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November 1, 2005.

HECTOR V. BARRITO, et al., Respondents.

The opinion of the court was delivered by: ELLEN HUVELLE, District Judge


Plaintiff Advanced Systems Technology, Inc. ("AST") currently serves as the incumbent contractor on two United States Army contracts supporting the Training and Doctrine Command Analysis Centers ("TRAC") at Fort Leavenworth, Kansas and White Sands Missile Range, New Mexico. Plaintiff has filed a Motion for a Preliminary Injunction challenging the decision of the Small Business Administration ("SBA") to classify two follow-on contracts for the work currently performed by AST in such a manner as to prevent AST from bidding for the contracts. Currently before the Court is defendant SBA's Motion to Dismiss ("Def.'s Mot.") for lack of jurisdiction. Defendant asserts that under Section 12(d) of the Administrative Dispute Resolution Act, Pub.L. No. 104-320, 110 Stat. 3870 (1996), exclusive jurisdiction over all claims related to government contract procurement lie in the Court of Federal Claims. (Def.'s Mot. at 7.) Because the Court agrees that plaintiff's claims are not properly before it, defendant's motion will be granted and plaintiff's complaint shall be dismissed without prejudice. BACKGROUND

I. Statutory Background

  Pursuant to the Small Business Act, 15 U.S.C. §§ 631-657, certain federal government procurement contracts must be reserved for small business concerns. Id. § 644. The SBA is granted authority under the Small Business Act to promulgate by regulation applicable size standards to determine which entities qualify as small business concerns. Id. § 632. The SBA makes use of the North American Industry Classification ("NAICS") codes to determine the maximum number of employees or annual receipts that a business can have and receive accommodation as a small business with respect to each contract solicitation. See 13 C.F.R. § 121.201. The NAICS codes are industry specific; a code designation is supposed to take into account the specific characteristics of the product or service being offered. See 13 C.F.R. §§ 121.102; 121.402. Any party wishing to contest a code designation must file an appeal with the SBA's Office of Hearings and Appeals ("OHA") within 10 calendar days of the issuance of the initial solicitation. 48 C.F.R. § 9.303(c)(1); 13 C.F.R. § 134.304(a)(3). After reviewing evidence and argument presented by the Contracting Officer ("CO") at SBA who made the initial NAICS code designation, 13 C.F.R. Part 134, the OHA evaluates whether the CO made a "clear error of fact or law" in assigning the code. 13 C.F.R. § 134.314. If the OHA issues its decision before the date when offers on the solicitation are due, "the decision shall be final and the solicitation must be amended to reflect the decision, if appropriate." 48 C.F.R. § 19.303(c)(5).

  II. Factual Background

  At issue are two bid solicitations issued by the Army Contracting Agency, Northern Region Contracting Center ("ACA"). The first, Solicitation No. W91QF4-05-0008 ("Solicitation 0008"), is for support of the United States Army Training and Doctrine Command Analysis Center ("TRAC") at Fort Leavenworth, Kansas and was issued on August 5, 2005. (Compl. ¶ 8.) The second, Solicitation No. W91QF4-05-R-011 ("Solicitation 0011"), was issued on August 30, 2005 and is for support of TRAC at White Sands Missile Range, New Mexico. (Id. ¶ 25.) Plaintiff is the incumbent contractor on both contracts and Solicitations 0008 and 0011 are "follow on" solicitations for the work currently being performed under plaintiff's existing contracts. (Id. ¶¶ 10, 27.) Solicitations 0008 and 0011 were limited solely to small businesses and were initially designated a NAICS code of 541710, which corresponds to a 500 employee size standard. (Id. ¶¶ 12, 26.)

  On August 19, 2005, RhinoCorps, Ltd. ("RhinoCorps") filed an appeal to the initial code designation for Solicitation 0008 with the OHA. (Id. ¶ 14.) On September 8, 2005, it did the same with respect to Solicitation 0011. (Id. ¶ 28.) Plaintiff received no notice of RhinoCorps' appeals. (Id. ¶¶ 19, 29.) On September 23, 2005, the OHA issued a decision changing the NAICS code for Solicitation 0008 to 541690, which imposes a $6 million annual receipts standard. (Id. ¶ 15.) Plaintiff is ineligible to bid as a small business under the new NAICS code. (Id. ¶ 16.) On October 3, 2005, plaintiff filed an appeal with the OHA protesting the code change. (Id. ¶ 23.) The OHA dismissed AST's appeal on October 14, 2005, finding that it had already considered and rejected the code designation endorsed by plaintiff with respect to Solicitation 0008. (Id. ¶ 24.)

  On October 5, 2005, AST filed a Motion to Intervene in the appeal proceeding regarding Solicitation 0011. (Id. ¶ 31.) AST's motion was denied by OHA on October 7, 2005, on the grounds that the record had closed on September 28, 2005. (Id. ¶ 33.) The same day, the OHA issued a decision finding the appropriate code designation for Solicitation 0011 to be 541511, which corresponds to a $21 million annual receipts standard. (Id. ¶ 35.) AST is not eligible to bid under NAICS code 541511 because its receipts exceed $21 million annually. (Id. ¶ 37.) On October 17, plaintiff filed with the OHA an appeal regarding the amendment of Solicitation 0011 and a Motion for Reconsideration of the OHA's October 7 orders. (Id. ¶ 40.) The Motion for Reconsideration was denied by the OHA subsequent to the filing of this case. (Pl.'s Opp'n at 1 n. 1.)

  On October 24, 2005, AST filed a three-count complaint alleging violations of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., and the Due Process Clause of the Fifth Amendment. Plaintiff's complaint seeks declaratory relief vacating the OHA's actions with respect to RhinoCorps' code appeals as arbitrary and capricious for failing to provide AST with notice and an opportunity to respond. Plaintiff further filed a Motion for a Temporary Restraining Order and a Motion for a Preliminary Injunction, seeking to enjoin the government from awarding a contract under Solicitation 0008 and requiring it to extend the bid deadline for Solicitation 0011, which is currently set for Friday, November 4, 2005. SBA now moves for dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Because a failure to timely resolve the jurisdictional issue would impair plaintiff's ability to obtain substantive relief in the proper forum, the Court ordered briefing on an expedited schedule and this opinion was issued within twenty-four hours of receipt of the parties' briefs.


  I. Standard of Review

  "Jurisdiction must be established before a federal court may proceed to any other question." Galvan v. Fed. Prison. Indus., 199 F.3d 461, 463 (D.C. Cir. 1999). A court may not assume without deciding that jurisdiction exists because to do so exceeds the judicial power conferred under Article III of the Constitution. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998); Stewart v. Ashcroft, 352 F.3d 422, 424 (D.C. Cir. 2003). "Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 7 Wall. 506, 514, 19 L. Ed. 264 (1868).

  "On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Thompson, 120 F. Supp. 2d at 81; Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). "In reviewing a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the court must accept the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor." Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81 (D.D.C. 2000) (citations omitted). While a court may look beyond the allegations ...

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