Norway pharmacy online: Kjøp av viagra uten resept i Norge på nett.
Jeg har selv prøvd dette kamagra Det er billig og fungerer egentlig, jeg likte det) kjøp propecia Ikke prøvd, men du kan eksperimentere med...
Hvordan føler du deg, følsomhet etter konsumere piller?.
Xpp-pdf support utility
Federal Contracts Report™
Reproduced with permission from Federal Contracts Report, 98 FCR 179, 08/07/2012. Copyright 2012 by TheBureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
To Each His Own: An Analysis of the U.S. Court of Federal Claims’ Jurisdiction OverChallenges to the Federal Government’s Cost Analyses and Insourcing DecisionsUnder 10 U.S.C. § 2463
With budget cuts on the rise over the last few
years and in the face of President Obama’sMarch 4, 2009 memorandum regarding govern-
ment contracting2, federal government insourcing hasbecome a hot topic. Contractors are starting to paycloser attention to insourcing statutes and directives be-cause of the likelihood that the level of work availablefor contractor employees will decrease.3 As a result,
2 In his Memorandum, President Obama directed the Office
of Management and Budget (OMB) to develop and issue ‘‘gov-ernmentwide guidance to assist agencies in reviewing, andcreating processes for ongoing review of, existing contracts in
BY E. SANDERSON HOE AND JUSTIN M. GANDERSON
order to identify contracts that are wasteful, inefficient, or nototherwise likely to meet the agency’s needs, and to formulateappropriate corrective action in a timely manner. Such correc-tive action may include modifying or canceling
E. Sanderson Hoe is a partner in the Washing-
in a manner and to the extent consistent with applicable laws,
ton, DC office of McKenna Long & Aldridge
regulations, and policy.’’ Mem. of Mar. 4, 2009 on Government
LLP, and focuses his practice on all areas of
Contracting, 74 Fed. Reg. 9755 (Mar. 6, 2009) (emphasis
government contracting including privat-
ization. Justin M. Ganderson is an associate in
For example, Section 808(c)(4) of the National Defense
the Washington, DC office of McKenna Long
Authorization Act (‘‘NDAA’’) for Fiscal Year 2012 requires theSecretary of Defense to issue guidance to military departments
& Aldridge LLP, and focuses his practice in
and defense agencies during fiscal years 2012 and 2013 to ‘‘re-
the areas of claims/disputes, internal investi-
quire the Secretaries of the military departments and the heads
gations, privatization and general federal gov-
of the Defense Agencies to reduce by 10 percent
per fiscal year
ernment contract counseling. Mr. Ganderson
in each of fiscal years 2012 and 2013 the funding of the mili-
was recently appointed as a co-chair of the
tary department or Defense Agency concerned for— (A) staff
American Bar Association Public Contract
augmentation contracts; and (B) contracts for the performance
Law Section Privatization, Outsourcing and
of functions closely associated with inherently governmental
Financing Transactions Committee for the
functions.’’ NDAA for FY 2012, Pub. L. No. 112–81, § 808(c)(4),
2012-2013 ABA year. Mr. Hoe was a co-chair
125 Stat. 1298, 1489 (2011) (emphasis added). See also
Officeof the Under Sec’y of Def. Mem., Guidance for Limitation on
of this committee from 1999 through 2012.
Aggregate Annual Amount Available for Contracted Servs.
Messrs. Hoe and Ganderson are also frequent
(June 3, 2012) (implementing Section 808 of the NDAA for the
contributors to the Government Contracts
Fiscal Year 2012); U.S. Air Force Materiel Command, Re-
Advisor blog at www.governmentcontractsad-
source Management Decision No. 802, insourcing Implemen-
COPYRIGHT 2012 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
over the last few years contractors have begun to chal-
In this article, we analyze the jurisdictional jungle
lenge agency decisions to insource work that has been
that has arisen from contactor challenges to agency de-
performed by contractors, albeit with little success.4
cisions to insource work under 10 U.S.C. § 2463. We
Much of this litigation has focused on the application
conclude that, although the prospect is looking brighterthat COFC judges will recognize jurisdiction in these
of 10 U.S.C. § 2463 (along with 10 U.S.C. § 129a), which
matters, jurisdiction is not assured with each presiding
requires the Under Secretary of Defense for Personnel
and Readiness to ‘‘devise and implement guidelines andprocedures to ensure that consideration is given to us-
I. Brief Background of Insourcing Costs Analyses Under
ing, on a regular basis, Department of Defense civilian
10 U.S.C. § 2463. In January 2008, Congress added Sec-
employees to perform new functions and functions that
tion 2463 to Title 10 of the United States Code, requir-
are performed by contractors and could be performed
by Department of Defense civilian employees.’’5 And in
[t]he Under Secretary of Defense for Personnel and Readi-
most cases, the litigation has begun and ended with the
ness shall devise and implement guidelines and procedures
question of whether a court or the Government Ac-
to ensure that consideration is given to using, on a regular
countability Office (‘‘GAO’’) has jurisdiction to enter-
basis, Department of Defense civilian employees to perform
tain the contractor’s claim or protest.
