Systems Application & Technologies, Inc. v. United States , 691 F.3d 1374 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
SYSTEMS APPLICATION & TECHNOLOGIES, INC.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant,
and
MADISON RESEARCH CORPORATION,
Defendant.
__________________________
2012-5004
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 11-CV-280, Judge Margaret M.
Sweeney.
_________________________
Decided: August 24, 2012
_________________________
CRAIG A. HOLMAN, Arnold & Porter LLP, of Washing-
ton, DC argued for plaintiff-appellee. With him on the
brief were KARA L. DANIELS and EMMA V. BROOMFIELD.
FRANKLIN E. WHITE, JR., Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
SYSTEMS APPLICATION & TECH v. US 2
defendant-appellant. With him on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MATTHEW F. SCARLATO, Trail Attorney.
__________________________
Before RADER, Chief Judge, O’MALLEY and WALLACH,
Circuit Judges.
RADER, Chief Judge.
In this bid protest action, the United States Court of
Federal Claims denied the U.S. Army’s motion to dismiss
the complaint filed by Systems Application & Technolo-
gies, Inc. (“SA-TECH”). SA-TECH, the original contract
awardee for aerial target flight and maintenance services,
protested the Army’s decision to engage in corrective
action instead of allowing SA-TECH’s award to stand. In
addition to asserting subject matter jurisdiction, the
Court of Federal Claims also found the Army’s actions to
be unreasonable and contrary to law. Sys. Application &
Techs., Inc. v. United States, 100 Fed. Cl. 687, 702–710
(2011). Upon review of the record, this court affirms.
I.
The Court of Federal Claims admirably stated the
relevant facts in its opinion. Id. at 693–702. With that in
mind, this court only sets forth the facts required to
assess the Army’s jurisdictional arguments.
In April 2010, the Army solicited proposals for the
provision of aerial target flight operations and mainte-
nance services at numerous Army installations. The
solicitation proposed a contract with one base year and
four option years. At the time of the solicitation, Kratos
Defense & Security Solutions (“Kratos”) provided these
services under a predecessor contract. Id. at 694.
3 SYSTEMS APPLICATION & TECH v. US
The solicitation listed three evaluation factors: Tech-
nical/Management; Past Performance; and Price/Cost.
The solicitation indicated that the Army would rate
Technical/Management and Past Performance factors and
sub-factors as “outstanding,” “satisfactory,” “marginal,” or
“unsatisfactory.” Id. Overall, the Technical/Management
and Price/Cost factors were similarly weighted, and,
“taken individually, were ‘significantly more important’
than the Past Performance factor.” Id. However, the
Technical/Management and Past Performance factors,
when considered together, were “more important” than
the Price/Cost factor. Id.
The Technical evaluation factor had three sub-factors,
including Labor. The Labor sub-factor required
“[e]vidence of the availability of sufficient personnel with
the required skills, experience, and of the proposed labor
mix to assure effective and efficient performance.” J.A.
10270. The solicitation required offerors to provide “[t]he
labor mix (i.e. job categories and hours assumed for each)
for the SOW [Statement of Work] as a whole,”
“[m]inimum and proposed levels of education,” “resumes
for each individual proposed” for specific labor categories,
and “the total number of personnel proposed to perform
the requirements of the SOW.” J.A. 10267.
The solicitation provided that the contract would be
subject to the Service Contract Act of 1965. For such
contracts, the Federal Acquisition Regulation (“FAR”)
requires that “successor contractors performing on con-
tracts in excess of $2,500 for substantially the same
services performed in the same locality must pay wages
and fringe benefits (including accrued wages and benefits
and prospective increases) at least equal to those
contained in any bona fide collective bargaining
agreement entered into under the predecessor
contract.” FAR 22.1002-3(a) (emphasis added). The
SYSTEMS APPLICATION & TECH v. US 4
Army later amended the solicitation to include an up-
dated Wage Determination. The new Wage Determina-
tion contained the collective bargaining agreement
between the incumbent Kratos and the International
Association of Machinists and Aerospace Local Lodge
2515.
The Army received three proposals, including the of-
fers from SA-TECH and Kratos. The Army’s Technical
Evaluation Committee initially evaluated the proposals
and included all three in the competitive range. Sys.
Application & Techs., 100 Fed. Cl. at 696. Following a
period of discussions, the Army requested final proposal
revisions from the offerors. Id.
After a review, the Technical Evaluation Committee
announced its findings in a Final Evaluation Report.
