Eco Tour Adventures, Inc. v. Jewell , 174 F. Supp. 3d 319 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ECO TOUR ADVENTURES, INC.,
Plaintiff,
Civil Action No. 14-2178 (BAH)
v.
Judge Beryl A. Howell
SALLY JEWELL, in her official capacity as
Secretary of the Interior, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, Eco Tour Adventures, Inc. (“Eco Tour”), is a Wyoming-based small
business that challenges, for the second time, the award by the National Park Service (“NPS”) of
two concession contracts to provide cross-country ski touring services in Grand Teton National
Park (“the disputed contracts”). In its original challenge, which resulted in a judgment on the
merits by the U.S. Court of Federal Claims (“CFC”), Eco Tour Adventures, LLC v. United States
(“Eco Tour I”), 114 Fed. Cl. 6 (2013), Eco Tour was awarded $36,250 in monetary damages
representing reimbursement of the costs it incurred in submitting its bid for the disputed
contracts, Judgment, Eco Tour I, No. 13-cv-532-LJB (Fed. Cl. April 17, 2014), ECF No. 60.1
After these contracts were subsequently awarded to its competitors, Eco Tour now seeks, under
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq., declaratory and injunctive
relief rescinding the awarded contracts and requiring the NPS to award the contracts instead to
Eco Tour, Compl. at 27–28 (“Prayer for Relief”), ECF No. 1. Pending before the Court is the
defendants’ motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure
1
In 1992, the United States Claims Court was renamed the United States Court of Federal Claims, see
Federal Courts Administration Act of 1992, Pub. L. No. 102–572, § 902, 106 Stat. 4506, 4519, which is referred to
herein as the “Court of Federal Claims” or “CFC.”
1
12(b)(1) and 12(b)(6). Defs.’ Mot. Dismiss Compl. (“Defs.’ Mot.”), ECF No. 12. For the
reasons outlined below, the defendants’ motion is denied.
I. BACKGROUND
The factual background underlying the plaintiff’s present challenge is described in detail
in the decision issued by the CFC resolving Eco Tour’s earlier claim arising out of its
unsuccessful bids to obtain the disputed contracts. Eco Tour I, 114 Fed. Cl. at 12–18.
Consequently, the relevant factual and procedural history underlying the pending motion is
summarized only briefly below.
As an element of its responsibility over the nation’s national parks, the NPS is authorized
to “grant privileges, leases, and permits for the use of land for the accommodation of visitors in
the various parks, monuments, or other reservations.” Id. at 12 (citing Act of Aug. 25, 1916, ch.
408, Pub. L. No. 64–235, § 3, 39 Stat. 535, 535; Circle Line–Statue of Liberty Ferry, Inc. v.
United States, 76 Fed. Cl. 490, 491 (2007)). Pursuant to this authority, in December 2012, the
NPS issued a prospectus soliciting proposals for three ten-year concession contracts to provide
guided cross-country ski touring services in Grand Teton National Park. Id. ¶¶ 20–21. At the
time of this solicitation, these services were being provided by three incumbent concessioners,
each of which the NPS designated as a “preferred offeror,” which designation the plaintiff does
not contest. Eco Tour I, 114 Fed. Cl. at 14. Under applicable NPS regulations, this designation
allowed these companies to exercise a “right of preference” allowing them to match any better
offer from a new bidder so long as they submitted a “responsive proposal . . . which satisfied the
minimum requirements established by the [NPS].” Eco Tour I, 114 Fed. Cl. at 12–13.
Eco Tour has provided guided tours in Grand Teton since 2008, Compl. ¶ 17, and
submitted proposals for two of these concession contracts, Eco Tour I, 114 Fed. Cl. at 16. An
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evaluation panel determined that Eco Tour submitted the best proposal for both contracts, but
found that the incumbent concessioners each submitted proposals “responsive to the minimum
requirements of the [p]rospectus,” and afforded these contractors an opportunity to match certain
terms of Eco Tour’s proposals deemed to be “elements of a better offer.” Id. The incumbents
thereafter timely exercised their right of preference on June 20, 2013, by agreeing to match the
terms of Eco Tour’s proposals and supplement their initial proposals with additional financial
information missing from their original submissions. Id. at 18. On September 4, 2013, the NPS
determined that the disputed contracts should be awarded to the incumbent concessioners. Id.
In the interim, Eco Tour filed its initial bid protest in the CFC on August 1, 2013. Id.
Contending that the incumbent concessioners’ failure to include financial information required
by the prospectus rendered their proposals unresponsive, Eco Tour claimed that the NPS acted
arbitrarily and capriciously, and breached its implied contractual obligation to consider bids
fairly and honestly, by allowing the incumbents to match the terms proposed in the Eco Tour
bids. Id. at 23. In addition to injunctive and declaratory relief, Eco Tour sought reimbursement
for the costs it incurred in preparing its bids for the disputed contracts, as well as attorneys’ fees
and litigation costs. Id. at 19. 2 The court agreed with Eco Tour, and held that the NPS acted
arbitrarily and capriciously in concluding that the financial information excluded from the
incumbent concessioners’ proposals was immaterial to the agency’s selection of the strongest
bids. Id. at 42. Since these proposals were, therefore, not responsive to the requirements of the
prospectus, the CFC further held that the NPS breached its duty to fairly and honestly consider
2
The plaintiff also asserted a claim, pursuant to the Procurement Integrity Act, 41 U.S.C. §§ 2101–2107,
which the CFC dismissed on the merits, Eco Tour I, 114 Fed. Cl. at 35–37, and has not been realleged in the present
action, see generally Compl.
3
the plaintiff’s bids by improperly allowing the incumbents to match the terms proposed by Eco
Tour. Id. at 42–43.
While finding that Eco Tour’s bids were unfairly considered, the CFC concluded that the
equitable and declaratory relief Eco Tour requested could not be awarded since the court lacked
jurisdiction to provide such relief. Id. at 21, 42. In particular, because the disputed concessions
contracts were not “procurement contracts” for purposes of the Tucker Act, 28 U.S.C. § 1491, id.
at 21, the court held that Eco Tour was entitled to recover only the costs the company incurred in
preparing and submitting its bids for the disputed contracts, id. at 42–43. Since the exact amount
of such costs was undetermined, the court directed the parties to confer “to determine how they
wish[ed] to proceed with respect to determining the amount of bid preparation costs Eco Tour is
entitled to receive in light of the court’s resolution of [Eco Tour’s] protest.” Id. at 43.
