Potomac Constr. Co. v. Wash. Metro. Area Transit Auth.
| Decision Date | 16 April 2021 |
| Docket Number | Civil Case No.: GLS-21-193 |
| Parties | POTOMAC CONSTRUCTION COMPANY, INC., Plaintiff, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant. |
| Court | U.S. District Court — District of Maryland |
Potomac Construction Company, Inc. ("Potomac" or "Plaintiff") has brought a declaratory judgment and injunctive relief action against the Washington Metropolitan Area Transit Authority ("Defendant," "WMATA," or "the Authority"). Plaintiff claims that Defendant violated the law and its own procurement regulations by failing to award it a contract to repave Metro station surface parking lots.
Pending before the Court is a "Motion to Dismiss the Complaint" (ECF No. 17) ("Motion to Dismiss") filed by Defendant. Plaintiff has filed an opposition to the Motion to Dismiss, and Defendant replied. (ECF Nos. 22-23).
As a preliminary matter, this Court finds that even though a preliminary injunction motion has been filed, no hearing is necessary given the procedural posture of this case; namely, a fully-briefed motion to dismiss that raises subject matter jurisdiction issues under Federal Rule of Civil Procedure 12(b)(1), and not factual issues that necessitate a hearing.1 See Fundamental Admin.Servs., LLC v. Anderson, Civ. No. JKB 13-1708, 2015 WL 2340831, at *1 (D. Md. May 13, 2015) (); see also 11A Charles Allen Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2949 (3d ed. 2019) (). Thus, the issues raised by the Motion to Dismiss have been fully briefed and no hearing is necessary. See Local Rule (L.R.) 105.6 (D. Md. 2018). For the reasons set forth more fully herein, the Court will grant Defendant's Motion to Dismiss for lack of subject matter jurisdiction.
Potomac, a Minority-Owned small business, is a Virginia limited liability company. Plaintiff has a Class A General Contractor license, and allegedly has performed construction contracts for WMATA for over twenty years. (ECF No. 1, ¶ 12). WMATA "is an interstate instrumentality of Maryland, the District of Columbia, and the Commonwealth of Virginia, created by the WMATA Compact." (Id., ¶ 13). WMATA operates the Metrorail and Metrobus system that transports passengers in and between the District of Columbia, Maryland, and Virginia. (Id.).
On July 17, 2020, WMATA made public an invitation for bid ("IFB") for a project ("Repaving Contract") to resurface parking garages at five Metro facilities. All bids were ultimately due by September 2, 2020, by no later than 2:00 p.m. local time. (Id., ¶¶ 19, 22).
The IFB called for the submission of bids in electronic format; initially, via email to a certain address ("PRMTPolicy@wmata.com") and a later amendment to the IFB instructed bids to be uploaded to a WMATA webpage ("supplier.wmata.com"), "but continued to reference 'email' as an acceptable means of electronic bid submission." (Id., ¶¶ 22-23, 27-29). The IFB further required bids to be addressed to the Contract Administrator, with a copy emailed to "PRMTPolicy@wmata.com" and also uploaded to the web server, "supplier.wmata.com." The amended IFB referenced electronic bid submissions to "supplier.wmata.com," but also "continued to reference email as an acceptable means for submitting electronic bids," including a scenario where a bidder wanted to change an offer already submitted. (Id., ¶¶ 24-28).
The amended IFB also specified that bid files were not to be in excess of 20 MB when emailed, and that files larger than this size would be rejected by the web server. Any file larger than 20 MB had to be reduced and submitted via multiple separate emails. In addition, "the body of the email for bids shall show the hour and date specified in the solicitation for bid opening, the solicitation number, and the bidder's name and address." Moreover, the amended IFB stated "bids shall be timely emailed to reach WMATA (sic) designated Web Server before 1400 (local time) on day of Bid opening." (Id., ¶¶ 29, 30).
Potomac was one of three vendors that submitted bids. Potomac timely submitted "a responsive, acceptable, electronic bid to WMATA via email," specifically "via electronic transmission to: "PRMTPolicy@wmata.com" on September 2, 2020, at 1:49 P.M. EST." WMATA received Potomac's bid electronically via "PRMTPolicy@wmata.com," i.e., Potomac did not receive an "error or return/kick back message" contradicting WMATA's receipt. Thus, WMATA was "in control of Potomac's bid submission in advance of the bid submission deadline." (Id., ¶¶ 31-35,41).
