Eco Tour Adventures, Inc. v. Jewell

• Decision Date: 30 March 2016
• Docket Number: Civil Action No. 14-2178 (BAH)
• Parties: Eco Tour Adventures, Inc., Plaintiff, v. Sally Jewell, in her official capacity as Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

174 F.Supp.3d 319

Eco Tour Adventures, Inc., Plaintiff,

v.Sally Jewell, in her official capacity as Secretary of the Interior, et al., Defendants.

Civil Action No. 14-2178 (BAH)

United States District Court, District of Columbia.

Signed March 30, 2016

Kevin R. Garden, The Garden Law Firm P.C., Alexandria, VA, for Plaintiff.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL

, Chief Judge

The plaintiff, Eco Tour Adventures, Inc. (“Eco Tour”), is a Wyoming-based small business that challenges, for the second time, the award by the National Park Service (“NPS”) of two concession contracts to provide cross-country ski touring services in Grand Teton National Park (“the disputed contracts”). In its original challenge, which resulted in a judgment on the merits by the U.S. Court of Federal Claims (“CFC”), Eco Tour Adventures, LLC v. United States (“Eco Tour I ”), 114 Fed.Cl. 6 (2013)

, Eco Tour was awarded $36,250 in monetary damages representing reimbursement of the costs it incurred in submitting its bid for the disputed contracts, Judgment, Eco Tour I , No. 13–cv–532–LJB (Fed.Cl. April 17, 2014), ECF No. 60.¹ After these contracts were subsequently awarded to its competitors, Eco Tour now seeks, under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq. , declaratory and injunctive relief rescinding the awarded contracts and requiring the NPS to award the contracts instead to Eco Tour, Compl. at 27–28 (“Prayer for Relief”), ECF No. 1. Pending before the Court is the defendants' motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.' Mot. Dismiss Compl. (“Defs.' Mot.”), ECF No. 12. For the reasons outlined below, the defendants' motion is denied.

I. BACKGROUND

The factual background underlying the plaintiff's present challenge is described in detail in the decision issued by the CFC resolving Eco Tour's earlier claim arising out of its unsuccessful bids to obtain the disputed contracts. Eco Tour I , 114 Fed.Cl. at 12–18

. Consequently, the relevant factual and procedural history underlying the pending motion is summarized only briefly below.

As an element of its responsibility over the nation's national parks, the NPS is authorized to “grant privileges, leases, and permits for the use of land for the accommodation of visitors in the various parks, monuments, or other reservations.” Id. at 12

(citing Act of Aug. 25, 1916, ch. 408, Pub. L. No. 64–235, § 3, 39 Stat. 535, 535; Circle Line–Statue of Liberty Ferry, Inc. v. United States, 76 Fed.Cl. 490, 491 (2007) ). Pursuant to this authority, in December 2012, the NPS issued a prospectus soliciting proposals for three ten-year concession contracts to provide guided cross-country ski touring services in Grand Teton National Park. Id. ¶¶ 20–21. At the time of this solicitation, these services were being provided by three incumbent concessioners, each of which the NPS designated as a “preferred offeror,” which designation the plaintiff does not contest. Eco Tour I , 114 Fed.Cl. at 14. Under applicable NPS regulations, this designation allowed these companies to exercise a “right of preference” allowing them to match any better offer from a new bidder so long as they submitted a “responsive proposal ... which satisfied the minimum requirements established by the [NPS].” Eco Tour I , 114 Fed.Cl. at 12–13.

Eco Tour has provided guided tours in Grand Teton since 2008, Compl. ¶ 17, and submitted proposals for two of these concession contracts, Eco Tour I , 114 Fed.Cl. at 16

. An evaluation panel determined that Eco Tour submitted the best proposal for both contracts, but found that the incumbent concessioners each submitted proposals “responsive to the minimum requirements of the [p]rospectus,” and afforded these contractors an opportunity to match certain terms of Eco Tour's proposals deemed to be “elements of a better offer.” Id. The incumbents thereafter timely exercised their right of preference on June 20, 2013, by agreeing to match the terms of Eco Tour's proposals and supplement their initial proposals with additional financial information missing from their original submissions. Id. at 18. On September 4, 2013, the NPS determined that the disputed contracts should be awarded to the incumbent concessioners. Id.

In the interim, Eco Tour filed its initial bid protest in the CFC on August 1, 2013. Id.