While it noted potential difficulties for SA-TECH under
the Labor sub-factor, it rated SA-TECH as “outstanding”
for all evaluation factors. Id. at 697. Kratos also received
“outstanding” ratings. Id.
The Source Selection Authority reviewed the evalua-
tions and concluded that SA-TECH offered the best value
for the government. Because “there were no meaningful
distinctions between the non-cost portions of the propos-
als . . . ,” the Source Selection Authority found the
“price/cost advantages of SA-TECH’s proposal” tilted the
balance in its favor. Id. at 698. The Army notified the
offerors of its award decision. The notification letters
disclosed SA-TECH’s final price and the adjectival ratings
for all offerors’ proposals. Id.
Kratos filed a protest with the Government Account-
ability Office (“GAO”). Kratos argued the Army improp-
erly added a new requirement to the solicitation when it
issued the updated Wage Determination. Kratos also
asserted that the Army’s evaluation of labor mixes did not
5 SYSTEMS APPLICATION & TECH v. US
consider the offerors’ compliance with the collective
bargaining agreement. Finally the protest challenged SA-
TECH’s Technical/Management rating. Id. SA-TECH
intervened in the protest. Several months later, Kratos
filed a supplemental protest with the GAO. It claimed the
Army’s “systematic process of assigning an ‘Outstanding’
rating to every Factor for each bidder, regardless of the
evaluator’s comments and plain language of the propos-
als,” converted the best value procurement into a lower-
price, technically acceptable evaluation. Id. at 700.
Kratos highlighted the fact that the Technical Evaluation
Committee assigned an “outstanding” rating to SA-
TECH’s proposal under the Labor sub-factor in spite of its
concerns with SA-TECH’s proposal on this point. Id.
Upon receipt of Kratos’ supplemental protest, the
GAO attorney informed the parties that he intended “to
suggest . . . that, on the face of it, the protester offer[ed] a
straight forward argument as to why the agency’s evalua-
tion of the technical portions of the proposals was unrea-
sonable.” Id. He asked whether “the agency [was] more
inclined to continue to defend the protest or take correc-
tive action.” Id.
SA-TECH responded to Kratos’ supplemental protest.
Id. It requested the GAO dismiss Kratos’ supplemental
protest because it was untimely and speculative. More-
over, SA-TECH noted that Kratos was not next in line for
the contract award. Therefore, SA-TECH questioned
Kratos’ showing of prejudice. Id.
The GAO attorney again notified the parties of his
view that Kratos’ supplemental protest had merit. He
expressed his view of the technical evaluation as well the
agency’s treatment of SA-TECH’s purported weaknesses
and concluded that the GAO would “likely sustain this
SYSTEMS APPLICATION & TECH v. US 6
protest . . . .” J.A. 11995. The GAO invited further com-
ments, but only from the Army.
On April 22, 2011, the Army sent a letter to the GAO,
Kratos, and SA-TECH which stated:
After review of the supplemental issues, the
Army has determined that it is in its best in-
terest to take corrective action. The Army in-
tends to terminate the contract awarded to SA-
TECH so that it can reopen the original solicita-
tion. The solicitation will then be amended
to explain the intention of providing Kratos’ [col-
lective bargaining agreement] in the solicitation.
Sys. Application & Techs., 100 Fed. Cl. at 702 (emphasis
added). The Army also stated it would give offerors the
opportunity to submit revised proposals and reserved the
right to conduct further discussions. Id. The Army’s
letter concluded: “The Army believes that this corrective
action makes the pending protest moot and no further
purpose would be served by the GAO’s review of the
protest. Therefore, the Army requests that the GAO
dismiss Kratos’ protest.” J.A. 11997. On April 25, 2011,
the GAO dismissed Kratos’ protest and stated: “the
agency’s decision to terminate the contract award and
reopen the solicitation renders the protest academic.”
J.A. 11998.
SA-TECH filed a protest at the Court of Federal
Claims that challenged the Army’s decision to engage in
corrective action. SA-TECH alleged the Army’s decision
was arbitrary, capricious, and unreasonable because it
was based on an improper and unreasonable GAO state-
ment. Sys. Application & Techs., 100 Fed. Cl. at 702. It
also claimed the Army’s decision to engage in corrective
action independently lacked a rational basis and involved
a violation of law, regulation, or procedure. Id. SA-TECH
7 SYSTEMS APPLICATION & TECH v. US
also took issue with the Army’s decision to amend the
solicitation. Kratos intervened. At the proper time, SA-
TECH filed a motion for judgment on the administrative
record. The Army and Kratos moved to dismiss the
complaint for lack of subject matter jurisdiction and cross-
moved for judgment on the administrative record.
