Blackstone Consulting, Inc. v. United States

65 Fed. Cl. 463, 2005 U.S. Claims LEXIS 98, 2005 WL 850874
CourtUnited States Court of Federal Claims
DecidedMarch 25, 2005
DocketNo. 02-1728C
StatusPublished
Cited by4 cases

This text of 65 Fed. Cl. 463 (Blackstone Consulting, 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
Blackstone Consulting, Inc. v. United States, 65 Fed. Cl. 463, 2005 U.S. Claims LEXIS 98, 2005 WL 850874 (uscfc 2005).

Opinion

OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

FIRESTONE, Judge.

Pending before the court are the parties’ cross-motions for summary judgment. At issue is the interpretation of a settlement agreement between the parties and whether the government has breached that agreement. The plaintiff, Blackstone Consulting, Inc. (the “plaintiff’), argues that the parties agreed that the defendant, the United States (“government” or “defendant”), would provide the plaintiff with a directed subcontract for two years and that the government has breached this agreement. The government argues that the parties agreed that the government would direct a subcontract to the plaintiff only through September 30, 2002 and that the government has either performed its obligation or that any non-performance is excused by the doctrine of impossibility. For the reasons that follow, the government’s motion for summary judgment is GRANTED. The plaintiffs cross-motion for summary judgment is DENIED.

BACKGROUND

The following facts are not in dispute. On January 7, 2000, the U.S. Marine Corps issued a solicitation for “all management, personnel, supervision, subsistence and other items stated to perform Full Food Service, Management and Mess Attendant, and Brig Messhall Management and Food Preparation tasks at various west coast Marine Corps Installations.” Compl. H 4. The contract term was for eight years, beginning October 1, 2000 and ending September 30, 2008 (FY01-FY08). The solicitation sought a contractor to manage all tasks on a regional basis. Contracts for various tasks at Marine Corps messhalls had previously been awarded on a local basis but, under the new contract, the regional prime contractor would subcontract with local firms.

[466]*466Inadvertently included with the solicitation was a cost proposal submitted by the plaintiff for one of the messhall facilities in Yuma, Arizona for FYOO. The plaintiff was the incumbent local prime contractor for the two dining facilities at the Marine Corps Air Station in Yuma, Arizona (“MCAS-Yuma”) at the time the solicitation was issued. Its contract was scheduled to terminate when performance on the new regional contract began.

On March 20, 2000, Contracting Officer Paul Sando (“Sando”) sent a letter to the plaintiff acknowledging the disclosure of proprietary information and proposing remedial action in the form of attempting to retrieve the information from other contractors. Not satisfied with this remedy, the plaintiff filed a protest on March 24, 2000 seeking either that the solicitation be cancelled and re-issued without its proprietary information or that a sole source subcontract award be made to it for the Yuma facilities for the full eight year term of the regional contract. The protester argued that the first remedy would not adequately address the competitive disadvantage it suffered due to the disclosure.

On March 27, 2000, Sando sent an email to the plaintiff and others that read in relevant part:

We are tentatively delaying the closing date for all elements of the proposal ... until 26 June 2000. This slip will effect later target dates, with the end result being a projected delay in the date of commencement of performance on both regional contracts from 1 October 2000 to 1 January 2001. Firm dates will appear in the amendment.

Def.App. at 26.

On April 8, 2000, Sando sent a letter to the plaintiff offering to settle the plaintiffs pending protest. He opened by stating, “The basis of the protest, as we understand it, is that Blackstone Consulting, Inc. is unable to compete on an equal basis with other prospective subcontractors under the solicitation, due to our inadvertent release of your cost data in the regional solicitation documents.” Def.App. at 28. He went on to agree that cancelling and re-issuing the solicitation would not adequately address the plaintiffs competitive disadvantage and therefore he “propose[d] including in the West Coast solicitation a provision requiring the prime contractor to subcontract with Blackstone for required services at MCAS Yuma through September 30, 2002, with additional performance beyond that date at the discretion of the prime contractor.” Def. App. at 28-29. He explained that his reasons for limiting the directed subcontract to that time frame were “twofold.” First, a subcontract through FY02 would:

serve to mitigate the competitive harm caused by our inadvertent release. By FY03, the FY00 rates exposed will be sufficiently dated so as to be of far less help to competitors than they would be today ---- Second, we would assume and hope that Blackstone’s performance will be of such quality that the prime contractor would desire to maintain the contractual relationship beyond FY02. If, for whatever reason, the relationship is not successful, we would not want to be contractually required to force the prime contractor to remain in an untenable situation.
Def.App. at 29.

He concluded by saying that this arrangement would provide “sufficient time for all parties involved to determine whether continuing the relationship is the most prudent course of action.” Def.App. at 29. The offer went on to propose methods for removing the plaintiffs information from the solicitation and implementing the subcontract. Id. On April 5, 2000, the plaintiff sent a letter to “accept [Sando’s] proposal requiring the prime contractor to subcontract with [the plaintiff] for required services at the two dining facilities at MCAS-Yuma through September 30,2002.” Def.App. at 32.

On April 28, 2000, Sando, issued an amendment to the solicitation requiring the prime contractor to subcontract with the plaintiff for services at the facilities at Yuma for a “term ... through September 30, 2002.” Def.App. at 36. In a cover letter accompanying the amendment, he explained: “Establishing a directed subcontract for this limited period will serve to mitigate the competitive harm resulting from our release of Black[467]*467stone’s proprietary data, while still affording the prime contractor the flexibility to assess whether the relationship should be continued beyond FY02.” Def.App. at 34.

Beginning in July 2000, other potential contractors began filing bid protests before the General Accounting Office (“GAO”) challenging the solicitation. Def. Prop. Find. Uncontr. Fact 1115; PI. Prop. Find. Un-contr. Fact 1115. The first of these was denied in December 2000. Def.App. at 42. The protests were eventually resolved and the contract was awarded on March 14, 2001.

The contract was awarded to Sodexho Marriot with a performance commencement date of July 1, 2001. The plaintiff had partnered with a competing offeror and thus did not receive a subcontract for the entire eight year term of the prime contract, as it would have had its partner won the prime contract. On March 22, 2001, the plaintiff emailed San-do to inquire as to “how the logistics of our current operation at Yuma which is guaranteed to our firm through 9/30/02 gets melded into the upcoming Sodexho Marriot contract.” DefiApp. at 48. Sando responded: “The plan as of now, barring protests, is for performance to commence under the regional contracts on 1 July .... If we receive one or more protests, that schedule may or may not be affected, depending on the nature and timing of the protest(s).” Id. The plaintiff then sent an email thanking Sando for the update and did not seek further clarification at that time. DefiApp. at 49.

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Cite This Page — Counsel Stack

Bluebook (online)
65 Fed. Cl. 463, 2005 U.S. Claims LEXIS 98, 2005 WL 850874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackstone-consulting-inc-v-united-states-uscfc-2005.