Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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UNITED STATES COURT OF FEDERAL CLAIMS Bid Protest _________________________________ IRONCLAD/EEI, A Joint Venture, Plaintiff, v. UNITED STATES, Defendant, and CAMPBELL ROOFING & CONSTRUCTION, INC., MGC/CAMPBELL ROOFING & CONSTRUCTION, INC., Intervenor-defendants. _________________________________ INTERVENORS' COMBINED MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD Case No: 07-280C (Judge Bush)

Dated: July 23, 2007
/s/ Herman C. Hoffmann, Jr. Herman C. Hoffman, Jr. Simon, Peragine, Smith & Redfearn, L.L.P. Attorneys for Plaintiff 1100 Poydras Street, 30th Floor New Orleans, Louisiana 70163-3000 Tel: (504) 569-2030 Fax: (504) 252-3508

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Table of Contents Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Statement of Questions Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. Ironclad Does Not Have Standing to Protest the Award of the 8(a) Set-Aside Contracts Awarded to Intervenors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. B. C. D.

Standing Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Ironclad Lacks Standing Because it Is Not an Actual or Prospective Bidder on Contracts Awarded to Intervenors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ironclad Also Lacks Standing Because it Does Not Possesses the Requisite Direct Economic Interest to Protest the Award of any 8(a) Small Business Contract . . . 8 Ironclad Also Lacks Standing because it Has Failed to Exhaust, or Even to Properly Seek an Administrative Remedy with Respect to Determination of the Intervenors' Small Business Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. 2. 3. The SBA Regulatory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Ironclad Does Not Qualify as an "Offeror" as Is Required to Raise the Issue of Intervenors Size . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Even If Ironclad Was an "Offeror" the Administrative Record Is Devoid of Any Sign of Ironclad's Pursuit of the Appropriate Administrative Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II.

In the Alternative Only, Ironclad's Protest must fail because Crown and Campbell, as Qualified 8(a) Small Businesses at the time of the Awards at Issue, Were Properly Awarded the Contracts at Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 i

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Table of Authorities Federal Cases Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). . . . . . . . . . . . . . . . . . . . . . . 7 DSE Inc. v. U.S., 169 F.3d 21, 25-26 (D.C. Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 LB&B Associates, Inc. v. U.S., 68 Fed Cl. 765, 769 (2005). . . . . . . . . . . . . . . . . . . . . . . . . 10, 14 Lujan v. Defenders of Wildlife, 504 U.S. 555,561 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 MCI Telecom's Corp v. U.S, 878 F.2d 362,364 (Fed. Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . 7, 8 Mcnutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). . . . . . . . . . . . . . . . 7, 10 Media Technologies Licensing, LLC, 334 F.3d at 1370. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Myers Investigative and Security Services, Inc. v. U.S., 275 F.3d 1366, 1369 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9 Rex Service Corp. v. U.S., 448 F.3d 1305 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9 Steel Co. v. Citizens for a better Env't, 523 U.S. 83, 102-04 (1998) . . . . . . . . . . . . . . . . . . . . . . 6 U.S. v. Mitchell, 445 U.S. 535, 538 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Federal Statutes 15 U.S.C. § 632(a)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 15 U.S.C. § 637(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 28 U.S.C. § 1491(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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Federal Regulations 13 C.F.R. § 121.1001(a)(2)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 C.F.R. § 121.1003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 C.F.R. § 121.1004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 C.F.R. § 121.1005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12 13 C.F.R. § 121.1007(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 C.F.R. § 121.1008(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 13 C.F.R. § 121.1008(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 13 C.F.R. § 121.1009(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 13 C.F.R. § 121.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13 C.F.R. § 121.404(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 13 C.F.R. § 121.404(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 13 C.F.R. § 121.405(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 C.F.R. §121.103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 13 C.F.R. §§ 121.107, 121.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13 C.F.R. §§ 121.404-405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 48 C.F.R. 19.302(a)&(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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UNITED STATES COURT OF FEDERAL CLAIMS Bid Protest _________________________________ IRONCLAD/EEI, A Joint Venture, Plaintiff, v. UNITED STATES, Defendant, and CAMPBELL ROOFING & CONSTRUCTION, INC., MGC/CAMPBELL ROOFING & CONSTRUCTION, INC., Intervenor-defendants. _________________________________ Case No: 07-280C (Judge Bush)

