Government’s motion to dismiss protest for lack of jurisdiction is granted. The protester challenged an SBA size determination. The government argued the protest arose in connection with a task order, so the court lacked jurisdiction under FASA. The protester contended that its challenge to the size determination was distinct from the task order. The court sided with the government, finding that the protester’s complaint drew a causal connection between the task order and the size determination. The size determination and the task order were connected. The court couldn’t hear the case.
Background
The Army awarded a task order to 22nd Century Technologies. The task order had been restricted to small businesses. Unsuccessful offerors filed size protests. The SBA Area Office determined that 22nd Century was not small. The SBA’s Office of Hearing and Appeals affirmed. 22nd Century filed a protest under the Tucker Act in the Court of Federal Claims objecting to the size determination.
The government moved to dismiss, arguing the protest was connected to a task order so the court lacked jurisdiction under the Federal Acquisition Streamlining Act (FASA). 22nd Century argued that it was only challenging the size determination, which was separate from the task order, so the FASA bar didn’t apply.
Legal Analysis
- Court Applies “Logically Distinct” Test — FASA bars courts from hearing protests in connection with task orders. To assess whether a challenge is connected to a task order, the court assesses whether the challenge is logically distinct from the order. If the challenge is distinct from the order, the FASA bar doesn’t apply
- The Size Challenge Was Connected to a Task Order — 22nd Century’s challenge was not logically distinct from the task order. The allegations in the complaint drew a direct causal connection to the task order. 22nd Century based its standing on the task order. The suit challenged the SBA’s interpretation of the task order. The challenge was plainly connected to the task order.
22nd Century is represented by W. Brad English, Jon D. Levin, J. Dale Gipson, Emily J. Chancey, and Nicholos P. Greer. The intervenor, Fibertek, is represented by Seth H. Locke and Brenna D. Duncan. The government is represented by Mikki Cottet, Brian M. Boynton, Martin F. Hockey, Jr., and Patricia M. McCarthy of the Department of Justice as well as Dana Chase and Major Jason Coffey of the Army and Christopher J. McClintock of the Small Business Administration.
