STATE OF KANSAS, by and through the KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES, Plaintiff - Appellee,
SOURCEAMERICA; LAKEVIEW CENTER, INC., Intervenors Defendants -Appellants, and UNITED STATES, by and through HONORABLE JAMES MATTIS, Secretary of Defense, and HONORABLE RYAN D. McCARTHY, Secretary of the Army,
from the United States District Court for the District of
Kansas (D.C. No. 5:15-CV-04907-DDC-KGS)
A. Holman (Robert A. DeRise and Sonia Tabriz with him on the
briefs), Arnold & Porter LLP, Washington, DC, for
A. Nolan, Winstead PC, Austin, Texas (David W. Davies,
General Counsel, Kansas Department for Children and Families,
Topeka, Kansas, with him on the briefs), for
BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
MCHUGH, CIRCUIT JUDGE.
interlocutory appeal concerns a contract dispute about the
provision of food services at the Fort Riley Army base in
Kansas. The root of the dispute is the intersection of two
federal statutes that both address the procurement of food
services at federal facilities: (1) the Randolph-Sheppard
Vending Facility Act of 1936 (RSA), and (2) the Javits Wagner
O'Day Act (JWOD). The parties disagree as to which of
these statutes governs the award of the Fort Riley food
services contract. And due to events that have occurred since
this action was filed, the parties also dispute whether this
appeal has been rendered moot.
first conclude that the issue raised by this appeal falls
within an exception to the mootness doctrine for matters
capable of repetition yet evading review. Next, we hold that
the district court properly exercised subject-matter
jurisdiction over this matter. But given the current posture
of this case, we decline to address which statute governs the
contract at issue or whether the district court properly
granted injunctive relief.
Department of the Army (Army) contracts with outside vendors
for food preparation and related supporting services for its
cafeteria dining facilities at Fort Riley. Since 2006, the
State of Kansas, through the Kansas Department for Children
and Families (Kansas), has successfully bid under the RSA on
those food preparation and related services contracts at Fort
Riley. Kansas's most recent contract awarded under the
RSA was scheduled to expire in February 2016.
date approached, the Army determined that its next dining
contract at Fort Riley would be for supporting services only.
The Army therefore decided that it need not solicit bids
under the RSA and it approached another vendor directly, as
permitted by the JWOD. Kansas took exception to the
Army's decision because it eliminated Kansas's
ability to bid on the contract. So Kansas initiated
arbitration proceedings under the RSA's dispute
resolution provisions. And upon learning that the Army
intended to contract with the other vendor despite the
commencement of arbitration proceedings, Kansas sued in
federal court, seeking to preliminarily enjoin the Army from
executing the JWOD contract pending arbitration.
district court granted Kansas's request for a preliminary
injunction pending arbitration. Two entities with an interest
in the JWOD contract, SourceAmerica and Lakeview Center, Inc.
(collectively, Intervenors), then intervened, and argued,
among other things, that the district court lacked
subject-matter jurisdiction to issue the preliminary
injunction. The district court rejected Intervenors'
arguments; Intervenors filed a timely appeal. Exercising
jurisdiction under 28 U.S.C. § 1292(a)(1), we now
place our analysis in context, we begin with an overview of
the RSA and the JWOD, as well as relevant legislative
developments. Next, we provide the factual and procedural
history of the dispute between Kansas and the Army. Finally,
we address the legal issues raised by this appeal. We first
conclude that the case is not moot, despite the arbitration
decision rendered during the pendency of this appeal. Second,
we conclude that the district court properly exercised
subject-matter jurisdiction over this matter.
Statutory and Regulatory Background
enacted the RSA to "enlarg[e] the economic opportunities
of the blind" by giving them priority in the bidding of
contracts "to operate vending facilities on any Federal
property." 20 U.S.C. § 107. Vending facilities
under the RSA include cafeterias on military bases like Fort
Riley. See id. § 107e(7); Kentucky v. U.S.
ex rel. Hagel, 759 F.3d 588, 592 (6th Cir. 2014).
Although the RSA applies to all federal agencies, Congress
charged the Secretary of the Department of Education (DOE)
with administering, interpreting, enforcing, and resolving
disputes arising under the RSA. See 20 U.S.C.
