Jordan Pond Co. v. United States

Decision Date08 April 2014
Docket NumberNo. 13-913 C,13-913 C
PartiesJORDAN POND COMPANY, LLC, Plaintiff, v. THE UNITED STATES, Defendant, DAWNLAND, LLC, Intervenor-Defendant.
CourtU.S. Claims Court

Bid Protest; Concession

Contract; 28 U.S.C. § 1491(a)

(2012); Whether the Terms of

a Draft Contract Invalidate the

Agency's Evaluation of the

Awardee's Proposal.

Kevin R. Garden, Alexandria, VA, for plaintiff.

Barbara E. Thomas, United States Department of Justice, with whom were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, Reginald T. Blades, Jr., Assistant Director, Washington, DC, for defendant. Melissa Lackey, U.S. Department of the Interior Office of the Solicitor, Washington, DC, of counsel.

Neil H. O'Donnell, San Francisco, CA, for intervenor-defendant. Jeffery M. Chiow and Lauren B. Kramer, San Francisco, CA, of counsel.

OPINION AND ORDER

Bush, Senior Judge.

Now pending before the court are the parties' cross-motions for judgment on the administrative record. Plaintiff Jordan Pond Company, LLC (Jordan Pond) filed a pre-award bid protest complaint on November 20, 2013. In this protest, Jordan Pond challenges a proposed contract award by the National Park Service of the United States Department of the Interior (Park Service or NPS) to Dawnland, LLC (Dawnland). At issue is a ten-year concession contract to provide various concession services at Acadia National Park (Acadia) on the Maine coast. Dawnland has intervened in this suit.

The administrative record (AR) was filed on December 9, 2013, amended on January 8, 2014 and supplemented on January 14, 2014. Briefing was filed according to an expedited schedule and oral argument was held on February 18, 2014. As discussed below, the proposed award decision was neither arbitrary nor capricious; furthermore, the record does not show that the Park Service abused its discretion in crafting a proposed contract with Dawnland. Accordingly, plaintiff's motion for judgment on the administrative record is denied, and defendant's and intervenor-defendant's motions for judgment on the administrative record are granted.

BACKGROUND
I. Issuance of the Prospectus

The visitor services at Acadia at issue in this competition include a restaurant and shop at Jordan Pond House, a shop on Cadillac Mountain andanother shop at Thunder Hole. Jordan Pond has been the concessioner at Acadia since 1932.2 AR at 1201. Jordan Pond's last ten-year concession contract at Acadia was due to expire December 31, 2012. Id. at 1. On July 19, 2012, the Park Service issued a prospectus seeking offers for the next ten-year contract at Acadia. Id. Tab 3. The prospectus also contained a template concession contract for Acadia (hereinafter, Baseline Contract) for the consideration of offerors. Id. at 151-246. Jordan Pond's incumbent contract was eventually extended through 2013. Id. at 109.

II. Evaluation Factors and Scoring Scheme

The prospectus adopts the standard selection factors set forth in 36 C.F.R. § 51.17 and the standard scoring scheme for these factors set forth in 36 C.F.R. § 51.16.3 AR at 125-26. The selection factors and scoring scheme are set forth in this manner in the prospectus:

For each selection factor, the Service will assign a score that reflects the determined merits of the proposal under the applicable selection factor and in comparison to the other proposals received, if any. The Service will give equal weight to each subfactor under a given selection factor unless otherwise expressly stated.
Principal Selection Factor 1 (scored from zero to five). The responsiveness of the proposal to the objectives, as described in the Prospectus, of protecting, conserving, and preserving resources of the park area;
Principal Selection Factor 2 (scored from zero to five). The responsiveness of the proposal to the objectives, as described in the Prospectus, of providing necessary and appropriate visitor services at reasonable rates;Principal Selection Factor 3 (scored from zero to five). The experience and related background of the Offeror, including the past performance and expertise of the Offeror in providing the same or similar visitor services as those to be provided under the new concession contract;
Principal Selection Factor 4 (scored from zero to five). The financial capability of the Offeror to carry out its proposal;
Principal Selection Factor 5 (scored from zero to four, with a score of one for agreeing to the minimum franchise fee contained in the prospectus). The amount of the proposed minimum franchise fee, if any, and/or other forms of financial consideration to the Service. Consideration of revenue to the United States will be subordinate to the objectives of protecting, conserving, and preserving resources of the park area and of providing necessary and appropriate visitor services to the public at reasonable rates;
Secondary Selection Factor 1 (scored from zero to three). The quality of the Offeror's proposal to conduct its operations in a manner that furthers the protection, conservation, and preservation of the park area and other resources through environmental management programs and activities, including, without limitation, energy conservation, waste reduction, and recycling;
Secondary Selection Factor 2 (scored from zero to two). Providing suitable living environments for concessioner personnel.
The Service then will assign a cumulative point score to each proposal based on the assigned score for each selection factor. The Service will select the responsiveproposal with the highest cumulative point score as the best proposal.

