L3 TECHNOLOGIES, INC. COMMUNICATION SYSTEMS-WEST v. USA

Filing 39

REPORTED OPINION. Signed by Senior Judge Marian Blank Horn. (jm5) Service on parties made.

In the United States Court of Federal Claims
No. 21-1819C
Filed: January 31, 2022
Redacted Version Issued for Publication: July 22, 20221
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L3 TECHNOLOGIES, INC.
COMMUNICATION SYSTEMS-WEST,
Protestor,
v.
UNITED STATES,
Defendant,

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v.
NORTHROP GRUMMAN SYSTEMS
CORPORATION,
Defendant-Intervenor.

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Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, DC, for
protestor. With him were Mark D. Colley, Kara L. Daniels, Michael D. McGill, Thomas
A. Pettit, Trevor G. Schmitt, and Aime JH Joo, Arnold & Porter Kaye Scholer LLP,
Washington, DC.
Steven M. Mager, Senior Trial Counsel, Department of Justice, Commercial
Litigation Branch, Civil Division, Washington, DC, for defendant. With him were Douglas
K. Mickle J., Assistant Director, Commercial Litigation Branch, Patricia M. McCarthy,
Director, Commercial Litigation Branch, and Brian M. Boynton, Acting Assistant Attorney
General, Civil Division. Theresa M. Francis and Thy Nguyen, Department of the Navy,
of counsel.
Jason A. Carey, Covington & Burling LLP, Washington, DC, for intervenor. With
him were Kayleigh M. Scalzo, J. Hunter Bennett, Andrew R. Guy, Peter B. Terenzio
III, and Paul Rowley, Covington & Burling LLP, Washington, DC.

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This Opinion was issued under seal on January 31, 2022. The parties were asked to
propose redactions prior to public release of the Opinion. This Opinion is issued with the
redactions that the parties proposed in response to the court’s request. Words which are
redacted are reflected with the notation: “[redacted].” The delay in publication of the
redacted Opinion was due to related court proceedings.

OPINION
HORN, J.
In the above-captioned bid protest, protestor L3 Technologies, Inc.
Communication Systems-West (L3Harris CSW) “challenges the implementation by the
Department of the Navy, Naval Air Systems Command of an arbitrary U[nited] S[tates]
Government Accountability Office [GAO] decision. The GAO decision, in violation of
procurement law and without reasoned basis, sustains, in part, the procedurally and
substantively deficient bid protests of Northrop Grumman Systems Corporation-Mission
Systems against the lawful Navy awards to L3Harris CSW . . . under Solicitation Nos.
N00019-19-R0069 and N00019-19-R0069-A.” (internal references omitted). As
discussed below, the Navy declined to fully implement the GAO recommendations,
specifically declining to re-open discussions, request revised proposals, evaluate
proposals consistent with the evaluation criteria, and make a new source selection
decision. L3Harris CSW had filed a bid protest in this court prior to the Navy’s final
decision to proceed with its original awards to L3Harris CSW. Thereafter, defendant and
intervenor, Northrop Grumman Systems Corp. (Northrop), filed motions to dismiss
L3Harris CSW’s protest as lacking standing and as moot.
FINDINGS OF FACT
The procurements at issue in this protest have a lengthy procedural history, only
some of which is relevant to the motions to dismiss currently under review in this protest
and this Opinion. Therefore, only the following limited facts are included below.
By way of background, the GAO explained:
On November 17, 2017, the Navy issued a broad agency announcement
(BAA) No. N0019-18-R-0008 for the award of demonstration of existing
technologies (DET) contracts to gather information for development . . . . In
October 2018, the agency awarded two DET contracts, one to Northrop and
a second to L3 Technologies, Inc. . . . The data gathered from both DET
contracts aided the Navy in drafting specifications for the NGJ-LB CB-1
procurement at issue in this case. While the contractors were performing
the DET contracts, the Navy began drafting the CB-1 specifications. To that
end, on May 15, 2019, the Navy released a request for information (RFI) to
industry, describing the NGJ-LB program and draft requirements. The RFI
was part of the Navy’s market research to evaluate the feasibility of
conducting an unrestricted procurement, as well as its continued pursuit of
data for the development of the CB-1 specifications.
Northrop Grumman Sys. Corp.--Mission Sys., B-419560.3, 2021 WL 4054164, at *1
(Comp. Gen. Aug. 18, 2021) (footnotes and internal references omitted).

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On September 9, 2019, the Navy issued Solicitation No. N00019-19-R0069 (CB-1
for the design, development, and manufacture of prototypes for the Navy. As noted
by the GAO, “[t]he resulting contract will require the successful firm to ‘design, develop,
build, integrate, test, and maintain’ operational prototypes” for the Navy. Id.
RFP),2

The CB-1 RFP contemplated “the award of a single cost-plus-incentive-fee
contract to the offeror that provides the best value to the government considering two
factors: technical and cost.” id., and with the Technical factor being significantly more
important than the Cost factor. The winning proposal, according to the CB-1 RFP, “must
demonstrate to the Government’s satisfaction that the Offeror will provide a program that
will ensure the successful accomplishment of the solicitation requirements and overall
program objectives.”
The Technical factor consisted of eleven elements that “are not individually
weighted and will be evaluated as a whole.” The CB-1 RFP described the Technical
Rating as “an assessment of compliance with the solicitation requirements and merit
which considers the benefits and detriments related to program performance and
operations.”
The CB-1 RFP also provided that the “[f]ailure to address part or parts of the
technical factor caused by a lack of information may be assessed as a weakness,
significant weakness or multiple significant weaknesses,” and a “combination of
significant weaknesses that increase the risk of unsuccessful contract performance to an
unacceptable level may be considered a deficiency.” “The Cost factor included a
determination of total evaluated cost, which would be calculated by adding together
various cost plus incentive fee and firm fixed price CLINs, plus the total evaluated cost
from the RFP addendum.”
Two offerors, the protestor L3Harris CSW and the intervenor Northrop, submitted
proposals in response to the CB-1 RFP and the Addendum RFP, and on February 25,
2020, the Navy established a competitive range that included both L3Harris CSW and
Northrop. As indicated in the protestor’s complaint: “Between February 2020 and October
2020, the Agency conducted ten rounds of discussions with L3Harris CSW and Northrop,
issuing a total of 971 evaluation notices (‘ENs’) ‘with an additional 350 ENs issued for the’
Addendum RFP and requesting multiple revised proposals. The Agency closed
discussions on October 29, 2020.” Subsequently on November 5, 2020, L3Harris CSW
and Northrop submitted their final proposal revisions.
The parties, as well as the GAO, refer to Solicitation No. N00019-19-R0069 as “CB-1
RFP.” Similarly, the parties and the GAO refer to Solicitation No. N00019-19-R0069-A as
the “Addendum RFP.” The court adopts the same terminology in this Opinion, and refers
to Solicitation No. N00019-19-R0069 as the CB-1 RFP, and Solicitation No. N00019-19R0069-A as the Addendum RFP. The GAO noted that the Navy issued the Addendum
RFP as a separate solicitation; “however, the RFP provided that the Navy would award
contracts for the CB-1 RFP and the Addendum RFP to one offeror.” Northrop Grumman
Sys. Corp.--Mission Sys., 2021 WL 4054164, at *1.
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In the January 21, 2021 debriefing the Navy provided the following chart comparing
the L3Harris CSW and Northrop proposals:
Factor

