Universal Protection Service, Lp v. United States , 126 Fed. Cl. 173 ( 2016 )

REDACTED OPINION
In the United States Court of Federal Claims
No. 16-126C
Filed: April 7, 2016
Redacted Version Issued for Publication: April 26, 20161
* * * * * * * * * * * * * *
* *
UNIVERSAL PROTECTION * Post-Award Bid Protest; Motion to
SERVICE, LP, * Dismiss; Standing; Successor-in-
* Interest.
Protestor, *
v. *
*
UNITED STATES, *
*
Defendant, *
*
v. *
*
COMMAND SECURITY CORP., *
*
Defendant-Intervenor. *
*
* * * * * * * * * * * * * *
Kevin P. Mullen, Jenner & Block LLP, Washington, D.C., for protestor. With him
was Ethan E. Marsh, Charles L. Capito, and R. Locke Bell, Jenner & Block LLP,
Washington, D.C.
Matthew P. Roche, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Robert
E. Kirschman, Jr., Director, Commercial Litigation Branch, and Douglas K. Mickle,
Assistant Director, Commercial Litigation Branch, Department of Justice. Of counsel were
Michelle Windmueller and Richard Y. Rho, Attorneys, United States Postal Service.
Scott A. Schipma, Winston & Strawn, LLP, Washington, D.C., for defendant-
intervenor. With him was Bryant E. Gardner, Winston & Strawn, LLP, Washington, D.C.
1 This opinion was issued under seal on April 7, 2016. The parties were asked to propose
redactions prior to public release of the opinion. This opinion is issued with some of
redactions that the parties proposed in response to the court’s request. Words which are
redacted are reflected with the notation: “[redacted].” The name of the license which the
parties’ requested be redacted is reflected as: “[ABM Security Services’ license].”
OPINION
HORN, J.
The protestor, Universal Protection Service, LP (Universal), filed a bid protest in
this court on January 27, 2016, challenging the United States Postal Service’s (USPS)
award of a contract to Command Security Corporation (CSC or Command)2 under
Solicitation No. 2B-14-A-0078 (the Solicitation). Protestor raises six counts in this court
arguing that the evaluations of protestor’s and intervenor CSC’s proposals were flawed,
the best value decision was arbitrary and capricious, and that the agency “conducted
unequal and inadequate discussions with ABM [ABM Security Services, Inc.].”3
Therefore, protestor seeks temporary relief from the court restraining “USPS from
transitioning the NLECC [National Law Enforcement Communications Centers] and
Security Guard services contract to CSC pending the Court's resolution of this bid
protest,” and to “[p]ermanently enjoin USPS and CSC from performing the NLECC and
Security Guard services contract until USPS reopens the procurement process, solicits
revised proposals, evaluates the revised proposals, and makes a new award decision
consistent with the Solicitation.” Protestor also seeks an order declaring the contract
award to CSC to be “arbitrary and capricious, an abuse of discretion, and a violation of
procurement law and policy.”
FINDINGS OF FACT
On July 25, 2014, the USPS issued a purchase plan, establishing an intent to
obtain a contractor or contractors for two services: (1) staffing and operating the National
Law Enforcement Communications Centers (NLECC) in Dulles, VA and Fort Worth, TX;
and (2) Security Guard Services at approximately 57 locations across the United States
and its territories.4 Securitas Critical Infrastructure Services, Inc. (Securitas) was the
2CSC filed a motion to intervene in the above captioned protest on January 27, 2016,
which was granted on January 29, 2016.
3 As discussed at length below, on October 26, 2015, there was a sale of the assets of
ABM Security Services, Inc. (ABM Security Services) from ABM Industries, Inc. (ABM
Industries), ABM’s parent company, to protestor Universal. Protestor alleges in its
complaint that Universal acquired all of the assets of ABM Security Services, including
ABM Security Services’ September 30, 2014 offer to the Solicitation.
4 The joint stipulation of facts state:
The NLECC operates 24 hours a day, 365 days a year. The centers log
and record events, such as: “emergency dispatch, incident report writing
and analysis.” “NLECCs provide centrally managed law enforcement radio
traffic for approximately 2,500 radios, alarm monitoring for approximately
11,000 intrusion detection systems, and remote alarm panel
programming.” The centers “provide after-hours emergency phone
coverage for all Inspection Service divisions, receive notification
2
incumbent for the NLECC contract, and ABM Security Services was the incumbent for
the Security Guard Services contract. The purchase plan noted that although USPS had
contracted for these services separately in the past, the purchase plan sought to
consolidate the services into one solicitation “in order to consider consolidating the supply
base by using one supplier to potentially provide both services.” The purchase plan noted
that “[t]he USPS may award one or multiple contracts based on the results of the
competitive solicitation.” The purchase plan provided a four-year base term, with three,
two-year options for both the NLECC and Security Guards Services, and the purchase
plan stated that the solicitation would require the award decision to be based upon the
best value to the USPS.
On August 28, 2014, USPS issued Solicitation No. 2B-14-A-0078 (the Solicitation).
The Solicitation contained two line items. Line item no. 00001 was for NLECC Services
and required the awardee to:
Provide dispatch and alarm monitoring services in support of the U.S. Postal
Inspection Service (USPIS) at each NLECC according to the attached
NLECC Statement of Work (SOW). The two (2) locations are Dulles VA,
and Ft. Worth TX. This includes direct support of each NLECC by
monitoring multiple types of alarm systems, closed-circuit television,
dispatch communications and access to national law enforcement
databases.
Line item no. 00002 was for Security Guard Services and required the awardee to:
“Provide Guard I and II, and security mail screeners, as needed in support of the security
program according to the attached Security Services Statement of Work. In addition
potentially provide canine handlers with trained working dogs according to the attached
Security Services Statement of Work.”
The evaluation factors were the same for both the NLECC and the Security Guard
Services, and the four technical evaluation factors, in descending order of importance,
were: (1) Technical Approach; (2) Management and Staffing Plan; (3) Supplier Capability;
and (4) Past Performance. The Solicitation explained that the technical factors were more
important than price, but noted that the “Postal Service will not pay significantly more for
marginal increases in technical value or merit, and the perceived benefits of a higher
priced proposal must warrant the additional cost.” The Solicitation also indicated that
USPS would make the award decisions based upon best value, which it defined as “the
outcome that provides the optimal combination of elements, such as lowest total cost of
ownership, technology, innovation and efficiency, assurance of supply, and quality
relative to the Postal Services’ needs.”
concerning biological detection system (BDS) alarms from postal
processing and distribution centers, and access law enforcement and
intelligence information databases.”
(internal citations omitted).
3
In addition, the Solicitation had a section titled “Contract Clauses.” Clause 4-1
stated, in part:
b. Assignment. If this contract provides for payments aggregating $10,000
or more, claims for monies due or to become due from the Postal Service
under it may be assigned to a bank, trust company, or other financing
institution, including any federal lending agency, and may thereafter be
further assigned and reassigned to any such institution. Any assignment or
reassignment must cover all amounts payable and must not be made to
more than one party, except that assignment or reassignment may be made
to one party as agent or trustee for two or more parties participating in
financing this contract. No assignment or reassignment will be recognized
as valid and binding upon the Postal Service unless a written notice of the
assignment or reassignment, together with a true copy of the instrument of
assignment, is filed with:
(1) The contracting officer;
(2) The surety or sureties upon any bond; and
(3) The office, if any, designated to make payment, and the contracting
officer has acknowledged the assignment in writing.
(4) Assignment of this contract or any interest in this contract other than in
accordance with the provisions of this clause will be grounds for termination
of the contract for default at the option of the Postal Service.
Clause 4-1b.
USPS received six timely proposals in September 2014, in response to the
Solicitation. Four offerors submitted proposals for both the NLECC and Security Guards
Services: ABM Security Services, CSC, G4S Secure Solutions (USA) Inc. (G4S), and
Securitas. In addition, Gonzales Consulting Services, Inc. (Gonzales) submitted only a
NLECC proposal, and U.S. Security Associates, Inc. (U.S. Security) submitted only a
Security Guards proposal. The Supply Management Competitive Award
Recommendation (Award Recommendation) reflected that the Technical Evaluation
Team reviewed the proposals, and evaluated them for strengths, weaknesses,
deficiencies, and risks in relation to the evaluation factors, as well as conducted oral
presentations with the six offerors in October 2014. The parties have stipulated that,
“[a]ccording to the Award Recommendation, the TET [Technical Evaluation Team] then
reached a consensus on the ratings for each proposal in relation to the respective
evaluation schemes, establishing rankings for the offerors, and summarizing the results
in an evaluation spreadsheet.”
