Eco Tour Adventures, Inc. v. Jewell , 249 F. Supp. 3d 360 ( 2017 )

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
RYAN ZINKE, in his official capacity as
Secretary of the Interior, et al.
Defendants.
MEMORANDUM OPINION
The plaintiff, Eco Tour Adventures, Inc. (“Eco Tour”), a Wyoming-based small business,
seeks rescission of two concession contracts for cross-country ski touring services in Grand
Teton National Park (“the disputed contracts”) that were awarded to two incumbent
concessioners, despite a ruling from the U.S. Court of Federal Claims (“CFC”) holding that the
incumbents’ proposals were improperly considered by the National Park Service (the “NPS”).
See Eco Tour Adventures, LLC v. United States (“Eco Tour I”), 114 Fed. Cl. 6, 40 (2013)
(determining that “NPS acted arbitrarily and capriciously in concluding that [incumbent
concessioners’] proposals were responsive” and, as a result, plaintiff “was prejudiced”). Despite
the CFC’s ruling, NPS subsequently proceeded to award the disputed contracts to the
incumbents, prompting the plaintiff to initiate this lawsuit against the Secretary of the Interior,
the Department of the Interior, the Director of the National Park Service, and the National Park
Service (collectively, “the defendants” or “NPS”), under the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 500 et seq., requesting declaratory and injunctive relief, including
requiring NPS to award the contracts to plaintiff. Compl. at 27-28 (Prayer for Relief), ECF No.
1
1. 1 The parties have now filed cross motions for summary judgment. Pl.’s Mot. Summ. J.,
(“Pl.’s Mot.”), ECF No. 24; Defs.’ Cross-Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 27. For the
reasons outlined below, the plaintiff’s motion for summary judgment is granted with respect to
its request for declaratory relief finding that NPS violated the APA, but denied without prejudice
in all other respects, subject to supplemental briefing consistent with this Memorandum Opinion,
and NPS’s cross-motion for summary judgment is denied.
I. BACKGROUND
The background to this case is described in detail in the CFC decision holding that NPS
“acted arbitrarily and capriciously” and in breach of “the implied contract for bids to be fairly
and honestly considered,” when the agency, by its conduct, thwarted the plaintiff’s “substantial
chance” to receive the disputed contracts, Eco Tour I, 114 Fed. Cl. at 43, as well as this Court’s
Memorandum Opinion denying the defendants’ motion to dismiss in this case, Eco Tour
Adventures, Inc. v. Jewell (“Eco Tour II”), 174 F. Supp. 3d 319 (D.D.C. 2016). This factual and
procedural history as relevant to the pending motions is summarized below.
A. NPS PROSPECTUS AND EVALUATION OF PLAINTIFF’S BID AS
“BEST PROPOSAL”
In December 2012, NPS issued a prospectus soliciting proposals for three ten-year
concession contracts, only two of which, GRTE024-13 (“Contract 24”) and GRTE032-13
(“Contract 32”), are at issue in this case, 2 to provide guided cross-country ski touring services in
Grand Teton National Park. Admin. Record (“AR”) 5–210 (Prospectus, dated December 20,
2012, issued by NPS Intermountain Region). 3 The prospectus “included detailed instructions
1
Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes as defendant the current Secretary
of the Interior, Ryan Zinke, for former Secretary Sally Jewell.
2
The plaintiff did not submit a bid for the third contract, GRTE025-13.
3
The complete administrative record (“AR”) totals 1491 pages comprised of: (1) 1420 pages from the record
before the CFC, Notice Supp. Filing, ECF No. 23; and (2) 71 pages of supplemental material concerning events that
occurred after the termination of the CFC case, with Bates stamps prefaced with “000,” Certified List of AR, ECF
2
setting forth the protocol for submitting proposals and the selection factors to be used by the NPS
to evaluate proposals.” Eco Tour I, 114 Fed. Cl. at 14. These factors included: the offeror’s
commitment to “protecting, conserving, and preserving resources of the park area”; the offeror’s
commitment to “providing necessary and appropriate visitor services at reasonable rates”; the
background and experience of the offeror; the “financial capability of the offeror to carry out its
proposal”; and the offeror’s “proposed minimum franchise fee.” AR 43–57 (Prospectus
outlining the identical selection factors for Contracts 24 and 32).
At the time of this solicitation, the services under Contract 24 were being provided by
Jackson Hole Mountain Resort (“JHMR”) and under Contract 32 by Hole Hiking Experience
(“HHE”), both of which, as incumbent concessioners, were designated by NPS as “preferred
offerors,” a designation the plaintiff does not contest. AR 24 (Prospectus, noting that NPS “has
determined the [] existing Concessioners are qualified contracts and therefore the existing
Concessioners are Preferred Offerors for the new Contracts”). Under NPS regulations, this
designation allows preferred offerors a “right of preference,” which allows them to match any
better offer from a new bidder so long as they initially “submit a responsive proposal to th[e]
Prospectus” that satisfies the minimum requirements established by the NPS. AR 24
(Prospectus, citing 36 C.F.R. § 51).
The plaintiff was founded in 2008 and provides “auto-based interpretative tours into
Grand Teton and Yellowstone national parks.” AR 730 (Letter, dated March 20, 2013, from
Taylor Phillips, plaintiff’s President, to John Wessels, Regional Director, NPS Intermountain
Region). Hoping to expand its business, the plaintiff submitted bids for Contracts 24 and 32.
No. 13. Excerpts from the AR, totaling 1081 pages, were submitted to this Court. See Notice of Filing Appendix
Containing Excerpts from the AR, Ex. 2, AR Part A (containing excerpts from pages 1-883), ECF No. 32-2, and Ex.
3, AR Part B (containing excerpts from pages 884-1420; 00011-00083), ECF No. 32-3.
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AR 724–1093. An evaluation panel, convened from March 25, 2013 to April 5, 2013,
determined that the plaintiff submitted proposals with the highest cumulative score for both
contracts. AR 1272–1302 (undated Panel Evaluation Summary for Contract 24); AR 1317-1342
(undated Panel Evaluation Summary for Contract 32); see also AR 1188 (Letter, dated June 20,
2013, from Regional Director, NPS Intermountain Region to Taylor Phillips, plaintiff’s
President, stating “[y]our proposal has been evaluated as the best proposal for” Contract 24); AR
1189 (same for Contract 32).
For Contract 24, NPS received timely proposals from Eco Tour, JHMR, and two other
offerors. AR 1277 (Panel Evaluation Summary for Contract 24 listing Eco Tour, JHMR, and
two redacted names as offerors). The panel reviewed each proposal against a total of 12 primary,
secondary and subsidiary selection factors, as laid out in the prospectus, and assigned a score for
each factor. AR 1277. Eight of the plaintiff’s twelve responses were rated “excellent” or “very
good” and, of the remaining four responses, two were rated “good” and two were rated “fair.”
AR 1278–1302 (Panel Evaluation Summary). In contrast, JHMR’s responses received no
“excellent” or “very good” ratings, but only seven “good” and five “fair” ratings. Id. In fact, the
plaintiff’s score on each factor was higher than JHMR’s score, with the exception of selection
factor three, for which both received a score of 2.5. AR 1277. Based on the plaintiff’s better
evaluations, the plaintiff’s total evaluation score for Contract 24 was 20.5 (out of a total 27),
which was seven points higher than JHMR’s, at 13.5. AR 1277.
For Contract 32, NPS received timely proposals from Eco Tour, HHE, and two other
offerors. AR 1317 (Panel Evaluation Summary for Contract 32 listing Eco Tour, HHE, and two
redacted names as offerors). Again, nine of the plaintiff’s twelve responses, were rated
“excellent” or “very good” and, of the remaining three responses, two were rated “good” and one
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was rated “fair.” AR 1318–42. In contrast, HHE’s responses received no “excellent” ratings,
with four “very good,” three “good” and five “fair” ratings. Id. Similar to the evaluation for
Contract 24, the plaintiff received a higher score than the incumbent in every category, except
for selection factor three, for which both received a 2.5. AR 1317. The plaintiff’s total
evaluation score for Contract 32, was 21.5 (out of a total 27), which was six points higher than
HHE’s, at 15.5. AR 1317.
The evaluation panel noted a number of deficiencies in both JHMR and HHE’s proposals,
largely related to the fourth primary selection factor regarding “The Financial Capability of the
Offeror To Carry Out its Proposal.” AR 1294 (Contract 24); AR 1334 (Contract 32). JHMR, the
panel noted, failed to submit “a current balance sheet” or “a current credit report,” provided
incomplete or inconsistent answers “on the Initial Investment form,” and failed to submit “a bank
statement as requested . . . .” AR 1295–98. HHE, the panel noted, submitted incomplete annual
financial reports, failed to provide any explanation for the balance sheet it provided, and made
“numerous mistakes” on some of the required forms. AR 1337, 1339. These omissions
prompted the panel to express “concern[] with the financial position of the Offeror [HHE].” AR
1336.
On June 20, 2013, NPS sent letters to the plaintiff, JHMR, and HHE informing the
companies of the panel evaluations. The plaintiff learned that its “proposal ha[d] been evaluated
as the best proposal for this opportunity; however, in accordance with 36 C.F.R. § 51.26, the
preferred offeror, whom the Director has determined to be eligible to exercise a right of
preference to the award of the contract, [would] have the opportunity to match the terms of [its]
proposal.” AR 1188 (Letter, dated June 20, 2013, from John Wessels, Regional Director,
Intermountain Region to the plaintiff). The incumbent concessioners were told that “[a]lthough
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the panel determined your proposal to be responsive to the minimum requirements of the
Prospectus, the panel did not find your proposal to be the best proposal submitted for this
solicitation.” AR 1190–92 (Letter, dated June 20, 2013, from NPS to JHMR); AR 1193–95
(Letter, dated June 20, 2013, from NPS to HHE). Notwithstanding the finding of the NPS
Regional Director that the incumbents’ proposals were “responsive to the minimum requirements
of the Prospectus,” AR 1190, 1193, these letters detailed “items” that each incumbent was
required to “expand on . . . to bring the quality of your response up to the level of the best
proposal,” AR 1192, 1195. JHMR, for example, was told by the Regional Director to submit a
current balance sheet, credit report and bank statement, and HHE was told to submit a complete
set of financial statements, to clarify its revenue and expense projections, a corrected Pro Forma
without “mathematical errors,” and “a current bank statement with a list of current liabilities,”
since HHE had failed to submit a balance sheet that corresponded with the bank statement it
submitted, as required by the prospectus. Id.
Despite the cited defects in their bid proposals, the NPS Regional Director told the
incumbents that they were “eligible to exercise the right of preference for the award of the new
Concession Contract” under 36 C.F.R. § 51.32, assuming that they provided the information
missing from their bids and committed to matching the “elements of [the] better offer” submitted
by the plaintiff. AR 1190–92; AR 1193–94. 4 The incumbents quickly agreed to match the terms
4
In describing these letters, NPS states that “[t]he June 2013 letters to Jackson Hole and Hole Hiking did not
reflect a final decision by the Regional Director that [their] submissions were ‘responsive.’” Defs.’ Mem. Supp.
Cross-Mot. Summ. J. & Opp’n Pl.s’ Mot. Summ. J (“Defs.’ Opp’n”) at 5, ECF No. 27-1. This characterization
conflicts with the quoted language of the actual letters, which expressly told both incumbent concessioners that their
proposals were “responsive to the minimum requirements of the Prospectus.” AR 1190–94. In fact, the author of
the letters conceded that “much of the language used in this letter could be interpreted to mean that [he] had made
final determinations on these issues,” but he nonetheless indicated that he had not read the proposals or the panel
evaluations at the time he signed the letters, nor did he intend the letters “to represent [his] final decision as to
whether the proposals were responsive.” Defs.’ Mot., Ex. 3, Decl. of John Wessels, dated August 13, 2013
(“Wessels Decl.”), ¶¶ 11, 14, ECF No. 27-3.
6
of the plaintiff’s better offer. AR 1204–07 (Letter, dated June 28, 2013, from JHMR to NPS);
AR 1400–01 (Letter, dated July 8, 2013, from HHE to NPS).
The plaintiff also responded to the NPS letter and raised concern over NPS’s reliance on
its regulation at 36 C.F.R. § 51.32 because “it appears that at least one of the preferred offerors
failed to submit a responsive proposal” and, therefore, that incumbent would “ha[ve] no right of
preference, under 36 C.F.R. § 51.31, and ha[ve] no right to match [the plaintiff]’s proposal. ”
AR 1242 (Letter, dated July 3, 2013, from plaintiff to Chief of Concessions, NPS Intermountain
Region). NPS disagreed, citing the definition of a “responsive proposal” from 36 C.F.R. § 51.3,
AR 1244–45 (Letter, dated July 10, 2013, from Chief of Concessions, NPS Intermountain
Region to plaintiff’s attorney), and expressing the view that any omitted information in the
incumbents’ proposals was “not considered material” and “the lack of quality and omissions
were reflected in lower scores,” AR 1267–68 (Letter, dated July 29, 2013, from Chief of
Concessions, NPS Intermountain Region to plaintiff).
