             In the United States Court of Federal Claims
                                           No. 19-1022C

                                       (Filed: August 12, 2019)

 THE STATE OF OKLAHOMA, et al.,                 )      Application for a temporary restraining
                                                )      order; motion to dismiss for lack of
               Plaintiffs,                      )      subject matter jurisdiction; 28 U.S.C. §
 and                                            )      1500; the Randolph-Sheppard Act, 20
                                                )      U.S.C. §§ 107-107f; requirements for a
 CANTU SERVICES, INC.,                          )      temporary restraining order
                                                )
               Plaintiff-Intervenor,            )
                                                )
 and                                            )
                                                )
 DAVID ALTSTATT, SR.,                           )
                                                )
               Plaintiff-Intervenor,            )
        v.                                      )
                                                )
 UNITED STATES,                                 )
                                                )
               Defendant,                       )
 and                                            )
                                                )
 MITCHCO INTERNATIONAL, INC.,                   )
                                                )
               Defendant-Intervenor.            )

       Peter A. Nolan, Winstead PC, Austin, Texas, for plaintiffs the State of Oklahoma and the
Oklahoma Department of Rehabilitation Services. Of counsel was Richard Olderbak, Assistant
Attorney General, Oklahoma Office of the Attorney General, Oklahoma City, Oklahoma.

       John C. Dulske, Dykema Gossett, San Antonio, Texas for plaintiff-intervenor Cantu
Services, Inc.

      Casey T. Delaney, Fellers, Snider, Blankenship, Bailey & Tippens, PC, Oklahoma City,
Oklahoma for plaintiff-intervenor David Altstatt, Sr.

        Douglas T. Hoffman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C. for defendant. With him on the briefs
were Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,
Director and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, United
States Department of Justice, Washington, D.C. Of counsel was Major Ronald M. Hermann,
Trial Attorney, United State Army Legal Services Agency, Fort Belvoir, Virginia.
       Alan Grayson, Washington, D.C., for defendant-intervenor Mitchco International, Inc.

                                    OPINION AND ORDER

LETTOW, Senior Judge.

        This case presents a jurisdictional tangle which has to be addressed before considering an
application for a temporary restraining order (“TRO”) filed July 16, 2019, by plaintiffs the State
of Oklahoma and the Oklahoma Department of Rehabilitation Services (collectively “Oklahoma”
or “ODRS” or “the Oklahoma Department”). See Pls.’ Appl. for TRO and Mot. for a Prelim. Inj.
(“Pls.’ Appl.”), ECF No. 6; see also Compl.; Mem. in Supp. of Pls.’ Appl. for TRO & Mot. for
Prelim. Inj. (“Pls.’ Mem.”), ECF No. 7. This is a post-award bid protest, filed by ODRS on July
16, 2019. See Compl. A hearing was held on July 17, 2019, with the court ordering expedited
briefing on jurisdictional aspects underpinning the application. See Scheduling Order (July 17,
2019), ECF No. 16. That briefing has been completed.

         The contract at issue is for food services at the United States Army base at Fort Sill,
Oklahoma. The incumbent contractor has been the Oklahoma Department of Rehabilitation
Services, a “state governmental agency responsible for assisting people whose disabilities create
barriers to employment.” First Am. Compl. ¶ 1. The Oklahoma Department has been acting to
fulfill the contract through Cantu Services, Inc. (“Cantu”), a certified small business incorporated
in Texas, and Mr. David Altstatt, Sr. as the licensed blind manager for the contract. Compl. ¶ 3.
That contract was awarded under the Randolph-Sheppard Act (“RSA”), 20 U.S.C. §§ 107-107f,
and the entwined procedural web relates to jurisdictional requirements of disputes arising under
that Act juxtaposed with this court’s bid protest jurisdiction under the Tucker Act, as amended
by the Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12, 110 Stat.
3870, 3874 (revising 28 U.S.C. § 1491 (b)). Based upon a new solicitation, the Army rejected
ODRS’ bid and awarded the Fort Sill food service contract to Mitchco International, Inc.
(“Mitchco”), an entity not qualified under the Randolph-Sheppard Act.

        Soon after the initial hearing, Cantu Services, Inc. (“Cantu”) and David Altstatt, Sr. filed
separate motions to intervene as plaintiffs. Mots. to Intervene, ECF Nos. 14, 17. As Cantu and
Mr. Altstatt have both been a part of the ODRS Fort Sill service team, the court granted both
motions and allowed the parties to join the litigation as plaintiff-intervenors. See Order Granting
Mot. to Intervene, ECF No. 15; Order Granting Mot. for David Altstatt, Sr. to Intervene as Pl.,
ECF No. 18. Relatedly, Mitchco, the current awardee of the contract, was permitted to intervene
as a defendant. Order Granting Mot. to Intervene, ECF No. 21.

        The government and Mitchco filed responses to the Oklahoma Department’s TRO
application on July 23, 2019, Def.’s Mot. to Dismiss & Resp. to Pl.’s [Appl.] for TRO (Def.’s
Mot.”), ECF No. 25; Mitchco’s Opp’n to Pl.’s Appl. for TRO & Inj. Relief (“Mitchco’s Opp’n”),
ECF No 24, and concurrently the government also moved to dismiss the complaint on
jurisdictional grounds, Def.’s Mot. Mitchco filed a motion to dismiss a day later, on July 24,
2019. Mitchco’s Mot. to Dismiss (“Mitchco’s Mot.”), ECF No. 29. The Oklahoma Department
filed an amended complaint on July 26, 2019, First Am. Compl. (“Am. Compl.”), ECF No. 31,
and plaintiffs filed a response to defendants’ motion to dismiss on July 29, 2019, J. Resp. to


                                                 2
[Def.’s Mot.] & Reply in Supp. TRO (“Pls.’ Resp.”), ECF No 34. A second hearing was held on
July 31, 2019. Hr’g Tr. (July 31, 2019).1