new functions and functions that are performed by contrac-
Unfortunately, courts have not even been uniform in
tors and could be performed by Department of Defense ci-
their interpretation of this jurisdictional issue. To dem-
vilian employees. The Secretary of a military departmentmay prescribe supplemental regulations, if the Secretary
onstrate this point, one need look no further than four
determines such regulations are necessary for implement-
recent decisions by the United States Court of Federal
ing such guidelines within that military department.11
Claims (the ‘‘COFC’’): Santa Barbara Applied Re-search, Inc. v. United States
6; Hallmark-Phoenix 3, LLC
This statute did not require a cost analysis, compar-
v. United States
7; Triad Logistics Services Corp. v.
ing agency and contractor costs, to be performed as
and Elmendorf Support Services Joint
On May 28, 2009, the Office of the Under Secretary
of Defense issued its guidance memorandum entitled‘‘In-sourcing Contracted Services – Implementation
Guidance.’’12 Noting that ‘‘[i]nsourcing is a high prior-
resources for fiscal years 2010 through 2013 to decrease fund-
ity of the Secretary of Defense,’’13 this guidance docu-
ing for contract support and increase funding for government
ment reinforced that ‘‘10 U.S.C. § 2463 requires the De-
civilian support). Although requiring a quota in this instance
partment of Defense to ensure that consideration is
does not necessarily mean that there will be a 10 percent re-
given to using, on a regular basis, Department of De-
duction in available contractor jobs (e.g.
, hypothetically, all
fense civilian employees to perform functions that are
contractor jobs could be retained if the rates for their positionswere lowered to fit within the funding reduction), it is repre-
performed by contractors but could be performed by
sentative of the federal government’s push to move more work
Department of Defense civilian employees.’’14 It also
stated, in pertinent part, that certain services ‘‘may be
4 Of the four COFC cases discussed herein, only two found
in-sourced if a cost analysis shows that Department of
that COFC had jurisdiction to entertain the protest and that the
Defense civilian employees would perform the work
contractor was an interested party. SeeSanta Barbara Applied
more cost effectively than the private sector contrac-
Research, Inc. v. United States
, 98 Fed. Cl. 536 (2011); Elmen-
tor.’’15 The Office of the Secretary of Defense also pub-
dorf Support Servs. Joint Venture v. United States
, No. 12-
lished Directive-Type Memorandum (‘‘DTM’’) 09-007
346C, 2012 WL 236075 (Fed. Cl. June 22, 2012). And in those
regarding ‘‘Estimating and Comparing the Full Costs of
two decisions, the court ultimately denied the contractors’ pro-tests. Santa Barbara Applied Research
, 98 Fed. Cl. at 545-53
Civilian and Military Manpower and Contract Support’’
(granting the government’s motion for judgment on the admin-
to establish the ‘‘business rules . . . for use in estimating
istrative record); Elmendorf Support Servs.
, 2012 WL 236075,
and comparing the full costs of military and DOD civil-
at *6-9 (denying the contractor’s motion for preliminary in-
ian manpower and contract support.’’16
5 10 U.S.C. § 2463(a), (e) (as amended by NDAA for FY
2012, § 938, 125 Stat. at 1547). See also
10 U.S.C. § 129a(e)(1)
bid protest challenging the government’s transfer of services
(as amended by NDAA for FY 2012, § 931(a), 125 Stat. at 1541)
(‘‘If conversion of functions to performance by . . . Department
10 See, e.g., Adams v. United States
, 42 Fed. Cl. 463, 472-73
of Defense civilian personnel . . . is considered, the Under Sec-
(1998) (noting that a COFC judge is not bound by decisions of
retary of Defense for Personnel and Readiness shall ensure
other COFC judges); Tamerlane, Ltd. v. United States
, 81 Fed.
compliance with— (1) section 2463 of this title (relating to
Cl. 752, 759 (2008) (‘‘[D]ecisions of one judge . . . on the Court
guidelines and procedures for use of civilian employees to per-
of Federal Claims do not serve to bind another judge of the
form Department of Defense functions’’).
6 98 Fed. Cl. 536 (2011) (finding jurisdiction to hear the con-
11 NDAA for FY 2008, Pub. L. No. 110-181, § 324(a)(1), 122
tractor’s bid protest challenging the government’s transfer of
Stat. 3, 60-61 (Jan. 28, 2008) (codified as amended at 10 U.S.C.
services in-house under 10 U.S.C. § 2463).
7 99 Fed. Cl. 65 (2011) (determining that the court could not
12 Office of the Under Sec’y of Def. Mem.,In-sourcing Con-
entertain a challenge to an insourcing decision under 10 U.S.C.
tracted Servs. – Implementation Guidance (May 28, 2009),
§ 2463 due to prudential standing concerns).
8 No. 11-43C, slip op. (Fed. Cl. Feb. 29, 2012) (finding that
the contractor did not have standing to challenge the agency’s
insourcing decision under 10 U.S.C. § 2463 because the con-
tractor’s contract had expired prior to its filing its complaint).
