Premier Gaming Trailers, LLC v. Luna Diversified Enters., Inc.
| Decision Date | 18 January 2018 |
| Docket Number | Case No.: 8:16–cv–3378–T–33TGW |
| Citation | 304 F.Supp.3d 1270 |
| Parties | PREMIER GAMING TRAILERS, LLC, Plaintiff, v. LUNA DIVERSIFIED ENTERPRISES, INC., Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Nicholas Lafalce, Anthony & Partners, LLC, Tampa, FL, for Plaintiff.
William F. Jung, Jung & Sisco, PA, Tampa, FL, for Defendant.
This matter comes before the Court pursuant to Defendant Luna Diversified Enterprises, Inc.'s Motion for Summary Judgment (Doc. # 46), filed on October 31, 2017. Plaintiff Premier Gaming Trailers, LLC, responded on November 30, 2017. (Doc. # 52). Luna filed its reply on December 14, 2017. For the reasons that follow, the Motion is granted in part and denied in part as set forth herein.
This lawsuit revolves around the submission of a bid for a contract with the federal government—specifically, a bid to build mobile gaming kiosks for the Army.
Premier Gaming Trailers is a custom fabricator company that builds mobile gaming trailers in Tampa, Florida. (Doc. # 1 at ¶ 8). Although not registered with the Small Business Administration (SBA), Premier Gaming is a small company with fewer than five employees and less than $750,000 in gross revenue. (Bekhor Aff. Doc. # 52–5 at ¶ 10; Bekhor Dep. Doc. # 46–2 at 9:10–20). Lidan Bekhor is the sole owner and manager of Premier Gaming. (Bekhor Dep. Doc. # 46–2 at 7:12–18).
Bekhor had no experience with government contracts or the federal bidding process. (Id. at 7:6–11). Thus, he was unaware of when a federal bid becomes a binding contract and did not understand small business set-aside contracts or the Federal Acquisition Regulations (FARS), which govern the eligibility and requirements for contracting with the federal government. (Id. at 11:4–16). Premier Gaming never registered with the federal government's system for award management, SAM, and had never directly submitted a bid for a federal contract before. (Id. at 15:7–25). Instead, on the few occasions Premier Gaming sought to bid on a federal contract, Premier Gaming "looked to partner with somebody who is experienced to guide" it through the process. (Id. at 62:3–12, 58:6–19, 102:4–9).
One such entity Premier Gaming trusted to understand federal contracts was Luna. Luna is a company that provides all types of merchandise and services to federal and state agencies exclusively, by submitting bids in response to various federal and state bid solicitations. (Gina Dep. Doc. # 46–3 at 6:6–7:13). Luna is a small business, registered with and certified by the SBA, and has between three and five employees at any given time. (Curry Dec. Doc. # 46–6 at ¶ 1; Curry Dep. Doc. # 46–4 at 6:7–9). Alma Gina, nee Hoffman, is the sole owner of Luna and maintains the sole authority to enter binding contracts. (Gina Dep. Doc. # 46–3 at 6:15, 9:15–19, 27:1–10; Curry Dep. Doc. # 46–4 at 10:11–17). Luna's "operations manager," Jason Curry, "manage[d] the day-to-day operations of the company in terms of [its] contract fulfillments, as well as internal staff issues, as well as [its] in-house IT." (Curry Dep. Doc. # 46–4 at 5:24–6:4).
The other Luna employee who figures prominently in this case is Marcos Morales. Morales works in "solutions development" for Luna, and his job entails "getting pricing [from suppliers] and building and submitting quotes to the customer, which included signing nonbinding solicitation paperwork." (Morales Dep. Doc. # 46–5 at 5:19–23, 41:13–19; Curry Dep. Doc. # 46–4 at 10:18–11:4). According to Curry, Morales' job is "to find sources of product and get prices," and he can submit bids to contracts "for simplified acquisitions." (Curry Dep. Doc. # 46–4 at 10:20–25). But Morales did not have the authority to make binding decisions on behalf of Luna, such as entering contracts with suppliers or customers. (Gina Dep. Doc. # 46–3 at 27:1–10; Morales Dep. Doc. # 46–5 at 42:19–20, 48:11–19; Curry Dep. Doc. # 46–4 at 14:23–25, 23:22–23).
And, although he helped put bids together for government contracts, Morales had never been trained in the FARS and stated that he did not understand them. (Morales Dep. Doc. # 46–5 at 50:7–22; Curry Dep. Doc. # 46–4 at 13:24–14:6). Instead, Morales assumed that the suppliers he contacted about pricing on potential bids would be aware of their own eligibility under federal regulations for the bid opportunities Morales spoke about with them. (Morales Dep. Doc. # 46–5 at 50:12–22). Still, Morales' lack of familiarity with these regulations was not an issue because other Luna employees research the applicability of the FARS for each contract only after a tentative bid award is issued to Luna. (Gina Dep. Doc. # 46–3 at 19:11–19; Curry Dep. Doc. # 46–4 at 8:9–17). This is because a bid is not binding, and a bidder can decline to enter a contract even if it receives notice of its bid being selected. (Curry Dec. Doc. # 46–6 at ¶ 2).
