      In the United States Court of Federal Claims
                                   No. 16-1481C
                               (Filed April 20, 2017)
                             NOT FOR PUBLICATION

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CARGO TRANSPORT SYSTEMS *
COMPANY,                       *
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         Plaintiff,            *
    v.                         *
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THE UNITED STATES,             *
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         Defendant,            *
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    and                        *
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KGL TRANSPORTATION             *
COMPANY K.S.C.C.,              *
                               *
         Defendant-intervenor. *
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                               *
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                                      ORDER

       For the reasons stated on the record during the April 18, 2017 status
conference, the cross-motions for judgment on the administrative record of
defendant and defendant-intervenor are GRANTED, and plaintiff ’s motions for
judgment on the administrative record and for leave to file a supplemental
complaint are DENIED. In sum, the Court found that plaintiff waived any
challenge to the rationality of the initial, negative responsibility determination by
not raising it prior to either the submission of revised proposals or the award
decision. See Comint Sys. Corp. v. United States, 700 F.3d 1377, 1381–82 (Fed. Cir.
2012); Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1314 (Fed. Cir.
2007); NVE, Inc. v. United States, 121 Fed. Cl. 169, 173, 179 (2015). Under the
Lowest Price Technically Acceptable procurement scheme followed by the agency,
plaintiff should have known that the negative responsibility determination was all
that stood between it and the contract award, making the case indistinguishable
from those recognizing that a challenge to a procurement decision ripens when the
decision forces an awardee or proposed awardee to compete a second time for the
award. See, e.g., Sys. Appl’n & Techs., Inc. v. United States, 691 F.3d 1374, 1382-85
(Fed. Cir. 2012). The Court denied the motion for leave to file a supplemental
complaint on the ground of futility, as it was not reasonable to infer from any of the
documents submitted by plaintiff that defendant-intervenor made material
misrepresentations in its response to an evaluation notice. See Kemin Foods, L.C. v.
Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1354–55 (Fed. Cir.
2006).

      The Clerk shall enter judgment for defendant and defendant-intervenor.

IT IS SO ORDERED.


                                       s/ Victor J. Wolski
                                       VICTOR J. WOLSKI
                                       Judge




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