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Government’s motion to dismiss protest for lack of subject matter jurisdiction is granted. The protester challenged the agency’s decision to cancel a solicitation. The government first argued that the COFC lacks jurisdiction to hear protests challenging the cancellation of a solicitation. The court, however, noted that it has long had jurisdiction to hear protests challenging a cancellation. The agency also argued that the court lacked jurisdiction because the protester’s proposal was deficient, which meant the protester did not have a substantial chance of receiving award and thus was not an interested party. The court agreed. The protester’s proposal was deficient in several respects. Even if the cancellation was arbitrary, the protester would not receive an award and therefore lacked standing to protest.

The Department of Veterans Affairs issued a solicitation for laboratory testing services. The solicitation was set aside for service-disabled, veteran-owned small businesses. MCI Diagnostic Center LLC and one other offeror submitted proposals. The VA found both proposals deficient. Lacking an acceptable offer, the VA cancelled the solicitation. MCI then filed a protest with the Court of Federal Claims, arguing that the VA lacked a rational basis for cancelling the protest. The VA moved to dismiss the protest for lack of subject matter jurisdiction.

The VA first argued that under the Tucker Act, the COFC only has jurisdiction to hear protests challenging (1) the terms of a solicitation , (2) the award of a contract, or (3) the alleged violation of a procurement statute or regulation. The VA contended the court did not have jurisdiction to hear a protest challenging the cancellation of a solicitation. Rather, according to the VA, the court could only hear MCI’s protest if it implicated the violation of a procurement regulation or statute. MCI’s complaint, however, had not identified any specific law that the VA had violated.

The court rejected the VA’s argument. The court noted that prior to passage of the Administrative Dispute Resolutions Act of 1996, the COFC had jurisdiction over bid protests seeking to enjoin the arbitrary cancellation of a solicitation. The Federal Circuit has also held that the passage of the Administrative Dispute Resolutions Act did not abrogate any of the COFC’s established bid protest jurisdiction. Accordingly, the court reasoned, it still had jurisdiction to hear protests challenging the cancellation of a solicitation. Indeed, the court intimated that the protest likely implicated a regulation, i.e., FAR 1.602-2(b), which states that agencies must ensure that contractors receive impartial and equitable treatment. The arbitrary cancellation of a solicitation would arguably violate this rule.

The VA also argued that the court lacked jurisdiction because MCI was not an interested party. The agency had found MCI’s proposal deficient. Among other things, MCI had failed to demonstrate that it had the proper certification to perform all the lab tests required by the solicitation. Because MCI’s proposal was deficient, the company did not have a substantial chance of receiving award and thus could not maintain the protest.

The court found this second argument more persuasive. MCI’s proposal was deficient in several respect. Importantly it lacked certification to perform 127 of the 611 tests specified in the solicitation. Although MCI had argued it would rely on subcontractors to perform these tests, its proposal never mentioned the names of any subcontractors, whether they were certified, and how many tests they would perform. The proposal did not satisfy the solicitation’s minimum requirement and was thus non-responsive. Given this, MCI did not have a substantial chance at receiving award, so the court did not have jurisdiction to hear the protest.

MCI is represented by Jonathan D. Perrone of Whitcomb Selinsky, P.C. The intervenor, LabCorp is represented by William M. Jack, Elizabeth C. Johnson, and Amba M. Datta of Kelley Drye & Warren LLP. The government is represented by Isaac B. Rosenberg, Douglas K. Mickle, Robert E. Kirschman, Jr., and Joseph H. Hunt of the U.S. Department of Justice as well as Natica C. Neely of the Department of Veterans Affairs.