Navarro Research & Engineering, Inc. v. United States

94 Fed. Cl. 224, 2010 U.S. Claims LEXIS 597, 2010 WL 3228289
CourtUnited States Court of Federal Claims
DecidedAugust 16, 2010
DocketNo. 10-481
StatusPublished
Cited by8 cases

This text of 94 Fed. Cl. 224 (Navarro Research & Engineering, 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
Navarro Research & Engineering, Inc. v. United States, 94 Fed. Cl. 224, 2010 U.S. Claims LEXIS 597, 2010 WL 3228289 (uscfc 2010).

Opinion

OPINION

BRUGGINK, Judge.

This is a post-award bid protest. Plaintiff, a disappointed bidder, moved for a preliminary injunction and a temporary restraining order. Defendant and intervenor opposed the grant of injunctive relief, and defendant moved to dismiss pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). We heard oral argument on August 6, 2010. Immediately afterward, citing the reasons stated at oral argument, we denied plaintiff’s motion for injunctive relief and defendant’s motion to dismiss. This opinion more fully explains our reasoning.

FACTUAL BACKGROUND1

Plaintiff, Navarro Research and Engineering, Inc. (“Navarro”), is the incumbent contractor at a Department of Energy (“DOE”) facility near Carlsbad, New Mexico, providing environmental consulting services and operational assistance at the facility. The facility is designed to safely and permanently store radioactive waste produced by the Department of Defense by placing it in sealed containers thousands of feet underground in a former salt mine. Navarro’s contract expired on August 10, 2010.

On May 30, 2010, the DOE issued Request for Quotations # DE-SOL0001679 (“the RFQ”) for the same work at the Carlsbad facility. The RFQ was issued under the Federal Supply Schedule (“FSS”) and sought “expert technical advice, support, and assistance ... in the areas of quality assurance, auditing and assessment, safety, nuclear safety, site operations, environmental and regulatory compliance, scientific and international programs, and performance demonstration program[s].” AR 4. Though labeled a contract for Environmental Consulting Services, the RFQ sought expertise in areas as diverse as welding, tractor-trailer driving, mine ventilation, and permit compliance.

Four supply schedule contractors, including Navarro, bid on the job. The DOE selected Portage, Inc. (“Portage”) for award [227]*227of the task order. Upon being informed that it would not receive the award, Navarro requested a debriefing. The DOE contracting officer declined, noting that under Federal Acquisition Regulation (“FAR”) Part 8, there was no requirement to debrief a disappointed bidder. DOE did, however, offer Navarro an informal information exchange.

Ten days after the contract was awarded, Navarro filed a bid protest at the Government Accountability Office (“GAO”). GAO, however, did not notify DOE of the protest that same day. Because the contracting agency did not receive notice of Navarro’s protest until more than 10 days after the award, there was no automatic stay,2 which would have halted the transition to Portage during the pendency of Navarro’s protest. On July 27, 2010, Navarro filed suit here seeking an injunction requiring DOE to provide it with a debriefing.3

LEGAL AND REGULATORY BACKGROUND

The issue before the court involves two specific acquisition processes: Federal Supply Schedules (“FSS”) task orders and task order contracts under the Federal Acquisition Streamlining Act of 1994 (“FASA”). As we explain below, these two acquisition processes, despite some similarities, are distinct.

The FSS process, also known as the Multiple Award Schedule (“MAS”) or GSA Schedules Program, is “a simplified process for obtaining commercial supplies and services at prices associated with volume buying.” 48 C.F.R. 8.402(a) (2010). Under the FSS, the General Services Administration (“GSA”) negotiates long term, government-wide contracts with several companies to provide some specific item or service. See 48 C.F.R. 8.402. The resulting contract between GSA and the provider is for an indefinite quantity of the item to be delivered at an indefinite date during the contract period for a price that GSA has determined to be fair and competitive. Id GSA then publishes “schedules” listing the goods, providers, and prices. An agency seeking to purchase such an item may simply select a provider from the list and order the desired item. Id These orders need not be further competed, although agencies can and do invite listed contractors to submit a better price or explain how their goods or services will best fill the agency’s requirements.

FASA task orders, however, comprise a distinct acquisition process. FASA was a “comprehensive overhaul of the federal acquisition laws,” S.Rep. No. 103-258, at 3 (1994), U.S.Code Cong. & Admin.News 1994, p. 2561, intended to “simplify and streamline” the sometimes onerous competitive requirements imposed by prior law. Digital Tech., Inc., v. United States, 89 Fed.Cl. 711, 719 (2009). In addition to simplifying the bid protest process, FASA “streamlined procurements involving task or delivery order contracts.” DataMill, Inc. v. United States, 91 Fed.Cl. 740, 752 (2010). It did so by encouraging federal agencies to use “multiple task order contracts, in lieu of single task order contracts” when possible. Digital Tech., 89 Fed.Cl. at 719 (citing S. Rep. 103-258). A multiple task order allows an agency to select a contractor and secure certain contract terms through an initial competitive process, but to make subsequent orders pursuant to that contract without going through the competitive process. “In other words, once the task or delivery order contract itself has been obtained through full and open competition, orders made pursuant to that contract are immune from CICA’s[4] full and open [228]*228competition requirements.” Corel Corp. v. United States, 165 F.Supp.2d 12, 20 (D.D.C. 2001).5

DISCUSSION

We have jurisdiction under the Tucker Act to hear protests “in connection with a procurement or proposed procurement.” 28 U.S.C. § 1491(b)(1). In a bid protest, the court “may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.” 28 U.S.C. § 1491(b)(2). The Tucker Act also mandates that our standard of review is the same as that found in the Administrative Procedures Act. Id. § 1491(b)(4) (“In any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.”). Thus, we may hold unlawful and set aside any agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2006).

Navarro seeks a temporary restraining order and preliminary injunction requiring the DOE to provide a post-award debriefing. In its response, the government moved to dismiss on the grounds that Navarro lacks standing to bring this suit and also argued that Navarro cannot satisfy the standard to obtain injunctive relief. We address each of these arguments in turn.

I. Standing

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94 Fed. Cl. 224, 2010 U.S. Claims LEXIS 597, 2010 WL 3228289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/navarro-research-engineering-inc-v-united-states-uscfc-2010.