Melwood Horticultural Training Center, Inc. v. United States ( 2020 )

In the United States Court of Federal Claims
No. 20-758C
Filed: November 23, 2020
Reissued: November 30, 2020 1
MELWOOD HORTICULTURAL Keywords: Motion to
TRAINING CENTER, INC., Dismiss; RCFC 12(b)(1);
Ripeness; Pre-Award Bid
Plaintiff, Protest; AbilityOne; Section
898, National Defense
v. Authorization Act of Fiscal
Year 2017, Pub. L. No. 114-
THE UNITED STATES, 328, 130 Stat 2000; Javits-
Wagner O’Day Act, 41 U.S.C.
Defendant.
§§ 8501–06; 41 C.F.R. 51
Meghan A. Douris and Alix K. Town, Oles Morrison Rinker & Baker, LLP, Seattle, WA, for the
Plaintiff.
Steven C. Hough, Trial Attorney, with whom were Douglas K. Mickle, Assistant Director, Robert
E. Kirschman, Jr., Director, Commercial Litigation Branch, Jeffrey Bossert Clark, Acting
Assistant Attorney General, Civil Division, United States Department of Justice, Washington,
D.C., Robert B. Neill, Mark T. Robinson, United States Army, and Timi N. Kenealy, United
States AbilityOne Commission, Of Counsel, for the Defendant.
MEMORANDUM OPINION AND ORDER
TAPP, Judge.
This is an unconventional pre-award, pre-solicitation bid protest involving the second
iteration of a Pilot Program purportedly authorized by a panel established under Section 898 of
the 2017 National Defense Authorization Act. Plaintiff, Melwood Horticultural Training Center
(“Melwood”), challenges not only the United States’ intent to recompete a contract for base
operations support services provided to the U.S. Army, but also the selection of Fort Meade,
Maryland for the Pilot Program. The United States argues that this case is not yet ripe.
Melwood brought these challenges on June 23, 2020, before the United States solicited
bids for a new contract award. (Compl., ECF No. 1). That same day, Melwood filed a Motion for
1
This Opinion was originally issued under seal. On November 30, 2020, the parties notified the
Court that no redactions were necessary. (ECF No. 54). The Court therefore reissues this
Opinion without redactions but with two immaterial typo corrections.
Temporary Restraining Order, seeking an order enjoining the United States, acting through the
AbilityOne Commission (“AbilityOne” or “the Commission”), from issuing a request for
proposals. The Court denied that Motion on June 26, 2020. (Order Denying TRO, ECF No. 11).
On July 15, 2020, the United States issued an opportunity notice for a Base Operations
and Maintenance services contract at Fort Meade. (Administrative Record (“AR”) at 2, 1543,
ECF No. 22). The United States filed the administrative record for its decision on July 24, 2020.
Soon thereafter, the Court denied Melwood’s Motion to Supplement the Administrative Record.
(Order Denying Mot. to Suppl., ECF No. 33; Pl.’s Mot. to Suppl. AR, ECF No. 26). 2
On August 26, 2020, Melwood moved for judgment on the administrative record. (Pl.’s
MJAR, ECF No. 34). When the United States filed its Response and Cross-Motion for Judgment
on the Administrative Record (Def.’s Mot., ECF No. 42), the United States moved to dismiss
Melwood’s claims under RCFC 12(b)(1) and 12(b)(6). The parties each filed timely reply briefs.
This matter now stands submitted.
For the reasons set forth below, the Court GRANTS the United States’ Motion to
Dismiss, DENIES AS MOOT Melwood’s Motion for Judgment on the Administrative Record,
and DENIES AS MOOT the United States’ Cross-Motion for Judgment on the Administrative
Record.
I. Background
A. The AbilityOne Program
In 1971, Congress passed the Javits-Wagner O’Day Act (“JWOD”), which updated the
Wagner-O’Day Act of 1938. Pub. L. No. 92–28, § 1, 85 Stat. 77 (1971) (codified as amended at
41 U.S.C. §§ 46–48c (2006)). 3 JWOD established the “Committee for Purchase From People
Who Are Blind or Severely Disabled.” 41 U.S.C. § 8502. That Committee, colloquially known
as the AbilityOne Commission, exists to carry out the Federal Government’s policy of
“increas[ing] employment and training opportunities for persons who are blind or have other
severe disabilities through the purchase of commodities and services from qualified nonprofit
agencies employing persons who are blind or have other severe disabilities.” 41 C.F.R. § 51-1.1.
In order to implement these policy goals, procurements under the JWOD function
differently than traditional government procurements. For example, AbilityOne maintains a
Procurement List, which it publishes to the Federal Register, containing products and services
produced or provided by qualified nonprofit agencies (“NPA”) and available for purchase by the
2
Although Melwood moved to supplement the record, because it sought to fill “gaps in the
record” rather than add to it, the Court construed Melwood’s request as a motion to complete the
administrative record. Because Melwood “produced no ‘clear evidence of material that was
generated or considered by the agency but excluded from the record,’” the Court held that it was
“entitled to rely on the presumption that the record the United States has submitted is complete.”
(Order Denying Mot. to Suppl. at 2).
3
Congress amended JWOD in 2011 and recodified it at 41 U.S.C. §§ 8501–06.
2
Federal Government. 41 U.S.C. §§ 8503–8504. Qualified NPAs must employ “blind or other
severely disabled individuals for at least 75 percent of the hours of direct labor required for the
production or provision of the products or services.” § 8501. The Federal Government purchases
products and services from the Procurement List at Fair Market Prices that are determined by the
Commission. § 8503(b). The Commission may, “from time to time . . . revise its price
determinations . . . in accordance with changing market conditions.” § 8503(b).
AbilityOne also must designate central nonprofit agencies (“CNA”) to help “facilitate the
distribution” of government contracts among the qualified nonprofit agencies. § 8503(c).
