Griffy's Landscape Maintenance LLC v. United States

51 Fed. Cl. 667, 2001 U.S. Claims LEXIS 161, 2001 WL 945389
CourtUnited States Court of Federal Claims
DecidedAugust 17, 2001
DocketNo. 01-309C
StatusPublished
Cited by21 cases

This text of 51 Fed. Cl. 667 (Griffy's Landscape Maintenance LLC 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
Griffy's Landscape Maintenance LLC v. United States, 51 Fed. Cl. 667, 2001 U.S. Claims LEXIS 161, 2001 WL 945389 (uscfc 2001).

Opinion

OPINION

BASKIR, Chief Judge.

Plaintiff, Griffy’s Landscape Maintenance, LLC, (“Griffy”) has invoked the bid protest jurisdiction of this Court, pursuant to 28 U.S.C. § 1491(b)(1), to mount a variety of legal challenges to the United States Department of the Army’s (“Army”) procurement of tree trimming and right of way maintenance services at Fort Campbell, Kentucky.

This contract has been extremely contentious. From the time of its inception it has been the subject of nine bid protests. On a previous occasion we reviewed the procurement when Griffy brought a post-award bid protest challenging the award to Easy Tree Services of a best-value solicitation for these services. We sustained Griffy’s protest, concluding that the Army failed to meet a duty of inquiry with respect to Griffy’s missing insurance information. See Griffy’s Landscape Maintenance LLC v. United States, 46 Fed.Cl. 257 (2000).

Since then, the Army’s pursuit of this contract has undergone further administrative challenges both at the agency level and at the Government Accounting Office (GAO). Chance has brought this second bid protest by Griffy to us for resolution. In the wake of the last of these disputes, a GAO bid protest by Easy Tree, the Army decided to terminate the award to Griffy for convenience of the government, to cancel the best-value solicitation, and to re-solicit the contract as a sealed bid. Plaintiffs initial complaint challenged the termination of its contract and sought a variety of injunctive and monetary reliefi including lost profits.

In response to plaintiffs motion for a permanent injunction, defendant moved to dismiss the case for lack of subject matter jurisdiction and moved for judgment on the administrative record, pursuant to RCFC 12(b)(1) and RCFC 56.1, respectively. Defendant’s motion to dismiss is GRANTED in part and DENIED in part. Defendant’s alternative request for summary judgment as to that portion of the merits that survive the motion to dismiss is GRANTED. Accordingly, Plaintiffs motion in support of a permanent injunction is DENIED.

BACKGROUND

Although we resolve this case on jurisdictional and legal grounds largely independent of the tortured history of this deceptively prosaic procurement, we set forth that history below as a case study of Murphy’s Law of Government Procurement. The first stages of the contracting history of the parties are recounted in detail in our previous opinion. See Griffy’s Landscape Maintenance LLC v. [669]*669United States, 46 Fed.Cl. 257 (2000) (Griffy’s I). Although that case turned on a flaw in the evaluation of bids, giving us little reason to devote much attention to substantive aspects of the solicitation, we did learn a few things about the procurement.

The solicitation issued in May 1999 announced a “best value” procurement for the maintenance services. Although labeled a “negotiated” procurement, bidders were advised that there would be no negotiations or discussions. In character it was similar to a sealed bid procurement where there are no post-submission contacts with bidders. By the July 1999 closing date, the Army had received six proposals and evaluated each based on the offerors’ past performance and price, weighted 60/40, past performance to price. The Army determined that Easy Tree offered the best value and it was awarded a contract on September 20,1999.

In Griffy’s I plaintiff asserted that the Army improperly failed to award it any points for one of the three past-performance sub-factors because insurance information was missing from its submission. As it turned out, a simple phone call would have ultimately uncovered an insurance rating that would make Griffy competitive with Easy Tree. Accordingly, we faulted the government for failing in its duty to inquire in the face of an apparent clerical error:

We would find it bizarre to conclude that the Army has an obligation to clarify a bidder’s clerical error, but not its own. Such a policy endorses official negligence. We see no reason to do so when the missing information is as prosaic and self-authenticating as a name and phone number. The integrity of the procurement process is enhanced, not harmed.
The government’s obligation is clear and simple. If it suspects a clerical error, it must ask. We therefore find that the Army’s failure to inquire under these circumstances is arbitrary and capricious and a violation of 5 U.S.C. § 706.

Griffy’s I, 46 Fed.Cl. at 261.

Additionally, we observed that because this was a best-value procurement and given Griffy’s substantially lower price — approximately 20 percent — any points more than zero increased the chances of Griffy winning the contract. But in the end, the paramount interest in upholding the integrity of the procurement system persuaded us to grant Griffy’s injunction. We vacated the award to Easy Tree and directed the Army to reevaluate Griffy’s proposal and make a new award consistent with our opinion. Id.

That is the last we heard from these parties for a year, but the disputes continued. The Army did re-evaluate the proposals and, after remedying its previous oversights, awarded the contract to Griffy on May 23, 2000. There were other loose ends. Prior to filing its initial complaint in Griffy’s I on December 14, 1999, plaintiff had pursued a GAO protest in which it also challenged its low score for a performance factor described as “similarity and complexity of work.” We did not have to rule on this issue, because the GAO had previously found in favor of Griffy and had revised its score accordingly. However, the performance factor touched off further litigation at the boards even after our ruling in Griffy’s I, as Easy Tree continued to press this issue as well as others.

The Army repeatedly defended its conclusions regarding the similarity of work issue, and its decision to make the subsequent award to Griffy. The decision was upheld in Easy Tree’s agency-level protest. Easy Tree then took its objection to the GAO, and the Army was initially prepared to defend its position.

Upon further consultation with legal counsel, and after further analysis of the similarity of work factor, the contracting officer determined that there were indeed errors in the evaluation process that cast doubt on the award decision. The errors included both evaluator oversight and a flawed formula. It is not necessary to delve too deeply into the substance of the errors; the contracting officer concluded that they “were substantial enough to affect the outcome of the award.” Affidavit of Roy Murray. The contracting officer also indicated that, based upon his discussions with the counsel, a representative of the Army’s Judge Advocate General, he determined there was a substantial risk that the Army would lose the GAO bid protest [670]*670brought by Easy Tree. Id. The Army made its re-evaluation known and agreed to take corrective action; on that assurance the GAO dismissed the protest as moot on August 17, 2000.

On August 30, 2000, the Army informed Griffy that it was terminating its contract for the convenience of the government. Initially, the Army intended to re-evaluate the offerors’ past performance alone.

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51 Fed. Cl. 667, 2001 U.S. Claims LEXIS 161, 2001 WL 945389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffys-landscape-maintenance-llc-v-united-states-uscfc-2001.