Alpha Painting & Construction Co. v. Delaware River Port Authority , 853 F.3d 671 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3791
_____________
ALPHA PAINTING & CONSTRUCTION CO INC.
v.
DELAWARE RIVER PORT AUTHORITY OF
THE COMMONWEALTH OF PENNSYLVANIA AND
THE STATE OF NEW JERSEY,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 1-16-cv-05141)
District Judge: Honorable Noel L. Hillman
Argued February 9, 2017
Before: MCKEE, RENDELL, and FUENTES, Circuit Judges
(Opinion Filed: April 6, 2017)
John M. Elliott, Esq. [ARGUED]
Bruce W. Kauffman, Esq.
Thomas J. Elliott, Esq.
Stewart J. Greenleaf, Jr., Esq.
Elliot Greenleaf, P.C.
925 Harvest Drive
Suite 300
Blue Bell, PA 19422
Counsel for Appellant Delaware
River Port Authority of the
Commonwealth of Pennsylvania
& the State of New Jersey
Jennifer A. Hradil, Esq. [ARGUED]
Kaitlyn E. Stone, Esq
Peter J. Torcicollo, Esq.
Kevin W. Weber, Esq.
Gibbons P.C.
One Gateway Center
Newark, NJ 07102
Counsel for Appellee Alpha
Painting & Construction
Company, Inc.
____________
OPINION
____________
RENDELL, Circuit Judge:
2
This case arises from a bitter bidding dispute for a
contract to strip and repaint the Commodore Barry Bridge.
The Delaware River Port Authority (“DRPA”) rejected the
lowest bidder, Alpha Painting & Construction Company, Inc.
(“Alpha”), because it determined that Alpha was not a
“responsible” contractor. Instead, DRPA awarded the contract
to Corcon, Inc. (“Corcon”). After its bid protest was denied,
Alpha filed this lawsuit in District Court on an expedited
basis seeking an injunction against DRPA. The District Court
promptly held a four-day trial and concluded that DRPA
acted arbitrarily and capriciously. It then entered an order
directing DRPA to award the contract to Alpha. DRPA
appeals.
For the reasons that follow, we will affirm the District
Court’s ruling that DRPA acted arbitrarily and capriciously.
However, because we conclude that the District Court abused
its discretion by directing that the contract be awarded to
Alpha, we will vacate that portion of the order and remand to
the District Court for the entry of a more limited injunction.
I. Background
A. Factual Background
DRPA is a bi-state corporate instrumentality that
owns, operates, and maintains four bridges that span the
Delaware River between New Jersey and Pennsylvania,
including the Commodore Barry Bridge, a mile-long structure
that supports five lanes of traffic. DRPA is governed by a
Board of Commissioners and operated on a day-to-day basis
by its staff of engineers, contracting administrators, legal
counsel, and administrative support professionals. Recently,
3
DRPA’s staff determined that the Commodore Barry Bridge’s
lead-based paint coating is deteriorating. DRPA decided to
repaint the entire bridge, a substantial capital construction
project that requires hiring a contractor capable of using
highly specialized abrasive blast cleaning equipment to strip
and contain the lead paint (hereinafter the “Bridge Project”).
This equipment is necessary to protect workers, the public,
and the environment from hazardous lead contaminants.
DRPA divided the Bridge Project into three phases.
Phase 1, now near completion, involved stripping and
repainting the New Jersey approach spans. Corcon is
performing that work. Phase 2, which DRPA is now
soliciting, will involve repainting the Pennsylvania approach
spans. Phase 3, which has not yet begun, will involve
repainting the center span portion. The Phase 2 contract is the
subject of the instant dispute (identified herein as “Contract
No. CB-31-2016” or the Phase 2 contract).
In early May, 2016, DRPA began soliciting bids for
the Phase 2 contract. On June 16, 2016, the due date for
submissions, DRPA received seven bids, including Alpha’s
and Corcon’s. That same afternoon, DRPA assembled the
bidders for Phase 2 in its conference room to open the bids
publicly. Among those present were Adam Jacurak, DRPA’s
senior engineer in charge of the Phase 2 project, Amy Ash,
DRPA’s Director of Contract Administration, as well as the
bidders. Ash opened the bid packages and declared Alpha the
“apparent low bidder” because it bid the lowest price,
$17,886,000. Corcon bid $17,896,200 (the second lowest
price, $10,200 more than Alpha).
4
Both Alpha and Corcon have significant experience
painting bridges. Alpha, a Maryland-based industrial painting
contractor, has painted numerous bridges across the country
and is prequalified to bid for such work in 40 states. Alpha
has previously worked for DRPA, painting the Pennsylvania
approach span of another one of its bridges between 2007 and
2009. Alpha also worked on a non-DRPA project at
Philadelphia’s 30th Street Station in 2014 as part of a joint
venture with another contractor. Alpha has not performed any
other work in Pennslyvania or New Jersey over the last five
years.
Corcon, a national bridge painting contractor, has also
worked for DRPA. Currently, it is painting Phase 1 of the
Bridge Project and there is evidence that it has recently
painted other DRPA bridges as well. Moreover, DRPA is
collaborating with Corcon on an extracurricular film project
concerning Corcon’s work on the Commodore Barry and
other DRPA bridges. 1
After DRPA determined that Alpha and Corcon were
the lowest and second lowest bidders, respectively, it
undertook a review of the bids. Over the next two months,
after a process largely characterized by inaction and delay,
DRPA ultimately rejected Alpha’s bid and selected Corcon’s.
1
At trial, no one from Corcon testified. DRPA’s chief
engineer, Michael Venuto, acknowledged the film project
during a line of questioning by Alpha’s counsel ostensibly
aimed at suggesting possible motives for DRPA to favor
Corcon over Alpha. While Venuto admitted that this film
required access to the bridge, Venuto did not think DRPA had
any financial stake in the project.
5
Two determinations form the heart of Alpha’s challenge.
First, DRPA declared that Alpha was “not [a] responsible”
contractor under its guidelines because Alpha failed to remit
certain accident experience forms (called OSHA 300 forms)
and insurance data (in the form of Experience Modification
Factors, or EMFs) in its bid package. A.1037. As discussed
infra, DRPA uses this data to assess a bidder’s job-site
“safety culture.” A.1756. Second, DRPA declared that
Corcon was in fact the lowest bidder because of a
“miscalculation” that DRPA perceived in Corcon’s bid.
A.3821. DRPA’s conduct leading to these determinations (all
of which occurred sometime between June 16 and August 9,
2016) was the subject of Alpha’s challenge before the District
Court.
We too will focus on this time period. At trial, DRPA
presented documentary evidence including its guidelines,
emails to and from certain employees, and emails between
DRPA and certain bidders, as well as the testimony of four of
its employees. We think it most helpful to proceed by first
briefly reviewing applicable portions of DRPA’s bidding
guidelines. Next, we will discuss how DRPA analyzes OSHA
300 forms and EMFs. Finally, we will recount the specific
aspects of DRPA’s two determinations that are challenged by
Alpha.
