K-LAK CORP. v. USA

Filing 37

PUBLISHED OPINION: Government's Motion to Dismiss for Lack of Subject Matter Jurisdiction is DENIED. Government's response to plaintiff's Motion for Judgment and any Cross-Motion due by August 20, 2010. (Opinion originally issued under seal on 7/13/10).Signed by Judge Nancy B. Firestone. (dpk)

K - L A K CORP. v. USA

D o c . 37

In the United States Court of Federal Claims
No. 09-771C (Filed: August 3, 2010)* *Opinion Originally Filed Under Seal on July 13, 2010 ******************* K-LAK CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ******************* * * * * * * * * * * * * *

Motion to Dismiss; Bid Protest Jurisdiction, 28 U.S.C. § 1491(b)(1); Jurisdiction Over CDA Claims, 28 USC § 1491(a)(2); Standing; Removal from Small Business Program, 8(a); GSA Schedule.

James S. Benton, Falls Church, VA, for plaintiff. Antonia Ramos Soares, U.S. Department of Justice, Washington, DC, with whom were Tony West, Assistant Attorney General, and Jeanne E. Davidson, Director, for defendant.
OPINION F I R E S T O N E , Judge. P e n d in g before the court is the motion filed by the defendant ("government") to d is m is s this action brought pursuant to the court's bid protest jurisdiction as governed by 2 8 U.S.C. § 1491(b)(1) (2006). For the reasons set forth below, the motion is DENIED. BACKGROUND T h e plaintiff, K-LAK Corp. ("K-LAK") was an incumbent contractor providing c re d it reports at a cost of $3.80 each to the United States Department of the Air Force

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(" A ir Force") under a one-year contract (No. FA 3089-08-P-0018, effective October 1, 2 0 0 7 through September 30, 2008) awarded as a direct sole-source contract under the S m a ll Business Association ("SBA") 8(a) Business Development Program ("8(a) p ro g ra m " ) , 15 U.S.C. § 637(a)(1) (2006).1 During the period of K-LAK's performance, the Air Force learned that a larger business, Equifax Information Services ("Equifax"), w a s providing similar credit reports to the Army under the General Services A d m in i str a tio n ("GSA") Federal Supply Schedule ("FSS") for $1.50 each.2 On August 1 4 , 2008, the Air Force, after negotiating with the plaintiff to bring K-LAK's price per c re d it report down to a price that was comparable to Equifax's price, advised the SBA and

The 8(a) program is designed to give small businesses owned and controlled by socially and economically disadvantaged individuals access to the federal procurement market. See 15 U.S.C. § 631(f)(2). Here, the Department of Defense ("DOD") entered into a Partnership Agreement with the SBA that allowed the Air Force to directly enter into contracts, either on a sole source or competitive basis, with 8(a) firms. While the SBA delegated the authority to sign contracts on its behalf to the DOD, the SBA remained the prime contractor on all 8(a) contracts, with the 8(a) program participating business as the SBA subcontractor. The FSS (also known as the "Multiple Award Schedule" or "GSA Schedule") program provides federal agencies a simplified process for obtaining commonly used commercial supplies and services. See FAR 8.4, 48 C.F.R. § 8.4 (2009). Through this program, GSA negotiates and administers long-term, government-wide contracts, ensuring at the time of negotiation that these contract prices are fair and reasonable using FAR 15.406-3 for guidance. Robert J. Sherry et al., Competition Requirements in General Services Administration Schedule Contracts, 27 Pub. Cont. L. J. 467, 470, 475 (2008). Government agencies may place orders against these contracts using procedures set forth in Federal Acquisition Regulation ("FAR") 8.4, which provides procurement procedures by which agencies review vendors' FSS contracts and place orders directly with the vendors that can provide goods or services representing the best value and best fit for the agencies' needs. Id at 470-71. Agencies may also issue blanket purchase agreements against FSS contracts to fill recurring requirements for products or services. Id. at 473. The competition procedures in FAR Parts 13, 14, 15 and the Small Business Program rules in FAR Part 19 do not apply to orders placed against and fully within the scope of existing FSS contracts. 2
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K -L A K that, as authorized by Federal Acquisition Regulation ("FAR") 17.207(c)(2) and (d )(2 ),3 it had decided not to exercise the option to extend its contract because K-LAK was " u n a b le to provide the product at a fair market price." (Compl. Ex. 1.) K-LAK protested th e Air Force's decision not to procure from a small business to the SBA. (Administrative R ec o rd ("AR") 392.) The Air Force nonetheless decided not to extended K-LAK's c o n tra c t under the option clauses either explicit in or incorporated by reference into its c o n tra c t with the Air Force. Thus K-LAK's contract expired at the end of September 2 0 0 8 . Finding no other 8(a) program businesses that met a fair market price as determined b y the Air Force's research conducted pursuant to FAR 17.207, the Air Force cancelled its re q u ire m e n t internally with the SBA. (AR 323.) The SBA in December 2008 formally

