Eco Tour Adventures, Inc. v. United States

In the United States Court of Federal Claims

No. 13-532 C

(Filed December 12, 2013)1

********************* Pre-Award Bid Protest; National

ECO TOUR ADVENTURES, INC., * Park Service Concessions

* Management Improvement Act

Plaintiff, * of 1998, 16 U.S.C. §§ 5951-5966

* (2012); Right of Preference for

v. * Preferred Offerors; Procurement

* Integrity Act, 41 U.S.C. §§ 2101-

THE UNITED STATES, * 2107 (Supp. V 2011); Implied

* Contract to Consider Bids Fairly

Defendant. * and Honestly.

*********************

Kevin R. Garden, Alexandria, VA, for plaintiff.

Joshua A. Mandlebaum, United States Department of Justice, with whom

were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director,

and Reginald T. Blades, Jr., Assistant Director, Washington, DC, for defendant.

_________________________

OPINION AND ORDER

_________________________

BUSH, Senior Judge.

Now pending before the court are the parties’ cross-motions for judgment on

the administrative record. Plaintiff Eco Tour Adventures, Inc. (Eco Tour) filed a

pre-award bid protest complaint on August 1, 2013, and filed an amended

1

/ This opinion was issued under seal on November 26, 2013. Pursuant to ¶ 6 of the

ordering language, the parties were invited to identify proprietary or confidential material subject

to deletion on the basis that the material was protected/privileged. The parties submitted their

proposed redactions on December 11, 2013. Brackets ([ ]) identify the redacted portions of this

opinion.

complaint on August 8, 2013.2 In this protest, Eco Tour objects to the anticipated

award by the United States Department of the Interior, National Park Service (the

Park Service or NPS) of two concession contracts to provide guided cross-country

ski tours, including associated transportation and food services, in Grand Teton

National Park. Eco Tour alleges that certain actions taken by NPS in connection

with its selection of cross-country ski touring concessioners were arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law. Eco

Tour seeks a permanent injunction, declaratory relief, and bid preparation costs, as

well as attorney fees and costs incurred in pursuing this bid protest.

The administrative record (AR) was originally filed on August 12, 2013, and

supplements to the AR were filed on September 6, 2013, and October 1, 2013.3

Briefing was filed according to an expedited schedule and oral argument was held

on November 8, 2013. As discussed below, the NPS violated applicable law, acted

arbitrarily and capriciously, and abused its discretion in concluding that incumbent

concessioners Jackson Hole Mountain Resort Corporation and The Hole Hiking

Experience, Inc. submitted proposals that were “responsive” to the requirements of

the prospectus and in allowing them to match the better terms of Eco Tour’s

proposals for the disputed contracts. Accordingly, plaintiff’s motion for judgment

on the administrative record is granted, and defendant’s motion for judgment on

the administrative record is denied.4

2

/ The court notes that plaintiff’s name appears as “EcoTour” in several portions of the

administrative record, including in plaintiff’s proposals for the disputed contracts. See, e.g., AR

Tabs 21-22. However, the court will refer to plaintiff as “Eco Tour,” as that is the spelling of

plaintiff’s name used in the complaint and amended complaint.

3

/ On September 6, 2013, the government filed a supplement to the AR with

documentation of the source-selection authority’s final decisions. AR Tabs 42-45. On October

1, 2013, the court granted the government’s unopposed motion to further supplement the AR to

include a copy of the signed transmittal letter accompanying Jackson Hole Mountain Resort

Corporation’s proposal. AR Tab 46.

4

/ Although the court concludes that Eco Tour has prevailed on the merits of its bid

protest, the court does not grant all of plaintiff’s requested relief for the reasons discussed infra.

2

BACKGROUND

I. Statutory and Regulatory Framework for NPS Concession Contracts

Congress first created the NPS in 1916, authorizing the Secretary of the

Interior to “grant privileges, leases, and permits for the use of land for the

accommodation of visitors in the various parks, monuments, or other reservations”

under the Secretary’s authority. Act of Aug. 25, 1916, ch. 408, Pub. L. No. 64-

235, § 3, 39 Stat. 535, 535; Circle Line-Statue of Liberty Ferry, Inc. v. United

States, 76 Fed. Cl. 490, 491 (2007) (Circle Line). From its inception, the NPS

offered financial incentives to attract concessioners to provide services in National

Park locations and to induce substantial capital investments on those lands. See

Circle Line, 76 Fed. Cl. at 491; S. Rep. No. 89-765, at 7 (1965), reprinted in 1965

U.S.C.C.A.N. 3489, 3495. These incentives included a preferential right of

renewal, allowing an incumbent concessioner to renew its contract by matching the

best offer of any competing bidder so long as it had performed its present contract

satisfactorily. See Circle Line, 76 Fed. Cl. at 491 (citation omitted); S. Rep. No.

89-765, at 7, 10-11.

For almost fifty years, the NPS recognized the preferential right of renewal

as a matter of policy, although it did not generally write such a term within its

concession contracts. Circle Line, 76 Fed. Cl. at 491-92. In 1965, however,

Congress enacted the National Park Service Concession Policies Act, Pub. L. No.

89-249, 79 Stat. 969 (the 1965 Act), in order to “put into statutory form policies

which, with certain exceptions, have heretofore been followed by the National Park

Service in administering concessions.” S. Rep. No. 89-765, at 1.

In November 1998, Congress revisited the issue of renewal preferences in

the National Park Service Concessions Management Improvement Act of 1998,

Pub. L. No. 105-391, tit. IV, 112 Stat. 3497, 3503 (the 1998 Act) (codified at 16

U.S.C. §§ 5951-5966 (2012)), which repealed the 1965 Act and “establish[ed] a

new and comprehensive concession management program for national parks.”

Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 806 (2003)

(National Park Hospitality); see also Circle Line, 76 Fed. Cl. at 492. Having

found that “[t]rue competition simply did not exist” in the award of concession

contracts, Concession Contracts, 65 Fed. Reg. 20630, 20630 (Apr. 17, 2000),

Congress restricted the right of preference set forth in the 1965 Act to apply only to

3

(1) “outfitting and guide” concessioners and (2) concessioners holding contracts

with annual gross receipts under $500,000, 16 U.S.C. § 5952(7)-(8); Circle Line,

76 Fed. Cl. at 492; 65 Fed. Reg. at 20630-31. 5

Under the 1998 Act, an outfitting and guide concessioner is entitled to

exercise a right of preference if each of the following requirements is satisfied:

(i) the contract with the outfitting and guide

concessioner does not grant the concessioner any interest

. . . in capital improvements on lands owned by the

United States within a unit of the National Park System

[with certain exceptions not relevant here] . . .

(ii) the Secretary determines that the concessioner has

operated satisfactorily during the term of the contract

(including any extension thereof); and

(iii) the concessioner has submitted a responsive

proposal for a proposed new contract which satisfies the

minimum requirements established by the Secretary

pursuant to [16 U.S.C. § 5952(4)].

5

/ The 1998 Act defines the term “outfitting and guide concessions contract” as follows:

[A] concessions contract which solely authorizes the provision of

specialized backcountry outdoor recreation guide services which

require the employment of specially trained and experienced

guides to accompany park visitors in the backcountry so as to

provide a safe and enjoyable experience for visitors who otherwise

may not have the skills and equipment to engage in such activity.

Outfitting and guide concessioners, where otherwise qualified,

include concessioners which provide guided river running,

hunting, fishing, horseback, camping, and mountaineering

experiences.

16 U.S.C. § 5952(8)(B).

4

16 U.S.C. § 5952(8)(B). In contrast, a concessioner holding a concession contract

with annual gross receipts under $500,000 is entitled to exercise a right of

preference if requirements (ii) and (iii) above are satisfied. Id. § 5952(8)(C).

The 1998 Act directed the Secretary of the Interior to promulgate regulations

“appropriate” for the implementation of the 1998 Act. Id. § 5965. Pursuant to this

statutory grant of authority, the NPS promulgated implementing regulations in

April 2000. 65 Fed. Reg. 20630 (codified at 36 C.F.R. §§ 51.1-51.104 (2013)).

Under the regulations, an incumbent concessioner that is eligible to exercise

a right of preference is referred to as a “preferred offeror.” 36 C.F.R. § 51.27(a).

A concessioner is a preferred offeror if each of the following conditions is met:

(a) The concessioner was a satisfactory concessioner

during the term of its concession contract . . . ;

(b) The applicable new contract is a qualified concession

contract . . . ; 6 and

6

/ For purposes of 36 C.F.R. § 51.36(b), a new contract is a “qualified concession

contract” if the NPS Director determines that:

(a) The new concession contract provides for the continuation of

the visitor services authorized under a previous concession contract

. . . ; and either

(b) The new concession contract . . . is estimated to result in . . .

annual gross receipts of less than $500,000 . . . ; or

(c) The new concession contract is an outfitter and guide

concession contract . . . .

Id. § 51.37. “Visitor services” are defined as “accommodations, facilities and services

determined by the Director as necessary and appropriate for public use and enjoyment of a park

area provided to park area visitors for a fee or charge by a person other than the Director.” Id. §

51.3. Such services “may include, but are not limited to, lodging, campgrounds, food service,

merchandising, tours, recreational activities, guiding, transportation, and equipment rental.” Id.

5

(c) If applicable, the concessioner’s previous concession

contract was an outfitter and guide concession contract . .

..

Id. § 51.36.

Preferred offeror status does not guarantee a right of preference, however.

Under the regulations, in order to exercise a right of preference and match the best

offer of any competing bidder, a preferred offeror must first submit a “responsive”

proposal. Id. § 51.27(b) (“A right of preference is the right of a preferred offeror,

if it submits a responsive proposal for a qualified concession contract, to match in

accordance with the requirements of this part the terms and conditions of a

competing proposal that the [NPS] Director has determined to be the best

responsive proposal.”) (emphasis added); id. § 51.30 (“A preferred offeror must

submit a responsive proposal . . . if the preferred offeror wishes to exercise a right

of preference.”); id. § 51.31. A “responsive” proposal is “a timely submitted

proposal that is determined by the Director as agreeing to all of the minimum

requirements of the proposed concession contract and prospectus and as having

provided the information required by the prospectus.” Id. § 51.3.

If a preferred offeror fails to submit a responsive proposal, the preferred

offeror “may not exercise a right of preference” and the contract “will be awarded

to the offeror submitting the best responsive proposal.” Id. § 51.31. If, however,

the preferror offeror submits a responsive proposal, the NPS “must advise the

preferred offeror of the better terms and conditions of the best proposal and permit

the preferred offeror to amend its proposal to match them.” Id. § 51.32. If a

preferred offeror amends its proposal within the time period allowed by the NPS,

and the NPS determines that the amended proposal matches the better terms and

conditions of the best proposal, then the NPS “must select the preferred offeror for

award of the contract upon the amended terms and conditions.” Id. Conversely,

“[i]f a preferred offeror does not amend its proposal to meet the terms and

conditions of the best proposal within the time period allowed by the Director, the

Director will select for award of the contract the offeror that submitted the best

responsive proposal.” Id. § 51.33.

6

II. The Disputed Contracts and Eco Tour’s Bid Protest

On December 20, 2012, NPS issued a prospectus, titled “A Concession

Business Opportunity for Guided Ski Touring Services within Grand Teton

National Park,” soliciting proposals for three concession contracts – GRTE024-13,

GRTE025-13, and GRTE032-13 – for the provision of guided cross-country ski

touring services, including associated transportation and food services, in Grand

Teton National Park. AR Tabs 4-17 (prospectus and appendices). Proposals for

the contracts were to be submitted no later than March 20, 2013. AR Tab 4 at 9,

27.

The concession services solicited by the prospectus are currently being

provided by incumbent concessioners Jackson Hole Mountain Resort Corporation

(Jackson Hole), under contract GRTE024-03; Powder Hounds, Inc., doing business

as Rendezvous Ski Tours, under contract GRTE025-03; and The Hole Hiking

Experience, Inc. (Hole Hiking), under contract GRTE032-03. The NPS has

“determined [that] the three existing Concessioners are qualified contracts and,

therefore the existing Concessioners are Preferred Offerors for the New Contracts.”

AR Tab 4 at 24; see also Tab 2 at 4 (concluding that “[a]ll three Winter Ski Tour

Contracts will be released as having preferred offeror status”). The agency’s

determination in that regard is not in dispute.

The prospectus included detailed instructions setting forth the protocol for

submitting proposals and the selection factors to be used by the NPS to evaluate

proposals. See AR Tab 4 at 25-31. Of particular relevance to this bid protest, the

instructions state that “[o]nly an Offeror submitting a responsive proposal is

eligible to be awarded the new concession contract.” Id. at 27. The instructions

define a “responsive proposal” as a “timely submitted proposal that is determined

by the Service as agreeing to all of the minimum requirements of the draft

concession contract and Prospectus and as having provided the information

required by the Prospectus.” Id. In addition, paragraph 1(d) of the instructions

defines “information required by the prospectus” as “information expressly

required by the Prospectus and that is material, as determined by the Service, to an

effective evaluation of the proposal under the applicable selection factor.” Id. at

27 (emphasis added).

7

The instructions further provide that NPS, when evaluating proposals, “will

apply the principal selection factors and secondary factors as set forth in 36 C.F.R.

Part 51 by assessing each timely proposal under each of the selection factors on the

basis of a narrative explanation discussing any subfactors when applicable and

other supporting information.” Id. at 28.7 The principal and secondary selection

factors set forth in the instructions are:

Principal Selection Factor 1. The responsiveness of the

proposal to the objectives, as described in the prospectus,

of protecting, conserving, and preserving resources of the

park area;

Principal Selection Factor 2. The responsiveness of the

proposal to the objectives, as described in the prospectus,

of providing necessary and appropriate visitor services at

reasonable rates;

Principal Selection Factor 3. The experience and

related background of the Offeror, including the past

performance and expertise of the Offeror in providing the

same or similar visitor services as those to be provided

under the new concession contract;

Principal Selection Factor 4. The financial capability

of the Offeror to carry out its proposal;

Principal Selection Factor 5. The amount of the

proposed minimum franchise fee, if any, and/or other

forms of financial consideration to the Service.

Consideration of revenue to the United States will be

subordinate to the objectives of protecting, conserving,

and preserving resources of the park area and of

providing necessary and appropriate visitor services to

the public at reasonable rates; and

7

/ The selection factors set forth in the prospectus are consistent with those set forth in

the 1998 Act, see 16 U.S.C. § 5952(5), and the regulations, see 36 C.F.R. § 51.17.

8

....

Secondary Selection Factor 1. The quality of the

Offeror’s proposal to conduct its operations in a manner

that furthers the protection, conservation, and

preservation of the park area and other resources through

environmental management programs and activities,

including, without limitation, energy conservation, waste

reduction, and recycling.

Id. at 29. Each proposal was to receive a “score that reflects the determined merits

of the proposal under the applicable selection factor and in comparison to the other

proposals received.” AR Tab 4 at 28. The first four principal selection factors

were to be scored from zero to five; the fifth principal selection factor was to be

scored from zero to four; and the secondary selection factor was to receive a score

from zero to three. Id. The NPS would then “assign a cumulative point score to

each proposal based on the assigned score for each selection factor.” Id. at 29.

The prospectus also included a proposal package explaining the minimum

requirements of the disputed contracts as well as the information required by the

prospectus. Part A of the proposal package sets forth the minimum requirements

of the disputed contracts. Id. at 27, 41. Although Part A states that principal

selection factors 3 and 4 “do not have specific requirements,” it also states that

certain information “is required for principal selection factors 3 and 4” and that

“[f]ailure to provide material information required thereunder may result in an

offeror being deemed non-responsive.” Id. at 41.

