Diaz v. United States , 853 F.3d 1355 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
KEVIN DIAZ,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-2501
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00138-MBH, Judge Marian Blank
Horn.
______________________
Decided: April 11, 2017
______________________
KEVIN DIAZ, Boston, MA, pro se.
ALISON VICKS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DOUGLAS
K. MICKLE.
______________________
Before WALLACH, CHEN, and STOLL, Circuit Judges.
2 DIAZ v. UNITED STATES
WALLACH, Circuit Judge.
Appellant Kevin Diaz submitted an unsolicited pro-
posal to the U.S. Department of the Navy’s (“Navy”)
Indian Head Explosive Ordnance Disposal Technology
Division (“IHEODTD”) pursuant to 48 C.F.R. (Federal
Acquisition Regulation (“FAR”)) Subpart 15.6 (2015). A
contracting officer from the IHEODTD conducted an
initial review of Mr. Diaz’s proposal and determined that
it did not satisfy the requirements of FAR 15.606-1, a
decision that the Contracting Officer affirmed when Mr.
Diaz requested reconsideration.
Mr. Diaz filed a complaint in the U.S. Court of Feder-
al Claims challenging the Contracting Officer’s rejection
of his unsolicited proposal. Appellee the United States
(“the Government”) moved to dismiss. The Court of
Federal Claims granted the Government’s motion and
dismissed Mr. Diaz’s Complaint for, inter alia, lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of
the Rules of the Court of Federal Claims (“RCFC”) be-
cause he lacked standing under 28 U.S.C. § 1491(b)(1)
(2012). See Diaz v. United States, 127 Fed. Cl. 664, 677
(2016).
Mr. Diaz appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3). We affirm.
DISCUSSION
I. Standard of Review and Legal Standards
We review a Court of Federal Claims decision to dis-
miss for lack of jurisdiction de novo. Res. Conservation
Grp., LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir.
2010). The plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. Brandt v.
United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013).
The Court of Federal Claims’s jurisdiction over bid
protest disputes is articulated in § 1491(b)(1). It provides
DIAZ v. UNITED STATES 3
that the Court of Federal Claims has jurisdiction to
adjudicate an “action by an interested party objecting to a
solicitation by a Federal agency for bids or proposals for a
proposed contract or to a proposed award or the award of
a contract or any alleged violation of statute or regulation
in connection with a procurement or a proposed procure-
ment.” Id. Section 1491(b)(1) includes three related
requirements that are pertinent to the jurisdictional
inquiry in this case, with the first addressing the Court of
Federal Claims’s subject matter jurisdiction and the
second and third addressing standing.
First, subject matter jurisdiction under § 1491(b)(1)
may be established for a “violation of a statute or regula-
tion in connection with a procurement or a proposed
procurement.” RAMCOR Servs. Grp., Inc. v. United
States, 185 F.3d 1286, 1289 (Fed. Cir. 1999). The phrase
“in connection with” is “very sweeping in scope” and
“includes all stages of the process of acquiring property or
services, beginning with the process for determining a
need for property or services and ending with contract
completion and closeout.” Distributed Sols., Inc. v. United
States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (internal
quotation marks, emphasis, and citations omitted).