L3Haris CSW

Northrop

Rating

Outstanding

Unacceptable

Risk

Moderate

Unacceptable

Price

$544.4 Million

$496.0 Million

Terms and Conditions

No issues

No issues

Awardability

Awardable

Not Awardable

Technical

As indicated in L3Harris CSW’s bid protest complaint:
L3Harris CSW earned [redacted] strengths under the Technical Factor—
with “at least one strength in each element that could award a strength”—
demonstrating “its exceptional approach” and resulting in an Outstanding
Technical Compliance rating. . . . “The Government’s analysis of [L3Harris
CSW]’s design concluded that [redacted] are projected to meet
requirements.” L3Harris CSW's Moderate Risk rating resulted from “the
compilation of [redacted] significant weaknesses and [redacted] risk
reducers.” L3Harris CSW's risk reduction efforts gave the SSAC confidence
that L3Harris CSW will “overcome these risks with special contractor
emphasis and close Government monitoring.”
(internal references omitted).
By contrast, as indicated in L3Harris CSW’s bid protest complaint:
The Agency assigned Northrop Unacceptable Technical and Risk ratings
based on the compilation of seven significant weaknesses . . . and a
deficiency for Addendum RFP Section 2.4.7. The SSAC noted “six risk
reducers” for Northrop “that do not mitigate any of the significant
weaknesses or deficiency.” The Unacceptable ratings rendered Northrop's
proposal ineligible for award.
(internal references omitted).
On December 15, 2020, the Source Selection Authority concluded: “Any capability
that has the potential to significantly increase the Navy's air superiority, while reducing
mission load is well within the moderate risk associated with this design and development
program. Therefore, I believe L3H’s NGJ-LB proposal does represent the best value to
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the Government.” L3Harris CSW, therefore, was awarded both contracts pursuant to the
CB-1 RFP and the Addendum RFP on December 18, 2020.
As noted in L3Harris CSW’s complaint, Northrop subsequently “filed eight protests
and supplemental protests, including conflict of interest allegations (against the former
acting Secretary of the Navy, a retired admiral, and a Navy electronics engineer) and
technical evaluation challenges.” Relevant to the current bid protest in this court are two
decisions issued by the GAO on August 18, 2021,3 the first of which alleged a conflict of
interest involving [redacted], a former Navy official who was involved in both the DET
contracts and the NGJ-LB procurement during his time at the Navy, and who presently
works for L3Harris CSW. In the United States Court of Federal Claims Northrop has
alleged “[redacted] began pursuing employment with L3Harris in August 2019, during
performance of the DET contracts and approximately one month before the Navy issued
the CB-1 RFP,” “[redacted] accepted the job offer from L3Harris on October 1, 2019,” and
“[d]uring the time in which he was pursuing — and after he accepted — employment with
L3Harris, [redacted] worked on the CB-1 RFP and DET contracts on a ‘full time’ and
uninterrupted basis. He served as the Navy’s foremost technical expert” on the subject
matter of the contracts at issue in the above captioned protest.
On May 10, 2021, Northrop filed a protest with GAO “alleging that [redacted] failure
to recuse from his work on the CB-1 RFP and DET contracts while he pursued — and
after he accepted — employment with L3Harris created a conflict of interest and
appearance of impropriety under FAR 3.101-1.” In the GAO decision, the GAO indicated:
The record shows, and the agency does not dispute, that during the period
of August through early October of 2019, X[4] was negotiating for
employment with L3Harris while actively participating in the development of
the CB-1 specifications, and working closely with Northrop and L3Harris on
the performance of their DET contracts. X engaged in this conduct without
qualification or reservation notwithstanding the prohibition of FAR section
3.104-2(b), and the related applicable government ethics rules identified
under this FAR provision, which provide that a person should be disqualified
from participating substantially in an acquisition while negotiating for
employment with an offeror such as L3Harris. In defense of the award, the
agency essentially argues that X’s actions had no impact on the
competition. According to the agency any perceived conflict associated with
X’s employment negotiations did not taint the competition because his work
on the DET contract and the CB-1 specifications was limited and had no
As explained in protestor’s bid protest complaint, also on August 18, 2021, the GAO
“dismissed and denied” Northrop’s B-419557.2 and B-419557.3 protests relating to the
Addendum RFP, “upholding the Navy’s decision that Northrop was technically
unacceptable and thus ineligible for award under either contract based on Northrop’s
failure to propose an approach that could meet the Addendum RFP requirements.”
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In the publicly available GAO decision, the GAO uses “X” to refer to [redacted].
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discernable impact on the evaluation of Northrop’s and L3Harris’s
proposals. Based on our review of the record, we conclude that X’s actions
created the appearance of an unfair competitive advantage in favor of
L3Harris and that the agency's consideration of the conflict was
unreasonable. As detailed below, the record reflects X’s extensive
participation in developing the requirements for the CB-1 RFP at the same
time he engaged in employment negotiations with L3Harris, a known
potential competitor for the CB-1 procurement, and ultimate awardee. We
reject the agency’s conclusion that any apparent conflict did not have an
impact on the competition because the conclusion was without a reasonable
basis. We therefore sustain the protest.
Northrop Grumman Sys. Corp.--Mission Sys., 2021 WL 4054164, at *6 (footnotes and
internal citations omitted). The GAO decision indicated that
The record reflects that the Navy employed X as an electronics engineer
from 2013 to November 1, 2019. Between December 2017 and October
2019, X, based on his subject matter expertise, worked as a team leader
within the NGJ-LB program, specifically, the [DELETED] Lead. In this role,
X participated on the government/contractor technical teams for both
Northrop and L3Harris during the execution of their respective contracts; he
was familiar with both Northrop's and L3Harris's DET designs, and attended
working group and design status meetings with both contractors. As noted
above, the Navy used information gathered during the execution of the DET
contracts to ascertain the maturity of the technology for the NGJ-LB
program and to aide in drafting the CB-1 specifications. X also was part of
the Navy team that developed the CB-1 specifications and provided input
for the CB-1 evaluation criteria. In this capacity, even though X was not
authorized to approve CB-1 requirements unilaterally, he made
recommendations to the Chief Engineer. In 2019, an L3Harris employee
contacted X about a resume he had previously submitted to Harris's space
unit several years earlier. On September 9, 2019, the Navy issued the CB1 solicitation. On September 13, X applied for the Lead, [DELETED]
Systems Engineer with L3Harris SAS and was offered a position on
September 25. X met with Navy ethics counsel on September 30, at which
point he was advised that he did not need a post-government employment
ethics opinion and that he could accept employment with L3Harris SAS.
Although ethics counsel informed X about his obligation to the Navy and
with respect to confidential contractor information, the record does not
reflect that ethics counsel discussed X’s activities during the period of his
employment negotiations. Thereafter, X accepted L3Harris SAS's offer and
notified Northrop and L3Harris during individual team meetings held on
October 1 and 2 that he would be leaving the Navy to work for L3Harris
SAS. X performed his duties on the DET contracts and the CB-1 RFP until
his employment with the Navy ended on November 1. While X’s last day
physically in his office was October 18--he was on leave from October 19
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through October 31--X continued to work on the CB-1 RFP specifications
by answering email from a colleague and providing his input for the agency's
response to an offeror's question.
Id. at *7 (footnote and internal citations omitted; redactions in original). The GAO also
noted that
[w]ith regard to the DET contracts, X was part of the technical team for both
Northrop and L3Harris during the execution of each of their individual
contracts and the record reflects that between August 1 through October 2,
X participated in contract data requirements list (CDRL) reviews, DET
program management reviews/technical interchange meetings (PMR/TIM)
with Northrop and L3Harris.
Id. at *8 (footnote and internal citations omitted). The GAO referenced that the Navy
conducted an investigation of [redacted] and noted that
[t]he contracting officer’s investigation also examined X’s participation in the
CB-1 procurement from August 1 through November 13. The contracting
officer found that X participated in the procurement in four different ways:
(1) drafting government responses to industry questions on the draft and
final CB-1 RFP; (2) developing section L, instructions to offerors; (3)
developing the SOW and CDRL; and (4) developing SPS requirements. For
example, the record establishes that X participated in providing agency
responses to industry questions on the draft and final solicitation that
included updated technical details that remained in the final solicitation. X
also recommended changes to section L.2.1.3 of the RFP, under
instructions to offerors . . . These recommended changes were incorporated
in the final RFP and the Navy evaluated Northrop and L3Harris on their
compliance with these requirements. The investigation also showed that X
recommended changes to the SOW/CDRL, as well as made substantive
changes to several SPS requirements. As the record makes clear, X’s
recommendations were approved and included in the final RFP. X
recommended substantive changes to several specifications that were
reflected in the final RFP. In particular, X added significant detail to the draft
cSPS-1128 specification . . . dictated the required level of performance. The
draft SPS requirements did not fully define the cSPS-1128 specification and
the requirement was not measurable. X recommended edits on August 16,
2019, that defined the cSPS-1128 requirement; X updated the specification
text and a new table was added using numbers derived from X and his
team's analysis that defined performance metrics for [DELETED].
Id. at *8-*9 (internal citations omitted; redactions in original). The GAO explained that
regarding X's involvement with the CB-1 specifications, the agency points
to the fact that its investigation found that X had no authority to approve
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changes to the requirements and that all changes were approved at least
two levels above him. The agency also highlights aspects of the agency's
investigation, which found that X's work in developing the CB-1
requirements had no impact on the ultimate evaluation, or that such an
impact may have actually benefited Northrop. For example, the contracting
officer found that X's recommendations had minimal impact on the CB-1
procurement because neither offeror took exception to the SOW/CDRL
changes. The contracting officer also concluded X’s contributions were
minimal because the SPS requirement changes were unrelated to technical
findings in the agency's evaluation, concluding, without explanation, that X’s
updated cSPS-1128 specification would affect all proposals. Additionally,
the contracting officer noted that Northrop received no technical findings
from the agency's evaluation related to the cSPS-1128 requirement,
whereas L3Harris received a significant weakness for this requirement.
Regarding the DET contracts, the Navy found that X's participation in
PMR/TIM meetings and the comments he made during the meetings did not
provide direction to change the contractors’ designs and did not have a
significant impact on the CB-1 evaluation.
Id. at *9-*10 (internal citations omitted).
The GAO decision reiterated that “[t]he facts are clear and there is no dispute that
X participated in the development of CB-1 specifications and the execution of the DET
contracts, while engaged in employment negotiations with L3Harris. Accordingly, the
record is consistent with the circumstances attendant to a ‘biased ground rules’ conflict
of interest.” Id. at *9. With respect to the Navy’s arguments regarding its investigation,
GAO reasoned
the agency’s conclusion about its investigation reflects a circular logic.
According to the Navy, because there is no evidence in the evaluation
record to demonstrate that Northrop's proposal received adverse technical
findings for requirements that X worked on while negotiating employment
with L3Harris, or that L3Harris received favorable ratings, there was no
harm. The failure to find such proof in the evaluation findings, however,
does not suggest the lack of a conflict, or the lack of bias in the
specifications because, as explained above, the potential harm from such a
conflict is by its nature, not susceptible to such proof. See Teledyne Brown
Eng’g, Inc., supra [B-418835, 2020 WL 5760360 (Comp. Gen. Sept. 28,
2020)]; Department of the Navy--Recon., supra [B-286194.7, 2002 WL
1120729 (Comp. Gen. May 29, 2002)].The hard facts that are required are
those which establish the existence of the organizational conflict of interest,
not the specific impact of that conflict. See HBI-GF, JV, B-415036, Nov. 13,
2017, 2017 CPD ¶ 331 at 7; Satellite Tracking of People, LLC, B-411845,
B-411845.2 Nov. 6, 2015, 2015 CPD ¶ 347 at 8 (where the contracting
officer identified a conflict of interest, but undertook no actions to safeguard
the procurement process, GAO “need not resolve the question of whether
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the program manager's participation in the acquisition favored, disfavored,
or had no impact” on the protester. “To maintain the integrity of the
procurement process, we will presume that the protester was prejudiced,
unless the record includes clear evidence establishing the absence of
prejudice.”). Because the circumstances of X's apparent conflict concerned
the integrity of the ground rules of the competition, the agency should have
instead focused its inquiry on the integrity of the specifications and their
potential for bias; rather than the resulting evaluation. For example, we have
found that allegedly biased specifications can be mitigated by subsequent
activities by unbiased individuals. See e.g., BAE Sys. Tech., B-411810.3,
June 24, 2016, 2016 CPD ¶ 174 at 13-15 (contracting officer reasonably
concluded that significant changes to solicitation requirements reasonably
mitigated potential biased ground rules conflict). Having failed to do so, we
cannot find that the agency has presented clear evidence to establish the
absence of prejudice.
Northrop Grumman Sys. Corp.--Mission Sys., 2021 WL 4054164, at *11.
Therefore, the GAO concluded: “For the above reasons, the appearance of
impropriety resulting from the biased ground rules conflict of interest at issue here tainted
the integrity of the procurement, and we therefore sustain the protest.” Id. In its
recommendations section, GAO recommended:
In this protest we sustain the allegation that an apparent conflict of interest
was created when X, who was engaged in employment negotiations with
L3Harris also developed specifications for the CB-1 solicitation. The
ordinary remedy where a conflict cannot be mitigated is the elimination of
that competitor from the competition. See The Jones/Hill Joint Venture,
supra at 22 n.26. Here, we are mindful that it is neither feasible nor desirable
to eliminate L3Harris from the competition and it may be possible to mitigate
the conflict by engaging individuals without a conflict to review the
specifications tainted by X’s conflict of interest. We therefore recommend
that the Navy engage individuals with the requisite technical expertise to
conduct an independent review of X’s input during the relevant period of
conflict on the CB-1 specifications to determine whether X’s input was
consistent with the Navy’s actual requirements.
If the agency concludes that the specifications continue to reflect its needs,
we recommend that the agency reopen discussions and request revised
proposals, evaluate proposals consistent with the evaluation criteria, and
make a new source selection decision. Alternatively, if the agency decides
that its specifications have changed, we recommend that the agency issue
an amendment reflecting its updated requirements, request revised
proposals, and make a new source selection decision.

