Dolphin Park TT, LLC v. United States

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DOLPHIN PARK TT, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and IMPERIUM EQUITY PARTNERS, LLC, Defendant-Intervenor.

No. 21-1693

United States Court of Federal Claims

September 15, 2022

Post-Award Bid Protest; Motion for Judgment on the Administrative Record; Flood-Plain Determination; Meaningful Discussions Prejudice; Permanent Injunction; Standing; Disparate Treatment.

Richard J. Conway, Blank Rome LLP, with whom were Samarth Barot, both of Washington, DC, Brian S. Gocial, of Philadelphia, PA, Michael J. Slattery, of New York, NY, for plaintiff.

Vijaya S. Surampudi, Trial Attorney, Commercial Litigation Branch Civil Division, Department of Justice, with whom were Brian M. Boynton, Principal Deputy Assistant Attorney General Patricia M. McCarthy, Director, Eric P. Bruskin, Assistant Director, all of Washington, DC, for defendant. Liana D. Henry and Tammi Snyder-Queen, Attorney-Advisors, Office of General Counsel, General Services Administration, of counsel.

Diana Parks, Curran Legal Services Group, Inc., with whom was Hadeel N. Masseoud, both of Marietta, GA, for defendant-intervenor.

OPINION AND ORDER

RYAN T. HOLTE JUDGE

Plaintiff Dolphin Park TT, LLC brings this post-award bid protest challenging the U.S. General Services Administration's lease award to defendant-intervenor Imperium Equity Partners LLC. Plaintiff submitted numerous proposals-including its final proposal-containing incorrect floodplain designations. Plaintiff also made its proposal conditional on the government accepting numerous deviations from the solicitation, which the government declined to accept. Plaintiff alleges the government failed to conduct meaningful discussions of these issues, evaluated proposals in a prejudicially disparate manner, and erred by agreeing with plaintiff's erroneous proposal and excluding plaintiff from the award. Plaintiff, however, is responsible for submitting a well-written proposal. The government is entitled to rely on the information contained in proposals-consistent with the evidence on the record and plaintiff's many proposal revisions, the government properly excluded plaintiff's property due to its floodplain status. Pending before the Court are plaintiff's motion for judgment on the administrative record and motion for a permanent injunction, the government's cross-MJAR, and defendant-intervenor's cross-MJAR and motion to dismiss. For the following reasons, the Court denies plaintiff's MJAR, denies plaintiff's motion for permanent injunction, grants the government's and defendant-intervenor's cross-MJARs, and denies defendant-intervenor's motion to dismiss.

I. Factual Background

A. The Request for Lease Proposals

On 17 November 2020, the General Services Administration ("GSA") issued Request for Lease Proposals No. 6FL0544 ("RLP") to procure office space in Miami, Florida, for the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATFE"). AR at 1891 (RLP cover sheet), ECF No. 51. The RLP stated the lease would be awarded "to the responsible Offeror whose offer conforms to the requirements of this RLP and the Lease documents and is the lowest priced technically acceptable offer submitted." AR at 1942 (RLP § 4.03(A)). Section 2.02 of the amended RLP stated "[a] Lease will not be awarded for any offered Property located within a 100-year floodplain unless the Government has determined that there is no practicable alternative." AR at 1933 (RLP § 2.02). Section 2.02 further stated: "a Lease will not be awarded for any offered Property adjacent to [a] 100-year floodplain, where such an adjacency would, as determined by the [lease contracting officer], in his or her sole discretion, restrict ingress or egress to the Premises in the event of a flood, unless there is no practicable alternative." Id. Among other confirmations, each offeror, as a part of its proposal, was required to indicate whether its property was: (1) "in a base (100-year) flood plain"; (2) "in a 500-year flood plain"; or (3) "not in a flood plain." AR at 636 (form 1364 within a sample lease proposal form for the RLP).

The RLP required offerors to provide documentation of their property interest in the proposed building either by providing a deed, lease, a fully executed written agreement to acquire the proposed building together with a statement from the current owner, or other "satisfactory" documentation "prior to award." AR at 1938-39 (RLP § 3.06(D)-(E)). The RLP further required that offerors' property interest "submittals must remain current," and offerors are "required to submit updated documents as required." Id. Offerors could obtain a deviation from the RLP requirements, but were advised: "GSA at its sole discretion will make the decision whether or not to accept the deviation[,]" AR at 1941 (RLP § 3.06(X)); "the Government will not be under any obligation to award a Lease" to offers taking exception to or modifying an RLP provision, AR at 1942 (RLP § 4.03(C)); and, unless construed otherwise, offers containing deviations would be considered non-compliant, AR at 2049 (GSAM § 552.270-1(c)(6), incorporated in the RLP).

