Sims v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACQUELINE SIMS, DBA JRS STAFFING
SERVICES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1661
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00367-NBF, Senior Judge Nancy B.
Firestone.
______________________
Decided: July 8, 2016
______________________
JACQUELINE SIMS, Lawrenceville, GA, pro se.
MICHAEL ANTHONY RODRIGUEZ, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., STEVEN J. GILLINGHAM.
______________________
2 SIMS v. UNITED STATES
Before PROST, Chief Judge, NEWMAN and BRYSON, Cir-
cuit Judges.
PER CURIAM.
Jacqueline Sims appeals a final decision of the Court
of Federal Claims denying her bid protest. We affirm.
I
A
On September 19, 2014, the Bureau of Prisons
(“BOP”) issued a solicitation for horticulture instructional
services at the Federal Prison Camp in Alderson, West
Virginia (“FPC Alderson”). The solicitation was designat-
ed as a small business set-aside contract. It required an
instructor to provide classes at FPC Alderson with a
regular work schedule from 8 a.m. to 2:30 p.m., five days
a week. The contract was to be for one base year and four
option years. The solicitation indicated that pursuant to
an affirmative determination of responsibility, the offers
would be evaluated to determine which quotation was
most advantageous to the government, “considering
technical capability, past performance, and price.”
On October 17, 2014, Ms. Sims submitted a quotation
in response to the solicitation through her sole proprietor-
ship, JRS Staffing Services. Two other bidders also
submitted quotations, including Mr. Arbaugh, who was at
that time the horticulture instructor at FPC Alderson. In
her quotation, Ms. Sims indicated that she would offer the
current instructor a right of first refusal to perform the
services should she be awarded the contract. If he were to
decline, Mr. Sims proposed a candidate with significant
experience working on dairy farms.
The contracting officer evaluated Ms. Sims’s offer on
the basis of technical capability, past performance, and
price. The officer determined that her quotation con-
formed to the solicitation; her past performance history
SIMS v. UNITED STATES 3
was neutral, as she had not performed contracts similar
in nature, size, and scope to the horticulture instruction
contract; and that Ms. Sims’s quote was the lowest cost
quote of the three received. However, the contracting
officer found that Ms. Sims did not satisfy the “responsi-
bility” requirement because she lacked the capacity to
complete performance if offered the contract. In support
of that determination, the contracting officer made sever-
al findings.
First, the contracting officer found that Ms. Sims had
failed to accept an offered award of a contract for cos-
metology instruction services at FPC Alderson in 2012.
On that occasion, Ms. Sims was offered a contract on
March 30, 2012, with an effective date to begin perfor-
mance on April 9, 2012. The contracting officer told Ms.
Sims that because the cosmetology program had been
halted, the prison was anxious to complete a contract and
resume instruction. Three days after the award, Ms.
Sims indicated that she had not finalized the insurance
needed to begin work on the contract and would complete
that process within a week. One week later, on April 10,
2012, Ms. Sims informed the contracting office that she
had still not secured insurance and that she intended to
accept the contract offer once the insurance arrangements
were finalized. On April 13, Ms. Sims informed the
contracting officer that she had not been able to secure
insurance on the private market and that she would seek
it from a state program. She estimated it would take two
more weeks to get an insurance policy. On April 16, the
contracting officer withdrew the award.
Second, the contracting officer noted that Ms. Sims
had failed to accept a contract offer in October 2014 for
culinary arts instruction at the Federal Correctional
Institution in Tallahassee, Florida. On September 29,
2014, after being awarded a contract offer by the BOP,
Ms. Sims expressed concerns about being able to find a
replacement candidate with the required qualifications
4 SIMS v. UNITED STATES
should her preferred candidate resign during the contract.
The contracting officer promptly responded that the
requirements would not be changed and told Ms. Sims to
respond by the close of business on September 30 if she
was still interested in the contract. After receiving no
response from Ms. Sims by the deadline, the contracting
officer rescinded the offer to Ms. Sims and offered it to the
next highest bidder.
Third, a company managed by Ms. Sims, Jacqueline
R. Sims L.L.C., dba JRS Management, was awarded a
contract to provide culinary arts instruction at the Feder-
al Correctional Institution in Miami, Florida. Her com-
pany failed to provide a candidate during the base year,
and the contract was terminated.
Finally, the contracting officer noted that Ms. Sims
had previously been referred to the Small Business Ad-
ministration for a Certificate of Competency and that the
referral had been declined.
Based on those findings, the contracting officer de-
termined that Ms. Sims would not be able to comply with
the required performance schedule under the contract and
made a determination of non-responsibility. On January
29, 2015, the contracting officer referred Ms. Sims to the
Small Business Administration (“SBA”) to seek a Certifi-
cate of Competency (“COC”).
