Siemens Government Technologies, Inc. v. United States

In the United States Court of Federal Claims No. 24-1313C July 30, 2026 * * * * * * * * * * * * * * * * * ** * SIEMENS GOVERNMENT * TECHNOLOGIES, INC., * Plaintiff, * * v. * * UNITED STATES, * Defendant. * * * * * * * * * * * * * * * * * * * * ** Robert S. Nichols, Nichols Law LLP, Washington, DC, for plaintiff. With him was Michael Bhargava, Nichols Law LLP, Washington, DC. Thomas J. Adair, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. With him were Corinne A. Niosi, Assistant Director, Commercial Litigation Branch, Patricia M. McCarthy, Director, Commercial Litigation Branch, and Brett A. Shumate, Assistant Attorney General, United States Department of Justice, Washington, DC. OPINION HORN, J. The current Motion for Reconsideration addresses the December 31, 2025 Opinion and Order issued by the Judge previously assigned to the above captioned and numbered case, which denied defendant’s motion to dismiss Counts II and III of the Second Amended Complaint filed by Siemens Government Technologies, Inc. (Siemens), and which deferred consideration of Count I of Siemens’ Second Amended Complaint. See Siemens Gov’t Techs., Inc. v. United States, No. 24-1313, 2025 WL 3774760, at *1 (Fed. Cl. Dec. 31, 2025) (Siemens III). 1 As discussed more fully below, in his December 31, 1 The December 31, 2025 Opinion and Order, issued by the Judge previously assigned to the above captioned and numbered case, is denoted Siemens III because, as discussed more fully below, Siemens has filed multiple other cases in the United States Court of Federal Claims with similar factual and legal issues as in the above captioned and numbered case. Two of the other cases were filed by Siemens prior to Siemens filing Siemens III on August 26, 2024, and one case was filed by Siemens after the current Siemens III case. See, e.g., Siemens Gov’t Techs., Inc. v. United States, No. 22-1870, 2025 Opinion and Order, the Judge previously assigned to the above captioned and numbered case ruled that the Federal Acquisition Streamlining Act (FASA) of 1994, 10 U.S.C. § 3406(f) (2024), 2 which can limit the jurisdiction of the United States Court of Federal Claims over certain bid protests “in connection with the issuance or proposed issuance of a task or delivery order,” does not bar jurisdiction in this court regarding Counts II or III of Siemens’ Second Amended Complaint in the above captioned and numbered case. See Siemens III, No. 24-1313, 2025 WL 3774760, at *4. The Judge previously assigned to the above captioned and numbered case, however, deferred ruling on defendant’s motion to dismiss as to Count I of Siemens’ Second Amended Complaint until an oral argument could be heard on the supplemental motion to dismiss filed by 177 Fed. Cl. 165 (2025) (Siemens I); Siemens Gov’t Techs., Inc. v. United States, No. 22-698, 176 Fed. Cl. 450 (2025) (Siemens II); Siemens Gov’t Techs., Inc. v. United States, No. 26-282, 181 Fed. Cl. 506 (2026) (Siemens IV). 2 The court notes that there also is a parallel FASA task order bar in Title 41 of the United States Code, which applies to civilian agencies. See 41 U.S.C. § 4106(f) (2024). The United States Court of Appeals for the Federal Circuit has stated that “[t]he text of the two provisions [10 U.S.C. § 3406(f) and 41 U.S.C. § 4106(f)] is similar, except for the different monetary thresholds over which task order protests may be heard by the Comptroller General.” Percipient.ai, Inc. v. United States, 104 F.4th 839, 846 n.2 (Fed. Cir. 2024) (alterations added). The United States Court of Appeals for the Federal Circuit has not, however, directly addressed which statute—the civilian version or the defense version— applies when a defense agency issues, or proposes to issue, a task order under a civilian agency contract program. In the other Siemens cases, discussed below, that Siemens has filed in the United States Court of Federal Claims with facts and legal issues similar to the facts and legal issues in the above captioned and numbered case, the United States Court of Federal Claims has considered the FASA task order bar applicable to defense agencies at 10 U.S.C. § 3406(f). See, e.g., Siemens I, No. 22-1870, 177 Fed. Cl. at 172; Siemens II, No. 22-698, 176 Fed. Cl. at 456; Siemens IV, No. 26-282, 181 Fed. Cl. at 514. In other cases in which a defense agency issued, or proposed to issue, a task order under a civilian agency contract, however, the United States Court of Federal Claims has considered the case based on the FASA task order bar applicable to civilian agencies at 41 U.S.C. § 4106(f). See, e.g., Radiance Techs. Inc. v. United