Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 1 of 18 PROTECTED INFORMATION TO BE DISCLOSED ONLY IN ACCORDANCE WITH UNITED STATES COURT OF FEDERAL CLAIMS PROTECTIVE ORDER No. 11-163C (Judge Lettow) IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST CASTLE-ROSE, INC., Plaintiff, v. THE UNITED STATES, Defendant. DEFENDANT S REPLY TO PLAINTIFF S RESPONSE TO DEFENDANT S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR JUDGMENT UPON THE ADMINISTRATIVE RECORD TONY WEST Assistant Attorney General JEANNE E. DAVIDSON Director OF COUNSEL: VIRGINIA K. RYAN Office of Counsel U.S. Army Corps of Engineers Seattle District Seattle, Washington May 10, 2011 BRYANT G. SNEE Deputy Director JOSHUA A. MANDLEBAUM Trial Attorney Commercial Litigation Branch Civil Division Department of Justice P.O. Box 480 Ben Franklin Station Washington D.C. 20044 Tel: (202) 305-3091 Fax: (202) 514-8624 Attorneys for Defendant
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 2 of 18 TABLE OF CONTENTS ARGUMENT.................................................................. 2 I. The Corps Properly Rejected Castle-Rose s Proposal As Late................ 2 A. Castle-Rose Failed To Deliver Its Proposal On Time................. 2 1. Castle-Rose s Assertion That Its Messenger Arrived Before 2:01 Is Unsupported By The Administrative Record................ 3 2. The Corps Was Not Required To Accept Proposals In The Lobby............................................ 3 3. The Proposal Was Late Because The Deadline Passed Before Castle-Rose s Messenger Entered The Building............... 5 4. The Proposal Was Also Late Because It Was Not Received Until Castle-Rose s Messenger Relinquished Control at 2:06......... 6 B. The FAR Mail Room / Government Control Exception Does Not Apply...................................................... 7 C. The FAR Exception For Unanticipated Events Does Not Apply........ 8 D. The Exception For Improper Government Action Does Not Apply...... 8 II. III. IV. Castle-Rose s Complaint Should Be Dismissed Pursuant to RCFC 12(b)(1) For Lack Of Standing Because Castle-Rose s Proposal Was Late................. 9 Castle-Rose s Additional Claims Should Be Dismissed For Lack Of Standing, Or Fail On The Merits, Because They Allege Non-Prejudicial Errors.......... 9 Castle-Rose s Claims Under FAR 1.102(b)(3), 1.102-2(c)(3); And Implied Contract, Should Be Dismissed For Lack Of Subject-Matter Jurisdiction, Or In The Alternative, Fail On The Merits................................... 10 V. Any Relief Awarded To Castle-Rose Should Be Limited To Bid Preparation Costs............................................................ 13 CONCLUSION............................................................... 14 i
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 3 of 18 TABLE OF AUTHORITIES CASES Am. Tel. & Tel. Co. v. United States, 307 F.3d 1374, 1380 (Fed. Cir. 2002)... 11 Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007)... 4, 6 FFTF Restoration Co. v. United States, 86 Fed. Cl. 226, 240, 240 n. 18, 242 (2009).... 10 Haskell Co., B-292756, 2003 CPD 202 (Comp. Gen. Nov. 19, 2003)... 2, 5, 6 Info. Sciences Corp. v. United States, 85 Fed. Cl. 195, 200-203 (2008)... 11 J.C. Kimberly Co., B-255018, 94-1 CPD 79 (Comp. Gen. Feb. 8, 1994)... 5 Resource Conservation Group, LLC v. United States, 597 F.3d 1238, 1242 (2010)... 10 Shirlington Limousine & Transp., Inc., B-299241, 2007 CPD 68 (Comp. Gen. Mar. 30, 2007).... 4 SP Systems, Inc. v. United States, 86 Fed. Cl. 1, 22 (2009).... 3 Watterson Constr. Co. v. United States, No. 10-587C, 2011 WL 1137330, 2011 U.S. Claims LEXIS 428, at *18-19, 24-25 (Fed. Cl. Mar. 29, 2011).... 6, 7 Weeks Marine, Inc., B-292758, 2003 CPD 183 (Comp. Gen. Oct. 16, 2003).... 8, 9 Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007)... 12 ii
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 4 of 18 STATUTES 28 U.S.C. 1491(b)(1).... 10 41 U.S.C. 423(f)(5).... 12 REGULATIONS FAR 1.102... 11 FAR 1.102-1.... 11 FAR 1.102(b)(3).... 1, 10, 11, 12, 13 FAR 1.102-2(c)... 11 FAR 1.102-2(c)(3).... 1, 10, 11, 12, 13 FAR 1.602-2(d)... 12 FAR 1.604... 12 FAR 2.101... 12 FAR 15.208... 6, 7 FAR 15.208(b)(1)(ii)... 7, 8 FAR 15.208(d).... 8 TREATISES JOHN CIBINIC, JR., RALPH C. NASH, JR., & JAMES F. NAGLE, ADMINISTRATION OF GOVERNMENT CONTRACTS 39 (4th ed. 2006)... 13 iii
