Continental Service Group, Inc. v. United States , 132 Fed. Cl. 570 ( 2017 )


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  •  In the United States Court of Federal Claims
    Nos. 17-449, 17-499
    Filed: June 14, 2017
    *************************************
    *
    CONTINENTAL SERVICE GROUP,          *
    INC., and PIONEER CREDIT            *
    RECOVERY, INC.,                     *
    *
    Plaintiffs,                  *
    *
    and                                 *
    *
    COLLECTION TECHNOLOGY, INC.,        *
    ALLTRAN EDUCATION, INC., and        *         Mootness;
    PROGRESSIVE FINANCIAL SERVICES, *
    Rule of the United States Court of Federal
    INC.,                               *
    *                Claims (“RCFC”) 12(b)(1) (Lack of Subject
    Intervenor-Plaintiffs,       *                Matter Jurisdiction); RCFC 41(a)(2)(A)(ii)
    *                (Voluntary Dismissal By The Plaintiff).
    v.                                  *
    *
    THE UNITED STATES,                  *
    *
    Defendant,                   *
    *
    and                                 *
    *
    CBE GROUP, INC., PREMIERE           *
    CREDIT OF NORTH AMERICA, LLC,       *
    GC SERVICES LIMITED PARTNERSHIP, *
    FINANCIAL MANAGEMENT SYSTEMS, *
    INC., VALUE RECOVERY HOLDINGS, *
    LLC, and WINDHAM PROFESSIONALS, *
    INC.,                               *
    *
    Intervenor-Defendants.       *
    *
    *************************************
    Todd J. Canni, Pillsbury Winthrop Shaw Pittman, LLP, Los Angeles, California, Counsel for
    Plaintiff Continental Services Group, Inc.
    Jonathan D. Shaffer, Smith Pachter McWhorter PLC, Tysons Corner, Virginia, Counsel for
    Plaintiff Pioneer Credit Recovery, Inc.
    Lauren S. Moore, United States Department of Justice, Washington, D.C., Counsel for the
    Government.
    ORDER DENYING DEFENDANT’S MOTION TO DISMISS
    I.     RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY.1
    On December 11, 2015, the ED issued Solicitation No. ED-FSA-16-R-0009 (the
    “Solicitation”). 4/10/17 Pioneer Compl. at ¶ 29. On December 9, 2016, after evaluating forty-
    eight proposals, the ED awarded contracts to: (1) Financial Management Service Investment
    Corp.; (2) GC Services Limited Partnership; (3) Premiere Credit of North America, LLC; (4) The
    CBE Group; (5) Transworld Systems, Inc.; (6) Value Recovery Holding, LLC; and (7) Windham
    Professionals, Inc. (collectively “the current awardees”). 4/10/17 Pioneer Compl. at ¶ 67.
    Between December 19, 2016 and January 9, 2017, the GAO received twenty-four bid
    protests challenging the ED’s award. See Gen. Revenue Corp., B-414220.2 at *1. On March 27,
    2017, the GAO issued a decision sustaining seventeen of the bid protests, because the ED’s
    evaluation of bids, under the “past performance” and “management approach” factors, was
    unreasonable. See id. at *10–*28. In addition, the March 27, 2017 GAO decision recommended
    that
    the [ED] conduct and adequately document a new evaluation of proposals under
    the management approach and past performance factors including, as appropriate,
    amending the solicitation to reasonably reflect the agency’s needs, conducting
    discussions, and receiving revised proposals. After conducting its new evaluation,
    the agency should prepare and adequately document a new source selection
    decision. In the event that any of the current awardees are not evaluated as having
    1
    The facts discussed herein were derived from: the Government Accountability Office’s
    (“GAO”) March 27, 2017 Decision in Gen. Revenue Corp., B-414220.2, Mar. 27, 2017, 
    2017 WL 1316186
    ; Continental Service Group Inc.’s (“Continental”) March 28, 2017 Complaint (“3/28/17
    Continental Compl.”); the March 28, 2017 Declaration of J. Christopher Lang, Continental’s Vice
    President of Contract Administration (“3/28/17 Lang Decl.”); the April 4, 2017 Declaration of
    Patty Queen-Harper, Contracting Officer for the United States Department of Education (“ED”)
    (“4/4/17 Queen-Harper Decl.”); Pioneer Credit Recovery, Inc.’s (“Pioneer”) April 10, 2017
    Complaint (“4/10/17 Pioneer Compl.”); evidence adduced at an oral argument held on May 2,
    2017 (“5/2/17 TR at 1–160”); and the Government’s May 19, 2017 Notice Of Corrective Action
    (“5/19/17 Gov’t Notice). See Cedars-Sinai Med. Ctr. v. Watkins, 
    11 F.3d 1573
    , 1583–84 (Fed.