INTERVENORS' COMBINED MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD NOW INTO COURT, through undersigned counsel, come Intervenors, Crown Roofing Services, Inc. ("Crown") and R. L. Campbell Roofing Company, Inc. ("Campbell") who, in support of their motion, state as follows:

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Statement of Questions Involved 1. Whether Plaintiff, Ironclad-EEI, a non 8(a) certified non SBA qualified Joint Venture ("Ironclad") has borne the burden of proving that it somehow has standing to protest the size status of Intervenors Crown Roofing Services, Inc. ("Crown") and R.L. Campbell Roofing Company, Inc. ("Campbell") for the purpose of disputing the validity of the SBA Certified 8(a) Set-Aside contracts awarded to Intervenors herein, and, if so; 2. Whether Ironclad has exhausted the required administrative remedy with respect to determination of the Intervenors' small business status, and, if so; 3. In the alternative only, whether, for the purposes of its Motion for Judgment on the Administrative Record, Ironclad has presented any evidence from the record, even as supplemented by Ironclad, that could lead to a determination that Intervenors herein were ineligible to receive the 8(a) small business set-aside awards under the solicitation at issue. Statement of Facts 1. On November 30, 2005, the U.S. Army Engineer District, Mobile Contracting Division issued solicitation number W91278-06-R-007 ("the Solicitation") seeking bids for performance of work described as "IDIQ Contract for Contingency Contract Initiative (CCI) Temporary Roof Repairs Supporting of USACE/FEMA Disaster Response (Florida, Georgia, North Carolina, South Carolina, Mississipi, Louisiana, 2

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Texas, and Alabama)1." 2. At least twenty-five contracts were contemplated by the Solicitation, including twenty (20) SBA Certified 8(a) Set-Asides, and five (5) cross-regional non-8(a) awards, resulting in one (1) HUBZone Set-Aside, one (1) Service-Disabled VeteranOwned Small Business Set-Aside, and three (3) contracts designated as Unrestricted2. 3. 4. Ironclad does not claim to be an SBA certified 8(a) contractor. As of the time of the solicitation, Ironclad was not a small business3 and it was, therefore, ineligible to bid on any restricted portion of the Solicitation, including any of the twenty (20) SBA Certified 8(a) Set-Asides. 5. Campbell was among the 8(a) contractors certified by the SBA in Florida who submitted offers in response to the Solicitation in an effort to receive one of the Florida contracts4. 6. Ironclad was not among the contractors who submitted offers in response to the Solicitation in an effort to receive a Florida contract5. 7. Crown was the only 8(a) contractor certified by the SBA in Louisiana who submitted

1

See the Administrative Record ("AR") at p.154. See the AR at p.146, ¶ 8.2. See Ironclad's Complaint at ¶¶ 14-16. See the AR at p.1516. See the AR at p.1516.

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3

4

5

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an offer in response to the Solicitation in an effort to receive the Louisiana contract6. 8. Ironclad did not submit an offer in response to the Solicitation in an effort to receive the Louisiana contract7. 9. Crown was the only 8(a) contractor certified by the SBA in Texas who submitted an offer in response to the Solicitation in an effort to receive the Texas contract8. 10. Ironclad did not submit an offer in response to the Solicitation in an effort to receive the Texas contract9. 11. SBA Certified 8(a) contractors Crown and Campbell, their offers having been deemed the most advantageous to the government, were each awarded contracts under the Solicitation10. 12. Neither Crown nor Campbell have been notified by the SBA that their size status has been protested by the plaintiff in this matter11. 13. The SBA has not provided Crown or Campbell with a copy of the alleged size status protest or given either company any opportunity to respond to such allegations12.

6

See the AR at p.1522. See the AR at p.1522. See the AR at p.1524. See the AR at p.1522. See AR at pp., 1545, 1568 and 1569. See Affidavits of Ray Palmer and Roy Campbell attached hereto as Exhibits "1" and "2" respectively. See Affidavits of Ray Palmer and Roy Campbell attached hereto as Exhibits "1" and "2" respectively.

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8

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10

11

12

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14.

At the time of the subject solicitation, Crown and Campbell were both (8)(a) certified small businesses, as verified during annual recertifications performed by the Small Business Administration's state liaison13.

15.

Crown and Campbell were qualified as a small businesses at the time that they received the contracts at issue in the captioned litigation14.

16.

Crown, Campbell and ThomCo Enterprises, Inc. ("ThomCo") are not presently and have not previously been affiliated, as defined by 13 C.F.R. §121.103, with one another15.

