Guardian Moving and Storage Co., Inc. v. United States ( 2015 )

In the United States Court of Federal Claims
Bid Protest
No. 15-30C
(Filed Under Seal: June 29, 2015 | Reissued: July 10, 2015)1
)
GUARDIAN MOVING AND STORAGE )
CO., INC., )
)
Plaintiff, ) Bid Protest; Corrective Action; Motion
) to Dismiss; Standing; Mootness; Motion
v. ) for Judgment on the Administrative
) Record; FAR 15.308; FAR 15.307(b);
THE UNITED STATES OF AMERICA, ) FAR 52.212-1; FAR 15.206
) FAR 15.306
Defendant, )
)
and )
)
METROPOLITAN VAN AND )
STORAGE, INC., )
)
Defendant-Intervenor. )
David Bailey Dixon, Buchanan Ingersoll & Rooney P.C., Washington, D.C., for
plaintiff.
Jeffrey David Klingman, Trial Attorney, with whom were Benjamin C. Mizer,
Assistant Attorney General, Robert E. Kirschman, Jr., Director, Donald E.
Kinner, Assistant Director, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, D.C., for defendant. Marvin Kent
Gibbs, AFLOA/JAQ, and Peter B. Ries, USTRANSCOM TCJA, Of Counsel.
Joseph Gilbert Billings, Miles & Stockbridge P.C., Baltimore, M.D., for
defendant-intervenor. Rita J. Piel, Miles & Stockbridge P.C., Baltimore, M.D.,
Of Counsel.
1
This Opinion was previously issued under seal on June 29, 2015, and the Clerk of the Court
entered judgment on June 30, 2015. The parties were given the opportunity to propose
redactions on or before July 7, 2015. Because the parties proposed no redactions, the Court
reissues its decision without redactions.
OPINION AND ORDER
KAPLAN, Judge.
Before the Court are three bid protests brought by one offeror, Guardian Moving and
Storage Inc. (“Guardian”), during the course of a single procurement. More specifically,
Guardian filed (a) a post-award protest of the initial award by the United States Transportation
Command (“USTRANSCOM” or “the agency”) to Metropolitan Van and Storage, Inc. (“MVS”)
of a combined East and West Coast contract for non-temporary storage of household goods and
unaccompanied baggage belonging to military service members and Department of Defense
civilian employees; (b) a pre-award protest of the agency’s decision in response to Guardian’s
original protest to take corrective action and reevaluate Guardian’s and MVS’s proposals; and (c)
a post-award protest of the agency’s decision again to award the combined East and West Coast
contract to MVS after the reevaluation. For the reasons set forth below, (1) Guardian’s first post-
award protest is DISMISSED as moot; (2) the government’s and the intervenor’s motions for
judgment on the administrative record are GRANTED; and (3) all other pending motions are
DENIED.
BACKGROUND
I. The Solicitation
On July 2, 2014, the Military Distribution and Deployment Command, a component of
USTRANSCOM, issued Request for Proposals (“RFP” or “solicitation”) No. HTC711-14-R-
R011 for non-temporary storage of household goods (“HHG”) and unaccompanied baggage
(“UB”) belonging to military service members and Department of Defense civilian employees on
the East and West Coasts of the United States. Corrected Admin. R. (“AR”) Tab 23 at 364-65,
398.2 The RFP restricted the competition to small businesses meeting the size standard of
NAICS Code 493110. AR Tab 23 at 365. Offerors could submit a proposal for the East Coast
only, a proposal for the West Coast only, and/or a combined proposal for both the East and West
Coasts. AR Tab 23 at 367-68. The solicitation was amended twice. AR Tabs 24, 51.
The solicitation required that proposals consist of three sections: Part I – RFP
Documents; Part II – Technical Proposal; and Part III – Pricing Proposal. AR Tab 51 at 1399.
In Part I, offerors were instructed to provide, among other things, (1) a “[f]lood plain report from
the Federal Emergency Management Agency [“FEMA”], the United States Army Corps of
Engineers or [a] disinterested third party professional engineer/surveyor”; and (2)
“[d]ocumentation signed by the Local Fire Marshall [sic] (or authorized representative) affirming
that the facility meets all local codes and ordinances [and] dated within 30 days of [the] proposal
submission date.” AR Tab 51 at 1399. In Part II, offerors were to describe their approaches for
achieving the objectives stated in the Performance Work Statement (“PWS”). Id. at 1400. For
instance, PWS paragraph 1.3.1.1.1 provides that “[t]he contractor shall be fully operational to
begin accepting HHG/UB inventory and associated documentation not later than 30 days after
2
Citations to the AR refer to the corrected administrative record filed on March 24, 2015 as well
as the additional tabs filed on May 8, 2015.
2
award, as directed by the Contracting Officer.” Id. at 1405. Paragraph 1.3.3.1 provides that
“[t]he contractor shall operate warehouse storage facilities capable of storing up to fifteen
million (15,000,000) gross pounds of HHG/UB annually.” Id. at 1406. Paragraph 1.3.3.1.2
provides that “[a]ll storage facilities shall provide firewall separation for every three (3) million
gross pounds of stored personal property lots,” and that “[f]ire aisles shall meet local fire
regulations as evidenced in the approved Fire Marshal Certification for all storage facilities”
(firewall/fire aisle requirement). Id. Paragraph 1.3.3.1.3 provides that “[a]ll storage facilities
shall be located above the 100-year flood plain for the area” (flood plain requirement). Id.
Pursuant to Federal Acquisition Regulation (FAR) 52.212-1(g), the Government intended
“to evaluate proposals and award a contract(s) without conducting discussions.” Id. at 1400.
However, the government reserved the right “to conduct discussions if it is determined to be in
the best interest of the Government.” Id.
In accordance with FAR 52.212-2(a), the award would be made on a lowest-price,
technically acceptable basis. Id. at 1400. Accordingly, the agency would add the total proposed
prices of the lowest-price, technically acceptable East Coast proposal and the lowest-price,
technically acceptable West Coast proposal, and it would compare the resulting, aggregated price
with the total proposed price of the lowest-price, technically acceptable combined proposal for
both the East and West Coasts. Id. at 1401. If the total proposed price of the lowest-price,
technically acceptable combined proposal were less than or equal to the aggregated price of the
lowest-price, technically acceptable East Coast proposal and the lowest-price, technically
acceptable West Coast proposal, the agency would award a single contract to the offeror who
submitted that combined proposal. Id.
II. Initial Proposals and Award to MVS
Guardian, the plaintiff here and the East Coast incumbent, submitted an East Coast
proposal, a West Coast proposal, and a combined proposal. See AR Tab 28 at 563-64. MVS,
the intervenor here and the West Coast incumbent, submitted a West Coast proposal and a
combined proposal. AR Tabs 29-30.3
The agency initially determined that Guardian’s East Coast proposal was technically
unacceptable but within the competitive range, and after discussions, the agency requested and
Guardian submitted a final proposal revision (“FPR”). AR Tab 32 at 1012, AR Tab 34 at 1018.
After reviewing MVS’s proposals, the agency determined that clarifications were required in
accordance with FAR 15.306(b). AR Tab 32 at 1013. Specifically, the agency asked MVS to
clarify that the person who signed the documentation affirming that MVS’s East Coast facility
met all local codes and ordinances was an authorized representative of the local fire marshal, as
required by the solicitation. Id. In addition, the agency asked MVS to clarify that it met the size
standard associated with the NAICS code specified for this solicitation and that the System for
Award Management (“SAM database”) was updated to reflect that MVS met this standard. Id.
MVS responded by providing a letter from the local building official responsible for fire and
3
One other offeror submitted a proposal, but that offeror was eliminated from the competitive
range relatively early in the procurement process. See AR Tab 33 at 1017.
3
safety code compliance and confirming that it met the size standard and that the SAM database
had been updated. AR Tab 36 at 1087-88.
Thereafter, the agency determined that Guardian’s offer was the lowest-price, technically
acceptable, East Coast proposal and that MVS’s was the lowest-price, technically acceptable
West Coast proposal. Id. at 1030, 1104-05. It concluded, however, that the total proposed price
of MVS’s combined proposal was lower than the aggregated price of Guardian’s East Coast
proposal and MVS’s West Coast proposal. Id. at 1104-08. Therefore, the agency awarded a
contract for the East and West Coasts combined to MVS. AR Tab 39 at 1244.
III. Guardian’s First Post-Award Protest and USTRANSCOM’s Corrective Action
On January 12, 2015, Guardian protested the award to MVS, filing its first complaint and
a motion for a preliminary injunction in this Court. MVS moved to intervene, and the Court
granted its motion.