B. PLAINTIFF’S CHALLENGE BEFORE CFC
The plaintiff promptly brought a challenge before the CFC to NPS’s determination that
the incumbent concessioners’ proposals were responsive, claiming that the incumbent
concessioners’ failure to include all information required by the prospectus rendered their
proposals not “responsive” within the meaning of the governing NPS regulation at 36 C.F.R. §
51.3, and that NPS acted arbitrarily and capriciously, and breached its implied contractual
obligation to consider bids fairly and honestly, by allowing the incumbents to match the better
terms proposed in the plaintiff’s bids, despite the incumbents unresponsive proposals. Eco Tour
I, 114 Fed. Cl. at 23–24. The plaintiff sought injunctive and declaratory relief in the form of a
remand directing NPS to review its decisions that the incumbents’ proposals were responsive and
that the incumbents were entitled to review proprietary information in the plaintiff’s proposal in
7
order to match plaintiff’s better terms, and also sought reimbursement for the costs incurred in
preparing its bids for the disputed contracts, attorneys’ fees, and litigation costs. Id. at 19. On
August 19, 2013, the CFC stayed the case “based on NPS’s assertion that the source-selection
authority had not rendered final decisions with respect to the award of the disputed contracts.”
Id. at 18 n.8.
C. NPS FINDING OF “RESPONSIVE PROPOSALS” BY INCUMBENTS
Although the June 20, 2013 NPS letters to the plaintiff and incumbent concessioners
expressly stated that the plaintiff offered the “best proposal” and the incumbents’ proposals,
which omitted specific items required by the prospectus, were nonetheless “responsive,” only
after the CFC had stayed the plaintiff’s challenge, did the NPS take steps to formalize these
findings with an explanation. Specifically, on August 30, 2013, the NPS Chief of Concessions,
Intermountain Region, recommended that the Acting Director of the Intermountain Region
officially find that the plaintiff had submitted the “best proposal” and, while acknowledging that
the incumbent concessioners “did not provide all of the information requested in the Prospectus,”
that the Acting Director also find “that all [] of the proposals [submitted] are responsive.” AR
1273 (Memorandum, dated August 30, 2013, from Chief of Concessions to Acting Director,
Intermountain Region for Contract 24); AR 1312–51 (same for Contract 32). 5 Regarding
Contract 24, the recommendation noted that JHMR’s bid did not contain the requested balance
sheet, credit report, or bank statement, AR 1305–06, and had incomplete information as to
anticipated purchases, AR 1306. Nevertheless, these omissions were deemed “immaterial”
because “the panel was able to evaluate the proposal” without the required documents, AR 1306.
5
John Wessels left his position as the Regional Director of NPS’s Intermountain Region during the
consideration of the bid proposals for the disputed contracts. Defs.’ Mot., Ex. 4, Decl. of Jennifer Parker, dated July
28, 2016 (“Parker Decl.”) ¶ 23 n.3, ECF No. 27-4.
8
Regarding Contract 32, the NPS Chief of Concessions acknowledged that HHE’s bid “did not
contain some of the information requested by the [NPS],” since HHE filed incomplete annual
financial reports and “ambiguous” current liability information on its balance sheets,” AR 1345,
but, similarly to the recommendation for Contract 24, recommended finding that HHE’s
omissions or mistakes were immaterial, and therefore HHE’s bid was “responsive.” AR 1345. 6
The Acting Regional Director approved the recommendation, AR 1273 (Memorandum,
dated August 30, 2013, from Chief of Concessions to Acting Director, NPS Intermountain
Region, bearing acting director’s signature approving proposed responsiveness findings for
Contract 24); AR 1313 (same for Contract 32). Following this approval, on September 4, 2013,
the Chief of Concessions recommended finding that both incumbents “ha[d] amended [their]
proposal[s] to match the better terms and conditions of the best proposal,” thus requiring that the
incumbents be awarded the disputed contracts under § 51.32. AR 1352–59 (Source Selection
Memorandum, dated September 4, 2013, from Chief of Concessions to Acting Director,
Intermountain Region for Contract 24); AR 1384–1420 (Source Selection Memorandum, dated
September 4, 2013, from Chief of Concessions to Acting Director, Intermountain Region for
Contract 32). These recommendations were likewise accepted by the Acting Director for the
NPS Intermountain region, as reflected by that Acting Director’s signature on the source
selection recommendation memoranda. AR 1353 (Source Selection Memorandum signed by
Acting Director for Contract 24); AR 1385 (same for Contract 32).
6
This memorandum from the NPS Chief of Concessions did not include other information provided by the
evaluation panel or set out in the Regional Director’s June 20, 2013 letter to HHE, including that HHE’s proposal
contained “numerous mistakes on the Pro Forma income statement,” failed to provide a balance sheet corresponding
to the bank statement, AR 1195 (Letter, dated June 20, 2013, from John Wessels, Regional Director, NPS
Intermountain Region, to HHE), and failed to raise the panel’s concern “with the financial position of” HHE, AR
1336 (Panel Evaluation Summary for Contract 32).
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D. THE CFC DECISION
The CFC subsequently lifted the stay based on NPS’s notice that, consistent with the
August 30 and September 4, 2013 memoranda, the “source-selection authority had [] rendered
final decisions with respect to the award of the disputed contracts, [and] on September 4, 2013,
decided to award the disputed contracts to the incumbent concessioners.” Eco Tour II, 114 Fed.
Cl. at 18. Then, on November 26, 2013, the CFC issued its decision granting judgment in the
plaintiff’s favor, finding that the incumbents had excluded material information from their initial
proposals, which were therefore unresponsive within the meaning of 36 C.F.R. § 51.3, and that
the incumbents therefore were ineligible for the opportunity to match the better terms offered by
the plaintiff. Id. at 42 n. 18 (noting that sealed version of opinion was issued on November 26,
2013 “direct[ing] the entry of final judgment in favor of plaintiff” but deferring entry of that
judgment pending final disposition of plaintiff’s “bid preparation costs”). In particular, the CFC
disagreed with the recommendations in the August 30, 2013 memoranda and instead concluded
that “each of the NPS’s materiality determinations, as well as its resulting responsiveness
determinations, was arbitrary, capricious, and an abuse of discretion.” Id. at 23; 33–34.
Moreover, because the plaintiff had “submitted responsive proposals that received the highest
cumulative scores of any of the proposals received by NPS,” the CFC concluded that NPS’s
arbitrary and capricious actions were prejudicial since the plaintiff “demonstrated a ‘substantial
chance’ that it would have received the disputed contracts if not for the Park Services’ arbitrary
and capricious responsiveness determination with regard to the proposals of [the incumbents].”
Id. at 43.
Although the CFC was clear that the plaintiff’s bids were not fairly considered by NPS,
the CFC determined that it lacked jurisdiction to provide the equitable and declaratory relief
requested by the plaintiff. Id. at 21, 42; see also Eco Tour II, 174 F. Supp. 3d at 325–29.
10
Specifically, because the disputed concession contracts were not “procurement contracts” for
purposes of the Tucker Act, 28 U.S.C. § 1491, Eco Tour I, 114 Fed. Cl. at 21, the CFC held that,
after considering conflicting authority on the issue, it lacked jurisdiction to award the plaintiff
equitable relief, and thus the plaintiff could recover at the CFC only the costs incurred for its
initial bid. Id. at 41–42. Consequently, the CFC denied the plaintiff’s requested remand to the
agency because doing so was perceived to “tread[] . . . into the realm of injunctive relief,” id. at
42. Thereafter, upon consideration of the parties’ stipulation regarding the plaintiff’s costs
stemming from its unsuccessful bids for the disputed contracts, J. Stip. Re: Money Damages
Owed Under December 12, 2013 Op. & Order & J. Request For Entry of J., Eco Tour I, No. 13-
cv-532-LJB (Fed. Cl. April 15, 2014), ECF No. 58, the CFC entered judgment, on April 17,
2014, in favor of the plaintiff and awarded $36,250 in bid preparation costs, Judgment, Eco Tour
I, No. 13-cv-532-LJB (Fed. Cl. April 17, 2014); see also Eco Tour II, 174 F. Supp. 3d at 322–23.
E. PLAINTIFF’S NON-LITIGATION EFFORTS TO OBTAIN REVIEW OF
DISPUTED CONTRACTS AWARDS
After the CFC’s judgment was entered, but before the disputed concession contracts with
the incumbent concessioners were executed, the plaintiff engaged in multiple steps short of
expensive litigation to remedy the denial of the contracts to the plaintiff. Pl.’s Mot. Ex. A,
Second Decl. of Taylor Phillips, plaintiff’s President and owner, dated May 30, 2016 (“Phillips
Second Decl.”) ¶ 14, ECF 24-1 (stating that plaintiff “was unable to afford the expense of further
litigation against the federal government” after the CFC ruling “due in large part to the very
illegal action at issue in this matter”). 7 These steps included trying to enlist the assistance of the
7
As support for their pending motions, the parties rely on declarations that are not in the AR. These
declarations may nevertheless be considered since, as the D.C. Circuit has recognized, extra-record evidence may be
used “in cases where relief is at issue.” Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). The issue of injunctive
relief is generally not raised in the administrative proceedings below and, consequently, “there usually will be no
administrative record developed on these issues.” Steven Sark & Sarah Wald, Setting No Records: The Failed
Attempts to Limit the Record in Review of Administrative Actions, 36 Admin. L. Rev. 333, 345 (1984). Thus, “it will
11
Wyoming congressional delegation, which efforts prompted congressional inquiries requiring
NPS to explain its actions. See, e.g., AR 00012–14 (Letters, dated June 20, 2014, from Regional
Director, NPS Intermountain Region to Wyoming Congresswoman Cynthia Lummis and
Wyoming Senators John Barrasso and Michael B. Enzi, summarizing “the decisions the [NPS]
has made related to” plaintiff). The plaintiff also attempted “extensive and lengthy efforts to
persuade NPS to comply with the law.” Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”), at 9,
ECF No. 24.
On June 20, 2014, NPS rejected the plaintiff’s proposal “to forego payment” on the CFC
judgment “in exchange for a contract,” indicating that “this is not possible as the [CFC] entered
judgment against the United States . . . .” AR 00011 (Letter, dated June 20, 2014, from Regional
Director, NPS Intermountain Region to plaintiff’s President). NPS further stated its plan, having
“carefully considered all possible resolutions,” to “fully comply with the [CFC’s] decision and
pay your bid preparation costs and a negotiated amount for your attorney fee.” Id. While
acknowledging that plaintiff was “very passionate about this matter and [was] disappointed with
the outcome,” the agency offered, apparently by way of consolation, that “the [CFC]’s decision
has resulted in policy changes to strengthen proposal requirements and evaluation procedures.”
Id. Explanation of the specific “policy changes” that NPS has adopted are not entirely clear from
the record. NPS informed the Wyoming congressional delegation by letter sent that same day,
that though “NPS did not always consider an offeror’s failure to produce one of many financial
documents requested in the prospectus as a material failure that would render the proposal
often be necessary for a court to take new evidence to fully evaluate” claims “of irreparable harm . . . and [claims]
that the issuance of the injunction is in the public interest.” Id. Further, “there is nothing improper in receiving
declarations that ‘merely illuminate[] reasons [for the agency’s actions] obscured but implicit in the administrative
record.’” Clifford v. Pena, 77 F.3d 1414, 1418 (D.C. Cir. 1996) (quoting Appeal of Bolden, 848 F.2d 201, 207
(D.C. Cir. 1988)); see also Camp v. Pitts, 411 U.S. 138, 141-43 (1973) (holding courts may “obtain from the
agency, either through affidavits or testimony . . . additional explanation of the [contemporaneous] reasons for the
agency decision”). To the extent the declarations provide such illumination, the Court properly considers them.
12
unresponsive, . . . [i]n the future, NPS may be required to determine an offer ineligible for
consideration if the offeror fails to provide all financial information required by the prospectus.”
AR 00012-14 (Letters from Regional Director, NPS Intermountain Region to the Wyoming
congressional delegation). Less than a month later, on July 16, 2014, NPS executed Contract 24
and Contract 32 with JHMR and HHE, respectively. AR 00022, 00056.