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 5 of 18 IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST CASTLE-ROSE, INC., ) ) Plaintiff, ) No. 11-163C ) (Judge Lettow) v. ) ) Protected Information to Be THE UNITED STATES, ) Disclosed Only in Accordance With ) the U.S. Court of Federal Claims Defendant. ) Protective Order ) DEFENDANT S REPLY TO PLAINTIFF S RESPONSE TO DEFENDANT S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR JUDGMENT UPON THE ADMINISTRATIVE RECORD Defendant, the United States, respectfully submits this brief to reply to the response of Castle-Rose, Inc. ( Castle-Rose ), filed May 3, 2011. In our motion to dismiss, or in the alternative, for judgment upon the administrative record, we established that the determination by the United States Army Corps of Engineers Seattle District ( the Corps ) that Castle-Rose s late proposal could not be considered was not arbitrary, capricious, an abuse of discretion, or contrary to law. As a result, we demonstrated that Castle-Rose lacks standing, and the Court should either dismiss Castle-Rose s complaint entirely or grant the United States judgment on the issue of timeliness and dismiss Castle-Rose s remaining claims. We also established that Castle-Rose s remaining alleged errors are non-prejudicial, and thus these claims should be dismissed for lack of standing or fail on the merits. Further, we demonstrated that this Court lacks subject-matter jurisdiction to entertain Castle-Rose s claims under FAR 1.102(b)(3), 1.102-2(c)(3); and implied-in-fact contract, and that these claims also fail on the merits aside from consideration of prejudice.
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 6 of 18 Finally, we demonstrated that even assuming standing and jurisdiction, and even assuming Castle-Rose could prevail on the merits, any relief awarded to Castle-Rose should be limited to bid preparation costs. Castle-Rose s response does not address our arguments that its proposal was not received until 2:06; that all other alleged errors are non-prejudicial; that this Court lacks jurisdiction to entertain implied contract claims; and that the Court cannot simultaneously award Castle-Rose both monetary damages and injunctive relief. On the issue of timeliness, Castle-Rose continues to assert that its messenger arrived in the lobby before 2:01, and that the Corps was obligated to accept proposals there until 2:01. These assertions find no support in either the terms of the solicitation or the administrative record, and rely upon a blatant misinterpretation of The Haskell Co., B-292756, 2003 CPD 202 (Comp. Gen. Nov. 19, 2003). ARGUMENT I. The Corps Properly Rejected Castle-Rose s Proposal As Late The Corps correctly determined that Castle-Rose s proposal was late, because Castle- Rose did not deliver its proposal by the 2:00 p.m. deadline set forth in the solicitation, and Castle-Rose does not qualify for any of the timeliness exceptions. A. Castle-Rose Failed To Deliver Its Proposal On Time Castle-Rose s arguments that its proposal was timely rely upon two erroneous assertions. Castle-Rose s assertion that the messenger arrived before 2:01 is unsupported by the record, and Castle-Rose s assertion that the Corps was obligated to accept proposals in the lobby is wrong as a matter of law. Even if these assertions were supported, Castle-Rose s proposal would still be 2
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 7 of 18 late under the late is late rule because the deadline passed before Castle-Rose s messenger entered the building, and because the Corps did not receive the proposal until 2:06 p.m. 1. Castle-Rose s Assertion That Its Messenger Arrived Before 2:01 Is Unsupported By The Administrative Record Castle-Rose s entire claim relies upon an assumption that its messenger arrived in the lobby after the clock struck 2:00, but before 2:01. Even assuming Castle-Rose s contention that a proposal could have been timely submitted as late as 2:00:59, as explained in our moving brief, the record does not demonstrate that the messenger arrived before the clock struck 2:01. All the record demonstrates is that the messenger arrived after the clock struck 2:00, but before 2:06. See AR 2, 6, 9. Castle-Rose s response does not cite any additional evidence to support the assertion that its messenger arrived before 2:01. Rather, Castle-Rose appears to contend that the Corps bears the burden to disprove Castle-Rose s factual assertions. Plaintiff s Reply ( Pl. Reply ) at 