The Court of Federal Claims denied the motions to
dismiss, finding jurisdiction under 28 U.S.C. § 1491(b)(1).
Id. at 703–10. The trial court also found that SA-TECH
showed proper standing and ripeness. Id. On the merits,
the Court of Federal Claims found the Army’s decision to
take corrective action was arbitrary, capricious, and an
abuse of discretion. Id. at 719. The trial court also
granted SA-TECH’s request for injunctive relief, which
prohibited the Army from implementing the proposed
corrective action. Id. at 722.
The Army timely appealed to this court. The Army’s
appeal is limited to the questions of jurisdiction and
justiciability; it does not challenge the Court of Federal
Claims’ merits decision. This court has jurisdiction under
28 U.S.C. § 1295(a)(3).
II.
This court reviews the Court of Federal Claims’ deci-
sion on the legal question of subject matter jurisdiction
without deference. Res. Conservation Grp., LLC v. United
States, 597 F.3d 1238, 1242 (Fed. Cir. 2010). Courts have
limited jurisdiction to hear and decide suits against the
United States due to principles of sovereign immunity.
Sovereign immunity protects the government from suit
except for instances in which the immunity has been
unequivocally and expressly waived. United States v.
King, 395 U.S. 1, 4 (1969).
SYSTEMS APPLICATION & TECH v. US 8
In this case, the Tucker Act expressly waives sover-
eign immunity for claims against the United States in bid
protests. Accordingly, the Court of Federal Claims
shall have jurisdiction to render judgment on an
action by an interested party objecting to a solici-
tation 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 pro-
curement or a proposed procurement . . . without
regard to whether suit is instituted before or after
the contract is awarded.
28 U.S.C. § 1491(b)(1) (2006). The Court of Federal
Claims correctly observed this waiver covers a broad
range of potential disputes arising during the course of
the procurement process. On its face, the statute grants
jurisdiction over objections to a solicitation, objections to a
proposed award, objections to an award, and objections
related to a statutory or regulatory violation so long as
these objections are in connection with a procurement or
proposed procurement. Sys. Application & Techs., 100
Fed. Cl. at 704.
While the Army understandably wishes to narrow the
scope of the Tucker Act’s grant of jurisdiction, a narrow
application of section 1491(b)(1) does not comport with the
statute’s broad grant of jurisdiction over objections to the
procurement process. In Resource Conservation Group,
LLC v. United States, this court considered the legislative
history of the Tucker Act and its amendments. 597 F.3d
at 1244–45. This court rejected the argument that section
1491(b)(1) grants the Court of Federal Claims protest
jurisdiction over non-procurement disputes (such as a
dispute over a lease of government property). Id. In so
doing, this court clarified that once a party objects to a
9 SYSTEMS APPLICATION & TECH v. US
procurement, section 1491(b)(1) provides a broad grant of
jurisdiction because “[p]rocurement 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 close-
out.” Id. at 1244 (emphasis added) (quoting 41 U.S.C.
§ 403(2)); see also Distributed Solutions, Inc. v. United
States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (concluding
that the statutory definition for procurement found in 41
U.S.C. § 403(2) should be utilized in determining the
scope of section 1491(b)(1)).
In this case, SA-TECH objected to a solicitation and
alleged violations of statutes and regulations governing
the procurement process. The Army has not shown that
this protest has no “connection with a procurement.”
Rather SA-TECH’s complaint specifically challenged the
Army’s announced decision to amend or revise the solici-
tation – an unambiguous objection “to a solicitation”
covered by the Tucker Act. SA-TECH also alleged viola-
tions of the Service Contract Act and procurement regula-
tions – another basis for jurisdiction. Distributed
Solutions, Inc., 539 F.3d at 1345 n.1 (noting a protestor
need only make a “non-frivolous allegation of a statutory
or regulatory violation in connection with a procurement
or proposed procurement” in order to meet this jurisdic-
tional requirement). The Court of Federal Claims’ deci-
sion on the merits underscores that SA-TECH’s
allegations of procurement violations were not frivolous.
Sys. Application & Techs., 100 Fed. Cl. at 719.
