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State v. SourceAmerica

United States Court of Appeals, Tenth Circuit

October 31, 2017

STATE OF KANSAS, by and through the KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES, Plaintiff - Appellee,
v.
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,

         Appeal from the United States District Court for the District of Kansas (D.C. No. 5:15-CV-04907-DDC-KGS)

          Craig A. Holman (Robert A. DeRise and Sonia Tabriz with him on the briefs), Arnold & Porter LLP, Washington, DC, for Intervenors Defendants-Appellants.

          Peter 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 Plaintiff-Appellee.

          Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.

          MCHUGH, CIRCUIT JUDGE.

         This 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.

         We 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.

         I. BACKGROUND

         The 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.

         As that 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.

         The 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 affirm.

         To 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.

         A. Statutory and Regulatory Background

         1. The RSA

         Congress 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).

         Under 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.

         The RSA 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 law").

         2. The JWOD

         The 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).

         The 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).

         The 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.

         The 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 disabilities[.]").

         3. Legislative Developments

         In 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. 2001) (similar).

         But in 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.

         In 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 responsibilities.

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]."

         Also in 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.

         Next, 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.

         B. The Dispute Between the Army and Kansas

         Fort 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.

         The 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.

         The 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.

         After 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.

         Undeterred, 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).

         C. Procedural History

         On July 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.

         Kansas 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.[1] 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 preliminary injunction.

Id.[2]

         The 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 appealed.

         While 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.

         II. ANALYSIS

         We 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.[3] We conclude that the district court properly exercised its subject-matter jurisdiction over this dispute.

         A. Mootness

         "Article 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).

         Kansas 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).

         The 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.

         Kingdomware 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. Id.

         The 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.

         The 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 contracts).

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.

         Similarly, 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).

         Second, 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, ...


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