H.G. Properties A, L.P. v. United States

68 F. App'x 192
CourtCourt of Appeals for the Federal Circuit
DecidedJune 17, 2003
DocketNo. 02-5029
StatusPublished

This text of 68 F. App'x 192 (H.G. Properties A, L.P. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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H.G. Properties A, L.P. v. United States, 68 F. App'x 192 (Fed. Cir. 2003).

Opinions

Opinion

ARCHER, Senior Circuit Judge.

H.G. Properties (“HGP”) appeals the United States Court of Federal Claims’ [193]*193dismissal of its complaint and denial of a preliminary and permanent injunction. H.G. Props., LP v. United States, No. 01-474C, Bench Ruling (Nov. 7, 2001). Specifically, HGP argues that the National Park Service (“NPS” or “the government”) violated the Competition in Contracting Act (“CICA”) because it did not re-bid a contract awarded to Quality Leasing & Development (“QLD”) after modifications were made to the original solicitation for offers (“SFO”). Because we hold HGP faded to show it had a substantial chance of submitting a winning bid and therefore lacked standing to bring this action, we affirm.

BACKGROUND

At issue is a contract for NPS’s Western Archeological and Conservation Center (‘WACC”). WACC curates approximately 5 million museum objects and archives and provides archeological museum assistance to parks in the western United States. HGP owns the building which has housed the WACC since 1979. Due to the expiration of its contract with HGP, NPS sought to procure a follow-on contract. In the words of the contracting officer, NPS wanted to procure the facilities equivalent of a “Cadillac.” Thus, the SFO set forth detailed requirements for a state-of-the-art facility. The SFO provided that award of the contract would be made to the offeror whose offer was the most advantageous to the government based on price and five award factors. The combined weight of the award factors was more important than price, with price becoming more important as proposals became more equal in technical merit. The award factors, in descending order of importance were (1) safeguarding the museum collections; (2) prior experience of key personnel; (3) building mechanical systems; (4) building design; and (5) site construction.

NPS eliminated HGP from the competitive range based on technical merit and informational deficiencies. NPS subsequently denied HGP’s agency-level protest and awarded the contract to QLD. Approximately two weeks after award, NPS terminated the contract for the convenience of the government. However, NPS did not have the power under the contract to do so. Thus, QLD submitted a certified claim to NPS seeking breach of contract damages. NPS and QLD entered into settlement negotiations, resulting in QLD submitting a revised proposal and the government agreeing to modify the contract. Ultimately, NPS and QLD signed a settlement agreement in which QLD agreed to withdraw its certified claim with prejudice in exchange for a payment by NPS for “restart” costs and NPS’s negotiation and execution of a revised version of the contract upon its reinstatement (“the QLD lease” or “the new lease”).

Upon learning QLD’s contract was reinstated, HGP filed a bid protest in the Court of Federal Claims, alleging NPS had terminated the initial contract and either awarded a second, sole-source contract to QLD, or made material post-award changes to the initial contract, both in violation of the CICA. HGP requested a declaratory judgment and a permanent injunction barring performance of the new lease. QLD intervened and moved to dismiss. The government moved to dismiss for lack of standing because HGP was not an interested party or, in the alternative, for summary judgment. The trial court found that the QLD lease was “part and parcel” of the SFO and thus not a separate procurement. Id. at 9. The court further found that since HGP was “properly determined to be significantly beneath the scope of competition and, thus, not eligible to be considered for award under the solicita[194]*194tion, it is not an interested party and has no authority to bring this action.” Id.

HGP now appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review the Court of Federal Claims’ legal determinations, such as standing, de novo. See Am. Fed’n of Gov’t Employees v. United States, 258 F.3d 1294, 1298 (Fed.Cir.2001) (“American Federation” ).

The CICA requires executive agencies to “obtain full and open competition through the use of competitive procedures.” 41 U.S.C. § 253(a)(1)(A) (2000). However, certain modifications can be made to a contract without requiring rebid. AT & T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed.Cir.1993). The dissent asserts that the Court of Federal Claims did not determine whether the government should have been required to re-bid the revised contract under the CICA. However, the record indicates that the trial court did make such a determination, stating “[t]he resulting lease differed in some permissible respects from the solicitation.” Although the trial court did not elaborate on the basis of this finding, we see no error in this admittedly economic approach.

In determining whether a modification falls within CICA’s competition requirement, this court examines whether the contract as modified materially departs from the scope of the original procurement. AT & T Communications v. Wiltel, 1 F.3d at 1205. Such an analysis focuses on the scope of the entire original procurement in comparison to the scope of the contract as modified. Id. Thus, a broad original competition may validate a broader range of later modifications without further bid procedures. Id. Another factor in determining the scope of the original competition is “whether the solicitation for the original contract adequately advised offerors of the potential for the type of changes during the course of the contract that in fact occurred, or whether the modification is of a nature which potential offerors would reasonably have anticipated.” Id. at 1207 (citations omitted).

Here, the proper scope of the contract was the building of a facility for housing artifacts and assistance for museums and parks. The solicitation itself set forth specific space, ventilation, location, and extensive structural requirements, among others. Additionally, the government encouraged bidders to submit suggested modifications to the solicitation so as to create a state of the art facility. Accordingly, the “scope” of the contract would be understood to embrace changes or modifications to these requirements.

In a bid protest, the potential bidder must show that it was an “interested party” in order to show standing. See id. This is accomplished by the potential bidder establishing that it had a substantial chance of securing the award. Myers Investigative and Security Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed.Cir.2002) (explaining that “prejudice (or injury) is a necessaiy element of standing and that the substantial chance rule continues to apply” to the standing requirement).1

In the present case, HGP asserts that the trial court erred by not considering whether HGP would have a substantial chance of receiving the award if allowed to [195]*195submit a new proposal in a new procurement based on NPS’s modified requirements.

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