         In its original complaint, the Oklahoma Department raised claims under the Randolph-
Sheppard Act as well as under the Tucker Act, and sought a temporary restraining order
enjoining the award to Mitchco and contract performance “until such time this protest is resolved
and the pending Department of Education arbitration between [ODRS] and the Army has been
completed and an arbitration award has been issued.” Pls.’ Appl. at 4. The reference to
arbitration refers to a request for arbitration made to the United States Department of Education
(“Education Department”) by Oklahoma under the Randolph-Sheppard Act, invoking a remedy
provided under that Act. See Compl. ¶¶ 17, 32. In an amended complaint, The Oklahoma
Department omitted any reliance on the Randolph-Sheppard Act, and it advances four purely bid
protest claims against the government: (1) the price ceiling used in the solicitation resulted in a
“prejudicially unequal” competition, Am. Compl. ¶¶ 46-54; (2) the Army’s evaluation of
Mitchco’s technical proposal was unreasonable and inconsistent with the stated evaluation
criteria, Am. Compl. ¶¶ 55-68; (3) the Army’s evaluation of Mitchco’s price proposal was also
unreasonable and inconsistent with the stated evaluation criteria, Am. Compl. ¶¶ 69-74; and (4)
the Army’s recent decision to proceed with contract performance “confirms” that the Army will
not comply with the Department of Education’s arbitration panel’s decision, Am. Compl. ¶¶ 75-
82.

                                          BACKGROUND

        At the start of 2018, ODRS was the incumbent contractor providing full food services to
Fort Sill, and was in the first of four option years, Am. Compl. ¶ 23. In early 2018, however, the
government informed ODRS that it would not be exercising the contract’s remaining option
years and would instead solicit new bids. Am. Compl. ¶ 24. As there were still three unexpired
option years remaining on the contract, ODRS filed a demand for arbitration with the
Department of Education on April 19, 2018, alleging violations of the Randolph-Sheppard Act.2
Compl. ¶ 17; see also Pl.’s Appl. Ex. 1 at 6-7.3

      Despite ODRS’ arbitration request, the Army released a new solicitation for bids on
August 31, 2019. Am. Compl. ¶ 26. ODRS filed a timely protest with the Government

       1
           Subsequent citations to the hearing on July 31, 2019, will omit the date.
       2
        The Randolph-Sheppard Act, 20 U.S.C. §§ 107-107f, mandates that special priority be
given to blind persons who bid for contracts to provide vending facilities services on federal
property. See Kentucky, Educ. Cabinet, Dept. for the Blind v. United States, 424 F.3d 1222,
1223-24 (Fed. Cir. 2005); see also 20 U.S.C. § 107(b). If dissatisfied with the action of an
agency of the United States respecting a failure to comply with this priority, a state licensing
agency may file an arbitral complaint with the Department of Education. See 20 U.S.C. § 107d-
1(b).
       3
         As the exhibits to plaintiff’s application are not paginated, the page number referenced
will refer to the assigned Electronic Case Filing number.


                                                   3
Accountability Office (“GAO”) on September 21, 2018, Am. Compl. ¶ 27; see also State of
Oklahoma, B-416851.2 (Comp. Gen. Oct. 26, 2018), challenging “certain defects and
ambiguities” in the Army’s solicitation, Am. Compl. ¶ 27. In response, the Army announced it
would take corrective action and amend the solicitation. Am. Compl. ¶ 28. GAO then dismissed
the protest. Am. Compl. ¶ 28. At the time, ODRS’ arbitration demand with the Education
Department was still pending.

         The Army then amended the solicitation on November 9, 2018. Am. Compl. ¶ 29. The
amended solicitation stated the Randolph-Sheppard Act applied to the procurement and that any
state licensing agency within the competitive range “will be afforded the priority.” Pl.’s Appl.
Ex. 4-1 at 32. Despite the Army’s corrective action, ODRS found the amended solicitation to be
deficient in several areas. Compl. ¶ 23. On November 29, 2018, ODRS amended its arbitration
demands with the Education Department to “assert several solicitation defects,” specifically the
alleged use of “a misleading and irrational price ceiling capping proposed prices at $111
[million].” Am. Compl. ¶ 31. The Army issued a further amendment to the solicitation on
December 3, 2018, addressing in part ODRS’ claims. Am. Compl. ¶ 29.

        In light of the Army’s continuing the procurement despite ODRS’ protestations to the
Department of Education and GAO, ODRS filed a complaint in the district court for the Western
District of Oklahoma on December 11, 2018, seeking a temporary restraining order and
injunctive relief. Am. Compl. ¶ 32.4 ODRS sought to enjoin the Army from proceeding until the
Department of Education could rule on the pending arbitration request. Am. Compl. ¶ 32. On
December 17, 2018, the district court denied ODRS’ TRO request. Am. Compl. ¶ 33; see also

       4
         Decisions by an arbitration panel convened by the Department of Education under the
Randolph-Sheppard Act are “subject to appeal and review as a final agency action” pursuant to
the Administrative Procedure Act, 5 U.S.C. §§ 701-06. 20 U.S.C. § 107d-2. Unless a particular
court is specified by statute, final agency actions are reviewable by any “court of competent
jurisdiction.” 5 U.S.C. § 703. As the Randolph-Sheppard Act does not delineate a particular
court, any federal district court with personal jurisdiction over the parties may hear a complaint
for review of the arbitration panel’s decision. The jurisdiction of a district court could be
invoked under the federal question statute, 28 U.S.C. § 1331.

