Am. K-9 Detection Servs. v. United States

Decision Date16 August 2021
Docket Number21-1165,20-1614
PartiesAMERICAN K-9 DETECTION SERVICES, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and MICHAEL STAPLETON ASSOCIATES, LTD., Defendant-Intervenor. GLOBAL K9 PROTECTION GROUP, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and MICHAEL STAPLETON ASSOCIATES, LTD., Defendant-Intervenor.
CourtCourt of Federal Claims

Organizational Conflict of Interest; Unequal Access to Information OCI Biased Ground Rules OCI; USPS SP&Ps; RCFC 52.2; Remand Without Vacatur; Bias Allegation; Technical Evaluation Factors; Best-Value Tradeoff

Daniel J. Strouse, of Cordatis LLP, with whom was Joshua D. Schnell all of Arlington, VA, for plaintiff American K-9 Detection Services, LLC.

W Brad English, of Maynard, Cooper & Gale, PC, with whom were Jon D. Levin, Emily J. Chancey, J. Dale Gipson, and Nicholas P. Greer, all of Huntsville, AL, for plaintiff Global K9 Protection Group, LLC.

John J. Todor, Senior Trial Counsel, Commercial Litigation Branch Civil Division, Department of Justice, with whom were Jeffrey Bossert Clark, Acting Assistant Attorney General, Brian M. Boynton, Acting Assistant Attorney General, Robert E. Kirschman Jr., Director, Martin F. Hockey Jr., Acting Director, and Reginald T. Blades Jr., Assistant Director, all of Washington, DC, and Shoshana O. Epstein, Attorney, Postal Service, for defendant.

Ryan C. Bradel, of Ward & Berry PLLC, with whom were P. Tyson Marx and Stephen G. Darby, all of Tysons, VA, for defendant-intervenor.

OPINION AND ORDER

RYAN T. HOLTE Judge.

This Opinion rules on two consolidated bid protests against the United States Postal Service ("USPS," "the agency," or "the government"), in which the government awarded a contract for canine explosive detection and alarm resolution services to defendant-intervenor Michael Stapleton Associates, LTD ("MSA" or "defendant-intervenor"), under Solicitation No. 2B-20-A-0087 ("solicitation"). American K-9 Detection Services, LLC ("AMK9") brought a pre-award bid protest and, because the government continued with award and performance of the contract, later amended its complaint to include a post-award protest. Global K9 Protection Group, LLC ("GK9") additionally brought a post-award bid protest. Pending before the Court now are plaintiff AMK9's pre-award and post-award motions for judgment on the administrative record ("MJARs"), plaintiff GK9's MJAR, the government's pre-award and post-award cross-MJARs, MSA's cross-MJAR, and GK9's motion to supplement the administrative record. For the following reasons, the Court DENIES IN PART AND STAYS IN PART AMK9's pre-award and post-award MJARs, DENIES IN PART AND STAYS IN PART GK9'S MJAR, GRANTS IN PART AND STAYS IN PART the government's pre-award and post-award cross-MJARs, GRANTS IN PART AND STAYS IN PART MSA's cross-MJAR, and REMANDS this case to USPS for complete investigation. While this Opinion fully considers and denies most of plaintiffs' claims, it remands for the second time consideration of plaintiffs' organizational conflict of interest ("OCI") allegations given the continued lack of full investigation from the contracting officer leading to several unresolved issues.

I. Background

Following the September 11th attacks, the National Commission on Terrorist Attacks Upon the United States ("9/11 Commission") issued a federal mandate to the Transportation Security Administration ("TSA") requiring "100% screening of all air cargo on passenger planes by 2020." Admin. R., ECF No. 23-2 ("AR") at 3 (USPS Supply Management Competitive Purchase Plan); see also 49 U.S.C. § 44901 ("The Administrator of the [TSA] shall provide for the screening of all passengers and property, including United States mail, . . . that will be carried aboard a passenger aircraft . . . ."). USPS is held to this mandate by TSA regulations under the Aircraft Operator Standard Security Program, which includes mail over sixteen (16) ounces, military mail, and registered mail. AR at 3. Currently, local law enforcement, funded by the TSA, provides screening of mail delivered on airplanes. Id. at 4. Under this system, USPS has "little, to no, oversight or ability to manage the screenings or the locations as the program is run directly by TSA." Id.

