Washington-Dulles Transportation, Ltd. v. Metropolitan Washington Airports Authority

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WASHINGTON-DULLES 
TRANSPORTATION, LIMITED,
Plaintiff-Appellant,
v.

METROPOLITAN WASHINGTON AIRPORTS
AUTHORITY, No. 02-1656
Defendant-Appellee,
DULLES TAXI SYSTEMS,
INCORPORATED,
Intervenor/Defendant-
Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge; Barry R. Poretz,
Magistrate Judge; Welton Curtis Sewell, Magistrate Judge.
(CA-00-999-A)
Argued: October 28, 2003
Decided: January 30, 2004
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Harvey Joseph Volzer, SHAUGHNESSY, VOLZER &
GAGNER, P.C., Washington, D.C., for Appellant. Raymond F. Mon-
2 WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS
roe, CROWELL & MORING, L.L.P., Washington, D.C., for Appel-
lees. ON BRIEF: Monica G. Parham, CROWELL & MORING,
L.L.P., Washington, D.C.; Janis Orfe, THE LAW OFFICES OF
JANIS ORFE, P.C., Fairfax, Virginia; John S. Pachter, Jonathan D.
Shaffer, SMITH, PACHTER, MCWHORTER & ALLEN, P.L.C.,
Vienna, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This appeal arises from an action brought by Washington-Dulles
Transportation, Ltd. ("WDT"), which held the taxi concession con-
tract for Washington-Dulles Airport, against the Metropolitan Wash-
ington Airports Authority ("MWAA"). In its action, WDT challenges
MWAA’s award of the airport’s taxi concession contract to Dulles
Taxi Systems, Inc. The district court granted summary judgment to
MWAA and Dulles Taxi. We affirm.
I.
MWAA was created by the District of Columbia and Virginia for
the purpose of operating the two federally-owned airports in the met-
ropolitan area of the District of Columbia — Washington-Dulles
International Airport and Ronald Reagan Washington National Air-
port. Transfer of the operating responsibility for the airports to
MWAA was authorized by the Metropolitan Washington Airports Act
of 1986 (the "Enabling Act" or "Act") via a 50-year lease (the
"Lease") between the federal government and MWAA. See 49
U.S.C.A. §§ 49101 - 49112 (West Supp. 2003).
The Enabling Act prescribes a number of mandatory provisions
that must be included in the Lease. Pertinent to this case, the Act
WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS 3
requires the Lease to provide that "[i]n acquiring by contract supplies
or services for an amount estimated to be more than $200,000, or
awarding concession contracts, the Airports Authority to the maxi-
mum extent practicable shall obtain complete and open competition
through the use of published competitive procedures." 49 U.S.C.A.
§ 49104(a)(4). The Act further requires that MWAA’s contracts be
"awarded by procedures that follow sound Government contracting
principles." See 49 U.S.C.A. § 49106(g). The Lease, in turn, contains
provisions that comply with these legislative mandates.
To fulfill the requirement for published competitive procedures,
MWAA adopted a contracting procedures manual. Pursuant to the
manual, when a Request for Proposals is issued, the MWAA will
evaluate each proposal and score it against predetermined evaluation
criteria. MWAA will then select the proposal which offers the great-
est overall benefit in terms of those criteria.
Pursuant to contracts awarded by MWAA, WDT was the exclusive
taxicab concessionaire at Dulles International Airport from November
1, 1989 to July 31, 2000. In August 1999, in preparation for the expi-
ration of the most recent contract, MWAA issued a Request for Pro-
posals ("RFP") for the future operation of the Dulles taxicab
concession. The contract to be awarded was for a period of three
years, plus one two-year extension at MWAA’s sole option. The RFP
set forth six evaluation criteria, each with an accompanying explana-
tion. The evaluation criteria were also assigned an "associated evalua-
tion point value to provide proponents with a guideline of the relative
importance of each element" to MWAA. J.A. 1158. The weighted
evaluation criteria were as follows: (1) operating plan (30%); (2)
management plan (15%); (3) plan to achieve a minimum 10% partici-
pation by the non-flyer taxicab fleet (15%); (4) industry experience
and qualifications (15%); (5) financial offer, capital improvements,
and financial ability to perform and pro forma statements (15%); and
(6) proposed disadvantaged business enterprise participation (10%).