Guardian filed its first motion for judgment on the administrative record (“MJAR”) on
January 30, 2015. In that motion, Guardian argued that MVS’s proposal was unacceptable and
ineligible for award because (1) MVS’s proposal failed to provide the required fire marshal
certification for its proposed East Coast facility, and the FAR did not authorize the agency to
cure this deficiency using clarifications; (2) MVS’s proposal failed to include the required 100-
year flood plain report; (3) MVS’s proposal failed to include the required small business
representation and certification with its proposal, and the FAR did not authorize the agency to
cure this deficiency using clarifications; (4) neither MVS’s proposed East Coast facility nor its
proposed West Coast facility met the requirements of PWS 1.3.3.1 regarding the facilities’
ability to store fifteen million gross pounds of HHG/UB annually; (5) MVS’s technical proposal
failed to address the requirements of PWS 1.3.3.1.2 regarding fire wall separation and fire aisles.
Pl.’s Mem. in Supp. of MJAR 20-45, Feb. 10, 2015, ECF No. 35.
In response to Guardian’s protest, on February 10, 2015, the government notified the
Court that USTRANSCOM had proposed taking corrective action in the case. Def.’s Notice of
Proposed Corrective Action, Feb. 10, 2015, ECF No. 39. In an email and an attached document
dated February 19, 2015, the agency notified Guardian and MVS that, “[a]s a result of a post
award protest before the Court of Federal Claims, the Contracting Officer has decided to open
technical discussions for [the] subject solicitation.” AR Tabs 56, 56a, 57, 57a.
Upon the agency’s reevaluation of the proposals within the competitive range, the agency
determined that all the technical ratings for all of the proposals—Guardian’s East Coast proposal,
MVS’s West Coast proposal, and MVS’s combined proposal—were unacceptable, and the
agency issued evaluation notices specifying each proposal’s deficiencies. AR Tabs 56-57f.
Guardian’s proposal, according to the agency, “failed to confirm that the proposed facility(ies)
is/are located above the 100 year flood plain as evidenced by a flood plain report from the
Federal Emergency Management Agency, the United States Army Corps of Engineers or
disinterested third party professional engineer/surveyor.” AR Tab 56b. MVS’s West Coast
proposal and combined proposal, according to the agency, (1) “failed to address/confirm that all
[proposed] storage facilities shall provide firewall separation for every three (3) million gross
4
pounds of stored personal property lots,” AR Tabs 57b, 57d; (2) “failed to confirm that the
proposed facility(ies) is/are located above the 100 year flood plain as evidenced by a flood plain
report from the Federal Emergency Management Agency, the United States Army Corps of
Engineers or disinterested third party professional engineer/surveyor,” AR Tabs 57c, 57f; and (3)
“failed to affirm that the proposed . . . facility(ies) meet[] all local fire and safety codes and
ordinances,” as evidenced by the signature of the local fire marshal, AR Tabs 57d; see also AR
Tabs 57b.
Both offerors were initially required to respond to the evaluation notices and submit
FPRs by February 27, 2015, AR Tabs 56a, 57a, but after MVS requested a two-week extension,
the agency notified the offerors on February 25 that FPRs would not be due until “12 March
2015 at 1600 CST.” AR Tabs 59a, 59b. On March 12, Guardian submitted its FPR, AR Tab 61,
but MVS requested an additional one-week extension, explaining to the contracting officer that,
despite contacting the necessary local officials immediately after issuance of the evaluation
notices and several times since, MVS was still waiting for a response. AR Tab 62. The
contracting officer granted the extension and notified Guardian, in an email time stamped
“March 12, 2015 3:33 PM,” that it would be permitted to change, modify, or supplement its FPR
until March 20. AR Tab 63. MVS submitted its FPRs on March 18. AR Tab 68. Guardian did
not submit a changed, modified, or supplemented FPR.
Meanwhile, on February 13, 2015, Guardian amended its complaint pursuant to RCFC
15(a)(1)(B). Several days later, Guardian filed a notice to the Court that it objected to the
agency’s corrective action and that it intended to challenge the reevaluation. The government,
for its part, moved to dismiss Guardian’s first post-award protest as moot. After a status
conference with the Court, Guardian filed a motion for leave to file an amended complaint to
include a pre-award protest of the agency’s corrective action. The government opposed
Guardian’s motion, arguing that amendment would be futile. Finding that “it would be most
appropriate and would serve judicial economy to address the legal sufficiency of Guardian’s
amended complaint in the context of full briefing on motions to dismiss and/or cross-motions for
judgment on the administrative record,” the Court granted Guardian’s motion to amend its
complaint and denied the government’s motion to dismiss without prejudice. Order at 2, March
9, 2015, ECF No. 50.
IV. Guardian’s Pre-Award Protest
Guardian filed its amended complaint on March 10, 2015, and the next day, it filed a
second motion for a temporary restraining order and a preliminary injunction. In its amended
complaint, Guardian asserted that the corrective action was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law because, “[a]s Guardian’s proposal was
initially determined to be the lowest-priced, technically-acceptable offeror for the East Coast, it
should have been awarded the East Coast contract under the terms of the Solicitation when the
Agency found MVS’s East and West Coast Combined proposal to be ‘Unacceptable’ during the
corrective action.” 2d Am. Compl. at 3-4, March 10, 2015, ECF No. 52. In addition, according
to Guardian, the agency’s “opening of ‘discussions’ for MVS’s East and West Coast Combined
technical proposal improperly allows MVS to provide an untimely revision [to] its materially
non-responsive proposal in violation of the Solicitation, the FAR and substantial case law.” Id.
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at 4. Moreover, Guardian disputed the agency’s new finding that its proposal was unacceptable
for failure to meet the flood plain documentation requirement as “unreasonable and factually[]
erroneous” because, according to Guardian, “Guardian’s proposal unambiguously included such
documentation, and the Defendant had previously found the documentation provided acceptable
in two separate procurements.” Id. at 4.
After a status conference, the Court denied Guardian’s motion for preliminary injunctive
relief, finding that Guardian failed to demonstrate that it would suffer irreparable harm absent
such relief. Order, March 11, 2015, ECF No. 56. The Court also set a briefing schedule on
cross-MJARs and any motions to dismiss that the government or MVS might choose to file. Id.
In its second MJAR, Guardian elaborated on the claims asserted in its pre-award
complaint regarding the corrective action, and it made some additional arguments. Guardian
argued, for instance, that the government failed to document its reevaluation of the proposals or
the rationale for the agency’s determination that Guardian’s proposal was unacceptable. Pl.’s
Mem. in Supp. of Second MJAR (“Pl.’s 2d MJAR”) 19-22, Apr. 10, 2015, ECF No. 73.
Moreover, Guardian argued that “[b]ecause MVS did not submit its FPRs by ‘12 March 2015 at
1600 CST,’ and no amendment to the solicitation was issued by the contracting officer prior to
that time, both of MVS’s FPRs are late, [and,] as a matter of law, will not be considered under
FAR 52.212-1(f) of the solicitation.” Id. at 38. Further, Guardian argued, the contracting
officer’s improper communications with MVS after the close of discussions, and extension to the
FPR deadline solely to benefit MVS, was in violation of FAR 15.307(b). Id. at 40.
On April 20, 2015, the government filed a motion to dismiss or, in the alternative, for
judgment upon the administrative record, combined with its opposition to Guardian’s MJAR.
The government argued that the Court lacked jurisdiction over Guardian’s protest to the original
award and the agency’s decision to take corrective action for three reasons: (1) Guardian lacked
standing to protest the actions of USTRANSCOM because its initial East Coast proposal was
technically unacceptable; (2) USTRANSCOM had rendered Guardian’s challenge to the original
award moot by initiating corrective action; and (3) Guardian’s challenge to the yet-to-be
completed corrective action was not ripe. See Def.’s Mot. to Dismiss or MJAR & Opp’n to Pl.’s
MJAR 11-23, Apr. 20, 2015, ECF No. 82 (“Def.’s Mots. & Opp’n”). Second, the government
argued that, even if the Court possessed jurisdiction, the government was entitled to judgment
upon the administrative record because Guardian had failed to demonstrate that the agency acted
unlawfully or unreasonably in either awarding the original contract to MVS or taking corrective
action. Id. at 23-29.
V. Guardian’s Second Post-Award Protest
On April 30, the government notified the Court that the corrective action had again
culminated in an award to MVS. Notice, Apr. 30, 2015, ECF No. 84. After a status conference,
the Court granted Guardian leave to file a third amended complaint that would include all of its
claims, pre- and post-award, in connection with the procurement under Solicitation No.
