Despite a statute that prohibits COFC from hearing claims that are similar to claims pending before another court, COFC found that it had jurisdiction to hear a bid protest that was related to other claims pending before an Oklahoma district court. COFC found that although they concerned the same set of facts, the bid protest claims before COFC were distinct from the claims before the district court, which arose under a different law—the Randolph-Sheppard Act. Moreover, COFC found, the Randolph-Sheppard Act did not preempt the court’s bid protest jurisdiction.
The Randolph-Sheppard Act, 20 U.S.C. §§ 107-107f, gives blind vendors priority in operating vending facilities on federal property. The Department of Education is oversees the Act and prescribes regulations. But state agencies license blind vendors in their states, manage the procurement process for the vendors, and monitor federal agencies’ compliance with the Act.
In this case, a blind vendor, David Altstatt, and a small business, Cantu Services, had a contract to provide food services at an Army base in Oklahoma. In 2018, however, the Army told the vendors that it would not be exercising the remaining options on the contract. The State of Oklahoma, on behalf of the vendors, filed a demand under the Randolph-Sheppard Act for arbitration with the Department of Education.
Despite the arbitration request, the Army released a new solicitation for food services at the base. Altstatt and Cantu bid on the new solicitation. Meanwhile, Oklahoma filed suit in federal district court, alleging violations of the Randolph-Sheppard Act and seeking to enjoin the procurement until the Department of Education conducted arbitration.
While the district court suit was pending, the Army eliminated Altstatt and Cantu from the new competition and awarded a food services contract to another vendor. Oklahoma then filed a GAO protest, challenging the award. GAO denied the protest, and Oklahoma filed a protest with COFC. As part of the COFC protest, Oklahoma applied for a temporary restraining order to enjoin performance of the new food contract.
Before ruling the TRO application, the court had to resolve jurisdictional issues raised by the government. The government argued that 28 U.S.C § 1500 bars the COFC from hearing any claim that is substantially the same as a claim pending before another court. The government alleged that Oklahoma’s COFC protest arose from the same operative facts as the case pending in district court. Thus, the COFC lacked jurisdiction over the protest.
Although the issue was close, the COFC found the bid protest sufficiently distinct form the district court action. The claims before the COFC concerned violation of federal procurement law. The claims before the district court, on the other hand, would require a post-arbitral proceeding to determine whether the Army violated the Randolph-Sheppard Act. Thus, the protest was not barred by 28 U.S.C. § 1500.
Nevertheless, the government argued that COFC’s jurisdiction was limited by the Randolph-Sheppard Act itself. The government contended that COFC lacked jurisdiction over the protest until the Department of Education arbitration process was complete.
The court acknowledged that COFC lacks jurisdiction over a Randolph-Sheppard claim while the plaintiff is arbitrating that claim. But that jurisdictional bar only applies to claims alleging a violation of the Randolph-Sheppard Act. The claims before the COFC were based in federal procurement law. The Randolph Sheppard claims were before the district court. Thus, COFC had jurisdiction over the bid protest.
The court then turned to Oklahoma’s application for a TRO. The court did not believe Oklahoma would suffer irreparable injury without the TRO; it had the pending arbitration and district court suit and was thus able to obtain other relief. Additionally, the balance of harms did not favor either party. Alstatt and Cantu might lose a contract, but the Army had already transitioned to the awardee and a TRO may disrupt food service at the base. What’s more, the court did not believe Oklahoma had shown a substantial likelihood of success on the merits. Its complaint contained conclusory allegations that did not warrant injunctive relief.
Oklahoma is represented by Peter A. Nolan of Winstead PC as well as Richard Oderbak of the Oklahoma Office of the Attorney General. Plaintiff-intervenor Cantu Services, Inc. is represented by John C. Dulske of Dykema Gossett. Plaintiff-intervenor David Alstatt, Sr. is represented by Casey T. Delaney of Fellers, Snider, Blankenship, Bailey & Tippens, PC. The government is represented by Douglas T. Hoffman, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas K. Mickle of the U.S. Department of Justice as well as Major Ronald M. Hermann of the U.S. Army.