In this case, the Army had not yet implemented the
corrective action. Moreover, SA-TECH was the contract
awardee. Neither of these facts are material to the ques-
tion of jurisdiction. This court has made clear that bid
protest jurisdiction arises when an agency decides to take
corrective action even when such action is not fully im-
SYSTEMS APPLICATION & TECH v. US 10
plemented. See, e.g., Turner Constr. Co. v. United States,
645 F.3d 1377 (Fed. Cir. 2009) (finding no jurisdictional
bar for a bid protest brought by a contract awardee after
the Army terminated the awardee’s contract and an-
nounced its decision to follow the GAO’s recommendation
to re-compete a contract); Centech Grp., Inc. v. United
States, 554 F.3d 1029 (Fed. Cir. 2008) (affirming the
Court of Federal Claims’ merits decision in a bid protest
brought by the previous contract awardee before correc-
tive action was completed); ManTech Telecomms. & Info.
Sys. Corp. v. United States, 49 Fed. Cl. 57 (2001), aff’d per
curiam, 30 F. App’x 995 (Fed. Cir. 2002).
SA-TECH’s attempt to enjoin the government from
terminating its contract did not transform its otherwise
proper protest under the Tucker Act into a claim which
could only be adjudicated under the Contract Disputes
Act and its concomitant procedural requirements. This
court confronted and rejected a similar argument in
Turner Construction, 645 F.3d at 1387–88. A request for
injunctive relief regarding the government’s termination
of a contract concerns the scope of the Court of Federal
Claims’ equitable powers; it is not an issue of Tucker Act
jurisdiction. Id. at 1388. Thus, the Court of Federal
Claims properly exercised its jurisdiction under the
Tucker Act as SA-TECH both objected to a solicitation
and alleged violation of statute or regulation in connec-
tion with a procurement.
III.
The Court of Federal Claims also correctly determined
that SA-TECH has standing to bring its protest. Tradi-
tional standing analysis invokes the “case or controversy”
requirement of Article III of the Constitution. Camreta v.
Greene, 131 S. Ct. 2020, 2028 (2011). However, standing
in bid protests is framed by 28 U.S.C. § 1491(b)(1), which
11 SYSTEMS APPLICATION & TECH v. US
requires that bid protests be brought by “interested
parties.” 28 U.S.C. § 1491(b)(1). The “interested party”
standard is more stringent than the requirements of
Article III. Weeks Marine, Inc. v. United States, 575 F.3d
1352, 1359 (Fed. Cir. 2009). SA-TECH must establish
that it “(1) is an actual or prospective bidder; and (2)
possess[es] the requisite direct economic interest.” Id.
(internal citations omitted).
A protest will, by its nature, dictate the necessary fac-
tors for a “direct economic interest.” In pre-award pro-
tests, for instance, the plaintiff must show “a non-trivial
competitive injury which can be addressed by judicial
relief.” Id. at 1362. In post-award protests, the plaintiff
must show it had a “substantial chance” of receiving the
contract. Rex Serv. Corp. v. United States, 448 F.3d 1305,
1307 (Fed. Cir. 2006); see also Weeks Marine Inc., 575
F.3d at 1361–62 (rejecting the proposition that the “sub-
stantial chance” requirement applies outside of the post-
award context). SA-TECH lodges a pre-award protest
against the Army’s decision to resolicit proposals. See
Outdoor Venture Corp. v. United States, 100 Fed. Cl. 146,
153 (2011) (collecting cases). The Army does not dispute
that SA-TECH is an actual or prospective bidder. Thus,
SA-TECH’s standing hinges upon whether the Army’s
decision gives rise to a “non-trivial competitive injury
which can be addressed by judicial relief.”
This court determines that this protest asserts the
necessary injury for standing. First, the Army’s decision
to engage in corrective action will arbitrarily require SA-
TECH to win the same award twice. See CBY Design
Builders v. United States, No. 11-740C, --- Fed. Cl. ----,
2012 WL 1889299, *32 (Fed. Cl. May 11, 2012)
(“[A]rbitrarily being required to win the same award twice
. . . is certainly the sort of non-trivial competitive injury
sufficient to support [a protestor’s] standing to object to
SYSTEMS APPLICATION & TECH v. US 12
the corrective action.”). Obtaining a contract award,
whether through sealed bidding or a negotiated process, is
often a painstaking (and expensive) process. An arbitrary
decision to take corrective action without adequate justifi-
cation forces a winning contractor to participate in the
process a second time and constitutes a competitive injury
to that contractor. Cf. United States v. John C. Grimberg
Co., 702 F.3d 1362, 1367 (Fed. Cir. 1983) (en banc) (noting
that there is an implied contract that the procurement
process will be conducted fairly and honestly); Joseph L.
