Microgenics Corporation v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-896C
(Filed: March 30, 2021)
)
MICROGENICS CORPORATION, ) Post-award protest of a contract issued by
) the Administrative Office of the United
Plaintiff, ) States Courts; jurisdiction; 28 U.S.C. §
) 1491(b)(1); 28 U.S.C. § 451v. )
)
UNITED STATES, )
)
Defendant, )
)
and )
)
)
SIEMENS HEALTHCARE )
DIAGNOSTICS, INC., )
)
Defendant-Intervenor. )
)
Richard J. Webber, Arent Fox LLP, Washington, D.C., for plaintiff Microgenics
Corporation. With him on the brief were Kevin Pinkney and Travis L. Mullaney, Arent Fox
LLP, Washington, D.C.
Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for the United States. With her on the briefs
were Brian M. Boynton, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director,
Douglas K. Mickle, Assistant Director, United States Department of Justice, Washington, D.C.,
and Michael K. Greene, Assistant General Counsel, Office of the General Counsel,
Administrative Office of the United States Courts, Washington, D.C.
Jeffery M. Chiow, Rogers Joseph O’Donnell, PC, Washington, D.C., for defendant-
intervenor Siemens Healthcare Diagnostics, Inc. With him on the briefs were Robert S. Metzger,
Stephen L. Bacon, and Eleanor M. Ross, Rogers Joseph O’Donnell, PC, Washington, D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Plaintiff Microgenics Corporation (“Microgenics”) protests an award by the
Administrative Office of the United States Courts (“AOUSC” or “Administrative Office”) of a
contract for equipment, supplies, and consumables used to operate on-site drug testing
laboratories. Pending before the court in this post-award bid protest are defendant’s and
defendant-intervenor’s motions to dismiss plaintiff’s complaint pursuant to Rule 12(b)(1) of the
Rules of the United States Court of Federal Claims (“RCFC”). See Def.’s Mot. to Dismiss
(“Def.’s Mot.”), ECF No. 28; Def.-Intervenor’s Mot. to Dismiss (“Def.-Intervenor’s Mot.”), ECF
No. 27. After briefing, see Pl.’s Resp., ECF No. 32; Def.’s Reply, ECF No. 34; Def.-
Intervenor’s Reply, ECF No. 33, the court held a hearing on March 17, 2021.
For purposes of the court’s jurisdiction over bid protests pursuant to 28 U.S.C. §
1491(b)(1), the court concludes that the AOUSC is not an “agency” as defined by 28 U.S.C. §
451. Therefore, the court lacks jurisdiction over Microgenics’ protest. Defendant’s and
defendant-intervenor’s motions to dismiss are GRANTED.
BACKGROUND 1
The AOUSC, an entity within the judicial branch, is a product of legislative creation. See
28 U.S.C. § 601. The Administrative Office “provides a broad range of legislative, legal,
financial, technology, management, administrative, and program support services to federal
courts.” Judicial Administration, UNITED STATES COURTS, https://www.uscourts.gov/about-
federal-courts/judicial-administration (last visited March 29, 2021). As “the administrative
officer of the courts,” the Director of the AOUSC is responsible for “enter[ing] into and
perform[ing] contracts and other transactions upon such terms as the Director may deem
appropriate.” 28 U.S.C. § 604(a)(10)(C).
On September 4, 2020, the AOUSC issued Solicitation No. USCA20R0151 for the
provision of “equipment, supplies, and consumables necessary to successfully operate and
maintain on-site district [drug testing] laboratories.” Compl. Ex. A at 2, 6, ECF No. 1-1.
Specifically, the solicitation required the successful bidder to provide “automated analyzers,
forensic use immunoassay reagents, controls, calibrators, all supplies and consumables necessary
to operate the analyzers; maintenance of the analyzers; training; water systems; quality control,
and a data management system with the capability to export results to” laboratories of the United
States Probation and Pretrial Services Offices. Id. at 6. The solicitation also stated that the
award would be made to “the lowest priced technically acceptable offer.” Id. at 31. After
receiving initial proposals from Microgenics and Siemens, the AOUSC conducted two rounds of
discussion with the offerors. Compl. ¶ 70; Def.-Intervenor’s Mot. at 2. The Administrative
Office amended the solicitation four times, eventually setting November 30, 2020, as the
submission deadline for revised proposals. See Compl. Exs. B-E, ECF Nos. 1-2 to 1-5.
