Aero Spray, Inc. v. United States

• Decision Date: 28 October 2021
• Docket Number: 21-1079C
• Parties: AERO SPRAY, INC. d/b/a DAUNTLESS AIR, Plaintiff, v. THE UNITED STATES, Defendant, and HENRY'S AERIAL SERVICE, INC., and FLETCHER FLYING SERVICE, INC. Defendant-Intervenors.
• Court: U.S. Claims Court

AERO SPRAY, INC. d/b/a DAUNTLESS AIR, Plaintiff, v. THE UNITED STATES, Defendant, and HENRY'S AERIAL SERVICE, INC., and FLETCHER FLYING SERVICE, INC. Defendant-Intervenors.

No. 21-1079C

United States Court of Federal Claims

October 28, 2021

Filed Under Seal: October 21, 2021

Lee Dougherty, Effectus PLLC, Washington, D.C., for Plaintiff.

Albert S. Iarossi, Commercial Litigation Branch, Civil Division United States Department of Justice, Washington, D.C., for Defendant. With him on the briefs were Brian M. Boynton Acting Assistant Attorney General, Civil Division, Martin F Hockey, Jr., Acting Director, and Douglas K. Mickle Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Alexander W. Fichtel, United States Department of Interior, Office of the Solicitor, Rocky Mountain Region, Lakewood, CO.

Brian G. Walsh, Wiley Rein LLP, Washington, D.C., for Defendant-Intervenor, Henry's Aerial Service, Inc. With him on the briefs were Craig Smith and Cara L. Lasley.

Leonard Collins, GrayRobinson, P.A., Tallahassee, FL, for Defendant-Intervenor, Fletcher Flying Service, Inc. With him on the briefs was Allison Goodson.

OPINION AND ORDER ^[*]

Matthew H. Solomson, Judge

Since 1947, Smokey Bear has taught the American public to "Remember… Only YOU Can Prevent Forest Fires."^[1] Unfortunately, wildfires remain a major problem in the United States.^[2] The federal government is responsible for responding to wildfires that occur in the approximately 600 million acres of federal lands, ^[3] and procures a variety of resources to confront this dauting task-including, as relevant here, amphibious water scooping fixed-wing aircraft services for firefighting.

In this post-award bid protest, Plaintiff, Aero Spray, Inc. d/b/a Dauntless Air ("Aero Spray"), an awardee of a multiple award indefinite delivery indefinite quantity ("IDIQ") contract for the aforementioned firefighting services, challenges the decision of Defendant, the United States, acting by and through the Department of the Interior ("DOI" or the "Agency"), to also award IDIQ contracts to Defendant-Intervenors, Henry's Aerial Service, Inc. ("Henry's Aerial") and Fletcher Flying Service, Inc. ("Fletcher Flying").^[4] Aero Spray contests the other contract awards to Henry's Aerial and Fletcher Flying as arbitrary, capricious, and otherwise not in accordance with law and seeks a permanent injunction preventing DOI from proceeding with them. The government and Defendant-Intervenors moved to dismiss Aero Spray's complaint for lack of standing and because the action is untimely pursuant to the Blue & Gold waiver rule. The parties also filed motions for judgment on the administrative record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims ("RCFC").

For the reasons explained below, the Court GRANTS the government's and Defendant-Intervenors' respective motions to dismiss. The Court DENIES Aero Spray's motion for judgment on the administrative record. Finally, the Court DENIES as MOOT the pending motions to supplement the administrative record.

I. FACTUAL AND PROCEDURAL BACKGROUND^[5]

A. The Solicitation

To assist with fighting wildfires, DOI has a need to "acquire single engine amphibious water scooping fixed-wing aircraft services for the Bureau of Land Management (BLM) and other federal and state agencies[.]" AR 27; see also AR 1. DOI specifically sought to acquire "FireBoss" aircraft services "to support fire suppression, water scooping, and fire-retardant delivery operations" for "areas otherwise difficult to access." AR 10-11. A FireBoss aircraft is typically a single engine aircraft modified and outfitted with specialized equipment, including amphibious float and scooper packages. AR 1, 5.

Aero Spray and Air Spray USA, Inc. ("Air Spray") performed the predecessor contracts to those at issue here. AR 11. With those contracts scheduled to expire on April 30, 2021, ^[6] DOI issued, on October 22, 2020, Solicitation No. 140D8020R0019, as a Request for Proposals (the "Solicitation" or the "RFP") to procure the services of "a combined fleet of approximately 20-24 [FireBoss] aircraft." AR 10, 23 (emphasis added). The RFP is an unrestricted acquisition, providing for multiple award IDIQ contracts, with an order ceiling of $46, 000, 000. AR 10; see also AR 16 ("The Government intends to award multiple contracts.").