    Cir. 1993) (holding that the court can look beyond the face of the pleadings in order to find
    predicate jurisdictional facts when deciding a motion to dismiss for lack of subject matter
    jurisdiction).
    2
    a proposal among the most advantageous to the government, the agency should
    terminate any such awards for the government’s convenience.
    Id. at * 30.
    On March 28, 2017, Continental filed a Complaint in the United States Court of Federal
    Claims, alleging that the ED’s determination that Continental was not responsible, based on
    inconsistencies in its proposed small business subcontracting plan, violated the Solicitation and
    Federal Acquisition Regulations (“FAR”), because:
       the ED did not negotiate with Continental after it identified potential
    inconsistencies in Continental’s proposed subcontracting plan;
       the ED did not consider Continental’s past compliance with subcontracting
    requirements;
       the ED provided misleading instructions to Continental about the requirements of
    the subcontracting plan;
       the ED treated offerors disparately by allowing some, but not all, to submit revised
    subcontracting plans; and
       the ED applied inconsistent standards when evaluating the offerors’ subcontracting
    plans.
    3/28/17 Continental Compl. at ¶¶ 68–104.
    Continental’s March 28, 2017 Complaint requested that the court:
       declare that the ED violated the Solicitation and applicable FAR provisions;;
       enjoin the ED from placing more than 37% of monthly accounts with small
    businesses that provide the ED with student debt collection services under
    Solicitation No. ED-FSA-13-R-0006;
       direct the ED to award Continental a contract under the Solicitation; and
       afford Continental any additional relief that the court deems proper.
    3/28/17 Continental Compl. at ¶¶ 107–14, Prayer For Relief 1–5.
    On April 10, 2017, Pioneer also filed a Complaint in the United States Court of Federal
    Claims, alleging that the ED’s determination that Pioneer was not responsible due to
    inconsistencies in its small business subcontracting plan was contrary to law, arbitrary and
    capricious, and irrational, because:
       the ED did not negotiate with Pioneer after it identified potential inconsistencies in
    Pioneer’s proposed subcontracting plan;
    3
       the ED provided misleading instructions, or, alternatively, the Solicitation
    contained a latent ambiguity, about the requirements of the subcontracting plan;
       the ED evaluated the offerors’ subcontracting plans under disparate standards; and
       the ED treated the subcontracting plan as a dispositive factor in its responsibility
    determination.
    4/10/17 Pioneer Compl. at ¶¶ 80–130.
    Pioneer’s April 10, 2017 Complaint requested that the court:
       declare that the ED violated the Solicitation and applicable FAR provisions;
       direct the ED to award Pioneer a contract under the Solicitation;
       direct the ED to conduct negotiations with Pioneer, allow Pioneer to submit
    revisions to its subcontracting plan based on those negotiations and re-evaluate
    Pioneer’s bid;
       “continu[e] jurisdiction over this case to ensure compliance with the [c]ourt’s
    mandate;”
       award Plaintiff’s costs, including reasonable attorney fees; and
       award any other relief the court deems appropriate.
    4/10/17 Pioneer Compl. at Prayer For Relief 1–6.
    On March 29, 2017, the court issued a Temporary Restraining Order (“TRO”), determining
    that the four-factor test provided by the United States Court of Appeals for the Federal Circuit in
    U.S. Ass’n of Importers of Textiles & Apparel v. United States, 
    413 F.3d 1344
    , 1347-48 (Fed. Cir.
    2005), weighed in favor of granting Continental injunctive relief because: “ Continental would be
    immediately and irreparably injured, if [the] ED moved forward with performance on the
    contract[s] at issue in this case;” “the public interest is served by open and fair competition in
    public procurement and preserving the integrity of the competitive process;” and “the balance of
    hardships weighs in favor of Continental[, since] . . . any harm to the Government caused by delay
    in performance is generally less significant than the harm caused to the bid protestor.” ECF No. 9
    at 2–3 (citing FMC Corp. v. United States, 
    3 F.3d 424
    , 427 (Fed. Cir. 1993) (“No one factor, taken
    individually, is necessarily dispositive . . . . [T]he weakness of the showing regarding one factor
    may be overborne by the strength of others.”)). The March 29, 2017 TRO enjoined the ED from:
    (1)       authorizing the purported awardees to perform on the contract award under
    Solicitation No. ED-FSA-16-R-0009 for a period of fourteen days, i.e. until
    April 12, 2017; and
    4
    (2)     transferring work to be performed under the contract at issue in this case to
    other contracting vehicles to circumvent or moot this bid protest for a period
    of fourteen days, i.e. until April 12, 2017.2
    ECF No. 9 at 3.