To grant USPS control over the package screening process and facilitate development of a program expanding the number of sites with screening capabilities, TSA is currently developing a policy to relieve TSA from package screening and "require the shift of the explosives detection screening to the Postal Service." Id. The government explained at the pre-award MJAR oral argument this policy, called the "Mail Amendment," is "the procedures by which TSA would permit the screening to be done, locations, security requirements on the ground . . . ." Transcript of 8 February 2021 Oral Argument on Cross-Motions for Judgment on the Administrative Record ("Pre-Award OA Tr."), ECF No. 44 at 112:15-17. The government further described the mail amendment as follows:

TSA has regulatory authority under 49 CFR [5144] . . . to modify the procedures for air cargo security. And using that regulatory authority for the purposes of this new contract, the 3PK9 program, for the [P]ost [O]ffice to conduct screening, part of that authority has set up procedures by which it would have the screening be permitted so that it could be part of the same overall screening process that goes onto airlines.

Id. at 111:9-17. The mail amendment is "not published in the Federal Register or CFR," and its contents "were only released to the specific awardee and were designated as sensitive information." Id. at 111:18-21. Counsel for the government explained, "USPS asked TSA whether it would permit release of the Mail Amendment to prospective bidders in September of 2020, and TSA denied that authorization to USPS." Id. at 108:23-25. The mail amendment was finalized June 2020. Id. at 108:19-20.

Christopher Shelton is vice president of air cargo for MSA, and he:

[S]erved as the Supervisory Air Marshal in Charge of the TSA Canine Training Center. He supervised canine team training for the largest explosive detection canine program in DHS and was responsible for training, deploying and evaluating over 1, 000 TSA and law enforcement-led canine teams for aviation, multimodal, maritime, mass transit and cargo environments. Mr. Shelton was instrumental in the development and implementation of the Certified Cargo Security Program - Canine (CCSP-K9), the TSA program regulating the use of third-party canine providers for explosive detection screening in regulated air cargo environments.

AR at 621, n.6 (citing MSA Leadership Team: Chris Shelton, MSA Sec., http://www.msasecurity.net/msa-leadership/msa-leadership-chris-shelton) (AMK9 Business Disagreement). Prior to the release of the solicitation in this case, defendant-intervenor participated in a pilot program administered by USPS. See id. at 816 (USPS Supplier Disagreement Resolution No. SDR-21-CS-001). In October 2019, Mr. Shelton left TSA and began working for defendant-intervenor. Id. at 621. Mr. Shelton manages defendant-intervenor's air cargo business line and, while at TSA, was closely involved in the development of TSA's canine screening program. Id.

On 14 August 2020, USPS issued a request for information ("RFI") inviting "vendors in the marketplace to register their interest in providing services to the USPS should the USPS decide to develop the [3PK9-C] program." AR at 24 (USPS RFI). The RFI was sent to seven potential offerors "from TSA's list of SAFETY Act certified and in-process SAFETY Act certified organizations." Id. at 6-7 (USPS Supply Management Competitive Purchase Plan). In the RFI, USPS stated it was "peppering the market" regarding the "potential and ability" for suppliers to "provide the USPS with the canines and program management necessary, should the USPS invest in and develop a 3PK9-C program to screen cargo and mail being transported on domestic and international passenger commercial air carriers on a nationwide basis." Id. at 24 (RFI). If the 3PK9-C program were to be developed, the RFI stated USPS would need "an Alarm Resolution protocol for instances when a canine alerts to a mail piece," among other detection, analysis, and interpretation technology services. Id. Anticipating its need for alarm resolution services, the RFI inquired about offerors' "capabilities around Alarm Resolution" and "procedure for clearing Alarms." Id. at 25.

USPS's Competitive Purchase Plan ("CPP") explained its need for mail screening and resolution services. See AR at 3-4 (USPS Supply Management Competitive Purchase Plan). Owing to the ongoing COVID-19 pandemic, Air Transportation Operations predicted "a package shift in the global network of air carriers," resulting in "a Peak Season shortfall on the Postal Service's planned capacity with FedEx." Id. at 3. The CPP described a preference for offerors who "have SAFETY Act certified technology and processes to provide Real-Time X-Ray analysis and interpretation by trained bomb technicians for alarm resolution." Id. at 7. The government acknowledged requiring SAFETY Act certification would limit the number of offerors who could submit responsive proposals but determined "this will not preclude diversity in the types and sizes of offerors." Id. The CPP reiterated such a contract "will allow the Postal Service to control the [mail] screening process." Id. at 4.

A. The Solicitation

On 22 September 2020, USPS issued Solicitation No. 2B-20-A-0087 for "the procurement of Third-Party Canine-Mail Screening with Real-Time X-ray Analysis [and] Interpretation." AR at 118 (Solicitation). The solicitation contemplated a four-year base period award with two two-year renewal options. Id. at 97. The pricing...

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