States, 174 Fed. Cl. 197, 202 (2024); Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 93 (2020), abrogated on other grounds by 22nd Century Techs., Inc. v. United States, 57 F.4th 993 (Fed. Cir. 2023); OST, Inc. v. United States, 140 Fed. Cl. 662, 666 (2018), appeal dismissed, No. 2019-1469, 2019 WL 13219446 (Fed. Cir. Apr. 3, 2019). In their submissions to the court in the above captioned and numbered case, both Siemens and defendant cite the defense statute at 10 U.S.C. § 3406(f) as the potential FASA task order bar relevant to the above captioned and numbered case. Moreover, as indicated above, the Judge previously assigned to the above captioned and numbered case analyzed the statute at 10 U.S.C. § 3406(f) as the FASA task order bar potentially relevant to the above captioned and numbered case. See Siemens III, No. 24-1313, 2025 WL 3774760, at *4. Therefore, and because the text of the statutes at 10 U.S.C. § 3406(f) and 41 U.S.C. § 4106(f) are quite similar, this court will base the discussion in this Opinion on the statute at 10 U.S.C. § 3406(f) when considering defendant’s current Motion for Reconsideration. 2 defendant, which did not occur before the case was transferred to the undersigned. See id. After the Judge previously assigned to the above captioned and numbered case issued his December 31, 2025 Opinion and Order, and the above captioned and numbered case was transferred to the undersigned, defendant filed a Motion for Reconsideration pursuant to Rule 54(b) (2025) of the United States Court of Federal Claims (RCFC), requesting the undersigned to “reconsider [the previous Judge’s] opinion and order of December 31, 2025 denying the Government’s motion to dismiss Counts II and III” of Siemens’ Second Amended Complaint. (alteration added). Defendant’s Motion for Reconsideration does not address Count I of Siemens’ Second Amended Complaint in Siemens III, No. 24-1313. Defendant’s Motion for Reconsideration has been fully briefed. 3 The facts of the December 31, 2025 Opinion and Order issued by the Judge previously assigned to the above captioned and numbered case are incorporated into this Opinion with some of the facts most relevant to defendant’s current Motion for Reconsideration also described below. FINDINGS OF FACT The context in which the Siemens case currently under review, Siemens III, No. 24-1313, arose is that, pursuant to the National Energy Conservation Policy Act, 42 U.S.C. § 8201 et seq. (2024), the United States Department of Energy (DOE) is responsible for administering an energy savings performance contract program. See 42 U.S.C. § 8287 (2024). Under the energy savings performance contract program, the DOE may award indefinite-delivery-indefinite-quantity (IDIQ) contracts “for the purpose of achieving energy savings and benefits ancillary to that purpose.” See 42 U.S.C. § 8287(a)(1). Moreover, other Federal government agencies also may issue task or delivery orders under the IDIQ contracts that the DOE awards. See 42 U.S.C. § 8287(c). Payment under the energy savings performance contract program is performance-based, such that the contractor shall incur costs of implementing energy savings measures, including at least the costs (if any) incurred in making energy audits, acquiring and installing equipment, and training personnel, in exchange for 3 As discussed more fully below, the court notes that “[r]econsideration under RCFC 54(b) is available ‘as justice requires,’” which is to be determined at the court’s discretion. See Loveridge v. United States, 150 Fed. Cl. 123, 126 (2020) (alteration added) (quoting L-3 Commc’ns Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 48 (2011)). A motion for reconsideration is not intended “to give an ‘unhappy litigant an additional chance to sway’ the court.” Stueve Bros. Farms, LLC v. United States, 107 Fed. Cl. 469, 475 (2012) (quoting Matthews v. United States, 73 Fed. Cl. 524, 525 (2006)), aff’d, 737 F.3d 750 (Fed. Cir. 2013). Defendant, as the moving party, “must support its motion for reconsideration by a showing of exceptional circumstances justifying relief, based on a manifest error of law or mistake in fact.” Banks v. United States, 84 Fed. Cl. 288, 292 (2008); see also 1100 W. Ewing Assoc., LLC v. United States, 139 Fed. Cl. 24, 25 (2018). 3  a share of any energy savings directly resulting from implementation of such measures during the term of the contract. 42 U.S.C. § 8287(a)(1). The statute at 42 U.S.C. § 8287 also gives ordering agencies the authority to “accept, retain, sell, or transfer, and apply the proceeds of the sale or transfer of, any energy and water incentive, rebate, grid services revenue, or credit (including a renewable energy certificate) to fund a contract under” the energy savings performance contract program. 