SourceAmerica is the CNA applicable to this action. (Compl. at 3). The process for
“determin[ing] the fair market price of products and services contained on the procurement list”
involves the “contracting activity,” the qualified nonprofit agency, and the CNA (in this case,
SourceAmerica). 41 C.F.R. § 51-2.7(a). The “contracting activity” is “any element of an entity of
the Government that has responsibility for identifying and/or procuring Government
requirements for commodities or services.” 41 C.F.R. § 51-1.3. The “initial price is based on
Committee procedures, which permit negotiations between the contracting activity and the
nonprofit agency which will produce or provide the commodity or service to the Government,
assisted by the appropriate central nonprofit agency.” 41 C.F.R. § 51-2.7(a). “Recommendations
for initial fair market prices, or changes thereto, shall be submitted jointly by the contracting
activities and nonprofit agencies concerned to the appropriate central nonprofit agency.” 41
C.F.R. § 51-2.7(c). SourceAmerica will then submit the recommended price to AbilityOne. 41
C.F.R. § 51-2.7. Because the policy of the AbilityOne program is to “increase employment and
training opportunities for persons who are blind or have other severe disabilities,” procurements
under the program are designated as “other than competitive.” See 41 U.S.C § 3304(a)(5). The
effect of being designated “other than competitive” is that for procurements in the AbilityOne
program, “[f]ull and open competition need not be provided[.]” FAR 6.302-5(a)(2), (b)(2).
B. The 2017 National Defense Authorization Act (NDAA) and the Pilot Programs
On December 23, 2016, Congress passed the National Defense Authorization Act For
Fiscal Year 2017 (“NDAA”). NDAA For Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat 2000
(2016). Section 898 of the NDAA stated that “[t]he Secretary of Defense shall establish a panel
to be known as the ‘Panel on Department of Defense and AbilityOne Contracting Oversight,
Accountability, and Integrity’” (the “898 Panel”). The 898 Panel was tasked to:
(4) recommend changes to law, regulations, and policy that the Panel
determines necessary to eliminate vulnerability to waste, fraud, and abuse
with respect to the performance of contracts of the Department of Defense;
...
(6) recommend ways the Department of Defense and the AbilityOne
Commission may explore opportunities for competition among qualified
nonprofit agencies or central nonprofit agencies and ensure an equitable
selection and allocation of work to qualified nonprofit agencies;
3
NDAA § 898(c)(4), (6). The 898 Panel was also directed to “consult[] with central nonprofit
agencies and qualified nonprofit agencies” and “suggest milestone dates for implementation of
the recommendations made under subsection (c)[.]” NDAA § 898(f)(1). These recommendations
would also be compiled in an annual report to Congress required by § 898(i). See also Pride
Indus., Inc. v. Comm. for Purchase From People Who Are Blind or Severely Disabled, 420 F.
Supp. 3d 1035, 1039 (E.D. Cal. 2019) (summarizing the required contents of the annual report).
The authority to implement these recommendations is somewhat ambiguous. Under
subsection (e), the 898 Panel has the “authority [to] request documentation or other information
needed from the AbilityOne Commission, central nonprofit agencies, and qualified nonprofit
agencies.” NDAA § 898(e). If AbilityOne fails to substantially implement the recommendations,
the Secretary of Defense, upon receiving notification, “may suspend compliance with the
requirement to procure a product or service [from the Procurement List] until the date on which
the Secretary notifies Congress, in writing, that the AbilityOne Commission is substantially
implementing the [898 Panel’s] recommendations[.]” NDAA § 898(g)(1)(A).
On July 18, 2018, the 898 Panel submitted its First Annual Report to Congress. (AR15–
84). In its First Annual Report, the 898 Panel stated that “CNA and NPA perception that a
designated NPA remains the provider of a product or service in perpetuity can erode
performance, escalate prices, and impact customer satisfaction, and the AbilityOne Program
Reputation and employment.” (AR44). Therefore, the 898 Panel recommended “changes to how
work is assigned or re-assigned, and also changes to Title 41 CFR 51.” (AR44). 4 The proposed
changes included “adding policy which would establish mandatory source selection procedures”
that “would require CNAs to use a specific list of measurable qualifications when choosing an
NPA for the project assignment, such as price, technical capability for the work, past
performance, and the percentage of disabled hours.” (AR44) (emphasis added). For
procurements, the 898 Panel proposed “[r]equir[ing] [a] best value trade-off analysis process that
considers price . . ..” (AR45).
In spring of 2019, the Army advised Pride Industries, Inc.—an AbilityOne NPA
contractor—that it would extend Pride’s Facilities Support Operations contract at Fort Bliss until
January 2020, after which “the contract would be performed by the party awarded the contract by
AbilityOne through a new, pilot procurement process.” Pride Indus., 420 F. Supp. 3d at 1040.
On June 10 and 11, 2019, AbilityOne announced two new policies which would comprise its
new Pilot Program for the AbilityOne procurement process. (AR85–87, 88–90). The first,
Interim Policy 51.301.1, announced “changes relevant to pilot test(s), in which a competitive
nonprofit agency (NPA) recommendation process will be conducted, considering technical
capability, past performance, and price.” (AR85) (emphasis added). The second policy, Interim
Policy 51.320.1, directed CNAs “not [to] provide technical and/or pricing assistance to any NPA
participating in the pilot test.” (AR89). Instead, NPAs were instructed to “provide their pricing
4
The regulations pertinent to the AbilityOne Program are contained in Title 41 C.F.R. Chapter
51.
4
information in accordance with the instructions included in the Opportunity Notice as well as
existing and interim Commission policy and procedures.” (AR89).
On July 31, 2019, the AbilityOne Commission initiated the first iteration of this Pilot
Program procurement at Fort Bliss. See Pride Indus., 420 F. Supp. 3d at 1041; (see also AR325,
1470). In that procurement, the incumbent, Pride Industries, was reselected to perform the
Facilities Support Contract and the Army recognized a 20 percent cost savings over the life of
the contract. (AR1470).
C. Melwood’s Base Operations Support Services Contract at Fort Meade
Melwood is a not-for-profit organization which employs persons who are blind or
otherwise severely disabled. (See Pl.’s MJAR at 4; Compl. at 1). In May 2011, Melwood was
added to the Procurement List as a qualified NPA contractor. (AR2). Melwood was enlisted to
provide Base Operation Support Services for multiple buildings at Fort Meade, an Army
installation in Maryland that is home to approximately 55,000 military and civilian personnel.
