Akal Security, Inc. v. United States

87 Fed. Cl. 311, 2009 WL 1653487
CourtUnited States Court of Federal Claims
DecidedJune 10, 2009
DocketNo. 09-326 C
StatusPublished
Cited by45 cases

This text of 87 Fed. Cl. 311 (Akal Security, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akal Security, Inc. v. United States, 87 Fed. Cl. 311, 2009 WL 1653487 (uscfc 2009).

Opinion

[314]*314OPINION AND ORDER1

HEWITT, Chief Judge.

The court has before it Plaintiffs Application for a Temporary Restraining Order (plaintiffs Application or Pl.’s App.) and Motion for Preliminary Injunction and Plaintiffs Memorandum in Support of Its Application for a Temporary Restraining Order and Motion for Preliminary Injunction (plaintiffs Motion or Pl.’s Mot.), filed May 21, 2009, Defendant’s [Corrected] Opposition to Plaintiffs Motion for Preliminary Injunction (defendant’s Response or Def.’s Resp.) (alteration in original), filed May 27, 2009, and Defendant-intervenor Security Consultants Group, Inc.’s (“SCG”) Memorandum in Opposition to Plaintiffs Application for Temporary Restraining Order and Motion for Preliminary Injunction of the Federal Protective Servicefs] Award of a Blanket Purchase Agreement to SCG (defendant-intervenor’s Response or Def.-Int.’s Resp.), filed on May 27,2009.

The court held a hearing on May 28, 2009 at 3:00 p.m. Eastern Daylight Time (EDT) with Mr. Seth Berenzweig, counsel for plaintiff, Altai Security, Inc. (Altai), Mr. Gregg Yates, defendant’s counsel, and Ms. Holly Roth and Mr. Stephen M. Ryan, counsel for defendant-intervenor, Security Consultants Group, Inc. (SCG). This opinion addresses only the aspect of plaintiffs Motion that requests a preliminary injunction and not the merits of plaintiff’s case beyond the court’s observations related to the court’s application of the standards for granting or denying a preliminary injunction. These observations are preliminary and subject to change in the light of the filing of the Administrative Record (AR), further briefing, and oral argument.

For the foregoing reasons, plaintiffs Motion is DENIED.

I. Background

Plaintiff, Akal, challenges two Blanket Purchase Agreements (BPAs) awarded by the United States Department of Homeland Security, U.S. Immigration and Customs Enforcement, Federal Protective Service (FPS, Agency, defendant, or government) pursuant to solicitations of competitive requests for quotations (RFQs) for armed security guard [315]*315services in Illinois and Indiana. Complaint for Declaratory and Injunctive Relief (Complaint or Compl.), filed May 21, 2009 ¶ 4. FPS awarded the Illinois BPA to SCG and the Indiana BPA to DECO Security Services, Inc. (DECO). Id. Akal is the incumbent contractor for an FPS armed security guard contract that covers a four-state area including Indiana and Illinois. Id. ¶ 5. Altai’s current contract in Indiana ends on May 31, 2009 and its current contract in Illinois ends on June 30, 2009. Id. ¶¶ 6-7.

FPS issued identical RFQs for Illinois and Indiana.2 Def.’s Resp. 3-4. The RFQ for Illinois, HSCEC5-08-Q-00032 (Illinois RFQ) was issued on September 26, 2008 and the RFQ for Indiana, HSCEC5-08-Q-00033 (Indiana RFQ) was issued on September 29, 2008.3 Id. at 4. The RFQs state that the contracts would be awarded on a “best value” basis. Def.’s Resp. Appendix (App.)4 4, 9. The RFQ stated that bidders would be evaluated on two non-price factors — past performance and management approach — and that past performance would be more important than management approach. The two non-price factors, when combined, were considered to be “significantly more important than price.” Def.’s Resp.App. 2, 7.

Akal challenges the Agency’s evaluation of its past performance and its management approach for the Illinois RFQ and the Indiana RFQ. Compl. ¶ 12.

II. Preliminary Injunctive Relief

A. Jurisdiction and Standing

The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 (ADRA), 28 U.S.C. § 1491(b)(1) (2006), confers jurisdiction on this court to:

render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1) (emphasis added). The court reviews a bid protest action under the standards set forth in the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2006). 28 U.S.C. § 1491(b)(4); NVT Techs., Inc. v. United States (NVT Techs.), 370 F.3d 1153, 1159 (Fed.Cir.2004). The APA provides that an agency’s decision is to be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Galen Med. Assocs., Inc. v. United States (Galen), 369 F.3d 1324, 1329 (Fed.Cir.2004); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 n. 5 (Fed.Cir.2001).

“To qualify as an ‘interested party,’ a protestor must establish that: (1) it was an actual or prospective bidder or offeror, and (2) it had a direct economic interest in the procurement or proposed procurement.” Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed.Cir.2008). Here, plaintiff was an actual offeror, Compl. ¶¶ 29-30. The remaining issue is whether Akal has a “direct economic interest.”

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that a bidder has a direct economic interest exists when it has a “greater than an insubstantial chance of securing the contract if successful on the merits of the bid protest.” Info. Tech. & Applications Corp. v. United States (Info. Tech.), 316 F.3d [316]*3161312, 1319 (Fed.Cir.2003). “The term ‘interested parties’ excludes those who did not submit proposals, bidders who withdrew from a solicitation, and offerors who were not competitively ranked for award.” Microdyne Outsourcing, Inc. v. United States, 72 Fed.Cl. 230, 232 (2006) (citing Impresa, 238 F.3d at 1334). A plaintiff “must show that there was a ‘substantial chance’ it would have received the contract award but for the alleged error in the procurement process. In other words, the protestor’s chance of securing the award must not have been insubstantial.” Info. Tech., 316 F.3d at 1319 (citation omitted).

The government claims that Akal lacks standing because Akal “never had a ‘substantial chance’ to win [the BPAs].” Def.’s Resp. 22 (discussing Bannum, Inc. v. United States, 404 F.3d 1346

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87 Fed. Cl. 311, 2009 WL 1653487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akal-security-inc-v-united-states-uscfc-2009.