§§ 107(b), 107a, 107d-1. Indeed, the Secretary must
"prescribe regulations to establish a priority for the
operation of cafeterias" on federal property by blind
vendors. Id. § 107d-3(e). Those regulations
provide that all contracts "pertaining to the operation
of cafeterias on Federal property" are subject to the
RSA. 34 C.F.R. § 395.33(c).
the RSA, the Secretary designates a State Licensing Agency
(SLA) in each state to issue licenses to qualified blind
persons to operate vending facilities on federal property. 20
U.S.C. § 107a(a)(5). Plaintiff-Appellee Kansas
Department for Children and Families is the designated SLA in
Kansas. When a federal agency procures vending-facility
services, it does not contract directly with a blind vendor.
The agency instead negotiates a contract directly with the
SLA or solicits competitive bids for the contract. 34 C.F.R.
§ 395.33(b), (d); see Kansas v. United States,
171 F.Supp.3d 1145, 1148 (D. Kan. 2016). If the federal
agency solicits bids, it must invite the SLA to bid on the
contract. 34 C.F.R. § 395.33(b). The SLA then selects a
licensed blind vendor and submits a bid on that vendor's
behalf if the vendor can provide services "at comparable
costs and of comparable high quality." Id. If
the SLA's bid is "within a competitive range and has
been ranked among those proposals which have a reasonable
chance of being selected for final award, " then the
procuring agency must consult with the Secretary.
Id. The Secretary must then give priority to the
blind vendor if she determines that the "operation can
be provided at a reasonable cost" and at a comparatively
"high quality." Id. § 395.33(a). If
the SLA and its blind vendor are awarded the contract, then
the blind vendor operates the dining facility and manages the
day-to-day operations. When a contract nears expiration, the
federal agency may negotiate directly with the SLA to renew
the contract, or it may open bidding to the general public,
triggering the procedures outlined above. 34 C.F.R. §
395.33(d); Hagel, 759 F.3d at 592.
provides for arbitration of all disputes between an SLA and a
federal agency that has solicited vending-facility services.
20 U.S.C. § 107d-1(b). If an SLA determines that a
federal agency "is failing to comply" with the RSA
or any regulation issued thereunder, then the SLA "may
file a complaint with the Secretary" of the DOE.
Id. In the event the SLA files a complaint, the
Secretary "shall convene a panel to arbitrate the
dispute . . . and the decision of such panel shall be final
and binding on the parties." Id. If the
arbitration panel "finds that the acts or
practices" of the federal agency are in violation of the
RSA or any regulation issued thereunder, then the head of the
federal agency "shall cause such acts or practices to be
terminated promptly and shall take such other action as may
be necessary to carry out the decision of the panel."
Id. § 107d-2(b)(2). The arbitration panel's
decision is subject to judicial review as a final agency
action under the Administrative Procedure Act (APA).
Id. § 107d-2(a); see 5 U.S.C. §
706(2)(A) (stating a court may set aside an agency's
decision only if it was "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with
JWOD likewise applies to services rendered on federal
properties. The JWOD's purpose is "to increase
employment and training opportunities for persons who are
blind or have other severe disabilities through the purchase
of commodities and services from qualified nonprofit agencies
employing persons who are blind or have other severe
disabilities." 41 C.F.R. § 51-1.1(a); see
also 41 U.S.C. § 8502 (titled "Committee for
Purchase From People Who Are Blind or Severely
Disabled"). To implement this policy, Congress created a
committee now known as the AbilityOne Commission
(Commission), see 41 U.S.C. § 8502; Committee
for Purchase From People Who Are Blind or Severely Disabled,
71 Fed. Reg. 68492-01 (Nov. 27, 2006) (to be codified at 41
C.F.R. pts. 51-1, 51-2, 51-3, 51-4, and 51-6), and charged it
with promulgating implementing regulations, see 41
U.S.C. § 8503(d).
Commission oversees the so-called AbilityOne Program
(Program), under which the Commission must "maintain and
publish in the Federal Register a procurement list."
Id. § 8503(a). The procurement list consists of
products produced and services provided by qualified
nonprofit agencies that the Commission deems suitable for the
federal government's procurement. Id. Federal
government entities are required to procure the products and
services on the procurement list pursuant to the
Commission's regulations and at the price set by the
Commission. Id. § 8504(a).
Commission works with two "central nonprofit
agenc[ies]" to administer the Program. See id.