5-7. Castle-Rose s argument flouts the legal standards governing bid protests. A disappointed bidder has the burden of demonstrating the arbitrary and capricious nature of the agency decision, and cannot meet its burden merely by showing that the record might have supported a different result. See SP Sys., Inc. v. United States, 86 Fed. Cl. 1, 22 (2009) ( SP s argument appears to be an attempt to shift the burden of proof to the Government. The law is otherwise.... ). Because Castle-Rose has the burden of proving its factual assertions, and the assertion that the messenger arrived before 2:01 is purely speculative, Castle-Rose s arguments all fail. 2. The Corps Was Not Required To Accept Proposals In The Lobby Castle-Rose s arguments that its proposal was timely also rely upon an assertion that the Corps was required to accept proposals in the lobby. As explained in our moving brief, this 3
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 8 of 18 assertion is incorrect as a matter of law, because the solicitation specifies that hand-carried offers should be delivered to the second floor, AR 92, which could be reached by calling for an escort with the lobby phone. AR 2. Castle-Rose contends that the solicitation is ambiguous because it lists two different locations for delivery. Pl. Reply at 1. The solicitation contains no such internal conflict. Block 8 provides the street address, and block 9, immediately below, provides the office within the building. AR 92. These blocks must be read together to ascertain the location for hand-delivery. Even if there was a conflict between blocks 8 and 9, it would have been apparent to Castle-Rose because the two blocks are adjacent. [A] party who has the opportunity to object to the terms of a [G]overnment solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). Because Castle-Rose did not inquire about this alleged conflict between blocks 8 and 9, it waived its right to object to a contrary interpretation. See id. The Corps was not required to accept proposals in the lobby, it only did so for a 30-minute period as a convenience. AR 6, 9. If the Corps did not provide this convenience, or if deliverers arrived before this 30-minute period, deliverers could reach the second floor by calling for an escort with the lobby phone. AR 2. Whatever the protester may have done to satisfy proposal delivery requirements in prior procurements does not excuse the protester from its burden to ensure timely delivery of its proposal at the location specified in the solicitation. Shirlington Limousine & Transp., Inc., B-299241, 2007 CPD 68 (Comp. Gen. Mar. 30, 2007). Therefore, Castle-Rose s arguments all fail. 4
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 9 of 18 3. The Proposal Was Late Because The Deadline Passed Before Castle-Rose s Messenger Entered The Building As explained in our moving brief, the deadline specified in the solicitation has passed when the designated Government official determines it has passed, unless that determination is unreasonable under the circumstances. See The Haskell Co., B-292756, 2003 CPD 202 (Comp. Gen. Nov. 19, 2003); J.C. Kimberly Co., B-255018, 94-1 CPD 79 (Comp. Gen. Feb. 8, 1994). Castle-Rose continues to misinterpret The Haskell Co. In The Haskell Co., the GAO first explained the rule from the bid context: the bid opening officer s declaration of bid opening is determinative of lateness unless it is shown to be unreasonable under the circumstances. The Haskell Co., B-292756, 2003 CPD 202 (Comp. Gen. Nov. 19, 2003) (citing J.C. Kimberly Co., B-255018, 94-1 CPD 79 (Comp. Gen. Feb. 8, 1994)). The GAO explained that had the situation involved a bid acquisition, it would have been reasonable for a [G]overnment official... to announce bid opening at any point between 14:00:00 and 14:00:59. Id. Then, the GAO extended this rule to apply to the negotiated procurement at issue, explaining that the RFP s reference to a closing time of 14:00 hours could reasonably be interpreted either as requiring that proposals be received by 14:00:00, or as requiring that they be received by 14:00:59. Id. The rule from The Haskell Co. and J.C. Kimberly does not require a 2:00 deadline to extend for an additional 59 seconds after the clock strikes 2:00. Rather, the Government official may interpret 2:00 to mean either 2:00:00 or 2:00:59. Id. Here, the Corps procurement technician s interpretation of 2:00 as 2:00:00 is determinative of lateness. Id., AR 9. Thus, the deadline passed before Castle-Rose s messenger entered the building. 5
