Mark Dunning Industries, Inc. v. Perry
| Citation | 877 F. Supp. 1541 |
| Decision Date | 02 February 1995 |
| Docket Number | Civ. A. No. 95-D-29-S. |
| Parties | MARK DUNNING INDUSTRIES, INC., Plaintiff, v. William J. PERRY, Secretary of Defense; John H. Dalton, Secretary of the Navy; and B.J. Anderson, Contracting Officer, Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
James Hill McLemore, Montgomery, AL, for plaintiff.
Karl Dix, Jr., Atlanta, GA, for defendants.
De MENT, District Judge.
Before the court is the plaintiff Mark Dunning Industries, Inc.'s motion for a preliminary injunction filed January 20, 1995. Contemporaneously therewith, the plaintiff filed a brief and tendered evidence in support of its motion. The defendants responded in opposition on January 25, 1995, to which the plaintiff replied on January 26, 1995. The court held a hearing on January 25, 1995, at 10 a.m. in Montgomery, Alabama, said transcript of which is part of the record. After careful consideration of the arguments of counsel and the evidence and briefs submitted by the parties, the court issues the following memorandum opinion and order.
28 U.S.C. § 1331 confers subject matter jurisdiction on district courts in disputes arising under the Competition in Contracting Act, 31 U.S.C. § 3551, et seq., and the regulations promulgated thereunder. See 31 U.S.C. § 3556, which recognizes "the right of any interested party1 to file a protest with the contracting agency or to file an action in a district court of the United States or the United States Claims Court."
The plaintiff's legal standing to appeal the General Accounting Office's (hereafter "GAO") decision lies in the Administrative Procedure Act, 5 U.S.C. § 702, et seq., Section 702 provides that "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." The plaintiff, as an "unsuccessful bidder" clearly has standing to challenge GAO's procurement decision to award the contract to a third party. See Choctaw Mfg. Co., Inc. v. United States, 761 F.2d 609, 615-16 (11th Cir.1985) ().2
(1) Plaintiff Mark Dunning Industries, Inc. is a corporation organized and existing under the laws of the State of Alabama with its principal place of business in Dothan, Alabama.
(2) Defendant William J. Perry is the United States Secretary of Defense.
(3) Defendant John H. Dalton is the Secretary of the United States Navy.
(4) Defendant B.J. Anderson is the contracting officer for the United States Navy.
In this action the plaintiff challenges the United States Navy's termination of its refuse removal contract and the award of the contract to another bidder. The plaintiff requests the court to enjoin the implementation of the Navy's contract "pending the final hearing and determination of this case." Pl.'s Mot. for Preliminary Injunction at ¶ 1. This lawsuit arises out of the following undisputed facts:
(1) For fourteen years, the plaintiff has performed the trash collection and refuse removal work at the Pensacola, Florida Naval Air Station. During these fourteen years, the plaintiff has performed the work satisfactorily, without complaint by the Navy.
(2) The plaintiff's contract will expire on January 31, 1995. The Navy has extended the current contract on various occasions due to this procurement dispute. The plaintiff is willing to continue to perform its work on the same terms upon which it is currently performing. Id. at ¶ 8.
(3) Browning Ferris Industries, Inc. is a large waste company. One of its subsidiaries, BFI of Florida, Inc., performs refuse removal work in Florida. Id. at ¶ 14.
(4) The Department of the Navy issued Solicitation No. N65114-93-B-2146 for refuse removal and trash collection at the naval facility in Escambia County, Florida. Defendant B.J. Anderson was the contracting officer for this solicitation. Id. at ¶ 15.
(5) Solicitation No. N65114-93-B-2146 was an invitation for bids, wherein the bidder providing the lowest price would receive the award of the contract as long as its bid was responsive to the material requirements of the solicitation. Id. at ¶ 16.
(6) The solicitation was for a base year plus four one-year options. Various line items were included in the bid. The only line item in dispute in this action is Number 0002 entitled "REFUSE DISPOSAL FEE." Id. at ¶ 17.
