Sims v. United States , 655 F. App'x 826 ( 2016 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    JACQUELINE SIMS, DBA JRS STAFFING
    SERVICES,
    Plaintiff-Appellant
    v.
    UNITED STATES,
    Defendant-Appellee
    ______________________
    2016-1661
    ______________________
    Appeal from the United States Court of Federal
    Claims in No. 1:15-cv-00367-NBF, Senior Judge Nancy B.
    Firestone.
    ______________________
    Decided: July 8, 2016
    ______________________
    JACQUELINE SIMS, Lawrenceville, GA, pro se.
    MICHAEL ANTHONY RODRIGUEZ, Commercial Litigation
    Branch, Civil Division, United States Department of
    Justice, Washington, DC, for defendant-appellee. Also
    represented by BENJAMIN C. MIZER, ROBERT E.
    KIRSCHMAN, JR., STEVEN J. GILLINGHAM.
    ______________________
    2                                    SIMS v. UNITED STATES
    Before PROST, Chief Judge, NEWMAN and BRYSON, Cir-
    cuit Judges.
    PER CURIAM.
    Jacqueline Sims appeals a final decision of the Court
    of Federal Claims denying her bid protest. We affirm.
    I
    A
    On September 19, 2014, the Bureau of Prisons
    (“BOP”) issued a solicitation for horticulture instructional
    services at the Federal Prison Camp in Alderson, West
    Virginia (“FPC Alderson”). The solicitation was designat-
    ed as a small business set-aside contract. It required an
    instructor to provide classes at FPC Alderson with a
    regular work schedule from 8 a.m. to 2:30 p.m., five days
    a week. The contract was to be for one base year and four
    option years. The solicitation indicated that pursuant to
    an affirmative determination of responsibility, the offers
    would be evaluated to determine which quotation was
    most advantageous to the government, “considering
    technical capability, past performance, and price.”
    On October 17, 2014, Ms. Sims submitted a quotation
    in response to the solicitation through her sole proprietor-
    ship, JRS Staffing Services. Two other bidders also
    submitted quotations, including Mr. Arbaugh, who was at
    that time the horticulture instructor at FPC Alderson. In
    her quotation, Ms. Sims indicated that she would offer the
    current instructor a right of first refusal to perform the
    services should she be awarded the contract. If he were to
    decline, Mr. Sims proposed a candidate with significant
    experience working on dairy farms.
    The contracting officer evaluated Ms. Sims’s offer on
    the basis of technical capability, past performance, and
    price. The officer determined that her quotation con-
    formed to the solicitation; her past performance history
    SIMS v. UNITED STATES                                    3
    was neutral, as she had not performed contracts similar
    in nature, size, and scope to the horticulture instruction
    contract; and that Ms. Sims’s quote was the lowest cost
    quote of the three received. However, the contracting
    officer found that Ms. Sims did not satisfy the “responsi-
    bility” requirement because she lacked the capacity to
    complete performance if offered the contract. In support
    of that determination, the contracting officer made sever-
    al findings.
    First, the contracting officer found that Ms. Sims had
    failed to accept an offered award of a contract for cos-
    metology instruction services at FPC Alderson in 2012.
    On that occasion, Ms. Sims was offered a contract on
    March 30, 2012, with an effective date to begin perfor-
    mance on April 9, 2012. The contracting officer told Ms.
    Sims that because the cosmetology program had been
    halted, the prison was anxious to complete a contract and
    resume instruction. Three days after the award, Ms.
    Sims indicated that she had not finalized the insurance
    needed to begin work on the contract and would complete
    that process within a week. One week later, on April 10,
    2012, Ms. Sims informed the contracting office that she
    had still not secured insurance and that she intended to
    accept the contract offer once the insurance arrangements
    were finalized. On April 13, Ms. Sims informed the
    contracting officer that she had not been able to secure
    insurance on the private market and that she would seek
    it from a state program. She estimated it would take two
    more weeks to get an insurance policy. On April 16, the
    contracting officer withdrew the award.
    Second, the contracting officer noted that Ms. Sims
    had failed to accept a contract offer in October 2014 for
    culinary arts instruction at the Federal Correctional
    Institution in Tallahassee, Florida. On September 29,