1. DRPA’s Bidding Guidelines
DRPA’s bidding guidelines are internal regulations
adopted by DRPA that govern its procurement of services for
6
work on its bridges. 2 When DRPA seeks construction and
maintenance services, in particular, it uses the Competitive
Sealed Bid procurement method. Under that method, DRPA
must issue an Invitation for Bids (“IFB”) detailing the project,
collect and publically open sealed bids at a set time and place,
and declare an apparent low bidder. Then, after a subsequent
investigation, the guidelines require that DRPA award the
contract to the “lowest responsible and responsive [b]idder”
unless all bids are rejected or the lowest bidder is allowed to
withdraw its bid. A.110 (emphasis added).
The guidelines thus set up a process whereby DRPA
must perform two distinct review inquiries. First, DRPA must
determine, within ten days of submission, whether a bid is
responsive. See A.495 (“Responsiveness of a bid is
determined within ten (10) business days from the bid itself . .
. .”). A responsive bid is one that “conforms in all material
respects to the requirements and criteria in the invitation for
bids.” A.489. DRPA may, however, “waive technical defects
or immaterial items” that would otherwise make a bid
nonresponsive so long as the waiver does not undermine the
competitive character of the bidding process. A.495.
Second, DRPA must separately determine whether the
lowest bidder is responsible. A “responsible bidder . . .
possess[es] the capability to fully perform the contract
requirements in all respects and the integrity and reliability to
assure good faith performance.” A.524 (internal quotation
2
By “bidding guidelines,” we refer to the set of
documents DRPA submitted to the District Court which
govern its procurement process, particularly the Invitation for
Bids, the Procurement Manual, and Engineers Manual.
7
marks omitted). Unlike responsiveness, this requirement
“goes to the capacity of the bidder . . . rather than its
willingness to perform on [DRPA’s] terms.” Id. “[C]apacity
to perform involves not only its ability to meet quality,
quantity and time requirements, but its business integrity to
assure honest, good faith performance.” Id. DRPA “may not
presume that all bidders . . . are responsible,” but instead has
an “affirmative duty” to make this determination with respect
to the lowest bidder and to document its reasons for doing so
in the contract file. Id.
If DRPA determines that the lowest bidder is
responsible, DRPA must accept that bidder. DRPA may reject
a bidder as “not responsible” and select a higher bidder, but
only if its “investigation discloses a substantial reason” for
doing so. Id. (emphasis added). The guidelines are clear that
“[DRPA] should not base a determination of
nonresponsibility on a single bad item or report unless the
behavior or financial condition . . . is of a sufficiently serious
nature as to call into question the ability or integrity of the
bidder . . . to perform the contract.” A.526 (emphasis added).
The guidelines go on, in a lengthy chapter dedicated
entirely to the responsibility inquiry, to describe the rigorous,
wide-ranging investigation that DRPA should undertake to
fulfill this duty. The guidelines state that DRPA “is not
limited in its investigation to reviewing information provided
by the bidder[] with its bid[]” and “should take any steps it
determines are necessary to ensure that a bidder . . . is
responsible.” A.526. Such steps include “request[ing] a
bidder . . . to supply financial, educational, and experience
information as well as references” or “requesting further
clarification from the bidder[] as appropriate” during its
8
review. A.526. DRPA may also perform news and internet
searches or public record database searches, and may review
corporate filings, published consumer ratings, and
certifications, just to mention a few.
2. DRPA’s Review of OSHA 300 Forms and EMF Factors
According to DRPA, an important part of its
responsibility investigation involves determining whether the
bidder has a history of performing safely on the job. To
facilitate this review, the IFB (§ A.10.3) states that all bidders
“will supply with its [b]id, accident experience in the form of
the standard OSHA 300 Report and its Experience
Modification Factors [(“EMFs”)] for all work completed in
the State of New Jersey and the Commonwealth of
Pennsylvania, covering the preceding three (3) reporting
years.” A.84. DRPA then uses these EMFs and OSHA 300
forms to assess the “safety culture” of the bidder. A.1756.
OSHA 300 forms are completed by the contractor
annually and provide a summary of the total number of
company employees, total hours worked by those employees,
the number of injuries reported, and a brief description of
each injury.
EMFs are a creature of the insurance industry. They
are numerical multipliers generated yearly by state-designated
ratings bureaus, and they are assigned to every company that
performs work within a particular state. The EMF calculation
that produces this multiplier takes into account the frequency
and severity of workers’ compensation claims filed against
9
the company in that state. It does not account for workplace
injuries to non-employees or injuries that do not result in a
workers’ compensation claim. Insurance firms then use a
company’s EMF to adjust the amount of workers’
compensation insurance premium it has to pay for that year.
For example, a company assigned a 1.00 EMF pays the
standard market rate for insurance. A company assigned an
EMF of less than 1.00 will get a “credit” on its premium and
will pay less than the standard market rate for its insurance,
while a company assigned an EMF greater than 1.00 will pay
more.
Some states assign new contractors (or contractors
who have never performed work in that state) an EMF of
1.00. But other states, like Pennsylvania, report that a new
contractor “does not qualify” for an EMF (because it does not
meet Pennsylvania’s payroll threshold to qualify). From an
insurance premium perspective, however, a company that
“does not qualify” is indistinguishable from a firm assigned a
1.00 EMF because both would pay the standard market rate of
insurance. 3
How DRPA actually goes about employing this
information to assess “safety culture” was the subject of much
discussion at trial. As best we can tell, once DRPA receives
bids for a given project, the senior engineer separates the bid
3
DRPA’s Director of Risk Management and Safety,
Marianne Staszewski did not disagree. She only noted that
from a “safety” review perspective, “does not qualify” means
that there “is no measurement of [a firm’s] safety
performance” and its record in this regard would therefore be
“inconclusive.” A1782.
10
into its constituent parts and sends the OSHA 300 forms and
EMFs to DRPA’s Department of Risk Management and
Safety. Marianne Staszewski, the Department’s director (and
the Department’s only employee), then “[performs] a risk
management review” of the OSHA 300s and EMFs, A.1709,
which essentially amounts to determining whether the bidder
has a positive “safety culture,” A.1756.
DRPA’s review, however, seems more perfunctory
than analytic. In order to determine the “safety culture” of the
bidder, Staszewski averages the three EMFs supplied with the
bid. 4 A.1756. If the average is 1.25 or greater, she concludes,
in her words, that the “contractor has had significant
frequency or severity of losses within the last three years . . .
which translates into not working safely on the job.” A.1747.
If the EMF average is less than 1.25, she approves the bidder
because she is satisfied that it is “not suffering frequency and
severity of losses.” Id. During this process, Staszewski also
considers the quantitative aspects of a bidder’s OSHA 300s—
the number of employees, hours worked, injuries reported—
to contextualize its EMF score, although it was not clear from
her testimony how this impacts her final analysis. 5 She does
4
Staszewski testified that she considers EMFs only
from the three most recent completed calendar years because
the current, unfinished year provides a “green” number that
indicates only a partial picture of safety for that year. A.1713.