    On May 2, 2017, the court convened a Preliminary Injunction Hearing. On the same day,
    the court issued a Preliminary Injunction enjoining the ED, until May 22, 2017, from:
    (1)     authorizing the purported awardees to perform on the contract awards under
    Solicitation No. ED-FSA-16-R-0009; and
    (2)     transferring work to be performed under the contract at issue in this case to
    other contracting vehicles to circumvent or moot this bid protest.3
    ECF No. 87.
    On May 19, 2017, the Government filed a Notice Of Corrective Action advising the court
    that, consistent with the GAO’s March 27, 2017 decision, the ED plans to allow all offerors to
    submit new past performance proposals and management plans, and correct the mistakes identified
    by the GAO’s March 27, 2017 decision regarding the evaluation of bids under the past performance
    and management approach factors. 5/19/17 Gov’t Notice at 7–8. The ED also will allow all of
    the offerors’ to correct inconsistencies in their small business subcontracting plans and re-submit
    those plans. 5/19/17 Gov’t Notice at 8–9. After conducting the reevaluation, the ED intends to
    issue a new source selection decision. 5/19/17 Gov’t Notice at 9. If “the current awardees are not
    evaluated as having a proposal among the most advantageous to the Government, the ED will
    terminate those awards for the convenience of the Government.” 5/19/17 Gov’t Notice at 9.
    The May 19, 2017 Notice also advised the court that the ED would implement its corrective
    action plan according to the following schedule:
    May 26, 2017        Solicitation amendment and request for revised proposals
    issued[.]
    June 16, 2017       Due date for the submission of revised proposals[.]
    2
    On April 10, 2017, the court extended the March 29, 2017 TRO for fourteen days, i.e.,
    until April 24, 2017. ECF No. 56. On April 24, 2017, the court extended the TRO for another
    fourteen-day period, i.e., until May 8, 2017. ECF No. 73.
    3
    On May 22, 2017, the court extended the Preliminary Injunction until June 1, 2017. ECF
    No. 132. On May 31, 2017 the court extended the Preliminary Injunction until “the viability of
    the debt collection contracts at issue is resolved.” ECF No. 143 at 2.
    5
    June 19, 2017 to      Evaluation of past performance and management approach;
    August 24, 2017       selection of most advantageous proposals, responsibility
    determinations and other pre-award activities[.]
    August 25, 2017       Notice of awards and notices of termination issued[.]
    5/19/17 Gov’t Notice at 9.
    On May 23, 2017, the Government filed a Motion To Dismiss (“5/23/17 Gov’t Mot.”),
    pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 12(b)(1), arguing that all
    of the claims in Continental’s March 28, 2017 Complaint and Pioneer’s April 10, 2017 Complaint
    are moot in light of the ED’s decision to take corrective action. ECF No. 133, 5/23/17 Gov’t Mot.
    at 1–2.
    On May 25, 2017, the Government filed an Amendment To Defendant’s Notice Of
    Corrective Action (“5/25/17 Gov’t Notice”) stating that, in addition to allowing the offerors to
    submit revised small business subcontracting plans, the ED would allow offerors to submit revised
    small business participation plans. ECF No 135, 5/25/17 Gov’t Notice at 2.
    On May 30, 2017, Pioneer filed a Response to the Government’s May 23, 2017 Motion To
    Dismiss (“5/30/17 Pioneer Resp.”). ECF No. 139. On May 31, 2017, Continental also filed a
    Response (“5/31/2017 Continental Resp.”). ECF No. 141. On June 2, 2017, the Government filed
    a Reply (“6/2/17 Gov’t Reply”). ECF No. 145.
    II.    DISCUSSION.
    A.      Standard Of Review For Motion To Dismiss For Lack Of Subject Matter
    Jurisdiction, Pursuant To RCFC 12 (b)(1).
    A challenge to the United States Court of Federal Claims’ “general power to adjudicate in
    specific areas of substantive law . . . is properly raised by a [RCFC] 12(b)(1) motion[.]”