Unable to come to a resolution regarding the precise amount of preparation costs owed to
the plaintiff, the parties requested, and the court granted, an opportunity to brief the issue. See
Scheduling Order, Eco Tour I, No. 13-cv-532-LJB (Fed. Cl. Feb. 10, 2014), ECF No. 53.
Thereafter, however, the parties jointly agreed and stipulated that Eco Tour should be awarded
$36,250 in preparation costs stemming from its unsuccessful bids for the disputed contracts and
requested entry of judgment to that effect. Joint Stipulation Re: Money Damages Owed Under
December 12, 2013 Opinion & Order & Joint Request For Entry of Judgment, Eco Tour I, No.
13-cv-532-LJB (Fed. Cl. April 15, 2014), ECF No. 58. The court granted this joint request and
entered judgment in favor of Eco Tour, awarding $36,250 in bid preparation costs, on April 17,
2014. Judgment, Eco Tour I, No. 13-cv-532-LJB (Fed. Cl. April 17, 2014). Following entry of
judgment on Eco Tour’s claim, the NPS awarded the disputed contracts to the incumbent
concessioners on July 16, 2014. Compl. ¶ 96.
4
Approximately six months later, the plaintiff filed the instant action on December 22,
2014. Reasserting its claim that the NPS violated applicable statutes and regulations in awarding
the disputed contracts to the incumbent concessioners, Eco Tour contends that the “illegality of
NPS’s conduct has already been determined by the [CFC]” and the NPS was therefore “required
by law to reject [the incumbent concessioners’] proposals . . . [and] award the contracts to Eco
Tour because NPS had evaluated Eco Tour’s proposal as the best among all proposals received.”
Compl. ¶ 1. According to Eco Tour, following resolution of its claim in the CFC, the NPS took
advantage of that court’s “lack of authority to provide full relief” to the plaintiff and “proceeded
to award the two [concession] contracts to its long-time incumbent contractors in violation of the
law.” Id. ¶ 2.
Recognizing its inability to bar the award of the disputed contracts to the incumbent
concessioners in the CFC, the plaintiff brought the present action in this Court, under the APA,
seeking injunctive and declaratory relief. Id. ¶¶ 3, 6. Specifically, Eco Tour seeks “an order . . .
declaring that the two contracts awarded to NPS’s longtime incumbent contractors are illegal and
thus void[, as well as] an injunction requiring the defendants to . . . award the two contracts to
Eco Tour for their full 10-year terms, beginning in the 2015/2016 winter season.” Id. ¶ 4. The
defendants have now moved to dismiss the plaintiff’s Complaint in its entirety for lack of
standing, pursuant to Federal Rule of Civil Procedure 12(b)(1), and, alternatively, for failing to
state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot.
II. LEGAL STANDARD
A. Dismissal for Lack of Standing Under Federal Rule of Civil Procedure
12(b)(1)
In evaluating a motion to dismiss for lack of subject matter jurisdiction, under Federal
Rule of Civil Procedure 12(b)(1), federal courts must be mindful that they “are courts of limited
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jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v.
Minton, 133 S. Ct. 1059, 1064 (2013) (internal quotation marks omitted) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden .
. . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir.
2008), and, therefore, “have an affirmative obligation to consider whether the constitutional and
statutory authority exist for us to hear each dispute,” James Madison Ltd. v. Ludwig, 82 F.3d
1085, 1092 (D.C. Cir. 1996) (internal quotation marks omitted) (quoting Herbert v. Nat’l Acad.
of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case, the
court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); FED. R. CIV. P.
12(h)(3).
Article III of the Constitution restricts the power of federal courts to hear only “Cases”
and “Controversies.” U.S. CONST. art. III, § 2, cl. 1; see Mendoza v. Perez, 754 F.3d 1002, 1010
(D.C. Cir. 2014) (“Article III of the Constitution limits the jurisdiction of federal courts to actual
cases or controversies between proper litigants.” (internal quotation marks omitted) (quoting Fla.
Audubon Soc’y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996))). “The doctrine of standing gives
meaning to these constitutional limits by identify[ing] those disputes which are appropriately
resolved through the judicial process.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341
(2014) (alteration in original) (internal quotation marks omitted) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). Absent standing by the plaintiff, the court lacks subject
matter jurisdiction to hear the claim and dismissal is mandatory. See FED. R. CIV. P. 12(h)(3).
Where the plaintiff’s standing is challenged, the court “must assume that [the plaintiff]
states a valid legal claim.” Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338
F.3d 1024, 1029 (D.C. Cir. 2003). In such cases, the plaintiff bears the burden of “show[ing] a
6
substantial probability that [he or she has] been injured, that the defendant caused [his or her]
injury, and that the court could redress that injury.” Carbon Sequestration Council v. E.P.A., 787
F.3d 1129, 1133 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Sierra Club v.
EPA, 292 F.3d 895, 899 (D.C. Cir. 2002)); see also Khadr v. United States, 529 F.3d 1112, 1115
(D.C. Cir. 2008). “‘Each element of standing must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.’” Arpaio v. Obama, 797 F.3d 11, 19
(D.C. Cir. 2015) cert. denied, 136 S. Ct. 900 (2016) (internal alterations omitted) (quoting Lujan,
504 U.S. at 561). Thus, where the plaintiff’s standing is challenged under Rule 12(b)(1), the
court must “accept the well-pleaded factual allegations as true and draw all reasonable inferences
from those allegations in the plaintiff’s favor.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)); see also Mendoza, 754 F.3d at 1010. In addition, to assure itself of its jurisdiction over
a claim, “the district court may consider materials outside the pleadings.” Jerome Stevens
Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Belhas v. Ya’Alon, 515 F.3d
1279, 1281 (D.C. Cir. 2008) (examining materials outside the pleadings in ruling on a Rule
12(b)(1) motion to dismiss for lack of subject matter jurisdiction).
B. Dismissal for Failure to State a Claim Under Federal Rule of Civil Procedure
12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
“complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (quoting Iqbal, 556 U.S. at
678). A claim is facially plausible when the plaintiff pleads factual content that is more than
“‘merely consistent with’ a defendant’s liability,” but “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)); see also Rudder v. Williams, 666
F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to
withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or
“formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment]
to relief,” Twombly, 550 U.S. at 555, and “nudge[] [the] claims across the line from conceivable
to plausible,” id. at 570. Thus, “a complaint [does not] suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
557).