However, the RFP also notified bidders, inter alia, of the following
rights explicitly retained by MWAA:
1. The Authority will accept the proposal which, in the
Authority’s sole judgment, best meets the Authority’s
requirements as set forth herein. The Authority reserves
4 WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS
the right to reject any or all proposals, to waive irregu-
larities and technicalities in the proposals, to re-
advertise, or to proceed to provide the service otherwise
when such actions are judged to be in the best interests
of the Authority.
2. The Authority reserves the right to modify or amend
any provision of the RFP document, including, without
limitation, the provisions of the Contract.
....
4. Proposals shall be rejected if the proponent . . . is in
default or arrearage under any existing or previous
agreement with the Authority, or if there exist any
unpaid monetary claims by the Authority against the
proponent. . . .
J.A. 1141.
Several companies, including WDT and Dulles Taxi, submitted
bids for the new taxicab concession contract. The bids were first
reviewed by a Technical Evaluation Committee comprised of MWAA
staff members (the "staff"). The staff was provided a detailed listing
of the six evaluation factors and subfactors taken from the RFP, and
an assigned total point value for each factor and subfactor.1 Under the
1
For example, the "operating plan" criteria contained a listing of four
subfactors with accompanying citation to the RFP. Subfactor 1.A —
"[t]he completeness, depth, quality, efficiency, reasonableness, and feasi-
bility of the offeror’s Taxicab Services/Operating Plan (pages 6 and 7 —
RFP)" — was assigned the following point ranges:
135-150 Outstanding Plan meets all and exceeds some
or all requirements. . . .
134-120 Very Good Plan meets all requirements . . . .
119-105 Good Plan meets requirements . . . in
most areas.
104-75 Fair/Poor Plan meets requirements . . . in
some areas.
74 and below Unsatisfactory Plan does not meet requirements
WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS 5
staff’s evaluation, WDT scored the highest, with 843 points out of a
maximum of 1000 points. Dulles Taxi scored the second highest, with
771 points. In March 2000, the staff submitted a recommendation to
MWAA’s business administration committee ("the Committee"),
which was comprised of members of the MWAA Board, that WDT
receive the contract and remain as the taxi concessionaire.
The Committee subsequently met with WDT and Dulles Taxi and
asked them to address more specifically their past experience and per-
formance. During the meeting, several of the Committee members
suggested that the staff’s evaluation under the criteria had failed to
account adequately for past experience and performance, and the
Committee ultimately voted 3 to 1 to award the contract to Dulles
Taxi even though the staff scored WDT higher.
Under MWAA procedures, however, the Committee did not have
the final say on the award of the contract. The MWAA Board of
Directors (the "Board") had to ratify or reject the Committee’s recom-
mendation. Consequently, on April 10, 2000, before the Board acted,
WDT filed a pre-award protest of the Committee’s selection of Dulles
Taxi. WDT’s chief assertion was that the Committee, in rejecting the
staff’s recommendation and choosing Dulles Taxi, had improperly
ventured beyond the evaluation criteria.
After allowing both WDT and Dulles Taxi to submit written and
oral comments regarding the issues raised in the protest, the Commit-
tee issued its April 28, 2000, report to the Board explaining its deci-
sion to select WDT and recommending that the Board affirm its
choice. The report set forth the Committee’s view that the staff’s eval-
uation of the proposals had not adequately accounted for the past per-
formance of the bidders, which was a consideration under several of
the factors set forth in the selection criteria included in the RFP —
the "operating plan," "management plan," and "industry experience
and qualifications" criteria.
in most areas.
J.A. 1329.