42 U.S.C. § 8287(a)(2)(H). Pursuant to the statute at 42 U.S.C. § 8287, the DOE awarded a multiple-award IDIQ contract, Energy Savings Performance Contract No. DE-EE0008041, to Siemens and other awardees. (the IDIQ Contract). The scope of work under the IDIQ Contract involved “providing all personnel, facilities, equipment, materials, supplies, and services to install energy and water conservation projects and renewable energy projects, and provid[ing] O&M [operations and maintenance] and measurement and verification (M&V) as specified in each TO [task order].” (alterations added). The IDIQ Contract also provided, in relevant part: The Contractor shall be responsible for determining the source, value, and availability of any applicable financial, tax, or other incentives for the project and shall collaborate with the ordering agency to consider all available incentive options, including but not limited to those described in this Section C.12. The Contractor shall evaluate and obtain all available incentives and shall apply such incentives to offset the project cost to the ordering agency, unless otherwise directed by the ordering agency. With respect to the issuance of task orders under the IDIQ Contract, subsection H.3.1 of the IDIQ Contract stated: The Government has awarded multiple IDIQ contracts for the work specified in this contract. Therefore, in accordance with FAR 16.505(b), Orders under multiple-award contracts, fair opportunity must be provided to all IDIQ contract awardees. The ordering agency CO [Contracting Officer], as defined in Attachment J-2, may periodically issue TOs pursuant to the fair opportunity ordering procedures for selecting an ESCO [Energy Savings Contractor] set forth in the paragraphs below. (alterations added; emphasis in original). Subsection H.3.2 of the IDIQ Contract listed the “typical sequence of key events” for the award of a task order under the IDIQ Contract as follows: A. Notice of Opportunity (NOO) and Selection of an ESCO. The ordering agency gives notice and a fair opportunity for award to all IDIQ contract holders by publishing an NOO, and ultimately selects one (1) ESCO to develop an ESPC [Energy Savings Performance Contract] TO project based on information submitted in response to the NOO. Such information 4  may include Contractor qualifications, PAs [Preliminary Assessments 4], and other specified facts or data. B. Preliminary Assessment (PA) Development. The ESCO submits a PA to the ordering agency, which provides the conceptual range of the expected ECMs [Energy Conservation Measures], costs and savings for the project. C. Intent to Award/Request for Proposal. If the ordering agency and ESCO agree to pursue the project, the ordering agency CO will issue a Notice of Intent to Award (NOITA) followed by a TO RFP [Task Order Request for Proposal], which identifies the ordering agency’s specific requirements. D. Proposal Submission. The ESCO submits a proposal, which includes technical and price components, and a small business subcontracting plan (if the ESCO is a large business). E. TO Award. Based on a negotiated proposal, the ordering agency awards a TO to the selected ESCO. (alterations and footnote added; emphasis in original). Moreover, subsection H.3.4 of the IDIQ Contract, titled “Contractor Selection Procedures,” stated, in relevant part: The ordering agency CO must provide each Contractor a fair opportunity to be considered for any TO award. In selecting an ESCO, the ordering agency CO may exercise discretion in developing Contractor selection procedures, as long as the ordering agency CO complies with the FAR, all other applicable laws (specifically including, but not limited to 42 U.S.C. § 8287, et seq.) and regulations (specifically including, but not limited to, 10 CFR Part 436), ordering agency policies, and the framework of the selection methods established below. The ordering agency CO shall indicate, in the NOO to all IDIQ holders, the selection method and steps for selection that the ordering agency intends to use for the entire ordering process. The ordering agency CO reserves the right to adjust the selection process. Additionally, regarding reimbursement of contractor costs, subsection H.5.1(D) of the IDIQ Contract stated: “The ordering agency will not be responsible for any costs incurred, such as proposal preparation costs or costs incurred in preparing the IGA [Investment Grade Audit], unless a TO is awarded or such costs are otherwise authorized for payment by the ordering agency CO.” (alteration added). On June 28, 2019, the Defense Logistics Agency (DLA) issued a Notice of Opportunity under the IDIQ Contract for an energy savings project at the Goodfellow Air 4 According to subsection H.4.1 of the IDIQ Contract, a Preliminary Assessment “sets out the merits, technical feasibility, range of projected energy savings, economics, and conceptual price range of the project.” 