Protest challenging the government’s failure to conduct a procurement is dismissed for lack of jurisdiction. The protester alleged that the government had made a procurement decision by deciding to use government-owned items rather than acquire those items from the private sector. The court, however, found that the government’s decision to use product that it already owns is not a procurement decision. Because the protest did not implicate a procurement, the court lacked jurisdiction under the Tucker Act.
Desktop Alert Inc. filed a bid protest against the Army. Although the cause of action was styled as a protest, Desktop did not identify a specific procurement that it was protesting. Rather, Desktop challenged the absence of a procurement. Specifically, Desktop argued that the Army should conduct a procurement for a warning program for the Mass Warning and Notification System. The Army had decided to use the government-owned “Alert!” system for Mass Warning program. Desktop contended that the Alert! system functioned poorly and that there were better systems—including Desktop’s—that were available commercially. Instead of using the government-owned system, Desktop argued, the Army should have acquired one from the private sector.
The Army moved to dismiss the protest, arguing that Desktop’s failure to identify a specific procurement meant that the court lacked jurisdiction under the Tucker Act. Dekstop, however, countered that lack of a specific procurement was irrelevant. Rather, Desktop asserted that the Army’s decision to choose a government-owned product over another product was a procurement planning decision over which the court had jurisdiction.
The court agreed with the government. To establish bid protest jurisdiction, a plaintiff must demonstrate that the government at least initiated a procurement, or the process for determining a need for acquisition. The government’s decision to use a product it already owns is not a procurement within the meaning of the Tucker Act. The government only contemplated the use of government assets; it never began the process for determining a need to acquire a warning system.
Desktop is represented by William T. Welch. The government is represented by Dominique Kirchner, Joseph H. Hunt, Robert K. Kirschman, Jr., and Douglas K. Mickle of the U.S Department of Justice as well as Robert B. Neil of the U.S. Army Legal Services Agency.
