Jordan Pond Company, LLC v. United States

In the United States Court of Federal Claims

No. 13-913 C

(Filed April 8, 2014)1

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

JORDAN POND COMPANY, LLC, *

*

Plaintiff, *

* Bid Protest; Concession

v. * Contract; 28 U.S.C. § 1491(a)

* (2012); Whether the Terms of

THE UNITED STATES, * a Draft Contract Invalidate the

* Agency’s Evaluation of the

Defendant, * Awardee’s Proposal.

*

DAWNLAND, LLC, *

*

Intervenor-Defendant. *

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

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

Barbara E. Thomas, United States Department of Justice, with whom were

Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director,

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

Melissa Lackey, U.S. Department of the Interior Office of the Solicitor,

Washington, DC, of counsel.

Neil H. O’Donnell, San Francisco, CA, for intervenor-defendant. Jeffery M.

Chiow and Lauren B. Kramer, San Francisco, CA, of counsel.

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/ This opinion was issued under seal on March 14, 2014. Pursuant to ¶ 4 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. Proposed redactions were filed

on April 19, 2014 and were acceptable to the court. Brackets ([ ]) identify the redacted portions

of this opinion.

____________________________

OPINION AND ORDER

____________________________

Bush, Senior Judge.

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

the administrative record. Plaintiff Jordan Pond Company, LLC (Jordan Pond)

filed a pre-award bid protest complaint on November 20, 2013. In this protest,

Jordan Pond challenges a proposed contract award by the National Park Service of

the United States Department of the Interior (Park Service or NPS) to Dawnland,

LLC (Dawnland). At issue is a ten-year concession contract to provide various

concession services at Acadia National Park (Acadia) on the Maine coast.

Dawnland has intervened in this suit.

The administrative record (AR) was filed on December 9, 2013, amended on

January 8, 2014 and supplemented on January 14, 2014. Briefing was filed

according to an expedited schedule and oral argument was held on February 18,

2014. As discussed below, the proposed award decision was neither arbitrary nor

capricious; furthermore, the record does not show that the Park Service abused its

discretion in crafting a proposed contract with Dawnland. Accordingly, plaintiff’s

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

intervenor-defendant’s motions for judgment on the administrative record are

granted.

BACKGROUND

I. Issuance of the Prospectus

The visitor services at Acadia at issue in this competition include a

restaurant and shop at Jordan Pond House, a shop on Cadillac Mountain and

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another shop at Thunder Hole. Jordan Pond has been the concessioner at Acadia

since 1932.2 AR at 1201. Jordan Pond’s last ten-year concession contract at

Acadia was due to expire December 31, 2012. Id. at 1. On July 19, 2012, the Park

Service issued a prospectus seeking offers for the next ten-year contract at Acadia.

Id. Tab 3. The prospectus also contained a template concession contract for Acadia

(hereinafter, Baseline Contract) for the consideration of offerors. Id. at 151-246.

Jordan Pond’s incumbent contract was eventually extended through 2013. Id. at

109.

II. Evaluation Factors and Scoring Scheme

The prospectus adopts the standard selection factors set forth in 36 C.F.R.

§ 51.17 and the standard scoring scheme for these factors set forth in 36 C.F.R.

§ 51.16.3 AR at 125-26. The selection factors and scoring scheme are set forth in

this manner in the prospectus:

For each selection factor, the Service will assign a score

that reflects the determined merits of the proposal under

the applicable selection factor and in comparison to the

other proposals received, if any. The Service will give

equal weight to each subfactor under a given selection

factor unless otherwise expressly stated.

Principal Selection Factor 1 (scored from zero to five).

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 (scored from zero to five).

The responsiveness of the proposal to the objectives, as

described in the Prospectus, of providing necessary and

appropriate visitor services at reasonable rates;

2

/ The court refers to both Jordan Pond Company, LLC and its parent corporation as

“Jordan Pond” in this opinion.

3

/ All references to the Code of Federal Regulations are to the current version, which is

identical in relevant part to the version in force at the time the prospectus was issued.

3

Principal Selection Factor 3 (scored from zero to five).

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 (scored from zero to five).

The financial capability of the Offeror to carry out its

proposal;

Principal Selection Factor 5 (scored from zero to four,

with a score of one for agreeing to the minimum

franchise fee contained in the prospectus). 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;

Secondary Selection Factor 1 (scored from zero to

three). 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;

Secondary Selection Factor 2 (scored from zero to two).

Providing suitable living environments for

concessioner personnel.

