             In the United States Court of Federal Claims
                                         No. 16-101C

                                     (Filed: March 27, 2017)

                                             )
 Q INTEGRATED COMPANIES, LLC,                )      Post-award bid protest; motion for relief
                                             )      from judgment; RCFC 60(b); post-
                       Plaintiff,            )      decisional change in circumstances;
                                             )      standing; application of Tinton Falls
        v.                                   )
                                             )
 UNITED STATES,                              )
                                             )
                       Defendant,            )
                                             )
        and                                  )
                                             )
 SAGE ACQUISITIONS, LLC,                     )
                                             )
               Defendant-Intervenor.         )
                                             )

       James C. Fontana, Dempsey Fontana, PLLC, Tysons Corner, Virginia for plaintiff. With
him on the briefs were David B. Dempsey and Jeffry R. Cook, Dempsey Fontana, PLLC, Tysons
Corner, Virginia.

        Heidi L. Osterhout, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C. for defendant. With her on the briefs were Chad
A. Readler, Acting Assistant Attorney General, Civil Division, Benjamin C. Mizer, former
Principal Deputy Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,
Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Rosamond Z.
Xiang, Trial Attorney, United States Department of Housing & Urban Development,
Washington, D.C.

       Richard W. Oehler, Perkins Coie LLP, Seattle, Washington. for defendant-intervenor.
With him on the briefs was Andrew J. Victor, Perkins Coie LLP, Seattle, Washington.

                                    OPINION AND ORDER

LETTOW, Judge.

       The court issued its decision on the administrative record in this post-award bid protest
on April 20, 2016. See Q Integrated Cos., LLC v. United States, 126 Fed. Cl. 124 (2016), appeal
dismissed, No. 2016-1991 (Fed. Cir. June 2, 2016). In the procurement at issue, the United
States Department of Housing and Urban Development (“HUD” or “government”) solicited and
awarded contracts for services in marketing and selling single-family homes acquired by HUD
after the owners defaulted on mortgages supported by the Federal Housing Administration. Id. at
127. Plaintiff (“Q Integrated”) challenged awards by HUD of contracts to Sage Acquisitions,
LLC (“Sage”) for three geographic areas designated by HUD as Areas 7A, 1D, and 5P. Id. Q
Integrated’s motion for judgment on the administrative record was granted in part and denied in
part, and the government’s and defendant-intervenor Sage’s motions for judgment on the
administrative record were granted in part and denied in part. Id. at 148. Judgment was entered
on April 21, 2016. The court left the awards to Sage undisturbed for the base period and the first
option year, but set aside and enjoined the awards beyond the end of the first option period on
May 31, 2017. Id. To obtain services after that date, the court specified that HUD had to either
(1) “allow Q Integrated to revise its final proposal and then . . . conduct a new evaluation [of
offers], or (2) conduct a new solicitation for the pertinent services.” Id.

        On June 22, 2016, the government filed a motion for relief from the judgment pursuant to
Rules 60(b)(2), (b)(5), and (b)(6) of the Rules of the Court of Federal Claims (“RCFC”). Shortly
thereafter, at the request of the parties, briefing on that motion was suspended for months while
the Small Business Administration (“SBA”) considered size determinations of entities competing
for contractual awards. Briefing was renewed when SBA decided that a number of offerors,
including Q Integrated and Sage, were “other than small” in connection with competition for
contracts for HUD areas other than the areas at issue in this case. At that point, the government
contended that Q Integrated no longer had standing and that the judgment should be vacated.
Defendant-intervenor Sage supports the government’s motion, and Q Integrated opposes it.

       For the reasons stated, the government’s motion for relief from judgment is denied.

                                             FACTS

                                    A. The HUD Procurement

        HUD works with private contractors to “manage and market its inventory of single-
family homes obtained as a result of mortgage defaults.” Q Integrated, 126 Fed. Cl. at 128.
After a decade of using single contractors for administrative, program support, management, and
marketing services for this program, in 2009 HUD divided the contracts into Asset Management,
which includes marketing and sales, and Field Service Management, which encompasses
property management. Id. HUD also divided the contracts across four regional Homeownership
Centers located in Atlanta, Philadelphia, Denver, and Santa Ana, which regional centers are then
divided into smaller “areas” consisting of a state or group of states. Id. Each area is designated
by a number followed by the first letter of the regional headquarters, e.g., Area 1D is managed
by the Denver Homeownership Center and covers Utah, Colorado, New Mexico, and Northern
Texas. See id.

