Myers Investigative & Security Services, Inc. v. United States

47 Fed. Cl. 288, 2000 U.S. Claims LEXIS 148, 2000 WL 1129110
CourtUnited States Court of Federal Claims
DecidedAugust 4, 2000
DocketNo. 99-780C
StatusPublished
Cited by12 cases

This text of 47 Fed. Cl. 288 (Myers Investigative & Security Services, Inc. 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
Myers Investigative & Security Services, Inc. v. United States, 47 Fed. Cl. 288, 2000 U.S. Claims LEXIS 148, 2000 WL 1129110 (uscfc 2000).

Opinion

ORDER

FUTEY, Judge.

This matter is before the court on defendant’s motion to exclude plaintiffs appendix and reference to improper material from consideration and plaintiffs opposition thereto. The United States, through the General Services Administration, Federal Protective Service (hereinafter defendant or GSA), asserts that plaintiff Myers Investigative and Security Services, Inc. (plaintiff) improperly relied upon materials incorporated in the appendix of its cross-motion for summary judgment that are not part of the administrative record. Defendant maintains that the court may not rely upon this material in reviewing GSA’s decision. Plaintiff counters that the court may rely upon the extra-record materials because the administrative record is incomplete as filed and does not fully describe GSA’s actions during the procurement process.

Factual Background

This bid protest case involves the award by GSA of two one-year contacts for armed and unarmed guard services on government owned and leased buildings in the state of Ohio. The first contract provides for guard services in northern Ohio (northern procurement), while the second calls for guard services in southern Ohio (southern procurement). Performance on both contacts commenced on October 1, 1999, and shall expire on September 30, 2000.

Prior to October 1, 1999, Allstate Security and Investigative Services, Inc. (Allstate) supplied guard services for all federal buildings in Ohio under a contract with GSA. The second option year of that contact ended on September 30, 1999. Allstate’s contact was awarded on a competitive basis under the Small Business Administration’s (SBA) 8(a) Program, 15 U.S.C. § 637(a) (1994). The 8(a) Program sets aside contracts for socially or economically disadvantaged contractors. According to Mr. Roger Pinnau, the administrative contracting officer (ACO), Allstate’s performance was consistently unsatisfactory under its contract. This unsatisfactory performance led GSA to forgo renewal of All[291]*291state’s contract option and to seek to procure guard services under two separate contracts.1 Mr. Pinnau attested that this division of guard services was necessary because of GSA’s planned reorganization of the Federal Protective Service, Great Lakes Region district, which includes Ohio. This reorganization, which began in July 1999, and will become fully effective on October 1, 2000, created five Federal Protective Service, Great Lakes Region districts where four previously existed, and instituted new financing and accounting codes, office symbols and other administrative changes.2 The reorganization also divided the Federal Protective Service Ohio district into the northern and southern districts, thereby matching the boundaries of the United States district courts in Ohio.

GSA desired to award the two contracts through SBA’s 8(a) Program. Mr. Pinnau attested that in order “[t]o determine the feasibility of an 8(a) procurement, [GSA] conducted a market survey to locate responsible 8(a) firms to perform the contract[s].”3 Although unclear from the administrative record, it appears GSA commenced the market survey as early as February 1999. As part of the market survey, GSA officials contacted “10-15 eligible firms, spoke with current and past contractors, consulted ... GSA’s mailing lists, and asked non-8(a) eligible companies for suggestions.”4 As part of the market survey, GSA submitted to potential contractors a chart that described the category of guard service and included an estimation of hours needed to perform the different categories of work. The chart also included a column for the contractor to provide a price estimate. The potential contractors were asked to submit these price estimates to GSA.

With respect to the northern procurement, Unlimited Security, Inc. (Unlimited) submitted a price estimate of $3,177,556. The administrative record does not specify whether any other companies responded to this market survey.5 In contrast, at least three companies responded to the southern procurement market survey. Although not part of the administrative record, documents submitted by plaintiff demonstrate that The Diamond Group (Diamond) submitted a price estimate of $2,940,119 on June 2, 1999. On June 7, 1999, Digby’s Detective & Security Agency, Inc. (Digby) submitted a price estimate of $3,112,250. The next day, NCLN20 Professional Services (NCLN20) submitted a price estimate amounting to $3,513,810. GSA officials did not contact plaintiff, a small minority business participating in the 8(a) Program, for either procurement despite its having competed for the prior contract.

After receiving these responses, Mr. Pinnau determined that only Unlimited and Diamond expressed a timely interest in performing the contracts. Mr. Pinnau testified that based upon the results of GSA’s market survey, GSA explored the possibility of procuring the contracts on a sole source basis.6 In order to accomplish this, Mr. Pinnau estimated the total value of each contract based upon Allstate’s invoices. According to Mr. Pinnau, Allstate charged $3.2 million for fiscal year (FY) 1998, and invoiced approximately $4.2 million for FY 1999. Based upon these figures, he concluded that the two new contracts, each of which covered one-half of Ohio and lasted one year, would be worth less than $3 million each.

A. Northern Procurement

On May 28, 1999, GSA issued solicitation number GS05P99GCD0002, which sought [292]*292guard services for GSA owned and leased facilities in northern Ohio. The solicitation described the contract as an indefinite delivery, indefinite quantity, fixed price requirements service contract, which would be awarded on a sole source basis. The solicitation also estimated the need for 160,000 guard hours.

By letter dated May 31, 1999, Mr. Pinnau informed Ms. Melinda Edwards of SBA’s Office of Program Development of the results of GSA’s market survey and its nomination of Unlimited for contract award. Mr. Pinnau recommended that the contract be awarded on a sole source basis, stating that the “anticipated dollar amount ... is estimated at approximately $2.5 million per contract year.”7 On June 9, 1999, SBA, on behalf of Unlimited, accepted GSA’s offer for the northern procurement.

On July 9, 1999, Unlimited submitted an offer of $3,287,480 for the 160,000 total estimated hours. On July 15, 1999, Mr. Pinnau issued amendment number seven to the solicitation, which reduced the total estimated guard hours from 160,000 to 146,000, and requested Unlimited to submit a price proposal by July 19, 1999. Unlimited submitted a price proposal of $2,968,140 on July 15, 1999. Incorporated with the proposal was a cover letter addressed to Mr. Pinnau from Mr. Jeffrey Jackson, which stated, in pertinent part:

I am submitting the second revision of the cost proposal for the Ohio contract. I hope that it meets your concerns pertaining to the $3 million threshold for this contract. This should be considered our best and final offer____8
The contract eventually was awarded to Unlimited.9

B. Southern procurement

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47 Fed. Cl. 288, 2000 U.S. Claims LEXIS 148, 2000 WL 1129110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-investigative-security-services-inc-v-united-states-uscfc-2000.