§ 8503(c); 41 C.F.R. § 51-3.1. The central
nonprofit agencies represent the interests of the
participating nonprofit agencies that employ individuals who
are blind or have other severe disabilities. 41 C.F.R. §
51-3.1. SourceAmerica is one of the central nonprofit
agencies, and Lakeview is a participating nonprofit agency.
central nonprofit agencies are required to identify possible
services to include on the procurement list. 41 C.F.R. §
51-3.2. If the Commission determines that the service is
suitable to add to the procurement list, it publishes a
notice in the Federal Register of its intent to do
so. See id. § 51-2.2(b). Interested persons
then have thirty days to comment on the proposed addition,
after which the Commission determines whether the service is
suitable to add to the procurement list. See id.
§§ 51-2.3, -2.4. As stated, once a service is added
to the procurement list, federal entities must procure that
service from a designated qualified nonprofit agency. 41
U.S.C. § 8504(a); see also 41 C.F.R. §
51-1.2(a) ("The JWOD Act mandates that commodities or
services on the Procurement List required by Government
entities be procured . . . from a nonprofit agency employing
persons who are blind or have other severe
2003, this court held that the RSA applies over the JWOD to
dining facility contracts on military bases because the RSA
specifically "prescribes a priority for blind vendors in
the operation of cafeterias on federal properly, whereas the
JWOD is a more general procurement statute." NISH v.
Rumsfeld, 348 F.3d 1263, 1272 (10th Cir. 2003);
accord NISH v. Cohen, 247 F.3d 197, 205 (4th Cir.
2006, Congress passed § 848 of the National Defense
Authorization Act for Fiscal Year 2006 (2006 NDAA).
See Pub. L. No. 109-163, § 848, 119 Stat. 3136
(2006). In § 848, Congress directed the DOE, the
Commission, and the Department of Defense (DOD) to issue a
joint statement of policy concerning the two Acts'
application to the operation and management of military
dining facilities. Id.
August 2006, the three agencies submitted to Congress a joint
report (2006 Joint Report) after providing for notice and
comment in the Federal Register. The agencies made
several recommendations to Congress, including:
(1) that Congress should enact a "no poaching"
provision which would require existing contracts to remain
governed by the procurement statute already in place for
those contracts; (2) that the RSA should apply to contracts
when the contractor will exercise management responsibility
and day-to-day decision-making for the overall functioning of
the facility; and (3) that the JWOD should apply when the
[DOD] needs dining support services but [DOD] personnel are
exercising overall functional and management
Kansas, 171 F.Supp.3d at 1160. The agencies further
agreed that they would "promptly implement complementary
regulations reflecting the joint policy" to
"significantly clarify and improve the application of
[the] JWOD and [RSA] to military dining facilities
contracts." The agencies then clarified in a follow-up
report that they had recommended in their 2006 Joint Report
"that RSA contractor priority apply only where the RSA
contractor will operate an entire dining
facility." Id. But the agencies have yet to
issue regulations implementing their recommendations. And the
DOD instructed in a 2007 memorandum that the 2006 Joint
Report "should not be cited in individual solicitations
until it is implemented in complementary regulations by the
[DOE] and [DOD]."
2006, Congress enacted the "no poaching" provision
in § 856 of the John Warner National Defense
Authorization Act for Fiscal Year 2007 (2007 NDAA). Pub. L.
No. 109-364, § 856, 120 Stat. 2083 (2006). Congress
explained that the contracts covered under the "no
poaching" provision include "a food service
contract . . . for full food services, mess attendant
services, or services supporting the operation of all or any
part of a military dining facility . . . that was awarded
under either the [RSA] or the [JWOD]." Id.
Congress has not enacted any of the other recommendations
from the agencies' 2006 Joint Report.
Congress passed the Carl Levin and Howard P. "Buck"
McKeon National Defense Authorization Act for Fiscal Year
2015 (2015 NDAA). Pub. L. No. 113-291, 128 Stat. 3292 (2014).
In an accompanying Joint Explanatory Statement, Congress
noted that there is still a need for regulatory guidance on
the competing applications of the RSA and the JWOD. It also
stated: "Pursuant to the [2006 Joint Report], the [RSA]
applies to contracts for the operation of a military dining
facility, or full food services, and the [JWOD] applies to
contracts and subcontracts for dining support services, or
dining facility attendant services, for the operation of a
military dining facility." Congress then directed the
Secretary of Defense to implement the 2006 Joint Report by
promulgating regulations explaining how the two Acts should
apply to new contracts. Congress gave the Secretary of
Defense 180 days after the 2015 NDAA's enactment to do
so. The Secretary did not meet this deadline. But on June 7,
2016, the Secretary of Defense issued a proposed rule that
would implement the 2006 Joint Report and the 2015 Joint
Explanatory Statement. See Food Services for Dining
Facilities on Military Installations, 81 Fed. Reg. 36, 506
(June 7, 2016). The notice and comment period closed in
August 2016, and, according to Intervenors, a final rule is
forthcoming but has not yet been issued.
