1/ This opinion originally was filed under seal on August 29, 2008. By ¶ 2 the
parties were requested to notify the court of any redactions. All redactions requested are
denoted by brackets.
In the United States Court of Federal Claims
No. 08-458C
(Filed September 15, 2008) 1/
* * * * * * * * * * * * * * * * * * * * * * *
DYONYX, L.P.,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
* * * * * * * * * * * * * * * * * * * * * * *
*
*
*
*
*
*
*
*
*
*
*
*
*
Pre-award protest; 28 U.S.C.
§ 1491(b)(1) (2000); judgment
on the administrative record;
jurisdiction; standing; whether
standing to protest depends on
submission of compliant final
proposal; merits of procurement
decision; reasonableness of
agency action; injunctive relief.
Terrence M. O’Connor, Arlington, VA, for plaintiff. Stephanie D. Wilson, Albo &
Oblon, L.L.P., of counsel.
L. Misha Preheim, Washington, DC, with whom was Assistant Attorney General
Gregory G. Katsas, for defendant.
OPINION
MILLER, Judge.
This bid protest is before the court after argument on cross-motions for judgment on
the administrative record. The Government originally made the senseless jurisdictional
argument that an agency arbitrarily can declare a protested proposal to be nonconforming,
while accepting the awardee’s allegedly nonconforming proposal, and thereby preclude the
protestor from standing to challenge the award. During argument defendant agreed that a
protestor can challenge an agency determination that its proposal was noncompliant and that
the awardee’s was compliant.
2
FACTS
The Administrative Record (the “AR”) is the source for the following facts. The
Millennium Challenge Corporation (the “MCC”) is a United States Government corporation
established in January 2004. The MCC’s mission is to reduce global poverty by promoting
sustainable economic growth in the world’s poorest countries. The MCC focuses its efforts
on providing aid to poor countries that promote good governance, eco