B
After the referral to the SBA, Ms. Sims submitted an
application for a COC. Her submission included infor-
mation about her companies, the names of candidates she
was considering for the horticulture position, and a histo-
ry of her previous contracts.
An SBA procurement analyst reviewed Ms. Sims’s
submissions and made findings about her capacity to
perform. He found that Ms. Sims and her LLC had com-
pleted 12 contracts in the three prior years, primarily for
SIMS v. UNITED STATES 5
religious services, and that she and her LLC were en-
gaged in five ongoing contracts. He also found 13 in-
stances in which the government had made an offer for an
award that Ms. Sims did not accept, or in which the
contract was later terminated. He noted that Ms. Sims
indicated that in most of those cases the reason she had
not accepted the award was that the terms of the award
were different from the terms of the solicitation. The
analyst found that Mr. Sims had no current employees
suited for the position at FPC Alderson, but that the two
candidate instructors for whom Ms. Sims submitted
resumes for appeared to be qualified.
As part of its investigation, the SBA contacted three
contracting officers who had dealt with Ms. Sims in the
past. The first stated that Ms. Sims had filed protests
relating to four solicitations and one contract, and that
she had been offered another contract but had not accept-
ed it. The second officer verified that Ms. Sims had two
contracts currently open—one ongoing and the other not
yet started. That officer did not have any comments on
Ms. Sims’s performance. The third officer described her
as “aggravating, unreasonable, argumentative and liti-
gious” during negotiations, and said that he did not
exercise an option on one of her contracts because she
demanded a modification of the contract so that she would
not be liable if an instructor failed to meet the terms of
the contract.
Based on all of those findings, the procurement ana-
lyst recommended that the SBA not issue Ms. Sims a
COC. The analyst specifically noted that she had no
experience in the past three years completing a contract
for instruction other than for religious services, that she
did not have any current employees with the requisite
skills, that she did not perform on 25 percent of the con-
tracts offered to her, and that she had difficulty resolving
administrative issues that arose in the contracting pro-
cess.
6 SIMS v. UNITED STATES
An SBA review committee voted to decline the COC.
The SBA informed Ms. Sims that her COC had been
declined, and the BOP then offered the horticulture
contract to the next lowest bidder, Mr. Arbaugh.
C
Ms. Sims filed a bid protest in the Court of Federal
Claims. She argued that the contracting officer’s non-
responsibility decision and referral to the SBA was arbi-
trary and capricious, primarily because it was based on
information improperly considered. She also argued that
the SBA’s denial of a COC was arbitrary and capricious.
The Court of Federal Claims found that the contract-
ing officer’s decision was neither arbitrary nor capricious,
and that the contracting officer properly relied on availa-
ble information about Ms. Sims’s ability to perform the
contract, including her prior performance record. The
court also found that the SBA had acted rationally and
had properly considered the available evidence.
II
We review the trial court’s judgment on the adminis-
trative record without deference. Colonial Press Int’l, Inc.
v. United States, 788 F.3d 1350, 1355 (Fed. Cir. 2015).
The challenger must show that the contracting officer’s
decision lacked a reasonable basis and that the contract-
ing agency failed to provide “a coherent and reasonable
explanation of its exercise of discretion.” Banknote Corp.
of Am. v. United States, 365 F.3d 1345, 1351 (Fed. Cir.
2004). “Because responsibility decisions are largely a
matter of judgment, contracting officers are generally
given wide discretion to make this decision.” John C.
Grimberg Co. v. United States, 185 F.3d 1297, 1303 (Fed.
Cir. (1999). We review the SBA’s denial of a COC by the
same standard. See 5 U.S.C. § 706.
SIMS v. UNITED STATES 7
A
We conclude that the contracting officer had a reason-
able basis for his non-responsibility determination. To be
determined responsible, a contractor must “[b]e able to
comply with the required or proposed delivery or perfor-
mance schedule, taking into consideration all existing
commercial and governmental business commitments.”
48 C.F.R. § 9.104-1(b). In this case, the contracting officer
rationally based his decision on Ms. Sims’s history of
failing to accept offers after submitting bids. By making
bids and then failing to accept contract offers after pro-
tracted negotiations, Ms. Sims caused delays in agency
procurement. It was rational for the contracting officer to
take that history into account and determine that it was
likely she would be unable to comply with the proposed
delivery schedule.
Ms. Sims argues that it was improper for the BOP to
consider her failure to accept the contract for culinary
arts instruction at Federal Correctional Institute Miami
because there was no information on the BOP’s record
substantiating her failure to accept. That argument is
meritless. A letter explaining the details of the FCI
Miami contract was in the record before the BOP.
Ms. Sims argues that there was no evidence on the
record that she was associated with Jacqueline R. Sims
LLC. Setting aside that Ms. Sims and her LLC share the
same name, the affiliation is evidenced by the letter that
contained the details about the FCI Miami contract.