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 10 of 18 Castle-Rose also argues that the Corps should have announced in the solicitation that 2:00 meant 2:00:00. As explained in The Haskell Co.: To the extent [the meaning of 14:00 ] is viewed as an ambiguity in the solicitation, it was one that was obvious from the face of the RFP, and we have repeatedly held that an offeror who chooses to compete under a patently ambiguous solicitation does so at its peril and cannot later complain when the agency proceeds in a manner inconsistent with one of the possible interpretations. The Haskell Co., B-292756, 2003 CPD 202 (Comp. Gen. Nov. 19, 2003). See also Blue & Gold, 492 F.3d at 1313. If Castle-Rose was confused by the meaning of until 2:00 PM, AR 92, it should have asked the Corps for clarification before attempting to submit its proposal, and cannot now complain that the solicitation did not specify the deadline to the second. 4. The Proposal Was Also Late Because It Was Not Received Until Castle-Rose s Messenger Relinquished Control at 2:06 A proposal must reach or be received at the Government office designated in the solicitation prior to the deadline. FAR 15.208. In our opening brief, we explained that a proposal is not received until the bidder relinquishes control, and Castle-Rose s messenger did not relinquish control until 2:06. Thus, the proposal was late. Castle-Rose does not contest that its messenger relinquished control at 2:06, does not contest that its proposal was not received before the deadline, and ignores GAO hand-delivery cases focusing upon receipt and the relinquish control test. See, e.g., Watterson Constr. Co. v. United States, No. 10-587C, 2011 WL 1137330, 2011 U.S. Claims LEXIS 428, at *18-19 (Fed. Cl. Mar. 29, 2011) ( In non-electronic commerce cases, the GAO has determined that the Government receives a bid at the time the bidder relinquishes control. ). Instead, Castle-Rose misconstrues the reasoning of Watterson, an electronic delivery case, to argue that its proposal timely reached the designated office, and that nothing more is required. Pl. Reply at 2. In 6
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 11 of 18 Watterson, the Court noted a distinction between reached and received which had not been addressed by this Court or the United States Court of Appeals for the Federal Circuit. Id. at *24-25. The Court explained that the distinction was not dispositive, because the proposal was both reached and received... before the due date. Id. at *25. Thus, the Court s holding was based in part upon its determination that the proposal was timely received. Castle-Rose stretches this reasoning and argues that nothing more than reaching is required. Pl. Reply at 2. We are unaware of any precedent finding that a proposal was timely under FAR 15.208 (absent an exception) without being timely received. And even if Castle-Rose s overreaching analysis is correct, the proposal did not timely reach the designated office because the designated office was on the second floor, not the first-floor lobby. Castle-Rose s reaching argument contends that the messenger s mere presence in the building satisfied the solicitation requirements. It did not. Indeed, Castle-Rose concedes that the proposal was not received before the deadline, and relies only upon a misinterpretation of Watterson. The proposal neither reached nor was received on time. B. The FAR Mail Room / Government Control Exception Does Not Apply As we demonstrated in our opening brief, the exception under FAR 15.208(b)(1)(ii) does not apply. This exception applies when [t]here is acceptable evidence to establish that [a proposal] was received at the Government installation designated for receipt of proposals and was under the Government s control prior to the time set for receipt of proposals. FAR 15.208(b)(1)(ii) (emphasis added). Castle-Rose contends that this exception applies for proposals which reach a designated Government office but are not there received within the exact time specified.... Pl. Reply at 8. This is wrong. The exception does not mention reaching and only applies if the proposal is timely received. Castle-Rose does not contest 7