5 Force Base in San Angelo, Texas. According to Siemens’ Second Amended Complaint, 5 the Notice of Opportunity, which was sent to “the 21 existing IDIQ Contract holders,” stated that the “DLA intended to issue a task order to a single contractor,” and also stated that “the ‘selected [contractor] will be required to develop a formal Preliminary Assessment (PA) and Investment Grade Audit (IGA), as applicable, in accordance with’ the IDIQ Contract.” (alteration in Siemens’ Second Amended Complaint). On July 31, 2019, Siemens submitted a proposal in response to the Notice of Opportunity. On December 19, 2019, the DLA selected Siemens to prepare a Preliminary Assessment for an energy savings project at the Goodfellow Air Force Base. According to Siemens’ Second Amended Complaint, “[p]erforming a preliminary assessment requires contractors to (1) undertake extensive efforts to evaluate the facilities designated by the agency using agency data, (2) propose a list of recommended and potential energy conservation measures for those facilities, and (3) determine the economic and technical feasibility of each proposed conservation measure.” (alteration added). On July 24, 2020, Siemens submitted its Preliminary Assessment to the DLA. On October 1, 2020, the DLA issued a Notice of Intent to Award a Task Order to Siemens and “directed Siemens to design a project focused on the construction of a power plant” for the Goodfellow Air Force Base and to conduct an Investment Grade Audit. According to Siemens’ Second Amended Complaint, an Investment Grade Audit “is a labor-intensive review of the facilities to determine whether the proposed energy conservation measures are viable, meaning that they will pay for themselves over time in energy savings.” Siemens conducted an Investment Grade Audit for the Goodfellow Air Force Base project, which Siemens submitted to the DLA on August 11, 2021. As alleged in Siemens’ Second Amended Complaint, Siemens’ Investment Grade Audit “was premised on three components relevant to” the above captioned and numbered case: 37. First, Siemens estimated the value of electricity generated by a new power station according to projections of the Texas electrical grid’s locational marginal pricing index rate, which fluctuates according to the season and time of day in predictable patterns. For example, consumers consistently demand more electricity in the mornings and evenings than during normal working hours. This “index pricing” contrasted with “block” pricing, whereby the customer negotiates a fixed energy cost at variable intervals. Because pricing blocks would have to be negotiated by Goodfellow, and because the [Goodfellow Air Force] base had not blocked prices in the past, Siemens’ analysis reflected a 100% index/0% block rate. 5 The Second Amended Complaint was the subject of the December 31, 2025 Opinion and Order issued by the Judge previously assigned to the above captioned and numbered case, which denied dismissal of Counts II and III, and deferred consideration of Count I. See Siemens III, No. 24-1313, 2025 WL 3774760, at *4. The court discusses the procedural history and timing of the filings in Siemens III, No. 24-1313, further below. 6  38. Second, Siemens’ audit included a $1 million grant from the Federal Energy Management Program, which offset the cost of initial construction and allowed the project to reduce the time it would take to repay the total cost of construction. 39. Third, the audit apportioned the share of operations, maintenance, repair, and replacement tasks according to the share negotiated with the Government during audit development. (alteration added). According to Siemens’ Second Amended Complaint, on October 20, 2021, after Siemens submitted its Investment Grade Audit to the DLA, “the Government met with Siemens to discuss its concern with Siemens’ pricing rate for the power plant” and “informed Siemens that it had begun to negotiate pricing blocks at set rates for 20% to 30% of electricity production.” Siemens “notified the Government of the significant cost Siemens would incur to conduct another full audit pursuant to new parameters, including the revised block and index rates,” but, according to Siemens, the DLA nonetheless requested Siemens