Protest Denial Decision Published: DHS USCIS HR Information Technology (HRIT) and OASIS+ needs

US Court of Federal Claims: No. 23-2177C

Digest

FYI challenges the government’s decisions with respect to FYI’s WOSB certification status — and hence FYI’s eligibility to compete — in two procurements:  (1) Task Order Request for Proposals No. 70SBUR23Q00000180 (the “Task Order Solicitation” or the “Task Order Procurement”) issued by USCIS under the Human Capital and Training Solutions (“HCaTS“) Small Business (“SB”) – Pool 2 Governmentwide Acquisition Contract (“GWAC”); and (2)  the GSA One Acquisition Solution for Integrated Services Plus (“OASIS+”) WOSB set-aside  procurement, conducted pursuant to Request for Proposals No. 47QRCA23R0005 (the “OASIS+ Solicitation” or the “OASIS+ Procurement”).

Discussion

The precise scope of the FASA task order protest bar is muddled.  In Tolliver Group, Inc. v. United States, 151 Fed. Cl. 70, 93-101 (2020), this Court explained that FASA’s task order protest bar cannot possibly apply to all actions brought pursuant to 28 U.S.C. § 1491(b).  The textual analysis behind that conclusion remains sound.  FASA’s task order protest bar addresses, as its name suggests, “protests.” 41 U.S.C. § 4106(f).  That is a term of art employed to parallel GAO’s jurisdictional statute, the Competition in Contracting Act (“CICA”), 31 U.S.C. Subchapter V (“Procurement Protest System”), §§ 3551-57.  But while the term “protest” is defined in 31 U.S.C. § 3551(1), that term does not appear in this Court’s primary jurisdictional statute, the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870 (“ADRA”), codified at  28 U.S.C. § 1491(b).11  And while 28 U.S.C. § 1491(b)(1) does provide for a number of actions commonly, but somewhat imprecisely, called bid protests — and that a frustrated offeror may instead file with the GAO in the first instance — this Court also has jurisdiction to decide an “action . . . objecting to . . . any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.”  28 U.S.C. § 1491(b)(1).  That latter prong of § 1491(b)(1) encompasses actions that are not “protests” and does not have an analog at GAO.  GAO therefore lacks jurisdiction to decide such actions.

The classic example of an action under the latter prong of § 1491(b)(1) is the Federal Circuit’s decision in RAMCOR, which involved a challenge not to a solicitation or the outcome of a procurement, but to the government’s override of the automatic CICA stay, 31 U.S.C. § 3553(c)(1), typically triggered by the timely filing of a GAO protest …

Decision

For better or worse, sometimes status is everything.  This procurement protest case is all about status.  It involves the government’s refusal to recognize Plaintiff, FYI – For Your Information, Inc. (“FYI”), as a certified Women-Owned Small Business (“WOSB”) specifically for two pending, but unrelated, procurements.  FYI has submitted proposals for both procurements.  Because FYI lacks the required WOSB certification, however, the government concluded that FYI’s proposals are not awardable.  FYI challenges that decision of Defendant, the United States — acting by and through the Small Business Administration, the Department of Homeland Security’s United States Citizenship and Immigration Services (“USCIS”), and the General Services Administration (“GSA”) — arguing that FYI was improperly disqualified from a WOSB set-aside task order procurement and, in effect, a second acquisition.

For the reasons explained below, the Court concludes that it lacks jurisdiction over FYI’s action challenging the government’s decision in connection with the task order acquisition.  Moreover, with respect to both acquisitions at issue, FYI’s action is untimely based on binding precedent from our appellate court, the United States Court of Appeals for the Federal Circuit.  Accordingly, this case either must be dismissed, or the government and Defendant-Intervenor, LinkVisum Consulting Group, Inc. (“LinkVisum”), are entitled to judgment.

Read the decisionDenial  here.

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