Bona Fide Conglomerate, Inc. v. United States

96 Fed. Cl. 233, 2010 U.S. Claims LEXIS 910, 2010 WL 4925288
CourtUnited States Court of Federal Claims
DecidedDecember 2, 2010
DocketNo. 10-726C
StatusPublished
Cited by32 cases

This text of 96 Fed. Cl. 233 (Bona Fide Conglomerate, 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
Bona Fide Conglomerate, Inc. v. United States, 96 Fed. Cl. 233, 2010 U.S. Claims LEXIS 910, 2010 WL 4925288 (uscfc 2010).

Opinion

MEMORANDUM OPINION ENTERING TEMPORARY RESTRAINING ORDER

WILLIAMS, Judge.

This post-award protest comes before the Court on Plaintiffs application for a temporary restraining order (“TRO”) and on Defendant’s motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.1 This protest concerns a procurement by the General Services Administration (“GSA”) and the Committee for Purchase From People Who Are Blind or Severely Disabled (the “Committee”) pursuant to the AbilityOne Program, formerly known as the Javits-Wagner-O’Day (“JWOD”) Act, 41 U.S.C. §§ 46-48c.

Plaintiff alleges that NISH,2 a non-federal agency employed by the Committee to distribute opportunities and select vendors, violated multiple procurement regulations in its consideration of proposals, and challenges the award of a contract to Opportunity Village, Inc. (“OVI”) pursuant to Sources Sought Notice for Opportunity (“SSN”) No. 10709 and Solicitation No. GS-09P-10-KSD-0083. The SSN contemplated a contract to provide all management, supervision, labor, and equipment required to perform custodial and grounds maintenance services for two GSA buildings in Las Vegas, Nevada. The incumbent contract was set to expire on October 31, 2010, and OVI was to begin performing the newly awarded contract on November 1, 2010. However, in an effort to allow the Court time to fully consider the parties’ arguments, Defendant voluntarily extended performance of the incumbent contract and deferred performance of the challenged contract until November 3,2010.

Upon consideration of the record and the motion papers, the Court concludes that Plaintiff has demonstrated that it is likely that the Court has jurisdiction, and that Plaintiff has raised serious legal questions whether the Government, acting through GSA, the Committee for Purchase From People Who Are Blind or Severely Disabled, and NISH, committed a prejudicial violation of procurement law. Plaintiff will be irreparably harmed absent a temporary restraining order because contract performance by the awardee will commence on November 3, 2010, and Plaintiff may have been deprived of a fair opportunity to compete for the contract. The equities are balanced in favor of such relief. Defendant has been securing [236]*236the needed services under a contract and a bridge purchase order with TTCC, Inc. (“TTCC”) scheduled to expire on November 3, 2010. There is no impediment to the Government continuing to procure these services under a similar contractual vehicle during the period of this TRO. As such, there is little harm to the Government or third parties by preserving the status quo. The public interest will be served by allowing the protest process to proceed and by preserving a meaningful remedy in the event Plaintiff ultimately prevails. Because this protest is complex and involves a novel jurisdictional issue, this Court exercises its discretion to extend the TRO for an additional period beyond 14 days. See RCFC 65(b). As such, this TRO is effective until November 20, 2010.

Findings of Fact3

The AbilityOne Program

The JWOD Act, now known as the “Abili-tyOne Program,” provides employment opportunities for people who are blind or have other significant disabilities by promoting their access to and participation in federal contracts for goods and services. See Pub.L. No. 92-28, 85 Stat. 77 (1971), as amended, 41 U.S.C. §§ 46-48e. JWOD created an independent federal agency to promote government contracting with certain nonprofit agencies that employ individuals with disabilities. Specifically, JWOD established the Committee to facilitate the Government’s “purchase of commodities and services from qualified nonprofit agencies.” 41 C.F.R. § 51-1.1; see 41 U.S.C. § 46(a). A “qualified nonprofit agency” is an agency that employs individuals with severe disabilities “for not less than 75 per centum of the man-hours of direct labor required for the production or provision of the commodities or services.” 41 U.S.C. § 48b(4). Plaintiff Bona Fide Conglomerate, Inc., a “qualified nonprofit agency” within the meaning of the statute, trains and enables individuals with disabilities to attain and maintain employment.

The Committee is an independent government activity with members appointed by the President of the United States. FAR 8.702.4 The Committee determines which supplies and services government entities will purchase from AbilityOne participating nonprofit agencies. 41 U.S.C. § 47(a)(1); see FAR 8.702. Accordingly, the Committee maintains a Procurement List of all supplies and services that must be purchased from “any qualified nonprofit agency for the blind or by any qualified nonprofit agency for other severely handicapped.” 41 U.S.C. § 47(a); see FAR 8.703. Once a good or service is added to the Procurement List, government entities — including executive agencies — are required to procure the good or service from a qualifying nonprofit agency (“NPA”) at a price established by the Committee. 41 U.S.C. §§ 48, 48c; FAR 8.704.

The Committee has designated two central nonprofit agencies (“CNAs”) to “represent” qualified nonprofit agencies serving people with severe disabilities other than blindness. 41 C.F.R. § 51-3.1. Both NISH and the National Industries for the Blind (“NIB”) are CNAs designed to represent participating NPAs in dealing with the Committee under the Javits-Wagner-O’Day Act. Once an agency identifies a need for commodities or services, NISH or NIB is tasked with evaluating the qualifications and capabilities of qualifying nonprofit agencies and recommending an awardee to the Committee. 41 C.F.R. §§ 51-3.1 to -3.2. In essence, once GSA identifies a requirement for services on the Procurement List, the Central Nonprofit Agency designated by the Committee — here NISH — conducts an “order distribution pro[237]*237cess” that results in a government order for goods or services placed with a qualifying nonprofit agency.5

The Three-Party Strategic Alliance Agreement Signed By GSA, The Committee, and NISH

In November of 2002, GSA, the Committee, and NISH entered into a Strategic Alliance Agreement (the “Agreement”) to promote the employment of people with severe disabilities in providing certain services to federal agencies. Def.’s App. at Al. According to the Agreement, NISH would “repre-sente ] Community Rehabilitation Programs” (“CRPs”). Id. The GSA Public Buildings Service (“PBS”) agreed to give NISH CRPs the right of first refusal to perform custodial services, and to increase the share of work contracted through NISH in the future. NISH, in turn, agreed to develop a CRP certification process to promote high quality service and contract compliance and to reduce the amount of fees charged as the program grew.

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96 Fed. Cl. 233, 2010 U.S. Claims LEXIS 910, 2010 WL 4925288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bona-fide-conglomerate-inc-v-united-states-uscfc-2010.