(See AR137). These support services include facilities maintenance, refuse removal,
groundskeeping, snow and ice removal, and other similar services. (AR91–108).
In recognition of saved costs and other benefits from the first Pilot Program procurement
at Fort Bliss, the Army requested that AbilityOne conduct a second iteration of its Pilot Program
for the Base Operations Support Services Contract (“BOSS Contract”) at Fort Meade. (AR1471).
Melwood’s Fort Meade contract was set to expire at the end of June 2020 but given several
options to extend the contract. (AR342, 354). The Army had undertaken an Independent
Estimate for pricing of the Fort Meade contract on December 11, 2019. (AR334). This estimate
showed a base year total cost of $26,062,290.04 and a five-year total cost of $136,521,931.90.
(AR334, 339). On December 19, 2019, AbilityOne responded to the Army’s interest via email,
stating that it would be “happy to work with” the Army on a second Pilot Program procurement.
(AR341).
On May 12, 2020, the Army published a press release announcing Fort Meade had been
selected for the second iteration of the Pilot Program. (AR347). Several days later, AbilityOne
notified Melwood of this press release by email. (AR347). On May 28, 2020, the Executive
Director of AbilityOne signed a Memorandum of Agreement formalizing the decision to initiate
the Pilot Program at Fort Meade. (AR358–61).
On June 23, 2020, Melwood filed a pre-solicitation, pre-award bid protest challenge,
seeking to “prevent the issuance of the Opportunity Notice and/or RFP” and to “challenge . . .
the Government’s intent to compete the Fort Meade Base Operations contract.” (Compl. at 1)
(emphasis added). Melwood also moved for a temporary restraining order, alleging it would
suffer irreparable reputational harm should the United States be permitted to proceed with the
solicitation. (See Order on TRO, ECF No. 11). On June 26, 2020, the Court denied Melwood’s
request. (Id.). On July 14, 2020, AbilityOne formally authorized the Pilot Program procurement
process for the BOSS Contract at Fort Meade and directed SourceAmerica to post the
opportunity notice. (AR1468–74). SourceAmerica then posted the opportunity notice on July 15,
2020. (See AR1543).
5
II. Analysis
Melwood’s Complaint challenges the procurement at Fort Meade on three grounds. First,
Melwood alleges that “the Commission has violated FAR 8.705-4 by improperly canceling the
Fort Meade [BOSS] contract with Melwood.” (Compl. at 9). Second, Melwood argues that
AbilityOne’s “source selection plan for the Fort Meade [BOSS] re-procurement violates 41
U.S.C. § 8503, FAR 8.707, FAR 6.302-5(b)(2), and 41 C.F.R. § 51-2.7 as [it] relinquishes
[AbilityOne’s] responsibility to establish a fair market price to a competition between the
nonprofit agencies, which is specifically prohibited.” (Compl. at 10). Third, Melwood alleges a
violation of the Administrative Procedures Act, 5 U.S.C. § 701–706, and seeks a declaratory
judgment that “the Section 898 Panel’s pilot program and the selection of the Fort Meade
[BOSS] contract’s participation in that program is arbitrary, capricious, an abuse of discretion,
and otherwise in violation of law.” (Compl. at 10–11).
Each party has moved for judgment on the administrative record with respect to these
challenges. The United States has also moved to dismiss Melwood’s Complaint on various
jurisdictional grounds. (See generally, Def.’s Mot.) (seeking dismissal for want of subject matter
jurisdiction, for being unripe, and for failure to state a claim). Because jurisdiction is a threshold
issue, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998), the Court will
address these arguments first before turning to the remaining challenges.
A. Legal Standards
i. Bid Protests
The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid
protests brought 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). In bid protest cases, this Court reviews agency actions
under the Administrative Procedure Act’s “arbitrary and capricious” standard. See 28 U.S.C. §
1491(b)(4). Under this standard, an “award may be set aside if either (1) the procurement
official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation
of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238
F.3d 1324, 1332 (Fed. Cir. 2001).
In this regard, the United States Court of Appeals for the Federal Circuit has explained
that: “when a challenge is brought on the first ground, the test is ‘whether the contracting agency
provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed
bidder bears a “heavy burden” of showing that the award decision had no rational basis.’” Id. at
1332–33. “When a challenge is brought on the second ground, the disappointed bidder must
show a clear and prejudicial violation of applicable statutes or regulations.” Id. at 1333. In
addition, when reviewing an agency’s procurement decision, the Court should recognize that the
agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 415 (1971), overruled on other grounds by Califano v. Sanders, 430
U.S. 99 (1977). “The [C]ourt should not substitute its judgment for that of a procuring agency.”
Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997). And so, “[t]he protestor must
6
show, by a preponderance of the evidence, that the agency’s actions were either without a
reasonable basis or in violation of applicable procurement law.” Info. Tech. & Applics. Corp. v.
United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003) (citation
omitted).
The Court’s standard of review “is highly deferential.” Advanced Data Concepts, Inc. v.
United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for
the agency’s action, the court should stay its hand even though it might, as an original
proposition, have reached a different conclusion.” Honeywell, Inc. v. United States, 870 F.2d
644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C.
Cir. 1971)). But, if “the agency ‘entirely fail[s] to consider an important aspect of the problem
[or] offer[s] an explanation for its decision that runs counter to the evidence before the agency,’”
then the resulting action lacks a rational basis and, therefore, is defined as “arbitrary and
capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.
Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
ii. Motion to Dismiss
To survive a Motion to Dismiss under RCFC 12(b)(1), the Complaint must “allege
sufficient facts to establish the court’s jurisdiction,” the basis of which must be “affirmatively
and distinctly set forth.” DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318–19 (Fed.
Cir. 2006). The burden of establishing subject matter jurisdiction rests with the plaintiff, who
must do so by a preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). This
Court’s jurisdiction to entertain claims and grant relief depends on the extent to which the United
States has waived sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976). When
faced with a motion to dismiss for lack of subject matter jurisdiction pursuant to the RCFC Rule
12(b)(1), the Court must assume that all undisputed facts alleged in the complaint are true and
draw all reasonable inferences in the plaintiff’s favor. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); see also Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The movant,
however, may challenge the truth of any facts upon which jurisdiction depends. See Raymark
Indus. v. United States, 15 Cl. Ct. 334, 338 (1988). If it does, the plaintiff must come forward
with prima facie showing of jurisdiction. Id. The plaintiff cannot rely only on its allegations. See
Hornback v. United States, 52 Fed. Cl. 374, 377 (2002).