Part B of the proposal package provides explanations for each of the

selection factors, and also sets forth various subfactors to be considered by the

NPS in evaluating proposals. Of particular relevance here, the subfactors under

principal selection factor 4 list the specific information “required” by Part A of the

proposal package:

Subfactor 4(a). Demonstrate that you have a credible,

proven track record of meeting your financial

obligations by providing the following:

9

(1) The completed Business History Information

Form provided on the next page. . . .

(2) Financial statements for the two most recent

fiscal years in one of the following formats:

o NPS Concessioner Annual Financial Reports

(AFR), including a current balance sheet if a

balance sheet was not submitted as part of the

AFR. . . .

(3) A CURRENT credit report (within the last six

months) in the name of the Offeror from a major

credit reporting company such as Equifax,

Experian, TRW or Dun & Bradstreet. . . .

Subfactor 4(b). Demonstrate that your proposal is

financially viable and that you understand the

financial obligations of the Draft Contract by

providing the following:

(1) Please list . . . the personal property

(equipment) . . . with monetary value over $500

that you will be using for this operation. Please

note whether you currently own this equipment or

not. . . .

(2) Please estimate the amount of money that you

will need to begin operating the business in the

format of the table below. Only provide estimates

for the Personal Property items (Equipment) that

you need to acquire in order to begin operating.

Do not include items that you already own. . . .

(3) Please demonstrate that your proposal is

financially feasible (that you will have a

reasonable opportunity to make a profit from your

10

business while carrying out the terms and

conditions of the Draft Contract) by completing

the Proforma Income Statement and Operating

Assumptions. . . .

o Please fully explain the assumptions on which you

base your projections and detail them sufficiently

so the Service can determine whether the

projections are realistic. . . .

Subfactor 4(c). Demonstrate your ability to obtain

the required funds for start-up costs under the Draft

Contract by providing credible, compelling

documentation, particularly evidence from

independent sources, such as bank statements,

financial statements, and signed loan commitment

letters. Fully explain the financial arrangements you

propose, using the following guidelines:

....

(4) Current bank statements must be provided,

regardless of the funding source . . . . Current

bank statements must be provided even if you do

not anticipate significant start-up costs.

Id. at 49-54.

For contract GRTE024-13, the NPS received timely proposals from Eco

Tour, Jackson Hole (the preferred offeror), and two other offerors. AR Tabs 20-

21. For contract GRTE032-13, the NPS received timely proposals from Eco Tour,

Hole Hiking (the preferred offeror), and two other offerors. AR Tabs 19, 22. Eco

Tour did not compete for contract GRTE025-13; therefore, the only contracts in

dispute are contract GRTE024-13 and contract GRTE032-13.

An evaluation panel reviewed each proposal against the five principal

selection factors and one secondary selection factor, and assigned cumulative

11

scores to each proposal. AR Tabs 23-24. Eco Tour’s proposals received the

highest cumulative scores for both contract GRTE024-13 and contract GRTE032-

13. AR Tab 23 at 1094, Tab 24 at 1120. The evaluation panel therefore

determined that Eco Tour submitted the best proposals for both contracts. AR

Tabs 28-29, Tab 42 at 1272-75, 1304-07, Tab 43 at 1312-15, 1344-47.

In its evaluation of Jackson Hole’s and Hole Hiking’s proposals, the panel

found that each offeror had omitted certain financial information specified by

principal selection factor 4. AR Tab 23 at 1112-16, Tab 24 at 1138-42, Tab 42 at

1273, Tab 43 at 1313. Despite these omissions, the panel nevertheless found

Jackson Hole’s and Hole Hiking’s proposals to be “responsive to the minimum

requirements of the Prospectus.” AR Tab 30 at 1190, Tab 31 at 1193; see also AR

Tab 42 at 1273-74, 1304-06, Tab 43 at 1313-14, 1344-46. Accordingly, in letters

dated June 20, 2013, the NPS advised Jackson Hole and Hole Hiking that they

could exercise a right of preference by agreeing to match twelve terms of Eco

Tour’s proposals that the evaluation panel “determined were elements of a better

offer”:

1. Principal Selection Factor 1 Subfactor (a). The

best proposal committed to an Idle Free Policy to

protect the air that surrounds the park as well as

minimize any disturbance to wildlife from the sound

of a running vehicle. . . .

2. Principal Selection Factor 1 Subfactor (a). The

best proposal committed to requiring guides to carry

a minimum of one pair of binoculars on each tour to

share with guests. . . .

3. Principal Selection Factor 1 Subfactor (b). The

best proposal committed to carrying a vehicle spill

kit to contain fluid spills in case of leaks or

accidents. The best proposal committed to scanning

the parking area and cleaning up any leaks from the

vehicle. . . . An example of a spill kit is the Pig Spill

Kit in Spill Pack.

12

4. Principal Selection Factor 1 Subfactor (b). The

best proposal committed to removing all solid

human waste with human waste removal bags. The

best proposal committed to carrying one human

waste removal bag per person, in addition to extra

bags in case they are needed. The best proposal

committed to removing all toilet paper and hygiene

products. . . . An example of the human waste

removal bags are the Cleanwaste WagBag products.

5. Principal Selection Factor 1 Subfactor (b). The

best proposal committed to removing all trash

created while on tours and disposing of the waste

outside of the Park, in order to limit the frequency of

trash trucks traveling in the park. . . .

6. Principal Selection Factor 2 Subfactor (b). The

best proposal committed to requiring Wilderness

First Responder certification for all guides. . . .

7. Principal Selection Factor 2 Subfactor (b). The

best proposal committed to requiring all driving

guides to complete a winter driving program. . . .

8. Principal Selection Factor 5 . . . . The best

proposal committed to a franchise fee of 4.25% of

annual gross receipts or a flat fee of $500, whichever

is greater. . . .

9. Secondary Selection Factor 1 Subfactor (a). The

best proposal committed to using reusable plates,

reusable silverware, cloth napkins and reusable mugs

on the tour in order to reduce the amount of trash

produced on each tour. . . .

10. Secondary Selection Factor 1 Subfactor (a). The

best proposal committed to providing each guest

13

with a high quality, Made in America, reusable water

bottle for guest use on the tour. Guests are given the

bottle to take home with them. The goal of the water

bottle is to limit plastic petroleum disposable bottles

and encourage visitors to reuse their new water

bottle while in the area. . . .

11. Secondary Selection Factor 1 Subfactor (a). The

best proposal described how it will train its guides

about the Wilderness Act using, among other

methods, an online training course called “The

Wilderness Act of 1964” produced by the Eppley

Institute for Parks and Public Lands. . . .

12. Secondary Selection Factor 1 Subfactor (a). The

best proposal described how it will monitor the

accuracy of the information guides provide on tours

by having the owner or manager shadow each guide

unannounced at least once per season. . . .

AR Tab 30 at 1190-91, Tab 31 at 1193-94.

The NPS also asked both Jackson Hole and Hole Hiking to “expand on your

initial response . . . in order to bring the quality of your response up to the level of

the best proposal” by providing the financial information that had been omitted

from Jackson Hole’s and Hole Hiking’s proposals. AR Tab 30 at 1192, Tab 31 at

1195. In that regard, the NPS requested the following financial information that

had been omitted from Jackson Hole’s proposal:

1. Principal Selection Factor 4 Subfactor (a). The

best proposal provided a complete set of financial

statements. Although you submitted an Annual

Financial Report (AFR), it did not contain a balance

sheet. Please submit a current balance sheet or a

balance sheet as of the year ending date of the AFR.

14

2. Principal Selection Factor 4 Subfactor (a). The

best proposal provided a current credit report.

Although you provided your Dun & Bradstreet

Company ID, the National Park Service (Service) is

unable to run the report. Please submit a current

credit report for each Offeror-Guarantor.

3. Principal Selection Factor 4 Subfactor (c). The

best proposal provided a current bank statement as

requested in Principal Selection Factor 4 Subfactor c,

question 4. Please submit a current bank statement.

AR Tab 30 at 1192. Additionally, the NPS requested the following financial

information that had been omitted from Hole Hiking’s proposal:

1. Principal Selection Factor 4 Subfactor (a). The

best proposal provided a complete set of financial

statements. Although you submitted an Annual

Financial Report (AFR) it did not appear to be

complete. Please submit the complete AFR for 2011

and 2012.

2. Principal Selection Factor 4 Subfactor (b). The

best proposal provided clear revenue and expense

projection assumptions. Please submit additional

assumptions for your revenue and expense

projections. The panel is interested in understanding

why revenue projections are so much higher than

historical projections and why some of the expense

assumptions appear low.

3. Principal Selection Factor 4 Subfactor (b). The

best proposal provided a clear Pro forma. Please

correct the mathematical errors on the Pro forma and

resubmit.

15

4. Principal Selection Factor 4 Subfactor (c). The

best proposal provided substantial documentation

related to its financial position. Although you

provided a balance sheet and bank statement, the

reporting period of the balance sheet did not

correspond with the bank statement. The panel is

interested in understanding your financial position,

specifically, if you have a cash position to respond to

any unanticipated expenses as you indicated you do

not need any financing in Subfactor 4c. Please

submit a current bank statement with a list of current

liabilities.

AR Tab 31 at 1195.

Both Jackson Hole and Hole Hiking timely exercised a right of preference

by agreeing to match the twelve terms set forth in NPS’s June 20, 2013 letters and

by providing the requested additional financial information. AR Tabs 25-26, Tabs

32-35, Tab 38, Tab 44 at 1368-83, Tab 45 at 1400-20.

Eco Tour filed its bid protest complaint in this court on August 1, 2013, and

filed an amended complaint on August 8, 2013. Eco Tour’s amended complaint

contains three counts. In Count I, Eco Tour alleges that the NPS violated

applicable law, acted arbitrarily and capriciously, and abused its discretion by

finding that Jackson Hole’s and Hole Hiking’s proposals were “responsive” to the

requirements of the prospectus and by allowing them to match the better terms of

Eco Tour’s proposals for contracts GRTE024-13 and GRTE032-13. In Count II,

Eco Tour alleges that the NPS violated the Procurement Integrity Act, as amended,

41 U.S.C. §§ 2101-2107 (Supp. V 2011), by disclosing to Jackson Hole and Hole

Hiking information that Eco Tour had allegedly marked in its proposal as

confidential. Finally, in Count III, Eco Tour alleges that the NPS violated

applicable law, acted arbitrarily and capriciously, and abused its discretion when it

found that Jackson Hole and Hole Hiking had matched all of the better terms of

Eco Tour’s proposals for contracts GRTE024-13 and GRTE032-13. With respect

to all three counts, Eco Tour further asserts that the NPS’s actions breached an

implied contractual obligation of the government to consider bids fairly and

honestly.

16

On August 19, 2013, the court amended the briefing schedule to allow time

for the government to obtain final decisions from the source-selection authority. 8

The source-selection authority subsequently determined that Eco Tour, Jackson

Hole, and Hole Hiking had submitted responsive proposals for the contracts at

issue, that Eco Tour’s proposals were the best, and that Jackson Hole and Hole

Hiking had amended their proposals to match the terms of Eco Tour’s best

proposals. AR Tabs 42-45. On September 4, 2013, the source-selection authority

determined that contracts GRTE024-13 and GRTE032-13 should be awarded to

Jackson Hole and Hole Hiking, respectively. AR Tab 44 at 1352-53, Tab 45 at

1384-85.

DISCUSSION

I. Jurisdiction

Before proceeding to the merits of Eco Tour’s bid protest, the court must

address the threshold issue of jurisdiction. Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94-95 (1998) (“The requirement that jurisdiction be established as a

threshold matter . . . is ‘inflexible and without exception.’” (quoting Mansfield, C.

& L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884))); Hambsch v. United States,

857 F.2d 763, 765 (Fed. Cir. 1988) (“When a court is without jurisdiction to hear a

case, it is correspondingly without authority to decide the merits of that case.”)

(citations omitted).

Although the government does not question the court’s jurisdiction to

consider Eco Tour’s claims, the parties dispute the source of that jurisdiction and,

8

/ On August 15, 2013, the government filed a motion to dismiss the amended complaint

on ripeness grounds based on the government’s assertion that the source-selection authority had

not rendered final decisions with respect to the award of the disputed contracts. On August 19,

2013, the court deferred ruling and suspended briefing on defendant’s motion to allow the

source-selection authority to render final decisions and to allow defendant to supplement the

administrative record accordingly. The government filed a supplement to the AR with

documentation of the source-selection authority’s final decisions on September 6, 2013, AR Tabs

42-45, and the government did not renew its motion to dismiss in connection with its motion for

judgment on the administrative record. Accordingly, the court denies defendant’s motion to

dismiss as moot.

17

correspondingly, the nature of the relief the court is authorized to grant. Eco Tour

seeks injunctive and declaratory relief, as well as bid preparation costs, and asserts

that the court possesses jurisdiction to grant such relief pursuant to 28 U.S.C. §

1491(a)(1) (2006) and 28 U.S.C. § 1491(b)(1) (2006). See Am. Compl. ¶ 1; Pl.’s

Mot. at 43-48. Defendant contends that “[r]elief under 28 U.S.C. § 1491(b) is

unavailable because the contracts at issue are not procurements.” Def.’s Mot. at

28. For the reasons specified below, the court agrees with the government that

section 1491(a)(1) – not section 1491(b)(1) – provides the jurisdictional basis for

Eco Tour’s claims.

Section 1491(b)(1), which Congress added to the Tucker Act by enacting the

Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320,

sec. 12, § 1491, 110 Stat. 3870, 3874, grants the court “jurisdiction to render

judgment on an action by an interested party objecting to a solicitation by a Federal

agency for bids or proposals for a proposed contract or to a proposed award or the

award of a contract or any alleged violation of statute or regulation in connection

with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1)

(emphasis added). As the United States Court of Appeals for the Federal Circuit

has held, “relief under [section] 1491(b)(1) is unavailable outside the procurement

context.” Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1245

(Fed. Cir. 2010) (Resource Conservation). Thus, whether the court has jurisdiction

under section 1491(b)(1) depends upon whether the disputed solicitation for

concessions contracts involved a “procurement.”

Section 1491(b) does not define the term “procurement.” However, for

purposes of determining the scope of section 1491(b), the Federal Circuit has

adopted the definition of “procurement” contained in 41 U.S.C. § 403(2), which

has been reorganized into 41 U.S.C. § 111 (Supp. V 2011). Resource

Conservation, 597 F.3d at 1244 (citing Distributed Solutions, Inc. v. United States,

539 F.3d 1340, 1345-46 (Fed. Cir. 2008)). Section 111 provides that “the term

‘procurement’ includes all stages of the process of acquiring property or services,

beginning with the process for determining a need for property or services and

ending with contract completion and closeout.” 41 U.S.C. § 111.

The court has previously noted the existence of “conflicting authority as to

whether a solicitation for concession contracts is a ‘procurement.’” Frazier v.

United States, 79 Fed. Cl. 148, 160 & n.5 (2007), aff’d, 301 F. App’x 974 (Fed.

