NANCY B. FIRESTONE, District Judge.
This post-award bid protest case arises out of Solicitation No. GS-10P-14-LS-D-0003 ("solicitation" or "procurement"), in which the General Services Administration ("GSA") sought janitorial and landscaping services for Federal Center South, Building 1202 in Seattle, Washington. Administrative Record ("AR") at 7. Plaintiff Hughes Group, LLC ("Hughes"), the incumbent contractor and an unsuccessful bidder for the solicitation, seeks to permanently enjoin GSA from proceeding with the award of the contract to Management Services Northwest, Inc. ("MSNW") on the principal grounds that GSA impermissibly engaged in discussions with MSNW that allowed it to make major beneficial changes to its proposal.
Hughes filed the present action on February 27, 2014. MSNW, the awardee, was allowed to intervene on March 7, 2014. Pending before the court is Hughes's motion for judgment on the administrative record.
For the reasons set forth below, the court finds that Hughes lacks standing to bring the present claim. As a result, the government's and MSNW's motions to dismiss are
The facts in this case are undisputed and are set forth in the administrative record. As noted above, the solicitation at issue in this case is for janitorial and landscaping services, to be performed from January 1, 2014 to December 31, 2014, with three one-year options. Previously, GSA had entered into a contract with Hughes to perform some of these services, with a base year expiring on August 31, 2013 and four one-year option periods. AR 1, 160. GSA elected not to exercise Hughes's first option year, and instead elected to extend Hughes's contract for four months and rebid the contract. The new solicitation expanded the scope of the contract to include landscaping services in addition to janitorial services. AR 264-65. In deciding not to exercise the options in Hughes's contract, GSA noted that Hughes's "performance [was] a concern throughout the performance period." AR 265.
The solicitation was posted on December 6, 2013. AR 283. The award was to be made "on a best value basis utilizing the trade off source selection method." AR 434. The evaluation factors identified by GSA were (1) Technical Capability, (2) LEED-EB/Green Cleaning, (3) Relevant Past Performance, and (4) Price.
Once the bids were received and preliminarily reviewed, GSA found that clarifications were necessary because offerors had organized information differently. On Thursday, December 26, 2013 at approximately 5:30 P.M., GSA sent emails to each offeror asking for responses by no later than 9:00 A.M. on Monday, December 30, 2013. AR 901-12. In its email to Hughes, GSA requested that Hughes "verify that [its] submittal includes a management plan and a staffing plan" and asked Hughes to send an electronic copy of those plans by no later than 9:00 A.M. on December 30, 2013. AR 904. Hughes responded on December 30, 2013 at 11:00 A.M., two hours later than the response deadline. AR 965-67. In its email to MSNW, GSA requested that MSNW "clarify [its] Quality Control Plan" and send an electronic copy. AR 909.
A Source Selection Evaluation Board consisting of three individuals, as well as the contracting officer and contract specialist, was assembled to rate the proposals for the final best value determination. AR 1059, 1099. MSNW received an overall rating of "very good" based on a "very good" rating on technical capability, an "exceptional" rating on green cleaning, and an "acceptable" rating on relevant past performance. AR 1100. MSNW provided a price proposal of $2,236,099.06. AR 1010. GWMC ranked second; it received an overall rating of "marginal" based on a "marginal" rating on technical capability, an "acceptable" rating on green cleaning, and a "marginal" rating on relevant past performance. AR 1100. GWMC's price proposal was for [ ]. AR 1109. Hughes ranked third. It received an overall rating of "marginal" based on a "marginal" rating on technical capability, an "unacceptable" rating on green cleaning, and a "marginal" rating on relevant past performance.
Under the terms of the solicitation, "[a]ny proposal receiving an overall `Marginal' or below rating shall not be considered for Award; however, if the Government receives limited competition with an overall `Marginal' rating, the Government reserves the right to consider a `Marginal' rating." AR 436. Because GSA received a proposal from MSNW, which was rated as "very good," GSA determined that GWMC, Hughes, and Triangle, which had received overall technical ratings of "marginal" or "unacceptable," were ineligible for the award, AR 1111, and awarded the contract to MSNW on December 31, 2013. AR 1135.
Hughes filed a post-award protest with the GAO on January 2, 2014. AR 1302-05. Upon receiving notice of the GAO protest, GSA issued a new task order to Hughes off the GSA Schedule to continue performance during the protest period in order to avoid a gap in janitorial services. AR 1312-76. GSA has extended Hughes's task order month-by-month, most recently on March 3, 2014. AR 1646. The current task order can be extended no later than April 14, 2014. The GAO dismissed Hughes's protest on February 19, 2014, after Hughes failed to respond to the agency report. AR 1642-45. This action was filed on February 27, 2014.
As noted above, the government and MSNW both argue that Hughes lacks standing to bring this bid protest and move to dismiss pursuant to RCFC 12(b)(1). The standard of review for a motion to dismiss for lack of subject-matter jurisdiction is well settled. The plaintiff bears the burden of establishing subject-matter jurisdiction.
The jurisdictional grant for the U.S. Court of Federal Claims to hear bid protests is found under 28.U.S.C. § 1491(b)(1), which provides that this court
Since there is no dispute that Hughes is an actual bidder and thus satisfied the first prong of the interested party test, the dispute in this case centers on whether Hughes has the required "direct economic interest." To statisfy the "direct economic interest" requirement, a protester must show that it had a "substantial chance" for award but for the alleged error in the procurement process."
The government and MSNW contend that, even if Hughes is correct and GSA erred by allowing MSNW to submit a QCP after proposals were due, Hughes would still lack standing. According to the government and MSNW, Hughes cannot show that it would have a substantial chance of award because GWMC ranked above Hughes and did not have any "unacceptable" ratings, while Hughes had one "unacceptable" rating. They argue that, in such circumstances, GWMC would be the only offeror with a substantial chance for award.
In response, Hughes argues that it has standing because, in the event that MSNW's award was not lawful, all "marginal" offerors, including GWMC and Hughes, would potentially be eligible for award. Hughes contends that a protestor does not have to show that, but for the alleged error, the protestor would have actually been awarded the contract. Rather, Hughes argues, it is enough for a plaintiff to show that it would be within the "zone of active consideration" as described by this court in
The court finds that Hughes does not have a substantial chance of award and therefore lacks standing. Because Hughes earned a rating of "unacceptable" for LEED-EB/Green Cleaning and "marginal" ratings for the two other evaluation factors, Hughes was excluded from consideration and could not be awarded the contract in the first instance. Even assuming that the award to MSNW were set aside, Hughes's low ratings would preclude Hughes from having a substantial chance of award. In the context of this best value procurement, plaintiff's "unacceptable" rating, which it does not challenge,
In addition, Hughes's reliance on
Because Hughes lacks standing, the government's and defendant-intervenor's motions to dismiss are
It is clear, based on the above-cited record references, that MSNW was not given the opportunity to revise its proposal, but instead recompiled information that it had already provided to GSA. Unlike a discussion, in which offerors are permitted to alter their bids in response to agency questions, this submission served only to highlight information that GSA already had.