Eco Tour Adventures, Inc. v. Zinke

• Decision Date: 18 April 2017
• Docket Number: Civil Action No. 14-2178 (BAH).
• Citation: 249 F.Supp.3d 360
• Court: U.S. District Court — District of Columbia
• Parties: ECO TOUR ADVENTURES, INC., Plaintiff, v. Ryan ZINKE, in his official capacity as Secretary of the Interior, et al., Defendants.

249 F.Supp.3d 360

ECO TOUR ADVENTURES, INC., Plaintiff,

v.Ryan ZINKE, in his official capacity as Secretary of the Interior, et al., Defendants.

Civil Action No. 14-2178 (BAH).

United States District Court, District of Columbia.

Signed April 18, 2017

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

Jeremy S. Simon, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Eco Tour Adventures, Inc. ("Eco Tour"), a Wyoming-based small business, seeks rescission of two concession contracts for cross-country ski touring services in Grand Teton National Park ("the disputed contracts") that were awarded to two incumbent concessioners, despite a ruling from the U.S. Court of Federal Claims ("CFC") holding that the incumbents' proposals were improperly considered by the National Park Service (the "NPS"). See Eco Tour Adventures, LLC v. United States ("Eco Tour I "), 114 Fed.Cl. 6, 40 (2013) (determining that "NPS acted arbitrarily and capriciously in concluding that [incumbent concessioners'] proposals were responsive" and, as a result, plaintiff "was prejudiced"). Despite the CFC's ruling, NPS subsequently proceeded to award the disputed contracts to the incumbents, prompting the plaintiff to initiate this lawsuit against the Secretary of the Interior, the Department of the Interior, the Director of the National Park Service, and the National Park Service (collectively, "the defendants" or "NPS"), under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500 et seq. , requesting declaratory and injunctive relief, including requiring NPS to award the contracts to plaintiff. Compl. at 27–28 (Prayer for Relief), ECF No. 1.¹ The parties have now filed cross motions for summary judgment. Pl.'s Mot. Summ. J., ("Pl.'s Mot."), ECF No. 24; Defs.' Cross–Mot. Summ. J. ("Defs.' Mot."), ECF No. 27. For the reasons outlined below, the plaintiff's motion for summary judgment is granted with respect to its request for declaratory relief finding that NPS violated the APA, but denied without prejudice in all other respects, subject to supplemental briefing consistent with this Memorandum Opinion, and NPS's cross-motion for summary judgment is denied.

I. BACKGROUND

The background to this case is described in detail in the CFC decision holding that NPS "acted arbitrarily and capriciously" and in breach of "the implied contract for bids to be fairly and honestly considered," when the agency, by its conduct, thwarted the plaintiff's "substantial chance" to receive the disputed contracts, Eco Tour I , 114 Fed.Cl. at 43, as well as this Court's Memorandum Opinion denying the defendants' motion to dismiss in this case, Eco Tour Adventures, Inc. v. Jewell ("Eco Tour II "), 174 F.Supp.3d 319 (D.D.C. 2016). This factual and procedural history as relevant to the pending motions is summarized below.

A. NPS PROSPECTUS AND EVALUATION OF PLAINTIFF'S BID AS "BEST PROPOSAL"

In December 2012, NPS issued a prospectus soliciting proposals for three ten-year concession contracts, only two of which, GRTE024–13 ("Contract 24") and GRTE032–13 ("Contract 32"), are at issue in this case,² to provide guided cross-country ski touring services in Grand Teton National Park. Admin. Record ("AR") 5–210 (Prospectus, dated December 20, 2012, issued by NPS Intermountain Region).³ The prospectus "included detailed instructions setting forth the protocol for submitting proposals and the selection factors to be used by the NPS to evaluate proposals." Eco Tour I , 114 Fed.Cl. at 14. These factors included: the offeror's commitment to "protecting, conserving, and preserving resources of the park area"; the offeror's commitment to "providing necessary and appropriate visitor services at reasonable rates"; the background and experience of the offeror; the "financial capability of the offeror to carry out its proposal"; and the offeror's "proposed minimum franchise fee." AR 43–57 (Prospectus outlining the identical selection factors for Contracts 24 and 32).

At the time of this solicitation, the services under Contract 24 were being provided by Jackson Hole Mountain Resort ("JHMR") and under Contract 32 by Hole Hiking Experience ("HHE"), both of which, as incumbent concessioners, were designated by NPS as "preferred offerors," a designation the plaintiff does not contest. AR 24 (Prospectus, noting that NPS "has determined the [ ] existing Concessioners are qualified contracts and therefore the existing Concessioners are Preferred Offerors for the new Contracts" ). Under NPS regulations, this designation allows preferred offerors a "right of preference," which allows them to match any better offer from a new bidder so long as they initially "submit a responsive proposal to th[e] Prospectus" that satisfies the minimum requirements established by the NPS. AR 24 (Prospectus, citing 36 C.F.R. § 51).