18

Cir. 2008). This court has thrice ruled that concession contracts are not

procurement contracts, albeit not in the specific context of a bid protest

jurisdictional challenge. Terry v. United States, 98 Fed. Cl. 736, 737 (2011)

(holding that a concession contract for the operation of a t-shirt kiosk at Fort

Benning was not a procurement contract subject to the Contract Disputes Act

(CDA), 41 U.S.C. §§ 7101-7109 (Supp. V 2011), because it did not involve the

procurement of property or services by the government); Frazier v. United States,

67 Fed. Cl. 56, 59 (2005) (same with respect to a concession lease for the operation

of a marina on a federal reservoir), aff’d, 186 F. App’x 990 (Fed. Cir. 2006); YRT

Servs. Corp. v. United States, 28 Fed. Cl. 366, 392 n.23 (1993) (YRT Services)

(concluding that an NPS concession contract for the provision of “lodging, food

and gift services” in Yosemite National Park “does not constitute a procurement,

but is a grant of a permit to operate a business and the government is not

committing to pay out government funds or incur any monetary liability”). 9

In contrast to YRT Services and related decisions of this court, the Interior

Board of Contract Appeals has consistently held that NPS concession contracts are

procurement contracts subject to the CDA, see, e.g., Watch Hill Concessions, Inc.,

IBCA No. 4284-2000, 2001 WL 170911 (Feb. 16, 2001) (holding that “at least in

any concession contract where the concessioner is required to perform specific

services or to make specific improvements to the land it occupies, as is the case

here, the contract is a procurement contract, subject to the Contract Disputes Act”),

and the Government Accountability Office (GAO) has consistently held that

concession contracts which involve the delivery of more than de minimis services

to a federal agency are procurement contracts, see, e.g., Great South Bay Marina,

9

/ In Blue & Gold Fleet, LP v. United States, 70 Fed. Cl. 487 (2006), aff’d, 492 F.3d

1308 (Fed. Cir. 2007) (Blue & Gold Fleet), this court assumed, without deciding, that it had

jurisdiction under section 1491(b) over a pre-award bid protest involving an NPS concession

solicitation. 70 Fed. Cl. at 492. Jurisdiction was not challenged on appeal, and the Federal

Circuit likewise assumed, without deciding, that the Court of Federal Claims had jurisdiction

under section 1491(b). 492 F.3d at 1313, 1315. The Federal Circuit in Blue & Gold Fleet did

not address the issue of whether NPS concession contracts are procurement contracts subject to

section 1491(b). This is unsurprising, given that Blue & Gold Fleet was decided before

Resource Conservation, which clarified that section 1491(b)(1) bid protest jurisdiction is limited

to the procurement context. 597 F.3d at 1245. Because Blue & Gold Fleet did not address the

issue of the jurisdictional basis for bid protests involving NPS concession contracts, it is not

dispositive of that issue here.

19

Inc., B-296335, 2005 CPD ¶ 135, 2005 WL 1650829, at *1 (Comp. Gen. July 13,

2005) (“It has consistently been our Office’s view that a mixed transaction that

includes the delivery of goods or services of more than de minimis value to the

government is a contract for the procurement of property or services within the

meaning of [the Competition in Contracting Act, 31 U.S.C. §§ 3551-3556

(2006)].” (citing Starfleet Marine Transp., Inc., B-290181, 2002 CPD ¶ 113, 2002

WL 1461877 (Comp. Gen. July 5, 2002))).

The court, cognizant of the somewhat conflicting authority on this issue,

concludes that the greater weight of authority is to the effect that NPS concession

contracts, such as those in dispute in this bid protest, are not contracts for the

procurement of goods and services, and thus are not subject to the court’s section

1491(b) jurisdiction. As an initial matter, the court notes that the prospectus at

issue here “is issued under the authority of” the regulations set forth at 36 C.F.R.

§§ 51.1-51.104, which are incorporated by reference into the prospectus and

control in the event of any inconsistency between the terms of the prospectus and

the regulations. See AR Tab 4 at 27. In the regulations, the NPS has taken the

position that NPS concession contracts “are not contracts within the meaning of

[the CDA] and are not service or procurement contracts within the meaning of

statutes, regulations or policies that apply only to federal service contracts or other

types of federal procurement actions.” 36 C.F.R. § 51.3; see also National Park

Hospitality, 538 U.S. at 806 (quoting 36 C.F.R. § 51.3); 65 Fed. Reg. at 20635

(“NPS concession contracts [under the 1998 Act] do not procure services for the

government; rather, they authorize third parties to provide services to park area

visitors.”).

Although the court is not bound to accept the agency’s views regarding NPS

concession contracts, the agency’s reasoning finds support in the language of the

1998 Act, which indicates in several places that NPS concession contracts are for

the provision of goods and services to the public, not to the government. See, e.g.,

16 U.S.C. § 5952 (directing the Park Service to enter into concession contracts “to

authorize a person, corporation or other entity to provide accommodations,

facilities and services to visitors to units of the National Park System”) (emphasis

added); id. § 5955 (requiring that “[e]ach concessions contract shall permit the

concessioner to set reasonable and appropriate rates and charges for facilities,

goods, and services provided to the public”) (emphasis added). The 1998 Act also

requires that “[a] concessions contract shall provide for payment to the government

20

of a franchise fee or such other monetary consideration as determined by the

Secretary.” 16 U.S.C. § 5956; see also AR Tab 4 at 24, 41, 55, 64 (prospectus

stating that concessioners will be charged a “franchise fee” equal to at least three

percent of the concessioner’s gross receipts or a flat fee of $500, whichever is

greater). Thus, according to the language of the 1998 Act itself, NPS concession

contracts appear to be unlike traditional government procurement contracts insofar

as the government does not make payments to the contractor in exchange for the

provision of goods or services to the government; instead, concessioners pay the

government a fee for the privilege of charging the public for services provided to

the public. See YRT Services, 28 Fed. Cl. at 392 n.23. The essence of NPS

concession contracts is not the acquisition of goods or services by the government,

but the grant, for a fee, of certain rights to private contractors.

The agency’s reasoning also finds support in the legislative history of the

1998 Act. The committee reports accompanying the 1998 Act concluded that Park

Service concession contracts “do not constitute contracts for the procurement of

goods and services for the benefit of the government or otherwise.” S. Rep. No.

105-202, at 39 (1998); H.R. Rep. No. 105-767, at 43 (1998).

Additionally, it is worth noting that the United States Court of Appeals for

the District of Columbia Circuit has concluded, in the context of a challenge to 36

C.F.R. § 51.3, that NPS concession contracts are not procurement contracts subject

to the CDA. See Amfac Resorts, L.L.C. v. Dep’t of the Interior, 282 F.3d 818, 835

(D.C. Cir. 2002) (“A procurement contract . . . is a contract for which the

government bargains for, and pays for, and receives goods and services.

Concession contracts are not of that sort.”) (citation and internal quotation marks

omitted), vacated on other grounds sub nom National Park Hospitality, 538 U.S.

803. Although the D.C. Circuit’s opinion in Amfac Resorts was later vacated by

the United States Supreme Court on ripeness grounds, see National Park

Hospitality, 538 U.S. at 808-12, its analysis nevertheless provides further support

for the conclusion that NPS concession contracts are not procurement contracts

because they do not involve the payment of money or conferral of a benefit by the

government in exchange for goods and services.

The court has considered Eco Tour’s arguments in support of section

1491(b) jurisdiction and finds them unpersuasive. In its reply brief, Eco Tour

argues that “the contracts at issue qualify as procurements by NPS of services,

21

through contractors, that meet NPS’s statutory obligations” under the 1998 Act.

Pl.’s Reply at 22. This ipse dixit argument carries no authoritative weight, and

avails Eco Tour nothing. Accordingly, the court concludes that the concession

contracts in dispute are not procurement contracts and, consequently, the court

lacks jurisdiction under section 1491(b).

As noted, Eco Tour also alleges that defendant’s actions breached an implied

contractual obligation to treat offerors fairly. See Am. Compl. ¶¶ 105, 115, 122;

Pl.’s Mot. at 40-42. This court has long had jurisdiction, under 28 U.S.C. §

1491(a), to hear cases and grant relief premised on the theory that when the

government invites bids or solicits proposals from the public, it enters into an

“implied-in-fact” contract to consider those bids or proposals fairly. See e.g.,

Resource Conservation, 597 F.3d at 1242; Impresa Construzioni Geom. Domenico

Garufi v. United States, 238 F.3d 1324, 1331 (Fed. Cir. 2001); Southfork Sys., Inc.

v. United States, 141 F.3d 1124, 1132 (Fed. Cir. 1998); CACI, Inc.-Federal v.

United States, 719 F.2d 1567, 1573 (Fed. Cir. 1983). The Federal Circuit recently

held, in Resource Conservation, that this court’s implied-in-fact contract

jurisdiction under section 1491(a) survives, post-ADRA, for bid protests in which

section 1491(b) may not provide a remedy. 597 F.3d at 1245-47. Based on this

binding precedent, the court concludes that it has jurisdiction over Eco Tour’s

implied contract claims under section 1491(a).

II. Standards of Review

A. Judgment on the Administrative Record

Rule 52.1(c) of the Rules of the United States Court of Federal Claims

(RCFC) provides for judgment on the administrative record. To review a motion

or cross-motions under RCFC 52.1(c), the court asks whether, given all the

disputed and undisputed facts, a party has met its burden of proof based on the

evidence in the record. Bannum, Inc. v. United States, 404 F.3d 1346, 1356-57

(Fed. Cir. 2005). The court must make factual findings where necessary. Id. The

resolution of RCFC 52.1(c) cross-motions is akin to an expedited trial on the paper

record. Id.

22

B. Bid Protest Review

The court first examines whether the plaintiff in a bid protest has standing to

bring the suit. Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312,

1319 (Fed. Cir. 2003) (ITAC). Bid protest standing is limited to those plaintiffs

who are actual or prospective bidders and whose direct economic interest would be

affected by the award of the contract or by the failure to award the contract. Orion

Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (citation

omitted). In the circumstances of a pre-award protest where, as here, an award

decision has been made but not finalized, a protester possessing a “substantial

chance” of winning the disputed contract has a “direct economic interest” and has

standing before this court. Id. at 1348-49.

Upon determining that a plaintiff has standing to sue, the court next

considers the merits of the bid protest. A bid protest proceeds in two steps, with

the trial court first determining whether the government acted without a rational

basis or contrary to law, and then determining as a factual matter whether the

plaintiff was prejudiced by the arbitrary or unlawful conduct. Bannum, 404 F.3d at

1351.

The standard of review for the typical bid protest brought pursuant to section

1491(b) is whether the agency action was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law (the APA standard). 28 U.S.C.

§ 1491(b)(4) (incorporating the APA standard set forth in 5 U.S.C. § 706 (2012));

Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed. Cir. 2004)

(citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58

(Fed. Cir. 2000)). Under the APA standard, a procurement decision may be set

aside if it lacks a rational basis or if the agency’s decision-making involved a clear

and prejudicial violation of statute or regulation. Banknote, 365 F.3d at 1351;

Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1085-86 (Fed.

Cir. 2001) (citing Impresa, 238 F.3d at 1332-33).

The APA standard is “highly deferential.” Advanced Data Concepts, 216

F.3d at 1058. Under this standard, de minimis errors in the procurement process do

not justify relief. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed.

Cir. 1996) (citing Andersen Consulting v. United States, 959 F.2d 929, 932-33, 935

(Fed. Cir. 1992)). A bid protest plaintiff bears the burden of proving that a

23

significant error marred the procurement in question. Id. (citing CACI Field

Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed. Cir. 1988)). Examples of

arbitrary and capricious agency action include “when the agency ‘entirely failed to

consider an important aspect of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency, or [the decision] is so

implausible that it could not be ascribed to a difference in view or the product of

agency expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586

F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (alteration in original). The court will,

however, “uphold a decision of less than ideal clarity if the agency’s path may

reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,

Inc., 419 U.S. 281, 286 (1974) (citation omitted).

Similarly, to recover under the implied contract for bids to be fairly and

honestly considered in a protest brought pursuant to section 1491(a), a plaintiff

must establish that the agency acted arbitrarily or capriciously, or abused its

discretion. Southfork, 141 F.3d at 1132 (citing Keco Indus., Inc. v. United States,

492 F.2d 1200, 1203 (Ct. Cl. 1974) (Keco II)); Distributed Solutions, Inc. v. United

States, 106 Fed. Cl. 1, 25 (2012) (citations omitted), aff’d, 500 F. App’x 955 (Fed.

Cir. 2013); FAS Support Servs., LLC v. United States, 93 Fed. Cl. 687, 694 (2010)

(citing Keco II, 492 F.2d 1200). The standard of review for a bid protest alleging a

breach of the implied contract under section 1491(a) is, therefore, “essentially the

same” as the APA standard applicable to protests pursued under section 1491(b).

FAS Support, 93 Fed. Cl. at 694.

“‘If the court finds a reasonable basis for the agency’s action, the court

should stay its hand even though it might, as an original proposition, have reached

a different conclusion as to the proper administration and application of the

procurement regulations.’” Honeywell, Inc. v. United States, 870 F.2d 644, 648

(Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301

(D.C. Cir. 1971)). If, on the other hand, the protester has shown a significant error

in the procurement process, the court must determine as a factual matter whether

that error prejudiced the protester, because both error and prejudice are required for

the protester to prevail. Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.

Cir. 1996) (citing Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.

1996)).

24

A bid protest plaintiff bears the burden of establishing prejudice. Bannum,

404 F.3d at 1358. To meets its burden, a protester must show that there was a

“substantial chance” it would have received the contract, but for the agency’s

alleged error. Bannum, 404 F.3d at 1353; Alfa Laval Separation, Inc. v. United

States, 175 F.3d 1365, 1367 (Fed. Cir. 1999); Data Gen. Corp., 78 F.3d at 1562.

This “substantial chance” inquiry is the same as that applied to determine a

protester’s standing. Thus, in this bid protest, the “substantial chance” standard

must be applied twice: first, to determine EcoTour’s standing to bring its suit; and,

second, to determine whether EcoTour suffered prejudice as a result of any

adjudged errors in the procurement process. See, e.g., Linc Gov’t Servs., LLC v.

United States, 96 Fed. Cl. 672, 695-96 (2010) (differentiating between

“allegational prejudice” and “APA prejudice,” both of which apply the “substantial

chance” test).

III. Standing

Although the government has not challenged Eco Tour’s standing in either

its motion for judgment on the administrative record or its reply brief, standing is a

threshold inquiry that the court must address before considering the merits. ITAC,

316 F.3d at 1319. As stated supra, bid protest standing is limited to those plaintiffs

with a substantial chance of winning the contracts at issue in the protest. Orion,

704 F.3d at 1348-49. The record demonstrates that Eco Tour submitted responsive

proposals that received the highest cumulative scores of any of the proposals

received by the NPS for the disputed contracts. AR Tab 23 at 1094, Tab 24 at

1120, Tabs 28-29, Tab 42 at 1272-74, Tab 43 at 1312-14. Thus, under the

regulations, there is a substantial chance that Eco Tour would have been awarded

the disputed contracts if not for the errors alleged in the amended complaint. See

36 C.F.R. §§ 51.31, 51.33. Accordingly, the court concludes that Eco Tour has

standing to bring its bid protest.

IV. Analysis of the Merits

Eco Tour challenges three determinations by the NPS as arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law. First,

Eco Tour challenges the agency’s determination that Jackson Hole and Hole

Hiking submitted “responsive” proposals despite their failure to include certain

financial information required by the prospectus. Second, Eco Tour alleges that

25

the Park Service violated applicable law – including the Procurement Integrity Act

and the implied contract to consider bids fairly and honestly – by disclosing to

Jackson Hole and Hole Hiking information that Eco Tour had allegedly marked in

its proposal as confidential. Third, Eco Tour alleges that the NPS improperly

failed to require Hole Hiking to match one of the better terms of Eco Tour’s

proposal for contract GRTE032-13, and therefore improperly determined that Hole

Hiking had matched all of the better terms of Eco Tour’s proposal for that contract.

A. The Agency’s “Responsiveness” Determination (Count I) 10

With respect to Count I, Eco Tour asserts that Jackson Hole and Hole Hiking

omitted from their proposals certain financial information required by the

prospectus, and that the NPS therefore erred in determining that these preferred

offerors’ proposals were “responsive.” 11 Pl.’s Mot. at 19-37. In this regard, Eco

10

/ The court is mindful that, in procurements subject to the Federal Acquisition

Regulation (FAR), the concept of responsiveness is generally confined to sealed bidding. See

Excel Mfg., Ltd. v. United States, 111 Fed. Cl. 800, 806 & n.3 (2013); Dyonyx, L.P. v. United

States, 83 Fed. Cl. 460, 468 (2008) (citations omitted). By contrast, “[i]n negotiated

procurements, a proposal that fails to conform to the material terms and conditions of the

solicitation should be considered unacceptable and a contract award based on such an

unacceptable proposal violates the procurement statutes and regulations.” E.W. Bliss Co. v.