The Technical Evaluation Team indicated that for ABM Security Services, “[t]he
NLECC proposal did not clearly demonstrate an understanding of the requirements in the
4
Statement of Work. ABM presents a program that is more security guard based as is
evident in the suggested program for the NLECC centers, which is essentially a guard
conversion program,” and rated ABM Security Services’ NLECC technical proposal as
“Fair.” For CSC, the Technical Evaluation Team indicated that “Command Security
offered a sound program for the NLECC that will meet the Statement of Work
requirements, indicating a high probability of successful performance in supporting
USPIS,” and rated CSC’s NLECC technical proposal as “Good.” The technical evaluation
for the offerors’ NLECC proposals were summarized in the Award Recommendation:
NLECC Technical Mgmt. & Supplier Past Overall Overall
Approach Staffing Capability Performance Technical Technical
Plan Rating Ranking
Securitas GOOD GOOD GOOD GOOD GOOD 1
Command GOOD GOOD GOOD GOOD GOOD 2
ABM GOOD POOR FAIR GOOD FAIR 3
Gonzales FAIR FAIR FAIR GOOD FAIR 4
G4S FAIR FAIR GOOD GOOD FAIR 5
The Technical Evaluation Team stated that in its Security Guards Services
technical proposal, ABM Security Services “offered some new programs and
technological advances that could make the program more robust than it is today. ABM
also suggested an innovative revenue idea for charging electric vehicles on USPS sites.
ABM is capable of running the unarmed guard program on a national level and providing
resources.”5 The Technical Evaluation Team rated ABM Security Services’ Security
Guards Services technical proposal as “Good,” ranking it as first amongst the offerors.
The Technical Evaluation Team also rated CSC’s Security Guards Services technical
proposal as “Good” and indicated that “Command’s proposal for Guards offered some
experience and capability that other suppliers did not demonstrate.” The technical
evaluation for all the offerors for the Security Guards Services proposal were summarized
in the Award Recommendation:
Guards Technical Mgmt. & Supplier Past Overall Overall
Approach Staffing Capability Performance Technical Technical
Plan Rating Ranking
ABM GOOD GOOD GOOD GOOD GOOD 1
Command GOOD GOOD GOOD GOOD GOOD 2
Securitas GOOD POOR GOOD GOOD FAIR 3
G4S FAIR FAIR GOOD GOOD FAIR 4
U.S. FAIR GOOD FAIR GOOD FAIR 5
Security
5 The agency in its evaluation documents, as well as the parties in their submissions to
the court, typically refer to ABM Security Services as “ABM.” Unless otherwise indicated,
the court has left unchanged any quotations which refer to ABM Security Services as
ABM.
5
After discussions,6 the offerors submitted revised prices, and according to the
Award Recommendation, the final price evaluations were:
Price Ranking Supplier Base Period Base 4 years + 3,
NLECC + Transition 2-year Options +
Transition
1 Gonzales $[redacted] $[redacted]
2 ABM $[redacted] $[redacted]
3 Securitas $[redacted] $[redacted]
4 Command Security $15,819,419 $40,026,301
5 G4S $[redacted] $[redacted]
The Award Recommendation concluded the NLECC analysis as follows:
From a multiple award perspective, Securitas’ proposal is most
advantageous and USPS would obtain best value from awarding the
NLECC contract to this offeror. However, since Securitas’ proposal along
with the proposals submitted by ABM and Command were rated highest
technically and all were judged price competitive for both NLECC and
Guards, it was necessary for the Purchase/SCM Team to first conduct the
trade-off analysis for the Guards proposals followed by a single award
trade-off analysis for both service components before reaching a final best
value determination.
Price Ranking Supplier Base Period Base 4 years + 3,
GUARDS + Transition 2-year Options +
Transition
1 Command Security $84,408,289 $209,990,394
2 ABM $[redacted] $[redacted]
3 Securitas $[redacted] $[redacted]
4 U.S. Security $[redacted] $[redacted]
5 G4S $[redacted] $[redacted]
The Award Recommendation concluded the Security Guards Services trade-off analysis,
as follows:
6 As noted in joint stipulation of facts, the agency made the decision only to hold
discussions with the offerors who “submitted the highest technically rated (no less than
Good) proposals for each service (NLECC and Guards).” Therefore, USPS held
discussions for the NLECC proposals with Securitas and CSC, as both of their proposals
were rated as “Good,” and did not hold discussions with ABM Security Services,
Gonzales, or G4S, as their NLECC proposals were all rated “Fair.”
6
From a multiple award perspective, Command’s proposal is most
advantageous and USPS would obtain best value from awarding the
Guards contract to this offeror. At this point in the source selection process
the Purchase/SCM Team needed to determine if best overall value would
be obtained from awarding two separate contracts, one to Securitas for
NLECC and one to Command for Guards, or from awarding a single
contract to one of the three highest rated technical proposals offering
competitive prices for both service components.
The agency then performed a NLECC and Security Guards Services combined7 trade-off
analysis, in which the agency considered the technical and price evaluations from the
both the NLECC and Security Guards Services proposals. The Award Recommendation
explained the combined trade-off analysis as follows:
As previously stated, the USPIS [United States Postal Inspection Service]
has determined that there are significant advantages to the USPS if a single
supplier provides both service components. Communications will be
enhanced with one supplier, especially during emergent events. The USPIS
relies on the NLECC for communications and radio traffic. A single supplier
would be in a better position to enhance overall resource allocation across
the security network for both USPIS as well as supplier assets. The USPIS
requires information at all times during emergent and routine security
incidents. It has multiple departments that are involved with the guards and
the NLECC operations. A single supplier would eliminate historically
identified communication barriers and facilitate the ability to for USPIS to
achieve operational and administrative efficiencies while strengthening the
effectiveness of the enterprise security program.
The Award Recommendation summarized the combined trade-off analysis as follows:
Although both Securitas and Command were adjectivally rated Good for the
NLECC and Guards, Command's combined proposals are judged
technically superior to the combined offerings of either ABM or Securitas.
Ranked technically first and third respectively for NLECC and Guards,
ABM’s combined service component total evaluated price is $[redacted]
Ranked technically third and first respectively for NLECC and Guards,
Securitas’ combined total evaluated price is $[redacted]. Ranked technically
second for both components, Command’s combined total evaluated price is
$250,016,695, which is [redacted] lower than ABM’s and [redacted] lower
than Securitas’ evaluated prices over the anticipated 10-year life of the
contract.
...
7As noted above, the purchase plan provided that “[t]he USPS may award one or multiple
contracts based on the results of the competitive solicitation.”
7
Any further trade-off analysis between ABM’s combined proposal and
Command’s combined proposal is simplified by the fact that the
Purchase/SCM Team judged Command’s proposal to be more
advantageous both from a technical and price perspective. As previously
stated in the Guards trade-off analysis, the Purchase/SCM Team was
unable to identify any clear technical differentiation between ABM’s
proposal and Command’s proposal sufficient to offset Command’s total
evaluated price advantage of $[redacted]. Moreover, Command’s NLECC
proposal was rated technically superior to ABM’s NLECC proposal. With a
combined total evaluated price advantage of [redacted] over ABM,
Command’s NLECC and Guards proposals taken as a whole represents a
better life cycle value to USPS.
On January 2, 2015, USPS notified ABM Security Services that CSC had been
selected for contract award under the Solicitation. Four days later, on January 6, 2015,
USPS provided ABM Security Services an oral debriefing regarding the award decision.
