OWL, INC. v. USA

Filing 25

Re-docketed for posting to the court's website UNREPORTED ORDER denying 8 Motion for TRO; denying 9 Motion for Preliminary Injunction; granting 15 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Senior Judge Victor J. Wolski. (vds) Service on parties made.

In the United States Court of Federal Claims
No. 19-151C
(Filed February 27, 2019)
NOT FOR PUBLICATION

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OWL, 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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and
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KTS SOLUTIONS, INC.,
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Defendant–Intervenor. *
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ORDER
For the reasons stated on the record at the conclusion of today’s oral
argument, the Court GRANTS defendant’s motion to dismiss this case. Plaintiff,
Owl, Inc., alleges that the Department of Veterans Affairs (VA) failed to properly
implement corrective action that was promised, delayed a procurement in bad faith,
and improperly awarded a contract to intervenor KTS Solutions, Inc. Compl.
¶¶ 25–48. In sum, the Court found that under Blue & Gold Fleet, L.P. v. United
States, 492 F.3d 1308, 1313–15 (Fed. Cir. 2007), the claims concerning the
corrective action and bad faith were waived because Owl failed to file a protest on
those bases prior to the October 10, 2018 deadline for submitting a verification or
revised proposal. See Ex. 9 to Compl. at 7; Compl. ¶ 12 (stating that Government
Accountability Office protest was filed October 11, 2018). Both of these claims were
apparent from the face of the amendment to the solicitation issued by the VA on

October 1, 2018, which failed to contain the terms plaintiff expected and failed to
grandfather Owl for eligibility (after it surpassed the size limit for the ServiceDisabled Veteran-Owned Small Business award on January 1, 2018). Thus,
objections concerning the corrective action and the delay in implementing it were
due by the revised proposal deadline. See Blue & Gold, 492 F.3d at 1315; NVE, Inc.
v. United States, 121 Fed. Cl. 169, 179 (2015) (applying waiver to challenges to
corrective action). The Court further found that the October 10, 2018 submission
deadline was the latest date upon which Owl could have challenged the solicitation
provision restricting awards to businesses which meet the size requirements as of
the date of award. See Ex. 10 to Compl. at 37 (paragraph C.8(b)(2) of solicitation,
containing VAAR 852.219-10).
Having waived any challenge to provisions which render plaintiff ineligible
for the award, Owl cannot be considered an interested party with standing to
challenge the award to KTS. See Myers Investigative & Sec. Servs. v. United States,
275 F.3d 1366, 1370 (Fed. Cir. 2002); 28 U.S.C. § 1491(b)(1). Accordingly, the
government’s motion to dismiss the case is GRANTED, and Owl’s motion for a
preliminary injunction and application for a temporary restraining order are
DENIED as moot. The Clerk shall enter judgment for defendant and defendantintervenor.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge

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