January 01, 2017 Public Contract Law Journal

All's Well that Ends Well: Scanwell Jurisdiction in the Twenty-First Century

by Jordan Hess

Jordan Hess ( jahess@law.gwu.edu) is a J.D. Candidate at The George Washington University Law School and the Managing Editor of the Public Contract Law Journal. He gratefully thanks Professors Joshua Schwartz, Collin Swan, Thomas Papson, and Toma´s Bogardus, along with his fellow editors, especially Krista Nunez, for their thoughtful help in developing and polishing this Note.  

I.  Introduction

A.  An Unpleasant Situation

Imagine that you are the president of a family-owned resort in sunny Lake Pleasant, Arizona, and you hear that the government is seeking a concessionaire to build another resort on federal property nearby.1 You review the re- quest for proposals (RFP) and discover, to your dismay, that the Bureau of Reclamation (BOR) will not consider bids from any commercial property owner already adjacent to Lake Pleasant.2 So, your company does not bid.3 After the BOR awards the concession, you learn several frustrating facts: the new concessionaire was the only company that bid, the terms of the contract are materially different than the RFP,4 and the terms are considerably more business-friendly.5 Channeling your inner Billy the Kid, you valiantly file a bid protest6 against the government in the nearby federal district court.7

The awardee intervenes and files a motion to dismiss. She argues that district courts lack jurisdiction over bid protests under the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 (ADRA), which requires that such challenges be brought in the Court of Federal Claims (CoFC).8 If true, your best case scenario is to pay an expensive D.C. lawyer to litigate your case 2,300 miles away. If you sue in the CoFC, however, the court will likely dismiss your claim because it lacks jurisdiction over concession contracts (or so your attorney says).9

Alternatively, place yourself in the awardee’s position. You would prefer that the district court lacks jurisdiction, but, if you must defend your con- tract, you would rather do so in a local forum. Most importantly, you want to keep the concession contract you already won.

Should the suit proceed in district court?

B.  The Lead-Up to the Administrative Dispute Resolution Act

This Note argues that under the Administrative Procedure Act (APA), district courts have jurisdiction over bid protests outside the scope of the Tucker Act’s exclusive jurisdiction.10 Congress frequently seems dissatisfied with the forums available for bidders to challenge government procurement awards; hence over the last ninety years,11 four forums have adjudicated bid protests.12 After the most recent jurisdictional alterations — in 199613 and 200114 — the dominant view is that the Government Accountability Office (GAO) and the CoFC are the only remaining forums.15

Prior to 1996, the GAO,16 CoFC,17 and U.S. District Courts18 all possessed a species of bid protest jurisdiction. The system was an awkward jurisdictional and remedial hodgepodge: protestors could receive an expedient, inexpensive (and non-binding) administrative recommendation at the GAO; a pre-award binding order that the government rebid the contract or repay bid preparation costs from the CoFC; but post-award challenges for injunctive relief had to be brought in district courts.19 To correct this problem, Congress amended the Tucker Act by passing the ADRA in 1996.20 The ADRA altered the CoFC’s jurisdiction, codified identical bid protest jurisdiction in U.S. District Courts, and included a sunset provision that would repeal district court bid protest jurisdiction “over the actions described” in the statute absent congressional action in 2001.21

Congress let the sunset provision take effect and the district courts’ juris- diction “over the actions described” in the Tucker Act22 expired,23 although much debate followed regarding the provision’s actual effect.24 Currently, two circuit courts25 — alongside district courts nationwide26 — hold that the sunset provision repealed the entire bid protest jurisdiction of federal district courts. Other courts, however, hold that district courts retain some bid protest jurisdiction.27

Fifteen years later, there is still no dispositive answer.28 This Note posits that APA jurisdiction ensures that disappointed bidders that could pursue a judicial bid protest pre-ADRA may do so now, even when their claim is beyond the scope of 28 U.S.C. § 1491(b)(1). Part II of this Note examines three sources of judicial jurisdiction over bid protests: Heyer Products Co. v. United States,29 Scanwell Laboratories Inc. v. Shaffer,30 and 28 U.S.C. § 1491(b)(1), and concludes by analyzing the ADRA’s sunset provision. Part III discusses bid protests outside the scope of § 1491(b)(1) that illustrate the district court’s current bid protest jurisdiction. Part IV briefly summarizes the argument and offers concluding remarks.

II.  Judicial Jurisdiction Over Bid Protests

Bid protesters face several obstacles when bringing suit, the first being sovereign immunity, which prevents the United States from being sued “in their courts without their consent.”31 When a contractor challenges an agency’s procurement in federal court, it is suing the federal government. Accordingly, the legal theory under which it sues must incorporate a statutory waiver of sovereign immunity. Although not explicitly prescribed by the Constitution,32 sovereign immunity has a long history33 and is strictly observed; its waiver must be “unequivocally expressed in statutory text,” narrowly construed in favor of the United States, and injured parties only receive the remedies Congress permits.34 Thus, without a waiver of sovereign immunity, any bid protest is a non-starter.35

A second concern arises from Perkins v. Lukens Steel Co.36 There, the Supreme Court of the United States held that bidders have “no enforceable rights”37 to a government contract and cautioned that “[c]ourts should not, where Congress has not done so, subject purchasing agencies of the Government . . . to judicial scrutiny at the instance of potential sellers, which . . . would create a new concept of judicial controversies.”38 However, lower courts have largely circumvented Perkins by allowing disappointed bidders to challenge procedural defects in the letting of procurements contracts.39 Accordingly, disappointed bidders must be aware that they have a right only to procedural fairness in the agency’s awarding of the contract.

A.   Heyer Products Co. v. United States

Heyer Products40 permits review of agencies’ procurement procedures in the CoFC. Prior to the enactment of 28 U.S.C. § 1491(b)(1), early claims courts depended upon a contractual relationship between the government and a contractor for jurisdiction over cases.41 In 1956, the Court of Claims put its implied-in-fact contract jurisdiction to creative use in Heyer Products and sustained a bidder’s challenge to the government’s rejection of its bid.42 The court held that an agency’s request for proposals included an implied- in-fact contract with bidders to objectively evaluate their bids.43 The government breached that implied-in-fact contract by rejecting Heyer Products’ bid in retaliation for the president of Heyer Products’ testimony before Congress that the procuring agency habitually awarded contracts in contravention of procurement law.44 Despite amendments to the CoFC’s jurisdiction under the Federal Courts Improvement Act,45 Heyer Products remains good law — although some thought that the ADRA abrogated it.46

B.   Scanwell Laboratories, Inc. v. Shaffer

Similar to the CoFC’s jurisdiction under Heyer Products, bid protest jurisdiction in the U.S. District Courts was a judicial creation. In Scanwell Laboratories,47 the plaintiff sued the Federal Aviation Administration to void a contract for the provision of landing gear because the awardee’s bid was non-responsive to the solicitation.48 The U.S. Court of Appeals for the D.C. Circuit held that a contractor “who makes a prima facie showing of [an arbitrary or capricious abuse of discretion] on the part of an agency or contracting officer [when considering a bid] has standing to sue” under the APA.49 Acknowledging Perkins’s holding that procurement law exists for the public’s benefit alone — and then setting it aside because the Court decided that case prior to the APA and during the “heyday of the legal right doctrine”50 — the D.C. Circuit found that a disappointed bidder could serve as a “private Attorney General[]” to enforce procurement law.51 Now, disappointed bidders can compel agencies to follow procurement law and remedy their individual injury.52

Scanwell’s legal theory permits a wide spectrum of claims because it employs the APA’s waiver of sovereign immunity53 and a generous jurisdictional grant.54 The APA provides that “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”55 A disappointed bidder may challenge a procurement as long as: (1) it suffered an injury-in-fact that was “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question;” (2) it alleged that the agency acted “arbitrarily, capriciously, or in excess of its statutory authority;” and (3) there was no “ ‘clear and convincing’ indication of a legislative intent to withhold judicial review.”56 Although many courts adopted Scanwell’s reasoning, there is significant doubt regarding whether APA-based jurisdiction survived the ADRA.57

C.  ADRA and 28 U.S.C. § 1491(b)(1)

The ADRA, passed in 1996, made substantial changes to both the bid protest jurisdiction of the CoFC and the district courts.58 Those changes are codified at 28 U.S.C. § 1491(b)(1) and represent the current bid protest jurisdiction of the CoFC:

Both the Unite[d] 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 or 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. Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.59

. . . .

(d) Sunset. — The jurisdiction of the district courts of the United States over the actions described in section 1491(b)(1) of title 28 United States Code (as amended by subsection (a) of this section) shall terminate on January 1, 2001 unless ex- tended by Congress.60

To have standing under § 1491(b)(1), a contractor must be an “interested party;” that is, she must be an “actual or prospective bidder . . . whose direct economic interest would be affected by the award of the contract or by failure to award the contract.”61 Accordingly, municipalities, state regulators,62 and unions63 lack standing to bring suit under § 1491(b)(1).64

The phrase “in connection with” imposes the requirement that the statute itself governs an agency’s procurement-related action.65 “[A]s long as a statute has a connection to a procurement proposal, an alleged violation suffices to supply jurisdiction,”66 even where there was no competition in the first instance.67 For this reason, district court jurisdiction is not identical to § 1491(b)(1) jurisdiction; a non-procurement statute could serve as the basis for a procurement claim, e.g., the Suits in Admiralty Act.68

Section 1491(b)(1), however, is not a narrow statute because “procurement or proposed procurement” encompasses “all stages of the process of acquiring property or services beginning with the process for determining a need for property or services and ending with contract competition and closeout.”69 Although 28 U.S.C. § 1491(b)(1) originally conferred jurisdiction on both the CoFC and the district courts, Congress allowed the sunset provision to take effect in 2001.70 The provision’s ultimate effect on district court jurisdiction is, however, disputed.71

D.  What Happened to Scanwell Jurisdiction?

The majority view is that the district courts no longer have jurisdiction over bid protests.72 Multiple rationales explain how the ADRA repealed APA jurisdiction, but they commonly focus on the effect of § 1491(b)(1)’s narrow language and the sunset provision.73 These views, however, cannot be reconciled with the case law or the language of § 1491(b)(1).