        In addition, the arbitration requirements of the Randolph-Sheppard Act are not
jurisdictional in nature. See Kansas ex rel. Kansas Dep’t of Children & Families v.
SourceAmerica, 874 F.3d 1226, 1246-52 (10th Cir. 2017). In other words, although arbitration
may be a mandatory administrative requirement, this does not bar a district court from hearing
certain claims before exhaustion of administrative remedies, i.e., a decision by the arbitration
panel. Id. Both the Tenth and Sixth Circuits have found that district courts have jurisdiction to
enter preliminary injunctive relief despite pending arbitration based on the “irreparable harm
exception.” Id. (“[R]equring [the State to complete] arbitration before challenging the Army’s
decision not to apply the [Randolph-Sheppard Act] would have resulted in . . . an irreparable
harm.”); see also Kentucky v. United States ex rel. Hagel, 759 F.3d 588, 597-601 (6th Cir. 2014).

       Consequently, the district court had jurisdiction over ODRS’ TRO request and
presumably the district court would maintain jurisdiction to review the outcome of the
Department of Education arbitration panel.

                                                4
Order of Dec. 17, 2018, Oklahoma ex rel. Oklahoma Dep’t of Rehabilitation Servs. v. United
States ex rel. Mattis, No. 5:18-cv-1197, ECF No. 10 (W.D. Okla. Dec. 17, 2018) (“District Ct.
Order”). In the order, the district court found that ODRS’ TRO application would not “maintain
the status quo,” but rather would “accomplish its ultimate litigation objective.” District Ct.
Order at 5. The district court found that a TRO “would not be a proper use of the [c]ourt’s
equitable powers as it would be allowing ‘a suit for a traditional injunction in the abstract.’” Id.
(citing Alabama v. United States Army Corps of Eng’rs, 424 F.3d 1117, 1127 (11th Cir. 2005)).

         The district court also found that “ODRS cannot show a substantial likelihood of success
on the merits” of its claim. District Ct. Order at 7. First, the court found ODRS’ argument about
the language of 20 U.S.C. § 107(b) to be unpersuasive. Rather than agreeing with ODRS that the
Army’s declining the third-year option imposed a “limitation” prohibited by 20 U.S.C. § 107(b),
the court found “the general rule for an option seems to apply.” Id. at 8. In that respect, an
option contract allows the holder of the option discretion whether to exercise that option.
Second, the court disagreed with ODRS’ argument, based on 34 C.F.R. § 395.33(a), that the
Army was required to consult with the Education Department before acting adversely to ODRS.
Id. at 8-9 (“ODRS’[] proposed order of actions makes no sense in light of the conditional
language used by the regulation that requires consultation only after an initial judgment by the
Army.”). Third, and finally, the court found that 34 C.F.R. § 395.33(a) did not impose a price
floor, but instead held that “a common-sense reading of the regulation is that the ‘reasonable
cost’ requirement instead imposes a price ceiling.” Id. at 9.

        In response to the district court’s decision, on December 18, 2019, ODRS filed an agency
level protest “objecting to various terms of the amended [s]olicitation,” specifically the use of a
price ceiling. Am. Compl. ¶ 34; see also Def.’s Mot. App. at DA22 (Decl. of Gary L. Stevens,
Contracting Officer). ODRS also filed a timely bid with the Agency the following day. Am.
Compl. ¶ 35.

       ODRS’ agency level protest was denied on January 23, 2019. Am. Compl. ¶ 36; Def.’s
Mot. App. at DA22. On March 14, 2019, the Army informed ODRS that it was being excluded
from the competitive range. Am. Compl. ¶ 37; Def.’s Mot. App. at DA22. According to a letter
dated March 22, 2019, ODRS was excluded due to an “unacceptable rating for . . . past
performance, and an unreasonably high price.” Def.’s Mot. App. at DA22; see also Am. Compl.
¶ 37.

        Following its exclusion from the competitive range, ODRS filed an amended arbitration
demand with the Education Department on March 22, 2019, now seeking to be “placed back into
the competitive range.” Am. Compl. ¶ 38. In addition, on March 25, 2019, ODRS amended its
prior complaint for a TRO and a preliminary injunction with the district court, reciting the
Army’s decision to exclude it from the competitive range and again seeking to prevent the Army
from taking any further action on the procurement. Def.’s Mot. App. at DA22; see also id. at
DA11 (district court’s docket). The Army signed a bridge contract with ODRS the next day,
March 26, 2019, covering a period of performance from April 1, 2019 to May 31, 2019, with a
six-month option period. Am. Compl. ¶ 39. The district court held another hearing on March
28, 2019. Def.’s Mot. App. at DA11.

      On April 12, 2019, the Department of Education agreed to convene an arbitration panel to
hear ODRS’ claims. Def.’s Mot. App. at DA14 (Departmental letter authorizing arbitration).

                                                 5
Specifically, the Department of Education would determine through a three-person ad hoc
arbitration panel if the Army violated the RSA by: (1) not exercising the third option year; and
(2) excluding ODRS from the competitive range. Id. at DA15, DA17.

         On April 16, 2019, the district court again denied ODRS’ renewed application for a TRO.
Order of Apr. 16, 2019, Oklahoma ex rel. Oklahoma Dep’t of Rehabilitation Servs. (“District Ct.
Apr. Order”), ECF No. 23. Unlike the prior order denying ODRS’ application for a TRO,
however, the district court also denied ODRS’ motion for a preliminary injunction. Id. at 14.
The district court first found that “the basis for [the court] to act does not come into play until
after arbitration,” and until arbitration “no ripe cause of action exists upon which an injunctive
relief request can rely.” Id. at 8. Yet, even if the case had been ripe, the district court opined that
“ODRS [] cannot demonstrate a likelihood of success on the merits.” Id. at 9. The district court
determined that many of the arguments in ODRS’ first amended complaint were identical to
those in its original complaint, and thus the district court declined to “re-address[]” these
arguments, as the “[c]ourt’s ruling regarding them remains the same.” Id. at 9 (citing District Ct.
Order).