So for the Phase 2 contract, DRPA considered 2015, 2014,
and 2013 EMFs.
5
Compare A.1757 (“[T]he EMF factor is a statistical
result of this OSHA 300 form, so you cannot take that out of
the equation.”), with A.1759 (“The consequence of my
analysis is, if the prior three years averaged 1.25 or less, then
they are approved.”).
11
not consider the portion of the OSHA 300 form that describes
the reported injuries. 6
We now turn to the two disputed portions of DRPA’s
review in this case.
3. DRPA’s Evaluation of Alpha’s and Corcon’s OSHA 300
and EMFs
With respect to Alpha’s bid: on June 16, 2016, the day
of the bid opening, DRPA’s staff undertook a quick
responsiveness review to determine compliance with §
A.10.3. Jacurak and Ash testified that they flipped through
Alpha’s bid and noticed that it did not include OSHA 300
forms. DRPA, however, did not declare Alpha’s bid “not
responsive” to the IFB. Instead, Jacurak and Ash notified
DRPA’s general counsel to get guidance. Very little emerged
about these discussions at trial, but apparently, counsel
instructed the staff to circulate both Alpha’s and Corcon’s
bids, rather than just Alpha’s, to DRPA’s various departments
for a responsibility determination.
Three weeks later, on July 7, 2016, Jacurak emailed
Staszewski with Alpha’s EMF letter attached. 7 Alpha had
6
In fact, Staszewski admitted that some rather
egregious safety violations would not affect her analysis in
any way. Alpha’s counsel posed a hypothetical wherein a
contractor drops an I-beam on a train passing on the bridge
below, killing all aboard. Staszewski stated that so long as
none of the persons on the train were employees, this fact
would not be considered in DRPA’s safety analysis.
7
The documents presented at trial indicated that
Jacurak also sent Staszewski a Department of Labor website
12
submitted a letter from its insurance broker which stated that
“[Alpha] did not qualify for experience [EMF] rating[s] in
2016, 2015, 2014 and 2013” in either Pennsylvania or New
Jersey. A.1021. It is undisputed that Alpha had not performed
work in Pennsylvania or New Jersey as an individual entity in
the last five years, although it had done work in Pennsylvania
as part of a joint venture in 2013 and 2014 (which resulted in
the joint venture being assigned an EMF of .933 and .837,
respectively). 8 Staszewski determined that she could not
effectively review Alpha’s safety record under her EMF
policy because “[Alpha] did no work in the State of
Pennsylvania, . . . did no work in the State of New Jersey,
[and thus] ha[d] no work experience” over these three years,
A.1760, from which she could “conclusively” determine its
safety culture, A.1786.
After roughly three more weeks of silence, on July 28,
2016, Ash prepared and sent Alpha a letter rejecting its bid
(the “July 28 Rejection Letter”). The letter first cited the
requirement that the bidder supply OSHA 300 forms and
EMFs. Then it stated that Alpha’s “failure to provide the
OSHA Form 300 and its inability to provide experience
modification factors back through 2013 prevent[ed DRPA]
printout containing information about Alpha’s experience.
Jacurak claimed that this printout was submitted with Alpha’s
bid in lieu of its OSHA 300 forms. The record is unclear
what, if any, impact this had on DRPA’s analysis.
8
These 2013 and 2014 EMFs were not reported in the
broker letter. Alpha’s insurance broker later mailed DRPA a
second letter containing these EMFs and reporting that it had
incorrectly stated Alpha had not performed any work in
Pennsylvania.
13
from substantially evaluating Alpha’s safety record.” A.1037.
As a result, DRPA declared that it found “Alpha ‘not
responsible’ for the subject Project, and therefore, [that]
Alpha’s bid [was] rejected.” Id.
At trial, the parties vigorously disputed whether Alpha
actually submitted its OSHA 300 forms, an inquiry which
consumed much of the District Court’s time. Tom Kousis,
Alpha’s project manager in charge of its Phase 2 bid, testified
at length that he remembered submitting the forms. He
pointed to a box on the bid form that he checked
contemporaneously to his binding the bid package together.
Jacurak and Ash maintained that none were submitted.
Because no copies of Alpha’s paper bid were made and all
submissions were unbound during the subsequent bid review
phase, it was impossible to determine from the documentary
evidence whether Alpha had submitted these records.
The remainder of the testimony at trial focused on
DRPA’s determination that Alpha was “not responsible.”
Alpha’s counsel tried to pinpoint exactly who made this
guidelines determination. But no one seemed to know.
Staszewski testified that she had no idea who made that
determination in this case, and had only the faintest clue who
does so in the ordinary course. Her “understanding” was that
Amy Ash would make that call. A.1794. Ash, however,
declined having anything to do with the responsibility
determination. She testified that Jacurak told her “the director
of risk management [i.e., Staszewski] found Alpha to be
nonresponsible.” A.1618. Jacurak reported “that is either – I
have to say it’s between legal and contracts administration.”
A.1532. DRPA’s general counsel did not testify, nor is it clear
14
what business input, if any, he or she had in these
determinations.
Alpha’s counsel also questioned whether Staszewski,
who the District Court described as “visibly flummoxed” at
trial, 9 had identified anything in Alpha’s submission or
otherwise that suggested it was not a safe contractor. She
maintained that Alpha’s record, without EMFs, was
inconclusive and therefore could not be approved. When
asked about Alpha’s out-of-state record painting bridges, she
claimed that it was “not pertinent” to her analysis for DRPA’s
New Jersey and Pennsylvania bridges, although she conceded
that it might be relevant to assessing Alpha’s “safety.”
A.1782. She insisted that it was “not feasible” to even ask
Alpha about its out-of-state record, A.1783, intimating only
that her superior told her once not to contact bidders during
her review. She also admitted to knowing that Alpha had
previously performed work in Pennsylvania in 2014 as part of
a joint venture.
Alpha’s counsel also asked Staszewski whether, as a
consequence of her EMF analysis, DRPA would only
“approve” contractors that had previously performed work in
New Jersey or Pennsylvania in the last three years. She said
no. In fact, Staszewski admitted that it was “possible” that a
new contractor that had never been assigned an EMF in
Pennsylvania or New Jersey and had done no work there
could be approved under her EMF policy, although she could
9
Alpha Painting & Constr. Co., Inc. v. Delaware
River Port Auth., No. 116-CV-05141 (NLH)(AMD), 2016
WL 5339576, at *5 (D.N.J. Sept. 23, 2016).
15
not list, when asked, what other factors she might consider in
so finding.
Staszewski disclosed that she did contact Alpha’s
insurance broker to confirm that Alpha had not performed any
work in Pennsylvania or New Jersey. She did not contact
Alpha directly. No one at DRPA did. To the contrary, because
he had not heard from DRPA since being declared the lowest
bidder, Kousis repeatedly called and emailed DRPA staff to
inquire whether DRPA had sufficient information to complete
its review. Most calls and emails were ignored. Kousis
reached Jacurak once by phone sometime in July, but Jacurak
did not mention that Alpha failed to submit its OSHA 300s.