to design three “Courses of Action” for a viable project at the Goodfellow Air Force Base using the new pricing block rates that the DLA had negotiated. According to Siemens, although Siemens “repeatedly explained that higher percentages of block pricing endangered the viability of the project,” the DLA “refused to alter its instructions and refused to meet with Siemens to discuss the issue.” Thereafter, Siemens designed the three requested “Courses of Action,” determining that only one “Course of Action” would be a viable project, and submitted its findings to the DLA. Over the next several months, the DLA continued to request additional “Courses of Action” with various new parameters. Siemens responded to each request by raising concerns regarding project viability and Siemens’ increasing “development costs,”6 but Siemens ultimately designed and submitted each requested “Course of Action” to the DLA. In all, between October 22, 2021, and February 4, 2022, Siemens submitted seven “Courses of Action” for the DLA’s consideration. According to Siemens’ Second Amended Complaint, on February 4, 2022, the same day that Siemens submitted the latest-requested “Courses of Action,” the DLA “issued a stop-work order pursuant to FAR 52.242-15.” On May 3, 2022, the DLA canceled the Goodfellow Air Force Base task order procurement. According to Siemens’ Second Amended Complaint, the “DOE informed Siemens that DLA had cancelled the task order procurement at DOE’s recommendation.” On May 2, 2023, Siemens submitted a certified claim to the DLA “seeking reimbursement of $2,835,412 in development costs that Siemens needlessly incurred as a result of the Government’s actions.” The DLA contracting officer issued a contracting 6 The court notes that Siemens does not define its understanding of the term “development costs” in its briefings submitted to the court in the above captioned and numbered case. 7 officer’s final decision denying Siemens’ certified claim on August 25, 2023. According to Siemens, “[i]n an abundance of caution, Siemens also submitted a largely duplicative certified claim to DOE on July 12, 2024.” (alteration added). 7 The DOE contracting officer also issued a contracting officer’s final decision denying Siemens’ certified claim on September 9, 2024. On August 26, 2024, Siemens filed a three-count Complaint in the United States Court of Federal Claims, pursuant to the Tucker Act, 28 U.S.C. § 1491(a) (2024), the Contract Disputes Act (CDA), 41 U.S.C. § 7104(b)(1) (2024), and this court’s bid protest jurisdiction under 28 U.S.C. § 1491(b)(1), seeking to recover the “development costs” Siemens allegedly incurred while working on the proposed project for the Goodfellow Air Force Base. On September 8, 2025, Siemens filed a “Notice of Amended Complaints,” in which Siemens stated its “intention to serially file two Amended Complaints” in order to “add its appeal of the DOE contracting officer’s final decision, dated September 9, 2024, to Count I of its Complaint.” In the “Notice of Amended Complaints,” Siemens explained: These Amended Complaints should have no effect on the Government’s pending motion to dismiss or on the ultimate legal issues in this case. These amendments, moreover, apply only to Count I of the Complaint, which was brought under the CDA. Counts II and III of the Complaint were brought under 28 U.S.C. § 1491(b)(1) and are not substantively changed in these Amended Complaints. (internal reference omitted). Accordingly, on September 8, 2025, Siemens filed both a First Amended Complaint and a Second Amended Complaint in the United States Court of Federal Claims. 8 In its Second Amended Complaint, Siemens brings three counts seeking reimbursement of the “development costs” it allegedly incurred while trying to qualify for an award of the proposed Goodfellow Air Force Base project. In Count I of Siemens’ 7 In the “Notice of Amended Complaints,” which, as discussed below, Siemens filed with the court on September 8, 2025, Siemens explained that it submitted the “largely duplicative certified claim” to the DOE contracting officer “to avoid any dispute in which the Government argued that this Court lacked Contract Disputes Act (‘CDA’) jurisdiction because Siemens should have first submitted a claim to DOE,” which was the agency that issued the IDIQ Contract. 