MARIAN BLANK HORN, District Judge.
At issue before the court is protestor IAP Worldwide Services, Inc.'s (IAP) motion to alter or amend the judgment, pursuant to Rule 59(e) (2018) of the Rules of the United States Court of Federal Claims (RCFC), in IAP's most recently filed protest, Case No. 18-400C, which is part of a series of related protests. In its RCFC 59(e) motion, IAP seeks to recover bid and proposal costs from two of IAP's prior protests, Case Nos. 17-1959C and 18-179C. Case Nos. 17-1959C, 18-179C, and 18-400C are all related to contract awards for the repair of the electrical system in Puerto Rico after Hurricane Maria. IAP's protest in Case No. 18-4C, regarding IAP's protest of a modification to a contract for the repair of the electrical system in Puerto Rico, is a protest which is not at issue in this Order. IAP also does not seek to alter or amend the court's decision on the underlying merits of Case No. 18-400C, nor does IAP seek bid and proposal costs stemming from Case No. 18-400C.
As noted above, the associated protest actions at issue were all related to contracts awarded by the United States Army Corps of Engineers (Army Corps) for repair to the Puerto Rican electrical system after Hurricane Maria made landfall on Puerto Rico in September 2017. In the aftermath of the storm and the tragic impacts of that storm on the citizens of Puerto Rico, on October 12, 2017, the Army Corps issued a Justification and Approval pursuant to Federal Acquisition Regulation 6.302-2 (2018), based on Unusual and Compelling Urgency, to expedite its procurement for the repair and reconstruction of the electrical system of Puerto Rico and to limit competition to holders of the Resilient Power and Mechanical System Basic Ordering Agreement (Resilient Power and Mechanical System BOA), a contract for the "sustainment, restoration and modernization of electrical and mechanical systems in critical infrastructure." The Resilient Power and Mechanical System BOA was initially competed under full and open competition in 2013 and resulted in various contractors being qualified holders of the Resilient Power and Mechanical System BOA. At the time that Hurricane Maria hit Puerto Rico, there were nine holders of the Resilient Power and Mechanical System BOA, including IAP. The Army Corps, therefore, had authority to issue orders to the nine current holders of the Resilient Power and Mechanical System BOA for the repair and restoration of the electrical power grid in Puerto Rico up to a total price ceiling of $1.336 billion.
The Army Corps issued a request for proposals for a time and material order under the Resilient Power and Mechanical System BOA (BOA Order # 1) on October 8, 2017, for the repair and replacement of electrical transmission and distribution lines in Puerto Rico. Both IAP and Fluor Enterprises Inc. (Fluor), two of the nine Resilient Power and Mechanical System BOA holders, submitted timely proposals. On October 16, 2017, the Army Corps awarded BOA Order # 1 to Fluor initially in the amount of $240.0 million. IAP did not challenge the award of BOA Order # 1 to Fluor.
On November 7, 2017, the Army Corps solicited proposals for a second time and material order under the Resilient Power and Mechanical System BOA (BOA Order # 2), again for the repair and restoration of services to the electrical grid in Puerto Rico. BOA Order # 2 had a price ranging from $1.096 million to $831.0 million. Proposals were due on November 14, 2017. IAP and Fluor were the only two offerors to submit timely proposals. On December 1, 2017, the Army Corps awarded BOA Order # 2 to Fluor, with a maximum price ceiling amount not to exceed $831.0 million.
On December 5, 2017, the Army Corps modified BOA Order # 1 to add $261.0 million in funds to the already $240.0 million allocated to BOA Order # 1, bringing the total BOA Order # 1 value to $501.0 million. IAP filed a protest at the Government Accountability Office (GAO) on December 14, 2017, related to the Army Corps' modification of BOA Order # 1, alleging that the modification was out-of-scope.
On December 15, 2017, IAP filed its first protest before this court, Case No. 17-1959C, unrelated to IAP's December 14, 2017 GAO protest of the modification of BOA Order # 1, but which challenged the Army Corps' handling of the BOA Order # 2 procurement. IAP protested the Army Corps' decision to hold discussions solely with Fluor on BOA Order # 2, the Army Corps' failure to notify IAP of its exclusion from the competitive range until the day after the lapse of IAP's right to file for an automatic stay at the GAO, therefore, not allowing IAP to have protested the December 1, 2017 award of BOA Order # 2 to Fluor at the GAO, the Army Corps' allegedly arbitrary and capricious assignment of numerous deficiencies and weaknesses to IAP's proposal on BOA Order # 2, and the Army Corps' allegedly unequal treatment of IAP. IAP requested that this court direct the Army Corps to cancel the award of BOA Order # 2 to Fluor and make an award to IAP or "in the alternative, cancel the award, open discussions with IAP, and reevaluate proposals reasonably and in accordance with the terms of the Solicitation." IAP also filed a motion for a temporary restraining order and preliminary injunction in Case No. 17-1959C on December 15, 2017, which, after a hearing, the court denied on December 18, 2017.
On December 27, 2017, the Army Corps overrode the Competition in Contracting Act (CICA) stay following IAP's December 14, 2017 protest of the modification of BOA Order # 1 at the GAO. IAP's GAO protest of the modification of BOA Order # 1 was withdrawn on January 2, 2018, allowing IAP to bring a protest of the modification of BOA Order # 1 before this court.
On January 8, 2018, the court held a hearing regarding the protest of the BOA Order # 1 modification in Case No. 18-4C, and the previously filed protest regarding BOA Order # 2 in Case No. 17-1959C. At the January 8, 2018 hearing, the court discussed the issues IAP had raised in the protest regarding BOA Order # 2 in Case No. 17-1959C and noted potential problems with the agency's procurement for BOA Order # 2. At the January 8, 2018 hearing, defendant indicated it was planning to take corrective action by reevaluating IAP's initial proposal for BOA Order # 2. Counsel for the defendant explained at the January 8, 2018 hearing that if IAP submits a "successful proposal," after renewed discussions, then IAP would be given an award under BOA Order # 2. Defendant's counsel also explained at the January 8, 2018 hearing that the Army Corps would issue a stay of the modification of BOA Order # 1 and reallocate remaining, unused funds available under BOA Order # 1 as a potential award for IAP under BOA Order # 2. IAP's counsel stated at the January 8, 2018 hearing that although "[t]here's a little bit of the devil on the details," defendant's proposed corrective action "does sit with me." IAP's counsel also indicated at the January 8, 2018 hearing that IAP would hold "in abeyance" its protest to BOA Order # 1 in Case No. 18-4C, regarding the BOA Order # 1 modification, and its protest of the Army Corps' evaluation of its proposal for BOA Order # 2 in Case No. 17-1959C in light of the government's proposed corrective action. Several months later, on March 19, 2018, IAP voluntarily dismissed its protest to the modification of BOA Order # 1 in Case No. 18-4C prior to the court issuing a decision on the merits of the protest in Case No. 18-4C, given the protestor's decision to hold "in abeyance" its protest under BOA Order # 1.