Microgenics and Siemens submitted their final proposals on November 24, 2020. See Compl. ¶¶
78-81; Def.-Intervenor’s Mot. at 2.
1
The recitations that follow do not constitute findings of fact, but rather are recitals
attendant to the pending motions and reflect matters drawn from the complaint, the parties’
briefs, and records and documents appended to the complaint and briefs.
2
On December 1, 2020, the AOUSC awarded the contract to Siemens and provided notice
to Microgenics of the award. See Compl. Ex. H, ECF No. 1-8; Compl. ¶ 82. Pursuant to the
Guide to Judiciary Policy, Microgenics timely requested an award debriefing. See Compl. ¶ 84;
see also UNITED STATES COURTS, GUIDE TO JUDICIARY POLICY, Vol. 14, § 330.73 (2020). The
Administrative Office debriefed Microgenics on December 9, 2020. Compl. ¶ 85. Five days
later, Microgenics filed a bid protest at the Government Accountability Office (“GAO”). Compl.
¶ 86; Microgenics Corp., B-419470, 2021 WL 494646, at *2 (Comp. Gen. Feb. 2, 2021). After
acknowledging its jurisdiction “to resolve bid protests concerning solicitations and contract
awards that are issued ‘by a Federal agency,’” Microgenics, 2021 WL 494646, at *2 n.4, GAO
dismissed the protest as untimely, id. at *7. GAO explained that the debriefing provided by the
AOUSC to Microgenics was not “required” under GAO’s regulations. Id. Therefore,
Microgenics could not rely on the “debriefing exception” in filing more than ten days after it
“knew or should have known of [its] basis of protest.” Id.On February 8, 2021, Microgenics filed suit in this court, see Compl., and Siemens
subsequently moved to intervene, see Mot. to Intervene, ECF No. 14, which motion the court
granted, Order of Feb. 9, 2021, ECF No. 15. Microgenics moved for a preliminary injunction,
see Pl.’s Mot. for a Prelim. Inj., ECF No. 4, but the court deferred ruling on the motion to
consideration of the merits, see Order of Feb. 11, 2021, ECF No. 18. The government and
Siemens moved to dismiss the complaint on February 22, 2021. See Def.’s Mot.; Def.-
Intervenor’s Mot.
STANDARDS FOR DECISION
The Tucker Act vests this court with jurisdiction to “render judgment on 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 procurement.” 28 U.S.C. §
1491(b)(1). Accordingly, this court’s jurisdiction over bid protests is limited to those involving
contract awards made “by a Federal agency.” Id.Microgenics, as plaintiff, must establish jurisdiction by a preponderance of the evidence.
See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When ruling on
the government’s motion to dismiss for lack of jurisdiction, the court must “accept as true all
undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor
of the plaintiff.” Id. (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “If a
court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of law.”
Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.)
506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”).
3
ANALYSIS
In their respective motions to dismiss, the government and Siemens assert that this court
lacks jurisdiction over Microgenics’ protest because the AOUSC is not a “Federal agency” under
28 U.S.C. § 1491(b)(1). See Def.’s Mot. at 5-12; Def.-Intervenor’s Mot. at 5-9. Microgenics,
the government and Siemens claim, has failed to establish that the AOUSC falls under the
definition of “agency” provided in 28 U.S.C. § 451. See Def.’s Mot. at 5-6; Def.-Intervenor’s
Mot. at 4-5. Microgenics, in turn, counters that the AOUSC is a “Federal agency” under 28
U.S.C. § 1491(b)(1) because it qualifies as one of the entities listed in 28 U.S.C. § 451. Compl.
¶¶ 11-12; Pl.’s Resp. at 6-9.
I. The Statutory Basis for Jurisdiction Over Bid Protests
“While Title 28 of the United States Code does not define ‘[F]ederal agency,’ it does
define ‘agency.’” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1080 (Fed.
