Metro. Van & Storage, Inc. v. United States
| Decision Date | 06 October 2011 |
| Docket Number | No. 09-473C,09-473C |
| Parties | METROPOLITAN VAN AND STORAGE, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Equal Access to Justice Act, 28 U.S.C. § 2412; Substantial Justification; Attorneys' Fees; Costs; Expenses.
Joseph G. Billings, Miles & Stockbridge P.C., Baltimore, Md., for the plaintiff. With him were Nathan D. Hartland and Rita J. Piel, Miles & Stockbridge P.C., of counsel.
Christopher L. Krafchek, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for the defendant. With him were Jeanne E. Davidson, Director, Commercial Litigation Branch, and Tony West, Assistant Attorney General, Civil Division.
Plaintiff Metropolitan Van and Storage, Inc. (Metropolitan) filed an application for costs pursuant to Rule 54(d) of the Rules of the United States Court of Federal Claims (RCFC) (2011) and for attorneys' fees and other expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C.A. § 2412 (West 2011).1 In Metropolitan Van and Storage, Inc. v. United States, 92 Fed. Cl. 232 (2010), this court issued an opinion on the merits of plaintiff's bid protest case and vacated the award of a contract to Guardian Moving and Storage Co. (Guardian).
The facts of the case were fully presented in the court's earlier opinion, Metropolitan Van and Storage, Inc. v. United States, 92 Fed. Cl. 232, and are incorporated into this opinion. Certain facts most relevant to the plaintiff's EAJA application are repeated below, together with additional facts pertinent to this opinion. On May 9, 2008, the Military Surface Deployment and Distribution Command (SDDC) issued Request for Proposal (RFP) W81GYE-08-R-0006 (the solicitation) for the storage and management of household goods and unaccompanied baggage for the Department of Defense on the West Coast of the United States (the West Coast Contract). The West Coast Contract was to be awarded as an indefinite delivery/indefinite quantity contract for one base year, with the possibility of six option years and a single thirty month transition option, totaling nine and one-half years. The Performance Work Statement associated with the solicitation described SDDC's requirements for the storage and management of household goods and unaccompanied baggage. The evaluation factors in the solicitation were: Cost/Price, Technical and Past Performance, with the award to be "made to the responsible low priced technically acceptable offeror with acceptable past performance." The Technical Evaluation factor had five sub-factors: (1) verification from a qualified engineer or authority that the facility does not fall within a 100-year flood plain; (2) certificate of warehouseman's legal liability insurance; (3) proof of a fire system maintenance contract; (4) evidence of maintaining a primary and secondary locator system that shows identification of lots stored; and (5) proof of ownership, lease or written commitment for sufficient warehouse space.
SDDC initially received five proposals in response to the solicitation, and subsequently made the award for the West Coast Contract to Guardian on August 14, 2008, with contract performance to commence on October 1, 2008. On August 26, 2008, after receiving a debriefing from SDDC, Metropolitan filed its initial protest at the Government Accountability Office (GAO), arguing that when SDDC reviewed Guardian's past performance, SDDC should have given Guardian a "fail" rating when in fact, SDDC gave Guardian's past performance a "pass" rating. Metropolitan also argued that SDDC unreasonably evaluated Guardian's proposal because Guardian's price was unbalanced, unrealistically low, and Guardian's proposal failed to conform to material requirements of the solicitation.
On October 6, 2008, Metropolitan filed its second protest at the GAO, alleging that Guardian's written commitment for a lease was not binding, but expired three days after submission of proposals, and was for less space than required to store up to the 15 million pounds of goods that could potentially be required during the term of the contract, including options.
On December 2, 2008, an outcome prediction conference was held by GAO, during which GAO indicated that plaintiff's first and second protests likely would be denied on all grounds, except for Metropolitan's claim that Guardian's warehouse space commitment was not binding. GAO proposed two alternative corrective actions: either(1) terminate Guardian's initial West Coast Contract and evaluate the next lowest priced offeror for responsibility and technical acceptability, and, if acceptable, award the contract to the next lowest priced, technically acceptable offeror, with acceptable past performance; or (2) review the requirements under the Technical Evaluation sub-factor 5, proof of ownership, lease or written commitment for sufficient warehouse space, and, based on a reasonable modification, amend and clarify the solicitation and solicit revised proposals from the offerors.