United States, 77 F.3d 445, 448 (Fed. Cir. 1996) (citations and internal quotation marks omitted).

As explained supra, solicitations for NPS concession contracts are not “procurements” subject to

the FAR. Moreover, as the government correctly noted at oral argument, the NPS’s

determination of the “responsiveness” of proposals for the disputed contracts is mandated by the

particular regulations governing NPS concession contracts. Tr. at 53-54; see also 36 C.F.R. §§

51.27, 51.30-51.31. Accordingly, the aforementioned authorities confining the concept of

responsiveness to sealed bidding are inapplicable in the unique context of NPS concession

contracts.

11

/ Eco Tour also argues that Jackson Hole’s proposal was non-responsive because

Jackson Hole did not submit a signed transmittal letter with its proposal as required by the

prospectus. Pl.’s Mot. at 14-15, 22-23; see AR Tab 4 at 27 (prospectus instructions stating that

“[f]ailure to submit a signed Offeror’s Transmittal Letter . . . will make your proposal non-

responsive”), 35 (proposal package stating that the transmittal letter “indicates your acceptance

of the terms and conditions of the concession opportunity as set forth in this Prospectus” and

“must bear original signatures”), Tab 20 at 638-40 (Jackson Hole’s unsigned transmittal letter).

However, after the filing of Eco Tour’s motion, the government supplemented the AR to include

a copy of the signed transmittal letter accompanying Jackson Hole’s proposal. See AR Tab 46.

(continued . . .)

26

Tour relies upon the regulations implementing the 1998 Act, which define a

“responsive” proposal as “a timely submitted proposal that is determined by the

Director as agreeing to all of the minimum requirements of the proposed

concession contract and prospectus and as having provided the information

required by the prospectus.” 36 C.F.R. § 51.3 (emphasis added).

The court agrees with Eco Tour that the prospectus required each offeror to

submit with its proposal certain financial information to allow the NPS to evaluate

the financial capability of the offeror to carry out its proposal. As noted, Part A of

the proposal package stated that certain information “is required for principal

selection factors 3 and 4,” and that “[f]ailure to provide material information

required thereunder may result in an offeror being deemed non-responsive.” AR

Tab 4 at 41. Part B of the proposal package listed the specific financial

information “required” by Part A. Id. at 49-54.

The court also agrees with Eco Tour that neither Jackson Hole nor Hole

Hiking submitted with their proposals all of the financial information required by

the prospectus. With its proposal for contract GRTE024-13, Jackson Hole

provided: (1) a business history form; (2) Annual Financial Reports (AFRs) for

two previous years; (3) a chart of the equipment to be used and its value; (4) a pro

forma income statement; and, (5) a chart of financial “operating assumptions.” AR

Tab 20 at 705-23. However, Jackson Hole’s proposal did not include the balance

sheet or credit report required under principal selection subfactor 4(a) or bank

statements required under principal selection subfactor 4(c). AR Tab 23 at 1112,

Tab 30 at 1192, Tab 42 at 1305-06.

With its proposal for contract GRTE032-13, Hole Hiking provided: (1) a

business history form; (2) AFRs for two previous years; (3) a balance sheet; (4) a

credit report; (5) a chart of the equipment to be used and its value; (6) a pro forma

income statement; (7) a chart of financial “operating assumptions”; and, (8) bank

statements from January and February 2013. AR Tab 19 at 588-613, 615-18, 620-

26. However, the Park Service found that the AFRs submitted by Hole Hiking

were incomplete, AR Tab 24 at 1139, Tab 31 at 1195, Tab 43 at 1345-46, and

Therefore, Eco Tour’s additional responsiveness argument is unsupported by the record. Indeed,

Eco Tour did not continue to advance that particular argument in either its reply brief or at oral

argument.

27

noted that Hole Hiking failed to completely explain its revenue and expense

projections, AR Tab 24 at 1140, Tab 31 at 1195. The Park Service also determined

that the pro forma income statement submitted by Hole Hiking contained

“numerous mistakes,” AR Tab 24 at 1140, including “mathematical errors,” AR

Tab 31 at 1195. Additionally, the Park Service concluded that the January and

February 2013 bank statements submitted by Hole Hiking did not correspond to

the reporting period of Hole Hiking’s balance sheet, and therefore the Park Service

was unable to ascertain whether Hole Hiking’s cash position was sufficient “to

respond to any unanticipated expenses” in light of Hole Hiking’s assertion that it

did not require any financing for start-up costs. AR Tab 31 at 1195. Finally, the

NPS determined that Hole Hiking’s balance sheet contained certain unspecified

“anomalies,” AR Tab 43 at 1346, and noted that “without notes to explain the

balance sheet, the panel was concerned with the financial position of the Offeror,”

AR Tab 24 at 1139.

Despite these omissions, the NPS found that Jackson Hole’s and Hole

Hiking’s proposals were “responsive to the minimum requirements of the

Prospectus” because the agency determined that the omitted financial information

was not material to an effective evaluation of the proposals. AR Tab 37 at 1244

(“The lack of quality and omissions [in the preferred offerors’ proposals] were

reflected in lower scores for the preferred offerors; however, the omissions were

not significant enough to hamper an effective evaluation of the proposals.”), Tab

40 at 1268 (same), Tab 42 at 1305-06 (responsiveness determination for Jackson

Hole), Tab 43 at 1345-46 (responsiveness determination for Hole Hiking). In that

regard, the NPS relied upon paragraph 1(d) of the prospectus instructions, which

limits the meaning of the term “information required by the prospectus” to only

such information as is “material, as determined by the Service, to an effective

evaluation of the proposal under the applicable selection factor.” AR Tab 4 at 27

(emphasis added).

Eco Tour first contends that paragraph 1(d) of the prospectus instructions is

contrary to the regulations insofar as it limits the definition of “information

required by the prospectus” to information that is expressly required by the

prospectus and is deemed “material” by the NPS. Pl.’s Mot. at 27-32; Pl.’s Reply

at 4-5. Next, Eco Tour contends that, even if the NPS were allowed to impose

such a “materiality” limitation, the agency acted arbitrarily and capriciously, and

abused its discretion, in determining that the financial information omitted from

28

Jackson Hole’s and Hole Hiking’s proposals was not material to an effective

evaluation of those proposals. Pl.’s Mot. at 32-37; Pl.’s Reply at 6-10. Therefore,

to resolve Eco Tour’s claims with respect to Count I, the court must determine

whether the NPS violated applicable law, acted arbitrarily and capriciously, or

abused its discretion in determining that the financial information omitted from

Jackson Hole’s and Hole Hiking’s proposals was not material.

1. Eco Tour’s Objection to the Materiality Limitation Set

Forth in Paragraph 1(d) of the Prospectus Instructions

Eco Tour first contends that the NPS acted contrary to law and abused its

discretion by limiting the definition of “information required by the prospectus” to

only such information that the NPS deems “material . . . to an effective evaluation

of the proposal under the applicable selection factor.” Pl.’s Mot. at 30. In that

regard, Eco Tour relies upon the definition of “responsive” set forth in 36 C.F.R. §

51.3, and contends that paragraph 1(d) of the prospectus instructions is “directly

contrary to the plain language of” 36 C.F.R. § 51.3 insofar as the regulation “does

not include a provision that allows NPS to limit the term ‘required’ to information

which NPS, in its discretion, determines is ‘material to an effective evaluation of

the proposal.’” Id. Eco Tour also argues that paragraph 1(d) constitutes an

improper “expan[sion] [of] the very limited exception set by Congress for when a

concessioner can exercise a right of preference and evade true competition.” Id. at

31. For the reasons specified below, the court concludes that the NPS neither acted

contrary to law nor abused its discretion in imposing a materiality limitation.

a. Eco Tour Waived Any Objection to Paragraph 1(d)

Defendant argues that Eco Tour’s contention that “materiality” cannot be a

factor in evaluating responsiveness is a challenge to paragraph 1(d) of the

prospectus instructions, and, as such, is waived because Eco Tour failed to object

to paragraph 1(d) before the deadline for the submission of proposals. See Def.’s

Mot. at 11-12 (citing Blue & Gold Fleet, LP v. United States, 492 F.3d 1308, 1313-

14 (Fed. Cir. 2007)). The court agrees.

It is axiomatic that “a party who has the opportunity to object to the terms of

a government solicitation containing a patent error and fails to do so prior to the

close of the bidding process waives it ability to raise the same objection

29

subsequently in a bid protest action in the Court of Federal Claims.” Blue & Gold

Fleet, 492 F.3d at 1313. Citing the desire to prevent contractors “from taking

advantage of the government and other bidders” and to “avoid[] costly after-the-

fact litigation,” the Federal Circuit, in Blue & Gold Fleet, stated that “‘[v]endors

cannot sit on their rights to challenge what they believe is an unfair solicitation,

roll the dice and see if they receive the award.’” Id. at 1314 (quoting Argencord

Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 175 n.14 (2005)); see also

Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1362-63 (Fed. Cir. 2009).

Blue and Gold Fleet thus prevents a protester from raising post hoc objections to

the terms of a solicitation. That is precisely what Eco Tour seeks to do here. Eco

Tour’s argument that the materiality limitation in paragraph 1(d) of the prospectus

instructions conflicts with 36 C.F.R. § 51.3 is, essentially, an allegation of patent

error in the prospectus. Having failed to object to the materiality limitation before

the deadline for the submission of proposals, Eco Tour has waived its right to do so

before this court. See Blue & Gold Fleet, 492 F.3d at 1313.

In an attempt to avoid the waiver rule announced in Blue & Gold Fleet, Eco

Tour asserts that it is not challenging the terms of the prospectus, but rather

invoking the prospectus’s own mechanism for resolving conflict between the terms

of the prospectus and the regulations, which are incorporated by reference into the

prospectus and control in the event of any inconsistency. See Pl.’s Mot. at 30 n.8

(“[B]ecause the terms of the Prospectus were not defective, Eco Tour was not

required to challenge those terms prior to the submission of its proposal.”); Pl.’s

Reply at 13. Eco Tour’s argument in this regard is unpersuasive and unsupported.

A patent ambiguity is “present when the contract contains facially inconsistent

provisions that would place a reasonable contractor on notice and prompt the

contractor to rectify the inconsistency by inquiring of the appropriate parties.”

Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed.

Cir. 2000). To the extent that there is any conflict between the prospectus

instructions and the regulations incorporated by reference into the contract –

insofar as the former impose a materiality limitation on the definition of

“information required by the prospectus” – any such conflict is a patent ambiguity

regarding which Eco Tour “‘had a duty to seek clarification from the government’”

before the close of bidding. Blue & Gold Fleet, 492 F.3d at 1314 (quoting Stratos

30

Mobile Networks, 213 F.3d at 1381). Accordingly, Eco Tour’s challenge to the

materiality limitation in paragraph 1(d) is waived.12

b. The Materiality Requirement in Paragraph 1(d) Is

Consistent with 36 C.F.R. § 51.3

Even assuming, arguendo, that Eco Tour did not waive its right to challenge

the materiality limitation in paragraph 1(d), its challenge fails for the additional

reason that such a limitation is not contrary to law. As noted supra, 36 C.F.R. §

51.3 defines a “responsive” proposal as “a timely submitted proposal that is

determined by the Director as agreeing to all of the minimum requirements of the

proposed concession contract and prospectus and as having provided the

information required by the prospectus.” Although section 51.3 does not expressly

provide for a materiality limitation, it also does not preclude such a limitation.

Indeed, by including the phrase “determined by the Director,” section 51.3 confers

discretion upon the NPS to determine whether a proposal has provided the

information required by the prospectus. Contrary to Eco Tour’s argument, this

conferral of discretion is sufficiently broad to allow the NPS to place limits on the

definition of “information required by the prospectus.”

Neither is paragraph 1(d) in conflict with the 1998 Act. Eco Tour argues

that by imposing a materiality limitation the NPS “is improperly trying to expand

the very limited exception set by Congress for when a concessioner can exercise a

right of preference and evade true competition.” Pl.’s Mot. at 31. Yet, the 1998

Act provides that outfitting and guide concessioners such as Jackson Hole and

Hole Hiking are entitled to exercise a preferential right of renewal if, inter alia, the

concessioner “has submitted a responsive proposal for a proposed new contract

which satisfies the minimum requirements established by the Secretary pursuant to

[16 U.S.C. § 5952(4)].” 16 U.S.C. § 5952(8)(B)(iii).

12

/ The only authority Eco Tour cites in support of its argument that it was not required

to challenge paragraph 1(d) before the close of bidding is BayFirst Solutions, LLC v. United

States, 102 Fed. Cl. 677, 681-82 (2012). See Pl.’s Mot. at 30 n.8. That case is inapposite

because it did not involve a challenge to the terms of a solicitation, but rather a challenge to the

agency’s evaluation of proposals. Eco Tour’s reliance upon the court’s passing statement that a

chart contained in the solicitation “could, with effort, be harmonized with the weighting scheme

presented on the previous page of the solicitation,” BayFirst, 102 Fed. Cl. at 681, is therefore

fruitless.

31

Moreover, the materiality limitation in paragraph 1(d) is consistent with

analogous precedent applying provisions of the FAR in the context of negotiated

procurements. Under such precedent, “‘a proposal that fails to conform to the

material terms and conditions of the solicitation should be considered unacceptable

and a contract award based on such an unacceptable proposal violates the

procurement statutes and regulations.’” Allied Tech. Grp., Inc. v. United States,

649 F.3d 1320, 1329 (Fed. Cir. 2011) (emphasis added) (quoting E.W. Bliss, 77

F.3d at 448); Furniture by Thurston v. United States, 103 Fed. Cl. 505, 518 (2012)

(“It is blackletter law that a procuring agency may only accept an offer that

conforms to the material terms of the solicitation.” (emphasis added) (citing

Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009))).

Although such FAR-based cases are not directly applicable to the concession

contracts at issue in this bid protest, they further undermine Eco Tour’s contention

that a materiality component to responsiveness is contrary to law. See YRT

Services, 28 Fed. Cl. at 414 n.33 (“[T]he language and experience represented by

the FAR is helpful for reference purposes.”).

2. Was the Agency’s Materiality Determination a

Responsibility Determination?

The government argues that because the information omitted from Jackson

Hole’s and Hole Hiking’s proposals related to their financial ability to carry out

their proposals, the NPS’s determination that these omissions were immaterial was

a responsibility determination, not a responsiveness determination. Def.’s Mot. at

14; Def.’s Reply at 4-6. As such, defendant contends that the agency’s materiality

determination is “effectively unreviewable absent a claim of fraud or bad faith.”

Def.’s Mot. at 14; Def.’s Reply at 5. Inasmuch as Eco Tour has not formally

alleged fraud or bad faith on the part of the NPS, the government argues that Eco

Tour’s challenge to the agency’s responsiveness determination “need not be

considered further by the Court.” Def.’s Mot. at 15; see also Def.’s Reply at 6.

In response, Eco Tour asserts that the deference typically afforded to an

affirmative determination of responsibility is inappropriate here because the NPS

“was not making a threshold ‘responsibility’ determination with regard to this

information, but in fact was evaluating, comparing and scoring proposals on a 0-5

point scale pursuant to Principal Selection Factor 4 and as required by the

32

regulations.” Pl.’s Reply at 11; see also id. (“This information was not part of a

‘yes/no’ responsibility determination, it was sought as part of an effort to evaluate

and score each offeror’s capabilities by comparing them to the other offerors.”).

Eco Tour also argues that “in making ‘responsibility’ determinations under the

FAR, government agencies do not identify specific information that must be

provided as NPS did here, but instead they allow bidders to provide whatever

information they believe would show their ‘responsibility’ after bids are opened.”

