                     United States Court of Federal Claims
                                         Nos. 15-135 C
                                              15-136 C
                               (Filed Under Seal April 10, 2015)
                                    Reissued April 14, 2015 1

    CADDELL CONSTRUCTION                          )
    CO., LLC,                                     )   Pre-Award    Protest; Jurisdiction;
                    Plaintiff,                    )   Competition in Contracting Act;
              v.                                  )   Override of Stay in Effect During
                                                  )   Pending GAO Protest.
    THE UNITED STATES,                            )
                                  Defendant.      )

      Dirk Haire, Fox Rothschild LLP, Washington, DC, for plaintiff. Alexa
Santora and Sonia Tabriz, of counsel.

      Albert S. Iarossi, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., with whom appeared Benjamin C. Mizer,
Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director and Allison
Kidd-Miller, Assistant Director.
                                     ORDER

          Merow, Senior Judge


      Plaintiff filed two bid protests on February 10, 2015. The cases have been
consolidated for consideration of preliminary matters, including the government’s
challenge to this court’s jurisdiction. See Doc. 11. 2 On April 1, 2015, the parties
argued their positions on the plaintiff’s motions for judgment on the administrative
record, see Doc. 16, and the government’s motions to dismiss for lack of jurisdiction,
see Doc. 19.


1
    Reissued without redactions pursuant to defendant’s notice, doc. 25, filed April 14, 2015.
2
  The relevant filings in this case are virtually identical. For ease of reference, the court will cite
to the documents filed in Case No. 1:15-cv-135.
I.    BACKGROUND

       Plaintiff is one of several bidders for a contract to construct embassy facilities
in Maputo, Mozambique. See Doc. 1, ¶ 10. Prior to filing the protest action in this
court, plaintiff filed two protests before the GAO, challenging the pre-qualification
of two of its competitors for the contract award. See Doc. 16-1 at 5. The GAO’s
decisions are expected on or about April 20, 2015, see Doc. 16-1 at 7, and the merits
of the GAO protests are not before this court. The plaintiff filed these actions
alleging that the government violated its duty to stay the contracting process
pursuant to the Competition in Contracting Act (“CICA”) while the GAO protests
are pending, and that its failure to stay the contracting process amounted to an
unlawful override. See 31 U.S.C. 3553(c)(1)-(2) (prohibiting agencies from
awarding contracts during the pendency of a GAO protest unless certain
requirements are met).

      The complaint states:

      29.    The Agency Report admits that the Protest “triggers the stay on
             contract award provided by 31 U.S.C. 3553(c)(1)” but further
             provides that the solicitation “will continue as scheduled without
             regard to the protest.”

      30.    Although unclear, it appears that this constitutes OBO’s
             [Overseas Buildings Operations’] decision to override the
             mandatory CICA stay.

      See Doc. 1.

     The government admits that it has continued to evaluate proposals despite the
GAO protests, but denies that it has taken any action that violates CICA or that its
conduct constitutes an override. See Doc. 19 at 11.

II.   ANALYSIS

       As a threshold issue, this court must determine whether it has jurisdiction to
adjudicate plaintiff’s claims. Plaintiff bears the burden to establish subject matter
jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Here, the government challenges
the factual basis for the court’s jurisdiction, as opposed to the facial sufficiency of
the plaintiff’s jurisdictional allegations. See Doc. 19 at 13, 16. As such, the court
                                           2
will take as true only the uncontroverted factual allegations, and it is not restricted
to the face of the complaint in making its determination. See Reynolds, 846 at 747;
see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993).
If the court does not have jurisdiction, it must dismiss the complaint. See RCFC
12(h)(3).

       Pursuant to 28 U.S.C. § 1491(b)(1), the Court of Federal Claims has
jurisdiction:

      to render judgment on an action by an interested party objecting to a
      solicitation by a Federal agency for bids or proposals for a proposed
      contract or to a proposed award or the award of a contract or any alleged
      violation of statute or regulation in connection with a procurement or a
      proposed procurement.