Three days after that, on January 9, 2015, ABM Security Services filed a business
disagreement with the contracting officer, which the contracting officer subsequently
denied on January 20, 2015. On January 22, 2015, ABM Security Services filed an appeal
with USPS Supplier Disagreement Resolution Official, and requested that, if the Official
did not issue a decision by February 1, 2015, that he stay the transition to CSC. The
Official, however, denied ABM Security Services’ stay request on January 28, 2015. The
same day, ABM Security Services filed a post-award bid protest in the United States Court
of Federal Claims, Case No. 15-87C, and requested a temporary restraining order and
preliminary injunction to prohibit the transition to CSC, pending the appeal process. The
court held an initial status conference on January 29, 2015. The same day, January 29,
2015, the USPS Supplier Disagreement Resolution Official reconsidered his decision and
agreed to postpone the transition of the contracts to CSC pending the appeal process.
The defendant filed a notice of corrective action in the United States Court of Federal
Claims on January 30, 2015, at which time ABM Security Services filed a motion for
voluntary dismissal of Case No. 15-87C, which the court granted on January 30, 2015.
On June 15, 2015, the USPS Supplier Disagreement Resolution Official denied
ABM Security Services’ appeal on the merits, which challenged USPS’ technical and price
evaluations. Although the Official affirmed USPS’ best value determination, he noted that
he had identified computational errors in the contracting officer’s price analysis, which
indicated that CSC’s price advantage was $[redacted], rather than the approximately
$[redacted] advantage identified in the Award Recommendation. Despite the errors, the
Official determined that the computational errors were not prejudicial, and stated that he
had notified the “CO [contracting officer] and his management” of the mistake and, “they
concluded that even with the smaller price advantage, the best value decision remains
the same.” On June 29, 2015, ABM Security Services again filed a post-award bid protest
in the United States Court of Federal Claims, Case No. 15-648C, in which ABM Security
Services argued that the evaluations of ABM Security Services’ and CSC’s proposals
were flawed, the best value decision was arbitrary and capricious, and that the agency
8
had conducted inadequate discussions with ABM Security Services. After an initial status
conference, and a subsequent hearing which established a briefing schedule, the
defendant again filed a notice of corrective action on July 9, 2015, and indicated that
agency intended to:
[U]ndertake corrective action in ABM Security Services, Inc.’s (ABM) protest
of USPS’s award of a contract for staffing and operating two National Law
Enforcement Communications Centers (NLECC) and Security Guard
Services at approximately 57 locations. Following the USPS Supplier
Disagreement Resolution Official’s identification of a price calculation error,
and counsel’s subsequent review of the record, corrective action is
warranted to permit the contracting officer to determine the correct price
differential between the offerors and conduct a revised best value
determination. The contracting officer will have the discretion to address
any other issues raised by the parties or otherwise identified in the record.
(internal citations omitted). Once again, in light of defendant’s representation, on July 9,
2015, the court dismissed the second protest, Case No. 15-648C, filed by ABM Security
Services, without prejudice.
On October 26, 2015, protestor Universal concluded an acquisition of ABM
Security Services. Two days later, on October 28, 2015, ABM Security Services notified
the contracting officer, and specifically requested that the agency execute a novation
agreement concerning ABM Security Services’ two existing contracts with USPS.8 The
following day, ABM Security Services sent the contracting officer another letter, signed
by Oded Barlev, ABM Security Services’ Vice President of National Operations, which
stated: “With regard to ABM’s September 30, 2014 offer, we hereby confirm that the offer,
along with all of ABM’s assets, has been legally transferred to Universal. The offer, now
owned by Universal, continues to rely on the same assets – including facilities, resources,
and personnel – as originally proposed by ABM.”
On November 20, 2015, the contracting officer informed ABM Security Services9
of the results of the most recent corrective action and indicated that the “ultimate outcome
of the best value analysis remained the same.” Therefore, the contracting officer
concluded that the “award of the contract to CSC will not be disturbed.” The contracting
officer informed ABM Security Services that the corrective action was intended “to review
8 Subsequently, on November 30, 2015, the contracting officer responded to ABM
Security Services’ request to novate its existing USPS contracts, and requested certain
documentation. ABM Security Services responded that it would compile the requested
documentation to novate its existing contracts. As of March 21, 2016, the agency had not
yet acted on the request to novate the contracts.
9 Although the sale of ABM Security Services to Universal had been completed on
October 26, 2015, in a response to a letter from protestor’s counsel of record, the agency
addressed its response to “ABM Security Services.”
9
all of the underlying numbers that constituted the calculated evaluated prices and to
correct any errors that were found in the numbers. Every pricing sheet was scrutinized.”
The contracting officer further stated that he had “updated my Award Recommendation
to reflect corrections in the numbers” and “re-visited my best value analysis in the light of
the corrected numbers.” Specifically, the contracting officer indicated that “the purchase
team undertook a thorough review of the pricing evaluation sheets prepared prior to the
original award recommendation and found that errors had been made,” but determined
that “none of these errors were significant enough to undermine the validity of the original
best value determination.”
The agency included the following chart in the updated Award Recommendation
which provided both the original and the revised evaluated prices of the offerors:
Final Price Rankings Including Options
Original
Base 4 years +
Price Ranking Base Period +
Supplier 3, 2-year Options +
NLECC Transition
Transition
1 Gonzales $[redacted] $[redacted]
2 ABM $[redacted] $[redacted]
3 Securitas $[redacted] $[redacted]
4 Command Security $15,819,419 $40,026,301
5 G4S $[redacted] $[redacted]
Base 4 years +
Price Ranking Base Period +
Supplier 3, 2-year Options +
GUARDS Transition
Transition
1 Command Security $84,408,289 $209,990,394
2 ABM $[redacted] $[redacted]
3 Securitas $[redacted] $[redacted]
4 U.S. Security $[redacted] $[redacted]
5 G4S $[redacted] $[redacted]
Updated10
10 “TCO” refers to total cost of ownership.
10
Base 4 years +
Price Ranking Base Period +
Supplier 3, 2-year Options +
NLECC Transition
Transition
1 Gonzales $[redacted] $[redacted]
2 Command Security $15,819,419 $39,196,997
3 ABM $[redacted] $[redacted]
4 Securitas $[redacted] $[redacted]
5 G4S $[redacted] $[redacted]
Base 4 years +
Price Ranking Base Period +
Supplier 3, 2-year Options +
GUARDS Transition
Transition
1 Command Security $83,325,039 $209,440,472
2 ABM $[redacted] $[redacted]
3 Securitas $[redacted] $[redacted]
4 U.S. Security $[redacted] $[redacted]
5 G4S $[redacted] $[redacted]
With regard to the NLECC and Guards combined trade-off analysis, the Award
Recommendation was updated with the corrected numbers to state:
Command’s combined proposal is judged superior to the combined
offerings of either ABM or Securitas. Ranked technically third and first for
NLECC and Guards, respectively, ABM’s updated combined total evaluated
price is $[redacted]. Ranked technically first and third for NLECC and
Guards, respectively, Securitas’ updated combined total evaluated price is
$[redacted]. Ranked technically second for both components, Command’s
updated combined total evaluated price is $248,637,469, which is
[redacted] lower than ABM’s and [redacted] lower than Securitas’ updated
evaluated prices over the anticipated 10-year life of the contract.
As indicated in the joint stipulation of facts, “[t]he summary of results of the NLECC and
Guards trade-off analysis for each of the three highest rated and most price competitive
proposals was updated to reflect the corrected numbers.” The updated Award
Recommendation indicated as follows:
11
Combined Overall
Suppliers NLECC Guards Guards
Technical NLECC Price Price Combined Price Base 4 years +
Technical Ranking Overall 3, 2-year Options +
Ranking Ranking Ranking Transition
Ranking
Command 2 2 2 1 1 $248,637,469
ABM 3 1 3 2 2 $[redacted]
Securitas 1 3 4 4 3 $[redacted]
Therefore, the contracting officer noted that the updated Award Recommendation
determined that “a combined award to Command offers the Postal Service the optimal
best value scenario for this particular purchase.”
On November 30, 2015, protestor submitted another business disagreement to the
contracting officer challenging, what protestor defined as, the “re-award” of the contract
to CSC. On December 10, 2015, the contracting officer responded to protestor stating
that “there was no ‘re-award.’” The contracting officer informed protestor that he believed
protestor was not an interested party to protest, stating that:
[I]t does not appear that Universal was an actual or prospective offeror with
respect to the solicitation . . . . I am not aware of any binding regulation or
authority that would allow a purchaser to step into the shoes of an actual
offeror, long after a solicitation has closed, without the express consent and
approval of the Postal Service.
