Diversified Maintenance Systems, Inc. v. United States

93 Fed. Cl. 794, 2010 WL 2983007
CourtUnited States Court of Federal Claims
DecidedJuly 28, 2010
DocketNo. 09-883C
StatusPublished
Cited by19 cases

This text of 93 Fed. Cl. 794 (Diversified Maintenance Systems, 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
Diversified Maintenance Systems, Inc. v. United States, 93 Fed. Cl. 794, 2010 WL 2983007 (uscfc 2010).

Opinion

OPINION AND ORDER GRANTING PLAINTIFF’S MOTIONS FOR DISCOVERY

WILLIAMS, Judge.

In this post-award bid protest, Plaintiff challenges the award of a HUBZone set-aside contract for the construction of family housing at the Army’s Dugway Proving Ground in Utah. Plaintiff alleges that the awardee, Raass Brothers, Inc. (“RBI”), was not eligible for award because it was not a qualified HUBZone small business contractor as it did not have its principal office in a HUBZone at the time of offer and award in September 2009.

This matter comes before the Court on Plaintiffs motions to supplement the Administrative Record (“AR”) and take discovery. Plaintiff seeks discovery to elucidate where RBI’s principal place of business was located at the time of offer and award. To put it mildly, there is much confusion in the current record as to where, in fact, RBI’s principal place of business was during the relevant timeframe. There are four different potential locations in play. RBI claims that between February 2004, and September 2009, it continuously maintained its principal office in a HUBZone on a property known as “Jack’s Farm” in Tooele, Utah. RBI claims to have moved its principal office to Provo, Utah, on September 1, 2009. However, RBI did not list either the Provo address or Jack’s Farm in its proposal, which was submitted on September 10, 2009. Instead, RBI listed a third HUBZone address, 192 S 100 E, Tooele, Utah (“the 192 Tooele address”), in its offer. In three submissions accompanying its proposal, RBI listed a fourth address in Lehi, Utah (“the Lehi address”), which is not in a HUBZone.

Plaintiff seeks to supplement the administrative record with two affidavits of Jack VanGrimbergen, the owner of Jack’s Farm. In the first affidavit, Mr. VanGrimbergen testified that RBI did not conduct business from Jack’s Farm, and that the lease for Jack’s Farm was backdated by five years. Plaintiff also seeks depositions of the landlords of three properties — Jack’s Farm, the Provo address, and the Lehi address — to ascertain if and when RBI leased and occupied those properties. Finally, Plaintiff seeks the deposition of Stan Raass, Vice President of RBI, to probe the location of RBI’s principal place of business, and seeks documents from all deponents bearing on these issues.

Given the uncertainty and inconsistencies in this record regarding the location of RBI’s principal office at the time of offer and award and the fact that this location is dispositive in ascertaining whether RBI was a qualified HUBZone small business contractor eligible for award here, such discovery is clearly warranted. As such, the Court grants the limited discovery requested.

Background 2

On August 7, 2009, the Army Corps of Engineers (“Corps”) issued solicitation number W91236-09-R-0042, a HUBZone set-aside for a $65 million Single Award Task Order Contract (“SATOC”), for the construction of family housing at the Army’s Dugway Proving Ground in Utah. AR 1, 276. The contract had a base period of one year plus four one-year option periods. AR 274, 276.

On May 27, 2009, RBI was “proposed for decertification” by SBA on the ground that it was no longer located in a HUBZone following a site visit by SBA. AR 157.3 As SBA’s [797]*797Business Development Specialist Nancy Byerly, reported in her site visit report:

Raass Brothers Inc. is not located in a HUBZone. This firm is also an 8(a) firm and BDS [SBA Business Development Specialist] has been to firm’s principle [sic] location (Lehi) and can verify that the firm has moved from 505 S. Brenda Way, Tooele, UT 84074 @ least 2ié years ago. Also [included] in package is Utah Corporations Business Entity Search which shows firm is in Lehi. Recommend that firm be decertified from HUBZone Program.

AR 132 (emphasis in original).4 On September 2, 2009, because RBI had not responded to the SBA’s proposed decertification letter, the firm was decertified. AR 157. SBA’s letter proposing RBI’s decertification is not in the record.

Plaintiff and RBI were the only offerors that submitted timely offers in response to the Corps’ solicitation on September 10, 2009. AR 2, 475. In its offer, RBI listed the 192 Tooele address, represented that it was a qualified HUBZone small business concern, and indicated that no material change in its principal office had occurred since it was last certified as HUBZone-qualified by SBA on January 18, 2006. AR 2, 20; see AR 158. However, in three documents accompanying its offer, RBI listed the Lehi address which is not in a HUBZone. AR 7, 43, 46. Along with the 192 Tooele address in its offer, RBI listed its Lehi phone and fax numbers. AR 2,165-67; see also AR 7, 77, 98,139.

On September 11, 2009, SBA “reversed” its decertification decision, effective April 2, 2002,5 stating:

This firm was proposed for decertification on 27 May 2009. However, [RBI] claims to have not received the proposed decerti-fication letter. Decision is reversed to allow the firm time to respond to the pro-' posed decert letter. According to the Utah District Office, they actually did not perform a site visit and based information on previous knowledge and the fact this firm was a former 8(a) firm, location in BDMIS [SBA’s Business Development Management Information System], and in CCR [the government’s Central Contractor Registration database] the same (not in a HUBZone). This information was corroborated with the State of Utah. However, the firm maintains the principle [sic] office is at another location. They need to respond why. LMS.

AR 157. By virtue of this “reversal” of the decertification to allow RBI more time to respond, RBI’s HUBZone certification was in effect restored.

On September 28, 2009, the Corps awarded the contract to RBI.

As of October 14, 2009, the Lehi address was the sole address listed on RBI’s website homepage, its Utah Department of Commerce listing, and its Utah contractor’s license. AR 87, 90, 93.6

On October 14, 2009, Plaintiff filed a protest with the Contracting Officer (“CO”) alleging that RBI did not meet the requirements for SBA certification as a qualified HUBZone small business concern because RBI’s principal office was not in a HUBZone. AR 75-76. That same day, Plaintiff sent Mr. Roy Cook to perform a site visit at the 192 Tooele address. Mr. Cook testified in an affidavit that once inside the building at 192 Tooele, he was told that there was no construction company at that address, only “an environmental company.” AR 102. As re-[798]*798fleeted in photographs included in Plaintiffs October 14, 2009 protest, there was a large sign identifying “Santa Rita Environmental,” but no other companies, at the 192 Tooele address. AR 122-23.

On October 20, 2009, the Corps issued a stop-work order, and on October 21, 2009, the CO forwarded the protest to SBA for adjudication. AR 51.1.

On November 5, 2009, SBA conducted a site visit at the 192 Tooele address, and SBA Business Development Specialists Nancy Byerly and Patricia Fewkes reported:

[this location] was a house and when [SBA] knocked on door no one responded. Sign out front stated that an environmental Ann was at this location. Walked around property and saw no signs stating that the firm was here.

AR 148.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
93 Fed. Cl. 794, 2010 WL 2983007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diversified-maintenance-systems-inc-v-united-states-uscfc-2010.