In considering a motion to dismiss for failure to plead a claim on which relief can be
granted, the court must consider the complaint in its entirety, accepting all factual allegations in
the complaint as true, even if doubtful in fact. Twombly at 555; Sissel v. U.S. Dep’t of Health &
Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014), cert. denied sub nom. Sissel v. Dep’t of Health &
Human Servs., 136 S. Ct. 925 (2016) (in considering a Rule 12(b)(6) motion, the “court assumes
the truth of all well-pleaded factual allegations in the complaint and construes reasonable
inferences from those allegations in the plaintiff’s favor, but is not required to accept the
plaintiff’s legal conclusions as correct” (internal citations omitted)). In addition, courts may
“ordinarily examine” other sources “when ruling on Rule 12(b)(6) motions to dismiss, in
particular, documents incorporated the complaint by reference, and matters of which a court may
take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see
also English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013).
III. DISCUSSION
The defendants assert two alternative grounds for dismissing the plaintiff’s claims. First,
the defendants contend that, in agreeing to accept reimbursement of its bid preparation costs in
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connection with the judgment it received in the CFC, Eco Tour now lacks standing to challenge
the award of the disputed contracts to the incumbent concessioners. Defs.’ Mem. Supp. Mot.
Dismiss (“Defs.’ Mem.”) at 1–2, EFC No. 12. Alternatively, the defendants contend that, even if
Eco Tour has standing to pursue its claim for injunctive and declaratory relief, this claim is
precluded under the doctrine of election of remedies because it has already accepted
reimbursement for bid preparation costs in connection with its earlier claim against the
defendants. Id. at 2. Thus, in large measure, the present motion centers on the degree to which
Eco Tour’s decision, in connection with the judgment it received in the CFC, to accept
reimbursement of the costs it incurred in preparing its bids for the disputed contracts precludes
this Court from granting the injunctive and declaratory relief the plaintiff now seeks.
Following a summary of the relevant statutory and legal framework governing the
resolution of challenges to federal contracting actions, the defendants’ arguments that Eco Tour
lacks standing to pursue its present claim, and is further precluded from seeking equitable relief
after electing to receive a damages award, are each considered seriatim.
A. Statutory and Legal Framework
“The history of judicial review of government contracting procurement decisions is both
long and complicated.” Emery Worldwide Airlines, Inc. v. United States (“Emery”), 264 F.3d
1071, 1078 (Fed. Cir. 2001). 3 Historically, disappointed bidders seeking to challenge a federal
contracting action could bring an action in either the CFC or a federal district court, with the
timing of a particular challenge largely dictating the selected venue and the relief available to
successful plaintiffs. Following passage of the Administrative Dispute Resolution Act of 1996
3
The summary that follows draws largely on the Federal Circuit’s more comprehensive overview of
historical developments in the review of federal contracting decisions in Emery, 264 F.3d at 1078–80. See also
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1331–32 (Fed. Cir. 2001).
9
(“ADRA”), Pub. L. No. 104-320, 110 Stat. 3870, however, this Court’s continued jurisdiction
over such challenges has been questioned, as discussed in more detail below.
The CFC has long reviewed bid challenges as an element of its authority under the
Tucker Act, which provides the CFC with jurisdiction over “any claim against the United States
founded . . . upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a).
This longstanding jurisdiction to review bid challenges is “premised on the theory that when the
government invites bids or solicits proposals from the public, it enters into an ‘implied-in-fact’
contract to consider those bids or proposals fairly.” Eco Tour I, 114 Fed. Cl. at 21 (collecting
cases); see also Emery, 264 F.3d at 1078 (explaining that this limited jurisdiction arose after the
Supreme Court initially determined, in Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), that
disappointed potential contractors lacked standing to challenge federal contracting decisions in
federal courts). Thus, plaintiffs alleging that their bids were not fairly considered by a
contracting agency could, under § 1491(a), pursue a breach-of-contract claim against the agency.
Eco Tour I, 114 Fed. Cl. at 21.
Though disappointed bidders were thus able to obtain review of federal contracting
decisions, success before the CFC generally entitled a prevailing plaintiff to only limited relief.
In particular, “[e]xcept in narrow statutorily defined circumstances, the [CFC] lacks jurisdiction
to award injunctive or declaratory relief.” Eco Tour I, 114 Fed. Cl. at 40. Thus, historically,
review of contracting decisions in the CFC “was narrow and an aggrieved party was typically
limited to monetary relief.” Emery, 264 F.3d at 1078 (citing Impresa Construzioni Geom.
Domenico Garufi v. United States (“Impresa”), 238 F.3d 1324, 1331 (Fed. Cir. 2001). In 1982,
however, Congress expanded the authority of the CFC to provide declaratory and injunctive
relief “on any contract claim brought before the contract [was] awarded.” See Federal Courts
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Improvement Act of 1982 (“FCIA”), Pub. L. No. 970-164, § 133(a)(3), 96 Stat. 25, 39.
Nonetheless, because this expanded relief under § 1491(a) was available only in pre-award
challenges, the CFC lacked authority to grant equitable or declaratory relief after a contract was
awarded. United States v. John C. Grimberg Co., 702 F.2d 1362, 1372 (Fed. Cir. 1983).
Apart from obtaining relief in the CFC, however, disappointed bidders could for decades
pursue a claim in federal district court under the judicial review provisions of the APA. 5 U.S.C.
§ 702 (providing that a “person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof”). In this Circuit, this authority derived from Scanwell Laboratories, Inc.
v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), in which the D.C. Circuit held that unsuccessful
bidders maintained standing under the APA to challenge allegedly invalid government
contracting decisions. Under this “Scanwell jurisdiction,” disappointed bidders were permitted
to “challenge a government contract award under the [APA,] which empowers courts to set aside
any agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Iceland S.S. Co. v. U.S. Dep’t of Army, 201 F.3d 451, 453 (D.C. Cir.
2000).
Like a plaintiff bringing a claim in the CFC, however, plaintiffs pursuing an APA claim
in a federal district court to challenge a federal contracting action could obtain only narrow
relief. In particular, in this jurisdiction, review under the APA was available only for post-award
challenges, Labat-Anderson, Inc. v. United States, 346 F. Supp. 2d 145, 149–50 (D.D.C. 2004)
(noting disagreement among the circuits regarding whether APA review was available for pre-
award challenges); see also Am. Fed’n of Gov’t Employees, AFL-CIO v. United States, 46 Fed.