Figure 1

In resolving this jurisdictional quandary, the primary issues are whether ADRA abrogated Scanwell jurisdiction in 1996 and whether the phrase “over the actions described in section 1491(b)(1)”74 impacts APA jurisdiction.75 Four accounts of bid protest jurisdiction accommodate different views on those two issues: (1) Scanwell jurisdiction ended in 1996, (2) Scanwell jurisdiction continues unchanged until today, (3) Scanwell jurisdiction ended in 2001 along with the district court jurisdiction conferred by the ADRA, and (4) Scanwell jurisdiction exists in a modified form.76

Figure 1 represents the view that district courts had jurisdiction to hear bid protests under the APA between 1970 and 1996. Then, with the passing of ADRA, “Congress effectively subsumed APA jurisdiction of the district courts into the more specific jurisdictional language of the ADRA” because a “precisely drawn, detailed statute pre-empts more general remedies.”77 APA jurisdiction is admittedly broader than the narrow jurisdictional grant in § 1491(b)(1).78

Proponents of this view argue that when Congress specifically grants jurisdiction over bid protests to the CoFC in comparatively narrow language,79 that narrower language controls.80 If this view is correct, then Scanwell jurisdiction ended when the ADRA took effect in 1996. This created a five-year window between 1996 and 2001 during which the district courts and the CoFC had identical jurisdiction under § 1491(b)(1). The ADRA then repealed the district courts’ jurisdiction in 2001.81

This theory, although tidy, is likely erroneous because it cannot explain the bid protests brought after 1996 that relied on APA jurisdiction and omitted any discussion of § 1491(b)(1).82 For example, in Iceland S.S. Co. v. Department of the Army, the D.C. Circuit held that the district court had jurisdiction to hear a bid protest by a disappointed bidder based on its Scanwell/ APA jurisdiction.83 The case was filed in 1998 and decided in 2000, after the ADRA took effect but before district court jurisdiction expired under the sunset provision.84 The district court had bid protest jurisdiction under § 1491(b)(1), but the D.C. Circuit makes no mention of it.85 Accordingly, if the ADRA subsumed Scanwell, such that the APA is no longer a basis for procurement protest jurisdiction in district courts, some courts have baselessly exerted jurisdiction.86

Furthermore, this theory neither makes sense of the sunset provision’s language nor accords with the legislative record. The ADRA makes no mention of altering the jurisdiction conferred by other statutes, and congressional debates surrounding the ADRA show that Congress was aware of APA- based Scanwell jurisdiction.87 The question then becomes why, if Congress intended a sweeping reform that affected the scope of a major statute, it did not say so clearly.

Figure 2

Given that the plain text of the ADRA fails to repeal Scanwell jurisdiction and that federal courts of appeal hold that it extended past the enactment of the ADRA,88 it seems unlikely the ADRA subsumed APA jurisdiction entirely. This raises the second possibility: the ADRA did not subsume Scanwell jurisdiction at all.

This second view, shown in Figure 2, posits that the ADRA did not subsume Scanwell and that APA jurisdiction exists as it did before ADRA. Some interpret the phrase “over the actions described in section 1491(b)(1)” as meaning that only jurisdiction conferred by § 1491(b)(1) expired in 2001.89 Accordingly, APA jurisdiction remains viable because it conveys jurisdiction independently of 28 U.S.C. § 1491.90 This argument, however, seems to abuse the plain language of the sunset provision. Congress could have drafted a text that repealed district court jurisdiction “conferred by 1491(b)(1),” but it did not.91 Rather, it selected broader language whose meaning should be preserved.92 Given that the sunset provision repealed district courts’ jurisdiction “over the actions described in 1491(b)(1),”93 it seems that that the natural meaning of the provision is that district courts are divested of jurisdiction over claims within the scope of § 1491(b)(1) regardless of the source of jurisdiction.94

Figure 3

Theory three, shown in Figure 3, combines elements of theories one and two and posits that although the ADRA’s jurisdictional changes to § 1491(b)(1) did not subsume APA jurisdiction, the sunset provision abrogated it.95 This theory relies on the broader reading of the sunset provision that interprets “over the actions described in section 1491(b)(1)” to repeal grants of jurisdiction over such actions described in § 1491(b)(1) regardless of the jurisdiction’s source.96 In areas where jurisdictional grants of § 1491(b)(1) and the APA overlap, the sunset provision repealed the district courts’ jurisdiction under both statutes.97 Implicit in this argument is the claim that district court jurisdiction under § 1491(b)(1) was coextensive with Scanwell jurisdiction in order to completely abrogate Scanwell.98 Other courts have similarly reasoned that the APA undermines Scanwell jurisdiction because it does not confer “authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought[,]”99 and the sunset provision “expressly or impliedly forbids . . . relief ” in the district courts.100

This view, however, fails to account for the developments in bid protest law after 2001 finding that APA-based procurement jurisdiction is not identical to § 1491(b)(1) jurisdiction.101 First, numerous courts have found that district courts continue to possess bid protest jurisdiction.102 Second, the argument that the sunset provision undermines APA jurisdiction relies on the view that the text of § 1491(b)(1) encompasses all bid protests, otherwise the statute does not “expressly or impliedly forbid[]” APA jurisdiction over bid protests beyond § 1491(b)(1)’s scope. This assertion is likely false. Suffice to say that these three theories all lack the explanatory power that a correct theory of procurement jurisdiction requires.

This Note proffers the theory, shown in Figure 4, that the ADRA’s textual changes to § 1491(b)(1) did not erase district court APA jurisdiction, but that the sunset provision repealed those portions of district court procurement jurisdiction that are within the scope of § 1491(b)(1). What remains, then, is a narrower form of APA jurisdiction allowing district courts to adjudicate bid protests outside the scope of § 1491(b)(1).

This theory best accommodates the case law because it explains the manner in which courts have exerted bid protest jurisdiction after 2001 and comports with the sunset provision’s meaning in that district courts lack “jurisdiction . . . over the actions described in section 1491(b)(1).”103 Certainly this theory has shortcomings. It is a little awkward that two overlapping statutes with different scopes conferred the same courts with jurisdiction in the same area of law, and there is a significant amount of case law that directly challenges this view.104 However, as the next section demonstrates, this theory accurately explains why a majority of procurement cases are heard in the CoFC and yet others are not.

Figure 4

III.  Current District Court Bid Protest Jurisdiction

A.  Generally

Although the CoFC has jurisdiction over the bulk of bid protests, district courts retained bid protest jurisdiction over claims that fall outside the scope of § 1491(b)(1), such as treaty-based procurement protests, maritime procurement protests (until Congress specifically abrogated this jurisdiction), and Fifth Amendment de facto debarment claims.105 This Part shows that district courts exercise jurisdiction over cases outside the scope of § 1491(b)(1) because, absent explicit direction from Congress, bidders who had a remedy in district courts prior to the ADRA should not be left without a remedy after the ADRA.

The Tenth Circuit and the Federal Circuit hold that the ADRA did not totally eclipse previously existing federal court jurisdiction; rather, it consolidated the most common elements of bid protest jurisdiction under § 1491(b)(1).106 The Tenth Circuit in City of Albuquerque v. United States107 and the Federal Circuit in Resource Conservation Group, LLC v. United States108 respectively held that two longstanding sources of jurisdiction — APA jurisdiction and Heyer Products — are still viable in their respective courts. Although Resource Conservation focuses on implied-in-fact contract jurisdiction in the CoFC, the Federal Circuit’s reasoning parallels the Tenth Circuit’s and supports Albuquerque’s argument by analogy.

First, the Tenth Circuit and the Federal Circuit agree that § 1491(b)(1) does not entirely supersede previous bid protest jurisdictional schemes.109 Second, they agree that bid protest jurisdiction persists outside of § 1491(b)(1) because it is unlikely that Congress intended to leave disappointed bidders that had a remedy under Scanwell or Heyer Products without a remedy under the ADRA without clearly signaling that intention in the statutory text.110 Thus, the courts resolved they had jurisdiction over procurement challenges beyond the scope of § 1491(b)(1).111

Albuquerque stands for the proposition that bid protest jurisdiction in the district courts remains to accommodate bidders that can bring claims under the APA but not under § 1491(b)(1). In Albuquerque, the City of Albuquerque, New Mexico, sued the Department of the Interior (DoI) for leasing office space in violation of a procurement directive contained in an executive order.112 The DoI responded that the district court lacked subject matter jurisdiction because Albuquerque was lodging a bid protest over which the CoFC had exclusive jurisdiction.113 The district court agreed and dismissed the case.114 Albuquerque appealed, and the Tenth Circuit held that the district court had jurisdiction because “[ADRA] did not affect the district court’s ability to hear cases challenging the government’s contract procurement process so long as the case is brought by someone other than an actual or potential bidder.”115