Cir. 2001). Under 28 U.S.C. § 451, “[t]he term ‘agency’ includes any department, independent
establishment, commission, administration, authority, board or bureau of the United States or any
corporation in which the United States has a proprietary interest, unless the context shows that
such term was intended to be used in a more limited sense.” 28 U.S.C. § 451. Therefore, if
Microgenics’ bid protest is to be considered “an action by an interested party objecting to . . . the
award of a contract” by “a Federal agency,” id. § 1491(b)(1), the AOUSC must qualify as one of
the entities listed in Section 451, see Emery, 264 F.3d at 1080 (concluding that “‘federal agency’
as used in 28 U.S.C. § 1491(b)(1) falls within the ambit of ‘agency’ as used in 28 U.S.C. § 451”).
While Microgenics asserts that the AOUSC qualifies as an “agency” under Title 5, Pl.’s Resp. at
9, and that the AOUSC “holds itself out to the public as an ‘agency,’” id. at 9 n.2, the relevant
definition of “agency” is found in 28 U.S.C. § 451, see Emery, 264 F.3d at 1080. 2
The court concludes that traditional methods of statutory interpretation guide its decision.
On that basis, the court ultimately finds that the AOUSC cannot be characterized as any of the
entities listed in Section 451. The court therefore lacks jurisdiction over Microgenics’ claims, as
the AOUSC is not a “Federal agency” as the term is used in Paragraph 1491(b)(1) of the Tucker
Act.
2
Microgenics advances the argument that the government’s representation of the AOUSC
operates as a concession “that the AOUSC constitutes an ‘agency’ under 28 U.S.C. § 451.” Pl.’s
Resp. at 11-12. Given that the authority of the Department of Justice extends to “litigation in
which the United States, an agency, or officer thereof is a party, or is interested,” 28 U.S.C. §
516, Microgenics contends that defendant’s appearance in this case indicates that the AOUSC is
an agency for jurisdictional purposes. Id. at 12 (citing 28 U.S.C. § 516). This argument ignores
the full scope of the Department of Justice’s authority. “[T]he Department of Justice has a duty
of representation in suits filed in the Court of Federal Claims in which the United States is
interested.” Def.’s Reply at 11 (citing 28 U.S.C. § 518). The United States certainly has an
interest in litigation over bid protests involving the AOUSC. The government’s appearance in a
case “in which the United States . . . is interested” thus does not operate as a concession that the
AOUSC is an “agency” under Section 451. 28 U.S.C. § 516.
4
A. Whether the AOUSC Is an “Independent Establishment” Under 28 U.S.C. § 451Microgenics first argues that this court has jurisdiction over its claims because the
AOUSC qualifies as an “establishment” under 28 U.S.C. § 451. Compl. ¶ 11; Pl.’s Resp. at 7-8.
The government emphasizes that an establishment must be an “independent establishment” to be
considered an agency under Title 28. Def.’s Mot. at 8-12 (quoting 28 U.S.C. § 451) (emphasis
added). Siemens further adds that “‘independent establishment’ is a legislative term of art that
has been used by Congress on various occasions to describe executive branch entities.” Def.-
Intervenor’s Mot. at 7 (emphasis in original).
“It is . . . ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the
whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.’” Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461,
489 n.13 (2004) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)) (in turn quoting Duncan
v. Walker, 533 U.S. 167, 174 (2001)). In arguing that the AOUSC is an “establishment,”
therefore, Microgenics must prove that the entity is an “independent establishment” as specified
by the plain text of Section 451. 28 U.S.C. § 451 (emphasis added); see also Emery, 264 F.3d at
1080 (concluding that the United States Postal Service, “statutorily defined as an ‘independent
establishment of the executive branch of the United States[,]’ . . . is an ‘agency’ for purposes of
28 U.S.C. § 451”) (quoting 39 U.S.C. § 201) (emphasis added).
In contrast to entities such as the United States Postal Service and the Office of Personnel
Management, the AOUSC is not statutorily defined as an “independent establishment.”
Compare 39 U.S.C. § 201 (“There is established, as an independent establishment of the
executive branch of the Government of the United States, the United States Postal Service.”),
and 5 U.S.C. § 1101 (“The Office of Personnel Management is an independent establishment in
the executive branch.”), with 53 Stat. 1223 (“There shall be at the seat of government an
establishment to be known as the Administrative Office of the United States Courts.”).