In response, on December 14, 2015, protestor submitted a business disagreement
with the USPS Supplier Disagreement Resolution Official, challenging the results of the
corrective action and the contracting officer’s response to Universal’s November 30, 2015
letter. The USPS Supplier Disagreement Resolution Official responded to the protestor
on January 13, 2016, and agreed with the contracting officer that “no new business
disagreement exists and no further Supplier Disagreement Resolution Official review is
required.” The Official also indicated to the protestor and that the decision to take
corrective action “did not result in the termination of the January 2015 award to CSC nor
did it result in any award, but rather a reevaluation that affirmed the original best value
determination and left the existing award in place.” After the USPS Supplier Disagreement
Resolution Official’s response, protestor filed the current, above captioned bid protest,
Case No. 16-126C, in this court on January 27, 2016. After an initial hearing with the
parties, the court set a schedule and the parties briefed the defendant’s and intervenor’s
motions to dismiss for lack of subject matter jurisdiction, as well as the parties’ cross-
motions for judgment on the Administrative Record. On March 21, 2016, the court held
oral argument.
DISCUSSION
As a threshold matter, the court addresses defendant and defendant-intervenor’s
12
allegations that this court does not have subject matter jurisdiction to decide protestor’s
bid protest in the above-captioned case because protestor does not have standing and is
not an “interested party.” Defendant claims that the protestor, Universal, did not submit a
bid in response to the solicitation and, therefore, cannot be an “actual bidder.” By contrast,
protestor states that:
Universal is an interested party with standing to file this action, because (i)
it is the complete successor-in-interest to ABM, the entity that submitted a
proposal in response to the USPS Solicitation at issue here; and (ii) ABM
would have had a substantial chance of receiving the new USPS contract
but for the procurement errors made by USPS.
It is well established that “‘subject-matter jurisdiction, because it involves a court’s
power to hear a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).
“[F]ederal courts have an independent obligation to ensure that they do not exceed the
scope of their jurisdiction, and therefore they must raise and decide jurisdictional
questions that the parties either overlook or elect not to press.” Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428 (2011); see also Hertz Corp. v. Friend, 559 U.S. 77,
94 (2010) (“Courts have an independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546
U.S. at 514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001)
(“[A] court has a duty to inquire into its jurisdiction to hear and decide a case.” (citing
Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990)));
View Eng'g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts
must always look to their jurisdiction, whether the parties raise the issue or not."). “The
objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party,
or by a court on its own initiative, at any stage in the litigation, even after trial and the
entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. at 506; see also Hymas v. United
States, 810 F.3d 1312, 1317 (Fed. Cir. 2016) (explaining that a federal court must satisfy
itself of its jurisdiction over the subject matter before it considers the merits of a case);
Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012)
(“An objection to a court's subject matter jurisdiction can be raised by any party or the
court at any stage of litigation, including after trial and the entry of judgment.” (citing
Arbaugh v. Y & H Corp., 546 U.S. at 506)); Rick’s Mushroom Serv., Inc. v. United States,
521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise
sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546
U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en
banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips
& Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed.
Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact, “[s]ubject matter
jurisdiction is an inquiry that this court must raise sua sponte, even where . . . neither
party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370
F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481,
1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.), cert. denied,
525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in
13
part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975 (2005),
cert. dismissed as improvidently granted, 548 U.S. 124 (2006).
This court has jurisdiction to hear bid protests pursuant to 28 U.S.C. § 1491(b)(1)
(2012) of the Tucker Act, which provides that this court has:
jurisdiction to render judgment on an action by an interested party objecting
to a solicitation by a Federal agency for bids or proposals for a proposed
contract or to a proposed award or the award of a contract or any alleged
violation of statute or regulation in connection with a procurement or a
proposed procurement.
28 U.S.C. § 1491(b)(1); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352,
1359 (Fed. Cir. 2009). The Administrative Dispute Resolution Act of 1996 (ADRA),
codified at 28 U.S.C. § 1491(b)(1)–(4) (2012), amended the Tucker Act to establish a
statutory basis for bid protests in the United States Court of Federal Claims. See Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed.
Cir. 2001).
In order to have standing to sue as an “interested party” under this provision, a
disappointed bidder must show that it suffered competitive injury or was “prejudiced” by
the alleged error in the procurement process. See Todd Constr., L.P. v. United States,
656 F.3d 1306, 1315 (Fed. Cir. 2011) (To prevail, a bid protester must first “‘show that it
was prejudiced by a significant error’ (i.e., ‘that but for the error, it would have had a
substantial chance of securing the contract).’” (quoting Labatt Food Serv., Inc. v. United
States, 577 F.3d 1375, 1378, 1380 (Fed. Cir. 2009))); Blue & Gold Fleet, L.P. v. United
States, 492 F.3d 1308, 1317 (Fed. Cir. 2007); see also Sci. Applications Int’l Corp. v.
United States, 108 Fed. Cl. 235, 281 (2012); Linc Gov’t Servs., LLC v. United States, 96
Fed. Cl. 672, 693 (2010) (“In order to establish standing to sue, the plaintiff in a bid protest
has always needed to demonstrate that it suffered competitive injury, or ‘prejudice,’ as a
result of the allegedly unlawful agency decisions.” (citing Rex Serv. Corp. v. United
States, 448 F.3d 1305, 1308 (Fed. Cir. 2006); Statistica, Inc. v. Christopher, 102 F.3d
1577, 1580–81 (Fed. Cir. 1996); Vulcan Eng’g Co. v. United States, 16 Cl. Ct. 84, 88
(1988); Morgan Bus. Assocs., Inc. v. United States, 223 Ct. Cl. 325, 332 (1980))). In order
to establish what one Judge on this court has called “allegational prejudice” for the
purposes of standing, the bidder must show that there was a “substantial chance” it would
have received the contract award, but for the alleged procurement error. See Linc Gov’t
Servs., LLC v. United States, 96 Fed. Cl. at 675; see also Bannum, Inc. v. United States,
404 F.3d 1346, 1358 (Fed. Cir. 2005); Galen Med. Assocs., Inc. v. United States, 369
F.3d 1324, 1331 (Fed. Cir.), reh’g denied (Fed. Cir. 2004); Info. Tech. & Applications
Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2003); Statistica, Inc. v. Christopher, 102 F.3d at 1581; Hyperion, Inc. v. United
States, 115 Fed. Cl. 541, 550 (2014) (“The government acknowledges that proving
prejudice for purposes of standing merely requires “allegational prejudice,” as contrasted
to prejudice on the merits . . . .”); see also Bannum, Inc. v. United States, 115 Fed. Cl.
148, 153 (2014); Archura LLC v. United States, 112 Fed. Cl. 487, 497 (2013); Lab. Corp.
14
of Am. v. United States, 108 Fed. Cl. 549, 557 (2012). Because standing is a jurisdictional
issue, this showing of prejudice is a threshold issue. See Corus Grp. PLC v. Int’l Trade
Comm'n, 352 F.3d 1351, 1357 (Fed. Cir. 2003); Myers Investigative & Sec. Servs., Inc.
v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002).
Defendant argues, and intervenor agrees, that “Universal does not possess
standing because the solicitation specifically precluded ABM’s post-award, unilateral
assignment of its offer to Universal.” As noted above, the Solicitation contained a series
of contract clauses, including Clause 4-1, which stated, in part:
b. Assignment. If this contract provides for payments aggregating $10,000
or more, claims for monies due or to become due from the Postal Service
under it may be assigned to a bank, trust company, or other financing
institution, including any federal lending agency, and may thereafter be
further assigned and reassigned to any such institution. Any assignment or
reassignment must cover all amounts payable and must not be made to
more than one party, except that assignment or reassignment may be made
to one party as agent or trustee for two or more parties participating in
financing this contract. No assignment or reassignment will be recognized
as valid and binding upon the Postal Service unless a written notice of the
assignment or reassignment, together with a true copy of the instrument of
assignment, is filed with:
(1) The contracting officer;
(2) The surety or sureties upon any bond; and
(3) The office, if any, designated to make payment, and the contracting
officer has acknowledged the assignment in writing.