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We also recommend that Northrop be reimbursed its reasonable costs of
filing and pursuing its protest, including attorneys’ fees. 4 C.F.R. §
21.8(d)(1). The protester’s certified claim for costs, detailing the time
expended and costs incurred, must be submitted directly to the agency
within 60 days after receipt of this decision.
Northrop Grumman Sys. Corp.--Mission Sys., 2021 WL 4054164, at *11-*12.
Also on August 18, 2021, the GAO issued a second related decision. See generally
Northrop Grumman Sys. Corp.-Mission Sys., B-419560.6, 2021 WL 4902511 (Comp.
Gen. Aug. 18, 2021). Northrop protested the award L3Harris CSW and alleged that “the
agency misevaluated the awardee’s proposal when it rated the proposal as acceptable
despite the fact that the proposal did not demonstrate compliance with a material
solicitation requirement.” Id. at *1. In this second GAO decision, the GAO indicated that
“Northrop alleges that L3Harris did not propose an approach to meet the cSPS–1128
specification,” and
that the Navy should have assessed L3Harris’s proposal a deficiency for
failing to meet this threshold requirement instead of a significant weakness.
In challenging the agency evaluation, Northrop disputes the agency’s
contention that L3Harris merely had to propose ‘a path to meeting’ the
threshold requirement, and argues, in any event, that L3Harris offered no
path. According to Northrop, L3Harris’s proposal was technically
unacceptable and ineligible for award.
Id. at *4. The GAO noted that
[t]he agency makes several arguments in response to Northrop. Essentially,
the Navy contends that the RFP did not require L3Harris to demonstrate a
design approach that met the specification because the solicitation did not
require offerors to submit a complete design before contract award. Thus,
proposing to improve its approach during the performance of the contract
did not reflect a failure of L3Harris to meet solicitation requirements. The
agency maintains that it properly assessed the level of risk associated with
L3Harris's proposed design approach to meet requirements as “significant”
and found that L3Harris proposed a “credible” path to meet the
requirements. In this regard, the Navy contends that it consistently
assessed a significant risk when either Northrop or L3Harris proposed a
credible path to meet the requirement or proposed a design that improved
upon the design that generated most of the substantiating data.
Id. at *5 (internal references omitted). Despite the explanations offered by the Navy, the
GAO concluded:
Notwithstanding the agency’s arguments to the contrary, we agree with the
protester that the agency's evaluation of L3Harris’s proposal was not
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consistent with the terms of the solicitation. While the solicitation did not
require complete pod designs at the time of proposal submission, the
solicitation did identify certain “threshold” requirements, to include the . . .
specification. For these threshold requirements, offerors were to “describe
how [their] design approach meets” the . . . requirements. By use of the
present tense “meets,” the plain language of the solicitation required
offerors to demonstrate in their proposals that their design approach
“meets” the threshold requirements. Despite the clear language of the
solicitation, requiring offerors to describe how their design approach
“meets” the cSPS–1128 threshold requirements, the record shows that the
agency's evaluators considered L3Harris’s proposed design approach as
acceptable, albeit with significant risk, notwithstanding the fact that
L3Harris’s proposal did not describe an approach that actually “meets”
these requirements.
Specifically, the agency found that L3Harris’s proposed approach “has not
been fully substantiated to enable full compliance with [DELETED]
requirement, (cSPS–1128) resulting in potential technical and schedule
risk.” The agency also specifically observed that L3Harris's proposed
[DELETED] “does not meet requirements at some [DELETED] frequencies”
and that L3Harris planned to [DELETED] for the [DELETED] frequencies
where the requirement could not be met. The agency noted that while
L3Harris's proposed [DELETED] showed “up to [DELETED] improvement;
. . . . however, [L3Harris] does not directly compare the proposed improved
performance to requirements.”
Despite the fact that L3Harris’s proposed design approach did not meet the
stated requirements, the agency noted that L3Harris intends to continue to
improve the [DELETED] during the performance of the CB–1 contract and
found that L3Harris's proposed approach to use the [DELETED] “provides
a credible path to meeting [DELETED] requirements” even though the
proposed design is not fully substantiated. The agency concluded that this
limited substantiation increased the risk of meeting . . . compliance. The
agency also concluded that this risk, combined with another risk not relevant
to this discussion, warranted a significant weakness for L3Harris’s
overall . . . approach.
There is no dispute that the Navy’s own evaluators found that L3Harris's
proposal did not demonstrate an approach that met the threshold
requirements for the cSPS–1128 specification. L3Harris’s proposal includes
a table identifying 16 frequencies that do not achieve the [DELETED]
threshold requirements and even with L3Harris’s anticipated modifications
identified in its proposal, L3Harris’s approach will not meet the requirement
for 12 frequencies. Accordingly, we agree with the protester that L3Harris’s
proposal did not comply with the cSPS–1128 requirements. To the contrary,
L3Harris's proposal clearly reflected a design approach that did not meet
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these requirements. Accordingly, the agency erred by failing to assign L
3Harris’s proposal a deficiency for this failure. Throughout its defense, the
agency insists that it properly focused on the risk related to L3Harris's
limited substantiation for its [DELETED] because L3Harris proposed a
credible path forward to meet the requirement. The agency’s argument,
however, reflects a misunderstanding of the fundamental problem with the
evaluation. The error in the agency’s evaluation is not whether, or the
degree to which, L3Harris substantiated its design approach. Rather, the
error is the agency's failure to properly assess L3Harris’s failure to comply
with the requirement to provide a design approach that “meets” the cSPS–
1128 specification threshold requirements. In other words, per the terms of
the solicitation, L3Harris was required to demonstrate a compliant approach
in its proposal, not after award. While the agency could reasonably consider
the risks associated with the viability of a proposed approach, the approach
had to some degree demonstrate that it met requirements in the first
instance. The agency’s consideration of risks of L3Harris's substantiation of
an approach that did not, as a threshold matter, demonstrate the ability to
meet the requirement as proposed, is therefore beside the point.
As explained above, L3Harris’s proposal clearly showed how its approach
fell short of many of the threshold requirements set forth under the cSPS–
1128 specification. L3Harris clearly identified each of the non-compliant
frequencies, which it referred to as “less than ideal.” L3Harris’s alleged “path
forward” was little more than the firm's cautiously optimistic statements
about a potential ability to comply, although hedging that “improvements . .
. do not directly translate to an increase in compliance” and that positive
impacts on BAPs were “as of yet, unquantified.” L3Harris’s proposal was
therefore technically unacceptable. Based on this record, the agency
unreasonably evaluated L3Harris’s proposal as technically acceptable and
we sustain the protest.
Id. at *5-*6 (footnote and internal citations omitted). In its recommendations section, the
GAO recommended:
In this protest, we sustain the allegation that the Navy unreasonably
evaluated L3Harris’s proposal as technically acceptable when L3Harris's
proposed approach did not meet the solicitation's material requirements.
We therefore recommend that the Navy reopen discussions and request
revised proposals; evaluate proposals consistent with the evaluation
criteria; and make a new source selection decision. Alternatively, if in
conjunction with our recommended corrective action in Northrop Grumman
Systems Corporation-Mission Systems, B–419560.3 et al., supra, the
agency concludes that its specifications should be revised, we recommend
that the agency issue an amendment to the solicitation reflecting updated
specifications, request revised proposals, and make a new source selection
decision. We also recommend that Northrop be reimbursed its reasonable
12

