the merits of Sigmatech’s complaint to determine whether the
matters raised therein have been resolved by the corrective action. It urges the
court to bring the complaint back to life, in other words, before killing it for
a different reason:

       Intuitive is seeking to have Sigmatech’s five alleged violations
       decided on the merits as part of the Court’s ascertaining if the
       agency corrective action is reasonable. . . . Intuitive has a right
       to have the action decided on the merits rather than resolved by
       unilateral, arbitrary action by the Government which results in
       severe harm to Intuitive.

Intuitive’s Opp’n to Def.’s Mot. to Dismiss 19-20. Intuitive therefore urges
the court, along the way toward granting Intuitive’s motion to dismiss for
jurisdictional reasons, first to rule on the merits of the underlying bid protest.

        We decline to do so. Intuitive is intervening in Sigmatech’s action and
Sigmatech has the right to terminate the controversy. The present state of
affairs is that the complaint is moot and Sigmatech has agreed to dismissal.
Unlike the government, which might have the right to object to a what
amounts to a voluntary dismissal, depending on whether it has answered or
counterclaimed, for example, see RCFC 41, intervenors have no such right.
The court is not an open grand jury convened to inquire into all possible
aspects of a procurement. There has to be a controversy, and presently there


3
 (...continued)
with a procurement or proposed procurement,” 28 U.S.C. § 1491 (a)(3) (2012),
is a“a broad grant of jurisdiction because ‘[p]rocurement includes all stages of
the process of acquiring property or services, beginning with the process for
determining a need for property or services and ending with contract
completion and closeout,’ ” Sys. Application & Techs., Inc. v. United States,
691 F.3d 1374, 1381 (Fed.Cir.2012) (quoting Res. Conservation Grp., LLC v.
United States, 597 F.3d 1238, 1244 (Fed. Cir.2010)), or that this court’s
jurisdiction over such matters is exclusive, Distributed Solutions, Inc. v.
United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008) (“§ 1491(b) confers
exclusive jurisdiction upon the Court of Federal Claims over bid protests
against the government”) .



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is not one. If Intuitive wishes to assert a challenge to the agency’s
procurement conduct, it will have to file its own complaint.

       Accordingly, we grant the government’s motion to dismiss on mootness
grounds. All other pending motions are denied as moot. The Clerk is directed
to enter judgment accordingly. No costs.




                                         s/ Eric G. Bruggink
                                         ERIC G. BRUGGINK
                                         Judge




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