Moore's Cafeteria Services v. United States

77 Fed. Cl. 180, 2007 WL 2049312
CourtUnited States Court of Federal Claims
DecidedJuly 13, 2007
DocketNo. 07-377C
StatusPublished
Cited by16 cases

This text of 77 Fed. Cl. 180 (Moore's Cafeteria Services 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
Moore's Cafeteria Services v. United States, 77 Fed. Cl. 180, 2007 WL 2049312 (uscfc 2007).

Opinion

OPINION

FIRESTONE, Judge.

This post-award bid protest action comes before the court on the government’s motion for judgment upon the Administrative Record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”) and the plaintiffs motion for a temporary restraining order and a preliminary injunction. The plaintiff, Moore’s Cafeteria Services, d/b/a MCS Management (“plaintiff’ or “MCS”), the incumbent contractor since August 1, 2004, challenges the Department of the Army’s (“Army”) award of a one-year (April 1, 2007 through March 31, 2008) food services contract at Fort Campbell, Kentucky, to the Kentucky Office for the Blind, which is a state licensing agency (“SLA”) for the state of Kentucky. The Army awarded the contract to the SLA on February 27,2007 for $4,561,429.25.

MCS contends that the Army’s award to the SLA violated policies set forth in a 2006 Joint Report to Congress regarding priority afforded to SLAs under the Randolph-Sheppard Act (“RSA”), 20 U.S.C. §§ 107-107Í (2000), in military dining procurements. MCS also contends that the Contracting Officer (“CO”) did not adequately perform a price reasonableness analysis and used a flawed Independent Government Estimate (“IGE”) in awarding the contract. The government contends that the CO’s decision to award the contract to the SLA was appropriate, and accordingly seeks judgment upon the Administrative Record.

For the reasons set forth below, the government’s motion for judgment upon the Administrative Record is GRANTED. The plaintiffs motion for a temporary restraining order and a preliminary injunction is DENIED.

BACKGROUND

I. Background Facts

A. The Joint Report to Congress

The plaintiffs primary argument centers around a Joint Report to Congress (“Joint Report”) submitted on August 29, 2006 by the Department of Defense (“DoD”), the Department of Education (“DoE”), and the Committee for Purchase from People Who are Blind or Severely Disabled. These three parties were required, by section 848 of the National Defense Authorization Act (“NDAA”) of Fiscal Year 2006, Pub.L. 109-163, to submit to Congress a Joint Report setting forth policy regarding the application of the Javits-Wagner-O’Day Act1 (“JWOD”), 41 U.S.C. §§ 46-48c (2000), and the RSA2 to military dining contract procurements. In the Joint Report, the parties set forth the following method for ensuring that RSA priority would be afforded appropriately in military dining procurements:

Defense Department contracts for the operation of a military dining facility must be awarded as the result of full and open competition____ When competing such contracts, contracting officers shall afford State licensing agencies a priority under the [RSA] when (1) the [182]*182State licensing agency has demonstrated that it can provide such operation at a fair and reasonable price, with food of high quality comparable to that available from other providers of cafeteria services and comparable to the quality and price of food currently provided to military members; and (2) the State licensing agency’s final proposal revision, or initial proposal if award is made without discussions, is among the highly ranked final proposal revisions with a reasonable chance of being selected for award____ The term “fair and reasonable price” means that the State licensing agency’s final proposal revision does not exceed the offer that represents the best value (as determined by the contracting officer after applying its source selection criteria contained in the solicitation) by more than five percent of that offer, or one million dollars, whichever is less, over all performance periods required by the solicitation.

Administrative Record (“AR”) 280 (emphasis added). The Joint Report required that the parties “promptly implement complementary regulations reflecting the joint policy herein.” AR280.

On March 1, 2007, LTC Karl W. Kuhn, Regional Counsel to the U.S. Army Contracting Agency, distributed an e-mail from Susan W. Pollock, a Senior Procurement Analyst within the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics (“OSD-ATL”), concerning the implementation of the policies set forth in the Joint Report, which stated that

[t]he OSD Office of General Counsel has advised that the joint statement of policy is not effective until it is implemented in regulations in accordance with paragraph 10 of the policy____please provide notification to the field ... that they should not be citing the joint policy statement in their solicitations.

AR271-272. In addition, Mr. Kuhn’s e-mail stated that

as a KO [contracting officer] exercises their independent judgment on these issues before regulatory changes are made, a 5% calculation may be a good benchmark for the KO to use in deciding whether the SLA has provided a competitive propos-al____Accordingly, the KO’s fair and reasonable price analysis may use 5% or some reasonable % as a benchmark in comparing the SLA’s price to other vendors.

AR270.

B. The Procurement

The Army Contracting Agency, Southern Region, Fort Knox Directorate of Contracting, issued solicitation number W9124D-07-R-0012 on January 23, 2007. AR12-47. The solicitation sought proposals for the provision of food services at Fort Campbell, Kentucky, for a one-year period beginning April 1, 2007. AR1. The solicitation was issued as a commercial acquisition, under Federal Acquisition Regulation (“FAR”) parts 12 and 15. AR1. The solicitation was a best value procurement and indicated that proposals would be evaluated using lowest priced technically acceptable award criteria, based on past performance and experience. The solicitation stated that price would not be rated.3 AR41. The solicitation also indicated that it would be subject to the requirements of the RSA, so that

[a] technically acceptable offer from a qualified State Licensing Agency will receive preference in accordance with the Joint Report to Congress, dated August 29, 2006. This notice is not designed to discourage competition from HUB Zone certified small businesses not eligible for the preference.... Application of this preference may result in award to other than the lowest priced technically acceptable offer- or.

AR44-45 (emphasis added).

On January 29, 2007, the CO received an inquiry from the Director of the Tennessee Services for the Blind and Visually Impaired regarding the propriety of the reference to the Joint Report in the solicitation. AR48. [183]*183The inquiry stated that “to the best of my knowledge there is no directive to convert [the Joint Report] into law.” AR48. After considering this inquiry, and after further research, the CO amended the solicitation to remove the reference to the Joint Report. AR2. Amendment 001 to the solicitation, issued on February 7, 2007, reflected the following changes to the language quoted supra:

A technically acceptable offer from a qualified State Licensing Agency will receive preference

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Bluebook (online)
77 Fed. Cl. 180, 2007 WL 2049312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moores-cafeteria-services-v-united-states-uscfc-2007.