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Adams and Associates, Inc. v. United States

United States Court of Appeals, Federal Circuit

January 27, 2014

ADAMS AND ASSOCIATES, INC., Plaintiff-Appellant,
v.
UNITED STATES, Defendant-Appellee. Adams and Associates, Inc., Plaintiff-Appellant,
v.
United States, Defendant-Appellee.

Page 103

Michael J. Schrier, Jackson Kelly PLLC, of Washington, DC, argued for plaintiff-appellant. On the brief was G. Lindsay Simmons. Of counsel were Katherine A. Calogero and Hopewell H. Darneille, III.

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Stuart F. Delery, Acting Assistant

Page 104

Attorney General, Jeanne E. Davidson, Director, and Matthew P. Roche, Trial Attorney. Of counsel on the brief were David R. Koeppel and Peter J. Dickson, Attorneys, Office of the Solicitor (MALS), United States Department of Labor, of Washington, DC.

Before LOURIE, DYK, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge.

Adams and Associates, Inc. (" Adams" ) appeals two orders [1] of the United States Court of Federal Claims, each of which denied Adams's motion for judgment on the administrative record and granted the United States' cross-motion for judgment on the administrative record. Adams & Assocs., Inc. v. United States ( Adams I ), 109 Fed.Cl. 340 (Fed.Cl.2013); Adams & Assocs., Inc. v. United States (Adams II ), No. 12-409C (Fed.Cl. Mar. 27, 2013) (Oral Op. & Order) (J.A. 6-37).[2] Because Adams fails to establish that the U.S. Department of Labor's (" DOL" ) decisions to designate the contracts for the operation of the Gadsden and Shriver Job Corps Centers as small business set-asides were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the Court of Federal Claims is affirmed in both cases.

BACKGROUND

I. The Job Corps Program

The Job Corps program is a national residential training and employment program administered by the DOL. In 1998, Congress passed the Workforce Investment Act, which reformed the Job Corps program and authorized the Secretary of Labor (" the Secretary" ) to enter into agreements with government agencies or private organizations to operate " Job Corps centers." 29 U.S.C. § 2887 (2006 & Supp. V 2011).

Adams is the incumbent contractor for both the Gadsden and the Shriver Job Corps Centers. Because of the small business limitation placed on the contracts for the follow-on operation of these Centers, Adams cannot compete for the contracts since it does not qualify as a small business.

II. The Gadsden Center

Adams was awarded the contract to operate the Gadsden Center in 2004. In April 2011, the DOL declined to exercise its option to extend Adams's contract. Prior to issuing a solicitation for a new contract, the DOL issued a Request for Information (" RFI" ) to conduct market research regarding the businesses, especially small businesses, that might be willing to compete for the operation of Gadsden. Based on the results of this research, the DOL decided to limit the right to compete for the Gadsden contract to small businesses. Adams filed a pre-award bid protest, in response to which the DOL cancelled the Gadsden solicitation. Adams's protest was then dismissed without prejudice. Adams & Assocs., Inc. v. United States, No. 11-665C (Fed.Cl. Oct. 13, 2011) (order dismissing protest).

Page 105

The DOL then issued a second RFI to collect new market research using a revised set of criteria to evaluate the respondents. The DOL continued to use this revised set of criteria in its subsequent RFIs for Job Corps Center procurements, including for the Shriver Center. Pursuant to the Federal Acquisition Regulation, 48 C.F.R. § 19.303(a) (2012), as part of the RFI, the contract for Gadsden was assigned an industry category code: North American Industry Classification System (" NAICS" ) 611519,[3] the only code applicable to Job Corps Centers. The small business revenue limit associated with this code is $35.5 million in annual receipts. 13 C.F.R. § 121.201. Therefore, if the contract for the operation of Gadsden were to be set aside for small businesses, any business with more than $35.5 million in annual receipts, including Adams, would not qualify. After conducting its second RFI, the DOL concluded that there was a reasonable expectation that at least two capable small businesses would bid on the Gadsden contract. Therefore, on May 8, 2012, the DOL issued a solicitation notice for the Gadsden contract as a total small business set-aside.

III. The Shriver Center

Adams's contract to operate the Shriver Center ran from 2008 to 2013. Before issuing a solicitation for a new contract, the DOL issued an RFI to conduct market research regarding businesses that might be willing to compete for the operation of Shriver. This RFI included the criteria developed in the second RFI for Gadsden, and the contract was assigned the same industry code (NAICS 611519). Therefore, like Gadsden, if the Shriver contract were designated for small businesses, any business with more than $35.5 million in annual receipts, including Adams, would not qualify. Six businesses responded to the RFI, four of which were small businesses. Because the DOL concluded that there was a reasonable expectation that at least two of these small businesses would be interested in bidding on the Shriver contract, on October 16, 2012, the DOL issued a solicitation notice for the Shriver Center as a total small business set-aside.

Adams filed two pre-award bid protests in the Court of Federal Claims. In each case, the Court of Federal Claims denied Adams's motion for judgment on the administrative record and granted the United States' cross-motion for judgment on the administrative record. Adams I, 109 Fed.Cl. at 344; Adams II, J.A. 33. Adams filed a timely notice of appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012).

DISCUSSION

I. Standard of ...


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