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Roxco v. United States

March 19, 1999


Before Clevenger, Bryson, and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Bryson, Circuit Judge.

This is a bid protest case. The protester was previously awarded a contract identical to the one offered in the solicitation under protest. Although both the government and the protester contend that the previous award affects the outcome of this protest, we agree with the trial court that the bid protest action must be resolved without regard to the previous award, and we therefore affirm the judgment of the Court of Federal Claims.


In December 1996, the United States Navy solicited bids for the construction of bachelor enlisted quarters in New Orleans, Louisiana. The solicitation left the contractors substantial discretion in determining the design of the quarters and required only that the number of units be between 60 and 80. The solicitation also set forth criteria by which submitted proposals would be evaluated. Under the designated criteria, the technical aspects and the price of each proposal would be weighed equally.

The technical aspects included quality-of-life concerns, square footage, and project quality control. The price was assessed as the sum of the base price for the designed quarters, the estimated cost of changed work, a completion schedule adjustment, and the price of a required option of 12 additional units. The solicitation did not take into account the number of units in evaluating the price.

Three companies submitted proposals, including Roxco, Ltd., and Spartan Building Corporation. Roxco's proposed quarters included 62 units while Spartan's had 76. The Navy evaluated the proposals in view of the solicitation criteria. Roxco's proposal was deemed to have superior technical aspects and superior price. The Navy awarded the contract to Roxco in May 1997.

As part of the post-award process, the Navy revealed the details of Roxco's proposal to Spartan as well as the results of the Navy's evaluation of both proposals. With this information in hand, Spartan filed an agency-level protest contending that the solicitation was improper because it did not assess price on a per-unit basis. Spartan noted that it would have prevailed in the price competition if the base price used in the evaluation formula had been adjusted for the number of units included in each contractor's proposal.

The Navy agreed with Spartan that the solicitation contained flawed criteria. It therefore revised the criteria to take per-unit price into account and published a new solicitation on November 14, 1997. The second solicitation mirrored the first with the exception of the price evaluation formula. Although the Navy had not terminated the previously awarded contract at that time, Roxco promptly brought an action to enjoin the bid process. Subsequently, the Navy terminated Roxco's contract for the convenience of the government.

At a hearing on Roxco's request for an injunction, the government argued that the Court of Federal Claims lacked jurisdiction to entertain Roxco's action. Roxco responded that the court could grant relief under its bid protest jurisdiction. Specifically, Roxco requested that the court enjoin the second solicitation, enjoin an award of a contract to build the quarters to anyone other than Roxco, and declare Roxco's original contract to be valid and binding.

Following the hearing, the trial court rejected the government's jurisdictional challenge but ruled in favor of the government on the merits. The court then dismissed the complaint, and Roxco appealed.


"The bid protest portion of the Tucker Act provides as follows: Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed award or the award of a contract or any alleged violation of a statute or regulation in connection with a procurement or a proposed procurement." 28 U.S.C. § 1491(b)(1).

Roxco invokes that statutory provision in contending that it is entitled to protest the second solicitation by the Navy. The government responds that Roxco, as a contract awardee, is not an "interested party" within the meaning of the bid protest statute because Roxco's interests were not affected by the outcome of the solicitation. The government argues that if Roxco prevailed in the bid protest action, it would simply retain the same contract rights it already enjoyed, while if Roxco did not prevail, its rights under the previously awarded contract would not be altered. To be sure, if the termination of Roxco's contract is invalidated -- a matter not at issue in the bid protest action -- the second solicitation will be irrelevant to Roxco. But in assessing Roxco's interest in the second solicitation, the court cannot assume that the termination will be invalidated, and if the termination is not ultimately invalidated, Roxco would clearly be better off if its protest of the second solicitation were sustained. Roxco therefore qualifies as an "interested party" in the second solicitation because of the possibility that the second solicitation will determine who ultimately obtains a valid contract to build the project at issue.

The government next argues that Roxco's bid protest action is foreclosed because the Contract Disputes Act (CDA), 41 U.S.C. ยง 601 et seq., exclusively governs the relief sought by Roxco and Roxco had not met the jurisdictional prerequisites of the CDA at the time it filed suit. In making that argument, the government focuses on Roxco's request for relief in the form of a declaration that its existing award, under the first solicitation, was valid and binding. The government is correct that such a declaration could not be granted as relief in this bid protest action, because it does not concern the solicitation that is the subject of this lawsuit. Roxco, however, asked for other forms of relief that gave the trial court ...

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