Moreover, the Court may look to evidence outside of the pleadings in order to ascertain
the propriety of its exercise of jurisdiction over a case. Rocovich v. United States, 933 F.2d 991,
994 (Fed. Cir. 1991), aff’d in relevant part, Martinez v. United States, 281 F.3d 1376 (Fed. Cir.
2002). In that vein, a Court may refrain from exercising its jurisdiction over a claim that is not
yet ripe. Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725 (1997); Reno v. Catholic Soc.
Servs., Inc., 509 U.S. 43, 58 n.18 (1993) (“We have noted that ripeness doctrine is drawn both
from Article III limitations on judicial power and from prudential reasons for refusing to exercise
jurisdiction.”). Thus, dismissal of an unripe claim is most appropriate under RCFC 12(b)(1). If
the Court determines at any time that subject matter jurisdiction is lacking, it must dismiss the
complaint. See RCFC 12(h)(3).
7
B. Count I Must be Dismissed Under RCFC 12(b)(1) for Lack of Subject Matter
Jurisdiction
Count I of Melwood’s Complaint alleges that “the Commission has violated FAR 8.705-4
by improperly canceling the Fort Meade Base Operations Support Services contract with
Melwood.” (Compl. at 9). The United States’ Cross-Motion and Motion to Dismiss argues that
Count I “involves a dispute arising out of the contract between the parties, and therefore must be
brought under the Contract Disputes Act (CDA)—not under the Court’s bid protest jurisdiction.”
(Def.’s Mot. at 14) (internal citations and alterations omitted). Consequently, the United States
argues, Count I must be dismissed for either lack of subject matter jurisdiction under RCFC
12(b)(1) or for failure to state a claim under RCFC 12(b)(6). (Def.’s Mot. at 14). The Court
agrees that, under its bid protest jurisdiction, it lacks subject matter jurisdiction to adjudicate
what is essentially a wrongful termination of contract claim, and thus dismissal under RCFC
12(b)(1) is appropriate.
Melwood maintains that its claim “is a proper pre-award protest – not a [CDA] claim.”
(Pl.’s Opp. at 9). Melwood argues that “once a party objects to a procurement, [28 U.S.C.]
section 1491(b)(1) provides a broad grant of jurisdiction[.]” (Id. (citing 41 U.S.C. § 111, which
defines “procurement” as “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.”)). Melwood has indeed brought its claims under 28 U.S.C. § 1491(b)
(bid protest jurisdiction) and 5 U.S.C. § 702 (judicial review under the APA). (See Compl. at 2).
However, Count I concerns the improper cancellation of a contract, which is inherently a
contract administration challenge that must be brought under the Contract Disputes Act.
Melwood cannot attempt to reframe this contract administration challenge as a bid protest
through its briefs.
“When a plaintiff’s claim involves a breach of a contract with the Government before the
expiration of the contract, the court cannot hear the claim as a bid protest because ‘28 U.S.C. §
1491(b) provides no jurisdiction for claims of wrongful termination or breach.’” Gonzalez-
McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 716 (2010) (quoting The Ravens
Group v. United States, 78 Fed. Cl. 390, 398 (2007)). “[C]laims related to the ongoing
administration and management of a government contract, including claims for breach of
contract or termination, must be pursued under the CDA, not under the court’s bid protest
jurisdiction.” Diversified Maint. Sys., Inc. v. United States, 103 Fed. Cl. 431, 436 (2012) (citing
Cecile Indus., Inc. v. Cheney, 995 F.2d 1052, 1055 (Fed. Cir. 1993) (“The CDA exclusively
governs Government contracts and Government contract disputes.”)) (citation omitted); Dalton
v. Sherwood Van Lines, 50 F.3d 1014, 1017 (Fed. Cir. 1995) (“When the Contract Disputes Act
applies, it provides the exclusive mechanism for dispute resolution”); see also Frazier v. United
States, 79 Fed. Cl. 148, 160 (2007) (“[P]ure contract claims are not appropriate in a bid protest,
even if clothed in the guise of a protest of an alleged statutory violation occurring in relation to a
procurement.”), aff’d, 301 Fed. Appx. 974 (Fed. Cir. 2008); Ravens Grp., Inc., 78 Fed. Cl. at 398
(noting that section 1491(b) provides no jurisdiction for claims of wrongful termination or
breach). Furthermore, the Court of Federal Claims’ CDA jurisdiction “requires both a valid
claim and a contracting officer’s final decision on that claim.” M. Maropakis Carpentry, Inc. v.
United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing James M. Ellett Constr. Co. v.
United States, 93 F.3d 1537, 1541–42 (Fed. Cir. 1996)).
8
Melwood’s Complaint, on its face, alleges cancellation of a contract before its expiration,
thus it is a contract administration challenge that must be brought under the CDA, not the
Court’s bid protest jurisdiction. (See Compl. at 8, 9). Moreover, Melwood has not alleged its
claim satisfies the prerequisites for a CDA claim and concedes that “the grounds for a CDA
claim are not before the Court.” (Pl.’s Opp. at 9 n.2, ECF No. 44). Thus, dismissal of Count I
under RCFC 12(b)(1) for lack of subject matter jurisdiction is proper.
C. Count II Must Be Dismissed Under RCFC 12(b)(1) Because it Does Not
Challenge a “Final Agency Action” and is Therefore Unripe
The United States asserts that Melwood does not challenge a final agency action, but
rather an inchoate decision by AbilityOne—the “intent to [re]compete the Fort Meade” BOSS
Contract—therefore its entire Complaint is unripe and must be dismissed. (Def.’s Mot. at 8; see
also Compl. at ¶¶ 1, 6, 43, 49). Melwood responds that the May 2020 email from AbilityOne
stating the intent to recompete the BOSS Contract at Fort Meade evidences the consummation of
the agency decision-making process. (Pl.’s Opp. at 6). Additionally, Melwood argues that even if
its challenge was not ripe when the Complaint was filed, AbilityOne has now issued a formal
decision which constitutes final agency action, and thus the Court should find that its challenge
has ripened. (Id. at 8).