The Service then will assign a cumulative point score to

each proposal based on the assigned score for each

selection factor. The Service will select the responsive

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proposal with the highest cumulative point score as the

best proposal.

Id. (reformatted and condensed, with emphasis added). Although some variation is

possible, the mid-point of a point scale for a factor might be considered to be an

“adequate” score for that particular factor. See id. at 1636. Based on this scoring

scheme, the highest possible cumulative score for a proposal would be twenty-nine

points.

Within the evaluation factors were various subfactors, which, as noted

above, were equally important within that selection factor. The following

summary provides an outline of factors and subfactors to be considered in the

evaluation of proposals:

Principal Selection Factor 1 (protecting, conserving,

and preserving resources of the park area) --

Subfactor 1(a): Resource Education for Visitors and

Employees

Subfactor 1(b): Vehicle Management

Principal Selection Factor 2 (providing necessary and

appropriate visitor services at reasonable rates) --

Subfactor 2(a): Retail Operations

Subfactor 2(b): Healthy and Sustainable Food

Subfactor 2(c): Tribal Relationships

Principal Selection Factor 3 (past performance and

expertise of the Offeror in providing the same or

similar visitor services) --

Subfactor 3(a): Iconic Food Service Dining Experience

Subfactor 3(b): Violations or Infractions

Principal Selection Factor 4 (financial capability of the

Offeror) --

Subfactor 4(a): Credible, proven track record of

meeting financial obligations

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Subfactor 4(b): Financially viable proposal and

understanding of the financial obligations of the

[Baseline] Contract

Subfactor 4(c): Ability to obtain the required funds

for start-up costs under the [Baseline] Contract and

explanation of the financial arrangements proposed

Principal Selection Factor 5 (amount of the proposed

minimum franchise fee) --

No Subfactors

Secondary Selection Factor 1 (environmental

management programs) --

Subfactor 1(a): Sustainable Practices

Subfactor 1(b): Local, Regional and Other Sustainable

Food Sources

Secondary Selection Factor 2 (suitable living

environments for concessioner personnel) --

No Subfactors

See AR at 135-50 (reformatted and summarized, with emphasis added). The

prospectus also identifies, within the description of the selection factors and

subfactors, the objectives of the Park Service in these areas. Id.

III. Proposals Received

[ ] proposals were received by the due date of November 20, 2012, but only [

] proposals scored high enough in the evaluation process to be relevant to this bid

protest.4 Jordan Pond identified itself as “a local organization with many years of

experience.” AR at 1201. Dawnland identified itself as “[ ].” Id. at 830. [ ] noted

its “[ ].” Id. at 1924.

IV. Evaluation of Proposals

4

/ Consequently, in this opinion the court’s shorthand reference to “all” of the proposals

will be to the [ ] leading proposals.

6

An evaluation team (evaluation panel or panel) was assembled by the Park

Service and met in Philadelphia from December 3 through December 7, 2012. AR

at 1721. The report of the evaluation panel was finalized on December 28, 2012,

and was approved by NPS regional and national directors on May 9, 2013 and July

12, 2013. Id. Tabs 10-12. Offerors were notified of the award decision on

September 28, 2013. Id. Tabs 13-16. Dawnland’s proposal was selected for

award, with [ ] points; [ ]’s proposal was second, with [ ] points; and Jordan Pond’s

proposal was third, with [ ] points. Id. at 1721.

V. Procedural History

Jordan Pond challenges the proposed concession contract award to

Dawnland in this bid protest. The complaint was amended by leave of the court on

January 9, 2014. One of the principal contentions in the amended complaint is that

the draft proposed contract with Dawnland (hereinafter, Draft Contract) omits

many elements of Dawnland’s proposal “upon which its [winning] scoring was

based.”5 Am. Compl. ¶ 61. The complaint also alleges that numerous evaluation

errors invalidate the Park Service’s award decision. The court reserves further

discussion of plaintiff’s arguments for the analysis section of this opinion.

DISCUSSION

I. Jurisdiction

Jurisdiction over this concession contract bid protest is provided by 28

U.S.C. § 1491(a) (2012). Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl.

6, 18-21 (2013). As this court held in Eco Tour, concession contracts are not

procurements so as to permit concession contract pre-award or post-award protests

under this court’s 28 U.S.C. § 1491(b) (2012) jurisdiction. See id. at 20. For the

jurisdictional analysis in Eco Tour, the court relied on numerous decisions,

including: Resource Conservation Group, LLC v. United States, 597 F.3d 1238,

1242, 1244-47 (Fed. Cir. 2010); Terry v. United States, 98 Fed. Cl. 736, 737

5

/ The court notes that the Baseline Contract included in the prospectus, AR at 151-246,

was prepared by the Park Service and released to the public on July 19, 2012. The Draft

Contract, id. Tab 17, on the other hand, was prepared sometime after the Park Service made its

selection decision and incorporates some commitments from Dawnland’s proposal into the

contracting framework set forth in the Baseline Contract.