DeClerk & Assocs., Inc. v. United States, 26 Cl. Ct. 35, 46-
47 (1992) (noting that the procurement process should be
a level playing field and contractors should be treated
evenly and fairly); Hosp. Klean of Tex., Inc. v. United
States, 65 Fed. Cl. 618, 624 (2005) (noting that the lost
opportunity to compete for a contract on a level playing
field is an irreparable harm for the purposes of injunctive
relief).
Just as important, the Army’s decision to engage in
corrective action will require SA-TECH to re-compete for
a contract after its price had been made public. Unques-
tionably an offeror’s participation in the procurement
process involves some acceptance of risk. See Steven
Schooner, Fear of Oversight: The Fundamental Failure of
Businesslike Government, 50 Am. U. L. Rev. 627, 695
(2002) (discussing risk allocation as a fundamental char-
acteristic of government contracting). The risk of re-
competing for a contract after revelation of one’s price
calculations to competitors, however, does not extend to a
contract fairly competed and won on the first solicitation.
In this case, with price a pivotal term of the process,
SA-TECH would unduly bear the burden of re-competing
with its prices alone on the table. Price was a crucial
factor in making the original contract award. Once the
contracting officer eliminated meaningful distinctions
13 SYSTEMS APPLICATION & TECH v. US
between the non-cost portions of the various proposals,
SA-TECH’s lowest offer tipped the scales in its favor. In
this case, the Army has not appealed the finding that its
actions were arbitrary. Therefore, the Army without
adequate justification -- indeed, with arbitrariness --
forces SA-TECH to re-compete for the contract. In that
posture, SA-TECH will no longer have the pivotal com-
petitive advantage from the initial solicitation. The
publication of its price alone places SA-TECH in the
unenviable position of competing against itself. See
Bayfirst Solutions, LLC v. United States, No. 12-131C, ---
Fed. Cl. ----, 2012 WL 1513007, at *5 (Fed. Cl. April 30,
2012) (finding that a protestor shows sufficient competi-
tive injury if it loses a competitive advantage through the
government’s decision to resolicit proposals). Based on
these facts, the Court of Federal Claims correctly deter-
mined that SA-TECH showed a non-trivial competitive
injury and thus had standing under 28 U.S.C. § 1491(b)(1)
as an interested party.
IV.
Finally, the Court of Federal Claims correctly found
that SA-TECH presented a claim ripe for judicial review.
A claim is not ripe for judicial review when it is contin-
gent upon future events that may or may not occur.
Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,
580–81 (1985). The purpose of the doctrine is to prevent
the courts, “through avoidance of premature adjudication,
from entangling themselves in abstract disagreements
over administrative policies, and also to protect the agen-
cies from judicial interference until an administrative
decision has been formalized and its effects felt in a
concrete way by the challenging parties.” Abbott Labs. v.
Gardner, 387 U.S. 136, 148-49 (1967), overruled on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977). In
assessing ripeness, there are two basic factors: “(1) the
SYSTEMS APPLICATION & TECH v. US 14
fitness of the issues for judicial decision[;] and (2) the
hardship to the parties of withholding court considera-
tion.” Abbott Labs., 387 U.S. at 149.
When a party challenges government action, the first
factor becomes a question of whether the challenged
conduct constitutes a final agency action. See Tokyo Kikai
Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1363
(Fed. Cir. 2008); U.S. Ass’n of Imps. of Textiles & Apparel
v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1349–50 (Fed.
Cir. 2005). Final agency action hinges on two points:
“First, the action must mark the ‘consummation’ of the
agency’s decision-making process – it must not be of a
merely tentative or interlocutory nature. And second, the
action must be one by which ‘rights or obligations have
been determined,’ or from which ‘legal consequences will
flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
(citations omitted).
The Army asserts that SA-TECH has not challenged a
final agency action. SA-TECH challenged “the Army’s
announcement of its intention to take corrective action –
before any such action was taken.” Appellant’s Brief 20.
According to the Army, its statements to the GAO, SA-
TECH, and Kratos that it intended to engage in corrective
action were not binding and “nothing prohibited the Army
from abandoning its proposed course of action and allow-
ing SA-TECH’s award to stand . . . .” Id. at 21. In its
view, the decision to take corrective action will not be
fully consummated unless and until the Army re-awards
the contract to an offeror other than SA-TECH. Id.