17.

As of the time of the subject solicitation and contract awards, neither Crown, Campbell nor ThomCo were parties to a joint venture; that is, they had not, by way of contract, express or implied, consorted to combine their efforts, property, money, skill, or knowledge to engage in and carry out any limited-purpose business venture for joint profit16. Statement of the Case

As argued herein, Ironclad does not and cannot have standing to protest the award of any 8(a) small business set-aside contract. Standing is a threshold jurisdictional issue that must be resolved before proceeding to the merits of a case, and Ironclad bears the burden of establishing the elements

13

See Affidavits of Ray Palmer and Roy Campbell attached hereto as Exhibits "1" and "2" respectively. See Affidavits of Ray Palmer and Roy Campbell attached hereto as Exhibits "1" and "2" respectively. See Affidavits of Ray Palmer and Roy Campbell attached hereto as Exhibits "1" and "2" respectively. See Affidavits of Ray Palmer and Roy Campbell attached hereto as Exhibits "1" and "2" respectively.

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15

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of standing. In this case, Ironclad lacks standing because (1) it is not an actual or prospective bidder on contracts awarded to Intervenors, (2) it does not possesses the requisite direct economic interest to protest the award of any 8(a) small business contract, (3) it has failed to exhaust, or even to properly seek an administrative remedy with respect to determination of the Intervenor's small business status, (4) Ironclad does not qualify as an "offeror" as is required to raise the issue of Intervenors' size, and (5) even if it could qualify as an "offeror" the administrative record is devoid of any sign of Ironclad's pursuit of the appropriate administrative remedy. Because Ironclad lacks standing to bring its claim, this claim must be dismissed with prejudice without further action by the court. In the alternative only, should this court somehow find that Ironclad has properly stated a claim with respect to the award of the 8(a) small business set-aside contracts at issue, Ironclad's protest must fail because Crown and Campbell were properly qualified 8(a) small businesses at the time of the awards, and Intervenors herein were, therefore, properly awarded the contracts at issue. Argument I. Ironclad Does Not Have Standing to Protest the Award of the 8(a) Set-Aside Contracts Awarded to Intervenors A. Standing Generally

Standing is a threshold jurisdictional issue that must be resolved before proceeding to the merits of a case.17 The party invoking federal jurisdiction bears the burden of establishing the

Myers Investigative and Security Services, Inc. v. U.S., 275 F.3d 1366, 1369 (Fed. Cir. 2002). Citing Steel Co. v. Citizens for a better Env't, 523 U.S. 83, 102-04 (1998).

17

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elements of standing18, which elements must be present at the inception of the lawsuit19. Standing is also an aspect of the case or controversy requirement, which must be satisfied at all stages of review20. Because standing is jurisdictional, it is not subject to waiver21. B. Ironclad Lacks Standing Because it Is Not an Actual or Prospective Bidder on Contracts Awarded to Intervenors

In the substantially similar case of Rex Service Corp. v. U.S., 448 F.3d 1305 (Fed. Cir. 2006), where these elements of standing were the central issue, the Court of Appeals for the Federal Circuit affirmed this court's dismissal of a plaintiff's claim for lack of subject matter jurisdiction, because the plaintiff was not an "interested party" within the meaning of the statutory grant of jurisdiction22. To come within the Court of Federal Claims' bid protest jurisdiction, a plaintiff such as Ironclad is required to establish that it "(1) is an actual or prospective bidder, and (2) possesses the requisite direct economic interest23." As was true with the plaintiff in Rex, Ironclad did not bid on the

18

Id. at 1370. Citing Lujan v. Defenders of Wildlife, 504 U.S. 555,561 (1992).

Media Technologies Licensing, LLC, 334 F.3d at 1370. citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 (1992). Media Technologies Licensing, LLC, 334 F.3d at 1370. citing Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). See also Mcnutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936).
21 20

19

Media Technologies Licensing, LLC, 334 F.3d at 1370. citing Lewis v. Casey, 518 U.S. 343, 349 n.

1(1996). 28 U.S.C. § 1491(b)(1) Both the United States Court of Federal Claims and the District Courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a federal agency for bids and proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement ... (emphasis added).
23 22

Rex Service Corp., 448 F.3d at 1307. see also MCI Telecom's Corp v. U.S, 878 F.2d 362,364 (Fed. Cir.

1989).