The Tenth Circuit relied on two interconnected arguments in reaching their conclusion. First, that § 1491(b)(1) does not capture the entire scope of APA procurement jurisdiction.116 The sunset provision only rescinded district court jurisdiction over actions “described” in § 1491(b)(1); therefore actions not “described in” (i.e. outside the scope of ) § 1491(b)(1) were unaffected.117 The district court’s APA jurisdiction over claims by “non-interested”118 parties was not within the scope of § 1491(b)(1); thus, the sunset provision did not consolidate that jurisdiction to the CoFC.119 The Tenth Circuit further reasoned that APA jurisdiction remains valid120 because the text of § 1491(b)(1) does not address APA jurisdiction and the legislative history does not suggest that Congress intended to leave parties who previously had a remedy under the APA without one under ADRA.121

Six years later, the Federal Circuit reached similar conclusions in Resource Conservation. Resource Conservation buttresses the view that supplemental bid protest jurisdiction exists and ensures those doing business with the government are treated fairly.122 Resource Conservation Group (RCG) prepared a bid for the lease of real property from the U.S. Navy, intending to use the property as a quarry.123 However, the Navy rejected its bid as nonresponsive.124 RCG filed suit in the CoFC, alleging that the government breached its implied-in-fact contract to fairly and honestly consider its bid.125 The CoFC dismissed for lack of subject matter jurisdiction, holding that the ADRA subsumed the CoFC’s jurisdiction to hear bid protests under an implied-in-fact contract theory.126

On appeal, the Federal Circuit reversed, holding that the CoFC “[has] jurisdiction under section 1491(a)(1) because the implied-in-fact contract jurisdiction in non-procurement cases that existed prior to 1996 survived the enactment of the ADRA”127 when § 1491(b)(1) does not provide a remedy.128 Prior to the ADRA, the CoFC exercised jurisdiction over challenges to the sale of government property under the implied-in-fact contract theory first espoused in Heyer Products.129 The Federal Circuit held that Heyer Products was still good law because the text of the ADRA did not explicitly repeal such jurisdiction.130 Further, the court explained that while “Congress intended the 1491(b)(1) jurisdiction to be exclusive where 1491(b)(1) provided a remedy,” it is “quite unlikely that Congress would intend that statute to deny a pre-existing remedy without providing a remedy under the new statute.”131

Somewhat surprisingly, the Federal Circuit took the position in Resource Conservation that district courts have jurisdiction over cases that fall outside of § 1491(b)(1):

Similarly, the repeal of district court jurisdiction over bid protests in the ADRA made clear that the district court jurisdiction was repealed only where the new jurisdiction was substituted. [The ADRA] provided that “the jurisdiction of the district courts of the United States over the actions described in section 1491(b)(1) . . . shall terminate . . . unless extended by Congress.” . . . We conclude that the court’s implied in fact jurisdiction over nonprocurement solicitations survived the enactment of 1491(b)(1).132

Resource Conservation harmonizes with Albuquerque because both decisions held that the ADRA did not eviscerate existing sources of jurisdiction and they limit the statute’s effect to what language minimally conveys.133 To be sure, the scope of both holdings has been called into question; some CoFC judges have limited the ruling in Resource Conservation and other courts have challenged Albuquerque’s reasoning.134

For instance, the U.S. District Court for the District of Colorado held that the “plain language and purpose” of the ADRA made clear that Congress intended for only “interested parties” to be able to bring bid protests.135 In the court’s view, policy concerns — such as ensuring that bidders on government contracts are not left remediless after the ADRA —  “are . . . for Congress to discern, not for courts to craft by reading the government’s sovereign immunity waiver under the APA so broadly as to accommodate them.”136 Therefore, the court held that if a party was not within the scope of § 1491(b)(1), it is not entitled to challenge a government procurement.137

Regardless, Albuquerque, Reservation Conservation, and similar cases138 sufficiently rebut this argument by pointing to Congress’s indecision regarding whether to repeal Scanwell jurisdiction and arguing that the ADRA is too vague to support the inference that by enacting it Congress intended to foreclose remedies outside the statute. For these reasons, the sounder argument appears to be that district court bid protest jurisdiction exists to supplement § 1491(b)(1) jurisdiction.

B.  Bid Protests Involving Treaties

APA jurisdiction in district courts also helps ensure treaties are enforceable and disappointed bidders bringing protests under treaties are not remediless.139 Treaty cases tackle an interesting jurisdictional question: whether the CoFC has jurisdiction over a bid protest within the scope of § 1491(b)(1) when the “foundation of the claim” is based on a treaty.140 Such a case is problematic for the CoFC because the court lacks jurisdiction over treaties. Under 28 U.S.C. § 1502, “[e]xcept as authorized by Act of Congress, the [CoFC] shall not have jurisdiction of any claim against the United States growing out of or dependent upon any treaty entered into with foreign nations.”141 Accordingly, if a bid protester seeks to challenge a procurement based on a treaty, that challenge cannot be brought in the CoFC.142 Per Aarsleff A/S. v. United States143 and Iceland S.S. Company v. United States Department of the Army144 frame this issue and reinforce the necessity of bid protest jurisdiction in district courts.

In Per Aarsleff, a disappointed bidder challenged the U.S. Air Force’s decision to award a contract to support a U.S. Air Force base in Greenland to another contractor whose status as the subsidiary of a U.S. company failed to meet a requirement in the RFP that the contractor be Danish.145 The Air Force countered, stating that the CoFC lacked subject matter jurisdiction because 28 U.S.C. § 1502 bars the court from hearing treaty cases.146 The court opined that the “jurisdictional prohibition applies to a claim that is ‘dependent upon ... [a] treaty’ ”147 but held that the foundation of the claim was the RFP, not the similar provision of the Danish-American treaty.148 Accordingly, the CoFC held that it had jurisdiction over the case.149 However, it is easy to imagine the plaintiff ’s predicament had the court found that the suit was based on the treaty itself because of the identical language in the RFP.

Complementing Per Aarsleff, Iceland S.S. demonstrates that a legal theory remains for district court bid protest jurisdiction over treaty-based bid protests after the ADRA.150 In Iceland S.S., disappointed bidders lodged a bid protest regarding a contract for the shipping of goods between the United States and Iceland.151 The disappointed bidder argued that the awardee was not an Icelandic shipping company and therefore was ineligible for the award under the terms of a treaty between the United States and Iceland.152 In disposing of the case, the D.C. Circuit held that “while the interpretation of an international treaty is implicated in [the] action, [it] is essentially a disappointed bidder case” and the court had subject matter jurisdiction under the APA and Scanwell.153 This is significant because Iceland S.S. was argued in 2000 — after the ADRA took effect but before the sunset on district court jurisdiction in 2001.154 The D.C. Circuit did have jurisdiction under 28 U.S.C. § 1491(b)(1), but the court never mentioned that statute;  it relied completely on APA jurisdiction — a significant misstep if such jurisdiction was no longer viable.155

Iceland S.S. and Per Aarsleff are important cases because they speak to the need for supplemental bid protest jurisdiction in the district courts. If procurement-related treaty terms are to be enforceable — without involving high-level diplomatic negotiations — there must be a judicial forum to enforce them. Currently, the forum cannot be the CoFC, so that responsibility falls on the district courts.

C.  Bid Protests Involving Maritime Contracts

Disappointed bidders likely valued maritime bid protest jurisdiction in the district court because it granted them access to a forum that had tremendous institutional expertise in dealing with maritime issues.156 Bid protests brought after 2001 concerning contracts for the provision of maritime services highlight the debate among courts over whether such cases sounded in government procurement or maritime law for jurisdictional purposes.157 The disputed contracts had elements of both, but the CoFC originally transferred these cases to district courts in recognition of their maritime jurisdiction.158 Later, this practice was reversed, and the CoFC exerted jurisdiction because the maritime bid protests were conceived as government contracts cases.159 In 2012, Congress clarified that the CoFC has exclusive jurisdiction over maritime contract bid protests.160 The debate over maritime bid protests reveals that courts initially believed that maritime bid protest jurisdiction existed in the district courts post-ADRA.161 Second, these cases support the view that the ADRA and sunset provision are ambiguous because they required an act of Congress to clarify the CoFC’s jurisdiction over maritime bid protests.162

In ASTA Engineering Incorporated v. United States,163 the CoFC held that “absent specific legislation granting the [CoFC] admiralty jurisdiction covering bid protests on maritime contracts, [such jurisdiction] is lacking.”164 ASTA Engineering filed a bid protest in the CoFC challenging the award to another company for a contract to support various naval ships.165 ASTA claimed the CoFC had jurisdiction under § 1491(b)(1), but the court found that it lacked jurisdiction because of the “long history of exclusive jurisdiction over maritime contract matters in the district courts.”166 Aligning with City of Albuquerque and Resource Conservation, the court showed a special awareness of district courts’ historical jurisdiction in opining, “[t]here is no evidence that Congress determined, in enacting the ADRA, to vary this long-standing exclusive relegation of maritime contract matters involving the United States to the district courts.”167

Some bid protesters, such as those in ASTA Engineering, sued in district courts under the waiver of sovereign immunity in the Suits in Admiralty Act, whereas others sued under the APA, such as the plaintiffs in American Cargo Transport v. Natsios.168 The Suits in Admiralty Act waives sovereign immunity for maritime claims169 and requires that plaintiffs bring admiralty suits against the government in district courts.170 Early on such cases were perceived as admiralty claims over which the district courts had exclusive jurisdiction.171 Other district courts categorized the cases as bid protests over which the district courts had jurisdiction under the APA.172 Although the Suits in Admiralty Act cases did not rely on the APA, they are Scanwell-like in that they relied on a non-procurement statute to support bid protest jurisdiction over cases that were thought to be outside the scope of § 1491(b)(1).173

The jurisdictional winds changed, however, in Sealift, Inc. v. Reilly, in which the incumbent contractor for naval tanker operations challenged its failure to receive a new contract.174 In Sealift, the U.S. District Court for the District of Columbia rejected the argument that the plaintiff ’s claims sounded in admiralty because it involved procurements of maritime-related services.175 Rather, the court held that the plaintiff was bringing a run-of-the-mill procurement dispute (albeit regarding ships) over which the CoFC has exclusive jurisdiction.176

Congress put this controversy to rest when it amended the Tucker Act in 2012 to vest jurisdiction over maritime bid protests exclusively in the CoFC.177 Regardless, cases like Natsios demonstrate that both the CoFC and various district courts believed that ADRA did not repeal the procurement protest jurisdiction of the district courts.