    2014, after being awarded a contract offer by the BOP,
    Ms. Sims expressed concerns about being able to find a
    replacement candidate with the required qualifications
    4                                     SIMS v. UNITED STATES
    should her preferred candidate resign during the contract.
    The contracting officer promptly responded that the
    requirements would not be changed and told Ms. Sims to
    respond by the close of business on September 30 if she
    was still interested in the contract. After receiving no
    response from Ms. Sims by the deadline, the contracting
    officer rescinded the offer to Ms. Sims and offered it to the
    next highest bidder.
    Third, a company managed by Ms. Sims, Jacqueline
    R. Sims L.L.C., dba JRS Management, was awarded a
    contract to provide culinary arts instruction at the Feder-
    al Correctional Institution in Miami, Florida. Her com-
    pany failed to provide a candidate during the base year,
    and the contract was terminated.
    Finally, the contracting officer noted that Ms. Sims
    had previously been referred to the Small Business Ad-
    ministration for a Certificate of Competency and that the
    referral had been declined.
    Based on those findings, the contracting officer de-
    termined that Ms. Sims would not be able to comply with
    the required performance schedule under the contract and
    made a determination of non-responsibility. On January
    29, 2015, the contracting officer referred Ms. Sims to the
    Small Business Administration (“SBA”) to seek a Certifi-
    cate of Competency (“COC”).
    B
    After the referral to the SBA, Ms. Sims submitted an
    application for a COC. Her submission included infor-
    mation about her companies, the names of candidates she
    was considering for the horticulture position, and a histo-
    ry of her previous contracts.
    An SBA procurement analyst reviewed Ms. Sims’s
    submissions and made findings about her capacity to
    perform. He found that Ms. Sims and her LLC had com-
    pleted 12 contracts in the three prior years, primarily for
    SIMS v. UNITED STATES                                     5
    religious services, and that she and her LLC were en-
    gaged in five ongoing contracts. He also found 13 in-
    stances in which the government had made an offer for an
    award that Ms. Sims did not accept, or in which the
    contract was later terminated. He noted that Ms. Sims
    indicated that in most of those cases the reason she had
    not accepted the award was that the terms of the award
    were different from the terms of the solicitation. The
    analyst found that Mr. Sims had no current employees
    suited for the position at FPC Alderson, but that the two
    candidate instructors for whom Ms. Sims submitted
    resumes for appeared to be qualified.
    As part of its investigation, the SBA contacted three
    contracting officers who had dealt with Ms. Sims in the
    past. The first stated that Ms. Sims had filed protests
    relating to four solicitations and one contract, and that
    she had been offered another contract but had not accept-
    ed it. The second officer verified that Ms. Sims had two
    contracts currently open—one ongoing and the other not
    yet started. That officer did not have any comments on
    Ms. Sims’s performance. The third officer described her
    as “aggravating, unreasonable, argumentative and liti-
    gious” during negotiations, and said that he did not
    exercise an option on one of her contracts because she
    demanded a modification of the contract so that she would
    not be liable if an instructor failed to meet the terms of
    the contract.
    Based on all of those findings, the procurement ana-
    lyst recommended that the SBA not issue Ms. Sims a
    COC. The analyst specifically noted that she had no
    experience in the past three years completing a contract
    for instruction other than for religious services, that she
    did not have any current employees with the requisite
    skills, that she did not perform on 25 percent of the con-
    tracts offered to her, and that she had difficulty resolving
    administrative issues that arose in the contracting pro-
    cess.
    6                                    SIMS v. UNITED STATES
    An SBA review committee voted to decline the COC.
    The SBA informed Ms. Sims that her COC had been
    declined, and the BOP then offered the horticulture
    contract to the next lowest bidder, Mr. Arbaugh.
    C
    Ms. Sims filed a bid protest in the Court of Federal
    Claims. She argued that the contracting officer’s non-
    responsibility decision and referral to the SBA was arbi-