costs of filing and pursuing its protest, including reasonable attorneys' fees.
4 C.F.R. § 21.8(d)(1). The protester's certified claim for costs, detailing the
time expended and costs incurred, must be submitted directly to the agency
within 60 days after receipt of this decision.
Northrop Grumman Sys. Corp.-Mission Sys., 2021 WL 4902511, at *7 (footnote omitted).
On September 7, 2021, protestor L3Harris CSW filed this bid protest complaint in
this court. The complaint lists three counts. Count 1 is titled: “The implementation of the
GAO decision lacks reason and contravenes the law given that Northrop lacked standing
to protest the L3Harris CSW awards,” and regarding Count 1, protestor argues “[d]uring
the protest process, the Contracting Officer affirmed that L3Harris offered the only viable
solution and Northrop’s solution remained deficient” and that “Northrop did not contest
any of the findings underlying its assessed deficiency and GAO denied Northrop's
Addendum RFP protest in any event.” Protestor claims that “GAO did not address (much
less resolve) the standing motions before it,” and therefore “GAO’s decision is arbitrary,
capricious, and contrary to law and any action to implement GAO’s recommendation also
necessarily lacks a rational basis.” Count 2 is titled: “GAO’s Decision regarding [redacted]
in Northrop Grumman Sys. Corp.-Mission Sys., B-419560.3, B-419560.4, B-419560.5,
and B-419560.7 is arbitrary, capricious, an abuse of discretion, and otherwise contrary to
law rendering implementation of the GAO [redacted] recommendation flawed.” Protestor
argues, regarding Count 2, “GAO lacked jurisdiction to review Northrop's PIA
[Procurement Integrity Act] claims,” and “GAO arbitrarily failed to address that Northrop
had waived its protest under established procurement law.” Protestor also argues that
“GAO's decision ignored the material fact that Legacy Harris (including the entity that
hired [Mr. X]) supports Northrop,” as well as “GAO in violation of procurement law and
without explanation took the ‘Most Unusual’ step of disregarding the contemporaneous
guidance provided by Navy Ethics Officials,” and “GAO violated well established law by
not deferring to the contracting officer's reasonable conflict of interest investigation and
conclusions.” (capitalization in original). For Count 3, titled: “GAO irrationally sustained
Northrop Grumman Sys. Corp.-Mission Sys., B-419560.6, rendering the Navy’s
implementation decision improper,” protestor claims that “[t]he GAO failed to address the
untimeliness of Northrop’s” arguments. Protestor also argues “GAO improperly
substituted its judgment for the reasoned, highly-technical conclusions of the agency
experts.” (capitalization in original).
Protestor’s complaint alleges that
L3Harris CSW has standing to file this action because the Agency's
decision to implement GAO's irrational and unlawful recommendation
affects L3Harris CSW's direct economic interests in several significant
ways, including by: (1) effectively nullifying the Navy's prior proper contract
award to L3Harris CSW and requiring L3Harris CSW to compete a second
time and win the same contract twice, see CBY Design Builders v. United
States, 105 Fed. Cl. 303, 337-38 (2012); Sheridan Corp. v. United States,
95 Fed. Cl. 141, 149-50 (2010); (2) unnecessarily forcing L3Harris CSW to
13

expend the time, effort, and expense of recompeting for a contract it has
already lawfully won, see Sys. Application & Techs., Inc. v. United States,
100 Fed. Cl. 687, 710 (2011), aff’d 691 F.3d 1374 (Fed. Cir. 2012); Jacobs
Tech. v. United States, 100 Fed. Cl. 173, 177 (2011); (3) delaying L3Harris
CSW's performance and income under the awarded contract, Sys.
Application, 100 Fed. Cl. at 710; and (4) requiring L3Harris CSW to compete
against itself as the Agency released L3Harris CSW competition-sensitive
information to the unsuccessful offerors during debriefings. Id.; Sheridan
Corp., 95 Fed. Cl. at 150.
L3Harris CSW’s bid protest complaint requested that the court declare “GAO’s flawed
rulings and recommendations and the Agency’s implementation of GAO's flawed rulings
and recommendations irrational and contrary to law;” declare “the Navy's reasoned, lawful
contract awards to L3Harris CSW under the CB-1 RFP and Addendum RFP valid and not
subject to re-competition based on Northrop's untimely and meritless GAO protests or
GAO's flawed rulings and recommendations;” and declare “that the Navy may proceed
with the performance of the lawful contract awards to L3Harris CSW under the CB-1 RFP
and Addendum RFP.” L3Harris CSW also seeks to enjoin the Navy from implementing
the GAO’s decisions and terminating L3Harris CSW’s contract.
After L3Harris CSW filed its bid protest complaint, on October 18, 2021, Vice
Admiral Carl P. Chebi, Commander, Naval Air Systems Command, sent GAO a letter
which stated:
Pursuant to 31 U.S.C. § 3554(b)(3), the Naval Air Systems Command (NA
VAIR or Agency) notifies the Government Accountability Office (GAO) that
the Agency will not fully implement GAO' s recommendations provided in
references (a) and (b). In accordance with 31 U.S.C. § 3554(b)(3), if an
agency does not fully implement the GAO recommendation within 60 days
after receiving the GAO decision, the head of the procuring activity must
notify the GAO not later than 5 days after the end of the 60-day period. GAO
issued references (a) and (b) on 18 August 2021, which allows the Agency
until 22 October 2021 to notify the GAO of its decision whether to implement
GAO's recommendation. This notice is timely and in compliance with the
Agency's statutory obligations.
In references (a) and (b), the GAO sustained the protests of Northrop
Grumman Systems Corp. (NGC), finding the Agency failed to reasonably
consider the potential impact of a conflict of interest created by employment
negotiations between L3 Harris Space and Airborne Systems and a former
government employee (X), and that the Agency unreasonably evaluated L3
Harris Communication Systems West's (CSW) proposal as technically
acceptable. The GAO recommended the Agency (1) engage non-conflicted
individuals with the requisite technical experience to review the
specifications tainted by X’s conflict of interest to determine whether X’s
input was consistent with the Navy's actual requirements; (2) re-open
14

discussions, request revised proposals, evaluate proposals consistent with
the evaluation criteria, and make a new source selection decision; and (3)
reimburse NGC its reasonable costs of filing and pursuing its protest,
including reasonable attorney fees.
The Agency has implemented GAO’s first recommendation. In response to
that recommendation, the Agency conducted a broad search across the
Department of Defense to determine a pool of individuals with the requisite
technical experience who are not associated with the NGJ-LB program and
who could review the Agency's requirement documents. The Agency further
limited this pool to three qualified individuals and created an Independent
Review Team (IRT) to carry out the GAO's recommended review. To ensure
that the IRT members were objective, the IRT includes one member from
the Office of Naval Research, one member from an Air Force Research
Laboratory, and one member from the Naval Air Warfare Center, Weapons
Division, none of whom were previously involved with the NGJ-LB program
or report to the Program Executive Office for Tactical Aircraft Programs, the
Source Selection Authority. The IRT assessed whether the input X provided
on various specifications was consistent with the Agency's requirement.
After careful review, the IRT determined the specifications with X’s input
were and remain consistent with the Agency's requirement.
The Agency will not implement GAO’s second recommendation. During the
course of the protests, the Agency explained the solicitation requirements
and evaluation criteria, particularly that the solicitation provided the
technical experts with discretion whether or not to assess a deficiency in the
context of this development effort. The Agency believes the second
recommendation does not adequately account for the developmental nature
of the Agency's requirement as it relates to the evaluation criteria and the
Agency's evaluation, and that GAO misinterpreted the solicitation
requirements in this regard. It is therefore unnecessary for the Agency to
reopen discussions and reevaluate revised proposals in order to make a
proper source selection decision. Thus, the Agency respectfully disagrees
with, and will not implement, the GAO's second recommendation.
In response to the GAO's third recommendation, the Agency will negotiate
with NGC for reimbursement of its reasonable costs of filing and pursuing
its GAO protest. Absent further litigation by the parties, the Agency will lift
the stop work order for contract No. N00019-21-0021 on 28 October 2021.
After the October 18, 2021 letter, the court instructed the parties to file a joint status report
as to how to proceed in the above captioned protest, and on October 25, 2021, the court
held a hearing to address the October 18, 2021 letter and the parties’ joint status report.
As indicated the October 25, 2021 hearing, and after discussions with the parties, the
court set a schedule for defendant and the intervenor to file motions to dismiss, if