         ODRS had, however, advanced new arguments in its first amended complaint before the
district court. First, “ODRS argue[d] that a TRO should [be] issue[d] because the Army
improperly excluded ODRS from the competitive range established in the bid process for the
new contract.” District Ct. Apr. Order at 9. But the district court found that ODRS’ “attempted
explanation . . . and []testimony” in support of its argument “were both conclusory and [not]
sufficient for [] ODRS to meet its burden to obtain a TRO.” Id. at 10. Second, ODRS argued
“that it [would] succeed on the merits because the Army was required, and failed, to consult with
the [Education Department] before excluding ODRS from the competitive range in the bid
process.” Id. at 10-11. The district court was similarly unpersuaded by this argument, as
“ODRS provides no authority that this process was intended by the [RSA],” among other
reasons. Id. at 11-12.

        Following the district court’s denial of ODRS’ application for a TRO and a preliminary
injunction, the Army awarded the contract to Mitchco on either April 16 or 17, 2019. See Am.
Compl. ¶ 41 (stating the award date as April 17, 2019); Def.’s Mot. App. at DA23 (stating the
award date as April 16, 2019). But due to a GAO pre-award protest brought by another offeror,
the contract was terminated on the same day and the award to Mitchco was stayed. Def.’s Mot.
App. at DA23. ODRS filed its pre-award protest with GAO on April 26, 2019. Id.; see also
State of Oklahoma, B-416851.5 (Comp. Gen. May 9, 2019). GAO dismissed all pending pre-
award protests, including ODRS’, on May 15, 2019. Def.’s Mot. App. at DA23. The
government then re-awarded the contract to Mitchco on May 16, 2019, id., and ODRS filed a
post-award protest with GAO on May 23, 2019, id.; see also State of Oklahoma, B-416851.6
(Comp. Gen. July 3, 2019).

        Due to the nature of the procurement, the Army “unilaterally” exercised three months
(out of six) of the optional bridge contract on May 24, 2019 and issued a stop work order on May
28. Am. Compl. ¶ 43; Def.’s Mot. App. at DA23. ODRS then filed supplemental protests with
GAO on June 7, 2019, and June 14, 2019. Am. Compl. ¶ 42; see also State of Oklahoma, B-
416851.7 (Comp. Gen. July 3, 2019); State of Oklahoma, B-416851.8 (Comp. Gen. July 3,
2019). ODRS’ first supplemental protest (B-416851.7), filed June 7, 2019, alleged that a second
offeror in the competitive range “should have been found non-responsible.” Def.’s Mot. App. at

                                                  6
DA23. The second supplemental protest (B-416851.8) filed by ODRS alleged that the second
offeror in the competitive range “should have been found unacceptable under the technical
factor,” rather than non-responsible, as ODRS originally averred. Id. at DA24. As a result,
ODRS withdrew its first supplemental protest. Id.

        GAO dismissed ODRS’ post-award protests on July 3, 2019. Def.’s Mot. App. at DA24;
Am. Compl. ¶ 44; see State of Oklahoma, B-416851.8 (Comp. Gen. July 3, 2019). In response,
the Army decided to resume work on the contract, planning to phase-in Mitchco from July 18,
2019, to August 31, 2019. Def.’s Mot. App. at DA24. ODRS was notified of the Army’s phase-
in plans on July 12, 2019 and filed suit in this court on July 17, 2019. Id.; Am. Compl. ¶ 45.

                                STANDARDS FOR DECISION

                       A. Rule 12(b)(1) - Lack of Subject-Matter Jurisdiction

        The Tucker Act, as amended by the Administrative Dispute Resolution Act, provides this
court with jurisdiction over “an action by an interested party objecting to a solicitation by a
[f]ederal agency for bids or proposals for a proposed contract or to a proposed award or the
award of a contract or any violation of a statute regulation in connection with a procurement or a
proposed procurement.” 28 U.S.C. § 1491(b)(1). But for the Randolph-Sheppard Act, this case
jurisdictionally would be a standard post-award bid protest. The separate jurisdictional and
remedial scheme of the Randolph-Sheppard Act, however, introduces considerable complexity.
In that Act, Congress established a particular right and administrative remedy – arbitration at the
Department of Education – to address disputes arising under the Act. See, e.g., 20 U.S.C. §
107d-1; Kentucky, 424 F.3d at 1227-29; Randolph-Sheppard Vendors of America v. Weinberger,
795 F.2d 90, 101-05 (D.C. Cir. 1986). As the Federal Circuit held in Kentucky, when a state
licensing agency such as ODRS “decides to complain of a violation of the RSA . . . it must do so
through the arbitration process,” and if it does “not exhaust that mandatory administrative
remedy, [then] the Court of Federal Claims . . . lack[s] jurisdiction.” Kentucky, 424 F.3d at
1227, 1229. Because ODRS has invoked arbitration under the Randolph-Sheppard Act, and that
arbitral process is still underway, this court’s jurisdiction over ODRS’ post-award bid protest is
at issue.

        ODRS, as plaintiff, must establish jurisdiction by a preponderance of the evidence.
Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Reynolds
v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When ruling on the
government’s motion to dismiss for lack of jurisdiction, the court must “accept as true all
undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor
of the plaintiff.” Id. at 1163 (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)).
When the parties dispute alleged facts bearing upon jurisdiction, the court “may weigh relevant
evidence.” Mildenberger v. United States, 643 F.3d 938, 944 (Fed. Cir. 2011) (quoting Ferreiro
v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003)). “If a court lacks jurisdiction to decide
the merits of a case, dismissal is required as a matter of law.” Gray v. United States, 69 Fed. Cl.
95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868); Thoen v. United
States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC 12(h)(3) (“If the court determines
at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).