Not much else exists in the record regarding DRPA’s
review of Alpha. Other portions of the bid were sent to other
DRPA departments, but the status of their review is not
known. DRPA’s chief engineer, Michael Venuto testified that
because Staszewski withheld her approval, he never contacted
Alpha’s references from other jobs, performed due diligence
with respect to noise control, assessed compliance with Coast
Guard requirements, or investigated Alpha’s ability to
provide under-deck staging.
With respect to Corcon, its bid was missing the
requisite 2013 EMF—its broker letter provided usable EMFs
for 2014 and 2014 only. Upon noticing its absence,
Staszewski called Corcon’s broker, who provided an updated
insurance letter containing the missing 2013 EMF.
Staszewski then concluded, after averaging Corcon’s EMFs,
that it “embrace[d] a safety culture.” A.1756. She then
approved its bid from a safety review perspective. It is not
16
clear from the record, what, if any, other responsibility
investigation DRPA undertook with respect to Corcon.
4. DRPA’s Modification of Corcon’s Bid on August 9,
2016
Alpha also challenged DRPA’s subsequent
modification of Corcon’s bid, which had the effect of making
Corcon the lowest bidder. The IFB required bidders to
propose a price for “Mobilization and Clean-up” costs, which,
according to the IFB, was not to exceed 7.5% of the total bid
price. A.361 (“Section Q”). Corcon’s bid exceeded this 7.5%
limitation. Jacurak testified that he noticed this on June 17,
2016, when he performed an initial review of the price
schedules. However, he did not declare Corcon nonresponsive
to the IFB.
Instead, on August 9, 2016, nearly two months after
discovering the discrepancy (and about two weeks after
Alpha filed its bid protest), DRPA sent letters to all bidders
stating that DRPA had “discovered” that three bidders (one of
whom was Corcon) “may have incorrectly computed the
Mobilization and Clean-up line item.” A.3820. It then cited
IFB § A.7.5, which states in full:
The Bidder shall state in the Form of Proposal
the price per unit of measure or lump sum price,
in words and in figures, for each scheduled item
of Work, and the Total Price for the
performance of the Work, as determined by
17
multiplying each estimated quantity by the price
per unit of measure bid therefore and adding
together the resulting amounts and any lump
sum prices required. For the purposes of
comparison of Bids received, the Total Price,
correctly computed, stated in the Proposal will
be considered to be the amount Bid for the
Work and the award will be made on that Total
Price.
A.81 (italic and bold emphasis added). Relying on the
italicized portion, and in particular the bolded phrase,
“correctly computed,” DRPA asked each firm that bid more
than 7.5% of its total bid price to “confirm” that the
Mobilization costs quote “was, in fact, a miscalculation.”
A.3821. DRPA then declared Corcon the lowest responsible
bidder. Finally, after approving Corcon’s bid, DRPA’s staff
recommended Corcon to the Board of Commissioner’s
Operations and Maintenance Committee.
B. Proceedings before DRPA’s Board of Commissioners
Alpha protested the July 28 Rejection Letter on July
29, 2016 in a letter to DRPA, noting in particular that if
DRPA’s decision was based on responsiveness, it should have
been made earlier and that DRPA “could have easily asked
for the documents.” A.421. DRPA’s General Counsel denied
a hearing and rejected the protest, although he permitted
DRPA to file a written appeal to DRPA’s Board of
Commissioners.
The Operations and Maintenance Committee took up
Alpha’s appeal and the recommendation to accept Corcon’s
18
bid at a special meeting dedicated solely to these matters on
August 10, 2016. Alpha did not attend this meeting. The
meeting began at 10:40 am and the Committee immediately
moved into executive session. No transcript or minutes were
taken. The Committee then went back on the record at 10:51
am, approved DRPA’s recommendation to award the Phase 2
contract to Corcon without discussion, and adjourned at 10:54
am, three minutes later.
DRPA’s full Board considered the Committee’s
resolution to accept Corcon’s bid on August 17, 2016, at its
regularly scheduled meeting. At the meeting, Alpha’s counsel
gave a lengthy and detailed statement outlining its protest.
The Board then moved into executive session for 20 minutes,
although, again, no minutes were taken. When it emerged, it
resolved to accept Corcon’s bid without acknowledging
Alpha or hearing any public discussion of the Committee’s
resolution. It then directed DRPA’s staff to enter negotiations
with Corcon.
C. Alpha’s Federal Lawsuit
On August 23, 2016, Alpha filed suit in the District
Court for the District of New Jersey on an expedited basis
claiming that DRPA’s award violated its guidelines and thus
was arbitrary and capricious under New Jersey, Pennsylvania,
and federal common law. 10 The complaint requested
10
Alpha also claimed that DRPA’s conduct violated its
due process rights, the New Jersey Open Public Meetings
Act, N.J. Stat. Ann. § 10:4-6, and the Pennsylvania Sunshine
Act, 65 Pa. Cons. Stat. 701.
19
injunctive relief including an order directing DRPA to award
the contract to Alpha.
The District Court held a four-day bench trial. In a
lengthy opinion, the District Court separately considered and
rejected both of DRPA’s stated reasons—lack of OSHA 300
forms and lack of EMFs—although it focused on DRPA’s
EMF policy. 11 Alpha Painting & Constr. Co., Inc. v.
Delaware River Port Auth., No. 116-CV-05141
(NLH)(AMD), 2016 WL 5339576, at *3 (D.N.J. Sept. 23,
2016). It found DRPA’s reliance on EMFs troubling. Because
EMFs only accounted for workers’ compensation injuries, it
deemed them an underinclusive proxy for a bidder’s safety
record. It also found, based on the testimony of Alpha’s
insurance broker, that Alpha’s failure to qualify for EMFs
was not indicative of a poor safety record. Alpha’s record was
no different, in the District Court’s view, from the
hypothetical new contractor, who Staszewski said could be
approved under her test. Thus, it ultimately concluded that
“[n]othing in the record before [DRPA] prior to its final
decision to characterize Alpha as non-responsible justified
11
As noted, the parties disputed whether Alpha
submitted the OSHA 300 forms. The District Court, however,
declined to find one way or the other, characterizing the
evidence as being in “equipoise” on that issue. Alpha
Painting, 2016 WL 5339576, at *3. Nevertheless, the District
Court found that the “OSHA 300 forms played no meaningful
role . . . in DRPA’s risk management and safety review.” Id.
at 5. Because we ultimately conclude that Staszewski failed to
point to any evidence going to Alpha’s inability to do the
bridge work safely, OSHA forms included, we do not focus
on this reason separately in our analysis.
20
that conclusion and nothing before [the District] Court
support[ed] it either.” Id. at *8.