On January 9, 2018, briefing on the previously set schedule for the parties' cross-motions for judgment on the administrative record in the protest of BOA Order # 2 in Case No. 17-1959C concluded. Given the urgency of the procurement, and, in order to keep the protest moving forward, on January 11, 2018, the court held oral argument on the parties' cross-motions for judgment on the administrative record in the protest regarding BOA Order # 2 in Case No. 17-1959C. The court noted that it had identified "some concerns" and had "some questions" regarding the procurement for BOA Order # 2 and "want[ed] to have further discussion" on the parties' cross-motions for judgment on the administrative record. Following the court's remarks, counsel for defendant apprised the court that defendant, in fact, had begun corrective action regarding the protest at issue in Case No. 17-1959C by reevaluating IAP's initial proposal for BOA Order # 2. IAP's counsel notified the court that he was aware that defendant had reevaluated IAP's initial proposal for BOA Order # 2 and that the agency had sent a draft amendment to the solicitation for BOA Order # 2 to IAP earlier that day. IAP's counsel also notified the court that IAP was awaiting receipt of the final version of the amendment to the solicitation for BOA Order # 2.
Defendant's counsel further explained to the court at the January 11, 2018 oral argument that the corrective action plan she had described to the court at the January 8, 2018 hearing had been "altered somewhat," but that IAP's counsel was "on board with" the changes, a statement to which IAP's counsel did not object. Defendant's counsel explained that instead of issuing a stay of the modification to BOA Order # 1, as previously described at the January 8, 2018 hearing, the Army Corps was going to issue a partial stop work order on BOA Order # 2, in the amount of $250.0 million, and that the Army Corps would set apart the $250.0 million as a potential award for IAP, following further submissions and an evaluation of a revised proposal to be submitted by IAP. As part of defendant's proposed corrective action, IAP would be given the opportunity to submit a proposal for the $250.0 million and IAP would be awarded a contract if the Army Corps found IAP's revised proposal to be "acceptable." IAP's counsel at the January 11, 2018 oral argument noted that, although he was not prepared to dismiss Case No. 17-1959C following the oral argument, in regard to defendant's corrective action, "[w]e absolutely agree and appreciate what they [the agency] have put forth so far."
In carrying out its corrective action, the Army Corps did not issue a new solicitation for the possible award under BOA Order # 2 for $250.0 million, rather the defendant competed a possible award under the original solicitation for BOA Order # 2, on which IAP previously had submitted an offer. The Army Corps issued several amendments to the BOA Order # 2 solicitation, including Amendment 0003A on January 12, 2018, which reduced the price ceiling for a possible award under BOA Order # 2, following an evaluation and acceptable proposal from IAP, from $831.0 million to $250.0 million. Notably, for IAP's related protests in Case Nos. 17-1959C, 18-179C and 18-400C, the solicitation at issue remained the original solicitation for BOA Order # 2, albeit with amendments issued by the agency relevant to the changing circumstances. The Army Corps never issued a new solicitation for the various iterations of the competition for BOA Order # 2 at issue in IAP's related protests in Case Nos. 17-1959C, 18-179C, and 18-400C.
On January 12, 2018, the Army Corps conducted discussions with IAP regarding a possible award under BOA Order # 2. On January 18, 2018, IAP submitted a revised proposal, and on January 31, 2018, the Army Corps completed its evaluation of IAP's revised proposal for a portion of BOA Order # 2. Because Fluor's contract under BOA Order # 1 and BOA Order # 2 were not at issue during the Army Corps' evaluation of IAP's revised proposal, the Army Corps held discussions only with IAP and evaluated IAP's revised proposal for a portion of BOA Order # 2 based on its own merits in order to determine if the revised IAP proposal was technically "acceptable" and contained a "reasonable price" for a possible award of up to $250.0 million. On January 31, 2018, the Army Corps determined that IAP's revised proposal was not "acceptable" and that it would not make an award to IAP.
On February 5, 2018, IAP filed its third related bid protest in this court, Case No. 18-179C, protesting the Army Corps' evaluation of IAP's revised proposal for a portion of BOA Order # 2. IAP alleged that the evaluation by the Army Corps was unreasonable, as well as unequal, as compared with the Army Corps' earlier evaluation of Fluor's proposal for BOA Order # 2. IAP requested that the court order an award of the contract to IAP, or, in the alternative, that the Army Corps again "reevaluate proposals reasonably and in accordance with the terms of the Solicitation." After consideration of the parties' filings and a hearing with the parties, on February 15, 2018, this court issued a ruling in which it determined that the Army Corps' evaluation of IAP's revised proposal had been arbitrary and capricious. The court noted that it could not direct the Army Corps to award a contract to IAP, but, instead, found that the Army Corps' evaluation had been improper and allowed discussions between the Army Corps and IAP again to be reopened, as well as another evaluation of an updated revised proposal to be submitted by IAP.
On February 16, 2018, the Army Corps reopened discussions regarding issues with IAP's revised, technical proposal and two pricing deficiencies in IAP's revised, price proposal for BOA Order # 2. On February 22, 2018, IAP submitted a newly, revised, technical proposal, and on February 26, 2018, IAP submitted a further, newly, revised, price proposal. Together, the most recent, newly, revised, technical proposal and the most recent, newly, revised, price proposal comprised IAP's final, revised proposal. On March 8, 2018, the Army Corps determined that IAP's final, revised proposal was still not "acceptable" and un-awardable due to technical and pricing issues remaining in IAP's final, revised proposal.