The Dispute Between the Army and Kansas
Riley is an active military base in Kansas. In order to
support its logistical functions while soldiers were
deployed, the Army hired contractors to provide Full Food
Service (FFS) and Dining Facility Attendant (DFA) services at
the base. "FFS contracts are more expansive and
typically involve food preparation." Kansas,
171 F.Supp.3d at 1149 n.3. "DFA contracts generally
exclude food preparation, " but often include
"closely related enterprises such as cleaning and
sanitation of the dining facility and washing dishes, pots,
and pans." Id.
Army solicited competitive bids under the RSA for its last
two dining facility service contracts at Fort Riley.
Id. at 1149. Kansas successfully bid on both
contracts, suggesting that Kansas's bids "were
sufficiently competitive." Id. Kansas received
its first FFS contract at Fort Riley in June 2006 and its
second FFS contract in September 2011. The second FFS
contract was set to expire on August 31, 2015, but it was
extended during this litigation until February 29, 2016.
Army determined its next contract at the base will only be
for DFA services because soldiers returning to Fort Riley
from deployment could resume operating the military dining
facilities. The contracting authorities at Fort Riley
determined that a contract for only DFA services was not
subject to the RSA, and that such services could instead be
procured under the JWOD. Id. at 1150. So Fort
Riley's contracting authorities approached SourceAmerica
to see if the Commission was interested in a DFA services
contract. And on March 16, 2015, the Commission sent the DOE
a letter notifying it that the Commission may add DFA
services at Fort Riley to the procurement list.
learning of these developments, Kansas asked the Army to
comply with the RSA. Id. at 1151. The Army refused.
See id. And on May 7, 2015, Kansas filed a complaint
with the Secretary of the DOE, requesting the Secretary
"to commence an arbitration proceeding to determine
whether the Army had violated the RSA by not procuring the
[DFA] services under the RSA." Id.
on July 17, 2015, the Commission published notice in the
Federal Register for comment on the proposed
addition of DFA services at Fort Riley to the procurement
list. See Procurement List; Proposed Additions and
Deletions, 80 Fed. Reg. 42481-01 (July 17, 2015). After
receiving no public comments, on January 22, 2016, the
Commission approved the addition of DFA services at Fort
Riley to the procurement list. Kansas, 171 F.Supp.3d
at 1151. The Commission formally designated Lakeview as the
mandatory source of DFA services effective February 21, 2016.
See Procurement List; Addition and Deletions, 81
Fed. Reg. 3783-02 (Jan. 22, 2016).
22, 2015, after learning the Army intended to proceed under
the JWOD, Kansas filed its Complaint in the United States
District Court for the District of Kansas. Kansas alleged the
United States (i.e., the Army) violated the RSA by asking the
Commission to add the DFA services to the procurement list,
thereby eliminating Kansas's right to compete for
services under the RSA's priority bidding procedures.
sought to preliminarily enjoin the Army from procuring dining
facility services at Fort Riley under the JWOD pending
resolution of the RSA-mandated arbitration proceeding before
the DOE. The Army opposed the request, arguing it
does not have to give Kansas an opportunity to bid on the DFA
contract because DFA contracts do not fall under the RSA.
Kansas, 171 F.Supp.3d at 1151. After holding an
evidentiary hearing, the district court granted the request
for a preliminary injunction. Id. at 1152. The court
enjoined the Army from:
conducting any procurement, including making any award of
contract in connection with cafeteria services at Fort Riley,
except as permitted under the RSA and its regulations, until
such time as the arbitration proceeding initiated by Kansas
under the RSA is concluded, or further order modifying this
district court then granted Intervenors' motion to
intervene. Kansas v. United States, 192 F.Supp.3d
1184, 1188 (D. Kan. 2016). Intervenors subsequently moved to
dismiss for lack of subject-matter jurisdiction and,
alternatively, to alter, amend, or vacate the preliminary
injunction. Id. at 1186. They maintained that the
United States Court of Federal Claims has exclusive
jurisdiction over this case under the Tucker Act; that even
if the Court of Federal Claims did not have exclusive
jurisdiction, the district court could not exercise its
jurisdiction until arbitration was exhausted; and that even
if the district court had jurisdiction, the court erred in
granting a preliminary injunction. Id. at 1188-89.
