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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BID PROTEST
AIRBOSS DEFENSE GROUP, LLC,
Plaintiff,
and
STRING KING LACROSSE, LLC,
Plaintiff-Intervenor,
v.
THE UNITED STATES,
Defendant,
and
NEW YORK EMBROIDERY STUDIO, INC.,
Defendant-Intervenor.
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No. 24-365
(Judge Hadji)
REPLY IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
Defendant, the United States, respectfully submits this reply in support of its motion to
dismiss this case. The controversies that initiated the complaints in this case—AirBoss’s
exclusion from the competitive range and String King’s challenge to how the agency would
evaluate the shelf-life subfactor and its award to defendant-intervenor New York Embroidery
Studio, Inc. (NYES)—have been finally resolved by the Department of Health and Human
Services’ (HHS) corrective action. Both AirBoss and String King have received awards and
have executed contracts agreeing to meet the underlying contractual requirements. Any
challenges to the amount of work under the awarded contracts are matters of agency contract
administration, which are not the proper subject of suit brought under this Court’s bid protest
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jurisdiction. Thus, for the reasons stated in our motion to dismiss and further explained in this
reply, this case is moot and should be dismissed.
In its response, AirBoss argues that it “was denied the competitive advantage it would
have enjoyed but for HHS’s elimination of shelf-life as a consideration, which would have
earned ADG a greater share of HHS’s requirements.” AirBoss Resp. at 6. However, these
arguments are speculative as to effect and factually incorrect.
To start, HHS did not eliminate shelf life as an evaluation criterion. As we explained in
our opposition to String King’s application for a temporary restraining order (TRO) and motion
for a preliminary injunction, HHS decided that shelf life exceeding three years would not be
evaluated higher or considered to be an additional strength in the evaluation process.
Defendant’s Supp. Resp., at 13-17; see also AirBoss Def. Grp., LLC v. United States, 172 Fed.
Cl. 219, 230 (2024) (denying String King’s application for a TRO and motion for a preliminary
injunction, finding that HHS’s decision “to alter the shelf-life requirement falls within its broad
discretion to set and implement national public health policy,” and concluding that HHS
“reasonably decided not to prioritize longer shelf-life gowns because ‘lengthy real-time aging
testing is not available’ given that these types of products ‘have been produced for a relatively
short period of time’” (citing Defendant’s Suppl. Resp. Ex. B, Competitive Range
Determination, at 57, ECF No. 63-1)).
In addition, HHS made awards of equal quantities to all awardees, so having different
shelf-life requirements as Air Boss desires would not necessarily change the agency’s
decisions. AirBoss wants a “greater share of HHS’s requirements” under the contract it has
accepted, AirBoss Resp. at 6, but that is a matter of agency contract administration, which
cannot be pursued under this Court’s bid protest jurisdiction.
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AirBoss also argues, “Amendment 0009’s prohibition on the delivery of gowns
manufactured more than three months before delivery arbitrarily ‘harms those offerors who
began to scale up manufacturing in response to this procurement,’ including ADG.” AirBoss
Resp. at 5. To the extent any vendors may have rescaled production in response to a
solicitation before receiving a contract award, doing so was a business decision at the vendor’s
risk and cannot serve as a basis for a protest. Further, AirBoss has agreed to this three-month
requirement by accepting its contract and should not be permitted to undo that obligation under
the guise of a bid protest.
Equally unavailing, String King argues that “[h]ad the Government abided by its original
award criteria that took shelf-life into consideration, the award would not have been divided six
ways because String King was one of a few offerors that provided a longer shelf-life product at
a reasonable price.” String King Resp. at 4. Again, this argument for a larger share of work is
speculative at best. String King and AirBoss take issue with Amendment 0009, but even earlier
amendments of the solicitation, e.g., Amendment 0005, reflect that shelf life was ranked low in
relative importance than most other technical subfactors. See AR313,1 Amendment 0005,
Section M, Factor 2: Technical Capability (concerning the “Relative Order of Importance: The
Government will evaluate the following technical subfactors listed in descending order of
importance as outlined in Section M,” and listing shelf life as the sixth subfactor). And price
was the least important of the four evaluation factors. AR322. So even under the “original
award criteria,” no reasonable basis exists to challenge how many contracts HHS decided to
1 “AR_” refers to pages in the administrative record filed on May 24, 2024, ECF No. 48.