HTC711-14-R-R011. Order, May 1, 2015, ECF No. 88. The Court also ordered the parties to
propose a briefing schedule for cross-motions for judgment on the administrative record and any
motions to dismiss, which similarly would cover all issues related to this procurement. Id. The
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parties filed their proposed schedule on May 5, 2015, and the Court issued an order adopting that
schedule the next day.
The government filed an amended administrative record on May 8, 2015. The record
reveals that the agency concluded that both offerors had cured the problems that had previously
rendered their proposals technically unacceptable. Specifically, as noted by the Source Selection
Evaluation Board (“SSEB”), Guardian submitted “[f]lood plain reports inclusive of FEMA maps
signed by a disinterested third party professional land surveyor, Mr. Dennis Taflambas, with
DKT Associates, Land Surveyors confirming that the proposed facilities are located above the
100 year flood plain for the area as required in PWS paragraph 1.3.3.1.3.” AR Tab 71a at 2410.
MVS similarly submitted supplemental documentation certifying that its facilities could
accommodate fifteen million gross pounds of HHG/UB annually. AR Tab 71c at 2429. It also
provided a letter confirming that its facilities met all local fire and safety ordinances from the
authorized representative for the Fire Chief of Suffolk Fire & Rescue, who serves as the Fire
Marshal in accordance with Section 38-34 of the Code of the City of Suffolk, Virginia. Id. at
2430. Finally, MVS had provided additional supportive information confirming that all facilities
include a firewall separation for every three million gross pounds and submitted flood plain
reports signed by a disinterested third party professional engineer confirming that the facilities
are all located above the 100 year flood plain for the area. Id. at 2430-31.
Guardian filed its third MJAR on May 19, 2015, making substantially the same
arguments that it made in its previous two MJARs, plus additional challenges to the new award.
Specifically, Guardian’s arguments boil down to the following: (1) Guardian’s proposal was
initially determined to be the lowest-price, technically acceptable offeror for the East Coast and
thus deserved the award when the agency determined that MVS’s proposal was unacceptable; (2)
the agency lacked a rational basis for finding Guardian’s proposal unacceptable upon
reevaluation; (3) MVS’s initial proposal and its FPRs were late, and the agency entertained
unlawful communications from MVS after the FPR deadline; (4) MVS did not provide the
required fire marshal certification in its FPR; (5) the solicitation required that offerors occupy
and operate their proposed facilities, and MVS does not; and (6) MVS’s proposed East Coast
facility is too small to accommodate fifteen million gross pounds of HHG/UB. See generally
Pl.’s Mem. in Supp. of Third MJAR (“Pl.’s MJAR Mem.”), May 19, 2015, ECF No. 95.
As before, the government filed a motion to dismiss Guardian’s first claim relating to the
initial award and an MJAR with regard to the rest of Guardian’s claims. MVS similarly filed a
Cross-MJAR.
For the reasons set forth in greater detail below, after reviewing the record and
considering all of the parties arguments, the Court rules that: (1) the government’s motion to
dismiss Guardian’s first post-award protest is GRANTED because that protest is moot; (2)
Guardian’s motion for judgment on the administrative record with respect to its pre-award
protest is DENIED, and the government’s and the intervenor’s cross-motions for judgment on
the administrative record with respect to that protest are GRANTED; and, finally, (3)
Guardian’s motion for judgment on the administrative record with respect to its second post-
award protest is DENIED, and the government’s and the intervenor’s cross-motions for
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judgment on the administrative record are GRANTED. In addition, Guardian’s motions to
supplement the administrative record are DENIED.
DISCUSSION
I. The Government’s and MVS’s Motions to Dismiss Guardian’s First Post-Award
Bid Protest Are Granted Because That Protest Is Moot.
The Court of Federal Claims has “jurisdiction to render judgment on an action by an
interested party objecting 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) (2012). A party is an “interested party” with standing to bring suit under
28 U.S.C. § 1491(b)(1) if the party “is an actual or prospective bidder whose direct economic
interest would be affected by the award of the contract.” Orion Tech., Inc. v. United States, 704
F.3d 1344, 1348 (Fed. Cir. 2013). A bidder has a direct economic interest if it suffered a
competitive injury or prejudice. Myers Investigative & Sec. Servs., Inc. v. United States, 275
F.3d 1366, 1370 (Fed. Cir. 2002) (holding that “prejudice (or injury) is a necessary element of
standing”). In a post-award bid protest, the protestor has suffered prejudice if it would have had
a “substantial chance” of winning the award “but for the alleged error in the procurement
process.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.
2003). See also Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009); Rex
Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006). “In other words, the
protestor’s chance of securing the award must not have been insubstantial.” Info. Tech., 316
F.3d at 1319.
The government contends that the Court should dismiss Guardian’s first post-award
protest because Guardian lacks standing and because that protest is, in any event, moot. With
respect to standing, the government contends that Guardian cannot claim that it would have had a
substantial chance of being awarded the contract because its initial East Coast proposal was
technically unacceptable. Def.’s Mot. for Partial Dismissal & MJAR & Opp’n to Pl.’s MJAR
(“Def.’s Mot.”) 14-16, June 1, 2015, ECF No. 98. As the agency found upon reevaluating the
proposals, the government argues, Guardian did not satisfy the requirement that offerors submit a
flood plain report from FEMA, the Army Corps of Engineers, or a disinterested third party
professional engineer or surveyor. Id. Rather, the government argues, Guardian submitted a
FEMA standard flood hazard determination form (“SFHDF”), which stated that such forms were
“provided to the lender pursuant to the Flood Disaster Protection Act” and “should not be used
for any other purpose.” Id. at 15. Further, the government observes, the form was prepared by
CoreLogic Flood Services, not FEMA, the Army Corps of Engineers, or a disinterested third
party professional engineer or surveyor, as required by the solicitation. Id.
As discussed further below, the Court agrees with the government that the agency
reasonably concluded that Guardian’s flood plain report did not meet the criteria contained in the
solicitation. The Court does not agree with the government, however, regarding the effect of this
finding of unacceptability upon Guardian’s standing under the circumstances of this case. Thus,
although the agency reasonably found Guardian’s proposal unacceptable as part of its corrective
action, Guardian remained “within the zone of active consideration” because the agency had also
8
found MVS’s proposal unacceptable and because Guardian and MVS were the only offerors
whose proposals fell within the competitive range. See Allied Tech. Grp. v. United States, 94
Fed. Cl. 16, 37 (2010) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365,
1367 (Fed. Cir. 1999)). If the Court agreed with Guardian that MVS’s proposal (but not
Guardian’s) should have been found technically unacceptable, then Guardian would be next in
line to receive the award because it was the only other offeror considered for the contract.
Additionally, if the Court found that both Guardian and MVS were ineligible for award, the
agency “would be obligated to resolicit the contract and [Guardian] could compete for the
contract again.” Id. Either way, Guardian “had a ‘substantial chance’ of receiving the award,
and thus has standing.” Id.4
Although Guardian’s first post-award protest cannot be dismissed on grounds of standing,
it nonetheless must be dismissed on the government’s alternative grounds, mootness. A case is
moot “[w]hen, during the course of litigation, it develops that the relief sought has been granted
or that the questions originally in controversy between the parties are no longer at issue.”
Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 939 (Fed. Cir. 2007). In its first
post-award protest, Guardian sought relief in the form of, among other things, a permanent
injunction requiring “the Government to conduct a fair reevaluation of the proposals, and award
a new contract, or contracts, under the terms and the conditions of the Solicitation.” Compl. at
27, Jan. 12, 2015, ECF No. 1. In its corrective action, the agency provided precisely what
Guardian requested. Now that the agency has given both offerors an opportunity to submit
FPRs, reevaluated those proposals, and issued a new award, the questions in controversy at the
time of Guardian’s initial protest, which concerned whether MVS’ original proposal was
technically acceptable, are no longer live ones. Eskridge Research Corp. v. United States, 92
Fed. Cl. 88, 94 (2010) (finding claims in a bid protest regarding the original award moot because
“the relief that would otherwise be available has already been granted due to the agency’s
decision to re-evaluate proposals”).
Notwithstanding the foregoing, Guardian claims that its first post-award protest is not
moot. It contends that—under the terms of the solicitation itself—because MVS’s original
proposal was technically unacceptable, the agency was required to award the contract to
Guardian. Anything short of such an award, Guardian argues, does not offer it full relief.