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FAR 17.207 provides in relevant part as follows:

(c) The contracting officer may exercise options only after determining that-- ... (3) The exercise of the option is the most advantageous method of fulfilling the Government's need, price and other factors (see paragraphs (d) and (e) of this section) considered; ... (d) The contracting officer, after considering price and other factors, shall make the determination on the basis of one of the following: ... (2) An informal analysis of prices or an examination of the market indicates that the option price is better than prices available in the market or that the option is the more advantageous offer. ... (e) The determination of other factors under paragraph (c)(3) of this section-- (1) Should take into account the Government's need for continuity of operations and potential costs of disrupting operations; and (2) May consider the effect on small business. FAR 17.207, 48 C.F.R. § 17.207 (2009) (emphasis added). 3

a d v is e d the Air Force that the requirement for credit reporting services could not be w ith d ra w n from the 8(a) program based upon the information the Air Force had provided, o n the grounds that the SBA may release a requirement from the 8(a) program "only in v e ry limited circumstances" and none of the information provided met the criteria of 13 C .F .R . § 124.504(e)." 4 (Compl. Ex. 2.) The SBA did not take any further appeal within th e Air Force.

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That regulation provides:

Release for non-8(a) competition. In limited instances, SBA may decline to accept the offer of a follow-on or renewal 8(a) acquisition to give a concern previously awarded the contract that is leaving or has left the 8(a) [Business Development ("BD")] program the opportunity to compete for the requirement outside the 8(a) BD program. (1) SBA will consider release only where: (i) The procurement awarded through the 8(a) BD program is being or was performed by either a Participant whose program term will expire prior to contract completion, or, by a former Participant whose program term expired within one year of the date of the offering letter; (ii) The concern requests in writing that SBA decline to accept the offer prior to SBA's acceptance of the requirement for award as an 8(a) contract; and (iii) The concern qualifies as a small business for the requirement now offered to the 8(a) BD program. (2) In considering release, SBA will balance the importance of the requirement to the concern's business development needs against the business development needs of other Participants that are qualified to perform the requirement. This determination will include consideration of whether rejection of the requirement would seriously reduce the pool of similar types of contracts available for award as 8(a) contracts. SBA will seek the views of the procuring activity. (3) If SBA declines to accept the offer and releases the requirement, it will recommend to the procuring activity that the requirement be procured as a small business or, if authorized, [a Small Disadvantaged Business] set-aside. 13 C.F.R. § 124.504(e). 4

M o re than one year after its contract expired, the plaintiff filed the present c o m p la in t on November 10, 2009. The complaint contains three claims. The plaintiff c h a rg e s: (1) that the Air Force illegally and in defiance of the SBA's December 2008 ru lin g withdrew the requirement for credit reporting services from the SBA 8(a) program in violation of 13 C.F.R. § 124.504(e); (2) the Air Force illegally awarded a sole-source c o n tra c t to Equifax in violation of FAR 6.2 and 6.3; and (3) the Air Force's fair market p ric e determination violated 8(a) program regulations set forth in 13 C.F.R. § 1 2 4 .5 0 4 (a )(2 ) because it looked to prices charged by commercial bidders that were not 8 (a ) eligible bidders. (Compl. ¶¶ 25-38.) The plaintiff asked the court to suspend the Air F o r c e 's acquisition of credit reports from Equifax and to "enjoin the Air Force from e m p lo yin g the funds obligated to the performance of any contract awarded to Equifax for the credit reporting services to any entity other than K-LAK." (Compl. 9-10.) Based on the allegations made in the complaint, the government moved to dismiss th e action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of th e Court of Federal Claims ("RCFC"). In its motion, the government argues that to the ex tent the plaintiff's claims relate to the Air Force's decision not to extend K-LAK's c o n tra c t by exercising the option, these claims have to be dismissed on the grounds that p la in tif f never filed a claim with the contracting officer as required by the Contract D is p u te s Act ("CDA"), 41 U.S.C. §§ 601-613 (2006). The government argues that the plaintiff can not avoid the exhaustion requirements of the CDA by relying upon the court's