6 WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS
On May 1, 2000, WDT and Dulles Taxi submitted comments on
the Committee’s report to the Board and, two days later, were
afforded the opportunity to present their arguments relating to the pro-
test. The Board, however, delayed a decision pending the receipt of
additional information from the parties pertaining to the protest issues
and a reconsideration by the Committee of its decision. The Board
also amended the RFP ("Amendment Six"), which clarified that the
Committee and Board were not bound by the scores resulting from
the staff’s technical evaluation of the selection criteria, and requested
that the bidders respond to five specific questions relating to past
experience and performance issues. Ultimately, the Committee reaf-
firmed its earlier vote in favor of Dulles Taxi and recommended that
the Board deny WDT’s protest. In a second report dated June 2, 2000,
the Committee again outlined the reasons underlying its decision,
pointing out in particular those areas where the Committee disagreed
with the staff’s assignment of points under the selection criteria. Dur-
ing the June 7, 2000, regular Board meeting, the Board affirmed the
Committee’s selection by a vote of 8 to 1.
WDT filed this action in federal court seeking a declaration that
MWAA’s decision violated the Enabling Act and the Lease, as well
as an injunction barring MWAA from awarding the taxi concession
to Dulles Taxi and directing MWAA to give the concession to WDT.
WDT asserted that MWAA had deviated from its published competi-
tive procedures in refusing to award the taxi concession contract to
WDT and, therefore, had failed to obtain "complete and open compe-
tition," 49 U.S.C.A. § 49104(a)(4), or comply with "sound Govern-
ment contracting principles," 49 U.S.C.A. § 49106(g), in violation of
the Enabling Act and the Lease.
The district court initially dismissed WDT’s complaint for want of
subject matter jurisdiction, ruling that, although federal courts have
jurisdiction to decide whether MWAA has adopted competitive bid
procedures that satisfy the requirements of the Enabling Act, federal
courts do not have jurisdiction when the application of the published
competitive procedures are at issue. On appeal, we held that the Act
specifically provided for the enforcement of the Lease in federal
court, and that the Act allowed an aggrieved private party to bring an
action to enforce the terms of the Lease. Accordingly, we reversed
and remanded the matter for further proceedings before the district
WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS 7
court. See Washington-Dulles Transp., Ltd. v. Metropolitan Washing-
ton Airports Auth., 263 F.3d 371 (4th Cir. 2001).
On remand, WDT filed an Amended Complaint adding a claim for
monetary damages. After completing discovery, WDT and
MWAA/Dulles Taxi filed cross-motions for summary judgment on
the merits. The district court granted summary judgment to MWAA
and Dulles Taxi and denied WDT’s motion for summary judgment.
Applying a "rational basis" standard of review to MWAA’s award of
the contract to Dulles Taxi, the district court concluded that "the
undisputed facts demonstrate that [MWAA] chose [Dulles Taxi] after
a methodical review of the submitted proposals" and that WDT had
failed to meet its burden of demonstrating that MWAA had no ratio-
nal basis for awarding the contract to Dulles Taxi instead of WDT.
J.A. 2658.
In the alternative, the district court ruled that WDT "was not in a
position to bid on the RFP" in the first instance. J.A. 2659. During
discovery, a new factual and legal question had developed. As noted
above, the RFP provided that "[p]roposals shall be rejected if the pro-
ponent . . . is in default or arrearage under any existing or previous
agreement with the Authority." J.A. 1141. The district court found
that, at the time the contract was awarded to Dulles Taxi, WDT owed
MWAA over $600,000 in payments under the old taxi concession
contract and, therefore, WDT was disqualified from competing for the
contract under the language of the RFP. The district court also ruled
that WDT was not entitled to monetary damages under the Act or the
Lease and rejected WDT’s attempt to raise claims based on the tort
of assumpsit and the Constitution.