Guardian cites the following language from the solicitation in support of this argument:
If the lowest price East and West Coast offer . . . is rated unacceptable, the next
lowest price East and West coast combined offer . . . will be evaluated for Technical
Acceptance. . . . If all East and West combined offers . . . with a TPP less than or
equal to the overall total price of the separately evaluated lowest priced technically
acceptable offers for each coast . . . are rated Unacceptable award will be made to
4
As the court noted in Allied Technical Group, “[i]f the Court were to accept the Government’s
position, a procurement official could preclude any review of a competitive award involving two
offerors simply by finding the losing offeror ineligible for award.” 94 Fed. Cl. at 37. Such a
position “produces an illogical result” and “is contrary to established case law and has been
rejected both in the Federal Circuit and this Court.” Id. See also Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 2001)
9
the initially determined lowest priced technically acceptable offerors for the East
Coast . . . and the West Coast . . . without further consideration of any other offers.
Pl.’s MJAR Mem. 21-22 (citing AR Tab 51 at 1401) (emphasis in plaintiff’s brief).
According to Guardian, after the agency found MVS’s East and West Coast combined
proposal technically unacceptable during the corrective action, there were no longer any
technically acceptable combined offers with a total proposed price less than or equal to the
overall total price of the separately evaluated and initially determined lowest price offers for each
coast. Therefore, Guardian argues, “the award for the East Coast contract was to go to Guardian
‘without further consideration of any other offers,’ because Guardian was ‘the initially
determined lowest priced technically acceptable offeror [. . .] for the East Coast.’” Pl.’s MJAR
Mem. 22 (quoting AR Tab 49 at 1386) (emphasis in plaintiff’s brief).
The gist of this argument, as best the Court can understand it, is that the solicitation
precluded the agency from allowing MVS to cure its technical deficiencies as part of the
corrective action. Thus, Guardian contends that the agency was required to award the contract to
Guardian upon finding MVS’s proposal technically unacceptable, and was also precluded from
reevaluating the technical sufficiency of Guardian’s proposal, because Guardian’s proposal had
been “initially determined” to be technically acceptable.
There are numerous problems with this rather unusual interpretation of the language of
the solicitation, one of them being the well-established principle that “where, in a negotiated
procurement, an offeror’s proposal does not comply with the solicitation’s requirements, ‘an
agency is not required to eliminate the awardee from the competition, but may permit it to
correct its proposal.’” ManTech Telecomm. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57,
71 (2001) (quoting D & M Gen. Contracting, Inc., B-252282 et al, 93-2 CPD ¶ 104, at 3 (Comp.
Gen. Aug. 19, 1993)). See also SMS Data Prods. Grp., Inc. v. Austin, 940 F.2d 1514, 1517
(Fed. Cir. 1991). Indeed, in this case, the agency did just that during the initial procurement
process, by giving Guardian itself the opportunity to correct several technical deficiencies in its
own initial proposal. The notion that the agency was precluded by the cited language of the
solicitation from re-visiting an erroneous technical evaluation, whether during the initial award
phase of this protest or as part of a corrective action, is simply an implausible reading of the
“initial determination” language.
In fact, there is ample reason to believe that the agency was required, not simply
permitted, to open discussions with MVS to give MVS an equivalent opportunity to revise its
proposal to become technically acceptable. It is well established that if an agency conducts
discussions, those discussions must be “meaningful,” and they must not be “prejudicially
unequal.” CRAssociates, Inc. v. United States, 102 Fed. Cl. 698, 715 (2011); Dynacs Eng’g Co.
v. United States, 48 Fed. Cl. 124, 131 (2000). To be meaningful, discussions must advise
offerors of material proposal deficiencies and provide offerors “a reasonable opportunity to
address those areas of weakness which could have a competitive impact.” Dynacs Eng’g, 48
Fed. Cl. at 131 (quoting Bionetics Corp., B-280521 et al., 99-1 CPD ¶ 7, at 4 (Comp. Gen. Oct.
14, 1998)). “Questions and requests for clarifications that do not address critical deficiencies in
10
a proposal are not meaningful discussions.” Afghan Am. Army Servs. Corp. v. United States, 90
Fed. Cl. 341, 361 (2009) (citing Dynacs Eng’g, 48 Fed. Cl. at 131).
During the agency’s initial evaluation here, while the agency conducted discussions with
Guardian, it only requested clarifications from MVS. See AR Tab 32. Therefore, when the
agency determined as a result of Guardian’s bid protest that MVS’s proposal was actually
unacceptable, it had not yet advised MVS of the material deficiencies in its proposal or permitted
MVS to address those deficiencies with proposal revisions; that is, the agency had not afforded
MVS an equal opportunity for meaningful discussions. Because the agency had not afforded
MVS meaningful discussions, had the agency simply eliminated MVS from the competition and
awarded the contract to Guardian as Guardian urges, “its action would have been vulnerable to
serious legal challenge.” ManTech Telecomm., 49 Fed. Cl. at 72.
In short, there is no merit to Guardian’s argument that the agency’s corrective action did
not afford it all the relief it might have received in its first post-award bid protest by reevaluating
both offerors’ proposals and allowing both to bring themselves into technical compliance with
the solicitation. Guardian’s first post-award protest is moot and, accordingly, DISMISSED.
II. Guardian’s Motion for Judgment on the Administrative Record Is Denied, and
the Government’s and MVS’s Cross-Motions Are Granted.
A. Standard for Granting Motions for Judgment on the Administrative Record
Pursuant to RCFC 52.1, the Court reviews an agency’s procurement decision based on
the administrative record. Bannum, Inc. v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005).
The Court makes “factual findings under RCFC [52.1] from the record evidence as if it were
conducting a trial on the record.” Id. at 1357. Thus, “resolution of a motion respecting the
administrative record is akin to an expedited trial on the paper record, and the Court must make
fact findings where necessary.” Baird v. United States, 77 Fed. Cl. 114, 116 (2007). The court’s
inquiry is “whether, given all the disputed and undisputed facts, a party has met its burden of
proof based on the evidence in the record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl.
126, 131 (2006). Unlike a summary judgment proceeding, genuine issues of material fact will
not foreclose judgment on the administrative record. Bannum, Inc., 404 F.3d at 1356.
B. Standard of Review in Bid Protest Cases
The court reviews challenges to an agency’s conduct of a procurement under the same
standards used to evaluate agency action under the Administrative Procedure Act (“APA”), 5
U.S.C. § 706 (2012). See 28 U.S.C. § 1491(b)(4) (stating that “[i]n any action under this
subsection, the courts shall review the agency’s decision pursuant to the standards set forth in
section 706 of title 5”). To successfully challenge an agency’s procurement decision, a plaintiff
must show that the agency’s decision was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Bannum, Inc., 404 F.3d at 1351.
“The arbitrary and capricious standard applicable here is highly deferential. This standard
requires a reviewing court to sustain an agency action evincing rational reasoning and
consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d
111054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,
419 U.S. 281, 285 (1974)).
In a bid protest, the disappointed offeror “bears a heavy burden” in attempting to show
that a procuring agency’s decision lacked a rational basis. Impresa, 238 F.3d at 1338. Indeed,
such a challenge can succeed only where the agency “entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or [the decision] is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” Ala. Aircraft Indus., Inc.–Birmingham v. United
States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (alteration in original) (quoting Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co. (“State Farm”), 463 U.S. 29, 43 (1983)).
Given this highly deferential standard of review, the court’s function is limited to
“determin[ing] whether ‘the contracting agency provided a coherent and reasonable explanation
of its exercise of discretion.’” Impresa, 238 F.3d at 1332-33 (quoting Saratoga Dev. Corp. v.
United States, 21 F.3d 445, 456 (D.C. Cir. 1994)). The agency need only articulate a “rational
connection between the facts found and the choice made,” and the court will “uphold a decision
of less than ideal clarity if the agency’s path may reasonably be discerned.” State Farm, 463
U.S. at 43.
C. Guardian’s Claim that the Agency Lacked a Rational Basis for Finding Its
Proposal Unacceptable upon Reevaluation
Guardian challenges the agency’s determination upon taking corrective action that
Guardian failed to provide a flood plain report that met the requirements of PWS paragraph
1.3.3.1.3. It presents three purported bases for its challenge.
First, Guardian argues, “the Administrative Record is completely devoid of any
documentation memorializing the Defendant’s reevaluation . . . leading to [that] determination,
or explaining the basis or reasoning for the determination that Guardian’s East Coast proposal
somehow became ‘Unacceptable’ during litigation.” Pl.’s MJAR Mem. 23. According to
Guardian, “[s]uch lack of documentation is contrary to FAR 15.308, which requires that SSA
[“Source Selection Authority”] determinations ‘shall be documented, and the documentation
shall include the rationale for any business judgments and tradeoffs made or relied on by the
SSA.’” Id. (quoting FAR 15.308) (emphasis in plaintiff’s brief).