11
Cl. 586, 593 (2000), with successful plaintiffs eligible for only injunctive and declaratory
remedies, see 5 U.S.C. § 702.
Recognizing various difficulties presented by this parallel, though largely distinct,
jurisdiction, Congress passed the ADRA to amend the Tucker Act and “give the Court of Federal
Claims exclusive jurisdiction over the full range of procurement protest cases previously subject
to review in the federal district courts and the Court of Federal Claims.” Res. Conservation Grp.,
LLC v. United States, 597 F.3d 1238, 1246 (Fed. Cir. 2010) (emphasis omitted) (quoting H.R.
Rep. No. 104-841, at 10 (1996) (Conf. Rep.)). To do so, Congress initially provided concurrent
jurisdiction over such challenges to both the CFC and the federal district courts. Specifically,
Congress added a new subsection (b) to the Tucker Act, which reads in relevant part:
Both the Unite[d] States Court of Federal Claims and the district courts of the
United States shall have jurisdiction to render judgment on an action by an
interested party objecting to a solicitation by a Federal agency for bids or proposals
for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a
proposed procurement.
28 U.S.C. § 1491(b)(1). In such cases, Congress authorized courts to “award any relief that the
court considers proper, including declaratory and injunctive relief except that any monetary relief
shall be limited to bid preparation and proposal costs.” 28 U.S.C. § 1491(b)(2). After five years,
however, the statute’s sunset provision terminated district courts’ jurisdiction over such actions
on January 1, 2001. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320,
§ 12(d), 110 Stat. 3870, 3874; see also Pub. Warehousing Co. K.S.C. v. Def. Supply Ctr.
Philadelphia, 489 F. Supp. 2d 30, 37 (D.D.C. 2007) (explaining that Congress declined to extend
this sunset date).
While the ADRA thus made clear that the CFC (and, at least temporarily, federal district
courts) may grant all manner of relief for bid challenges arising out of government procurement
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actions, the statute effectively restricted the authority of the CFC in non-procurement actions
(e.g., concession actions) by repealing the authority to award equitable relief previously provided
in 1982 under the FCIA. Eco Tour I, 114 Fed. Cl. at 41. Thus, the CFC’s traditional “implied-
in-fact jurisdiction over nonprocurement solicitations survived” enactment of the ADRA, Res.
Conservation Grp., 597 F.3d at 1246, but limited any award available to monetary relief in such
cases, Eco Tour I, 114 Fed. Cl. at 41. As a result, following passage of the ADRA, the CFC
maintains authority to hear challenges to both federal procurement decisions as well as non-
procurement solicitations. Res. Conservation Grp., 597 F.3d at 1246. For successful challenges
to procurement decisions, that court may award any proper remedy, including declaratory and
injunctive relief as well as reimbursement of bid preparation and proposal costs. 28 U.S.C. §
1491(b)(3). For non-procurement claims, such as the challenge to the concession contracting
process at issue here, the CFC may award only monetary damages. Eco Tour I, 114 Fed. Cl. at
41–42.
While the district courts’ Scanwell jurisdiction to review federal contracting decisions
under the APA was widely accepted prior to adoption of the ADRA, see Nat’l Fed’n of Fed.
Employees v. Cheney, 883 F.2d 1038, 1052 & n.29 (D.C. Cir. 1989) (collecting cases from eight
circuits), courts are divided as to whether district courts retain any of this jurisdiction following
the sunset date of the ADRA provision expressly authorizing district court jurisdiction over such
claims. 4 The D.C. Circuit had not had occasion to consider directly the extent, if any, to which
district courts currently have jurisdiction under the APA to review bid protests to either
procurement or nonprocurement government contracts. See Iceland S.S. Co., 201 F.3d at 451
4
Portions of the legislative history accompanying enactment of the ADRA addressed the viability of
Scanwell jurisdiction following the sunset of district court jurisdiction under § 1491(b) and suggest that members of
Congress disagreed as to the effect of the sunset provision. See Peter Verchinski, Note, Are District Courts Still A
Viable Forum for Bid Protests?, 32 Pub. Cont. L.J. 393, 400–403 (2003).
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(considering an APA challenge under Scanwell prior to the sunset date set out in the ADRA).
Judges on this Court have concluded that the ADRA broadly precludes district court jurisdiction
over at least some bid protests under the APA. See, e.g., Pub. Warehousing Co., 489 F. Supp. 2d
at 37 & n.6 (“Congress intended to eliminate the Scanwell jurisdiction of the district courts and
channel all procurement protests into the Court of Federal Claims when it enacted the ADRA.”);
Labat-Anderson, Inc., 346 F. Supp. 2d at 153 (“In truth, the only proposition that is clear from
the legislative history of the statute is that the sponsors intended the ADRA to overrule the D.C.
Circuit’s decision in Scanwell.”); Novell, Inc. v. United States, 109 F. Supp. 2d 22, 24 (D.D.C.
2000) (“[T]here no longer is such an independent, APA-based jurisdiction for the district courts
in government bid protest cases; rather, Congress effectively subsumed APA jurisdiction of the
district courts into the more specific jurisdictional language of ADRA.”); see also Vero Tech.
Support, Inc. v. U.S. Dep’t of Def., 437 F. App’x 766, 768 (11th Cir. 2011) (“[I]t is clear that
Congress’s intent in enacting the ADRA with the sunset provision was to vest a single judicial
tribunal with exclusive jurisdiction to review government contract protest actions. Accordingly,
the [CFC] now enjoys exclusive jurisdiction over Tucker Act claims.” (internal quotations and
citation omitted)).
Nonetheless, while acknowledging that the post-sunset effect of the ADRA was to repeal
the express grant of district court jurisdiction over procurement actions, the Federal Circuit has
indicated that the ADRA does not affect the district court’s jurisdiction in the non-procurement
context. Res. Conservation Grp., LLC, 597 F.3d at 1246. Thus, in addition to pursuing an action
for damages in the CFC, the Federal Circuit has observed that “a disappointed bidder in a
nonprocurement case could also theoretically bring its bid protest challenge in a federal district
court, since the ADRA only repealed jurisdiction over procurement cases.” Id. at 1246 n.12; see
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also Compl. ¶ 7 (arguing that “the repeal of district court jurisdiction in the [ADRA] over any
action related to a procurement contract award determination did not eliminate the district courts’
longstanding jurisdiction over government actions related to the award of contracts which do not
involve procurements” (citing Res. Conservation Grp., LLC, 597 F.3d at 1245)).
