Blr Group Of Am. Inc v. The United States, No. 07-579C

CourtU.S. Claims Court
Writing for the CourtSWEENEY, J.
PartiesBLR GROUP OF AMERICA, INC., Plaintiff. v. THE UNITED STATES, Defendant.
Docket NumberNo. 07-579C
Decision Date16 August 2010


No. 07-579C

United States Claims Court.

Filed: August 16, 2010

Timothy F. Noelker, St. Louis, MO, for plaintiff.

William P. Rayel, United States Department of Justice, Washington, DC, for defendant.

Mootness; Reconsideration; Jurisdiction; Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613; Performance Evaluation; Definition of Claim; Contracting Officer's Decision; Deemed Denial



Plaintiff in the above-captioned case alleges that government personnel prepared and disseminated an unfair and inaccurate evaluation of its performance under a contract with the United States Air Force ("Air Force") and requests appropriate nonmonetary relief. In a previous decision, the court determined that it possessed jurisdiction over one of plaintiff's claims. Now before the court are defendant's motion for partial reconsideration of that prior decision, motion for summary judgment on plaintiff's remaining claim, and motion to dismiss on mootness grounds. For the reasons set forth below, the court dismisses plaintiff's remaining claim for lack of jurisdiction.

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Plaintiff BLR Group of America, Inc. is a Texas corporation that provides support services for airline, general aviation, military, technology, and government clients. Compl. UU 3, 7. On April 14, 2006, the Air Force awarded plaintiff a contract "to provide Air Traffic Management support services to the Directorate of Communications and Information's Air Traffic Management Systems Office (AMC/A67)." Id. U 8. In particular, plaintiff was required "to provide 'functional, technical liaison, and analytical support' in accordance with the Performance Work Statement," which identified a variety of required and discretionary tasks. Id. U 9 (quoting the contract). The contract was awarded for one base year and four subsequent option years "on a firm fixed-price basis, with some cost-reimbursable items." Id. The total contract award amount was $564,968. Def.'s App. 3.

In the contract, the Air Force identified the individuals responsible for contract administration. Pl.'s Ex. 35-36. Nancy Kreke was named as the contracting officer. Id. at 36. Jo A. Brown-Leiker was named as the lead Quality Assurance Personnel ("QAP"), whose responsibilities included "performing technical, administration, inspection, and acceptance of services" provided under the contract. Id.

Prior to contract award, plaintiff hired a subcontractor, John Hoffman, to serve as its chief engineer. Id. at 1. "During contract performance, [plaintiff's] personnel observed an inappropriately close personal relationship" between Mr. Hoffman and the lead QAP, Ms. Brown-Leiker. Compl. U 13. In early June 2006, plaintiff questioned some of the bills it received from the Mr. Hoffman. Id. U 14. On June 8, 2006, less than two months after contract award, Mr. Hoffman "abruptly terminated his relationship with [plaintiff] and his work under the Contract and subcontract." Id. U 15. Plaintiff's "relationship with the Air Force quickly deteriorated following Mr. Hoffman's departure." Pl.'s Ex. 2. In particular, plaintiff contends that Ms. Brown-Leiker "became completely uncooperative," in that she "immediately began to hinder [plaintiff]'s performance by imposing unreasonable requirements, suddenly becoming unavailable to [plaintiff's] representatives, and by unreasonably monitoring and evaluating [plaintiff]'s performance." Id. at 3. Ultimately, on September 26, 2006, the Air Force terminated the contract for its convenience. Compl. U 36.

After the contract's termination, the Air Force evaluated plaintiff's performance under the contract in a Contractor Performance Assessment Report ("CPAR"). Id. U 42. "The primary purpose of the [Contractor Performance Assessment Reporting System] is to ensure that accurate

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data on contractor performance is current and available for use in source selections...." Def.'s App. 22. Due to the importance of CPARs in the source selection process and its belief that Ms. Brown-Leiker lacked objectivity with respect to its contract performance, plaintiff requested, four days before the Air Force terminated the contract for its convenience, that another QAP be assigned to the contract. Compl. ¶¶ 38-40. The Air Force did not respond to plaintiff's request. Id. ¶ 41. Instead, upon the contract's termination, Ms. Brown-Leiker and the alternate QAP prepared plaintiff's CPAR. Def.'s App. 17. The contracting officer, Ms. Kreke, in her role as Assessing Official, 2 signed the CPAR on November 21, 2006. Id. at 15. That same day, via an electronic mail message, she notified plaintiff that a CPAR had been prepared and was ready for plaintiff's review. Compl. ¶ 42; Pl.'s Ex. 82-83.