(4) Assignment of this contract or any interest in this contract other than in
accordance with the provisions of this clause will be grounds for termination
of the contract for default at the option of the Postal Service.
Clause 4-1b. Intervenor argues that “Clause 4-1 specifically provides that the assignment
of “any interest in this contract” not in accordance with the clause ‘will be grounds for
termination of the contract for default at the option of the Postal Service.’” (footnote
omitted). Intervenor argues, therefore, that the “plain meaning of the language in Clause
4-1 supports the view that the phrase ‘any interest in this contract’ includes ABM’s rights
and interests in the proposal it submitted in an attempt to secure the award of ‘this
contract.’” By contrast, protestor claims that “[t]he clause itself plainly indicates that it only
applies to contracts.”
When the terms of a solicitation are clear and unambiguous, there is no need to
resort to extrinsic evidence for its interpretation. See CBY Design Builders v. United
States, 105 Fed. Cl. at 327 (citing Banknote Corp. of Am., Inc. v. United States, 365 F.3d
151345, 1353 (Fed. Cir. 2004)); see also Precision Pine & Timber, Inc. v. United States, 596
F.3d 817, 824 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.), cert. denied, 131 S.
Ct. 997 (2011); Teg–Paradigm Envtl., Inc. v. United States, 465 F.3d 1329, 1338 (Fed.
Cir. 2006) (“When the contract's language is unambiguous it must be given its ‘plain and
ordinary’ meaning and the court may not look to extrinsic evidence to interpret its
provisions.” (quoting Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed.
Cir. 2003)); Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1375 (Fed. Cir.
2004) (“If the terms of a contract are clear and unambiguous, they must be given their
plain meaning—extrinsic evidence is inadmissible to interpret them.”). “A solicitation term
is ambiguous if ‘more than one meaning is reasonably consistent with [its] language.’”
Furniture by Thurston v. United States, 103 Fed. Cl. 505 511 (2012) (quoting Grumman
Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed. Cir. 1996)) (modification in original).
The United States Court of Appeals for the Federal Circuit has stated that, “[t]o show an
ambiguity [in contract language,] it is not enough that the parties differ in their respective
interpretations of a contract term.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159
(Fed. Cir. 2004). In order to demonstrate ambiguity, the interpretations offered by both
parties must “‘fall within a “zone of reasonableness.”’” Id. (quoting Metric Constructors,
Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999) (citations omitted)); see also Ace
Constructors, Inc. v. United States, 499 F.3d 1357, 1361 (Fed. Cir. 2007) (“[I]n interpreting
a solicitation, ‘[it] is ambiguous only if its language is susceptible to more than one
reasonable interpretation. . . . If the provisions of the solicitation are clear and
unambiguous, they must be given their plain and ordinary meaning.’” (quoting Banknote
Corp. of Am., Inc. v. United States, 365 F.3d at 1353)).
The court agrees with the protestor that the plain meaning of the contract clause
in the Solicitation is clear.11 Protestor indicates that the
clause concludes that “[a]ssignment of this contract or any interest in this
contract other than in accordance with the provisions of this clause [Clause
4.1b] will be grounds for termination of the contract for default at the option
of the Postal Service.” Further confirming that it applies only to contracts,
the same clause authorizes the contracting officer to “order changes within
the general scope of this contract,” “to terminate this contract, or any part
hereof, for its sole convenience,” and “to may terminate this contract, or any
part hereof, for default by the supplier . . . .” None of these provisions makes
sense if the term “contract” is interpreted to include a proposal.
(emphasis in original; internal citations omitted). The court also agrees with the protestor
that the contract clause in the Solicitation is directed at a time when the contract awardee
11 Although the court believes the clause is clear, if the contract clause was in fact
ambiguous, the ambiguity would be a latent one, and “[u]nder the rule of contra
proferentem, a latent ambiguity is resolved against the government as drafter of the
solicitation.” Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. at 708-709 (citing E.L.
Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1342 (Fed. Cir. 2004)) (footnote
omitted).
16
attempts to assign a contract that had been awarded to a contractor, and does not
address the scenario in which an offeror tries to assign a proposal. The rules applicable
regarding an awardee’s assignment of a contract are different than the rules applicable
to assignment of a proposal submitted in response to a solicitation by an ultimately
unsuccessful bidder. The court concludes that Contract Clause 4.1b could apply to a
contract dispute between the agency and an awardee, but does not does resolve issues
regarding an entity which has only submitted a proposal, and does not address a situation
in a post-award bid protest brought by a disappointed bidder. Notably in this protest,
protestor was not awarded the contract, and, therefore, the assignment would not be
relevant under this clause. As indicated in the clause, one of the remedies available to
the USPS is termination for default if the contract does not follow the provisions of the
contract clause. That clause, however, is not applicable to protestor who did not get
awarded the contract. Therefore, Contract Clause 4.1b does not preclude Universal from
bringing the protest in this court.
Defendant also argues that “Universal does not meet even the most basic
requirement to establish jurisdiction because Universal did not submit a proposal in this
procurement. Rather, it was ABM Security Services, Inc. - not Universal Protection
Services [sic] LP - that submitted the proposal.” Moreover, intervenor argues that “the
sale to Universal did not include all the assets committed to the performance of the
contract by ABM’s proposal and, as a result, Universal lacks a direct economic interest
because ABM’s proposal has no substantial chance of receiving an award.” Protestor
responds that:
Defendant’s and Intervenor’s claims that Universal is not the complete
successor-in-interest to ABM also are misplaced. The legal entity that
submitted the proposal was ABM, not its parent or its affiliates. The proposal
does not include any parent or affiliate guarantee or otherwise commit the
resources of the parent or affiliates to performance of the contract.
(internal citations omitted).
The Federal Circuit has articulated the logical conclusion that in order to be an
actual or prospective bidder, a protestor must have submitted a bid.12 See Rex Serv.,
Corp. v. United States, 448 F.3d at 1307. As explained by the Rex court,
MCI [MCI Telecommunications Corp. v. United States, 878 F.2d 362 (Fed.
Cir. 1989)] held that “in order to be eligible to protest, one who has not
actually submitted an offer must be expecting to submit an offer prior to the
closing date of the solicitation.” Further, “the opportunity to qualify either as
an actual or a prospective bidder ends when the proposal period ends.”
12At oral argument, the parties agreed that the court should look to the protestor’s status
as an actual or a prospective bidder at the time the protest was filed to determine if a
protestor has standing to bring a protest.
17
Here, because Rex could have bid, but chose not to, it cannot be considered
a prospective bidder.
See Rex Serv., Corp. v. United States, 448 F.3d at 1307 (quoting MCI
Telecommunications Corp. v. United States, 878 F.2d at 365) (emphasis in original). It is
equally clear, however, that even if a bidder did not submit a proposal, if it is the complete
successor-in-interest to the actual offeror, the bidder may stand in the shoes and have
standing to bring a protest. See L-3 Commc’ns Integrated Sys., L.P. v. United States, 84
Fed. Cl. 768, 778-79 (2008) (“L–3 is the complete successor-in-interest to the actual
offeror, Raytheon Company, and embraces the identical business unit which submitted
Raytheon Company's bid in the C–5 AMP procurement. As such, L–3 stands in the shoes
of Raytheon Company in the instant case and has standing to pursue this claim.”); see
also Alabama Aircraft Indus., Inc.-Birmingham v. United States, 83 Fed. Cl. 666, 682
(2008) (successor-in-interest to the original offeror, was the de facto same legal entity
which had submitted its proposal), rev’d on other grounds, 586 F.3d 1372 (Fed. Cir. 2009).
Therefore, the court must determine if Universal is the complete successor-in-
interest to ABM Security Services, and, moreover, if Universal can offer an identical
proposal and all of the assets and services promised in the proposal by ABM Security
Services. As the court must compare not only ABM Security Services at the time of sale
to Universal, but also if ABM Security Services relied on its corporate parent to qualify for
award and to provide services if selected for contract award, this inquiry is a very fact-
specific one.