                                                 7
                                             ANALYSIS

                                     I.     JURISDICTION

         If the court has jurisdiction over an action, it has authority under Rule 65(b) of the Rules
of the Court of Federal Claims (“RCFC”) to issue a temporary restraining order. The order must
“state the reasons why it issued;” “state its terms specifically;” “and describe in reasonable
detail . . . the act or acts restrained or required.” RCFC 65(d)(1).

                                          A. 28 U.S.C. § 1500

         The government first argues that 28 U.S.C. § 1500 bars the court from hearing the claims
of ODRS. See Def.’s Mot. at 7-9. Section 1500 states, in relevant part, that the Court of Federal
Claims “shall not have jurisdiction of any claim for or in respect to which the plaintiff [] has
pending in any other court any suit or process against the United States.” The Supreme Court
has held that Section 1500 is “a significant jurisdictional limitation . . . [designed] to curtail[]
redundant litigation.” United States v. Tohono O’Odham Nation, 563 U.S. 307, 314 (2011). The
limitation applies where two suits “are based on substantially the same operative facts regardless
of the relief sought in each suit.” Id. at 317. Thus, similarities or the same general subject
matter do no suffice to trigger Section 1500. Rather, the specific facts at issue in the suits are
determinative. See, e.g., id. (“[T]he question is whether [] two suits have sufficient factual
overlap.”); Beberman v. United States, 755 Fed. Appx. 973, 979-80 (Fed. Cir. 2018) (finding
although there were similarities between two cases in two different courts, the “facts [separately
at issue in the two suits] do not provide enough overlap to conclude that the claims arise from
substantially the same operative facts”). The Federal Circuit has articulated two factors to
determine if 28 U.S.C. § 1500 applies: “(1) whether there is an earlier filed ‘suit or process’
pending in another court, and, if so, (2) whether the claims asserted in the earlier-filed case are
‘for or in respect to’ the same claim(s) asserted in the later-filed Court of Federal Claims action.”
Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013) (quoting Trusted Integration, 659
F.3d at 1163-64 (in turn citing Tohono, 563 U.S. at 313-15)).

        According to the government, “ODRS has run afoul of Section 1500” because “it filed a
complaint in the Western District of Oklahoma . . . and, [] the complaint raised the same price-
ceiling issue that ODRS raises before this [c]ourt.” Def.’s Mot. at 9 (citing Pls.’ Mem. at 7, n.1).
Put differently, the government contends that ODRS cannot bring a case in this court because it
has a case that arises from the same operative facts currently pending before the district court,
even if the claims themselves are distinct.

         ODRS relies on its amended complaint, which removed certain claims touching on the
Randolph-Sheppard Act, to counter that its “post-award procurement issues involve different
operative facts and issues” than those at issue in the district court, and Section 1500 “does not
preclude Tucker Act jurisdiction.” Pls.’ Resp. at 3 (some capitalizations removed). It contends
that Counts 2-4 of its amended complaint “were not asserted in the district court action” as “the
operable facts related to and arising from [these counts] did not exist at the time ODRS filed its
district court action.” Id. at 3, 5. As for Count 1, ODRS avers although it initially brought “two
challenges to the [Army’s] inclusion of an arbitrary and misleading price ceiling in the
[s]olcitiation,” it withdrew the challenge that related to the RSA in its first amended complaint.
Id. at 4.

                                                  8
         There is no doubt that there is another “earlier filed ‘suit or process’ pending in another
court.” Brandt, 710 F.3d at 1374. But, ODRS attempts to thread the jurisdictional needle by
partitioning its claims, sending those based on the Randolph-Sheppard Act to the district court
and those based on its post-award protest to this court, claiming that the two have two distinct
factual backgrounds. The court finds that although the question is close, ODRS has succeeded
with regards to Section 1500. The claims before this court would require the production of an
administrative record and for the court to conduct findings of fact based on that record to
determine if violations of federal procurement law occurred. See Bannum, Inc. v. United States,
404 F.3d 1346, 1356 (Fed. Cir. 2005) (specifying that bid protest proceedings “provide for trial
on a paper record, allowing fact-finding by the trial court”). By contrast, the claims before the
district court will require post-arbitral decision proceedings reflecting different evidence to
determine if the Army violated the Randolph-Sheppard Act. See, e.g., United States v.
Mississippi Vocational Rehab. for the Blind, 794 F. Supp. 1344, 1347-49 (S.D. Miss. 1992)
(addressing various findings of fact about the facility, its history of using blind vendors, and
alleged violations of the Randolph-Sheppard Act). Some overlap of underlying facts will be in
inevitable due to the parallel nature of the two suits. But the court does not find this overlap to
be substantial enough to invoke Section 1500.

         Notably, however, ODRS failed to inform the court that although its claims related to the
procurement arose subsequent to the filing of its original December compliant with the district
court, it filed an amended complaint with the district court on March 25, 2019. See First Am.
Compl. & Req. for TRO & Inj. Relief, Oklahoma ex rel. Oklahoma Dep’t for Rehabilitation
Servs., (“District Ct. Am. Compl.”), ECF No. 12. In this amended complaint, ODRS raised
several arguments about the solicitation and the Army’s alleged failures under it. See, e.g.,
District Ct. Am. Compl. ¶¶ 55-74. Even so, each of the issues raised by ODRS in that amended
complaint was firmly rooted in the Randolph-Sheppard Act. For example, ODRS alleged that
the “Army’s failure to follow the stated evaluation criteria in evaluating ODRS[’] proposal
constitutes a violation of the [RSA].” District Cl. Am. Compl. at 15 (some capitalization
removed). Thus, the court’s analysis remains the same.