F. THE INSTANT LAWSUIT
After “locat[ing] counsel who would agree to take [the case] on a pro bono basis because
it could not afford additional litigation,” Pl.’s Opp’n to Defs.’ Cross-Mot. and Reply to Defs.’
Opp’n to Pl.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 40, ECF No. 28, the plaintiff filed the instant
action, alleging that NPS violated the APA by misinterpreting and misapplying its own
regulations, Compl. ¶¶ 47–51, despite the “clear and unequivocal terms of the regulations which
apply” and the CFC’s “clear finding that NPS’s conduct was illegal,” id. ¶¶ 2, 4. Given the
CFC’s view that it lacked authority to issue injunctive relief in the form of rescission of the
disputed contracts, the plaintiff seeks injunctive and declaratory relief in this Court. Id. ¶¶ 4–5
(seeking “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.”).
NPS initially moved to dismiss the plaintiff’s complaint for lack of standing and for
failure to state a claim, contending that the plaintiff should be precluded from pursuing equitable
and declaratory relief having already “voluntarily elected to receive reimbursement of its bid
preparation costs in resolving its earlier claim” and having elected to pursue relief in the CFC
when an injunction was available in district court. Eco Tour II, 174 F. Supp. 3d at 332–33. This
Court rejected these arguments, finding “no substantial inconsistency between the monetary
award the plaintiff voluntarily accepted in connection with its earlier action before the CFC and
13
the plaintiff’s present request for injunctive and declaratory relief in this Court.” Id. at 335.
Contrary to NPS’s claim that the plaintiff would receive a windfall if granted the award of the
concession contracts after having received its bid costs, the Court held that “to the extent deemed
necessary[,] any contracts awarded under this action could address any prior partial relief
received by Eco Tour.” Id. (internal quotation marks omitted). Moreover, the Court pointed out
the obvious flaw in NPS’s position that the plaintiff “elected” to pursue monetary relief before
the CFC rather than injunctive relief, noting that “NPS had not yet finalized its decision to award
the disputed contracts to the incumbent concessioners . . . during the pendency of the
proceedings before the CFC” and, thus, the plaintiff could not have sought an injunction at that
time. Id. at 334. Further, “even assuming such relief was available at the time Eco Tour initially
filed suit in the CFC,” the Supreme Court, in a related context, had held “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.” Id. at 334–35 (citing United States v.
Tohono O'Odham Nation, 563 U.S. 307, 318 (2011)). Although “the defendants may yet
demonstrate that the plaintiff is not entitled to relief under the APA,” the Court concluded that
the relief available to the plaintiff from the CFC was not complete relief, and thus the plaintiff is
not “barred entirely from seeking complete relief for the defendants’ allegedly arbitrary and
capricious actions.” Id. at 336.
The parties’ cross motions for summary judgment are now ripe for review.
II. LEGAL STANDARDS
A. SUMMARY JUDGMENT STANDARD UNDER FEDERAL RULE OF
CIVIL PROCEDURE 56
Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when
the court finds “that there is no genuine dispute as to any material fact and the movant is entitled
14
to judgment as a matter of law.” FED. R. CIV. P. 56(a), (e)(3); see Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The
first part of the Rule 56 summary judgment standard regarding the absence of disputed material
facts, however, is irrelevant in APA cases since “’the district judge sits as an appellate tribunal’”
and “[t]he entire case on review is a question of law.’” Rempfer v. Sharfstein, 583 F.3d 860, 865
(D.C. Cir. 2009) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083-84 (D.C. Cir.
2001). As such, “the complaint, properly read, actually presents no factual allegations, but rather
only arguments about the legal conclusion to be drawn about the agency action.” Id. (quoting
Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993)).
Consequently, “[g]enerally speaking, district courts reviewing agency action under the APA’s
arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate
courts resolving legal questions.” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085,
1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 171 (D.C.
Cir. 2013) (noting, in APA cases, that “determining the facts is generally the agency’s
responsibility, not ours”).
Judicial review is limited to the administrative record, since “[i]t is black-letter
administrative law that in an [APA] case, a reviewing court should have before it neither more
nor less information than did the agency when it made its decision.” CTS Corp. v. EPA, 759
F.3d 52, 64 (D.C. Cir. 2014) (internal quotation marks omitted); see 5 U.S.C. § 706 (“[T]he court
shall review the whole record or those parts of it cited by a party . . . .”); Fla. Power & Light Co.
v. Lorion, 470 U.S. 729, 743 (1985) (noting, when applying arbitrary and capricious standard
under the APA, “‘[t]he focal point for judicial review should be the administrative record already
in existence . . . .’” (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973))); Citizens to Pres. Overton
15
Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (noting “review is to be based on the full
administrative record that was before the [agency] at the time” of the challenged decision).
B. STANDARD OF REVIEW UNDER THE APA
An agency action, finding or conclusion challenged under the APA must be set aside
upon finding that it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). When a challenged agency action is based on the
application or operation of a regulation, the agency’s interpretation of its own ambiguous
regulation is generally given substantial judicial deference. See Auer v. Robbins, 519 U.S. 452,
463 (1997); Drake v. F.A.A., 291 F.3d 59, 68 (D.C. Cir. 2002). Given the deference owed to
agency’s interpretation of its own ambiguous regulation, a plaintiff challenging this
interpretation carries a “heavy burden in advancing [that] claim.” In re Polar Bear Endangered
Species Act Listing & Section 4(d) Rule Litig. — MDL No. 1993, 709 F.3d 1, 11 (D.C. Cir.
2013).
This general rule on deference has limits, however, and is unwarranted when, for
example, the agency’s “interpretation is ‘plainly erroneous or inconsistent with the regulation.’”
Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (quoting Chase Bank USA, N. A. v.
McCoy, 131 S. Ct. 871, 880 (2011)); see also Christopher v. SmithKline Beecham Corp., 132 S.
Ct. 2156, 2166 (2012); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“[W]e
must defer to the [agency]’s interpretation unless an ‘alternative reading is compelled by the
regulation’s plain language or by other indications of the Secretary’s intent at the time of the
regulation’s promulgation.”) (internal quotation marks omitted). An agency interpretation that
conflicts with an unambiguous regulation is “substantively invalid” because “to defer in such a
case would allow the agency ‘to create de facto a new regulation.’” Perez v. Mortg. Bankers
Ass'n, 135 S. Ct. 1199, 1208 (2015)(quoting Christensen v. Harris County, 529 U.S. 576, 588
16
(2000)); see Huerta v. Ducote, 792 F.3d 144, 153 (D.C. Cir. 2015)(noting that agency action
“unhinged from the regulation's plain text” is not entitled to deference). Likewise, deference
need not be accorded to the agency’s interpretation that “does not reflect the agency's fair and
considered judgment on the matter in question,” Auer, 519 U.S. at 462, such as when the
agency’s interpretation is “unreasonable,” Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d
319, 343 (D.C. Cir. 2011), or “ʻwhen it appears that the interpretation is nothing more than a
convenient litigating position, or a post hoc rationalization advanced by an agency seeking to
defend past agency action against attack,’” Rhea Lana, Inc. v. DOL, 824 F.3d 1023, 1030-1031
(D.C. Cir. 2016)(quoting Christopher, 132 S. Ct. at 2166)).
Finally, although an agency may amend or repeal its own regulations and is entitled to
deference in interpreting ambiguous regulations, “an agency is not free to ignore or violate its
regulations while they remain in effect.” Nat'l Envtl. Dev. Ass'ns Clean Air Project v. EPA, 752
F.3d 999, 1009 (D.C. Cir. 2014) (quoting U.S. Lines, Inc. v. Fed. Mar. Comm'n, 584 F.2d 519,
526 n.20 (D.C. Cir. 1978)); see also Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003)
(“Federal agencies must follow their own rules, even gratuitous procedural rules that limit
otherwise discretionary actions."). As a result, an agency’s action is “arbitrary and capricious if
the agency fails to ‘comply with its own regulations.’” Nat'l Envtl. Dev. Ass'ns Clean Air
Project v. EPA, 752 F.3d at 1009 (quoting Environmentel, LLC v. FCC, 661 F.3d 80, 85 (D.C.
Cir. 2011)).
III. DISCUSSION
The plaintiff argues that NPS’s decision to award the contracts to the incumbent
concessioners was “directly contrary to explicit law” and that “NPS’s own regulations very
clearly required NPS to award the two contracts to Eco Tour because [it] had submitted the best
17
proposal.” Pl.’s Mem. at 1. As relief, the plaintiff urges the Court to enter a declaratory
judgment that “NPS violated the law, acted arbitrarily and capriciously and abused its discretion
in awarding the contracts at issue to” the incumbent concessioners, Compl. at 27 (Prayer For
Relief), and to grant injunctive relief by rescinding the contracts as “void as a matter of law,” and
“directing NPS to comply with its obligations . . . and award the contracts at issue to” plaintiff,
id. NPS counters that, under applicable regulations, the agency was “lawfully” permitted to
“issue the contracts to the incumbent concessioners pursuant to the September 4, 2013 award
decision.” Defs.’ Mem. Supp. Cross-Mot. Summ. J. & Opp’n Pl.’s Mot. Summ. J (“Defs.’
Opp’n”) at 30–31, ECF No. 27-1. NPS further argues that, even if this Court rejects the agency’s
reading of its own regulations and finds that the final award of the disputed contracts to the
incumbent concessioners was arbitrary and capricious, the plaintiff should still be denied
equitable relief. The NPS reasons, in a rehash of its unsuccessful motion to dismiss, that the
plaintiff has already elected monetary damages as its remedy and, consequently, has no
entitlement to injunctive relief. Id. at 16–17, 30–31.
Analysis of the parties’ cross motions for summary judgment begins with the plaintiff’s
APA challenge to NPS’s final award of the disputed contracts, and the NPS’s request to
reconsider the denial of its prior motion to dismiss. The Court finds, consistent with the holding
of the CFC, that NPS violated the APA in awarding the disputed contracts to the incumbent
concessioners and, further, that NPS’s request for reconsideration is without merit. The
plaintiff’s entitlement to injunctive relief, however, raises significant issues neither raised nor
addressed by the parties about whether the incumbent concessioners are required parties, under
Federal Rule of Civil Procedure 19, for the purposes of fashioning appropriate equitable relief.
18
A. PERMITTING AMENDMENT TO INCUMBENT CONCESSIONERS’
BIDS WAS ARBITRARY AND CAPRICIOUS
The parties agree that the CFC’s holding regarding the non-responsiveness of the
incumbents’ bid proposals is binding. Pl.’s Mem. at 12 (noting that “ruling by the CFC that the
incumbents’ proposals were non-responsive has res judicata effect and NPS is collaterally
estopped from trying to now re-litigate this exact same issue.”); Defs.’ Opp’n at 18 (“Defendants
acknowledge that Eco Tour has prevailed on the merits of the claim it litigated before the CFC
that NPS erred in treating as responsive the initial bids of the incumbent concessioners.”). The
issue before this Court is the parties’ dispute whether, notwithstanding the CFC holding, the
NPS’s award to the incumbent concessioners of the disputed contracts complied with applicable
regulations. The plaintiff contends that these regulations barred the NPS from awarding the
disputed contracts to the incumbent concessioners because “NPS cannot award the contracts to
offerors who submitted non-responsive proposals.” Pl.’s Mem. at 11, 15–17. By contrast, NPS
argues that “the plaintiff’s interpretation of [the] regulations . . . is not reasonable and certainly is
not the only permissible interpretation of that regulation.” Defs.’ Reply Supp. Cross-Mot.
Summ. J. (“Defs.’ Reply”) at 7, ECF No. 31. According to NPS, the agency was “required to
award the contracts to the incumbent concessioners because they timely submitted amended
proposals and their amended proposals matched the terms of [the plaintiff]’s offer.” Defs.’
Opp’n at 21 (citing 36 C.F.R. § 51.32) (emphasis added).
Thus, the legality under the APA of NPS’s actions in awarding the disputed contracts to
the incumbents turns on whether the agency properly applied governing statutory provisions and
its own regulations to permit the incumbent concessioners to amend their bid proposals in two
ways: to make those proposals responsive and to match the plaintiff’s better offer, rather than
19
rejecting the non-responsive proposals. Review of the relevant regulatory framework makes
clear that NPS’s reading of the governing statute and its own regulations is untenable.