    trary and capricious, primarily because it was based on
    information improperly considered. She also argued that
    the SBA’s denial of a COC was arbitrary and capricious.
    The Court of Federal Claims found that the contract-
    ing officer’s decision was neither arbitrary nor capricious,
    and that the contracting officer properly relied on availa-
    ble information about Ms. Sims’s ability to perform the
    contract, including her prior performance record. The
    court also found that the SBA had acted rationally and
    had properly considered the available evidence.
    II
    We review the trial court’s judgment on the adminis-
    trative record without deference. Colonial Press Int’l, Inc.
    v. United States, 
    788 F.3d 1350
    , 1355 (Fed. Cir. 2015).
    The challenger must show that the contracting officer’s
    decision lacked a reasonable basis and that the contract-
    ing agency failed to provide “a coherent and reasonable
    explanation of its exercise of discretion.” Banknote Corp.
    of Am. v. United States, 
    365 F.3d 1345
    , 1351 (Fed. Cir.
    2004). “Because responsibility decisions are largely a
    matter of judgment, contracting officers are generally
    given wide discretion to make this decision.” John C.
    Grimberg Co. v. United States, 
    185 F.3d 1297
    , 1303 (Fed.
    Cir. (1999). We review the SBA’s denial of a COC by the
    same standard. See 5 U.S.C. § 706.
    SIMS v. UNITED STATES                                       7
    A
    We conclude that the contracting officer had a reason-
    able basis for his non-responsibility determination. To be
    determined responsible, a contractor must “[b]e able to
    comply with the required or proposed delivery or perfor-
    mance schedule, taking into consideration all existing
    commercial and governmental business commitments.”
    48 C.F.R. § 9.104-1(b). In this case, the contracting officer
    rationally based his decision on Ms. Sims’s history of
    failing to accept offers after submitting bids. By making
    bids and then failing to accept contract offers after pro-
    tracted negotiations, Ms. Sims caused delays in agency
    procurement. It was rational for the contracting officer to
    take that history into account and determine that it was
    likely she would be unable to comply with the proposed
    delivery schedule.
    Ms. Sims argues that it was improper for the BOP to
    consider her failure to accept the contract for culinary
    arts instruction at Federal Correctional Institute Miami
    because there was no information on the BOP’s record
    substantiating her failure to accept. That argument is
    meritless. A letter explaining the details of the FCI
    Miami contract was in the record before the BOP.
    Ms. Sims argues that there was no evidence on the
    record that she was associated with Jacqueline R. Sims
    LLC. Setting aside that Ms. Sims and her LLC share the
    same name, the affiliation is evidenced by the letter that
    contained the details about the FCI Miami contract.
    She next argues that the BOP acted irrationally be-
    cause it treated her failure to accept offers as indicative of
    non-responsibility when she was free reject them as a
    matter of contract law. While she is correct that she was
    legally free to reject the offers, it does not follow that it
    was improper for the government to consider her history
    in making a responsibility determination. Serially bid-
    ding for contracts and failing to accept offers, as Ms. Sims
    8                                     SIMS v. UNITED STATES
    has done, delays the ability of the government to obtain
    needed services on a timely basis, and it was therefore
    reasonable for the contracting officer to take that conduct
    into account.
    Ms. Sims also argues that the BOP contracting officer
    was mistaken when he said that Ms. Sims had previously
    been referred to the SBA for a COC and that a COC had
    been denied. The record shows that, after she was re-
    ferred for a COC, she failed to submit a timely applica-
    tion, and the SBA then closed the matter without making
    a determination. In that regard, Ms. Sims is correct that
    the contracting officer mischaracterized the nature of the
    SBA’s action. However, the fact that the contracting
    officer was mistaken as to one of the grounds that he cited
    for his decision does not mean that his decision as a whole
    necessarily lacked a rational basis. “We do not reverse
    simply because there are uncertainties, analytic imperfec-
    tions, or even mistakes in the pieces of the picture peti-
    tioners have chosen to bring to our attention, . . . but only