D.  Due Process Challenges to De Facto Debarment

The government cannot “act arbitrarily, either substantively or procedurally” against a bidder despite a bidder lacking the legal “right” to receive a government contract.178 Consistent with this view, government contractors have a Fifth Amendment right to proper suspension and debarment procedures.179 An agency cannot informally “black list” a bidder from receiving agency contracts — frequently called a de facto debarment — and must use the formal suspension and debarment procedures required by law.180 Improperly debarred contractors can exonerate their right to a procedurally proper debarment in both the CoFC (under 28 U.S.C. § 1491(b)(1)) and the district courts.181

If the CoFC procurement dispute jurisdiction is exclusive, how can it share jurisdiction with district courts over de facto debarment claims? If the contractor uses the de facto debarment claim to collaterally challenge an agency’s award of a specific contract, that protest falls within the scope of § 1491(b)(1) and the contractor must bring suit in the CoFC.182 However, if the contractor challenges her de facto debarment generally, then courts will treat the claim as a traditional Fifth Amendment claim, over which the district courts have jurisdiction.183 The district court’s constitutional challenge jurisdiction supplements the CoFC’s § 1491(b)(1) jurisdiction because without it bidders would only be able to challenge their de facto debarment as part of a live bid protest over a specific contract;184 whereas district court jurisdiction allows the bidder to challenge her de facto debarment absent a live procurement dispute.185

When the contractor fights the de facto debarment alone, a pure due process claim exists over which the district court has jurisdiction.186 The most notable de facto debarment case is Old Dominion Dairy Products, Inc. v. Secretary of Defense because it set the precedent for treating de facto debarment claims as tenable Fifth Amendment claims.187 Old Dominion Dairy Products, Inc. (ODDPI) provided dairy products for the government’s international military bases.188 During the bidding process for a new award for an Okinawa base, the Contracting Officer found that ODDPI “lacked integrity” and was non-responsible. The CO denied the contract because of evidence that ODDPI exploited an ambiguity in its (then) current contracts to overcharge the government.189 Nearly simultaneously, the government denied ODDPI a contract for a Yokohama base because of the Okinawa de- termination.190 ODDPI protested both decisions in district court on the grounds that the agency violated its due process rights.191

Today, the CoFC — and not the district courts — would likely have juris- diction over Old Dominion because ODDPI used its due process claim to attack the award of two specific contracts.192 Regardless, Old Dominion illustrates that as a matter of constitutional law the federal government cannot informally and arbitrarily debar contractors.193 The D.C. Circuit had to be creative, though, to fit Old Dominion into the due process framework.

The Fifth Amendment requires that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law[.]”194 Accordingly, to merit due process a party must be at risk of deprivation of a property or liberty interest.195 Bidders arguing that they have a property interest in some aspect of a procurement contract routinely fail.196 In Old Dominion, the court held that ODDPI had a liberty interest in its freedom to contract and that the agency interfered with this interest by covertly debarring it from contracting with the Army.197 The court refused to order the re-solicitation of the challenged contracts because the proper remedy for a due process claim is only additional process.198 Therefore, it remanded the case to the district court to investigate whether ODDPI received proper process.199

Old Dominion laid the foundation for the de facto debarment cases currently heard in district courts because it established a contractor’s Fifth Amendment right to procedurally proper debarment processes.200 Contractors challenging their debarment in district courts have followed Old Dominion’s strategy: they allege the government is infringing on a liberty interest, couch their arguments in due process terms, and seek additional process.201

Alternatively, “[w]here a claim of de facto debarment is raised as a ground of protest (and not as an isolated claim to nullify the debarment), [the CoFC] may consider allegations of de facto debarment in exercising its bid protest jurisdiction.”202 The CoFC exerts jurisdiction over de facto debarment claims when they are used to attack a specific procurement as part of a bid protest.203 For example, in MG Altus Apache Co. v. United States,204 the CoFC had jurisdiction over the disappointed bidder’s de facto debarment claims because the bidder challenged its exclusion from a competition for trucking contracts in Afghanistan by bringing a post-award bid protest arguing, inter alia, that it had not received the contract because of a de facto debarment.205 In contrast, the plaintiffs in Highview Engineering, Inc. v. U.S. Army Corps of Engineers206 challenged the U.S. Army Corps of Engineers’ unofficial decision to refuse to hire Highview for future projects because of the Corps’ distaste for a Highview employee.207 Highview sued in district court, claiming that the Corps de facto debarred it without connecting its claim to its failure to receive any specific contract from the Corps;208 the district court held that it had jurisdiction under the APA.209

This distinction may appear to be splitting hairs, however, there are principled legal and pragmatic reasons for it. First, Fifth Amendment challenges to de facto debarments are proper claims that logically belong in district courts.210 Second, such de facto debarment claims fall outside the scope of § 1491(b)(1).211 Due process claims may challenge debarment without sufficient process and need not directly challenge a procurement.212 Therefore, they do not challenge “a solicitation by a Federal Agency for bids or proposals for a proposed contract” nor “a proposed award or the award of a contract.”213 Further, the claim alleges a violation of the Fifth Amendment. Therefore, the contractor is not objecting to “any alleged violation of [a] statute or regulation in connection with a procurement or a proposed procurement.”214 Such due process claims avoid the jurisdictional hooks of § 1491(b)(1) and are therefore viable in district courts.215

Allowing Fifth Amendment challenges to de facto debarments in the district courts is also desirable on pragmatic grounds. District court judges have expertise in due process claims because they regularly hear due process cases. Further, it seems preferable to have independent Article III judges216 —  as opposed to judges dependent on Congress — hear Fifth Amendment cases considering that a contractor’s constitutional rights and financial well-being are at stake.217 Finally, Congress’s underlying purpose in consolidating bid protests into one judicial forum218 is not frustrated by district courts hearing Fifth Amendment de facto debarment claims because they do not involve the interpretation of procurement law.

De facto debarment jurisdiction is additionally desirable as a supplemental form of bid protest jurisdiction because it allows a bidder to challenge their de facto debarment without needing a live bid protest to do so — if bidders have a potential de facto debarment claim, they can immediately file it.219 Were the CoFC the only de facto debarment forum, then the bidder would either have to challenge their de facto debarment within the statute of limitations for a bid protest or bid on a contract (with the knowledge that it will not receive the award) for the sole purpose of bringing their claim within the scope of § 1491(b)(1).220

IV.  Conclusion

Returning to the Lake Pleasant resort dispute introduced at the beginning of this Note, the U.S. District Court for the District of Arizona ultimately held that it had jurisdiction under the APA — in part because the ADRA did not vest the CoFC with jurisdiction over concession claims.221 The court agreed that the ADRA and the sunset provision did not establish the uniform and monolithic statutory scheme that suggests the CoFC is the only forum available for bid protests.

As both Albuquerque and Resource Conservation hold, CoFC bid protest jurisdiction is only exclusive over claims that fall within the scope of § 1491(b)(1).222 Further, the body of bid protest law that has developed since the 1996 passing of the ADRA demonstrates that district courts actively accept their role as auxiliary forums ensuring that bidders on government contracts may challenge arbitrary and capricious treatment by agencies.223 Prospective bid protesters concerned that they lack standing under § 1491(b)(1), or whose claims in the CoFC have been dismissed for lack of subject matter jurisdiction, should seriously consider filing their challenge in district court before abandoning the claim.