The Court agrees that Melwood brought this challenge too early, before a final agency
action was taken, and crucially, has not attempted to cure this defect with an amended
complaint. 5 However, because the Court finds Counts I and III are more appropriately dismissed
on other grounds, its holding that Melwood’s claim is unripe applies only to Count II.
For an action to be “ripe,” the protestor must establish “both the fitness of the issues for
judicial decision and the hardship to the parties of withholding court consideration.” Abbott
Labs. v. Gardner, 387 U.S. 136, 149 (1967); see also Caraco Pharm. Labs., Ltd. v. Forest Labs.,
Inc., 527 F.3d 1278, 1294–95 (Fed. Cir. 2008); Tex. v. United States, 134 Fed. Cl. 8, 17 (2017)
(“It is protestor’s burden to establish ripeness.”). “[A]n action is fit for judicial review where
further factual development would not ‘significantly advance [a court’s] ability to deal with the
legal issues presented.’” Caraco Pharm. Labs., 527 F.3d at 1295. (quoting Nat’l Park Hospitality
Ass’n v. Dep’t of Interior, 538 U.S. 803, 812 (2003)). Hardship to the parties may be present
where “the complained-of conduct has an ‘immediate and substantial impact’ on the plaintiff.”
Id. (quoting Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 171 (1967)).
5
The Court passes no judgment on whether an amended complaint would have ripened this case.
Melwood has repeatedly maintained that this challenge is to the agency’s intent recompete the
Fort Meade BOSS Contract, not a challenge to the solicitation itself. During Oral Argument on
Melwood’s Motion to Supplement the Administrative Record, Melwood affirmed that only
“Count III of our complaint actually challenges the decision itself to include . . . Fort Meade as
part of the Pilot Program.” (Tr. of OA on Mot. to Suppl. at 12:1–8, ECF No. 39). In fact, the
Court specifically pointed out that this “seems to be . . . a challenge to the decision to
contemplate recompeting the Fort Meade contract rather than the actual decision to recompete
the contract.” (Id. at 8:7–12).
9
However, before examining whether Melwood’s claim satisfies both elements of being
“ripe,” the Court must first address the parties’ contradicting assertions about when ripeness
should be determined.
i. Ripeness is Evaluated at the Time the Complaint is Filed
Melwood argues that even if it was not ripe when filed, its claim is “unquestionably” ripe
now. (Pl.’s Opp. at 8). However, this argument misunderstands and misapplies the ripeness
doctrine. The Court agrees with the United States that accepting such an argument would defeat
the purpose of the doctrine, which is “to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over administrative policies,
and also to protect the agencies from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the challenging parties.” Sys.
Application & Techs., Inc. v. United States, 691 F.3d 1374, 1383 (Fed. Cir. 2012) (internal
citations and quotations omitted).
Ripeness, for the purposes of a trial court’s jurisdiction, must be evaluated when the
Complaint is filed. Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 734 n.2 (Fed.
Cir. 1988). “The presence or absence of jurisdiction must be determined on the facts existing at
the time the complaint under consideration was filed.” Id. (citing Jervis B. Webb Co. v. Southern
Sys., Inc., 742 F.2d 1388, 1398 (Fed. Cir. 1984) (“[A] case or controversy must exist as of the
date of the filing of the declaratory judgment action”)). “[S]ubject matter jurisdictional facts
must be pleaded, and proved when challenged, and . . . later events may not create jurisdiction
where none existed at the time of filing.” Spectronics Corp. v. H.B. Fuller Co., 940 F.2d 631,
635 (Fed. Cir. 1991).
However, Melwood points to two cases in which the Supreme Court suggested that
ripeness may be evaluated on a “rolling basis.” (Pl.’s Opp. at 8). However, these decisions apply
to the prudentialism of appellate courts reviewing events that occurred after a lower court’s
decision. 6
In Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 137 (1974), the Supreme
Court considered the “conveyance taking” of land for rail use under the Rail Act and the Fifth
Amendment. 7 At the trial court below, the District Court determined that review of the issues
would be premature since the challenged conveyance decision required several further steps
6
Melwood relies on a third case, from another Judge on the Court of Federal Claims, in making
its argument. That case, CBY Design Builders v. United States, 105 Fed. Cl. 303, 329 n.20
(2012), stated in dicta that “jurisdictional questions of ripeness are not based on the state of
affairs at the time of filing, as subsequent events may make a matter ripe.” (citing Blanchette and
Buckley). However, that case had no need to grapple with the prudential concerns of the ripeness
doctrine as it primarily addressed mootness, but in any event, is not binding precedent on this
Court.
7
Blanchette is often alternatively cited as Regional Rail Reorganization Act Cases, 419 U.S. 102
(1974).
10
before it would constitute a “final” action. Id. at 138 (“The District Court’s holding of
prematurity was influenced by the statutory scheme that requires several decisional steps before
the final conveyance.”). However, soon after the District Court’s decision, those “decisional
steps” were completed. Id. at 139 (“subsequent to the District Court’s opinion, the Penn Central
Reorganization Court determined that the Rail Act did not provide a process that would be fair
and equitable to the estate[.]”). The Supreme Court decided that, for prudential reasons, even
though the issues may have been unripe for the district court, a remand would be wasteful and
unnecessary since the issues had since matured. Id. at 140 n.25 (“It might be appropriate under
different circumstances only to decide that the issues are ripe, and to remand to the District Court
for their determination on the merits. However, such a remand here would be both undesirable
and unnecessary.”).
In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court considered the
constitutionality of several provisions of the Federal Election Campaign Act of 1971, as well as
not-yet-final rulings and determinations by the Federal Election Commission. After the Court of
Appeals for the D.C. Circuit issued its decision, the Federal Election Commission promulgated
several rules and regulations under the authority of that Act. Id. at 115–16. Again, for prudential
reasons, the Supreme Court determined that it should consider these new regulations on appeal,
despite not being presented to the courts below. Id. at 117. (holding that the Supreme Court was
“warranted in considering all . . . aspects of the Commission’s authority which have been
presented by the certified questions.”).
