In The United States Court of Federal Claims

No. 98-495C

(Filed June 18, 1998)

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ADVANCED DATA CONCEPTS, INC., *

Plaintiff, *

v. *

THE UNITED STATES, *

*

Defendant.*

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Order

The court held a hearing in this post-award bid protest case, brought pursuant to 28 U. S. C. § 1491(b)(1), on June 17, 1998. At the hearing, the parties (the Department of Energy (DOE) and Advanced Data Concepts, Inc. (ADC) indicated that they have negotiated an agreement, which was read into the record, whereby: (1) plaintiff withdraws its application for a preliminary injunction; (2) defendant, at its discretion, will begin performance under the protested contract, which was awarded to DynCorp EENSP, Inc., d/b/a DynMeridian ("DynMeridian") on January 30, 1998; and (3) plaintiff has the option (if the court sustains plaintiff's protest and reopens the procurement) to compete in any re-solicitation of the contract, which shall be a contract with a base term of two years and three one-year options.

DynMeridian's motion to intervene, pursuant to either United States Court of Federal Claims Rule (RCFC) 24(a)(2) (intervention of right) or 24(b)(2) (permissive intervention), is denied. DynMeridian, unlike, e.g,, another disappointed bidder, is not an interested party over which this court has jurisdiction under 28 U. S. C. § 1491(b)(1) (granting court jurisdiction "to render judgment on an action by an interested party objecting to a solicitation[,]. . . to a proposed award[,] or [to] the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement") (emphasis added). For obvious reasons, DynMeridian has not objected to obtaining the award itself, or to performing the contract. (Only if the agency proposed to terminate the current contract and re-open the competition and DynMeridian objected to the new competition would it become an interested party under 28 U.S.C. § 1491(b)(1).) Also, DynMeridian points to no violation of a regulation or statute by DOE.

Nor does DynMeridian meet the requirements of the court's intervention rule, RCFC 24. See generally Orion Scientific Sys. v. United States, 28 Fed. C1. 669 (1993) (holding that this court has no jurisdiction over defendants other than the government). RCFC 24(a)(1) (intervention of right) permits intervention when a statute confers an unconditional right to do so. As indicated supra, the statute applicable to post-award bid protests, 28 U.S.C. § 1491(b)(1), does not mandate intervention when a party, as here, is not "objecting" to the award of the contract (post-award). RCFC 24(a)(2) provides for intervention when the applicant is "so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect [its] interest."

RCFC 24(b) (permissive intervention) is inapplicable here because (1) there is no statute giving DynMeridian a conditional right to intervene and (2) DynMeridian's claim or defense and the main action do not have a question of law or fact in common, for the simple reason that DynMeridian has no claim or defense arising from these facts. That is because DynMeridian is not protesting the contract award and plaintiff cannot obtain relief from DynMeridian as a defendant (given that this court has jurisdiction only over disputes where the United States government is the defendant).

Accordingly, DynMeridian is permitted to participate as amicus curiae only. As such, DynMeridian may submit a response to the parties' cross-motions for summary judgment, which shall be due at the same time as the parties' responses. DynMeridian may participate in a trial on the merits of plaintiff s claim only upon order of the court, based upon a showing of good cause, which shall include a showing that DynMeridian needs to present evidence additional to that presented by defendant, and that such participation would not unduly deny or prejudice the adjudication of this action. Cf. RCFC 24(b)(2).

The court orders the following schedule, proposed by the parties:

-Defendant shall file the administrative record on or before June 26, 1998 (plaintiff represented that it requires no additional discovery)

-Cross motions for summary judgment shall be filed on or before July 17, 1998

-Replies to the cross-motions (and DynMeridian's response, if any) shall be filed on or before August 14, 1998.

The protective order proposed by plaintiff on June 16, 1998 has been adopted by the court and is attached hereto.

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DIANE GILBERT WEINSTEIN

Judge, U.S. Court of Federal Claims