          In the United States Court of Federal Claims
                                      No. 18-887C

                             (E-Filed: September 13, 2018)1

    AGILITY DGS LOGISTICS                 )
    SERVICES CO. KSC(C),                  )
                                          )
              Plaintiff,                  )
                                          )
    v.                                    )
                                          )
    THE UNITED STATES,                    )
                                          )
              Defendant,                  )      Motion to Dismiss; RCFC 12(b)(1);
                                          )      Lack of Subject Matter Jurisdiction;
    ANHAM FZCO,                           )      Lack of Standing.
                                          )
              Intervenor-defendant,       )
                                          )
              and                         )
                                          )
    KGL FOOD SERVICES WLL,                )
                                          )
              Intervenor-defendant.       )
                                          )

Christopher R. Yukins, Washington, DC, for plaintiff. Steven S. Diamond and Nathaniel
E. Castellano, of counsel.

Daniel S. Herzfeld, Trial Attorney, with whom were Chad A. Readler, Acting Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of

1
       This opinion was issued under seal on August 16, 2018. Pursuant to ¶ 7 of the
ordering language, the parties were invited to identify source selection, proprietary or
confidential material subject to deletion on the basis that the material was
protected/privileged. No redactions were proposed by the parties. Thus, the sealed and
public versions of this opinion are identical, except for the publication date and this
footnote.
Justice, Washington, DC, for defendant. Daniel K. Poling, Associate General Counsel,
David Nolte, Associate General Counsel, R. Zen Schaper, Senior Counsel, and Cathleen
Choromanski, Assistant Counsel, Defense Logistics Agency, of counsel.
Eric J. Marcotte, Washington, DC, for intervenor-defendant ANHAM FZCO. Kelly E.
Buroker, Tamara Droubi, Jeffrey M. Lowry, Richard P. Rector, C. Bradford Jorgensen,
Eric P. Roberson, of counsel.

John E. McCarthy Jr., Washington, DC, for intervenor-defendant KGL Food Services
WLL. David C. Hammond, Mark A. Ries, Robert J. Sneckenberg, Sharmistha Das,
Charles Baek, of counsel.

                                        OPINION

CAMPBELL-SMITH, Judge.

        On July 17, 2018, defendant, ANHAM FZCO (ANHAM), and KGL Food
Services WLL (KGL) filed motions to dismiss plaintiff’s amended complaint (ECF No.
15), and motions for judgment on the administrative record in this bid protest case. See
ECF No. 47 (ANHAM’s motions); ECF No. 48 (KGL’s motions); ECF No. 49
(defendant’s motions). On July 27, 2018, plaintiff filed a cross-motion for judgment on
the administrative record, and a response to the three motions to dismiss and motions on
the administrative record. See ECF No. 51. Also before the court are: (1) the responses
to plaintiff’s cross motion for judgment on the administrative record and replies in
support of the motions to dismiss and motions on the administrative record filed by
defendant, ANHAM, and KGL, ECF No. 53 (KGL’s reply and response); ECF No. 54
(ANHAM’s reply and response); ECF No. 55 (defendant’s reply and response); and (2)
plaintiff’s reply in support of its motion for judgment on the administrative record, ECF
No. 62. The motions are now ripe for ruling. Oral argument was neither requested by the
parties, nor required by the court. For the following reasons, the motions to dismiss are
GRANTED, and the motions for judgment on the administrative record are DENIED as
moot.

I.    Background

        As alleged by plaintiff in its amended complaint, this action “is a pre-award bid
protest challenging a prospective award under Solicitation No. SPE300-15-R-0042 (the
“Solicitation”), issued by the U.S. Defense Logistics Agency—Troop Support . . . for a
Subsistence Prime Vendor . . . to supply military and other customers located throughout
the Iraq, Jordan, and Kuwait region . . . , as amended to include Syria.” ECF No. 15 at 2.
The solicitation was initially issued on December 18, 2015, see id. at 3, and award was
ultimately made to KGL on January 12, 2018, see id. at 6. Plaintiff did not submit an
offer, “as it was not eligible to do so due to ongoing suspension proceedings which were
under negotiation with the government.” Id. at 4.

                                            2
        Following the award, ANHAM, and another unsuccessful offeror, each filed a
protest challenging the award with the Government Accountability Office (GAO). See
id. at 6. ANHAM’s protest was partially successful, while the other protest was
dismissed. See id. As a result of ANHAM’s successful protest, defendant undertook
corrective action, as recommended by the GAO. See id. at 8. According to plaintiff, the
corrective action is “very limited[,] . . . calling for re-evaluation of the procurement’s
Experience and Past Performance factors,” and not allowing revisions. Id. Plaintiff
further alleges that defendant “required offerors to extend their offered pricing for an
additional 240 days in order to remain eligible for award.” Id. Plaintiff made multiple
appeals to the agency asking that it re-open competition, rather than simply re-evaluate
existing proposals. See id. at 10. In May 2017, Agility “regained its eligibility to
compete pursuant to an Administrative Agreement,” and it wished to submit an offer
under the solicitation. Id. at 4. The agency did not respond to plaintiff’s requests. See
id. at 10.