         Therefore, although the operative facts between the two cases may share some
similarities, the court concludes there is sufficient factual differentiation in the cases for ODRS
to avoid the jurisdictional bar of Section 1500. The claims before this court are rooted in federal
procurement law, while the ones before the district court arise from alleged statutory violations
of the Randolph-Sheppard Act. Compare Am. Compl. at 18 (“The A[rmy]’s evaluation of
Mitchco’s Technical proposal is unreasonable and inconsistent with the stated evaluation
criteria.”) (some capitalization removed), with District Ct. Am. Compl. at 18 (“Failure to
properly consult with the Secretary of Education as required by the RSA and its implementing
regulations” was a clear and prejudicial violation of the RSA). In sum, Section 1500 does not
bar this court from exercising jurisdiction over ODRS’ post-award protest claims, claims that are
otherwise only proper if raised before this court.

                         B. The Randolph-Sheppard Act and Preemption

       The government also contends that the court lacks jurisdiction because of the currently
pending arbitration proceedings under the Randolph-Sheppard Act. See Def.’s Mot. at 10-11.
According to the government, the Federal Circuit requires a State Licensing Agency such as
ODRS to go through the mandatory arbitration process before bringing a claim in this court.

                                                  9
Def.’s Mot. at 10 (quoting Kentucky, 424 F.3d at 1227). Until that process is complete, argues
the government, this court lacks jurisdiction and must dismiss the post-award protest action. Id.

        ODRS counters that “the Federal Circuit envisions dual, yet mutually exclusive paths, for
an aggrieved [State Licensing Agency] to pursue depending on the complaint.” Pls.’ Resp. at 8.
Plaintiffs argue that they “have a valid post-award bid protest outside the jurisdiction of an
arbitration panel,” id. at 9, and that it would be “illogical to suggest that the [Eduction
Department] . . . could oversee this post-award bid protest.” Id. at 9-10. And indeed, ODRS’
first amended complaint scours away any reliance on the Randolph-Sheppard Act, see, e.g., Am.
Compl. ¶¶ 74-82, and instead strains to fit the alleged facts to claims based on federal
procurement law. Specifically, ODRS contends that Counts 2 and 3 of its amended complaint
“represent traditional post-award bid protest issues that [the court] routinely considers.” Pls.’
Resp. at 17.5 As for Count 1 of the amended complaint, ODRS claims it withdrew the “protest
issue challenging [the Army’s] failure to include all performance costs within the price ceiling,”
leaving only the “purely procurement challenge (unequal competition) to the price ceiling.” Id.6

       5
         Count 2 of ODRS’ amended complaint alleges that the Army’s evaluation of Mitchco’s
technical proposal is “unreasonable and inconsistent with the stated evaluation criteria.” Am.
Compl. at 18 (capitalizations removed). Specifically, ODRS alleges that the Army failed to
properly evaluate Mitchco’s staffing plan, which according to ODRS “is unable to meet even the
most basic requirements,” Am. Compl. ¶ 57, because its staffing plan “failed to provide an
adequate number of [full-time employees] to perform the work,” Am. Compl. ¶ 62. ODRS
claims it knows the staffing numbers are inadequate because it was the incumbent contractor for
more than 20 twenty years and “fully understands the staffing necessary.” Am. Compl. ¶ 61.

        In addition, ODRS claims the Army erred in evaluating Mitchco’s key personnel and
qualifications as acceptable. Am. Compl. ¶¶ 64-68. According to ODRS, “Mitchco lacks the
requisite corporate experience to employ, train, and retain a Project Manager, Dining Facility
Manager(s), Quality/Safety Manager, and supervisory personnel with the [required]
qualifications.” Am. Compl. ¶ 66.

       Similarly to Count 2, Count 3 of ODRS’ amended complaint alleges that the Army’s
evaluation of Mitchco’s price proposal is “unreasonable and inconsistent with the stated
evaluation criteria.” Am. Compl. at 22 (capitalizations removed). ODRS avers that because
Mitchco’s technical proposal failed to include enough full-time employees to complete the
contract, its “price is equally defective and incomplete.” Am. Compl. ¶ 72. ODRS also argues
that Mitchco failed to price in the cost of supplies over the life of the contract, making its price
“unreasonable and incomplete.” Am. Compl. ¶ 73.
       6
        Count 1 of ODRS’ amended complaint alleges that the $111 million price ceiling in the
Army’s solicitation resulted in a “competition which was prejudicially unequal.” Am. Compl. at
15 (capitalizations removed). According to ODRS, the $111 million price ceiling is
unreasonable, as the current contract (inclusive of all four option years and the base year) “is
well over the $111 million price ceiling,” Am. Compl. ¶ 48, and because the new contract
“requires the performance of full food services in two more dining facilities . . . [and] requires
the awardee to purchase supplies.” Am. Compl. ¶ 49.


                                                 10
And for Count 4, ODRS contends that it “represents an independent post-award protest of the
contracting agency’s award decision.,” id.,7 because it is “protest[ing] the contracting agency’s
award to Mitchco and its decision to move forward with contract performance,” id. ORDS
alternatively argues that waiver of the exhaustion requirement would also apply in this case. Id.
at 12-15.

        The Randolph-Sheppard Act, 20 U.S.C. §§ 107-107f, was first enacted in 1936 and
“established a program to promote the interests of the blind by authorizing persons to operate
vending facilities in federal buildings with the goal of expanding economic opportunities
available to the blind community.” Kentucky, Educ. Cabinet, Dep’t for the Blind v. United
States, 62 Fed. Cl. 445, 448 (2004), aff’d, 424 F.3d 1222 (citing 20 U.S.C. § 107(a)). To
accomplish this goal, the Randolph-Sheppard Act, as amended in 1974, provides blind vendors a
“priority [] in operating vending facilities” on federal property. Id.