Entity:
Topic:
  1. The narrative that follows dramatizes the events in Protect Lake Pleasant, LLC v. McDonald, 609 F. Supp. 2d 895 (D. Ariz. 2009).
  2. Protect Lake Pleasant, 609 F. Supp. 2d at 899.
  3. Id.
  4. Id.
  5. The request for proposals (RFP) contained provisions requiring that the concessionaire maintain the property unencumbered, transfer all improvements to the government after the contract expires, and required payment for additional acreage. The ultimate agreement between the concessionaire and the government lacked any of these provisions. See id. at 899–900.
  6. This Note uses the term “bid protest” to designate claims that a federal agency improperly evaluated a would-be-contractor’s bid to provide goods or services, receive a concession, or lease property from the federal government prior to the existence of an express contractual relationship between the bidder and the agency. “Bid protest” is employed here because it is the broad term of art referring to such claims in the federal courts. See, e.g., Res. Cons. Grp. v. United States, 597 F.3d 1238, 1243 (Fed. Cir. 2010) (“The [Administrative Dispute Resolution Act] expanded the jurisdiction of the Court of Federal Claims to hear bid protest cases, ultimately giving the court exclusive jurisdiction to review the ‘full range of procurement protest cases previously subject to review in the federal [] courts. . . .’ ”).
  7. See Protect Lake Pleasant, 609 F. Supp. 2d at 915.
  8. Protect Lake Pleasant, 609 F. Supp. 2d at 902.
  9. Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6, 20 (2013).
  10. See 28 U.S.C. § 1491(b)(1) (2012).
  11. See Daniel I. Gordon, Bid Protests: The Costs Are Real, But the Benefits Outweigh Them, 42 PUB. CONT. L.J. 489, 489–90 (2013).
  12. The Government Accountability Office, the Court of Federal Claims (CoFC), and the U.S. District Courts have claimed procurement protest jurisdiction. Michael J. Schaengold et al., Choice of Forum for Federal Government Contract Bid Protests, 18 FED. CIR. B.J. 243, 243 (2008). The General Services Administration’s Board of Contract Appeals also had a very narrow bid protest jurisdiction over technology procurement. Gordon, supra note 11, at 491.
  13. Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874–76 (1996) (codified at 28 U.S.C. § 1491(b)(1) (2012)).
  14. § 12(d), 110 Stat. at 3875; see Steven L. Schooner, The Future: Scrutinizing the Empirical Case for the Court of Federal Claims, 71 GEO. WASH. L. REV. 714, 769 (2003) (noting Congress’s decision to permit district courts’ ADRA jurisdiction to sunset).
  15. It is unlikely that district courts retain bid protest jurisdiction. See Schaengold, supra note 12, at 243–44.
  16. Competition in Contracting Act of 1984, Pub. L. No. 98-369, § 2741, 98 Stat. 494, 1200 (1984).
  17. Federal Courts Improvement Act of 1982, Pub. L. No. 91-164, § 133, 96 Stat. 25, 39–40 (1982); see, e.g., Heyer Prods. Co. v. United States, 140 F. Supp. 409, 413–14 (Cl. Ct. 1956).
  18. See, e.g., Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 876 (D.C. Cir. 1970).
  19. See Collin D. Swan, Government Contracts and the Federal Circuit: A History of Judicial Remedies Against the Sovereign, 8 J. FED. CIR. HIST. SOC’Y 105, 115 (2014).
  20. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874–76 (1996) (codified at 28 U.S.C. § 1491(b)(1) (2012)).
  21. Id. at 3874–75.
  22. Hereinafter, the Tucker Act is referred to as “28 U.S.C. § 1491(b)(1)” or “§ 1491(b)(1).”
  23. § 12(d), 110 Stat. at 3875; Schooner, supra note 14, at 769.
  24. See generally Peter Verchinski, Note, Are District Courts Still A Viable Forum for Bid Protests?, 32 PUB. CONT. L.J. 393 (2003) (arguing it would be reasonable for district courts to continue to hear bid protests).
  25. Rothe Dev., Inc. v. U.S. Dep’t of Def., 666 F.3d 336, 339 (5th Cir. 2011) (per curiam); Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1080 (Fed. Cir. 2001). Two additional circuit courts similarly suggested that the sunset provision repealed the entire bid protest jurisdiction of federal district courts. See Vero Tech. Support, Inc. v. U.S. Dep’t of Def., 437 F. App’x 766, 769 (11th Cir. 2011); Fire-Trol Holdings LLC v. U.S. Forest Serv., 209 F. App’x 625, 626–27 (9th Cir. 2006).
  26. Sci. Sys. & Applications v. United States, No. PWG-14-2212, slip op. at 12 (D. Md. July 22, 2014); White Hawk Grp., Inc. v. United States ex rel. U.S. SBA, No. 08-0038-HE, 2009 U.S. Dist. LEXIS 129688, at *3 (W.D. Okla. Mar. 4, 2009); Save Sandy Hook Corp. v. United States, No. 04-5908, 2007 U.S. Dist. LEXIS 67700, at *13 (D.N.J. Sept. 13, 2007); Aeolus Sys., LLC v. U.S. SBA, No. 8:07-cv-536-T-30TGW, slip op. at 3 (M.D. Fla. May 22, 2007); Adv. Sys. Tech., Inc. v. Barrito, No. 05-2080, 2005 U.S. Dist. LEXIS 39703, at *16–17 (D.D.C. Nov. 1, 2005); Goodwill Indus. Servs. Corp. v. Comm. for Purchase from People Who Are Blind or Severely Disabled, 278 F. Supp. 2d 1290, 1295–96 (D. Colo. 2005); Labat-Anderson, Inc. v. United States, 346 F. Supp. 2d 145, 155 (D.D.C. 2004).
  27. See, e.g., City of Albuquerque v. U.S. Dep’t of the Interior, 379 F.3d 901, 911 (10th Cir. 2004) (“[W]e conclude the [ADRA] did not affect the district court’s ability to hear cases challenging the government’s contract procurement process so long as the case is brought by someone other than an actual or potential bidder.”); K-Mar Indus. v. U.S. Dep’t of Def., 752 F. Supp. 2d 1207, 1211, 1213–14 (W.D. Okla. 2010) (finding district courts have jurisdiction over protests challenging an agency’s decision to in-source procurement contracts under the Administrative Procedure Act (APA)); Protect Lake Pleasant, LLC v. McDonald, 609 F. Supp. 2d 895, 915 (D. Ariz. 2009) (finding district courts have jurisdiction over protests regarding concession agreements under the APA).
  28. Compare City of Albuquerque, 379 F.3d at 911 (holding bid protest jurisdiction exists in district courts post-ADRA) with Emery Worldwide Airlines, 264 F.3d at 1080 (holding all bid protest jurisdiction is vested in the CoFC).
  29. Heyer Prods. Co. v. United States, 140 F. Supp. 409 (Cl. Ct. 1956).
  30. Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970).
  31. Schillinger v. United States, 155 U.S. 163, 166 (1894).
  32. Vicki Jackson, Sovereignty, Immunity, and Judicial Independence, 35 GEO. WASH. INT’L L. REV. 521, 523 (2003) (“Although the ‘sovereign immunity’ of the federal government is accepted today as ‘the law,’ it is nowhere explicitly set forth in the Constitution.”).
  33. C. Stanley Dees, The Future of the Contracts Disputes Act: Is it Time to Roll Back Sovereign Immunity?, 18 PUB. CONT. L.J. 545, 545 (1999).
  34. Lane v. Pena, 518 U.S. 187, 191–92 (1996).
  35. See id.
  36. Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).
  37. Id. at 126.
  38. Id. at 130.
  39. See Heyer Prods. Co. v. United States, 140 F. Supp. 409, 413 (Cl. Ct. 1956); see also Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 866 (D.C. Cir. 1970) (“It must be remembered that Perkins was decided during the heyday of the legal right doctrine, and before the passage of the [APA].”).
  40. Heyer, 140 F. Supp. 409.
  41. The CoFC was previously the Court of Claims (1855–1953) and the U.S. Court of Claims (1953–1982). See Act of February 24, 1855, ch. 122, 10 Stat. 612, 612. (establishing the Court of Claims to investigate claims against the United States “founded upon . . . any contract, express or implied, with the government of the United States. . . .”); Act of July 28, 1953, ch. 253, § 7, 67 Stat. 226, 226 (granting the U.S. Court of Claims jurisdiction over claims “founded upon any express or implied contract with the United States”); Federal Courts Improvement Act of 1982, Pub. L. No. 91-164, § 133, 96 Stat. 25, 39 (1982).
  42. Heyer, 140 F. Supp. at 414.
  43. Id. at 413–14.
  44. Id. at 410–11. Consistent with this breach of an implied contract theory, an unsuccessful bidder could receive only reliance damages equal to the cost of preparing her bid because she expended funds to create a bid in reliance on the agency’s promise to fairly evaluate her bid. Id. at 413–14.
  45. § 133, 96 Stat. at 39–40.
  46. See Res. Cons. Grp. v. United States, 597 F.3d 1238, 1242 (Fed. Cir. 2010) (“The [CoFC] also held that the enactment of 28 U.S.C. § 1491(b) . . . had impliedly repealed the right to sue under an implied-in-fact contract pursuant to 28 U.S.C. § 1491(a)(1). . . .”).
  47. See Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 876 (D.C. Cir. 1970).
  48. Id. at 860–61.
  49. Id. at 869.
  50. Id. at 866.
  51. Id. at 864.
  52. See id. at 876.
  53. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
    5 U.S.C. § 702 (2012).
  54. See id.
  55. Id.
  56. Ballerina Pen Co. v. Kunzig, 433 F.2d 1204, 1207 (D.C. Cir. 1970) (quoting Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)) (citing Scanwell, 424 F.2d at 869 n.10, 875 n.19).
  57. See, e.g., B.K. Instrument, Inc. v. United States, 715 F.2d 713, 722–23 (2d Cir. 1983); Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1265 (5th Cir. 1978); M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1291–92 (D.C. Cir. 1970).
  58. Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874–75 (1996) (codified at 28 U.S.C. § 1491(b)(1) (2012)).
  59. 28 U.S.C. § 1491(b)(1).
  60. § 12(d), 110 Stat. at 3875.