The District Court also rejected DRPA’s claim that the
agency had authority to modify Corcon’s Mobilization and
Clean-up cost quote. It concluded that DRPA did not have
authority to make that change under IFB § A.7.5 and that
DRPA’s delay in exercising this alleged authority, despite
being aware of the defect on June 17, 2016, suggested that the
modification was a pretext to ensure that Corcon was awarded
the contract. 12
With respect to the remedy, the District Court found
that irreparable harm would result if DRPA were not enjoined
from proceeding on the contract with Corcon and reasoned
that “there is no need to start the bidding process over, as
such a remedy would be adverse to the public good, and
12
The District Court also found that DRPA’s review
process was “[o]paque and [u]nreviewable.” Alpha Painting,
2016 WL 5339576, at *11. It was troubled by DRPA’s
counsel’s “intimate[] involve[ment in] the bid review
process,” which resulted in DRPA claiming attorney client
privilege “at every turn when . . . DRPA’s employees were
questioned about any decision-making.” Id. at *12. This, in
the District Court’s view, effectively prevented review of
DRPA’s decision.
The District Court declined to rule on Alpha’s due
process, Open Public Meetings Act, or Sunshine Act claims.
Id. at *15 n.34. Instead, it noted DRPA’s lack of transparency
“buttressed” its finding that DRPA acted arbitrarily and
capriciously. Id. at *15 n.33.
21
unfair to Alpha.” Id. at *15. To the contrary, it found Alpha
was “fully capable and qualified to perform the work required
under the contract, and [was] ready to mobilize immediately.”
Id. As support, it cited that Alpha’s OSHA 300 forms showed
Alpha had only one workers’ compensation injury reported
nationally over the last three years, while Corcon had seven
on the Phase 1 project alone; that Alpha had been issued QP1
and QP2 certifications from the Society for Protective
Coatings “which confirm[ed] that Alpha is capable of
removing industrial hazardous paint,” id. at *8 n.21; and that
Alpha has significant experience painting bridges. The
District Court then entered an order “permanently enjoin[ing
DRPA] from awarding Contract No. CB-31-2016 (Phase II)
to any entity other than [Alpha], and [DRPA] shall award
Contract CB-31-2016 (Phase II) to [Alpha].” A.13.
This expedited appeal followed.
II. Analysis 13
After a bench trial, as here, we review the District
Court’s factual findings, and mixed questions of law and fact,
for clear error, and we review the Court’s legal conclusions
de novo. VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d
273, 282-83 (3d Cir. 2014) (“On appeal from a bench trial,
our court reviews a district court’s findings of fact for clear
error and its conclusions of law de novo. For mixed questions
of law and fact we apply the clearly erroneous standard
except that the District Court’s choice and interpretation of
13
The District Court had jurisdiction under 28 U.S.C.
§ 1332. We have appellate jurisdiction under 28 U.S.C. §
1291.
22
legal precepts remain subject to plenary review.” (internal
quotations and citations omitted)); see also Free Speech
Coal., Inc. v. Attn’y Gen., 825 F.3d 149, 159 (3d Cir. 2016);
In re Frescati Shipping Co., Ltd., 718 F.3d 184, 196 (3d Cir.
2013); Country Floors, Inc. v. P’ship Composed of Gepner &
Ford, 930 F.2d 1056, 1062 (3d Cir. 1991). We review an
order granting injunctive relief under an abuse of discretion
standard. Fed. Trade Comm’n v. Penn State Hershey Med.
Ctr., 838 F.3d 327, 335 (3d Cir. 2016).
DRPA raises numerous challenges to the District
Court’s order, but we consider only three material to
resolving its appeal. 14 DRPA claims (A) that the District
Court abused its discretion by declaring that DRPA arbitrarily
and capriciously rejected Alpha and selected Corcon; (B) that
it was reversible error to fail to join Corcon, who DRPA
claims was a necessary party under Fed. R. Civ. P. 19; and
(C) that the District Court erred when it directed DRPA to
14
Because the District Court declined to rule on
Alpha’s due process claim and other state law claims under
the Open Meetings Act and Sunshine Act, we find it
unnecessary to consider DRPA’s arguments regarding these
issues. DRPA also argues that the District Court’s lengthy
discussion about DRPA’s repeated invocation of attorney-
client privilege during trial amounted to an adverse inference
that influenced its ultimate arbitrary and capricious ruling.
See supra, note 12. We do not read the opinion this way. The
District Court noted only that DRPA’s use of privilege
prevented the District Court from effectively reviewing
DRPA’s conduct. Regardless of whether DRPA claimed
privilege, DRPA still had the burden to provide a rational
basis for its action. As we conclude below, it failed to do so.
23
award the Phase 2 contract to Alpha. We consider each
below.
A. DRPA’s Rejection of Alpha and Selection of Corcon
With respect to the first issue, DRPA maintains that it
was not arbitrary and capricious (1) to label Alpha “not
responsible” or (2) to modify Corcon’s Mobilization line
item. Both determinations had the effect of making Corcon
the lowest, responsible bidder.
A District Court’s review of an agency’s procurement
decision “is extremely limited in scope.” Princeton
Combustion Research Labs., Inc. v. McCarthy, 674 F.2d
1016, 1021 (3d Cir. 1982). Because such decisions implicate
an agency’s expertise, we must be careful not to “substitute
[our] judgment for the agency’s.” Id. At the same time, we
may not shirk our judicial duty to ensure that a government
agency has complied with applicable bidding rules and
regulations, which exist in part for the public’s benefit by
ensuring that the agency obtains the most advantagous
contract available. Thus, a district court may not overturn a
procurement decision “unless the aggrieved bidder
demonstrates that there was no rational basis for the agency’s
decision.” Sea–Land Servs., Inc. v. Brown, 600 F.2d 429, 434
(3d Cir. 1979); see also R.A. Glancy & Sons, Inc. v. U.S.
Dep’t of Veterans Affairs, 180 F.3d 553, 557 (3d Cir. 1999);
Coco Bros. Inc. v. Pierce, 741 F.2d 675, 679 (3d Cir. 1984)
(recoginzing that discretion to award injunctive relief in
24
procurement cases “is restricted to circumstances where the
governmental agency’s action is illegal or irrational”).
However, if the agency provides a rational basis for its
action, our inquiry comes to an end. See Princeton
Combustion, 674 F.2d at 1022 (holding that, as a matter of
law, where the procurement decision was rational, a
reviewing court may not award injunctive relief despite the
presence of procurdural irregularities in the procurement
process). 15
15
The parties rely on our previous bidding dispute
cases without addressing a crucial distinction present here:
nearly all of those cases involve challenges to contract awards
by federal agencies brought under the Administrative
Procedures Act. DRPA, however, is a bi-state corporate
instrumentality created under the Compact Clause of the U.S.
Constitution. See Allied Painting, Inc. v. Del. River Port
Auth., No. CIV.A. 04-1032 (MAM), 2005 WL 724107, at *1
(E.D. Pa. Mar. 29, 2005) (recognizing that it is an open
question whether DRPA is a federal agency governed by the
APA or a state agency governed by state administrative law).
For purposes of review in this diversity case, we do not think
this distinction is material. Compare 5 U.S.C. § 706(permitting federal courts to set aside agency action under the
APA that is “arbitrary, capricious, [or] an abuse of
discretion”), with Textar Painting Corp. v. Del. River Port
Auth., 600 A.2d 795, 799-800 (N.J. Super. Ct. Law. Div.