On March 15, 2018, IAP filed its fourth bid protest, Case No. 18-400C, alleging that the Army Corps had unreasonably evaluated its final, revised proposal. In its previous complaints in Case Nos. 17-1959C, 18-4C, and 18-179C, IAP had not requested bid and proposal costs, but only had included a general catchall request for "such other and further relief as may be just and proper." In the most recent of the complaints, Case No. 18-400C, however, protestor specifically requested that the court award IAP "damages in the form of bid and proposal costs for all phases of its proposals for Orders 1 [BOA Order # 1] and 2 [BOA Order # 2]."
On March 19, 2018, IAP filed motions to voluntarily dismiss, without prejudice, Case Nos. 17-1959C, 18-4C, and 18-179C, without specifically seeking recovery of bid and proposal costs. Also, on March 19, 2018, the court issued an Order dismissing Case Nos. 17-1959C, 18-4C, and 18-179C, without prejudice, and the Clerk of the Court of the United States Court of Federal Claims entered judgment in Case Nos. 17-1959C, 18-4C, and 18-179C, without an award of bid and proposal costs. At that time, the only protest remaining before the court was IAP's Case No. 18-400C, which challenged the Army Corps' evaluation of IAP's final, revised proposal.
On April 9, 2018, the court issued a ruling in Case No. 18-400C, finding that the Army Corps had not unreasonably evaluated IAP's final, revised proposal for BOA Order # 2. The court granted defendant's cross-motion for judgment on the administrative record and denied IAP's motion for judgment on the administrative record. On April 27, 2018, the court issued an Order that Case No. 18-400C be dismissed in accordance with its April 9, 2018 ruling. The same day, April 27, 2018, the Clerk of the Court of the United States Court of Federal Claims entered judgment in favor of defendant and dismissed Case No. 18-400C.
Subsequently, IAP timely moved the court to alter or amend the judgment in Case No. 18-400C, pursuant to RCFC 59(e), "and order that Defendant United States pay IAP's bid and proposal costs for its initial proposal," which was at issue in Case No. 17-1959C, and its "first proposal revision," which was at issue in Case No. 18-179C. In the alternative to its RCFC 59(e) motion in Case No. 18-400C, IAP moved, pursuant to RCFC 60(b)(5) and RCFC 60(b)(6), for relief from the judgment entered in Case No. 17-1959C, IAP's protest of the Army Corps' evaluation of its initial proposal for BOA Order # 2, and relief from the judgment entered in Case No. 18-179C, IAP's protest of the Army Corps' evaluation of its revised proposal for BOA Order # 2.
Defendant's response to IAP's RCFC 59(e) motion argues that IAP has failed to describe any extraordinary circumstances that would justify amending the judgment in Case No. 18-400C to allow for an award of bid and proposal costs. Defendant also argues that even if judgment was to be amended, IAP is not entitled to recover bid and proposal costs stemming from Case Nos. 17-1959C and 18-179C. IAP filed a reply in support of its RCFC 59(e) motion, and reasserts that the court should amend the judgment in Case No. 18-400C in order to grant "IAP bid and proposal costs relating to cases 17-1959 and 18-179" to prevent a "manifest injustice" of "leaving IAP without an adequate remedy based upon an error that can be easily rectified."
In both of IAP's almost identical, two and half page RCFC 60(b)(5) and RCFC 60(b)(6) alternative motions for relief from the judgments entered in Case Nos. 17-1959C and 18-179C, IAP summarily, and with little discussion of applicable law, argues that it will be "deprived of any meaningful remedy" for the Army Corps' evaluation of its proposals unless the court re-opens the judgments in Case Nos. 17-1959C and 18-179C and awards IAP its bid and proposal costs for those protests. IAP does not distinguish in its RCFC 60(b)(5) and RCFC 60(b)(6) motions as to when IAP is relying on RCFC 60(b)(5) or RCFC 60(b)(6) as the ground for relief. IAP, instead, generally cites to both RCFC 60(b)(5) and RCFC 60(b)(6) when arguing for relief from the judgments in Case Nos. 17-1959C and 18-179C.
Defendant filed a "combined opposition" to IAP's RCFC 60(b)(5) and RCFC 60(b)(6) motions in Case Nos. 17-1959C and 18-179C which argues that the motions "impermissibly rely upon Rule 60(b)(6) because IAP has not shown any extraordinary circumstances and at bottom is at fault for its current predicament." Defendant also argues that IAP impermissibly relies on RCFC 60(b)(5) as support for its motions for relief from judgment because:
Defendant also argues that, "IAP's motions fail because IAP has waived any concerns it has about the Government's corrective action by not protesting it at the time these actions were taken." Defendant finally argues that "IAP is not entitled to the bid and proposal costs that it seeks — the Court did not rule in IAP's favor in case 17-1959 and any bid and proposal costs incurred by IAP were not wasted due to the Army Corps' corrective action and reevaluation."
IAP filed a "combined" reply in support of its RCFC 60(b)(5) and RCFC 60(b)(6) motions in Case Nos. 17-1959C and 18-179C, in which IAP tries to distinguish its arguments in favor of relief pursuant to RCFC 60(b)(5) and its arguments in support of relief pursuant to RCFC 60(b)(6). IAP states that it is entitled to relief, pursuant to RCFC 60(b)(5), because applying the judgments in Case Nos. 17-1959C and 18-179C will "result in inequity" because IAP would be deprived of "any meaningful remedy" for the Army Corps' allegedly unreasonable evaluation of IAP's initial proposal in Case No. 17-1959C, and for the Army Corps' unreasonable evaluation of its revised proposal in Case No. 18-179C. IAP also argues that it is entitled to relief, pursuant to RCFC 60(b)(6), "[i]n light of the extraordinary situation" in Puerto Rico and because it is "not at fault" for failing to protest the government's "less-than-complete corrective action" taken in Case No. 17-1959C. Subsequently, the court held oral argument on IAP's RCFC 59(e) motion in Case No. 18-400C and on IAP's RCFC 60(b)(5) and RCFC 60(b)(6) motions in Case Nos. 17-1959C and 18-179C.