On appeal, WDT asserts the district court erred in granting sum-
mary judgment to MWAA and Dulles Taxi, and against it, because
(1) the undisputed facts reveal that the award was arbitrarily made to
a less qualified bidder without explanation, in violation of the Lease
and Enabling Act; and (2) the court’s conclusion that WDT was not
a qualified bidder due to an alleged arrearage under the existing con-
tract was not raised by MWAA in its pleadings and, in any event, was
not supported by the record. In addition, WDT appeals the district
court’s denial of its motion to compel discovery into "executive ses-
sions" held by the MWAA board members during the selection pro-
8 WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS
cess, denial of its claim for monetary damages, and exclusion of its
expert witnesses. For the reasons that follow, we affirm.
II. Motion to Compel
We first consider WDT’s claim that the district court improperly
denied its motion to compel written and oral discovery into matters
which occurred during various "executive sessions" of the MWAA
Board. The sessions at issue were conducted in a closed and private
manner during the time the protest was under consideration. They
were attended by in-house counsel and, in all but one instance, out-
side counsel as well. We review the district court’s denial of a motion
to compel for abuse of discretion. See Lone Star Steakhouse &
Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).
On November 30, 2001, in response to written discovery requests,
MWAA provided a detailed privilege log to WDT, listing all docu-
ments that it claimed were protected by the attorney-client privilege
and work product doctrine. WDT’s counsel made no effort to chal-
lenge those designations at the time, or to seek their production via
a motion to compel. During subsequent depositions of various
MWAA members, at least one of which took place in early January
2002, WDT’s counsel asked broad questions about what occurred
during the executive sessions held by the MWAA Board. MWAA’s
attorneys objected to questions that sought to delve into discussions
that took place during executive sessions of the Board, also claiming
an attorney-client and work product privilege for such conversations.
On March 8, 2002, a week before the close of discovery and less
than two weeks before the scheduled pre-trial conference, WDT filed
a motion to compel discovery into the executive sessions. Specifi-
cally, WDT sought review of the documents for which the privileges
had been asserted and an opportunity to redepose the MWAA wit-
nesses on matters that occurred during executive sessions. On March
15, 2002, the magistrate judge conducted a hearing on the motion to
compel. With regard to the executive session issue, the judge con-
cluded that although some of what occurs in a closed executive ses-
sion might be privileged, ordinary facts pertaining to business matters
cannot be shielded merely by the presence of an attorney. The judge
further set forth for WDT the appropriate course to take during the
WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS 9
deposition of the CEO for MWAA which was scheduled for later that
same day:
Now, in regards to the deposition this afternoon, my guid-
ance is, if there is a privilege asserted, that foundational
questions may be asked to flesh out that privilege, and then
you make a proffer on the privilege, you make a counter
proffer, you certify the question, you come before the Court
with the transcript, and then the Court has the benefit of
everything, because once the foundational questions are
asked, maybe it’s a slam-dunker: obviously there is no privi-
lege, because eighteen people were in the room who had no
business being there at all. . . . [I]t seems to me that’s the
way to contour it out for the Court.
J.A. 719. At the conclusion of the hearing, the judge informed the par-
ties that he would review in camera challenged documents for which
a privilege was asserted and took the matter under advisement pend-
ing receipt of the challenged documents.
During the scheduled deposition of the CEO of MWAA, WDT’s
counsel chose not to follow the court’s guidance. Counsel also
rejected MWAA’s offer to allow the CEO to testify regarding events
that occurred during executive sessions, provided counsel agree that
the testimony would not be construed as a waiver of the applicable
attorney-client privilege and work-product protection.
On March 27, 2002, the magistrate judge, having conducted an in
camera review of the sixty-five documents sought by WDT which
were listed in MWAA’s privilege log, denied the motion to compel.
The judge concluded that the majority of the documents did not per-
tain to executive sessions at which the contract award was discussed
or mentioned and, of the documents that did fall within those parame-
ters, MWAA had properly asserted the attorney-client privilege.
Shortly thereafter, WDT filed a "renewed" motion to compel with the
district court. The district court denied the motion as well.