This court finds no merit in the Army’s argument.
The Army memorialized its decision to take corrective
action in a letter to the GAO and the parties, stating: “the
Army has determined that it is in its best interest to
take corrective action.” J.A. 11996 (emphasis added). As
15 SYSTEMS APPLICATION & TECH v. US
the Court of Federal Claims noted, there was nothing
interlocutory, uncertain, or tentative about this declara-
tion. Sys. Application & Techs., 100 Fed. Cl. at 709. Not
only did the Army declare its decision to engage in correc-
tive action, but it set in motion several irretrievable legal
consequences. For instance, the Army’s letter to the GAO
stated: “The Army believes that this corrective action
makes the pending protest moot and no further purpose
would be served by the GAO’s review of the protest.
Therefore, the Army requests that the GAO dismiss
Kratos’ protest.” J.A. 11997. Accordingly, the GAO
dismissed Kratos’ protest, changing the legal landscape
for both SA-TECH and Kratos.
The Army represented that its decision to engage in
corrective action was sufficiently final to moot Kratos’
GAO bid protest. The Army may not now claim that the
decision is not final until the re-award of a contract.
Orderly procedure cannot tolerate such contradictory
positions. The government cannot manipulate the finality
doctrine to suit its own current litigation strategies.
Furthermore, the Army’s proposed finality rule would
make some of their actions protest-proof. Part of the
proposed corrective action is to amend the terms of the
solicitation “to explain the intention of providing Kratos’
[collective bargaining agreement] in the solicitation.” J.A.
11996–97. However, the Army states that its action
would be final when “the new contract award decision is
made.” Appellant’s Brief 26. If SA-TECH’s claims were
not ripe until after the contract award, then SA-TECH
could never protest this proposed amendment to the
terms of the solicitation. See Blue & Gold Fleet, L.P. v.
United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (hold-
ing that a party who fails to object to the terms of a solici-
tation “prior to the close of the bidding process waives its
ability to raise the same objection subsequently in a bid
SYSTEMS APPLICATION & TECH v. US 16
protest action in the Court of Federal Claims”). As noted
in Weeks Marine, such an absurd result cannot stand.
Weeks Marine, Inc., 575 F.3d at 1362–1363. Thus, the
Army’s decision to engage in corrective action is suffi-
ciently final.
This court’s precedent in Tokyo Kikai Seisakusho, Ltd.
v. United States does not compel a different result. In
Tokyo Kikai Seisakusho, this court addressed ripeness in
the narrow context of the Department of Commerce’s
review of its own sunset rulings in antidumping cases.
529 F.3d at 1363–64. This case arises from a very differ-
ent context: government procurement. Additionally, in
Tokyo Kikai Seisakusho, the agency’s non-final decision
was announced as part of its role as a neutral arbiter in
trade disputes. Id. Here, the Army announced its deci-
sion as an interested party in a litigation dispute and the
GAO, a quasi-judicial body, acted on the veracity of the
Army’s statements.
With respect to the hardship element of the ripeness
analysis, the Army asserts that SA-TECH has not suf-
fered a hardship because the “announced intention to
implement corrective action is an intermediate step of a
single procurement process, and the continuation of that
process, while SA-TECH remains in contention, is not a
hardship.” Appellant’s Br. 26. As discussed above, this
approach ignores the competitive hardships SA-TECH
suffers as a result of the Army’s arbitrary decision to re-
compete the contract.
Although SA-TECH will have a remedy under the
Contract Disputes Act if its contract is terminated, the
possibility of this termination is still a hardship under the
ripeness analysis. Unlike the standard for obtaining
injunctive relief, which requires a showing of irreparable
harm, the standard for ripeness requires a lesser showing
17 SYSTEMS APPLICATION & TECH v. US
of hardship. See Caraco Pharm. Labs., Ltd. v. Forest
Labs., Inc., 527 F.3d 1278, 1295 (Fed. Cir. 2008) (citing
Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1976)
(“Withholding court consideration of an action causes
hardship to the plaintiff where the complained-of conduct
has an ‘immediate and substantial impact’ on the plain-
tiff.”). SA-TECH made a showing of immediate and sub-
stantial impact in this case.
V.
The Court of Federal Claims correctly exercised its ju-
risdiction and properly found SA-TECH’s claims justicia-
ble. SA-TECH’s protest met the requirements of the
Tucker Act and met the standards for ripeness and stand-
ing.
AFFIRMED