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contracts at issue; here the 8(a) set-aside contracts awarded to Crown and Campbell. Ironclad is, therefore, not an actual bidder. Unlike the plaintiff in Rex, however, Ironclad does not even claim to have been qualified (and, indeed, was not qualified) to bid on these 8(a) contracts. What's more, in order to be eligible to protest, one who has not actually submitted an offer must be expecting to submit an offer prior to the closing date of the solicitation24. After the date for submission of proposals has passed, however, the would-be protestor can no longer realistically expect to submit a bid on the proposed contract25. Because Ironclad did not submit a bid, was not eligible to submit a bid and never even expected to submit a bid on the contracts awarded to Intervenors, Ironclad was and is wholly incapable of being an actual or prospective bidder with respect to these contracts. It is, therefore, necessarily true that Ironclad, having failed this jurisdictional requirement, cannot be an "interested party" as is required for this court to exercise subject matter jurisdiction. C. Ironclad Also Lacks Standing Because it Does Not Possesses the Requisite Direct Economic Interest to Protest the Award of any 8(a) Small Business Contract

Though the jurisdictional inquiry need not continue (the plaintiff having failed the first necessary element of standing), it is also true that Ironclad fails the second element of standing as it does not possess the requisite direct economic interest in the contracts awarded to the Intervenors herein. As explained by the Rex court, to prove a direct economic interest, a bidder is "required to

24

MCI Telecom's Corp v. U.S, 878 F.2d 362, 365 (Fed. Cir. 1989). (emphasis in original). Id.

25

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establish that it had a `substantial chance' of receiving the contract.26" Indeed, Ironclad does not and would not claim that it had any chance to receive any contract awarded to Crown or Campbell pursuant to the subject solicitation. These contracts were, after all, set aside for 8(a) certified small businesses and Ironclad, being neither 8(a) certified nor small, could not have properly placed a bid. As previously noted, Ironclad is, therefore, not an "interested party" as is required for this court to exercise subject matter jurisdiction over its claim27. D. Ironclad Also Lacks Standing because it Has Failed to Exhaust, or Even to Properly Seek an Administrative Remedy with Respect to Determination of the Intervenors' Small Business Status

Even if we were to assume, arguendo, that Ironclad was somehow able to gain standing to challenge Intervenors' size status (which we do not) , this court would still lack jurisdiction to decide this matter on the merits because the administrative record in this matter, even as supplemented by the Plaintiff, is devoid of any sign that Ironclad has properly raised this issue with the Small Business Administration. The issue of Intervenors' size is, therefore, not properly before this court as Ironclad has not exhausted its administrative remedies under 13 C.F.R. § 121.1005 and related regulations. What's more, as is more fully described below, Ironclad was and presently is unqualified even to seek the required administrative remedy. Again, it is the plaintiff's burden to show proper

Rex Service Corp., 448 F.3d at 1308. See also Myers Investigative and Security Services, Inc., 275 F.3d at 1370. (A potential bidder must establish that it had a substantial chance of securing the award in order to establish standing.) See also Myers Investigative and Security Services, Inc. v. U.S., 275 F.3d at 1371 wherein the Court of Appeals for the Federal Circuit explained that "[b]ecause Meyers did not establish that it was an `interested party' under § 1491(b)(1), it did not have standing to bring this bid protest. Accordingly, we affirm the decision of the Court of Federal Claims" granting the government's motion for judgment on the administrative record.
27

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jurisdiction28, and Ironclad has failed to carry this burden. Ironclad's claim must, therefore, be dismissed because "[j]urisdiction in this court must be construed strictly and all conditions placed upon such a grant must be satisfied before the court may assert jurisdiction29." 1. The SBA Regulatory Framework.

