Opinion and Order — AirBoss Defense Group, LLC, Case 1:24-cv-00365-PSH (Dkt. 108, Fed. Cl.)

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      Case 1:24-cv-00365-PSH       Document 108      Filed 05/30/25    Page 1 of 5




        In the United States Court of Federal Claims

 AIRBOSS DEFENSE GROUP, LLC,

                  Plaintiff,

       and

 STRING KING LACROSSE, LLC,

                  Plaintiff-Intervenor,
                                                    No. 24-365
 v.                                                 (Originally Filed: May 14, 2025)
 THE UNITED STATES,                                 (Reissued Publicly: May 30, 2025)

                  Defendant,

       and

 NEW YORK EMBROIDERY
 STUDIO, INC.,

                  Defendant-Intervenor.


Daniel P. Graham, Llewelyn M. Engel, McDermott Will & Emery LLP, Washington, D.C.,
for Plaintiff AirBoss Defense Group, LLC.
Eric S. Crusius, Amy L. Fuentes, Richard Ariel, Holland & Knight LLP, Tysons, Virginia
and Washington, D.C., for Plaintiff-Intervenor String King Lacrosse, LLC.
Jana Moses, Senior Trial Counsel, Franklin E. White, Jr., Assistant Director, Patricia M.
McCarthy, Director, Commercial Litigation Branch, Brian M. Boynton, Principal Deputy
Assistant Attorney General, Civil Division, United States Department of Justice,
Washington, D.C., for Defendant. Megan R. Nathan and Anthony E. Marrone, Attorneys,
U.S. Department of Health and Human Services, Washington, D.C., of counsel.
Tara D. Hopkins, Jonathan D. Shaffer, Scott E. Whitman, Haynes & Boone, LLP, Tysons
Corner, Virginia and Washington, D.C., for New York Embroidery Studio, Inc.
      Case 1:24-cv-00365-PSH           Document 108        Filed 05/30/25      Page 2 of 5




                                  OPINION AND ORDER 1
HADJI, Judge.
       Pending before the Court is the Government’s Motion to Dismiss this pre-award bid
protest on the basis that the Government has implemented corrective action, including
awarding contracts to Plaintiffs, which they allege moots the pre-award protest. ECF 92.
                                       BACKGROUND
       This pre-award bid protest is brought by Plaintiffs Airboss Defense Group, LLC
(Airboss) and String King Lacrosse, LLC (String King), and stems from solicitation
number 75A50322R00008 issued on June 28, 2022, by the U.S. Department of Health and
Human Services (HHS). That solicitation sought to create a national stockpile of personal
protective equipment (PPE), specifically Level 2 Isolation Gowns. AR 132. In September
2023, HHS awarded a contract to Defendant-Intervenor New York Embroidery Studio, Inc.
(NYES). AR 1308. Plaintiffs challenged the award before the U.S. Government
Accountability Office (GAO), but these protests were dismissed in November 2023 after
HHS agreed to take corrective action by reevaluating proposals and making a new source
selection decision. AR 1636-37, 1646-47.
        This matter reawakened in February 2024 when HHS published Amendment 0008
to the solicitation. AR 1916. String King filed a second pre-award protest at the GAO
alleging that the amendment improperly modified the evaluation criteria by eliminating
shelf life. AR 1923. Similarly, Airboss filed a pre-award protest in this Court on March 7,
2024, alleging that HHS improperly evaluated its proposal and erred in excluding Airboss
from the competitive range determination. ECF 1.
       Following these protests, HHS again proposed corrective action, including
canceling the solicitation, terminating the contract award to NYES, and reviewing and
reconsidering the requirement for isolation gowns, to include shelf-life considerations. AR
2253. The GAO then dismissed String King’s second GAO protest due to the proposed
corrective action. AR 2011-13. However, String King filed a motion to intervene in
Airboss’s protest before this Court, ECF 29, which was granted. ECF 30. In its initial
Complaint, String King primarily challenged the issuance of Amendment 008. ECF 37.
        Subsequently, on May 31, 2024, HHS issued Amendment 0009. AR 2395. This
amendment superseded the prior solicitation in its entirety (including the amendments) and
replaced it with a new solicitation with altered requirements and different evaluation
criteria. AR 2395-2448. Among other things, Amendment 0009 revised shelf-life
requirements to require that Isolation Gowns have a shelf life of three years and be
manufactured within three months of delivery. AR 2410. Despite the establishment of a

