PROGRESS FOR BAKERSFIELD VETERANS, LLC v. USA

Filing 37

Order of Dismissal, granting 27 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Senior Judge Eric G. Bruggink. (wr) Service on parties made.

In the United States Court of Federal Claims
No. 19-329C
(Filed: April 10, 2019)
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PROGRESS FOR BAKERSFIELD
VETERANS, LLC,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
and
SASD DEVELOPMENT GROUP, LLC,
Intervenor.
**************************
ORDER ON MOTION TO DISMISS
Pending in this bid protest is defendant’s motion to dismiss. The
government contends that the protest is moot in light of its March 27, 2019
notice of corrective action. In that notice defendant outlines three categories
of actions that it plans to take. First, the Veterans Administration (“VA”)
will reverse its decision eliminating the two proposals from Progress for
Bakersfield Veterans, LLC (“PBV”) from the competitive range, and the VA
will reinstate plaintiff into the competition. Second, the VA will engage in
discussions with PBV regarding both of its proposals and permit PBV to
submit revised technical and price proposals. Third, the VA will conduct a
reevaluation of all offered sites from all offerors to ensure compliance with
the site selection criteria set forth in Section 1.11 of the solicitation. The
government also outlines the options available to the VA that depend on the
results of the reevaluation. The current stop work order would remain in
effect for the duration of the VA’s corrective action.

Defendant takes the position that these actions are comprehensive of
the complaint as currently phrased. Plaintiff disagrees, arguing that the lease
awarded to intervenor must be terminated pending reevaluation; that the
agency must consider all site requirements stated in the solicitation, not just
those included in Section 1.11; and that the agency should apply a particular
standard to evaluating site requirements. 1
We agree with defendant. After reviewing the contentions in the
complaint, we find that they are fully addressed by the notice of corrective
action. We take at face value the agency’s representations. Requiring further
assurances from the agency at this point would be inappropriate. Dismissal
will be without prejudice to plaintiff’s ability to refile a protest, depending
on future agency conduct.
Accordingly, defendant’s motion to dismiss for lack of jurisdiction is
granted. The Clerk of Court is directed to dismiss the complaint and enter
judgment accordingly. No costs.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge

1

In addition, plaintiff argues that the government should pay PBV’s bid and
proposal preparation costs and the costs of bringing its protest at GAO, as
the government agreed to do at the conclusion of the GAO protest. We view
these costs as a species of alternative substantive relief that are mooted by
defendant’s notice of corrective action.
2