883 F.3d 1378 (Fed. Cir. 2018), 2017-2113, Cleveland Assets, LLC v. United States

Docket Nº:2017-2113
Citation:883 F.3d 1378
Opinion Judge:Moore, Circuit Judge.
Party Name:CLEVELAND ASSETS, LLC, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee.
Attorney:Steven D. Gordon, Holland & Knight, LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Mary Beth Bosco, Gordon Griffin, Robert C. MacKichan, Jr.; Elizabeth Jochum, Tysons, VA. Kara Westercamp, Commercial Litigation Branch, Civil Division, United States Department of Justice,...
Judge Panel:Before Moore, Hughes, and Stoll, Circuit Judges.
Case Date:March 05, 2018
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1378

883 F.3d 1378 (Fed. Cir. 2018)

CLEVELAND ASSETS, LLC, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee.

No. 2017-2113

United States Court of Appeals, Federal Circuit

March 5, 2018

Page 1379

Appeal from the United States Court of Federal Claims in No. 1:17-cv-00277-EDK, Judge Elaine Kaplan.

Steven D. Gordon, Holland & Knight, LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Mary Beth Bosco, Gordon Griffin, Robert C. MacKichan, Jr.; Elizabeth Jochum, Tysons, VA.

Kara Westercamp, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Deborah A. Bynum.

Before Moore, Hughes, and Stoll, Circuit Judges.

OPINION

Moore, Circuit Judge.

Cleveland Assets, LLC appeals the United States Court of Federal Claims’ (" Claims Court" ) order dismissing its pre-award bid protest claim and granting the government’s motion for judgment on the administrative record that General Services Administration’s choice of maximum rental rate in its acquisition was not arbitrary or capricious or lacking a rational basis. For the reasons discussed below, we affirm.

BACKGROUND

The Federal Bureau of Investigation (" FBI" ) is currently the sole tenant in a building in Cleveland, Ohio, pursuant to a lease between Cleveland Assets and the General Services Administration (" GSA" ). The current lease began on February 1, 2002, and was originally set to expire on January 31, 2012. Due to delays in securing a new lease, the existing lease with Cleveland Assets has been extended multiple times. Pursuant to the terms of the extensions, GSA has paid, and continues to pay, Cleveland Assets a penalty rate of $44.72 per rentable square foot (" PSF" ) since the expiration of the original 10-year period.

In accordance with 40 U.S.C. § 3307, GSA must seek the approval of the Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure before obligating funds on a lease exceeding an amount published at GSA’s Annual Prospectus Threshold. GSA Annual Prospectus Thresholds, http://www.gsa.gov/annualprospectusthreshold. To secure consideration for approval by the congressional committees, GSA must send the congressional committees a prospectus of the proposed facility, including a brief description of the space and " an estimate of the maximum cost to the Government." 40 U.S.C. § 3307(b).

In 2009, GSA began preparing a congressional prospectus for a new lease for the Cleveland FBI office. A series of documents demonstrate GSA considered a range of rental values for inclusion in its prospectus. A November 2009 appraisal report concluded that the total gross rent for the type of facility sought by the FBI ranged from $29.48 to $50.47 PSF. An unsigned, undated draft prospectus prepared before 2010 but not approved by

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GSA, along with a series of other undated and unsigned documents, estimated a maximum proposed rental rate of $42.00 PSF. An undated document titled " Lease Project Data Sheet— FY 2010 Program" projected a maximum rental rate of $50.47 PSF. And a document titled " Analysis of Replacement Lease Rental Rate" set forth an estimated rental rate of $26.00 PSF.

On December 21, 2010, GSA approved a prospectus with a maximum proposed rental rate of...

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