Case: 20-1414 Document: 98 Page: 1 Filed: 02/19/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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HVF WEST, LLC,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
LAMB DEPOLLUTION, INC.,
Defendant-Appellant
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2020-1414, 2020-1583
______________________
Appeals from the United States Court of Federal
Claims in No. 1:19-cv-01308-MMS, Chief Judge Margaret
M. Sweeney.
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Decided: February 19, 2021
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EDWARD SANDERSON HOE, Covington & Burling LLP,
Washington, DC, argued for plaintiff-appellee. Also repre-
sented by ANDREW GUY, DARBY ROURICK.
STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellant
Case: 20-1414 Document: 98 Page: 2 Filed: 02/19/2021
2 HVF WEST, LLC v. UNITED STATES
United States. Also represented by JEFFREY B. CLARK,
ROBERT EDWARD KIRSCHMAN, JR., DOUGLAS K. MICKLE.
SHAR BAHMANI, Sacks Tierney P.A., Scottsdale, AZ, ar-
gued for defendant-appellant Lamb Depollution, Inc. Also
represented by JOE KEENE.
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Before PROST, Chief Judge, CLEVENGER and HUGHES,
Circuit Judges.
CLEVENGER, Circuit Judge.
The United States (“Government”) and Lamb Depollu-
tion, Inc. (”Lamb”) appeal the final judgment of the United
States Court of Federal Claims (“Claims Court”) in this bid
protest case holding that it had subject matter jurisdiction
to hear HVF West, LLC’s (“HVF”) bid protest claim and
that HVF had standing to bring the claim, and further
granting HVF’s motion for judgment on the administrative
record. HVF West, LLC v. United States,
146 Fed. Cl. 314
(2019). For the reasons set forth below, we reverse.
I
The contract in suit stems from a solicitation issued by
the Defense Logistics Agency Disposition Services
(“agency”) for the purchase and destruction of surplus Gov-
ernment military property. Prior to taking title of the pur-
chased property, the contractor was required to
demilitarize or mutilate the property to prevent design in-
formation from being released. The contractor would then
own the scrap residue resulting from the property’s de-
struction.
The solicitation described itself as a “sales contract,”
but clearly called for the performance of demilitarization or
mutilation services for the agency by the winning bidder.
The solicitation requested that sealed bids include only the
price that the contractor would pay per pound for the
Case: 20-1414 Document: 98 Page: 3 Filed: 02/19/2021
HVF WEST, LLC v. UNITED STATES 3
property. Although bidders were required to meet certain
non-price criteria (e.g., technical ability to perform the
work), the solicitation did not clearly indicate whether all
bidders would be evaluated together under the criteria or
whether only the highest bidder’s non-price qualifications
would be evaluated. The agency’s contracting officer (“CO”)
received four bids in total. Lamb had the highest bid and
HVF had the lowest bid with two other bidders in between.
The CO only evaluated the non-price criteria for Lamb, and
awarded the contract to Lamb after finding it met all the
non-price criteria. HVF unsuccessfully protested the award
to Lamb, first at the agency, and then at the Government
Accountability Office (“GAO”), and finally filed a bid pro-
test suit in the Claims Court.
28 U.S.C. § 1491(b)(1) vests the Claims Court with ju-
risdiction to hear bid protest claims by an interested party
in connection with a procurement contract. In order to have
standing to bring the bid protest, a losing bidder must show
that it had a substantial chance of winning the contract but
for the alleged error. HVF argued that the contract at issue
called for a procurement of services and thus satisfied
§ 1491(b)(1). Although HVF was fourth in line on price, it
asserted that it had standing to protest the contract award
based upon detailed allegations in the complaint that
Lamb had failed to satisfy specific non-price criteria re-
quired under the “pre-award survey,” and that the two
other intervening bidders “failed to meet the standards for
a successful pre-award survey.” J.A. 59. In its motion for
judgment on the administrative record, HVF further al-
leged that two intervening bidders were ineligible to re-
ceive the contract either because they lacked experience in
demilitarization services or had never received a federal
contract with a money obligation as great as the one for the
contract at issue. By challenging the qualification of the
price winner, Lamb, and questioning the two intervening
and better-priced bidders, HVF claimed that it had a sub-
stantial chance of receiving the award. Thus, according to
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4 HVF WEST, LLC v. UNITED STATES
HVF, the Claims Court had subject-matter jurisdiction
over its complaint, it had standing to protest the contract
award, and it could show that the CO had erred in finding
that Lamb satisfied all the non-price criteria required for
the award of the contract. Lamb and the Government chal-
lenged the subject-matter jurisdiction of the Claims Court
on the ground that the contract was in connection to a sale
of property, rather than procurement of property or ser-
vices, and alleged that HVF lacked standing to bring the
claim. Lamb further alleged that the CO had correctly de-
termined that Lamb met all the non-price criteria.
In its final judgment on the administrative record, the
Claims Court held that the solicitation’s procurement of
services provided more than a de minimis value to the
agency sufficient to meet the jurisdictional statute, that
HVF satisfied the legal test for standing, and that HVF
successfully showed that the CO erred in finding Lamb sat-
isfied all non-price criteria in the solicitation. Accordingly,
the Claims Court ordered the agency to cancel the contract
awarded to Lamb.
II
Lamb and the Government timely appeal from the final
decision of the Claims Court. We have jurisdiction under
28 U.S.C. § 1295(a)(3) and review questions of standing de
novo. Am. Fed’n of Gov’t Emps. v. United States,
258 F.3d
1294, 1298 (Fed. Cir. 2001).
