Reilly v. United States

104 Fed. Cl. 69, 2012 WL 1072297
CourtUnited States Court of Federal Claims
DecidedApril 2, 2012
DocketNo. 11-788C
StatusPublished
Cited by9 cases

This text of 104 Fed. Cl. 69 (Reilly 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
Reilly v. United States, 104 Fed. Cl. 69, 2012 WL 1072297 (uscfc 2012).

Opinion

OPINION AND ORDER 1

WHEELER, Judge.

This bid protest involves the allegations of Plaintiff, Clinton Reilly that he was wrongly excluded from competing for a General Services Administration (“GSA”) building lease in Sacramento, California. The leased space was to house a Military Entrance Processing Station for the Department of Defense. Mr. Reilly has leased his building to the GSA for [71]*71this purpose since 1995 and is the incumbent lessor. Mr. Reilly claims that the GSA acted arbitrarily when it excluded him from competing for the new lease based upon a setback requirement, which the GSA later relaxed in awarding the lease to Defendants Intervenor, Cannery Venture, LP (“Cannery”).

Mr. Reilly learned of this procurement in January 2010 through a pre-solicitation notice, where the GSA announced its need for 30,000 rentable square feet, subject to an 83-foot setback requirement. A few weeks later, the GSA informed Mr. Reilly’s realtor that the Reilly property could not be considered for award because it did not meet the setback requirement. In May 2010, the GSA issued a Solicitation for Offers (“SFO”) to five potential offerors but excluded Mr. Reilly. On September 29, 2010, the GSA awarded the new lease to Cannery, the only offer- or. However, the GSA failed to publish any notice of its award to Cannery, and Mr. Reilly claims to have been hampered in learning the procurement’s status. Ultimately, believing that the GSA impermissibly relaxed the setback requirement for Cannery, Mr. Reilly protested unsuccessfully to the Government Accountability Office (“GAO”) on June 10, 2011, and he commenced his action in this Court on November 21, 2011.

At first glance, Mr. Reilly’s protest challenging his exclusion from the competition 21 months after the fact, and 14 months after lease award, would appear to be untimely. The timeliness of the protest is clouded, however, by the fact that the GSA did not provide the SFO to Mr. Reilly in May 2010 and did not publish any notice of award to Cannery in September 2010. Moreover, the GSA negotiated extensions of the lease in Mr. Reilly’s building, and the Government still has not moved out of his building to occupy the new Cannery space. This lack of communication from the GSA, coupled with the Government’s continued presence in his building, left Mr. Reilly somewhat in the dark as he attempted to follow relevant factual developments.

Still, for the reasons explained below, Mr. Reilly knew that he had a basis for protest no later than May 31, 2011, when he learned of the lease award to Cannery the previous September. Following the GAO’s dismissal of his protest as untimely on July 13, 2011, Mr. Reilly opted to await the outcome of internal governmental discussions to see whether the contemplated relocation to the Cannery space actually would take place. An additional four-month delay occurred before Mr. Reilly filed suit in this Court. Despite apparent confusion with the GSA that could have been avoided through better communications, the Court concludes that Mr. Reilly delayed unreasonably in filing his bid protest, and thus his claims are barred by the doctrine of laches.

Background

I. Preliminary Matters

On February 3, 2012, counsel for Plaintiff filed a motion to supplement the administrative record, or in the alternative, to supplement the Court’s record, with the declarations of Clinton Reilly, Bruce Hohenhaus, and Christian Diggs. Plaintiffs motion is GRANTED IN PART and DENIED IN PART. For the limited purpose of determining standing, prejudice, and laches, the aforementioned declarations are admitted into the Court’s record. See East West, Inc. v. United States, 100 Fed.Cl. 53, 57-58 (2011) (admitting declarations into the court’s record for the limited purpose of making any prejudice determinations). For the same reasons, the Court also GRANTS Plaintiffs March 2, 2012 motion to supplement the Court’s record with Clinton Reilly’s third declaration.

In addition, on March 13, 2012, counsel for Plaintiff filed a motion for leave to file a second amended complaint to add as a Plaintiff in this action Mr. Reilly in his capacity as trustee of the Clinton T. Reilly Family Trust. In its motion, Plaintiff explained that in 2001, Mr. Reilly had transferred title to his Sacramento property to the Trust but that Mr. Reilly retains control over the property as the sole trustor, trustee, and beneficiary under the revocable trust. Plaintiff sought to add Mr. Reilly as trustee to address a technical defect raised by Cannery in its cross-motion for judgment on the administrative [72]*72record. For good cause shown, the Court GRANTS Plaintiffs motion.

II. Statement of Facts

Plaintiff, Clinton Reilly is an individual who owns the building located at 3870 Rosin Court, Sacramento, California (hereinafter “the Reilly property”). Amended Complaint ¶ 1 (Jan. 11, 2012). On November 9, 1995, Mr. Reilly entered into a ten-year lease of the property with the GSA, acting on behalf of the U.S. Department of Defense (“DoD”), Military Entrance Processing Station (“MEPS”). Second Reilly Decl. ¶2. A MEPS determines an applicant’s qualifications for enlistment in the armed services based upon military service standards. AR 10.2 During the tenure of Mr. Reilly’s lease with the GSA, the Reilly property housed a MEPS. Pursuant to the most recent extension, the lease was due to expire on December 31,2011. Second Reilly Decl. ¶ 2.

In anticipation of the lease expiration, on January 21, 2010, the GSA posted a presolicitation notice (hereinafter “the Notice”) on the Federal Business Opportunities website (“FedBizOpps”), stating its desire to lease approximately 30,000 rentable square feet of office space in Sacramento or West Sacramento. See AR 357-58. The Notice listed several requirements for the space, including that the leased building must be Class A, contiguous, and have an “83 foot setback ONLY IF the Government occupies more than 25% of the rentable square footage of the offered building.”3 AR 357 (emphasis in original). The Notice also stated that expressions of interest should include a map illustrating that the offered building is not located within the 100-year flood zone. AR 358. Notably, the Notice did not reference the “Department of Defense Unified Facilities Criteria: DoD Minimum Antiterrorism Standards for Buildings” (hereinafter “the DoD Standards”), which contain alternative means of compliance for existing buildings that do not satisfy the 83-foot standoff distance. See AR 357-58; DoD Standards § 2-4.8.2 (Feb. 2012).

On January 26, 2010, GSA leasing specialist, Xitlaly Aranda sent an email containing the information in the Notice to ten brokers in the Sacramento area, including Bruce Ho-henhaus, the broker for Clinton Reilly Holdings. See AR 1825,1830. The next day, Mr. Hohenhaus sent Ms. Aranda an email, offering the incumbent Reilly property for the GSA’s consideration. See id. On his email to Ms. Aranda, Mr. Hohenhaus copied “clint@elintonreilly.com.” AR 1830. During a telephone conversation in January or February 2010,4 Ms. Aranda informed Mr. Hohenhaus that the GSA would pursue other properties because the Reilly property did not meet the 83-foot setback requirement. See AR 1826. Mr. Reilly does not contest that the his property fails to meet the 83-foot setback requirement. After her conversation with Mr. Hohenhaus, Ms.

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Bluebook (online)
104 Fed. Cl. 69, 2012 WL 1072297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reilly-v-united-states-uscfc-2012.