Microgenics proposes looking beyond Section 451 “to procurement statutes for relevant
‘context’ to inform the meaning of 28 U.S.C. § 451,” namely 40 U.S.C. § 102(5). Pl.’s Resp. at
7-8. However, “this court, unlike . . . GAO and [the General Services Board of Contract
Appeals], does not derive its bid-protest jurisdiction from a federal procurement law.” Hewlett-
Packard Co. v. United States, 41 Fed. Cl. 99, 104 (1998). Furthermore, 40 U.S.C. § 102(5)
cannot be reconciled with the plain language of 28 U.S.C. § 451. Section 102(5) defines
“Federal agency” as “an executive agency or an establishment in the legislative or judicial
branch of the Government.” 40 U.S.C. § 102(5). While the AOUSC would appear to qualify as
a “Federal agency” under this definition, the lack of the term “independent establishment” is
conspicuous. To resort to this broader definition of “Federal agency” in Subsection 102(5)
would render the word “independent” in Section 451 “superfluous, void, or insignificant.”
Alaska Dep’t of Env’t Conservation, 540 U.S. at 489 n.13 (citations omitted).
Microgenics points to cases in which the Smithsonian Institute was deemed an
“independent establishment” despite “the lack of the word ‘independent’ in its creation statute.”
Pl.’s Resp. at 8 (citing O’Rourke v. Smithsonian Inst. Press, 399 F.3d 113, 116 (2d Cir. 2005);
Dolmatch Grp., Ltd. v. United States, 40 Fed. Cl. 431 (1998)). This argument, however,
5
overlooks the fact that these cases were not bid protests under Paragraph 1491(b)(1). O’Rourke
addressed subject-matter jurisdiction over copyright infringement claims brought against the
United States. O’Rourke, 399 F.3d at 122-23. Dolmatch, in turn, involved “a dispute arising
from an alleged contract between plaintiff and the Smithsonian Institution to distribute
videotaped Smithsonian programs.” Dolmatch, 40 Fed. Cl. at 432. The lack of the phrase
“independent establishment” in the AOUSC’s foundational statute, when compared to other
statutes expressly establishing such entities in the federal government, leads the court to
conclude that Microgenics has failed to show by a preponderance of evidence that the AOUSC is
an “independent establishment” under Section 451.
B. Whether the AOUSC Is an “Administration” Under 28 U.S.C. § 451Microgenics contends that the AOUSC is an “administration” under 28 U.S.C. § 451because Congress used the term “administration” when it created the entity. See Compl. ¶ 12;
Pl.’s Resp. at 6-7. The government avers that Congress nevertheless failed to designate the
AOUSC as an administration because the word is not used in its title. See Def.’s Mot. at 6-8.
Siemens argues that the AOUSC cannot be an administration because “an ‘administration’ is
overseen by the executive branch.” Def.-Intervenor’s Mot. at 9 (footnote omitted).
One prominent difference between the AOUSC and administrations such as the Federal
Aviation Administration and the Transportation Security Administration is evident in the
founding statutes for these entities. While Congress expressly provided that “[t]he Federal
Aviation Administration is an administration in the Department of Transportation,” 49 U.S.C. §
106(a) (emphasis added), and that “the Transportation Security Administration shall be an
administration of the Department of Homeland Security,” id. § 114(a) (emphasis added),
Congress described the AOUSC as an “establishment,” 53 Stat. 1223. Of note, the chapter in
which Congress created the AOUSC is titled, “The Administration of the United States Courts.”
Id. However, Congress appears to have used the word “administration” in this context to refer to
“the act or process of administering something,” not “a body of persons who administer.”
Administration, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/administration (last visited March 29, 2021). In short, Congress created
the AOUSC not as an administration, but as an “establishment” which “provide[s] for the
administration of the United States courts.” 53 Stat. 1223. To adopt Microgenics’ view of the
word “administration” would be to change the meaning of the word as it is used in 53 Stat. 1223.
The court thus concludes that the AOUSC is not an “administration” under 28 U.S.C. § 451.
C. Whether the AOUSC Is a “Department” Under 28 U.S.C. § 451In its response to defendants’ motions to dismiss, Microgenics adds that the AOUSC
should be viewed as a “department” under 28 U.S.C. § 451 because the Classification Act of
1949 included the AOUSC within its definition of “department.” Pl.’s Resp. at 8-9 (citing 63
Stat. 954). 3 The government and Siemens aver that the Classification Act itself and Section 451
refute Microgenics’ position. Def.’s Reply at 6; Def.-Intervenor’s Reply at 10-11.