As indicated above, pursuant to RCFC 59(e), IAP has timely moved to alter or amend the judgment in Case No. 18-400C, a protest in which IAP did not prevail and for which protestor is not seeking to recover bid and proposal costs. Instead, IAP seeks to alter or amend the judgment in Case No. 18-400C in order to recover its bid and proposal costs for two of its earlier protests in Case Nos. 17-1959C and 18-179C, in which the RCFC 59(e) motion is being made well after the 28 days in which a timely request to alter or amend a judgment must be made.
Reconsideration of a judgment is not intended to permit a party to retry its case when it previously was afforded a full and fair opportunity to do so. The United States Court of Appeals for the Federal Circuit has stated that it "reviews the trial court's decision on reconsideration for an abuse of discretion."
"Motions for reconsideration must be supported `by a showing of extraordinary circumstances which justify relief.'"
Courts must address reconsideration motions with "exceptional care."
(2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.'"
In sum, it is logical and well established that, "a motion for reconsideration `should not be based on evidence that was readily available at the time the motion was heard.'"
RCFC 59(e) states that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." RCFC 59(e).
As indicated above, IAP filed a timely RCFC 59(e) motion in Case No. 18-400C. IAP first argues that altering or amending the judgment in Case No. 18-400C "is necessary to prevent the manifest injustice of IAP being left without a remedy under the extraordinary circumstances of these interrelated cases." IAP alleges that:
Defendant, however, argues that the agency "did not take any action that denied IAP the `chance at award of a contract,'" but that IAP actually "had a chance at award of a contract" when, following the court's ruling in Case No. 18-179C, the Army Corps opened discussions once again with IAP and evaluated IAP's newly submitted and revised February 22, 2018 technical proposal and newly submitted and revised February 26, 2018 price proposal. According to defendant, IAP "squandered that chance because of the flaws in its technical and price proposals," which resulted in the agency's finding that IAP's final, revised and submitted technical and price proposals were not "acceptable" nor awardable, a decision which the court found reasonable in Case No. 18-400C, and which IAP has not protested.
Although, as the court found in Case No. 18-179C, the Army Corps improperly evaluated IAP's revised proposal for BOA Order # 2, after the court issued its ruling in Case No. 18-179C, the Army Corps allowed IAP to revise and submit a final, revised proposal for a portion of BOA Order # 2 several times, and provided IAP with, what, after review of its final, revised proposal, the court concluded was a fair and reasonable evaluation of IAP's final, revised proposal for BOA Order # 2, as found in Case No. 18-400C. Because of the urgency of the situation in Puerto Rico, the course of the procurement for BOA Order # 2 may have been less than a model procurement. As the procurement for BOA Order # 2 progressed, however, the Army Corps afforded IAP multiple opportunities for discussions and to revise its proposal and have the revised proposals evaluated. In the end, IAP received a fair evaluation of its proposal to compete for a portion of BOA Order # 2. Ultimately, the court found that IAP's final, revised proposal was not "acceptable" and that IAP should not be awarded a portion of the available funds under BOA Order # 2 due to technical and pricing issues that the Army Corps, not arbitrarily and not capriciously, had determined remained even in IAP's final, revised proposal, despite the various opportunities IAP had to revise its proposal and the multiple discussions IAP had with the Army Corps. Not only has IAP not challenged the court's decision that the Army Corps had not unreasonably evaluated IAP's final, revised proposal for BOA Order # 2 in Case No. 18-400C, but the court also has not been presented with a change to controlling law, previously unavailable evidence, or a manifest error of law or mistake of fact, with respect to the court's decision regarding the Army Corps' evaluation of IAP's final, revised proposal not to award a contract to IAP under BOA Order # 2.
IAP then argues that amending the April 27, 2018 judgment in Case No. 18-400C is appropriate because the court committed "clear error" by not awarding IAP its bid and proposal costs stemming from two earlier, related protests, Case Nos. 17-1959C and 18-179C. IAP argues that the "Court of Federal Claims has the power, in appropriate circumstances, to award bid and proposal costs from a previous case as part of the judgment in a subsequent case" and cites to
In
Unlike the agency at issue in
Regarding Case No. 18-179C, the court found that the Army Corps had not acted properly in its evaluation of IAP's revised proposal for BOA Order # 2 and ordered that discussions with IAP be reopened. The Army Corps complied with the court's decision in Case No. 18-179C. On February 16, 2018, the Army Corps again held discussions with IAP, which precipitated IAP's submission of its final, revised proposal for an award under BOA Order # 2, which the Army Corps evaluated. The Army Corps, however, ultimately found that IAP's final, revised proposal for BOA Order # 2 remained not "acceptable" due to flaws within IAP's final, revised proposal. In Case No. 18-400C, the court then found that the Army Corps' evaluation of IAP's final, revised proposal for BOA Order # 2 and the Army Corps' decision not to make an award to IAP was not arbitrary or capricious. Unlike the protestor in
IAP also argues that it should be awarded bid and proposal costs because the Army Corps' evaluation of IAP's proposals for a portion of BOA Order # 2 "proved illusory," given that "Fluor continued to perform the original BOA 2, so that the amount of available work steadily dwindled over time." Fluor's continued performance on BOA Order # 2, however, was part of an urgent, unique, corrective action plan created by defendant to deal with the tragedy in Puerto Rico, with IAP's knowledge and buy-in, in order to correct for alleged flaws in the evaluation of IAP's initial proposal for BOA Order # 2, at issue in Case No. 17-1959C, and perhaps allow IAP to become eligible to receive an award under BOA Order # 2. The corrective action plan, devised by the defendant and accepted by the protestor, allowed IAP to continue to bid for a portion of the work to be performed in Puerto Rico under BOA Order # 2. During the January 8, 2018 hearing in Case Nos. 17-1959C and 18-4C, and the January 11, 2018 oral argument in Case No. 17-1959C, both the government and IAP expressed interest in coming to a resolution, including to allow IAP an opportunity to continue to offer for a part of BOA Order # 2, and an opportunity to evaluate a revised proposal from IAP, given the problems identified by the Army Corps in the earlier evaluation of IAP's initial proposal for BOA Order # 2, at issue in Case No. 17-1959C. As described above, at the January 8, 2018 hearing, defendant proposed a corrective action plan under which the agency would issue a stay of the modification to BOA Order # 1 and allocate the unused funds under BOA Order # 1 for a potential award to IAP under BOA Order # 2, to which IAP's counsel noted at the January 8, 2018 hearing does "sit with" him. Pursuant to the government's proposed corrective action, IAP was to be allowed to resubmit a proposal for evaluation for a possible award for a portion of BOA Order # 2.