    when there is such an absence of overall rational support
    as to warrant the description ‘arbitrary or capricious.’”
    Ctr. for Auto Safety v. Peck, 
    751 F.2d 1336
    (D.C. Cir.
    1985). The contracting officer relied on multiple factors,
    including several instances in which Ms. Sims did not
    accept offered contracts, and those factors make his
    decision as a whole rational. In context, the inaccuracy in
    the characterization of the SBA’s action regarding the
    prior COC referral was not so significant as to render the
    contracting officer’s decision arbitrary or capricious.
    B
    We also conclude that the SBA had a reasonable basis
    to deny Ms. Sims a COC. The SBA obtained information
    from government agencies having prior dealings with Ms.
    Sims. It reviewed her past performance on other con-
    tracts, and it noted the high percentage of offers that she
    had failed to accept. She has not shown that either the
    SIMS v. UNITED STATES                                     9
    SBA’s process or its decision on the merits of the COC
    denial was arbitrary and capricious.
    Ms. Sims argues that it was improper for the SBA to
    consider the fact that she did not employ an individual
    who was qualified to serve as a horticulture instructor.
    We disagree. Given Ms. Sims’s history of failing to pro-
    vide qualified instructors after being offered contracts, it
    was reasonable for the SBA to take into account that she
    neither employed any qualified instructors nor had bind-
    ing commitments from them. She argues that this failure
    is excused because she was required to offer the contract
    to the incumbent, Mr. Arbaugh, under a provision of the
    Federal Acquisition Regulations prohibiting the dis-
    placement of qualified workers. See 48 C.F.R. § 52.222-
    17. However, even if the contract required her to give Mr.
    Arbaugh a right of first refusal, it was reasonable for the
    SBA to consider the fact that she lacked contingent com-
    mitments from any other qualified candidates in the
    event that Mr. Arbaugh refused her offer.
    Ms. Sims next argues, as she did regarding the con-
    tracting officer’s non-responsibility determination, that
    the SBA erred by considering offers that did not ripen into
    contracts, as she was free to decline them. As discussed
    above, while she was free as a matter of contract law to
    decline the offers, the fact that she did so frequently
    speaks to her reliability as a potential contracting party,
    and it was rational for the SBA to take that past conduct
    into account.
    Finally, Ms. Sims argues that the SBA should not
    have considered her previous business dealings because
    they were not sufficiently similar to the horticulture
    instruction contract. She also argues that the SBA should
    not have considered the fact that she had limited experi-
    ence completing contracts other than for religious ser-
    vices. Ms. Sims is incorrect to suggest that the SBA is
    narrowly constrained with regard to what information it
    10                                   SIMS v. UNITED STATES
    can consider when it makes a competency determination.
    The pertinent regulations require an applicant to “include
    all information and documentation requested by SBA and
    any additional information which the firm believes will
    demonstrate its ability to perform on the proposed con-
    tract”; the SBA is then entitled to “obtain clarification or
    confirmation of information provided by the applicant by
    directly contacting suppliers, financial institutions, and
    other third parties upon whom the applicant’s responsibil-
    ity depends.” 13 C.F.R. § 125.5(d). In addition, the SBA
    has broad discretion to consider factors bearing on the
    contractor’s responsibility that were not cited by the
    contracting officer. 
    Id. at §
    125.5(f). The regulations thus
    give the SBA substantial latitude in seeking information
    that could be relevant to a contractor’s reliability. Ms.
    Sims has made no showing that the agency exceeded its
    authority in this case.
    C
    The Court of Federal Claims correctly concluded that
    the contracting officer had a reasonable basis for the
    determination of non-responsibility and that the SBA had
    a reasonable basis to deny her a COC.
    We have considered Ms. Sims’s remaining arguments
    but find them unpersuasive.
    No costs.
    AFFIRMED
    

Document Info

Docket Number: 2016-1661

Citation Numbers: 655 F. App'x 826

Judges: Prost, Newman, Bryson

Filed Date: 7/8/2016

Precedential Status: Non-Precedential

Modified Date: 10/19/2024