Guardian additionally argues that, contrary to the agency’s determination, Guardian met
the requirement that its flood plain report come from “the Federal Emergency Management
Agency, the United States Army Corps of Engineers or disinterested third party professional
engineer/surveyor.” Pl.’s MJAR Mem. 25-26 (quoting Solicitation ¶ 1.3.3.1.3 at AR Tab 51 at
1399). Guardian submitted a FEMA SFHDF completed by CoreLogic Flood Services, which,
according to Guardian, “is the industry leader in providing FEMA Flood Plain Determinations,
and is specifically recognized on FEMA’s website as a ‘Flood Zone Determination Company.’”
Pl.’s MJAR Mem. 25-26. It argues that the FEMA SFHDF that CoreLogic Flood Services
prepared met the solicitation’s requirements “because the FEMA Flood Hazard Determination
forms are ‘from’ FEMA and were prepared following the FEMA rules.” Id. at 26.
12
Finally, Guardian challenges the agency’s determination regarding the flood plain report
on the grounds that the agency allegedly found the same kind of documentation that Guardian
provided here acceptable to meet a similar requirement in a 2007 procurement. Id. at 29-30.
Guardian contends that it “reasonably relied on the Defendant’s previous acceptance of this
documentation” when it submitted the documents in the procurement at issue here and that “[i]t
was only after Guardian protested the award to MVS [that] Defendant [found] Guardian’s flood
plain documentation to be ‘unacceptable,’ without explanation.” Id. at 30.
Guardian’s arguments are unpersuasive. First, even assuming that Guardian is correct
that its original submission met the solicitation’s requirements, prejudice is a necessary element
in proving the merits of a bid protest claim. Galen Med. Assocs., Inc. v. United States, 369 F.3d
1324, 1330 (Fed. Cir. 2004) (“[T]o prevail in a protest the protester must show not only a
significant error in the procurement process, but also that the error prejudiced it.” (quoting Data
Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996))); see also CW Gov’t Travel, Inc. v.
United States, 110 Fed. Cl. 462, 480 n.4 (2013) (explaining that prejudice is a necessary element
of both the plaintiff’s standing and the merits). In this case, Guardian suffered no prejudice as a
result of the agency’s conclusion that its original submission was deficient because it was given
the opportunity to make its proposal acceptable to the agency, and it did so successfully.
Therefore, no negative consequences for Guardian flowed from the determination that Guardian
challenges.
In any event, the agency’s determination that Guardian’s proposal was unacceptable
because its flood plain report did not meet the solicitation’s requirements was a rational one.
Specifically, the agency determined that Guardian failed to confirm that its facility met the
requirement of PWS paragraph 1.3.3.1.3, which provided that “[a]ll storage facilities shall be
located above the 100-year flood plain for the area,” because Guardian failed to submit, as
instructed elsewhere in the solicitation, a “[f]lood plain report from the Federal Emergency
Management Agency, the United States Army Corps of Engineers or disinterested third party
professional engineer/surveyor.” AR Tab 51 at 1399, 1406; AR Tab 56b.
In response, Guardian does not argue that CoreLogic is a disinterested third party
professional engineer/surveyor. Instead, Guardian argues that it submitted a flood plain report
that was “from the Federal Emergency Management Agency” when it submitted a FEMA
SFHDF prepared by CoreLogic. See Pl.’s MJAR Mem. 28 (AR Tab 28 at 575-78). But as
CoreLogic specified in the “Comments” box, “[t]his flood determination is provided to the
lender pursuant to the Flood Disaster Protection Act. It should not be used for any other
purpose.” AR Tab 28 at 575. Because Guardian submitted a form explicitly intended to be used
for a different purpose and not prepared5 by one of the three entities specified in the solicitation,
5
In Guardian’s response to the government’s motion, Guardian argues that interpreting the
provision of the solicitation that requires the flood plain report to be “from” FEMA as requiring
that the flood plain report be “prepared by” FEMA constitutes a “misrepresentation.” Pl.’s Resp.
& Reply 11-14, June 8, 2015, ECF No. 99. In the Court’s view, however, this interpretation
reflects the plain and unambiguous meaning of the provision. See Banknote Corp. of Am., Inc.
v. United States, 365 F.3d 1345, 1353 (Fed. Cir. 2004).
13
it was not arbitrary and capricious for the agency to conclude that it did not conform to the
solicitation’s requirements.
The Court also rejects Guardian’s argument that the agency’s determination was arbitrary
and capricious because it had allegedly accepted a FEMA SFHDF as the required flood plain
report in a 2007 procurement. Even if evidence about what had occurred during the prior
procurement were part of the administrative record (which it is not), and even if such evidence
revealed an inconsistency, it would be of no assistance to Guardian here because an agency is not
bound by its actions in a previous procurement. See Griffy’s Landscape Maint. LLC, v. United
States, 51 Fed. Cl. 667, 671 (2001) (“[A]n attack upon a new solicitation or upon any other
aspect of the administration of the previous contract, must stand on its own.”); SDS Int’l v.
United States, 48 Fed. Cl. 759, 772 (2001) (“Each procurement stands alone, and a selection
decision made under another procurement does not govern the selection under a different
procurement.” (quoting Renic Corp., Gov’t Sys. Div., B-248100, 92-2 CPD ¶ 60, at 5 (Comp.
Gen. July 29, 1992))). Thus, each procurement must stand or fall on its own administrative
record.6
The Court is also not persuaded by Guardian’s contention that “[t]he SSA’s February 19,
2015 determination that Guardian’s East Coast proposal became ‘Unacceptable’ during the
litigation is . . . irrational” in light of its prior October 24, 2014 determinations that Guardian’s
proposal was acceptable. Pl.’s MJAR Mem. 29. Of course, in its October 24, 2014 evaluation,
the agency also found MVS’s proposal acceptable, yet, upon reevaluation, the agency
determined that this finding was error. See AR Tab 36 at 1030. “[A]n agency has the discretion
to re-evaluate proposals during a corrective action and to correct prior evaluation errors.” Sotera
Def. Solutions, Inc. v. United States, 118 Fed. Cl. 237, 262 (2014); see also Glenn Def. Marine
(Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541, 569 (2012) (“Agency evaluators must be
allowed the discretion to review their own conclusions if they conclude a mistake has been made,
or if further inquiry appears appropriate, provided the re-evaluation conforms with the
solicitation, . . . and the evaluation process is conducted in a manner fair to all offerors.”). The
agency’s prerogative during a corrective action to reevaluate proposals and fix evaluation errors
applied to Guardian’s proposal as well.
Similarly, Guardian’s argument that the agency’s determination was not documented, and
its citation of FAR 15.308 in support of that argument, are misguided. FAR 15.308 provides, in
pertinent part, as follows:
6
In fact, Guardian has moved to supplement the administrative record with, among other things,
the solicitation and the FEMA SFHDF that Guardian submitted with its proposal in that 2007
competition, in which Guardian won the contract. The Court hereby DENIES that motion,
however, because the record here is sufficient for meaningful judicial review. See Axiom Res.
Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (2009) (holding that parties should be allowed
to supplement the administrative record where the omission of the evidence would preclude
effective judicial review). Thus, the Court assesses the reasonableness of the agency’s
determination that Guardian’s submission did not meet the requirements of the solicitation
simply by comparing the requirements in the solicitation with the documentation submitted by
Guardian, and as stated above, the Court concludes that the agency’s determination was rational.
14
The source selection decision shall be documented, and the documentation shall
include the rationale for any business judgments and tradeoffs made or relied on by
the SSA, including benefits associated with additional costs. Although the rationale
for the selection decision must be documented, that documentation need not
quantify the tradeoffs that led to the decision.
As the language makes clear, this provision concerns the agency’s final source selection
decision, not its preliminary determinations of proposal deficiencies that become the subject of
discussions. Compare FAR 15.306(d) with FAR 15.308. Thus, Guardian’s insistence that FAR
15.308 applied to the preliminary determinations here is baseless.
Moreover, even if the documentation requirements of FAR 15.308 did apply to such
preliminary determinations, Guardian’s arguments still would not justify granting Guardian
relief. For one thing, when an agency initiates discussions and informs an offeror that its
proposal is unacceptable, the agency is not required “to address in express detail all inferior or
inadequate aspects of a proposal,” Banknote Corp. of Am., 56 Fed. Cl. at 385, or “‘spoon-feed’
[the] offeror as to each and every item that must be revised, added, or otherwise addressed to
improve [its] proposal.” WorldTravelService v. United States, 49 Fed. Cl. 431, 440 (2001).