7

(2011); Frazier v. United States, 67 Fed. Cl. 56, 59 (2005), aff’d, 186 F. App’x 990

(Fed. Cir. 2006); and, YRT Services Corp. v. United States, 28 Fed. Cl. 366, 392

n.23 (1993).

Further, this court in Eco Tour held that injunctive and declaratory relief in a

concession contract protest are not available under 28 U.S.C. § 1491(a). 114 Fed.

Cl. at 40-42. Thus, although this protest falls within the ambit of the court’s

jurisdictional grant in § 1491(a)(1) under the theory of a breach of an implied

contract between the government and prospective bidders to treat bidders’

proposals fairly and honestly, Am. Compl. ¶¶ 173-175, Jordan Pond’s potential

recovery in this suit is limited to bid preparation and proposal costs. Eco Tour, 114

Fed. Cl. at 21, 42. The court relies on the extensive analysis of these issues in Eco

Tour, which, as regards jurisdiction, dealt with a concession contract

indistinguishable from the concession contract at issue here. The court concludes

that jurisdiction for this suit lies exclusively under § 1491(a)(1), and that plaintiff’s

recovery, if any, would be limited to bid preparation and proposal costs.

Plaintiff’s arguments to the contrary have no merit. Although plaintiff

attempts to distinguish the concession contract in Eco Tour from the concession

contract at issue here, both contracts are concession contracts which provide

funding to the Park Service, not procurement contracts. Plaintiff also attempts to

rely on the persuasiveness of jurisdictional analyses of the Government

Accountability Office and the Interior Board of Contract Appeals as to the nature

of concession contracts, Pl.’s Mot. at 49, but these analyses were specifically

rejected in Eco Tour and must again be rejected here.

In any event, to the extent that plaintiff argues that the concession contract in

Acadia National Park is a “mixed transaction” encompassing both a procurement

of services for the government as well as a concession contract which provides

funding to the Park Service, the court disagrees. As both defendant and intervenor-

defendant note, maintenance of the concession buildings in Acadia is better

characterized as a condition of the opportunity to operate the concession rather

than as separate services provided to the Park Service. See Def.’s Reply at 20

(describing maintenance responsibilities of the Acadia concessioner as

“incidental”); Dawnland’s Reply at 21 (describing maintenance responsibilities as

“one of the elements of this concession contract [which] relate to the granting to

Dawnland of the right, for a fee, to provide visitor services”). Even under the

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“mixed bag” transaction theory proposed by plaintiff, Pl.’s Reply at 46, the Acadia

concession contract could not be classified as a procurement.

Finally, plaintiff attempts to find support in a 1978 Court of Claims case for

its proposition that “the ‘mixed bag’ solicitation at issue [here] constitutes a

procurement for purposes of 28 U.S.C. § 1491(b).” Pl.’s Reply at 46; see also id.

at 48-49. Plaintiff relies on Yosemite Park & Curry Co. v. United States, 582 F.2d

552, 554 (Ct. Cl. 1978), but plaintiff’s reliance on Yosemite Park is misplaced, for

several reasons. First, it is difficult to conceive how Yosemite Park provides any

precedential insight into the scope of this court’s § 1491(b) bid protest jurisdiction,

or the distinction between § 1491(a) and § 1491(b) bid protest jurisdiction in this

court, in light of the fact that Yosemite Park predates the enactment of § 1491(b) by

almost twenty years. Second, there is no clear statement in Yosemite Park

regarding the key issue of whether a concession contract can also be a procurement

contract so as to permit this court to award injunctive or declaratory relief under

§ 1491(b) or any other authority. Third, as defendant and intervenor-defendant

note, Yosemite Park involved an unusual fact pattern where a Memorandum of

Understanding was grafted onto a concession contract – the facts of Yosemite Park

and the concession contract in this case are readily distinguishable. See YRT

Services, 28 Fed. Cl. at 392 n.23 (also distinguishing Yosemite Park due to its

particular facts). For all of these reasons, plaintiff has failed to rebut the

jurisdictional analysis presented in Eco Tour and adopted here.

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.