        The HUD procurement in this case covered Asset Management contracts in twelve areas,
specifically 3A (Illinois), 4A (Indiana and Kentucky), 5A (North Carolina and South Carolina),
6A (Alabama, Mississippi, and Tennessee), 7A (Georgia), 8A (Florida, Puerto Rico, and the U.S.
Virgin Islands), 1D (Utah, Colorado, New Mexico, and Northern Texas), 2D (Kansas,



                                                2
Oklahoma, Arkansas, Louisiana, Missouri, and Southern Texas), 1P (Michigan), 3P (Maine,
Vermont, New York, New Hampshire, Rhode Island, New Jersey, Massachusetts, and
Connecticut), 4P (Ohio), and 5P (Pennsylvania, West Virginia, Virginia, Delaware, Maryland,
and the District of Columbia). Q Integrated, 126 Fed. Cl. at 128-29. Within this procurement,
“Areas 3A, 6A, 7A, 8A, 1D, 1P, 3P, 4P, and 5P were to be 100 percent small business set-aside
contracts, Areas 4A and 5A were to be woman-owned small business set-aside contracts, and
Area 2D was to be an unrestricted competition.” Id. at 129.

        HUD issued its request for proposals (“RFP”) for these Asset Management contracts
(solicitation number DU204SA-13-R-0005) on July 25, 2014. Q Integrated, 126 Fed. Cl. at 129.
The RFP stated that “the contracts would be single award indefinite delivery/indefinite quantity
contracts” with a base period from the award date until May 31, 2016, plus four one-year option
periods. Id. The offerors’ proposals were evaluated through “a best-value source selection based
on a performance-price trade-off.” Id. at 130. First, HUD evaluated proposals for technical
acceptability. Id. All “technically acceptable” proposals were then evaluated for “price
reasonableness and balanced pricing.” Id. Proposals with “reasonable pricing” were then
evaluated for past and present performance. Id. Contract references demonstrating the offerors’
past performance were evaluated for recency, quality, and relevancy, and based on these factors
each offeror received an “overall past/present performance confidence rating of Excellent/High
Confidence, Good/Significant Confidence, Fair/Some Confidence, No Confidence, [or]
Neutral/Unknown Confidence.” Id. at 130-31.

        For the contracts encompassing Areas 7A, 1D and 5P at issue in this case, HUD
determined that the proposal from Sage “provided the best value based on a trade-off between its
higher past performance rating and the price difference over the lowest-priced offer.” Q
Integrated, 126 Fed. Cl. at 136. Q Integrated had the lowest-priced offer for Areas 1D and 5P,
and the second-lowest-priced offer for Area 7A. Id. Sage was the second-lowest-priced offeror
for Areas 1D and 5P, and the third-lowest-priced offeror for Area 7A. Id. Sage received an
overall past performance rating for its final proposal of “Excellent/High Confidence,” whereas Q
Integrated received a final overall past performance rating of “Fair/Some Confidence.” Id. at
135-36.

                        B. Q Integrated’s Bid Protest before This Court

        Q Integrated filed its protest in this court on January 19, 2016, arguing that HUD
“improperly evaluated its past performance information, with the result that Q Integrated unfairly
received an overall past performance rating of Fair/Some Confidence,” that HUD’s evaluation of
Sage’s past performance was irrational, and that HUD failed to hold “meaningful discussions”
with Q Integrated in contravention of the solicitation and the Federal Acquisition Regulations
(“FAR”). Q Integrated, 126 Fed. Cl. at 138, 140, 142, 144. Q Integrated sought judgment on the
administrative record, and Sage and the government filed corresponding cross-motions. See id.
at 138. The court granted Q Integrated’s motion in part and denied it in part, and granted Sage’s
and the government’s motions in part and denied them in part. Id. at 148. The court determined
that HUD’s evaluations of Q Integrated’s and Sage’s past performance information were not
arbitrary and capricious, id. at 140-43, but found that HUD did not hold meaningful discussions
with Q Integrated, id. at 144-46. Among other things, HUD’s procuring officials misstated