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b id protest jurisdiction under 28 U.S.C. § 1491(b)(1). In the alternative, the government a r g u e s that to the extent the plaintiff's claims may be heard under the court's bid protest ju ris d ic tio n , the plaintiff lacks standing to bring a claim because the plaintiff is not listed o n the FSS and is thus not an "interested party" eligible to challenge an award under as re q u ire d by Section 1491(b)(1). In response to the government's motion, the plaintiff clarified that it does not seek re v ie w of the Air Force's decision not to exercise its contract option, but instead seeks re v ie w only of the Air Force's procurement decision to exit the small business program a n d instead purchase credit reports from Equifax. The plaintiff further argues that it has sta n d in g to bring its claim because only an eligible small business can challenge the Air F o rc e 's decision to leave the 8(a) program. STANDARD OF REVIEW T h e standard for ruling on a motion to dismiss for lack of subject matter jurisdiction p u rs u a n t to RCFC 12(b)(1) is well-settled. The plaintiff bears the burden of establishing s u b je c t matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. C ir. 1998) (citing McNutt v. Gen. Motors, 298 U.S. 178, 189 (1936)), and must do so by a p re p o n d e ra n c e of the evidence, Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 7 4 8 (Fed. Cir. 1988). Because jurisdiction is a threshold matter, a case can proceed no f u rth e r if a court lacks jurisdiction to hear it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 5 1 4 (2006) ("[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the

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c o u rt must dismiss the complaint in its entirety." (citation omitted)); Steel Co. v. Citizens f o r a Better Env't, 523 U.S. 83 (1998). See generally John R. Sand & Gravel v. United S tate s, 552 U.S. 130 (2008). It is well-settled that when the court considers a motion to d is m is s for lack of subject matter jurisdiction, it may look beyond the pleadings and " in q u ire into jurisdictional facts" to determine whether jurisdiction exists. Rocovich v. U n ited States, 933 F.2d 991, 993 (Fed. Cir. 1991). D IS C U S S IO N A. J u r is d ic tio n U n d e r Section 1491(a)(2) of the Tucker Act, the Court of Federal Claims has ju risd ictio n over claims arising under the CDA: The Court of Federal Claims shall have jurisdiction to render judgment upon a n y claim by or against, or dispute with, a contractor arising under section 1 0 (a )(1 ) of the Contract Disputes Act of 1978, including a dispute concerning te rm in a tio n of a contract, rights in tangible or intangible property, compliance w i th cost accounting standards, and other nonmonetary disputes on which a d e c isio n of the contracting officer has been issued under section 6 of that Act. 2 8 U.S.C. § 1491(a)(2). The Court of Federal Claims also has jurisdiction under Section 1491(b) of the T u c k e r Act to hear claims involving objections to certain procurement decisions, namely: . . . an action by an interested party objecting to a solicitation by a Federal a g e n cy for bids or proposals for a proposed contract or to a proposed award or th e award of a contract or any alleged violation of statute or regulation in c o n n e c tio n with a procurement or a proposed procurement. Id . § 1491(b)(1).