Pl.’s Reply at 12 (citing John C. Grimberg Co. v. United States, 185 F.3d 1297,

1299 (Fed. Cir. 1999), and Blount, Inc. v. United States, 22 Cl. Ct. 221, 226

(1990)). Here, by contrast, the prospectus requires specific financial information

and the regulations governing NPS concession contracts provide very limited

circumstances in which proposals may be amended or supplemented after the

deadline for submitting proposals has passed. Pl.’s Reply at 12 (citing 36 C.F.R. §

51.15(a) (allowing offerors to amend or supplement proposals after submission

only if “requested by the Director to do so and the Director provides all offerors

that submitted proposals a similar opportunity to amend or supplement their

proposals”)).

The court agrees with Eco Tour that the NPS’s materiality determination

was not a responsibility determination. Although a determination of an offeror’s

financial capability is traditionally considered to pertain to the offeror’s

responsibility, e.g., Supreme Foodservice GmbH v. United States, 112 Fed. Cl.

402, 413 (Fed. Cl. 2013) (“A responsibility evaluation includes consideration of

financial backing as well as the ability to meet the operational requirements of the

contract . . . .”) (citations omitted); Blount, 22 Cl. Ct. at 227; see also 48 C.F.R. §

9.104-1 (2012) (setting forth “general standards” for responsibility in the

procurement context, including “adequate financial resources to perform the

contract, or the ability to obtain them”), here the offerors’ financial capability is

one of several evaluation factors considered under a comparative assessment of the

various proposals. By contrast, a determination of responsibility is a “pass/fail

inquiry.” PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 527 (2010) (citing 48

C.F.R. § 9.103); see also Frontier Sys. Integrators, LLC, B-298872.3, 2007 CPD ¶

46, 2007 WL 776887, at *5 (Comp. Gen. Feb. 28, 2007) (“Our Office has long

held that pass/fail evaluations of capability issues, such as past performance, are

tantamount to responsibility determinations, with the result that a rating of

‘unacceptable’ in these areas is the same as a determination of nonresponsibility.”

(citing Phil Howry Co., B-291402.4, 2003 CPD ¶ 33, 2003 WL 282206 (Comp.

33

Gen. Feb. 6, 2003))). A consideration of responsibility-related factors, such as

financial capability, in the context of a comparative assessment of proposals does

not constitute a responsibility determination. See, e.g., PlanetSpace, 92 Fed. Cl. at

546 (“Standing apart from the responsibility determination, however, procuring

agencies may, in the context of a comparative evaluation of proposals, use

traditional responsibility criteria, such as considering an offeror’s financial

resources and past performance.” (citing Delta Data Sys. Corp. v. Webster, 744

F.2d 197, 203 (D.C. Cir. 1984), and YRT Services, 28 Fed. Cl. at 394-95)); YRT

Services, 28 Fed. Cl. at 394-95 (“‘Agencies commonly use responsibility related

factors in the evaluation process, notwithstanding the fact that a responsibility

determination must ultimately be made. . . . This process does not constitute a

responsibility determination . . . .’” (quoting John Cibinic, Jr. and Ralph C. Nash,

Jr., Formation of Government Contracts 547 (2d ed. 1986))).

The court has considered the government’s arguments to the contrary and

finds them unpersuasive. Defendant cites several cases in support of its argument

that the NPS’s materiality determination was a responsibility determination that is

“effectively unreviewable absent a claim of fraud or bad faith.” Def.’s Mot. at 14-

15; Def.’s Reply at 4-6 (citing John C. Grimberg, 185 F.3d at 1303, Trilon Educ.

Corp. v. United States, 578 F.2d 1356, 1358 (Ct. Cl. 1978), News Printing Co., Inc.

v. United States, 46 Fed. Cl. 740, 746 (2000), and Blount, 22 Cl. Ct. at 227).

However, none of these cases involved an assessment of responsibility-related

factors, such as financial capability, in the context of a comparative assessment of

proposals. Rather, each involved a “pass/fail” determination of responsibility (i.e.,

was the offeror responsible or not?). Accordingly, defendant’s case law is

inapposite.13

13

/ Additionally, even if defendant’s case law were applicable, the government

overreaches when it suggests that responsibility determinations are “effectively unreviewable”

absent allegations of fraud or bad faith. Indeed, the government conceded so at oral argument by

pointing the court to Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d

1324 (Fed. Cir. 2001), in which the Federal Circuit rejected an argument, virtually identical to

that made by the government here, that “absent allegations of fraud or bad faith,” a responsibility

determination is “immune from judicial review.” 238 F.3d at 1333; see Tr. at 55. In disposing

of that argument, the Federal Circuit concluded that the government had “seriously misread” the

Court of Claims’ decisions in Keco Indus., Inc. v. United States, 492 F.2d 1200 (Ct. Cl. 1974)

(Keco II), and Trilon Educ. Corp. v. United States, 578 F.2d 1356 (Ct. Cl. 1978), which the

(continued . . .)

34

Additionally, in its reply brief, defendant appears to argue that the NPS’s

materiality determination constitutes a responsibility determination because it was

a “yes/no” determination (i.e., were the omissions material or not?). Def.’s Reply

at 6 (“What Eco Tour does contest is NPS’s separate ‘yes/no’ determination that

the responses to [principal selection factor] 4 were ‘material,’ and therefore

responsive. . . . These are responsibility determinations.”). But both

responsiveness and responsibility are “yes/no” inquiries. Thus, the “yes/no”

character of the agency’s materiality determination does nothing to transform it

from a responsiveness determination to a responsibility determination.

For these reasons, the court rejects defendant’s attempt to characterize the

NPS’s materiality determination as one of responsibility, which the court would

normally afford heightened deference. Accordingly, the court will address whether

the agency’s materiality determination was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.

3. Was the NPS’s Materiality Determination Arbitrary,

Capricious, an Abuse of Discretion, or Otherwise Not in

Accordance with Law?

a. Jackson Hole’s and Hole Hiking’s Failure to Provide

Current Bank Statements (Principal Selection

Subfactor 4(c))

The NPS determined that neither Jackson Hole nor Hole Hiking submitted

current bank statements demonstrating their ability to obtain funds for start-up

costs as required under principal selection subfactor 4(c). AR Tab 23 at 1115, Tab

30 at 1192, Tab 31 at 1195, Tab 42 at 1305-06. The NPS nevertheless found these

omissions to be immaterial because both Jackson Hole and Hole Hiking indicated

in their proposals that, as incumbent concessioners, they had no start-up costs.

With respect to Jackson Hole, the agency stated as follows:

Federal Circuit determined “impose no such limits” on judicial review of responsibility

determinations. Impresa, 238 F.3d at 1333.

35

[Principal selection subfactor 4(c)] requests that the

Offeror demonstrate its ability to obtain the required

funds for any start-up costs under the new Contract. It

also requests the Offeror to provide a bank statement.

Jackson Hole responded that [principal selection

subfactor 4(c)] is not applicable because Jackson Hole is

already operating as the current concessioner. Jackson

Hole did not provide a bank statement. The Panel

concluded that Jackson Hole’s status as the incumbent

concessioner supported Jackson Hole’s assertion that it

had no start-up costs. Thus, Jackson Hole did not need to

demonstrate funding to support such costs, and provided

a material response.

AR Tab 42 at 1306; see also AR Tab 20 at 664-65 (Jackson Hole’s proposal stating

that the requirements in the prospectus to identify property to be acquired and the

source of funding for start-up costs were “not applicable”). Similarly, with respect

to Hole Hiking, the NPS stated that “Hole Hiking responded in [principal selection

subfactor 4(b)] that it would not have any start-up expenses and the response in

[principal selection subfactor 4(c)] supported this assertion.” AR Tab 43 at 1346;

see also AR Tab 19 at 614, 619 (Hole Hiking’s proposal stating that it would have

no start-up costs).

Eco Tour argues that the NPS erroneously accepted Jackson Hole’s and Hole

Hiking’s representations that they had no start-up costs. Pl.’s Mot. at 24-25, 36-37;

Pl.’s Reply at 7-8. In that regard, Eco Tour notes that Jackson Hole stated, on a

chart listing the equipment to be used by Jackson Hole in carrying out contract

GRTE024-13, that it “anticipated” purchasing a [ ] and [ ] “for Season 2014.” AR

Tab 20 at 720. Eco Tour further notes that Hole Hiking stated, in the portion of its

proposal related to principal selection subfactor 2(a), that “[a]t the beginning of the

year, we order new [ ] and [ ].” AR Tab 19 at 581. In light of these anticipated

purchases, Eco Tour asserts that Jackson Hole and Hole Hiking did, in fact, have

start-up costs, and therefore the NPS acted arbitrarily and capriciously in accepting

Jackson Hole’s and Hole Hiking’s contrary representations. Pl.’s Mot. at 24-25,

36-37; Pl.’s Reply at 7-8.

36

The court agrees with Eco Tour that the NPS arbitrarily and capriciously

determined that Jackson Hole and Hole Hiking had no start-up costs and that their

failure to provide bank statements was immaterial. Although the evaluation panel,

in its evaluation of Jackson Hole’s proposal, acknowledged Jackson Hole’s

anticipated purchase of a [ ] and [ ], AR Tab 23 at 1114, the panel subsequently

ignored this information in its responsiveness evaluation, in which it concluded

that “Jackson Hole’s status as the incumbent concessioner supported Jackson

Hole’s assertion that it had no start-up costs,” AR Tab 42 at 1306. Similarly, in

concluding that Hole Hiking had no start-up costs, see AR Tab 43 at 1346, the

panel completely ignored Hole Hiking’s anticipated purchase of [ ] and [ ] “[a]t the

beginning of the year,” AR Tab 19 at 581.

To the extent that the panel mentioned this information at all in its

responsiveness determinations, it merely noted that “Jackson Hole’s anticipated

purchases were not firm commitments” and that Jackson Hole’s failure to identify

these as start-up costs “is immaterial because these purchases are not required by

the terms of the Prospectus, including the Draft Contract.” AR Tab 42 at 1306.

Defendant relies upon this statement to argue that Jackson Hole’s failure to provide

bank statements to prove its financial ability to make its anticipated purchases was

immaterial because such purchases were not required by the terms of the

prospectus. Def.’s Mot. at 18; Def.’s Reply at 9-10 (citing AR Tab 42 at 1306).

This argument fails for the simple reason that nothing in principal selection

subfactors 4(b) or 4(c) limits the requirement to identify start-up costs (and to

demonstrate financial ability to pay for such costs by providing bank statements) to

only those start-up costs specifically required by the prospectus. To the contrary,

principal selection subfactor 4(b)(2) directed offerors to “provide estimates for the

Personal Property items (Equipment) that you need to acquire in order to begin

operating,” AR Tab 4 at 51, and principal selection subfactor 4(c) directed offerors

to demonstrate their “ability to obtain the required funds” for such start-up costs,

AR Tab 4 at 54.

Defendant’s additional arguments fare no better. For instance, defendant

argues that Hole Hiking’s failure to report [ ] and [ ] as start-up costs, and to

provide bank statements demonstrating its ability to obtain funds for such costs, is

immaterial because the total cost of the [ ] and [ ] is low and “will likely not

prevent Hole Hiking from performing the contract.” Def.’s Mot. at 19; see also

Def.’s Reply at 10. However, nothing in principal selection subfactors 4(b) or 4(c)

37

limits the requirement to identify start-up costs (and to demonstrate financial

ability to pay for such costs) to only those start-up costs above a certain dollar

amount. To the contrary, principal selection subfactor 4(c) expressly states that

“[c]urrent bank statements must be provided even if you do not anticipate

significant start-up costs.” AR Tab 4 at 54 (emphasis added).

Finally, defendant argues that, even assuming that Jackson Hole and Hole

Hiking failed to demonstrate their ability to obtain the required funds for start-up

costs, Eco Tour’s proposal suffered from the same defect, and should likewise be

rejected as non-responsive, because Eco Tour failed to explain the cost of and to

demonstrate funding for its anticipated conversion to natural gas. Def.’s Mot. at

18-19 (citing AR Tab 21 at 901 (describing Eco Tour’s plan to convert one-half of

its vehicles to natural gas “in the first year after a compressed natural gas filling

station comes to . . . Jackson, Wyoming,” and to convert the other half the

following year, with unspecified “viable grant sources”), and Tab 22 at 1086

(same)). This argument is similarly unpersuasive because, unlike Jackson Hole

and Hole Hiking, both of whom anticipated making purchases of equipment at the

beginning of the 2014 winter season, Eco Tour anticipated converting one-half of

its vehicles to natural gas “in the first year after a compressed natural gas filling

station comes to . . . Jackson, Wyoming,” and the other half “during the second

year that [a natural gas] fuel source is available in Jackson.” AR Tab 21 at 901,

Tab 22 at 1086. Although Eco Tour “estimate[d]” that a compressed natural gas

filling station would arrive in Jackson “in early 2014,” this was merely an estimate

and, ultimately, outside of Eco Tour’s control. Id. Thus, Eco Tour’s anticipated

conversion to natural gas cannot reasonably be deemed to constitute a start-up cost.

b. Jackson Hole’s Failure to Provide a Balance Sheet

and Credit Report (Principal Selection Subfactor

4(a))

The NPS also determined that Jackson Hole failed to provide a balance sheet

and credit report as required under principal selection subfactor 4(a). AR Tab 23 at

1112, Tab 30 at 1192, Tab 42 at 1305-06. The NPS nevertheless concluded that

these omissions were immaterial because the NPS was able to obtain the missing

information by reviewing Jackson Hole’s business history form, AFRs, and

financial projections and assumptions:

38

[Principal selection subfactor 4(a)] requests the Offeror

to demonstrate that it has a credible, proven track record

of meeting financial obligations by submitting (1) a

business history form; (2) a balance sheet; (3) Annual

Financial Report (AFRs) (for current concessioners) OR

financial statements (for interested parties who are not

current concessioners); and (4) a credit report. Jackson

Hole submitted a complete business history form and two

years of AFRs. However, Jackson Hole did not submit a

balance sheet, and provided a Dun & Bradstreet

Company ID instead of a physical copy of the credit

report. The Service does not have access to credit

reporting services.

By analyzing the business history form and the AFRs in

combination with the projections and assumptions

supplied in [principal selection subfactor 4(b)], the panel

determined that Jackson Hole had a credible proven track

record of meeting its financial obligations and would

have the operating income to satisfy its liabilities. All of

the information supplied on the business history form

was positive, and both of Jackson Hole’s AFRs revealed

a positive net income. A balance sheet and physical

credit report might have provided further corroboration,

but the Panel did not view these omissions as material.

AR Tab 42 at 1305-06.

Eco Tour argues that the NPS could not effectively evaluate Jackson Hole’s

financial ability to carry out its proposal without the balance sheet and credit

report, and, therefore, the NPS arbitrarily and capriciously determined that Jackson

Hole’s failure to provide these documents was immaterial. Pl.’s Mot. at 34-35;

Pl.’s Reply at 6-7. In that regard, Eco Tour first asserts that Jackson Hole’s

business history form consists solely of uncorroborated “one-word responses” to

general questions regarding Jackson Hole’s recent history of default, bankruptcy,

foreclosure, receivership, or litigation related to unmet financial obligations. Pl.’s

Mot. at 35 (citing AR Tab 20 at 719). Next, Eco Tour argues that the AFRs

39

submitted by Jackson Hole “merely pertain to [Jackson Hole’s] revenues and

expenses under the prior contract,” and do not demonstrate anything about Jackson

Hole’s “track record of meeting its financial obligations.” Pl.’s Mot. at 35 (citing

AR Tab 20 at 705-18); see also Pl.’s Reply at 7 (“Nowhere in those documents

does [Jackson Hole] state its current credit status, amount of assets, funding or

available cash.”). As a result, Eco Tour contends, the NPS “was totally unaware of

the status of [Jackson Hole’s] current cash assets, its corporate balance sheet health

and its credit rating.” Pl.’s Reply at 7.

