Cgi Federal Inc. v. United States , 779 F.3d 1346 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
CGI FEDERAL INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5143
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00355-MCW, Judge Mary Ellen
Coster Williams.
______________________
Decided: March 10, 2015
______________________
SCOTT M. MCCALEB, Wiley Rein, LLP, Washington,
DC, argued for plaintiff-appellant. Also represented by
DANIEL PATRICK GRAHAM, CHRISTINE ALICE REYNOLDS,
GARY SCOTT WARD.
WILLIAM PORTER RAYEL, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by JOYCE R. BRANDA, ROBERT E.
KIRSCHMAN, JR., KIRK MANHARDT.
2 CGI FEDERAL INC. v. US
MICHAEL J. SCHAENGOLD, Greenberg Traurig LLP,
Washington, DC for amicus curiae. Also represented by
MELISSA PAIGE PRUSOCK, AARON S. RALPH.
______________________
Before MOORE, TARANTO, and CHEN, Circuit Judges.
MOORE, Circuit Judge.
In this pre-award bid protest appeal, CGI Federal Inc.
challenges the payment terms of requests for quotes
(“RFQs”) issued by the United States Department of
Health and Human Service’s Centers for Medicare and
Medicaid Services (“CMS”). CGI argues that the payment
terms violate certain statutory and regulatory provisions.
The government responds, as it did below, that CGI did
not have standing to bring its bid protest because it did
not qualify as an “interested party” within the meaning of
28 U.S.C. § 1491(b)(1). Because the Court of Federal
Claims correctly held that CGI qualified as an interested
party at the time it filed its bid protest, but erred in
holding that the payment terms do not violate the appli-
cable regulations, we reverse and remand.
BACKGROUND
In the contracts at issue, CMS uses contractors, such
as CGI, to determine if Medicare claims were correctly
paid. If the contractor identifies an overpayment, CMS
sends a demand letter to the provider seeking repayment
and pays the contractor a contingency fee. Pursuant to
the original contracts from 2008, the contractors invoiced
CMS for the contingency fee when the overpayment was
collected from the provider, typically 41 days after the
demand letter. In 2014, CMS issued new RFQs for these
recovery services. The 2014 RFQs included additional
payment terms requiring the contractors to wait to in-
voice CMS until a provider’s challenge to the repayment
request passed the second level of a five-level appeal
CGI FEDERAL INC. v. US 3
process, which typically occurs somewhere between 120
and 420 days after the demand letter.
Five different contractors bid on the 2014 RFQs, but
CGI did not. Instead, before bidding closed, CGI filed a
timely pre-award protest at the Government Accountabil-
ity Office (“GAO”) challenging the revised payment terms.
While the GAO protest was pending, the bidding period
closed. The GAO subsequently denied the protest. Three
business days later, CGI filed a protest in the United
States Court of Federal Claims. CGI and the government
then filed cross-motions for judgment on the administra-
tive record, and the government moved to dismiss for lack
of standing. The Court of Federal Claims denied the
government’s motion to dismiss but granted its motion for
judgment on the administrative record, holding that the
modified payment terms do not violate statutory or regu-
latory provisions. CGI Fed. Inc. v. United States, No. 14-
cv-00355-MCW, slip op. at 9-10, 18-21 (Fed. Cl. Aug. 15,
2014) (“Opinion and Order”). It also held that the pay-
ment terms do not unduly restrict competition. Id. at 22.