Overview of Relevant Statutes and NPS Regulations
NPS’s solicitation of concession contracts is controlled by statute and in more fully
articulated regulations. While NPS does not rely on the statute to explain its bidding process, the
pertinent statutory language helps illuminate the plain meaning of the agency’s regulations. At
the time of the events at issue, the National Park Service Concessions Management Act of 1998
required the Secretary to use a competitive selection process, which included the public
solicitation of proposals meeting the requirements of a published prospectus, to identify the best
concession proposal. 16 U.S.C. § 5952 (1), (2). Under the Act, the minimum terms for the
concession contract must be set out in the prospectus, along with other pertinent information
such as the selection factors. Id. § 5952(3). 8 The consequence of failing to meet the terms of the
prospectus is clear, with the agency instructed that “[n]o proposal shall be considered which fails
to meet the minimum requirements as determined by the Secretary,” id. § 5952(4)(A), and,
similarly, requiring the Secretary to “reject any proposal, regardless of the franchise fee offered”
that “is not responsive to the objectives of protecting and preserving resources of the unit of the
National Park System and of providing necessary and appropriate facilities and services to the
public at reasonable rates,” id. § 5952(4)(B). Further, the Secretary is barred from “execut[ing] a
concessions contract which materially amends or does not incorporate the proposed terms and
conditions of the concessions contract as set forth in the applicable prospectus,” and if such
8
The statute governing NPS concession contracts was, at the time of the events at issue, codified in Title 16
of the U.S. Code, but, in December 2014, recodified in a Title 54 for “National Park Service and Related Programs.”
Pub. Law. 113-287, § 2(a), 128 Stat. 3093.
20
material amendments “are considered appropriate,” the Secretary must “resolicit offers for the
concessions contract incorporating such material amendments or changes,” id. § 5952(4)(D).
The Act plainly disfavors giving preferential renewal right to incumbents, providing that
“the Secretary shall not grant a concessioner a preferential right to renew a concessions contract,
or any other form of preference to a concessions contract,” except for narrowly defined types of
contracts in specified circumstances. Id. § 5952(7)(A). For incumbent concession contract
holders, the Secretary may grant a right of renewal only if the incumbent has “operated
satisfactorily during the term of the contract” and “submitted a responsive proposal for a
proposed new contract which satisfies the minimum requirements established by the Secretary,”
id. § 5952(8)(C). This preferential right of renewal “shall allow a concessioner . . . the
opportunity to match the terms and conditions of any competing proposal which the Secretary
determines to be the best proposal . . . .” Id. § 5952(7)(C).
Consistent with the statute, NPS regulations require “a public solicitation process” for a
concession contract, which process “begins with the issuance of a prospectus that invite[s] the
general public to submit proposals for the contract.” 36 C.F.R. § 51.4(a). The prospectus must
include, among other things, “the minimum requirements of the concession contract,” and “a
statement identifying each principal selection factor for proposals . . . and secondary factors . . .
and the weight and relative importance of the [factors] in the selection decisions.” Id. § 51.5(a).
By the time the prospectus is issued, the director is also required to have identified incumbent
concessioners who are “preferred offerors,” which status allows them to exercise a right of
renewal if certain conditions are met. Id. § 51.28 (“[T]he director will determine whether a
concessioner is a preferred offeror in accordance with this part no later than the date of issuance
of a prospectus for the applicable new concession contract.”). On expiration of the specified
21
period to submit proposals, NPS “appl[ies] the selection factors” to the proposals received “by
assessing each timely proposal under each of the selection factors . . . and . . . assign[ing] a score
that reflects the determined merits of the proposal.” Id. § 51.16. Following evaluation and
scoring of the proposals, “the responsive proposal with the highest cumulative point score will be
selected by the Director as the best proposal.” Id. § 51.16. The “concession contract will be
awarded to the offeror submitting the best responsive proposal.” Id. § 51.31.
Importantly, the language of § 51.31 limits award of a contract to a “responsive”
proposal, which is defined in the regulations as “a timely submitted proposal . . . [that] agree[s]
to all the minimum requirements of the proposed concession contract and prospectus and [that]
provide[s] the information required by the prospectus.” Id. § 51.3. The determination of
whether a proposal is responsive must be made “[p]rior to or as of the date of the selection of the
best proposal.” Id. § 51.13. The regulations are absolutely clear that the Director “must reject
any proposal received” that “is not a responsive proposal.” Id. § 51.18. 9
Generally, “[a]n offeror may not amend or supplement a proposal after the submission
date.” Id. § 51.15. Limited amendment to a bid proposal is permitted in only two circumstances.
First, an amendment to a bid proposal after expiration of the proposal period is permitted when
there has been “a general failure of offerors to understand particular requirements of a prospectus
or a general failure of offerors to submit particular information required by a prospectus.” Id. In
that circumstance, the Director may permit amendment “limited to modifying particular aspects
of proposals” with the noted deficiencies so long as “the Director provides all offerors that
submitted proposals a similar opportunity to amend or supplement their proposals.” Id. Second,
an amendment to a bid proposal is permitted after expiration of the proposal period when “a
9
The prospectus published by NPS for the disputed contracts mirrors this language and makes clear that
“[o]nly an Offeror submitting a responsive proposal is eligible to be awarded the new concession contract.” AR 27.
22
proposal other than the responsive proposal submitted by a preferred offeror is the best proposal
submitted for a qualified concession contract.” Id. § 51.32. In this second circumstance, the
Director must “give the preferred offeror an opportunity to match the terms of the better offer.”
Id. This “opportunity,” however, is restricted to a preferred offeror, which “must submit a
responsive proposal . . . if the preferred offeror wishes to exercise a right of preference.” Id. §
51.30. Thus, the preferential right to match a better offer is dependent on submission of a
“responsive proposal,” a criterion further emphasized in yet another regulation, stating that “[i]f
a preferred offeror fails to submit a responsive proposal, the offeror may not exercise a right of
preference.” Id. § 51.31. Outside of these two limited circumstances, the relevant regulations do
not permit amendments to proposals after expiration of the specified period for bid submissions.
Id. § 51.15.
In sum, these straightforward regulations make clear that, absent a circumstance in which
no offerors have submitted a responsive proposal or in which the incumbent concessioner has
submitted a responsive proposal not deemed the “best,” NPS is precluded from permitting
amendment of bids after the submission period has expired. Id. § 51.15. Both the governing
statute and regulations require that NPS reject non-responsive proposals, which also are
ineligible for any preferential right of renewal.
NPS Violated Both the Governing Statute and Regulations
The CFC, in its thorough analysis, concluded that both incumbent concessioners’ bids
were non-responsive, while rejecting NPS’s argument that “[the plaintiff]’s proposal suffered
from the same defect, and should likewise be rejected as non-responsive.” Eco Tour I, 114 Fed.
Cl. at 29–33. Due to the CFC’s ruling, NPS concedes error in its August 30, 2013 decision
deeming the incumbents’ initial bid proposals responsive. Defs.’ Opp’n at 30. Given that the
incumbent concessioners’ initial proposals were not responsive, NPS was required to reject the
23
proposals. See 16 U.S.C. 5952(4)(B); 36 C.F.R. § 51.18. Furthermore, NPS regulations
prohibited the incumbent concessioners from amending their proposals after expiration of the
proposal period, see 36 C.F.R. §§ 51.15, 51.32, and due to their non-responsive proposals, the
incumbents were not entitled to a preferential right of renewal or the opportunity to amend their
bids to meet the better offer. 16 U.S.C. § 5952 (8)(C)(ii).
Indeed, NPS makes no effort to justify permitting such amendment based on a “general
failure” of the bidders to submit responsive applications, as outlined in § 51.15, since the
plaintiff submitted responsive proposals for Contracts 24 and 32. As for permitting the
incumbents to exercise a right of preference and amend their proposals under § 51.32, the
incumbents were not eligible to exercise any right of preference because their proposals were not
responsive in the first instance. Despite NPS’s argument that “the Court should defer to the
agency’s interpretation of” its own regulations, Defs.’ Reply at 9–10, such deference is owed
only when the regulation at issue is ambiguous, Decker, 133 S. Ct. at 1337. These regulations
are clear.
NPS nonetheless urges that § 51.32 should be read to permit incumbents to amend their
proposals to make them responsive to a prospectus. Defs.’ Opp’n at 16; see also id. at 21 (citing
§ 51.32 as “requir[ing]” NPS “to award the contracts to the incumbent concessioners because
they timely submitted amended proposals and their amended proposals matched the terms of Eco
Tour’s offer.”). As support, NPS cites the second sentence of this regulation, which “provides
that ‘[i]f the preferred offeror duly amends its proposal within the time period allowed by the
Director, and the Director determines that the amended proposal matches the better terms and
conditions of the best proposal, then the Director must select the preferred offeror for an award
of the contract upon the amended terms and conditions, subject to other applicable requirements
24
of this part.’” Id. (quoting § 51.32). NPS not only fails to address the overall restriction in the
last clause of the sentence referring to “other applicable requirements of this part,” which
constrains its reading of § 51.32, but also fails to address the immediately preceding sentence of
this same subsection, which expressly limits the scope of the second sentence by restricting
preferred offerors eligible to take advantage of the right of preference to those that have already
submitted a responsive proposal. Specifically, the first sentence of § 51.32 states:
“If the Director determines that a proposal other than the responsive proposal
submitted by a preferred offeror is the best proposal submitted for a qualified
concession contract, then the director must advise the preferred offeror of the better
terms and conditions of the best proposal and permit the preferred offeror to amend
its proposal to match them.”
§ 51.32 (emphasis added).
The text of § 51.32 is unambiguous and cannot support NPS’s interpretation of the
regulation. The first sentence of the regulation clearly limits the scope of § 51.32 to “responsive
proposal[s] submitted by a preferred offeror,” and also limits amendments permitted by the right
of preference to matching “the better terms and conditions of the best proposal.” Neither of
those conditions were met here. First, the initial offers submitted by the incumbent
concessioners were non-responsive and thus do not constitute a “responsive proposal submitted
by a preferred offeror” under § 51.32. Second, the amendments NPS attempts to justify under
this subsection were not limited to matching the better terms of the plaintiff’s offer, but include
amendments to make the incumbent concessioners’ proposals responsive. By permitting such
amendments to be made by the incumbent concessioners, NPS violated the unambiguous
language of the relevant regulations, rendering this decision arbitrary and capricious. See Nat'l
Envtl. Dev. Ass'ns, 752 F.3d at 1009 (holding an agency’s action is “arbitrary and capricious if
the agency fails to ‘comply with its own regulations’” (quoting Environmentel, LLC, 661 F.3d at
85)). Thus, even if § 51.32 were “the relevant regulation governing the contract award to the
25
incumbent concessioners,” Defs.’ Opp’n at 21, as NPS contends, this regulation does not
sanction the agency’s action.
Indeed, adoption of NPS’s proposed reading of these regulations would make §§ 51.30
and 51.31 superfluous. If the regulations authorized the Director to allow incumbent
concessioners to amend non-responsive proposals in order to exercise a right of preference, then
§ 51.31, which prohibits “a preferred offeror [who] fails to submit a responsive proposal” from
“exercis[ing] a right of preference,” would have no purpose because a preferred offeror could
always amend a proposal to make it responsive. The same reading would obviate the pre-
requisite in § 51.30 that “[a] preferred offeror must submit a responsive proposal pursuant to the
terms of an applicable prospectus for a qualified concession contract if the preferred offeror
wishes to exercise a right of preference,” since the same offeror could simply amend its proposal
at any time to meet the terms of the prospectus.
In sum, after the CFC found the incumbents’ proposals to be non-responsive, NPS
persisted on the path of awarding the disputed contracts to the incumbent concessioners, even
though these awards were barred under relevant statutory provisions and regulations requiring
rejection of the incumbents’ proposals. NPS’s decision to make final awards of the disputed
contracts to the incumbents was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
NPS’s Award of Disputed Contracts Had No “Reasonable” Basis
Even if the agency’s actions were prohibited by statute and its own regulations, NPS has
a fallback position: the agency “had a reasonable basis to proceed with the award of the contracts
to the incumbents following the outcome of the CFC litigation when Eco Tour accepted its bid
preparation costs as a remedy for the erroneous responsiveness determination and when the CFC
left undisturbed the September 4, 2013 award decision.” Defs.’ Opp’n at 20–21. In this “unique
26
set of circumstances,” id. at 21, NPS suggests that no regulation, including § 51.32, “expressly
govern[s],” id.; see also Defs.’ Reply at 9 (arguing that the regulations “do[] not contemplate the
situation presented here”), and, thus, to avoid “the windfall that Eco Tour would obtain if it
received the contracts in addition to its bid preparation costs,” Defs.’ Opp’n at 21, “NPS had a
rational basis to thereafter proceed pursuant to the September 4, 2013 award determination” and
“did not clearly violate any concession contracting procedure by proceeding in this manner,” id.