Therefore, the evaluation notice informing Guardian that its “proposal failed to confirm that the
proposed facility(ies) is/are located above the 100 year flood plain as evidenced by a flood plain
report from [FEMA], the United States Army Corps of Engineers or disinterested third party
professional engineer/surveyor” surely sufficed. AR Tab 56b. And in any event, Guardian knew
the agency’s rationale for finding its flood plain report unacceptable based on the government’s
representations during this bid protest and therefore was not prejudiced by any lack of
documentation. See, e.g., Def.’s Mot. to Dismiss 6 n.5, Feb. 20, 2015, ECF No. 44. In light of
this and all of the foregoing, Guardian’s claim that the agency lacked a rational basis for finding
its proposal unacceptable upon reevaluation is without merit and, in any event, provides no basis
for upholding Guardian’s challenge to the agency’s corrective action.
D. Guardian’s Claim that MVS’s Initial Proposal and FPRs Were Late and that
the Agency Entertained Unlawful Communications from MVS After the FPR
Deadline
Guardian argues that MVS’s failure to include a flood plain report or certification of fire-
aisle and fire-wall compliance in its initial proposal rendered that proposal nonresponsive, and
according to Guardian, “partially non-responsive proposals are untimely” and “cannot be cured
during discussions or proposal revisions.” Pl.’s MJAR Mem. 37-39. Thus, in Guardian’s view,
once the agency acknowledged that MVS’s proposal failed to include those required documents,
any new proposal that attempted to cure those deficiencies should be considered “late” and
therefore beyond the agency’s authority to consider. See Pl.’s MJAR Mem. 39-40.
The flaw in Guardian’s reasoning is its use of the concept of responsiveness in this
context. “The FAR confines the concept of responsiveness to sealed bidding,” whereas the
procurement at issue here is a negotiated procurement. Dyonyx, L.P. v. United States, 83 Fed.
Cl. 460, 468 (2008). “[U]nlike a non-responsive bid in sealed bidding . . . , a technically
15
unacceptable proposal [in a negotiated procurement] may be considered for award if the proposal
would otherwise be competitive and if its technically unacceptable terms can be cured by the
offeror in a revised proposal.” Carahsoft Tech. Corp. v. United States, 86 Fed. Cl. 325, 341-42
(2009). The agency here acted in accordance with this principle when, as part of its corrective
action, it permitted MVS to cure the defects in its proposals by submitting FPRs.
Guardian’s further argument—that MVS’s FPRs were “late” within the meaning of FAR
52.212-1 “because MVS failed to submit FPRs for either its West Coast Only or East and West
Coast Combined proposals by ‘12 March 2015 at 1600 CST’”—is similarly without merit. Pl.’s
MJAR Mem. 40. Thus, Guardian argues that, to extend the FPR deadline beyond “12 March
2015 at 1600 CST,” the agency was required to issue an amendment to the solicitation, and that
the agency’s email granting MVS’s request for an extension “was not an ‘amendment’ to the
Solicitation . . . because it did not include the minimum information requirements [of] FAR
15.206(f).” Id. Further, Guardian argues that the agency’s extensions of the FPR deadlines were
“solely to benefit MVS” and constituted “improper communications [. . .] after the close of
discussions” in “violation of FAR 15.307(b).” Id. at 41-42.
Again, Guardian’s logic is flawed. First, Guardian’s premise that an agency must amend
the solicitation when extending an FPR deadline has no support in the language of the FAR or
any case of which the Court is aware. Under FAR 15.206(a), an amendment to the solicitation is
required only “[w]hen, either before or after receipt of proposals, the Government changes its
requirements or terms and conditions.” While Guardian views an extension of the FPR deadline
as a change in the “requirements or terms and conditions,” Pl.’s Resp. & Reply 20-21, case law
and other authority suggest that FAR 15.206 refers to substantive changes in evaluation criteria
that would cause offerors to alter their proposals. See SP Sys., Inc. v. United States, 86 Fed. Cl.
1, 18 (2009); John Cibinic Jr. & Ralph C. Nash, Jr., Formation of Government Contracts 745,
825 (4th ed. 2004). And even if a likelihood that a change would cause offerors to alter their
proposals is not the defining factor in whether an amendment to the solicitation was required, it
certainly is the defining factor in determining whether an offeror was prejudiced by an agency’s
failure to issue an amendment. Elec. Data Sys., LLC v. United States, 93 Fed. Cl. 416, 435, 439
n.30 (2010). Here, the absence of an amendment caused no prejudice to Guardian because the
agency notified Guardian of the extension by email. AR Tab 63. Therefore, even if the agency
acted contrary to FAR 15.206 when it extended the FPR deadline without issuing an amendment,
this could not be a basis for granting the relief that Guardian seeks.
Because Guardian’s premise, that the extension of the FPR deadline past 12 March 2015
without a solicitation amendment violated FAR 15.206, is incorrect, Guardian’s conclusion, that
MVS’s FPRs were “late” and should not have been considered, is also meritless. FAR 52.212-
1(f)(2)(i) sets forth what is known as the “late is late” rule as applicable to procurements of
commercial items. It states that “[a]ny offer, modification, revision, or withdrawal of an offer
received at the Government office designated in the solicitation after the exact time specified for
receipt of offers is ‘late’ and will not be considered unless” certain conditions, not relevant here,
are met. FAR 52.212-1(f)(2)(i). Here, the time specified for receipt of FPRs was 20 March
16
2015, and the agency received MVS’s FPRs on 18 March 2015. AR Tabs 67, 67a. Clearly,
therefore, MVS’s FPRs were not late, and the agency’s consideration of them was not improper.7
Guardian’s third argument related to the submission of FPRs—that the agency’s
extensions of the deadline constituted improper communications after the close of discussions in
violation of FAR 15.307(b)—lacks merit as well. FAR 15.307(b) provides, in pertinent part, as
follows:
At the conclusion of discussions, each offeror still in the competitive range shall be
given an opportunity to submit a final proposal revision. The contracting officer is
required to establish a common cut-off date only for receipt of final proposal
revisions. Requests for final proposal revisions shall advise offerors that the final
proposal revisions shall be in writing and that the Government intends to make
award without obtaining further revisions.
As Guardian observes, the court in Dubinsky v. United States, 43 Fed. Cl. 243 (1999), concluded
from FAR 15.307(b) that “once the request for final proposal revisions has been issued at the
conclusion of discussions, it follows that an agency generally may not engage in further
discussions with any offerors.” 43 Fed. Cl. at 261. Contrary to Guardian’s argument, however,
the agency’s emails responding to and granting MVS’s requests for extensions did not constitute
“discussions.” Under FAR 15.306(d), “‘discussions’ involve ‘negotiations,’” and “[b]ecause
discussions involve negotiations, they may include ‘bargaining,’ which ‘includes persuasion,
alteration of assumptions and positions, give-and-take, and may apply to price, schedule,
technical requirements, type of contract, or other terms of a proposed contract.” Info. Tech., 316
F.3d at 1321 (quoting FAR 15.306(d)). In addition, “discussions ‘are undertaken with the intent
of allowing the offeror to revise its proposal.’” Info Tech., 316 F.3d at 1321 (quoting FAR
15.306(d)). By contrast, the limited email exchanges between the agency and MVS involved no
mention of “price, schedule, technical requirements, type of contract,” or anything of that nature;
such topics were addressed prior to the agency’s request for FPRs.
In any event, Guardian’s argument that the agency’s emails responding to and granting
MVS’s request for an extension were improper succumbs to the same flaw that the Court has
observed in many of Guardian’s arguments: Guardian has not demonstrated that it suffered any
prejudice as a result of the email exchanges between MVS and the agency. Guardian contends
7
In arguing that MVS’s FPRs were late and should not have been considered, Guardian relies
upon Geo-Seis Helicopters, Inc. v. United States, 77 Fed. Cl. 633 (2007), a case that is clearly
inapposite. Pl.’s MJAR Mem. 41. In Geo-Seis Helicopters, an offeror requested an extension
shortly prior to the 2:00 p.m. deadline. 77 Fed. Cl. at 637. The offeror’s proposal revision
arrived at 2:30 p.m., and it was not until 3:29 p.m. and 3:31 p.m. that the contracting officer
emailed each offeror in the competitive range, notifying them that the deadline would be
extended to 4:00 p.m. Id. The Court held that the contracting officer contravened the “late is
late” rule because it did not have authority to accept the late proposal revision and then, after the
deadline had passed, issue a post-hoc extension. Id. at 640-46. By contrast, here, the agency
notified the offerors of the extension at approximately 3:30 p.m., one half hour before the
deadline. See AR Tab 63.