                                                3
performance information regarding Q Integrated during discussions, “failed to disclose to Q
Integrated that its past performance submission either showed ‘significant weaknesses’ or
constituted ‘adverse past performance information,’” and adjusted past performance evaluations
contrary to the terms of the solicitation. Id. at 145. The court determined that Q Integrated was
prejudiced by the government’s errors and omissions in discussions. Id. at 146-47. If the
discussions with Q Integrated had been accurate and the ratings had not been adjusted contrary to
the solicitation, Q Integrated could have revised its proposal and would have had a substantial
chance of receiving the contract award. Id.

        The court did not disturb the award of the Asset Management contracts for Areas 7A, 1D,
and 5P to Sage for the base period and the first option year because performance was already
underway at the time of the court’s decision. See Q Integrated, 126 Fed. Cl. at 147-48. The
court set aside and enjoined the awards to Sage “beyond the end of the first option period on
May 31, 2017,” and provided two options to HUD to secure asset management services beyond
that date. Id. at 148. HUD was enjoined to either “(1) allow Q Integrated to revise its final
proposal and then . . . conduct a new evaluation for the contested areas, or (2) conduct a new
solicitation for the pertinent services.” Id. The court also awarded Q Integrated reasonable costs
incurred in bid preparation and proposal. Id. Judgment was entered on April 21, 2016, ECF No.
74.

                          C. SBA’s Size Determination for Q Integrated

        On January 29, 2016, Q Integrated received an award under the HUD Asset Management
contract solicitation for Area 6A. Def.’s Mot. to Request Relief from Judgment (“Def.’s Mot.”),
ECF No. 86, Ex. 1 (“Area Office Size Determination”) at 3. Two unsuccessful offerors for Area
6A, ARNC Bridge Consulting and Alpine/First Preston, JV VI, filed protests with the SBA
alleging that Q Integrated was ineligible to be awarded the contract because it was not a small
business. Id. These protests triggered a formal SBA size determination. Id. at 4. In a decision
issued on June 10, 2016, the SBA Area Office concluded that Q Integrated was “other than a
small business concern for the subject procurement.” Id. at 14 (emphasis added). The Area
Office determined that Matt Martin Real Estate Management (“MMREM”), a large business that
owns 49% of Q Integrated, had the power to control Q Integrated under the terms of its operating
agreement based on the totality of the circumstances surrounding the relationship between the
companies. See id. at 7-9. The Area Office also found that MMREM was an “ostensible
subcontractor” for the purposes of the Area 6A contract because MMREM was to perform
“primary and vital portions of the instant procurement.” See id. at 9-13. Pursuant to 13 C.F.R. §
121.103(h)(4), “[a] contractor and its ostensible subcontractor are treated as joint venturers, and
therefore affiliates, for size determination purposes.” Because MMREM is not a small business,
Q Integrated was “determined not to be a small business through affiliation with MMREM” for
purposes of the Area 6A contract. Area Office Size Determination at 13.

       Q Integrated appealed the Area Office size determination to the SBA Office of Hearings
and Appeals (“OHA”), which subsequently upheld the determination that Q Integrated was other
than small with regard to the Area 6A protest. See Q Integrated Cos., LLC, SBA No. SIZ-5778,
2016 WL 6301699 (Sept. 22, 2016) (“Q Integrated (SBA)”) (filed as Joint Status Report (Sept.
30, 2016), Attach. 1, ECF No. 94). OHA agreed with the Area Office that MMREM is generally



                                                 4
affiliated with Q Integrated based on the totality of the circumstances surrounding their
relationship, such circumstances including MMREM’s 49% ownership share in Q Integrated,
their ongoing contractor/subcontractor relationship under Q Integrated’s operating agreement,
and the co-location of MMREM and Q Integrated employees. Id. at *12-14. OHA did not
consider whether MMREM and Q Integrated were affiliated under the “ostensible subcontractor”
rule, as determined by the Area Office, because the general affiliation between the two
companies was sufficient to find that Q Integrated was other than small. Id. at *15.