3
The Classification Act reads:
6
The court agrees with defendants that the Classification Act’s definition of “department”
is not determinative of whether this court possesses jurisdiction over Microgenics’ claims. First,
the Classification Act specifies that its definition of “department” is “[f]or the purposes of this
Act.” 63 Stat. 954. Second, as noted by the government and Siemens, 28 U.S.C. § 451 provides
its own specific and particular definition: “[t]he term ‘department’ means one of the executive
departments enumerated in section 1 of Title 5, unless the context shows that such term was
intended to describe the executive, legislative, or judicial branches of the government.” 28
U.S.C. § 451. “When a statute includes an explicit definition,” this court “must follow that
definition, even if it varies from that term’s ordinary meaning.” Stenberg v. Carhart, 530 U.S.
914, 942 (2000) (citing Meese v. Keene, 481 U.S. 465, 484-85 (1987)) (additional citations
omitted). Microgenics has not shown that the AOUSC is a “department” as defined by the
relevant statute, Section 451.
D. Whether the AOUSC Is an “Authority” Under 28 U.S.C. § 451Microgenics further contends in its response to defendants’ motions that “the AOUSC
qualifies as an ‘authority’ because it is subject to the Administrative Procedure Act.” Pl.’s Resp.
at 10 (citing Goldhaber v. Foley, 519 F. Supp. 466, 480 (E.D. Pa. 1981)). This statute defines
“agency” as “each authority of the Government of the United States,” but excludes “the courts of
the United States” from this definition. 5 U.S.C. § 551(1)(B) (emphasis added). The
government and Siemens point to other judicial decisions holding that the AOUSC is excluded
from the Administrative Procedure Act. Def.’s Reply at 7-8; Def.-Intervenor’s Reply at 11-12.
While Goldhaber provides support for Microgenics’ position, it must be considered
alongside “the legislative history and judicial precedent indicating that Congress has not yet
chosen” to “subject the AOUSC to review under the [Administrative Procedure Act].” Novell,
Inc. v. United States, 109 F. Supp. 2d 22, 26 (D.D.C. 2000). “If legislative history has any
significance at all, it is clear that Congress intended the entire judicial branch of the
[g]overnment to be excluded from the provisions of the Administrative Procedure Act.” In re
Fidelity Mortg. Invs., 690 F.2d 35, 38 (2d Cir. 1982) (citing Wacker v. Bisson, 348 F.2d 602, 608
n.18 (5th Cir. 1965)). Given that “virtually every case interpreting the [Administrative
Procedure Act] exemption for ‘the courts of the United States’ has held that the exemption
applies to the entire judicial branch—at least to entities within the judicial branch that perform
functions that would otherwise be performed by courts,” Microgenics falls short of establishing
that the AOUSC is subject to this Act and that it qualifies, by extension, as an “authority” under
For the purposes of this Act, the term “department” includes (1) the executive
departments, (2) the independent establishments and agencies in the executive
branch, including corporations wholly owned by the United States, (3) the
Administrative Office of the United States Courts, (4) the Library of Congress, (5)
the Botanic Garden, (6) the Government Printing Office, (7) the General
Accounting Office, (8) the Office of the Architect of the Capitol, and (9) the
municipal government of the District of Columbia.
63 Stat. 954.
7
28 U.S.C. § 451. Washington Legal Found. v. United States Sent’g Comm’n, 17 F.3d 1446, 1449
(D.D.C. 1994). 4
E. Synopsis
Based upon the governing statutory texts, the court does not have jurisdiction over bid
protests involving procurements made by the AOUSC. This result is consistent with the
outcomes in the prior decisions of this court rendered in U.S. Sec. Assocs. v. United States, 124
Fed. Cl. 433 (2015), and Novell, Inc. v. United States, 46 Fed. Cl. 601 (2000), albeit on related
but somewhat different rationales. 5
4
In addition to arguing that the AOUSC qualifies as one of the entities listed in 28 U.S.C.