Under the circumstances here, Mr. Diaz’s allegation that
the Contracting Officer improperly rejected his unsolicited
proposal pursuant to FAR 15.606-1 constitutes a non-
frivolous allegation of a violation of a regulation in con-
nection with a proposed procurement and, thus, is suffi-
cient to meet the “in connection with” requirement of the
statute. See id. at 1345 n.1 (“A non-frivolous allegation of
a statutory or regulatory violation in connection with a
procurement or proposed procurement is sufficient to
establish jurisdiction.”). Mr. Diaz’s proposal qualifies as a
“proposed procurement” that was reviewed by the Gov-
ernment, as indicated in the record by Mr. Diaz’s receipt
of a significant number of emails from government per-
sonnel regarding the status of his proposal, see Resp’t’s
4 DIAZ v. UNITED STATES
App. at 88–154, and the Contracting Officer’s “careful and
specific” review of, and response to, the proposal, Diaz,
127 Fed. Cl. at 675.
The second and third of the three requirements of
§ 1491(b)(1) that are pertinent to the jurisdictional in-
quiry relate to a party’s standing to file a bid protest. See,
e.g., Myers Investigative & Sec. Servs., Inc. v. United
States, 275 F.3d 1366, 1369 (Fed. Cir. 2002). A party
seeking to establish jurisdiction under § 1491(b)(1) must
show that it meets § 1491(b)(1)’s standing requirements,
which are “more stringent” than the standing require-
ments imposed by Article III of the Constitution. Weeks
Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed.
Cir. 2009). To meet these more stringent requirements, a
plaintiff must make two separate showings. The party
first must show that it is an “interested party.” Digitalis
Educ. Sols., Inc. v. United States, 664 F.3d 1380, 1384
(Fed. Cir. 2012). To satisfy the interested party require-
ment, “a party must show that it [(1)] is . . . an actual or
prospective bidder and [(2)] . . . has a direct economic
interest” in the procurement or proposed procurement.
Id. “To prove a direct economic interest, a party must
show that it had a substantial chance of winning the
contract.” Id. (internal quotation marks and citation
omitted). 1
1 “A protest will, by its nature, dictate the neces-
sary factors for a direct economic interest.” Sys. Applica-
tion & Techs., Inc. v. United States, 691 F.3d 1374, 1382
(Fed. Cir. 2012) (internal quotation marks omitted). For
example, “[i]n pre-award protests, . . . the plaintiff must
show a non-trivial competitive injury which can be ad-
dressed by judicial review,” whereas “[i]n post-award
protests, the plaintiff must show it had a substantial
chance of receiving the contract.” Id. (internal quotation
marks and citations omitted). We have not established a
DIAZ v. UNITED STATES 5
The second standing requirement requires a party
“show that it was prejudiced by a significant error in the
procurement process.” Labatt Food Serv., Inc. v. United
States, 577 F.3d 1375, 1378 (Fed. Cir. 2009) (citation
omitted); see id. at 1380 (explaining that courts should not
“conflat[e] the standing requirements of prejudicial error
and [direct] economic interest,” such that “there would be
no such thing as an error non-prejudicial to an economi-
cally interested offeror,” and “reiterat[ing] the established
law . . . that non-prejudicial errors in a bid process do not
automatically invalidate a procurement” (citations omit-
ted)). To satisfy the prejudice requirement, the party
must show that “but for the [Government’s] error,” the
party “would have had a substantial chance of securing
the contract.” Id. at 1378 (emphasis added) (citations
omitted). Prejudice is a factual question that we review
for clear error. Tinton Falls Lodging Realty, LLC v.
United States, 800 F.3d 1353, 1357–58 (Fed. Cir. 2015).
standard for evaluating whether a party has a direct
economic interest in an unsolicited proposal submitted
pursuant to FAR Subpart 15.6. However, the Court of
Federal Claims applied the “substantial chance” standard
when evaluating whether Mr. Diaz has a “direct economic
interest,” Diaz, 127 Fed. Cl. at 675, and neither party
contests the use of this standard, see generally Appellant’s
Br.; Appellee’s Br. We find that standard reasonable for
the purposes of this appeal and, accordingly, we evaluate
whether Mr. Diaz has a “direct economic interest” by
considering whether he has “show[n] that [he] had a
substantial chance of winning the contract.” Digitalis,
664 F.3d at 1384 (internal quotation marks and citation
omitted).
6 DIAZ v. UNITED STATES
II. Mr. Diaz Does Not Have Standing to Allege his Bid
Protest Claim
The standing inquiry requires us to consider interest-
ed party status and prejudice, but the instant appeal
hinges on the second element of the interested party
requirement of the standing inquiry. 2 It presents the
novel issue of whether Mr. Diaz possessed a direct eco-
nomic interest because he had a “substantial chance of
winning a contract” that the Government never solicited.