14 May 28, 2009 Memorandum, Attach. 1, § 4.1.
9 No. 12-346C, 2012 WL 236075 (Fed. Cl. June 22, 2012)
(agreeing with the analysis in Santa Barbara Applied Re-
16 Office of the Sec’y of Def., DTM No. 09-007, Estimating
, and finding jurisdiction to hear the contractor’s
& Comparing the Full Costs of Civilian & Military Manpower
COPYRIGHT 2012 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
Unlike the NDAA for Fiscal Year 2008, which con-
(B) take into consideration any supplemental guidance is-
tained no requirement for a cost analysis under 10
sued by the Secretary of a military department for determi-
U.S.C. § 2463, the NDAA for Fiscal Year 2011 included
nations affecting functions of that military department; and
language making the DTM 09-007 cost analysis manda-
(C) ensure that the difference in the cost of performing
tory in certain instances.17 Section 323(b) stated, in
the function by a contractor compared to the cost of per-
forming the function by Department of Defense civilian em-
In deciding which functions should be converted to
ployeeswould be equal to or exceed the lesser of
performance by Department of Defense civilian em-
(i) 10 percent of the personnel-related costs for perfor-
ployees pursuant to section 2463 of title 10, United
States Code, the Secretary of Defense shall use thecosting methodology outlined in the Directive-Type
(Estimating and Comparing the
The NDAA for Fiscal Year 2012 also modified 10
Full Costs of Civilian and Military Manpower and Con-
U.S.C. § 2463 to include a new reporting requirement,
tractor Support) or any successor guidance for the de-
requiring the secretary of defense to notify any contrac-
termination of costs when costs are the sole basis for
tor who performs a function that DOD plans to convert
. The Secretary of a military department
to performance by DOD civilian employees pursuant to
may issue supplemental guidance to assist in such deci-
10 U.S.C. § 2463(a), and to provide a copy of such noti-
sions affecting functions of that military department.18
fications to congressional defense committees.22
Section 323(d)(2) noted, however, that the Secretary
of Defense was not required to ‘‘conduct a cost com-
II. Recent COFC Decisions Regarding Challenges Under
parison before making a decision to convert any acqui-
10 U.S.C. § 2463. Although all COFC judges are bound
sition function or other critical function to performance
by decisions of the United States Court of Appeals for
by Department of Defense civilian employees, where
the Federal Circuit, a COFC judge’s decision is not
factors other than cost
serve as a basis for the Secre-
binding on any other COFC judge.23 As a result, al-
tary’s decision.’’19 Finally, this section required specific
though the COFC as a court has jurisdiction over pro-
reporting requirements to Congress about the ‘‘conver-
curement protests,24 each individual judge interprets
sion of functions to performance by Department of De-
and applies his or her own notion of COFC jurisdiction.
fense civilian employees made during fiscal year
The ability to have a protest of a government insourc-
ing decision heard at the COFC may well rest entirely
Congress made further changes to 10 U.S.C. § 2463 in
on the judge who is drawn for the protest. If the judge
the NDAA for Fiscal Year 2012. In addition to the man-
has decided jurisdiction before, litigants will likely
datory requirement in the prior year’s NDAA – that a
know whether the COFC will hear the case on the mer-
cost analysis under DTM 09-007 be performed before
its. If the judge has not decided the issue before, the liti-
work can be insourced where the costs are the sole ba-
gants are in for briefing and argument of that issue,
sis for the determination – Congress added a minimum
differential in cost standard when analyzing contractor
Four recent COFC bid protests related to agency de-
cision to insource work under 10 U.S.C. § 2463 high-light the situation: Santa Barbara Applied Research,
Except as provided in paragraph (2) [discussing inherently
Inc.;Hallmark-Phoenix 3, LLC;Triad Logistics Services
governmental functions], in determining whether a func-
and Elmendorf Support Services Joint Venture
tion should be converted to performance by Department of
All of these cases focus on the issues of subject matter
Defense civilian employees, the Secretary of Defenseshall
jurisdiction to review insourcing decisions and stand-ing.25 28 U.S.C. § 1491(b)(1) provides the COFC with
(A) develop methodology for determining costs based on
subject matter jurisdiction to ‘‘render judgment on an
the guidance outlined in the Directive-Type Memorandum09-007 entitled ‘Estimating and Comparing the Full Costs of
Civilian and Military Manpower and Contractor Support’ or
NDAA for FY 2012, § 938(e), 125 Stat. at 1547 (em-
any successor guidance for the determination of costs when
phasis added). See alsoid.
at § 931(e)(1), 125 Stat. at 1542-43;
costs are the sole basisfor the determination
10 U.S.C. § 129a(e)(1) (‘‘If conversion of functions to perfor-mance by . . . Department of Defense civilian personnel . . . isconsidered, the Under Secretary of Defense for Personnel and
& Contract Support (Jan. 29, 2010), available at
Readiness shall ensure compliance with— (1) section 2463 of
this title (relating to guidelines and procedures for use of civil-
09-007 is effective through October 1, 2012. See
Office of the
ian employees to perform Department of Defense functions)’’).
Sec’y of Def., DTM No. 09-007, Estimating & Comparing the
22 NDAA for FY 2012, § 938(f), 125 Stat. at 1547; 10 U.S.C.
Full Costs of Civilian & Military Manpower & Contract Sup-
port, Change 3 (Sept. 2, 2011), available at
23 See, e.g., Adams
, 42 Fed. Cl. at 472-73; Tamerlane
17 NDAA for FY 2011, Pub. L. No. 111–383, § 323, 124 Stat.
, Triad Logistics Services Corp.