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 12 of 18 that its proposal was not received until sometime after the clock struck 2:01, after the deadline. Castle-Rose s arguments relying on Weeks Marine confuse the exception under FAR 15.208(b)(1)(ii) with the GAO-created exception for improper Government action. See Weeks Marine, Inc., B-292758, 2003 CPD 183 (Comp. Gen. Oct. 16, 2003). Consequently, the exception under FAR 15.208(b)(1)(ii) does not apply. C. The FAR Exception For Unanticipated Events Does Not Apply The unanticipated event exception similarly does not apply. This exception applies when two conditions are satisfied. First, an emergency or unanticipated event must interrupt[ ] normal Government processes so that proposals cannot be received at the Government office designated for receipt of proposals by the exact time specified in the solicitation. FAR 15.208(d). Second, urgent Government requirements must preclude amendment of the solicitation closing date. Id. Castle-Rose has not responded to our arguments that the procurement technician s decision to leave the lobby should have been anticipated and was not an event. Castle-Rose has also not responded to our argument that there were no urgent Government requirements precluding amendment of the solicitation closing date. Castle-Rose s contention that this event precluded timely receipt of proposals is absurd, because a messenger arriving before the clock struck 2:00 could have delivered a proposal in the lobby, or called for an escort to the second floor. This exception clearly does not apply. D. The Exception For Improper Government Action Does Not Apply In our opening brief, we explained that the GAO-created exception for improper Government action does not apply. In Castle-Rose s muddled argument regarding FAR 15.208(b)(1)(ii), Castle-Rose cites some of the GAO s reasoning for applying the 8
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 13 of 18 improper Government action exception in Weeks Marine, Inc., B-292758, 2003 CPD 183 (Comp. Gen. Oct. 16, 2003). In Weeks Marine, the GAO explained that the exception applies when the [G]overnment s affirmative misdirection such as erroneous solicitation instructions was the paramount cause of a bidder s untimely delivery.... Id. In that case, the GAO found that the exception applied because the messenger clearly arrived at the office designated in the solicitation before the deadline, but was then redirected to a different office and arrived one minute late. Id. In the present situation, the messenger did not arrive at the office designated in the solicitation, and the solicitation did not erroneously specify the wrong delivery room. Moreover, Castle-Rose has not argued that the Government was the paramount cause of the late delivery. The improper Government action exception does not apply. II. Castle-Rose s Complaint Should Be Dismissed Pursuant To RCFC 12(b)(1) For Lack Of Standing Because Castle-Rose s Proposal Was Late In our opening brief, we demonstrated that because Castle-Rose did not timely deliver a proposal, it lacks standing, and either its entire complaint or the claims alleging errors distinct from timeliness should be dismissed. Castle-Rose explains that if its proposal had been considered, Castle-Rose would have had a substantial chance of an award. Pl. Reply at 14-16. Castle-Rose s argument misses the point. We agree that if Castle-Rose had timely submitted a proposal, it would have standing to protest the award to Advanced Technology, Inc. Our argument is that if the Court finds that the Corps timeliness determination was not arbitrary or capricious, then the Court cannot consider any of Castle-Rose s remaining claims. III. Castle-Rose s Additional Claims Should Be Dismissed For Lack Of Standing, Or Fail On The Merits, Because They Allege Non-Prejudicial Errors In our opening brief, we demonstrated that any alleged errors distinct from the determination of lateness are non-prejudicial, and thus should be dismissed for lack of standing 9
