Losing protester’s motion for clarification, or in the alternative reconsideration, is granted. The underlying protest had challenged two agency decisions: (1) the disqualification of the protester from the competition, and (2) the agency’s decision to cancel the solicitation. Following cross-motions for judgment on the administrative record, he court had entered final judgment in favor the government. But the protester argued that motions had been limited to the cancellation issue, and did not include the disqualification claims. After reviewing previous rulings and a scheduling order, the court agreed with the protester; the government had only prevailed on the cancellation issue. The court vacated the final judgment to allow further proceedings on the disqualification claims.
A Squared Joint Venture (A2JV) bid on a NASA solicitation seeking acquisition and business support services. NASA disqualified A2JV from the competition due to a potential organizational conflict of interest. A2JV protested its disqualification with the COFC. The court found that NASA had not established the conflict, and it ordered the parties to brief the appropriate form of injunctive relief.
Shortly thereafter, however, NASA cancelled the solicitation. A2JV amended its protest complaint to challenge the cancellation decision. The amended complaint still included causes of action related to the disqualification of A2JV.
The court issued a briefing schedule for motions for judgment on the administrative record to resolve issues regarding cancellation of the procurement. A2JV and NASA both moved for judgment on the administrative record. The court denied A2JV’s motion but granted NASA’s. The court entered final judgment against A2JV under Rule 58 of the Rule of the Court of Federal Claims.
A2JV moved for clarification, or in the alternative reconsideration, of the court’s order granting the government judgment on the administrative record. A2JV contended that the parties’ cross-motions for judgment on the administrative had been limited to NASA’s decision to cancel the solicitation. Those motions had not addressed A2JV’s claims concerning its disqualification from the competition, including its claims for bid preparation costs and attorneys’ fees.
A2JV also filed a second motion for reconsideration. In this second motion, A2JV argued that the court had erred in granting the government judgment on the cancellation issue.
The court considered the second reconsideration motion first. In that motion, A2JV argued that the court’s ruling on cancellation was a clear error that resulted in a manifest injustice. Specifically, A2JV contended that the court had not “carefully considered” A2JV’s arguments. The court, however, noted that a party seeking reconsideration based on manifest injustice cannot prevail unless the injustice is “apparent to the point of being almost indisputable.” Merely alleging that the court had not “carefully considered” the issue did not satisfy this high standard.
But the court found the reconsideration motion on the disqualification issue more compelling. The court reviewed its previous rulings and scheduling orders. It noted that in a previous ruling on a motion to dismiss A2JV’s disqualification claims, it had found that cancellation of the procurement had not mooted all of A2JV’s claims concerning disqualification. The court had found that regardless of the cancellation issue, A2JV should be allowed to pursue it claims for bid preparation costs and attorneys’ fees. What’s more, the court continued, the briefing schedule on the motions for judgment on the administrative record had explicitly limited the parties to the cancellation issue. Indeed, the court only heard arguments from the parties on the cancellation issue.
Accordingly, the court concluded that A2JV’s claims concerning its disqualification from the procurement were still before the court. The final judgment that the court entered under Rule 58 was in error. The court vacated its judgment and ordered the parties to present a joint status report on the remaining claims.
A2JV is represented by Joseph P. Dirik. The government is represented by Borislav Kushnir, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas K. Mickle of the U.S. Department of Justice as well as Jerry L. Seemann of NASA.