B. Bid Protest Review

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The court first inquires into the plaintiff’s standing to bring the bid protest.

Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.

2003). 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. Bannum, 404 F.3d at 1351. If the award decision fails

review, the court then determines as a factual matter whether the plaintiff was

prejudiced by the arbitrary or unlawful conduct. Id.

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 Construzioni Geom. Domenico Garufi v. United States,

238 F.3d 1324, 1332-33 (Fed. Cir. 2001)).

The APA standard applicable to agency actions challenged in a bid protest 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)).

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A bid protest plaintiff bears the burden of proving that a 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)

(Alabama Aircraft) (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).

The deference afforded to an agency’s decision must be even greater when a

trial court is asked to review a technical evaluation. “[T]echnical ratings . . .

involve discretionary determinations of procurement officials that a court will not

second guess.” E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)

(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.”) (citation omitted). “[W]here an

agency’s decisions are highly technical in nature, . . . judicial restraint is

appropriate and proper.” Electro-Methods, Inc. v. United States, 7 Cl. Ct. 755, 762

(1985) (citing Isometrics v. United States, 5 Cl. Ct. 420, 423 (1984)).

Similar principles apply to bid protests of concession contract award

decisions. Eco Tour, 114 Fed. Cl. at 22-23. 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 Sys., Inc. v. United States, 141

F.3d 1124, 1132 (Fed. Cir. 1998) (citing Keco Indus., Inc. v. United States, 492

F.2d 1200, 1203 (Ct. Cl. 1974)); 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) (citation

omitted). 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

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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)).

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. Id. (citations omitted); Alfa Laval Separation, Inc. v. United States, 175 F.3d

1365, 1367 (Fed. Cir. 1999); Data General, 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 Jordan Pond’s standing to bring its suit; and, second, to

determine whether Jordan Pond 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 and Dawnland have not directly challenged Jordan

Pond’s standing to bring this protest of the Park Service’s proposed award of the

concession contract to Dawnland, the government does contest plaintiff’s standing

“to challenge the terms upon which the agency chooses to contract with

Dawnland.” Def.’s Reply at 1. This standing argument, although superficially

attractive, is ultimately not persuasive. The government’s argument, largely

unsupported by case citations, depends on the complete separation of Jordan

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Pond’s protest of evaluation rankings from Jordan Pond’s arguments regarding the

contents of a draft proposed contract with Dawnland. Id. at 4 (“Because the

agency’s drafting of the Dawnland contract was a separate action from its selection

of Dawnland, Jordan Pond cannot challenge the rationality of that drafting without

first showing how it was injured by the [contents] of the [proposed] contract.”).

Defendant states that “the incorporation of elements from Daw[n]land’s

proposal into the draft concession contract was not part of the selection process, as

both applicable law and the administrative record make clear.” Def.’s Reply at 3.

The government also contends that “[t]he selection of Dawnland was thus complete

before the agency decided which elements of Dawnland’s proposal to incorporate

into the draft concession contract.” Id. The government reasons that

because the revision of the draft contract was not part of

the process by which Dawnland was selected as the

offeror of the best proposal, that selection [for award]

was not and could not be affected by the agency’s

determinations regarding which elements of Dawnland’s

proposal should be included in the concession contract.

If the agency had included in the contract every element

of Dawnland’s proposal, or if it had included none,

Dawnland would still have been the selected offeror. The

agency’s decisions regarding which proposal elements to

incorporate into the contract thus had no effect on Jordan

Pond and are not relevant to this protest.

Id. The government concludes that “Jordan Pond therefore lacks standing to

challenge the validity of the agency’s choice of contract terms, and to the extent

this protest is founded upon that challenge, it must be dismissed for lack of

subject-matter jurisdiction.” Id. at 4 (citation omitted).

The court, however, distinguishes between the relevance of Jordan Pond’s

reliance on the Draft Contract with Dawnland and plaintiff’s standing to bring this

suit. Simply because many of plaintiff’s arguments may turn out to be irrelevant or

unpersuasive does not indicate that Jordan Pond lacks standing to bring this bid

protest. The protestor need not prove standing for every argument, or for every

facet of every argument, for this court to reach the merits of a bid protest. See, e.g.,

13

L-3 Commc’ns EOTech, Inc. v. United States, 87 Fed. Cl. 656, 665 (2009)

(declining to require a protestor to “show that it has standing for each and every

argument it has raised in requesting relief from this court”). Whether or not the

terms of the Draft Contract have any relevance to the outcome of this case goes

more to the merits of this protest than to standing. See id. (stating that “[w]hether

[the plaintiff] will prevail on the merits of its [particular] argument is not a

question of standing”).