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award, particularly because the solicitation contemplates multiple awards. See AR315 (“The
Government intends to award multiple contracts.”).
AirBoss’s and String King’s reliance on AccelGov, LLC v. United States and SEKRI, Inc.
v. United States is misplaced. Indeed, this protest is not like AccelGov, where the agency’s
corrective action was not fully implemented. 166 Fed. Cl. 606, 609 (2023). Nor is this case
like SEKRI, where the protestors were “seeking to vindicate a specific right to manufacture all
ATAP the defendant plans to procure.” 165 Fed. Cl. 21, 37 (2023) (emphasis added).
Although National Air Cargo involved a post-award challenge to the agency’s corrective
action, AirBoss and String King overlook that the Court had previously dismissed National’s
protest on mootness grounds based on the Government’s representations that it had commenced
corrective action and intended to re-evaluate all offerors’ past performance and make a new
award decision. 127 Fed. Cl. 707, 713 (2016); see also National Air Cargo Grp. Inc. v. United
States, No. 15-1191 (Fed. Cl. Nov. 30, 2015), Order granting defendant’s motion to dismiss,
ECF No. 14. After the agency’s corrective action, National filed a new protest, challenging the
agency’s award decision and arguing that the agency’s six awards violated the solicitation that
limited the number of awardees and required recompetition before awarding further contracts
beyond the original awardees. Id. at 709. The Court stated that a new award decision typically
moots a pending protest, but recognized an exception that applies when the “errors in the
original evaluation have gone unresolved during corrective action, cannot be fixed in corrective
action, or otherwise continue to affect the decision made by the agency.” Id. at 717. Despite
AirBoss’s and String King’s insistence, this case does not fit neatly within any of these
categories.
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The further relief sought by AirBoss and String King is either beyond the Court’s power
to grant (a particular selection decision and award) or pertain to HHS’s discretionary contract
administration (allocation of quantities). Otherwise, it is not entirely clear what remaining
permanent injunctive relief the parties seek or what redressable injury the parties can
convincingly claim. Returning the procurement process to the status quo before the alleged
illegal action occurred would presumably result in termination of AirBoss’s and String King’s
contracts, agency reevaluations, and a new award decision under the solicitation that
contemplates multiple awards. It is not readily apparent where this result gets AirBoss and
String King.
AirBoss’s protest challenged HHS’s decision to exclude them from the competitive
range and String King’s protest challenged HHS’s award to NYES. Both parties take issue
with Amendment 0009, but as we explained in our response to String King’s application for a
TRO and motion for a preliminary injunction, Amendment 009 improved the competitive
process. Defendant’s Suppl. Resp. at 2, 16, ECF No. 63; see also AirBoss Def. Grp., 172 Fed.
Cl. at 229 (“[T]he new shelf-life requirement beneficially promotes competition because it is
minimally restrictive considering HHS’s needs, in accordance with the Competition in
Contracting Act.”). HHS’s corrective action, which is complete, permitted AirBoss and String
King to compete for the contracts at issue, resulted in a new award decision, and allows
AirBoss and String King to receive profits under their respective contracts. In this multiple-
award procurement, AirBoss and String King have effectively received all the relief it could
have obtained in its protests. Assuming AirBoss and String King want HHS to add work to its
existing contracts, these requests for relief do not raise a viable bid protest. Likewise, String
King’s arguments concerning the delivery schedule should be resolved pursuant to the Contract
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Disputes Act. See Gov’t Tech. Servs. LLC v. United States, 90 Fed. Cl. 522, 527 (2009) (“The
Federal Circuit has made it crystal clear that the CDA is the ‘exclusive mechanism’ for the
resolution of disputes arising, as here, in contract management.”). In sum, no further judicial
proceedings are warranted in this case.
For these reasons, this case is moot and should be dismissed.
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Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney
General
PATRICIA M. McCARTHY
Director
s/ Franklin E. White, Jr.
FRANKLIN E. WHITE, JR.
Assistant Director
s/ Jana Moses
JANA MOSES
Senior Trial Counsel
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
P.O. Box 480
Ben Franklin Station
Washington, DC 20044
Tel: (202) 616-2279
Fax: (202) 307-0972
Jana.Moses@usdoj.gov
Attorneys for Defendant
OF COUNSEL:
Megan R. Nathan
Anthony E. Marrone
Attorneys
U.S. Department of Health and Human
Services
Office of the General Counsel,
General Law Division
Washington, D.C. 20201
November 14, 2024
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