  61. Balt. Gas & Elec. Co. v. United States, 290 F.3d 734, 739 (4th Cir. 2002) (quoting the Competition in Contracting Act (CICA) at 31 U.S.C. § 3551(2) (2012)); AFGE v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (same).
  62. Balt. Gas, 290 F.3d at 739.
  63. AFGE, 258 F.3d at 1294, 1302.
  64. An actual bidder must show that he was prejudiced by the government’s action because he had a “substantial chance” of receiving the contract but for the government’s error. Myers Investigative & Sec. Servs. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (citing Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2001)). This prejudice requirement resulted in the formulation of two different tests for demonstrating that prospective bidders suffered prejudice. In a pre-award bid protest, a prospective bidder must show that she suffered “a non-trivial competitive injury which can be addressed by judicial relief.” Weeks Marine, Inc. v. United States, 573 F.3d 1352, 1362 (Fed. Cir. 2009). In contrast, a prospective bidder bringing a post-award protest needs to show that she possessed a “direct economic interest” that was affected by the awarding of the contract to another bidder, Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006), and that she had a “substantial chance” of receiving the award. Emery Worldwide, 264 F.3d at 1086.
  65. “Where an agency’s actions under a statute so clearly affect the award and performance of a contract, this court has little difficulty concluding that that statute has a connection with a procurement.” RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (internal quotation marks omitted).
  66. Id.
  67. See, e.g., Corel Corp. v. United States, 165 F. Supp. 2d 12, 22, 25 (D.D.C. 2000) (holding that the government’s decision to exclusively use Microsoft software without any competition was “in connection with” a procurement under § 1491(b)(1)).
  68. Puglia Eng’g v. U.S. Coast Guard, No. C 04-04794, 2005 U.S. Dist. LEXIS 40253, at *6–7 (N.D. Cal. Jan. 18, 2005).
  69. Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345–46 (Fed. Cir. 2008) (emphasis omitted).
  70. Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870, 3875 (1996) (codified at 28 U.S.C. § 1491 note (2012)); see Schooner, supra note 14, at 769.
  71. Compare Schaengold, supra note 12, at 250, with Jonathan R. Cantor, Bid Protests and Procurement Reform: the Case for Leaving Well Enough Alone, 27 PUB. CONT. L.J. 155, 171 n.125 (1997) (“The language of the sunset provision indicates that [CoFC] and district court concurrent jurisdiction over bid protests lapses on January 1, 2001. Because the statute does not speak of overruling Scanwell, a literal reading of the [ADRA] could allow jurisdiction to continue under the APA.” (internal citation omitted)).
  72. See supra notes 25–26.
  73. See, e.g., Verchinski, supra note 24, at 406–07.
  74. § 12(d), 110 Stat. at 3875.
  75. See, e.g., Cantor, supra note 71, at 171.
  76. See, e.g., Gordon, supra note 11, at 491; Cantor, supra note 71, at 171; Verchinski, supra note 24, at 409.
  77. Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1080 (Fed. Cir. 2001) (quoting Novell, Inc. v. United States, 109 F. Supp. 2d 22, 24 (D. D.C. 2000)); Novell, 109 F. Supp. 2d at 25 (quoting Brown v. Gen. Servs. Admin., 425 U.S. 820, 834 (1976)).
  78. See 5 U.S.C. § 704 (2012).
  79. The CoFC “shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or 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.” 28 U.S.C. § 1491(b)(1).
  80. See, e.g., Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1080 (Fed. Cir. 2001).
  81. Puglia Eng’g v. U.S. Coast Guard, No. C 04-04794, 2005 U.S. Dist. LEXIS 40253, at *4–5 (N.D. Cal. Jan. 18, 2005).
  82. Some district courts exercised their ADRA jurisdiction. See, e.g., Corel Corp. v. United States, 165 F. Supp. 2d 12, 22 (D.D.C. 2000); Prop. Analysts, Inc. v. United States, No. CIV A. 97-2772, 1998 WL 395151, at *3 (D.D.C. July 10, 1998).
  83. Iceland S.S. Co.-Eimskip v. Dep’t of the Army, 201 F.3d 451, 453 (D.C. Cir. 2000).
  84. See id. at 451, 456; Swan, supra note 19, at 115.
  85. “Disappointed bidders may challenge a government contract award under the [APA], which empowers courts to set aside any agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Iceland S.S., 201 F.3d at 453 (quoting 5 U.S.C. § 706(2)(A) (1994)).
  86. See, e.g., Am. Fed’n of Gov’t Emps., Local 2119 v. Cohen, 171 F.3d 460, 465, 475 (9th Cir. 1999); DSE, Inc., d/b/a Dayron v. United States, 169 F.3d 21, 23, 27 (D.C. Cir. 1999); United Ammunition Container, Inc v. U.S. Dep’t of the Army, No. Civ. A. 97-876, 1997 WL 3235882, at *1 (E.D. Pa. June 11, 1997).
  87. During the Senate debate on the ADRA, Senator William Cohen commented that the ADRA would “reverse the decision of the D.C. Circuit in Scanwell Lab., Inc. versus Shaffer.” 142 CONG. REC. S6155-01, S6156 (daily ed. June 12, 1996) (statement of Sen. William Cohen). In contrast, Congressman William Clinger inquired, “[A]m I correct that H.R. 2077 does not include any language to remove from the district courts the so-called Scanwell bid protest jurisdiction?” to which Representative George Gekas responded, “It was our intent that this bill not include any language regarding the removal of Scanwell jurisdiction from the district courts.” 142 CONG. REC. H12,943 (daily ed. June 4, 1996).
  88. Cantor, supra note 71, at 171 n.124; Verchinski, supra note 24, at 399 (“On the other hand, those who argue that bid protest jurisdiction still exists point out that the language of section 1491(d) only removes the jurisdiction given in section 1491(b)(1), and not the APA jurisdiction that existed before the ADRA.”).
  89. See Verchinski, supra note 24, at 399.
  90. “Because the [ADRA] did not specifically mention the Scanwell case in either the text of § 1491(b) or the sunset provision, the Act’s effect on the district courts’ jurisdiction over cases brought by disappointed bidders is not immediately evident.” City of Albuquerque v. U.S. Dep’t of the Interior, 379 F.3d 901, 909 (10th Cir. 2004).
  91. Cf. Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874–76 (1996) (codified at 28 U.S.C. § 1491(b)(1) (2012)).
  92. See United States v. Ron Pair Enter., 489 U.S. 235, 241 (1989) (“The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ”) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982)).
  93. § 12(d), 110 Stat. at 3875.
  94. Cantor, supra note 71, at 171 n.125.
  95. § 12(d), 110 Stat. at 3875.
  96. “Indeed, the language ‘over the actions described’ appears to be broad, encompassing not only the specific grant of jurisdiction given in section 1491(b)(1), but any other grants of jurisdiction as well. That is, the actions themselves are no longer under the district courts’ jurisdiction, regardless of the source of the granting authority.” Verchinski, supra note 24, at 399.
  97. See § 12(d), 110 Stat. at 3875.
  98. The ADRA’s “legislative history indicates that Congress intended to confer on the [CoFC] jurisdiction previously exercised only by district courts under Scanwell. . . . Thus, the ADRA clearly conferred the [CoFC] with ‘Scanwell jurisdiction’ inasmuch as it permitted the [CoFC] to hear post-award protests.” AFGE v. United States, 258 F.3d 1294, 1300 (Fed. Cir. 2001).
  99. 5 U.S.C. § 702 (2012).
  100. Rothe Dev., Inc. v. U.S. Dep’t of Def., 666 F.3d 336, 338 (5th Cir. 2011) (per curiam); Goodwill Indus. Servs. Corp. v. Comm. for Purchase from People Who Are Blind or Severely Disabled, 278 F. Supp. 2d 1290, 1294 (D. Colo. 2005) (quoting City of Albuquerque v. U.S. Dep’t of the Interior, 379 F.3d 901, 907 (10th Cir. 2004)).
  101. See, e.g., City of Albuquerque, 379 F.3d at 911.
  102. See infra Part III.
  103. Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870, 3875 (1996) (codified at 28 U.S.C. § 1491 note (2012)).
  104. See supra notes 25–26.
  105. See infra Parts III.B, III.C, III.D.
  106. Res. Cons. Grp. v. United States, 597 F.3d 1238, 1246 (Fed. Cir. 2010); City of Albuquerque v. U.S. Dep’t of the Interior, 379 F.3d 901, 909, 911 (10th Cir. 2004).
  107. City of Albuquerque, 379 F.3d at 915–16.
  108. Res. Cons. Grp., 597 F.3d at 1247.
  109. Id. at 1246; City of Albuquerque, 379 F.3d at 911.
  110. Res. Cons. Grp., 597 F.3d at 1246; City of Albuquerque, 379 F.3d at 911.
  111. City of Albuquerque, 379 F.3d at 918.
  112. Id. at 904–05.
  113. Id. at 905.
  114. Id.
  115. Id. at 911.
  116. Id. (“We take the [U.S. Court of Appeals for the] Federal Circuit’s [(Federal Circuit)] reasoning one step further and conclude [ADRA] did not affect the district courts’ jurisdiction to hear cases that are not brought by an actual or potential bidder. Prior to the Act, the district court heard cases brought by non-bidders under 28 U.S.C. § 1331 and the waiver of sovereign immunity in the [APA].”).
  117. Id. (“Section 1491(b) itself only addresses cases brought by an ‘interested party,’ which we have explained means only an actual or prospective bidder. Likewise, the sunset provision only affects ‘actions described in section [1491(b)] of title 28’ namely cases brought by actual or prospective bidders.” (quoting 28 U.S.C. § 1491 note (2012)).
