SUPERIOR ELECTRIC HOLDING GROUP, LLC v. USA

Filing 40

ORDER: The Clerk is directed to dismiss the complaint, without prejudice. Signed by Judge Francis M. Allegra. (si) Copy to parties.

In The United States Court of Federal Claims
No. 12-214C
(Filed: August 15, 2012)
__________
SUPERIOR ELECTRIC HOLDING GROUP,
LLC,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
and
WARD LEONARD ELECTRIC
COMPANY, INC.,

)
)
)

Defendant-Intervenor.
__________
ORDER
__________
In September 2011, plaintiff, Superior Electric Holding Group, LLC, was awarded an
indefinite-delivery, indefinite-quantity supply contract by the U.S. Navy. In response to a protest
at the General Accountability Office by the incumbent contractor, the Navy announced that it
would conduct discussions with both offerors before accepting revised proposals. After those
discussions, on March 15, 2012, the Navy issued a letter to both offerors, stating that “[t]he
Agency has determined that the procurement is irreparably flawed and has resulted in a flawed
contract award ” and providing “official notice” that the Navy “is canceling both [the]
Solicitation . . . and its resultant contract . . . to Superior Electric.” On April 2, 2012, plaintiff
filed its complaint protesting this corrective action. Subsequent briefing revealed a debate
among the parties as to whether the March 15th letter represented a final agency decision. On
August 10, 2012, the Navy sent letters to both offerors (now plaintiff and defendant-intervenor)
rescinding the March 15th letter. This letter clarified that the Navy has not cancelled the
solicitation or the resultant contract and indicated that “[n]o final decision has been made at this
time” regarding the contested procurement. The letter indicated that due to the pendency of this
protest, a stop work order remains in effect on plaintiff’s contract.

The Federal Circuit has repeatedly affirmed that this court may resolve only “cases or
controversies.” See Anderson v. United States, 344 F.3d 1343, 1349-50 (Fed. Cir. 2003); Glass
v. United States, 258 F.3d 1349, 1355-56 (Fed. Cir. 2001); see also Pueblo of Laguna v. United
States, 60 Fed. Cl. 133, 136 (2004). Under the case or controversy requirement, “federal courts
are without power to decide questions that cannot affect the rights of litigants in the case before
them.” DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (quoting North Carolina v. Rice, 404
U.S 244, 246 (1971)); see also Gerdau Ameristeel Corp. v. United States, 519 F.3d 1336, 1341
(Fed. Cir. 2008). Should such a situation arise, even after the filing of a lawsuit, the court’s only
recourse is to dismiss the complaint. See id. at 1340 (citing Allen v. Wright, 468 U.S. 737, 750
(1984)). Numerous cases make clear that these “case or controversy” principles apply fully to
bid protest actions brought under 28 U.S.C. § 1491(b)(1). See Gibraltar Indus., Inc. v. United
States, 726 F.2d 747, 748-49 (1984); see also Glenn Defense Marine (Asia), PTE v. United
States, 469 Fed. Appx. 865, 867 (Fed. Cir. 2012) (dismissing bid protest for lack of case or
controversy); Totolo/King Jt. Venture v. United States, 431 Fed. Appx. 895, 897 (Fed. Cir. 2011)
(same); GTA Containers, Inc. v. United States, 103 Fed. Cl. 471, 480-81 (2012).
In the court’s view, the letter sent by the Navy in March likely was a final decision that
gave rise to a justiciable dispute under this court’s bid protest statute, 28 U.S.C. § 1491(b)(1).
But, insofar as the court can tell, that decision was never effectuated – indeed, from the outset of
this litigation, defendant has taken the position that the March letter was not a final decision.
The letters sent by the Navy this past week have, at any rate, mooted the pending dispute by
“clarifying” that neither the solicitation nor the contract award to plaintiff has been cancelled.
Those same letters make clear that no decision has been made to cancel either the solicitation or
the award. Accordingly, any challenge to the Navy’s past decision is moot and any challenge to
its future decision is premature. To review the Navy’s past proposed corrective action, or to
speculate as to its future action, would be overstepping this court’s jurisdictional authority. See,
e.g., Chapman Law Firm Co. v. Greenleaf Const. Co., 490 F.3d 934, 940 (Fed. Cir. 2007)
(dismissing case for lack of jurisdiction where challenged corrective action was modified during
pendency of bid protest); Eskridge Research Co. v. United States, 92 Fed. Cl. 88, 94 (2010); see
also Madison Servs., Inc. v. United States, 90 Fed. Cl. 673, 679 (2009) (“Plaintiff cannot avoid
dismissal by speculating as to what [the agency] might do.”).
Accordingly, defendant’s motion to dismiss for lack of jurisdiction is GRANTED and
plaintiff’s complaint is hereby DISMISSED, without prejudice.1
IT IS SO ORDERED.

s/ Francis M. Allegra
Francis M. Allegra
Judge

1

Should the Navy subsequently cancel the award to plaintiff and should plaintiff
subsequently file a bid protest action in this court regarding such cancellation, the Clerk shall
assign the case to the undersigned and waive the filing fee.
2