    Palmer v. United States, 
    168 F.3d 1310
    , 1313 (Fed. Cir. 1999). When considering whether to
    dismiss an action for lack of subject matter jurisdiction, the court accepts as true all undisputed
    facts asserted in the plaintiff’s complaint and draws all reasonable inferences in favor of the
    plaintiff. See Trusted Integration, Inc. v. United States, 
    659 F.3d 1159
    , 1163 (Fed. Cir. 2011).
    When the motion to dismiss challenges the factual basis for the court’s jurisdiction, however, the
    court may look beyond the face of the pleading to establish the predicate jurisdictional facts. See
    Cedars-Sinai Med. Ctr., 
    11 F.3d at 1584
     (“In establishing the predicate jurisdictional facts, a court
    is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings,
    including affidavits and deposition testimony.”). The plaintiff bears the burden of establishing
    subject matter jurisdiction by a preponderance of the evidence. See Brandt v. United States, 
    710 F.3d 1369
    , 1373 (Fed. Cir. 2013).
    6
    B.      The Government’s May 23, 2017 Motion To Dismiss For Lack Of Subject
    Matter Jurisdiction, Pursuant To RCFC 12(b)(1).
    1.      The Government’s Argument.
    The Government argues that “a case is moot when the issues presented are no longer ‘live’
    or the parties lack a legally cognizable interest in the outcome.” 5/23/17 Gov’t Mot. at 4 (quoting
    Cnty of L.A. v. Davis, 
    440 U.S. 625
    , 631 (1979)). In addition, “jurisdiction, properly acquired,
    may abate if the case become moot because . . . interim relief or events have completely and
    irrevocably eradicated the effects of the alleged violation.” 5/23/17 Gov’t Mot. at 4–5 (quoting
    Davis, 
    440 U.S. at 631
    ). In this case, Continental’s March 28, 2017 Complaint and Pioneer’s April
    10, 2017 Complaint challenge the ED’s determination that Continental and Pioneer were not
    responsible, based on inconsistencies in their small business subcontracting plans. But, those
    claims are moot, because the ED’s corrective action plan will allow Continental and Pioneer to
    compete for a debt-collection contract under Solicitation No. ED-FSA-16-R-0009, as if the ED
    never determined that they were not responsible. 5/23/17 Gov’t Mot. at 3, 5.
    The Government also argues that the ED does not need to complete the corrective action
    for the claims alleged in the March 28, 2017 Complaint and April 10, 2017 Complaint to become
    moot; instead, the ED’s decision to take corrective action is sufficient to render the case moot.
    5/23/17 Gov’t Mot. at 5–6 (citing Guardian Moving and Storage, Inc. v. United States, 657 F.
    Appx. 1018, 1025 (Fed. Cir. Aug. 22, 2016)). Moreover, the court may not retain jurisdiction over
    the moot claims to supervise the ED’s corrective action, because the court is “required to assume
    that the Government [will] carry out the corrective action in good faith.” 5/23/17 Gov’t Mot. at 6
    (quoting Chapman Law Firm Co. v. Greenleaf Cost. Co., 
    490 F.3d 934
     (Fed. Cir. 2007)).
    2.      Continental Service Group, Inc.’s Response.
    Continental responds that “a case is not moot as long as the plaintiff’s relief is outstanding.”
    5/31/17 Continental Resp. at 5. The March 28, 2017 Complaint requested that the court enjoin the
    ED from “diluting the contracts under protest by transferring work destined for those contract to
    other contracting vehicles during the pendency of [the] ED’s corrective action.” 5/31/17
    Continental Resp. at 1. If the court dismisses the March 28, 2017 Complaint, the May 31, 2017
    Preliminary Injunction will be lifted and the ED will be able to divert work to other contracting
    vehicles. Therefore, Continental’s request for injunctive relief, pending completion of the
    corrective action, remains outstanding. 5/31/17 Continental Resp. at 6.
    3.      Pioneer Credit Recovery, Inc.’s Response.
    Pioneer’s view is that the claims alleged in the April 10, 2017 Complaint are not moot,
    because the ED’s corrective action does not: (1) grant all the relief requested by Pioneer, or (2)
    eradicate the consequences of the initial non-responsibility determination. 5/30/17 Pioneer Resp.
    at 7. Specifically, the April 10, 2017 Complaint requested that the court stay performance on the
    seven contract awards made under the ED’s first evaluation. 5/30/17 Pioneer Resp. at 7.
    Therefore, “[t]he Pioneer action is not moot unless [the] ED agrees to stay the seven protested
    awards pending completion of corrective action[.]” 5/30/17 Pioneer Resp. at 2.