                              D. SBA’s Size Determination for Sage

        Sage’s status as a small business was also challenged before the SBA with regard to
contracts it has been awarded under the HUD procurement. On November 4, 2015, an Area
Office concluded that Sage was a small business for the procurement with regard to awards it
received for Areas 1D and 4P. See Sage Acquisitions, LLC, SBA No. SIZ-5783, 2016 WL
6820412, at *3 (Oct. 5, 2016). Sage was awarded additional contracts for Areas 1P and 3P in
February 2016, Q Integrated, 126 Fed. Cl. at 138, which prompted additional size protests from
losing offerors, see Sage Acquisitions, 2016 WL 6820412, at *6-11. On October 5, 2016, after
multiple back-and-forth decisions between the Area Office and OHA with regard to these
protests, OHA ultimately determined that Sage was other than small with regard to the contracts
for Areas 1P and 3P. Id. at *1.1 OHA determined that Sage was other than small for Areas 1P
and 3P because the partners in the joint venture, Raine & Company, LLC and PEMCO Limited,
did not satisfy the requirements of the mentor-protégé exception for joint venture size
determinations pursuant to 13 C.F.R. §§ 124.513(c) and (d). Id. at *22-27.

        Sage has challenged OHA’s decision in this court, arguing that the SBA’s issuance of
multiple size determinations for Sage regarding the HUD procurement, as well as OHA’s
determination that the Sage joint venture does not satisfy the mentor-protégé exception, were
arbitrary and capricious. See Compl., Sage Acquisitions, LLC v. United States, No. 16-1355, ¶¶
26-37 (Fed. Cl. Oct. 17, 2016). Cross-motions for judgment on the administrative record have
been briefed and are pending in that case.

                      E. The Government’s Motion for Relief from Judgment

        The government filed its motion for relief from judgment in this case on June 22, 2016.
See Def.’s Mot. The government argues in its motion that the determination that Q Integrated is
other than small for the Area 6A contract renders Q Integrated ineligible for a contract award for


       1
         Sage and HUD had argued to OHA that an Area Office determination in November
2015, stating that Sage was a small business for Areas 1D and 4P, was a final decision that
controlled OHA’s size determination for Areas 1P and 3P. Sage Acquisitions, 2016 WL
6820412, at *20. OHA disagreed, explaining that the Area Office size determination did not
have precedential value because it had not been appealed, and that a size determination for a
mentor-protégé joint venture such as Sage is “a question specific to each contract.” Id. at *21-
22. As such, OHA concluded that differences between offers for each contract area sought by
the offeror could necessitate different size determinations on a per-offer or per-contract basis. Id.
at *22.


                                                 5
any area of the HUD procurement. See id. at 4-5. As the government would have it, Q
Integrated lost its standing to bring its protest of the award to Sage for Areas 7A, 1D, and 5P
because of the size determination for that other area. Id. at 5. Additionally, the government asks
the court to vacate its decision to award bid preparation and proposal costs to Q Integrated
because it was ineligible for award due to the size determination. Id. at 9.

         The court suspended briefing on the government’s motion until OHA issued its various
size determinations. See Order of Aug. 18, 2016, ECF No. 93. Following OHA’s decisions, the
court requested that HUD file a notice “indicating [its] preferred course of action among the
options available to satisfy the court’s order and judgment in this case.” Order of Jan. 10, 2017,
ECF No. 99. In the notice that HUD submitted, the agency reiterated its preference that the court
grant its motion for relief from the judgment and allow Sage to continue performance for Areas
7A, 1D, and 5P. Def.’s Notice at 2-3, ECF No. 102. If the motion were not granted and the
judgment were to stand, HUD represented that it could not feasibly conduct discussions and
reevaluate Q Integrated’s proposal or issue a new solicitation because Q Integrated was found to
be other than small. Id. at 4-6. HUD also stated that reevaluating any remaining viable small
businesses is not in the government’s best interest because Sage has already been determined to
provide the best value to the government for these contracts. Id. at 6-7. Thus, HUD indicated
that its preferred course of action would be to realign existing Asset Management small business
contracts to cover Areas 7A, 1D, and 5P through contract modification. Id. at 7-9.