8 Siemens’ Second Amended Complaint, which was the subject of the December 31, 2025 Opinion and Order issued by the Judge previously assigned to the above captioned and numbered case, Siemens III, No. 24-1313, challenges both the DLA contracting officer’s final decision, dated August 25, 2023, and the DOE contracting officer’s final decision, dated September 9, 2024. The reasoning in this Opinion addressing the FASA task order bar and the jurisdiction of the United States Court of Federal Claims to hear Siemens’ bid protest claims in Count II and Count III of Siemens’ Second Amended Complaint applies equally to Siemens’ challenges to the DLA and the DOE decisions. 8 Second Amended Complaint, Siemens alleges, pursuant to the Contract Disputes Act, 41 U.S.C. § 7104(b)(1), that, based on various actions taken by the DLA, the government breached the IDIQ Contract. 9 Specifically, Siemens alleges that “the Government was obligated under Section H.3.4 [of the IDIQ Contract] to ‘provide each Contractor a fair opportunity to be considered’ for any task order award” and “[t]his obligation was breached because the Government did not provide Siemens with a fair opportunity to compete for the [Goodfellow Air Force Base] task order.” (alterations added). Siemens also alleges that defendant breached “an implied covenant of good faith and fair dealing” under the IDIQ Contract by “direct[ing] Siemens to prepare COAs [Courses of Action] under false pretenses,” by “impos[ing] additional development costs in contravention of both the notice of opportunity and the Agency’s own promises,” and by “abus[ing] its discretion under the Contract by refusing to pay Siemens’ development costs that were wasted by the Government’s own actions.” (alterations added). Siemens further alleges that defendant breached the IDIQ Contract by “fail[ing] to follow the selection method and steps it stated in its notice of opportunity.” (alteration added). Moreover, Siemens alleges that defendant breached the IDIQ Contract by “ordering Siemens to conduct several rounds of COAs and foregoing inventive [sic] payments . . . .” (alteration and omission added). Additionally, Siemens alleges that defendant breached subsection H.5.1(D) of the IDIQ Contract, which, according to Siemens, “authorized the Government to pay development costs as a matter of agency discretion even if a task order was not awarded,” by refusing to award Siemens the “development costs” it allegedly incurred while working on the proposed project for the Goodfellow Air Force Base. In Count II of Siemens’ Second Amended Complaint, Siemens alleges, pursuant to this court’s bid protest jurisdiction under 28 U.S.C. § 1491(b)(1), that the government’s failure to act in good faith violated the government’s implied-in-fact contract duty to treat Siemens honestly and fairly. Siemens argues that “each of the Government’s failures itemized above constituted independent instances of conduct that was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ that breached the Government’s implied-in-fact contract to treat offerors fairly.” Siemens continues, “[n]ot only did these actions cost $2,835,412, but the Government’s decision not to compensate Siemens in that amount consisted of a further abuse of discretion that violated this implied-in-fact contract.” (alteration added). In Count III of Siemens’ Second Amended Complaint, Siemens alleges, also pursuant to this court’s bid protest jurisdiction under 28 U.S.C. § 1491(b)(1), that defendant “violated statute and regulations in conducting this procurement.” Specifically, Siemens argues that defendant violated FAR 16.505 by failing to provide Siemens with a fair opportunity to compete for the proposed Goodfellow Air Force Base project. Siemens also argues that defendant violated “the procedures established for energy savings 9 As indicated above, the Judge previously assigned to the above captioned and numbered case deferred ruling on defendant’s motion to dismiss as to Count I of Siemens’ Second Amended Complaint. See Siemens III, No. 24-1313, 2025 WL 3774760, at *1. Therefore, defendant’s current Motion for Reconsideration does not seek a ruling by this court with respect to Count I of Siemens’ Second Amended Complaint at this time. 9 performance contracts” under the statute at 42 U.S.C. § 8287 and the regulations at 10 C.F.R. Part 436 because “[n]one of these procedures permitted the Government to conduct a multi-step procurement that included several Courses of Action once an audit was complete, nor did it permit the Government to require the submission of non-viable plans.” (alteration added). Siemens further argues that defendant violated the statute at 42 U.S.C. § 8287(a)(2)(H) by rejecting the inclusion of the incentive payments that Siemens proposed in the “Courses of Action.” In response to Siemens’ original Complaint, defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) (2024) and for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(6), at