(7) Line item number 0002 () required the contractors to quote a price for the "REFUSE DISPOSAL FEE" in accordance with paragraphs C.22 and C.23 of the solicitation. In the solicitation, the Navy estimated that its volume of refuse would total 14,400 tons annually. The solicitation required the bidder to include a unit price and total amount for that particular line item. Id. at ¶ 18.
(8) Paragraph C.22 provides in part: Id. at ¶ 19. Paragraph C.22 further provides as follows:
The disposal fee on this contract will be invoiced separately as indicated in paragraph G.4. The disposal fee will be paid monthly based on the total cumulative tonnage delivered to the landfill each month as shown on the landfill's certified weight tickets multiplied by the unit cost for the Refuse Disposal Fee on Line Item 0002 in the Bid Schedule. The disposal fee payment shall not exceed the actual fee charge shown on the landfill receipts or other evidence of payments to the landfill.
(9) The Economic Price Adjustment clause referred to in paragraph C.22 is printed in paragraph I.7 and states, in pertinent part, as follows:
Def.s' Ex. 1 introduced at the January 25, 1995, hearing (emphasis supplied).
(10) The sealed bids were opened on August 30, 1994. BFI of Florida4, the subsidiary of BFI, was the apparent low bidder, while the plaintiff submitted the second lowest bid. Id. at ¶ 28.
(11) BFI's bid totalled $1,060,713.00, while the plaintiff's bid amounted to $1,073,129.63 for the base period (first year). Hence, the cost differential between the bids was $12,416.63. Id. at ¶ 29.
(12) BFI based its bid upon the use of a landfill located in Alabama, the landfill of which is owned by an affiliated company of BFI. The plaintiff submitted its bid based upon the rates in effect at the Escambia County, Florida landfill.
(13) By letter dated September 1, 1994, the plaintiff filed a protest with the GAO requesting the Comptroller General5 to recommend "to the United States Department of the Navy that the plaintiff's bid be accepted and awarded the contract as the lower responsive, responsible bidder." Pl.'s Compl., Ex. 6 at 2.
(14) As a result of this protest, the Navy delayed awarding the contract pending the GAO's decision and extended Dunning's contract to January 31, 1995.
(15) As grounds for its protest, the plaintiff argued that BFI's bid of $28 per ton on line number 0002 was nonresponsive and should have been rejected for three reasons: Solicitation paragraph number C.22 required bidders to base their bids on the disposal fee in effect at the Escambia County, Florida landfill on October 1, 1994, which was $30 per ton; BIF's bid was "mathematically and materially unbalanced"; and BFI's bid of $28 per ton was clearly a mistake. Pl.'s Compl., Ex. 6 (Pl.'s Protest) attached thereto.
(16) The Comptroller General issued its decision denying the protest on December 7, 1994.
While Rule 65 of the Federal Rule of Civil Procedure does not provide specific requirements for the granting of a preliminary injunction, courts have established that the moving party generally must satisfy the following elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the preliminary injunction is not granted; (3) that the threatened injury to the movant outweighs the threatened harm that the injunction may do to the opposing party; and (4) that the preliminary relief will serve the public interest. Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154, 159 (11th Cir.1990). "The necessary `level' or `degree' of possibility will vary according to the court's assessment of the other factors." Washington Metropolitan Area Transit Com'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977).
On a motion for preliminary injunction, the plaintiff is not required to prove its case by a preponderance of evidence. Rather the plaintiff merely must offer proof of a likelihood of success on the merits. In determining the likelihood of success on the merits, the court must defer to the GAO's determination6 that BFI was in fact the low bidder, that BFI's bid complied with the terms of the solicitation, and that, however confusing the solicitation, the terms thereof did not require bidders to base their bids on the Escambia County, Florida disposal facility. The Administrative Procedure Act, 5 U.S.C.A. §§ 702-706, restricts...
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