This convoluted argument is without merit for several reasons.
First, as a threshold matter, and most notably, the predicate for this argument—namely,
that “the CFC left undisturbed the September 4, 2013 award decision,” Defs.’ Opp’n at 21—is
plainly wrong. This argument, which is repeated throughout NPS’s briefing, id. at 3, 13, 23–24,
30, 31; Defs.’ Reply at 2, 3, fails because, as the plaintiff correctly points out, “the CFC decision
in Eco Tour I completely eviscerated the fundamental and legal basis for NPS’s September 4,
2013 selection decision.” Pl.’s Opp’n at 10. To review, the September 4, 2013 decision to
award the contracts to the incumbents based on their amended bids rested on the August 30,
2013 decision’s critical finding the incumbents’ initial proposals responsive, and therefore
eligible for amendments designed to match the terms of the better offer. AR 1352, 1384 (Source
Selection Memoranda, citing both August 30, 2013 determination of incumbents’ “responsive
proposal[s]” and June 20, 2013 letter citing terms of “better offer”). Indeed, the CFC stayed its
proceedings, at NPS’s request, until the agency made its final selection of concessioners, and
then considered the plaintiff’s challenge on an expedited schedule before the disputed contracts
were executed, to hold that “NPS violated applicable law, acted arbitrarily and capriciously, and
abused its discretion in concluding that incumbent concessioners . . . submitted proposals that
were ‘responsive’ to the requirements of the prospectus and in allowing them to match the better
27
terms of Eco Tour’s proposals for the disputed contracts.” Eco Tour I, at 11. Thus, the specific
reasons justifying the September 4, 2013 selection decision – that the incumbents submitted
responsive proposals and exploited the opportunity to match the plaintiff’s better terms – were
found to be illegal. The CFC further found that “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.” Id. at 33, 44.
This CFC decision narrowly constrained NPS’s next actions: under the mandates of the
applicable statute and regulations, at a minimum, NPS was required to reject the incumbents’
proposals. See 16 U.S.C. § 5952(8)(B)(iii) (“The Secretary shall reject any proposal, regardless
of the franchise fee offered, if the Secretary determines that . . . the proposal is not
responsive…”(emphasis added)); 36 C.F.R. § 51.31 (requiring rejection of incumbent’s non-
responsive proposal). Instead, NPS proceeded to execute the disputed contracts with the
incumbents, notwithstanding that those contracts were predicated on a series of statutory and
regulatory violations. 10
Second, NPS’s contention that its regulations should somehow be deemed ambiguous and
the disputed contract awards “rational” in the unique circumstances presented in this case is
without merit. The governing statute and NPS regulations apply to situations, as here, where an
incumbent concessioner has submitted a bid for a concession contract, and explicitly addresses
10
NPS’s criticism of the plaintiff for purportedly failing to challenge the September 4, 2013 selection
decision only demonstrates the agency’s misunderstanding of the repercussions flowing from the CFC decision. See
Defs.’ Opp’n at 7 (“Eco Tour did not challenge the agency's September 4, 2013 determination . . . .”); id. at 16 (“Eco
Tour did not challenge in the CFC lawsuit, and does not directly challenge here, the September 4, 2013 award
decisions that were the basis for the award of the contracts to the incumbent concessioners in July 2014.”). By
successfully challenging the underlying prerequisites for the selection decision, the plaintiff needed to do no more.
By operation of the applicable statutes and regulations, the CFC decision required rejection, not selection, of the
incumbents’ proposals. See Pl.’s Opp’n at 11 n. 2 (explaining that “[g]iven the CFC ruling, there was no reason for
Eco Tour to thereafter file a second lawsuit seeking to invalidate this September 4, 2013 selection decision because
the CFC decision clearly invalidated it.”).
28
what must happen when the bid is either responsive or non-responsive. When an incumbent has
submitted a non-responsive bid, that bid must be rejected. See 36 C.F.R. § 51.31. The fact that
the regulations do not discuss what happens when a non-incumbent bidder has received some
judicial relief is irrelevant: NPS remains bound by the regulation requiring rejection of a non-
responsive proposal from any bidder, including incumbent concessioners. In other words, the
purportedly unique circumstance presented in this case is merely that the CFC, rather than NPS,
found the incumbents’ proposals to be non-responsive. This finding, at a minimum, should have
sent NPS back to the proverbial drawing board with a new solicitation of bids, rather than
proceeding apace to execute the disputed contracts. The fact that the CFC also held that the
plaintiff was prejudiced and entitled to at least monetary relief—several months before NPS
actually executed the disputed contracts—is unrelated to the regulatory bar on the agency’s
consideration of non-responsive bids for concession contracts. See Pl.’s Opp’n at 12 (noting
“even if Eco Tour had elected a remedy and was powerless to stop NPS from awarding the
contracts,” this was “no excuse for NPS proceeding to award the contracts to its incumbents
because . . . the law still prohibited any such award.”).
Finally, NPS’s argument that its decision to award the disputed contracts to the
incumbents was based on the fact that “Eco Tour accepted its bid preparation costs as a remedy
for the erroneous responsiveness determination,” is unconvincing. Defs.’ Opp’n at 20–21. As
the plaintiff correctly points out, “even if Eco Tour had elected a remedy, that action by Eco
Tour could not possibly have converted the preferred incumbents’ non-responsive proposals into
responsive proposals, which they had to be in order for NPS to legally award the contracts to the
incumbents under the applicable regulations.” Pl.’s Opp’n at 2. NPS does not directly address
this cogent position, but instead reasons that when the plaintiff accepted reimbursement of costs
29
incurred for its unsuccessful bids for Contracts 24 and 32, not only had the plaintiff elected a
remedy “upon which NPS could justifiably rely,” but also “any error in the process had been
remedied in accordance with the ruling of the CFC.” Defs.’ Opp’n at 31. As a result, in NPS’s
view, the agency “was required to award the contracts to the incumbent concessioners because
they timely submitted amended proposals.” Id. at 21.
NPS’s reasoning essentially asserts, in a different guise, the same election-of-remedies
defense previously rejected by this Court in denying the agency’s motion to dismiss. See infra
Part III.B. Among the flaws in this reasoning is that the plaintiff actually sought, as complete
relief before the CFC, injunctive relief in the form of a remand for NPS to correct its
responsiveness finding about the incumbents’ proposals, Eco Tour I, 114 Fed. Cl. at 42, but the
CFC agreed with the argument presented by NPS “that the court lacks authority to grant Eco
Tour’s requested injunctive and declaratory relief ‘because 28 U.S.C. § 1491(b) does not apply
to concession contracts, and 28 U.S.C. § 1491(a) provides for only monetary relief,’” Eco Tour I,
at 39–40 (quoting from defendants’ briefing before CFC). 11 Consequently, the plaintiff was
“precluded from obtaining injunctive and declaratory relief,” id. at 42, and “limited to an award
of damages in the form of bid preparation costs,” id. at 40. The CFC’s correction of the NPS’s
erroneous treatment of the incumbents’ proposals triggered the statutory and regulatory
requirement of rejection of those proposals and presented NPS with two alternatives: either
award of the contracts to plaintiff, as the best offeror, or re-solicitation of bid proposals. See
Pl.’s Opp’n at 11 n.2 (noting that “[a]s a result of the CFC’s decision, NPS had two legal options
11
Ironically, having prevailed on this argument before the CFC, NPS, in an about-face, suggests now that the
CFC had authority to issue a remand, under either 28 U.S.C. § 1491(a)(2) or USCS Claims Ct. R. 52.2(a)-(b)(1), but
simply declined to exercise that authority. See Defs.’ Opp’n at 9 n. 8. Contrary to this characterization of the CFC’s
holding, the CFC made its reasoning clear that it believed the plaintiff’s requested remand was “beyond the scope
of” its authority. Eco Tour I, 114 Fed. Cl. at 42.
30
going forward: (1) award the contracts to Eco Tour; or (2) cancel the solicitation.”). In any
event, nothing in the CFC decision intimates that the errors in the bidding process were cured by
reimbursement of the plaintiff’s costs; rather, this remedy simply addressed, at least partially, the
prejudicial harm to the plaintiff “resulting from [NPS’s] arbitrary and capricious action.” Eco
Tour I, 114 Fed. Cl. at 43. Although the CFC was silent about the next steps that NPS was
required to take to remedy the agency’s errors in considering the incumbents’ non-responsive
proposals and allowing amendments to make the proposals responsive and to match the better
offer, as discussed above, the applicable statute and regulations made clear that these proposals
were ineligible for final awards. In short, any reliance by NPS on the plaintiff’s acceptance of a
monetary award as curing any of its errors during the bid process was entirely misplaced.
Finally, NPS’s argument still makes little sense given the chronology of events. NPS
insists that the “final decision” to award the disputed contracts to the incumbent concessioners
was made on September 4, 2013. Defs.’ Opp’n at 23–24. Since the plaintiff was not adjudged
entitled to reimbursement of its costs until after that date, in November 2013, and was not
actually reimbursed until even later, in the final judgment entered in April 2014, NPS simply
could not have understood the plaintiff to have obtained any, let alone “complete,” relief in
September 2013, when NPS says the award decision was made. In short, NPS cannot justify its
decision to permit the incumbents to amend their proposals in September 2013 because the
agency believed then that the plaintiff had received an adequate remedy for the agency’s
violation of the APA, when the CFC did not rule until November 2013 and the plaintiff did not
receive reimbursement for its bid costs until the following year, in April 2014.
* * *
31
The Court holds that NPS’s decision to permit the incumbent concessioners to amend
their non-responsive bids was contrary to the plain meaning of the relevant statute and
regulations and, therefore, arbitrary, capricious, an abuse of discretion and contrary to law. The
incumbents’ bid proposals were non-responsive, rendering the incumbents’ proposals ineligible
for consideration and the incumbents’ ineligible for the opportunity to meet the better terms of
the plaintiff’s proposal. NPS’s decision, even after the CFC held that the incumbents’ bids were
non-responsive, to nonetheless award the disputed contracts to the incumbent concessioners was
wrong.
B. NPS’S REQUEST FOR RECONSIDERATION OF DISMISSAL MOTION
IS DENIED
Even if the agency’s award of the disputed contracts to the incumbent concessioners is
found to be illegal under the APA, NPS nonetheless contends this suit is precluded under the
“election of remedies” doctrine by rehashing its previously rejected argument that the plaintiff
has “already elected its remedy in the CFC.” Defs.’ Opp’n at 17. Specifically, NPS asks the
Court to “reconsider its prior ruling” denying NPS’s motion to dismiss, contending that this
ruling was predicated on two “erroneous” allegations proffered by the plaintiff, which allegations
now at the summary judgment stage need no longer be assumed to be true. Id at 27–32. These
two purportedly “erroneous” allegations are “that: (1) ‘the NPS had not yet finalized its decision
to award the disputed contracts to the incumbent concessioners while the CFC action was still
pending’ and (2) ‘to the extent deemed necessary’ any contracts awarded under this action could
address any prior partial relief received by Eco Tour pursuant to the CFC[] lawsuit.” Id. at 22
(quoting Eco Tour II, 174 F. Supp. 3d at 334). The summary judgment record, however, does
not make NPS’s argument regarding application of the “election of remedies” doctrine any more
persuasive.
32
Plaintiff Did Not Delay Seeking Injunctive Relief
The plaintiff characterizes as “completely wrong” NPS view that “its September 3, 2013
[sic] selection decision was a final award,” Pl.’s Opp’n at 42; see also id. at 4 (“[A]t the time of
the CFC ruling, NPS had not awarded the contracts.”), since “the final award decision was not
made until July 16, 2014, when NPS decided not to cancel the solicitation but instead to sign the
illegal contracts, which decision was made well after the CFC invalidated NPS’s September 4,
2013 selection decision,” id. at 39. According to the plaintiff, “NPS’s regulations make it very
clear that NPS has not made a final award decision until it actually signs the contract (which it
did on July 16, 2014),” Pl.’s Opp’n at 39 (citing NPS regulations 36 C.F.R. §§ 51.3, 51.20), and,
consequently, the plaintiff “could not have filed an APA action prior to July 16, 2014,” id. NPS
counters that the plaintiff’s focus on the July 2014 final awards is incorrect since the plaintiff
should have sought “injunctive relief under the APA based on the September 4, 2013 award
decision,” while the CFC suit was pending. Defs.’ Opp’n at 23. The agency suggests that the
plaintiff could have challenged this September 2013 source selection, for example, by
“requesting to stay that [CFC] lawsuit before judgment was entered and seek relief in District
Court,” id. at 26, or “ask[ing] that [CFC] vacate, or hold in abeyance, its November 2013
decision while Eco Tour pursued injunctive relief in District Court to address the September 4,
2013 award decision,” id. at 31.