Blanchette and Buckley are an exception, not the rule, to the ripeness doctrine. Nothing in
this case warrants a departure from the Federal Circuit’s ripeness jurisprudence which dictates
that “[t]he presence or absence of jurisdiction must be determined on the facts existing at the
time the complaint under consideration was filed.” Arrowhead Indus. Water, Inc., 846 F.2d at
734 n.2. Thus, the Court must assess the ripeness of Melwood’s claims from the time the
Complaint was filed on June 23, 2020, prior to AbilityOne’s formal authorization of the Pilot
Program.
ii. The Inchoate Procurement Decision Melwood Challenges Does Not
Satisfy the “Fitness” Prong
“When a party challenges government action, the [fitness] factor becomes a question of
whether the challenged conduct constitutes a final agency action.” Sys. Application & Techs.,
Inc., 691 F.3d 1374, 1384 (Fed. Cir. 2012) (citing Tokyo Kikai Seisakusho, Ltd. v. United States,
529 F.3d 1352, 1363 (Fed. Cir. 2008) and 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.”’” Sys. Application & Techs., Inc., 691 F.3d at 1384 (quoting Bennett v.
Spear, 520 U.S. 154, 177–78 (1997) (citations omitted)).
The United States alleges that “final agency action” in this case occurred when the
AbilityOne Commission took a formal written vote on July 14, 2020, authorizing the
Commission to initiate the competitive process among qualified nonprofit agencies. (Def.’s Mot.
11
at 10; AR1469, 1473). Melwood alleges that final agency action was taken when AbilityOne
communicated the Army’s intent to select Fort Meade for the competition pilot. (Pl.’s Opp. at 6–
7). Melwood frames the final agency action as the informal decision not to continue the contract
with Melwood as the provider of Base Operations Support Services at Fort Meade. (Id.) (“No
further documentation was necessary to establish the agency’s final decision.”).
The Court agrees with the United States that “final agency action” occurred when the
formal written vote was taken and that Count II challenges agency action before a final agency
decision. At any point, up until AbilityOne took a formal vote to authorize the Pilot Program,
“[t]he Government could have changed its mind and decided not to proceed with the competition
pilot, and the Commission could have voted to deny authorization for it to move forward.” (See
Def.’s Mot. at 10). Only when the decision was final, and the parties were assured that the Pilot
Program would proceed, could “legal consequences flow.” As previously stated, Melwood filed
its Complaint on June 23, 2020, and a final vote did not occur until several weeks later. Melwood
has not sought leave to amend its Complaint to challenge this vote, which the United States has
conceded would constitute “final agency action.” (See id.). Therefore, Melwood fails to
challenge a “final agency action” necessary to satisfy the “fitness” prong of the ripeness inquiry.
iii. Melwood Has Not Asserted it Will Suffer “Hardship” Without Review
and Thus Has Conceded That Issue
To be “ripe,” a plaintiff’s claim must also satisfy the second prong by demonstrating a
“hardship” that would be presented if the Court withheld consideration of the issues. Thus,
Melwood must be able to show it has suffered an “immediate and substantial impact” stemming
from the Government’s conduct. Caraco Pharm. Labs., 527 F.3d at 1295 (quoting Gardner, 387
U.S. at 171). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that
may not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S.
296, 300 (1998) (quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568,
580–581 (1985)).
Even if it could satisfy the “fitness” prong, Melwood has not demonstrated, or even
offered an argument, that it will suffer “hardship” in response to the United States’ Motion to
Dismiss. (See Pl.’s Opp. at 5–8 (discussing the point of litigation at which ripeness is
determined, and the fitness of the issues, but omitting discussion of hardship to Melwood)); see
also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs,
hunting for truffles buried in briefs.”).
In any event, failure to respond to the United States’ ripeness arguments on the merits can
be construed as a concession of the issue. Cardiosom, LLC v. United States, 91 Fed. Cl. 659, 664
(2010), rev’d sub nom., Cardiosom, L.L.C. v. United States, 656 F.3d 1322 (Fed. Cir. 2011)
(“[B]y failing to respond to Defendant’s argument regarding the jurisdictional defect of the . . .
claim, Plaintiff has effectively conceded the issue.”); Philadelphia Auth. for Indus. Dev. v.
United States, 114 Fed. Cl. 519, 527 (2014) (Sweeney, J.) (construing plaintiff’s silence on the
merits of defendant’s arguments as waiver); Winnemucca Indian Colony v. United States, No.
13-874, 2014 WL 3107445, at *4 (Fed. Cl. July 8, 2014) (Firestone, J.) (“[P]laintiffs have not
responded to these arguments. As such, they are deemed conceded”).
12
Because Melwood has not identified any hardship it would suffer if the Court declines to
review this unconventional, pre-solicitation challenge, the Court construes that silence as a
concession that Melwood will suffer no hardship. Therefore, even if Melwood’s claims in Count
II were “fit” for judicial review, which they are not, Melwood cannot demonstrate a hardship
necessary to establish ripeness of the issues for judicial review. Because Count II is unripe, the
Court lacks jurisdiction to hear it. See Morris v. United States, 392 F.3d 1372 (Fed. Cir. 2004)
(explaining that a Court “does not have jurisdiction over claims that are not ripe”); RCFC 12(h)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action”). Consequently, the Court dismisses Count II without prejudice under RCFC
12(b)(1) for lack of jurisdiction. Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1350
(Fed. Cir. 2015) (“If a claim is not yet ripe for judicial review, it should generally be dismissed
without prejudice.”).
D. The Court Lacks Subject Matter Jurisdiction Over the Administrative Procedures
Act, Thus Count III Should be Transferred to the U.S. District Court for the
District of Maryland
Count III of Melwood’s Complaint alleges a violation of the Administrative Procedures
Act (“APA”), 5 U.S.C. § 701–706, and seeks a declaratory judgment that “the Section 898
Panel’s pilot program and the selection of the Fort Meade BOS contract’s participation in that
program is arbitrary, capricious, an abuse of discretion, and otherwise in violation of law.”