       The Department of Education is the agency charged with overseeing the Randolph-
Sheppard Act and prescribing regulations. Kentucky, 62 Fed. Cl. at 447-48 (citing 20 U.S.C. §§
107, 107a). But State Licensing Agencies such as ODRS are the ones “responsible for
implementing the programs on a local level.” Id. at 448. The state agencies “license individual
blind vendors within their respective states, and manage the procurement process on behalf of
the vendors.” Id. In addition, the state agencies “monitor[] a contracting agency’s compliance
with the RSA and challeng[e] any non-compliance.” Id. (citing 20 U.S.C. § 107a). Non-
compliance is challenged first by arbitration, where the Department of Education convenes an ad
hoc arbitration panel pursuant to 20 U.S.C. § 107d-2. Id. at 456; see also 20 U.S.C. § 107d-2.
The panel’s decisions are “‘subject to appeal and review as a final agency action.’” Id. (quoting
20 U.S.C. § 107d-2) (emphasis removed).


        Further, ODRS contends that it was the only offeror who received information (obtained
from district court pleadings related to ODRS’ first TRO application) that the Army would not
prohibit or penalize bids that exceeded the price ceiling. Am. Compl. ¶¶ 50-51. ODRS alleges
that because this information was not disseminated to other offerors during the bid process, it
resulted in “below cost offers.” Am. Compl. ¶ 52. In other words, ODRS’ alleged knowledge
that the price ceiling was a paper tiger prejudiced it, as it felt free to bid over the $111 million
ceiling, while other bidders (believing the price ceiling to be a hard cap) offered “unfeasible and
impossible” proposals. Am. Compl. ¶ 53. Thus, ODRS argues that “the resulting evaluation and
award decision was arbitrary, capricious, irrational, and inconsistent with procurement law.”
Am. Compl. ¶ 54.
       7
          Count 4 of ODRS’ amended complaint alleges that the Army’s decision to proceed with
contract performance despite the pending arbitration indicates that it will not comply with the
panel’s decision. Am. Compl. at 24. And, assuming that ODRS succeeds at arbitration, the
Army’s alleged anticipatory failure to implement arbitral panel’s eventual decision would
implicate this court’s jurisdiction under 28 U.S.C. § 1491(b). Am. Compl. ¶¶ 77-78. Put
differently, ODRS contends that although review of the arbitral panel’s decision may lie with the
district court, review of the Army’s actions regarding that decision implicate this court’s
jurisdiction. Thus, according to ODRS, the Army’s decision to move forward with contract
performance [] is arbitrary, irrational, and inconsistent with procurement law.” Am. Compl. ¶
82.

                                                11
        The case law is unequivocal that “the Court of Federal Claims lacks Tucker Act
jurisdiction whenever a plaintiff alleges that a federal agency violated the Randolph-Sheppard
Act or its attendant regulations and the plaintiff has yet to arbitrate those claims.” Kansas ex rel.
Kansas Dep’t for Children & Families, 874 F.3d at 1243 (citing Kentucky, 424 F.3d at 1229)
(holding that “for claims brought under the RSA, arbitration is mandatory”); Colorado Dept. of
Human Servs. v. United States, 74 Fed. Cl. 339, 349 (2006) (“[T]he specific and comprehensive
scheme provided by Congress preempts any Tucker Act jurisdiction that might otherwise exist.”)
(emphasis added)); see also Kansas ex rel. Kansas Dep’t for Children & Families v. United
States ex rel. Carter, 192 F. Supp. 3d 1184, 1194 (D. Kan. 2016) (finding that “[i]n Kentucky[,]
the Federal Circuit concluded that a dispute alleging a[] [Randolph-Sheppard Act] violation must
be arbitrated and the Court of Federal Claims lacks Tucker Act jurisdiction . . . even if the
dispute, by its terms, also fits within § 1491(b) as a procurement protest.”).

        This case does not fit within that established pattern. It is true that ODRS originally
alleged violations of the Randolph-Sheppard Act and requested injunctive relief pending
arbitration with the Department of Education. This action does preclude the court from hearing
any claims based on the Randolph-Sheppard Act. But those claims are before the Department of
Education and potentially the district court after an arbitral decision. See, e.g., District Ct. Am.
Compl. ¶¶ 51-83; see also Def.’s Mot. App. at DA14-17. The claims before this court are based
in federal procurement law. See, e.g., Am. Compl. ¶¶ 55-82.

       As demonstrated by this case, the Department of Education’s arbitration process is not a
swift moving one. Bid protests, by contrast, move at an expedited pace. See 28 U.S.C.
1491(b)(3) (stating “the need for expeditious resolution of the action” in bid protests). Requiring
Randolph-Sheppard Act claims to percolate through the system before a State Licensing Agency
could bring an unrelated bid protest claim could be self-defeating, where a procurement could be
substantially underway or even completed before an arbitral award.

         In short, the government is correct in arguing that this court cannot hear claims related to
the Randolph-Sheppard Act while arbitration is pending before the Department of Education.
Yet, ODRS is correct that the claims in its revised complaint in this court do not implicate the
Randolph-Sheppard Act. Consequently, the court finds it has jurisdiction to hear ODRS’ post-
award protest claims that are unrelated to its Randolph-Sheppard Act claims pending before the
arbitral panel, and then potentially before the district court. As the Federal Circuit stated in
Kentucky, “for claims relating to procurement disputes not based on the RSA and its regulations,
these would be no reason to bypass conventional bid protest and federal contract remedies in
favor of arbitration by panels convened by the Secretary of Education.” Kentucky, 424 F.3d at
1226.

                        II.    TEMPORARY RESTRAINING ORDER

        Having found jurisdiction, ODRS’ application for a temporary restraining order is at
issue. A temporary restraining order is an “‘extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” GEO
Grp., Inc. v. United States, 100 Fed. Cl. 223, 226 (2011) (quoting Mazurek v. Armstrong, 520
U.S. 968, 972 (1997)) (additional citations omitted). To obtain this “extraordinary and drastic
remedy,” a party must show: “[1] it will suffer irreparable injury unless the order issues; [2] the
threatened injury to it outweighs any damage to the opposing party; [3] the temporary restraining

                                                 12
order, if issued, will not be adverse to the public interest; [4] a substantial likelihood exists that
[the party] will prevail on the merits.” Id. (citing Software Testing Solutions, Inc. v. United
States, 58 Fed. Cl. 533, 536 (2003)) (additional citations omitted); see also Safeguard Base
Operations, LLC v. United States, 140 Fed. Cl. 670, 686 (2018) (citing Trebro Mfg. Inc. v.
Firefly Equip LLC, 748, F.3d 1159, 1165 (Fed. Cir. 2014)).