CGI appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
I. Standing
Whether a party has standing is an issue of law that
we review de novo. Am. Fed’n of Gov’t Emps. v. United
States, 258 F.3d 1294, 1298 (Fed. Cir. 2001) (“AFGE”). To
have standing to bring a bid protest in the Court of Fed-
eral Claims, a plaintiff must be an “interested party.” 28
U.S.C. § 1491(b)(1). While § 1491(b)(1) does not define
“interested party,” we have construed the term in accord-
ance with the definition provided in the Competition in
Contracting Act (“CICA”), 31 U.S.C. §§ 3551-56, “an
actual or prospective bidder or offeror whose direct eco-
nomic interest would be affected by the award of the
4 CGI FEDERAL INC. v. US
contract or by failure to award the contract.” AFGE, 258
F.3d at 1299 (quoting 31 U.S.C. § 3551(2)). Thus, to
demonstrate that it has standing, CGI must show that it
is (1) an actual or prospective bidder, and (2) that it has a
direct economic interest. Digitalis Educ. Solutions, Inc. v.
United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012).
A. Prospective Bidder
CGI never submitted a bid in response to the 2014
RFQs and thus is not an actual bidder. CGI must there-
fore show that it was a prospective bidder at the time it
filed its protest in the Court of Federal Claims. We hold
that it has made such a showing.
The parties primarily debate the implications of four
cases in which we have opined on the meaning of “pro-
spective bidder.” A brief description of each case is help-
ful. In MCI Telecommunications Corp. v. United States,
we considered the meaning of “prospective bidder” within
the now-defunct Brooks Act, 40 U.S.C. § 759(f)(9)(B),
which included a definition of “interested party” identical
to the definition in CICA. 878 F.2d 362 (Fed. Cir. 1989).
There, we held that MCI was not a prospective bidder
because it did not participate in the bidding process and
did not file the protest at issue until after the contract
had been awarded. Id. at 364-65. We noted that MCI
could not “achieve prospective bidderhood” via its post-
award protest because “the opportunity to qualify either
as an actual or prospective bidder ends when the proposal
period ends.” Id. at 365.
One year later in Federal Data Corp. v. United States,
we held that Federal Data was not a “prospective bidder”
within the meaning of the Brooks Act because it withdrew
from the bidding process prior to filing a protest. 911
F.2d 699, 702-05 (Fed. Cir. 1990). “Federal Data know-
ingly took itself out of the bidding prior to filing its
amended protest,” and therefore “relinquished any chance
of receiving the contract by that action.” Id. at 703-04.
CGI FEDERAL INC. v. US 5
We noted that Federal Data “could have continued to
compete for the contract award . . . and could have uti-
lized the protest procedures available to an interested
party to correct any deficiencies it perceived in the pro-
curement process,” but did not. Id. at 705. We stated
that a “prospective bidder” “does not include one who only
intends to bid in the event of a reprocurement.” Id. at
704.
We considered the meaning of “prospective bidder” in
the context of an interested party under § 1491 in Rex
Service Corp. v. United States, 448 F.3d 1305 (Fed. Cir.
2006). Rex initially filed a pre-award protest with the
agency. Id. at 1307. The agency denied its protest, and
Rex, having not submitted a bid, did not pursue the
matter further. Id. The agency subsequently awarded
the contract to another party and—two months after the
award and three months after the agency denied its
initial protest—Rex filed a post-award protest in the
Court of Federal Claims, raising issues entirely different
from those raised in its agency protest. Id. We held that
Rex was not a prospective bidder because it “could have
bid, but chose not to.” Id. at 1308. We noted that in Rex’s
case, its pre-award agency protest was “not relevant” to
determining its prospective bidder status. Id. We again
noted that “‘the opportunity to qualify either as an actual
or a prospective bidder ends when the proposal period
ends.’” Id. (quoting MCI, 878 F.2d at 365). We held that
“In the end, Rex did not submit a bid; nor did it file a
timely bid protest in the Court of Federal Claims.” Id.
Finally, in Digitalis, we held that a protestor that
failed to submit the required statement of capability to
the agency in the allotted time period and filed its Court
of Federal Claims protest more than two months after the
contract was awarded was not a prospective bidder. 664
F.3d at 1383-86. Citing to both MCI and Rex, we again
noted that “the opportunity to become a prospective
bidder ends when the proposal period ends.” Id. at 1385.