She next argues that the BOP acted irrationally be-
cause it treated her failure to accept offers as indicative of
non-responsibility when she was free reject them as a
matter of contract law. While she is correct that she was
legally free to reject the offers, it does not follow that it
was improper for the government to consider her history
in making a responsibility determination. Serially bid-
ding for contracts and failing to accept offers, as Ms. Sims
8 SIMS v. UNITED STATES
has done, delays the ability of the government to obtain
needed services on a timely basis, and it was therefore
reasonable for the contracting officer to take that conduct
into account.
Ms. Sims also argues that the BOP contracting officer
was mistaken when he said that Ms. Sims had previously
been referred to the SBA for a COC and that a COC had
been denied. The record shows that, after she was re-
ferred for a COC, she failed to submit a timely applica-
tion, and the SBA then closed the matter without making
a determination. In that regard, Ms. Sims is correct that
the contracting officer mischaracterized the nature of the
SBA’s action. However, the fact that the contracting
officer was mistaken as to one of the grounds that he cited
for his decision does not mean that his decision as a whole
necessarily lacked a rational basis. “We do not reverse
simply because there are uncertainties, analytic imperfec-
tions, or even mistakes in the pieces of the picture peti-
tioners have chosen to bring to our attention, . . . but only
when there is such an absence of overall rational support
as to warrant the description ‘arbitrary or capricious.’”
Ctr. for Auto Safety v. Peck, 751 F.2d 1336 (D.C. Cir.
1985). The contracting officer relied on multiple factors,
including several instances in which Ms. Sims did not
accept offered contracts, and those factors make his
decision as a whole rational. In context, the inaccuracy in
the characterization of the SBA’s action regarding the
prior COC referral was not so significant as to render the
contracting officer’s decision arbitrary or capricious.
B
We also conclude that the SBA had a reasonable basis
to deny Ms. Sims a COC. The SBA obtained information
from government agencies having prior dealings with Ms.
Sims. It reviewed her past performance on other con-
tracts, and it noted the high percentage of offers that she
had failed to accept. She has not shown that either the
SIMS v. UNITED STATES 9
SBA’s process or its decision on the merits of the COC
denial was arbitrary and capricious.
Ms. Sims argues that it was improper for the SBA to
consider the fact that she did not employ an individual
who was qualified to serve as a horticulture instructor.
We disagree. Given Ms. Sims’s history of failing to pro-
vide qualified instructors after being offered contracts, it
was reasonable for the SBA to take into account that she
neither employed any qualified instructors nor had bind-
ing commitments from them. She argues that this failure
is excused because she was required to offer the contract
to the incumbent, Mr. Arbaugh, under a provision of the
Federal Acquisition Regulations prohibiting the dis-
placement of qualified workers. See 48 C.F.R. § 52.222-
17. However, even if the contract required her to give Mr.
Arbaugh a right of first refusal, it was reasonable for the
SBA to consider the fact that she lacked contingent com-
mitments from any other qualified candidates in the
event that Mr. Arbaugh refused her offer.
Ms. Sims next argues, as she did regarding the con-
tracting officer’s non-responsibility determination, that
the SBA erred by considering offers that did not ripen into
contracts, as she was free to decline them. As discussed
above, while she was free as a matter of contract law to
decline the offers, the fact that she did so frequently
speaks to her reliability as a potential contracting party,
and it was rational for the SBA to take that past conduct
into account.
Finally, Ms. Sims argues that the SBA should not
have considered her previous business dealings because
they were not sufficiently similar to the horticulture
instruction contract. She also argues that the SBA should
not have considered the fact that she had limited experi-
ence completing contracts other than for religious ser-
vices. Ms. Sims is incorrect to suggest that the SBA is
narrowly constrained with regard to what information it
10 SIMS v. UNITED STATES
can consider when it makes a competency determination.
The pertinent regulations require an applicant to “include
all information and documentation requested by SBA and
any additional information which the firm believes will
demonstrate its ability to perform on the proposed con-
tract”; the SBA is then entitled to “obtain clarification or
confirmation of information provided by the applicant by
directly contacting suppliers, financial institutions, and
other third parties upon whom the applicant’s responsibil-
ity depends.” 13 C.F.R. § 125.5(d). In addition, the SBA
has broad discretion to consider factors bearing on the
contractor’s responsibility that were not cited by the
contracting officer. Id. at § 125.5(f). The regulations thus
give the SBA substantial latitude in seeking information
that could be relevant to a contractor’s reliability. Ms.
Sims has made no showing that the agency exceeded its
authority in this case.
C
The Court of Federal Claims correctly concluded that
the contracting officer had a reasonable basis for the
determination of non-responsibility and that the SBA had
a reasonable basis to deny her a COC.
We have considered Ms. Sims’s remaining arguments
but find them unpersuasive.
No costs.
AFFIRMED