The court agrees with Eco Tour that the NPS acted arbitrarily and

capriciously in concluding that Jackson Hole’s failure to provide a balance sheet

and credit report was immaterial to an effective evaluation of Jackson Hole’s

history of meeting its financial obligations. Principal selection subfactor 4(a)

required Jackson Hole to “[d]emonstrate . . . a credible, proven track record of

meeting [its] financial obligations.” AR Tab 4 at 49 (emphasis added). The

financial information Jackson Hole supplied did not demonstrate such a track

record. While the AFRs submitted by Jackson Hole indicate its gross receipts and

expenses under its current contract, they provide no information regarding the

extent of Jackson Hole’s liabilities or its credit history. See AR Tab 20 at 705-18.

At most, the AFRs demonstrate that Jackson Hole has achieved a positive net

income under its current contract. A positive net income, however, cannot allay

potential concerns regarding the extent of Jackson Hole’s liabilities as compared to

its assets, nor can it demonstrate that Jackson Hole has a history of paying its

debts. Additionally, although the pro forma income statement and operating

assumptions submitted by Jackson Hole under principal selection subfactor 4(b)

demonstrate Jackson Hole’s projections and assumptions regarding its future

performance and profitability, they provide no information regarding Jackson

Hole’s prior “track record” of meeting its financial obligations. See AR Tab 20 at

721-23. Therefore, the NPS’s conclusion that Jackson Hole’s AFRs, pro forma

income statement, and operating assumptions were sufficient to demonstrate

Jackson Hole’s “track record of meeting its financial obligations” was arbitrary and

capricious.

Defendant posits that Jackson Hole’s business history form – on which

Jackson Hole indicated, inter alia, that it had never defaulted on a concession

contract, had no recent bankruptcies or foreclosures, and had been the subject of no

recent lawsuits or administrative proceedings – adequately demonstrated Jackson

40

Hole’s history of meeting its financial obligations. Def.’s Mot. at 18 (citing AR

Tab 20 at 719). Defendant argues that the NPS was entitled to “accept Jackson

Hole’s responses without confirming their accuracy.” Id. at 17. In support of this

argument, defendant quotes from L-3 Global Communications Solutions, Inc. v.

United States, 82 Fed. Cl. 604, 609 (2008), for the proposition that “the test for

noncompliance is generally a test of facial noncompliance, not a test as to whether

the subjective, undisclosed intent of an offeror is noncompliant with the

solicitation’s requirements,” and Akal Sec., Inc. v. United States, 103 Fed. Cl. 310,

326 (2011), for the proposition that “[c]ontracting officers generally are entitled to

rely on information available to them at the time of a responsibility determination,

absent any indication that the information is defective, unsupported, or suspect.”

Def.’s Mot. at 17. Yet, in making this argument, defendant ignores the plain

language of principal selection subfactor 4(a), which required Jackson Hole to

demonstrate a “credible” and “proven” record of meeting its financial obligations

by presenting documentary proof in the form of a balance sheet and credit report.

AR Tab 4 at 49. Defendant also relies upon inapposite case law. Unlike L-3

Global, in which “all three bids were facially compliant with the solicitation’s

requirements,” 82 Fed. Cl. at 612, Jackson Hole’s proposal omits required financial

information and, thus, is noncompliant on its face. Defendant’s citation to Akal is

likewise off the mark because Akal involved a determination of whether the

prevailing bidder was a “responsible offeror,” not whether it had submitted a

proposal that was responsive to the material terms and conditions of the

solicitation. See 103 Fed. Cl. at 324-26.

c. Deficiencies in Hole Hiking’s Financial Records

(Principal Selection Subfactors 4(a) and 4(b))

Finally, as noted, the NPS determined that Hole Hiking’s financial

documents omitted information and contained errors. AR Tab 24 at 1139-40, Tab

31 at 1195, Tab 43 at 1345-46. Specifically, the NPS concluded that: (1) the

AFRs submitted by Hole Hiking were each missing a page, AR Tab 24 at 1139,

Tab 31 at 1195, Tab 43 at 1345-46; (2) Hole Hiking’s pro forma income statement

and operating assumptions failed to explain “why [Hole Hiking’s] revenue

projections are so much higher than historical projections and why some of the

expense assumptions appear low,” Tab 31 at 1195; see also AR Tab 24 at 1140; (3)

Hole Hiking’s pro forma income statement contained “numerous mistakes,” AR

Tab 24 at 1140, including “mathematical errors,” Tab 31 at 1195; and, (4) Hole

41

Hiking’s balance sheet contained certain unspecified “anomalies,” AR Tab 43 at

1346, which raised “concern[s]” regarding Hole Hiking’s financial position, AR

Tab 24 at 1139.

The NPS nevertheless concluded that these deficiencies were immaterial,

and that “[t]he Panel was able to evaluate the proposal and conclude [that] Hole

Hiking had the financial ability to carry out the terms and conditions of the

contract.” AR Tab 43 at 1346. With respect to principal selection subfactor 4(a),

the Park Service determined that “[a]lthough each AFR was missing a page, the

panel was able to use the information provided [on the business history form and

credit report] to estimate a positive net income.” AR Tab 43 at 1345.

Additionally, the NPS concluded that “[a]lthough the current liability information

supplied on the balance sheet was somewhat ambiguous, Hole Hiking’s credit

report demonstrated that it had satisfied its liabilities in the past,” and, “[t]herefore,

the panel concluded [that] Hole Hiking would have the operating income to satisfy

its liabilities.” AR Tab 43 at 1345. With respect to principal selection subfactor

4(b), the NPS simply noted that “Hole Hiking submitted the requested forms.” AR

Tab 43 at 1346.

Eco Tour argues that “Hole Hiking did not fully explain its assumptions that

future revenues would be much higher than past levels and expenses would be very

low,” and, therefore, the NPS arbitrarily and capriciously determined that the

deficiencies in Hole Hiking’s financial documentation were immaterial. Pl.’s Mot.

at 36. Eco Tour also asserts that Hole Hiking’s financial projections are “further

suspect given that Hole Hiking reported total gross revenues in 2010/2011 of

$21,835 based on 569 total tours,” resulting in approximately $38 of revenue per

tour – which Eco Tour contends is “well below the approved rates” under Hole

Hiking’s current contract (contract GRTE032-03). Id. at 36 n.9 (citing AR Tab 4

at 23-24 (listing annual gross revenue for the last three seasons under contracts

GRTE024-03 and GRTE032-03), and Tab 8 at 186 (listing approved rates under

Hole Hiking’s current contract)); see also Tab 19 at 618 (listing Hole Hiking’s

projected revenue per tour under contract GRTE032-13). Defendant offers no

rebuttal other than to assert that Eco Tour “misreads the charts” on the prospectus,

which show that Hole Hiking led only 294 tours during the 2010/2011 season

resulting in approximately $74 of revenue per tour – which defendant implies is

much closer to the approved rates under Hole Hiking’s current contract. Def.’s

Mot. at 19 (citing AR Tab 4 at 23-24).

42

Here again, the court must agree with Eco Tour that the NPS failed to

provide a rational basis for its determination that the errors and omissions in Hole

Hiking’s financial information were immaterial. Although the NPS rationally

determined that Hole Hiking’s omissions under principal selection subfactor 4(a)

were immaterial (i.e., missing pages in the AFRs and ambiguous current liability

information on the balance sheet) because the NPS could determine from the

business history form and credit report that Hole Hiking had “satisfied its liabilities

in the past,” AR Tab 43 at 1345, the NPS failed to even address the mathematical

errors on Hole Hiking’s pro forma income statement and Hole Hiking’s

unexplained revenue and expense projections. AR Tab 43 at 1346. Rather, the

NPS merely stated, without explanation, that “Hole Hiking submitted the requested

forms.” AR Tab 43 at 1346. The NPS’s failure to provide any explanation with

respect to its materiality determination as to the pro forma income statement and

operating assumptions is wholly arbitrary.

For the aforementioned reasons, the court concludes that each of the NPS’s

materiality determinations, as well as its resulting responsiveness determinations,

was arbitrary, capricious, and an abuse of discretion. Therefore, the court must

proceed to determine, as a factual matter, whether Eco Tour was prejudiced by the

NPS’s arbitrary and unlawful conduct. See Bannum, 404 F.3d at 1351.

4. Prejudice Resulting from the NPS’s Responsiveness

Determinations

As noted, to demonstrate prejudice, Eco Tour must show a “substantial

chance” that it would have received the disputed contracts if not for the NPS’s

arbitrary and capricious responsiveness determinations. See id. at 1353. The court

concludes that Eco Tour has made such a showing because it submitted responsive

proposals that received the highest cumulative scores of any of the proposals

received by the NPS for the disputed contracts. AR Tab 23 at 1094, Tab 24 at

1120, Tabs 28-29. Thus, in accordance with the regulations, there is a substantial

chance that Eco Tour would have been awarded the disputed contracts if not for

the errors alleged in the amended complaint. See 36 C.F.R. §§ 51.31, 51.33.

B. The Agency’s Disclosure of the Better Terms of Eco Tour’s

Proposals (Count II)

43

With respect to Count II, presented as an alternative to Count I, Eco Tour

argues that the NPS improperly disclosed to Jackson Hole and Hole Hiking the

better terms of Eco Tour’s proposals in contravention of paragraph 4 of the

prospectus instructions. Pl.’s Mot. at 8-15, 40-42; Pl.’s Reply at 20-21. That

paragraph, titled “Proposals Considered Public Documents,” provides as follows:

(a) All proposals submitted in response to this

Prospectus may be disclosed by the Service to any

person, upon request, to the extent required or authorized

by the Freedom of Information Act (5 U.S.C. § 552).

(b) If you believe that your proposal contains trade

secrets or confidential commercial or financial

information exempt from disclosure under the Freedom

of Information Act, mark the cover page of each copy of

the proposal with the following legend:

The information specifically identified on pages of this

proposal constitutes trade secrets or confidential

commercial or financial information that the Offeror

believes to be exempt from disclosure under the Freedom

of Information Act. The Offeror requests that this

information not be disclosed to the public, except as may

be required by law.

You must specifically identify what you consider to be trade

secret information or confidential commercial or financial

information on the page of the proposal on which it appears,

and you must mark each such page with the following legend:

This page contains trade secrets or confidential

commercial and financial information that the Offeror

believes to be exempt from disclosure under the Freedom

of Information Act, and which is subject to the legend

contained on the cover page of this proposal.

44

(c) Information so identified will not be made public by

the Service except in accordance with law.

AR Tab 4 at 28. Eco Tour asserts that the NPS, in paragraph 4, “promised offerors

. . . that it would not disclose confidential information included in the proposals.”

Pl.’s Mot. at 40. Eco Tour further asserts that its “reasonable assumption . . . in

light of [the] NPS’s unqualified agreement to not disclose confidential information

was that [Eco Tour] would be provided with the opportunity to agree to have its

confidential information disclosed to its competitor, but that it did not have to

agree.” Id. at 40-41. “If [Eco Tour] did not want this disclosure to occur, it would

have the option of withdrawing its proposal.” Id. at 41.

Eco Tour argues that the NPS improperly disclosed Eco Tour’s confidential

information – in contravention of paragraph 4 of the prospectus instructions, and in

violation of the Procurement Integrity Act as well as the implied contract to

consider bids fairly and honestly – by identifying the better terms and conditions of

Eco Tour’s proposals in the NPS’s June 20, 2013 letters to Jackson Hole and Hole

Hiking. Id. at 15, 40-41. The allegedly confidential information disclosed to

Jackson Hole and Hole Hiking

related to Eco Tour’s policies as to minimizing idling

time of its vehicles, ensuring it had maximized visitors’

experiences through the use of binoculars, preventing or

remedying spills of fluids from its vehicles, ensuring

removal of human waste and other related waste,

ensuring its guides had certifications and training to

ensure the safety of all guests, the use of reusable

products to minimize waste and quality control measures

to ensure its guides were performing in an optimal

manner.

Id. at 41 (citing AR Tabs 30-31, Tab 37); see also id. at 15. Eco Tour contends

that it marked this information as confidential in accordance with paragraph 4 of

the prospectus instructions, and therefore was entitled to prevent the disclosure of

such information. Id. at 9 (citing AR Tabs 21-22)); Pl.’s Reply at 20.

45

1. Eco Tour Has Not Waived Its Unlawful Disclosure Claim

Defendant argues, unpersuasively, that Eco Tour has waived its objection to

the NPS’s disclosure of the better terms of Eco Tour’s proposals. Def.’s Mot. at

23; Def.’s Reply at 14. The government’s waiver theory is premised upon its

characterization of Count II as a challenge to the terms of the prospectus, which

notified potential offerors that “[i]f an existing Concessioner submits a responsive

proposal and that proposal is not selected as the best proposal, the Preferred

Offeror designation allows it to match the terms of the best offer and be awarded

the Contract.” AR Tab 4 at 24. Defendant contends that pursuant to this language

in the prospectus, “Eco Tour . . . was on notice that ‘terms of the best offer’ could

be disclosed” and, therefore, waived its right to object to this language by not

objecting before the close of bidding. Def.’s Mot. at 23 (citing Blue & Gold Fleet,

492 F.3d at 1313). However, in Count II, Eco Tour does not object to any terms of

the prospectus, but rather invokes the confidentiality provisions in paragraph 4 of

the prospectus instructions. See Pl.’s Mot. at 8-15, 40-42; Pl.’s Reply at 20-21.

Thus, defendant’s waiver theory with respect to Count II is without merit.

2. No Violation of the Procurement Integrity Act

The government asserts that Count II fails to the extent that it arises under

the Procurement Integrity Act because NPS concession contracts are not

“procurement” contracts, as that term is defined by the Procurement Integrity Act.

Def.’s Mot. at 23-24; Def.’s Reply at 14. The court agrees. The Procurement

Integrity Act generally prohibits, “[e]xcept as provided by law,” the disclosure of

“contractor bid or proposal information or source selection information before the

award of a Federal agency procurement contract to which the information relates.”

41 U.S.C. § 2102(a)(1). “Federal agency procurement” is defined under the statute

as “the acquisition (by using competitive procedures and awarding a contract) of

goods or services (including construction) from non-Federal sources by a Federal

agency using appropriated funds.” Id. § 2101(4). The disputed concession

contracts do not satisfy that definition. First, as explained supra, the court

concludes that NPS concession contracts, such as those in dispute in this bid

protest, are not contracts for the procurement of goods and services. Second, even

if NPS concession contracts did involve the acquisition of goods or services for the

benefit of the government, they do not involve the expenditure of appropriated

funds by the NPS. Rather, such contracts “provide for payment to the government

46

of a franchise fee or such other monetary consideration as determined by the

Secretary.” 16 U.S.C. § 5956(a) (emphasis added); see also 36 C.F.R. § 51.78

(“Concession contracts will provide for payment to the government of a franchise

fee or other monetary consideration as determined by the Director upon

consideration of the probable value to the concessioner of the privileges granted by

the contract involved.”) (emphasis added). Therefore, the Procurement Integrity

Act does not apply to Eco Tour’s bid protest.