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 14 of 18 or fail on the merits. Castle-Rose has not contested this argument. Castle-Rose claims that the Corps improperly failed to: promptly notify Castle-Rose that its proposal was late; reveal the reason for the delay of such notice; provide such notice from the contracting officer herself; provide a written justification for rejecting the proposal; give Castle-Rose an opportunity to submit evidence; and correctly adjudicate Castle-Rose s agency-level protest. None of these alleged errors affect whether the proposal was late. Thus, they are non-prejudicial, and should be dismissed or alternatively fail on the merits. IV. Castle-Rose s Claims Under FAR 1.102(b)(3), 1.102-2(c)(3); And Implied Contract, Should Be Dismissed For Lack Of Subject-Matter Jurisdiction, Or In The Alternative, Fail On The Merits In reliance upon FFTF Restoration Co. v. United States, 86 Fed. Cl. 226 (2009), Castle- Rose seems to argue that its implied contract claim fit[s] within the ambit of FAR 1.102(b)(3), 1.102-2(c)(3), and thus that this Court has jurisdiction pursuant to 28 U.S.C. 1491(b)(1). Id. at 242. To the extent FFTF held that this Court possessed jurisdiction to entertain implied contract claims, it was overruled by Resource Conservation Group, LLC v. United States, 597 F.3d 1238, 1242 (2010). Castle-Rose has not contested that under Resource Conservation, this Court does not possesses jurisdiction to entertain implied contract claims. Thus, the only remaining issue is whether the Court possesses jurisdiction to entertain claims under FAR 1.102(b)(3), 1.102-2(c)(3). FAR 1.102(b)(3), part of the guiding principles and vision for the federal acquisition system, states that the system will [c]onduct business with integrity, fairness, and openness. FAR 1.102(b)(3). FAR 1.102-2(c)(3), also part of the guiding principles and vision, states as a performance standard for conduct[ing] business with integrity, fairness, and openness that [t]he Government shall exercise discretion, use sound business judgment, and comply with 10
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 15 of 18 applicable laws and regulations in dealing with... prospective contractors and that prospective contractors shall be treated fairly and impartially but need not be treated the same. FAR 1.102-2(c)(3). As explained in our moving brief, the Court lacks jurisdiction to entertain these claims because the regulations merely provide guidance. See Am. Tel. & Tel. Co. v. United States ( AT&T ), 307 F.3d 1374, 1380 (Fed. Cir. 2002); Info. Sciences Corp. v. United States, 85 Fed. Cl. 195, 200-203 (2008). Castle-Rose argues that Information Sciences is wrong, and the Court should follow FFTF. Pl. Reply at 17. In FFTF, the Court held that FAR 1.102(b)(3), 1.102-2(c)(3) were judicially enforceable in challenges to cancellations of negotiated procurements. FFTF, 86 Fed. Cl. at 240 ( Thus, where, as here, the plaintiff claims that an agency, in deciding to cancel a negotiated procurement, has failed to [comply with] FAR 1.102(b)(3) and 1.102-2(c), this court has jurisdiction.... ) (emphasis added). The Court distinguished Information Sciences as arising under a different factual scenario not involving a cancellation decision. Id. at 240 n.18. Because the present case does not involve a cancellation of a negotiated procurement, FFTF does not apply and the Court should follow Information Sciences. Moreover, we respectfully disagree with the holding of FFTF regarding the justiciability of FAR 1.102(b)(3), 1.102-2(c)(3). In FFTF, outside of its summary of the Government s argument, the Court did not address the headings and explanations at the outset of FAR 1.102. These headings and explanations make clear that the provisions of FAR 1.102 are not intended to be judicially enforceable. Rather, they are a discussion of guiding principles providing a vision. FAR 1.102, 1.102-1. These are clearly cautionary and informative regulations that provide only internal governmental direction. AT & T, 307 F.3d at 1380. Therefore, the 11
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 16 of 18 Court lacks jurisdiction to entertain Castle-Rose s claims under FAR 1.102(b)(3), 1.102-2(c)(3). In our opening brief, we also explained that these claims fail on the merits. Castle-Rose contests only one of our arguments. Without citing any precedent, Castle-Rose continues to allege that the contracting officer may not delegate her duties to the contract specialist, and thus the determination of lateness and September 8, 2010 notice via email were improper. Castle-Rose argues that the contracting officer may only delegate her authority as set out in FAR 1.602-2(d), 1.604. These regulations were not effective until March 16, 2011, months after the events at issue, and thus are not applicable. Compare FAR 1.602-2(d), 1.604 (effective March 16, 2011) with FAR subpart 1.6 (effective September 30, 2005 to March 15, 2011). Even if they had been effective, FAR 1.602-2(d), 1.604 do not limit the contracting officer s ability to delegate in these circumstances. In response to the FAR s definition of contracting officer as including her representatives acting within delegated authority, see FAR 2.101, Castle-Rose cites another definition of contracting officer: a person who, by appointment in accordance with applicable regulations, has the authority to enter into a Federal agency procurement contract on behalf of the Government and to make determinations and findings with respect to such a contract. 