Eskridge Research Corp. v. United States

92 Fed. Cl. 88, 2010 U.S. Claims LEXIS 70, 2010 WL 1253650
CourtUnited States Court of Federal Claims
DecidedMarch 26, 2010
DocketNo. 10-50C
StatusPublished
Cited by39 cases

This text of 92 Fed. Cl. 88 (Eskridge Research 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
Eskridge Research Corp. v. United States, 92 Fed. Cl. 88, 2010 U.S. Claims LEXIS 70, 2010 WL 1253650 (uscfc 2010).

Opinion

ORDER ON DEFENDANT’S MOTION TO DISMISS AND PLAINTIFF’S MOTION FOR PRELIMINARY INJUNC-TIVE RELIEF

NANCY B. FIRESTONE, Judge.

Pending before the court in this bid protest action filed under 28 U.S.C. § 1491(b) (2006) is the motion for a preliminary injunc[92]*92tion filed by the plaintiff, Eskridge Research Corporation (“plaintiff” or “ERC”) and the motion by the defendant (“government”) to dismiss certain of the plaintiffs claims for lack of jurisdiction. At issue is a contract to provide force protection operational support services (Solicitation No. W912HQ-09-R-0009) awarded by the U.S. Army Corps of Engineers (“USACE”) to the intervenor, Bowhead Science and Technology, LLC (“Bowhead”), on September 25, 2009. ERC had been providing these services under a prior contract (No. W912HQ-08-P-0081) that expired in September 2009. Bowhead began performance on September 30, 2009.

BACKGROUND FACTS

Following the award of the contract to Bowhead on September 25, 2009, ERC requested and received post-award debriefings from USACE, which occurred on October 5 and 15, 2009. Based on concerns raised during the October 15 debriefing, ERC filed a protest with the Government Accountability Office (“GAO”) on October 23, 2009. ERC alleged in its GAO protest that the technical evaluation was inconsistent with the proposal and stated criteria, the evaluation of ERC’s past performance was flawed, the price analysis was flawed, there was impermissible disparate treatment in the evaluation, the best value determination deviated from stated evaluation criteria, and the agency improperly modified the contract, suggesting the improper creation of a sole-source contract.1 Because ERC did not file its protest in time to secure an automatic stay of contract performance,2 Bowhead has continued to provide force protection services to USACE since September 30, 2009. ERC alleges that twelve of ERC’s former employees joined Bowhead after it won the contract award. ERC objects to Bowhead’s decision to hire its former employees.

On November 24, 2009, USACE filed a notice of Corrective Action in response to ERC’s objections to the procurement before the GAO. In the Corrective Action notice, USACE agreed to reevaluate the technical proposals for offerors that had been part of the competitive range, including ERC.3 In the same notice, USACE stated that Bow-head would continue contract performance during the corrective action process in order to provide needed security. In support, the notice stated:

The Agency has determined to continue contract performance with Bowhead for force protection, anti-terrorism and seeuri[93]*93ty services while taking corrective action. There is a threat to safety if contract work is suspended[,] which could leave the Agency in a vulnerable position to harmful threats on security. Without the continued and uninterrupted support of the current contract, the Agency’s antiterrorism programs will be at mission failure because the Agency will not be able to prevent and defend against threats.

Def.’s Resp. to Pl.’s Mot. for Prelim. Inj. (“Def.’s Resp.”) App. 220.4 On November 24, 2009, the GAO dismissed ERC’s protest as “academic.”

Subsequent to its failed GAO protest, ERC filed an initial bid protest action in this court on December 22, 2009. That action was voluntarily dismissed on December 23, 2009. The present bid protest action and accompanying motion for preliminary injunc-tive relief were filed on January 25, 2010. In the present action, ERC alleges in Count I of the complaint that USACE’s initial evaluation of ERC’s proposal and award of the contract to Bowhead were unreasonable. Compl. ¶¶ 51-55. Count II alleges a violation of the Competition in Contracting Act (“OCA”) resulting from USACE’s claimed change in the contract from the solicitation based on the change in the “synopsis” (see n.l supra) and potentially allowing Bowhead to submit a modified proposal that includes former ERC personnel during the re-evaluation of proposals. Compl. ¶¶ 56-61. ERC seeks relief in the form of a declaration that the original evaluations and contract award were improper and a preliminary and permanent injunction requiring USACE to suspend or terminate the contract award to Bowhead, reinstate ERC’s now-expired contract, and “compel the return of ERC’s employees from Bowhead.” Compl. ¶ 62.

In response, the government argues that the court should dismiss ERC’s claims regarding the award and alleged change to the Bowhead contract as moot because of the USACE decision to undertake corrective action. The government argues that ERC’s claims regarding USACE’s pending corrective action or re-evaluation process must be dismissed because they are not ripe. The government asserts that ERC’s claim regarding Bowhead’s decision to hire former ERC employees is outside this court’s jurisdiction and must be dismissed. Finally, the government argues that ERC’s claims regarding USACE’s decision to keep Bowhead in place during the corrective action process are not likely to succeed on the merits and that the equities favor retaining Bowhead during this period. Therefore, the government concludes, ERC’s request for preliminary injunctive relief should be denied.

DISCUSSION

I. The Government’s Motion to Dismiss5

A. Claims Regarding USACE’s Original Contract Atuard are Moot.

As stated above, this case comes to the Court of Federal Claims following USACE’s November 24, 2009 decision to reevaluate proposals in the competitive range [94]*94for the contract at issue. That corrective action is nearly complete.6 The plaintiff in its complaint reiterates the claims it made in its bid protest before the GAO that was dismissed in November 2009 following the agency’s decision to take corrective action. The plaintiff has not challenged the decision to undertake corrective action. In such circumstances, the government argues, ERC’s claims regarding the original award to Bow-head are moot. The court agrees.

It is well established that “[w]hen, during the course of litigation, it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should generally be dismissed.” Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 939 (Fed.Cir.2007). Indeed, it is this rationale that led the GAO to dismiss the plaintiffs protest, stating “[subsequent to the filing of this protest, the agency granted the relief requested, which rendered the protest academic.... It is not our practice to consider academic questions.” Def.’s Resp.App. 233. In such circumstances, the plaintiffs challenges to USACE’s original evaluation of proposals are not properly before this court, as the relief that would otherwise be available has already been granted due to the agency’s decision to re-evaluate the proposals. Therefore, because the agency has already agreed to reevaluate the proposals, the plaintiffs claims regarding USACE’s original evaluation of proposals and its award of the contract to Bowhead must be dismissed as moot.7

B.

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Cite This Page — Counsel Stack

Bluebook (online)
92 Fed. Cl. 88, 2010 U.S. Claims LEXIS 70, 2010 WL 1253650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eskridge-research-corp-v-united-states-uscfc-2010.