In a recent blog post, we explained that the Federal Circuit’s decision in Cleveland Assets, LLC may have narrowed the COFC’s bid protest jurisdiction. Prior decisions had held that a protester need only allege a violation of statute or regulation “in connection with” a procurement or proposed procurement to fall within the COFC’s Tucker Act bid protest jurisdiction. But in Cleveland Assets, the Circuit held that the COFC lacked jurisdiction because the specific statute alleged to have been violated was not a “procurement” statute. We questioned whether the Court had intentionally narrowed the COFC’s bid protest jurisdiction.
It turns out we weren’t the only ones to raise this question: the appellant requested that the full Court rehear the case en banc to address this jurisdictional issue. Last week, the Court denied appellant’s request. Notably, though, Judge Wallach, joined by Judge Newman, issued a published dissent asserting that the Panel’s decision in Cleveland Assets conflicts with prior precedent requiring only an alleged violation of statute or regulation “in connection with” a procurement or proposed procurement.
Going forward, it will be interesting to see how the Federal Circuit and COFC interpret Cleveland Assets. On the one hand, the dissent clearly interprets it as a departure from prior precedent. But the remainder of the Court’s summary denial of the petition for rehearing en banc could signal that it either does not view Cleveland Assets as breaking new ground, or perhaps views it as confined to the specific facts of its case. Either way, the decision will certainly be cited in jurisdictional disputes going forward.