We find no abuse of discretion in the district court’s resolution of
WDT’s motion to compel. After expressing concern over the lapse in
time between MWAA’s assertion of the privilege and the filing of a
10 WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS
motion to compel, the magistrate judge clearly outlined for WDT the
course to pursue during the upcoming deposition of the CEO of
MWAA and considered in camera the challenged documents. None-
theless, WDT chose not to follow the court’s guidance and rejected
MWAA’s offer to allow questioning into the very matters into which
WDT professed a need to inquire. Accordingly, we affirm the district
court’s denial of WDT’s motion to compel.
III.
We next consider whether the district court improperly granted
summary judgment to MWAA and Dulles Taxi and denied summary
judgment to WDT on the merits. We review the district court’s sum-
mary judgment rulings de novo. See Figgie Int’l v. Destileria Serral-
les, Inc., 190 F.3d 252, 255 (4th Cir. 1999).
Generally, "a disappointed bidder bears the heavy burden of estab-
lishing in court that the decision by [a] government agency either had
no rational basis or involved a clear and prejudicial violation of appli-
cable statutes or regulations." Newport News Shipbuilding & Dry
Dock Co. v. General Dynamics Corp., 960 F.2d 386, 392 (4th Cir.
1992) (internal quotation marks omitted). Thus, WDT was required
to "demonstrate prejudice attributable to either (1) the procurement
procedure’s violation of applicable statutes or regulations, or (2) an
arbitrary or irrational decision of the procurement official on matters
primarily committed to his discretion." Id.WDT asserts that it established both that MWAA failed to obtain
"complete and open competition," 49 U.S.C.A. § 49104(a)(4), and to
comply with "sound Government contracting principles," 49 U.S.C.A.
§ 49106(g), as required by the Enabling Act and the Lease, and that
MWAA’s decision was arbitrary and irrational under the circum-
stances. Like the district court, we are unpersuaded.
The heart of WDT’s claim is its complaint that the Board awarded
Dulles Taxi the concession contract even though the staff evaluation
team assigned WDT a higher score under the six published criteria
than it assigned to Dulles Taxi. From this fact, WDT argues that the
Committee and Board must have deviated from the published compet-
itive procedures in awarding the contract, most likely in the closed
WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS 11
executive sessions. WDT contends that the decision to award the con-
tract to Dulles Taxi was irrational because, under the staff evaluation,
Dulles Taxi was a "less qualified" bidder. WDT’s theory, however,
suffers from a number of infirmities.
First, we may summarily dispense with WDT’s wholly speculative
assertion that the Board members must have employed undisclosed
criteria in the selection process during closed executive sessions to
reach their decision. There is simply no evidence in the record to sup-
port this assertion. No one disputes that the Board members were enti-
tled to consult privately with legal counsel in executive session and
MWAA acknowledged, in keeping with the magistrate judge’s view,
that not every communication taking place in executive session is
automatically protected from disclosure. Thus, the magistrate judge
advised WDT that it could delve into the question of whether the
Board members discussed the actual award of the contract during the
executive sessions. WDT, however, declined to do so. Accordingly,
we have no information as to what occurred during the executive ses-
sions and, as a result, no evidence that the Board members applied
undisclosed or otherwise improper criteria as a basis for awarding the
contract to Dulles Taxi during any such executive session. We do,
however, have an abundance of information regarding the actions
taken and opinions expressed by the Board members in public ses-
sions and public documents — the Committee’s original debate and
vote to award Dulles Taxi the contract; the Board’s decision to defer
ruling on WDT’s protest until more information could be gathered;
the Committee’s vote to reaffirm its original selection; two reports
issued by the Committee explaining why it selected Dulles Taxi over
WDT for the new contract instead of accepting the staff’s evaluation
and recommendation; and the Board’s vote to affirm the Committee’s
ultimate decision.
Second, WDT’s claim is founded upon the erroneous premise that
the procurement process violated federal law and was otherwise irra-
tional because, as a factual matter, the staff scored WDT 72 points
higher than Dulles Taxi under the published criteria. The RFP issued
August 1999 indicated that all proposals would be evaluated in accor-
dance with the six published criteria, but application of the criteria
necessarily required the exercise of independent discretion and judg-
ment. The bidders were aware that neither the Board nor the Commit-
12 WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS
tee was bound by the numbers assigned by the staff evaluation team.
