22nd Century Technologies, Inc. v. United States

57 F.4th 993

• Court: Court of Appeals for the Federal Circuit
• Decided: January 10, 2023
• Docket: 22-1275
• Status: Published

Opinion

Case: 22-1275 Document: 42 Page: 1 Filed: 01/10/2023

United States Court of Appeals for the Federal Circuit ______________________

22ND CENTURY TECHNOLOGIES, INC., Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee

FIBERTEK, INC., Defendant ______________________

2022-1275 ______________________

Appeal from the United States Court of Federal Claims in No. 1:21-cv-01922-NBF, Senior Judge Nancy B. Fire- stone. ______________________

Decided: January 10, 2023 ______________________

WALTER BRAD ENGLISH, Maynard, Cooper & Gale, PC, Huntsville, AL, argued for plaintiff-appellant. Also repre- sented by EMILY J. CHANCEY, NICHOLAS PATRICK GREER, MARY ANN HANKE, JON DAVIDSON LEVIN; JOSHUA B. DUVALL, Washington, DC.

MIKKI COTTET, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. Case: 22-1275 Document: 42 Page: 2 Filed: 01/10/2023

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BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M. MCCARTHY; DANA J. CHASE, JASON COFFEY, Contract Liti- gation and Intellectual Property Division, United States Army Legal Service Agency, Fort Belvoir, VA; CHRISTOPHER MCCLINTOCK, Office of Litigation, United States Small Business Administration, Washington, DC. ______________________

Before LOURIE, DYK, and HUGHES, Circuit Judges. DYK, Circuit Judge. 22nd Century Technologies, Inc. (“22nd Century”) ap- peals a decision of the Court of Federal Claims (“Claims Court”) holding that the Claims Court lacked jurisdiction to review 22nd Century’s challenge to a size determination made by the U.S. Small Business Association (“SBA”) Of- fice of Hearings and Appeals (“OHA”). Because OHA’s size determination was made in connection with the issuance of a task order, the Federal Acquisition Streamlining Act of 1994 (“FASA”), 10 U.S.C. § 3406(f), barred the Claims Court from exercising jurisdiction over 22nd Century’s bid protest. A claim based on improper contract termination would fall under the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101–09, and 22nd Century failed to present its claim to the contracting officer as required by the CDA. We affirm. BACKGROUND This case relates to a task order issued under an Indef- inite Delivery, Indefinite Quantity Multiple Award (“IDIQ”) contract. An agency can issue IDIQ contracts to multiple companies, which may then be eligible to compete for subsequent task orders solicited under the overarching IDIQ contract. The IDIQ procurement vehicle allows an agency to issue a broad solicitation for a general procure- ment goal and then more detailed solicitations for individ- ual task orders as specific needs arise. Case: 22-1275 Document: 42 Page: 3 Filed: 01/10/2023

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On March 25, 2015, the Department of the Army (“Army”) solicited proposals for a Responsive Strategic Sourcing for Services IDIQ Contract (“RS3 IDIQ Solicita- tion”). The Army issued the solicitation to secure “knowledge-based support services for requirements with Command, Control, Communications, Computers, Intelli- gence, Surveillance, and Reconnaissance related needs.” J.A. 24. The solicitation was unrestricted, that is, not set aside for small businesses. Though the solicitation was not itself limited to small businesses, it allowed the Army to restrict subsequent task order competitions under the con- tract to small businesses, in which case “[o]nly contractors eligible to compete as a small business” could submit bids. J.A. 60 (quoting RS3 IDIQ Solicitation § H.2.4); see also J.A. 25. On May 6, 2015, 22nd Century submitted a proposal in response to the RS3 IDIQ Solicitation, and on March 1, 2019, the Army awarded 22nd Century an RS3 IDIQ con- tract (“RS3 IDIQ Contract”). In 2015, when 22nd Century submitted its proposal, it was a small business. On December 29, 2020, the Army issued a Task Order Request for Proposals (“Task Order RFP”) under the RS3 IDIQ Contract, which provided that “[o]nly contractors eli- gible to compete as a small business may submit a proposal in response to the task order RFP.” J.A. 60–61 (citation omitted); see also J.A. 25. The Task Order RFP required a contractor submitting a bid to represent whether or not it was a small business for purposes of the task order. On February 8, 2021, 22nd Century submitted a proposal for the Task Order RFP. Though it was no longer a small busi- ness at the time of the task order solicitation, 22nd Century represented that it had been “a small business for this [RS3] IDIQ,” i.e., at the time of its original RS3 IDIQ pro- posal. J.A. 26. Case: 22-1275 Document: 42 Page: 4 Filed: 01/10/2023