After defendant decided to take the corrective action, however, at the January 11, 2018 oral argument in Case No. 17-1959C, defendant stated that since the January 8, 2018 hearing, the proposed corrective action plan discussed by the government at the January 8, 2018 hearing was "somewhat" altered, but that IAP's counsel was "on board with" the altered corrective action, to which, IAP's counsel did not object. Defendant's counsel explained at the January 11, 2018 oral argument that instead of staying the modification of BOA Order # 1, as previously noted by defendant's counsel at the January 8, 2018 hearing, the agency would issue a partial stop work order for $250.0 million on BOA Order # 2 as a potential award amount available only to IAP, since IAP, other than Fluor, was the only other original bidder for award under the BOA Order # 2 solicitation, and that Fluor would continue to perform under the originally awarded BOA Order # 2, to ensure as prompt as possible, continuing restoration of the Puerto Rican electrical system. Defendant's counsel also apprised the court at the January 11, 2018 oral argument that the agency had already began its corrective action plan, having already reevaluated IAP's initial proposal. At no point during the January 11, 2018 oral argument did IAP's counsel express any objections to defendant's corrective action plan. In fact, IAP's counsel notified the court at the January 11, 2018 oral argument that he was aware that the Army Corps had commenced its corrective action plan, when the Army Corps had reevaluated IAP's initial proposal for BOA Order # 2, and that IAP was awaiting receipt of the finalized amendment to the solicitation for BOA Order # 2. In addition, IAP's counsel, upon hearing of defendant's somewhat altered corrective action plan, noted at the January 11, 2018 oral argument that, "[w]e absolutely agree and appreciate what they [the agency] have put forth so far."
On January 12, 2018, IAP received Amendment 0003A to the solicitation, which stated that the ceiling price for a possible acceptable BOA Order # 2 award to IAP had been set at $250.0 million and that "Amendment 0003A is only in reference to IAP." IAP then submitted a revised proposal on January 18, 2018 and noted in its cover letter to the Army Corps that it had received Amendment 0003A and took "no exceptions to any of the requirements contained" within the solicitation, including Amendment 0003A. Following the Army Corps' evaluation of IAP's revised proposal, which was completed on January 31, 2018, the Army Corps once again held discussions with IAP in February 2018. Following discussions, IAP submitted a revised, technical proposal on February 22, 2018 and an additional revised, price proposal on February 26, 2018. IAP also noted in its February 22, 2018 and February 26, 2018 cover letters to its revised, technical and price proposals that it took "no exceptions to any of the requirements contained within" the solicitation and did not note any objection to the fact that Fluor was continuing to perform under BOA Order # 2. IAP willingly participated in defendant's corrective action, without objection, including that Fluor would continue to perform on the ground in Puerto Rico and that IAP would enter into further discussions with the Army Corps and have an opportunity to revise its proposal for a portion of BOA Order # 2. Thus, protestor's argument that Fluor's performance under BOA Order # 2 resulted in "illusory" relief is untimely and unpersuasive.
IAP further argues that it should recover its bid and proposal costs for Case Nos. 17-1959C and 18-179C because IAP only received a "portion of the relief it sought," i.e., a chance to compete for only $250.0 million, and not for the original $831.0 million available under BOA Order # 2. IAP cites to
In
In addition, IAP's argument that it was provided only partial relief when it was only allowed to compete for $250.0 million under BOA Order # 2 instead of $831.0 million originally obligated to BOA Order # 2 is overcome by IAP's acceptance of Amendment 0003A without any exception, which specifically set the price ceiling for IAP at $250.0 million when it competed for a portion of BOA Order # 2. The United States Court of Appeals for the Federal Circuit explained in
On January 12, 2018, IAP received Amendment 0003A to BOA Order # 2, which specifically identified the price ceiling as $250.0 million for the portion of BOA Order # 2, for which IAP would be submitting a revised proposal, and which revised proposal was to be evaluated for acceptability for an award. IAP then submitted its revised proposal on January 18, 2018 and noted in its cover letter to the Army Corps that it had received Amendment 0003A and took "no exceptions to any of the requirements contained" within the solicitation, including Amendment 0003A. Following the Army Corps' evaluation of IAP's proposal in January of 2018, the Army Corps, once again, reopened discussions with IAP in February of 2018. Following discussions, IAP submitted a newly, revised, technical proposal on February 22, 2018 and a newly, revised, price proposal on February 26, 2018. IAP also noted in its February 22, 2018 and February 26, 2018 cover letters to its technical and price proposals respectively, that it took "no exceptions to any of the requirements contained within" the solicitation and amendments to the solicitation. If IAP was planning to take issue with the ceiling amount of $250.0 million under BOA Order # 2, IAP should have raised its concerns before submitting its revised proposal on January 18, 2018 and certainly before the Army Corps issued its evaluation decision on IAP's revised proposal on January 31, 2018, or prior to submitting its revised technical and price proposals to the Army Corps on February 22, 2018 and February 26, 2018. Rather, like the bidder in
Regardless, IAP still would have to meet the general standards for recovery of bid and proposal costs in order to recover bid and proposal costs for Case Nos. 17-1959C and 18-179C. Those standards have been described as follows:
Regarding the first condition for recovery of bid and proposal costs, that "the agency has committed a prejudicial error in conducting the procurement,"
The court also notes that in IAP's RCFC 59(e) motion to alter or amend the judgment in Case No. 18-400C, IAP does not specify to which of the hearings it is referring when arguing in favor of an award of its bid and proposal costs for Case No. 17-1959C. IAP, however, may have been referring to the two proceedings, the January 8, 2018 hearing and the January 11, 2018 oral argument, during which the court expressed to the parties that it had perceived "problems" and "concerns" with defendant's initial evaluation of IAP's initial proposal for BOA Order # 2. The court, however, did not issue a decision on the merits at either proceeding. As of January 8, 2018, briefing was not complete on the parties' cross-motions for judgment on the administrative record in Case No. 17-1959C and the court had not yet heard oral argument on those cross-motions. At the January 11, 2018 oral argument in Case No. 17-1959C, the court noted at the outset that it still had "some questions" for the parties regarding Case No. 17-1959C. Before the court could issue a decision on the merits in Case No. 17-1959C, defendant had begun its corrective action prior to the January 11, 2018 oral argument, when it reevaluated IAP's initial proposal. Then, on January 12, 2018, the Army Corps held discussions with IAP. Following the government's completed corrective action, IAP moved to voluntarily dismiss the protest in Case No. 17-1959C on March 19, 2018, without making a specific request for bid and proposal costs in Case No. 17-1959C. On that same day, March 19, 2018, the Clerk of the Court of the United States Court of Federal Claims entered judgment and dismissed IAP's protest in Case No. 17-1959C. In sum, the court did not make a finding that defendant had committed prejudicial error in the course of the procurement which led to Case No. 17-1959C. Moreover, ultimately, after several renewed discussions between the government and IAP, and several revised proposals submitted to the agency by IAP, IAP's final, revised proposal was, according to this court, reasonably evaluated by the Army Corps and found unacceptable by the agency, as determined in Case No. 18-400C.
