Software Testing Solutions, Inc. v. United States

58 Fed. Cl. 533, 2003 U.S. Claims LEXIS 337, 2003 WL 22794327
CourtUnited States Court of Federal Claims
DecidedNovember 21, 2003
DocketNo. 03-2655 C
StatusPublished
Cited by39 cases

This text of 58 Fed. Cl. 533 (Software Testing Solutions, Inc. 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
Software Testing Solutions, Inc. v. United States, 58 Fed. Cl. 533, 2003 U.S. Claims LEXIS 337, 2003 WL 22794327 (uscfc 2003).

Opinion

ORDER

ALLEGRA, Judge.

This post-award bid protest action is before the court on plaintiffs application for a temporary restraining order. After careful consideration of the briefs filed by the parties, and for the reasons discussed below, the court DENIES plaintiff’s application.

I. FACTS1

On June 19, 2003, the Veterans Administration Health Administration Center (VA) in Denver, Colorado issued a Request for Proposals (RFP) No. 741-15-03, for information technology services, personnel, material and equipment to be used in independent testing of the VA’s enrollment database computer program. Proposals were due June 30, 2003. Six offerors, including plaintiff Software Testing Systems (STS) submitted timely bids in response to the solicitation. On July 22, 2003, the VA awarded the contract to Sys-Test Labs (SysTest).

On July 23, 2003, STS filed a protest with the General Accounting Office (GAO), claiming that the RFP allowed insufficient time for the receipt of offers and that the RFP’s requirements unfairly favored SysTest because they mirrored capabilities listed on [535]*535SysTest’s website. On July 25, 2003, the GAO dismissed STS’s protest as untimely. It opined that the alleged improprieties in the solicitation were apparent prior to the closing time for receipt of proposals and thus, under the GAO’s rules, should have been raised in a protest prior to that closing time. See 4 C.F.R. § 21.2(a)(1) (2003). The GAO also deemed plaintiffs other assertions without factual support.

Subsequently, the GAO rejected two requests for reconsideration on August 5, 2003, and September 11, 2003, respectively. In the second of these opinions, while reiterating its view that the original protest was untimely, GAO also rejected plaintiffs claim that the RFP unfairly favored SysTest because the specifications had been “written around” features of one of SysTest’s products. Citing prior opinions, the GAO observed that it had previously held “that specifications based on a particular product are not improper in and of themselves ... as long as the specification is reasonably related to the agency’s minimum needs.”

On November 12, 2003, plaintiff filed a post-award bid protest in this court challenging the VA’s contract award to SysTest and raising essentially the same allegations it made before the GAO. Insofar as is relevant here, plaintiff seeks a temporary restraining order preventing the United States from proceeding further with the performance of the contract in question. On November 18, 2003, plaintiff filed a memorandum in support of its application for a temporary restraining order; on November 20, 2003, defendant filed its opposition to the application.

II. DISCUSSION

A. Preliminary matters

Defendant initially argues that this protest is untimely as a matter of law, irrespective of the application of the four injunctive factors discussed below. Specifically, it contends that this court ought to apply the “GAO timeliness rule” under which a protestor must file its protest based on errors on the face of a solicitation prior to the time for receipt of initial proposals. 4 C.F.R. § 21.2(a)(1) (2003). Of course, this is the rule invoked by the GAO in dismissing plaintiffs administrative protest. Defendant asserts, with clear support, that several decisions of this court have applied this timeliness requirement in “appropriate circumstances.” See, e.g., ABF Freight System, Inc. v. United States, 55 Fed.Cl. 392, 399 (2003) (quoting N.C. Div. of Sens, for Blind v. United States, 53 Fed.Cl. 147, 165 (2002)); see also EDP Enters., Inc. v. United States, 56 Fed.Cl. 498, 500 (2003).

Recognizing that there may be several ways to read these opinions, this court, with all due respect, fails to see how a GAO rule that self-limits that agency’s advisory role constitutes a limit, either legally or prudentially, on this court’s exercise of jurisdiction. In this regard, 28 U.S.C. § 1491(b)(1) (2000) explicitly provides that this court shall have bid protest jurisdiction “without regard to whether suit is instituted before or after the contract is awarded.” In this court’s view, while delay in bringing a protest undoubtedly may be considered in the multifactored analysis of whether injunctive relief is warranted, absent the application of equitable doctrines such as laches, such delay does not constitute an independent legal ground for rejecting a request for injunctive relief. See Miss. Dept. of Rehabilitation Sens. v. United States, No. 03-2038C at 3-5, 58 Fed.Cl. 371, 372-73 (Nov. 20, 2003) (adopting a similar position). Indeed, were this court to rule otherwise, it seemingly would have to apply the entire GAO rale, which includes exceptions to the timeliness requirement for “good cause shown” or if a protest raises “issues of significance.” 4 C.F.R. § 21.2(c). This court cannot imagine that Congress intended this court’s bid protest jurisdiction (or the prudential exercise thereof) to rise or fall on such squishy considerations. As the Supreme Court has said, “ ‘[t]he exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’ ” United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383, 70 S.Ct. 207, 94 L.Ed. 171 (1949) (quoting Anderson v. Hayes Constr. Co., 243 N.Y. 140, 147, 153 N.E. 28, 29-30 [536]*536(1926) (Cardozo, J.)); see also Ins. Co. of the West v. United States, 243 F.3d 1367, 1373 (Fed.Cir.2001).

Now a few words about laches. Although defendant has not yet formally pled any affirmative defenses, the equitable doctrine of laches may well be appropriately invoked here. That defense requires a showing of: “(1) unreasonable and unexcused delay by the claimant, and (2) prejudice to the other party, either economic prejudice or ‘defense prejudice.’ ” JANA, Inc. v. United States, 936 F.2d 1265, 1269 (Fed.Cir.1991); see also Cornetta v. United States, 851 F.2d 1372, 1377-78 (Fed.Cir.1988) (en banc); Hermes Consol., Inc. v. United States, 58 Fed.Cl. 3, 20, 2003 WL 22416284 at *20 (2003).2 According to the Federal Circuit, “Maches must be applied ‘apart [from] and irrespective of the statute of limitations.” Cornetta, 851 F.2d at 1377-78 (quoting Pepper v. United States, 794 F.2d 1571, 1573 (Fed.Cir.1986)). “No fixed boundaries define the length of time deemed unreasonable,” this court has added, “and the duration should be viewed in light of the circumstances ... measured from the time the claimant knew or should have known about his claim to the date of the suit.” Aero Union Corp. v.

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58 Fed. Cl. 533, 2003 U.S. Claims LEXIS 337, 2003 WL 22794327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/software-testing-solutions-inc-v-united-states-uscfc-2003.