, No. 11-43C, slip op.
at § 323(b) (emphasis added). See also id.
at § 323(a)
at 1 (‘‘The court, however, favors the approach adopted in
(‘‘The Secretary of Defense may not establish, apply, or en-
, that the court first should determine whether
force any numerical goal, target, or quota for the conversion of
there is subject matter jurisdiction generally, including subject
Department of Defense functions to performance by Depart-
matter jurisdiction to review insourcing decisions under 28
ment of Defense civilian employees, unless such goal, target,
U.S.C. § 1491(b)(1) and standing as an interested party, before
or quota is based on considered research and analysis, as re-
addressing questions related to prudential standing.’’) (citing
quired by section 235, 2330a, or 2463 of title 10, United States
Santa Barbara Applied Research, Inc.
, 98 Fed. Cl. at 542;
Wendland v. Guitierrez
, 580 F. Supp. 2d 151, 153 n.2 (D.D.C.
at § 323(d)(2) (emphasis added).
2008)). But see generallyHallmark-Phoenix 3, LLC
, 99 Fed. Cl.
at § 323(c) (emphasis added).
action by an interested party objecting to a solicitation
Santa Barbara Applied Research, Inc.
was the first
by a Federal agency for bids or proposals for a pro-
published decision discussing the issue of whether the
posed contract or to a proposed award or the award of
COFC had jurisdiction over a contractor’s bid protest
a contract or any alleged violation of statute or regula-
challenging the government’s transfer of services in-
tion in connection with a procurement or a proposed
house under 10 U.S.C. § 2463, and whether the contrac-
procurement.’’26 In Distributed Solutions, Inc. v. United
tor had standing.31 In this case, the contractor protested
the Federal Circuit explained:
the agency’s determination to insource work that was
the phrase, ‘‘in connection with a procurement or
currently being performed by the contractor pursuant
proposed procurement,’’ by definition involves a con-
to an option to the underlying contract.32 The contrac-
nection with any stage of the federal contracting acqui-
tor claimed that the agency did not perform a proper
sition process, including ‘‘the process for determining a
cost analysis under 10 U.S.C. § 2463.33 Ruling on the
need for property or services.’’ To establish jurisdiction
government’s motion to dismiss, Judge Firestone found
pursuant to this definition, the contractors must demon-
that the COFC had jurisdiction under 28 U.S.C.
strate that the government at least initiated a procure-
§ 1491(b)(1) to hear the contractor’s claim and that the
ment, or initiated ‘‘the process for determining a need’’
Judge Firestone determined that the court had juris-
The Distributed Solutions, Inc.
court also stated that,
diction to entertain the contractor’s challenge of the
to have standing, a contractor must be an ‘‘interested
agency’s insourcing decision because the agency’s ‘‘de-
party’’ – that ‘‘(1) it was an actual or prospective bidder
cision to in-source the work [the contractor] had been
or offeror, and (2) it had a direct economic interest in
performing at four Air Force bases and continues to
the procurement or proposed procurement.’’28 Addi-
perform at five other locations . . . was made ‘in connec-
tionally, these four COFC cases discuss the issue of pru-
tion with a procurement’ as that term has been inter-
dential standing – ‘‘whether the constitutional or statu-
preted by the Federal Circuit [in Distributed Solutions,
tory provision on which the claim rests properly can beunderstood as granting persons in the plaintiff’s posi-
There have been two published GAO decisions related to
protests about an agency’s decision to insource work under 10
Although three of the four decisions demonstrate a
U.S.C. § 2463 and 10 U.S.C. § 129a. In Aleut Facilities Support
positive trend for contractors attempting to challenge
, B-401925, 2009 CPD ¶ 202 (Comp. Gen. Oct. 13,
agency insourcing decisions, one of the four decisions
2009), the contractor argued that the agency improperly can-
provides a strong view against jurisdiction. As the Fed-
celed a solicitation, in part, because it did not conduct a proper
eral Circuit has not ruled on this particular issue and
cost analysis under 10 U.S.C. § 2463. In dismissing the protest,
Congress has not added any legislation to resolve the
the GAO explained, ‘‘Although we review agency decisions to
same, a contractor’s success against the government is
cancel solicitations to determine whether those decisions arereasonably based, we generally do not review them when the
dependent upon the judge assigned to the case. And be-
work in question is to be performed in-house because such de-
cause there are currently 24 judges on the COFC bench,
cisions are generally a matter of executive branch policy.’’ Id.
there is a very good chance that a contractor will need
at 3 (citation omitted). Although the GAO recognized that
to persuade a judge in the first instance that jurisdiction
there were limited exceptions to this rule – e.g.
, ‘‘where a so-
and standing exists. One thing is certain: for the fore-
licitation requires a cost comparison . . . , where a statute or
seeable future the Department of Justice will continue
regulation requires a cost comparison before retaining the
to press its case that there can be no jurisdiction and
work in-house’’ – it determined that no exceptions applied
standing in COFC protests of insourcing decisions un-
here, in part, because 10 U.S.C. § 2463 did ‘‘not require . . . a
cost comparison between the agency and outside contractors.’’Id.
(citations removed). In Triad Logistics Services. Corp.
