Terry v. United States

103 Fed. Cl. 645, 2012 U.S. Claims LEXIS 99, 2012 WL 725878
CourtUnited States Court of Federal Claims
DecidedMarch 6, 2012
DocketNo. 09-454 C
StatusPublished
Cited by34 cases

This text of 103 Fed. Cl. 645 (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, 103 Fed. Cl. 645, 2012 U.S. Claims LEXIS 99, 2012 WL 725878 (uscfc 2012).

Opinion

OPINION AND ORDER

SWEENEY, Judge.

Before the court is defendant’s motion to dismiss plaintiffs second amended complaint (“motion to dismiss”). Plaintiff Joyce Terry, doing business as Shirt Shack, alleges that the Army and Air Force Exchange Service (“AAFES”) breached an implied-in-faet contract to consider honestly and fairly a proposal she submitted in response to a solicitation for the operation of a concession business at Fort Benning in Columbus, Georgia. Plaintiff also alleges that the AAFES acted in bad faith during its administration of, as well as breached, a separate, short-term commodity concession agreement executed by the parties in 2009 (“concession contract”). Defendant moves to dismiss the second amended complaint pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”), arguing that plaintiff fails to allege sufficient facts showing that the AAFES breached (1) an implied-in-fact contract to consider plaintiffs proposal honestly and fairly, and (2) the concession contract. The court deems oral argument unnecessary. For the reasons set forth below, the court sua sponte dismisses those claims over which it lacks jurisdiction and grants in part and denies in part as moot defendant’s motion to dismiss.

I. BACKGROUND1

A. Solicitation for a Concession Operation at Fort Benning

On October 6, 2008, the AAFES issued a solicitation for the operation of a concession business at Fort Benning. Second Am. Compl. ¶ 5; AR 33. Kay Dunbar served as the contracting officer. AR 33. The solicitation advised prospective offerors that Ms. Dunbar “may require offerors to submit confidential data [that] include[d] a projected operating statement using estimated sales shown in this solicitation” that she could utilize to evaluate each offeror’s responsibility. Id. at 71. The solicitation also required each offeror to

[648]*648have adequate resources to perform the resulting contract and, upon request, furnish proof of same to the contracting officer. The contracting officer may request a financial statement, a cost breakdown, a projected operating statement, or other data from any offeror. Failure to furnish the data requested within the time specified may cause a firm to be determined nonresponsible. AAFES further reserve[d] the right to determine the responsibility of the offerors based on factors including but not limited to the offeror’s financial resources, business capacity, performance record, integrity, management/business acumen, technical ability and facilities/equipment.

Id. at 35. The AAFES intended to award a contract “to the responsive, responsible offer- or whose proposal [wa]s best for AAFES, price/fee and other factors set out in the solicitation considered” and reserved the right to accept other than the lowest proposal and issue multiple awards_” Id. at 36.

Exhibit C of the solicitation, titled “Special Provisions,” set forth terms governing equipment, furniture, and movable trade fixtures furnished by both the AAFES and the concessionaire, i.e., the contract awardee.2 Id. at 55. Title to concessionaire-furnished equipment, furniture, and fixtures remained with the concessionaire. Id. The solicitation permitted the concessionaire to utilize leased equipment during contract performance so long as Ms. Dunbar was furnished the lessor’s name and address. Id. Offerors were further advised that

[concessionaire investment in equipment, furniture and fixtures for this contract is a business risk of the concessionaire. It is expressly understood and agreed that neither AAFES nor any other agency or instrumentality of the United States is or will be liable to concessionaire for costs of concessionaire’s investing in equipment, furniture or movable trade fixtures in the event of termination of this contract without extension.

Id.

Exhibit G, titled “Concessionaire Furnished Equipment,” set forth the type and quantity of equipment required for conducting business at two separate concessionaire locations. Id. at 73. For business in the main exchange building, the concessionaire needed a heat transfer press and transfer machine, which had to “be new or in ‘like new1 condition....” Id. The heat transfer press had to be “[cjapable of transferring rubber based and sublistatic 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 required that “[hjeat pressed items ... be offered on a while-you-wait-basis.” Id. at 75.

Plaintiff submitted a proposal for a five-year contract with a thirty percent fee payable to the AAFES based upon her total adjusted gross sales. Pl.’s Ex. 1 at 1. Once all proposals were received, Ms. Dunbar requested a best and final fee offer from each offeror. Pl.’s Ex. 6 at 1. In response to Ms. Dunbar’s request, plaintiff increased her proposed fee from thirty to thirty-seven percent. Pl.’s Ex. 2 at 1; cf. Second Am. Compl. ¶ 12 (alleging that plaintiff “was asked to submit a new bid”). After receiving all best and final fee offers, Ms. Dunbar expressed concern that two offerors proposed unreasonably high fees. Pl.’s Ex. 6 at 1. She then requested that the offerors submit a Monthly Projected Operating Statement (“MPOS”) so that she could determine whether the offerors could operate their businesses at their proposed fees. Id. In response to Ms. Dunbar’s request, plaintiff submitted a revised best and final fee offer in which she reduced her proposed fee from thirty-seven to twenty-seven percent. Pl.’s Ex. 3; accord Second Am. Compl. ¶ 13. Ms. Dunbar reviewed each of-feror’s MPOS and determined that all proposed fees were reasonable. Pl.’s Ex. 6 at 1. She then awarded a contract to The Shirt House, which proposed the highest fee— 27.25 percent. Id.; accord Second Am. Compl. ¶ 8.

Plaintiff protested the award to The Shirt House in a December 22,2008 electronic-mail [649]*649communication addressed to Ms. Dunbar. Pl.’s Exs. 5-6; accord Second Am. Compl. ¶ 16. According to plaintiff, the solicitation required the concessionaire to possess a heat transfer press and transfer machine onsite. PL’s Ex. 5. Plaintiff stated that she owned the necessary equipment, whereas The Shirt House did not. Id. She also alleged that Vickie Roldan, a Services Business Manager for the AAFES at Fort Benning, gave preferential treatment to The Shirt House and created a conflict of interest by improperly injecting herself into the procurement process. Id.

On December 30, 2008, Ms. Dunbar denied plaintiffs protest, determining that it lacked merit. Pl.’s Ex. 6 at 2; accord Second Am. Compl. ¶¶ 10, 17. First, Ms. Dunbar explained that the AAFES considered all proposals in a manner that was consistent with applicable procurement procedures and the solicitation’s criteria. Pl.’s Ex. 6 at 1. Second, she noted that the AAFES determined The Shirt House was eligible for a contract award, demonstrated satisfactory past performance, had the necessary organization and experience to perform the contract, and possessed the necessary technical equipment and facilities — or had the ability to obtain them — in order to perform the contract. Id. at 2.

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Bluebook (online)
103 Fed. Cl. 645, 2012 U.S. Claims LEXIS 99, 2012 WL 725878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-v-united-states-uscfc-2012.