Terry v. The United States, 09-454 C
| Decision Date | 30 November 2010 |
| Docket Number | No. 09-454 C,09-454 C |
| Parties | JOYCE TERRY, d/b/a SHIRT SHACK, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Post-Award Bid Protest; Army and Air Force Exchange Service; Non-Appropriated Fund Instrumentalities; 28 U.S.C. § 1491(a); Implied-in-Fact Contract Jurisdiction; 28 U.S.C. § 1491(b); "Federal agency"; 28 U.S.C. § 451; Jurisdiction; RCFC 12(b)(1); Perkins; Administrative Procedure Act, 5 U.S.C. §§ 701-706; Scanwell; W.B. Fishburn Cleaners, Inc.; Ellsworth Bottling Co.; MCI Telecommunications Corp.; Administrative Dispute Resolution Act of 1996; Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613; Submission of a "Claim" to the Contracting Officer; Failure to Allege Bias/Bad Faith.
Bonnie Michelle Smith, Warner Robins, GA, for plaintiff.
Arlene Pianco Groner, United States Department of Justice, Washington, DC, for defendant.
Before the court in this post-award bid protest is defendant's motion to dismiss. Plaintiff Joyce Terry, doing business as Shirt Shack, alleges that the Army and Air Force Exchange Service ("AAFES") unlawfully awarded a concession contract at Fort Benning in Columbus, Georgia to a concessionaire that purportedly did not satisfy certain requirements set forth in the solicitation. Plaintiff also brings a claim under the Contract Disputes Act of 1978 ("CDA"), 41 U.S.C. §§ 601-613 (2006), alleging that the AAFES violated the law with respect to another concessionaire contract she was performing as a kiosk operator at Fort Benning. Defendant moves to dismiss plaintiff's bid protest claim for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC") because, it contends, the United States has not waived its sovereign immunity with respect to bid protest claims against a non-appropriated fund instrumentality ("NAFI") such as the AAFES. Additionally, defendantmoves to dismiss plaintiff's CDA claim for lack of jurisdiction pursuant to RCFC 12(b)(1) or, in the alternative, for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(6). The court, for the reasons set forth below, finds that it possesses jurisdiction over plaintiff's bid protest claim, but not her CDA claim.1
On October 6, 2008, the AAFES issued a solicitation for proposals related to the operation of a T-shirt concession at Fort Benning commencing March 22, 2009, for a period of no greater than five years. Am. Compl. ¶ 5; AR 33-95. Gross monthly sales from the concession operation were estimated at $45,000 per month. AR 37. Offerors were advised to contact the contracting officer, Kay K. Dunbar, with any questions about the solicitation. Id. at 18, 35. The solicitation provided that the contracting officer was the only individual authorized to "waive or change contract terms[ and] impose additional contract requirements...." Id. at 40.
Plaintiff maintains that offerors were required to own certain garment ink printing equipment in order to participate in the solicitation. Exhibit G of the solicitation, titled "Concessionaire Furnished Equipment," enumerated the type and quantity of equipment that the concessionaire was required to furnish at two concessionaire locations. Id. at 73. The equipment required at the main exchange building included a heat transfer press and a transfer machine, which were required to "be new or in 'like new' condition...." Id. The heat transfer press had to be Id. The transfer machine had to be Id. The solicitation also required that "[h]eat pressed items... be offered on a while-you-wait-basis." Id. at 75. All equipment furnished by the concessionaire was subject to the following terms: (1) title to the equipment remained with the concessionaire; (2) concessionaires were permitted to lease equipment so long as they provided the contracting officer with the name and address of the lessor; (3) a concessionaire's investment in any equipment constituted a business risk that the concessionaire alone assumed; and (4) neither the AAFES nor any other agency or instrumentality of the United States was liable to the concessionaire for the cost of the concessionaire's investment in equipment in the event that the contract was terminated without extension. Id. at 55.
Plaintiff began selling T-shirts with her husband in 2000 and worked as an AAFES concessionaire for over fourteen years. Id. at 198. At the time she participated in the instant procurement, plaintiff operated a separate T-shirt kiosk at Fort Benning at which she sold the T-shirts on-post that her husband printed off-post. Id.; Am. Compl. ¶¶ 33-35. To participate in this procurement, plaintiff "purchased a machine known as a Garment Printer which [would] let [her] do all [her] shirts at the point of sale, as well as do a customer['s] custom design requests on the spot." AR 198. She therefore believed that she possessed "all the necessary equipment[,] such as [a] Garment Printer, heat press, cap press, and mug press," that were purportedly required in order to participate in the procurement. Id.