In this case, the defendants do not contest the CFC’s determination that the disputed
contracts do not qualify as procurements within the meaning of the ADRA, nor do the defendants
suggest that this Court lacks jurisdiction under the APA over Eco Tour’s present non-
procurement challenge. See Defs.’ Mem at 11 n.3 (noting, without contesting, Eco Tour’s
assertion “that this Court has jurisdiction under the APA to hear claims concerning the award of
contracts that do not involve procurements”); see generally Defs.’ Reply Supp. Defs.’ Mot.
Dismiss (“Defs.’ Reply”), ECF No. 16. Instead, the defendants contend that, having chosen to
pursue its claim first in the CFC, which granted reimbursement of its bid preparation costs under
the Tucker Act, Eco Tour is now precluded from renewing its claim in this Court under the APA.
B. The Plaintiff Has Standing to Pursue its Request for Declaratory and
Injunctive Relief
The defendants first argue that Eco Tour, having accepted judgment on its claim for
reimbursement of the costs incurred in preparing its unsuccessful bids for the disputed contracts,
now lacks standing to pursue its present claim for injunctive and declaratory relief under the
APA in this Court. Defs.’ Mem. at 8–10. According the defendants, Eco Tour has already been
reimbursed for its bid preparation costs and, therefore, “its injury has been redressed and it lacks
standing to bring a post-award bid protest claim in the District Court based on the same
conduct.” Defs.’ Reply at 4.
As the D.C. Circuit has explained, an APA challenge to a federal contracting decision
rests not merely on the lost economic gain the disappointed bidder would have received had it
15
been awarded the contract, but stems instead from an “injury to [the bidder’s] right to a legally
valid procurement process.” Nat’l Mar. Union of Am., AFL-CIO v. Commander, Military Sealift
Command, 824 F.2d 1228, 1237 (D.C. Cir. 1987) (citing authorities); see also id. (“[R]eference
to the bidder’s distinctive legal right [to fair consideration] is essential to article III standing in a
procurement challenge.”). Like the implied-in-fact contract giving rise to a damages action
under the Tucker Act, this right to fair consideration “is implicitly bestowed on all bidders by the
mandatory language of the federal procurement statutes, and by the contractual invitation to bid
embodied in the solicitation.” Id. (internal citations omitted). Thus, under Article III, “‘injury to
a bidder’s right to a fair procurement is obviously an injury both traceable to the alleged
illegality in a procurement and redressable by any remedy that eliminates the alleged illegality.’”
LTMC/Dragonfly, Inc. v. Metro. Washington Airports Auth., 699 F. Supp. 2d 281, 291 (D.D.C.
2010) (quoting Nat’l Mar. Union of Am., 824 F.2d 1237–1238).
At the same time, however, not every unsuccessful bidder maintains standing to
challenge the final contracting decision. In particular, in order to challenge an individual federal
contracting decision, the plaintiff must demonstrate that its bid application “was within the zone
of active consideration” by the defendant agency. Free Air Corp. v. FCC, 130 F.3d 447, 450
(D.C. Cir. 1997) (“In other words, sufficiently viable runners-up in a procurement process have
standing to allege that an illegality in the process caused the contract to go to someone else and
not to them.”). This means that a contractor unable to demonstrate that, but-for the alleged
illegality in the contracting decision, it would have been awarded the disputed contract, may not
bring a challenge in this Court. See, e.g., Cheeks of N. Am., Inc. v. Fort Myer Const. Corp., 807
F. Supp. 2d 77, 94 (D.D.C. 2011) aff’d, No. 11-7117, 2012 WL 3068449 (D.C. Cir. July 26,
2012) (finding, in related context, that the plaintiff lacked standing to challenge a contracting
16
decision allegedly influenced by illegal bid-rigging where the plaintiff’s rejected bid was deemed
non-responsive). Thus, to determine whether Eco Tour has standing to pursue its present claim
for injunctive and declaratory relief, the Court must consider whether, having accepted
reimbursement of bid preparation costs in its original action before the CFC, Eco Tours may
continue to stand as a “viable runner[]-up” in the challenged NPS solicitation process. Free Air
Corp., 130 F.3d at 450.
According to the defendants, Eco Tour’s decision to receive reimbursement of its bid
preparation costs “placed it in the position as if it never bid in the first instance,” Defs.’ Mem. at
8, and, consequently, Eco Tour cannot demonstrate that it has suffered an injury sufficient to
confer standing to pursue its present claim, id. at 9–10. As noted, the defendants posit that by
granting the Eco Tour’s request for monetary damages, the CFC fairly and fully redressed any
injury Eco Tour suffered in connection with the award of the disputed contracts. Id. at 10. The
defendants therefore contend that Eco Tours now lacks the requisite injury-in-fact to assert
standing to pursue its claim in this Court.
In response, Eco Tour seeks to distinguish its “pre-award” claim for monetary damages
from its present “post-award” claim for equitable and declaratory relief. Pl.’s Opp’n Defs.’ Mot.
Dismiss (“Pl.’s Opp’n”) at 6, 12, 16–17, ECF No. 14. 5 Specifically, Eco Tours contends that
recovery of its bid preparation costs in its initial action before the CFC, based on that court’s
implied-in-fact jurisdiction, is distinct from its present request, under the APA, to prevent the
NPS from awarding the disputed contracts to its competitors and require the contracts to be
awarded to Eco Tours. Id. at 12. Relying on this distinction, Eco Tours contends that its
5
The defendants also refer to Eco Tour’s initial claim before the CFC as a “pre-award” challenge, see, e.g.,
Defs.’ Mem. at 8, and clarify that “an award decision had been made at the time of Eco Tour’s lawsuit but had not
been finalized,” Defs.’ Reply Supp. Defs.’ Mot. Dismiss at 4 n.1, ECF No. 16.
17
stipulation and request for judgment on its claim for reimbursement of bid preparation costs did
not include a waiver of future claims for injunctive relief, which form of additional relief was
reserved during the course of negotiations with the defendants. Id. at 13–17.