1996) (noting, in bid dispute case, that “the actions of . . .
DRPA are reviewable by [the] court,” and applying “arbitrary
and unreasonable” standard).
25
Accordingly, we turn now to DRPA’s arguments that it
had a rational basis under its guidelines for its actions.
1. Alpha’s Failure to Submit OSHA 300 Forms and EMFs
DRPA argues that it has a rational basis for labeling
Alpha not responsible. We cannot see how. DRPA essentially
faults the responsiveness of Alpha’s bid package and relies
exclusively on Alpha’s failure to provide OSHA forms and
EMFs. But DRPA did not label Alpha non-responsive.
Instead, it rejected Alpha as “not responsible.” We have
closely scrutinized the record and have been unable to find
any justification casting doubt on Alpha’s “capability” or
“capacity” to perform abrasive lead paint stripping and
repainting. 16 Moreover, we do not think DRPA’s guidelines
16
Most of DRPA’s arguments on appeal, in an
apparent effort to distract us from this glaring deficiency in
proof, are directed at the District Court’s finding that DRPA’s
EMF policy was an underinclusive safety metric. DRPA
argues that the District Court impermissibly substituted its
personal judgment and opinion on this safety issue in
violation of our standard. We think, however, that DRPA’s
arguments miss the mark. The real issue is whether DRPA
had any evidence—as a result of its EMF policy or
otherwise—to support its determination that Alpha was “not
responsible,” i.e., not capable. For the reasons herein, we
think it did not.
26
allowed it to reject a bidder as not responsible based on this
type of justification. 17
We begin with Marianne Staszewski, as her testimony
was a focus of the parties’ briefing and DRPA’s contentions
at oral argument. She did not identify any facts that could
support DRPA’s responsibility finding. Staszewski simply did
not approve Alpha because it had not supplied the bid safety
information she was accustomed to receiving. That
conclusion ultimately—and for reasons unknown—
manifested as DRPA’s affirmative finding that Alpha was
“not responsible” in the July 28 Rejection Letter. DRPA
maintains this was rational. However, we fail to see how
Alpha’s failure to “qualify” for EMFs permitted DRPA to
conclude that Alpha was “not responsible.” At least in terms
of insurance risk, Alpha’s EMF history made it no different
from a new contractor who had never performed work in
Pennsylvania or New Jersey—both would pay the same
standard market rate of insurance. 18 Yet Staszewski said that
she could not approve Alpha’s record, but could “possibl[y]”
approve a hypothetical new contractor without EMFs.
17
Assuming, without deciding, that DRPA enjoys the
same Skidmore deference afforded to administrative agencies
when they interpret their own regulations, such deference
would be minimal in this case given the lack of any binding
effect outside DRPA, the lack of thoroughness in DRPA’s
consideration, and the lack of persuasive reasoning. See
Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 300 (3d Cir.
2012) (setting forth the factors that determine how much
deference we owe to an agency’s interpretation of its own
regulations).
18
DRPA has not challenged this finding as clearly
erroneous.
27
A.1784. She offered no reasoned explanation why. Surely, the
absence of EMFs in a bidder’s record does not show
“frequen[t] and sever[e] losses” on the job, which was
Staszewski’s central safety criterion. A.1747. An absence of
EMFs shows nothing one way or the other, and therefore was
not evidence of Alpha’s inability to do the work safely.
What we find so puzzling is that DRPA was aware of
at least some evidence from which it could evaluate Alpha’s
past safety performance. For example, Staszewski knew about
Alpha’s 2014 joint venture work on another project in
Pennsylvania. The joint venture was assigned an EMF of
.837, which fell well below Staszewski’s 1.25 bright-line rule.
She simply did not consider it. Moreover, DRPA maintains
on appeal that it is “infeasible” to inquire into Alpha’s out-of-
state bridge painting experience, despite some evidence that
most states subscribe to a national and uniform rating service.
DRPA has not persuasively explained why this data was not
at least relevant to assessing Alpha’s safety culture. 19
At most, Alpha’s bid was “not responsive” under the
guidelines. Its alleged failure to submit OSHA 300 forms and
EMFs (or a suitable equivalent) failed to “conform” to §
A.10.3’s clear text. DRPA all but concedes this point, and
essentially argues that it may also label a bidder “not
19
DRPA’s counsel urged at oral argument that it could
accept only in state-bidders if it chose to do so. We are not
persuaded. The bidding guidelines do not permit DRPA to
narrow its field of potential contractors in this way, nor did
DRPA discuss this at the pre-bid meeting, which many out-
of-state bidders attended.
28
responsible” at any time in the procurement process for the
same reason.
This line of argument, however, conflicts with
DRPA’s own guidelines. The guidelines establish that
responsiveness and responsibility are mutually exclusive
inquiries. DRPA had ten days from bid submission to declare
Alpha non-responsive to the IFB. It did not elect to do so here
(nor do we think it could have done so on July 28, thirty-two
days after this ten-day window closed). DRPA instead labeled
Alpha “not responsible.” This designation triggered a
different set of obligations and standards under the guidelines.
DRPA had an affirmative duty to determine the lowest
bidder’s responsibility, and could only reject its bid and select
a higher bid if its investigation unearthed a “substantial
reason” why the bidder was not “capable” or did not have the
“capacity” to do the work. A.524. Indeed, the guidelines
specifically contemplate that DRPA might have to look
outside the four corners of the lowest bidder’s submission to
fulfil that duty, including “requesting further clarification
from the bidder[] as appropriate.” A.526.
Here, for reasons that still elude us, DRPA appears to
have simply given up once it determined that Alpha’s EMF
record was inconclusive. DRPA did not contact Alpha to
“request[] further clarification.” A.526. Jacurak, DRPA’s
senior project engineer who knew about Alpha’s paperwork
deficiencies, did not ask Kousis, Alpha’s project manager,
about them during their call. 20 DRPA also failed to perform
20
Jacurak and Staszewski cited DRPA’s practice of
not contacting bidders during their review, which DRPA’s
counsel emphasized to us at oral argument. We understand
29
many other responsibility inquiries, as DRPA’s chief engineer
Venuto noted, such as contacting Alpha’s references. No
public searches were done; no news searches; no certification
assessments. Certainly nothing in the guidelines prohibited
these sorts of inquiries. Rather, they are encouraged, if not
mandated. In short, DRPA appears to have actually gone out
of its way to avoid relevant safety history information with
respect to Alpha.
There is yet another problem with DRPA’s argument.
Even if we were to agree with DRPA that it could designate a
bidder as “not responsible” because the bidder’s safety record
was unknowable from the four corners of its submission,
DRPA does not seem to have applied that rule consistently in
this case. Corcon failed to submit three years of EMFs
(providing only two usable years—2015 and 2014). DRPA
should have rejected Corcon for the same reason. We
therefore agree with the District Court that DRPA’s
application of its rules in this case gave unequal treatment to
Alpha and Corcon. Cf. Nazareth Hosp. v. Sec’y U.S. Dep’t of
Health & Human Servs., 747 F.3d 172, 179–80 (3d Cir. 2014)
(quoting Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209,
216 (D.C. Cir. 2013)) (“Agency action is arbitrary and
capricious if the agency offers insufficient reasons for treating
similar situations differently.”).