Id. (reformatted and condensed, with emphasis added). Although some variation is possible, the mid-point of a point scale for a factor might be considered to be an "adequate" score for that particular factor. See id. at 1636. Based on this scoring scheme, the highest possible cumulative score for a proposal would be twenty-nine points.

Within the evaluation factors were various subfactors, which, as noted above, were equally important within that selection factor. The following summary provides an outline of factors and subfactors to be considered in the evaluation of proposals:

Principal Selection Factor 1 (protecting, conserving, and preserving resources of the park area) --
Subfactor 1(a): Resource Education for Visitors and Employees
Subfactor 1(b): Vehicle Management
Principal Selection Factor 2 (providing necessary and appropriate visitor services at reasonable rates) --
Subfactor 2(a): Retail Operations
Subfactor 2(b): Healthy and Sustainable Food
Subfactor 2(c): Tribal Relationships
Principal Selection Factor 3 (past performance and expertise of the Offeror in providing the same or similar visitor services) --
Subfactor 3(a): Iconic Food Service Dining Experience
Subfactor 3(b): Violations or Infractions
Principal Selection Factor 4 (financial capability of the Offeror) --
Subfactor 4(a): Credible, proven track record of meeting financial obligationsSubfactor 4(b): Financially viable proposal and understanding of the financial obligations of the [Baseline] Contract
Subfactor 4(c): Ability to obtain the required funds for start-up costs under the [Baseline] Contract and explanation of the financial arrangements proposed
Principal Selection Factor 5 (amount of the proposed minimum franchise fee) --
No Subfactors
Secondary Selection Factor 1 (environmental management programs) --
Subfactor 1(a): Sustainable Practices
Subfactor 1(b): Local, Regional and Other Sustainable Food Sources
Secondary Selection Factor 2 (suitable living environments for concessioner personnel) --
No Subfactors

See AR at 135-50 (reformatted and summarized, with emphasis added). The prospectus also identifies, within the description of the selection factors and subfactors, the objectives of the Park Service in these areas. Id.

III. Proposals Received

[ ] proposals were received by the due date of November 20, 2012, but only [ ] proposals scored high enough in the evaluation process to be relevant to this bid protest.4 Jordan Pond identified itself as "a local organization with many years of experience." AR at 1201. Dawnland identified itself as "[ ]." Id. at 830. [ ] noted its "[ ]." Id. at 1924.

IV. Evaluation of Proposals

An evaluation team (evaluation panel or panel) was assembled by the Park Service and met in Philadelphia from December 3 through December 7, 2012. AR at 1721. The report of the evaluation panel was finalized on December 28, 2012, and was approved by NPS regional and national directors on May 9, 2013 and July 12, 2013. Id. Tabs 10-12. Offerors were notified of the award decision on September 28, 2013. Id. Tabs 13-16. Dawnland's proposal was selected for award, with [ ] points; [ ]'s proposal was second, with [ ] points; and Jordan Pond's proposal was third, with [ ] points. Id. at 1721.

V. Procedural History

Jordan Pond challenges the proposed concession contract award to Dawnland in this bid protest. The complaint was amended by leave of the court on January 9, 2014. One of the principal contentions in the amended complaint is that the draft proposed contract with Dawnland (hereinafter, Draft Contract) omits many elements of Dawnland's proposal "upon which its [winning] scoring was based."5 Am. Compl. ¶ 61. The complaint also alleges that numerous evaluation errors invalidate the Park Service's award decision. The court reserves further discussion of plaintiff's arguments for the analysis section of this opinion.

DISCUSSION
I. Jurisdiction

Jurisdiction over this concession contract bid protest is provided by 28 U.S.C. § 1491(a) (2012). Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6, 18-21 (2013). As this court held in Eco Tour, concession contracts are not procurements so as to permit concession contract pre-award or post-award protests under this court's 28 U.S.C. § 1491(b) (2012) jurisdiction. See id. at 20. For the jurisdictional analysis in Eco Tour, the court relied on numerous decisions, including: Resource Conservation Group, LLC v. United States, 597 F.3d 1238,...

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