CBY Design Builders v. United States

Decision Date11 May 2012
Docket NumberNo. 11-740 C,11-740 C
CourtU.S. Court of Appeals — District of Columbia Circuit

Pre-award bid protest; Army Corps

of Engineers; corrective action

following GAO recommendation;

subject-matter jurisdiction; standing

of awardee; mootness; organizational

conflict of interest; no injury when

exonerated; ripeness; objection to

solicitation; deference to GAO

decisions; de novo review for

questions of law; solicitation

interpretation; build-to-budget;

failure to consider important aspect;

price a required factor, 10 U.S.C.

§ 2305; evaluation that departs from

solicitation's terms; rational basis for

GAO decision; injunctive relief


Amy L. O'Sullivan, Crowell & Moring, LLP, Washington, D.C., for plaintiff. Thomas P. Humphrey, Puja Satiani, Jonathan M. Baker, and Sarah B. Gleich, all of Washington, D.C., of counsel.

Corinne A. Niosi and Barbara E. Thomas, Commercial Litigation Branch, Civil Division, Department of Justice, with whom were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director, all of Washington, D.C., for defendant.

Marcia G. Madsen, Mayer Brown, LLP, Washington, D.C., for defendant-intervenor Bechtel Infrastructure Corporation. Luke Levasseur and David F. Dowd, both of Washington, D.C., of counsel.

Neil H. O'Donnell, Rogers Joseph O'Donnell, Washington, D.C., for defendant-intervenor PCCP Constructors, J.V. Patricia A. Meagher, Dennis J. Callahan, and Jefferey M. Chiow, all of Washington, D.C., of counsel.


WOLSKI, Judge.

This case involves a procurement award for a design-build contract solicited by the Hurricane Protection Office ("HPO") of the United States Army Corps of Engineers ("Corps" or "Agency"). The Corps initially awarded the contract to Plaintiff CBY Design Builders ("CBY"), which is a joint venture of Brasfield & Gorrie, L.L.C., CDM Constructors Inc., and W.G. Yates and Sons Construction Co. On November 4, 2011, CBY filed a bid protest in our court challenging a decision of the Corps to follow recommendations of the Government Accountability Office ("GAO") and to implement corrective action in accordance with a GAO decision sustaining the protests of unsuccessful offerors. This corrective action entailed a conflict-of-interest investigation, a stay of the award, amendment of the solicitation, and a resolicitation of proposals for a new evaluation and award. Bechtel Infrastructure Group ("Bechtel") and PCCP Constructors, JV ("PCCP"), the protesters before GAO, have intervened in this case to defend the Corps's decision to take corrective action. Plaintiff CBY has moved for judgment on the administrative record, arguing that the GAO decision was arbitrary and capricious, and that therefore the Corps also acted arbitrarily and capriciously by following the GAO's recommendation. CBY seeks permanent injunctive relief to prevent the Corps from proceeding with the corrective action, as well as an order directing the Corps to proceed with performance under the contract originally awarded to CBY. The government has moved to dismiss the case, challenging the Court's subject matter jurisdiction and, in the alternative, cross-moved for judgment on the administrative record. The intervenors also have cross-moved for judgment on the administrative record.

For the reasons that follow, the Court has determined that it lacks subject matter jurisdiction over CBY's challenge to the conflict-of-interest investigation, due to mootness and a lack of standing; and that the GAO's recommendation concerning the evaluation of CBY's foundation design provided a rational basis for the corrective action taken by the Corps. Thus, defendant's and intervenors' cross-motions for judgment on the administrative record are GRANTED and plaintiff's motion for judgment on the administrative record is DENIED.

A. The Solicitation

The United States Army Corps of Engineers, Hurricane Protection Office, issued Solicitation No. W912P8-09-R-0013 on April 30, 2010. Admin. R. ("AR"), Tab 3 at 90. Thesolicitation sought proposals for the construction of a system of Permanent Canal Closures and Pumps to aid in the protection of New Orleans, Louisiana from future flood damage. AR, Tab 3 at 90; AR, Tab 71 at 17447. During Hurricane Katrina, water from Lake Pontchartrain breached the outfall canals at 17th Street and London Avenue, flooding downtown New Orleans. AR, Tab 71 at 17447. Afterward, the Corps installed an interim structure of canal closures and pumps. Id. The contract at issue in this litigation is for the design and construction of a permanent replacement for the interim structures on three outfall canals into Lake Pontchartrain. Id. The primary goals of the Permanent Canal Closures and Pumps project ("Permanent Canal Project")2 included achieving a 100-year level of storm-surge risk reduction and allowing rainwater to be evacuated from the city. AR, Tab 3 at 92.