A. Two COFC Decisions Issued in 2011 With Similar Fact
B-403726, 2010 CPD ¶ 279 at 3(Comp. Gen. Nov. 24, 2010), the
Patterns Reach Completely Opposite Conclusions.
precursor to Triad Logistics Services Corp. v. United States
1. Santa Barbara Applied Research, Inc.
discussed herein, the GAO quickly dismissed the contractor’sargument that the GAO had jurisdiction to review the agency’scost analysis under 10 U.S.C. § 129a because this statute was
26 Although the language in the current version of 28 U.S.C.
not a procurement statute and it did ‘‘not require a cost com-
§ 1491(b)(1) states that the COFC and
U.S. district courts pos-
parison between agency and contractor performance . . . .’’ It
sess jurisdiction, the Administrative Dispute Resolution Act
remains unclear, however, if GAO would find jurisdiction fol-
(ADRA) included a sunset provision which removed the U.S.
lowing the amendments to 10 U.S.C. § 2463 in the NDAA for
district courts’ jurisdiction over bid protests as of January 2,
Fiscal Years 2011 and 2012, which make the DTM 09-007 cost
2001. ADRA, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870, 3875.
analysis mandatory in certain instances. There have also been
27 539 F.3d 1340, 1346 (Fed. Cir. 2008).
a few cases before U.S. district courts and the U.S. Circuit
at 1344 (citation omitted).
Courts of Appeals challenging agency’s decisions to insource
29 Warth v. Seldin
, 422 U.S. 490, 500 (1975).
under these statutes. The majority of these decisions hold that
30 Interestingly, the court in Triad Logistics Services Corp.
U.S. district courts do not possess jurisdiction over such a
, Fisher-Cal Indus., Inc. v. United States
, No. 11-791
The United States has taken evolving positions on jurisdic-
(BAH), 2012 WL 914674 (D.D.C. Mar. 19, 2012) (finding no ju-
tion and standing as related to insourcing challenges. In the
risdiction); Rothe Dev., Inc. v. U.S. Dep’t of Def.
, 666 F.3d 336,
current litigation, the government states, ‘‘in certain district
338 (5th Cir. 2011) (finding jurisdiction); Vero Tech. Support
court litigation, the government previously asserted that an in-
v.U.S. Dep’t of Def.
, 437 F. App’x 766 (11th Cir. 2011) (unpub-
cumbent contractor could satisfy the interested party require-
lished decision) (finding no jurisdiction); K-Mar Indus., Inc. v.
ment. We now believe that our prior position was incorrect,
U.S. Dep’t of Def.
, 752 F. Supp. 2d 1027 (W.D. Okla. 2010)
and that the position we presented in our motion to dismiss in
this case – that Triad is not an interested party – is the correct
32 Santa Barbara Applied Research, Inc.
, 98 Fed. Cl. at 537-
one and we have taken the same position in other insourcing
No. 11-43C, slip op. at 23 n.17 (citations omitted).
COPYRIGHT 2012 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
].’’35 Further, Judge Firestone determined that the
took issue with the majority of Judge Firestone’s analy-
contractor had standing because the contractor
sis, and arrived at a much different conclusion.
In a spirited decision, Judge Allegra dismissed the
has a government contract and claims that it would expect
contractor’s claim because it failed to meet prudential
to compete for future government contracts but for the er-
standing requirements.44 After determining that the
rors made by the [agency] in its insourcing decision, which
concept of prudential standing applied to bid protests
prevents [the contractor] or any other contractor from per-forming the functions at issue. Where, as here, [the contrac-
under 28 U.S.C. § 1491(b)(1),45 Judge Allegra indicated
tor] has a track record of winning contracts for the work
that ‘‘the critical question becomes whether the statutes
that the [agency] is now insourcing, the economic impact to
at issue [10 U.S.C. §§ 129a and 2463] can be understood
as granting a contractor standing to challenge an agen-cy’s decision to fulfill its needs using its own employ-
Finally, the court rejected the government’s argu-
ees.’’46 ‘‘[T]he injury of which plaintiff complains does
ment that the court should dismiss this claim based on
not arguably fall within the zone of interests sought to
‘‘prudential standing’’ grounds.37 A determination of
be protected by these statutes.’’47 Because sections of
prudential standing is based upon ‘‘whether the consti-
these statutes required certain reporting to Congress,
tutional or statutory provision on which the claim rests
Judge Allegra relegated these statutes to ‘‘internal inter-
properly can be understood as granting persons in the
nal agency procedures subject to legislative over-
plaintiff’s position a right to judicial relief,’’38 e.g.
sight,’’48 and compared the issues now before him to
‘‘whether the interest sought to be protected by the
American Telephone & Telegraph Co. v. United
complainant is arguably within the zone of interests to
.49 In doing so, he explained:
be protected or regulated by the statute or constitu-tional guarantee in question.’’39 Judge Firestone found
What is controlling here—and what demands, in the final
that the doctrine of prudential standing did not apply to
analysis, that plaintiff’s case be dismissed—is the language
bid protests under 28 U.S.C. § 1491(b)(1), and even if it
of the statutes in question. That language indicates that
did, it would not relinquish the court’s jurisdiction over
Congress intended to reserve for itself, and not any court,
this protest.40 She determined that 10 U.S.C. § 2463
the twin job of deciding whether the Defense Departmenthas properly in-sourced various tasks and of requiring the
‘‘was enacted, at least in part, for the benefit of the con-
agency to changes its policies as proved necessary. Both
tracting community.’’41 She arrived at this conclusion
tasks were to be accomplished by application of the consid-
based upon Section 323 in the NDAA for FY 2012 which
erable pressures of the legislative process—what Madison,
‘‘prevent[ed] the DOD from imposing any specific quo-
in Federalist No. 48, referred to as Congress’ ‘‘complicated
tas or goals on insourcing without a considered cost
analysis and mandated that the DOD conduct a specificcost comparison [under 10 U.S.C. § 2463] that takes
Interestingly, Judge Allegra’s lengthy analysis ap-
into account the ‘full costs of civilian and military man-
pears to boil down to policy concerns.51 Judge Allegra
power’ before making any insourcing decision, where
was very apprehensive that a decision finding jurisdic-
. . . cost alone is the deciding criteria,’’42 although Sec-
tion over the contractor’s protest would ‘‘risk trigger-
tion 323 was enacted after the events underlying the
ing a wave of cases brought by hopeful contractors each
believing that they have the likely prospect of receivinga contract if a particular function is outsourced. The
disruption inherent in such cases likely would hinder
The next case to tackle these issues was Hallmark-
the ability of the Department of Defense to establish, on
Phoenix 3, LLC.