The Federal Circuit has held, as both parties acknowledge, that this grant of
jurisdiction covers claims that the government violated the CICA override provision,
31 U.S.C. § 3553(c)(2). See RAMCOR Servs. Group, Inc. v. United States, 185 F.3d
1286, 1289-90 (Fed. Cir. 1999). See also Doc. 1, ¶ 4; Doc. 19 at 9-10. The court,
therefore, must decide whether the plaintiff has sufficiently alleged a CICA violation
such that it has jurisdiction in this case.

      The sections of CICA relevant to this analysis are as follows:

      (c)(1) Except as provided in paragraph (2) of this subsection, a contract
      may not be awarded in any procurement after the Federal agency has
      received notice of a protest with respect to such procurement from the
      Comptroller General and while the protest is pending.

      (2) The head of the procuring activity responsible for award of a
      contract may authorize the award of the contract (notwithstanding a
      protest of which the Federal agency has notice under this section)--

             (A) upon a written finding that urgent and compelling
             circumstances which significantly affect interests of the United
             States will not permit waiting for the decision of the Comptroller
             General under this subchapter; and

             (B) after the Comptroller General is advised of that finding.


                                          3
31 U.S.C.A. § 3553(c)(1) and (2).3

        Plaintiff alleges that the court has jurisdiction based on its claim that the
government violated 31 U.S.C. § 3553(c)(2). See Doc. 1, ¶ 4. Specifically, plaintiff
claims that the government acknowledged that a stay was in place, but announced
its intention to continue with solicitation activities. Plaintiff cites to a report that the
government issued on February 9, 2015, admitting that the GAO protest “triggers
the stay on the contract award provided by 31 U.S.C. 3553(c)(1),” and stating that
the solicitation “will continue as scheduled without regard to the protest.” Doc. 1, ¶
29; see also Doc. 16-1 at 7 (citing AR at 118, 129). According to the plaintiff, the
government’s statement “constitutes . . . [a] decision to override the mandatory
CICA stay,” Doc. 1, ¶ 30, but without the proper documentation and justification,
see id. ¶¶ 35-44.

       In response, the government argues that this court does not have jurisdiction
because the agency has not violated CICA’s stay or override provisions. The
government insists that no contract has been awarded, the agency has incurred no
obligations, no override has been instituted, and the agency has notified the GAO
that the stay remains in place. See Doc. 19 at 11. As a basis for these assertions, the
government submitted the Declaration of Department of State contracting officer
Jimmy Lai. See id. at Ex. A. Plaintiff has offered no additional evidence to counter
Mr. Lai’s declaration.

       Plaintiff’s argument conflates the concepts of violating the CICA stay and
instituting an override. Its position is predicated on its contention that the
government violated the stay by continuing with the solicitation process after
plaintiff filed its GAO protests. Plaintiff claims that violating the stay essentially
amounts to a de facto override. See Doc. 16-1 at 9. The court is not entirely
convinced of this logic, but because plaintiff has failed to allege sufficient facts to
support its claim that the government violated the stay, the court need not decide
whether a violation of the stay necessarily amounts to an override.

      CICA states that “a contract may not be awarded” while a GAO protest is
pending. 31 U.S.C. § 3553(c)(1). Therefore, to support this court’s jurisdiction,
even under its own theory, plaintiff must allege that a contract has been awarded. In
3
 The court notes that although this case is pre-award, the plaintiff repeatedly cites to 31 U.S.C. §
3553(d) in the complaint, a subsection of the statute that applies to post-award contract
performance. Because both parties have made their arguments under § 3553(c), and because
plaintiff alleged this court’s jurisdiction under § 3553(c), the court will treat its references to §
3553(d) as a typographical error, and address the merits of the argument.
                                                 4
order for a contract to be deemed awarded, the contracting officer must have signed
and mailed the award letter. See Stebel v. United States, 108 Ct. Cl. 35, 44 (1947).
And a binding contract does not exist until the letter is delivered. See Rhode Island
Tool Co. v. United States, 130 Ct Cl. 698, 703 (1955). Plaintiff does not allege either
that the government has issued an award letter here, or that one has been delivered
to any of the bidders. Instead, it advocates for a very broad reading of the award
prohibition, and claims the agency should be required to “declin[e] to take further
action which will moot GAO’s ability to render recommendations.” See Doc. 16-1
at 12. Under this reasoning, plaintiff claims, the agency’s continued solicitation
activities should be considered a violation of the stay.