§ 451, Microgenics contends that this court should recognize the AOUSC as an “agency” under
the rule of ejusdem generis. Hr’g Tr. 49:11-24 (Mar. 17, 2021). “Under the rule of ejusdem
generis, where general words follow an enumeration of specific items, the general words are read
as applying only to other items akin to those specifically enumerated.” Harrison v. PPG Indus.,
Inc., 446 U.S. 578, 588 (1980). Microgenics overlooks the baseline requirement for applying
this rule. While the AOUSC may be similar in some respects to the entities listed under Section
451, the rule of ejusdem generis is not necessarily used to infer an item omitted from a list. See
Harrison, 446 U.S. at 588 (examining the “specifically enumerated provisions” in Section
307(b)(1) of the Clean Air Act). As it happens, 28 U.S.C. § 451 indicates a restriction rather
than a potential broadening of the terms referenced, through the additive clause “unless context
shows that such term was intended to be used in a more limited sense.” In sum, here
Microgenics’ argument is foreclosed by the doctrine of expressio unius est exclusio alterius,
which, “as applied to statutory interpretation[,] creates a presumption that when a statute
designates certain persons, things, or manners of operation, all omissions should be understood
as exclusions.” Silvers v. Sony Pictures Ent., Inc., 402 F.3d 881, 885 (9th Cir. 2005) (citing
Boudette v. Barnette, 923 F.2d 756-57 (9th Cir. 1991)).
5
Microgenics in part relies upon two decisions recognizing this court’s jurisdiction over
bid protests challenging awards by legislative entities. See Pl.’s Resp. at 19-20 (citing Bell BCI
Co. v. United States, 56 Fed. Cl. 465 (2003), and Colonial Press Int’l, Inc. v. United States, 113
Fed. Cl. 497 (2013)). Notably, in holding that subject-matter jurisdiction existed over a bid
protest involving the Architect of the Capitol, the court in Bell BCI concluded that the
government “ha[d] not shown that the Architect of the Capitol is a Legislative Branch entity; or
that if it is, that the Architect would be excluded from this court’s jurisdiction.” Bell BCI, 56
Fed. Cl. at 470. That decision is in some tension with Emery, in which the Federal Circuit’s
analysis turned on whether the United States Postal Service qualified as one of the entities listed
under 28 U.S.C. § 451. Emery, 264 F.3d at 1080. Colonial Press similarly held that the Court of
Federal Claims’ jurisdiction under 28 U.S.C. § 1491(b)(1) extended to the Government Printing
Office, “a legislative agency.” Colonial Press, 113 Fed. Cl. at 518. Although the court
acknowledges, but has doubts about some aspects of the analysis in Bell BCI and Colonial Press
in application to the circumstances at hand, this case is readily distinguishable from them as the
AOUSC is an entity in the judicial branch. See 28 U.S.C. § 601.
8
II. The Separate Basis of GAO’s Jurisdiction Over Bid Protests
This jurisdictional decision does not leave the protestor without a remedy. Although the
Tucker Act does not vest this court with jurisdiction over bid protests involving the AOUSC, the
Competition in Contracting Act (“CICA”) permits GAO to hear such claims. CICA establishes
that GAO has jurisdiction to resolve bid protests involving a “solicitation . . . by a Federal
agency for offers for a contract for the procurement of property or services.” 31 U.S.C. §
3551(1)(A). “The term ‘Federal agency’” as used in CICA “has the meaning given such term by
section 102 of title 40.” Id. § 3551(3). Section 102 defines “Federal agency” as “an executive
agency or an establishment in the legislative or judicial branch of the Government (except the
Senate, the House of Representatives, and the Architect of the Capitol, and any activities under
the direction of the Architect of the Capitol).” 40 U.S.C. § 102(5). Thus, GAO’s jurisdiction
over bid protests involving federal agencies differs from this court’s jurisdiction because GAO is
bound to a different definition of “Federal agency.” Compare 40 U.S.C. § 102(5), with 28
U.S.C. § 451; see also Novell, 46 Fed. Cl. at 613 (“Even though AOUSC is not subject to the
[c]ourt’s protest jurisdiction, it remains subject to GAO[’s] protest jurisdiction.”).
CONCLUSION
For the reasons stated, the defendants’ motions to dismiss are GRANTED. Microgenics’
complaint shall be DISMISSED for lack of subject-matter jurisdiction. The clerk shall enter
judgment accordingly.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
9