The regulatory framework of the Small Business Administration was succinctly described by the Court of Appeals for the D.C. Circuit as follows. The Small Business Act (the "Act") grants the SBA broad authority to craft general criteria for establishing which entities qualify as small business concerns, as well as to make particularized size assessments. See, e.g., 15 U.S.C. § 632(a)(2)(A) ("the Administrator may specify detailed definitions or standards by which a business concern may be determined to be a small business concern"); 15 U.S.C. § 637(b)(6) ("it shall also be the duty fo the Administration and it is empowered, whenever it determines such action is necessary to determine within any industry the concerns, firms ..., or other business enterprises which are to be designated `small-business concerns' for the purpose of effectuating the provisions of this chapter."). The Act further directs that other federal agencies "shall accept as conclusive the Administration's determination as to which enterprises are to be designated `small-business concerns'..." 15 U.S.C. § 637(b)(6). The implementing regulations promulgated by the SBA establish applicable size standards on the basis of Standard Industrial Classification codes, each of which describes a particular economic sector and then specifies the maximum number of employees or annual receipts that a concern (and its affiliates) within that sector can have and still be considered small. See 13 C.F.R. § 121.201. In the government procurement context, the codes correspond to the principal purpose of the product or service being sought. See 13 C.F.R. §§ 121.107, 121.201. * * * When submitting an initial offer or bid for a small business set-aside, a concern must include written self-certification that it qualifies as small under the specified SIC code as of the date of the submission. See 13 C.F.R. §§ 121.404-405. "A contracting
28

LB&B Associates, Inc. v. U.S., 68 Fed Cl. 765, 769 (2005). Citing McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936).
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LB&B Associates, Inc., 68 Fed Cl. 765, 769 (2005). Citing U.S. v. Mitchell, 445 U.S. 535, 538 (1980).

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officer may accept a concern's self-certification as true for the particular procurement involved in the absence of a written protest by other offerors or other credible information which causes the contracting officer or SBA to question the size of the concern." 13 C.F.R. § 121.405(b).30 2. Ironclad Does Not Qualify as an "Offeror" as Is Required to Raise the Issue of Intervenors' Size

For competitive 8(a) contracts, any offeror whom the contracting officer has not eliminated for reasons unrelated to size may make a size protest in connection with a particular procurement under the Small Business Set-Aside Program31. Ironclad does not claim to be qualified as an 8(a) business and has, during the course of these proceedings, admitted that it is not "small" for the purposes of the SBA's set-aside program. Ironclad was, in fact, not an actual offeror with respect to the 8(a) set-aside contracts and could not, even in theory, qualify as a prospective offeror. Ironclad, therefore, lacks standing to protest Intervenor's size. 3. Even If Ironclad Was an "Offeror" the Administrative Record Is Devoid of Any Sign of Ironclad's Pursuit of the Appropriate Administrative Remedy.

To avail itself of SBA review of a competitive procurement, the disappointed bidder must file a grievance with the contracting officer32, prior to the close of business on the 5th day, ... after bid or proposal opening33, setting out sufficiently specific allegations to provide reasonable notice as to the grounds upon which the protested concern's size is questioned34. The contracting officer must
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DSE Inc. v. U.S., 169 F.3d 21, 25-26 (D.C. Cir. 1999). See 13 C.F.R. § 121.1001(a)(2)(i). 13 C.F.R. § 121.1003. 13 C.F.R. § 121.1004. see also 48 C.F.R. 19.302(a)&(d). 13 C.F.R. § 121.1007(b).

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32

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then forward the protest to the SBA Government Contracting Area Officer serving the area in which the headquarters of the protested concern is located35. If the protest pertains to a requirement that has been reserved for competition among eligible 8(a) program participants, the Area Director will notify the SBA district office servicing the 8(a) concern whose size has been protested36. The SBA will, in turn, contact the prospective awardee, providing a copy of the protest as well as the requisite SBA documents which must be filled out and returned within three working days37. Where the awardee provides a timely response, the SBA Regional Office will, if possible, make a formal size determination within 10 working days of receiving the original protest38. There is no evidence in the administrative record, even as supplemented by the plaintiff, that Ironclad initiated the above-described process, as is required to initiate a size determination following the awards under the competitive procurement at issue. Indeed, as evidenced by paragraphs 2-3 of the affidavit of Ray Palmer, President of Crown, which affidavit is attached hereto as exhibit "1", Crown never received any indication from the SBA that such a protest had been lodged, nor did Crown ever receive the requisite SBA documents as required by 13 C.F.R. § 121.1008(b), which documents would have provided Crown an opportunity to answer Ironclad's alleged allegations. As further evidenced by paragraphs 2-3 of the affidavit of Roy L. Campbell, President of Campbell, which affidavit is attached hereto as exhibit "2", Campbell also never

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13 C.F.R. § 121.1003. 13 C.F.R. § 121.1008(a). 13 C.F.R. § 121.1008(b). 13 C.F.R. § 121.1009(a).