15

defendant and the intervenor believed this court lacked jurisdiction over the protestor’s
complaint.
In defendant’s motion to dismiss L3Harris CSW’s bid protest complaint, defendant
argues that “L3Harris CSW’s challenge has been rendered moot,” L3Harris CSW does
not have standing and “[t]his Court does not possess jurisdiction to entertain L3Harris
CSW’s challenge to the agency’s affirmance of its award to L3Harris CSW after corrective
action.” Intervenor argues that “L3Harris has no cognizable harm and no standing.
Moreover, the concerns raised in L3Harris’s complaint have been mooted by the Navy’s
decision to continue with its awards to L3Harris, and any concerns L3Harris may seek to
raise now about hypothetical future action by the Navy are unripe. L3Harris’s protest
should therefore be dismissed for lack of jurisdiction.” In response, protestor argues that
its bid protest complaint “asserts the necessary injury for standing,” and “L3Harris CSW's
protest is not moot.” Furthermore, L3Harris CSW claims that “[t]he issues and controversy
between the parties remain live.” The defendant and intervenor each filed reply briefs,
reiterating that this court does not have jurisdiction to continue to consider protestor’s
claims. The motions are fully briefed.
After the October 25, 2021 hearing, but before the motions to dismiss were filed in
the above captioned protest, Northrop filed a separate bid protest,5 to protest the Navy’s
decision to continue with its award to L3Harris CSW. See Northrop Grumman Sys. Corp.
– Mission Sys. v. United States, Case No. 21-2099C. Northrop argued in its separately
filed protest: “The Navy made award to L3 Technologies, Inc. Communication SystemsWest even though the company was ineligible for two independent reasons. The U.S.
Government Accountability Office reviewed the procurement and, in two detailed
decisions, explained the Navy’s errors and recommended that the Navy fix them. The
Navy, however, refuses to do so, and intends to proceed with the illegal award to
L3Harris.” (internal references omitted). In its bid protest complaint in Case No. 21-2099C,
Northrop requested that the court “[p]ermanently enjoin the Navy from proceeding with
the illegal contracts awarded to L3Harris,” “[d]eclare L3Harris ineligible by reason of its
failure to comply with a material term of the solicitation,” “[d]eclare L3Harris ineligible by
reason of the conflict of interest created by [Mr.x]’s failure to recuse,” and “[d]eclare that
the Navy’s failure to fully implement the corrective action recommended by GAO was
irrational, inadequately documented, and contrary to law.”
DISCUSSION
In considering defendant’s and intervenor’s motions to dismiss L3Harris CSW’s bid
protest for lack of jurisdiction, the court notes that “[i]t is well established that “‘subjectmatter jurisdiction, because it involves a court’s power to hear a case, can never be
forfeited or waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United
States v. Cotton, 535 U.S. 625, 630 (2002)). “[F]ederal courts have an independent
obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore
they must raise and decide jurisdictional questions that the parties either overlook or elect
Northrop’s bid protest, Northrop Grumman Systems Corporation – Mission Systems v.
United States, Case No. 21-2099C, was assigned to the undersigned.
5

16

not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011); see also
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Courts have an independent obligation to
determine whether subject-matter jurisdiction exists, even when no party challenges it.”
(citing Arbaugh v. Y & H Corp., 546 U.S. at 514)); Special Devices, Inc. v. OEA, Inc., 269
F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to
hear and decide a case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d
160, 161 (Fed. Cir. 1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962,
963 (Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties
raise the issue or not.”). “The objection that a federal court lacks subject-matter
jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage
in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546
U.S. at 506; see also Hymas v. United States, 810 F.3d 1312, 1317 (Fed. Cir. 2016)
(explaining that a federal court must satisfy itself of its jurisdiction over the subject matter
before it considers the merits of a case); Cent. Pines Land Co., L.L.C. v. United States,
697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection to a court's subject matter
jurisdiction can be raised by any party or the court at any stage of litigation, including after
trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506)); Rick’s
Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party
may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.”
(citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344,
1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S.
1127 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)));
Pikulin v. United States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir.
2011). In fact, “[s]ubject matter jurisdiction is an inquiry that this court must raise sua
sponte, even where . . . neither party has raised this issue.” Metabolite Labs., Inc. v. Lab.
Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead
Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined
(Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir.
2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc.,
546 U.S. 975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006).
This court has jurisdiction to hear bid protests pursuant to 28 U.S.C. § 1491(b)(1)
(2018) of the Tucker Act, which provides that this court has
jurisdiction to render judgment on an action by an interested party objecting
to a solicitation by a Federal agency for bids or proposals for a proposed
contract or to a proposed award or the award of a contract or any alleged
violation of statute or regulation in connection with a procurement or a
proposed procurement.
28 U.S.C. § 1491(b)(1); see also Harmonia Holdings Grp., LLC v. United States, 999 F.3d
1397, 1403 (Fed. Cir. 2021); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359
(Fed. Cir. 2009). The Administrative Dispute Resolution Act of 1996, codified at 28 U.S.C.
§ 1491(b)(1)–(4), amended the Tucker Act to establish a statutory basis for bid protests
in the United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed. Cir. 2001).

17

The Tucker Act grants the United States Court of Federal Claims “jurisdiction to
render judgment on an action by an interested party objecting to a solicitation by a Federal
agency for bids or proposals for a proposed contract or to a proposed award or the award
of a contract or any alleged violation of statute or regulation in connection with a
procurement or a proposed procurement.” 28 U.S.C. § 1491(a)(1). In order to have
standing to sue as an “interested party” under this provision, a disappointed bidder must
show that it suffered competitive injury or was “prejudiced” by the alleged error in the
procurement process. See Todd Constr., L.P. v. United States, 656 F.3d 1306, 1315 (Fed.
Cir. 2011) (To prevail, a bid protester must first “‘show that it was prejudiced by a
significant error’ (i.e., ‘that but for the error, it would have had a substantial chance of
securing the contract).’” (quoting Labatt Food Serv., Inc. v. United States, 577 F.3d 1375,
1378, 1380 (Fed. Cir. 2009)); see also Eskridge & Assocs. v. United States, 955 F.3d
1339, 1345 (Fed. Cir. 2020) (“In a post-award bid protest, the relevant inquiry is whether
the bidder had a ‘substantial chance’ of winning the award—specifically, whether a
protestor ‘establish[ed] not only some significant error in the procurement process, but
also that there was a substantial chance it would have received the contract award but
for that error.’” (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir.
1996))) (alteration in original); Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1317;
Blue Origin Fed'n, LLC v. United States, 157 Fed. Cl. 74, 89 (2021); Aero Spray, Inc. v.
United States, 156 Fed. Cl. 548, 562 (2021); AECOM Mgmt. Servs., Inc. v. United States,
147 Fed. Cl. 285, 290 (2020). In order to establish what one Judge on this court has called
“allegational prejudice” for the purposes of standing, the bidder must show that there was
a “substantial chance” it would have received the contract award, but for the alleged
procurement error. See Hyperion, Inc. v. United States, 115 Fed. Cl. 541, 550 (2014)
(“The government acknowledges that proving prejudice for purposes of standing merely
requires “allegational prejudice,” as contrasted to prejudice on the merits . . . .”); Bannum,
Inc. v. United States, 115 Fed. Cl. 148, 153 (2014); see also Bannum, Inc. v. United
States, 404 F.3d 1346, 1358 (Fed. Cir. 2005); Galen Med. Assocs., Inc. v. United States,
369 F.3d 1324, 1331 (Fed. Cir.), reh’g denied (Fed. Cir. 2004); Info. Tech. & Applications
Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2003); Statistica, Inc. v. Christopher, 102 F.3d at 1581; Archura LLC v. United
States, 112 Fed. Cl. 487, 497 (2013); Lab. Corp. of Am. v. United States, 108 Fed. Cl.
549, 557 (2012). Because standing is a jurisdictional issue, this showing of prejudice is a
threshold issue. See Corus Grp. PLC. v. Int’l Trade Comm'n, 352 F.3d 1351, 1357 (Fed.
Cir. 2003); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370
(Fed. Cir. 2002).
In a post-award bid protest, such as the above-captioned bid protest, the “protestor
must ‘establish that it (1) is an actual or prospective bidder, and (2) possesses the
requisite direct economic interest.’” Mgmt. & Training Corp. v. United States, 137 Fed. Cl.
780, 783-84 (2018) (quoting Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed.
Cir. 2006)); see also Digitalis Educ. Sols., Inc. v. United States, 664 F.3d 1380, 1384
(Fed. Cir. 2012) (“An interested party is an actual or prospective bidder whose direct
economic interest would be affected by the award of the contract. Thus, a party must
show that it is 1) an actual or prospective bidder and 2) that it has a direct economic
interest.”); AECOM Mgmt. Servs., Inc. v. United States, 147 Fed. Cl. at 290; PAE-Parsons
Global Logistics Servs,. LLC v. United States, 145 Fed. Cl. 194, 198 (2019); Timberline
18

Helicopters, Inc. v. United States, 140 Fed. Cl. 117, 120 (2018); Contract Servs., Inc. v.
United States, 104 Fed. Cl. 261, 269 (2012).
As indicated above, L3Harris CSW was awarded the contracts pursuant to the CB1 RFP and the Addendum RFP in December 2020. A Judge of the United States Court
of Federal Claims in Trailboss Enterprises, Inc. v. United States, 111 Fed. Cl. 338 (2013)
found:
To meet the “interested party” standard for standing under Section
1491(b)(1), the plaintiff must be an “actual or prospective bidder” and
demonstrate that it possesses a direct economic interest in the contract
award. See Sys. Application & Tech., Inc. v. United States, 691 F.3d 1374,
1382 (Fed. Cir. 2012) (citation omitted). Where the plaintiff is the awardee
of the contract, however, it no longer has standing under Section 1491(b)(1)
as an interested party for the purpose of challenging the terms of the award.
Diversified Maint. Sys., Inc. v. United States, 103 Fed. Cl. 431, 436–37
(2012) (citing Outdoor Venture Corp. v. United States, 100 Fed. Cl. 146,
152 (2011)); see also Ingersoll–Rand Co. v. United States, 780 F.2d 74, 79
(D.C. Cir. 1985).
Trailboss Enters., Inc. v. United States, 111 Fed. Cl. at 340–41; see also Looks Great
Servs., Inc. v. United States, 145 Fed. Cl. 324, 328 (2019); Kellogg Brown & Root Servs.,
Inc. v. United States, 117 Fed. Cl. 764, 769 (2014). The Judge in TransAtlantic Lines LLC
v. United States, 126 Fed. Cl. 756 (2016) similarly indicated
to satisfy the “interested party” standard, a plaintiff must establish that: “(1)
it was an actual or prospective bidder; and (2) possess[es] the requisite
direct economic interest.” Sys. Application & Techs., Inc. v. United States,
691 F.3d 1374, 1382 (Fed. Cir. 2012) (alteration in original). As such, where
the plaintiff is the awardee of the contract, it no longer has standing under
28 U.S.C. § 1491(b)(1).
TransAtlantic Lines LLC v. United States, 126 Fed. Cl. at 759; see also Harmonia
Holdings Grp., LLC v. United States, 157 Fed. Cl. 292, 303 (2021) (“Plaintiff is the
awardee of a JETS IDIQ contract and therefore is no longer ‘an actual or prospective
bidder or offeror’ with respect to that procurement. Outdoor Venture, 100 Fed. Cl. at 152.
It thus follows that, as an awardee, it is ‘no longer an “interested party” with standing to
bring a bid protest claim under 28 U.S.C. § 1491(b)’ absent limited circumstances not
present here.”). Recently, a Judge of this court noted “[w]here a plaintiff asserts a bid
protest claim arising from its own contract with the Government, the Court must examine
the allegations closely because matters of contract administration and management fall
under the Court’s CDA jurisdiction.” Harmonia Holdings Grp., LLC v. United States, 157
Fed. Cl. at 299.
A Judge of the Court of Federal Claims in Kellogg Brown & Root Services, Inc. v.
United States, 117 Fed. Cl. 764 (2014) noted

