Automation Technologies, Inc. v. United States

73 Fed. Cl. 617, 2006 U.S. Claims LEXIS 321, 2006 WL 3072567
United States Court of Federal Claims·Decided October 27, 2006·No. No. 06-694C·Published·Cited by 4 cases

Opinion

[618]*618ORDER

HORN, Judge.

The court held oral argument on October 19, 2006, on the defendant’s and intervenor’s motions to dismiss the complaint in the above-captioned, bid protest case, based on lack of standing. Because of impending critical dates, in a bench ruling issued on October 19, 2006, the court concluded that plaintiff ATI lacked standing under the facts of the case, and granted the defendant’s and intervenor’s motions to dismiss. This Order memorializes the October 19, 2006 bench ruling.

In the initial hearing in the above-captioned bid protest, defendant and intervenor, noting Government Accountability Office (GAO) decisions in their favor, challenged Automated Technologies, Inc.’s (ATI’s) standing to bring this protest. See Automated Technologies, Inc., Comp. Gen. Dec. B-298618, B-298618.2, slip op. at 1-2 (Sept. 6, 2006); Automated Technologies, Inc., Comp. Gen. Dec. B-298618.3, slip op. at 1-3 (Oct. 4, 2006) (reconsideration).

This case has a history of protests to the GAO and this court. Initially, the United States Customs and Border Protection (Customs) agency, part of the Department of Homeland Security, solicited proposals for computer maintenance services. Plaintiff Automation Technologies, Inc. (ATI), intervenor Digital Technologies, Inc. (DTI), and a third offeror, Signature Technology Group, Inc. (STG), submitted proposals. On this initial solicitation evaluation, the technical evaluation score for ATI was higher than DTI’s score, 85 percent to 76 percent, and ATI’s price was lower than DTI’s price. Customs awarded the contract to ATI on January 4, 2006. On January 11, 2006, DTI filed a protest with the GAO (Comp.Gen.B-297851). An automatic stay of the award to ATI stemmed from the GAO protest, pursuant to 31 U.S.C. § 3553(d)(3)(A) (2000). A Customs official, however, determined that it was in the “best interests of the United States” to override the automatic stay, pursuant to 31 U.S.C. § 3553(d)(3)(C)(i)(I), permitting ATI to proceed with the contract.

Upon hearing that the GAO believed improper discussions may have taken place, Customs took corrective action and, as a result, DTI’s protest was dismissed by the GAO on March 23, 2006. The agency’s corrective action included an amendment of the solicitation, receipt of revised price proposals from ATI, DTI and STG, and a new source selection decision. Since only price proposals were re-submitted, the technical submissions and scores remained the same from the earlier evaluation. This time, DTI was the lower priced bidder compared to ATI. According to Customs’ June 28, 2006 Price Negotiation Memorandum:

The solicitation stated that between competing proposals, the Government is not willing to pay significantly more for a minor difference in the non-cost or [non-]price factors rating....
***
CBP [Customs and Border Protection] is unwilling to pay 17% more than DTI’s offered price to obtain a 9 percentage point increase in technical scoring, particularly when DTI has provided this service to CBP in the past at an acceptable performance level.

(emphasis in original).

On August 4, 2006, Customs made a second computer maintenance award under the solicitation, this time to DTI. Throughout this period, ATI was performing the work under the contract it had been awarded on January 4, 2006, with the first task order under the contract having been issued by the government on January 24, 2006. Subsequent task orders have been issued to ATI and continue to this date.1 On August 11, 2006, ATI filed a bid protest with the GAO [619]*619on this second award to DTI (Comp.Gen.B-298618). Another automatic stay went into effect pursuant to 31 U.S.C. § 3553(d)(3)(A). On August 17, 2006, a Customs official executed a Determination and Findings (D & F) to override the automatic stay. The D & F concluded that it was in the “best interests of the United States” to proceed with the award to DTI, because significant cost savings would result. ATI filed a complaint in this court, challenging the agency’s override of the automatic stay stemming from ATI’s protest before the GAO. This court issued a bench ruling on August 31, 2006, in favor of ATI, followed by a written decision memorializing the bench ruling. See Automation Technologies, Inc. v. United States, No. 06-599C (Fed.Cl. Sept.11, 2006). When this court issued the order setting aside the override decision issued by Customs, the automatic stay stemming from ATI’s protest before the GAO was reinstated. See Automation Technologies, Inc. v. United States, No. 06-599C (Fed.Cl. Sept.11, 2006).

The GAO issued its decision on September 6, 2006, dismissing ATI’s protest on the grounds that ATI had not been prejudiced, because it “already holds a contract for the requirement, [and] there is no additional remedy available to it....” Automation Technologies, Inc., Comp. Gen. Dec. B-298518, B-298518.2, slip op. at 2 (Sept. 6, 2006). The GAO’s rationale was as follows:

The agency asserts that we should dismiss the protest because ATI is not prejudiced by the award of a contract to DTI. Specifically, the agency points out that it has not terminated ATI’s contract and, consequently, there are now simply two IDIQ contracts for the work in question, and either DTI or ATI may receive delivery orders for the agency’s requirements. The agency reasons that, since the most ATI could expect as a consequence of its protest is the award of a contract, and since the firm already has a contract, it is not prejudiced by the agency’s award of a second contract to DTI.
ATI responds that the agency’s award of a contract to DTI effectively eliminates any chance of ATI’s receiving further delivery orders under its contract. In this regard, ATI maintains that the agency has historically used only one contractor to meet it requirements, and notes that there was nothing in the RFP indicating that the agency intended to use more than one contractor to fulfill its future requirements. Prejudice is an essential element of every viable protest, and where none is shown or otherwise apparent, we will not sustain a protest, even if the agency’s actions may arguably have been improper. We agree with the agency that, since the protester already holds a contract for the requirement, there is no additional remedy available to it, and that, consequently, ATI has not been prejudiced by the award of a contract to DTI. There is nothing in the RFP that prohibited the agency from making multiple awards and, since the contracts in question are IDIQ contracts, the agency is under no legal obligation to obtain its requirements from one firm or the other (beyond the minimum guaranteed amount specified in the contracts). ATI’s speculation as to the manner in which the agency may issue future delivery orders is not a sufficient basis for finding prejudice.

Automation Technologies, Inc., Comp. Gen. Dec. B-298618, B-298618.2, slip op. at 1-2 (Sept. 6, 2006) (citation omitted).

On September 12, 2006, ATI requested reconsideration of the September 6, 2006 GAO decision. In an October 4, 2006 decision, the GAO denied ATI’s request for reconsideration.

Free access — add to your briefcase to read the full text and ask questions with AI

Automation Technologies, Inc. v. United States, 73 Fed. Cl. 617, 2006 U.S. Claims LEXIS 321, 2006 WL 3072567 (uscfc 2006).

73 Fed. Cl. 617 (Automation Technologies, Inc. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Austin v. United States
128 Fed. Cl. 314 (Federal Claims, 2016)
National Air Cargo Group, Inc. v. United States
126 Fed. Cl. 281 (Federal Claims, 2016)
Digital Technologies, Inc. v. United States
89 Fed. Cl. 711 (Federal Claims, 2009)
Ravens Group, Inc. v. United States
79 Fed. Cl. 100 (Federal Claims, 2007)