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received any indication from the SBA that any protest had been lodged by Ironclad, nor did Campbell ever receive the requisite SBA documents, which would have provided Campbell an opportunity to answer Ironclad's alleged allegations. On the record, it appears as though Ironclad did not lodge a proper size protest at all. Based on the lack of information in the record, it appears as though Ironclad has attempted to raise the issue of Intervenors' size for the first time in the present litigation, thereby improperly sidestepping the appropriate procedure for protesting the size of an awardee under the SBA's regulatory scheme. This is, of course, improper and Ironclad's protest with respect to the size of any awardee under the 8(a) set-aside program should, therefore, be dismissed with prejudice. II. In the Alternative Only, Ironclad's Protest must fail because Crown and Campbell, as Qualified 8(a) Small Businesses at the time of the Awards at Issue, Were Properly Awarded the Contracts at Issue While Crown and Campbell insist that a determination of their eligibility to receive the contracts at issue under the SBA's 8(a) small business set-aside program at the time of the awards under the solicitation at issue is not properly before this court, Crown and Campbell, nonetheless, out of an abundance of caution, provide evidence of such eligibility by submission of the affidavits of the president of each company, which affidavits are attached hereto as Exhibits "1" and "2". The SBA determines the size status of a concern, ... as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation) which includes price39. What's more, once a contract is awarded,

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13 C.F.R. § 121.404(a).

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a small business contractor retains that status for the life of the contract40. As is more fully explained by the affidavits attached hereto, at the time of the subject solicitation, and at the time of the contract awards under that solicitation, Crown and Campbell were (8)(a) certified small business, as verified during annual recertifications performed by the Small Business Administration's state liaison. What's more, Crown and Campbell have never been affiliated with one another or with ThomCo Enterprises, Inc. ("ThomCo"), as defined by 13 C.F.R. §121.103. In fact, no person or entity associated with or connected to one of these companies has ever controlled or had the power to control the other in any manner whatsoever. The companies have never had common ownership or management, and at the time of the subject solicitation awards, they had never joined into any contractual relationship whatsoever, either in principal or otherwise. These companies have never been economically dependent on one another, nor at the time of the subject solicitation and contract awards, were they parties to a joint venture. In short, there is simply no evidence in the record, nor is there any evidence in fact, that could lead to a determination that Intervenors herein were ineligible to receive the 8(a) small business set-aside awards under the solicitation at issue. Conclusion Standing is a threshold jurisdictional issue that must be resolved before proceeding to the merits of a case, and Ironclad bears the burden of establishing the elements of standing. In this case, Ironclad lacks standing because (1) it is not an actual or prospective bidder on contracts awarded to

40

13 C.F.R. § 121.404(g). See also LB&B Associates, Inc., 68 Fed Cl. 765, 772 (2005).

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Intervenors, (2) it does not possesses the requisite direct economic interest to protest the award of any 8(a) small business contract, (3) it has failed to exhaust, or even to properly seek an administrative remedy with respect to determination of the Intervenor's small business status, (4) Ironclad does not qualify as an "offeror" as is required to raise the issue of Intervenors' size, and (5) even if it could qualify as an "offeror" the administrative record is devoid of any sign of Ironclad's pursuit of the appropriate administrative remedy. Because Ironclad lacks standing to bring its claim, Crown and Campbell respectfully aver that this claim must be dismissed with prejudice without further action by the court. In the alternative only, should this court somehow find that Ironclad has properly stated a claim with respect to the award of the 8(a) small business set-aside contracts at issue, Ironclad's protest must fail because Crown and Campbell were properly qualified 8(a) small businesses at the time of the awards, and Intervenors herein were therefore, properly awarded the contracts at issue. Based on the foregoing, Intervenors Crown Roofing Services, Inc. and R. L. Campbell Roofing Company, Inc. respectfully request that the complaint of Ironclad/EEI, a Joint Venture, insofar as that complaint seeks any remedy that would affect any SBA Certified 8(a) Set-Aside Contract under the subject solicitation, be dismissed with prejudice.
/s/ Herman C. Hoffmann, Jr. Herman C. Hoffman, Jr. Simon, Peragine, Smith & Redfearn, L.L.P. Attorneys for Plaintiff 1100 Poydras Street, 30th Floor New Orleans, Louisiana 70163-3000 Tel: (504) 569-2030 Fax: (504) 252-3508

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Certificate of Service I hereby certify that on this 23rd day of July, 2007, a copy of the Defendant's Unopposed Motion For a Protective Order was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

N:\DATA\L\10882017\Pleadings\Motion for judgment on the Record.wpd

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