19

[t]he Court does not believe that the terms “bids or proposals” [in 28 U.S.C.
§ 1491] are in the plural by accident. Rather, they are used because the
purpose of this provision is to allow protests to the terms of competitive
solicitations, in which a contract may be lost to another bidder due to an
improper advantage. The provision is not designed to allow a party to object
to a request for a proposal directed to that party alone and no others.
Id. at 770 (footnotes omitted). Notably, the Judge in Kellogg Brown & Root indicated in a
footnote that: “Of course, when a proposed corrective action effectively restores an
awardee to the status of bidder by requiring it to compete again for a contract award, this
action may be challenged by the former awardee in a bid protest.” Id. at 769 n.5; see also
Sys. Application & Techs., Inc. v. United States, 691 F.3d at 1381–82. Protestor’s bid
protest complaint in the above captioned protest, as filed on September 7, 2021, relies
on this exception to the general rule that a contract awardee does not have jurisdiction to
bring a bid protest. The protestor in the protest currently before the court alleges
L3Harris CSW has standing to file this action because the Agency's
decision to implement GAO’s irrational and unlawful recommendation
affects L3Harris CSW’s direct economic interests in several significant
ways, including by: (1) effectively nullifying the Navy's prior proper contract
award to L3Harris CSW and requiring L3Harris CSW to compete a second
time and win the same contract twice, see CBY Design Builders v. United
States, 105 Fed. Cl. 303, 337-38 (2012); Sheridan Corp. v. United States,
95 Fed. Cl. 141, 149-50 (2010); (2) unnecessarily forcing L3Harris CSW to
expend the time, effort, and expense of recompeting for a contract it has
already lawfully won, see Sys. Application & Techs., Inc. v. United States,
100 Fed. Cl. 687, 710 (2011), aff’d 691 F.3d 1374 (Fed. Cir. 2012); Jacobs
Tech. v. United States, 100 Fed. Cl. 173, 177 (2011) . . . .
Defendant argues
[t]he Navy has not displaced L3Harris CSW’s award in implementing
corrective action. Indeed, both the competition and the corrective action are
complete. L3Harris CSW won, and its attempt to quibble with the additional
rigor employed by the agency on a conflict of interest issue after receiving
GAO’s recommendation does not establish that an [sic] successful awardee
such as L3Harris CSW possesses standing to maintain a protest related to
its successful proposal.
Therefore, defendant argues, “L3Harris CSW cannot demonstrate that any error in the
procurement process that [sic] was prejudicial to its award.” Intervenor’s motion to dismiss
is even more direct: “The Navy’s corrective action is now complete, and it has upheld the
awards to L3Harris,” and “L3Harris is therefore not an interested party, and it lacks
standing to bring a protest in this Court.”

20

In response, L3Harris CSW claims that “the protestor was an interested party when
it filed its complaint, so that post-filing developments cannot deprive L3Harris CSW of
standing.” Although the October 18, 2021 letter from the Navy to the GAO was issued
after the filing of the case, the Navy had never agreed to implement the GAO
recommendations when the complaint was filed in September 2021. The Navy’s
subsequent determination on October 18, 2021 was not to implement all of the GAO
recommendations, followed by the decision to proceed with the L3Harris CSW awards.
As explained by the United States Supreme Court in Lujan v. Defenders of Wildlife, 504
U.S. 555 (1992):
Over the years, our cases have established that the irreducible
constitutional minimum of standing contains three elements. First, the
plaintiff must have suffered an “injury in fact”-an invasion of a legally
protected interest which is (a) concrete and particularized,[6] and (b) “actual
or imminent, not ‘conjectural’ or ‘hypothetical[.]’ “ Second, there must be a
causal connection between the injury and the conduct complained of-the
injury has to be “fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some third
party not before the court.” Third, it must be “likely,” as opposed to merely
“speculative,” that the injury will be “redressed by a favorable decision.”

As explained in Lujan v. Defenders of Wildlife: “By particularized, we mean that the injury
must affect the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife,
504 U.S. at 560 n.1.
6

21

Lujan v. Defenders of Wildlife, 504 U.S. at 560–61 (citations omitted);7 see also Todd
Constr., L.P. v. United States, 656 F.3d at 1315.8
Although protestor argues that L3Harris CSW’s complaint “asserts the necessary
injury for standing,” protestor’s bid protest complaint, as filed, does not demonstrate an
injury caused by the Navy. L3Harris CSW’s complaint requested that the court declare
“GAO's flawed rulings and recommendations and the Agency’s implementation of GAO's
flawed rulings and recommendations irrational and contrary to law;” declare “the Navy's
reasoned, lawful contract awards to L3Harris CSW under the CB-1 RFP and Addendum
RFP valid and not subject to re-competition based on Northrop's untimely and meritless
GAO protests or GAO's flawed rulings and recommendations;” and declare “that the Navy
may proceed with the performance of the lawful contract awards to L3Harris CSW under
the CB-1 RFP and Addendum RFP.” The Navy’s actions regarding the CB-1 RFP and
7

The court notes that defendant also cites to Lujan v. Defenders of Wildlife in its argument
regarding mootness. As a Judge of the United States Court of Federal Claims recently
observed in a bid protest:
The United States Supreme Court has stated that “[t]he doctrine of standing
generally assesses whether [the requisite interest in a dispute] exists at the
outset [of the litigation], while the doctrine of mootness considers whether it
exists throughout the proceedings.” Uzuegbunam v. Preczewski, ––– U.S.
––––, 141 S. Ct. 792, 796, 209 L.Ed.2d 94 (2021). Because the court is
evaluating whether Disabled Veterans has demonstrated interested party
status under § 1491(b)(1), the court analyzes jurisdiction for purposes of
this opinion under the standing doctrine. However, the court's holding could
also be framed under the mootness doctrine. Because Land Shark,
operating as Disabled Veterans, no longer possesses the requisite
interested party status to bring this case, the court cannot provide Land
Shark with effectual relief, and the case is moot. See Uzuegbunam, 141 S.
Ct. at 796; see also Acetris, 949 F.3d at 726-27 (determining that a portion
of the case was “moot” because the plaintiff did “not now have standing” to
challenge the solicitation at issue). Under either doctrine, this case must be
dismissed for lack of jurisdiction.
Land Shark Shredding, LLC v. United States, 156 Fed. Cl. 84, 92 n.3 (2021).
8

Although many of the standing cases discuss the issue in the context of the Article III
courts, see Abraxis Bioscience, Inc. v. United States, 625 F.3d 1359, 1363 (Fed. Cir.
2010), “[s]tanding is a constitutional requirement pursuant to Article III and it is a threshold
jurisdictional issue,” reh’g and reh’g en banc denied (Fed. Cir.), cert. denied sub nom.
APP Pharm. v. Navinta LLC, 565 U.S. 825 (2011), the standing requirement applies
equally to cases brought in the United States Court of Federal Claims. See Weeks Marine,
Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009) (quoting Anderson v. United
States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003) (“‘The Court of Federal Claims, though
an Article I court, . . . applies the same standing requirements enforced by other federal
courts created under Article III.’”).
22