17
that the FPR extension was “solely to benefit MVS,” but this contention has no bearing on
whether Guardian was prejudiced. Even if MVS was the only offeror that actually needed the
extension, Guardian nevertheless received the benefit of the extension. In other words, even if
the agency conducted discussions after it requested FPRs, it did not do so in favor of one offeror
over another in violation of FAR 15.306(e). See Dubinsky, 43 Fed. Cl. at 264. Rather, the
agency established a “common cut-off date . . . for receipt of” FPRs, precisely as FAR 15.307(b)
required it to do. FAR 15.307(b) (emphasis added).
E. Guardian’s Claim that MVS Did Not Provide the Required Fire Marshal
Certificate in Its FPR
Guardian argues that the agency committed error when it concluded in its April 2015
decision that the documentation that MVS submitted to fulfill the fire marshal certification
requirement complied with the solicitation. Pl.’s MJAR Mem. 47. The Court finds this
argument meritless.
The solicitation includes two provisions relevant to this issue. The first, paragraph
(b)(2)(D)(i)(h) in the addendum to FAR 52.212-1 (“Instructions to Offerors”), requires offerors
to submit “[d]ocumentation signed by the Local Fire Marshall [sic] (or authorized representative)
affirming that the facility meets all local codes and ordinances dated within 30 days of proposal
submission date.” AR Tab 51 at 1399. The second, PWS paragraph 1.3.3.1.2, provides, “All
storage facilities shall provide firewall separation for every three (3) million gross pounds of
stored personal property lots. Fire aisles shall meet local fire regulations as evidenced in the
approved Fire Marshal Certification for all storage facilities.” AR Tab 51 at 1406.
To address these requirements with respect to its East Coast facilities, during the initial
round of this procurement, MVS submitted a letter from Kevin Hughes, director of economic
development for Suffolk, Virginia. AR Tab 29 at 749. In response to the agency’s request for
clarification, MVS provided another letter from Mr. Hughes, stating that MVS’s proposed
facilities “comply with all local codes and ordinances” and that he was acting “as an authorized
representative of the City of Suffolk on behalf of the Suffolk Building Official, John S. Wilson.”
AR Tab 29 at 751. MVS also provided a letter from Mr. Wilson, confirming that MVS’s
“facilities are complete and meet all local codes and ordinances.” AR Tab 29 at 752.
On the West Coast, MVS has two facilities in different localities, and it submitted
documentation accordingly. For its facility in Fairfield, California, MVS provided drawings and
a letter signed by the local Fire Inspector/Plans Examiner, Mark Hollan, stating that MVS’s
facility there complied with the local building code. AR Tab 29 at 742-44. For its facility in
Benicia, California, MVS submitted a drawing and a form signed by a division chief from the
local fire department, Nicolas Thomas, as well as a letter signed by the Senior Building Inspector
in Benicia, California, “certify[ing] that the fire division wall within the facility . . . is a
continuous, unbroken solid wall without openings, doors or windows with a minimum fire
resistive rating of not less than 1 hour.” AR Tab 29 at 745-48.
When the agency took corrective action, it determined that MVS’s submissions were
deficient and issued an evaluation notice to MVS, which stated as follows:
18
Your proposal failed to address/confirm that all East & West Coast storage facilities
shall provide firewall separation for every three (3) million gross pounds of stored
personal property lots. Fire aisles shall meet local fire regulations as evidenced in
the approved Fire Marshal Certification for all storage facilities. Further
documentation (maps, drawings, etc.) which confirms that all fire aisles meet local
fire regulations is required.
AR Tab 57e at 2151.
In response, MVS provided additional documentation. For example, for its East Coast
facilities, MVS provided a drawing and report certified by a Virginia Fire Protection Engineer,
an email from Captain Charles P. Chapin of the Suffolk Fire and Rescue confirming that he
“review[ed] the report from the Virginia Fire Protection Engineer,” and a letter confirming that
Captain Chapin “is an authorized representative for the Fire Chief of the Suffolk Fire & Rescue,
who serves as the Fire Marshal in accordance with Section 38-34 of the Code of the City of
Suffolk Virginia.” AR Tab 67g at 2334-37. Captain Chapin confirmed that MVS’s proposed
facility met all local fire and safety codes and ordinances. AR Tabs 67b at 2253; 67c at 2264.
For its Fairfield, California facility, MVS provided an email that its president, Dennis Paulley,
sent to Mr. Hollan and Mr. Hollan’s response, confirming that he was the “authorized
representative of the City of Fairfield Fire Marshall [sic] and that [MVS’s] facility [in Fairfield]
meets all local codes and ordinances.” AR Tab 67g at 2332. Finally, for its Benicia, California
facility, MVS submitted a letter from the Fire Chief of the City of Benicia, confirming that
“Division Chief Nicolas Thomas is an authorized representative of the Fire Chief/Fire Marshal.”
AR Tab 67g at 2333.
The Source Selection Evaluation Board (“SSEB”) concluded that MVS’s responses to the
evaluation notices were acceptable. AR Tab 71 at 2404. It summarized as follows:
Metropolitan provided supplemental documentation for Tab G which met the
requirement of the RFP and confirmed that all proposed West Coast facilities meet
all local fire and safety codes and ordinances. Supplemental documents were
provided in Tab G confirming the requirement for firewall separation for every three
(3) million gross pounds of stored property lots. PWS paragraph 1.3.3.1. (pg. 25)
and PWS paragraph 1.3.3.1.2. (pg. 26) were updated in the FPR.
AR Tab 71 at 2404.
Guardian nevertheless contends that the agency should have found MVS’s FPR
unacceptable for failing to provide a proper fire marshal certification for its East Coast facility.
Pl.’s MJAR Mem. 47-48. Specifically, Guardian argues,
Captain Chapin’s March 10, 2015 letter . . . could not have been a “certification”
under the local Virginia Statement Fire Prevention Code (“SFPC”), because
Section 106 (Duties and Powers of the Fire Official) of the Virginia SFPC requires
19
that fire marshal certifications must be based on a preceding inspection to determine
the extent of compliance with the code . . . .
Pl.’s MJAR Mem. 47 (citing AR Tab 67c at 2264). Guardian observes that Captain Chapin’s
letter states that “[p]rior to occupancy, inspections will be conducted to ensure all life safety
items are in proper operating order.” Pl.’s MJAR Mem. 48. Thus, Guardian concludes, because
the fire marshal certification “can only be made pursuant to an ‘inspection,’ which was clearly
not done as stated in the March 10, 2015 letter itself, MVS’s East and West Coast Combined
FPR could not have contained the required certification, and, therefore, was unacceptable under
the terms of the Solicitation.” Id.
Guardian’s interpretation of the fire marshal certification requirement in the solicitation
imputes to the solicitation a state-law definition of such a certification. But nothing in the
solicitation suggests that it incorporates the Virginia code provision that Guardian cites (or any
other state or local provision of law), nor is the term “fire marshal certification” so ambiguous
that a reference to state law is required to imbue it with meaning. When interpreting the terms of
a solicitation, a court must “consider the solicitation as a whole, interpreting it in a manner that
harmonizes and gives reasonable meaning to all of its provisions.” Banknote Corp. of Am., 365
F.3d at 1353. Thus, the Court interprets the fire marshal certification requirement in PWS
paragraph 1.3.3.1.2 as referring to the “[d]ocumentation signed by the Local Fire Marshall [sic]
(or authorized representative) affirming that the facility meets all local codes and ordinances
dated within 30 days of proposal submission date” described in paragraph (b)(2)(D)(i)(h) in the
addendum to FAR 52.212-1. AR Tab 51 at 1399.
Given this interpretation, the agency’s determination that MVS’s FPR fulfilled the fire
marshal certification requirement was reasonable. MVS submitted letters and emails dated
within thirty days of the FPR submission date and signed by local officials, affirming that they
were the authorized representatives of the local fire marshals and that the facilities met all local
codes and ordinances. AR Tab 67g at 2332-35. MVS moreover submitted drawings showing
that the firewalls and fire aisles met all requirements and regulations. AR Tab 67 at 2326, 2328,
2330, 2337. Therefore, Guardian’s argument that MVS failed to provide an acceptable fire
marshal certification lacks merit.
F. Guardian’s Claim that MVS Does Not Occupy or Operate an East Coast
Facility
Guardian argues that PWS paragraph 1.3.3.1 requires offerors to occupy and operate their
proposed facilities at the time they submit their proposals, and that MVS does not meet this
requirement because, by its own admission, MVS does not currently occupy or operate an East
Coast facility. Pl.’s MJAR Mem. 48-49. Guardian, however, misconstrues PWS paragraph
1.3.3.1. That paragraph provides, in pertinent part, as follows:
The contractor shall operate warehouse storage facilities capable of storing up to
fifteen million (15,000,000) gross pounds of HHG/UB annually. A primary facility
within a 50 mile radius of the Port of Norfolk, VA (for Eastern CONUS shipments)
20
and/or the Port of Oakland, CA (for Western CONUS shipments) as applicable, is
required for receipt of shipments.