The plaintiff was founded in 2008 and provides "auto-based interpretative tours into Grand Teton and Yellowstone national parks." AR 730 (Letter, dated March 20, 2013, from Taylor Phillips, plaintiff's President, to John Wessels, Regional Director, NPS Intermountain Region). Hoping to expand its business, the plaintiff submitted bids for Contracts 24 and 32. AR 724–1093. An evaluation panel, convened from March 25, 2013 to April 5, 2013, determined that the plaintiff submitted proposals with the highest cumulative score for both contracts. AR 1272–1302 (undated Panel Evaluation Summary for Contract 24); AR 1317–1342 (undated Panel Evaluation Summary for Contract 32); see also AR 1188 (Letter, dated June 20, 2013, from Regional Director, NPS Intermountain Region to Taylor Phillips, plaintiff's President, stating "[y]our proposal has been evaluated as the best proposal for" Contract 24); AR 1189 (same for Contract 32).

For Contract 24, NPS received timely proposals from Eco Tour, JHMR, and two other offerors. AR 1277 (Panel Evaluation Summary for Contract 24 listing Eco Tour, JHMR, and two redacted names as offerors). The panel reviewed each proposal against a total of 12 primary, secondary and subsidiary selection factors, as laid out in the prospectus, and assigned a score for each factor. AR 1277. Eight of the plaintiff's twelve responses were rated "excellent" or "very good" and, of the remaining four responses, two were rated "good" and two were rated "fair." AR 1278–1302 (Panel Evaluation Summary). In contrast, JHMR's responses received no "excellent" or "very good" ratings, but only seven "good" and five "fair" ratings. Id. In fact, the plaintiff's score on each factor was higher than JHMR's score, with the exception of selection factor three, for which both received a score of 2.5. AR 1277. Based on the plaintiff's better evaluations, the plaintiff's total evaluation score for Contract 24 was 20.5 (out of a total 27), which was seven points higher than JHMR's, at 13.5. AR 1277.

For Contract 32, NPS received timely proposals from Eco Tour, HHE, and two other offerors. AR 1317 (Panel Evaluation Summary for Contract 32 listing Eco Tour, HHE, and two redacted names as offerors). Again, nine of the plaintiff's twelve responses, were rated "excellent" or "very good" and, of the remaining three responses, two were rated "good" and one was rated "fair." AR 1318–42. In contrast, HHE's responses received no "excellent" ratings, with four "very good," three "good" and five "fair" ratings. Id. Similar to the evaluation for Contract 24, the plaintiff received a higher score than the incumbent in every category, except for selection factor three, for which both received a 2.5. AR 1317. The plaintiff's total evaluation score for Contract 32, was 21.5 (out of a total 27), which was six points higher than HHE's, at 15.5. AR 1317.

The evaluation panel noted a number of deficiencies in both JHMR and HHE's proposals, largely related to the fourth primary selection factor regarding "The Financial Capability of the Offeror To Carry Out its Proposal." AR 1294 (Contract 24); AR 1334 (Contract 32). JHMR, the panel noted, failed to submit "a current balance sheet" or "a current credit report," provided incomplete or inconsistent answers "on the Initial Investment form," and failed to submit "a bank statement as requested ...." AR 1295–98. HHE, the panel noted, submitted incomplete annual financial reports, failed to provide any explanation for the balance sheet it provided, and made "numerous mistakes" on some of the required forms. AR 1337, 1339. These omissions prompted the panel to express "concern[ ] with the financial position of the Offeror [HHE]." AR 1336.

On June 20, 2013, NPS sent letters to the plaintiff, JHMR, and HHE informing the companies of the panel evaluations. The plaintiff learned that its "proposal ha[d] been evaluated as the best proposal for this opportunity; however, in accordance with 36 C.F.R. § 51.26, the preferred offeror, whom the Director has determined to be eligible to exercise a right of preference to the award of the contract, [would] have the opportunity to match the terms of [its] proposal." AR 1188 (Letter, dated June 20, 2013, from John Wessels, Regional Director, Intermountain Region to the plaintiff). The incumbent concessioners were told that "[a]lthough the panel determined your proposal to be responsive to the minimum requirements of the Prospectus, the panel did not find your proposal to be the best proposal submitted for this solicitation." AR 1190–92 (Letter, dated June 20, 2013, from NPS to JHMR); AR 1193–95 (Letter, dated June 20, 2013, from NPS to HHE). Notwithstanding the finding of the NPS Regional Director that the incumbents' proposals were "responsive to the minimum requirements of the Prospectus," AR 1190, 1193, these letters detailed "items" that each incumbent was required to "expand on ... to bring the quality of your response up to the level of the best proposal," AR 1192, 1195. JHMR, for example, was told by the Regional Director to submit a current balance sheet, credit...