        Following the submission of the government’s notice, the court reinstated briefing on the
government’s motion for relief from judgment. See Order of Feb. 10, 2017, ECF No. 108. Sage
supported the government’s position that the judgment should be vacated under RCFC 60(b)
because Q Integrated lacks standing after having been found to be other than small with regard to
Area 6A, an area not involved in this case. See Intervenor Sage Acquisitions, LLC’s Resp. to the
Gov’t’s Mot. for Relief from Judgment (“Sage’s Resp.”) at 1, ECF No. 110, while Q Integrated
argues that the government’s motion should be denied because it fails to satisfy the requirements
of RCFC 60(b), see generally Pl.’s Opp’n to Def.’s Mot. to Request Relief from the Judgment
(“Pl.’s Opp’n”), ECF No. 109.

                                STANDARDS FOR DECISION

       Pursuant to RCFC 60(b), the court may relieve a party from a judgment entered against
them for the following reasons:

       (1)     mistake, inadvertence, surprise, or excusable neglect;

       (2)     newly discovered evidence that, with reasonable diligence, could not have
               been discovered in time to move for a new trial under RCFC 59(b);

       (3)     fraud (whether previously called intrinsic or extrinsic), misrepresentation,
               or misconduct by an opposing party;

       (4)     the judgment is void;




                                                 6
       (5)       the judgment has been satisfied, released, or discharged; it is based on an
                 earlier judgment that has been reversed or vacated; or applying it
                 prospectively is no longer equitable; or

       (6)       any other reason that justifies relief.

RCFC 60(b); see also American Innotek, Inc. v. United States, 129 Fed. Cl. 444, 446 (2016).2
Here, the government alternatively bases its motion for relief on RCFC 60(b)(2), (b)(5), and
(b)(6). See generally Def.’s Mot.

        Under RCFC 60(b)(2), “the moving party ‘must show that the newly discovered
evidence, if introduced at trial, clearly would have produced a different result if presented before
the original judgment.’” Madison Servs., Inc. v. United States, 94 Fed. Cl. 501, 507 (2010)
(citing Venture Indus. Corp. v. Autoliv ASP, Inc., 457 F.3d 1322, 1328 (Fed. Cir. 2006);
Placeway Constr. Corp. v. United States, 19 Cl. Ct. 484, 489 (1990)). Newly discovered
evidence is “limited to ‘evidence of facts which existed at the time of decision and of which the
aggrieved party was excusably ignorant.’” TDM Am., LLC v. United States, 100 Fed. Cl. 485,
490 (2011) (citing Yachts Am., Inc. v. United States, 8 Cl. Ct. 278, 281 (1985), aff’d, 779 F.2d
656 (Fed. Cir. 1985)).

        Pursuant to RCFC 60(b)(5), a party may seek relief from a judgment if “a significant
change either in factual conditions or in law renders continued enforcement detrimental to the
public interest.” Horne v. Flores, 557 U.S. 433, 447 (2009) (citing Rufo v. Inmates of Suffolk
Cty. Jail, 502 U.S. 367, 384 (1992)) (internal quotation marks omitted). “The party seeking
relief bears the burden of establishing that changed circumstances warrant relief.” Id. (citing
Rufo, 502 U.S. at 383).

        RCFC 60(b)(6) serves as a “catch-all” provision, authorizing the court to grant relief from
judgments when appropriate to accomplish justice. Infiniti Info. Sols., LLC v. United States, 93
Fed. Cl. 699, 704 (2010) (citations omitted). The court is limited in granting relief under RCFC
60(b)(6) in two respects: “(1) the grounds asserted for relief must not be the same as those listed
in [RCFC] 60(b)(1)-(5), and (2) there must be a valid reason that justifies affording the relief,
usually broadly described as ‘extraordinary circumstances.’” Id. (citing Fiskars, Inc. v. Hunt
Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002)). The party seeking relief must show that the
“extraordinary circumstances prevented [the] party from taking timely action to prevent or
correct an erroneous judgment.” Id. (citations omitted); see also Progressive Indus., Inc. v.
United States, __ Fed. Cl. __, 2017 WL 1058481, at *2 (Mar. 21, 2017) (referring to Rule
60(b)(6) as providing a “last resort”) (quoting Infiniti Info. Sols., 93 Fed. Cl. at 704).