As an initial matter, the defendants’ suggestion that, “[h]aving elected and received
reimbursement for those costs, Eco Tour is now essentially in the same position of a non-
bidder,” Defs.’ Mem. at 8, misconstrues the nature of the relief Eco Tour received in its original
action before the CFC. In fact, reimbursement of bid preparation costs for a plaintiff that
prevails on an implied-contract theory under § 1491(a) is not intended to place the disappointed
bidder in the position it would have been in had it not submitted a bid in the first instance. AT&T
Techs., Inc. v. United States, 18 Cl. Ct. 315, 320 (1989) (explaining that placing the plaintiff in
the position of a non-bidder is “not the standard of recovery” in awarding bid preparation costs).
Instead, “bid preparation and proposal costs are a subset, not the entirety, of the costs a
contractor may choose to invest to compete for the award of a government contract, [which may
include] costs incurred to prepare for contract performance [in addition to] costs incurred to
prepare a bid for submission.” Innovation Dev. Enterprises of Am., Inc. v. United States, 114
Fed. Cl. 213, 219–20 (2014) aff’d, 600 F. App’x 743 (Fed. Cir. 2015). Properly understood,
then, Eco Tour’s recovery of bid preparation costs under the final judgment of the CFC did not
have the effect of placing Eco Tour in the position of a “non-bidder.” Instead, reimbursement of
these costs are intended to reflect only a portion of the potential costs Eco Tour incurred in
submitting its bid for the contested contracts.
Beyond this initial confusion, however, the defendants offer little support for its
suggestion that Eco Tour has suffered no injury-in-fact conferring standing to pursue its instant
APA claim. The defendants concede that Eco Tour submitted bids for the disputed contracts and
18
that these bids were determined by the agency to be the best proposals submitted for each
contract. Defs.’ Mem. at 3. Further, the defendants acknowledge that the contracts were
awarded to Eco Tour’s competitors only after the NPS allowed the incumbent concessioners to
match the terms of Eco Tour’s proposals and construed the incumbents’ proposals as responsive,
which the plaintiff alleges was in violation of applicable statutes and regulations. Id. Thus, the
defendants offer nothing to suggest that Eco Tour’s proposals were outside the NPS’s “zone of
active consideration,” Free Air Corp., 130 F.3d at 450, or that the plaintiff fails to qualify as a
“viable runner[]-up” for the disputed contracts, id.
Nonetheless, even assuming the plaintiff has suffered an injury giving rise to standing,
the defendants suggest that the plaintiff lacks standing because, should it prevail on the merits of
its claim, the Court is powerless to grant relief that would redress the plaintiff’s asserted injury.
Defs.’ Reply at 5. Thus, the defendants argue that, because the agency ultimately maintains
discretion over whether or not to enter into the disputed contracts at all, the Court “cannot
compel” the NPS to award these contracts to the plaintiff. Id. To a degree, the defendants are
correct that dissolution and reformation of government contracts is generally outside the purview
of the federal courts. Indeed, the Scanwell Court itself noted the “undisputable” proposition
“that the ultimate grant of a contract must be left to the discretion of a government agency[, and
therefore] the courts will not make contracts for the parties.” 424 F.2d at 869; see also id. at 864
(“[T]here is no right in [the plaintiff-bidder] to have the contract awarded to it in the event the
district court finds illegality in the award of the contract . . . .”).
More recently, however, the D.C. Circuit has held that district courts may, in certain
limited situations, issue an order compelling an agency to award a contract to an aggrieved
bidder. In particular, the Circuit has clarified that “the main objective of our effort at framing a
19
remedy [in a case arising under Scanwell] is to assure that the government obtains the most
advantageous contracts by complying with the procedures which Congress and applicable
regulations have provided.” Delta Data Sys. Corp. v. Webster (“Delta Data”), 744 F.2d 197, 206
(D.C. Cir. 1984). To do so, “[p]utting the disappointed bidder in the economic position it would
have occupied but for the error is normally the best approach” to resolving such a dispute. Id. at
206–07. Where doing so “is impracticable, however, or can only be achieved at a cost to the
government that will greatly exceed the benefits derived from requiring observance of the proper
procedures in the particular case, [the court] must seek a more reasonable alternative.” Id. at
207.
Under this standard, courts will not make contracts for agencies, “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, 744 F.2d at 204; see also LeBoeuf, Lamb,
Greene & MacRae, L.L.P. v. Abraham (“LeBoeuf”), 347 F.3d 315, 320 (D.C. Cir. 2003) (same,
quoting Delta Data). By contrast, “‘[w]here there is nothing in the record to guarantee that the
plaintiff would have received the contracts [absent an alleged breach of applicable contracting
procedures], there are no grounds to vacate the awards of [the] contracts to other contractors and
grant them to the plaintiff.’” Delta Data, 744 F.2d at 204 (internal alterations omitted) (quoting
Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953, 969 (D.C. Cir. 1980)).
Consequently, a “disappointed bidder seeking to overturn the agency’s decision must show either
that the agency’s decision lacked a rational basis or that the ‘procurement procedure involved a
clear and prejudicial violation of applicable statutes or regulations.’” LeBoeuf, 347 F.3d at 320
(quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)).
20
While the Court need not resolve the issue entirely at this early stage, the fact that the
NPS awarded the disputed contracts to the incumbent concessioners only after the resolution of
the earlier proceedings before the CFC suggests that, but for the alleged illegality in the
consideration of these contractors’ proposals, the plaintiff would have been awarded each of
these contracts. Accord Eco Tour I, 114 Fed. Cl. at 34 (explaining that, “in accordance with the
[NPS’s] regulations, there is a substantial chance that Eco Tour would have been awarded the
disputed contracts if not for the errors alleged in the amended complaint”); see also LeBoeuf, 347
F.3d at 325 (remanding the disappointed contractors’ request for an injunction awarding the
balance of a ten-year contract for legal services where evidence in the record indicated that the
agency had a continuing need for such services). As such, the plaintiff has met its burden of
alleging a legally cognizable harm caused by the defendants’ alleged actions that, should the
Court find in the plaintiff’s favor, may be redressed by an order providing the declaratory and
injunctive relief the plaintiff seeks.
Accordingly, the defendants’ request to dismiss the present action for lack of standing is
denied.