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On May 7, 2021, the Army issued the task order to 22nd Century, rejecting the bids of two other companies, Fibertek, Inc. and Ideal Innovations, Inc. Fibertek and Ideal Innovations timely filed size protests with the SBA, alleging that 22nd Century was ineligible for the award be- cause it was not a small business at the time it submitted the Task Order bid as required by the Task Order RFP. On June 4, 2021, the SBA Area Office issued two nearly identical formal size determinations in response to the pro- tests, finding that 22nd Century was “other-than-small” for purposes of the Task Order RFP. J.A. 43; J.A. 52. As part of the size determinations, the Area Office held that “when the contracting officer requested all offerors to certify to or ‘checking off’ [sic] the appropriate box to indicate whether they are a small business . . . or not, even though he did not specifically state so, he effectively requested all offerors to recertify for the Task Order.” J.A. 42; J.A. 51. On June 16, 2021, 22nd Century appealed the Area Of- fice’s size determinations to the SBA OHA, and on Septem- ber 21, 2021, OHA affirmed the size determinations. OHA concluded that “the Area Office properly determined the Task Order Solicitation as requiring recertification at the task order level.” J.A. 73. Following the SBA’s size deter- minations, the Army terminated the task order awarded to 22nd Century. On September 28, 2021, 22nd Century brought the pre- sent bid protest under the Tucker Act, 28 U.S.C. § 1491(b)(1), requesting that the Claims Court set aside OHA’s size determination and enjoin the Army from termi- nating the task order based on OHA’s size determination. 22nd Century claimed that “[b]ecause the [Task Order RFP] did not contain an explicit request for recertification, SBA must measure 22nd Century’s size on the date it sub- mitted its proposal for the RS3 IDIQ, when it was unques- tionably small.” J.A. 28 ¶ 26. Case: 22-1275 Document: 42 Page: 5 Filed: 01/10/2023

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The government and Fibertek, the new task order awardee, both moved to dismiss the complaint, arguing that FASA, 10 U.S.C. § 3406(f), 1 barred review of 22nd Century’s bid protest because the challenged actions by the SBA and the Army were “in connection with the issuance or proposed issuance of a task or delivery order.” J.A. 2 n.2 (quoting the provision now located at 10 U.S.C. § 3406(f)(1)). The government and Fibertek also argued that 22nd Century had failed to allege a ripe termination claim under the CDA and § 1491(a)(2) of the Tucker Act. The Claims Court granted the motions to dismiss, hold- ing that FASA barred jurisdiction over 22nd Century’s claims. This appeal followed. We have jurisdiction under 28 U.S.C. § 1295(a)(3). DISCUSSION “We review decisions of the [Claims Court] on the scope of its jurisdiction . . . [and] questions of statutory and reg- ulatory construction without deference.” SRA Int’l, Inc. v. United States, 766 F.3d 1409, 1412 (Fed. Cir. 2014) (cita- tions omitted). The Claims Court’s jurisdiction “is circumscribed solely by the Tucker Act, 28 U.S.C. § 1491.” Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993). Under the Claims Court’s Tucker Act bid protest jurisdiction, the Claims Court may review “an action by an interested party objecting to [(i)] a solicitation by a Federal agency for bids or proposals for a proposed contract or to [(ii)] a proposed award or the award of a contract or [(iii)] any alleged viola- tion of statute or regulation in connection with a

1 This provision, formerly located at 10 U.S.C. § 2304c(e), was moved to § 3406(f) effective January 1, 2022. Pub. L. No. 116-283, div. A, tit. XVIII, sec. 1820(e)(1), 134 Stat. 3388, 4194 (2021). Case: 22-1275 Document: 42 Page: 6 Filed: 01/10/2023