Six days after Potomac submitted its bid, WMATA notified Potomac that it did not consider Plaintiff's submission because the bid was not submitted to the "supplier.wmata.com" Web Server address. (Id., ¶¶ 36, 38). On September 9, 2020, consistent with WMATA's Procurement Procedures Manual ("PPM"), Potomac submitted a bid protest to the Contracting Officer, challenging its decision to exclude Potomac from the resurface project competition. On October 28, 2020, WMATA acknowledged timely receipt of the original bid, and responded to the bid protest, denying it. Specifically, even though WMATA timely received Plaintiff's bid via "PRMTPolicy@wmata.com," the Contracting Officer rejected the submission, ("the denial letter"), deeming it materially non-responsive because it was not uploaded to "supplier.wmata.com." (Id., ¶¶ 36, 41-43). On October 29, 2020, Potomac filed a request for reconsideration, which was denied on November 24, 2020. When denying reconsideration, WMATA notified Potomac of its right to appeal to the Federal Transportation Authority ("FTA"). (Id., ¶¶ 51-53).
On December 4, 2020, Potomac noted an appeal to the FTA, also providing a copy of the same to the Contracting Officer. As part of its appeal, Potomac asserted that the Contracting Officer failed to follow the bid protest procedures outlined in the PPM. Roughly three days later, WMATA violated the PPM by awarding the Repaving Contract to another vendor, in the amount of $5,790,189.35. WMATA issued the Repaving Contract to another vendor, despite the fact that Potomac's bid was the lowest. (Id., ¶¶ 57-58). The award was contrary to the requirements in the PPM that any contract award should not proceed if a bid protest were lodged with the FTA. (Id., ¶¶ 53-55). This appeal is likely still pending. (See ECF Nos. 17-1, 22).
On January 22, 2021, Potomac filed its "Verified Complaint for Declaratory and Injunctive Relief" challenging WMATA's bid selection process related to a contract to repave five Metro parking lots. ("Verified Complaint," ECF No. 1). Potomac first maintains that WMATA acted arbitrarily, capriciously, and without any rational basis when it excluded Potomac from the bid competition for the Repaving Contract. Second, Potomac contends that it materially complied with all IFB requirements for its bid submission, and that its "minor irregularity" in its bid submission was immaterial, and that WMATA violated procurement regulations by denying Potomac the opportunity to cure its error, or by not waiving the bid submission requirement. Relatedly, WMATA treated Potomac disparately when it afforded the winning vendor an opportunity to "correct an actual material error [in its submission] two days after bid opening." Third, Potomac asserts that WMATA violated its own procurement regulations when it denied Potomac's agency-level bid protest. Fourth, by awarding the Repaving Contract to another vendor, Potomac argues that WMATA violated requirements outlined in the PPM, namely that the contract was only to be awarded to the "lowest priced responsive, responsible bidder." (Verified Complaint, ¶¶ 22-30, 33, 36, 38, 54-58, 80, 86, 102).
In its two-count Verified Complaint—Count I - Declaratory Judgment, Count II - Permanent Injunction—Plaintiff seeks an order: (1) declaring, inter alia, that: (a) "WMATA's decision to reject Potomac's proposal and award the subject surface parking pavement rehabilitation contracts to another entity was in violation of law;" and (b) "but for WMATA's failure to execute a 'fair and equal consideration' of Potomac's proposal in accordance with WMATA's own Procurement Procedures Manual and applicable law, Potomac would have been awarded [the] surface parking pavement rehabilitation contract;" and (2) requiring WMATA to (a)"rescind the award of the subject contract to [another vendor-bidder] due to the manifest violations of WMATA procedures"; and (b) directing WMATA to "review anew . . . [Potomac's] proposal . . . affor[d] Potomac . . . a fair and equal opportunity to be consideration (sic) for [the] award, or in the alternative. . . award the paving contract to Potomac as the lowest priced acceptable, responsive, and responsible offeror." (Verified Complaint, pp. 23-24).
On January 26, 2021, Plaintiff filed a "Motion for Preliminary Injunction and Request for a Hearing" ("Preliminary Injunction Motion") (ECF Nos. 4-5). Following a case management conference with the predecessor judge assigned to this case, the parties identified the date of February 25, 2021 as the date by which Defendant had to file its Answer or other responsive pleading to the Preliminary Injunction Motion. (ECF No. 9). In the interim, on February 17, 2021, Potomac filed a notice of intent to file a motion for expedited discovery, whereby Plaintiff sought a limited amount of materials from Defendant related to its Preliminary Injunction Motion. (ECF No. 16). On February 19, 2021, Defendant filed the Motion to Dismiss, (ECF No. 17, "Motion to Dismiss"), which Plaintiff...
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