C. Receipt of Bid Preparation Costs Before the Court of Federal Claims Does
Not Preclude Equitable and Declaratory Relief in This Court
Since Eco Tour has established standing to pursue its present claim against the
defendants, the Court next must consider whether the equitable and declaratory relief the plaintiff
seeks is otherwise precluded by the judgment the plaintiff has already received from the CFC.
According to the defendants, having voluntarily elected to receive reimbursement of its bid
preparation costs in resolving its earlier claim, Eco Tour may not now seek additional remedies
“for the same legal injury.” Defs.’ Mem. at 10.
21
Specifically, the defendants assert that the plaintiff’s claim is barred under the so-called
“doctrine of election of remedies.” Id. Often intertwined with notions of claim preclusion, “[a]
confusing congeries of doctrines have been lumped together under the election-of-remedies
label.” 18B CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 4476
(2d ed. 1995). “If there is any common thread at all to lace these doctrines together, it is that an
election will be found only if a party has chosen to pursue one position that is inconsistent with
another possible position, with full knowledge of the circumstances that make both theories
available and inconsistent.” Id.; see also 25 AM. JUR. 2d Election of Remedies § 3 (“The purpose
of the doctrine of election of remedies is not to prevent recourse to any remedy, or to alternative
remedies, but to prevent double recoveries or redress for a single wrong.”). The election-of-
remedies doctrine “is ‘a harsh doctrine not favored in jurisprudence and not to be unduly
extended.’” Quinn v. DiGiulian, 739 F.2d 637, 64 (D.C. Cir. 1984) (quoting Cook Plumbing &
Heating, Inc. v. Frank Briscoe Co., 445 F.2d 1177, 1179 (10th Cir. 1971)). As the D.C. Circuit
has explained, where appropriate, the doctrine embodies a principle of estoppel:
One who, with full knowledge of facts upon which inconsistent claims for relief
may be predicated, requires his adversary to defend against a version of the facts
marshalled in support of one theory, cannot in good conscience subsequently
pursue a claim resting upon repugnant factual or legal bases. If, on the other hand,
two causes of action that are not inconsistent arise from a single course of events,
the doctrine of election of remedies does not require that a plaintiff, by choosing to
assert one cause of action, be precluded from asserting the other.
Id. (quoting 1B JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 0.405[7] (2d ed.
1983)). Consequently, absent apparent inconsistency between two successive claims, “election
of remedies doctrine has no application.” Id.
The D.C. Circuit’s holding in Quinn v. DiGiulian, is instructive. There, the plaintiff sued
his union and two of its officers, under the Labor Management Reporting and Disclosure Act
22
(LMRDA), 29 U.S.C. § 411, alleging that he was targeted for harassment and termination after
he declared his intention to run against an incumbent for a management position in the union.
Quinn, 739 F.2d at 638–39. Before bringing his claim in the district court, the plaintiff “litigated
and won essentially the same claim before the [National Labor Relations Board (“NLRB”)], and
had been awarded backpay, a cease-and-desist order and posting of notices.” Id. at 642. After a
jury verdict in favor of the plaintiff, the district court awarded him more than $40,000 in
additional compensatory and punitive damages. Id. at 641. Challenging this later damages
award, the defendants argued that “assuming that [the plaintiff] could have chosen originally to
bring his claim to either the district court or the [NLRB], he could not do both, and is now barred
by the ‘election of remedies’ doctrine.” Id. at 644.
The D.C. Circuit disagreed. While acknowledging that “both the NLRB’s backpay order
and the jury’s award of damages . . . were meant to remedy the consequences of the union’s
[mis]conduct,” the Court explained that “the defendants’ argument that [the plaintiff] should not
be permitted to recover twice for the same course of conduct misses the mark.” Id. In particular,
“even though [the plaintiff’s] successful unfair labor practice charge was based on approximately
the same factual pattern as [his claim for damages], both the rights vindicated and the remedies
available under . . . the LMRDA . . . are distinct from those in an unfair labor practice action
under the NLRA.” Id. at 645. Moreover, the D.C. Circuit noted, the trial court mitigated any
remaining risk of a windfall to the plaintiff by instructing the jury to “subtract from its
calculation of damages the amount of the [plaintiff’s] backpay award, thus alleviating any
possibility of double recovery for those lost wages.” Id. at 644; Cf. Artis v. Norfolk & W. Ry.
Co., 204 F.3d 141, 145–46 (4th Cir. 2000) (precluding recovery, under election-of-remedies
23
principles, where the plaintiff’s damages award could not be reduced to take account of his
recovery under an earlier settlement agreement, leading to a double-recovery).
Here, the defendants argue that, having consented to reimbursement of its bid preparation
costs before the CFC, “it would be inconsistent (and result in a windfall to Eco Tour) for Eco
Tour to receive . . . the contracts themselves.” Defs.’ Reply at 9. In support, the defendants
contends that the plaintiff’s claim under the APA arises out of the same facts and legal harm that
underlay the plaintiff’s earlier Tucker Act claim. Id. at 4 (“NPS breached the implied-in-fact
contract to treat bids fairly just once. The ultimate award of the contracts to the incumbent
vendors was not a distinct breach but the consequence of NPS’s treatment of the incumbents’
proposal[s] as responsive in the first instance.”) Thus, they compare the plaintiff’s present
request for injunctive and declaratory relief, after having already accepted monetary damages, to
“a claim for both specific performance of a contract and damages for breach.” Id. at 10.
The defendants’ argument on this score holds logical appeal. Indeed, having voluntarily
accepted reimbursement of its bid preparation costs, even after the CFC made clear that it lacked
authority to grant further injunctive or declaratory relief, Eco Tour would appear to have
knowingly accepted monetary damages from the defendants as fair compensation for the harm
associated with its unsuccessful proposals for the disputed contracts. Though Eco Tour contends
that it expressly reserved its right to pursue future equitable relief during negotiations with the
defendants leading to the joint stipulation underlying the final judgment resolving its claim
before the CFC, Pl.’s Opp’n at 13–17, no such reservation was included in the CFC’s judgment,
see Judgment, Eco Tour I, and the plaintiff certainly cannot unilaterally “reserve” a right that it,
by its own actions, extinguishes. At the same time, however, the defendants concede that “there
are circumstances where the same conduct can give rise to two remedies that are complementary
24
and not inconsistent.” Defs.’ Reply at 10 (citing Quinn, 739 F.2d at 644–45; Alexander v.
Gardner-Denver Co., 415 U.S. 36, 50–51 (1973)). Those are the circumstances present here.
