ViroMed Laboratories, Inc. v. United States

87 Fed. Cl. 493, 2009 WL 1653513
United States Court of Federal Claims·Decided June 8, 2009·No. Nos. 09-60 C, 09-323 C·Published·Cited by 16 cases

Opinion

OPINION and ORDER

BLOCK, Judge.

I. INTRODUCTION

Currently before this court are plaintiffs motion to impose contempt sanctions on the government and its application for a Rule 65 preliminary injunction in a bid protest action.2 Indeed, this is the second time these parties have graced this court’s doorstep in a dispute over Navy contract awards for HIV testing services. Plaintiff’s first bid protest3 was dismissed without prejudice after the court issued an order reflecting the parties’ apparently successful settlement discussions. ViroMed I Dismissal Order. The Navy then awarded a bridge contract to intervenor, Center for Disease Detection (“ODD”), for the purpose of procuring HIV testing services until it could implement the corrective action in the court’s dismissal order and award a longer-term contract. Hanger Deck ¶8. In the instant bid protest, plaintiff argues that the solicitation and award of the bridge contract was the product of bad faith, ViroMed II Compl. ¶¶ 26-28, and asks the court for a preliminary injunction until the court can rule on the merits of the protest, PL’s App. at i. Plaintiff also complains that the solicitation and award was a violation of this court’s dismissal order for which this court should hold defendant in contempt. Pl.’s Enforcement Mot. at 4-5. For the reasons set forth below, this court denies both plaintiffs motion for contempt and its application for a preliminary injunction.

II. FACTUAL AND PROCEDURAL BACKGROUND

On April 18, 2007, the Navy issued RFP N00189-07-R-Z027 (“RFP”) for the procurement of: “Human Immunodeficiency Virus (HIV) Type 1 + 2 screening 4 and confirmatory testing ... to detect [HIVJ antibodies or viral proteins in specimens provided by Naval Submitting Activities worldwide and/or blood program donors.” RFP at 1, 3. The contract awardee would provide these testing services from February 1, 2008 (or the date of contract award) to September 30, 2008, with four one-year options. RFP at 3-12, 18. The contracting officer and the contract negotiator for the RFP were Ms. Leanne Hanger and Ms. Mary Mezzatesta, respectively. Hanger Decl. ¶ 2; RFP at 1. It was the participation of Ms. Hanger and Ms. Mez-[497] zatesta in the later solicitation for the bridge contract that is in part the basis of the instant motion for contempt and application for a preliminary injunction. ViroMed II Compl. ¶¶ 26-28; Pl.’s Enforcement Mot. at 4-5.

Plaintiff, the incumbent contractor,5 submitted a proposal on November 1, 2007. Fogerson Decl. ¶¶ 3, 5. On October 2, 2008, the Navy informed plaintiff that it had awarded the contract to CDD. Fogerson Decl. ¶ 6. On October 20, 2008, plaintiff filed a protest at the Government Accountability Office (“GAO”) alleging that “the [Navy] improperly considered an unstated evaluation criterion in evaluating its proposal, and that the [Navy’s] source selection decision was based improperly on price [alone].” ViroMed Labs, Inc., Comp. Gen. B-310747.4, 2009 CPD 113 2, at 1, 4. The GAO denied this protest on January 22, 2009. Id. at 7.

Plaintiff then filed a complaint with this court on February 2, 2009, alleging, among other things, that Navy contracting officials exhibited prejudice against plaintiff and accorded CDD preferential treatment. ViroMed I Compl. ¶¶ 31-36. Plaintiff claimed that the award of the contract to CDD was part of an ongoing effort in a far-reaching-campaign to strip HIV testing services from ViroMed.6 See ViroMed I Pl.’s Mot. to Supp. Admin. R. at 10-11.

After settlement negotiations, the parties filed a Consent Stipulation of Dismissal and Notice of Corrective Action (“Consent Stipulation”), along with a proposed Order of Stipulated Dismissal, on March 26, 2009. Consent Stipulation at 1, 5. After discussing the Consent Stipulation with the parties, the court issued the parties’ proposed order (“Dismissal Order”) on March 31, 2009 and directed the Clerk of Court to dismiss the case without prejudice. Dismissal Order at 1, 3. Pursuant to the parties’ agreement, the Dismissal Order stated:

WHEREAS, the parties to the above-captioned matter have agreed to dismiss this matter for the reasons set forth in the parties’ CONSENT STIPULATION OF DISMISSAL AND NOTICE OF CORRECTIVE ACTION (the “Stipulation of Dismissal”), including the Navy’s agreement to take the corrective actions specified therein; and
WHEREAS, the Navy agrees to submit to this Court’s jurisdiction for purposes of enforcing this Order;
It is hereby ORDERED that, [tjhe Navy shall take the following corrective action:
a. A new technical evaluation board (“TEB”) and new contract negotiator and contracting officer will be assigned to the procurement. Each member of the TEB will execute a Conflict of Interest and Nondisclosure Agreement, a blank copy of which has been provided to the parties and the Court.
b. No revisions will be made to the solicitation evaluation criteria and the solicitation will remain unrestricted.
c. The competitive range will consist of ViroMed and CDD.
d. The new TEB will evaluate the existing proposals of Viromed and CDD; i.e., the initial technical proposals; communications from CDD and ViroMed, by email or otherwise, made during discussions that are included in the record; and the revised proposals of August 2008.
e. The new contracting officer will initiate and conduct discussions with ViroMed and CDD. Such discussions will include, but not be limited to, the subject of innovations.
f. Following discussions, the Navy will give both offerors an opportunity to revise [498] any aspect of their proposal, without restriction, and final proposal revisions (FPRs) will be requested.
g. After the Navy’s receipt of FPRs, the new TEB will evaluate the revised technical proposals from ViroMed and CDD, and the new negotiator/contracting officer will evaluate the revised price proposals.
h. The new contracting officer will make a source selection decision based upon the new revised proposals submitted and the evaluation criteria set forth in the solicitation.

Dismissal Order at 1-2.

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ViroMed Laboratories, Inc. v. United States, 87 Fed. Cl. 493, 2009 WL 1653513 (uscfc 2009).

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