  118. Although Albuquerque was not an “interested party” within the meaning of § 1491(b)(1), the Tenth Circuit held that the City had the requisite constitutional and prudential standing to bring suit in federal court. Id. at 913, 918. The City suffered a ripe injury-in-fact because the Department of the Interior’s failure to build its offices in the Albuquerque’s central business area “weaken[ed] the City of Albuquerque and discourage[ed] development and redevelopment” in the central business area. Id. at 912–13. The City also had prudential standing to bring suit because the city fell within the protected “zone of interests” of Executive Order 12,072. Id. at 918. Accordingly, its claim could be reviewed under the APA. Id.
  119. Id. at 911.
  120. Id.
  121. Id. (“Furthermore, the legislative history of [ADRA] does not lead to the conclusion Congress intended to leave parties who were not actual or prospective bidders without a remedy. Interior has not provided, nor have we found, any piece of legislative history suggesting parties who had some avenue available to seek redress before the passage of the [ADRA] would be left without an avenue for relief after the Act became effective.”).
  122. See Res. Cons. Grp. v. United States, 597 F.3d 1238, 1246 (Fed. Cir. 2010).
  123. Id. at 1240–41.
  124. Id. at 1241.
  125. Id.
  126. Id. at 1242 (“The [CoFC] held that it lacked jurisdiction under 28 U.S.C. § 1491(b)(1) to adjudicate bid protests involving leases of land. . . . The court also held that the enactment of 28 U.S.C. § 1491(b) by the [ADRA] had impliedly repealed the right to sue under an implied-infact contract pursuant to 28 U.S.C. § 1491(a)(1).”) (internal citations omitted).
  127. Id. at 1247.
  128. Res. Cons. Grp., 597 F.3d at 1246.
  129. Id. at 1242 (“Under the Tucker Act, the [CoFC] has jurisdiction ‘to render judgment upon any claim against the United States founded . . . upon any express or implied contract with the United States.’ This jurisdictional grant was construed, prior to the enactment of the ADRA, to authorize suits by disappointed bidders challenging contract awards based on alleged improprieties in the procurement process.” (quoting Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870, 3875 (1996)).
  130. Id. at 1245–46 (“Before the enactment of section 1491(b)(1), the [CoFC] exercised jurisdiction over solicitations for the sale of government property, just as it did in the procurement area. The new statute [the ADRA] on its face does not repeal the earlier jurisdiction.”) (footnote omitted)).
  131. Id. at 1246.
  132. Id. (quoting § 12(d), 110 Stat. at 3875). The Federal Circuit further opined that “[a]dmittedly, dividing jurisdiction between the Court of Federal Claims and the district courts for nonprocurement bid protests may lead to similar problems that led to the enactment of 1491(b)(1).” Id.
  133. Id.; City of Albuquerque, 379 F.3d at 911.
  134. XP Vehicles, Inc. v. United States, 121 Fed. Cl. 770, 792 (2015) (“[I]t appears that the Federal Circuit’s ruling [in Resource Conservation] was a narrow ruling regarding jurisdiction over the sale of government property[.]”). However, compare the decision in Creation Upgrades, where CoFC described the Resource Conservation decision as one that “fundamentally altered the reach of [the] court’s bid protest jurisdiction.” Creation Upgrades, Inc. v. United States, No. 09-788C, 2010 U.S. Claims LEXIS 73, at *1–2 (Cl. Ct. Mar. 24, 2010).
  135. Colo. Bldg. Constr. Trades Council v. U.S. Dep’t of Def., 2012 U.S. Dist. LEXIS 118595, at *9 (D. Colo. 2002).
  136. Id. at *10–11.
  137. Id. at *11–12; see also Balt. Gas & Elec. Co. v. United States, 290 F.3d 734, 739 (4th Cir. 2002); Save Sandy Hook Corp. v. United States, No. 04-5908, 2007 U.S. Dist. LEXIS 67700, at *13 (D.N.J. Sept. 13, 2007).
  138. See, e.g., L-3 Commc’ns Integrated Sys., L.P. v. United States, 94 Fed. Cl. 394, 397 (2010) (“There may well be procurement bid protests that do not fall within the ambit of § 1491(b), and such protests should not be left without a judicial forum when that was not the intent of Congress.”).
  139. See id. (citing Res. Cons. Grp. v. United States, 597 F.3d 1238, 1246 (Fed. Cir. 2010)); see also Iceland S.S. Co.-Eimskip v. Dep’t of the Army, 201 F.3d 451, 453 (D.C. Cir. 2000).
  140. Per Aarsleff A/S v. United States, 121 Fed. Cl. 603, 621 (2015) (citing United States v. Weld, 127 U.S. 51, 57 (1888)), rev’d on other grounds, Per Aarsleff A/S v. United States, No. 1:15-cv 00215-CFL, slip op. at 3, 22–23 (Fed. Cir. June 23, 2016).
  141. 28 U.S.C. § 1502 (2012).
  142. Id.; Per Aarsleff, 121 Fed. Cl. at 621.
  143. Per Aarsleff, 121 Fed. Cl. at 603.
  144. Iceland S.S., 201 F.3d at 451.
  145. Per Aarsleff, 121 Fed. Cl. at 607.
  146. Id. at 621. See also 28 U.S.C. § 1502 (“Except as otherwise provided by an Act of Congress, the United States Court of Federal Claims shall not have jurisdiction of any claim against the United States growing out of or dependent upon any treaty entered into with foreign nations.”)
  147. Id. (quoting United States v. Weld, 127 U.S. 51, 57 (1888)). The court further explained that the “right itself, which the petition makes to be the foundation of the claim, must have its origin—derive its life and existence—from some treaty stipulation.” Id. (quoting Weld, 127 U.S. at 57).
  148. Per Aarsleff, 121 Fed. Cl. at 622 (“[T]he court exercises its juridical power to construe the provisions in the Solicitation that were explicitly drafted to satisfy and incorporate the international understanding. In this endeavor, the court will look to the underlying agreements as a guide to interpreting the text of the Solicitation.”).
  149. Id.
  150. Iceland S.S. Co.-Eimskip v. Dep’t of the Army, 201 F.3d 451, 453 (D.C. Cir. 2000).
  151. Id.
  152. Id. at 457.
  153. Id. at 453.
  154. Id. at 451; Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870, 3875 (1996) (codified at 28 U.S.C. § 1491 note (2012)).
  155. See Iceland S.S., 201 F.3d at 453.
  156. See ASTA Eng’g, Inc. v United States, 46 Fed. Cl. 674, 676 (2000) (noting the “current sole jurisdiction over all admiralty cases should remain in the district courts where great expertise has been developed over the years on such cases” (quoting Whitey’s Welding & Fabrication, Inc. v. United States, 5 Cl. Ct. 284, 286 (1984) (citing S. REP. NO. 1118, reprinted in 1978 U.S.C. C.A.N. 5235, 5242))).
  157. See Red River Holdings, LLC v. United States, 87 Fed. Cl. 768, 793 (2009) (“Red River’s protest targets the activities preliminary to the maritime contract award, governed by statutes and regulations which require the application of procurement law, a matter within the particular expertise, and since 2001, exclusive jurisdiction, of [the CoFC].”).
  158. See ASTA Eng’g, 46 Fed. Cl. at 675.
  159. Red River Holdings, 87 Fed. Cl. at 797.
  160. Jurisdiction over any action described in paragraph (1) arising out of a maritime contract, or a solicitation for a proposed maritime contract, shall be governed by this section and shall not be subject to the jurisdiction of the district courts of the United States under the Suits in Admiralty Act. . . .
    National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 861(a), 125 Stat. 1521, 1521 (2011) (codified at 28 U.S.C. § 1491(b) (2012)).
  161. See, e.g., Puglia Eng’g v. U.S. Coast Guard, No. C 04-04794, 2005 U.S. Dist. LEXIS 40253, at *4–7 (N.D. Cal. Jan. 18, 2005).
  162. See § 861, 125 Stat. at 1521.
  163. ASTA Eng’g, Inc. v United States, 46 Fed. Cl. 674 (2000).
  164. Id. at 676–77.
  165. Id. at 675.
  166. Id.
  167. Id. at 676; see also Puglia Eng’g v. U.S. Coast Guard, No. C 04-04794, 2005 U.S. Dist. LEXIS 40253, at *4–7 (N.D. Cal. Jan. 18, 2005).
  168. Am. Cargo Transport, Inc. v. Natsios, 429 F. Supp. 2d 139, 146 (D.D.C. 2007). See, e.g., Bay Ship Mgmt., Inc. v. United States, 43 Fed. Cl. 535, 537 (1999); Am. Cargo Transp., Inc. v. United States, No. C05-393JLR, 2007 U.S. Dist. LEXIS 83008, at *8 (W.D. Wash. 2007) (noting that “bid solicitations and bid proposals are not severable from the maritime contracts into which the successful bidders enter and, therefore, bid-protest claims are admiralty actions properly before the district courts”); Patriot Contract Servs., LLC v. United States, 388 F. Supp. 2d 1010, 1017 (N.D. Cal. 2005). Cf. Burger v. United States, 49 Fed. Cl. 10 (2001) (holding that regarding maritime contract disputes, “[t]he Suits in Admiralty Act . . . vests jurisdiction in the district courts of the United States over suits against the United States arising from, inter alia, maritime contracts”).
  169. 6 U.S.C. § 30903(a) (2012) (“In a case in which, if a vessel were privately owned or operated, or if cargo were privately owned or possessed, or if a private person or property were involved, a civil action in admiralty could be maintained, a civil action in admiralty in personam may be brought against the United States or a federally owned corporation.”).
  170. Id. § 30906(a) (“A civil action under this chapter shall be brought in the district court of the United States. . . .”).
  171. “Maritime contracts[, however], are a major exception to this Court’s Tucker Act jurisdiction” . . . “Jurisdiction over matters arising in admiralty, including maritime contracts, has traditionally been with the federal district courts” . . . The Suits in Admiralty Act provides that a proceeding in admiralty involving the United States must be brought in the district court.