(Compl. at 10–11).
The United States has moved for dismissal of this claim under RCFC 12(b)(1), asserting
that the Court of Federal Claims lacks subject matter jurisdiction to hear APA claims. (Def.’s
Mot. at 15 (citing Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1370 n.11 (Fed. Cir. 2005)
(“Of course, no APA review is available in the Court of Federal Claims.”))). This is
unquestionably correct. See, e.g., Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997)
(holding that the Court of Federal Claims lacked general federal question jurisdiction to review
the propriety of agency action under the Administrative Procedure Act, 5 U.S.C. §§ 701–706
(2000)).
Melwood, in its Reply brief, recognizes this defect and now seeks transfer to the U.S.
District Court for the District of Maryland. (Pl.’s Opp. at 11). Transfer may be effected under 28
U.S.C. § 1631 to cure a lack of jurisdiction if transfer “is in the interest of justice,” and the
destination court is one “in which the action . . . could have been brought at the time it was filed
or noticed[.]” Melwood argues that transfer is “in the interest of justice” because its “claims are
nonfrivolous and should be decided on the merits.” (Pl.’s Opp. at 12 (citing Galloway Farms,
Inc. v. United States, 834 F.2d 998 (Fed. Cir. 1987) (“The phrase ‘if it is in the interest of justice’
relates to claims which are nonfrivolous and as such should be decided on the merits.”))).
Melwood asserts that the District of Maryland is the proper venue under 28 U.S.C. § 1391(e)
because it is where “a substantial part of the events or omissions giving rise to the claim
occurred” or where “the plaintiff resides[.]” (See Pl.’s Opp. at 12). Of course, the BOSS Contract
was performed in Maryland, where Fort Meade is located, and alternatively, Melwood’s
principal place of business in Maryland. (Compl. at 2, 7). Therefore, the District of Maryland
would indeed be the proper venue.
13
The United States opposes transfer. (Def.’s Reply at 6, ECF No. 48). The basis of the
United States’ objection is that this claim is brought “in connection with a procurement or a
proposed procurement[.]” (Id. at 6–7 (citing § 1491(b)(1))). The United States argues that “the
Administrative Dispute Resolution Act of 1996 (ADRA) ‘terminated federal district court
jurisdiction over bid protests[.]’” (Id. at 7 (quoting Emery Worldwide Airlines, Inc. v. United
States, 264 F.3d 1071, 1079 (Fed. Cir. 2001))). “Congress intended the 1491(b)(1) jurisdiction to
be exclusive where 1491(b)(1) provided a remedy (in procurement cases).” Res. Conservation
Grp., LLC v. United States, 597 F.3d 1238, 1246 (Fed. Cir. 2010).
Although Count III invokes § 1491(b)(1), the thrust of Melwood’s challenge is that the
implementation of the Pilot Program as a whole is a violation of the Administrative Procedures
Act. (Compl. at 10). The U.S. District Court for the District of Maryland is better suited to
address whether this challenge was one which Congress intended to remove from the jurisdiction
of the federal district courts, and evaluate the claim’s merits. On its face, Count III is a
nonfrivolous claim that should be decided on the merits by a court with proper jurisdiction and
venue. Accordingly, the Court transfers Count III to the U.S. District Court for the District of
Maryland.
E. Melwood’s and the United States’ Motions for Judgment on the Administrative
Record are Denied as Moot
As explained above, this Court does not possess jurisdiction over Melwood’s claims for
various reasons. As such, this Court does not review the Administrative Record to determine
whether AbilityOne acted arbitrarily and capriciously, abused its discretion, or violated the law
with various aspects of the Pilot Program. However, like the District Court for the Eastern
District of California, which reviewed the first iteration of the 898 Panel’s Pilot Program, the
Court has grave concerns about the legality of the Pilot Program and AbilityOne’s execution of
it. See Pride Indus., 420 F. Supp. 3d at 1046 n.4 (noting that the Pilot Program “appears to
significantly modify if not abandon statutorily prescribed pricing and allocation processes.”).
The Court’s concerns are threefold.
First, Melwood raises a novel question of whether the program itself violates the JWOD
or is authorized by the NDAA. The JWOD establishes a “uniquely tailored statutory scheme for
providing government services contracts to the blind or severely disabled.” Id. The 898 Panel
and AbilityOne have, at best, ambiguous authority to implement new procurement procedures
that widely diverge from those explicitly outlined in JWOD. A plain reading of the NDAA
indicates that the 898 Panel is only authorized to provide recommendations, not implement new
procedures for AbilityOne procurements. NDAA § 898(c)(2)–(7). Subsection (e) circumscribes
the “authority” of the 898 Panel:
To carry out the duties described in subsection (c), the Panel may request
documentation or other information needed from the AbilityOne
Commission, central nonprofit agencies, and qualified nonprofit agencies.
NDAA § 898(e). All that is granted, under a plain reading of the text, is the power to collect
information in order to take the actions contemplated by subsection (c). Notably, seven of the
eight delineated “duties” of the 898 Panel, as defined in subsection (c), begin with “recommend
14
actions,” “recommend changes,” “recommend ways,” “recommend criteria,” or “review the
status” of the program. NDAA § 898(c)(1)–(7). The eighth duty would require a determination
by the Secretary of Defense, not simply the initiative of AbilityOne or a “contracting activity,”
such as the Army. The Court believes it is possible, or even likely, that the intended end goal of
the 898 Panel’s authority was to report to Congress and make recommendations on how to
change the governing statutes and regulations, rather than implement a Pilot Program that largely
disregards the procurement procedures of the JWOD and Title 41 C.F.R. Chapter 51.
Second, the Pilot Program seems to hinge on the addition of a price component, and the
two iterations so far have championed the Pilot Program’s cost-savings. The Court is skeptical of
whether the 898 Panel or AbilityOne may lawfully conduct a program that ignores, or runs
directly counter to, the policy goals outlined by JWOD, and the procurement procedures with
regard to price extensively detailed in 41 C.F.R. 51. While competition on price may not be
specifically prohibited, JWOD makes clear its preference for evaluation on other components of
a bid, and the detailed procurement scheme for arriving at an AbilityOne contract’s price
indicates bids should not contain a price component. There are specific policy reasons for these
procedures clearly delineated by the statute—providing employment for the blind and severely
disabled. It is unclear whether Congress intended to permit AbilityOne to drastically modify the
procurement procedures which encapsulate these policy prescriptions without a clear directive
that the addition of a price component is permissible.