AR Tab 51 at 1406. The language of this provision does not, either explicitly or implicitly,
require offerors to occupy and operate such facilities at the time they submit their proposals.
Indeed, if offerors were required to own or lease facilities without knowing whether or not they
would be awarded the contract, they would have to be willing to risk losing an investment or
breaking a lease, perhaps creating an unfair advantage for the incumbent. Further, as the
government points out, pursuant to PWS paragraph 1.3.1.1.1, offerors were not required to be
operational until “30 days after award.” Def.’s Mot. 24-25.8 In short, when considered in
consonance with the rest of the solicitation, it is more reasonable to read PWS paragraph 1.3.3.1
as the agency read it: to require offerors to have an approach for achieving occupation and
operation of such facilities in the event that they do receive the award. AR Tab 51 at 1399; AR
Tab 71a at 2408.
As MVS has identified its proposed facilities and submitted documentation
demonstrating that those facilities comply with the solicitation and local regulations, the agency
determined that MVS satisfied the requirements of PWS paragraph 1.3.3.1. See AR Tab 71 at
2404; AR Tab 67e at 2284-86. The Court sees no basis for finding that this determination was
arbitrary and capricious and thus rejects Guardian’s argument.
G. Guardian’s Claim that MVS’s Proposed East Coast Facility Is Too Small to
Accommodate Fifteen Million Gross Pounds of HHG/UB
Guardian’s final argument is that, based on an estimate of dimensions derived from a
publicly available flyer and one of several formulas for calculating storage capacity discussed by
another judge in a 2010 case involving the same contract, MVS’s proposed East Coast facility is
not capable of storing up to fifteen million gross pounds of HHG/UB annually, as required by
PWS paragraph 1.3.3.1. Pl.’s MJAR Mem. 49-55 (citing Metro. Van & Storage, Inc. v. United
States, 92 Fed. Cl. 232, 267-68 (2010)). The Court is not persuaded by this argument.
First, the Court has no basis for concluding that the formula upon which Guardian relies
is a reliable one. The formula was not included in the solicitation, is not supported by any
evidence in front of the agency, and was not discussed by the agency. Nor can the Court endorse
8
Guardian argues that the thirty-day period for becoming fully operational set forth in PWS
paragraph 1.3.1.1.1 “only relates to its higher-tier subparagraph PWS Subparagraph 1.3.1.1,
which deals exclusively with the TOPS system (which is an electronic Government personal
property inventory and logistics system (i.e., a computer program)).” Pl.’s MJAR Mem. 46. The
Court rejects this narrow interpretation of paragraph 1.3.1.1.1 because it is unsupported by the
language of the provision (referring to the requirement to be “fully operational to begin accepting
HHG/UB inventory”) and inconsistent with the broad purpose of the section within which the
paragraph appears as evidenced by its title, “Contractor Transition.”
21
an application of that formula based on estimates drawn from a publicly available flyer that was
not before the agency.9
While the court in Metropolitan Van & Storage discussed the formula Guardian describes
in its brief, it did not rely upon the formula to refute an offeror’s representations that its facility
met the solicitation’s storage capacity requirement. 92 Fed. Cl. at 263-68. To the contrary, in
Metropolitan Van & Storage, neither the government nor the intervenor in that case (Guardian)
“even suggested that Guardian’s proposal satisfied” the requirement that “[t]he Contractor shall
provide storage facility space sufficient to store up to fifteen million (15,000,000) gross pounds
of personal property lots annually.’” Id. at 267. Nor did they challenge any aspect of the
formula or its assumptions. Id.
In this case, there is no agreement or stipulation regarding the methodology that should
be used to determine the storage capacity of MVS’s warehouse, and there is no concession by
MVS that its facility does not meet the fifteen million gross pound requirement. To the contrary,
the agency’s conclusions regarding warehouse capacity were based upon MVS’s representations
of the size and capacity of its facilities. AR Tab 67e at 2284-85. An agency “may accept a
[proposal’s] representation that indicates compliance with the solicitation requirements,”
Spectrum Sys., Inc., B-401130, 2009 CPD ¶ 110, at 3 (Comp. Gen. May 13, 2009), except
“where a proposal, on its face, should lead an agency to the conclusion that an offeror could not
and would not comply with the [applicable requirement].” Allied Tech. Grp., Inc. v. United
States, 649 F.3d 1320, 1330-31 (Fed. Cir. 2011) (emphasis and alteration in original) (quoting
Orincon Corp., B-276704, 97-2 CPD ¶ 26, at 4 (Comp. Gen. July 18, 1997)); see also Centech
Grp., Inc. v. United States, 554 F.3d 1029, 1034 (Fed. Cir. 2009). “[I]f the agency accepts a
proposal based on a misleading representation, the dispute is solely between the agency and the
awardee” as a matter of contract administration. Furniture by Thurston v. United States, 103
Fed. Cl. 505, 519-20 (2012). See also Allied Tech., 649 F.3d at 1330 (citing Centech, 554 F.3d
at 1039).
Because nothing on the face of MVS’s proposal should have led the agency to conclude
that MVS’s facilities could not store up to fifteen million gross pounds of HHG/UB annually, the
agency’s determination that MVS’s proposal was acceptable in this regard was not arbitrary and
capricious. Moreover, if Guardian is correct that MVS’s facilities cannot fulfill this requirement,
9
Although Guardian has moved the Court to include the flyer within the administrative record,
that motion is DENIED. Indeed, the Court DENIES in total each of Guardian’s motions to
supplement the administrative record: Pl.’s Mot. to Supplement AR, Apr. 14, 2015, ECF No. 76;
Pl.’s 2d Mot. to Supplement AR, June 10, 2015, ECF No. 100. The task of this Court is “to
apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on
the record the agency presents to the reviewing court.” Fla. Power & Light Co. v. Lorion, 470
U.S. 729, 743-44 (1985). The Court concludes that Guardian has failed to establish that
“effective judicial review” requires that the Court admit Guardian’s proffered extra-record
evidence. See Axiom Res. Mgmt., Inc., 564 F.3d at 1380.
22
this will become a matter of contract administration between MVS and the agency. Thus,
Guardian’s final argument, like its others, is meritless.10
CONCLUSION
In accordance with the above opinion, the Court ORDERS as follows:
1. Guardian’s motions to supplement the administrative record are DENIED.
2. The government’s motion to dismiss is GRANTED as to Guardian’s first post-award
protest. Accordingly, Counts I through V of Guardian’s Third Amended Complaint are
DISMISSED, without prejudice, as moot.
3. Guardian’s motion for judgment on the administrative record is DENIED.
4. The government’s and MVS’s cross-motions for judgment on the administrative record
are GRANTED.
The Clerk is directed to enter judgment accordingly. Each party shall bear its own costs.
In addition, pursuant to the Court’s January 15, 2015 Protective Order, this Opinion and
Order has been issued under seal. The parties shall file any proposed redactions to this Opinion
and Order on or before July 7, 2015.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
10
In its response to the government’s and MVS’s cross-MJARs and reply in support of its own
MJAR, Guardian for the first time argues that the award to MVS was unlawful because FAR
9.104-1(f) as well as the Defense Transportation Regulation (“DTR”), which is referenced in the
solicitation, required the agency to conduct a pre-award survey to, among other things, confirm
that MVS’s storage facilities are compliant. Pl.’s Resp. & Reply 29-30. The sole reference to
these regulations in Guardian’s opening brief was an indirect one contained in a footnote
concerning whether the administrative record submitted by the government was complete. Pl.’s
MJAR Mem. 14 n.5. In any event, assuming that the argument is not waived, the argument is
meritless. FAR 9.104-1(f) requires that, “[t]o be determined responsible, a prospective
contractor must . . . [h]ave the necessary production, construction, and technical equipment and
facilities, or the ability to obtain them.” This provision does not require the agency to conduct a
pre-award survey, and to the extent that Guardian argues that the agency erred in finding MVS
responsible, Guardian has not identified any record evidence to support such an argument.
Moreover, with respect to Guardian’s citation to the DTR, the Court does not read this regulation
as requiring a pre-award survey in every non-temporary storage procurement by this agency; it
merely sets forth guidelines and procedures that will be “used when making pre-award surveys.”
DTR App. D at ¶ A, available at http://www.transcom.mil/dtr/part-iv/dtr-part-4-app-d.pdf.
23
ELAINE D. KAPLAN
Judge
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