6 CGI FEDERAL INC. v. US
While none of these cases is directly on point, together
they are instructive. In each case, the party failed to
obtain prospective bidder status because it did not dili-
gently pursue its protest rights, e.g., by failing to file any
protest until well after a contract award (MCI, Digitalis),
affirmatively abandoning any interest in the contract
(Federal Data), or delaying months after both denial of a
timely protest and the award of a contract before filing
the protest at issue (Rex).
The same cannot be said of CGI, which diligently and
continuously pursued its rights in the GAO and then,
immediately upon dismissal by the GAO, in the Court of
Federal Claims. 1 Neither party disputes that CGI quali-
fied as a prospective bidder on the day that it filed its
GAO protest. Thus, it “achieve[d] prospective bidderhood”
at that time. MCI, 878 F.2d at 365. The fact that—as
MCI, Federal Data, and Digitalis all make clear—CGI’s
opportunity to qualify as a prospective bidder ends when
the solicitation period ends does not doom CGI because it
had already achieved prospective bidder status with its
timely GAO protest. It seems equally clear that CGI
retained its prospective bidder status throughout the
pendency of its GAO protest because it was continuously
pursuing its challenge to the payment terms in the 2014
1 The government argues that our precedent pre-
cludes standing for “‘one who only intends to bid in the
event of a reprocurement.’” Appellee’s Br. at 24 (quoting
Federal Data, 911 F.2d at 704) (emphasis added). CGI is
not one who only intends to bid in the event of a repro-
curement. CGI is a prospective bidder who filed a protest
during the bidding period. CGI diligently pursued its
interests and rights in the process from GAO protest (filed
prior to the expiration of the bidding period) to present
day.
CGI FEDERAL INC. v. US 7
RFQs. 2 The question, then, is whether CGI lost its pro-
spective bidder status during the three business days
between the GAO denial and filing the Court of Federal
Claims protest. In other words, has this brief passage of
time or some affirmative act stripped CGI of its prospec-
tive bidder status? In this case, the answer is no.
While we recognize that the government has been
guided in its view by language in Rex, we agree with the
Court of Federal Claims, which concluded that CGI’s
position is readily distinguishable from the protestor in
Rex. In Rex, the protestor waited nearly three months
after the agency denied its initial protest before filing the
protest at issue and, in the interim, the agency awarded
the contract to another bidder. Rex, 448 F.3d at 1307.
Here, CGI filed its Court of Federal Claims protest within
three business days of receiving its dismissal from the
GAO and before CMS had awarded the contract. 3 CGI,
2 The government argued that CGI’s prospective
bidder status dissolved on the day bidding ended in the
middle of its GAO protest. Oral Argument 23:10-24:15,
25:55-26:29, available at http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2014-5143.mp3. We do not
agree. CGI was a prospective bidder by virtue of filing a
timely protest and its status did not dissolve in the midst
of this protest while it was diligently pursuing its rights.
The government presents no authority or good reason for
concluding otherwise. Indeed, in discussing statutory
standing in court, it states that “the proper inquiry is
whether CGI had or was expecting to submit quotes at the
time it filed its lawsuit” in court. Appellee’s Br. at 25. We
see no basis for a different view for the GAO process.
3 The Court of Federal Claims also distinguished
Rex by noting that the subsequent Court of Federal
Claims protest “had nothing to do with” the earlier agency
protest. Order and Opinion at 13. It is correct that the
8 CGI FEDERAL INC. v. US
having secured prospective bidder status by filing its
timely GAO protest, did not lose it in the three business
days it took to file in the Court of Federal Claims. 4 We
acknowledge that Rex explained that the timely filed
agency protest was “not relevant to Rex’s status” as a
prospective bidder at the time that it filed its Court of
Federal Claims protest. This, we conclude, is because Rex
failed to continue to pursue its rights in a diligent fashion,
and thus ceased to be a prospective bidder. Rex’s agency
denial was met with inaction. That inaction persisted for
months, and during that time the government awarded
the contract. By the time Rex filed its Court of Federal
Claims protest, its agency protest was no longer relevant.