Third, the Court is troubled by the Army’s ad hoc, back-of-the-napkin math relied upon
to determine that a resolicitation at Fort Meade could accomplish its legally dubious price-
slashing goals. With its Opposition to Melwood’s Motion for Temporary Restraining Order, the
United States attached a Declaration that estimated “that the fair market price for this acquisition
will be approximately 33% less than the current contract price. In monetary terms, the projected
savings [from implementing the Pilot Program at Fort Meade] will be approximately $2.6 - 3M
per year.” (J. Randall Robinson Decl. at ¶ 8, ECF No. 9-1). Later, the United States submitted a
Corrected Declaration, this time stating “We anticipate that the fair market price for this
acquisition will be approximately 11 % less than the current contract price. In monetary terms,
the projected savings will be approximately $2.2 - $2.9M per year.” (Corr. J. Randall Robinson
Decl. at ¶ 8). Melwood sought production of any other documents that would support a more
fulsome analysis of the cost-savings by the Army, but the United States assured the Court that
such analysis does not exist. (Tr. of OA on Mot. to Suppl. at 21:6–16 (stating that the cost-
savings analysis “was a pretty simple arithmetic calculation.”)). The Army apparently was not
prompted to conduct any detailed analysis as to the differences in sizes of the facility where the
contract would be performed, or the relative performance efficiency of the incumbent
contractors. In response to a question from the Court, the United States provided the following
summary of the Army’s comparative cost-savings analysis as it was listed in the first “erroneous”
declaration:
My understanding, Your Honor, is that the Army miscalculated – did the
wrong math as it were. That rather than looking at the cost savings and
applying that 11 percent figure, they took the estimated size of Fort Bliss
versus the estimated size of Fort Meade, the one fort being a smaller contract
than the other, and we’re essentially comparing apples to oranges and said,
15
geez, if the contract is a third the size, or a third less in size, the price should
be a third less in size as well.
(Id. at 22:20–25, 23:1–4). The Army apparently arrived at the 11 percent figure, the figure from
the “Corrected Declaration,” much the same way, without regard to disparities in efficiency of
the incumbent contractor’s performance:
In performing the estimate with the 11 percent cost savings, the Army looked
at what the price under the old contract at Fort Bliss was and the annual price
under the new contract at Fort Bliss and did simple arithmetic to realize an
11 percent cost savings. And that, in Mr. Robinson’s declaration, the 11
percent cost construction was applied to the new estimated value of the new
contract. Again, simple arithmetic yielded the cost range that was arrived at.
(Id. at 21:6–16). However, the Army’s own independent estimate contradicts whether it would
actually save costs from recompeting the BOSS Contract at Fort Meade. The Army’s
Independent Estimate for pricing of the Fort Meade contract showed a base year total cost of
$26,062,290.04 and a five-year total cost of $136,521,931.90. (AR334, 339). Melwood asserts
that it had performed the BOSS Contract at approximately $20.8 million in the previous contract
year (2019–2020). (Pl.’s MJAR at 5–6). By the Army’s own independent estimate, recompetition
of the BOSS Contract could actually lead to a contract price increase of $5.2 million in the base
year. This discrepancy highlights, and calls into question, the efficacy of the Army’s primary
stated goal for the Pilot Program: cost savings.
The United States argues that “no ‘statutory or regulatory provision . . . precludes’” the
Pilot Program’s inclusion of a price component. (Def.’s Reply at 12; see also Def.’s Mot. at 22–
23). In the alternative, the United States would place its reliance on a favorable standard of
review, arguing that even if the competition Pilot Program is contrary to the JWOD, it does not
present either a “clear” or “prejudicial” violation of the law and thus must be upheld. (See Def.’s
Mot. at 24). Perhaps the United States is correct, but this is no way to run a railroad. The Court
tends to agree with its peer, the District Court for Eastern District of California, in observing that
the United States’ arguments “appear to oversimplify and ignore the statutory scheme Congress
designed to distance price from the decision process to encourage government hiring of blind and
severely disabled people.” Pride Indus., 420 F. Supp. 3d at 1046 n.4 (citing 41 U.S.C. §
3304(a)(5) and F.A.R. 6.302-5(b)(2)).
Twice now courts have dismissed challenges to this Pilot Program as unripe. The APA
challenge from Pride Industries was unripe when brought prior to final contact award. Pride
Indus., 420 F. Supp. 3d at 1045. This Court has now found that Melwood’s challenge under 28
U.S.C. § 1491(b)(1) is unripe because it was brought prior to a formal vote to issue the
solicitation, and thus there is no final agency action to review. Despite the Court’s concerns, it
must reserve judgment for a claim that properly presents the issues for the Court’s review. In
light of its holding that the Court lacks jurisdiction, both Melwood’s and the United States’
Motions for Judgment on the Administrative Record are denied as moot.
III. Conclusion
16
The Court does not possess subject matter jurisdiction over Melwood’s Complaint.
Because it does not possess subject matter jurisdiction, it cannot issue a decision on the merits of
the parties’ motions for judgment on the administrative record. Accordingly, the Court orders the
following:
1. The United States’ Motion to Dismiss, (ECF No. 42) is GRANTED.
2. Melwood’s Motion for Judgment on the Administrative Record, (ECF No. 34), is
DENIED AS MOOT.
3. The United States’ Motion for Judgment on the Administrative Record, (ECF No.
42), is DENIED AS MOOT.
4. Count I of Melwood’s Complaint shall be DISMISSED without prejudice.
5. Count II of Melwood’s Complaint shall be DISMISSED without prejudice.
6. Count III of Melwood’s Complaint shall be TRANSFERRED to the United
States District Court for the District of Maryland.
7. No costs or fees shall be awarded.
8. The parties are DIRECTED to submit their proposed redactions no later than
December 7, 2020.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
17