Regarding the second condition of recovery of bid and proposal costs, "that error caused the protester to incur unnecessarily bid preparation and proposal costs,"
In the alternative to its RCFC 59(e) motion in Case No. 18-400C, IAP moves for relief from the judgment in Case Nos. 17-1959C and 18-179C pursuant to RCFC 60(b)(5) and RCFC 60(b)(6). Turning first to IAP's request for relief pursuant to RCFC 60(b)(5), IAP argues that it is entitled to relief from the judgments in Case Nos. 17-1959C and 18-179C pursuant to RCFC 60(b)(5) because prospectively applying these two judgments will "result in inequity" because IAP would be deprived of "any meaningful remedy" for the Army Corps' allegedly unreasonable evaluation of IAP's initial proposal in Case No. 17-1959C, and for the Army Corps' unreasonable evaluation of its revised proposal in Case No. 18-179C. Under RCFC 60(b), a court may, "[o]n motion and just terms," relieve a party from a final judgment for any of the following reasons:
RCFC 60(b);
As this court previously indicated in
A request for relief from a judgment is not intended to permit a party to retry its case when it previously was afforded a full and fair opportunity to do so. The United States Court of Appeals for the Federal Circuit has stated that: "The decision whether to grant reconsideration lies largely within the discretion of the [trial] court."
In a motion for relief from final judgment, "`[t]he movant . . . must do more than merely reassert[] arguments which were previously made and carefully considered by the court.'"
The United States Court of Appeals for the Federal Circuit explained in
IAP argues that it is entitled to relief pursuant to RCFC 60(b)(5) in Case Nos. 17-1959C and 18-179C because the two judgments result in "inequity" and deprive IAP of "any meaningful remedy" for the Army Corps' allegedly unreasonable evaluation of IAP's initial proposal in Case No. 17-1959C, and for the Army Corps' unreasonable evaluation of its revised proposal in Case No. 18-179C. IAP, however, ultimately received the remedy it requested in Case Nos. 17-1959C and 18-179C, which was a continuing, fair and reasonable opportunity to compete for an award under BOA Order # 2, including further discussions with the Army Corps. Following Case No. 17-1959C, IAP received a chance to revise its proposal, and a further evaluation of its revised proposal for an award under BOA Order # 2. Following the court's ruling on February 15, 2018 in Case No. 18-179C, the Army Corps again held discussions with IAP, and IAP, again, received an opportunity to submit a newly, revised proposal to the Army Corps for evaluation, although IAP ultimately also protested the Army Corps' February 2018 evaluation of its final, revised proposal in Case No. 18-400C. With respect to the February 2018 evaluation by the Army Corps of IAP's final, revised proposal, which resulted in Case No. 18-400C, the court found that the Army Corps had reasonably evaluated IAP's latest proposal and had reasonably concluded that IAP's final, revised proposal was not "acceptable" due to both remaining technical and pricing flaws. After review, this court concluded that IAP had received a fair and reasonable evaluation by the Army Corps of its final, revised proposal, the remedy that IAP had requested in both Case No. 17-1959C and Case No. 18-179C.
In addition, "inequitable" circumstances that would justify a grant of a RCFC 60(b)(5) motion are those in which the moving party has presented "a significant change either in factual conditions or in law" that "renders continued enforcement detrimental to the public interest."
IAP then argues that it is entitled to relief from both judgments in Case Nos. 17-1959C and 18-179C pursuant to RCFC 60(b)(5) because of "changed conditions regarding IAP's ability to seek bid and proposal costs in Case 18-400." According to IAP, it believed it could request it bid and proposal costs stemming from Case Nos. 17-1959C and 18-179C later in its subsequent protest of the Army Corps' evaluation of its final, revised proposal in Case No. 18-400C, and, therefore, did not request such costs before dismissing Case Nos. 17-1959C and 18-179C on March 19, 2018. IAP fails to provide persuasive support for its assertion that it subsequently could receive bid and proposal costs. IAP also claims that the circumstances changed when the court denied its request for bid and proposal costs stemming from these two protests in its later filed complaint in Case No. 18-400C. On April 9, 2018, the court issued a ruling in Case No. 18-400C in the government's favor, and on April 27, 2018, the court issued an Order dismissing Case No. 18-400C, without an award of bid and proposal costs to IAP for its previous, related protests of BOA Order # 2 in Case Nos. 17-1959C and 18-179C.
As indicated above, RCFC 60(b)(5) allows relief from a judgment "where circumstances have changed such that continued application of the judgment would be inequitable."
IAP also argues that "IAP was not alone in understanding that bid and proposal costs were an available remedy." According to protestor, the court "indicated its understanding that bid and proposal costs would be available to IAP" at the February 15, 2018 hearing in Case No. 18-179C, during which the court issued its ruling for Case No. 18-179C, IAP's protest of the Army Corps' evaluation of IAP's revised proposal. At the February 15, 2018 hearing in Case No. 18-179C, the government indicated to the court that March 19, 2018 was the current projected date that all government contractors were projected to be demobilized from Puerto Rico.
