Madison Services, Inc. v. United States

94 Fed. Cl. 501, 2010 WL 3554102
United States Court of Federal Claims·Decided September 13, 2010·No. No. 09-675C·Published·Cited by 22 cases

Opinion

OPINION and ORDER

BLOCK, Judge.

The court is faced with two post-judgment motions filed by plaintiff, Madison Services, Inc. The first, plaintiffs motion for relief from judgment, filed pursuant to Rule 60 of the Rules of the United States Court of Federal Claims (“RCFC”), represents plaintiffs third attempt to secure a government contract that it presumptively won from the Fedei'al Emergency Management Agency (“FEMA”) in 2009. After encountering repeated failures during the course of this bid protest, plaintiff now seeks post-judgment relief under RCFC 60(b)(2) and (b)(3). Pl.’s Mot. for Relief from J. at 1. Essentially, plaintiffs present charge against FEMA is that the agency misrepresented material facts during the course of this litigation and otherwise engaged in fraudulent conduct aimed at injuring plaintiff. See id. at 3-8.

The evidence proffered by plaintiff to prove FEMA’s purported animus is predicated almost solely upon a declaration from plaintiffs president, John Lange. See Pl.’s Mot. for Relief from J., Ex. 1 (Decl. of John W. Lange (undated)) (“Lange Declaration”). That document, however, is both eonelusory and self-serving, merely insinuates innuendo and raises inferences that are not supported by the record, and consequently, as a matter of law, cannot provide an evidentiary basis warranting the relief that plaintiff seeks. Throughout the proceedings in this case, plaintiff has doggedly employed a shotgun approach (unfortunately a trend in modern litigation) spraying about as many arguments as can be made no matter the worth. It is as if plaintiff is following Mason Cooley’s aphorism: “If you at first don’t succeed, try again, and then try something else.” Franklin Sav. Corp. v. United States, 56 Fed.Cl. 720, 721 (2003) (quoting Mason Cooley). Clearly, quantity does not always equate with quality.

The second motion before the court is plaintiffs self-styled “Motion to Compel Production of a Complete Administrative Record.” See Mot. to Compel Produc. of a Complete Admin. R. (“Motion to Compel”) at 1. Therein, plaintiff is essentially moving for post-judgment discovery so as to lay a foundation to support the rickety edifice of the Lange Declaration and plaintiffs unsupported attorney arguments. However, no matter how lucrative the catch might be, the law will not support a fishing expedition. For the reasons detailed below, plaintiffs motions must be denied.

[504]*504I. Background1

FEMA is the primary federal agency tasked with responding to natural and man-made disasters. 6 U.S.C. § 313(b)(1). One of FEMA’s responsibilities is to provide for housing assistance through the use of mobile homes termed “temporary housing units” (“THUs”). 42 U.S.C. § 5174.

Significantly, one of the many side effects of Hurricane Katrina was mass tort litigation over formaldehyde levels in THUs that allegedly sickened the inhabitants. Def.’s Resp. to PL’s Mot. for Relief (“Def.’s Resp.”) (citing In Re FEMA Trailer Formaldehyde Product Liability Litigation, No. 2:07-mid-01873-KDE-ALC (E.D.La.), Appendix (“A”) at 10). As a consequence, FEMA abstained from using or disposing of THUs, resulting in increasingly high inventories of temporary housing. Id. This is uncontroverted.

Also uncontroverted is that, prior to 2009, FEMA contracted with both Alutiiq Global Services (“Alutiiq”) and TMI Management Services (“TMI”) to administer the agency’s THU program. Def.’s Resp., App. at 1-2. Alutiiq’s obligation was to maintain a ready inventory of THUs, while TMI was tasked with disposing of formerly used THUs after the lapse of habitation. Def.’s Resp. at 4-5. These contracts terminated on December 29, 2009. Id. The origin of the instant multistage litigation began with FEMA’s decision to combine the services provided by Alutiiq and TMI into one contract. See id., App. at 2, 5. Indeed, on April 10, 2009, FEMA issued Request for Proposals No. HSFEHQ-09-R-0046 (the “RFP” or “Solicitation”) for the combined services related to the maintenance, transportation and disposal of THUs. Admin. R. (“AR”) 694.

After consideration of the submitted proposals, FEMA informed plaintiff that it was the intended awardee. Madison I, 90 Fed. Cl. at 676. Before final award of the contract, however, TMI filed a protest with the Government Accountability Office (“GAO”), arguing that FEMA had issued the Solicitation under a classification code inappropriate to the services procured. TMI Mgmt. Sys., Inc., B-401530, 2009 CPD ¶ 191 at *2 (Comp. Gen. Sep. 28, 2009). GAO agreed and, on September 28, 2009, sustained TMI’s protest, finding that FEMA had used an improper classification code, thereby precluding full competition. Id. at *4. GAO recommended that FEMA reissue the Solicitation using a different classification code in accordance with GAO’s opinion. Id.

On October 7, 2009, a mere nine days after the GAO decision, and before FEMA had an opportunity to render a final decision regarding what course of action to take, plaintiff filed the instant protest, preemptively challenging FEMA’s tentative plans to follow GAO’s recommendation. See Madison 1, 90 Fed.Cl. at 676. Plaintiff argued that FEMA’s original classification code was reasonable, that GAO was erroneous in finding otherwise, and that FEMA’s intention to follow GAO’s recommendation was itself unreasonable. Id. at 676-77. Like many a fruit plucked too early, this apple, from which plaintiffs first bite was taken, was unripe. The court granted defendant’s RCFC 12(b)(1) motion to dismiss plaintiffs original claims, holding that “plaintiffs original protest has never been ripe for the court’s review, because no final agency decision to reissue the solicitation has ever been before the court.”2 Id. at 679-80.

Nevertheless, litigation continued because the court was concurrently faced with plaintiffs cross-motion to amend its complaint; that motion was predicated upon plaintiffs challenge to FEMA’s decision to cancel the Solicitation. PL’s Mot. for Leave to Amend Compl. at 1; Madison I, 90 Fed.Cl. at 677. This cancellation was based upon an October 28, 2009 memorandum from FEMA’s Logis[505]*505tics Management Directorate (“LMD”).3 AR 763. LMD requested that the contracting officer cancel the Solicitation due to FEMA’s “accelerated [THUJ site closure plan” and the “hir[ingj‘ [ofj a significant number of FEMA employees to fulfill the daily operational roles” at the THU sites, all of which appeared to make the Solicitation redundant, if not completely unnecessary. AR 763. To be sure, based upon the LMD memorandum, FEMA’s contracting officer cancelled the Solicitation on November 4, 2009; the cancellation notice explained that “[t]he solicitation does not [now] accurately reflect the FEMA’s requirements and an amendment to this solicitation would be so substantial as to exceed what prospective offerors could have anticipated.” AR 765; see Madison II, 92 Fed.Cl. at 124.

It is important to note that, shortly after the cancellation, FEMA determined that a short-term bridge contract was necessary in order to allow the THU program to continue. Def.’s Resp., App. at 3, 7-8.

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Madison Services, Inc. v. United States, 94 Fed. Cl. 501, 2010 WL 3554102 (uscfc 2010).

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