        In this case, plaintiff alleges that the agency’s failure to agree to re-open the
solicitation to allow for new offerors to participate violates the Competition in
Contracting Act’s (CICA) “mandate for full and open competition.” Id. at 13 (citing 41
U.S.C. § 3301(a) (2012)). Therefore, plaintiff filed “this protest challenging [the
agency’s] unreasonable and unlawful decision to proceed under the Solicitation without
reopening the competition.” Id. at 11.

II.    Legal Standards

       Defendant and both intervenor-defendants allege that the court should dismiss the
amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Rules of the United States Court of Federal Claims (RCFC), on the basis that plaintiff
lacks standing to bring its claims. See ECF No. 47-1 at 12-15; ECF No. 48 at 3-5; ECF
No. 49 at 17-22. Plaintiff bears the burden of establishing the court’s subject matter
jurisdiction by a preponderance of the evidence. See Brandt v. United States, 710 F.3d
1369, 1373 (Fed. Cir. 2013). To determine whether plaintiff has carried this burden, the
court accepts “as true all undisputed facts asserted in the plaintiff’s complaint and
draw[s] all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v.
United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United States, 60
F.3d 795, 797 (Fed. Cir. 1995)).

        This court’s jurisdiction is based on the Tucker Act, which states, in relevant part,
that 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

                                              3
       statute or regulation in connection with a procurement or a proposed
       procurement.

28 U.S.C. § 1491(b)(1) (2012).

        Under this section, a plaintiff must demonstrate that it is an “interested party,” in
order to establish this court’s jurisdiction. As the United States Court of Appeals for the
Federal Circuit has held, the “interested party” requirement in the Tucker Act “imposes
more stringent standing requirements than Article III.” Weeks Marine, Inc. v. United
States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). Though the term “interested party” is not
defined by the statute, courts have construed it to require that a protestor “establish that it
‘(1) is an actual or prospective bidder and (2) possess[es] the requisite direct economic
interest.’” See id. (citing Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed.
Cir. 2006) (alteration in original)).

        Plaintiff admits that it was not an actual bidder in this case. See ECF No. 15 at 4.
In order to establish prospective bidder status, plaintiff “must be expecting to submit an
offer prior to the closing date of the solicitation.” MCI Telecomm’ns Corp. v. United
States, 878 F.2d 362, 365 (Fed. Cir. 1989) (emphasis in original).2 See also Digitalis
Educ. Sols., Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012) (quoting MCI,
878 F.2d at 365). As the Federal Circuit has explained, “[a]fter the date for submission
of proposals has passed, . . . the would-be protestor can no longer realistically expect to
submit a bid on the proposed contract, and, therefore, cannot achieve prospective
bidderhood with regard to the original solicitation.” 3 MCI, 878 F.2d at 365.

       Plaintiff also must demonstrate sufficient economic interest to support standing.
To do so, plaintiff “must show that there was a ‘substantial chance’ it would have
received the contract award but for the alleged error in the procurement process.” Info.
Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)

2
        The Federal Circuit has explained that: “[i]n MCI Telecommunications Corp. v.
United States, [878 F.2d 362 (Fed. Cir. 1989)], we considered the meaning of
‘prospective bidder’ within the now-defunct Brooks Act, 40 U.S.C. § 759(f)(9)(B), which
included a definition of ‘interested party’ identical to the definition in CICA.” CGI Fed.
Inc. v. United States, 779 F.3d 1346, 1348-49 (Fed. Cir. 2015).
3
       This court has recognized limited exceptions to this formulation of prospective
bidder status, where plaintiff alleges either pervasive illegality or where the awardee was
the only acceptable offeror, such that resolicitation is “necessarily the appropriate
remedy.” See Omran Holding Grp. v. United States, 128 Fed. Cl. 273, 282 (2016).
Plaintiff does not allege either of these circumstances in its amended complaint or its
briefing now before the court.

                                               4
(citing Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.
1999)). If the court determines that plaintiff lacks standing, and thus that the court lacks
jurisdiction, it must dismiss the case. See RCFC 12(h)(3).
III.    Analysis

        In their motions to dismiss, defendant and both intervenor-defendants argue that
plaintiff lacks standing to bring this case because it cannot establish that it was either an
actual or a prospective bidder. As noted above, plaintiff acknowledges that it was not an
actual bidder. See ECF No. 15 at 4. Defendant and intervenor-defendants contend that
plaintiff cannot demonstrate prospective bidder status because the offer period for the
solicitation is closed. See ECF No. 47-1 at 12-15; ECF No. 48 at 3-5; ECF No. 49 at 17-
20.