The court first looks to ABM Security Services’ proposal. As noted by defendant,
the Supplier Capability portion of the proposal listed “Fast Facts,” which refer to ABM
Industries, ABM Security Services’ parent company, and not ABM Security Services. The
“Fast Facts” submitted by ABM Security Services in its proposal state:
Item Data Point
Founded 1909 in San Francisco, CA
Annual Revenue $4.8 Billion
Customers 20,000+
Employees 110,000+
Ownership Publicly traded (NYSE: ABM)
Offices 350+ U.S. & International locations
Janitorial Services 2 Billion square feet cleaned each day
Energy Services $18 Million+ savings from energy reductions
Security Services 12,000+ licensed security personnel
1,000+ customers
Unarmed & armed security guard services
K-9 services
Mail screening
Command Center staffing
Security officers Armed & Unarmed
Access control monitoring
18
Background investigations
Crowd control
Fire watch coverage
Life safety monitoring
Mobil & Bike Patrol services
Security consulting and surveys
Special event coverage
EMT & Paramedic Services
Fire Fighter Services
Alarm & Command Center Monitoring
Public Venues Ushers and Ticket Takers
Electrical & Lighting 40,000+ parking lot poles & lights maintained
Facilities Engineering 4,000+ certified engineers
Parking & Transportation $1.5 Billion collected for customers in parking revenue
Landscape & Grounds 25,000+ acres of landscaping & golf courses maintained
(emphasis in original). In addition, above the “Fast Facts,” for the Supplier Capability
portion of the technical proposal, ABM Security Services’ proposal stated that: “ABM will
continue to leverage our entire network of corporate resources, third-party subject matter
experts and intellectual capital to best serve the Postal Service’s needs and
expectations,” without differentiating between ABM Security Services and its parent, ABM
Industries. (emphasis added). Intervenor claims that “[t]his expression of ABM’s reliance
on ABM Industries Inc. is more specifically and starkly demonstrated in portions of ABM’s
proposal relating to ‘Supplier Capability,’” citing to the statement above that “ABM will
continue to leverage our entire network of corporate resources . . . to best serve the Postal
Service’s needs and expectations.” (omission in original). Protestor, however, dismisses
this argument, noting that the
“Fast Facts” section states that ABM corporate family has over 110,000
employees, but surely no one would reasonably conclude that ABM was
promising that 110,000 employees would work on the contract. The table
also says that the janitorial section of ABM’s corporate family cleans over
two billion square feet per day and the landscaping and grounds section
maintains over 25,000 acres, but USPS cannot with a straight face claim
that it thought by this statement that ABM was promising to provide janitors
or ground maintenance crews to perform this security guard services
contract. Rather, these statements are naturally read to indicate only that
ABM is the subsidiary in a larger corporation and that it has the support of
its corporate family.
(internal citation omitted).
19
Oded Barlev, the then Vice President of National Operations for ABM Security
Services,13 the individual who earlier had contacted the contracting officer regarding the
sale to Universal,14 filed an affidavit in the case before this court, which was attached to
protestor’s response to the motions to dismiss, in which he stated:
I am aware that ABM's proposal made a number of references to ABM's
parent, ABM Industries Inc., and included the consolidated financial
statements of the entire ABM corporate family. None of these references
were intended to, nor did they, commit to contract performance the assets
of the ABM parent companies, ABM Onsite Services, Inc. and ABM
Industries Inc., or any of its affiliates. Rather, ABM's proposal clearly
committed only the resources of ABM itself to contract performance.
...
The purpose of these references was to indicate and explain that ABM was
part of a larger company and had the support of that company. I think this
is clear from the context of those statements, which included a lot of
information that did not directly bear on performance of the USPS contract,
or any security guard/NLECC contract for that matter. For instance, I
included information about the ABM corporate family's work in golf course
and other grounds maintenance, its engineering arm, and its janitorial work
to demonstrate its breadth as a company, not because I expected USPS to
order these services under the contract.
Despite Universal’s and Mr. Barlev’s attempt to minimize the references to entities other
than ABM Security Services in its proposal, Mr. Barlev concedes that the proposal
includes references to ABM Security Services’ parent, ABM Industries. Those references
and the strengths of ABM Industries would have been read, considered, and evaluated
by the agency in determining ABM Security Services’ technical rating, as well as in the
trade-off analysis.
For example, defendant suggests that in “response to the requirement that an
offeror demonstrate adequate financial resources to perform the work,” ABM Security
Services provided consolidated financial statements of its parent company, as well as
Dunn & Bradstreet reports. Defendant notes:
13In his affidavit submitted with protestor’s response to the motions to dismiss, Mr. Barlev
indicates that before he was the Vice President of National Operations for Universal, he
was the Vice President of National Operations for ABM Security Services.
14 As noted above, Mr. Barlev indicated: “With regard to ABM’s September 30, 2014 offer,
we hereby confirm that the offer, along with all of ABM’s assets, has been legally
transferred to Universal. The offer, now owned by Universal, continues to rely on the
same assets – including facilities, resources, and personnel – as originally proposed by
ABM.”
20
On October 17, 2014, the Postal Service sent ABM a request for
clarification, asking for ABM to explain an unfavorable Equifax credit report
and to provide additional assurances regarding its financial capabilities.
ABM responded on October 20, 2014, dismissing the Equifax report as “a
small local report, which does not reflect ABM’s financial and risk profile
correctly.” ABM’s response also stated that it was attaching “copies of a full
Dunn & Bradstreet report for ABM as supplied on this date along with a
letter of reference from Bank of America to support our credit worthiness
and low risk ratings.” The “full Dunn & Bradstreet report of ABM” that ABM’s
response provided was for “ABM Industries Inc.” Similarly, the letter from
Bank of America discusses the financial strength of ABM Industries.
(internal citations omitted). Defendant also points out that ABM Security Services’
response to the requirement that the offeror demonstrate a “‘record of integrity and
business ethics,’ emphasized that fact that its parent company, ABM Industries, is a
publically-traded company ‘and thus held to a higher standard of ethics and compliance
compared with any other competitor.’”
Protestor responds that:
USPS and CSC cite a number of references to ABM’s corporate parent and
affiliates in the proposal, ABM’s submission of consolidated financial
statements, and the LinkedIn profiles of some key employees indicating
they still work at ABM. However, the proposal statements simply indicate
that ABM had the support of its parent and affiliates, and the consolidated
financial statements were required by the Solicitation itself. None of this
indicates that ABM committed or would employ the assets or resources of
those entities in contract performance.
Regarding the consolidated financial statements and credit reports, protestor also argues
that defendant and intervenor’s arguments ignore “the fact that USPS required the
information regarding ABM’s parent and affiliates. Specifically, the Solicitation required
offerors to submit certified and audited financial statements prepared in accordance with
generally accepted accounting principles,” and claims that “[g]enerally accepted
accounting principles require that the financial statements of a wholly-owned subsidiary
be consolidated with its parent and affiliates under common control.” (emphasis in
original). Protestor also claims that “ABM’s submission of consolidated financial
statements and a statement that ABM Industries, Inc. had not declared bankruptcy was
simply an effort to be responsive to the USPS requests, not an indication that ABM was
committing its parent’s or affiliates’ financial resources.” Mr. Barlev’s affidavit similarly
indicates:
I included the consolidated financial statements in the proposal because the
Solicitation required certified and audited financial statements prepared in
accordance with generally accepted accounting principles. As I understand
it, generally accepted accounting principles require a subsidiary company
21
like ABM to consolidate its financial statements with the other companies
that are under common control. Because of this requirement, ABM did not
prepare separate audited financial statements as only consolidated
statements are prepared and reported. For a similar reason, I submitted
consolidated Dunn & Bradstreet and credit reports.
Notably, protestor does not deny that information which was submitted as part of
the proposal reflected the parent’s information or suggest that the agency would not have
considered it in its evaluation. Moreover, although protestor emphasizes “that USPS
required the information regarding ABM’s parent and affiliates,” it appears that ABM
Security Services voluntarily chose to submit the financial information that it did.
(emphasis in original). Indeed, as defendant correctly points out, “ABM Security Service’s
status as a wholly-owned subsidiary did not prevent it from providing its own certified
financial records that were GAAP compliant - ABM simply chose not to do so.” As
defendant’s states:
There simply is no reason why ABM could not have provided the income
statements, balance sheets, and statements of cash flow for ABM Security
Services Inc. in its proposal, except that it wanted to make its proposal more
attractive to the Postal Service by incorporating the assets of ABM
Industries, Inc. - which, as ABM’s proposal repeatedly emphasized, was
worth over $4 billion.
