Protest raising concerns of Appian-based contract-writing software systems dismissed by Court

Background Unison is a developer of commercial software that aids the government in contracting in a way that is compliant with the federal acquisition requirements and provides “acquisition lifecycle management and contract writing software support.”1 ECF No. 23 at 2 [¶4].  Appian has a proprietary programming language that it licenses to the federal government for use in contract-writing software. Hearing Tr. 11:15-12:18, Sept. 19, 2023; ECF No. 23 at 1 [¶1]. Currently, Appian’s programming language is used in several military branches, including in the Air Force’s contract-writing software, “the Army Contract Writing System, … and the Navy Electronic Procurement System.” ECF No. 23 at 1 [¶1]. Unison cites multiple public statements and older procurements in its complaint but relies primarily on three recent, concrete military procurements: (1) a request for quote issued by the Defense Logistics Agency (DLA) in December 2022; (2) a Navy solicitation for a contract-writing systems portfolio coordinator; and (3) an Army solicitation for Appian licenses for contract-writing systems. ECF No. 23 at 17 [¶28]; ECF No. 33 at 9-11; ECF No. 33 at 11-13. Unison argues that these three procurements, along with other actions by the military in connection with these procurements, indicate that the military intends to procure only Appian contract-writing software in the future…

Unison protested at the Government Accountability Office (GAO), arguing that the 1002 solicitation (1) exceeded the scope of the existing technology services contract; (2) was overly restrictive because it required the use of specific software; and (3) inaccurately calculated the estimated value of the solicitation. ECF No. 23-27 at 1. The government amended the solicitation, addressing Unison’s concern about the scope of the existing contract. GAO dismissed the protest. GAO reasoned that DLA had already addressed the issue of the scope and that Unison was not a party to the existing technology services contract. As a non-party, GAO explained, Unison was not eligible to compete for the task order and was therefore not an interested party in a position under the bid protest regulations to bring such a challenge. ECF No. 23-27 at 2. After the GAO dismissal, Unison filed its initial complaint here, asking this court to enjoin the government from proceeding with the 1002 solicitation. ECF No. 1 at 29. The government moved to dismiss the initial complaint, arguing that the 1002 solicitation was a task order and that this court does not have jurisdiction to address bid protests over most task orders, including the 1002 task order. Unison then filed an amended complaint that addressed other military procurement conduct, particularly the Navy and Army solicitations, and broadened its claims to allege a broader military-wide scheme to buy only Appian contract-writing software. ECF No. 23 at 1 [¶1]…

Discussion Under rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC), “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). Even if not disputed by a party, “[s]ubject-matter jurisdiction may be challenged at any time … by the court sua sponte.” 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). To avoid dismissal, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).  In other words, Rule 12(b)(6) ensures that the plaintiff has a claim for which this court can grant appropriate relief. In reviewing a motion to dismiss under Rule 12(b)(6), the court will accept well-pleaded factual allegations as true and draw all reasonable inferences in the claimant’s favor. Lindsay, 295 F.3d at 1257…

This court lacks jurisdiction to hear Unison’s claims about specific military procurements because each of the challenged procurements is “in connection with” a task order or delivery order.  While this court has jurisdiction over bid protests in general (28 U.S.C. § 1491(b)), Congress has, through FASA, expressly limited the court’s bid-protest jurisdiction by prohibiting protests “in connection with the issuance or proposed issuance of a task or delivery order.” 10 U.S.C. § 3406(f); 22nd Century Techs, Inc. v. United States, 57 F.4th 993, 998 (Fed. Cir. 2023). The Federal Circuit has explained that this task- and delivery-order bar is jurisdictional. 22nd Century, 57 F.4th at 999. Thus, if a complaint is in connection with a task or delivery order, the court cannot hear it.  For procurements by the military, there are two narrow exceptions: (1) when the order value is more than $25 million; or (2) when the order “increases the scope, period or maximum value of the contract under which the order is issued.” 10 U.S.C. § 3406(f).2 If no exception applies, the FASA task-order bar “effectively eliminates all judicial review for protests made in connection with a procurement designated as a task order—perhaps even in the event of an agency’s egregious, or even criminal, conduct.” 22nd Century, 57 F.4th at 998 (quotation marks omitted).  The three specific procurements that Unison primarily relies on are all task or delivery orders and are all subject to the FASA task-order bar…

Unison Software, Inc. develops software that it sells to the government. At various times, different branches of the military have bought software that assists in government contracting. In other words, the military enters into government contracts covering government-contracting software, because the government contracting process is just that complicated. In this case, Unison is concerned that the government may have decided that, going forward, it will buy only the government-contracting software of Unison’s competitor, Appian Corporation. Unison alleges that the military made a de facto decision, which was not explicit (or, at least, the explicit decision has not yet come to light) but was evidenced in subsequent events, to standardize its government-contracting-software procurement process by buying only Appian government-contracting software. Such a standardization decision, Unison argues, without conducting a competitive procurement and without considering the competing software products of Unison and other vendors, would violate the Competition in Contracting Act.  The government has moved to dismiss Unison’s amended complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Many of the actions that Unison alleges the government has taken in procuring government-contracting software are subject to a statutory task-order bar, depriving the court of jurisdiction over those particular procurements. Other alleged government actions are so remote from any particular procurement that they do not constitute procurements or proposed procurements, which deprives the court of jurisdiction over those actions; alternatively, Unison does not state a claim on which relief can be granted because In the United States Court of Federal Claims 2  there is no relief this court could order that would remedy Unison’s concerns. Thus, this court dismisses Unison’s first amended complaint…

See the decision here.

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