Camden Shipping Corp. v. United States

89 Fed. Cl. 433, 2009 U.S. Claims LEXIS 330, 2009 WL 3353082
CourtUnited States Court of Federal Claims
DecidedOctober 15, 2009
DocketNo. 09-600 C
StatusPublished
Cited by10 cases

This text of 89 Fed. Cl. 433 (Camden Shipping Corp. 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
Camden Shipping Corp. v. United States, 89 Fed. Cl. 433, 2009 U.S. Claims LEXIS 330, 2009 WL 3353082 (uscfc 2009).

Opinion

OPINION AND ORDER

GEORGE W. MILLER, Judge.

Camden Shipping Corporation (“Camden”) brings this pre-award protest contesting the Military Sealift Command’s (“MSC’s”) finding it ineligible for a contract to operate ships. Camden argues that MSC improperly removed it from consideration for award after MSC concluded that Camden’s offer had expired. MSC moves to dismiss Camden’s complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”), arguing that (1) Camden does not have standing to pursue this bid protest, and (2) Camden has failed to state a claim for relief. For the reasons stated below, MSC’s motion is GRANTED.

1. Background1

In November 2008, MSC, a part of the Department of the Navy, issued a Request for Proposals (“RFP”) seeking to award up to three contracts to operate Large Medium Speed Roll-On/Roll-Off ships.2 Compl. ¶ 4 (docket entry 1, Sept. 11, 2009); id. Ex. A, at ¶ 1.1.1 & § M-l.

The original RFP contained contradictory information regarding how long offerors had to keep their offers open. Id. Ex. C, at ¶ 7. In one paragraph, K-9, the RFP required the offeror to be bound “if this offer is accepted within 120 calendar days ” from the date offers were due. Id. Ex. C (emphasis added). In another paragraph, however, the RFP stated that “[ojffers ... shall remain firm for a period of at least 180 days." Id. Ex. C, at ¶ L-15(g) (emphasis added). And in yet a third location, the “Notice to Offer-ors,” the RFP stated that “[ojfferors shall have offers valid for at least 210 days.” Id. Ex. C (emphasis added). Before the offers were due, MSC issued Amendment 0002, which amended both paragraphs K-9 and L-[435]*43515(g) to require offerors to hold offers open for at least 210 days.3 Id. Ex. I, at Ex. 3.

On December 22, 2008, Camden submitted a timely proposal, including a cover sheet on Standard Form 33 (“SF33”), where it filled in “60” as the number of days the offer would remain open. Id. ¶ 5-6 & Ex. B. Camden claims that this insertion of 60 days was an error, relying in part on the language of SF33 in “Box 12,” which reads:

In compliance with the above, the undersigned agrees, if this offer is accepted within _ calendar days (60 calendar days unless a different period is inserted by the offeror) from the date for receipt of offers specified above, to furnish any or all items upon which prices are offered at the price set opposite each item, delivered at the designated point(s), within the time specified in the schedule.

Id. ¶ 6 & Ex. B.

Whether or not Camden wrote “60” in this blank erroneously, MSC believed that Camden’s offer expired sixty days from the date Camden submitted it, that is, on February 20, 2009. Over one hundred days later, on June 1, 2009, Camden e-mailed the Contracting Officer (“CO”) to inquire into the status of its proposal. Id. % 8 & Ex. D. The CO replied on the same day, observing that Camden’s SF33 had indicated 60 days as the duration of the offer, and that MSC had requested offers to remain valid for 210 days. The email concluded that “[i]n consideration of this fact, I regret to inform you that the offers submitted by Camden for Lot 2 and Lot 3 under subject solicitation expired on February 20, 2009 and can no longer be considered for award.” Id. Ex. D.

Camden repeatedly informed MSC that it stood by its original offer, telephoning on the date it received the CO’s e-mail, and later writing a letter to the same effect. Id. ¶¶ 10-12 & Ex. E. MSC did not respond. Id. ¶ 12. Camden then filed an agency-level protest, which MSC denied, stating that “[t]o allow Camden to revive its bid would provide Camden with an unfair advantage over the other offerors who complied with the solicitation requirements and accepted the risk of the marketplace for the full acceptance period.” Id. ¶¶ 13-14 & Exs. F, G. Next, Camden filed a protest with the GAO. GAO Case No. B-401526; Compl. ¶ 15 & Ex. H. MSC moved for summary dismissal, arguing that Camden was not an “interested party” within the meaning of 31 U.S.C. § 3551(2)(A) because its offer had expired and Camden therefore lacked standing to pursue a GAO protest. Compl. ¶ 16 & Ex. I.

On July 2, 2009, Camden learned that three days earlier MSC had issued another amendment to the RFP, Amendment 0012, asking all remaining offerors to extend their offers an additional 150 days, for a total of 360 days, to December 13, 2009. Id. ¶ 18 & Ex. K. Camden sent an unsolicited response purporting to unconditionally extend its offer for 360 days, that is, until December 17, 2009. Id. ¶ 19 & Ex. L. Camden also amended its GAO protest to reflect that MSC had issued the amendment and that Camden had attempted to unconditionally extend its offer. Id. ¶ 20 & Ex. M.

The GAO dismissed Camden’s protest for lack of standing on July 27, 2009. Id. ¶ 21 & Ex. N. Like MSC, the GAO held that “[a]l-lowing an offeror with a shorter acceptance period to revive its offer after it has expired would afford the offeror an unfair advantage since its initial exposure to the risk of the marketplace was for a shorter period of time.” Id. Ex. N, at 3. GAO held that because Camden’s offer had expired and could not be revived, Camden was not an “interest[436]*436ed party” and did not have standing to pursue a bid protest. Id. Ex. N, at 4.

Camden filed its complaint in this court on September 11, 2009, which MSC moved to dismiss on September 18, 2009. Defendant’s Motion to Dismiss (“Def.’s Mot.”) (docket entry 10, Sept. 18, 2009). The Court heard oral argument on October 7, 2009.

II. Standard of Review

A. RCFC 12(b)(1) and Standing

If the defendant challenges plaintiffs standing to bring a claim, the motion is properly considered one challenging the court's subject matter jurisdiction. Scott v. United States, 78 Fed.Cl. 151, 153 (2007). The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. 104-320, 110 Stat. 3870 (Oct. 19,1996), grants this Court jurisdiction over pre-award bid protest actions brought by an “interested party.” 28 U.S.C. § 1491(b)(1).

The Federal Circuit has held that the term “interested party” should be interpreted as defined in the Competition in Contracting Act (“CICA”), 31 U.S.C. § 3551(2)(A). Am. Fed’n of Gov’t Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.Cir.), cert. denied, 534 U.S. 1113, 122 S.Ct. 920, 151 L.Ed.2d 885 (2002). Under CICA, an “interested party” is “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” 31 U.S.C. § 3551(2)(A).

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Cite This Page — Counsel Stack

Bluebook (online)
89 Fed. Cl. 433, 2009 U.S. Claims LEXIS 330, 2009 WL 3353082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/camden-shipping-corp-v-united-states-uscfc-2009.