Government Technical Services LLC. v. United States

90 Fed. Cl. 522, 2009 U.S. Claims LEXIS 699, 2009 WL 5185383
CourtUnited States Court of Federal Claims
DecidedDecember 29, 2009
DocketNo. 09-630L
StatusPublished
Cited by23 cases

This text of 90 Fed. Cl. 522 (Government Technical Services LLC. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Government Technical Services LLC. v. United States, 90 Fed. Cl. 522, 2009 U.S. Claims LEXIS 699, 2009 WL 5185383 (uscfc 2009).

Opinion

OPINION

HEWITT, Chief Judge.

This is a post-award bid protest brought by Government Technical Services (GTS), a successful offeror for United States Army Corps of Engineers (Corps, government or defendant) Contract W 912DY-05-D-0020 (Contract).2 Before the court are plaintiffs Verified Complaint And Petition for Preliminary And Permanent Injunction (plaintiffs Complaint or Compl.) ¶ 1, ¶ 4 n. 2, docket number (dkt. no.) 1, filed September 28, 2009; Plaintiffs Memorandum in Support of Motion for Preliminary and Permanent Injunction (Pl.’s Mem.) dkt. no. 2, filed September 28, 2009;3 Defendant’s Motion to Dismiss (Def.’s Mot.), dkt. no. 16, filed October 14, 2009; Plaintiffs Response in Opposition to Defendant’s Motion to Dismiss (PL’s Resp.), dkt. no. 19, filed October 21, 2009; and Defendant’s Reply to Plaintiffs Response to Defendant’s Motion to Dismiss (Def.’s Reply), dkt. no. 22, filed October 28, 2009. The court also has before it a copy of the Administrative Record (AR) filed by defendant on October 5, 2009, dkt. no. 13.4

I. Background

On January 4, 2005 the Corps awarded the Contract to Government Technical Services (GTS). Def.’s Mot. 3. Upon winning the Contract, GTS became eligible to compete against other pre-qualified contractors for task orders to provide Electronic Security Systems procurement and installation services (ESS Services) and delivery of security and force protection measures to the Electronic Technology Systems Center, Engineering and Support Center in Huntsville, Alabama. Def.’s Mot. 3. The Contract was a multiple award contract with multiple options. Compl. ¶ 4.

Plaintiffs Complaint characterizes the government’s failure to exercise an option to extend the Contract after the expiration of the initial term of the Contract as an action taken “in connection with a procurement” [524]*524under 28 U.S.C. § 1491(b)(1) (2006). Compl. ¶34. Defendant has moved to dismiss the Complaint for lack of jurisdiction on the grounds that the government’s decision whether to exercise an option is not a matter which is within the jurisdiction of the United States Court of Federal Claims (Court of Federal Claims or this court) under 28 U.S.C. § 1491(b). See Def.’s Mot. 2. The Contract states that “[tjhere is no guarantee that any or all options will be exercised on any or all of the resultant contracts.” Alt 2. The Contract incorporates Federal Acquisition Regulation (FAR) provision 48 C.F.R. 52.217-9 (2009), which governs the extension of the term of the contract through the exercise of options. The extension provision of the contract states:

(a) The Government may extend the term of this contract by written notice to the Contractor within 30 days of the current contract year; provided that the Government gives the Contractor a preliminary notice of its intent to extend at least 60 days before the contract expires. The preliminary notice does not commit the Government to an extension.
(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.
(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed 5 years.

AR 50. It is undisputed that the extension option was not exercised by the Corps as to plaintiffs Contract. The Contract expired on January 3, 2009. See Compl. ¶ 22.

Under the Contract, the Corps awarded five task orders to GTS between February 5, 2007 and the expiration of the contract, January 3, 2009. See id,.; Def.’s Mot. 4-13. A dispute exists between the parties regarding whether or not the task orders were completed successfully. See Compl. ¶¶ 4, 7-14; Def.’s Mot. 4-11. Plaintiff alleges that GTS was treated unfairly by the Corps Contracting Officer Representative (COR) during the performance of Task Order 4 which culminated with the government’s bad faith decision not to exercise the renewal option. See Compl. ¶¶ 8-14, 36-37. Plaintiff alleges that the COR’s “unreasonable and arbitrary position regarding performance” contributed to delays in the completion of Task Order 4. Compl. ¶ 9. Plaintiff also asserts that the COR was rarely available for consultation because of his many scheduling conflicts, further delaying the progress of Task Order 4. Compl. ¶¶ 10-11. Plaintiff maintains that meetings regarding the progress of Task Order 4 between GTS and the Corps were marred by the COR’s untrue “allegations of poor performance [by GTS]” to the Contracting Officer (CO) and other Corps officials. Compl. ¶ 16. GTS contends that, as a result of the bad faith misrepresentations by the COR, it was excluded from competition for task orders, with the result that its contract terminated instead of being extended under the Contract’s option provision. Compl. ¶¶ 36-37. It is on this claim of bad faith in the management of task orders that plaintiff bases its Administrative Dispute Resolution Act (ADRA) claim under 28 U.S.C. § 1491(b). See Compl. ¶ 3.

The Complaint, filed by GTS on September 28, 2009, asserts that it is a bid protest pursuant to the Tucker Act, 28 U.S.C. § 1491, and, in particular, that the option provision of the Contract is within the ADRA jurisdiction of this court. Compl. ¶ 3; Pl.’s Resp. 2. Section 12 of the ADRA added jurisdiction over post-award bid protests to the Tucker Act. Pub.L. No. 104-320 (1996), 110 Stat. 3870, 3874-76 (1996); 28 U.S.C. § 1491(b)(1). Plaintiffs argument relies in principal part on language in a case before the United States Court of Appeals for the Federal Circuit (Federal Circuit), Distributed Solutions, Inc. v. United States (Distributed Solutions), 539 F.3d 1340 (Fed.Cir.2008), stating that “ ‘procurement’ includes 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.” Id. at 1345 (citing 41 U.S.C. § 403(2) (2006)).

Defendant’s Motion to Dismiss argues that plaintiff has failed to state a claim within the jurisdiction of the court pursuant to the [525]*525Rules of the Court of Federal Claims (RCFC) 12(b)(1) or has failed to state a claim on which relief may be granted pursuant to RCFC 12(b)(6). Def.’s Mot. 1, 13, 24. Because the court finds that it is without jurisdiction to hear plaintiffs claim under RCFC 12(b)(1), it does not address defendant’s motion under RCFC 12(b)(6).

II. Discussion

A.Tucker Act Jurisdiction

The United States “is immune from suit save as it consents to be sued.” United States v. Sherwood,

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Bluebook (online)
90 Fed. Cl. 522, 2009 U.S. Claims LEXIS 699, 2009 WL 5185383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/government-technical-services-llc-v-united-states-uscfc-2009.