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T h e government argues that the plaintiff's complaint can be fairly read as a c h a lle n g e to the Air Force's decision not to exercise its option to extend the K-LAK c o n tra c t, and that the plaintiff's claims must be dismissed because the plaintiff has not c o m p lie d with the prerequisites in the CDA, 41 U.S.C. §§ 601-613. In particular, the p la in tif f has not filed a claim with the contracting officer. The government argues that c o n tra c to rs cannot bypass the CDA claims process by couching their claims as objections to a "procurement" decision under Section 1491(b)(1). Here, the government argues, the " p ro c u re m e n t" decision the plaintiff challenges concerns the decision not to use a small b u sin e ss contract. The government contends that the plaintiff cannot obtain the relief it s e e k s by challenging the Air Force's decision to obtain credit reports using the GSA FSS. In response, the plaintiff argues that the government has mischaracterized its c la im s . The plaintiff argues that it is challenging the government's violation of various sm a ll business-related statutes and regulations arising from the Air Force's decision to p roc u re credit reports from Equifax via the FSS. The plaintiff argues that its claims are n o t claims regarding contract administration, but claims regarding violations of statutes a n d regulations in connection with the procurement and are thus within the court's bid p rotest jurisdiction under 28 U.S.C. § 1491(b)(1). T h e court agrees with the plaintiff in that to the extent its claims relate to the Air F o rc e 's decision to exit the small business 8(a) program and instead procure credit reports u s in g the GSA Schedule, this court has jurisdiction to hear the case. In CCL, Inc. v.

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U n ite d States, 39 Fed. Cl. 780 (1997), the court considered a claim similar to the p la in tif f 's claim in this case under its bid protest jurisdiction. In CCL, the government d e c lin e d to renew the plaintiff's contract to provide computer maintenance services and

instead expanded the scope of another company's contract to cover the additional work previously performed by the plaintiff. Id. The plaintiff claimed that the agency violated the Competition in Contracting Act, by expanding the scope of another contract without opening up the additional work to competitive bidding. The government moved to dismiss the case, arguing, as here, that the plaintiff's claims were essentially a dispute regarding the administration of its contract, rather than a bid protest. The court rejected the government's reading of the complaint and held that the "procurement" at issue was not the plaintiff's previous contract, but the new contract being performed by another company. Id. at 788-89. The court held that pursuant to its bid protest jurisdiction, the court can hear: . . . both a suit challenging government action which is self-consciously a competitive procurement as well as what [the plaintiff] is claiming here: that [the agency] is procuring goods and services through a process that should have been the subject of competition; and that the failure to compete the procurement is in violation of law. Id. at 789 (emphasis in original). The rationale in CCL applies to this case as well. The plaintiff's challenge here is in connection with the Air Force's procurement of credit reports through the GSA schedule rather than through the small business program.

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In this regard, the plaintiff's challenge to the Air Force's decision to procure credit re p o rts using the GSA schedule is also consistent with the Federal Circuit's broad reading o f the term "procurement" in 28 U.S.C. § 1491(b)(1). The Federal Circuit has held that for p u rp o s e s of determining jurisdiction under Section 1491(b)(1), "procurement" includes " a ll stages of the process of acquiring property or services, beginning with the process for d e te rm in in g a need for property or services and ending with contract completion and c lo s e o u t." Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir.

2008) (emphasis added) (holding that the court has bid protest jurisdiction over preprocurement decisions). Similarly, the Federal Circuit has held that as long as a "statute has a connection to a procurement proposal, an alleged violation suffices to supply jurisdiction." RAMCOR Services Group, Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (holding that the court has jurisdiction to review objections to an agency's override of an automatic stay following a bid protest filed with the Government Accountability Office). Tested by these standards, the plaintiff's claims here can be fairly
re a d as challenging the Air Force's "procurement" decision to cancel its requirement for c re d it reports with the SBA under the 8(a) program in favor of procuring credit reports via th e FSS. Finally, the Court of Federal Claims has held in several cases that it has bid protest jurisd iction over challenges to agency procurement decisions involving use of the FSS. In b o th Idea Int'l, Inc. v. United States, 74 Fed. Cl. 129, 135-36 (2006) and Data Mgmt.