Were we to adopt the government’s argument that
CGI is not a prospective bidder, it would create a chasm
between an actual bidder and a prospective bidder in
terms of the review rights accorded to each. For example,
two protests in Rex were unrelated; they were premised
upon different grounds of alleged illegality. It is also
correct that CGI made the same arguments before the
Court of Federal Claims as it did before the GAO. It has
diligently pursued its claim that the solicitation’s terms
were illegal in both fora. It is not immediately apparent,
and given the facts here we need not decide, how any
change in arguments by a continuously diligent protestor
affects prospective bidder status—an issue distinct from
whether a protestor waived arguments. See, e.g., Blue &
Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313
(Fed. Cir. 2007).
4 A longer delay than necessary may be a factor in
the Court of Federal Claims declining to exercise jurisdic-
tion. For example, 28 U.S.C. § 1291(b)(3) states that “[i]n
exercising jurisdiction under this subsection, the courts
shall give due regard to . . . the need for expeditious
resolution of the action.”
CGI FEDERAL INC. v. US 9
an actual bidder would undisputedly have the right to
serially file a protest in the GAO and then, if the GAO
protest were denied, in the Court of Federal Claims. If we
accepted the government’s position, this sequence of
redress would not be available to a prospective bidder. It
would be virtually impossible to file a timely GAO protest,
wait for a GAO decision, and then file a protest in the
Court of Federal Claims prior to the close of bidding. By
the time the GAO protest concluded, bidding would al-
most certainly be closed. Oral Argument 30:30-31:15.
And the two cannot proceed simultaneously. 4 C.F.R.
§ 21.11(b) (“GAO will dismiss any case where the matter
involved is the subject of litigation before . . . a court of
competent jurisdiction.”). We see nothing in this statute,
CICA (from which we derived the actual or prospective
bidder requirement), or any policy justification for differ-
ing treatment among actual and prospective bidders. We
have been presented no indication that Congress intended
different review rights for actual and prospective bidders.
CGI was a prospective bidder when it promptly initi-
ated and diligently pressed its protest in the GAO forum,
which Congress has encouraged protestors to use before
suing in court. Unsuccessful in the GAO, it immediately
filed for relief in court. We do not think that Congress
meant for a protestor in CGI’s position to lose its entitle-
ment to sue just because delays engendered by the GAO
adjudicatory process pushed completion past the closing
date for bid submissions. Concluding, as we do, that CGI
filed a protest prior to the close of bidding and thereby
established its prospective bidder status, and that CGI
thereafter diligently pursued its rights, CGI has prospec-
tive bidder status to pursue its Court of Federal Claims
protest.
B. Direct Economic Interest
To have standing, CGI must also have a direct eco-
nomic interest affected by the award of the contract.
10 CGI FEDERAL INC. v. US
Digitalis, 664 F.3d at 1384. CGI can satisfy this require-
ment by showing that it suffered “a non-trivial competi-
tive injury which can be redressed by judicial relief.”
Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1361-
62 (Fed. Cir. 2009). CGI has made such a showing. CGI
argues that the payment terms in the 2014 RFQs are
illegal and that they caused CGI to protest instead of bid.
Reply Br. at 26. This injury is both non-trivial and com-
petitive, and CGI has sought judicial relief via its protest
in the Court of Federal Claims. As the Court of Federal
Claims correctly concluded, “CGI had ‘a definite economic
stake in the solicitation being carried out in accordance
with applicable laws and regulations.’” Opinion and
Order at 17 (quoting Weeks Marine, 575 F.3d at 1362).
The government argues that the revised payment
terms are not a competitive injury because the payment
terms “‘equally disadvantaged’ all prospective bidders.”
Appellee’s Br. at 32 (quoting Opinion and Order at 24).