Indeed, allowing Eco Tour’s present claim to proceed does not present any meaningful
inequity or necessarily pose a risk that Eco Tour will receive a windfall at the defendants’
expense for at least two reasons. First, during the pendency of the proceedings before the CFC,
the NPS had not yet finalized its decision to award the disputed contracts to the incumbent
concessioners. Compl. ¶ 96 (alleging that the NPS awarded the contracts on July 16, 2014, two
months after the CFC entered its final judgment resolving the plaintiff’s first action). Thus,
according to the plaintiff, because the agency had not yet chosen to move forward with awarding
the contracts to the incumbents, Eco Tour was unable to obtain the injunction it now seeks
requiring the contracts to be awarded instead to it. Pl.’s Opp’n at 23–24 & n.13. Moreover, even
assuming such relief was available at the time Eco Tour initially filed suit in the CFC, the
Supreme Court has noted, in a related context, that parties bringing claims against the federal
government may separately seek monetary and injunctive relief in sequential actions before the
CFC and the district courts. See United States v. Tohono O’Odham Nation, 563 U.S. 307, 318
(2011) (precluding CFC jurisdiction over the plaintiff’s request for money damages while a suit
for equitable relief arising out of the same facts was pending in the district court, but noting that,
“[s]hould the [plaintiff] choose to dismiss the latter action, or upon that action’s completion, the
[plaintiff] is free to file suit again in the CFC [absent any other jurisdictional bar]”). 6
6
In contrast to this Supreme Court precedent, the defendants rely on a dated decision by the CFC for the
proposition that a plaintiff “cannot ‘recover damages [in the district court], and then come to the [CFC] to recover
what the district court could not give her.” Defs.’ Mem. at 11 n.3 (citing Clark v. United States, 19 Cl. Ct. 220, 223
(1990)). To the extent that this non-binding authority is not abrogated by the Supreme Court’s more recent
consideration of the issue in Tohono O’Odham Nation, 563 U.S. at 318, the CFC’s holding arose in the separate
context of a negligence action giving rise to a potential claim in both the district court and the CFC, and turned on
the court’s interpretation of Congress’s intent in adopting the Federal Tort Claims Act, Clark, 19 Cl. Ct. at 223,
rather than, as here, under the APA.
25
Second, should the injunctive relief sought in this case raise the possibility of a windfall,
the plaintiff has conceded that, “to the extent deemed necessary” any contracts awarded under
this action “could address any prior partial relief received by Eco Tour pursuant to the Court of
Federal Claims[] lawsuit.” Pl.’s Opp’n at 25 & n.14. This proposed solution avoids the
possibility that Eco Tour, should it prevail on the merits of its claim for injunctive and
declaratory relief, will be compensated twice for the costs it incurred in preparing its responsive
bids. Cf. Bannum, Inc. v. United States, 56 Fed. Cl. 453, 462 (2003) (dismissing, as unripe, a
bidder’s request for reimbursement of bid preparation costs pending the resolution of a still-
pending solicitation on the ground that the plaintiff, if ultimately awarded the contract, would not
be entitled to an additional recovery of its bid preparation costs).
With these concessions in mind, the Court discerns no substantial inconsistency between
the monetary award the plaintiff voluntarily accepted in connection with its earlier action before
the CFC and the plaintiff’s present request for injunctive and declaratory relief in this Court. As
such, the defendants’ motion to dismiss the Complaint on election-of-remedies grounds is
denied.
* * *
The present action, coming as it does on the heels of the plaintiff’s earlier successful
claim before the CFC, presents an unusual situation. As described above, supra Part III.A., the
ADRA has largely funneled bid protests into a single forum, with the CFC authorized to grant
broad relief to disappointed bidders demonstrating arbitrary and capricious action in most federal
contracting decisions. Under current Federal Circuit precedent, however, prospective
contractors, like Eco Tour, whose bids for concessions contracts are unfairly considered by
federal agencies are entitled, in the CFC, to no more than the costs they incurred in submitting
26
their bids. At the same time, under the APA, such prospective contractors may sue, in district
court, for only injunctive and declaratory relief and are precluded from seeking monetary
damages. Despite the fact that neither judicial forum may offer Eco Tour the full relief it seeks,
the defendants press that contractors, like Eco Tour, who accept reimbursement of their bid
proposal costs before the CFC may not, thereafter, obtain an injunction preventing a federal
agency from awarding a concession contract in contravention of governing law and regulations.
According to the defendants, an alternative rule would subject federal agencies to repetitive
challenges that raise the specter of redundant relief for prevailing plaintiffs.
The Court concurs with the defendants that important interests are served by requiring
parties to bring all of their claims in a single proceeding. Generally speaking, avoiding
successive litigation arising out of the same course of conduct provides certainty and finality to
parties while conserving limited judicial and litigants’ resources. Nonetheless, under the unusual
circumstances presented here, these general concerns must be weighed against the important
public interest in ensuring “that the government obtains the most advantageous contracts by
complying with the procedures which Congress and applicable regulations have provided.”
Delta Data Sys. Corp., 744 F.2d at 206. The defendants’ proposal to preclude review of
potentially arbitrary and unfair contracting decisions simply because an aggrieved bidder has
accepted a portion of the relief to which it may be entitled is squarely at odds with this central
aim, and potentially undermines the public’s interest in fair government contracting.
Thus, while the defendants may yet demonstrate that the plaintiff is not entitled to relief
under the APA, the Court is not persuaded that the plaintiff is barred entirely from seeking
complete relief for the defendants’ allegedly arbitrary and capricious actions, and the defendants’
request to dismiss the present action is therefore denied.
27
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss the Complaint, pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), is denied. The parties shall, in
accordance with the Court’s Standing Order ¶ 3, ECF No. 3, file jointly a Meet and Confer
Report, by April 13, 2016, with a proposed schedule to govern further proceedings in this case.
An Order consistent with this Memorandum Opinion shall be filed contemporaneously.
Digitally signed by Hon. Beryl A.
Howell, Chief Judge
DN: cn=Hon. Beryl A. Howell, Chief
Date: March 30, 2016 Judge, o, ou=U.S. District Court for
the District of Columbia,
email=Howell_Chambers@dcd.usco
urts.gov, c=US
Date: 2016.03.30 16:58:06 -04'00'
__________________________
BERYL A. HOWELL
Chief Judge
28