The court rejected Intervenors' arguments and upheld the
injunction. See id. at 1190- 1215. Intervenors then
this case was pending on appeal, an arbitration panel
convened by the Secretary of the DOE held a hearing to
determine whether the RSA applies to the DFA services
contract at issue. On May 9, 2017, the arbitration panel
concluded that the RSA applies to the Fort Riley procurement
and that the Army violated the RSA by failing to apply the
RSA priority procedures in the solicitation of DFA services
at Fort Riley. The arbitration panel also determined the Army
violated the "no poaching" provision of the 2007
NDAA. In view of the arbitration panel's decision, we
asked the parties to submit supplemental briefing on whether
this appeal is moot.
first consider whether the arbitration panel's ruling
rendered this appeal moot. Concluding that this case is
capable of repetition yet evading review and thus
justiciable, we next address Intervenors' arguments that
the Court of Federal Claims has exclusive jurisdiction over
this case and that the district court did not have
jurisdiction to grant Kansas's request for a preliminary
injunction. We conclude that the district court
properly exercised its subject-matter jurisdiction over this
III of the Constitution limits federal courts to deciding
'Cases' and 'Controversies, ' and an actual
controversy must exist not only at the time the complaint is
filed, but through all stages of the litigation."
Kingdomware Techs., Inc. v. United States, 136 S.Ct.
1969, 1975 (2016) (internal quotation marks omitted).
"In considering mootness, we ask whether granting a
present determination of the issues offered will
have some effect in the real world." Fleming v.
Gutierrez, 785 F.3d 442, 444-45 (10th Cir.
2015) (internal quotation marks omitted). "[I]f an event
occurs while a case is pending on appeal that makes it
impossible for the court to grant any effectual relief
whatever to a prevailing party, we must dismiss the case,
rather than issue an advisory opinion." Id. at
445 (internal quotation marks omitted). "In the case of
an interlocutory appeal taken from the grant of a preliminary
injunction, the appeal is moot where the effective time
period of the injunction has passed." Id.
(internal quotation marks omitted).
argues that this appeal is moot because the arbitration
panel's decision resolved all substantive issues in
dispute and we are no longer capable of granting any
effectual relief. Indeed, Kansas maintains there is no longer
a live case or controversy because the effective time period
of the preliminary injunction was to expire once the
arbitration panel issued its decision. For their part,
Intervenors argue this appeal is not moot because it fits
within a special category of disputes that are capable of
repetition yet evading review. Under this exception to
mootness, a dispute remains live if "(1) the challenged
action is in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will
be subjected to the same action again." Turner v.
Rogers, 564 U.S. 431, 439-40 (2011) (internal quotation
marks omitted). Intervenors, as the parties asserting that
the exception applies, bear the burden of showing that this
dispute is capable of repetition yet evading review. See
Wyoming v. U.S. Dep't of Interior, 674 F.3d 1220,
1229 (10th Cir. 2012).
Supreme Court's decision in Kingdomware is
instructive. There, the Court considered the impact of
federal statutes designed to encourage small businesses. 136
S.Ct. at 1973. One of those statutes is the Small Business
Act, which requires the Department of Veterans Affairs (DVA),
as well as other federal agencies, to set aside contracts to
be awarded to small businesses, including small businesses
owned and controlled by service-disabled veterans.
Id. In addition, the Veterans Benefits, Health Care,
and Information Technology Act of 2006 (Act) requires the
Secretary of Veterans Affairs to set specific annual goals
that encourage contracting with veteran-owned and
service-disabled veteran-owned small businesses. Id.
The Act's "Rule of Two" provides that the DVA
"shall award" contracts "by restricting
competition for the contract to service-disabled or other
veteran-owned small businesses." Id. To do so,
the contracting officer "must reasonably expect that at
least two of these businesses will submit offers and that
'the award can be made at a fair and reasonable price
that offers best value to the United States.'"
Id. at 1973-74 (quoting 38 U.S.C. § 8127(d)).
In finalizing regulations implementing the Act, the DVA
stated in a preamble that § 8127's procedures do not
apply to Federal Supply Schedule (FSS) task or delivery
orders. Id. at 1974. The FSS is a streamlined method
for government agencies to acquire certain supplies and
services in bulk, such as office supplies. Id.
is a service-disabled veteran-owned small business that
provides emergency notification services. Id. In
January 2012, the DVA decided to procure such services for
four VA medical centers. Id. But it did so through
the FSS, bypassing the Rule of Two and awarding the contract
to a non-veteran-owned company. Id. at 1974-75.