1
 The Opinion was issued under seal on May 14, 2025. The parties were directed to propose redactions
within 14 days of issuance of the Opinion. No proposed redactions were received. The Court hereby
publicly releases the Opinion in full.
                                                2
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three-year shelf life requirement, however, Amendment 0009 omitted previously included
language regarding shelf-life as part of the agency’s evaluation criteria. See ECF 73 at 4-5
(comparing the language in Amendment 0009 with prior versions of the solicitation).
       In June 2024, Airboss amended its Complaint to challenge the changes made by
Amendment 0009, specifically the elimination of shelf life as an evaluation criterion and
the prohibition on accepting gowns that are more than three months old. See generally ECF
51. That same month, String King also amended its Complaint to challenge Amendment
0009 as well as the changes formerly made by Amendment 0008. See generally ECF 52.
String King filed a motion for a preliminary injunction and a temporary restraining order
preventing HHS from moving forward with the newly amended solicitation. ECF 54.
        This Court denied the motion for preliminary injunction on June 27, 2024, but did
not settle the overarching pre-award protest on the merits. ECF 73. Two months later, HHS
awarded contracts to six different contractors, including String King and Airboss, with each
contractor receiving an award for the same number of gowns. AR 2473-2523. Both String
King and Airboss accepted the awards on September 6, 2024. AR 2540, 2615.
       Following the award of these contracts, on September 20, 2024, String King and
Airboss indicated a willingness to settle this matter after the Government presented their
intention to have this case dismissed on the grounds of mootness. ECF 92 at 2. On October
1, 2024, pursuant to Court of Federal Claims Rule 40.1(c), this matter was transferred to
the undersigned. ECF 91. On October 3, 2024, after failing to reach a settlement agreement
to resolve this litigation, the Government filed the instant Motion to Dismiss. ECF 92.
                                            DISCUSSION
       The Government’s Motion to Dismiss under RCFC 12(b)(1) asserts that, due to the
corrective action taken by HHS which culminated in contract awards to Plaintiff and
Plaintiff-Intervenor, there is no longer an active case or controversy, and so this pre-award
bid protest is therefore moot and must be dismissed. ECF 92 at 1.
       The mootness doctrine is one of several justiciability doctrines originating from the
“case or controversy” requirement of Article III of the Constitution. 2 Fisher v. United
States, 402 F.3d 1167, 1176 (Fed. Cir. 2005). At all stages of litigation, a plaintiff must
maintain a personal interest in the dispute. Uzuegbunam v. Preczewski, 592 U.S. 279, 282
(2021). The doctrine of standing generally assesses whether that interest exists at the outset,
while the doctrine of mootness considers whether it exists throughout the proceedings. Id.
The Supreme Court has cautioned that “[t]he burden of demonstrating mootness ‘is a heavy
one.’” Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979). “A case is moot when the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir. 1998) (quoting

2
  “The Court of Federal Claims, though an Article I court, … applies the same standing requirements
enforced by other federal courts created under Article III.” Anderson v. United States, 344 F.3d 1343, 1350
n.1 (Fed. Cir. 2003).
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Powell v. McCormack, 395 U.S. 486, 496 (1969)). Under the Supreme Court’s two-part
test, a case is moot if “(1) it can be said with assurance that ‘there is no reasonable
expectation …’ that the alleged violation will recur and (2) interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.” Cnty. of L.A.,
440 U.S. at 631 (alteration in original) (citations omitted) (quoting United States v. W.T.
Grant Co., 345 U.S. 629, 633 (1953)).
        The Government argues that Plaintiffs “have effectively received all the relief [they]
could have obtained in [these] protests.” ECF 95 at 5. The Court disagrees. This case
remains a live controversy because Plaintiffs have yet to receive the very relief sought in
their Complaint. Specifically, for all its corrective action following Plaintiffs’ pre-award
protests, the Government has still not addressed Plaintiffs’ concerns relating to shelf-life.
Although Plaintiffs received an award in the latest round of corrective action, such an
award cannot be viewed as full relief in the context of Plaintiffs’ Complaint. Indeed,
Plaintiffs do not simply seek any award—rather, they seek an award based on proper
evaluation criteria. Plaintiffs contend that they were “denied the competitive advantage
[they] would have enjoyed but for HHS’s elimination of shelf-life as a consideration, which
would have earned [them] a greater share of HHS’s requirements.” ECF 93 at 6.
Specifically, String King contends 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.” ECF 94 at 4. Plaintiff’s arguments that procurement errors
reduced the size of their overall contract award is sufficient to find that Plaintiffs maintain
a legally cognizable interest in the outcome of this case even considering their contract
award. See NEC Corp., 151 F.3d at 1369 (noting a case is not moot when an intervening
event satisfies some of the plaintiff’s concerns if other consequences of defendants’ actions
remain). Given Plaintiffs’ economic interest in a larger portion of the contract award,
coupled with the fact that the Court has never addressed the crux of Plaintiffs allegations
that the Government’s procurement process was arbitrary and capricious due to the
decreased weight of shelf-life in the evaluation criteria, the Court simply cannot find that
the Government met its heavy burden of demonstrating that “interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.” Cnty. of L.A.,
440 U.S. at 633. In fact, the Government’s reply brief appears to concede that the Court
could return the procurement process to the status quo by terminating the contract awards,
which it simply dismisses as a result that plaintiffs would not want. See ECF 95 at 5.
Accordingly, the Government’s Motion to Dismiss on grounds of mootness is denied.

                                       CONCLUSION
       For the foregoing reasons, the Government’s Motion to Dismiss (ECF 92) is
DENIED. The parties SHALL submit a joint status report on or before June 13, 2025,
including a proposal for further proceedings.


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Case 1:24-cv-00365-PSH   Document 108   Filed 05/30/25   Page 5 of 5




IT IS SO ORDERED.



                                   ________________
                                   PHILIP S. HADJI
                                   Judge




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