In addition, the court did not discuss at the February 15, 2018 hearing whether or not IAP could recover its bid and proposal costs for its first protest in Case No. 17-1959C. Also, even though the court indicated at the February 15, 2018 hearing that bid and proposal costs were potentially recoverable for Case No. 18-179C, the court did not indicate that IAP could seek its bid and proposal costs in Case No. 18-179C after IAP participated further in the competition for a portion of BOA Order # 2, following the court's February 15, 2018 ruling or after the protest was dismissed. Following the court's February 15, 2018 ruling in Case No. 18-179C, and despite being notified of the projected March 19, 2018 demobilization date, IAP actively and willingly pushed forward with its proposal submissions to gain an award of a portion of BOA Order # 2. Following the court's February 15, 2018 ruling in Case No. 18-179C, IAP retained the chance of award of BOA Order # 2 when it submitted a final, revised, technical proposal on February 22, 2018 and a final, revised, price proposal on February 26, 2018 for evaluation by the Army Corps. The Army Corps, however, ultimately found IAP's final, revised, technical and price proposals were not "acceptable" for award, a decision that this court found to be reasonable when it decided Case No. 18-400C, and, a decision IAP has not challenged. Moreover, IAP chose to voluntarily dismiss its protest in Case No. 18-179C on March 19, 2018 without first specifically asking for bid and proposal costs, well after the February 15, 2018 hearing in Case No. 18-179C, at which the court issued its ruling in Case No. 18-179C. At the time, IAP remained in the competition for a portion of the award pursuant to BOA Order # 2. As previously indicated, bid and proposal costs are not recoverable when a contractor retains a chance to compete for an award under the original solicitation.
IAP also claims that "even the government recognized that bid and proposal costs were an available remedy" during the February 13, 2018 oral argument on IAP's motion for injunctive relief in Case No. 18-179C, IAP's protest of the Army Corps' evaluation of its revised proposal. At the February 13, 2018 oral argument in Case No. 18-179C, defendant's counsel noted that "if the Court was going to decide that there was an arbitrary and capricious action [in Case No. 18-179C], the remedy would be bid and proposal costs" since, the alternative relief requested by IAP, discussions with IAP and an evaluation of an updated proposal submitted by IAP under BOA Order # 2, in light of the upcoming demobilization of government contractors from Puerto Rico projected for March 19, 2018, potentially could not be "an efficient use of anyone's kind of resources." Defendant's counsel, however, never indicated at the February 13, 2018 oral argument that IAP should seek bid and proposal costs for its protest in Case No. 17-1959C, IAP's first protest of the Army Corps' initial evaluation of IAP's initial proposal. Defendant's counsel also did not indicate at the February 13, 2018 oral argument that IAP, necessarily, could recover bid and proposal costs in Case No. 18-179C after IAP willingly accepted another chance to compete for BOA Order # 2 and fully participated in the Army Corps' evaluation of its revised proposal for BOA Order # 2, as IAP did following the court's February 15, 2018 ruling in Case No. 18-179C. Defendant's counsel argued at the February 13, 2018 oral argument that IAP could potentially be afforded either "injunctive relief," in the form of a competition for a portion of BOA Order # 2 or bid and proposal costs in Case No. 18-179C. In addition, at the February 13, 2018 oral argument, upon consideration of defendant's counsel recommendation that bid and proposal costs were the preferred remedy in Case No. 18-179C in light of the projected March 19, 2018 demobilization date, IAP's counsel insisted that IAP preferred a chance to continue to participate in the process to potentially receive an award pursuant to BOA Order # 2 instead of seeking bid and proposal costs at that time. IAP's counsel stated that,
IAP's counsel also requested from the court at the February 13, 2018 oral argument that, in the event that the court found in favor of IAP in Case No. 18-179C, the court should order "immediate discussions" with the agency regarding IAP's revised proposal for BOA Order # 2. In addition, IAP's counsel noted at the February 13, 2018 oral argument that despite the projected March 19, 2018 demobilization date for government contractors to leave Puerto Rico, IAP believed that "[g]iven the amount of work that we could do immediately with — or within one week, I think that there is still a fair amount of time" for IAP to meaningfully perform under BOA Order # 2, assuming IAP was awarded a contract under BOA Order # 2. Given IAP's decision not to request bid and proposal costs prior to voluntarily dismissing Case Nos. 17-1959C and 18-179C on March 19, 2018, defendant's counsel comment that bid and proposal costs were a potential remedy in Case No. 18-179C at the February 13, 2018 oral argument does not assist IAP's position that the court should re-open the judgments in Case Nos. 17-1959C and 18-179C in order to award IAP bid and proposal costs for these two protests pursuant to RCFC 60(b)(5).
Similar to its argument in its RCFC 59(e) motion in Case No. 18-400C, IAP also argues that it is entitled to relief in Case Nos. 17-1959C and 18-179C pursuant to RCFC 60(b)(5) because the Army Corps' corrective action provided only partial relief by setting aside only $250.0 million and "proved illusory," because Fluor continued to perform under BOA Order # 2, so the amount of available work dwindled over time. As discussed above, IAP's regrets about the outcome of the Army Corps' corrective action and making only $250.0 million potentially available for an award to IAP does not support its request for relief from the judgments in Case Nos. 17-1959C and 18-179C. As noted above, IAP first became aware of defendant's decision to take corrective action at the January 8, 2018 bid protest hearing in Case No. 17-1959C, IAP's protest of the agency's evaluation of its initial proposal for BOA Order # 2, and Case No. 18-4C, IAP's protest of the modification to BOA Order # 1. At the January 8, 2018 hearing, defendant's counsel indicated to the court that defendant was planning on taking corrective action in Case No. 17-1959C to re-evaluate IAP's initial proposal for BOA Order # 2 and to hold discussions with IAP for a potential award under BOA Order # 2. As defendant's counsel explained at the January 8, 2018 hearing, if IAP submitted a "successful proposal," after renewed discussions, then IAP would be given an award under BOA Order # 2. IAP's counsel stated at the January 8, 2018 hearing that although "[t]here's a little bit of the devil on the details," defendant's corrective action "does sit with me." IAP also was aware at the January 11, 2018 oral argument in Case No. 17-1959C, discussing IAP's protest of the agency's initial evaluation of its losing proposal for BOA Order # 2, of the agency's decision to allow Fluor to continue to perform on BOA Order # 2 while IAP competed for a potential award of $250.0 million. Rather than challenge the terms of defendant's corrective action, IAP's counsel stated at the January 11, 2018 oral argument that "[w]e absolutely agree and appreciate what they [the agency] have put forth so far."