41 U.S.C. 423(f)(5). This definition does not limit, or mention, delegation of authority, and does not conflict with the FAR 2.101 definition. Thus, 41 U.S.C. 423(f)(5) provides no support for Castle-Rose s assertions. It was acceptable for the contract specialist to determine that the proposal was late, and notify Castle-Rose via email on September 8. See FAR 2.101; Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007) ( When authorized, the contracting officer may 12
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 17 of 18 delegate some of its authority to certain designated representatives.... (citing JOHN CIBINIC, JR., RALPH C. NASH, JR., & JAMES F. NAGLE, ADMINISTRATION OF GOVERNMENT CONTRACTS 39 (4th ed. 2006))). Castle-Rose clearly received actual notice on September 8, when the contract specialist and Castle-Rose vice-president conversed about the matter over email. AR 16, 19-21. Castle-Rose has not alleged any prejudice arising from the September 8 notification, nor any authority under which the Corps was required to notify Castle-Rose earlier. Therefore, if the Court has jurisdiction to entertain Castle-Rose s claims under FAR 1.102(b)(3), 1.102-2(c)(3), these claims fail on the merits. V. Any Relief Awarded To Castle-Rose Should Be Limited To Bid Preparation Costs In our opening brief, we explained that Castle-Rose should not be awarded both injunctive relief and monetary damages, and Castle-Rose has not disagreed. We further demonstrated that the balance of equities weighs against injunctive relief. Therefore, any relief awarded to Castle-Rose should be limited to bid preparation costs. Castle-Rose argues that the financial harm to the Government caused by an injunction would be mitigated if Castle-Rose completes the remaining work. Castle-Rose contends that its lower price would provide the Government a price premium. Castle-Rose s lower price would only be a premium if Castle-Rose provided equal or better services for its price, and on this record, the relative quality of Castle-Rose s work is unknown. Moreover, the Government would only gain this purported premium if Castle-Rose were awarded the remainder of the contract. Castle-Rose s chances are speculative because price is only one factor in a best value procurement. Also, as demonstrated in our opening brief, the Government would incur significant costs to halt the ongoing work even if Castle-Rose was not selected to finish the 13
Case 1:11-cv-00163-CFL Document 22 Filed 05/11/11 Page 18 of 18 project. Therefore, the financial harm to the Government weighs against injunctive relief, and any relief awarded to Castle-Rose should be limited to bid preparation costs. CONCLUSION For these reasons, we respectfully request that the Court grant our motion to dismiss the complaint, or grant our motion for judgment upon the administrative record with respect to the timeliness issue and dismiss the remaining claims. In the alternative, we respectfully request that the Court grant our motion for judgment upon the administrative record with respect to all Castle-Rose s claims. Finally, we respectfully request the Court to deny Castle-Rose s motion for judgment upon the administrative record and deny Castle-Rose s motion for injunctive relief. Respectfully submitted, TONY WEST Assistant Attorney General JEANNE E. DAVIDSON Director s/ Bryant G. Snee by s/ Claudia Burke BRYANT G. SNEE Deputy Director OF COUNSEL: VIRGINIA K. RYAN Office of Counsel U.S. Army Corps of Engineers Seattle District Seattle, Washington May 10, 2011 s/ Joshua A. Mandlebaum JOSHUA A. MANDLEBAUM Trial Attorney Commercial Litigation Branch Civil Division Department of Justice P.O. Box 480 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-3091 Facsimile: (202) 514-8624 Attorneys for Defendant 14