Focus Revision Partners v. United States
| Decision Date | 12 September 2022 |
| Docket Number | 22-657C |
| Court | U.S. Claims Court |
| Parties | FOCUS REVISION PARTNERS, Plaintiff, v. THE UNITED STATES, Defendant, and NWI&T ATKINS SB JV, LLC, Defendant-Intervenor. |
Matthew T. Schoonover, Schoonover & Moriarty LLC, Olathe KS, for Plaintiff. Of counsel were Matthew P. Moriarty, John M. Mattox II, and Ian P. Patterson.
Matthew P. Roche, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington D.C., for Defendant. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Steven J. Gillingham, Assistant Director.
Joshua A. Mullen, Womble Bond Dickinson (US) LLP, Washington, D.C., for Defendant-Intervenor. Of counsel was Julius Bodie.
The law is full of arcane procedural technicalities, to the point where an observer - whether trained in the law or not - might reasonably ask whether a particular legally correct outcome is fair or just.[1] For example, if a plaintiff files suit in this Court for breach of contract just one second after an applicable statute of limitations has run, this Court is duty-bound to dismiss the complaint even where the government may otherwise admit to owing damages and notwithstanding the harsh result.[2] Not all technical or procedural deficiencies, however, are fatal; some filing defects, for example, may be remedied even as late as after trial.
In this case, Plaintiff, Focus Revision Partners ("FRP"), unquestionably made an error in its size protest and appeal before the Small Business Administration ("SBA"), and the question before this Court is whether Defendant, the United States - acting by and through the SBA - improperly denied FRP's request to remedy its mistake. The short answer is that the SBA improperly transformed a mere clerical error into a fatal jurisdictional defect. For this Court to rule otherwise would improperly sanctify form over substance. It's one thing to do that where the law mandates it or where permitting a procedural fix would prejudice another party, but neither is the case here and, thus, this Court grants FRP's motion for judgment on the administrative record.
On March 15, 2021, the Federal Emergency Management Agency ("FEMA") issued a pre-solicitation notice (the "Notice") for Solicitation No. 70FA6021R00000002 (the "Solicitation"), pursuant to Federal Acquisition Regulation ("FAR")[4] 36.6, seeking architect and engineering services to support the Federal Insurance and Mitigation Administration's Risk Mapping, Assessment, and Planning program. AR 2165, 2167. The Notice informed potential offerors that FEMA intended to issue a single-award contract with a performance period covering a twelve-month base period and four one-year option periods. AR 1609 (Solicitation Synopsis). The procurement is a small business set- aside issued under North American Industry Classification System code 541330, with a size standard of $16.5 million. AR 1609.
The Notice indicated that FEMA planned to evaluate offers in two phases. AR 1610, 1617. In phase one, offerors had to submit Standard Form ("SF") 330.[5] AR 1610- 15. After reviewing those submissions, FEMA would "conduct discussions with at least three firms considered most highly qualified to perform the required work." AR 1615. In phase two, the contracting officer would "issue [the] [S]olicitation and commence cost/price negotiations . . . beginning with the most preferred firm as determined by the Source Selection Authority." AR 1617. Thereafter, FEMA would make an award "to the most qualified, responsible [o]fferor with fair and reasonable cost/pricing." AR 1609. Proposals for phase one were due on April 14, 2021. AR 1610. FRP and Defendant-Intervenor, NWI&T Atkins SB JV, LLC ("NWI&T"), submitted timely proposals for phase one. AR 4 (FEMA Referral Letter to SBA) (identifying FRP and NWI&T as "offerors"); AR 300 (Pre-Award Notice) (notifying FRP that it was not the "successful offeror" and that FEMA "will not consider subsequent revisions of [FRP]'s proposal").
On June 25, 2021, FEMA issued a request for proposal to NWI&T. AR 2064 (FEMA Email to SBA dated Oct. 14, 2021). On July 13, 2021, NWI&T submitted its phase two proposal. AR 2064. On September 15, 2021, FEMA notified FRP that NWI&T was selected as the apparent awardee. AR 300.