This argument is unavailing. The government made the
same argument in Weeks Marine, 575 F.3d at 1360, and
we implicitly rejected it by concluding that the protestor
in that case demonstrated a non-trivial competitive
injury, id. at 1360-62.
*****
Because CGI was a prospective bidder with a direct
economic interest affected by the award of the contract,
we conclude that CGI had standing to file its protest in
the Court of Federal Claims. We therefore turn to the
merits.
II. Challenge to Payment Terms
A. Background
The Federal Acquisition Streamlining Act of 1994
(“FASA”) was implemented to “revise and streamline the
acquisition laws of the federal government” and “facilitate
the acquisition of commercial products.” S. Rep. No. 103-
CGI FEDERAL INC. v. US 11
259, at 1 (1994). To that end, FASA reformed government
procurement by requiring the federal government to
purchase commercial items under commercial terms to
the extent practicable. In particular, FASA provides that
the Federal Acquisition Regulations (“FAR”) include “a
list of contract clauses to be included in contracts for the
acquisition of commercial end items,” and that the list, to
“the maximum extent practicable . . . shall include only
those contract clauses that are . . . determined to be
consistent with standard commercial practice.” 41 U.S.C.
§ 3307(e)(2)(B). FASA also requires that, “[t]o the maxi-
mum extent practicable, only the contract clauses [in the
above-mentioned list] may be used in a contract . . . for
the acquisition of commercial items.” Id. § 3307(e)(2)(D).
FAR Part 12 was created to implement FASA. FAR
Part 12 states that it “shall be used for the acquisition of
supplies or services that meet the definition of commercial
items.” 48 C.F.R. § 12.102(a). FAR Part 12 implements
FASA’s mandate by requiring that “contracts for the
acquisition of commercial items shall, to the maximum
extent practicable, include only those clauses” required by
law or “[d]etermined to be consistent with customary
commercial practice.” Id. § 12.301(a). It precludes the
inclusion of “any additional terms or conditions in a
solicitation or contract for commercial items in a manner
that is inconsistent with customary commercial practice
for the item being acquired unless a waiver is approved in
accordance with agency procedures.” 48 C.F.R.
§ 12.302(c).
The Federal Supply Schedule (“FSS”) program pro-
vides a simplified process for the government to obtain
commercial supplies by negotiating underlying FSS
contracts with suppliers of commercial products and then
allowing executive agencies to issue orders for those
commercial products pursuant to the underlying FSS
contract. See Sharp Elecs. Corp. v. McHugh, 707 F.3d
12 CGI FEDERAL INC. v. US
1367, 1369 (Fed. Cir. 2013). FAR Subpart 8.4 governs the
FSS program. 48 C.F.R. §§ 8.401-8.406.
B. Whether the 2014 RFQ Payment Terms
Violate FAR Part 12
The 2014 RFQs being challenged here were issued
pursuant to the Financial and Business Solutions Sched-
ule, an underlying FSS contract. The Court of Federal
Claims found, and neither party disputes, that the ser-
vices solicited in the 2014 RFQs are commercial items and
that the revised payment terms therein are inconsistent
with customary commercial practice. Opinion and Order
at 9, 19; see Oral Argument 37:45-41:45. We affirm these
undisputed fact findings. 5 Thus, the only issue is whether
FAR Part 12’s proscription against terms that are incon-
sistent with customary commercial practice applies to the
2014 RFQs. If it applies, the payment terms are in viola-
tion.
Before the Court of Federal Claims, the government
does not appear to have disputed that FAR Part 12’s
proscription against terms inconsistent with customary
commercial practice applies to solicitations for the under-
lying FSS contracts themselves. Opinion and Order at
12. However, the government argued that FAR Part 12’s
proscription does not apply to orders made pursuant to
the existing FSS contracts. The Court of Federal Claims
agreed. Opinion and Order at 19-22. It reasoned that
FAR Subpart 8.4, which governs the FSS program, does
5 The government, in response to oral argument
questions, indicated that the Court of Federal Claims was
without authority to find that the revised payment terms
were inconsistent with customary commercial practices.