Beginning in August of 2016, Morales contacted Premier Gaming about other gaming trailer bids, and Luna submitted three bids for those gaming trailer contracts with Premier Gaming in mind as a vendor. (Doc. 1–1 at 2; Morales Dep. Doc. # 46–5 at 13:12–14:3; Bekhor Aff. Doc. # 52–5 at ¶ 7). Those three bids had been for contracts Curry described as "simplified acquisition" contracts, for which Morales had authority to submit non-binding bids. (Curry Dep. Doc. # 46–4 at 10:23–25, 12:15–13:8). Gina was not aware that Morales had worked with Premier Gaming on the quotes before submitting these bid proposals, (Gina Dep. Doc. # 46–3 at 27:11–15), perhaps because none of those previous bids had been awarded to Luna. (Bekhor Dep. Doc. # 46–2 at 25:25–26:5; Curry Dep. Doc. # 46–4 at 12:15–18).
In September of 2016, Bekhor of Premier Gaming contacted Morales to notify him of the Army's bid solicitation for mobile gaming kiosks and to begin working on a bid together. (Bekhor Dep. Doc. # 46–2 at 18:2–12). The gaming kiosks would be used for marketing and recruitment purposes and were to include, among other things, a 42–inch television screen, X–Box gaming systems, and numerous speakers. (Doc. # 49–2 at 15–25). Although he had no records of any pricing or design research, Bekhor testified that he called various vendors and suppliers of metal and electrical parts for pricing around this time, so that he could come up with a price quote for the bid. (Bekhor Dep. Doc. # 46–2 at 33:7–35:15). As Bekhor understood his conversations with Morales, Premier Gaming would produce one hundred percent of the kiosks and handle delivery, with Premier Gaming to receive ninety-seven percent of the contract price and Luna to receive the remaining three percent. (Id. at 46:3–21, 98:8–11, 99:1–6).
On September 26, 2016, Morales signed an "Amendment of Solicitation/Modification of Contract," which included modifications by the Army to its solicitation for bids for the gaming kiosks. (Doc. # 50–3 at 14). Gina stated in her deposition that Morales "would not have authority" to sign the document, but she was "not surprised" to see that he had signed because it was "just a solicitation" that did not "bind [Luna] to anything" and Gina had been "going through a lot in that period" of time. (Gina Dep. Doc. # 46–3 at 48:23–50:13).
Then, Morales emailed a copy of the Army's specifications for the desired gaming kiosks to Bekhor on September 27, 2016, at 12:05 PM, including the Army's drawings of the proposed kiosks. (Doc. # 49–2 at 9; Bekhor Dep. Doc. # 46–2 at 30:2–21). About four and a half hours later, an employee of Premier Gaming sent its bid information to Morales, including the price Bekhor suggested for the kiosks and specifications for the kiosks. (Doc. # 50–1 at 1–5; Bekhor Dep. Doc. # 46–2 at 32:5–8, 39:1–7). Bekhor acknowledges that he expended no money in putting together the bid information. (Bekhor Dep. Doc. # 46–2 at 41:4–16). The specifications Premier Gaming sent included numerous deviations from the specifications in the Army's solicitation, such as including fewer X–Box consoles than requested, changing the USB connector, phone charger, and power cord specifications, and increasing the thickness of the kiosk. (Id. at 51:18–52:21, 72:17–22, 75:24–77:25; Doc. # 50–1 at 4–7).
The bid proposal attached to the email sent from Premier Gaming to Morales states: "Thank you for taking the time to consider Premier Gaming [ ] as a potential partner in producing and manufacturing your proposed customized gaming units." (Doc. # 50–1 at 3; Bekhor Dep. Doc. # 46–2 at 39:8–18). Bekhor testified that the "potential partner" language was standard and used in all such communications, but that he considered Luna as an actual partner at that time. (Bekhor Dep. Doc. # 46–2 at 39:11–40:18, 43:15–44:9). Bekhor also acknowledged there was never a signed contract between Premier Gaming and Luna. (Id. at 96:12–22). Rather, Bekhor stated that the alleged joint venture agreement between Premier Gaming and Luna was an oral contract, as evidenced by Bekhor's conversations and emails with Morales. (Id. at 96:23–97:1).
During each bid for which Bekhor worked with Morales, Bekhor "underst[ood] that each company was working together" so that Premier Gaming "would supply its experience and know how on mobile kiosks and mobile computer units, and Luna would supply its expertise in government contract bidding and experience." (Bekhor Aff. Doc. # 52–5 at ¶ 7). At no time did Morales "disclose[ ] to [Bekhor] any limitation on the scope of his authority to enter into binding agreements on Luna's behalf." (Id. at ¶ 6). Morales was Bekhor's only point of contact and Bekhor believed Morales "also had the authority to engage with and enter into agreements with both [Premier Gaming] and the Army" on behalf of Luna. (Id. ). Nevertheless, Bekhor admitted that he was unaware of what position Morales held with Luna and never asked Morales because "it didn't make a difference" to him. (Bekhor Dep. Doc. # 46–2 at 19:20–20:21,...
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