Kingdomware filed a bid protest with the Government
Accountability Office (GAO), and the GAO issued a non-binding
decision agreeing with Kingdomware that the DVA's failure
to apply the Rule of Two was unlawful. Id. at 1975.
The DVA disagreed with the GAO's decision. Id.
Kingdomware therefore filed suit in the Court of Federal
Claims for declaratory and injunctive relief, arguing that
§ 8127(d) requires the DVA to apply the Rule of Two to
all contracts awarded. Id. The Court of Federal
Claims sided with the DVA, and the Federal Circuit affirmed.
Supreme Court granted certiorari to determine whether §
8127(d) requires the DVA to apply the Rule of Two in all
contracting. Id. But before the Court addressed the
merits, it considered whether the matter was moot.
Id. Although the Court acknowledged that no court
could grant Kingdomware the relief it sought because
performance of the procurement was complete, the Court held
that the case fell within the exception for disputes capable
of repetition yet evading review. Id. at 1975-76.
Court first held that the procurement was fully performed in
less than two years after it was awarded and was therefore
too short to permit full litigation of the issue.
Id. at 1976. It then concluded that "it is
reasonable to expect that the [DVA] will refuse to apply the
Rule of Two in a future procurement for the kind of services
provided by Kingdomware." Id. After all, the
preamble to the DVA's implementing regulations permit the
DVA to do just that, stating that the Rule of Two does not
apply to FSS task or delivery orders. See id. at
1974. And the DVA procured the emergency notification
services at issue in accordance with that interpretation.
See id. But,
[i]f Kingdomware's interpretation of § 8127(d) is
correct, then the [DVA] must use restricted competition
rather than procure on the open market. And Kingdomware,
which has been awarded many previous contracts, has shown a
reasonable likelihood that it would be awarded a future
contract if its interpretation of § 8127(d) prevails.
See Decl. of Corydon Ford Heard III ¶¶ 11-15
(explaining that the company continues to bid on similar
Id. at 1976. As a result, the Court determined that
it had jurisdiction "because the same legal issue in
this case is likely to recur in future controversies between
the same parties in circumstances where the period of
contract performance is too short to allow full judicial
review before performance is complete." Id.
we conclude that this appeal falls within the exception for
disputes that are capable of repetition yet evading review.
First, the Army's procurement process under the JWOD was
too short in duration to be fully litigated prior to its
completion. Recall that on March 16, 2015, the Commission
notified the DOE that it may add DFA services at Fort Riley
to the procurement list pursuant to the JWOD. Then on July
17, 2015, the Commission published notice in the Federal
Register for comment on the proposed addition of DFA
services at Fort Riley to the procurement list. And on
January 22, 2016, the Commission approved the addition of DFA
services at Fort Riley to the procurement list and formally
designated Lakeview as the mandatory source of those services
effective February 21, 2016, eight days before Kansas's
prior contract was set to expire. In all, the procurement
process lasted less than one year, demonstrating that the
controversy expires too quickly for Kansas to fully litigate
the matter. See Kentucky v. U.S. ex rel. Hagel, 759
F.3d 588, 596 (6th Cir. 2014) (holding in a similar dispute
concerning the RSA's applicability to a procurement of
DFA services at an Army base that the controversy was too
short to be fully litigated where less than one year passed
between the time the Army posted its solicitation and when
the new vendor's contract went into effect); see also
Kingdomware, 136 S.Ct. at 1976 ("We have previously
held that a period of two years is too short to complete
judicial review of the lawfulness of [a government]
procurement."); Turner, 564 U.S. at 440 (noting
that twelve-month, eighteen-month, and two-year periods
qualify as too short in duration to be fully litigated).
there is a reasonable expectation that the Army will refuse
to apply the RSA to future procurements of dining services at
Fort Riley. Just as the preamble to the DVA's
implementing regulations supported the DVA's view that
the Rule of Two does not apply to FSS task or delivery
orders, the 2006 Joint Report, the 2015 NDAA's Joint
Explanatory Statement, and the DOD's proposed regulations
all support the Army's view that the RSA does not apply
to DFA contracts. Also like the DVA, the Army acted on its
belief, attempting to procure DFA services at Fort Riley
pursuant to the JWOD. But if Kansas's interpretation of
the RSA is correct, the Army must procure DFA contracts
pursuant to the RSA, rather than pursuant to the JWOD. And
Kansas, which has been awarded at least two prior contracts
at Fort Riley, ...