B. Plaintiff's Proposals and Agency Discussions

Since 2008, plaintiff has been the incumbent lessor for the RLP and submitted a proposal for the same office space it currently leases to the ATFE on 15 December 2020. Am. Compl. ¶ 3, ECF No. 50; AR at 678 (plaintiff's initial proposal). In its initial proposal, plaintiff marked its property as "in a 500-year flood plain." AR at 680. Despite this representation, plaintiff's initial proposal included the National Flood Hazard Layer ("NFHL") Flood Insurance Rate Map ("FIRM") No. 12086C0267L, generated by the official Federal Emergency Management Agency ("FEMA") website, which showed plaintiff's property within a 100-year floodplain. AR at 696; Pl.'s MJAR & Mot. PI ("Pl.'s MJAR") at 4, ECF No. 54. Further, plaintiff's initial proposal included an "additional remarks and/or conditions" addendum in response to item number 31 on form 1364, containing twenty terms, stating: "This Offer is conditioned upon the following items and any lease awarded in response to the RLP shall reflect and incorporate these remarks or conditions." AR at 681-84 (plaintiff's initial proposal conditional terms addendum). Lastly, plaintiff's initial proposal did not mark compliance with item number 33 on form 1364, which stated the following:

33. BY SUBMITTING THIS OFFER, THE OFFEROR AGREES UPON ACCEPTANCE OF THIS PROPOSAL BY HEREIN SPECIFED DATE, TO LEASE TO THE UNITED STATES OF AMERICA, THIS PREMISES DESCRIBED, UPON THE TERMS AND CONDITIONS AS SPECIFIED HEREIN, IN FULL COMPLIANCE WITH AND ACCEPTANCE OF THE AFOREMENTIONED RLP, WITH ATTACHMENTS.

[ ] I have read the RLP with attachments in its entirety and am requesting no deviations.

AR at 679 (plaintiff's initial proposal).

After reviewing plaintiff's proposal, the government's broker, Megan Shulin, GSA Broker Contractor for Public Properties, LLC, sent plaintiff's broker, Edward Welbourn, CBRE First Vice President, a letter via email on 12 January 2021. AR at 2664 (Shulin email to Welbourn). The email stated the GSA was seeking revised proposals, advised Mr. Welbourn to "please see our request and deficiency letter attached," and included an attached PDF titled: "6FL0544 Deficiency Letter Dolphin Corporate Center." Id. (emphasis added). The email provided a time for a call "to discuss these deficiencies." Id. The attached "deficiency letter" stated, among other discussion items: "Please confirm in which floodzone [sic] property is located." AR at 1644 (12 January 2021 deficiency letter). The deficiency letter also identified plaintiff's "additional remarks" addendum as an item for discussion. Id.

On 15 January 2021, the government's broker, Megan Shulin, and contracting officer ("CO"), Kazi Rizvi, conducted a "negotiation call" to discuss the initial proposal with plaintiff's brokers, Edward Welbourn, CBRE First Vice President, and Timothy Hutchens, CBRE Executive Vice President. AR at 1644, 2664. Following the call, on 26 January 2021, plaintiff submitted a revised proposal again marking its property as "in a 500-year flood plain," but this time without inclusion of the FEMA map. AR at 875 (plaintiff's first revised proposal). Plaintiff's revised proposal also did not revise item numbers 31 and 33 on form 1364, although, like the map, plaintiff left out the addendum. AR at 874 (plaintiff's revised proposal's item number 31 still stating, "[s]ee additional remarks or conditions included as part of this offer[,]" without the addendum attached, and item number 33 remaining unmarked).

On 1 February 2021, Megan Shulin emailed Edward Welbourn once again, this time requesting "Final Proposal Revisions." AR at 2667. The email's subject line stated, "Request for Final Offers," and included a PDF attachment titled: "6FL0544 Request for FPR_Dolphin Corporate Center." Id. The attachment advised plaintiff of a "negotiation call . . . scheduled to discuss your revised offer . . . [and] will include a complete review of your revised proposal." AR at 1650 (1 February 2021 request for FPRs). The attachment identified one specific discussion item: "Pricing and concessions to be discussed." Id. On 9 February 2021, after the negotiation call, plaintiff once again revised its proposal. AR at 1001 (plaintiff's second revised proposal). This time, plaintiff indicated its property is "in a base (100-year) flood plain" without including the FEMA map. AR at 1003. Plaintiff's second revised proposal again did not revise item numbers 31 and 33 on form 1364, and again left out the "additional remarks or conditions" addendum. AR at 1002.

On 11 March 2021, GSA issued an amended RLP and requested "Final Offers." AR at 2671 (Shulin email to...