On December 5, 2008, GAO dismissed Metropolitan's first and second protests because SDDC agreed to take corrective action, which would render the protests moot. On December 9, 2008, SDDC terminated Guardian's contract for the convenience of the government, and extended the performance period of the incumbent contractor's (Metropolitan's) contract for the storage and management of household goods and unaccompanied baggage. On December 17, 2008, SDDC issued Amendment 0006 to the solicitation, which altered Technical Evaluation sub-factor 5 from "proof of ownership, lease or written commitment for sufficient warehouse space," to SDDC allowed all the earlier offerors to revise their proposals.
On December 22, 2008, Metropolitan filed a third protest at the GAO, which challenged the corrective action SDDC had taken in response to Metropolitan's first and second GAO protests, alleging that Amendment 0006 to the solicitation did not substantially alter or clarify the warehouse space binding commitment requirement. GAO denied Metropolitan's third protest on March 24, 2009, concluding that the corrective action taken by SDDC had addressed the impropriety identified by the GAO. On March 27, 2009, Metropolitan filed its fourth GAO protest, requesting reconsideration of the GAO decision on the third protest. The fourth GAO protest ultimately was dismissed before a decision was issued, after plaintiff's action was filed in this court.
All four offerors who had submitted initial proposals submitted revised proposals. After evaluation, SDDC again awarded the West Coast Contract to Guardian on March 27, 2009, and on the same day, notified Metropolitan once again, that it had not received the award. On April 9, 2009, Metropolitan filed its fifth protest at the GAO, challenging SDDC's second award to Guardian and alleging that SDDC had evaluated Guardian's proposal as improperly having acceptable past performance, that SDDC had failed to perform a price realism analysis and, therefore, had failed to reveal Guardian's unbalanced pricing, and that Guardian's proposed warehouse space did not provide sufficient warehouse space to meet the requirements in the solicitation. On April 29, 2009, the GAO dismissed the fifth protest on the grounds that Metropolitan failed to state a legally sufficient basis for a protest, but indicated that because SDDC had not yet furnished Metropolitan with sufficient information, once Metropolitan obtained more information, it could file another protest.
On May 18, 2009, Metropolitan filed its sixth protest at the GAO, renewing its allegations that SDDC had improperly evaluated Guardian's past performance because SDDC knew Guardian had failed to comply with the material requirements of another storage contract for SDDC in Hampton, Virginia, regarding which Guardian, nevertheless, was given a favorable past performance review. On June 19, 2009, Metropolitan filed a seventh protest at GAO, alleging Guardian's technical proposal did not meet the requirements of three of the Technical Evaluation sub-factors. Metropolitan subsequently filed a bid protest complaint in the United States Court of Federal Claims on July 22, 2009. The GAO dismissed Metropolitan's pending fourth, sixth, and seventh protests when Metropolitan informed the GAO it had filed a bid protest in this court. Cross-motions for judgment on the Administrative Record were filed by all parties, including by the defendant-intervenor Guardian.
The plaintiff's complaint in this court included three counts. In Count I, Metropolitan alleged SDDC had not evaluated Guardian's initial proposal or revised proposal in accordance with the evaluation criteria in the RFP. Metropolitan also alleged that Guardian had submitted unacceptable price and technical proposals and that Guardian's proposal should not have received a "pass" rating on past performance. In Count II, Metropolitan alleged that SDDC acted arbitrarily and capriciously when it took corrective action, allowing Guardian another opportunity to submit a proposal regarding its commitment for warehouse space. In Count III, Metropolitan alleged that by acting arbitrarily and capriciously SDDC breached its implied-in-fact contract to treat plaintiff's proposals fairly and honestly by awarding the contract to Guardian twice.
On March 30, 2010, the court granted in part Metropolitan's motion for judgment on the Administrative Record and denied the government's and Guardian's cross-motions for judgment on the Administrative Record. The court vacated the award to Guardian under the second West Coast Contract. In its opinion, this court denied as moot the plaintiff's claims regarding the initial award pursuant to Count I because the "interim...
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