DRPA’s desire to maintain the appearance of impartiality,
but, as Jacurak noted in his testimony, there is no provision in
the guidelines prohibiting contact with a bidder. To the
contrary, the provisions we note supra counsel DRPA to do
exactly the opposite.
30
In sum, neither Staszewski nor any other employee or
document proffered a rational basis—pursuant to DRPA’s
1.25-or-lower EMF policy or otherwise—for labeling Alpha
“not responsible.” DRPA’s testimony in fact revealed that no
one knew who ultimately translated Staszewski’s conclusion
that Alpha’s record contained insufficient materials to assess
responsibility into the July 28 Rejection Letter, which
affirmatively determined that Alpha was not responsible. We
find that the District Court was correct in concluding that
DRPA acted irrationally.
2. DRPA’s Modification of Corcon’s Mobilization and
Clean-up Cost Price
DRPA next challenges the District Court’s finding that
DRPA acted without authority when it subsequently limited
Corcon’s Mobilization and Clean Up line item. Jacurak
recognized on June 17, 2016 that, contrary to what the IFB
required, Corcon had bid more than 7.5% of its total bid price
for this line item. Although DRPA characterized this as a
computation error within the meaning of IFB § A.7.5, DRPA
did not move to “correct” the alleged miscalculation until two
months after learning about it, and only until after Alpha had
filed a bid protest. The District Court concluded that DRPA’s
“discovery” was merely a pretext to ensure that Corcon was
awarded the contract. On appeal, DRPA does not try to
explain away the suggestive timing of this revision. Instead, it
contends that Section Q and § A.7.5 of the IFB “expressly
permit[]” it to reduce Corcon’s bid so that it complies with
the IFB. DRPA Br. 41.
This argument, however, borders on the frivolous.
Section Q, which defines how DRPA will pay its contractor
for each unit of work performed, says nothing about DRPA’s
31
power to modify a bidder’s final quote during its subsequent
investigation. Section A.7.5, which is titled “Preparing
Proposals,” is similarly unavailing because it merely instructs
contractors how to add or multiply their bid prices. In this
context, the phrase “correctly computed” can only plausibly
refer to a limited authority to correct mathematical errors in
the contractor’s computations of his Total Bid Price. A.81.
The following section, § A.7.6, actually explains this. See
A.82 (“If, during the tabulation of Bids, the Total Price on
any Proposal is found to be incorrectly computed, [DRPA]
reserves the right to make such changes as are necessary in
the extended Amounts and Total Price, on the basis of the
unit and lump sum prices given in words and the approximate
quantities stated for the scheduled items therein.” (emphasis
added)). Moreover, much like DRPA’s responsibility
determination, the decision to modify Corcon’s bid appeared
out of thin air. There is nothing in the IFB or otherwise that
gives DRPA such expansive authority. The District Court
correctly concluded that DRPA lacked the authority to
modify Corcon’s bid. On August 9, 2016, Alpha was still the
lowest bidder.
***
In sum, we agree with the District Court that DRPA’s
conduct over this two-month period, taken together, suggests
that it has gone out of its way to award the Phase 2 contract to
Corcon and not Alpha. We are equally alarmed that DRPA’s
Board of Commissioners gave virtually no attention to
Alpha’s protest. And, after months of litigation, much still
remains unclear. What is clear, however, is that DRPA’s
actions defy reasonable explanation. Accordingly, we hold
that DRPA’s rejection of Alpha and its eventual award to
Corcon was “illegal [and] irrational,” Coco Bros., 741 F.2d at
32
679, and that the District Court’s order setting it aside was not
an abuse of discretion.
B. Corcon as a necessary party under Rule 19 21
Next, DRPA urges that we vacate the District Court’s
order because Corcon, who was not joined in this action, was
a necessary party under Federal Rule of Civil Procedure
19(a)(1)(B)(i). This rule provides that a party must be joined
if the party has “an interest relating to the subject of the
action and is so situated that disposing of the action in the
person’s absence may . . . as a practical matter impair or
impede the person’s ability to protect the interest.” Fed. R.
Civ. P. 19(a)(1)(B)(i). We fail to see, however, how Corcon
had a protectable interest relating to this dispute that would
have necessitated its joinder.
DRPA relies on Independent Enterprises Inc. v.
Pittsburgh Water & Sewer Authority, wherein we rejected a
disappointed bidder’s procedural due process claim. 103 F.3d
1165, 1178 (3d Cir. 1997). Because the bidder’s bid had
21
We undertake plenary review of a District Court’s
ruling under Rule 19 that an absent party’s rights were not
necessary. Gen. Refractories Co. v. First State Ins. Co., 500
F.3d 306, 312 (3d Cir. 2007). We may reach this issue on
appeal, even if it was not raised in the district court. Disabled
in Action v. Se. Penn. Transp. Auth., 635 F.3d 87, 97 (3d Cir.
2011).
33
never been accepted by the state authority, we held that it
“had no legally enforceable interest in receiving the
contracts.” Id. at 1179. In so finding, we said that “one who
bids on a public contract has no legitimate expectation of
receiving it until the contract is actually awarded.” Id.
(emphasis added) (citing Highway Express Lines v. Winter,
200 A.2d 300, 303 (Pa. 1964)). DRPA seizes on this
distinction between bidder and awardee to argue that because
Corcon was “awarded” the contract, it obtained an
enforceable property right.
We disagree. We had no occasion in Independent
Enterprises to explore, much less decide for Rule 19
purposes, what it meant to “actually award[]” a contract. Id.Whatever that threshold may require, we think it clear that
DRPA’s guidelines do not vest any property right in a DRPA
awardee. DRPA’s Board’s resolution merely “authorize[ed]
[DRPA’s] staff to negotiate a construction contract with . . .
Corcon.” Supp. App. A.5. It did not create any contract rights.
Moreover, the guidelines accord significant discretion to
DRPA to negotiate with and even reject the eventual awardee
specified in that resolution. For example, DRPA may seek to
negotiate discounts with the awardee, see A.495, or may even
reject the awardee as not responsible “later in the process and
until the contract is fully executed,” A.524 (emphasis added).
DRPA has not “fully executed” a contract with Corcon and
thus it had no protectable property right. Cf. Coco Bros., 741
F.2d at 677 (recognizing that “negotiations after initial
acceptance of a bid postponed the date of the ‘final award’”).
Even if it did have a property right, Alpha persuasively
points out that Corcon’s interests were fully represented by
DRPA, which zealously sought to uphold its designation of
34
Corcon as the lowest responsible bidder. See Owens-Illinois,
Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1191 (3d Cir.
1979) (“The fact that the absent person may be affected by
the judgment does not of itself require his joinder if his
interests are fully represented by parties present.”).