Regardless of which decision, the September 2013 source selection decision or the July
2014 final award of the disputed contracts, constitutes the requisite final agency action to support
an APA challenge, the principle thrust of NPS’s argument is that the plaintiff’s election to obtain
the CFC’s monetary judgment delayed consideration of the plaintiff’s instant request for
injunctive relief to either stop or to rescind the final award of the disputed contracts. Defs.’
Opp’n at 26 (faulting the plaintiff for “delay in seeking injunctive relief in an appropriate
33
forum”). The plaintiff counters that “it would be unfair to find fault with the conduct of Eco
Tour,” which acted promptly and vigorously, and also exhausted its financial resources, in filing
a bid protest seeking an injunction in what appeared based on existing case law to be the
appropriate forum, the Court of Federal Claims, only to have that court for the first time
determine that it could not issue injunctive relief in a bid protest challenging an NPS concession
contract.” Pl.’s Opp’n at 39–40.
Even if NPS were correct that the plaintiff could have sought injunctive relief in this
Court based on the September 2013 selection decision, Defs.’ Opp’n at 23, the agency draws the
wrong conclusion that the plaintiff unnecessarily delayed in seeking injunctive relief. The
plaintiff sought both monetary and injunctive relief before the CFC, Eco Tour I, 114 Fed. Cl. at
11, and could not have known until November 2013, that the CFC accepted the agency’s
arguments that the CFC lacked jurisdiction to issue the requested injunctive relief. Moreover, in
view of the CFC holdings regarding the non-responsiveness of the incumbents’ proposals, the
September 4, 2013 selection decision was a nullity since the critical bases for that decision were
found to be arbitrary and capricious. At that point, the plaintiff had little reason to seek to enjoin
that selection decision. Instead, under the mandates of the governing statute and regulations, if
NPS did not award the disputed contracts to the plaintiff as the best offeror, NPS should have
initiated a new solicitation of concession proposals, in which new solicitation the plaintiff may
have chosen to participate, after receiving monetary reimbursement for its participation in the
original flawed competition. If events had so transpired, the agency’s acute concern over the
plaintiff obtaining a windfall would have been eliminated.
The plaintiff’s goal since submission of its bid proposals was to obtain the disputed
contracts, not a windfall monetary award. Indeed, the plaintiff beseeched the agency simply to
34
comply with its own regulations and offered to forgo execution of the CFC judgment in
exchange for the disputed contracts, but NPS declined, expressing the view that it was “not
possible” to award the contracts to the plaintiff. AR 00011 (Letter, dated June 20, 2014, from
Regional Director, NPS Intermountain Region to plaintiff’s President, acknowledging plaintiff’s
efforts). At bottom, NPS urges this Court to find that, after prevailing on the merits before the
CFC, the plaintiff should have sought injunctive relief in this Court because the plaintiff should
have anticipated and expected that NPS would ignore the clear import of the CFC’s ruling and
proceed to violate its governing statute and its own regulations. It cannot be the case that
disappointed bidders are expected to make that assumption of government agencies, especially in
light of a clear court ruling. Consequently, the plaintiff cannot be expected to have filed suit in
this Court seeking injunctive relief after the CFC’s ruling but before NPS executed the disputed
contracts with the incumbent concessioners. NPS’s argument that the plaintiff failed to
challenge the September 4, 2013 decision in a timely manner is rejected.
Equitable Relief May Be Fashioned To Avoid A Windfall To the
Plaintiff
To bolster its argument that this Court should reconsider NPS’s selection-of-remedies
defense, the agency next asserts that “there is no basis for Eco Tour’s representation that any
contracts awarded in this action could provide reimbursement to NPS of the bid preparation costs
that NPS paid to satisfy the CFC judgment,” Defs.’ Opp’n at 29; see Eco Tour II, 174 F. Supp.
3d at 335 (finding that “any contract awarded under this action c[an] address any prior partial
relief received by Eco Tour”). As support for this assertion, NPS relies on two NPS regulations
raised for the first time in this summary judgment briefing. Since neither of the cited regulations,
35
however, would bar the fashioning of equitable relief to address any potential windfall to the
plaintiff, this argument is unavailing. 12
The first regulation cited by NPS as precluding the use of any mechanisms to provide
equitable relief to the plaintiff while avoiding a windfall is 36 C.F.R. §51.19. See Defs.’ Opp’n
at 29. This regulation provides, in pertinent part: “[e]xcept for incorporating into the concession
contract appropriate elements of the best proposal, the Director must not award a concession
contract which materially amends or does not incorporate the terms and conditions of the
concession contract as set forth in the prospectus.” According to NPS, amending the concession
contract “to allow for the reimbursement to the government of the previously paid bid
preparation costs” would amount to a material change in the contract. Defs.’ Reply at 11; see
also Defs.’ Opp’n at 24 (citing 36 C.F.R. § 51.19). Yet, the prospectus did not actually require a
specific franchise fee, but only required a fee of “at least” 3% of gross revenues or $500,
whichever was greater. AR 24. As the plaintiff points out, the offered franchise fee of 4.25%
“could be increased above what Eco Tour bid in the first year (or annually over the contracts’
full term) to include the $36,250 in funds which NPS previously paid to Eco Tour,” by simply
stating that the plaintiff agrees to pay the $36,250, plus the 4.5% franchise fee, which results in
no material amendment to the prospectus or proposed contract. Pl.’s Opp’n at 16. This plan
12
NPS notes that it stands by its original argument that “the Court cannot order the agency to award the
contracts to Eco Tour because the decision to award a contract is within the agency’s discretion.” Defs.’ Opp’n at
24 n.13. While generally an agency may not be compelled to take discretionary action, see Norton v. South Utah
Wilderness Alliance, 542 U.S. 55, 65 (2004) (when action is left to an agency's discretion, a court “has no power to
specify what the action must be”), an exception allows such an order in the government contracting context when “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 (“Delta Data”), 744 F.2d 197, 206 (D.C. Cir. 1984));
see also LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Abraham, 347 F.3d 315, 320 (D.C. Cir. 2003) (same, quoting
Delta Data). This is precisely the situation here. Given that NPS regulations required that the disputed contracts be
awarded to the bidder submitting the “best” proposal, and that the plaintiff submitted the “best” proposal for both
contracts, compared to non-responsive proposals submitted by the incumbents, but for NPS’s arbitrary and
capricious actions, the incumbents’ proposals should have been rejected and the disputed contracts would have been
properly awarded to the plaintiff. Consequently, the Court has the power to direct the award of the contracts, should
the plaintiff be found entitled to such relief.
36
would simply return the plaintiff to the position to which it was entitled absent the agency’s
violation of the APA, without any material amendment to “the terms and conditions of the
concession contract,” under § 51.19. Thus, this regulation cannot be used to shield NPS from
providing a full remedy to the plaintiff prejudiced by the agency’s invalid bidding process.
NPS likewise cites a second regulation, titled “Simplified Concession Contracts;
Revision,” which outlines standard terms for agency concession contracts, as barring any attempt
to modify a proposed franchise fee. Defs.’ Reply at 11–12 & n.5. According to NPS, adjustment
of a franchise fee is only permitted in light of “extraordinary, unanticipated changes,” a term that
is “specifically defined in the applicable regulations and does not include reimbursing the agency
for previously paid bid preparation costs.” Id. at 12 n.5 (citing 65 Fed. Reg. 44,894 at 44,902–
03). The cited regulation provides “simplified versions of the standard concession contract,”
which “serve as a guideline for the form of concession contracts used to authorize smaller
concession operations.” 65 Fed. Reg. 44,894 at 44,894. One optional term would authorize “a
reconsideration and possible subsequent adjustment of the franchise fee,” in the event of
“extraordinary, unanticipated changes,” which is defined as “unanticipated changes from the
conditions existing or reasonably anticipated before the effective date of this CONTRACT which
have or will significantly affect the probable value of the privileges granted to the Concessioner
by this CONTRACT.” Id. at 44,903 (capitalization in original). 13
As an initial matter, given that the plaintiff has no contract with NPS, this language
restricting when a franchise fee amendment would be authorized for an effective contract, is
currently inapplicable. Furthermore, even if the cited regulation were somehow pertinent here, it
is unhelpful to NPS. This optional contract term actually authorizes adjustments to franchise
13
This language is incorporated into the disputed contracts executed with the incumbent concessioners. AR
00025-26, 00059-60.
37
fees, and while not explicitly referencing an adjustment to allow a bidder to reimburse judicially
ordered bid preparation costs, the definition does not exclude it either. Tellingly, NPS does not
actually quote any of the language defining “extraordinary, unanticipated changes” in its
briefing, but relies entirely on its own characterization that the definition “does not include
reimbursing the agency for previously paid bid costs.” Defs.’ Reply at 12 n.5. 14
In sum, NPS has presented no persuasive argument based on its regulations that preclude
conditioning the award of the injunctive relief sought by the plaintiff on repayment of the funds
the plaintiff has already received, resolving any concerns about the plaintiff receiving a windfall.
Accordingly, NPS’s position that the Court should reconsider its prior denial of the agency’s
election-of-remedies defense and grant it summary judgment is rejected.
C. FASHIONING EQUITABLE RELIEF ABSENT INCUMBENT
CONCESSIONERS
The plaintiff has succeeded on the merits but that fact does not automatically entitle the
company to injunctive relief as of right. Winter v. NRDC, Inc., 555 U.S. 7, 32 (2008) (“An
injunction is a matter of equitable discretion; it does not follow from success on the merits as a
matter of course.”). To demonstrate entitlement to injunctive relief, a party “must make a clear
showing that four factors, taken together, warrant relief: [] success on the merits, [] irreparable
harm in the absence of [injunctive] relief, a balance of the equities in its favor, and accord with
the public interest.” League of Women Voters of the United States v. Newby, 838 F.3d 1, 6 (D.C.
Cir. 2016) (quoting Pursuing Am.’s Greatness v. FEC, 831 F.3d 500 (D.C. Cir 2016)); see also
see also Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 785 F.3d 684, 694 (D.C. Cir.
14
NPS rejects the plaintiff’s simple solution for avoiding a windfall by conditioning any equitable relief on
the return to NPS of the funds received as reimbursement for the plaintiff’s bid costs. Pl.’s Opp’n at 15-16. NPS
contends without support that the CFC’s “final judgment would then become an outstanding liability of NPS” and
returning the money would “negate the binding judgment issued by the CFC.” Defs.’ Opp’n at 25. If NPS is correct
on this point, then structuring the plaintiff’s contractual obligations with NPS to ensure reimbursement of the funds
would be the only option.
38
2015) (discussing entitlement to a permanent injunction). “If a less drastic remedy . . . [is]
sufficient to redress [the] injury, no recourse to the additional and extraordinary relief of an
injunction [is] warranted.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66
(2010). Although the plaintiff clearly meets three factors—success on the merits, irreparable
harm, and accord with the public interest—evaluating the balance of the equities poses a
particular problem, as it highlights the impact that any equitable relief may have on the
incumbent concessioners, who are not parties to this case.
The Plaintiff Satisfies Three Factors For Injunctive Relief
The plaintiff has prevailed on the merits of its claims before this Court, as it did before
the CFC, and hence has met the first factor for injunctive relief. See supra Part III.A.2. The
plaintiff has also demonstrated that its injuries are irreparable for at least two reasons. First, the
harm to the plaintiff is certain but difficult to value. Such harm is irreparable. CSX Transp. v.
Williams, 406 F.3d 667, 673 (D.C. Cir. 2005) (quoting Danielson v. Local 275, 479 F.2d 1033,
1037 (2d Cir. 1973)); see also Bell Helicopter Textron, Inc. v. Airbus Helicopters, 78 F. Supp. 3d
253, 274–75 (D.D.C. 2015) (damages that “defy attempts at valuation” are irreparable (citing i4i
Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 862 (Fed. Cir. 2010) (“Difficulty in estimating
monetary damages is evidence that remedies at law are inadequate.”). A concessioner is not
guaranteed any particular profit under the concession contract and, thus, determining the value of
what the plaintiff has lost in profits is difficult, if not impossible.
Second, if NPS had properly rejected the non-responsive proposals of the incumbent
concessioners and awarded the disputed contracts to the plaintiff with the “best proposal,” the
plaintiff would be eligible for treatment as a preferred offeror in the future in the next round of
contracting. See 36 C.F.R. § 51.36 (“A concessioner is a preferred offeror if . . . [among other
things], [t]he concessioner was a satisfactory concessioner during the term of its concession
39
contract.”). Thus, as a consequence of NPS’s improper actions, the plaintiff has been put in a
less favorable position as a bidder for the NPS contracts than it would have been as an incumbent
concessioner. Absent equitable relief, this injury simply will not be redressed.