Like the contractor in Santa Barbara
a timely basis, its personnel needs in formulating its au-
Applied Research, Inc.
here the contractor protested
thorization requests to Congress, thereby impeding the
the agency’s decision under 10 U.S.C. § 2463 to in-source work currently being performed by the contrac-tor.43 Although this case had a similar fact pattern to
Santa Barbara Applied Research, Inc.
, Judge Allegra
35 Santa Barbara Applied Research, Inc.
, 98 Fed. Cl. at
542-43 (citing Distributed Solutions, Inc.
, 539 F.3d at 1346
49 307 F.3d 1374, 1379 (Fed. Cir. 2002) (finding that Section
(‘‘[T]he phrase, ‘in connection with a procurement or proposed
8118 of the NDAA for Fiscal Year 1988 did ‘‘not create a cause
procurement,’ by definition involves a connection with any
of action inviting private parties to enforce the provision in
stage of the federal contracting acquisition process, including
‘the process for determining a need for property or ser-
50 Hallmark-Phoenix 3, LLC
, 99 Fed. Cl. at 77 (citation
vices.’ ’’)). See alsoSanta Barbara Applied Research, Inc.
omitted). Judge Allegra even commented that the language
Fed. Cl. at 543 (‘‘The substance of the [agency’s] decision has
added to the NDAA for Fiscal Year 2011 regarding 10 U.S.C.
been to stop procuring services from [the contractor] and to in-
§ 2463 would not have changed his analysis. Id.
at 74 n.15
stead use [agency] civilian employees to do the same work.
(‘‘While the amended statute makes specific reference to the
Thus, the insourcing decision in this case was made for the
existing Defense Department guidelines, that feature does not,
purpose of determining the need for contract services and thus
in this court’s view, make insourcing decisions under the
was made ‘in connection with a procurement decision.’ ’’).
amended statute reviewable. This is because the amendment
36 Santa Barbara Applied Research, Inc.
, 98 Fed. Cl. at 543.
does not fundamentally change the nature of section 2463 as
focusing on legislative oversight, rather than judicial review, as
the means of enforcement. Indeed, as mentioned above, the
39 Ass’n of Data Processing Serv. Orgs., Inc. v. Camp
same Congress that passed the requirements highlighted in
Santa Barbara also imposed new reporting and review require-
40 Santa Barbara Applied Research, Inc.
, 98 Fed. Cl. at 544.
ments to bolster its legislative oversight of this issue.’’).
51 That being said, Judge Allegra indicated that the ‘‘court
does not come to this decision lightly, fully recognizing the po-
43 Hallmark-Phoenix 3, LLC
, 99 Fed. Cl. at 66-67.
tential impact on plaintiff.’’ Id.
legislative oversight process that Congress intended to
dertaking a robust critical analysis of the court’s subject
matter jurisdiction to review government insourcing de-
Also, by agreeing with the government’s prudential
cisions, she found that the alleged violations under 10
standing argument, Judge Allegra did not have to de-
U.S.C. §§ 129a and 2463 were generally ‘‘within the sub-
cide if the contactor possessed standing as an interested
ject matter jurisdiction of this court.’’59
party. However, he commented that the contractor’s ar-
However, persuaded by the government’s arguments,
gument that it was an interested party was based on a
Judge Horn ultimately concluded that the contractor
‘‘pile of assumptions.’’53 Judge Allegra stated that it was
did not possess standing as an interested party, mostly
‘‘ debatable whether [the contractor] qualifies as a pro-
because the contractor’s contract had ended and the
spective bidder within the meaning of the Federal Cir-
government insourced the work prior
to the contractor
cuit’s definition of interested party.’’54
filing its current complaint.60 Judge Horn also appeared
B. Two COFC Decisions Issued in 2012 Favor the Analy-
to be influenced by the government’s argument that the
sis in Santa Barbara Applied Research, Inc.
court could not ‘‘fashion a workable remedy’’ in this
After Judge Allegra issued his decision in Hallmark-
specific scenario because the agency personnel were al-
Phoenix 3, LLC
in late 2011, two other COFC judges is-
ready performing the insourced work.61 That being
sued decisions on the same topic, and preferred Judge
said, she offered hope for future contractor challenges
Firestone’s analysis in Santa Barbara Applied Re-
over Judge Allegra’s analysis in Hallmark
This court concludes that Triad is not an interested party,
and therefore, does not possess standing to sue. The court,
however, does not conclude that an incumbent contractor
In Triad Logistics Services Corp.
