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

Case 1:06-cv-00668-FMA

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Filed 10/27/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS REILLY'S WHOLESALE PRODUCE, INC., Plaintiff, v. THE UNITED STATES, Defendant, and FOUR SEASONS PRODUCE, INC. Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 06-668C bid protest (Judge Allegra)

DEFENDANT'S MOTION TO DISMISS Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, requests the Court to dismiss as moot the complaint of plaintiff, Reilly's Wholesale Produce, Inc. ("RWPI"). RWPI's complaint for a preliminary injunction, permanent injunction, and declaratory relief is now moot because the agency, the Defense Commissary Agency ("DeCA"), has terminated the interim contract, contract number HDEC02-06-D-0017,1 and the Government Accountability Office ("GAO") has dismissed RWPI's protest of the interim contract. See Attachment 1. This case is a challenge to a decision by DeCA, issued pursuant to the Competition in Contracting Act ("CICA"), 31 U.S.C. § 3553(c), to override an automatic stay issued during a bid protest pending before GAO, No. B-298837. RWPI's GAO protest, AR 6-19, was a post-award challenge to DeCA's award of an interim contract to defendant-intervenor, Four Seasons Produce, Inc. ("FSP"), to supply produce to military commissaries in the Northeastern United

1

See Defendant's Notice of Filing, dated October 19, 2006, with notice of termination

attached.

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States. AR 37-67.2 RWPI's protest triggered the automatic stay provisions of 31 U.S.C. § 3553(d). On September 20, 2006, the Director of DeCA, Patrick B. Nixon, who is also the agency's head of contracting activity, determined that urgent and compelling circumstances that significantly affect the interests of the United States justified overriding the automatic stay of performance for the interim contract. AR 3-5. On September 25, 2006, RWPI filed this action, seeking a temporary restraining order, preliminary and permanent injunctive relief, and declaratory relief. Compl. ¶ 1, Pl. Mot. at 1.3 After briefing and oral argument on RWPI's motion for a preliminary injunction, the Court issued an opinion and order on October 13, 2006, preliminarily enjoining the agency and FSP from performing on the interim contract, but stayed the order through and including, October 20, 2006. On October 18, 2006, DeCA issued a notice of termination for the convenience of the Government upon the interim contract, with an effective date of October 20, 2006. On October 19, 2006, the GAO dismissed RWPI's protest of the interim contract based upon the Government's termination of that contract. With the termination of the interim contract, both the override and the GAO protest became moot. The termination of the interim contract and the dismissal of the GAO protest also renders moot the relief sought in this case. Accordingly, this Court no longer possess subject matter jurisdiction over this complaint. S.K.J. & Assocs. v. United States, 67 Fed. Cl. 218, 230 (2005); CCL Serv. Corp. v. United States, 43 Fed. Cl. 680, 689 (1999).

2

"AR__" refers to the administrative record filed in this matter on September 29, 2006.

"Pl. Mot. __" refers to plaintiff's motion for a temporary restraining order, preliminary injunction, and declaratory relief, filed on September 25, 2006. "Compl.__" refers to the complaint in this matter, filed on September 25, 2006. 2

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For these reasons, we respectfully request that the Court dismiss RWPI's complaint as moot. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director

s/ Deborah A. Bynum DEBORAH A. BYNUM Assistant Director OF COUNSEL: THOMAS D. RATHGEB Deputy General Counsel ­ Litigation Defense Commissary Agency 1300 E Avenue Fort Lee, VA 23801-1800 s/ Dawn S. Conrad DAWN S. CONRAD Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 616-2279 Fax: (202) 305-7643 Attorneys for Defendant

Dated: October 27, 2006

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CERTIFICATE OF FILING I hereby certify that on this 27th day of October, 2006, a copy of the foregoing "DEFENDANT'S MOTION TO DISMISS" and attachment were filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Dawn S. Conrad