The plaintiff has also demonstrated that the public interest favors granting relief. As the
plaintiff points out, not only is the public interest served by ensuring that “the government
obtains the most advantageous contracts by complying with the procedures which Congress and
applicable regulations have provided,” Pl.’s Opp’n at 27 (quoting Delta Data Sys. Corp., 744
F.2d at 206), but Congress has expressed a clear policy preference against rights of renewal
absent specified, exceptional circumstances, id. at 29 (citing Circle Line-Statue of Liberty Ferry,
Inc. v. United States, 76 Fed. Cl. 490, 491 (2007) (“Having found that true competition simply
did not exist in the award of concession contracts, Congress reversed the renewal preference
policy set out in [previous legislation] by directing that ‘the Secretary shall not grant a
concessioner a preferential right to renew a concessions contract, or any other form of preference
to a concessions contract,’” except in limited circumstances (quoting 16 U.S.C. §5952(7)). Even
in the limited circumstances where preferential right of renewal is statutorily authorized, an
incumbent concessioner is eligible to exercise that right “only if the concessioner has submitted a
responsive proposal.” 16 U.S.C. §5952(8).
Nevertheless, granting the plaintiff injunctive relief in the form of rescission of the
disputed contracts and either an award to the plaintiff or resolicitation of proposals would, as
NPS indicates, “be potentially disruptive to the public.” Defs.’ Opp’n at 22. NPS does not
dispute, however, that equitable relief may be fashioned to avoid such concerns, for example, by
“delay[ing] granting injunctive relief until after the upcoming winter season such that Eco Tour
would begin operating in the winter season of 2017-2018.” Defs.’ Reply at 16. Consequently,
40
concerns over disruption of concessioner services to the public, while legitimate, may be
adequately addressed and do not outweigh the weighty public interests in ensuring that federal
agencies engage in fair competitive bidding processes that comport with both binding statutory
and regulatory law and judicial rulings.
Balance of Equities Favors the Plaintiff
The parties vigorously dispute whether the equities at issue entitle the plaintiff to its
requested injunctive relief. The plaintiff, having clearly succeeded on the merits, asserts its
diligence in pursuing relief, not only before this Court, but also before the CFC and through non-
litigation avenues, as support for the conclusion that the equities favor granting an injunction.
Pl.’s Opp’n at 39–40 (noting that plaintiff “acted promptly and vigorously, and also exhausted its
financial resources in pursuing relief”). In opposition, NPS raises three arguments as to why the
equities are against the plaintiff, but each of these arguments fall short.
First, NPS asserts that “the equities do not favor Eco Tour because it did not act
expeditiously in seeking injunctive relief from this Court,” Defs.’ Opp’n at 22, but, as discussed
supra in Part III.B.1, NPS’s repeated argument about the plaintiff’s delayed action is unavailing.
The cases relied upon by NPS for this assertion are inapposite. Defs.’ Opp’n at 23–26. For
example, NPS cites Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838 (D.C. Cir.
1982), for the propositions that success on the merits does not necessitate an injunction, Defs.’
Opp’n at 19, and that partial performance of a contract is a substantial factor in denial of
injunctive relief, id. at 23. In that case, however, the D.C. Circuit reversed the district court’s
denial of an injunction and rejected the claim of purported delay by a contract bidder on facts
analogous to this case. Id. at 846. 15 In Gull Airborne, a contract bidder challenged a decision by
15
NPS also relies on Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975), where, a 44-delay in
seeking an injunction was found to be “inexcusable,” warranting denial of injunctive relief. Defs.’ Opp’n at 23.
41
the Navy to award a contract, first by bringing a challenge directly to the Navy, then in the
General Accounting Office, and finally in federal court. Id. at 840–41. The district court denied
injunctive relief, holding that the plaintiff delayed too long in filing suit in federal court, but the
Circuit reversed, noting with approval the plaintiff’s “persistent attempts to use the
administrative process to resolve its dispute,” recognizing that “it would be an injustice to
unsuccessful bidders if we now penalized them merely for exhausting th[eir] administrative
remedies,” and holding that the plaintiff’s “many attempts to receive administrative relief served
to put the government on notice that [the plaintiff] was not sleeping on its rights.” Id. at 844 &
n.8. Similarly, the plaintiff in this case brought suit in the CFC almost immediately after being
informed that NPS intended to award the disputed contracts to the incumbent concessioners,
continued to pursue relief through non-litigation means, and filed suit in this Court after its
efforts proved unsuccessful. Under Gull Airborne, the plaintiff’s multiple actions to protect its
interests militate in favor of injunctive relief. 16
Unlike the plaintiff in this case, however, the plaintiff in Fund for Animals waited until after the issue was moot to
file suit. Thus, the deciding factor in that case was not the length of the delay but the context of the delay.
Similarly, NPS’s reliance on Open Top Sightseeing USA v. Mr. Sightseeing, LLC, Defs.’ Opp’n at 24, 26 (citing 48
F. Supp. 3d 87 (D.D.C. 2014)), is misplaced. There, this Court held that a plaintiff unreasonably delayed by seeking
a preliminary injunction “more than thirty days after the defendants began engaging in the activity the plaintiffs”
sought to enjoin, and asked to postpone the injunction hearing indefinitely, or alternatively, for at least ninety-five
days. Id. at 90-92. Unlike the plaintiff in Open Top, however, as explained supra Part III.B.1, the plaintiff did not
delay challenging NPS’s actions.
16
In addition to challenging the length of time between the conclusion of the CFC proceedings and initiation
of this suit, NPS takes issue with the order in which the plaintiff’s suits were filed. NPS argues that the plaintiff was
required to first bring suit in the district court, and if unsuccessful in that form, [] then file in the CFC to obtain
monetary relief.” Defs.’ Opp’n at 11 n.9 (citing United States v. Tohono O'Odham Nation, 563 U.S. 307, 318
(2011)). NPS is wrong. The Supreme Court in Tohono O’Odham held that 28 U.S.C. §1500, which strips the CFC
of jurisdiction over “any claim for or in respect to which” a plaintiff has a pending action in “any other court,” does
not permit simultaneous actions in the CFC and district court regardless of relief sought. 563 U.S. at 318 (“The
holding here precludes the CFC from exercising jurisdiction over the Nation's suit while the District Court case is
pending.”). Since neither court has the jurisdiction to provide complete relief over certain challenges to agency
action, the Tohono O’Odham Court sanctioned successive suits before the CFC and district court, barring statute of
limitations issues. See id. at 316–18; id. at 322 (“[A] plaintiff seeking both money damages and injunctive relief to
remedy distinct harms arising from the same set of facts may be forced to file actions in both the CFC and federal
district court.” (Sotomayor, J., concurring)); see also Havens v. Mabus, 759 F.3d 91, 97-98 (D.C. Cir. 2014) (noting
that claim preclusion only bars a subsequent lawsuit “involving the same claims or cause of action” where a “final
valid judgment on the merits” was issued by a “court of competent jurisdiction” to provide complete relief); 18B
42
Second, NPS argues that the plaintiff created concerns about a potential windfall through
its litigation choices and “the equities do not favor Eco Tour because it . . . would receive a
windfall if it was awarded the contracts.” Defs.’ Opp’n at 22. Not only has this Court now
rejected NPS’s windfall argument twice, see Eco Tour I, 174 F. Supp. 3d at 336; supra Part
III.B.2, but NPS fails to recognize its own contributions to creating the situation in which it is
now mired, see Lockheed Martin Corp. v. United States, 833 F.3d 225, 240 (D.C. Cir. 2016)
(rejecting government’s “double-payment concern” as to an agreement made with private
contractor under the Comprehensive Environmental Response, Compensation, and Liability Act
because “it [wa]s a problem of the government’s own making”); Crassociates, Inc. v. United
States, 95 Fed. Cl. 357, 391 (2010) (noting that asserted harms to the government and the
awardee were “of the [government]’s own making” and thus did not weigh heavily in injunctive
relief analysis). Shortly after the November 2013 CFC ruling, the plaintiff offered to forgo
payment of the CFC judgment in exchange for award of the disputed contracts to the plaintiff as
the best offeror, a solution NPS rejected as “not possible.” AR 00011 (Letter, dated June 20,
2014, from Regional Director, NPS Intermountain Region to plaintiff’s President). After
rejecting the plaintiff’s proposal and rather than cancelling and resoliciting the contracts—a
course of action that would have precluded any windfall concerns—NPS then went on to violate
its own clear regulations and award the contracts to the incumbents. By taking this course of
action, NPS not only inflicted irreparable injury on the plaintiff, but also unnecessarily fueled
concern over a potential windfall to the plaintiff and contributed to a situation where the
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 4412 (3d ed.)
(“[A] litigant should not be penalized for failing to seek unified disposition of matters that could not have been
combined in a single proceeding.”). While the Tohono O’Odham Court did not address the order in which such
successive suits may be brought, NPS’s argument that filing suit first in the CFC “creates the potential for a
windfall,” Defs.’ Opp’n at 11, is no more than a rehash of its inevitable windfall argument, which this Court has
rejected. See infra Part III.B.2.
43
contractual expectations of the incumbent concessioners are at risk. The agency’s decisions,
beginning with its summary rejection of the plaintiff’s legitimate concerns over the non-
responsiveness of the incumbents proposals in July 2013, and ending with the final awards of the
disputed contracts to the incumbents, despite the CFC’s rulings invalidating the legal basis for
those awards, created the current quagmire and pushes the equities more in favor of the plaintiff.
Finally, NPS argues that disrupting the contracts “could subject the government to
potential litigation from one or both of those concessioners, which also would be contrary to the
public interest.” Defs.’ Reply at 16–17. This concern is purely speculative and, consequently,
does not outweigh the concrete and real equities favoring the plaintiff. Comm. of 100 on the Fed.
City v. Foxx, 87 F. Supp. 3d 191, 220 (D.D.C. 2015) (holding that “balance of the equities
tip[ped] decidedly” against party whose asserted harms were “speculative at best”); Debt Buyers’
Ass’n v. Snow, 481 F. Supp. 2d 1, 15 (D.D.C. 2006) (refusing to weigh asserted speculative harm
in injunctive relief analysis); Tozzi v. EPA, 148 F. Supp. 2d 35, 50 (D.D.C. 2001) (weighing, “in
balancing interest between the parties,” demonstrated harm more heavily than “speculative
reputational and economic loss”).
In sum, none of NPS’s arguments provide a reason to deny the plaintiff equitable relief
and, to the contrary, NPS’s concerns about a windfall to the plaintiff and possible litigation with
the incumbent concessioners are problems of its own making. Thus, on balance between the
parties in this case, the equities clearly favor the plaintiff.
Fashioning Appropriate Equitable Relief Absent Incumbent
Concessioners and Without Detailed Proposals
Two related concerns require discussion and supplemental briefing from the parties
before injunctive relief may be awarded in this case: first, whether the incumbent concessioners
must be given an opportunity to participate in this litigation and, second, specific proposals for
44
mitigating any adverse impact of equitable relief on the public and the incumbents. Each of
these concerns are addressed seriatim below.
(a) Additional Briefing Required Regarding Absent Incumbent Concessioners
In assessing the equities for requested injunctive relief, the impact on any interested third
parties must be considered. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297
(D.C. Cir. 2006) (explaining that party seeking preliminary injunctive relief must show, inter
alia, “that an injunction would not substantially injure other interested parties”). Since the
plaintiff seeks rescission of the disputed contracts, the incumbent concessioners’ substantial
interests in those contracts are directly implicated in their absence. Yet, the parties only briefly
mention this possible impact on the incumbent concessioners’ contractual interests, and none
addresses whether those interests are sufficiently significant to require that the incumbents be
joined in this action, under Federal Rule of Civil Procedure 19. For example, NPS’s limited
discussion only asserts, without elaboration, that “invalidat[ing] the contracts . . . could harm the
incumbent concessioners who have been performing under the contract for two years and have
incurred costs in reliance on those contracts.” Defs.’ Opp’n at 22 (citing Defs.’ Mot., Ex. 4,
Decl. Jennifer Parker, dated July 28, 2016 ¶ 28, ECF No. 27-4 (“Both concessioners signed their
contracts with the understanding that they would be able to operate their business in the park for
ten years,” and the concessioners “hire and train staff and purchase necessary supplies and
equipment during the off season.”)). The plaintiff’s discussion is similarly brief, positing that the
requested equitable relief “would not be unfair to [the] incumbents” because they “have actually
benefitted by obtaining two additional years of profits,” and discounting as “mere[] speculat[ion]
that invalidating the contracts could harm the incumbents.” Pl.’s Opp’n at 36.