Addendum RFP did not harm L3Harris CSW. Indeed, L3Harris CSW praises the “the
Navy's reasoned, lawful contract awards to L3Harris CSW under the CB-1 RFP and
Addendum RFP.” As defendant argues, L3Harris CSW cannot demonstrate injury “let
alone any connection between the Navy’s action and any alleged injury, or that this Court
may craft a form of relief that properly re-dresses its situation.” Indeed, L3Harris CSW
seeks a remedy against the actions of the GAO and requested the court to declare “that
the Navy may proceed with the performance of the lawful contract awards to L3Harris
CSW under the CB-1 RFP and Addendum RFP.” In fact, the Navy now has determined
the Navy will proceed with the awards to L3Harris CSW and has not terminated the
awards to L3Harris CSW. In sum, as the contract awardee, L3Harris CSW is not an
interested party under 28 U.S.C. § 1491(b)(1), and does not have standing to bring its
protest in this court.
Even if L3Harris CSW was an interested party, both defendant and intervenor
argue L3Harris CSW’s protest is moot. Defendant argues that L3Harris CSW’s “challenge
has been rendered moot,” and states, “[t]o the extent that L3Harris CSW seeks to
challenge a recommendation from GAO that the Navy has determined it will not
implement, L3Harris CSW [sic] challenge is moot, and this Court does not possess
jurisdiction to consider its challenge any further.” Intervenor argues that “[e]ven if L3Harris
had standing (it does not), its complaint is moot.” Protestor responds “L3Harris CSW's
protest is not moot.”
As noted above, protestor’s complaint alleges that
L3Harris CSW has standing to file this action because the Agency's
decision to implement GAO's irrational and unlawful recommendation
affects L3Harris CSW’s direct economic interests in several significant
ways, including by: (1) effectively nullifying the Navy's prior proper contract
award to L3Harris CSW and requiring L3Harris CSW to compete a second
time and win the same contract twice, see CBY Design Builders v. United
States, 105 Fed. Cl. 303, 337-38 (2012); Sheridan Corp. v. United States,
95 Fed. Cl. 141, 149-50 (2010); (2) unnecessarily forcing L3Harris CSW to
expend the time, effort, and expense of recompeting for a contract it has
already lawfully won, see Sys. Application & Techs., Inc. v. United States,
100 Fed. Cl. 687, 710 (2011), aff’d 691 F.3d 1374 (Fed. Cir. 2012); Jacobs
Tech. v. United States, 100 Fed. Cl. 173, 177 (2011); (3) delaying L3Harris
CSW's performance and income under the awarded contract, Sys.
Application, 100 Fed. Cl. at 710; and (4) requiring L3Harris CSW to compete
against itself as the Agency released L3Harris CSW competition-sensitive
information to the unsuccessful offerors during debriefings. Id.; Sheridan
Corp., 95 Fed. Cl. at 150.
As explained by Vice Admiral Chebi in his October 18, 2021 letter to the GAO:
The Agency will not implement GAO’s second recommendation [which
recommended that the Navy re-open discussions, request revised
23

proposals, evaluate proposals consistent with the evaluation criteria, and
make a new source selection decision]. During the course of the protests,
the Agency explained the solicitation requirements and evaluation criteria,
particularly that the solicitation provided the technical experts with discretion
whether or not to assess a deficiency in the context of this development
effort. The Agency believes the second recommendation does not
adequately account for the developmental nature of the Agency's
requirement as it relates to the evaluation criteria and the Agency's
evaluation, and that GAO misinterpreted the solicitation requirements in this
regard. It is therefore unnecessary for the Agency to reopen discussions
and reevaluate revised proposals in order to make a proper source selection
decision. Thus, the Agency respectfully disagrees with, and will not
implement, the GAO's second recommendation.
Therefore, after the October 18, 2021 response by Vice Admiral Chebi to the GAO, the
Navy is not, as alleged by protestor, “effectively nullifying the Navy’s prior proper contract
award to L3Harris CSW and requiring L3Harris CSW to compete a second time and win
the same contract twice” nor, as also alleged by protestor, is the Navy “unnecessarily
forcing L3Harris CSW to expend the time, effort, and expense of recompeting for a
contract it has already lawfully won.” The underpinnings of L3Harris CSW’s bid protest
complaint is the concern that the Navy would follow all the recommendations of the GAO.
As made clear by the Navy, at this point in time, the Navy will not implement all of the
recommendations of the GAO, nor will the Navy cancel its awards to L3Harris CSW.
L3Harris CSW’s contracts remain in place and L3Harris CSW does not have to recompete
for its contracts. Intervenor correctly observes that L3Harris CSW’s claim is moot, “both
because it is now the awardee and because the Navy abandoned the very course of
action that L3Harris complained about.”
Alternatively, protestor argues that “L3Harris CSW’s challenge to the Navy’s
decision to perform the GAO recommended IRT [Independent Review Team] review
cannot be moot because the Navy implemented the GAO recommendation and Northrop
has challenged the IRT action as insufficiently implemented.” Defendant responds that
“[c]onvening an IRT has not harmed L3Harris CSW; if anything, the Navy’s deliberations
have strengthened, rather than weakened, the Navy’s award decision” to L3Harris CSW.
Further, as Northrop correctly notes “the Navy has been very clear: It has decided to
proceed with the award to L3Harris.” As explained by the Navy in the October 18, 2021
letter to the GAO, “the Agency respectfully disagrees with, and will not implement, the
GAO's second recommendation.” Currently, the Navy’s position is straightforward and
clear - it will proceed with L3Harris CSW’s contract awards. The remedy that L3Harris
CSW’s bid protest complaint in Case No. 21-1819C sought has been satisfied by the
Navy’s responses to the GAO and the Navy’s continued commitment to proceed with the
award to L3Harris CSW.
L3Harris CSW further argues “[t]he Agency’s decision to follow GAO’s IRT
recommendation may become moot at some later point should the Court deny Northrop’s
challenge but presently Northrop has challenged the rationality of the very thing Northrop
24

claims moots the L3Harris CSW Complaint,” in the case of Northrop Grumman Systems
Corp. – Mission Systems v. United States, Case No. 21-2099C, that Northrop filed, also
in this court. In protestor’s responses to the motions to dismiss filed in the protest currently
under review, protestor argues that “Northrop’s challenge to the Navy’s IRT seeks to
enforce the GAO decision and recommendation, exclude L3Harris CSW, and to terminate
L3Harris CSW's contracts.” L3Harris CSW’s contentions, however, do not address if
mootness in the current protest, Case No. 21-1819C, is established by the actions taken
by the Navy regarding the contracts awarded to L3Harris CSW. As has been established
above, the Navy’s desire is to continue with L3Harris CSW’s awards. In the future, it may
come to pass that the Navy does not proceed with L3Harris CSW’s contracts if the court
grants Northrop injunctive relief in Case No. 21-2099C. Such actions taken by the court,
however, and the subsequently possibility of the termination of L3Harris CSW’s contracts
would not be due to Navy’s desire not to proceed with the L3Harris CSW’s contracts.
Protestor also argues that “L3Harris CSW continues to face harm from the flawed
GAO decisions,” arguing that “[b]ased on the GAO's irrational decision, the Navy
announced its intention to follow GAO's flawed IRT recommendation months ago on
August 24, 2021. Since that time, the Navy has stayed L3Harris CSW's performance of
the CB-1 contracts, resulting in numerous harms including loss of profit, increased
overhead costs, and an idle workforce.” The fact that L3Harris CSW’s contract is currently
not being implemented by the government also is not a sufficient reason for the court not
to dismiss protestor’s complaint. As indicated in Outdoor Venture Corp. v. United States,
100 Fed. Cl. 146 (2011):
In this case, OVC’s [Outdoor Venture Corporation’s] award has been
stayed, see Oral Argument, Argument of Mr. Marc Lamer at 2:14:34–48
(stating that DLA has not lifted the automatic stay that began when Diamond
filed its protest at GAO), but OVC does not allege that the government has
resolicited the contract or that it intends to do so, see Compl. passim; see
also Pl.’s Resp. 3 n. 1 (“Plaintiff would point out that it will not be able to
compete for the award as there will be no re-solicitation in this case.”).
Because there has been no resolicitation—as there was in the cases cited
by plaintiff—OVC's protest is not in the nature of a pre-award claim.
Therefore, OVC has failed to establish that it is an interested party with
standing to bring this bid protest. See AFGE, 258 F.3d at 1299 (stating that
standing to bring bid protests is limited to interested parties) (citation
omitted); see also Lujan, 504 U.S. at 561, 112 S. Ct. 2130 (stating that the
party invoking the court's jurisdiction bears the burden of establishing that it
has standing) (citations omitted).
Outdoor Venture Corp. v. United States, 100 Fed. Cl. at 153. Moreover, the reason for
pausing implementation of the awards to L3Harris CSW, as noted by protestor, is the
result of Northrop’s subsequent, bid protest in this court. In CBY Design Builders v. United
States, a Judge of the Court of Federal Claims noted that speculation about a different
protest “is not itself an injury to the direct economic interests of the plaintiff.” See CBY
Design Builders v. United States, 105 Fed. Cl. 303, 330 (2012). The fact of a continued
25

stay by the Navy of L3Harris CSW’s contract performance as a result of Northrop’s protest
in another case does not provide a continued basis for jurisdiction in the above captioned
protest in this court.
The CBY Design Builders case is instructive to the issues before the court. In CBY
Design Builders, a Judge of the Court of Federal Claims explained that
[t]he Corps initially awarded the contract to Plaintiff CBY Design Builders,
which is a joint venture of Brasfield & Gorrie, L.L.C., CDM Constructors Inc.,
and W.G. Yates and Sons Construction Co. On November 4, 2011, CBY
filed a bid protest in our court challenging a decision of the Corps to follow
recommendations of the Government Accountability Office and to
implement corrective action in accordance with a GAO decision sustaining
the protests of unsuccessful offerors. This corrective action entailed a
conflict-of-interest investigation, a stay of the award, amendment of the
solicitation, and a resolicitation of proposals for a new evaluation and award.
Bechtel Infrastructure Group and PCCP Constructors, JV, the protesters
before GAO, have intervened in this case to defend the Corps’s decision to
take corrective action. Plaintiff CBY has moved for judgment on the
administrative record, arguing that the GAO decision was arbitrary and
capricious, and that therefore the Corps also acted arbitrarily and
capriciously by following the GAO's recommendation. CBY seeks
permanent injunctive relief to prevent the Corps from proceeding with the
corrective action, as well as an order directing the Corps to proceed with
performance under the contract originally awarded to CBY.
Id. at 308–09 (internal references omitted). The Judge explained that the Corps
conducted a total of three OCI investigations, id. at 322, and
[a]fter conducting the third OCI investigation as GAO had recommended,
the contracting officer announced that “there are no hard facts to establish
that Mr. Kendrick or CBY had actual access to proprietary or source
selection information,” and that no conflict of interest existed for CBY under
the FAR. The contracting officer explicitly confirmed his previous PIA
[Procurement Integrity Act] Determination and Findings of May 23, 2011
“that found no violation and no impact on the procurement.” Despite the
absence of an OCI, however, Mr. Black acknowledged GAO's finding that
the RFP was misleading in how it conveyed the build-to-budget evaluation
criterion, and stated that the RFP would be amended to address this
concern. On October 21, 2011, the contracting officer sent letters to each
of the five Phase II offerors announcing that the Corps would take corrective
action to implement the GAO recommendation. In those letters, the
contracting officer explained that the Corps had performed a third
investigation as recommended by the GAO and had confirmed its original
determination that no OCI existed within the CBY team. He also announced
that in accordance with the GAO recommendation, “and in order to address
the current needs of the agency,” the Corps intended to amend the RFP so
26