Additionally, defendant contends that even if the Procurement Integrity Act

were applicable to the instant lawsuit, it has not been violated because the

allegedly confidential information disclosed to Jackson Hole and Hole Hiking was

already public knowledge. Def.’s Mot. at 24-26; Def.’s Reply at 14-15. Again, the

court agrees with defendant. As noted, the Procurement Integrity Act applies only

to the disclosure of “contractor bid or proposal information.” 41 U.S.C. §

2102(a)(1). The term “contractor bid or proposal information” is defined as certain

types of information submitted to a federal agency in connection with a proposal to

enter into a procurement contract “if that information previously has not been

made available to the public or disclosed publicly.” Id. § 2101(2). The NPS’s

letters to Jackson Hole and Hole Hiking did not mention Eco Tour by name, nor

did they disclose any information about the better terms of Eco Tour’s proposals

that was not otherwise publicly known. See AR Tabs 30-31. The twelve better

terms of Eco Tour’s proposals included: minimizing the idling of vehicles; using

binoculars, spill kits, human waste removal bags, and reusable plates, utensils,

mugs, and water bottles; disposing of waste outside the park; requiring guides to

receive Wilderness First Responder certification and training in winter driving and

the Wilderness Act; and, unannounced monitoring of guides. See AR Tab 30 at

1190-91, Tab 31 at 1193-94. The availability of such practices, none of which

involve the use of Eco Tour’s proprietary information or trade secrets, is within the

realm of public knowledge. Indeed, as defendant notes, four of the twelve

disclosed terms – the use of binoculars, spill kits, solid human waste removal bags,

and disposal of trash outside the park – were already in use by one or both of the

preferred offerors by the time the NPS sent its June 20, 2013 letters. See AR Tab

19 at 578 (Hole Hiking’s proposal stating that “[w]e carry plastic bags and offer to

guest[s] if needed for any refuse. . . . [and] then dispose[] of [such bags] in

appropriate container[s],” and that “[w]e purchase environmentally approved

products such as recyclable napkins and containers”), Tab 20 at 642 (Jackson

Hole’s proposal stating that “[c]lients are educated on ‘Leave-No-Trace’ principles

47

and guides sweep all rest/break areas for waste before departing,” and that Jackson

Hole “commits to including a set of binoculars in every guide pack”), Tab 20 at

645 (Jackson Hole’s proposal stating that “[a]ll guides carry one emergency

‘wagbag’”), AR Tab 34 at 1204-05 (Jackson Hole’s response to the NPS’s June 20,

2013 letter stating that Jackson Hole “currently supplies spill kits for all vehicles

and commits to continuing to do so,” and that Jackson Hole “currently use[s] the

Wag Bag Wastekit [human waste disposal] product” and “[a]ll guide packs are, and

will continue to be, supplied with this product”), Tab 45 at 1405 (Hole Hiking’s

response to the NPS’s June 20, 2013 letter stating that “[Hole Hiking] guides

always carry a minimum of one pair of binoculars on each tour”).

Eco Tour counters, unpersuasively, that the twelve better terms of Eco

Tour’s proposals that were disclosed by the NPS were not publicly known because,

if they were, Jackson Hole and Hole Hiking “would have included those policies in

their proposals.” Pl.’s Mot. at 41; see also Pl.’s Reply at 21. Yet, of course, the

fact that the preferred offerors did not include particular terms in their proposals

does not prove that such terms were not publicly known. Next, Eco Tour asserts

that, even if the twelve better terms of its proposals constitute public information

when considered in isolation, its particular combination of such terms is a

“confidential and strategic business decision.” Pl.’s Reply at 20. According to

Eco Tour, “[s]imply because the public knows that some of those items exist does

not mean that a company’s strategic decision to include them in its proposal is also

public knowledge.” Id. at 20-21. This argument, too, is unpersuasive. Under Eco

Tour’s argument, any business practice undertaken by a concessioner, no matter

how commonly employed in the industry, would qualify as confidential so long as

it is combined with other similarly common practices. This view is not in

accordance with law. Although the court recognizes that a particular combination

of individual pieces of information in the public domain may qualify as a trade

secret if the combination is itself not generally known or not easily duplicated,14

the combination of Eco Tour’s twelve better terms does not meet that standard. As

noted above, none of these twelve better terms involved proprietary information or

trade secrets, and four of the terms were already in use by Jackson Hole and Hole

14

/ See, e.g., Comprehensive Techs. Int’l, Inc. v. Software Artisans, Inc., 3 F.3d 730, 736-

37 (4th Cir. 1993) (“[A]lthough a trade secret cannot subsist in information in the public domain,

it can subsist in a combination of such information as long as the combination is itself a secret.”)

(citations omitted), vacated pursuant to settlement and appeal dismissed, Sept. 30, 1993.

48

Hiking. Eco Tour has offered no evidence to support its view that the combination

of the twelve better terms of its proposals was not generally known or not easily

duplicated.

For the foregoing reasons, the court concludes that even if the Procurement

Integrity Act were applicable to Eco Tour’s bid protest, it was not violated in this

instance because none of the information disclosed to Jackson Hole and Hole

Hiking constitutes “contractor bid or proposal information” as defined by the Act.

Therefore, Count II fails to the extent that it is based upon an alleged violation of

the Procurement Integrity Act.

3. No Breach of the Implied Contract to Consider Bids Fairly

and Honestly

The government also argues that Eco Tour has failed to prove that the NPS’s

disclosure of the better terms of Eco Tour’s proposals breached the implied-in-fact

contract to consider bids fairly and honestly. Def.’s Mot. at 27; Def.’s Reply at 16.

Again, the court agrees with defendant. As noted, to recover under the implied

contract for bids to be fairly and honestly considered, Eco Tour must establish that

the NPS acted arbitrarily or capriciously, or abused its discretion. E.g., Southfork,

141 F.3d at 1132 (citing Keco II, 492 F.2d at 1203-04). Four factors are generally

relevant to a determination of whether the government has breached the implied

contract to consider bids fairly: (1) subjective bad faith on the part of the

government; (2) the absence of a reasonable basis for the administrative decision;

(3) the amount of discretion afforded to the procurement officials by applicable

statutes and regulations; and (4) proven violations of pertinent statutes or

regulations. Id.

Eco Tour has not demonstrated that the agency’s disclosure of the better

terms of Eco Tour’s proposals was motivated by bad faith, lacked a reasonable

basis, or violated any statute or regulation. To the contrary, under the regulations,

the NPS was required to “advise the preferred offeror of the better terms and

conditions of the best proposal and permit the preferred offeror to amend its

proposal to match them.” 36 C.F.R. § 51.32. The NPS’s June 20, 2013 letters to

the preferred offerors complied with this regulatory provision.

49

Additionally, while paragraph 4 of the prospectus instructions provided that

the NPS would not make public any information specifically marked in Eco Tour’s

proposal as a trade secret or as “confidential commercial and financial

information,” see AR Tab 4 at 28, Eco Tour failed to mark its proposals in

accordance with paragraph 4. Specifically, Eco Tour failed to mark the cover

pages of its proposals with the legend specified in paragraph 4(b), and also failed

to specifically identify the allegedly confidential information in its proposals as

required by paragraph 4(b). Compare AR Tab 4 at 28 (requiring the offeror to

“mark the cover page of each copy of the proposal with the following legend” and

to “specifically identify what you consider to be trade secret information or

confidential commercial or financial information on the page of the proposal on

which it appears”), with AR Tabs 21-22 (showing that Eco Tour’s proposals lack

legends on cover pages and specific identification of confidential information).

Although Eco Tour marked most pages of its proposals with the general disclaimer

set forth in paragraph 4(b), it failed to satisfy the second requirement of paragraph

4(b), which was to “specifically identify” the allegedly confidential information.

See AR Tab 4 at 28 (“You must specifically identify what you consider to be trade

secret information or confidential commercial or financial information on the page

of the proposal on which it appears, and you must mark each such page with the

following legend . . . .”) (emphasis added). Therefore, even if paragraph 4 would

otherwise prohibit the NPS from disclosing Eco Tour’s properly identified

confidential information, Eco Tour cannot take advantage of such protection after

having failed to comply with the requirements of paragraph 4.

4. Eco Tour Has Not Demonstrated Prejudice Resulting from

the Alleged Improper Disclosure

Finally, the government contends that, even assuming that the NPS’s

disclosure of the better terms of Eco Tour’s proposals violated the Procurement

Integrity Act or breached the implied contract to consider bids fairly and honestly,

Eco Tour has failed to demonstrate prejudice. The court must again agree with

defendant. In its motion, Eco Tour asserts, without explanation, that the NPS’s

disclosure caused Eco Tour unspecified “substantial harm.” Pl.’s Mot. at 41. Eco

Tour reiterates this unsupported assertion in its reply brief and asserts that

prejudice is “obvious.” Pl.’s Reply at 21 (“[B]y unilaterally disclosing these

products and services to Eco Tour’s direct competitors and explicitly informing

those competitors that their competitor offered a better proposal because of these

50

specific terms, NPS has now totally eliminated Eco Tour’s competitive advantage.

That is obvious prejudice.”). These unsupported allegations of “substantial harm”

and elimination of competitive advantage cannot satisfy Eco Tour’s burden to

demonstrate that the government’s disclosure of the better terms of Eco Tour’s

proposals deprived Eco Tour of a “substantial chance” of being awarded the

disputed contracts. See Bannum, 404 F.3d at 1353.

Eco Tour’s only specific allegation of prejudice is that the NPS deprived

Eco Tour of the opportunity to “weigh the risks of having its confidential

information handed over to its competitors” and to choose between “agree[ing] to

have its confidential information disclosed to its competitor” or “withdrawing its

proposal.” Pl.’s Mot. at 41. This allegation is likewise insufficient to demonstrate

prejudice. As defendant correctly notes, “[a]n opportunity to withdraw from the

competition would not have given Eco Tour a substantial chance of winning the

competition.” Def.’s Mot. at 28.

C. The Agency’s Failure to Require Hole Hiking to Use Biodiesel

Fuel (Count III)

With respect to Count III, also presented as an alternative to Count I, Eco

Tour argues that the NPS violated applicable law, acted arbitrarily and

capriciously, and abused its discretion when it found that Hole Hiking had matched

the better terms of Eco Tour’s proposal for contract GRTE032-13. Pl.’s Mot. at

15-16, 39; Pl.’s Reply at 14-19. In its proposal, Eco Tour stated that it has used

biodiesel fuel in all of its vehicles since 2008, AR Tab 22 at 937, and that, “[u]nder

the new concession contract, [it] will use biodiesel in over 60 percent of [its]

vehicles until 100 percent of the vehicles have been converted [to] compressed

natural gas,” id. at 1086. Eco Tour contends that the NPS, by not requiring Hole

Hiking to match this term of Eco Tour’s proposal, violated 36 C.F.R. § 51.32,

which requires the NPS to “advise the preferred offeror of the better terms and

conditions of the best proposal and permit the preferred offeror to amend its

proposal to match them.” Pl.’s Mot. at 39.15

15

/ In contrast to Jackson Hole, which indicated in its proposal for contract GRTE024-13

that it uses biodiesel [ ], see AR Tab 20 at 645, 668, Hole Hiking did not state in its proposal for

contract GRTE032-13 that it uses any sort of alternative fuels [ ], see AR Tab 19 at 630.

51

In response, the government first argues that the NPS is not obligated to

require Hole Hiking to use biodiesel in its vehicles in order to exercise a right of

preference because doing so would violate 36 C.F.R. § 51.19, which prohibits the

agency from awarding a concession contract which “materially amends” the terms

and conditions of the draft concession contract set forth in the prospectus “[e]xcept

for incorporating into the concession contract appropriate elements of the best

proposal.” Def.’s Mot. at 21; Def.’s Reply at 11. In that regard, the government

asserts that the utilization of alternative fuels in vehicles is not “appropriate” for

the disputed contracts because such contracts are for cross-country ski tours, not

vehicle-based tours. Def.’s Mot. at 21; Def.’s Reply at 11.

Eco Tour argues, in rebuttal, that “the use of alternative fuel vehicles was

appropriate and a better term in Eco Tour’s proposal” because it “result[s] in

greatly reduced emissions, thus protecting the environment in and around Grand

Teton National Park” in furtherance of the goals articulated under principal

selection subfactor 1(a) and secondary selection factor 1. Pl.’s Reply at 14. The

government responds that the only environmental practices required under

principal selection subfactor 1(a) and secondary selection factor 1 are “those that

protect the park from contamination,” and that the use of alternative fuels is but

one of “numerous environmental practices in [Eco Tour’s] proposal” which “have

nothing to do with protecting the park environment during a ski tour.” Def.’s

Reply at 12-13.

By way of background, principal selection subfactor 1(a) directs offerors to

“describe how you will conduct your operations in a manner that will minimize

disturbance to Park wildlife by addressing . . . [t]he measures you will take to

minimize disruption of wildlife while conducting tours.” AR Tab 4 at 43.

Secondary selection factor 1 is the “quality of the offeror’s proposal to conduct its

operations in a manner that furthers the protection, conservation, and preservation

of the park and other resources through environmental management programs and

activities, including, without limitation, energy conservation, waste reduction, and

recycling.” AR Tab 4 at 57 (emphasis added).

Eco Tour’s argument regarding biodiesel is not without support in the

record. In rating Eco Tour’s proposal for contract GRTE032-13 as “excellent”

under principal selection subfactor 1(a), the evaluation panel noted that Eco Tour’s

commitment to an “idle free policy” with its tour vehicles helped to “minimize

52

disruption of wildlife while conducting tours.” AR Tab 24 at 1122. The NPS also

required Hole Hiking to match Eco Tour’s “idle free policy” because such a policy

“minimize[s] any disturbance to wildlife from the sound of a running vehicle.” AR

Tab 31 at 1193. In its proposal for contract GRTE032-13, Eco Tour stated that

using biodiesel not only reduces total vehicle emissions, but also produces “less

offensive” vehicle exhaust than petroleum-based fuel. AR Tab 22 at 937

(“Biodiesel is a fuel made in this country that has safer emissions than regular fuel.

Life cycle analysis completed by the National Renewable Energy Laboratory, and

later by Argonne National Laboratory, found that greenhouse gas emissions for

biodiesel could be more than 52 percent lower than those from other petroleum

products. In addition, the smell of exhaust is less offensive than petroleum

exhaust.”), 1086 (“The biodiesel fuel we have used since 2008 is produced in

Colorado and is made from used vegetable oil or soybean oil. The fuel releases

carbon dioxide into the air in smaller quantities than does petroleum-based fuel.”).

Thus, the record suggests that Eco Tour’s use of biodiesel fuel, like its “idle free

policy,” may reduce the disturbance of wildlife in furtherance of the goals

articulated under principal selection subfactor 1(a).

Additionally, in rating Eco Tour’s proposal for contract GRTE032-13 as

“very good” under secondary selection factor 1, the evaluation panel took into

account Eco Tour’s “multiple company-wide policies and practices related to

environmental stewardship, such as using biofuel, using ‘green’ cleaning products,

and contributing to a carbon-offset fund.” AR Tab 24 at 1144 (emphasis added).

Therefore, at least one of the goals articulated in the prospectus is the conservation

of energy, and the NPS expressly recognized that Eco Tour’s use of biodiesel fuel

furthered that goal.

However, despite the foregoing, the court is unable to conclude that the NPS

violated applicable law, acted arbitrarily or capriciously, or abused its discretion in

not requiring Hole Hiking to use biodiesel or similar alternative fuels in its tour

vehicles. First, in requiring the preferred offerors to adopt an “idle free policy”

under principal selection subfactor 1(a), the NPS appears to have been primarily

concerned with the disturbance caused by “the sound of a running vehicle.” AR

Tab 31 at 1193. Even if biodiesel fuel produces “less offensive” vehicle exhaust

than petroleum-based fuel, see AR Tab 22 at 937, the record contains no evidence

that vehicles using biodiesel fuel produce less noise than vehicles using petroleum-

53

based fuel. Thus, the record does not establish that the use of biodiesel fuel

achieves precisely the same environmental benefits as an “idle free policy.”

Second, Eco Tour’s use of biodiesel fuel was but one of several “company-

wide policies and practices related to environmental stewardship” that the NPS

considered in its evaluation of Eco Tour’s proposal under secondary selection

factor 1. AR Tab 24 at 1144. Other such policies and practices included utilizing

“green” cleaning products and contributing to a carbon-offset fund. Id. Under Eco

Tour’s theory, the NPS should have required Hole Hiking to match each of these

terms. That the NPS did not do so provides support for the government’s argument

that the use of biodiesel fuel, like the use of “green” cleaning products and

contributing to a carbon-offset fund, is outside the scope of the disputed contracts

for guided cross-country ski tour concessions.

