MARY ELLEN COSTER WILLIAMS, Judge.
This post-award protest comes before the Court on Plaintiff's application for a temporary restraining order ("TRO") and on Defendant's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
Plaintiff alleges that NISH,
Upon consideration of the record and the motion papers, the Court concludes that Plaintiff has demonstrated that it is likely that the Court has jurisdiction, and that Plaintiff has raised serious legal questions whether the Government, acting through GSA, the Committee for Purchase From People Who Are Blind or Severely Disabled, and NISH, committed a prejudicial violation of procurement law. Plaintiff will be irreparably harmed absent a temporary restraining order because contract performance by the awardee will commence on November 3, 2010, and Plaintiff may have been deprived of a fair opportunity to compete for the contract. The equities are balanced in favor of such relief. Defendant has been securing the needed services under a contract and a bridge purchase order with TTCC, Inc. ("TTCC") scheduled to expire on November 3, 2010. There is no impediment to the Government continuing to procure these services under a similar contractual vehicle during the period of this TRO. As such, there is little harm to the Government or third parties by preserving the status quo. The public interest will be served by allowing the protest process to proceed and by preserving a meaningful remedy in the event Plaintiff ultimately prevails. Because this protest is complex and involves a novel jurisdictional issue, this Court exercises its discretion to extend the TRO for an additional period beyond 14 days.
The JWOD Act, now known as the "AbilityOne Program," provides employment opportunities for people who are blind or have other significant disabilities by promoting their access to and participation in federal contracts for goods and services.
The Committee is an independent government activity with members appointed by the President of the United States. FAR 8.702.
The Committee has designated two central nonprofit agencies ("CNAs") to "represent" qualified nonprofit agencies serving people with severe disabilities other than blindness. 41 C.F.R. § 51-3.1. Both NISH and the National Industries for the Blind ("NIB") are CNAs designed to represent participating NPAs in dealing with the Committee under the Javits-Wagner-O'Day Act. Once an agency identifies a need for commodities or services, NISH or NIB is tasked with evaluating the qualifications and capabilities of qualifying nonprofit agencies and recommending an awardee to the Committee. 41 C.F.R. §§ 51-3.1 to -3.2. In essence, once GSA identifies a requirement for services on the Procurement List, the Central Nonprofit Agency designated by the Committee — here NISH — conducts an "order distribution process" that results in a government order for goods or services placed with a qualifying nonprofit agency.
In November of 2002, GSA, the Committee, and NISH entered into a Strategic Alliance Agreement (the "Agreement") to promote the employment of people with severe disabilities in providing certain services to federal agencies. Def.'s App. at A1. According to the Agreement, NISH would "represent[] Community Rehabilitation Programs" ("CRPs").
Since 2000, GSA has obtained the subject custodial and ground maintenance services from a small business pursuant to section 8(a) of the Small Business Act, 15 U.S.C. § 637(a). GSA intended to continue procuring the services under the 8(a) Program unless they were added to the Procurement List, in which case GSA would procure the services under JWOD's AbilityOne Program. 75 Fed. Reg. 39,497 (July 9, 2010). The incumbent contractor, TTCC, graduated from the 8(a) Program on December 12, 2005, rendering it ineligible to receive additional 8(a) contracts.
On October 14, 2009, NISH posted its SSN, requesting proposals for custodial and ground maintenance services. The SSN stated that the selected nonprofit agency would provide "all management, supervision, labor, and equipment, required to effectively, efficiently, and satisfactorily perform Custodial and Grounds Maintenance Services . . . for both GSA buildings in Las Vegas." Ex. B. The contract would be a performance-based contract that described required services in terms of desired results and associated quality standards. Def.'s App. at A37. The SSN indicated that the dollar value of the contract for both buildings would total approximately $687,236.86 for the base year. Ex. B.
Section 4A of the SSN listed weighted "Project Allocation Criteria" as follows:
Ex. B.