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S e rv ic e s Joint Venture v. United States, 78 Fed. Cl. 366, 371 n.4 (2007), the Court of F e d e ra l Claims held that while the Federal Acquisition Streamlining Act of 1994 restricted th e court's bid protest jurisdiction with regard to certain task and delivery contracts under th a t Act, there is not a similar restriction on the court's jurisdiction regarding FSS c o n tra c ts . See also Robert J. Sherry et al., Competition Requirements in General Services A d m in is tra tio n Schedule Contracts, 27 Pub. Cont. L. J. 467, 484-86 (2008). Similarly, the G o v e rn m e n t Accountability Office ("GAO") has considered bid protest challenges to p ro c u re m e n t decisions involving use of the FSS, including cases similar to the present a c tio n . In In re Information Ventures, Inc., B-291952, 2009 CPD ¶ 101, 2003 WL 2 1 0 8 9 1 4 9 (Comp. Gen. 2003), the GAO examined the merits of a plaintiff's protest ch allen g ing an agency decision to cancel a pre-solicitation notice of intent to procure s e rv ic e s under a small business set-aside and to instead solicit quotations from the FSS. In view of the foregoing authorities, the court finds that it has jurisdiction over p lain tiff 's objections to the Air Force's decision to remove its requirement for credit re p o rts from the 8(a) program and to use the FSS. Because the court has determined that it h a s jurisdiction under Section 1491(b)(1) to consider the plaintiff's objections to the Air F o rc e s' procurement decisions to leave the 8(a) program and to procure credit reports th ro u g h the FSS, this present case is distinguishable from Gov't Technical Servs. v. United S ta te s , 90 Fed. Cl. 522 (2009), and other similar cases 5 which hold that a plaintiff cannot The government also cites Alliant Techsystems, 178 F.3d 1260, Cessna Aircraft Co. v. United States, 126 F.3d 1442 (Fed. Cir. 1997), TGI Mgmt. Sys., Inc. v. United States, 78 Fed. Cl. 11
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b yp a ss the CDA process by claiming it is challenging a "procurement" decision when in fa ct the objection goes to contract administration. In Gov't Technical Services, the court h e ld that the plaintiff's claims that the contracting agency treated it unfairly, resulting in th e agency's decision not to exercise an option to extend the plaintiff's contract, were not rip e under the CDA and thus not within the court's bid protest jurisdiction. Gov't T e c h n ic a l Servs., 90 Fed. Cl. 522; see also ABF Freight Sys. Inc. v. United States, 55 Fed.

Cl. 392, 397 (2003) (holding that where a plaintiff is a successful bidder, claims related to the administration of its contract are properly brought under the CDA). While more
f a ctu a lly complex, Control Data Sys. v. United States likewise involved questions of c o n tra c t administration related to an existing contract that could not be heard using the c o u rt's bid protest jurisdiction. Control Data Sys., 32 Fed. Cl. 520, 524 (1994). These c a se s are distinguishable because the plaintiff's claims in this case concern procurement d e c is io n s that are separate from the procurement decision not to exercise a contract option. The Air Force's procurement decision to remove the procurement of credit reports from th e 8(a) program and to instead use the FSS to obtain the credit reports fall within the c o u rt's Section 1491(b)(1) jurisdiction.6

448 (2007), ABF Freight Sys. Inc. v. United States, 55 Fed. Cl. 392 (2003), Control Data Sys. v. United States, 32 Fed. Cl. 520 (1994) for the same proposition. The court's conclusion regarding jurisdiction does not mean that the injunctive relief the plaintiff seeks is necessarily available under Section 1491(b)(1). The court must distinguish between jurisdiction over the "claim" and the propriety of granting the "relief" requested. See Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 1993) ("[T]he existence of jurisdiction does not confirm the court's ability to supply relief."); Alliant Techsystems, 178 F.3d at 1271. 12
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T h e court next turns to the government's argument that K-LAK lacks the standing req u ired to bring its claims under Section 1491(b)(1). B. S t a n d in g E v e n while a court may have subject matter jurisdiction over a type of claim g e n e ra lly, a plaintiff must still establish standing in order to invoke the court's jurisdiction. Hoopa Valley Tribe v. United States, 597 F.3d 1278, 1283 (Fed. Cir. 2010). In the context o f the court's bid protest jurisdiction, a plaintiff only has standing if it is an "interested p a rty." See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). Interested parties are defined as "actual or prospective bidders or offerors whose direct e c o n o m ic interest would be affected by the award of the contract or by failure to award the c o n tra c t." Id. (citing 31 U.S.C. § 3551(2)(A) (2006)) (emphasis added). The government, ignoring the Air Force's decision to use the FSS to procure credit re p o rts , argues that the plaintiff is not an actual or prospective bidder because the plaintiff w a s the awardee of the only "contract" to obtain credit reports­the contract that expired in S e p t e m b e r 2008. Similarly, the government argues that because the plaintiff was a s u c c es s f u l bidder, it cannot establish the prejudice required for standing. In response, the p la in tif f again points to the government's erroneous characterization of its claims as o b je c tio n s to the Air Force's decision not to exercise the option in its contract. K-LAK a rg u e s that it has standing to challenge the Air Force's decision to procure credit reports v i a the FSS because the decision to procure from the FSS and not from a small business a f f e c te d its direct economic interest. 13