       In its briefs, though not in the complaint, plaintiff repeatedly expresses its
belief that the agency intends to award the contract before GAO issues its decision.
See e.g., Doc. 16-1 at 9 (“OBO’s decision to rank offerors, select an awardee, and
move to dismiss Caddell’s GAO Protests as academic based on OBO’s intent to
award constitutes a de facto override decision.”); id. at 9 n.5 (“What Caddell objects
to, and what violates CICA, is OBO’s intention to use its selection of an offeror as
the intended awardee to convince GAO to dismiss the protests as academic.”); id.
at 13 (“OBO intends to use its selection of an apparently successful offferor [sic] to
argue that GAO lacks the ability to recommend relief.); id. at 13 (“OBO does not
intend to ‘wait[] for the decision of the Comptroller General.’”); id. at 13 (“OBO
intends to use its award decision to avoid a decision of the Comptroller General.”)
(emphasis in original); id. at 13 (“Because OBO intends to take action to moot the
GAO Protests and disturb the status quo, OBO effectively overrides the automatic
CICA stay.”).

       Perhaps an intention to award the contract would be sufficient to establish
jurisdiction under some set of circumstances, but plaintiff has not alleged any facts
to support its allegation of the government’s intent beyond the agency’s statement
that the solicitation would continue. Relying solely on this statement is problematic,
because plaintiff has not demonstrated that continuing solicitation activities is the
same as issuing an award letter. The court views these as distinct steps in the
contracting process, and § 3553(c)(1) is unambiguous in prohibiting only the final
step of awarding a contract. Furthermore, reliance on this statement is made all the
more awkward for plaintiff’s position, since plaintiff has conceded that it “does not
necessarily object to OBO’s continued review of offerors’ qualifications.” Doc. 16-
1 at 9 n.5. Particularly considering this comment, plaintiff has failed to articulate
exactly what conduct it believes is a violation of the stay.



                                          5
       When pressed at oral argument to identify the specific conduct to which
plaintiff objects, plaintiff’s counsel stated that the contracting officer notified the
GAO that its source selection process was complete on March 12, 2015, more than
one month after plaintiff filed the complaints at issue. See Oral Argument Recording
at 2:01PM, 2:07-2:08PM, 2:42PM, 2:46PM. She admitted, however, that this
notification is not part of the record. See id. at 2:07PM. The government’s counsel
denied any knowledge of the notification, see id. at 2:21PM, and notes that nothing
in the record before the court shows that an awardee has been selected, see id. at
2:44PM. Because it is neither part of the record nor has it been filed with the court,
regardless of its content, this alleged notification cannot be considered as evidence
in this case.

       Plaintiff’s theory that this court has jurisdiction because the government has
instituted a de facto override is predicated on its allegation that the government
violated the CICA stay. The court finds that the continued evaluation of proposals,
the only violative conduct alleged by plaintiff, is not the same as awarding a contract,
the only conduct that is specifically prohibited by the CICA stay provision. As such,
plaintiff has failed to establish that this court has subject matter jurisdiction.

III.   CONCLUSION

    For the foregoing reasons, the government’s motions to dismiss are
GRANTED, and plaintiff’s motions for judgment on the administrative record are
DENIED.

       SO ORDERED.



                                               s/James F. Merow
                                               James F. Merow
                                               Senior Judge




                                           6