which time the above captioned and numbered case was still assigned to the previously assigned Judge. In its motion to dismiss Siemens’ original Complaint, defendant argued: Throughout the complaint Siemens characterizes this suit as a bid protest. If this suit is a bid protest, it is barred by the Federal Acquisition Streamlining Act’s (FASA’s) task order bar, 10 U.S.C. § 3406(f). To the extent Siemens is bringing a breach of contract suit—and Siemens does assert at least one claim under the Contract Disputes Act—Siemens’ claims fail because (1) such CDA claims are time-barred under 41 U.S.C. § 7104(b)(3) because the case was filed more than a year after the contracting officer’s final decision;[10] (2) there can be no implied-in-fact contract breach as set forth in count two when there is an actual contract; [and] (3) the clear and unambiguous language of the EPSC [sic] specifically states that Siemens cannot recover preparation and development costs, including for the PA and IGA, unless a task order issues. (alterations and footnote added). Moreover, after Siemens filed its Second Amended Complaint, defendant also filed a “Supplemental Motion to Dismiss Plaintiff’s Contract Disputes Act Claim Against the Department of Energy,” in which defendant “reasserted and incorporated by reference” defendant’s original motion to dismiss, and in which defendant also raised new arguments 10 As indicated above, in its motion to dismiss Siemens’ original Complaint, defendant initially argued that Siemens’ CDA claim in Count I of Siemens’ original Complaint was time-barred because the DLA contracting officer issued a final decision denying Siemens’ CDA claim on August 25, 2023, “[y]et Siemens filed the present suit on August 26, 2024,” more than a year after the DLA contracting officer’s final decision. (alteration added). Defendant continued, “Siemens does not get an additional day to file” because “August 25, 2024 was a Wednesday, and it was not a federal holiday.” In its response to defendant’s motion to dismiss, Siemens correctly pointed out that August 25, 2024, “was actually a Sunday, so Siemens timely filed its complaint on Monday, August 26, 2024.” Accordingly, in its reply brief, defendant stated that it “withdraws its argument that Siemens’ complaint was not timely filed.” 10 addressing Count I of Siemens’ Second Amended Complaint. In its supplemental motion to dismiss, defendant explained: As Siemens stated in its Notice of Amended Complaints—which was filed immediately before its First and Second Amended Complaints—its Second Amended Complaint does not obviate the need for a ruling on the Government’s pending motion to dismiss the original Complaint because that latest complaint is nearly identical to the original Complaint. Given the intention and understanding that the amended complaints do not void the pending motion to dismiss, this motion is styled as a supplemental motion. Yet out of an abundance of caution, pursuant to RCFC 5.4(b)(3), the pending motion to dismiss is attached as Exhibit A to this motion. The arguments made in that motion and the associated briefing on that motion, are relevant to the Court’s analysis as to whether to dismiss Siemens’s claims in its Second Amended Complaint just as they were to analysis of the claims in the original Complaint. (internal references omitted). Thus, the text of defendant’s supplemental motion to dismiss addressed only Count I of Siemens’ Second Amended Complaint. Defendant further explained in its supplemental motion to dismiss: The claims asserted in Counts II and III of Siemens’s complaints are bid protest claims, which are not the subject of this supplemental motion. Those bid protest claims should be dismissed for the reasons set forth in defendant’s motion to dismiss and the associated briefing, which argue inter alia that the bid protest claims are barred by the FASA task order bar because Siemens is challenging the non-issuance of a proposed task order and because Siemens cannot avoid the task order bar by claiming that it only seeks bid prep[aration] and proposal costs, which is merely one remedy for a successful bid protest. (alteration added). As indicated above, after defendant’s original motion to dismiss was fully briefed, and after defendant filed its supplemental motion to dismiss, the Judge previously assigned to the above captioned and numbered case issued his December 31, 2025 Opinion and Order, which is now the subject of defendant’s current Motion for Reconsideration. See Siemens III, No. 24-1313, 2025 WL 3774760. When addressing the unusual procedural history and timing of the filings in the above