The AAFES received proposals from plaintiff on October 29, 2008, id. at 123; cf. id. at 180, 189-90 (), T-Shirt House, the incumbent concessionaire, on November 5, 2008, id. at 156, and a third company, L & W Creations, on November 6, 2008, id. at 123-24; cf. id. at 201, 206-07 (). As part of her proposal, plaintiff listed a fee to the AAFES of thirty percent, which was based upon total adjusted gross sales, for a contract period of five years. Am. Compl. Ex. 1. By comparison, T-Shirt House proposed a thirty-one percent fee and L & W Creations proposed a twenty-four percent fee. AR 124. Thereafter, the AAFES requested final statements and other documentation from L & W Creations, which ultimately never responded to the requests. Id. Consequently, L & W Creations "was found non-responsive." Id.
On November 20, 2008, Ms. Dunbar requested a "best and final offer" from plaintiff and T-Shirt House, the two remaining offerors. Id. at 124, 138. Ms. Dunbar apprised plaintiff of various discrepancies in her proposal, and plaintiff, in response, submitted a modified proposal on November 21, 2008. Id. at 137. In her modified proposal, plaintiff increased her fee to the AAFES from thirty percent to thirty-seven percent. Am. Compl. ¶ 12; Am. Compl. Ex. 2. T-Shirt House modified its proposal on November 22, 2008, increasing its proposed fee to 33.1 percent. AR 124, 172.
Ms. Dunbar determined that the best and final offers submitted by plaintiff and T-Shirt House contained fees that were "too high compared to the Region and Conus fee averages," which were 18.14 percent and 20.06 percent, respectively. Id. at 124. Indeed, the record reflects Ms. Dunbar's assessment that, if either bid was accepted, each offeror would be "operating in the red." Id. at 156. On December 2, 2008, Ms. Dunbar sent electronic-mail communications to both plaintiff and T-Shirt House requesting (1) financial information, (2) submission of a Monthly Projected Operating Statement ("MPOS"), and (3) reexamination of the costs each offeror would incur in providing the services (or similar services) encompassed by the solicitation. Id. at 124. Plaintiff received a letter from Ms. Dunbar requesting that she "re-examine the costs [she] may incur in providing this service" and submit an MPOS because Ms. Dunbar believed that her proposal might "be too high to operate at a profit." Id. at 135. Ms. Dunbar also informed plaintiff that she "may either confirm or amend [her] proposal," but a "[f]ailure to provide the information by the date/time specified... may result in [her] original proposal being considered for award." Id.
On December 9, 2008, plaintiff, who alleges that furnishing another revised proposal violated the terms of the solicitation, Am. Compl. ¶ 13, submitted an MPOS, which indicated a net profit of $1,536 per month, AR 125, 130. She also reduced her fee to the AAFES from thirty-seven percent to twenty-seven percent. Id. at 125. On December 11, 2008, T-Shirt House submitted its MPOS, which indicated a net profit of $2,587.50 per month, and revised its fee to the AAFES from 33.1 percent to 27.5 percent. Id. at 168-69; cf. id. at 163 (). Also on December 9, 2008, Ms. Dunbar contacted Victoria A. Roldan, the services business manager at Fort Benning, to confirm the accuracy of the $45,000 monthly gross sales estimate contained in the solicitation. Id. at 149-50. Ms. Dunbar apprised Ms. Roldan that offerors questioned the estimate, and "[i]f the sales were over inflated..., then it will make it very difficult for the offeror[s] to give a reasonable fee percentage." Id. at 150. Ms. Roldan confirmed that the sales estimate was not overinflated. Id. at 149.
Thereafter, the AAFES deemed the revised proposals submitted by plaintiff and T-Shirt House to be both fair and reasonable. Id. at 125. T-Shirt House remained the highest fee offeror, and its 27.25 percent fee to the AAFES was 2.25 percentage points higher than its then-current contract with the AAFES and 0.25 percentage points higher than the fee contained in plaintiff's proposal. Id. at 156. On December 18, 2008, the AAFES awarded the contract to T-Shirt House because it provided the AAFES with the "best advantage in accordance with the competitive evaluation criteria set forth in the solicitation." Id. at 179, 213-14.
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