    7
    In addition, the Government mischaracterizes Guardian Moving, because, in that case, the
    United States Court of Appeals for the Federal Circuit did not consider whether an agency’s
    decision to implement corrective action was sufficient to render a bid protest moot, since the trial
    court dismissed the bid protest after corrective action was complete. 5/30/17 Pioneer Resp. at 9.
    Therefore, the Government’s argument that Guardian Moving stands for the proposition that an
    agency’s decision to take corrective action is sufficient to render a bid protest moot is not correct.
    5/30/17 Pioneer Resp. at 9.
    4.      The Government’s Reply.
    The Government replies that a case becomes moot when, “during the course of litigation,
    it develops that the relief sought has been granted or that the questions originally in controversy
    between the parties are no longer at issue.” 6/2/17 Gov’t Reply at 4 (emphasis in the original)
    (quoting Chapman Law Firm, 
    490 F.3d at 939
    ). Continental’s March 28, 2017 Complaint and
    Pioneer’s April 10, 2017 Complaint “challenged the non-responsibility determinations that they
    received during the initial procurement process.” 6/2/17 Gov’t Reply at 4. But, those non-
    responsibility determinations are no longer in controversy, because, under the ED’s proposed
    corrective action, Continental and Pioneer will be entitled to submit new proposals and have those
    proposals evaluated. 6/2/17 Gov’t Reply at 4.
    In addition, completion of corrective action is not “a necessary predicate for mootness.”
    6/2/17 Gov’t Reply at 5. In fact, the United States Court of Appeals for the Federal Circuit has
    observed that “there [is] nothing interlocutory, uncertain, or tentative” about an agency’s decision
    to take corrective action since it is sufficiently final to allow an unsatisfied contractor to protest
    that action. 6/2/17 Gov’t Reply at 5 (quoting System App. & Techs., Inc. v. United States, 
    691 F.3d 1374
    , 1384–85 (Fed. Cir. 2012). Continental and Pioneer fail to provide any precedential
    authority to the contrary. 6/2/17 Gov’t Reply at 5.
    To the extent that Continental argues that the ED might diminish the amount of work
    available under the disputed contracts, that issue is not ripe for judicial review. 6/2/17 Gov’t Reply
    at 6. As such, “Continental’s imagined future cause of action against the Government is
    insufficient upon which to base this [c]ourt’s continued jurisdiction.” 6/2/17 Gov’t Reply at 6.
    Regarding Pioneer’s argument that the claims alleged in the April 10, 2017 Complaint are
    not moot, “unless [the] ED agrees to stay the seven protested awards,” the Government points out
    that, “[the] ED has already stated that it intends to voluntarily stay performance on the seven
    contracts awarded under the subject solicitation pending the conclusion of the corrective action.”
    6/2/17 Gov’t Reply at 2.
    5.      The Court’s Resolution.
    “A case is moot when the issues presented “are no longer ‘live’ or the parties lack a legally
    cognizable interest in the outcome.” Powell v. McCormack, 
    395 U.S. 486
    , 496 (1969). Generally,
    “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and
    determine the case.” United States v. W. T. Grant Co., 
    345 U.S. 629
    , 632 (1953). The United
    States Supreme Court, however, has held that a case may become moot due to voluntary cessation
    of the challenged conduct when: “(1) it can be said with assurance that ‘there is no reasonable
    8
    expectation . . .’ that the alleged violation will recur[;] and (2) interim relief or events have
    completely and irrevocably eradicated the effects of the alleged violation.” Davis, 
    440 U.S. at 631
    (internal citations omitted).
    The Government, however, urges the court to apply a different standard to determine
    whether Continental and Pioneer’s cases are moot citing Chapman Law Firm, where the United
    States Court of Appeals for the Federal Circuit held that a case is moot if, “the relief sought has
    been granted or [] the questions originally in controversy between the parties are no longer at
    issue.” 6/2/17 Gov’t Reply at 4 (emphasis in the original) (quoting Chapman Law Firm, 
    490 F.3d at 939
    ). But, in Chapman Law Firm, our appeals court also noted that “the [United States]
    Supreme Court has recognized an exception to this rule when the defendant voluntarily ceases the
    challenged practice.” Chapman Law Firm, 
    490 F.3d at 939
    . In such cases, mootness is determined
    according to the test in Davis. 
    Id.
     (citing Davis, 
    440 U.S. at 631
    ).