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procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). The Claims Court can review OHA decisions made “in connection with a procurement or a proposed pro- curement” under the third prong of § 1491(b)(1) as part of a bid protest. See Palladian Partners, Inc. v. United States, 783 F.3d 1243, 1254 (Fed. Cir. 2015). However, in FASA, 10 U.S.C. § 3406(f), Congress ex- pressly limited the Claims Court’s jurisdiction in the con- text of protests to task or delivery orders. Subsection 3406(f)(1) provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order,” with two narrow exceptions, namely, when the order “increases the scope, period, or maximum value of the contract under which the order is issued” or the order is “valued in excess of $25,000,000.” 2 22nd Cen- tury does not assert that either exception applies here. We have explained that “[t]he statutory language of FASA is clear and gives the [Claims Court] no room to exercise

2 In its entirety, § 3406(f) states: (1) A protest is not authorized in connection with the issuance or proposed issuance of a task or de- livery order except for— (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $25,000,000. (2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B). Case: 22-1275 Document: 42 Page: 7 Filed: 01/10/2023

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jurisdiction over claims made ‘in connection with the issu- ance or proposed issuance of a task or delivery order.’” SRA Int’l, 766 F.3d at 1413. 22nd Century’s complaint explicitly asserts jurisdic- tion under § 1491(b)(1) as a bid protest. The caption of the complaint even identifies the complaint as a “bid protest.” J.A. 23. The Claims Court held that “22nd Century’s chal- lenge is clearly made in connection with the issuance of a task order and is therefore barred by FASA.” J.A. 11. The Claims Court concluded this was so because “the allega- tions made and relief sought in 22nd Century’s complaint draw a direct and causal connection between the task order and OHA and the Army’s challenged decisions.” J.A. 11 (citation omitted). The Claims Court rejected 22nd Cen- tury’s argument that its claims were not barred by FASA because “OHA’s size determination is a ‘discrete and sepa- rate’ decision temporally distanced from the Army’s task order award to 22nd Century.” J.A. 11–12 (citation omit- ted). On appeal, 22nd Century contends FASA’s task order bid protest bar does not reach OHA’s size determination, because a size protest is “something totally different” than a bid protest. Appellant’s Br. 7. As 22nd Century notes, in Harmonia Holdings Group, LLC v. United States, we did describe differences between size protests brought at the SBA and bid protests brought at the Claims Court. 999 F.3d 1397, 1402–03 (Fed. Cir. 2021). We explained: A “size protest” refers to an administrative chal- lenge to an offeror’s size which is filed with the SBA. A “bid protest,” by contrast, generally chal- lenges actions that an agency takes, or fails to take, in connection with a procurement or proposed pro- curement. Case: 22-1275 Document: 42 Page: 8 Filed: 01/10/2023

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Id. (citations omitted). But Harmonia never suggested that size protests offered a separate basis for Claims Court jurisdiction. Indeed, Harmonia cited with approval the Claims Court’s decision in White Hawk Group, Inc. v. United States, which held that the Claims Court “lacks any authority to [separately] entertain a size protest.” 91 Fed. Cl. 669, 673 (2010) (citation omitted). To be sure, as the Claims Court recognized, the court also has jurisdiction to consider the propriety of an SBA size determination in a bid protest case or other contract action over which it has jurisdiction. Where an SBA deci- sion is made “in connection with a proposed procurement,” the Claims Court would normally have jurisdiction to re- view that decision under § 1491(b)(1). Palladium Partners, 783 F.3d at 1254. Indeed, “a disappointed bidder must gen- erally exhaust its administrative remedies at the SBA be- fore seeking judicial review of a size protest” in the context of a bid protest or other contract case. Harmonia Holdings Grp., 999 F.3d at 1402; see 13 C.F.R. § 121.1101(a) (“The OHA appeal is an administrative remedy that must be ex- hausted before judicial review of a formal size determina- tion may be sought in a court.”). But bid protest jurisdiction here is barred by FASA. FASA’s unambiguous language categorically bars jurisdic- tion over bid protests, even those involving a challenge to an SBA size determination where the size determination is challenged “in connection with the issuance of a task or de- livery order.” 10 U.S.C. § 3406(f)(1). FASA “effectively eliminates all judicial review for protests made in connec- tion with a procurement designated as a task order—per- haps even in the event of an agency’s egregious, or even criminal, conduct.” SRA Int’l, 766 F.3d at 1413. 3 The