We note, too, that DRPA’s own representations in this
case tend to undermine its claim that Corcon has a right to the
Phase 2 contract. During trial, DRPA represented to the
District Court that it would not award the contract until the
litigation had been resolved. Moreover, during the pendency
of this appeal, DRPA sent at least two letters to bidders
requesting that they agree to “an extension of the date of
award.” Supp. App. A1, A3. We decline to vacate the order
on this ground.
C. Remedy
Finally, we must decide whether the District Court
erred when it directed DRPA to award the Phase 2 contract to
Alpha. Because we conclude that the District Court exceeded
its authority by deeming Alpha “responsible” under DRPA’s
guidelines, we will vacate the portion of the order directing
the contract award and remand for the entry of a more limited
injunction.
We have said that even when a disappointed bidder has
shown an agency procurement decision to be irrational or
illegal, “prudent judicial discretion may still refuse
declaratory or injunctive relief because of overriding public
interests.” Sea-Land Servs., 600 F.2d at 434. This is because
“[j]udicial intrusion into government purchases necessarily
delays completion of the contract and increases costs, with
35
little measurable benefit to the public.” Allis-Chalmers Corp.,
Hydro-Turbine Div. v. Friedkin, 635 F.2d 248, 252-53 (3d
Cir. 1980). Thus to determine whether injunctive relief should
be granted, district courts should weigh (1) the practical
considerations of efficient procurement of supplies for
continuing government operations, (2) the public interest in
avoiding excessive costs, and (3) the bidder’s entitlement to
fair treatment through adherence to statutes and regulations.
Sea-Land, 600 F.2d at 434.
This case implicates a subsequent question in the
remedy analysis: what is the appropriate scope of injunctive
relief. The District Court directed DRPA to award the
contract to Alpha. Although Sea-Land does not preclude this
coercive form of relief, we have been clear that a district
court “must not succumb to the temptation of substituting its
judgment” for that of the agency’s procurement expertise. Id.
at 435; see also Princeton Combustion, 674 F.2d at 1021(“The district court is not to substitute its judgment for the
agency’s . . . .”). This is especially true where, as here, the
agency is charged with determining whether a contractor is
safe, responsible, and capable of performing a highly
specialized and potentially hazardous construction project.
Depending on the posture of the procurement, directing an
agency to award a contract to a specific bidder has the high
potential of transgressing this limitation. Accordingly, district
courts should not direct an agency to award a contract to a
specific bidder “unless it is clear that, but for the illegal
behavior of the agency, the contract would have been
awarded to the party asking the court to order the award.”
Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 204 (D.C.
Cir. 1984); Cf. Choctaw Mfg. Co. v. United States, 761 F.2d
609, 620 (11th Cir. 1985).
36
Here, the District Court weighed the Sea-Land factors
and concluded, relevant to the first factor, that there was no
need to “start the bidding process over, [which] would be
adverse to the public good” and, relevant to the third, that
irreparable harm to Alpha would result if DRPA was not
enjoined from proceeding. Alpha Painting, 2016 WL
5339576, at *15. We agree, and note in addition only that the
second factor in this case is largely neutral given the
relatively small gap between both Alpha’s and Corcon’s bid
price. The Sea-Land factors, therefore, favor injunctive relief.
However, we also agree with DRPA that the District
Court abused its discretion by directing the agency to award
the contract to Alpha because it is not clear that Alpha would
have received the contract “but for” DRPA’s illegal conduct.
We can sympathize with the District Court’s sentiment that
Alpha appeared perfectly qualified to perform abrasive blast
cleaning and painting. It possessed QP1 and QP2
certifications from a recognized trade association and
significant bridge painting experience. Alpha also seemed to
be a safe contractor as its OSHA 300 forms show only one
incident over three years.
But DRPA never determined that Alpha was
“responsible” with respect to safety, capability, or otherwise.
In fact, there is clear testimony in the record that the July 28
Rejection Letter effectively ended any further review of
Alpha’s file. DRPA’s chief engineer noted that, as a result of
that letter, DRPA never bothered to contact Alpha’s
references from other jobs, never performed due diligence
with respect to noise control, and never assessed compliance
with respect to Coast Guard requirements or Alpha’s ability
37
to provide under-deck staging. We simply cannot be certain
what those inquires might reveal or how DRPA’s engineering
team might weigh them. We therefore do not know whether,
but for the July 28 Rejection Letter, Alpha would have
received the contract. Because DRPA never completed its
responsibility investigation, the District Court’s factual
finding that Alpha was “responsible” was an impermissible
“substitut[ion] [of] judgment.” Sea-Land, 600 F.2d at 435.
The directed contract award, therefore, was an abuse of
discretion.
Alpha responds by citing Ulstein Maritime Ltd. v.
United States, 833 F.2d 1052 (1st Cir. 1987), as support for
the District Court’s directed award. There, the court
concluded that “but for” the violations of the applicable
guidelines, “one of the other bidders” would have received
the award. Id. at 1058 (citing Delta Data Sys., 744 F.2d at
204). But, unlike here, the court did not award the contract to
“any specific plaintiff.” Id. Instead, it ordered the Navy to
“review the bids previously received and to award the
contract to the next low, responsive and responsible bidder”
because it was “possible,” upon remand, that “[the plaintiffs]
may be rejected for defects in . . . responsibility, leading to
the award of the contract to a higher bidder or to no bidder at
all.” Id. Thus the order in Ulstein, far from lending support
for the directed award here, “merely un[did] the illegal
agency actions and instruct[ed] the agency to proceed with
the procurement which [was] in progress.” Id.Therefore, we think Ulstein actually counsels in favor
of a more limited injunction, the goal of which, in the
circumstances of this case, should be to undo the illegal
action and return Alpha to competition. See Delta Data Sys.,
38
744 F.2d at 206–07 (“[T]he main objective of our effort at
framing a [bidding violation] remedy is to assure that the
government obtains the most advantageous contracts by
complying with the procedures . . . . Putting the disappointed
bidder in the economic position it would have occupied but
for the error is normally the best approach to this result.”);
BCPeabody Constr. Servs., Inc. v. United States, 112 Fed. Cl.
502, 514 (2013) (ordering agency to restore apparent-low-
bidder to competition for contract and requiring agency to
“reevaluate [the] proposals”); Beta Analytics Int’l, Inc. v.
United States, 75 Fed. Cl. 155, 159 (2007) (“A reevaluation
restores to a victim of arbitrary and capricious procurement
activity its substantial chance to receive the contract award.”).
Here, DRPA arbitrarily removed Alpha from
contention for the Phase 2 contract. Accordingly, Alpha
should be restored to competition and DRPA should evaluate
Alpha’s bid and affirmatively determine, per its guidelines,
whether Alpha, the lowest bidder, is a “responsible”
contractor. We therefore will vacate the portion of the District
Court’s order directing DRPA to award CB-31-2016 to Alpha
and remand to the District Court for it to fashion a more
limited injunction consistent with this opinion.
III. Conclusion
For the foregoing reasons, we affirm in part, vacate in
part, and remand to the District Court.
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