Defendant also states, “nothing prevented ABM from providing its own certified financial
statements in addition to the consolidated financials of its parent. In fact, Universal’s
contention is belied by the Asset Purchase Agreement attached to Universal’s opposition
brief filed in this court, which includes ABM Security Services, Inc.’s unaudited financial
statements (as opposed to those of its parent).” Defendant indicates that the Asset
Purchase Agreement represents that the financial Information “attached to the purchase
agreement’s disclosures includes ABM Security Service [sic] Inc.’s profit and loss
statements, balance sheets, and statements of cash flows,” and quotes the Asset
Purchase Agreement at Section 2.01 which states: “Financial Information was derived
from the books and records of the Seller Group and was prepared in accordance with the
Accounting Principles in good faith.” The court notes that the Annex to Section 2.01
provides a chart of the “Profit and Loss Statement as of FY2013, FY2014 and 9‐months
ended, July 31, 2015.” It appears that ABM Security Services had the ability to provide its
own financial information to the agency during the procurement process if it had been so
inclined. It appears that even Mr. Barlev indicates how dependent on the parent company
ABM Security Services was by noting that ABM Security Services consolidated “its
financial statements with the other companies that are under common control.”
Furthermore, defendant and intervenor emphasize that although ABM Security
Services’ proposal identified seventeen people as key personnel in the Guard Services
proposal for the Management and Staffing Plan, “at least six of these individuals self-
identify as employees of ABM Industries, Inc. or ABM Onsite Services, not ABM Security
or Universal,” and that “[redacted], who was listed in ABM’s proposal as the ‘Program
22
Development Director’ under key personnel, appears to no longer be employed by ABM
or Universal Protection Services, [sic] LP.” As noted by the intervenor, “it appears that
ABM’s proposed Management and Staffing Plan for Guard Services relied on a significant
number of ‘Key Personnel’ that are not currently employees of ABM Security Services,
Inc. or Universal.” Mr. Barlev’s affidavit tries to explain:
ABM and Universal are in the process of transferring employees from ABM
to Universal. This includes the key personnel included in ABM's proposal.
Because of the number of employees and other assets involved in the sale,
these transfers do not and cannot happen immediately on the day the sale
closes. Indeed, I have just completed the transition process myself.
[redacted] has transferred and [redacted] will transfer at a later date to
Universal, although [redacted’s] status remains uncertain . . . [redacted],
[redacted], and [redacted] left employment with ABM after ABM submitted
its proposal in September 2014. I understand that [redacted] is leaving ABM
tomorrow [2/12/16]. [redacted] moved to a different position in ABM Onsite,
Inc. before the sale. It would be quite unusual if none of ABM's employees
had moved on in their careers during this significant passage of time. That's
the normal pattern of business. Universal has replaced these employees in
their capacities as key personnel for the USPS Solicitation.
Protestor’s response argues that defendant’s and intervenor’s
evidence consists solely of outdated and incorrect LinkedIn profiles. As this
Court may suspect, a LinkedIn profile pulled off the internet is not a
particularly reliable source of current employment information, particularly
during a time of a corporate transition. In fact, each of the seven employees
identified by Defendant and CSC is either transitioning to Universal or has
left ABM since the time of proposal submission nearly one and half years
ago.
The determination of whether the ABM Security Services proposal remains intact and
even can be executed by Universal as a successor-in-interest to ABM Security Services’
proposal, and, therefore, whether Universal is a complete successor-in-interest to ABM
Security Services on the submitted proposal, includes whether the departures and now
unavailable resources of the parent company will impact Universal’s ability to succeed.
Protestor argues that:
The Court of Federal Claims’ decision in Alabama Aircraft provides the
proper legal framework for this issue. Ala. Aircraft Indus., 83 Fed. Cl. 666.
Like Defendant here, the agency in that case argued that the offeror had
relied on the workforce, capabilities, facilities and resources of its parent in
its proposal, and those resources were no longer available following a
corporate reorganization and sale of corporate assets. Id. at 682. The
agency also contended that the protester, as a result of the sale of corporate
assets, did not have the financial ability to perform the contract. The Court
23
rejected both of these contentions. First, the Court noted that while the
proposal contained a number of references to the offeror’s parent company,
those references “connoted only that [the offeror] had the financial support
of its parent.”
(citing Alabama Aircraft Indus., Inc.-Birmingham v. United States, 83 Fed. Cl. at 682).
Indeed protestor, defendant,15 and intervenor all cite to the Federal Claims decision in
Alabama Aircraft Industries, Inc.-Birmingham v. United States, 83 Fed. Cl. 666, with
defendant arguing that:
Here, unlike in Alabama Aircraft, ABM Security Services Inc. did “rely upon
the availability of resources from [ABM Industries, Inc.] in formulating its
proposal.” Id. at 683. Further, as we explain in greater detail below, unlike
in Alabama Aircraft, the sale of ABM Security Services Inc. to Universal
does affect assets that are necessary to contract performance or that were
“necessary to [ABM Security Services’] proposed approach.”
(citing Alabama Aircraft Indus., Inc.-Birmingham v. United States, 83 Fed. Cl. at 683).
In Alabama Aircraft, the Court of Federal Claims noted that “[t]he Air Force and
Boeing claim that Alabama Aircraft fails to qualify as an ‘interested party’ because ‘it is
not the same entity that submitted a proposal’ and because it lacks adequate financial
resources to perform the KC–135 contract.” Id. at 681. The protestor in Alabama Aircraft
argued “that it is the same corporate entity as Pemco Aeroplex, that the Air Force had
notice of the sale of Pemco World Air and the resulting name change, and that it has the
financial capability to perform the contract, as evidenced by an audit report prepared in
June 2008 by the Defense Contract Audit Agency.” Id. The Alabama Aircraft court noted
that intervenor Boeing’s motion to dismiss did not explain how the assets sold by
“Alabama Aircraft's parent corporation were necessary for Alabama Aircraft to perform
the contract or that the assets were ‘necessary to its proposed approach.’ The sale of
Pemco World Air did not affect the physical resources on which Alabama Aircraft would
rely in performing the KC–135 PDM contract.” Id. (internal citation omitted). The Alabama
Aircraft court further determined that:
15 The court notes that, although defendant also cites to Emerald Coast Finest Produce
Co. v. United States, 79 Fed. Cl. 466 (2007), the facts of that case are very different from
the above captioned protest, as the protestor in Emerald Coast admitted that “Emerald
Coast can no longer compete for a successor contract issued by DeCA [Defense
Commissary Agency of the Department of Defense, Resale Contracting Division]. . . .” Id.
at 471. Protestor in Emerald Coast was seeking recovery of its proposal costs and an
award of its costs and attorney fees. The Emerald Coast court concluded, “[b]ecause
plaintiff had standing when it filed this bid protest, the court finds that, regardless of
whether plaintiff can perform the contract at this time, plaintiff does indeed have standing
to continue its bid protest.” Id.
24
The sale of the Pemco World Air subsidiary did not affect the operational
resources that Alabama Aircraft could devote to the KC–135 PDM contract.
Prior to the sale, Alabama Aircraft did not rely on either the personnel or the
assets of Pemco World Air to perform its work. Consistent with the separate
existence of Pemco World Air and Alabama Aircraft, Pemco World Air had
no involvement with the current KC–135 bridge contract. The sale of Pemco
World Air did not affect any of the facilities, equipment, or personnel that
were necessary to perform the work contemplated by Alabama Aircraft's
proposal.
Id. at 682 (internal citations omitted). The Alabama Aircraft court concluded:
Alabama Aircraft has standing to challenge the Air Force's award of the KC–
135 PDM contract because it satisfies the definition of “interested party.”
Despite its name change and the sale of a sister subsidiary, Alabama
Aircraft is the same legal entity as the company that submitted its second
final proposal revision in June 2007. Alabama Aircraft has the same
operational capabilities as its predecessor and due to the sale to the sister
company it is in a stronger financial position to perform the instant contract.
Furthermore, the Air Force had ample notice of the sale of the sister
company and failed to initiate any inquiries about whether the sale called
into question Alabama Aircraft's capabilities to perform the contract.”
Id. at 685.