If he does not possess the requisite direct economic inter-
est, Mr. Diaz would not be an interested party and would
not have standing to sue. We hold that he did not possess
the requisite interest and, thus, that Mr. Diaz has not
satisfied his “burden of establishing the elements of
standing.” Myers, 275 F.3d at 1369 (internal quotation
marks, brackets, and citations omitted).
Mr. Diaz cannot demonstrate that he “had a substan-
tial chance of winning the contract” because, at the very
least, his proposal did not conform to the requirements of
FAR Subpart 15.6, which governs unsolicited proposals.
Pursuant to FAR Subpart 15.6, consideration of unsolicit-
ed proposals involves three stages: (1) initial review;
(2) comprehensive evaluation; and (3) negotiations. See
FAR 15.606-1(a), 15.606-2, 15.607(b).
2 With respect to the first element of the interested
party requirement, it is undisputed that Mr. Diaz proper-
ly submitted an offer to the IHEODTD. See Appellant’s
Br. 6; Appellee’s Br. 5–6; see also Appellee’s App. 55–80.
Therefore, Mr. Diaz is an actual bidder pursuant to the
first element of the interested party requirement. Cf.
Distributed Sols., 539 F.3d at 1345 (Fed. Cir. 2008) (hold-
ing that the plaintiffs were prospective bidders because
“they submitted qualifying proposals” and stated in their
complaint that they “were prepared to submit bids”).
DIAZ v. UNITED STATES 7
During the initial review, “the agency contact point
shall determine if the proposal,” inter alia, “[i]s a valid
unsolicited proposal.” FAR 15.606-1(a)(1). To be “valid,”
an unsolicited proposal must
(1) [b]e innovative and unique;
(2) [b]e independently originated and developed by
the offeror;
(3) [b]e prepared without Government supervi-
sion, endorsement, direction, or direct Govern-
ment involvement;
(4) [i]nclude sufficient detail to permit a determi-
nation that Government support could be worth-
while and the proposed work could benefit the
agency’s research and development or other mis-
sion responsibilities;
(5) [n]ot be an advance proposal for a known agen-
cy requirement that can be acquired by competi-
tive methods; and
(6) [n]ot address a previously published agency
requirement.
FAR 15.603(c) (emphasis added). In this case, the Con-
tracting Officer determined that Mr. Diaz’s proposal did
not meet the first and fourth requirements and that she
could not determine whether Mr. Diaz had met the re-
maining requirements, such that it was not a valid pro-
posal. Appellee’s App. 82–84. Therefore, the Contracting
Officer rejected Mr. Diaz’s unsolicited proposal at the
initial review stage. Id.In the Complaint, Mr. Diaz argues that he satisfied
the third, fifth, and sixth requirements of FAR 15.603(c),
id. at 44; however, Mr. Diaz has not presented any argu-
ments or evidence as to the first, second, or fourth factors
in the Complaint, see id. at 15–53, or in his briefs before
this court, see generally Appellant’s Br.; Appellant’s
8 DIAZ v. UNITED STATES
Reply. Because an offeror submitting an unsolicited
proposal must satisfy all six requirements in
FAR 15.603(c) for a proposal to be valid under
FAR 15.606-1(a)(1), see FAR 15.603(c) (using the conjunc-
tive “and”), Mr. Diaz has failed to demonstrate that the
Contracting Officer incorrectly determined that his pro-
posal was not “valid” and, thus, Mr. Diaz has failed to
satisfy his burden of demonstrating that he “had a sub-
stantial chance of winning the contract,” Digitalis, 664
F.3d at 1384 (internal quotation marks and citation
omitted). 3
CONCLUSION
We have considered Mr. Diaz’s remaining arguments
and find them unpersuasive. Accordingly, the final deci-
sion of the U.S. Court of Federal Claims is
AFFIRMED
3 Because Mr. Diaz has not shown that he meets
the interested party requirement of the standing inquiry,
we need not address whether he has demonstrated the
requisite prejudice to satisfy the second requirement of
that inquiry.