Emerald Coast Finest Produce Co. v. United States

75 Fed. Cl. 549, 2007 WL 594923
CourtUnited States Court of Federal Claims
DecidedFebruary 22, 2007
DocketNo. 06-742 C
StatusPublished
Cited by11 cases

This text of 75 Fed. Cl. 549 (Emerald Coast Finest Produce Co. 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
Emerald Coast Finest Produce Co. v. United States, 75 Fed. Cl. 549, 2007 WL 594923 (uscfc 2007).

Opinion

ORDER

HEWITT, Judge.

This is a post-award bid protest filed by Emerald Coast Finest Produce Company, Incorporated (Emerald Coast), a fresh produce distributor that serves military facilities, Plaintiffs Statement of Facts (Facts) 2,1 challenging an award to Military Produce Group, LLC (Military Produce Group) under a solicitation issued by the United States, acting through the Defense Commissary Agency of the Department of Defense, Resale Contracting Division (DeCA), id. at 2-3. The parties filed cross-motions for judgment on the administrative record in accordance with Rule 52.12 of the Court of Federal Claims (RCFC). Plaintiffs Motion for Judgment on the Administrative Record, Nov. 24, 2006; Defendant’s Opposition to Plaintiffs [551]*551Motion for Judgment on the Administrative Record and Defendant’s Cross Motion for Judgment upon the Administrative Record, Dec. 15, 2006. On January 16, 2007, defendant filed a motion for stay of proceedings or remand. For the following reasons, defendant’s motion is GRANTED-IN-PART and otherwise DENIED. The court REMANDS the ease to DeCA, which shall cause to occur an evaluation by the Technical Evaluation Board (TEB) and a decision by the Source Selection Authority (SSA) on the plaintiffs and defendant-intervenor’s proposals in accordance with the terms of the solicitation. In order to minimize the opportunity for further error, the court directs that the proposals of Emerald Coast and Military Produce Group be re-evaluated only with respect to Area 5, Group 1.

I. Background

DeCA operates military commissary stores “on Department of Defense installations for the economic benefit of military personnel, their families, and ... other persons granted access to these ... stores.” Facts 3. The stores stock and sell a wide variety of grocery food products and non-food products, such as health and beauty aids. Id. at 3-4. Military commissary stores sell their products at reduced prices by selling them at cost plus a standard surcharge. Id. at 4. Congress allows these stores to sell at reduced prices in order to “enhance the quality of life of members and the uniformed services, retired members, and dependents of such members” and to “support military readiness, recruitment, and retention.” 10 U.S.C. § 2481(a)-(b) (2000).

DeCA issued Request for Proposal Number HDEC02-06-R-0005 (the RFP) on March 20, 2006, seeking competitive proposals for the daily supply of fresh fruits and vegetables to seventy-seven military commissary stores located in the northeast and southeast of DeCA’s East Region.3 Facts 5-6. With regard to Area 5, Group 1, eight offerors submitted proposals. See Administrative Record (AR) 01970. The TEB reviewed the submissions, and the SSA determined that six of the eight fell into the competitive range. See id. Emerald Coast and Military Produce Group were two of those six, and they were given an opportunity to respond to the TEB’s concerns to their initial proposals and to revise and re-submit their proposals. Id. The TEB then evaluated the revised proposals and assigned a numeric score to each based upon technical capability and past performance. See AR 02026. The SSA received these scores and based her selection decision upon them. See AR 00561.

During the time period in between the TEB’s evaluation of the proposals and the SSA’s selection decision, DeCA issued Amendment 0004 to the RFP. AR 00723; Defendant’s Motion for Stay of Proceedings or Remand, Jan. 16, 2007, (Def.’s Mot. or Motion) 1. Amendment 004 deleted Fort Buchanan, Puerto Rico as a delivery location for the distributors. AR 000723. Neither the TEB nor the SSA took Amendment 004 into account when evaluating Military Produce Group’s technical capability and past experience. Def.’s Mot. 1.

On August 22, 2006, the SSA awarded the contract for Area 5, Group 1 to Military Produce Group because she determined that Military Produce Group’s proposal provided the best value to the government. AR 02080; AR 02101. In the SSA’s statement, she specifically compares Military Produce Group to Emerald Coast in a cost/technical tradeoff analysis. See AR 02078-80. The SSA stated:

Military Produce Group submitted a proposal that was evaluated as the highest technically rated proposal and slightly lower minimum percentage of patron savings for the base period and both option years. Therefore, in considering the solicitation’s evaluation criteria that [technical [capability is significantly more important than [p]ast [p]erformance[J and when those two evaluation factors are combined they are [552]*552significantly more important than [p]riee, it is determined that the higher technically rated proposal, slightly lower minimum percentage of patron savings proposal submitted by Military Produce Group is the better value to the [government than the lower technically rated, slightly higher minimum percentage of patron savings proposal submitted by Emerald Coast Finest Produce.

AR 02080.

On November 1, 2006, plaintiff filed its Post-Award Procurement Protest Complaint (complaint or eompl.). On January 16, 2007, defendant filed its Motion. Pursuant to the court’s order dated January 17, 2007, defendant filed its Memorandum in Support of Motion for Stay of Proceedings or Remand (Def.’s Memo.), and plaintiff filed its Opening Brief in Support of Plaintiffs Opposition to Defendant’s Motion for Stay of Proceedings or Remand (PL’s Opp. or Opposition) and Response Brief in Support of Plaintiffs Opposition to Defendant’s Motion for Stay of Proceedings or Remand (PL’s Resp.). DefendanN-Intervenor also filed an Opening Brief Regarding Defendant’s Motion to Stay Proceedings (Def.-Int. Br. or Brief). An oral argument on defendant’s Motion was held at the United States Court of Federal Claims on January 23, 2007.

II. Discussion

A. Bid Protest Standards of Review

The Tucker Act, as amended by the Administrative Disputes Resolution Act (ADRA), 28 U.S.C. § 1491(b) (2004), confers jurisdiction on this court

to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1).

The court reviews a bid protest action under the standard set forth in the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2004). NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004). The APA provides that an agency’s decision is to be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

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Cite This Page — Counsel Stack

Bluebook (online)
75 Fed. Cl. 549, 2007 WL 594923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emerald-coast-finest-produce-co-v-united-states-uscfc-2007.