The solicitation established a two-phase source selection for a performance-based, firm-fixed price, design-build contract. AR, Tab 3 at 94; AR, Tab 4 at 776. In the first phase, offerors were evaluated based on their Experience, Technical Approach, and Past Performance, all of which were considered approximately equal in importance during Phase I. AR, Tab 3 at 100-01. On June 1, 2010, the Corps received seven timely Phase I proposals. AR, Tab 11 at 10469. Of the seven proposals received, the Corps selected the five most qualified firms to participate in Phase II. Id.; see also AR, Tab 1 at 3. The five firms selected for Phase II were CBY, Bechtel, PCCP Constructors, [Offeror A], and [Offeror B]. AR, Tab 8 at 10315; AR, Tab 11 at 10469.

1. Phase II Evaluation Criteria

On June 30, 2010, the Corps issued Amendment 4 to the solicitation, which initiated the beginning of Phase II of the procurement process. AR, Tab 4 at 252-53. After one-on-one discussions with each of the five offerors to receive feedback on the RFP requirements, the Corps then issued Amendment 5 on August 12, 2010, which laid out the Phase II requirements and evaluation criteria, and incorporated feedback from the offerors from the one-on-one sessions. AR, Tab 1 at 4; AR, Tab 4 at 709-10. The RFP laid out five main evaluation factors for Phase II. Factor 1, Technical Approach, had five subfactors: pump station operation, operation and maintenance, project execution approach, aesthetics, and adaptability. AR, Tab 4 at 759-64, 776-78. Factor 2, Management Capability, had two subfactors: design and construction management, and key personnel and organization. Id. at 764-66, 778. Factor 3 was the Socio-Economic—Small Business Participation Plan, and was to be combined with Factor 3 from Phase I, Past Performance. Id. at 767-68, 776, 778. Factor 4 was for Price, which was to be "evaluated for reasonableness" under FAR Section 15.404-1. Id. at 769, 778.

The solicitation ranked Factor 1 as the most important factor, and listed its five subfactors in descending order of importance. AR, Tab 4 at 758, 776. Within Factor 2, the two subfactors were "approximately equal in importance." Id. The small business participation plan in Factor 3 was "approximately equal in importance" to Factor 3 from Phase I, and when combined they were "less important" than Factor 2 in Phase II. Id. The non-price factors when combined were "significantly more important" than the fourth factor for price. Id.

The RFP instructed offerors to submit their proposals in four volumes. AR, Tab 4 at 757. Volume I was to contain the offeror's technical proposal; Volume II would contain the offeror's small business participation plan; Volume III would contain price information and pro forma requirements; and Volume IV was to be submitted as an attachment containing supporting documentation that would serve as an appendix to Volumes I and III. Id. at 757-71. The RFP specifically listed Volume IV as "Attachment A" and described it as "Not Evaluated." Id. at 757. When explaining the instructions for submitting Volume I, the RFP stated that offerors should provide "a narrative that summarizes their proposed technical solution," and that the drawings and technical data contained in Volume IV "can be referenced as required." Id. at 759, 760. The supporting documentation in Volume IV was to include the "design information for each PCCP and any additional information that is needed to clearly illustrate the scope and approach of their proposal." Id. at 771. The items in Volume IV would be used "as supporting documentation during the evaluation, as referenced by the proposal." Id.

The RFP identified five adjectival ratings that evaluators would use to rate Factors 1 and

2. AR, Tab 4 at 779. The possible ratings were "Excellent," "Good," "Acceptable," "Marginal,"

and "Unacceptable." Id. "Excellent" described proposals that "will clearly result in the superior attainment of all requirements and objectives"; included "numerous advantageous characteristics of substance and essentially no disadvantages"; contained solutions that are "exceptionally clear and precise, fully supported, and demonstrate a clear understanding of the requirements"; and presented a "very low" risk of unsuccessful performance. Id. "Good" was the rating for proposals that demonstrated "a sound approach which is expected to meet all requirements and objectives"; had "few relatively minor disadvantages"; were expected to result in "satisfactory performance"; demonstrated "an understanding of the requirements"; and presented a "low" risk of unsuccessful performance. Id. Proposals rated "Acceptable" must demonstrate "an approach which is capable of meeting all requirements and objectives," but contain "both advantageous and disadvantageous characteristics of substance, where the advantages are not outweighed by the disadvantages." Id. Proposals deemed...

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    ...is accordingly lost. B&B, 114 Fed. Cl. at 661. Dismissal under RCFC 12(b)(1) is thus in order. See CBY Design Builders v. United States, 105 Fed. Cl. 303, 328-29 (2012); Technical Innovation, Inc. v. United States, 93 Fed. Cl. 276, 278 (2010). For the reasons stated above, defendant's motio......
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    ...for this protest was notably large, totaling sixteen volumes and 17,538 pages worth of material. CBY Design Builders v. United States, No. 11-740, 2012 WL 1889299, *18 (Fed. Cl. May 11, 2012). Plaintiff and intervenors were each permitted to make up to six copies of protected documents. Pro......

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