                                              ANALYSIS

       As an initial matter, the government’s motion under RCFC 60(b)(2) is not appropriate.
“Newly discovered evidence” under this rule only encompasses facts which existed at the time
the court made its decision and entered judgment. See TDM Am., 100 Fed. Cl. at 490. Here, the


       2
           Substantively, RCFC 60(b) is identical to Fed. R. Civ. P. 60(b).


                                                    7
new evidence upon which the government relies is the SBA’s determination that Q Integrated
was not small with regard to an Asset Management contract for HUD’s Area 6A. The Area
Office made its initial size determination on June 10, 2016, and it was affirmed by OHA on
September 22, 2016. See Area Office Size Determination at 1; Q Integrated (SBA), 2016 WL
6301699 at *1. The court had issued its decision in this case on April 28, 2016, before any size
determination regarding Q Integrated was issued. See Q Integrated, 126 Fed. Cl. at 124. The
fact that Q Integrated has been adjudged to be other than small for an indirectly related contract
did not exist when the court entered judgment, and thus cannot form the basis to grant the
government relief from the judgment under RCFC 60(b)(2).

        With regard to RCFC 60(b)(5) and (b)(6), the government’s motion for relief from
judgment rests on its contention that OHA’s size determination for Q Integrated with regard to
Area 6A divested Q Integrated of standing to protest the award to Sage for Areas 7A, 1D, and
5P. See Def.’s Mot. at 5-8. Pursuant to the Tucker Act, this court 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.” 28 U.S.C. § 1491(b)(1), added by the Administrative Dispute Resolution Act,
Pub. L. No. 104–320, § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996); see also Systems Application &
Techs., Inc. v. United States, 691 F.3d 1374, 1380-81 (Fed. Cir. 2012). To be an “interested
party” under the Tucker Act, the protestor must show that “(1) it was an actual or prospective
bidder or offeror, and (2) it had a direct economic interest in the procurement or proposed
procurement.” Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir.
2008). To prove direct economic interest, the offeror must show that it had a “substantial
chance” of receiving the contract but for the government’s alleged errors in the procurement
process, i.e., that it was prejudiced by such errors. Information Tech. & Applications Corp. v.
United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003).

        The parties do not dispute that Q Integrated was an actual bidder for the HUD
procurement with regard to Areas 7A, 1D, and 5P. The government and Sage assert, however,
that Q Integrated does not now have a substantial chance of receiving a contract award because it
has been deemed other than small for a different area, and the contract areas in this case were set
aside for small businesses. See Def.’s Mot. at 5-6; Sage’s Resp. at 4-6. Notably, the government
and Sage ignore that a bid protester can demonstrate prejudice, and therefore establish standing,
by showing that “if as a result of a successful bid protest, the government would be obligated to
rebid the contract and the protester could compete for the contract during the reopened bid.”
Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d 1353, 1359 (Fed. Cir. 2015) (citing
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir.
2001)). The “substantial chance” standard only requires that the protester show that it could
reasonably compete for the contract, not that it would necessarily be awarded the contract when
subjected to competition with other hypothetical bidders. Id. at 1360. Here, the court found that
HUD’s procurement process was deficient with regard to its evaluation of Q Integrated’s
proposal, and the judgment requires HUD either to reevaluate an updated proposal by Q
Integrated or to conduct a new solicitation for Areas 7A, 1D, and 5P. See Q Integrated, 126 Fed.
Cl. at 148. Despite HUD’s expressed preference to continue Sage’s performance or realign




                                                 8
existing contracts, HUD is obligated to comply with the court’s injunction to reevaluate or
resolicit the contracts to cure its errors in the initial process.

