Beacon Assocs., Inc. v. Apprio, Inc.

308 F. Supp. 3d 277
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 13, 2018
DocketCase No. 1:18–cv–00576 (TNM)
StatusPublished
Cited by11 cases

This text of 308 F. Supp. 3d 277 (Beacon Assocs., Inc. v. Apprio, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beacon Assocs., Inc. v. Apprio, Inc., 308 F. Supp. 3d 277 (D.C. Cir. 2018).

Opinion

TREVOR N. MCFADDEN, United State District Judge

Before the Court is an Application for a Preliminary Injunction filed by the Plaintiff Beacon Associates, Inc. Beacon alleges that the Defendant Apprio, Inc. solicited Beacon's employees in violation of a contract between the parties, and then terminated that contract without legal justification, destroying Beacon's ability to compete in a pending government contract competition. For the reasons that follow, I conclude that Beacon has met the high standards for imposition of a preliminary injunction, and will issue a corresponding order.

I. Preliminary Findings of Fact1

A. Background

Beacon has been a subcontractor under Apprio's prime contract with the Federal *281Emergency Management Agency (FEMA) since 2014, "providing approximately [40 employees] to support the training [efforts] at FEMA's Center for Domestic Preparedness [FEMA Center] at Fort McClellan in Anniston, Alabama." Compl. 1. From 2009 to 2014, Beacon held the prime contract for these services, but graduated from the qualifying program for "small disadvantaged businesses" before "FEMA re-competed the [contract] in late 2013 and early 2014." Id. at ¶¶ 3-5. Beacon therefore teamed with Apprio to win the follow-on contract, "in exchange for a share of 49% of the work as a subcontractor." Id. at ¶¶ 6-7. On January 16, 2018, FEMA issued a "sources sought" notice, a "Request for Information" (RFI), and a "draft Performance Work Statement," giving formal notice that competition for the follow-up FEMA Center contract was about to begin. Declaration of Carol Koffinke, Application for Preliminary Injunction Ex. 2 ¶ 39-41 (Koffinke Decl.); Koffinke Decl. Ex. 11. Because neither Apprio or Beacon will qualify as a prime contractor in the next round, id. at ¶ 47, each is searching for a new contracting partner. Id. at ¶¶ 43-47.

B. The Fall 2017 Dispute

For approximately the first three years of the subcontract, Beacon routinely paid for Other Direct Costs (ODCs), "such as conference expenses, bus transportation, overtime and incidental supplies and equipment." Compl. ¶¶ 43, 75. These ODCs were submitted as invoices from third party vendors, who were often engaged by Apprio without Beacon's prior knowledge. Koffinke Decl. ¶ 22. To get reimbursed after paying an ODC invoice, "Beacon would in turn submit an invoice for the ODCs to Apprio plus 1% [General and Administrative costs], and then Apprio would in turn pass Beacon's invoice directly to FEMA for payment before paying Beacon's invoice." Koffinke Decl. ¶ 22. Beacon allegedly paid an average of about $30,000 to $35,000 in ODCs per month, until "emergencies caused by Hurricanes Harvey, Maria[,] and Irma" caused FEMA's ODC expenses to rise dramatically in late 2017. Compl. at ¶¶ 76-80. When Beacon began receiving larger invoices from a bus company named Cline Tours, some of which "were in excess of $200,000," Beacon asked Apprio to pay some of the invoices. Koffinke Decl. ¶¶ 34-35. Apprio initially assented, and paid two of the Cline Tours invoices. Id. at ¶ 35; see also id. at Ex. 7.

But the parties eventually became frustrated about the issue. Apprio's president, Darryl Britt, sent an email to Beacon's president, Carol Koffinke on November 7, 2017, expressing "concern[ ] that Beacon has not made the payments for the ODC's for FEMA's surge." Koffinke Decl. Ex. 8 at 2. In part because "Beacon has been able to make payments to date, with the exception of the recent invoices that Apprio paid upon Beacon's request," Mr. Britt stated that "[i]t was not [Apprio's] intention to take over full payment of ODC's," and Apprio did "not consider the payments terms to Beacon to be onerous, nor abnormal." Id. In response, Ms. Koffinke said that Apprio had "[a]pparently ... received a [modification] to support the hurricane effort that I am guessing *282was somewhere between $1.5M and $2M of ODC's," without ever informing Beacon or modifying the Apprio-Beacon subcontract accordingly. Id. at 1. Ms. Koffinke said that "[h]ad the communication and contract administration been handled correctly ... we could have worked something out." Id. She emphasized that Beacon had "no contractual obligation to pay for the ODC's on this [modification]," and told Mr. Britt that "our contract for this Option Year had zero dollars funded for ODC's." Id. Ms. Koffinke avers that "Apprio never responded," and that "[a]fter November, Beacon paid other ODC invoices in line with past practice ... without any further comment from Apprio." Koffinke Decl. ¶ 38.

C. Relevant Contractual Provisions

Under the prime contract between Apprio and FEMA, ODCs were to be "Incrementally Funded," and ODCs had $650,000 budgeted in each option year of the potential four-year contract. Koffinke Decl. Ex. 1 at B-4. Under the subcontract between Apprio and Beacon, Koffinke Decl. Ex. 2 (Subcontract), Beacon was "not authorized to perform Services, make expenditures or incur obligations which exceed the costs as set forth in Appendix B, plus travel and other direct costs that are pre-approved by Apprio and funded through a separate modification." Subcontract § 5.2. Under Appendix B to the subcontract, Beacon was obligated to "satisfy ODC requirements as identified by Work Orders which are authorized by the customer." Subcontract App. B at § 2.2. Section 2 also said that "other direct costs ... shall be funded through purchase orders, pursuant to Section 5.2 of this Agreement." Id. at § 2. Modification 9 to the contract between Apprio and Beacon, which covered Option Year 3 (from March 15, 2017 to March 14, 2018), stated that "ODCs are not included in the [budgeted] amounts and will be reimbursed at cost plus 1% additional for General & Administrative costs." Koffinke Decl. Ex. 3 at 2. In September 2017, FEMA twice modified its prime contract with Apprio, adding $231,257.50 and then $1,780,000.00 for ODCs. Koffinke Decl. Exs. 5-6. This totaled slightly over 2 million dollars in ODC funding in the prime contract for Option Year 3 alone, whereas the amount had previously been only $650,000.

The subcontract also prohibited solicitation of the parties' employees:

During the term of this agreement and thereafter for a period of one (1) year, both the Subcontractor and Contractor shall not directly, for its own account or for the account of any other individual, corporation, partnership, association or firm, induce or attempt to induce any employee of the other party to leave his or her employment with the applicable party. This does not include individuals responding to media advertised employment opportunities or any individual who makes an unsolicited direct contact with a Party regarding employment.

Subcontract App. A, ¶ 5.

D. Apprio Offers Retention Bonuses and Contingent Offer Letters to Beacon's Staff

About two weeks after FEMA released the contract competition notices, Mr. Britt sent an email to Carol Koffinke dated January 30, 2018, informing her that in "planning for the recompete of [FEMA Center] and now that the RFI is on the street," Mr. Bitt had offered "retention bonuses" to the "entire contract team." Koffinke Decl. Ex. 11. According to Ms.

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308 F. Supp. 3d 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beacon-assocs-inc-v-apprio-inc-cadc-2018.