Following a series of RFP amendments, including a question-and-answer document ("Q&As"), the Agency issued a revised, conformed Solicitation on December 16, 2020. AR 330 (RFP Amendment 0006); AR 332-431 (revised Solicitation).

The RFP provided for a one-year base period, and four single-year option periods. AR 1, AR 337-339. Proposals were initially due November 23, 2020, but DOI subsequently extended the closing date to December 23, 2020. AR 23, 330, 955, 1375-76.

Pursuant to the RFP, the Agency was required to "evaluate all acceptable offers based on the [following] evaluation factors[:]"(1) Technical Capability; (2) Organizational Safety; (3) Past Performance; and (4) Evaluated Price. AR 412 (RFP § D8.1 ("Evaluation Factors")). As relevant here, the RFP provided that offerors "must propose an aircraft that meets or exceeds the Minimum Aircraft Requirements specification in Section A of this solicitation" and that an "offer will be rated Unsatisfactory if the aircraft proposed fails to meet any of the Minimum Aircraft Requirements specified in Section A of this solicitation." AR 412 (RFP § D8.2 ("Technical Capability")).

The RFP also provided that the government will place orders for services via "task order request[s] for proposal[s]" - known as TORPs - which would be issued to contract holders. AR 375 (RFP § C15.1.1). While awarded contracts would permit discounted pricing, "[c]ontractors' pricing for task orders shall not exceed the prices in the IDIQ price schedule." Id. On the other hand, the RFP cautioned that "[d]ue to the nature of firefighting, urgent orders are likely" where "[p]ursuant to FAR 16.505(b)(2), fair opportunity need not be provided . . . ." AR 375 (RFP § C15.1.2). "In such cases, the ordering activity will select the contractor it deems to offer the best value to the Government[, ] . . . [but] [b]ecause urgent orders may be issued under the IDIQ without the opportunity to submit a task order proposal with revised pricing, offerors are encouraged to include their best pricing in their IDIQ price proposals." Id.

Finally, the RFP provided for the onboarding of additional contractors after the initial contract awards, as follows:

The Government reserves the right to announce a new competition (Onboarding) for the purpose of adding additional multiple award, indefinite delivery, indefinite quantity (IDIQ) contract holders. Onboarding procedures may be implemented at any time over the life of the contract (five years from the date of initial award) by reopening the competition and utilizing the same basis of award established in the original solicitation 140D8020R0019. Bureau customers will initiate the need for additional contract holders by contacting the CO. The CO will then assess the need for additional support or whether current contract holders can satisfy the need. Should additional support be required, the CO will publicize a notice by modifying the original solicitation, and complete a new source selection. Contracts awarded through these Onboarding Procedures will include the same terms and conditions as those in the basic contract. Neither the overall period of performance nor the ceiling of the basic contract will be revised as a result of implementing the Onboarding procedures.

AR 380 (§ C27).

B. The Question-and-Answer Amendment to the Solicitation

DOI provided offerors with an opportunity to submit questions to the Agency to attempt to clarify any ambiguities in, or to raise other issues with, the RFP. AR 121.

On November 13, 2020, DOI published the resulting Q&As as an amendment to the RFP, including the following pertinent exchanges:

Question 2) We are in the midst of adding two Fire Bosses to the fleet. They will both be completed by year end. One very well may be completed and have a Weight and Balance and MEL done by the submission date for the Solicitation. We own the aircraft, we own the floats, gates and avionics. We may just not have all of it put together for a final Weight &amp Balance by 11/23. In that case, how should we handle listing the aircraft?

Answer 2) As per Section B32.1, referenced by D4.11.1.2, provide a weight and balance for each proposed aircraft with the aircraft in contract configuration. The proposal must include at least one aircraft that meets the minimum requirements of this solicitation. Section C17 is added to the Solicitation to define procedures for adding aircraft after initial award(s). Also see Exhibit 16 Add/Remove Aircraft/Equipment Request Form.

* * * * Question 3) Section A1 states the Aircraft Configuration required for listing in response to the Solicitation. For a Contractor to offer an aircraft in response to this solicitation, does the aircraft need to be in operational Fire Boss contract configuration, including an acceptable Weight & Balance (in accordance with Section B32) and Equipment List that would allow the Aircraft Questionnaire to be filled out?

Answer 3) A proposal must include at least one aircraft that meets the minimum requirements of Section A1, and all related requirements and documentation as stated in the solicitation, to include a current weight & balance report, Exhibit E-2 and Exhibit E-3. Additional aircraft may be offered after initial award as detailed in Question 2. See Question 2 for adding aircraft after initial award(s), and see

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