Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:07-cv-00806-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST THE PROTECTIVE GROUP, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 07-806C (Judge Wheeler)

DEFENDANT'S RULE 12(b)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Defendant, the United States, respectfully requests that the Court dismiss this action for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"). In support of

our motion, we rely upon the complaint, the following brief, and an admission that plaintiff made during a hearing held on November 20, 2007, upon plaintiff's application for a temporary protective order. DEFENDANT'S BRIEF STATEMENT OF THE ISSUE Whether the Court possesses jurisdiction to entertain plaintiff's bid protest, where plaintiff filed the action after the end of the proposal period and did not submit a proposal in response to the solicitation.

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STATEMENT OF THE CASE I. Nature Of The Case In this bid protest, plaintiff, The Protective Group, Inc. ("TPG"), challenges the Government's decision not to set aside a solicitation for small business competition. ("Compl.") at 1. II. Statement Of The Facts On May 9, 2007, the Government issued a solicitation for ballistic armor plates for special operations forces. at 3 ¶¶ 12-13. Compl. Complaint

The Government issued the solicitation as a full Id. at 2 ¶ 6. An amendment to the See id. at

and open competition.

solicitation made proposals due by August 7, 2007. ¶ 12.

Prior to the deadline for proposals, TPG filed an agencylevel protest challenging the decision not to set aside the solicitation for small business competition. Id. at 4 ¶ 18. A

week after the proposal due date, TPG filed a protest with the Government Accountability Office ("GAO"). denied that protest on November 13, 2007. Id. ¶ 20. The GAO

Id. at 7 ¶ 28.

TPG filed this action on November 19, 2007, after the end of the proposal period (see id. at 3 ¶ 12). TPG admitted before

this Court during a hearing upon its application for a temporary protective order that it did not submit a proposal in response to the solicitation.

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ARGUMENT I. Standard Of Review In ruling upon a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the Court accepts as true the undisputed allegations in the complaint, and draws all inferences in favor of the plaintiff. Lavezzo v. United States,

74 Fed. Cl. 502, 507 (Fed. Cl. 2006) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A judicial admission is a formal act,

done in the course of judicial proceedings, which waives or dispenses with the production of evidence, by conceding for purposes of litigation that the proposition of fact alleged by the opponent is true. Stelco Holding Co. v. United States,

44 Fed. Cl. 703, 709 n.12 (Fed. Cl. 1999), appeal dismissed, 31 Fed. Appx. 663 (Fed. Cir. Jan. 16, 2002) (unpublished table decision). II. The Court Should Dismiss This Action For Lack Of Subject Matter Jurisdiction Because It Is Untimely The Court should dismiss this action for lack of subject matter jurisdiction because it is untimely. TPG invokes

28 U.S.C. § 1491(b)(1) as the source of the Court's jurisdiction to entertain this bid protest. Compl. at 2 ¶ 1. To come within

the Court's section 1491(b)(1) bid protest jurisdiction, a protester is required to establish that it is an actual or prospective bidder. Rex Serv. Corp. v. United States, 448 F.3d However, the opportunity to qualify 3

1305, 1307 (Fed. Cir. 2006).

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either as an actual or a prospective bidder ends when the proposal period ends. Id. at 1308. Where a protester could have

submitted a proposal, but did not, it must file a protest with this Court before the end of the proposal period in order to come within the Court's bid protest jurisdiction. See id. It is not

relevant to the Court's jurisdiction that the protester filed a timely agency protest, see id., or a timely GAO protest, see Shirlington Limousine & Transp., Inc. v. United States, 77 Fed. Cl. 157, 167 (Fed. Cl. 2007). Finally, whether a plaintiff is an actual or prospective bidder is not determined by theorizing the relief to which the plaintiff would be entitled if the protest were successful. McRae Industrs., Inc. v. United States, 53 Fed. Cl. 177, 180 (Fed. Cl. 2002). Rather, whether a plaintiff is an actual or See

prospective bidder is a threshold issue that must be resolved before a protestor can argue the merits of whether it is entitled to relief. See id.

Here, although TPG filed earlier agency and GAO protests (Compl. at 4 ¶¶ 18, 20), it did not file its protest in this Court until well after the end of the proposal period (see id. at 3 ¶ 12). In addition, TPG judicially admitted during the

temporary restraining order hearing that it did not submit a proposal in response to the solicitation. Finally, the

Government issued the solicitation as a full and open competition

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(id. at 2 ¶ 6), indicating that nothing prevented TPG from submitting a proposal. Because TPG could have but did not submit

a proposal, and because it filed its protest after the end of the proposal period, TPG does not come within the Court's section 1491(b) bid protest jurisdiction. Therefore, the Court

does not possess subject matter jurisdiction to entertain this action, and should dismiss this action pursuant to RCFC 12(b)(1). CONCLUSION For these reasons, the United States requests that the Court dismiss this action for lack of subject matter jurisdiction. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/Deborah A. Bynum by s/Donald E. Kinner DEBORAH A. BYNUM Assistant Director s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 616-0342 Facsimile: (202) 514-7965 November 26, 2007 Attorneys for Defendant

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Certificate of Filing I hereby certify that on November 26, 2007, a copy of the foregoing Defendant's Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction was filed electronically. I

understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. may access this filing through the Court's system. Parties

s/Timothy P. McIlmail