In the CPAR, the Air Force rated plaintiff's performance as "marginal" for four evaluation criteria: (1) Quality of Product or Service; (2) Schedule; (3) Business Relations; and (4) Management of Key Personnel. Def.'s App. 14. According to plaintiff, the narrative in the CPAR "was replete with misrepresentations and inaccuracies." Compl. ¶ 44. Thus, pursuant to the guidelines set forth in the November 21, 2006 electronic mail notification message, plaintiff requested a meeting with the Air Force to discuss the CPAR. Pl.'s Ex. 78, 83. The meeting was initially scheduled for December 6, 2006, id. at 85, but was postponed after an electronic mail message from the Reviewing Official, Eric Hassenplug, led plaintiff to believe that the purpose of the meeting had changed, id. at 78. The meeting ultimately occurred on January 9, 2007, and included the following participants: plaintiff, Ms. Kreke, Ms. Brown-Leiker, and other Air Force personnel. Compl. ¶ 46. During the meeting, plaintiff provided substantive rebuttals to many of the items in the CPAR and requested information from the Air Force concerning how it prepared the CPAR. Id. The Air Force did not provide plaintiff with the information it sought, id., but Ms. Kreke invited plaintiff to submit written questions, id. ¶ 47. Plaintiff submitted written questions, but received no response. Id.

On January 12, 2007, plaintiff submitted written comments in response to the CPAR. Def.'s App. 15. The comments concerned both the inaccuracies contained in the CPAR and the possible biases of one of the preparers of the CPAR, Ms. Brown-Leiker. Id. at 15, 17-20. At the conclusion of its comments, plaintiff indicated that it did not concur with the unfavorable assessment of its performance and requested that its performance be reevaluated. Id. at 20. Because plaintiff disagreed with the Air Force's unfavorable assessment, the CPAR could not be finalized until Mr. Hassenplug reviewed it. BLR Group of Am., Inc., 84 Fed. Cl. at 637. Mr. Hassenplug reviewed the CPAR, including plaintiff's comments, on February 6, 2007, and determined that the "marginal" ratings were appropriate.3 Def.'s App. 1. Although the final

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CPAR contained "one modification to the Management of Key Personnel section," it "reflected no substantive modification to the original CPAR." Compl. ¶ 49

The final CPAR was disseminated to other procurement officials via the Past Performance Information Retrieval System ("PPIRS"), which is managed by the Naval Sea Logistics Center. Id. ¶¶4, 51; see also Def. App. 22 (indicating that CPARs are "for use in source selections through the Past Performance Informational Retrieval System"). Plaintiff objected to how the CPAR was displayed in the PPIRS and requested that Mr. Hassenplug take corrective action. Compl. ¶ 54. The government refused plaintiff's request. Id.

Given the government's refusal to amend the CPAR and correct the PPIRS display, plaintiff filed a complaint in this court on August 1, 2007, asserting two claims and seeking declaratory and injunctive relief. In its first claim for relief, plaintiff requested that the court "direct the Air Force to revise the CPAR to make it fair and accurate and consistent with the facts, or, alternatively, to rescind the CPAR in its entirety." Id. ¶ 57. In its second claim for relief, plaintiff requested that the court direct the Air Force and the Naval Sea Logistics Center to revise or rescind the PPIRS version of the CPAR. Id. ¶ 60. Defendant moved to dismiss plaintiff's complaint for lack of jurisdiction. In a November 25, 2008 decision, the court concluded that it possessed jurisdiction to entertain plaintiff's first, but not its second, claim for relief. Subsequently, in October 2009, pursuant to standard practice, plaintiff's CPAR was removed from the PPIRS and archived, rendering it unavailable for viewing in connection with future source selection decisions. Def.'s Ex. 1-2. Defendant now seeks reconsideration of the court's finding of jurisdiction, dismissal of plaintiff's complaint on mootness grounds, or, in the alternative, summary judgment in its favor. The court heard argument on August 11, 2010.


Defendant first moves to dismiss plaintiff's complaint on justiciability grounds, contending that the removal of plaintiff's CPAR from the PPIRS renders plaintiff's case moot. "[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). When a case is moot, there are no justiciable issues upon which...

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