Terry v. United States

96 Fed. Cl. 156, 2010 WL 5097776
CourtUnited States Court of Federal Claims
DecidedDecember 15, 2010
DocketNo. 09-454 C
StatusPublished
Cited by11 cases

This text of 96 Fed. Cl. 156 (Terry 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
Terry v. United States, 96 Fed. Cl. 156, 2010 WL 5097776 (uscfc 2010).

Opinion

RULING ON PLAINTIFF’S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD

SWEENEY, Judge.

Before the court in this post-award bid protest is plaintiffs motion to supplement the administrative record (“motion to supplement”). In this case, plaintiff Joyce Terry, doing business as the Shirt Shack, asserts that the Army and Air Force Exchange Service (“AAFES”) unlawfully awarded a contract for the manufacture of T-shirts as part of a concession operation at Fort Benning in Columbus, Georgia to a vendor that plaintiff alleges did not satisfy certain requirements set forth in the solicitation. Plaintiff also asserts a claim under the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 601-613 (2006), contending that the AAFES violated the law with respect to a contract under which she is currently performing as a kiosk operator at Fort Benning. The government has moved, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”), to dismiss the complaint and opposes plaintiffs motion to supplement. For the reasons discussed below, plaintiff’s motion to supplement is denied.

I. BACKGROUND1

A. The Solicitation

On October 6, 2008, the AAFES issued a solicitation for proposals related to the operation of a T-shirt concession at Fort Benning commencing March 22, 2009, for a period of no greater than five years. Am. Compl. ¶ 5; AR 33-95. Gross monthly sales from the concession operation were estimated at $45,000 per month. AR 37. Offerors were advised to contact the contracting officer, Kay K. Dunbar, with any questions about the solicitation. Id. at 18, 35. The solicitation provided that the contracting officer was the only individual authorized to “waive or change contract terms [and] impose additional contract requirements....” Id. at 40.

[158]*158Plaintiff maintains that offerors were required to own certain garment ink printing equipment in order to participate in the solicitation. Exhibit G of the solicitation, titled “Concessionaire Furnished Equipment,” enumerated the type and quantity of equipment that the concessionaire was required to furnish at two concessionaire locations. Id. at 73. The equipment required at the main exchange building included a heat transfer press and a transfer machine, which were required to “be new or in ‘like new1 condition. ...” Id. The heat transfer press had to be “[cjapable of transferring rubber based and sublistatie ink transfers. Insta Model 515 or equivalent.” Id. The transfer machine had to be “[cjapable of transferring decals to caps/hats. Insta Model 412 or equivalent.” Id. The solicitation also required that “[h]eat pressed items ... be offered on a while-you-wait-basis.” Id. at 75. All equipment furnished by the concessionaire was subject to the following terms: (1) title to the equipment remained with the concessionaire; (2) concessionaires were permitted to lease equipment so long as they provided the contracting officer with the name and address of the lessor; (3) a concessionaire’s investment in any equipment constituted a business risk that the concessionaire alone assumed; and (4) neither the AAFES nor any other agency or instrumentality of the United States was liable to the concessionaire for the cost of the concessionaire’s investment in equipment in the event that the contract was terminated without extension. Id. at 55.

Plaintiff began selling T-shirts with her husband in 2000 and worked as an AAFES concessionaire for over fourteen years. Id. at 198. At the time she participated in the instant procurement, plaintiff operated a separate T-shirt kiosk at Fort Benning. The T-shirts were printed off-post by her husband. Id.; Am. Compl. ¶¶ 33-35. To participate in this procurement, plaintiff “purchased a machine known as a Garment Printer which [would] let [her] do all [her] shirts at the point of sale, as well as do a customer[’s] custom design requests on the spot.” AR 198. She therefore believed that she possessed “all the necessary equipment^] such as [a] Garment Printer, heat press, cap press, and mug press,” that were purportedly required in order to participate in the procurement. Id.

B. The Procurement Process

The AAFES received proposals from plaintiff on October 29, 2008, id. at 123; cf. id. at 180, 189-90 (indicating that plaintiff signed her proposal on October 28, 2008), T-Shirt House, the incumbent concessionaire, on November 5, 2008, id. at 156, and a third company, L & W Creations, on November 6, 2008, id. at 123-24; cf. id. at 201, 206-07 (indicating that L & W Creations signed its proposal on November 5, 2008). As part of her proposal, plaintiff listed a fee to the AAFES of thirty percent, which was based upon total adjusted gross sales, for a contract period of five years. Am. Compl. Ex. 1. By comparison, T-Shirt House proposed a thirty-one percent fee and L & W Creations proposed a twenty-four percent fee. AR 124. Thereafter, the AAFES requested final statements and other documentation from L & W Creations, which ultimately never responded to the requests. Id. Consequently, L & W Creations “was found non-responsive.” Id.

On November 20, 2008, Ms. Dunbar requested a “best and final offer” from plaintiff and T-Shirt House, the two remaining offer-ors. Id. at 124, 138. Ms. Dunbar apprised plaintiff of various discrepancies in her proposal, and plaintiff, in response, submitted a modified proposal on November 21, 2008. Id. at 137. In her modified proposal, plaintiff increased her fee to the AAFES from thirty percent to thirty-seven percent. Am. Compl. ¶ 12; Am. Compl. Ex. 2. T-Shirt House modified its proposal on November 22, 2008, increasing its proposed fee to 33.1 percent. AR 124,172.

Ms. Dunbar determined that the best and final offers submitted by plaintiff and T-Shirt House contained fees that were “too high compared to the Region and Conus fee averages,” which were 18.14 percent and 20.06 percent, respectively. Id. at 124. Indeed, the record reflects Ms. Dunbar’s assessment that, if either bid was accepted, each offeror would be “operating in the red.” Id. at 156. On December 2, 2008, Ms. Dunbar sent electronic-mail communications to [159]*159both plaintiff and T-Shirt House requesting (1) financial information, (2) submission of a Monthly Projected Operating Statement (“MPOS”), and (3) reexamination of the costs each offeror would incur in providing the services (or similar services) encompassed by the solicitation. Id. at 124. Plaintiff received a letter from Ms. Dunbar requesting that she “re-examine the costs [she] may incur in providing this service” and submit an MPOS because Ms. Dunbar believed that her proposal might “be too high to operate at a profit.” Id. at 135. Ms. Dunbar also informed plaintiff that she “may either confirm or amend [her] proposal,” but a “[f]ailure to provide the information by the date/time specified ... may result in [her] original proposal being considered for award.” Id.

On December 9,2008, plaintiff, who alleges that furnishing another revised proposal violated the terms of the solicitation, Am. Compl. ¶ 13, submitted an MPOS, which indicated a net profit of $1,536 per month, AR 125, 130.

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Cite This Page — Counsel Stack

Bluebook (online)
96 Fed. Cl. 156, 2010 WL 5097776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-v-united-states-uscfc-2010.