    The March 28, 2017 Complaint and April 10, 2017 Complaint challenge the ED’s
    determination that the proposals of the respective plaintiffs were not “responsible” due to
    inconsistencies in their small business subcontracting plans. 3/28/17 Continental Compl. at ¶¶ 68–
    104; 4/10/17 Pioneer Compl. at ¶¶ 80–130. Under the ED’s corrective action, Continental and
    Pioneer will have an opportunity to correct inconsistencies in their subcontracting plans and submit
    new proposals for evaluation. 5/19/17 Gov’t Notice at 8–9. Because the court must “assume that
    the Government [will] carry out the corrective action in good faith,” see Chapman Law Firm, 
    490 F.3d at 941
    , there is no reasonable expectation that the ED will repeat the same errors in evaluating
    Continental and Pioneer’s revised proposals. Therefore, the first element of the Davis test is
    satisfied.
    The Government’s May 19, 2017 Notice Of Corrective Action, however, did not
    “completely and irrevocably eradicate[] the effects of the [] violation[s]” alleged in the March 28,
    2017 Complaint. See Davis, 
    440 U.S. at 631
    . At present, Continental has no contract under which
    it can receive new debt collection accounts. 5/2/17 TR at 66 (Ms. Moore). Consequently,
    Continental is not able to compete for new accounts, until the corrective action is complete and
    the ED awards new contracts under the Solicitation. In the meantime, the ED may assign accounts
    to other debt collection companies. 3/28/17 Lang Decl. at ¶¶ 6, 10–12. Continental estimates that
    the transfer of new accounts that Continental otherwise would have received will result in a loss
    of $7 million in revenue per month. 3/28/17 Lang Decl. at ¶ 26. This economic injury was caused
    by the ED’s determination that Continental was not responsible and the effects thereof will not end
    until the corrective action is in fact complete. Therefore, the court has determined that the ED’s
    proposed corrective action does not satisfy the second element of the Davis test.
    Today, Continental’s economic injury is continuing and is an appropriate basis for the court
    to determine that the March 28, 2017 Complaint is not moot. The issue before the court is whether
    the ED’s corrective action “completely and irrevocably eradicated the effects of the [relevant]
    violation.” Davis, 
    440 U.S. at 631
     (emphasis added). “Irrevocably” means “in a way that cannot
    be changed,” and thus includes consideration of future events. See OXFORD ONLINE DICTIONARY,
    https://en.oxforddictionaries.com/definition/irrevocably, (last visited June 13, 2017).
    Accordingly, the second element of the Davis test, not only allows, but requires the court to
    consider the possibility of future harms to Continental.
    9
    Pioneer appears to be in a different position, because, on April 28, 2017, Pioneer was
    offered an award term extension task order under a prior contract. See Coast Professional, Inc. v.
    United States, No. 15-2017, ECF No. 232. Nevertheless, the ED’s corrective action plan does not
    moot Pioneer’s April 10, 2017 Complaint, because it does not require that the ED stay collection
    work by the seven awardees of the disputed contracts. 5/30/17 Pioneer Resp. at 7. If the ED
    assigns debt collection work to the awardees of the disputed contracts, the amount of collection
    work available to Pioneer will decrease. Accordingly, Pioneer will suffer a loss of work.
    Therefore, the corrective action plan does not “completely and irrevocably eradicate[] the effects
    of the [relevant] violation.” Davis, 
    440 U.S. at 631
    .
    The Government previously has represented to Pioneer and the court that the ED “will not
    transfer any accounts under any of [the seven current] contracts, or otherwise authorize, order or
    accept any work under those seven contracts, pending the resolution of this protest.” 3/17 Queen-
    Harper Decl. at ¶ 6; 5/30/17 Pioneer’s Resp. at Ex. 1. But, the May 19, 2017 Notice of Corrective
    Action and the May 25, 2017 Amendment To Defendant’s Notice Of Corrective Action did not
    mention any stay of collection work by the current awardees. Therefore, the court has determined
    that the ED’s corrective action plan does not moot Pioneer’s case. If Pioneer, however, is
    completely satisfied with the Government’s representations, it may voluntarily dismiss the April
    10, 2017 Complaint, pursuant to RCFC 41(a)(1)(A)(ii).
    III.   CONCLUSION.
    For these reasons, the court denies the Government’s May 23, 2017 Motion To Dismiss,
    pursuant to RCFC 12(b)(1).
    IT IS SO ORDERED.
    s/Susan G. Braden
    SUSAN G. BRADEN
    Chief Judge
    10