Heritage of America, LLC v. United States

77 Fed. Cl. 81, 2007 U.S. Claims LEXIS 174, 2007 WL 1672761
United States Court of Federal Claims·Decided June 8, 2007·No. No. 07-150 C·Published·Cited by 13 cases

Opinion

OPINION AND ORDER

GEORGE W. MILLER, Judge.

This matter is before the Court on the motion (“Mot.,” docket entry 49) of Dynamic Systems Technology, Inc. (“Dynamic”), one of two defendant-intervenors, for reconsideration pursuant to Rule 59 of the Rules of the United States Court of Federal Claims of the Court’s Opinion and Order filed under seal May 16, 2007, and reissued for publication on May 31, 2007 (docket entry 48), Heritage of Am. v. United States, 77 Fed.Cl. 66, 2007 WL 1585008 (May 31, 2007).

Dynamic concedes that in order to prevail on a motion for reconsideration of a final, judgment it must demonstrate that either (1) there has been an intervening change in controlling law; (2) previously unavailable evidence has been discovered; or (3) reconsideration is necessary to prevent manifest injustice. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed.1995); see also Phillips/May Corp. v. United States, 76 Fed.Cl. 671, 2007 WL 1227696 (May 3, 2007). Dynamic does not argue that the first two criteria have been met. Rather, it argues that reconsideration is necessary to prevent manifest injustice.

I

In that regard, Dynamic first argues that plaintiff’s interpretation of the solicitation is “not supportable.” Mot. 3. In so doing, Dynamic reiterates arguments it previously made in briefs and at oral argument, which the Court found unpersuasive. Although a motion for reconsideration “enables a trial court to address oversights, and the court appreciates the opportunity to do so,” Phillips/May, 76 Fed.Cl. at 677 (quoting Holland v. United States, 75 Fed.Cl. 492, 494 (2007)), merely reiterating arguments previously made and rejected is insufficient to prevail on such a motion. “[Otherwise the losing party would generally, if not always, try [its] case a second time, and litigation would be unnecessarily prolonged, with no more satisfactory results, as there would still be a losing party in the end.” White Mountain Apache Tribe v. United States, 9 Cl.Ct. 32, 35 (1985).

Dynamic does, however, advance one new contention, namely, that in addition to Dynamic and Evolver (the intervenors), two other entities that submitted proposals, Axseum and Serrato, interpreted the solicitation in a manner consistent with the Government and the intervenors. Mot. 6. The Court at oral argument asked Dynamic’s counsel the precise question how many offerors interpreted the solicitation in the manner urged by the Government and the intervenors. Dynamic identified “the awardees”1 but did not identify any such other offeror(s) or cite to the Court any portion of the Administrative Record where such information could be found. Transcript of Oral Argument (docket entry 44) 65:16-67:21. Dynamic conceded that “[f]or our purposes here ... it is the awardees who did in fact propose more than 75 percent of the services.” Id. at 67:6, 9-12; see also Dynamic’s Cross Motion for Judg[83] ment on the Administrative Record (docket entry 33) 19 (“[N]o other awardee construed the solicitation ... in the manner suggested by [plaintiff]____”). Dynamic’s failure to make the argument it now advances prior to the entry of judgment for plaintiff would justify the Court in holding that Dynamic had waived the point. Bluebonnet Sav. Bank v. United States, 466 F.3d 1349, 1361 (Fed.Cir.2006) (“[A]n argument made for the first time in a motion for reconsideration comes too late, and is ordinarily deemed waived and not preserved for appeal.”).

Nevertheless, even if Dynamic were deemed not to have waived the point, the new argument would not have affected the outcome even if it had been timely made. Accepting Dynamic’s new argument arguendo, the most that could be said is that four offerors (the intervenors and two others) interpreted the solicitation in the manner contended for by the Government and the intervenors. The record is silent on the nature of the proposals submitted by eight remaining offerors. Thus, as stated in the Court’s Opinion and Order, we do not know whether those offerors “favored plaintiff’s or defendants’ interpretation, or some other interpretation altogether.” Heritage of Am., 77 Fed.Cl. at 74 n. 9, 2007 WL 1585008. Given that state of the record, the Court remains of the view that, for the reasons stated in its Opinion and Order, plaintiff carried its burden of proving that (1) the solicitation was unclear to the degree that it violated FAR 15.304(d), (2) the solicitation contained a latent ambiguity, and (3) plaintiffs interpretation was reasonable. The record reflects that plaintiff and other prospective offerors attempted in a timely manner to obtain clarification of the relevant language of the solicitation by asking questions of the Government, but the Government’s responses were arguably incorrect (or at least misleading). Dynamic’s new argument does not alter the Court’s conclusion that, taken as a whole, the record establishes that defendant’s conduct constituted a clear and prejudicial violation of applicable law and procedures, entitling plaintiff to prevail on the merits under 28 U.S.C. § 1491(b) (2000).

II

Dynamic also urges the Court to reconsider its determination that in weighing the factors relevant to the propriety of equitable relief, the balance of hardships tips in favor of plaintiff. Mot. 8. In that regard, Dynamic states that “the awardees’ prices are a matter of public record,” adding:

Armed with the awardees’ prices, it is simple for a competitor to learn an awardee’s fully burdened rates. This is so because the contract is governed by the Service Contract Act (“SCA”). That means offer-ors must propose unit prices consistent with the SCA. For each region, the contract identifies the number of full-time equivalents (FTEs). It also provides the number of hours of services to be provided. Armed with this information, a competitor can readily, through simple reverse engineering, discover an awardee’s fully burdened rates____To call for resolicitation now that [Dynamic’s] prices have been made public gives competing offerors an unfair competitive advantage. Resolicitation would only be fair if all offerors’ prices were disclosed.

Mot. 8 (citation omitted).

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Heritage of America, LLC v. United States, 77 Fed. Cl. 81, 2007 U.S. Claims LEXIS 174, 2007 WL 1672761 (uscfc 2007).

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