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The parties have not moved to join the incumbents as parties to this suit, nor have the
incumbents sought to intervene. Nonetheless, courts have an “independent duty to raise a Rule
19(a) issue sua sponte.” Cook v. FDA, 733 F.3d 1, 6 (D.C. Cir. 2013) (internal quotation and
alteration omitted). Federal Rule of Civil Procedure 19 provides that “[a] person. . . must be
joined as a party if . . . that person claims 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 or leave an existing party subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the
interest.” FED. R. CIV. P. 19(a)(1)(B)(i) (emphasis added). Rule 19 mandates that “[i]f a person
has not been joined as required, the court must order that person be made a party.” Fed. R. Civ.
P. 19(a)(2) (emphasis added). Thus, if the required party has not chosen to intervene, the rule
provides that the party “who refuses to join” a case in which they are a required party may
nevertheless be joined. Id.
Determining whether a person is a required party in a lawsuit is a fact-specific inquiry
that can only be determined in the context of particular litigation. Rep. of Philippines v.
Pimentel, 553 U.S. 851, 863 (2008) (“[T]he issue of joinder can be complex, and determinations
are case specific.”). While “Rule 19 precedent is admittedly scant,” Nanko Shipping, USA v.
Alcoa, Inc., 850 F.3d 461, *9 (D.C. Cir. 2017), in actions involving contractual rights, courts
have frequently found that the parties to a contract are required parties within the meaning of
Rule 19, see, e.g., Ward v. Deavers, 203 F.2d 72, 75 (D.C. Cir. 1953) (“There is a general rule
that where rights sued upon arise from a contract all parties to it must be joined.”); Corsi v. Eagle
Publ'g, Inc., No. 1:07-CV-02004ESH, 2008 WL 239581, at *4 (D.D.C. Jan. 30, 2008) (“[M]any
court decisions [] have concluded that an absent contracting party. . . must be joined under Rule
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19(a).” (citing cases)); 17 see also 5C Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, FEDERAL PRACTICE AND PROCEDURE § 1613 (3d ed. 2017) (“In cases seeking
reformation, cancellation, rescission, or otherwise challenging the validity of a contract, all
parties to the contract probably will have a substantial interest in the outcome of the litigation
and their joinder will be required.”); cf. Nanko Shipping, USA, 850 F.3d at *9 (finding that
assignor of contractual rights was not a necessary party under Rule 19).
In the event that the plaintiff is granted its requested equitable relief of rescission and
award to the plaintiff of the disputed contracts, the incumbent concessioners’ interests in those
contracts would be “impair[ed] or impede[d].” Yet, their contractual rights are being considered
without their participation. While the purely legal question of whether NPS violated the APA
may be resolved without requiring the joinder of the incumbent concessioners, see Ervin &
Assocs., Inc. v. Dunlap, 33 F. Supp. 2d 1, 11-12 (D.D.C. 1997) (holding, in a government
contract dispute, that the court could resolve “constitutional and statutory dispute[s]” without
joinder of non-party contract recipients), the incumbents’ interests are inextricably bound up in
the fashioning the appropriate relief to which the plaintiff is entitled to remedy the agency’s
violation of the APA. Given this circumstance, the parties are directed to explain satisfactorily
whether joinder of the absent incumbents as parties to this lawsuit is required under Rule 19 at
this stage of the litigation. As the D.C. Circuit recently explained, this rule operates to
“promote[] fair treatment of nonparties in certain circumstances where their interests, and
particularly their due process rights, are at risk from litigation between others.” Nanko Shipping,
17
The language of Rule 19 was amended in 2007 “as a part of the general restyling of the Civil Rules . . .
These changes are intended to be stylistic only. FED. R. CIV. P. 19 2007 advisory committee’s note. As a result, the
words “necessary” and “indispensable,” which were used pre-2007,” have been replaced with the word “required.
Vann v. Kempthorne, 534 F.3d 741, 745 (D.C. Cir. 2008). Since the 2007 amendments were intended to be stylistic
only, reliance on cases from both before and after the amendments is appropriate.
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USA, 850 F.3d at *7; see also White v. Univ. of Cal., 765 F.3d 1010, 1026–1027 (9th Cir.
2014)(“Rule 19 is designed to protect ‘a party's right to be heard and to participate in
adjudication of a claimed interest, even if the dispute is ultimately resolved to the detriment of
that party.’” (quoting Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992)). The
interests of the absentee incumbents may be fully represented by the NPS, which has vigorously
argued for the status quo, see Ramah Navajo Sch. Bd. v. Babbitt, 1996 U.S. App. LEXIS 15760,
38–41 (D.C. Cir. 1996)(“If the nonparties’ interests are adequately represented by a party, the
suit will not impede or impair the nonparties’ interests, and therefore the nonparties will not be
considered ‘necessary.”), but if those incumbents should nevertheless be joined, the parties
should address whether joinder is infeasible. Finally, “if the absentee should but cannot be
joined, may the lawsuit nonetheless proceed ‘in equity and good conscience’” to fashion
equitable relief? Nanko Shipping, USA, 850 F.3d at *6–7.
While cognizant “that administrative litigation commonly inflicts drastic effects on
absent third parties” and such “potential unfairness seems in accord with what we often tolerate,”
National Wildlife Federation v. Burford, 835 F.2d 305, 332–333 (D.C. Cir. 1987)(J. Williams,
concurring and dissenting), Rule 19 provides not only an avenue for the inclusion of the
incumbent concessioners in this case, but may in fact mandate their joinder.
(b) Additional Briefing Required Regarding Specific Form of Equitable Relief
NPS has proposed only one solution should the plaintiff prevail on the merits of its claim
in this lawsuit: that the plaintiff be denied injunctive relief entirely, thereby limiting this injured
party to reimbursement for costs incurred in preparing the “best proposal” for Contracts 24 and
32. Defs.’ Opp’n at 15–19 (arguing “there is discretion in the District Court to decline to
consider the prayer for injunctive relief, and to leave the bidder solely to his damages remedy”
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(citing M. Steinthal & Co. Inc. v. Seamans, 455 F.2d 1289, 1300 (D.C. Cir. 1970))); see also
Nat’l Federation Fed. Emps. v. Cheney, 883 F.2d 1038, 1053 (D.C. Cir 1989) (holding that a
successful disappointed bidder must still prove entitlement to injunctive relief (citing Scanwell
Laboratories, Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970)). NPS urges that the Court be
satisfied with the status quo, where the agency executed the disputed contracts in flagrant
disregard of the judicial finding that the bidding process was flawed and illegal as well as its own
governing statute and regulations, all while refusing to consider the prevailing plaintiff’s
suggestions for alternative remedies to a monetary judgment. This result would be troubling not
just because of the hollow victory afforded the plaintiff, but also because the message to agencies
would be that violations of statutory provisions and regulations designed to ensure fairness in
considering bid proposals may occur with virtual impunity, no matter the cost to the public
denied the benefits of the “best” bid proposal by the best offeror.
At the same time, the plaintiff likewise proposes its preferred course of action: that the
disputed contracts should be rescinded in their entirety, the plaintiff “should be awarded the
contracts” by this Court, and the contracts should be “for the full 10 year terms.” Pl.’s Opp’n at
35–36. 18 To minimize the impact on the incumbent concessioners and the public, the plaintiff
proposes only that the termination of the disputed contracts and the directed award to the
plaintiff be delayed for a limited season. Pl.’s Opp’n at 33 (“[F]or the sake of ensuring
uninterrupted services to the public, Eco Tour is willing to begin operating under the contracts in
the Winter Season of 2017-2018.”). Given that visitors to the parks may have already made
18
The plaintiff also suggests that “[i]n the alternative to explicitly directing award of the contracts to Eco
Tour, the Court could issue an order declaring that NPS violated the law . . . invalidating the contracts and directing
NPS to proceed in accordance with applicable regulations set out at 36 C.F.R. § 51.31 which would mean that NPS
must award the contracts to the best offeror, which was the plaintiff.” Pl.’s Opp’n at 35. The difference between
directing the award to plaintiff and directing the award to the best offeror, which the parties agree was the plaintiff,
is only one of methodology, not outcome.
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reservations with the incumbent concessioners, and that the incumbents have likely incurred
reliance costs in carrying out their obligations under the disputed contracts, the impact of
granting the plaintiff’s requested relief may have a more significant effect than the plaintiff
acknowledges. 19
Beyond retention of the status quo, as the agency urges, and awarding the disputed
contracts directly to the plaintiff after some limited time-lag, the parties offer little guidance
regarding the fashioning of an appropriate remedy. Here, even if rescission of the disputed
contracts is granted either immediately or at some point in the future, the Court must consider
any changes in current circumstances over the last four years that bear on the appropriate next
steps, including whether the agency should be directed to award the contracts to the plaintiff, or
to reconsider the original solicitation or engage in a new solicitation of bid proposals. See, e.g.,
Applied Bus. Mgmt. Sols., Inc. LLC v. United States, 117 Fed. Cl. 589, 609 (2014) (ordering
reconsideration of submitted bids after setting aside contract that was awarded contrary to
agency regulations); FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 401–03
(2011) (permitting agency to choose between two courses of action that would remedy the harm
found, and noting that “[w]hat course of action [the agency] choose to pursue after [the] contract
award is cancelled . . . is not for this court to decide.”); Hunt Bldg. Co. v. United States, 61 Fed.
Cl. 243, 280 (2004) (“[T]he Court does not direct the Air Force to go back to square one and
issue a wholly new solicitation [but instead] sets aside the selection [of the awardee] and directs
the Air Force to reassess its needs, amend the Solicitation accordingly (or not) and evaluate final
proposal revisions consistent with that Solicitation.”); Cardinal Maint. Serv. v. United States, 63
Fed. Cl. 98, 111 (2004) (ordering resolicitation of improperly awarded contract, which “will
19
Local Rule 7(c) requires that “[e]ach motion and opposition shall be accompanied by a proposed order.”
LCvR 7(c). The plaintiff, however, did not file a proposed order along with its motion for summary judgment.
50
enforce a process whereby bidders can be confident that the contracts on which they bid will be
the contracts which are awarded and performed” and which “will also promote the integrity of
the [solicitation] process by holding the government accountable for its actions.”). For example,
has the agency made any improvements to the bidding process in the last few years that favor the
resolicitation approach? If that approach is taken, should the incumbent concessioners be
entitled to any preferences in any resolicitation? See, e.g., Naplesyacht.com, Inc. v. United
States, 60 Fed. Cl. 459, 462 (2004) (noting that awardees’ contracts were “close to being
substantially performed,” and thus declining to grant injunctive relief,” but holding that “in the
event the [agency] decides to issue a solicitation for” a similar contract in the future, the
incumbents were not to be afforded “any preference or advantage for having been selected for
the [disputed contract].”). In addition, has the plaintiff’s financial condition remained
sufficiently strong to meet the financial requirements of the original prospectus for the disputed
contracts? In light of the potential adverse effect that rescission of the disputed contracts may
have on pending customer reservations, for what period should the incumbent concessioners be
permitted to continue operating under the disputed contracts? See, e.g., Red River Holdings,
LLC v. United States, 87 Fed. Cl. 768, 798 (2009) (limiting disputed contract to a set term and
voiding the option for the incumbent to extend the contract, after which a new solicitation was
ordered).
In considering the myriad forms that the equitable relief to which the plaintiff is entitled
may take, the Court is constrained by both the limited guidance from the parties and lack of input
from the incumbent concessioners, for example, regarding the specific harms they and their
customers face and mechanisms available to mitigate those harms. Thus, without supplemental
briefing, the Court is unable properly to fashion equitable relief.
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IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion for summary judgment is granted insofar
as the plaintiff is entitled (1) to a declaration that NPS acted arbitrarily and capriciously and
contrary to law in awarding the disputed contracts to the incumbent concessioners, in violation of
the APA; and (2) to equitable relief, since the plaintiff has satisfied each factor of the injunctive
relief inquiry. Fashioning that relief, however, requires supplemental briefing from the parties
addressing whether the incumbent concessioners should be joined as parties, under Federal Rule
of Civil Procedure 19, and any practical considerations pertinent to the injunctive relief. The
parties are directed to confer and, by April 28, 2017, submit jointly to the Court a proposed
schedule for this supplemental briefing. The defendants’ cross motion for summary judgment is
denied.
An Order consistent with this Memorandum Opinion shall be filed contemporaneously.
Date: April 18, 2017
________________________
BERYL A. HOWELL
Chief Judge
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