File No. No. 23-2201 C
Background
The Naval Air Warfare Center Training Systems Division is a Defense Department laboratory that developed DRMS. ECF No. 48-1 at 2 [¶6]. Since it created DRMS more than 20 years ago, the military has maintained and upgraded the software to meet its training needs. ECF No. 48-1 at 2 [¶6]. DRMS-Next Generation (DRMS-NG) is an iterative improvement on DRMS. ECF No. 48-1 at 2 [¶7].
ASTi offers a commercial product line, Voisus, that provides a military training and simulation system that, ASTi alleges, performs functions similar to DRMS-NG. ECF No. 21 at 25 [¶¶67-70]. ASTi alleges that its software is superior to the DRMS software. Id. at 4 [¶¶11-12].
In the summer of 2023, the government awarded a sole-source indefinite delivery, indefinite quantity contract for DRMS hardware and software components to Bowhead. ECF No. 22-7. The government placed two delivery orders under the Bowhead contract, primarily for hardware components. ECF No. 22-5; ECF No. 22-9.
ASTi filed a bid protest in this court in December 2023, protesting the award of the contract to Bowhead. ECF Nos. 1, 47. The government took corrective action and canceled the contract, leaving in place only the two delivery orders that the government had already placed. ECF No. 26 at 6. ASTi moved to enjoin the government from accepting the goods in those delivery orders. ECF No. 22. After a hearing, the government terminated the orders. ECF Nos. 37, 37-1. The court then denied ASTi’s motion for a preliminary injunction as moot. ECF No. 40.
The government now moves to dismiss the remaining claims under rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims (RCFC). ECF No. 46. ASTi opposes and requests, in the alternative, that this court grant it leave to amend the complaint or that this court transfer the complaint to the district court for the District of Columbia. ECF No. 47 at 39.
Discussion
Under rule 12(b)(1), “a court must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). If the court determines that it lacks subject-matter jurisdiction, it must dismiss the action. RCFC 12(b)(1); see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). A “plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” Estes Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014) (citation omitted). “Subject-matter jurisdiction may be challenged at any time.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004); RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action”).
A complaint should be dismissed under rule 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (addressing earlier version of what is now RCFC 12(b)(6)). To avoid dismissal, a complaint must “contain sufficient factual matter, accepted as true, to …
Decision
Advanced Simulation Technology, Inc. (ASTi) sells software to the military to train servicemembers on radio communication.1 The government has also developed its own training software, called Digital Radio Management System (DRMS). ASTi alleges that the government has violated its statutory duty under the Competition in Contracting Act to consider commercial alternatives by starting the process of creating DRMS-Next Generation, a new version of the DRMS training software. Initially, ASTi protested the government’s decision to purchase parts and services from a third party, Bowhead Professional and Technical Solutions, LLC, without first soliciting offers from other vendors. The government took corrective action and canceled the Bowhead contract.
The government now moves to dismiss this case, arguing that there is no longer any procurement to protest. ASTi alleges that there is still a procurement to protest because the government is still working on developing DRMS and still needs the goods and services it had planned to get from Bowhead. ASTi also notes that a military contractor posted jobs for DRMS technicians, arguing that the job posting underlies a quiet government effort to continue to work on DRMS without ever soliciting offers from the public. ASTi seeks a declaratory judgment and a permanent injunction and, in the alternative, asks this court either to allow ASTi to amend the complaint or to transfer the case to the District of Columbia district court, rather than granting the government’s motion to dismiss.
At this point, after the Bowhead contract has been canceled, there has not been a sufficiently concrete government procurement action that would make ASTi’s bid protest ripe. Thus, this court grants the government’s motion and dismisses ASTi’s first amended complaint. Because amendment would be futile and transfer would be inappropriate, this court denies ASTi’s alternative request for leave to amend or to transfer.
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