Emerald Coast Finest Produce Co. v. United States

76 Fed. Cl. 445, 2007 U.S. Claims LEXIS 153, 2007 WL 1501082
United States Court of Federal Claims·Decided May 7, 2007·No. No. 06-742 C·Published·Cited by 11 cases

Opinion

ORDER

HEWITT, Judge.

Before the court are Plaintiffs Motion to Supplement the Administrative Record and Memorandum in Support of the Motion to Supplement (Mot. Supp. or motion to supplement), Plaintiffs Motion for Leave to File Amended and Restated Complaint and Memorandum in Support of the Motion for Leave to File (Mot. Amend, or motion to amend) (collectively, plaintiffs’ motions), Defendant’s Response to Plaintiffs Motion for Leave to File Amended and Restated Complaint (Def.’s Amend Resp. or defendant’s response to motion to amend), Defendant’s Response to Plaintiffs Motion to Supplement the Administrative Record (Def.’s Resp. Supp. or defendant’s response to supplement), Defen-danUntervenor’s Opposition to Plaintiffs Motion to Supplement the Administrative Record (Def.-Int.’s Opp. Supp. or defendant-intervenor’s opposition to supplement), De-fendanUntervenor’s Opposition to Plaintiffs Motion for Leave to File Amended and Re-' stated Complaint (Def.-Int.’s Opp. Amend, or defendant-intervenor’s opposition to motion to amend), Plaintiffs Replies to Response and Opposition to Plaintiffs Motion to Supplement the Administrative Record (PL’s Replies Supp. or plaintiffs replies to supplement), and Plaintiffs Replies to Response and to Opposition to Plaintiffs Motion for Leave to File Amended and Restated PosU-Award Procurement Protest Complaint and Plaintiffs Motion to Strike (PL’s Amend Reply or plaintiffs reply to motion to amend). For the following reasons, plaintiffs motions are DENIED.

I. Background

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) 2,2 challenging an award to Military Produce Group, LLC (Military Produce Group) under Request for Proposal Number HDEC02-06-R-0005 (Solicitation) issued by the United States, id. at 5-6, acting through the Defense Commissary Agency of the Department of Defense, Resale Contracting Division (DeCA), id. at 2. Pursuant to the court’s Order of November 3, 2006, defendant filed its certified Administrative Record (AR) on November 17, 2006. See Order of Nov. 3, 2006; Rule 52.1(a) of the Rules of the Court of Federal Claims (RCFC); Defendant’s Notice of Filing of Administrative Record. The parties filed cross-motions for judgment on the administrative record.3 Plaintiffs Motion for Judgment on the Administrative Record, Nov. 24, 2006; Defendant’s Opposition to Plaintiffs Motion for Judgment on the Administrative Record and Defendant’s Cross Motion for Judgment upon the Administrative Record, Dee. 15, 2006. On January 16, 2007, defendant filed Defendant’s Motion for Stay of Proceedings or Remand. The court granted-in-part defendant’s motion, remanded the case to DeCA, and ordered DeCA to cause to occur an evaluation by the Technical Evaluation Board (TEB) and a decision by the Source Selection Authority (SSA) on plaintiffs and defendant-interve-[447]*447nor’s proposals in accordance with the terms of the solicitation. Order of Jan. 26, 2007. In order to focus attention on the issues in dispute, the court directed that the proposals of Emerald Coast and Military Produce Group be re-evaluated only with respect to Area 5, Group l.4 Id. at 2.

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, 10 U.S.C. § 2481(a), in order to “enhance the quality of life of members of the uniformed services, retired members, and dependents of such members and to support military readiness, recruitment, and retention,” id. at § 2481(b).

DeCA issued the Solicitation 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 north and south of DeCA’s East Region. Facts 5-6. Those who offered proposals to DeCA were required “to offer a [minimum [percentage of [p]atron [s]avings of at least” thirty-eight percent “when comparing DeCA’s selling price ... to the selling price of the same or similar items from comparable commercial supermarkets within the local commuting area and/or the geographical area within a 25-mile radius of a military commissary store.” Id. at 6-7. The Solicitation required that the offered minimum percentage of patron savings be maintained throughout the life of the contract. Id. at 7. If the minimum percentage of patron savings was not achieved and maintained, the Solicitation required that the military commissary prices for fresh fruits and vegetables be reduced; otherwise, the contract may be terminated. Id. at 8.

On February 22, 2007, defendant filed with the court the re-evaluations by the TEB of the proposals submitted by Emerald Coast and Military Produce Group and the decision by the SSA. See Defendant’s Second Notice of Filing of Administrative Record 1-2. As with the initial evaluation, the proposals were judged for technical capability, past performance, and proposed minimum of patron savings. Administrative Record (AR) 02210-13. The TEB evaluation afforded Military Produce Group a combined score of 169 that exceeded the score given to Emerald Coast by twenty-six points. Id. at 02213. The TEB also found that Military Produce Group offered a proposed minimum percentage of patron savings that was somewhat lower than that proposed by Emerald Coast. Id. The SSA based her selection upon the TEB’s evaluation and awarded the contract to Military Produce Group. Id. at 02214. Specifically, the SSA found:

in considering the solicitation’s evaluation criteria that Technical Capability is significantly more important than Past Performance and when these two evaluation factors are combined they are significantly more important than Price, it was determined that the significantly higher technically rated proposal and somewhat lower percentage savings proposal submitted by [Military Produce Group] is the better value to the Government than the significantly lower technically rated and somewhat higher percentage savings proposal submitted by Emerald.

Id.

At a telephonic status conference on February 26, 2007, plaintiff stated that it had identified materials that it believed should be included within the administrative record and, if so included, would support the filing of an amended complaint. Further to discussion with the parties, the court ordered briefing on plaintiffs proposed supplements to the administrative record and motion to amend its complaint. Order of Feb. 26, 2007 1. For reasons of efficiency, it was anticipated that the court would issue its opinion on plaintiffs [448]*448motion to supplement and motion to amend before the parties addressed the results of the remand.

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Emerald Coast Finest Produce Co. v. United States, 76 Fed. Cl. 445, 2007 U.S. Claims LEXIS 153, 2007 WL 1501082 (uscfc 2007).

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