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

Case 1:07-cv-00007-SGB

Document 11

Filed 01/10/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST MANAGEMENT SOLUTIONS & SYSTEMS, INCORPORATED, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 07-7C (Judge Braden)

DEFENDANT'S MOTION TO DISMISS Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests that the Court dismiss as moot the complaint of plaintiff, Management Solutions & Systems, Inc ("MSSI"). This action is moot because the the Government Accountability Office ("GAO") has dismissed MSSI's protest of the contract modification at issue. This case is a challenge to the determination and findings of the Departrment of Housing and Urban Development ("HUD") that MSSI's protest to GAO did not trigger the automatic stay provision of the Competition in Contracting Act ("CICA"), 31 U.S.C. § 3553(c), or in the alternative, that an override of the stay is in the best interests of the United States. Subsequent to the hearing conducted earlier today, HUD learned that GAO has dismissed MSSI's protest. Attachment 1. Because MSSI's protest at GAO is no longer pending, its challenge to HUD's override of the stay that MSSI claims arose from that protest is extinguished. The dismissal of the protest by GAO eliminates the basis upon which the stay could have arisen. Thus, this action to enforce or

Case 1:07-cv-00007-SGB

Document 11

Filed 01/10/2007

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reinstate the CICA stay pending a decision by GAO is moot. See Schooling v. United States, 63 Fed. Cl. 204, 208-09 (2004) (discussing mootness doctrine). Accordingly, the Court no longer possesses jurisdiction to entertain plaintiff's claims, and the case is no longer justiciable. Id. For these reasons, we respectfully request that the Court dismiss MSSI's complaint as moot. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Donald E. Kinner DONALD E. KINNER Assistant Director s/ Roger A. Hipp ROGER A. HIPP Trial Attorney U.S. Department of Justice Civil Division Commercial Litigation Branch 1100 L St., N.W. Attn: Class. Unit - 8th Fl. Washington, D.C. 20530 Tel.: (202) 305-3091 January 10, 2007 Attorneys for Defendant

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Case 1:07-cv-00007-SGB

Document 11

Filed 01/10/2007

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CERTIFICATE OF FILING I hereby certify that on January 10, 2007, a copy of foregoing "DEFENDANT'S MOTION TO DISMISS" 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.

s/ Roger A. Hipp

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