Decision Released: Navy Modified Electronic Platform Support Services Award protest dismissal

File No. 24-554

Background

SeaPort-NxG (“SeaPort”) is the United States Navy’s (the “Navy”) electronic platform for acquiring support services in twenty-three functional areas including engineering, financial management, and program management. (Am. Compl. Ex. A at 7 (Original Seaport Contract’s Statement of Work), ECF No. 8-1). Several subdepartments of the Navy may issue orders under SeaPort, such as Naval Sea Systems Command (“NAVSEA”), Naval Information Warfare Systems Command (“NAWCAD”), and Naval Air Systems Command (“NAVAIR”). (Id.). New contractors are added to this indefinite-duration, indefinite-quantity (“IDIQ”) multiple-award contract (“MAC”) periodically through a “rolling admissions” process. (Id. at 14 (C.11: “Rolling Admission”)). Island Creek Associates, LLC (“Island Creek”), is an awardee of a SeaPort contract for engineering services, having begun performance in 2019.4 (Am. Compl. at 4–5, ECF No. 8). Island Creek’s protest centers on the Navy’s modification to SeaPort which it perceives as giving an unfair advantage to mentor-protégé joint ventures (“JV”) and their member companies. (See generally Am. Compl.).

Discussion

Before establishing a briefing schedule on the Administrative Record, the United States sought to dismiss. Accordingly, the merits of Island Creek’s claims are not before the Court; thus, the Court will not address whether the Navy’s decision to modify the underlying contract was arbitrary and capricious. The United States asserts that the Court lacks jurisdiction over Island Creek’s protest. (Def.’s Mot. at 7–16, ECF No. 19). The United States advances that this protest is either moot due to corrective action or pertains to post-award contract administration, necessitating resolution through the Contract Disputes Act (“CDA”). (Id. at 10–12). Additionally, the United States argues that this protest is barred by the Federal Acquisition Streamlining Act (“FASA”), and, importantly, that Island Creek lacks standing to bring the protest. (Id. at 13–18). For its part, Island Creek vehemently advances inverse arguments, generally arguing that “this case must move forward at least to a stage where this Court can see a full procurement record and ensure that justice, the rule of law, and fairness are being upheld.” (See generally Pl.’s Resp. at 7, 15–27). The Court finds that Island Creek lacks standing because it is a SeaPort awardee who cannot show direct economic harm, the United States’ Motion to Dismiss is granted …

Decision

Sympathy cannot confer standing. This principle remains true even in instances of seemingly unfair procurement practices. See 22nd Century Techs., Inc. v. United States, 57 F.4th 993, 999 (Fed. Cir. 2023) (iterating that judicial review is sometimes unavailable “even in the event of an agency’s egregious, or even criminal, conduct.”). Unless the plaintiff can show direct economic harm, post-award protests are for disappointed bidders who were unsuccessful in obtaining a contract. Once a multiple-award contract is awarded, recipients often lack the legal standing necessary to challenge the procurement process under this Court’s bid protest jurisdiction.

Here, the Court is presented with a post-award bid protest; pre-award rules that may allow the awardee-Plaintiff to proceed do not apply. Because the awardee-Plaintiff has not evinced a direct economic injury, it lacks requisite standing to proceed and the United States’ Motion to Dismiss, (ECF No. 19), is granted. Further, during briefing and again after oral argument, Plaintiff moved for leave to amend its operative Complaint.2 (ECF Nos. 25, 30). Finding that amendment would be futile, those motions are denied. Fellow awardees also moved to intervene after oral argument, (ECF No. 28); given the rulings herein, the Court denies those requests as moot.

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