The protester argued the VA should have set a procurement aside for veteran-owned small businesses. But the protester itself was not a veteran-owned business. If the protester prevailed, then it would be ineligible for award. The COFC concluded the protester wasn’t an interested party.
Bitscopic, Inc. v. United States, COFC No. 23-cv-94
- Moot Arguments – The protester challenged the VA’s decision to procure software on a brand-name basis. During the protest, however, the VA canceled the brand-name procurement and announced competitive procurement. When the relief sought during litigation is granted, the controversy is no longer at issue. The protest claims related to the brand-name restriction were moot.
- Rule of Two Argument – The protester sought to enjoin the VA from purchasing the name-brand software. The protester argued similar software could be provided by at least two veteran-owned small businesses. Under the VA’s Rule of Two, the protester reasoned, the procurement should’ve been set aside for small business. The manufacturer of the software was not small. Thus, the protester argued, the manufacturer was ineligible. Moreover, under the nonmanufacturer rule, a small business supplier could not supply the manufacturer’s software because the manufacturer itself was not small.
- No Standing on Rule of Two Argument – The court noted a problem with the protester’s argument: if the manufacturer was ineligible under Rule of Two, the protester was also ineligible. The protester was not a veteran-owned small business. If a protester’s own theories render it ineligible for award, the protester does not have a substantial chance at award. The court concluded that in light of its own argument, the protester wasn’t an interested party.
- Requested Relief Was too Broad – The court noted even if the protester had standing, the court could not grant the requested relief. The protester asked the court enjoin all future purchases of the name-brand software. But the court only has jurisdiction to enjoin a current or proposed procurement. The court lacked subject matter jurisdiction to enjoin all future procurements of the name-brand software.
The protester is represented by Jeffrey M. Chiow, Eleanor Ross, Christopher O’Brien, and Michael Pusateri of Greenberg Traurig, LLP. The intervenor is represented by Joshua A. Mullen, Joshua A. Funderburke, and Christopher L. Lockwood of Womble Bond Dickinson (US) LLP. The government is represented by Evan Wisser, Brian M. Boynton, Patricia M. McCarthy, and Tara K. Hogan of the Department of Justice as well as Natica Chapman Neely of the Department of Veterans Affairs.
–Case summary by Craig LaChance, Senior Editor