        As in Tinton Falls, the question arises whether Q Integrated could compete for a
“hypothetical reopened bid” even though it has been deemed other than small with regard to an
indirectly related contract. Tinton Falls, 800 F.3d at 1359. In Tinton Falls, the procuring agency
issued a solicitation for a “small business set-aside contract,” and SBA found that the awardee
was the only eligible offeror. Id. at 1355, 1359. In reviewing a decision by a judge of this court
in a protest challenging the award and SBA’s determination, the Federal Circuit stated that “if
[the protester] were to prevail,” then the awardee would no longer qualify, no eligible bidders
would remain, and the agency “would be required to reopen the bidding process.” Id. at 1359.
In such a circumstance, there was a “realistic possibility” that the agency would rebid the
solicitation on an unrestricted basis. Id. at 1359-60. Under the facts presented, the Federal
Circuit affirmed a judge of this court’s “finding that [the protester] had a substantial chance of
winning a reopened bid should it prevail in its bid protest,” therefore establishing standing. Id. at
1360 & n.3.3

         In this case, a hypothetical reopened procurement of asset management services for Areas
7A, 1D, and 5P would also likely have to be solicited on an unrestricted basis. As Q Integrated
notes, “four of the five companies receiving small business awards under the [s]olicitation have
been determined by the SBA to be other than small.” Pl.’s Opp’n at 8 n.4. This includes both Q
Integrated and Sage. Id. As in Tinton Falls, where there was a “realistic possibility” that no
technically-capable small offerors would remain in contention, 800 F.3d at 1360, here, there is a
realistic possibility that HUD would have to resolicit the contracts for Areas 7A, 1D, and 5P on
an unrestricted basis to have sufficient options beyond one small offeror. Q Integrated would
have a “substantial chance” of receiving a contract award from an unrestricted, reopened
solicitation because it would be able to compete regardless of any size determinations by SBA.
As such, Q Integrated has standing to bring its protest even though OHA has determined it to be
other than small for a HUD area not involved in this case.

        Further, even if the reopened solicitation continued to be limited to small businesses, Q
Integrated would not necessarily be eliminated from contention based on the size determination
for Area 6A. In its size determination for Sage with regard to Areas 1P and 3P, OHA stated that
some size determinations can be contract-specific, particularly with regard to multiple-firm
arrangements that can vary on a contract-by-contract basis, such as joint ventures or
subcontractor relationships. See Sage Acquisitions, 2016 WL 6820412, at *20-22. Here,
although OHA found Q Integrated to be other than small under protests regarding Area 6A, see
Q Integrated (SBA), 2016 WL 6301699, at *14, neither the SBA Area Office nor OHA made
any size determinations for Q Integrated with regard to the contract areas at issue in this case.
Under the “totality of the circumstances” analysis used by OHA in its size determination for Q
Integrated, the circumstances surrounding the relationship between MMREM and Q Integrated
could enable Q Integrated to be considered small for a future contract under the HUD


       3
         The court of appeals ultimately held that the protester failed to show that the SBA’s
determination lacked a rational basis on the merits, Tinton Falls, 800 F.3d at 1363, but that the
protester’s allegations nonetheless satisfied the standing threshold, id. at 1359-60.


                                                 9
procurement. It is thus inappropriate for the court to extrapolate the size determination for Area
6A and automatically apply it to the areas at issue in this case. Q Integrated has not been
determined to be other than small with regard to Areas 7A, 1D, and 5P, and therefore might
remain eligible to compete for these contracts in a reopened solicitation with a small business
restriction.

        In sum, the government has not demonstrated that enforcement of the court’s judgment
has become inequitable or that “extraordinary circumstances” have arisen to justify setting aside
the judgment. Therefore, the government’s motion for relief under RCFC 60(b)(5) and (b)(6) is
denied.4

                                         CONCLUSION

       For the reasons stated, the government’s motion for relief from judgment is DENIED.
The court’s judgment as stated in Q Integrated, 126 Fed. Cl. at 148, remains in effect. Given the
passage of time, however, an extension of time should be granted, and HUD’s awards of the
Asset Management contracts to Sage for Areas 7A, 1D, and 5P shall remain undisturbed for six
months into the second option year, i.e., until November 30, 2017. After that date, HUD must
comply with the judgment.

       It is so ORDERED.


                                                  s/ Charles F. Lettow
                                                  Charles F. Lettow
                                                  Judge




       4
        Because Q Integrated has been found to not have lost standing following the entry of
judgment, the court also will not vacate the judgment with regard to the award of bid preparation
and proposal costs to Q Integrated.


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