ECO TOUR ADVENTURES, INC. v. USA

Filing 19

SCHEDULING ORDER: The court DEFERS ruling on re: 14 defendants Motion to Dismiss for Lack of Jurisdiction, filed August 15, 2013, and suspends all subsequent briefing on the motion until further order of the court;Defendants Motion to Suspend the Briefing Schedule, filed August 15, 2013, is DENIED as moot; Defendants August 15, 2013 Motion to Lift the Temporary Suspension Described in the Scheduling Order Entered August 6, 2013, is GRANTED; The Clerks Office is directed to LIFT the temporary suspension on further procurement activity set forth in the Scheduling Order entered August 6, 2013. Defendant shall FILE a Supplement to the Administrative Record no later than 5:00 p.m. eastern time on September 6, 2013, wh ich shall include (1) the SSAs written final decision regarding the contracts at issue, and (2) all documentation supporting the SSAs written final decision. Defendant shall DELIVER two bound, tabbed, and indexed paper copies of the Supplement to the Administrative Record to chambers no later than 5:00 p.m. eastern time on September 9, 2013. Plaintiff shall FILE its Motion for Judgment on the Administrative Record no later than 5:00 p.m. eastern time on September 20, 2013. Defendant shall FILE its Cross-Motion for Judgment on the Administrative Record and Response to Plaintiffs Motion forJudgment on the Administrative Record by 5:00 p.m. eastern timeon October 4, 2013. Defendant may, in the alternative, file acombined Motion to Dismiss an d Cross-Motion for Judgment on theAdministrative Record. Plaintiff shall FILE its Response/Reply to Defendants Cross Motion by 5:00 p.m. eastern time on October 11, 2013. Defendant shall FILE its Reply by 5:00 p.m. eastern time on October 18, 2013. Oral Argument in this case shall be HELD on October 23, 2013 at 2:00 p.m. Oral Argument set for 10/23/2013 02:00 PM in National Courts Building before Judge Lynn J. Bush. Signed by Judge Lynn J. Bush. (TQ) Copy to parties.

In the United States Court of Federal Claims
No. 13-532 C
(Filed August 19, 2013)
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ECOTOUR ADVENTURES, INC., *
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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AMENDED SCHEDULING ORDER
Currently pending before the court is defendant’s August 15, 2013 Motion to
Dismiss the bid protest complaint filed by plaintiff EcoTour Adventures, Inc.
(EcoTour) on August 1, 2013. At the outset of the bid protest the parties agreed
that the protest could best be resolved by addressing the merits of the case. In that
regard, the government represented that although a final award decision had been
reached, no award had been made. The government therefore agreed to defer all
further procurement activities to permit a briefing of all of the issues and the
issuance of a decision on the merits by this court. Accordingly, the court’s August
6, 2013 Scheduling Order acknowledged the government’s agreement to suspend
all procurement activity on the disputed solicitation and set forth a briefing
schedule to resolve all outstanding issues in the protest, including jurisdictional
disputes.
Despite the established briefing schedule, defendant, on August 15, 2013,
filed a motion to dismiss the bid protest. In its motion, the government asserts that
its prior statement that a final decision had been made by the source selection
authority (SSA or Director) was in error and, in fact, no actual final decision has
been made. Therefore, defendant contends that the bid protest should be dismissed
on ripeness grounds. Defendant also asks the court to stay further briefing in the

protest and to lift the suspension of procurement activity to permit the SSA to
arrive at and issue a final decision.
On August 15, 2013, plaintiff filed a response in which it opposes the
government’s motion and contends that the administrative record demonstrates that
the Director has already rendered his final decision. Plaintiff also opposes any
changes to the briefing schedule and opposes lifting the suspension of further
procurement activity. On August 16, 2013, the government filed its reply in which
it reiterates its argument that the administrative record contains no written final
decision by the SSA.
On August 16, 2013, the court held a telephonic conference call with the
parties to discuss the issues presented in defendant’s motion to dismiss. At the
outset of the teleconference, the court noted that only two of the three counts in
plaintiff’s Amended Complaint appear susceptible to a ripeness challenge. The
court further noted that the jurisdictional facts necessary to resolve defendant’s
motion to dismiss have not been fully developed, either through the parties’ briefs
or the administrative record. The court, therefore, with the input and agreement of
counsel, established a revised briefing schedule to allow the Director to render a
final decision regarding the contracts at issue – but not to issue an actual contract
award – and to allow defendant to supplement the administrative record
accordingly.
Accordingly, it is hereby ORDERED that:
(1)

The court DEFERS ruling on defendant’s Motion to Dismiss for Lack
of Jurisdiction, filed August 15, 2013, and suspends all subsequent
briefing on the motion until further order of the court;

(2)

Defendant’s Motion to Suspend the Briefing Schedule, filed August
15, 2013, is DENIED as moot;

(3)

Defendant’s August 15, 2013 Motion to Lift the Temporary
Suspension Described in the Scheduling Order Entered August 6,
2013, is GRANTED;

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(4)

The Clerk’s Office is directed to LIFT the temporary suspension on
further procurement activity set forth in the Scheduling Order entered
August 6, 2013;

(5)

Defendant shall FILE a Supplement to the Administrative Record
no later than 5:00 p.m. eastern time on September 6, 2013, which
shall include (1) the SSA’s written final decision regarding the
contracts at issue, and (2) all documentation supporting the SSA’s
written final decision. Defendant shall DELIVER two bound, tabbed,
and indexed paper copies of the Supplement to the Administrative
Record to chambers no later than 5:00 p.m. eastern time on
September 9, 2013;

(6)

Plaintiff shall FILE its Motion for Judgment on the Administrative
Record no later than 5:00 p.m. eastern time on September 20, 2013;

(7)

Defendant shall FILE its Cross-Motion for Judgment on the
Administrative Record and Response to Plaintiff’s Motion for
Judgment on the Administrative Record by 5:00 p.m. eastern time
on October 4, 2013. Defendant may, in the alternative, file a
combined Motion to Dismiss and Cross-Motion for Judgment on the
Administrative Record;

(8)

Plaintiff shall FILE its Response/Reply to Defendant’s Cross
Motion by 5:00 p.m. eastern time on October 11, 2013;

(9)

Defendant shall FILE its Reply by 5:00 p.m. eastern time on
October 18, 2013;

(10) Except as otherwise provided herein, whenever briefing, including
exhibits and attachments, causes an electronic filing to exceed thirty
pages, the party shall DELIVER two paper courtesy copies of that
filing to chambers by 5:00 p.m. eastern time the day the filing is
due; and
(11) Oral Argument in this case shall be HELD on October 23, 2013 at
2:00 p.m. eastern time at the United States Court of Federal Claims,
National Courts Building, 717 Madison Place, N.W., Washington,
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DC. The location of the courtroom will be posted on the directory in
the lobby.

/s/Lynn J. Bush
LYNN J. BUSH
Judge

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