         The court finds factor 1 favors neither party. An irreparable injury, by definition, is one
that cannot be remedied. “When assessing irreparable injury, ‘[t]he relevant inquiry in weighing
this factor is whether plaintiff has an adequate remedy in the absence of an injunction.’” GEO
Grp., 100 Fed. Cl. at 228 (quoting Magellen Corp. v. United States, 27 Fed. Cl. 446, 447 (1993))
(additional citation omitted). As stated, ODRS currently has arbitration pending with the
Department of Education, a lawsuit based on alleged violations of the Randolph-Sheppard Act
with the district court, and bid protest claims before this court. ODRS therefore has other irons
in the fire to obtain relief. But ODRS does not have another remedy that would provide the
immediate injunctive relief it seeks. And, ODRS claims that denying injunctive relief will result
in an irreparable injury, as the teams assembled by the plaintiff-intervenors will be “destroy[ed].”
Hr’g Tr. at 33:9. On the other hand, contract performance by Mitchco is already in active
transition. Consequently, the court finds this factor to be neutral.

        The court also finds factor 2 to weigh in favor of neither party. Factor 2 requires
balancing the hardships imposed on the plaintiffs against “the harm to the government and the
intervening defendant.” GEO Grp., 100 Fed. Cl. at 229 (quoting Reilly’s Wholesale Produce v.
United States, 73 Fed. Cl. 705, 715 (2006)) (additional citations omitted). On one hand, a
genuine question of fact exists regarding the quality of services rendered by ODRS and the
plaintiff-intervenors to the Army at Fort Sill. Requiring the Army to continue to use the services
of ODRS could cause it harm due to the potential lower quality of service. In addition, Mitchco
has begun the transition to be the service provider. This process is nearing completion and
reversing the transition would likely cause disruption to both Mitchco and the Army. See Def.’s
Mot. App. at DA24.

        Nonetheless, ODRS claims that it will suffer great harm without injunctive relief.
Counsel for Mr. Altstatt stated during the hearing that denying injunctive relief will severely
impact Mr. Altstatt’s livelihood, and that his and Cantu’s teams “will be destroyed.” Hr’g Tr. at
33:9-15. In other words, even if ODRS were to ultimately prevail and be re-awarded the
contract, it claims the teams currently in place will be scattered and not replicable. Thus, the
court finds the balance of harm to be equally split between the two parties and factor 2 to be
neutral.

        Unlike factors 1 and 2, factor 3 weighs against plaintiffs. Although “the public interest in
honest, open, and fair competition in the procurement process is compromised whenever an
agency abuses its discretion in evaluating a contractor’s bid,” GEO Grp., 100 Fed. Cl. at 230
(quoting Software Testing Solutions, 58 Fed. Cl. at 538) (additional citations omitted), “[i]t is
equally clear [] that a procuring agency should be able to conduct procurements without
excessive infringement upon the agency’s discretion,” id. (citing Aero Corp. S.A. v. United
States, 38 Fed. Cl. 237, 242 (1997)). Here, unnecessarily disrupting the food services provided
to the Army would be against the public interest. Indeed, there is a strong public interest in
ensuring that the men and women who serve in the military are properly and adequately fed.
Any interruption to food services would be costly to the Army and detrimental to the overall

                                                   13
morale of the units stationed at Fort Sill. This, in turn, would reduce operational effectiveness
and harm the public interest, which outweighs any current fear regarding the fairness of an
agency’s procurement.

         Finally, for factor 4, the court is not convinced that ODRS can show a substantial
likelihood that it will prevail on the merits. The district court twice found ODRS’ arguments in
favor of temporary injunctive relief to be unpersuasive. In this court, “[i]t is the burden of the
aggrieved bidder to demonstrate that the challenged agency decision is either irrational or
involved a clear violation of applicable statutes and regulations.” GEO Grp., 100 Fed. Cl. at
226-27 (citing Seattle Sec. Servs., Inc. v. United States, 45 Fed. Cl. 560, 566 (2000)) (additional
citations omitted). This is a high burden, as “‘to prevail in a protest the protestor must show not
only a significant error in the procurement process, but also that the error prejudiced it.’” Id.
(quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996)). Here, as in the
district court, ODRS has not shown a substantial likelihood of prevailing on the merits. ODRS is
challenging areas of significant agency discretion, such as technical evaluations. See, e.g., Am.
Compl. ¶¶ 46-74. ODRS’ complaint sets out numerous conclusory allegations, such as that
“Mitchco submitted a staffing plan which failed to provide an adequate number of [full-time
employees] to perform the work,” Am. Compl. ¶ 62, that do not allow the court to find that
injunctive relief is warranted.

       In sum, the court finds that two factors are equivocal between the parties and two factors
weigh against plaintiffs. According, the court will not grant ODRS preliminary injunctive relief.

                                             CONCLUSION

        For the reasons set forth above, defendants’ motions to dismiss for lack of subject matter
jurisdiction pursuant to RCFC 12(b)(1) are DENIED. Correspondingly, plaintiffs’ application
for a temporary restraining order is DENIED, as is plaintiffs’ motion for a preliminary
injunction.

        The parties are requested to file a joint status report on or before August 23, 2019, setting
out a plan and proposed schedule for further proceedings.

       It is so ORDERED.
                                                   s/ Charles F. Lettow
                                                   Charles F. Lettow
                                                   Senior Judge




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