On September 17, 2021, pursuant to 13 C.F.R. §§ 121.1001, 121.1003-121.005, 121.1007, and FAR 19.302, FRP filed a size protest with the cognizant contracting officer at FEMA challenging NWI&T's status as a small business. FEMA promptly referred FRP's protest to the relevant SBA area office. AR 4-5 (FEMA Referral Letter to SBA). The size protest, however, contained a clerical error: it incorrectly indicated that "Focus Revision Partners JV, LLC" was the protestor. See, e.g., AR 6 (FRP Size Protest). Despite this clerical error, the cognizant contracting officer correctly understood that the protestor was FRP, one of the "unsuccessful offerors" in the procurement. See AR 4 ; AR 2 (FEMA Email to SBA dated Sept. 17, 2021) (same); AR 5 ("Size Protest from Focus Revision Partners, dated September 17, 2021" (emphasis added)).
FRP alleged in its size protest that NWI&T, a joint venture, does not qualify as a small business because the joint venture is "non-compliant" with SBA's mentor-protégé regulations and because NWI&T does not possess a valid mentor-protégé agreement. AR 6-22. On September 20, 2021, the SBA area office notified NWI&T of the size protest. AR 912-14 (SBA Notice of Protest to NWI&T). Neither the SBA nor NWI&T questioned FRP's status as an offeror in the procurement; nor did NWI&T seek to dismiss the size protest. On October 20, 2021, the SBA denied the size protest, concluding that NWI&T is a small business in accordance with the procurement's size standard. AR 2074-95 (SBA Size Determination).
On November 4, 2021, FRP, again using the name "Focus Revision Partners JV, LLC," filed a size appeal with the SBA's Office of Hearings and Appeals ("OHA"), seeking to reverse the results of the unsuccessful size protest. AR 2099-116 (FRP OHA Size Appeal).
On March 24, 2022, NWI&T filed a motion to dismiss, asserting that "Focus Revision Partners JV, LLC," lacks standing to file a size appeal because "Focus Revision Partners JV, LLC . . . is not an eligible offeror for this procurement and apparently did not submit a proposal for this procurement," and, thus, the "size appeal has been filed by an entity that is not adversely affected by [the] Size Determination," in accordance with 13 C.F.R. § 134.302(a). AR 2391 (NWI&T OHA Motion to Dismiss).
On April 1, 2022, FRP filed its response to the motion to dismiss, as well as a motion to amend its pleadings to correctly identify itself, the appellant, as "Focus Revision Partners." AR 2451-62 (FRP OHA Motion to Amend). FRP argued that it was the real party-in-interest, and that OHA should simply amend the caption of the case to reflect the correct name of the offeror entity, FRP. AR 2452-53 ().
On May 11, 2022, OHA granted NWI&T's motion to dismiss and denied FRP's motion to amend. AR 2582-88 (OHA Dismissal Order); Focus Revision Partners JV LLC, SBA No. SIZ-6152, 2022 WL 1641424 (May 11, 2022). Specifically, OHA held: (1) because Focus Revision Partners JV, LLC "simply does not exist," it "plainly lacks standing to protest or to appeal," AR 2586; and (2) because Focus Revision Partners JV, LLC "lacked standing to have filed the initial appeal, Appellant also lacks standing to later amend that appeal," AR 2587. OHA further reasoned that even if its regulations permitted "substitut[ion] [of] the name of a different entity as the real party in interest for appeal purposes," fixing the OHA caption would not help because it would not "retroactive[ly]" cure the initial size protest, which also had employed the wrong name. AR 2588.
On June 15, 2022, FRP filed its complaint against the United States in this Court. ECF No. 1 ("Compl."). That same day, NWI&T filed an unopposed motion to intervene, ECF No. 8, which the Court granted. On July 7, 2022, the government filed the administrative record in this matter. See ECF No. 18.
FRP's complaint alleges that: (1) "OHA's failure to amend the size appeal violated its regulations" (Count I); (2) "OHA's failure to amend the size appeal was arbitrary and capricious" (Count II); and (3) "NWI&T . . . is ineligible for award under the Solicitation" (Count III). Compl. ¶¶ 26-63. FRP requests that this Court "either remand this matter back to . . . OHA to issue a final decision on NWI&T['s] . . . small business eligibility" or that this Court should "itself find NWI&T . . . to be an ineligible small business under the Solicitation." Id. ¶ 64.
On July 18, 2022, FRP filed a motion for judgment on the administrative record, pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims ("RCFC"). On July 29, 2022, the government and NWI&T (collectively "Defendants") filed cross-motions for judgment on the administrative record. See ECF No. 21 ("Def. MJAR"); ECF No. 20 ( ). On August 5, 2022, FRP filed its reply brief. ECF No. 23 ("Pl....
To continue reading
Request your trial