Contending that the incumbent concessioners' failure to include financial information required by the prospectus rendered their proposals unresponsive, Eco Tour claimed that the NPS acted arbitrarily and capriciously, and breached its implied contractual obligation to consider bids fairly and honestly, by allowing the incumbents to match the terms proposed in the Eco Tour bids. Id. at 23. In addition to injunctive and declaratory relief, Eco Tour sought reimbursement for the costs it incurred in preparing its bids for the disputed contracts, as well as attorneys' fees and litigation costs. Id. at 19.² The court agreed with Eco Tour, and held that the NPS acted arbitrarily and capriciously in concluding that the financial information excluded from the incumbent concessioners' proposals was immaterial to the agency's selection of the strongest bids. Id. at 42. Since these proposals were, therefore, not responsive to the requirements of the prospectus, the CFC further held that the NPS breached its duty to fairly and honestly consider the plaintiff's bids by improperly allowing the incumbents to match the terms proposed by Eco Tour. Id. at 42–43.

While finding that Eco Tour's bids were unfairly considered, the CFC concluded that the equitable and declaratory relief Eco Tour requested could not be awarded since the court lacked jurisdiction to provide such relief. Id. at 21, 42

. In particular, because the disputed concessions contracts were not “procurement contracts” for purposes of the Tucker Act, 28 U.S.C. § 1491, id. at 21, the court held that Eco Tour was entitled to recover only the costs the company incurred in preparing and submitting its bids for the disputed contracts, id. at 42–43. Since the exact amount of such costs was undetermined, the court directed the parties to confer “to determine how they wish[ed] to proceed with respect to determining the amount of bid preparation costs Eco Tour is entitled to receive in light of the court's resolution of [Eco Tour's] protest.” Id. at 43.

Unable to come to a resolution regarding the precise amount of preparation costs owed to the plaintiff, the parties requested, and the court granted, an opportunity to brief the issue. See Scheduling Order, Eco Tour I , No. 13–cv–532–LJB (Fed.Cl. Feb. 10, 2014), ECF No. 53. Thereafter, however, the parties jointly agreed and stipulated that Eco Tour should be awarded $36,250 in preparation costs stemming from its unsuccessful bids for the disputed contracts and requested entry of judgment to that effect. Joint Stipulation Re: Money Damages Owed Under December 12, 2013 Opinion & Order & Joint Request For Entry of Judgment, Eco Tour I , No. 13–cv–532–LJB (Fed.Cl. April 15, 2014), ECF No. 58. The court granted this joint request and entered judgment in favor of Eco Tour, awarding $36,250 in bid preparation costs, on April 17, 2014. Judgment, Eco Tour I , No. 13–cv–532–LJB (Fed.Cl. April 17, 2014). Following entry of judgment on Eco Tour's claim, the NPS awarded the disputed contracts to the incumbent concessioners on July 16, 2014. Compl. ¶ 96.

Approximately six months later, the plaintiff filed the instant action on December 22, 2014. Reasserting its claim that the NPS violated applicable statutes and regulations in awarding the disputed contracts to the incumbent concessioners, Eco Tour contends that the “illegality of NPS's conduct has already been determined by the [CFC]” and the NPS was therefore “required by law to reject [the incumbent concessioners'] proposals ... [and] award the contracts to Eco Tour because NPS had evaluated Eco Tour's proposal as the best among all proposals received.” Compl. ¶ 1. According to Eco Tour, following resolution of its claim in the CFC, the NPS took advantage of that court's “lack of authority to provide full relief” to the plaintiff and “proceeded to award the two [concession] contracts to its long-time incumbent contractors in violation of the law.” Id. ¶ 2.

Recognizing its inability to bar the award of the disputed contracts to the incumbent concessioners in the CFC, the plaintiff brought the present action in this Court, under the APA, seeking injunctive and declaratory relief. Id. ¶¶ 3, 6. Specifically, Eco Tour seeks “an order ... declaring that the two contracts awarded to NPS's longtime incumbent contractors are illegal and thus void[, as well as] an injunction requiring the defendants to ... award the two contracts to Eco Tour for their full 10-year terms, beginning in the 2015/2016 winter season.” Id. ¶ 4. The defendants have now moved to dismiss the plaintiff's Complaint in its entirety for lack of standing, pursuant to Federal Rule of Civil Procedure 12(b)(1)

, and, alternatively, for failing to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defs.' Mot.

II. LEGAL STANDARD

A. Dismissal for Lack of Standing Under Federal Rule of Civil Procedure 12(b)(1)

In evaluating a motion to dismiss for lack of subject matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1)

, federal courts must be mindful that they “are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, –––U.S. ––––, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (internal quotation marks omitted) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ). Indeed, federal courts are “forbidden ... from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C.Cir.2008), and, therefore, “have an...