We deem this issue waived by the government. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d
1312, 1320 (Fed. Cir. 2006).
CGI FEDERAL INC. v. US 13
not expressly state that FAR Part 12 applies to orders
made pursuant to an existing FSS contract. Opinion and
Order at 20. It similarly found that FAR Part 12 does not
expressly state that its provisions apply to such orders.
Opinion and Order at 20-21. We review the Court of
Federal Claims interpretation of the applicable regula-
tions de novo. Abbott Labs. v. United States, 573 F.3d
1327, 1330 (Fed. Cir. 2009).
We conclude that FAR Part 12’s proscription against
terms inconsistent with customary commercial practice
applies to the 2014 RFQs and therefore that the RFQs
violate that proscription. 6 On a general level, FAR Part
12 applies to the 2014 RFQs because it makes clear that it
“shall be used for the acquisition of [commercial items].”
48 C.F.R. § 12.102(a). The 2014 RFQs meet the broad
definition of an “acquisition” under FAR:
Acquisition begins at the point when agency needs
are established and includes the description of re-
quirements to satisfy agency needs, solicitation
and selection of sources, award of contracts, con-
tract financing, contract performance, contract
administration, and those technical and manage-
ment functions directly related to the process of
fulfilling agency needs by contract.
Id. § 2.101. More specifically, FAR § 12.302(c)’s proscrip-
tion against any “solicitations or contracts” including
terms “inconsistent with customary commercial practice” 7
6 CGI alternatively argues that the revised pay-
ment terms violate FASA and are illegal for unduly
restricting competition. We need not reach these alterna-
tive grounds because we find that the terms violate the
applicable provisions in FAR Part 12.
7 FAR § 12.302(c) provides a limited exception to
this proscription against terms inconsistent with custom-
14 CGI FEDERAL INC. v. US
applies to the 2014 RFQs because the RFQs are a “solici-
tation” and the resulting order is a “contract” as those
terms are defined by FAR. FAR expressly defines a
solicitation to include requests for proposals: “Solicitation
means any request to submit offers or quotations to the
Government. . . . Solicitations under negotiated proce-
dures are called ‘requests for proposals.’” Id. § 2.101
(emphasis added). Similarly, FAR defines a “contract” as
including orders: “[C]ontracts include (but are not limited
to) awards and notices of awards; job orders or task
letters issued under basic ordering agreements; letter
contracts; orders, such as purchase orders . . . .” Id. (em-
phasis added). FAR § 12.302(c) thus applies, on its face,
to the 2014 RFQs.
The government and the Court of Federal Claims are
correct that FAR Subpart 8.4 does not explicitly state that
FAR Part 12 applies to orders made pursuant to existing
FSS contracts. We conclude, however, that FAR Part 12
applies to this situation expressly by its terms. To the
extent there is any perceived inconsistency between FAR
Subpart 8.4 and FAR Part 12, FAR Part 12 controls. 48
C.F.R. § 12.102(c) (“When a policy in another part of this
chapter is inconsistent with a policy in this part, this part
12 shall take precedence.”).
CONCLUSION
Because FAR Part 12 applies to the 2014 RFQs and
the revised payment terms violate FAR Part 12’s prohibi-
tion against including contract terms inconsistent with
customary commercial practice, we reverse the Court of
Federal Claims grant of judgment on the administrative
ary commercial practice if a waiver is obtained in accord-
ance with agency procedures. 48 C.F.R. § 12.302(c). No
such waiver was obtained in this case and thus that
exception is not applicable here.
CGI FEDERAL INC. v. US 15
record to the government. We remand to the Court of
Federal Claims for proceedings consistent with this
decision.
REVERSED AND REMANDED