Therefore, although Eco Tour’s use of biodiesel fuel could reasonably be

viewed as furthering the goals articulated under principal selection subfactor 1(a)

and secondary selection factor 1, Eco Tour has not shown that the NPS acted

irrationally or arbitrarily in declining to require Hole Hiking to match this term,

and the court will not second guess the agency’s technical determination in that

regard. See, e.g., E.W. Bliss, 77 F.3d at 449 (“[T]echnical ratings . . . involve

discretionary determinations of procurement officials that a court will not second

guess.”) (citations omitted); Omega World Travel, Inc. v. United States, 54 Fed. Cl.

570, 578 (2002) (“It is well settled that contracting officers are given broad

discretion with respect to evaluation of technical proposals.” (citing E.W. Bliss, 77

F.3d at 449)); Electro-Methods, Inc. v. United States, 7 Cl. Ct. 755, 762 (1985)

(“[W]here an agency’s decisions are highly technical in nature, . . . judicial

restraint is appropriate and proper.” (citing Isometrics v. United States, 5 Cl. Ct.

420, 423 (1984))).16

16

/ In reaching this conclusion, the court declines to consider Eco Tour’s citations to

various extra-record evidence purportedly demonstrating that the use of alternative fuel was

within the scope of the disputed contracts. Pl.’s Reply at 16-19 (citing a “Fact Sheet” available

on the NPS website and two articles available on the Department of Energy website). As Eco

Tour’s extra-record evidence is not necessary for effective judicial review, and would not alter

the court’s analysis with respect to Count III even if the court were to consider it, the court grants

defendant’s motion to strike such evidence. See, e.g., Axiom Res. Mgm’t, Inc. v. United States,

564 F.3d 1374, 1379 (Fed. Cir. 2009).

54

IV. Eco Tour is Limited to a Recovery of Bid Preparation Costs

Having determined that the NPS acted arbitrarily and capriciously in

concluding that Jackson Hole’s and Hole Hiking’s proposals were responsive, and

that Eco Tour was prejudiced as a result, the court now turns to the issue of the

relief to be granted. The government argues that the court lacks authority to grant

Eco Tour’s requested injunctive and declaratory relief “because 28 U.S.C. §

1491(b) does not apply to concession contracts, and 28 U.S.C. § 1491(a) provides

for only monetary relief.” Def.’s Mot. at 28; see also Def.’s Reply at 17-20. For

the reasons specified below, the court agrees that it lacks the authority to award

injunctive or declaratory relief to Eco Tour. Therefore, Eco Tour is limited to an

award of damages in the form of bid preparation costs.

Except in narrow statutorily defined circumstances, the Court of Federal

Claims lacks jurisdiction to award injunctive or declaratory relief. United

Keetoowah Band of Cherokee Indians of Okla. v. United States, 480 F.3d 1318,

1326 n.5 (Fed. Cir. 2007) (citation omitted); Kanemoto v. Reno, 41 F.3d 641, 644-

45 (Fed. Cir. 1994) (“The remedies available in [the Court of Federal Claims]

extend only to those affording monetary relief; the court cannot entertain claims

for injunctive relief or specific performance, except in narrowly defined, statutorily

provided circumstances . . . .”); Terry v. United States, 103 Fed. Cl. 645, 656

(2012); Leitner v. United States, 92 Fed. Cl. 220, 223 (2010) (“This Court may

issue declaratory judgments or offer equitable relief only under an express grant of

such jurisdiction in a federal statute.” (citing United States v. Testan, 424 U.S. 392,

398 (1976), and United States v. King, 395 U.S. 1, 4 (1969))). This court has

statutory authority to award equitable relief in certain types of tax cases, see 28

U.S.C. § 1507 (2006); in “nonmonetary disputes” arising under the CDA, see 28

U.S.C. § 1491(a)(2); and, in procurement bid protests, see 28 U.S.C. § 1491(b)(2).

Additionally, in cases where the equitable relief is “‘tied and subordinate to a

money judgment,’” James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting

Austin v. United States, 206 Ct. Cl. 719, 723 (1975)), the court may “issue orders

directing restoration to office or position, placement in appropriate duty or

retirement status, and correction of applicable records,” 28 U.S.C. § 1491(a)(2).

The court concludes that none of these statutory provisions authorize the

injunctive and declaratory relief requested by Eco Tour. As an initial matter, this

case is not a tax case, nor does it invoke the CDA. Therefore, the first and second

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statutory bases for equitable relief are inapplicable. Additionally, as set forth

supra, the court finds that the disputed concession contracts are not procurement

contracts, and thus section 1491(b) is inapplicable.

Nor is Eco Tour entitled to injunctive or declaratory relief under section

1491(a). In its reply brief, Eco Tour suggests that the court may grant equitable

relief under section 1491(a)(2) because such relief would be “‘incident of and

collateral’ to a monetary judgment.” Pl.’s Reply at 22-23 (quoting Voisin v. United

States, 80 Fed. Cl. 164, 177-78 (2008)). Yet Eco Tour has not cited any case in

which equitable relief was granted under section 1491(a)(2) in the context of a

claim for breach of the implied contract to consider bids fairly and honestly.

Additionally, the court concludes that Congress, by enacting ADRA in 1996,

divested this court of authority to award equitable relief in bid protests pursued

under an implied contract theory. Before the enactment of ADRA in 1996, this

court’s jurisdiction over bid protests was predicated on an implied contract

between the government and prospective bidders to treat bidders’ proposals fairly

and honestly. See, e.g., Resource Conservation, 597 F.3d at 1242; Emery

Worldwide Airlines, 264 F.3d at 1078-80 (explaining the “long and complicated”

history of judicial review of government procurement decisions); Impresa, 238

F.3d at 1331-32 (same); Southfork, 141 F.3d at 1132; CACI, Inc.-Federal, 719 F.2d

at 1573; United States v. John C. Grimberg Co., 702 F.2d 1362, 1367 (Fed. Cir.

1983); Keco Indus., Inc. v. United States, 428 F.2d 1233, 1237 (Ct. Cl. 1970)

(Keco I).

Until 1982, an aggrieved bidder asserting an implied contract claim “was

typically limited to monetary relief such as bid preparation costs.” Impresa, 238

F.3d at 1331 (citing Keco II, 492 F.2d at 1203, and Finley v. United States, 31 Fed.

Cl. 704, 708 (1994)); see also Keco I, 428 F.2d at 1240 (“[I]f it should be

determined subsequently by the commissioner that plaintiff’s bid was not treated

honestly and fairly by the Government, then plaintiff should be allowed to recover

only those costs incurred in preparing its technical proposals and bid.”). In 1982,

the court was first given authority to grant declaratory and injunctive relief in pre-

award bid protests pursued under an implied contract theory. Federal Courts

Improvement Act of 1982, Pub. L. No. 97-164, sec. 133(a), § 1491(a)(3), 96 Stat.

25, 39-40. Such authority was formerly codified at 28 U.S.C. § 1491(a)(3), which

provided, in pertinent part: “‘To afford complete relief on any contract claim

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brought before the contract is awarded, the court shall have exclusive jurisdiction

to grant declaratory judgments and such equitable and extraordinary relief as it

deems proper, including but not limited to injunctive relief.’” Resource

Conservation, 597 F.3d at 1244 n.10 (quoting former section 1491(a)(3)).

In 1996, however, Congress enacted ADRA, which “repealed former section

1491(a)(3), and enacted its substance as section 1491(b)(2).” Id. In so doing,

Congress removed bid protest remedies from section 1491(a) and provided this

court with a new, and independent, basis for bid protest jurisdiction in section

1491(b), under which the Court of Federal Claims is authorized to award “any

relief that the court considers proper, including declaratory and injunctive relief.”

28 U.S.C. § 1491(b)(2); see also Lion Raisins, Inc. v. United States, 52 Fed. Cl.

115, 118 (2002) (citations omitted).

Although the Federal Circuit has not had occasion to rule on the issue of

whether the Court of Federal Claims has authority, post-ADRA, to grant equitable

relief in implied contract bid protests pursued under section 1491(a), this court has

consistently answered that question in the negative. See Terry v. United States, 96

Fed. Cl. 131, 153 (2010) (citations omitted) (“Under section 1491(a)(1), plaintiff is

precluded from obtaining equitable relief, which is only available for a section

1491(b)(1) protest, and is limited to a recovery of monetary damages that comprise

the costs she incurred while preparing her proposal.”), vacated in part on other

grounds, 98 Fed. Cl. 736 (2011); FAS Support, 93 Fed. Cl. at 694 (“The major

difference between a protest brought under 28 U.S.C. § 1491(b)(1) and one

brought pursuant to an implied contract under 28 U.S.C. § 1491(a)(1) is the

equitable relief which is available for the section 1491(b)(1) protest, but not for

breach of the implied contract. Only monetary relief is available for breach of the

implied contract, comprising the costs incurred in preparing the proposal and bid.”

(citing Keco I, 428 F.2d at 1240)); Overstreet Elec. Co. v. United States, 47 Fed.

Cl. 728, 731 n.5 (2000) (noting that a claim for breach of an implied-in-fact

contractual obligation to consider and treat all bids fairly “no longer is the trigger

for injunctive relief in this court”); W & D Ships Deck Works, Inc. v. United States,

39 Fed. Cl. 638, 641 (1997) (“The repeal by [ADRA] . . . of § 1491(a)(3)

eliminated this court’s statutory authority to grant equitable relief on the basis of

the old implied contract theory.”); cf. L-3 Commc’ns Integrated Sys., L.P. v. United

States, 94 Fed. Cl. 394, 397 (2010) (“Section 1491(a)(1) continues to allow any

plaintiff, including a disappointed bidder, to invoke this Court’s general contract

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jurisdiction to recover money damages, including bid preparation and proposal

costs.”).

While the court is not bound to follow its prior decisions concerning the

availability of equitable relief in bid protests pursued under an implied contract

theory, it finds the reasoning of those decisions to be persuasive. Simply put, if

equitable relief was unavailable in implied contract bid protests pursued under

section 1491(a) until the enactment of section 1491(a)(3) in 1982, and section

1491(a)(3) was repealed with the enactment of ADRA in 1996, then it follows that

equitable relief is again unavailable in implied contract bid protests pursued under

section 1491(a). Accordingly, the court concludes that Eco Tour is precluded from

obtaining injunctive and declaratory relief.

In its reply brief, Eco Tour argues that “this Court has the explicit authority

from Congress [under section 1491(a)(2)] to issue as declaratory relief an order

remanding this matter to NPS with directions as to what this Court deems proper

and just.” Pl.’s Reply at 23. Specifically, Eco Tour asks the court to “remand with

a direction for NPS to review its decision that the preferred offerors’ proposals

were responsive and, even if NPS continues to find such proposals responsive, to

provide direction that Hole Hiking needs to match Eco Tour’s better terms.” Id. at

24. The court rejects Eco Tour’s request for a remand.

Even if the court were authorized to grant a remand under section 1491(a)(2)

in connection with a bid protest pursued under an implied contract theory (an issue

which is far from certain 17), Eco Tour’s requested remand is beyond the scope of

any such authority. Eco Tour would shoehorn into the court’s ability to remand

with “proper and just” directions unfettered authority for the court to issue

essentially unlimited orders to the agency, such as requiring Hole Hiking to “match

Eco Tour’s better terms.” Pl.’s Reply at 24. This treads beyond the proper scope

of remand into the realm of injunctive relief. The power to remand with “proper

and just” instructions cannot trump the unavailability of injunctive and declaratory

relief under section 1491(a). See, e.g., Todd Const., L.P. v. United States, 88 Fed.

Cl. 235, 245 (2009).

17

/ Eco Tour cites no authority supporting the grant of a section 1491(a)(2) remand in the

context of a bid protest pursued under an implied contract theory, and the court has found none.

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For all of the foregoing reasons, the court concludes that Eco Tour is

precluded from obtaining injunctive or declaratory relief and is limited to a

recovery of monetary damages that comprise the costs Eco Tour incurred while

preparing its proposal. Accordingly, the court need not consider the parties’

remaining arguments concerning the particular equitable relief requested by Eco

Tour.

CONCLUSION

The Park Service acted arbitrarily and capriciously in concluding that the

financial information omitted from Jackson Hole’s and Hole Hiking’s proposals

for the disputed contracts was immaterial, and therefore that Jackson Hole’s and

Hole Hiking’s proposals were responsive to the requirements of the prospectus.

Accordingly, in allowing Jackson Hole and Hole Hiking to match the better terms

of Eco Tour’s proposals for the disputed contracts, the Park Service breached the

implied contract for bids to be fairly and honestly considered. As Eco Tour

submitted responsive proposals for the disputed contracts that received the highest

cumulative scores of any of the proposals received by the Park Service, Eco Tour

has demonstrated a “substantial chance” that it would have received the disputed

contracts if not for the Park Service’s arbitrary and capricious responsiveness

determination with regard to the proposals of Jackson Hole and Hole Hiking.

Having established prejudice resulting from the Park Service’s arbitrary and

capricious action, Eco Tour is entitled to judgment on the administrative record.

The court encourages the parties to resolve the bid preparation costs issue

amicably, preferably by stipulation as to an amount due Eco Tour. If such a

resolution is not achieved, Eco Tour must file a motion and accompanying brief in

support of its request for bid preparation costs. The parties are directed to confer

to determine how they wish to proceed with respect to determining the amount of

bid preparation costs Eco Tour is entitled to receive in light of the court’s

resolution of this protest. The court also encourages the parties to explore and

address the issue of attorney fees and costs in advance of any necessity to litigate

that issue. Defendant shall file a status report as to the results of the parties’

negotiations in that regard on or before January 6, 2014.

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Accordingly, it is hereby ORDERED that 18

(1) Plaintiff’s Motion for Judgment on the Administrative Record, filed

September 20, 2013, is GRANTED;

(2) Defendant’s Motion for Judgment on the Administrative Record, filed

October 22, 2013, is DENIED;

(3) Defendant’s Motion to Dismiss for Lack of Jurisdiction, filed August

15, 2013, is DENIED as moot;

(4) Defendant’s Motion to Strike References to Documents Outside of the

Administrative Record Made Within Plaintiff’s Opposition to

Defendant’s Motion for Judgment on the Administrative Record, filed

November 1, 2013, is GRANTED;

(5) On or before December 20, 2013, counsel for the parties shall

CONFER and FILE with the Clerk’s Office a redacted copy of this

opinion, with any material deemed proprietary or confidential marked

out and enclosed in brackets, so that a copy of the opinion can then be

prepared and made available in the public record of this matter;

(6) On or before December 20, 2013, defendant shall FILE, as a separate

UNSEALED document on CD-ROM, a redacted version of the

administrative record filed August 12, 2013, as well as redacted

versions of the supplements to the administrative record filed on

September 6, 2013 and October 1, 2013, so as to establish a proper

public record of this protest;

(7) The parties shall CONFER and attempt a resolution of plaintiff’s

requests for bid preparation costs and attorney fees and costs; and

18

/ In ¶ 5 of the ordering language in the sealed version of this opinion issued on

November 26, 2013, the court directed the entry of final judgment in favor of plaintiff.

However, because the quantum of Eco Tour’s bid preparation costs has yet to be determined, the

court defers entry of final judgment pending the court’s final disposition regarding Eco Tour’s

bid preparation costs.

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(8) On or before January 6, 2014, defendant shall FILE a Status Report

as to the results of the parties’ negotiations regarding plaintiff’s

requests for bid preparation costs and attorney fees and costs.

/s/Lynn J. Bush

LYNN J. BUSH

Senior Judge

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