Section 4B, also entitled "Project Allocation Criteria," further required offerors to provide a Capability Statement relevant to the technical plan and the offeror's past experience and expertise, a brief description of the Quality Control and Quality Assurance program to be implemented, and the "organizational structure for Quality" to be used.
On January 7, 2010, NISH notified Bona Fide that NISH had decided to award the project to OVI. The notice explained that "[t]he local desire of the customer was truly the deciding factor in our final decision." Compl. at 6-7. In a telephonic debriefing held on January 11, 2010, a NISH official discussed the selection process with Bona Fide. Both OVI and Bona Fide were deemed qualified under the Mandatory Requirements and "fully qualified" under the Capability and Capacity factor. According to NISH, Bona Fide ranked higher than OVI under the "Quality Control Systems" factor, and OVI was preferred over Bona Fide with respect to the "What Customer Wants" factor.
On March 8, 2010, GSA's Contracting Officer, Lousana Shew, notified NISH's Project Manager for GSA Contracts in the Western Region that GSA "has a requirement for a new contract for janitorial, grounds maintenance and related services at Lloyd George Federal Building and U.S. courthouse." Def.'s App. at A4. The letter requested that NISH "provide [its] written response by March 31, 2010, confirming which nonprofit agency will perform this requirement."
On July 9, 2010, the Committee issued its determination that OVI was suitable for addition to the Procurement List in the Federal Register, stating that OVI was "qualified to participate under the auspices of the AbilityOne Program." Def.'s App. at A5-A6. The corresponding Federal Register notice advised that interested persons could comment on the recommendation, but "[i]f the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities." 75 Fed. Reg. 39,497 (Jul. 9, 2010).
A September 3, 2010, Federal Register notice officially added custodial and grounds maintenance services at the Alan Bible Federal Building and the Lloyd George U.S. Courthouse to the Procurement List, and designated OVI as the nonprofit agency to perform those services. 75 Fed. Reg. 54,114 (Sept. 3, 2010). On September 7, 2010, the Committee sent GSA a "Notice of Change to the Procurement List," which informed GSA of the addition. Def.'s App. at A10. GSA awarded contract number GS-09P-10-KS-D-0083 to Opportunity Village Association for Retarded Citizens on October 1, 2010, using Standard Form 1449. Def.'s App. at A14.
Bona Fide appealed the decision under the procedures set forth in the AbilityOne Program Bulletin No. B-1. Compl. at 9;
In deciding whether temporary injunctive relief should issue, a court considers: (1) whether the plaintiff is likely to succeed on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.
Defendant claims that Plaintiff has no likelihood of success on the merits because this Court lacks jurisdiction. Defendant moved for dismissal on that ground on October 28, 2010, and also asserted that Plaintiff has failed to state a claim upon which relief can be granted.
Defendant contends that because Plaintiff does not challenge any conduct on the part of GSA or the Committee directly, the Court does not have jurisdiction over Plaintiff's action. The Court has jurisdiction over bid protests pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1). In relevant part, the statute provides that the United States Court of Federal Claims
28 U.S.C. § 1491(b)(1).
According to Defendant, Plaintiff's complaint challenges decisions made and actions taken by NISH, but "does not assert that any Federal official authority — indeed, any Federal official at all — engaged in any act that violated statute or regulation in this procurement." Def.'s Mot. to Dismiss at 8. During a telephonic hearing conducted on November 1, 2010, however, Plaintiff asserted that it challenged government action — including the Committee's adoption of NISH's recommendations — taken in connection with GSA's procurement.
To the extent that Plaintiff challenges the actions of GSA working in concert with the Committee, this Court clearly has jurisdiction. When GSA "determined a need" for services for the Federal Government and the Committee listed those services on the Procurement List, a federal procurement was under way.