Lamb and the Government argue that the solicitation
does not satisfy the jurisdictional requirements of
§ 1491(b)(1) because it is for a contract for sale of property
rather than for a procurement of property or services, and
any services required in the solicitation are merely a con-
dition to sale that does not transform the underlying na-
ture of the contract. Lamb also challenges HVF’s standing
and asserts error in the Claims Court’s finding that Lamb
failed to satisfy all the non-price criteria. Because we hold
that HVF lacks standing to bring the protest, we reverse
Case: 20-1414 Document: 98 Page: 5 Filed: 02/19/2021
HVF WEST, LLC v. UNITED STATES 5
on that ground and do not reach the other grounds for re-
versal argued by Lamb and the Government.
III
Standing under § 1491(b)(1) “imposes more stringent
standing requirements than Article III” by requiring the
losing bidder to be an “interested party.” Weeks Marine,
Inc. v. United States,
575 F.3d 1352, 1359 (Fed. Cir. 2009).
We have held that an interested party is an actual or pro-
spective bidder whose “direct economic interest would be
affected by the award of the contract or by failure to award
the contract.” Am. Fed’n,
258 F.3d at 1302. To succeed in
showing that it had a direct economic interest, HVF had to
make a sufficient showing that it had a “substantial
chance” of winning the contract. Eskridge & Assocs. v.
United States,
955 F.3d 1339, 1345 (Fed. Cir. 2020).
In order for HVF to show that it had a substantial
chance of winning the award for this solicitation, it had to
sufficiently challenge the eligibility of Lamb and both of the
intervening bidders. See, e.g., United States v. Int’l Bus.
Machines Corp.,
892 F.2d 1006, 1010 (Fed. Cir. 1989);
Eskridge, 955 F.3d at 1344 (protesting party lacked stand-
ing upon failure to “make a credible challenge to the tech-
nical acceptability of four lower [price] bids”). However,
HVF only proffers allegations based upon conjecture that
are insufficient to show it had a substantial chance of win-
ning the award. See Bannum, Inc. v. United States,
404
F.3d 1346, 1358 (Fed. Cir. 2005) (“There is nothing besides
Bannum’s conjecture to support the contention that an-
other review . . . would provide it a substantial chance of
prevailing in the bid.”). In its complaint, HVF alleged only
that the intervening bidders “failed to meet the standards
for a successful pre-award survey.” J.A. 59. This conclusory
statement is insufficient to question the eligibility of the
intervening bidders.
In an attempt to support its allegation with extrinsic
evidence, HVF purported that the website of one
Case: 20-1414 Document: 98 Page: 6 Filed: 02/19/2021
6 HVF WEST, LLC v. UNITED STATES
intervening bidder made no mention that the company per-
formed demilitarization work or would be capable of per-
forming such work. However, these speculative assertions
do not account for the fact that the solicitation stated that
non-price considerations, such as experience, could be
demonstrated through the facilities of a subcontractor and
need not be shown through a bidder’s own facilities. HVF
also alleged that the individual representing the other in-
tervening bidding entity had never received a federal con-
tract that was close to the value of the contract at issue.
But this does not indicate on its own that the intervening
bidding entity, rather than its associated individual, would
have been unable to fulfill the contract.
Again, HVF’s speculative conclusions fail to provide a
sufficient reason to question the eligibility of the interven-
ing bidders. See Orbital Maint. & Constr. Co. v. United
States,
145 Fed. Cl. 71, 76 (2019) (determining that plain-
tiff failed to challenge the two other offerors’ eligibility be-
cause its arguments were highly speculative and thus, it
had no standing); see also Esilux Corp., B-234689, 89-1
CPD ¶ 538, (Comp. Gen. June 8, 1989) (protester had no
standing because it failed to provide support for bare alle-
gations that the second-lowest offeror was not responsible
and its offer unacceptable). Without more, HVF falls short
of the threshold to establish it had a substantial chance of
winning the award. Cf. Hyperion, Inc. v. United States,
115
Fed. Cl. 541, 550 (2014) (plaintiff had standing because it
adequately alleged that three lower-priced proposals were
improperly considered technically acceptable); Bluewater
Mgmt. Grp., LLC v. United States,
150 Fed. Cl. 588, 608–09
(2020) (plaintiff substantively alleged with detailed refer-
ence to specific contract requirements that two lower-
priced bidders had non-compliant or deficient bids, which
was sufficient to establish that it had a substantial chance
of winning).
The Claims Court’s decision, entered on November 22,
2019, did not have the benefit of our subsequent decision
Case: 20-1414 Document: 98 Page: 7 Filed: 02/19/2021
HVF WEST, LLC v. UNITED STATES 7
in Eskridge. In that case, we made clear that even when an
agency assesses price-ranked bidders together for technical
compliance to select the bid most advantageous to the Gov-
ernment, as HVF asserts the agency should have done in
this solicitation, the least favored price-ranked bidder has
standing only upon mounting a credible challenge to the
technical acceptability of the better price-ranked bidders in
line and in front of the protesting party. In this case, HVF
failed to mount such a challenge.
IV
For the foregoing reasons, we reverse the Claims
Court’s judgment that HVF had standing to bring its bid
protest suit. This case is remanded to the Claims Court for
dismissal of HVF’s complaint.
REVERSED AND REMANDED
COSTS
No costs.