In addition, when defendant's counsel discussed the government's updates to the proposed corrective action in Case No. 17-1959C with the court at the January 11, 2018 oral argument, defendant's counsel noted that IAP's counsel is on "board with" the updates, to which IAP's counsel did not disagree. Additionally, IAP willingly participated in defendant's corrective action, by entering into discussions with the agency and by submitting revised proposals for a portion of BOA Order # 2. IAP's arguments that defendant's corrective action was "illusory" and provided only partial relief, as discussed above, are untimely as IAP subsequently was allowed to submit revised proposals for a portion of BOA Order # 2 to the Army Corps. Moreover, protestor's arguments regarding the alleged inequity of the government's corrective action by IAP are not persuasive, as the court found that the agency's evaluation of IAP's final, revised proposal was not unreasonable, and IAP did not object to the corrective action at the time it was developed and executed. Because IAP has failed to demonstrate that applying the judgments in Case No. 17-1959C and Case No. 18-179C is "no longer equitable" pursuant to RCFC 60(b)(5), IAP's RCFC 60(b)(5) motions for relief from the judgments in Case Nos. 17-1959C and 18-179C are denied.
In the alternative, IAP has moved for relief from the judgments entered in Case Nos. 17-1959C and 18-179C pursuant to RCFC 60(b)(6) and seeks an award of bid and proposal costs. IAP argues that it is entitled to relief pursuant to RCFC 60(b)(6) in Case Nos. 17-1959C and 18-179C because it is "not at fault" for failing to protest the government's "less-than-complete corrective action." In particular, IAP notes that the "situation" in Puerto Rico, i.e., the "hundreds of thousands of people in Puerto Rico" that had been "without power for months," created "extraordinary reasons for IAP not to seek" an injunction following the government's corrective action. IAP argues that it agreed to the corrective action referenced above because it "allowed work to move forward on the island despite the Corps' flawed procurements" and IAP "should not be punished for cooperating with the interests of the government, the Court, and the people of Puerto Rico."
"Under RCFC 60(b)(6), a court may vacate a party from a final judgment whenever appropriate to accomplish justice."
IAP's argument that but for the grave situation in Puerto Rico, IAP would have sought an injunction following the government's corrective action in Case No. 17-1959C does not change what occurred. The court first notes that IAP did in fact seek a temporary restraining order and preliminary injunction in its initial filing in Case No. 17-1959C, which the court declined to award at the time. Moreover, assuming that IAP would have sought an injunction following the government's corrective taken in Case No. 17-1959C, there was no guarantee that IAP would have received an injunction due to what IAP described as the government's allegedly "less-than-complete" corrective action in that case, nor did IAP specify in its RCFC 60(b)(6) motion or reply brief which type of injunction it would have sought. The ultimate decision on whether to enter a temporary restraining order or to enter a preliminary injunction lies with the court and requires a showing by the moving party of "(1) likelihood of success on the merits, (2) irreparable harm absent immediate relief, (3) the balance of interest weighing in favor of relief, and (4) that the injunction serves the public interest."
While the court recognizes that the situation in Puerto Rico was devasting following the aftermath of Hurricane Maria, and IAP's concern for the people of Puerto Rico was genuine, the devastation in Puerto Rico following Hurricane Maria did not prevent IAP from fully litigating its position in Case Nos. 17-1959C and 18-179C. Throughout the entire life of Case Nos. 17-1959C and 18-179C, regardless of the situation on the ground in Puerto Rico, IAP retained the option to pursue a protest of the government's corrective action in Case No. 17-1959C or to request bid and proposal costs for Case Nos. 17-1959C and 18-179C before voluntarily dismissing both protests on March 19, 2018. IAP's decision not to seek a temporary restraining order or an injunction following the government's corrective action in Case No. 17-1959C was its decision and facilitated for IAP an opportunity to continue to compete for a portion of the contract funds available under BOA Order # 2. The fragile situation in Puerto Rico at the time of the procurements is not the type of "extraordinary" circumstance which justifies the re-opening of the judgments in Case Nos. 17-1959C and 18-179C, pursuant to RCFC 60(b)(6), to allow for an award of bid and proposal costs at this time. In addition, there is no evidence in the record before the court of any facts which could be considered "extraordinary circumstances" justifying relief from the judgments in Case Nos. 17-1959C and 18-179C. Because IAP has failed to present any "extraordinary circumstances" justifying relief from the judgments in Case Nos. 17-1959C and 18-179C, IAP's request for relief pursuant to RCFC 60(b)(6) fails.
In sum, although the court is sympathetic to IAP's plight regarding its choices, IAP has not demonstrated that the court committed a clear error of law that resulted in manifest injustice when it entered judgment in Case No. 18-400C without an award of bid and proposal costs pursuant to RCFC 59(e). The court also finds that IAP has not demonstrated the kind of inequity regarding the judgments in Case Nos. 17-1959C and 18-179C required to reopen the judgments pursuant to RCFC 60(b)(5), nor has IAP sufficiently demonstrated extraordinary circumstances justifying relief from these judgments pursuant to RCFC 60(b)(6). Throughout the history of IAP's four protests in this court, Case Nos. 17-1959C, 18-4C, 18-179C, and 18-400C, IAP maintained for itself an opportunity to compete for a possible award of a portion of the contract work to rebuild the electrical system in Puerto Rico, although IAP was unsuccessful in the competition at the end of the day after the Army Corps' evaluation of IAP's final revision of its proposal, which the court found was neither an arbitrary nor capricious evaluation. For these reasons, the court