Although the AbilityOne Program employs a multi-step process that implicates several governmental and nongovernmental entities, the process of procuring the subject services is, at bottom, a government procurement resulting in the award of a contract by a federal agency. In essence, it appears that the AbilityOne Program works as follows: the Committee identifies a federal contracting need for supplies or services and places that requirement on its Procurement List. Once an agency's requirement is placed on the Procurement List, the agency must procure that requirement from a qualified nonprofit agency employing individuals with severe disabilities. The Committee's designee, known as a "Central Nonprofit Agency" — here, NISH — is tasked by the Committee with evaluating qualifying nonprofit agencies and recommending an awardee to the Committee. Although NISH is not a federal entity, it evaluates the individual nonprofit agencies at the behest of the Government and recommends an awardee to the Government. If the Committee accepts NISH's recommendation and the agency enters into a contract with the named qualified nonprofit agency, the end result is a government contract — here, a contract between GSA and OVI.
The decision by GSA and the Committee to adopt NISH's recommendation is analogous to an agency's decision to implement a GAO recommendation to take corrective action. The Federal Circuit explicitly recognized this Court's authority to review "a procurement agency's decision to follow the Comptroller General's recommendation" in
In that regard, it does not matter on whose recommendation the Government based its award decision — the Government's wholesale adoption of a third party's recommendation is itself a government action leading to award of a government contract. Here, the Government — the Committee and GSA — accepted NISH's recommendation and appears to have made award to OVI without inquiring as to the reasoning behind NISH's decision and without knowledge of the evaluation or capabilities of any other offeror. Although an analysis of the Government's adoption of NISH's recommendation necessarily entails an inquiry into the rationality of NISH's decision, that does not mean that NISH must displace the United States as the defendant. The procurement action challenged here is GSA's award of a contract to OVI and the process leading up to that award. The fact that the Government — GSA and the Committee — did not probe the basis for NISH's recommendation or the process NISH used to recommend the selection of OVI does not shield the Government's selection of OVI from judicial review.
In sum, based upon the truncated record and expedited briefing at this early stage of the litigation, the Court concludes that it is likely that this Court has jurisdiction over this action.
In a bid protest, the Court reviews the defendant's decision under the standards in the Administrative Procedure Act ("APA"), 5 U.S.C. § 706; 28 U.S.C. § 1491(b)(4). The APA directs a reviewing court to overturn agency actions that are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). To prevail, the protestor must show by a preponderance of the evidence that the agency's actions were either without a reasonable basis or in violation of applicable procurement law.
In considering whether to grant interim injunctive relief pending a final decision on the merits, the Court of Federal Claims has recognized that likelihood of success is a flexible factor.
Plaintiff seeks declaratory and injunctive relief on several grounds. Plaintiff first argues that NISH's selection and recommendation of OVI were inconsistent with its stated evaluation scheme. Under the SSN, an offeror's "Capability and Capacity" constituted 75% of its evaluation score. Because Bona Fide and OVI were evaluated equally as "fully qualified" under this factor, the relative merit of their evaluations turned on the "Quality Control Systems" and "What Customer Wants" factors. Bona Fide outperformed OVI under the 15% "Quality Control" factor such that Bona Fide's final evaluation score should have exceeded OVI's evaluation score. While OVI purportedly prevailed under the "What Customer Wants" factor, that was only worth 10%. Thus, because Bona Fide scored higher on the more heavily weighted factor, Bona Fide should have had a net advantage over OVI. Notwithstanding Bona Fide's higher evaluation score, however, NISH recommended — and the Committee and GSA selected — OVI for award.
Plaintiff further challenges the determination that OVI prevailed under the "What Customer Wants" factor, arguing that contrary to the evaluation, two alleged GSA customers did not express a preference for OVI. Because this allegation presents a factual dispute, the Court does not make any finding with respect to actual customer preferences at this time. However, if this allegation proves to be true, Bona Fide would have had an even higher rating than OVI based upon the SSN factors.
Plaintiff also alleges that the Government misapplied the Geography factor. Despite the SSN's indication that Geography was neither mandatory nor weighted, NISH allegedly afforded the criterion more weight than was due because OVI had administrative offices in Las Vegas, Nevada. This allegation also raises a factual question that this Court cannot resolve at this juncture. However, if the evidence demonstrates that the evaluation did not follow the SSN, this too would be a basis for Bona Fide to succeed on the merits.