, the contractor pro-
challenging an insourcing decision could never satisfy the
tested the agency’s decision to insource work previ-
interested party requirements. In the case currently before
ously performed by the contractor based, in part, upon
the court, Triad’s contract had been completed before the
the cost analysis performed under 10 U.S.C. § 2463.55
second complaint was filed in this court. Triad was in theunfortunate position that it no longer possessed a direct,
Unlike the situation in Santa Barbara Applied Re-
economic interest in an Air Force contract when it filed suit.
and Hallmark-Phoenix 3, LLC
, the contrac-
Moreover, if a contractor’s ongoing contract is insourced
tor in Triad Logistics Services Corp.
, protested the
after the enactment of the [NDAA for Fiscal Year 2011],
agency’s decision to insource the work after
that incumbent contractor could be in a different position
tractor’s contract had ended on its own terms.56 The
agency also made its final determination to insource thework after the contract had ended.57
Also, because Judge Horn ultimately found that the
contractor had no standing, she did not rule on the gov-
As an initial matter, Judge Horn stated that she ‘‘fa-
ernment’s prudential standing arguments.63
vors the approach adopted in SantaBarbara [AppliedResearch, Inc.]
,’’ noting that ‘‘the court first should de-
2. Elmendorf Support Services Joint Venture
termine whether there is subject matter jurisdiction
The most recent COFC case dealing with these juris-
generally, including subject matter jurisdiction to re-
dictional issues is Elmendorf Support Services Joint
view insourcing decisions under 28 U.S.C. § 1491(b)(1)
. Like the scenarios in Santa Barbara Applied
and standing as an interested party, before addressing
and Hallmark–Phoenix 3, LLC
, here the
questions related to prudential standing.’’58 After un-
agency decided to insource work currently being per-formed by the contractor after performing a cost analy-sis under 10 U.S.C. § 2463.64 Prior to its contract end-
at 78. See also id.
at 80 (‘‘In the court’s view, internal
agency decisions of the sort at issue do not suddenly becomereviewable because they are predicated on an insourcing deci-
sion. A contrary ruling would fling open the doors of this court
to any contractor who can reasonably claim that an agency’s
at 26 (‘‘The Air Force cannot easily reverse the in-
insourcing decision denied it a contracting opportunity.’’).
sourcing decision which, according to defendant, has resulted
at 68 (‘‘[T]here is no existing solicitation here. Nor is
in agency personnel performing the tasks that previously had
there any assurance that there ever will be one. If this court
been performed by Triad, following the end of Triad’s contract,
were to set aside the Air Force’s insourcing decision, it is con-
even if the court were to order another cost study analysis and
ceivable, if not likely, that the Air Force would simply make a
the cost study analysis were to demonstrate that performance
second ‘corrected’ decision to in-source, the effect of which
by Air Force personnel was more costly than contractor perfor-
would be to deny plaintiff a contracting opportunity. Even if
mance. Defendant points out the difficulties in fashioning a
this court’s rejection of the Air Force’s insourcing decision re-
workable remedy, and, therefore of providing redress to this
sulted in a new procurement, there is no assurance that plain-
plaintiff, which no longer has an economic interest in the con-
tiff could or would bid on that procurement. After all, the con-
tract work since plaintiff’s contract ended by its own terms, is
tract that plaintiff previously won was a small-business set
further reason why plaintiff does not have standing to chal-
aside. And there is no guarantee that the Air Force would once
lenge the DOD insourcing decision.’’).
again reserve the requirements at issue for such a set aside,
at 33. Judge Horn commented, ‘‘Because this court
nor any statute or regulation of which the court is aware that
has concluded plaintiff is not an interested party and lacks
would dictate that result.’’) (citation and footnote omitted).
standing, however, it is not for this court to determine if the
[NDAA for Fiscal Year 2011] was enacted for the benefit of
55 No. 11-43C, slip op. at 1-2 (Fed. Cl. Feb. 29, 2012).
contractors or provides sufficient judicially manageable guide-
lines, to assist in providing standing for future plaintiffs wish-
at 8. This situation arose because the agency per-
ing to challenge future insourcing decisions by the DOD.’’ Id.
formed a new set of cost analyses after the contractor’s initial
protest at COFC was dismissed without prejudice to allow the
at 26-33. Nonetheless Judge Horn did spend a consid-
new analysis to occur. Id.
at 7-8. The Contractor’s first protest
erable amount of time in her decision discussing Judge Fir-
was filed at COFC on the date its contract ended. Id.
estone’s and Judge Allegra’s prudential standing analysis. Id.
COPYRIGHT 2012 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
ing, the contractor protested the agency’s decision to in-
by outside contractors, and that this makes such pro-
tests very different in some regards from ones in which
Issued in June 2012, Judge Bruggink’s opinion ac-
the concerns of the Competition in Contracting Act, 31
knowledged that ‘‘there exists a split among the judges
U.S.C. §§ 3551–56 (2006), are invoked, nevertheless, the
of this court regarding whether the decision to in-
procedures and standards required by these statutes
source contract services is reviewable.’’66 In concluding
circumscribe the government’s ability to bring services
that the court possessed subject matter jurisdiction and
in-house. At a minimum, incumbent contractors have
that the contractor was an interested party, Judge Brug-
an interest in ensuring that the calculus is done prop-
gink considered the approaches in Santa Barbara Ap-
erly. This competitive impulse creates an incentive to
plied Research, Inc.