    Bay Ship, 43 Fed. Cl. at 537 (quoting Phipps v. United States, 21 Cl. Ct. 729, 731 (1990); then quoting Sw. Marine of San Francisco Inc. v. United States, 896 F.2d 532, 534 (Fed. Cir. 1990)).
  172. Natsios, 429 F. Supp. 2d at 146 (“Thus, while the [United States Agency for International Development]’s decision to invoke the emergency assistance provision goes to the ultimate question of whether the agency’s decision to award the contract . . . violated the APA, the case boils down simply to one involving the awarding of a contract.”). At issue in Natsios was the United States Agency for International Development’s decision to award a contract to ship 2,009 metric tons of sorghum on a non-U.S. flagship in violation of the Cargo Preference Act. Id. at 140–41.
  173. See supra note 168.
  174. Sealift, Inc. v. Reilly, 496 F. Supp. 2d 52, 53 (D.D.C. 2007).
  175. Id. at 53–54.
  176. The court held that “[a]lthough the defendant argues that jurisdiction to decide maritime disputes is vested exclusively with the District Courts, the ADRA and its sunset provision unequivocally vest sole jurisdiction over bid protests with the C[o]FC;” the court then transferred the case to the CoFC. Id.
  177. National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 861, 125 Stat. 1521, 1521 (2011) (codified at 28 U.S.C. § 1491(b) (2012)).
  178. Gonzalez v. Freeman, 334 F.2d 570, 574 (D.C. Cir. 1964).
  179. Nat’l Career Coll., Inc. v. Spellings, 371 F. App’x 794, 796 (9th Cir. 2010) (finding that withholding a for-profit college from participating in Title IV student loan program was not a de facto debarment); Evers v. Astrue, 536 F.3d 651, 658–60 (7th Cir. 2008) (dismissing a contractor’s de facto debarment claims when the contractor lacked the predicate liberty or property interest); Trifax Corp. v. Dist. of Columbia, 314 F.3d 641, 643 (D.C. Cir. 2003) (“Because this liberty concept protects corporations as well as individuals, formally debarring a corporation from government contract bidding constitutes a deprivation of liberty that triggers the procedural guarantees of the Due Process Clause.” (internal quotation marks omitted)); Liff v. U.S. Dep’t of Labor, slip op., No. 14-1162, at 9–10 (D.D.C. Jan. 8, 2016) (discussing a contractor’s challenge of a de facto debarment by the Department of Labor based on Fifth Amendment Due Process grounds); Highview Eng’g, Inc. v. U.S. Army Corps of Eng’rs, 864 F. Supp. 2d 645, 647–48 (W.D. Ky. 2012); Karawia v. U.S. Dep’t of Labor, 627 F. Supp. 2d 137, 153 (S.D.N.Y. 2009) (“Courts have found merit in [de facto] debarment arguments on due process grounds.”); Rutigliano Paper Stock, Inc. v. U.S. Gen. Servs. Admin., 967 F. Supp. 757, 764–65 (E.D.N.Y. 1997); Ervin & Assocs., Inc. v. Dunlap, 33 F. Supp. 2d 1, 10 (D.D.C. 1997).
  180. See TLT Constr. Corp. v. United States, 50 Fed. Cl. 212, 215 (2001) (“[De facto] debarment occurs when an agency bars a contractor from competing for government contracts for a certain period of time without following the applicable debarment procedures. . . .”) (citing FAR 9.406–3).
  181. Compare Trifax Corp., 314 F.3d at 643 with MG Altus Apache Co. v. United States, 111 Fed. Cl. 425, 443 (2013).
  182. MG Altus, 111 Fed. Cl. at 443; TLT Constr., 50 Fed. Cl. at 213, 215–16; CRC Marine Servs., Inc. v. United States, 41 Fed. Cl. 66, 68, 84 (1998).
  183. See Sealift, Inc. v. Reilly, 496 F. Supp. 2d 52, 53–54 (D.D.C. 2007).
  184. One reason a contractor may not use a bid protest to challenge a de facto debarment is that the contractor did not discover that she was de facto debarred until the statute of limitations for bringing a protest expired.
  185. See, e.g., Highview Eng’g, Inc. v. U.S. Army Corps of Eng’rs, 864 F. Supp. 2d 645, 647 (W.D. Ky. 2012).
  186. See Trifax Corp., 314 F.3d at 642.
  187. Old Dominion Dairy Prods. v. Sec’y of Def., 631 F.2d 953, 955–56 (D.C. Cir. 1980) (“[W]e hold that when the Government effectively bars a contractor from virtually all Government work due to charges that the contractor lacks honesty or integrity, due process requires that the contractor be given notice of those charges as soon as possible and some opportunity to respond to the charges before adverse action is taken.”).
  188. Id. at 956.
  189. Id. at 955.
  190. Id. at 958.
  191. Id. at 959.
  192. Id.
  193. Id. at 955–56.
  194. U.S. CONST. amend. V. Old Dominion, 631 F.2d at 967 (“We turn finally to the question of what process is due. It is by now axiomatic that a determination that a due process liberty or property interest has been violated does not determine the amount or type of process that is constitutionally required.”).
  195. Board of Regents of State Colls. v. Roth, 408 U.S. 564, 569–70 (1972).
  196. See, e.g., Evers v. Astrue, 536 F.3d 651, 660 (7th Cir. 2008) (denying that plaintiff had a property interest in his contract with the government). Several federal courts have found that state governments created property interests in procurement contracts whose deprivation entitled contractors to due process. See, e.g., Andersen-Myers Co. v. Roach, 660 F. Supp. 106, 111 (D. Kan. 1987); Three Rivers Cablevision, Inc. v. Pittsburgh, 502 F. Supp. 1118, 1131 (W.D. Pa. 1980).
  197. Old Dominion, 631 F.2d at 962 (“The most difficult question presented here is whether the Government conduct injured a cognizable liberty interest in this case. We hold that it did.”).
  198. Id. at 969.
  199. Id.
  200. Id. at 955–56.
  201. See, e.g., Liff v. U.S. Dep’t of Labor, slip op., No. 14-1162, at 10 (D.D.C. Jan. 8, 2016); Highview Eng’g, Inc. v. U.S. Army Corps of Eng’rs, 864 F. Supp. 2d 645, 647–48 (W.D. Ky. 2012); Trifax Corp. v. District of Columbia, 314 F.3d 641, 641 (D.C. Cir. 2003).
  202. MG Altus Apache Co. v. United States, 111 Fed. Cl. 425 (2013).
  203. See Pub. Warehousing Co. v. Def. Supply Ctr., 489 F. Supp. 2d 30, 44 (D.D.C. 2007) (“[T]he [CoFC] has a history of exercising jurisdiction over constructive [de facto] debarment claims where such claims are raised in connection with a bid protest falling within section 1491(b)(1).”).
  204. MG Altus, 111 Fed. Cl. 425.
  205. MG Altus, 111 Fed. Cl. at 430, 443.
  206. Highview Eng’g, 864 F. Supp. 2d 645.
  207. Id. at 647.
  208. Id.
  209. Id. at 649.
  210. Cf. Pub. Warehousing Co., v. Def. Supply Ctr., 489 F. Supp. 2d 30 (D.D.C. 2007). Here, the plaintiff alleged the supply center violated its due process rights by improperly awarding a contractto another bidder. The plaintiff ’s claim, however, was based on violations of the Federal Acquisition Regulation (FAR) and it requested an injunction requiring the re-solicitation of the contract. The court held that the plaintiff was lodging a procurement protest because a procurement was being challenged, the source of law was the FAR—not the Fifth Amendment—and a procurement protest remedy was requested—not a due process remedy. Therefore, the case was transferred to the CoFC. Id. at 36, 44–45.
  211. See Old Dominion Dairy Prods. v. Sec’y of Def., 631 F.2d 953, 955–56 (D.C. Cir. 1980).
  212. See id.
  213. 28 U.S.C. § 1491(b)(1).
  214. Id.
  215. Because a Fifth Amendment challenge to de facto debarment is a constitutional claim, it could fall within the scope of 28 U.S.C. § 1491(a), which vests exclusive jurisdiction in the CoFC over claims against the United States “founded [] upon the Constitution.” The CoFC, however, has no jurisdiction under § 1491(a) to hear Fifth Amendment due process claims because these claims are not “money mandating;” that is, the required remedy is not financial remuneration, but the awarding of additional process. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005.).
  216. Article III judges, such as those who sit on the benches of the U.S. District Courts, are guaranteed life tenure, no reduction in pay, and may only be removed by impeachment. U.S. CONST. art. III.
  217. Congress established the CoFC under Article I of the Constitution and its judges serve fifteen-year terms with the possibility of reappointment, may be removed “for cause,” and lack salary protection. 28 U.S.C. §§ 171–172 (2012).
  218. See supra note 12.
  219. See, e.g., Highview Eng’g, Inc. v. U.S. Army Corps of Eng’rs, 864 F. Supp. 2d 645, 647 (W.D. Ky. 2012).
  220. See Pub. Warehousing Co. v. Def. Supply Ctr., 489 F. Supp. 2d 30, 44 (D.D.C. 2007).
  221. Protect Lake Pleasant, LLC v. McDonald, 609 F. Supp. 2d 895, 915 (D. Ariz. 2009). Thus, Lake Pleasant also supports the view that supplementary jurisdiction over bid protests exists in district courts over challenges outside the scope of § 1491(b)(1). Neither the plaintiffs nor the defendants prevailed on the merits at summary judgment. Id. at 924.
  222. See Res. Cons. Grp. v. United States, 597 F.3d 1238, 1246 (Fed. Cir. 2010); City of Albuquerque v. U.S. Dep’t of the Interior, 379 F.3d 901, 911 (10th Cir. 2004).
  223. Furthermore, the legislative history of the [ADRA] does not lead to the conclusion Congress intended to leave parties who were not actual or prospective bidders without a remedy. Interior has not provided, nor have we found, any piece of legislative history suggesting parties who had some avenue available to seek redress before the passage of the [ADRA] would be left without an avenue for relief after the [ADRA] became effective.
    City of Albuquerque, 379 F.3d at 911.