Finally, Plaintiff argues that the integrity of the procurement process was compromised by conflicts of interest and favoritism. Plaintiff alleges that before the SSN was issued, officials within NISH stated that they intended to award the contract to OVI, rendering the competition a sham. In addition, Plaintiff suggests that OVI's Chief Executive Officer may have influenced the award decision because he also serves on NISH's board of directors. These allegations present quintessential issues of fact which can best be resolved following deposition testimony or an evidentiary hearing. But even without assessing the likely success of these allegations, Plaintiff has raised serious legal questions about the conduct of this procurement, in particular about the evaluation and ranking. As such, this factor weighs in favor of temporary injunctive relief.
Absent issuance of a temporary restraining order, Plaintiff would not have an adequate or effective remedy. When analyzing irreparable injury, "[t]he relevant inquiry . . . is whether plaintiff has an adequate remedy in the absence of an injunction."
Plaintiff will be irreparably harmed absent a temporary restraining order because contract performance by the awardee will commence tomorrow, and Plaintiff may be deprived of a fair opportunity to compete for and perform the contract. Defendant has been securing the needed services under a contract and bridge purchase order with TTCC scheduled to expire on November 3, 2010. There is no impediment to the Government continuing to procure these services under a similar contractual vehicle during the period of this TRO. As such, there is little harm to the Government by temporarily preserving the status quo.
Defendant argues that Plaintiff's delay in seeking a TRO militates against finding irreparable harm and granting injunctive relief. While a plaintiff's delay in seeking injunctive relief might impact a plaintiff's ability to demonstrate irreparable harm, that circumstance is not a factor here. Defendant has not shown that Plaintiff slept on its rights or failed to apply for a TRO in timely fashion. After the Committee finalized its decision to award the contract to OVI, Plaintiff actively engaged in NISH's appeal procedures and thought it prudent to allow the appeal process to proceed and perhaps avoid the need for litigation. Under the circumstances, Plaintiff's limited delay was reasonable and does not preclude the Court from granting a TRO.
With respect to harm to third parties, the Court recognizes that individuals slated to work on this project — particularly the employees of OVI who have severe disabilities — will be harmed by not being able to perform the contract immediately. However, these employees would also be harmed by any future disruption of the contract. In balancing the harms, the Court determines that absent a TRO, there would be greater harm to Plaintiff than to other parties.
The public interest in preserving the integrity of the procurement system further weighs in favor of granting Plaintiff's application for a TRO. There is an overriding public interest in preserving the integrity of the procurement process by requiring the Government to follow its procurement regulations.
Rule 65(c) of the Rules of the Court of Federal Claims ("RCFC") requires that Plaintiff post a bond in the event a TRO or preliminary injunction is issued. The rule provides, in relevant part:
RCFC 65(c). The purpose of posting security was explained in
In the instant case, the "wounds" potentially inflicted on the Government by the improvident grant of a restraining order would entail costs incurred by OVI due to its inability to commence performing services. Plaintiff suggested that costs to OVI would be minimal given that OVI has an office in Las Vegas and its staff is therefore already in place. Accordingly, Plaintiff proposed that the bond be set at $33,000. However, Defendant estimated the cost for OVI to stand by to be approximately $2,000 per day for the period of the TRO. In addition, Defendant estimated that administrative costs to GSA would likely range from $5,000 to $10,000, and requested that the bond be set at $50,000.
This Court is persuaded that there could be standby costs and administrative costs resulting from the order temporarily enjoining performance of OVI's contract.
Upon consideration of the parties' arguments and the entire record herein, it is hereby
1. Defendant, United States of America, the General Services Administration, the Committee for Purchase From People Who Are Blind or Severely Disabled, and their officers, agents, servants, employees and representatives, including Contracting Officer Lousana Shew, and all persons acting in concert and participating with them respecting the subject procurement, be and they are hereby
2. Plaintiff shall post a bond in the amount of $50,000.00 in accordance with RCFC 65 and 65.1.
Due to exigent circumstances, counsel for both parties are hereby