captioned and numbered case, the Judge previously assigned to the case stated in the December 31, 2025 Opinion and Order: The Government initially moved to dismiss all three counts under Rules 12(b)(1) and 12(b)(6). ECF 11. After briefing and argument was complete, Siemens filed the [Second] [A]mended [C]omplaint with the Government’s consent. ECF Nos. 29, 31. The [Second] [A]mended [C]omplaint adds 11  allegations relating to the CDA claim in Count I but does not change anything regarding the factual allegations or claims in Counts II and III. See ECF No. 29; compare ECF No. 1 with ECF No. 31. In response, the Government has filed a supplemental motion to dismiss Count I that raises new arguments. ECF Nos. 34, 37, 41. Because this briefing did not complete until earlier this month [December 2025], the court defers ruling on the motion to dismiss Count I until hearing argument on the supplemental motion to dismiss. The court therefore considers the motion to dismiss Counts II and III. Siemens III, No. 24-1313, 2025 WL 3774760, at *4 (alterations added). In the December 31, 2025 Opinion and Order, the Judge previously assigned to the above captioned and numbered case denied defendant’s motion to dismiss as to Counts II and III of Siemens’ Second Amended Complaint, finding that the FASA task order bar at 10 U.S.C. § 3406(f) does not bar Counts II and III of Siemens’ Second Amended Complaint. See id. The Judge previously assigned to the above captioned and numbered case explained the FASA task order bar as follows: The Federal Acquisition Streamlining Act (“FASA”) limits the court’s jurisdiction over bid protests related to task orders. 10 U.S.C. § 3406(f). FASA provides that a “protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $25,000,000.” 10 U.S.C. § 3406(f)(1) (2024) (emphasis added).[ ] FASA thus bars protests that “challenge[] the issuance of [a] task order directly” or that challenge “government action (e.g., waiver of an organizational conflict of interest) whose wrongfulness would cause [a] task order’s issuance to be improper.” Percipient.ai, Inc. v. United States, 104 F.4th 839, 847 (Fed. Cir.), reh’g en banc granted, opinion vacated sub nom. Percipient.ai, Inc. v. United States, 121 F.4th 1311 (Fed. Cir. 2024), and on reh’g en banc sub nom. Percipient.AI, Inc. v. United States, 153 F.4th 1226 (Fed. Cir. 2025), cert. filed, ___ U.S. ___ (U.S. Oct. 08, 2025) (No. 25-428).[11] The phrase “in connection with the issuance of a 11 As discussed more fully below, the Percipient.ai case originated as a bid protest in the United States Court of Federal Claims. See Percipient.ai, Inc. v. United States, 165 Fed. Cl. 331, 336 (2023). In Percipient.ai, although the United States Court of Federal Claims Judge initially held that the court had subject matter jurisdiction over the bid protest, see id. at 337, on reconsideration, the United States Court of Federal Claims Judge determined that the court lacked subject matter jurisdiction over the bid protest pursuant to the FASA task order bar at 10 U.S.C. § 3406(f)(1). See Percipient.ai, Inc. v. United States, No. 23-28, 2023 WL 3563093, at *1 (Fed. Cl. May 17, 2023). On appeal, the United States Court of Appeals for the Federal Circuit panel opinion initially reversed the United States Court of Federal Claims reconsideration opinion’s dismissal of the bid protest, holding that the FASA task order bar did not apply to the bid protest and also 12  task order” can be understood by looking to the remedy sought. See SRA Int’l, Inc. v. United States, 766 F.3d 1409, 1414 (Fed. Cir. 2014) (looking to the relief sought to determine FASA’s applicability). Though not dispositive, the remedy informs whether the FASA bar applies. See id. Siemens III, No. 24-1313, 2025 WL 3774760, at *4 (alterations and emphasis in the December 31, 2025 Opinion and Order; first footnote omitted; second footnote added). In the omitted footnote in the December 31, 2025 Opinion and Order, the Judge previously assigned to the above captioned and numbered case noted that “Congress has since amended FASA to increase the dollar threshold, but that change has no impact on this case.” Id. at *4 n.2. In his December 31, 2025 Opinion and Order, the Judge previously assigned to the above captioned and numbered case, Siemens III, No. 24-1313, also indicated that this case is one of multiple cases that Siemens has brought in the United States Court of Federal Claims related to procurements under the energy savings performance contract program. See id. at *5 (citing Siemens I, No. 22-1870, 177 Fed. Cl. 165; and Siemens II, No. 22-698, 176 Fed. Cl. 450). 12 When discussing the other