G iv e n the court's ruling regarding the nature of K-LAK's claims, the court must re je c t the government's argument that K-LAK lacks standing because it was a "successful b idd er," rather than an "actual or prospective bidder." As discussed above, the plaintiff's c laim s are related not to the contract it held, but to the decision to procure credit reports v ia the FSS, rather than from an 8(a) contractor such as the plaintiff. The plaintiff is a rg u in g that it was an actual or prospective bidder for the work now performed by Equifax a n d that it was harmed by the government's actions leading up to that award. For this re a so n , the plaintiff has established that it has the requisite standing to pursue this claim u n d e r the Tucker Act. The fact that K-LAK is not a contractor on the GSA schedule is not fatal to its s ta n d in g . This court addressed the standing of a non-FSS plaintiff to challenge an a g e n cy's decision to procure certain commercial items through the FSS in Klinge Corp. v. U n ite d States, 83 Fed. Cl. 773 (2008). In Klinge, the court held that although the plaintiff w a s not a bidder under the FSS task order, it had standing to challenge the cancellation of th e prior solicitation, for which it was a bidder, and in this connection the plaintiff had s ta n d in g to challenge the FSS award because of its link to the prior procurement. Id. at 7 7 6 (holding that despite the normal restriction of standing to pre-qualified FSS bidders, " [ i]n view of plaintiff's allegation that the decision not to award under the [Request for P r o p o s a ls ] was undertaken in a bad faith effort to direct the contract to [another c o n tra c to r] . . . plaintiff has standing to that extent to seek an injunction against the FSS

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ta sk order."); see also Klinge Corp. v. United States, 87 Fed. Cl. 473, 475 (2009) (e x p la in in g jurisdictional holding in denial of motion for reconsideration). Like the p la in tif f in Klinge, K-LAK was not a FSS bidder. But also like that plaintiff in Klinge, KL A K has demonstrated injury resulting from the agency's decision to change course in o b ta in in g its procurement of credit reports. Thus the "link" found in Klinge is also present in this case. See Klinge, 83 Fed. Cl. at 774. A contractor with similar standing to KL A K 's was also heard in Information Ventures, in which the Comptroller General, without s p e c if ic a lly addressing standing, reached the merits of a plaintiff's contention that an ag en cy improperly cancelled a pre-solicitation notice of intent to procure services under a s m a ll business set-aside, opting instead to solicit quotations from the FSS. Info. Ventures, 2 0 0 3 WL 21089149. For all of these reasons, the plaintiff has standing as an "interested party" for p u rp o se s of the exercise of this court's bid protest jurisdiction and may challenge the Air F o r c e 's decision to acquire credit reports via the FSS rather than through an 8(a) p ro c u re m e n t, as it had previously.7

The court notes, however, that to the extent the court decides that the Air Force's decision to procure credit reports via the FSS rather than using an 8(a) procurement was justified, K-LAK, a non-FSS contractor, would lack standing to challenge any particular orders from Equifax or other FSS providers. See Info. Ventures, 2003 WL 21089149 (no statute or regulation required the agency to consider small businesses in lieu of purchasing from the FSS); In re FitNet Purchasing Alliance, B-309911, 2007 CPD ¶ 201, 2007 WL 3257012 (Comp. Gen. 2007) ("Given that the decision was made to procure via the FSS, FitNet, which does not hold an FSS contract, is not an interested party to protest the terms of the solicitation." (internal citation removed)). 15

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C O N C L U SIO N B a se d on the reasons set forth above, the government's Motion to Dismiss for Lack o f Subject Matter Jurisdiction is DENIED. The government's response to the plaintiff's M o tio n for Judgment on the Administrative Record and any cross-motion are due August 2 0 , 2010. Additional briefing shall be due in accordance with the Rules of the Court of F e d e ra l Claims I T IS SO ORDERED. s /N a n c y B. Firestone NANCY B. FIRESTONE Judge

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