and Hallmark–Phoenix 3, LLC
expose ways in which the government may have acted
He agreed with Judge Firestone’s decision in Santa
improperly. Refereeing such debates is routine work for
Like Judge Firestone, Judge Bruggink determined
The court was also persuaded by the analysis in
that the COFC had subject matter jurisdiction over the
Match–E–Be–NashShe–Wish Band of Pottawatomi In-
contractor’s bid protest under 28 U.S.C. § 1491(b)(1)
dians v. Patchak
74, a Supreme Court decision issued af-
ter oral arguments were held.75 Judge Bruggink noted
The substance of the [the agency’s] decision here was to
that the Supreme Court ‘‘made it clear that the pruden-
stop procuring services from plaintiff and instead to use
tial standing test ‘is not meant to be especially demand-
government employees. Because that decision necessarily
ing.’ . . . Moreover, the test ‘forecloses suit only when a
included the process for ‘determining the need for . . . ser-vices’ that plaintiff currently provides, the insourcing
plaintiff’s interests are so marginally related to or in-
decision-making process was ‘in connection with a procure-
consistent with the purposes implicit in the statute that
ment or proposed procurement’ within the rather generous
it cannot reasonably be assumed that Congress in-
definition adopted by the Federal Circuit [in Distributed So-
tended to permit the suit.’ ’’76 It is unclear whether this
Supreme Court decision would have affected Judge Al-legra’s analysis in Hallmark–Phoenix 3, LLC
The court also determined that the contractor was an
interested party, and was not barred by the doctrine of
III. Conclusion. These decisions demonstrate how
prudential standing. Finding that the Santa Barbara
COFC judges can arrive at completely different conclu-
Applied Research, Inc.
was ‘‘instructive,’’70 Judge Brug-
sions when analyzing similar fact patterns. The stark
contrast between Judge Firestone’s and Judge Allegra’s
Having concluded that there was a proposed procurement,
decisions is striking, and presents a hurdle for contrac-
we have no difficulty finding that plaintiff clearly has a fi-
tors attempting to protest an agency’s decision to in-
nancial interest in maintaining its incumbency. It has dem-
source under 10 U.S.C. § 2463. Jurisdiction before the
onstrated its desire for the work and, but for the insourcing,
COFC is not guaranteed in any way until the Federal
we have every reason to assume it would still be on the job
Circuit addresses the issue for all the judges of the
. Here, in its most recent contractor performance assess-
ment report, plaintiff was rated as excellent, and for the du-ration of the contract, there is no dispute that plaintiff has
Although Judge Bruggink (and for the most part
performed well. Thus, there is a substantial chance that,
Judge Horn77) was persuaded by Judge Firestone’s
given the opportunity, plaintiff would perform the services
analysis in Santa Barbara Applied Research, Inc.
ing jurisdiction, contractors cannot assume that other
The court summarily dismissed the government’s ar-
COFC judges will follow suit. Other judges may agree
gument that the court did not have jurisdiction over this
with Judge Allegra’s analysis of prudential standing in
bid protest due to prudential standing concerns, prefer-
Hallmark–Phoenix 3, LLC
or be guided by the same
ring Judge Firestone’s approach over Judge Allegra’s
policy concerns that underpinned his decision.
approach.72 Apparently disagreeing with Judge Alleg-
Until the Federal Circuit rules on this issue or con-
ra’s concern that finding jurisdiction over these types of
gress adds legislation clarifying that the COFC has ju-
protest would open the floodgates of litigation, Judge
risdiction over this type of protest, contractors must re-
main vigilant and careful when arguing for jurisdiction.
While we recognize that Congress no doubt was mo-
Due to budget constraints and general government poli-
tivated by fiscal concerns in requiring periodic assess-
cies, insourcing and the related cost analyses under 10
ment of the relative costs of having services performed
74 Nos. 11–246, 11–247, 2012 WL 2202936 (U.S. June 18,
at *3. Judge Bruggink likely did not rely upon Triad
Logistics Services Corp.
because the facts before Judge Brug-
75 2012 WL 236075, at *
gink more closely resembled the facts in Santa Barbara Ap-
5 (quoting Match–E–Be–NashShe–Wish Band of
plied Research, Inc.
and Hallmark–Phoenix 3, LLC
Pottawatomi Indians v. Patchak,
Nos. 11-246, 11-247, 2012 WL
2202936, at *9 U.S., June 18, 2012)).
69 2012 WL 236075, at *3-4 (citations omitted).
77 One lesson learned from Judge Horn is that a contractor
should file its protest related to an agency’s decision to in-
source under 10 U.S.C. § 2463 prior to the expiration of its con-
Liebe Patientin, lieber Patient! Bitte lesen Sie folgende Gebrauchsinformation aufmerksam, weil sie wichtige Informationen darüber enthält, was Sie bei der Anwendung dieses Arzneimittels beachten sollen. Wenden Sie sich bei Fragen bitte an Ihren Arzt oder Apotheker. Gebrauchsinformation RD Renova 29 Homöopathisches Arzneimittel nach AMG Paragraph 38 Abs. 1, Satz 3, HAB – Vo
learn-appreciate-enjoy art Acrylic Materials and Equipment Support Means the surface which you paint Linen, cotton and synthetic fibres are the 3 basic kinds of canvas used for acrylic painting. Linen Most expensive due to its superior strength and durability. Cotton At lower cost. A wel -made medium weight cotton duck is perfectly adequate. Synthetic fibres Polyester i