And, in any event, the RFP plainly provided that MWAA would
accept the bid which, "in [MWAA’s] sole judgment . . . best meets
[MWAA’s] requirements" specified in the RFP and that it "reserve[d]
the right to reject any or all proposals, to waive irregularities and
technicalities in the proposals, to re-advertise, or to proceed to pro-
vide the service otherwise when such actions are judged to be in the
best interests" of MWAA. J.A. 1141.
The members of the staff evaluation team were charged with scor-
ing the proposals under the criteria, compiling their evaluations into
a collective score, and submitting a recommendation to the Commit-
tee. WDT and Dulles Taxi scored first and second, respectively, but
were separated by a narrow gap of only 72 out of 1000 points. Fur-
thermore, the staff had no authority and was in no position to award
the contract based upon these numbers. Rather, it was the Board
members who retained the final decision-making authority. The Com-
mittee, which was free to view the proposals under the criteria as well
and which allowed WDT and Dulles Taxi to make oral presentations,
was obviously concerned about the staff’s evaluation of several of the
factors. Accordingly, the Committee chose to delve further into the
issues of the bidders’ procedure for handling complaints, and past
experience and performance. Ultimately, the Committee concluded
that the staff’s evaluation under the criteria had failed to adequately
account for such matters. In response to WDT’s pre-award protest and
after considering yet additional argument and information from the
bidders, the Committee again chose Dulles Taxi, reiterating its view
that the staff’s evaluation of the proposals had not adequately
accounted for the past performance of the bidders, which was a con-
sideration under at least two of the selection criteria included in the
RFP. Accordingly, we see nothing improper in this course of events.
Finally, we are unpersuaded by WDT’s reliance upon a 75-page
report issued by the United States General Accounting Office
("GAO") concerning MWAA’s contracting practices. Although the
GAO report suggested that MWAA’s practices did not always comply
with the requirements of the Lease and recommended that MWAA’s
Board take steps to ensure that MWAA publish procedures for com-
petitively awarding contracts in the future, the report provides no evi-
dence that the selection process employed by MWAA in awarding
WASHINGTON-DULLES TRANSP. v. METRO. WASHINGTON AIRPORTS 13
this concession contract was not founded upon a full and open bid-
ding process as required by the Enabling Act and Lease. The GAO
report focused on contracts other than concession contracts and did
not audit the taxi concession contract at issue. Moreover, the Enabling
Act and Lease, rather than recommendations of the GAO, govern the
action of MWAA.
In conclusion, the evidence presented by the parties reveals that the
Committee and Board disagreed with the staff’s application of several
of the selection criteria and, in particular, believed that the staff failed
to place enough emphasis on past performance issues. The bidders
were given several opportunities to address the Board members’ con-
cerns and the Board ultimately chose the bidder that it believed best
met the criteria and the needs of MWAA. Like the district court, we
view MWAA’s selection of Dulles Taxi over WDT as one grounded
in a methodical and public review of the proposals and one which
rests upon a rational basis. Because WDT failed to establish that
MWAA’s procurement process violated the Enabling Act or Lease, or
that the MWAA’s decision to award the concession contract to Dulles
Taxi instead of WDT was arbitrary or irrational, we affirm.2
IV.
For the foregoing reasons, we affirm the judgment of the district
court.3
AFFIRMED.
2
Our conclusion on this point makes it unnecessary to consider
MWAA’s claim that the district court improperly granted summary judg-
ment based on its conclusion that WDT was disqualified from bidding
on the new concession contract because it was in arrears on its prior con-
tract with MWAA.
3
Because we affirm the district court’s grant of summary judgment to
MWAA, we express no opinion on WDT’s claim that the magistrate
judge improperly excluded expert testimony proffered by WDT and that
the district court erred in concluding that WDT would not be entitled to
monetary relief.