        In response, plaintiff argues that it qualifies as a prospective bidder because it
intends to submit a bid if the solicitation is re-opened. Specifically, plaintiff asserts that
the court should allow it to proceed as a prospective bidder pursuant to the holding set
forth in Savantage Financial Services, Inc. v. United States, 81 Fed. Cl. 300 (2008). See
ECF No. 51-1 at 20-21. In Savantage, only a limited group of contractors were permitted
to submit offers under the subject solicitation. See 81 Fed. Cl. at 303. When evaluating
the protestor’s standing, the court explained:

       Where a claim is made that the government violated CICA by refusing to
       engage in a competitive procurement, . . . the Court of Federal Claims has
       held that “it is sufficient for standing purposes if the plaintiff shows that it
       likely would have competed for the contract had the government publicly
       invited bids or requested proposals.”

Id. at 306 (citing CCL, Inc. v. United States, 39 Fed. Cl. 780, 790 (1997)). According to
plaintiff, because it alleges a violation of CICA in the amended complaint, it should be
considered a prospective bidder so long as it would submit a proposal under a re-opened
procurement. See ECF No. 51-1 at 21-22 (collecting cases in which the court found that
a protestor had standing as a prospective bidder when it was improperly prevented from
competing due to a deficiency in the initial solicitation and when the protestor would be
eligible to compete under a re-opened procurement).

        The problem with plaintiff’s argument is that in its amended complaint, plaintiff
does not allege that it was improperly excluded from competing under the initial
solicitation on the basis of a CICA violation, or any other deficiency in the procurement
process. Instead, it argues that a failure to re-open the solicitation would itself be a CICA
violation. See ECF No. 15 at 13-15. None of the cases on which plaintiff purports to
rely supports standing in the present circumstances. As the Federal Circuit has explained,
a protestor’s “stated intention to submit a proposal in response to any resolicitation, and
its efforts to secure resolicitation by filing a protest, do nothing to create the necessary

                                              5
interested party status.” MCI, 878 F.2d at 364-65. See also Fed. Data Corp. v. United
States, 911 F.2d 699, 704 (Fed. Cir. 1990) (quoting MCI); United States v. Int’l Bus.
Machs. Corp., 892 F.2d 1006, 1011 (Fed. Cir. 1990) (“The speculative prospect of
cancellation of the solicitation and initiation of a new one is insufficient to suffuse all
other bidders with the requisite interest to support standing.”); CGI Fed. Inc. v. United
States, 779 F.3d 1346, 1349 (Fed. Cir. 2015) (“[A] ‘prospective bidder’ ‘does not include
one who only intends to bid in the event of reprocurement.’”) (citation omitted).

       In this case, plaintiff acknowledges that it did not submit a proposal in response to
the solicitation due to its suspension. See ECF No. 15 at 4. It makes no showing that any
improprieties on defendant’s part prevented it from competing. As such, plaintiff cannot
show that it is a prospective bidder for the purposes of establishing standing.

        The parties make additional arguments in their motions to dismiss with regard to
whether plaintiff’s economic interest in this litigation supports standing, and whether
plaintiff has waived any right to protest. However, because plaintiff has failed to
demonstrate that it is either an actual or prospective bidder, the court finds it is
unnecessary to proceed any further in its analysis.4

IV.    Conclusion

       For the foregoing reasons:

       (1)    ANHAM’s motion to dismiss and motion for judgment on the
              administrative record, ECF No. 47, is GRANTED in part, as to
              ANHAM’s motion to dismiss; and, DENIED in part as moot, as to
              ANHAM’s motion for judgment on the administrative record;

       (2)    KGL’s motion to dismiss and motion for judgment on the administrative
              record, ECF No. 48, is GRANTED in part, as to KGL’s motion to
              dismiss; and, DENIED in part as moot, as to KGL’s motion for judgment
              on the administrative record;




4
        On August 15, 2018, plaintiff filed its reply in support of its cross-motion for
judgment on the administrative record. See ECF No. 62. Therein, plaintiff included
extended, additional argument in opposition to defendant’s and intervenor-defendants’
motions to dismiss. Plaintiff did not seek, and the court did not grant, leave for plaintiff
to file a sur-reply with regard to those motions. Notwithstanding this liberty, the court
has reviewed plaintiff’s argument, and concludes that it does not fundamentally alter the
evaluation of the briefs on the motions to dismiss that are properly before the court.

                                              6
(3)   Defendant’s motion to dismiss, or alternatively, motion for judgment on the
      administrative record, ECF No. 49, is GRANTED in part, as to
      defendant’s motion to dismiss; and, DENIED in part as moot, as to
      defendant’s motion for judgment on the administrative record;
(4)   Plaintiff’s cross-motion for judgment on the administrative record, ECF
      No. 51, is DENIED as moot;

(5)   Plaintiff’s motion to supplement the administrative record, ECF No. 18, is
      DENIED as moot;

(6)   The clerk’s office is directed to ENTER final judgment for defendant,
      DISMISSING plaintiff’s amended complaint, without prejudice;

(7)   On or before September 12, 2018, the parties shall CONFER and FILE a
      Proposed Redacted Version of this opinion, with any competition-
      sensitive or otherwise protectable information blacked out; and,

(8)   Each party shall bear its own costs.

IT IS SO ORDERED.


                                         s/Patricia Campbell-Smith
                                         PATRICIA CAMPBELL-SMITH
                                         Judge




                                     7