that new proposals could be accepted and evaluated. On October 28, 2011,
the Corps sent out additional corrective action letters with a draft of the
proposed changes to the RFP.
Id. at 322–23 (internal references omitted). Thereafter, protestor CBY filed a bid protest
in the United States Court of Federal Claims.
In the first count of the complaint, CBY alleged that the Corps’s decision to
follow the GAO recommendation and conduct a third OCI investigation was
arbitrary and capricious. Underpinning this claim are CBY's allegations in
Count I.B that the GAO irrationally determined that the prior OCI
investigations were too narrow in scope, and that the recommendation to
further investigate a potential OCI was therefore arbitrary and capricious.
According to plaintiff, the GAO decision in this regard was irrational because
GAO failed to give due deference to the contracting officer's findings in the
two previous investigations; because the build-to-budget information was
public knowledge; because GAO applied the wrong standards; and
because there were no hard facts to support the conclusion that Mr.
Kendrick had access to non-public, competitively useful information.
Id. at 328 (internal references omitted). In response to protestor’s bid protest, the
government filed a motion to dismiss and argued “that a challenge to the recommended
third OCI investigation is moot, as the investigation has already been completed and did
not result in harm to CBY.” Id. at 324. After considering the parties’ arguments, the Judge
concluded:
The Court is not persuaded by CBY’s arguments that the Corps’s decision
to follow the GAO recommendation and conduct a third OCI investigation
may be challenged in this bid protest. The complaint on its face alleges that
the third OCI investigation has been completed and resulted in the
contracting officer's determination that no actual or potential OCI existed.
Assuming that CBY is correct in alleging that the GAO was arbitrary and
capricious in recommending that the Corps should conduct a third
investigation, the Corps completed that investigation and concluded that no
OCI existed to preclude CBY from competing for or being awarded the
Permanent Canal Project contract. Had the investigation resulted in the
opposite conclusion, and plaintiff's award were accordingly cancelled, that
investigation—and possibly the rationality of the GAO recommendation that
spawned it—could certainly be the subject of a bid protest. But the result of
the Corps’s allegedly arbitrary decision to conduct a third investigation is
the further exoneration of CBY and Mr. Kendrick.
In his Determination and Findings for the third investigation, the contracting
officer stressed that the proposed amendment to the solicitation relating to
the build-to-budget evaluation criterion “will correct the perceived errors in
the RFP as identified by the GAO and is not in response to any claims or
27

assertions about the alleged existence of an OCI.” (emphasis added). The
corrective action letters sent out to offerors stated that the Corps “has
reconfirmed its original determination that no Organization Conflict of
Interest exists within the CBY team,” and does not link the third OCI
investigation to the decision to amend the solicitation and to accept for
evaluation new proposal revisions. The government concedes that the
result of the third OCI investigation cannot be the basis for the decision to
stay the contract award to CBY and conduct a recompetition. Thus, even if
the Corps had irrationally followed an arbitrary recommendation from the
GAO, this has resulted in a final decision that has not injured CBY. The
recommendation has already been followed, it is not reasonable to believe
that it can “recur,” and the result of the third investigation has “completely
and irrevocably eradicated the effects of” any error in following the
recommendation. Davis, 440 U.S. at 631, 99 S. Ct. 1379. Any challenge by
CBY to the decision to conduct a third investigation is now moot.
The Court does not find that the pendency of the intervenors' agency-level
protests, brought under 48 C.F.R. § 33.103, affects the mootness analysis.
Plaintiff maintains that the conclusion of the third investigation has given the
intervenors another reason to challenge the finding that no OCI existed,
prolonging litigation and delaying the performance of the contract it was
awarded. Although it is true that, had there been no third investigation, there
could be no agency-level protest of the result of that investigation, this does
not mean that intervenors' continued protests are dependent on the
existence of that investigation. Had the Corps decided not to follow the GAO
recommendation and not to conduct a third investigation, the intervenors
could have protested that decision at the agency level, or in our court as
part of a protest of any award to CBY. Thus, any looming risk to CBY's
award is not the product of the third investigation, but rather of the
intervenors’ determination to protest. These protests may be inconvenient
for CBY, but unless the government violates some statute or regulation in
accepting the protests for filing, it is hard to see how our bid protest
jurisdiction is remotely implicated. The ADRA [Administrative Dispute
Resolution Act of 1996] is not a mechanism for the removal to our court of
protests filed elsewhere, cf. 28 U.S.C. § 1446 (providing for removal of civil
actions to district courts), and speculation about the potential results of
agency-level protests is not itself an injury to the direct economic interests
of the plaintiff. To be sure, if those protests are decided against CBY, and it
is excluded from competition for the Permanent Canal Project contract, then
there would exist a decision by the Corps that could be challenged in our
court. But that would be a different decision, and a different protest.
For the same reasons described above, the Court concludes that CBY lacks
standing to challenge the Corps’s decision to conduct a third OCI
investigation. The decision to follow the GAO recommendation resulted in
the further exoneration of CBY and Mr. Kendrick, and thus is not an
28

impediment to CBY receiving its contract award. And there is no connection
between the decision to conduct a third investigation and the portions of the
corrective action calling for new revised proposals to be evaluated for a new
award. The decision to follow the GAO recommendation concerning the OCI
investigation, arbitrary or not, has imposed no competitive injury upon CBY.
CBY Design Builders v. United States, 105 Fed. Cl. at 329–30 (emphasis in original)
(footnote omitted; internal references omitted).
In the above captioned protest, intervenor argues “[t]he risk to L3Harris’s award
stems from Northrop Grumman’s protest and a future ruling by this Court — not the
agency’s now-completed IRT investigation, which the Navy used to affirm L3Harris’s
award. The potential outcome in Northrop Grumman’s protest is insufficient to establish
that L3Harris is an interested party with the kind of direct economic interest necessary to
maintain a protest.” (footnote omitted). As demonstrated throughout this Opinion,
L3Harris CSW still is the awardee on both contracts awarded by the Navy. There is no
competitive injury that L3Harris CSW is currently suffering as the Navy has determined
to continue with its awards to L3Harris CSW, and its decision to complete an IRT
investigation did not, and does not harm L3Harris CSW. To repeat, any potential, future
outcome in Northrop’s protest cannot provide a ground for L3Harris CSW’s bid protest in
Case No. 21-1819C to continue in this court.
Moreover, L3Harris CSW has suggested to this court that “[t]he Court should either
stay this protest pending resolution of Northrop’s protest or consider this matter in
conjunction with Northrop’s protest.” As determined above, however, this court does not
have jurisdiction to address L3Harris CSW’s claims in the current protest. The court,
therefore, will not stay the protest. The only action the court may take in the above
captioned protest is to dismiss L3Harris CSW’s bid protest complaint.
Finally, protestor argues “Northrop’s protest demonstrates the ongoing importance
of the issues raised in L3Harris CSW's protest.” The facts in the above captioned protest
appear unique, as neither the parties, nor the court, have discovered a case in which a
protestor filed a bid protest to contest a GAO decision, and then when the agency did not
fully implement the GAO decision, the previous intervenor filed a subsequent bid protest,
and the former protestor then joined the subsequent protest as an intervenor, with
contract awards to the original protestor undisturbed. The uniqueness of the facts,
however, does not provide any basis for the continuation of L3Harris CSW's protest in the
above captioned protest, Case No. 21-1819C. The lack of jurisdiction over L3Harris
CSW’s claims in the above captioned bid protest guides the decision in this court to
dismiss L3Harris CSW’s complaint, Case No. 21-1819C. Notably, intervenor’s motion to
dismiss states “a third party’s interest in the outcome of a lawsuit is meant to be addressed
by intervention,” and “L3Harris has, in fact, intervened in Northrop Grumman’s protest.”
Northrop argues that “[i]f L3Harris has concerns about Northrop Grumman’s protest or its
potential impact, it can pursue those concerns as an intervenor. There is simply no relief
left for L3Harris to seek in its own complaint.” The court agrees.

29

CONCLUSION
L3Harris CSW does not possess standing as an interested party in this protest.
Moreover, L3Harris CSW’s bid protest complaint in the above captioned protest, Case
No. 21-1819C, is moot. Therefore, defendant’s motion to dismiss and intervenor’s motion
to dismiss are GRANTED and protestor L3Harris CSW’s complaint in Case No. 21-1819C
is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this
Opinion. Litigation on the merits of the Navy’s actions regarding award of the underlying
contracts continues in Northrop’s subsequently filed protest referenced above.

IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge

30