3 Relying on a recent Claims Court decision, Tolliver Group, Inc. v. United States, 151 Fed. Cl. 70 (2020), 22nd Case: 22-1275 Document: 42 Page: 9 Filed: 01/10/2023

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Claims Court correctly held that 22nd Century’s challenge here “is clearly made in connection with the issuance of a task order and is therefore barred by FASA.” J.A. 11. That is so because 22nd Century’s challenge is to the alleged fail- ure of the task order to require bidders to recertify as small businesses, and 22nd Century’s claim is that the only rele- vant size requirement for purposes of its task order pro- posal was in the original RS3 IDIQ Contract. 22nd Century alternatively argues that, despite its own complaint’s reliance on bid protest jurisdiction, this case is in reality a challenge to the termination of the con- tract, an event logically distinct and temporally discon- nected from the issuance of the task order to 22nd Century. 4 Even if a breach of contract claim under these

Century argues that FASA does not necessarily reach bid protests brought under the third prong of § 1491(b)(1), re- lating to “action[s] . . . objecting to . . . any alleged violation of statute or regulation in connection with a procurement or proposed procurement.” This argument is foreclosed by SRA International, which held that FASA reached protests brought under § 1491(b)(1)—including those brought un- der the final prong—as long as the protests are “in connec- tion with the issuance or proposed issuance of a task or delivery order.” See SRA Int’l, 766 F.3d at 1413. Indeed, the contractor’s challenge in SRA International was brought under the third prong of § 1491(b)(1), and through- out the opinion we described the challenge as a “protest” for both purposes of § 1491(b)(1) and FASA. See id. at 1411–14. 4 22nd Century argues that FASA adopts the defini- tion of “protest” in another related statute, the Competition in Contracting Act, 31 U.S.C. § 3551(1). If that definition were applicable, an issue we need not decide, a “protest” would include a written objection to “[a] termination or Case: 22-1275 Document: 42 Page: 10 Filed: 01/10/2023

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circumstances would not be subject to the FASA bar—an issue we do not decide—such a challenge would have to be brought pursuant to the CDA and would have to comply with CDA requirements. The Tucker Act, 28 U.S.C. § 1491(a)(2), provides that “[t]he [Claims Court] shall have jurisdiction to render judgment upon any claim by or against, or dispute with a contractor arising under [the CDA], including a dispute concerning termination of a con- tract, . . . on which a decision of the contracting officer has been issued under section 6 of [the CDA].” 22nd Century has no claim for relief under the CDA. First, while nonmonetary claims may be asserted under the CDA, see § 1491(a)(2); Todd Const., L.P. v. United States, 656 F.3d 1306, 1310–11 (Fed. Cir. 2011), we are aware of no case authorizing an injunction under the CDA to prevent termination, as 22nd Century has requested here. Even if such an injunction were possible, there is a sec- ond more obvious problem. To bring a case under the CDA, 22nd Century would have had to have first filed a claim with, and received a final decision from, the contracting of- ficer, neither of which 22nd Century alleges occurred here. See 41 U.S.C. § 7103(g); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (“Under the CDA, a final deci- sion by a [contracting officer] on a ‘claim’ is a prerequisite

cancellation of an award of . . . a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.” 31 U.S.C. § 3551(1)(D). 22nd Century’s challenge here may well sat- isfy this definition as an objection to the termination of the task order based on an impropriety in the task order award, making it even clearer that it is a “protest” subject to FASA. Case: 22-1275 Document: 42 Page: 11 Filed: 01/10/2023

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for . . . jurisdiction.”). 22nd Century’s alternative termina- tion argument is barred for failure to comply with CDA re- quirements. CONCLUSION The Claims Court correctly concluded it lacked juris- diction. We affirm. AFFIRMED