This court believes that Alabama Aircraft supports defendant’s and intervenor’s
position. Unlike the conclusion in Alabama Aircraft, that, “Alabama Aircraft has the same
operational capabilities as its predecessor and due to the sale to the sister company it is
in a stronger financial position to perform the instant contract,” this court believes
Universal is not the same position now as ABM Security Services was when it submitted
its proposal. In fact, Universal appears to lack all of the resources ABM Security Services
articulated when it referenced its parent and related corporations.16 ABM Security
Services repeatedly used, and relied on, the name and financial information of its parent
company in its proposal. Each instance was designed to bolster the proposal of ABM
Security Services, and was not, as Mr. Barlev’s affidavit would like the court to believe,
mere information about “ABM corporate family’s work in golf course” and “grounds
maintenance.” Protestor would have this court believe that each reference was only
coloration and not relevant to the merits of the evaluation. The court disagrees, and
concludes that, there are simply too many references to support from, or reliance on, the
parent company, ABM Industries. Moreover, the information supplied by Mr. Barlev in his
affidavit, including about available personnel, although intended to bolster protestor’s
16At oral argument, protestor claimed: “At this point, Universal is 80,000 employees, a
$2.5 billion company. It’s huge. The biggest or one of the biggest security firms out
there.”
25
case, in fact, does the opposite. The court believes that, unlike in Alabama Aircraft, in
which the court found the references to the parent company “connoted only that [the
offeror] had the financial support of its parent,” id. at 682, ABM Security Services’
references to its parent company promised more, including personnel and back up
support, which Universal has not demonstrated it can provide after the sale of ABM
Security Services by ABM Industries.
Additionally, although protestor also cites to the case L-3 Communications
Integrated Systems, L.P. v. United States, 84 Fed. Cl. 768, as an example of an agency
wrongly arguing that a protestor did not have standing as a successor in interest, L-3
does not assist the protestor. The L-3 court indicated:
Defendant contends that L–3 fails to qualify as an interested party because
it was not an actual or prospective offeror and did not submit a proposal—
indeed it did not even exist when its predecessor submitted its offer. While
this is true, this argument ignores the reality that L–3 is the complete
successor-in-interest to the actual offeror, Raytheon Company, and
embraces the identical business unit which submitted Raytheon Company's
bid in the C–5 AMP procurement. As such, L–3 stands in the shoes of
Raytheon Company in the instant case and has standing to pursue this
claim.
Id. at 779. As demonstrated above, this court does not believe that even if Universal is a
complete successor-in-interest to ABM Security Services, the specific references to ABM
Industries in the proposal submitted by ABM Security Services necessarily means that
Universal cannot with any certainty fulfill the promises made in the proposal submitted by
the agency.17
Defendant also alleges that ABM Security Services’ proposal relied upon not only
the personnel, but also the assets of ABM Industries that were not purchased by or
transitioned to Universal. Defendant specifically points to the fact that
[i]n its proposal, ABM relied heavily upon “[ABM Security Services’ license],”
a proprietary third-party web-based data collection and analytics system.
17 The court notes that defendant cites to American Government Properties v. United
States, 118 Fed. Cl. 61 (2014) and claims the holding of that case was a “finding parent
was not successor-in-interest to subsidiary’s interest in contract with Government in-part
because parent did not maintain same management or had ‘same financial wherewithal
to perform the contract.’” (quoting Am. Gov’t Properties v. United States, 118 Fed. Cl. at
68). That case, however, and was not a protest situation, but an alleged breach of contract
regarding the termination of a contract. Moreover, the successor-in-interest issue in
American Government stemmed not from a contract clause, as in the above captioned
protest, but from a statute, 41 U.S.C. § 6305 (2012), known as the Contracts Act, which
prohibits the transfer of federal contracts, or any interest in such a contract, to another
party. See Am. Gov’t Properties v. United States, 118 Fed. Cl. at 66.
26
Indeed, ABM specifically proposed integrating [ABM Security Services’
license] into the Postal Service contract: ABM develops and deploys
proprietary and best-in-class outsourced technology systems to manage
service performance and cost. We provide web-based secure access to
extensive amounts of data for tracking service performance including
contact information, scope of work levels, service compliance to schedules,
quality levels, staffing activities, service calls, and financial status. The
following technology components are being used, and/or proposed for use
to the national USPS portfolio
• Mobile security management via laptops & smartphones — [ABM
Security Services’ license]
• Labor Management System for Scheduling & Payroll— [redacted]
• Online Performance Metrics — [redacted]
• USPS dedicated ABM web portal — [redacted]
• Training Technology — [redacted]
• Collaborative Web Service for Continuous Improvement — [redacted]
• Security guard alerts viewed at NLECC — [ABM Security Services’
license]
• Best-Practices Sharing in Online Community — [redacted]
• Infrastructure Technology Platform – [redacted]
(emphasis added by defendant). As defendant correctly points out, “[h]owever, the
Disclosure Schedules attached to the Asset Purchase Agreement lists [ABM Security
Services’ license] as an excluded asset: ‘The License / Partnership Agreement for
subscription with [redacted] for security software solutions, dated November 12, 2014,
between ABM Security Services, Inc. and [ABM Security Services’ license] will not be
Conveyed to Buyer.’”18 At oral argument, protestor addressed the excluded assets for the
first time and contended that the [ABM Security Services’ license] software was not
material to the sale or to the court’s inquiry of whether Universal is the complete
successor-in-interest to ABM Security Services, and, therefore, it did not matter that the
[ABM Security Services’ license] and other licenses were carved out of the transfer,
because the licenses were “commercially available licenses. Universal Protection can
simply go to [ABM Security Services’ license] and buy it. It’s as simple as that.” Protestor
also emphasized that the [ABM Security Services’ license] is “a commercially available
18 Defendant also notes that “other information technology assets included in ABM’s
proposal were excluded from the assets transferred to Universal. Annex 2.10 to the Asset
Purchase Agreement provides that the following “Core applications” that are committed
to contract performance in ABM’s proposal will not be transferred to Universal: [redacted];
[redacted]; and [redacted].” (internal citations omitted). Therefore, defendant argues,
“significant portions of the information technology assets included in ABM’s proposal were
resources of ABM Industries, Inc. — and were not acquired by Universal.”
27
piece of software that also was available in a similar form at Universal.”19 Despite the
claims made by protestor at oral argument, it is indisputable that the [ABM Security
Services’ license], which was a part of ABM Security Services when it submitted its
proposal, was not part of Universal’s assets when it filed the protest in this court.
Moreover, although protestor claims that Universal likely had similar commercially
licensed software or could obtain it from [redacted], the court cannot only rely on
protestor’s projections, and there is no evidence of protestor’s contentions in the record
or in the submissions to the court regarding the motions to dismiss. Therefore, as alleged
by defendant, “because Universal is not the complete successor-in-interest to ABM
Security Services, Universal cannot demonstrate that the Postal Service’s award of the
contract to CSC prejudiced it.” Protestor cannot demonstrate that it can meet the
“substantial chance” test to be awarded the contract, and, therefore, lacks standing in this
court. See Todd Constr., L.P. v. United States, 656 F.3d at 1315.
CONCLUSION
The court notes that the sale of ABM Security Services did not occur until after the
agency agreed to take corrective action, and the corrective action appears to have
changed little of the underlying evaluation and award justification. Had the agency not
taken the corrective action and had the court evaluated the merits of the claims earlier,
defendant and intervenor could not have alleged lack of standing due to the sale to
Universal because it would not yet have occurred. Despite the unfortunate procedural
history of this protest, and the previous, related protests, and the difficult situation in which
protestor Universal finds itself, the court concludes that Universal is not the complete
successor-in-interest to ABM Security Services’ proposal, and, therefore, the court cannot
consider the merits of the protest. Based on the above discussion, defendant’s and
intervenor’s motions to dismiss protestor’s complaint are GRANTED. The parties’ cross-
motions for judgment on the Administrative Record are MOOT. Protestor’s complaint is
DISMISSED. The Clerk’s Office shall enter JUDGMENT consistent with this opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
19 Protestor also argued at oral argument that “the [ABM Security Services’ license]
software is not mentioned anywhere in the evaluation. It’s not something pivotal to the
Government’s view of the proposal.”
28