Here, plaintiff contends that the agency’s award decision is irrational in light

of the terms of the Draft Contract, and is irrational for many other reasons as well.

As stated supra, bid protest standing is limited to those plaintiffs with a substantial

chance of winning the contract at issue in the protest. Orion, 704 F.3d at 1348-49.

If the scoring of the proposals received from Dawnland, [ ] and Jordan Pond was

indeed arbitrary and capricious, as plaintiff contends, there is a substantial chance

that Jordan Pond would have been awarded the concession contract. Accordingly,

the court concludes that Jordan Pond has standing to bring this bid protest.

IV. Analysis

Plaintiff presents two principal lines of argument. First, plaintiff suggests

that the Park Service’s award decision is irrational because the Draft Contract fails

to incorporate many of the innovations in Dawnland’s proposal that were praised

by the evaluation panel and which contributed to Dawnland’s winning score. Pl.’s

Mot. at 2. Second, plaintiff argues that the scoring of proposals was sufficiently

flawed to render the award decision arbitrary and capricious. Id. at 3. Both of

these overarching arguments are without merit.

Before turning to the parties’ arguments on the merits, however, the court

must address a threshold issue concerning materials presented by the parties for the

court’s consideration. The court has examined the administrative record prepared

by the agency and finds it to present a clear and complete picture of the agency’s

award decision. The court has considered the parties’ arguments which are based

upon this record and which contain page citations to the record. The court has not

considered, however, explanatory charts attached to the parties’ briefs or provided

to the court as demonstrative exhibits at oral argument. Nothing in the

administrative record required explanation of the sort provided in these charts. For

14

this reason, the court will not reference any of the parties’ explanatory charts in

this opinion.6

A. The Draft Contract Does Not Render the Agency’s Award

Decision Arbitrary or Capricious, and Does Not Evidence an

Abuse of Discretion

As defendant argues, there is a significant distinction between the evaluation

of proposals to select the best proposal and the incorporation of terms of the best

proposal into a draft contract. Def.’s Reply at 3. Plaintiff relies on three cases for

its proposition that the Draft Contract is nonetheless relevant to this protest:

Planning Research Corp. v. United States, 971 F.2d 736, 738-41 (Fed. Cir. 1992);

Jacobs Technology Inc. v. United States, 100 Fed. Cl. 198, 210 (2011); and Hunt

Building Co. v. United States, 61 Fed. Cl. 243, 246, modified, 63 Fed. Cl. 141

(2004). Pl.’s Mot. at 47-48; Pl.’s Reply at 18-19; Oral Argument Transcript (Tr.)

at 7-8. The court finds these authorities to be inapposite because the facts in those

cases are distinguishable from this case.

Planning Research discussed a classic “bait and switch,” where an offeror

was permitted to later substitute staff members for key personnel positions, despite

having included resumes for particular candidates for these key positions in its

proposal. Jacobs Technology concerned the later discovery of information about a

potential organizational conflict of interest that might have disqualified the

winning offeror. Hunt Building discussed the relaxation of material solicitation

requirements after a contract award. None of these fact patterns pertains here.

Further, none of these cases addresses, even tangentially, the question of whether

an agency’s decision to incorporate some but not all of the elements of a winning

6

/ The court also declines to address the innuendo and disparaging remarks which season

plaintiff’s briefs. See, e.g., Pl.’s Mot. at 27 (suggesting that the evaluation panel was “clueless as

to the substantive merits of the proposals”), 33 (characterizing the evaluation panel’s ratings of

the offerors’ experience as “highly suspicious”); Pl.’s Reply at 15 n.5 (raising the specter of an

“inappropriately informal relationship” between the NPS and Dawnland). Such commentary

was not persuasive as to any alleged infirmity in the agency’s award decision. The court notes

that plaintiff has disavowed any attempt to show bad faith on the part of the Park Service. Pl.’s

Reply at 18 (stating that the government’s assertion that Jordan Pond assumes bad faith on the

part of the NPS is “invalid” and that plaintiff “does not assert NPS acted in bad faith”). In the

absence of specific allegations of bad faith, such remarks are gratuitous and irrelevant.

15

proposal into a draft contract is relevant to the propriety of the agency’s selection

process. Nor do these cases address the competition for concession contracts with

the Park Service, which, as noted supra, is different from procurement contract

competitions. The court must consider, therefore, whether the logical construct

presented by plaintiff requires a comparison of the Draft Contract with Dawnland’s

proposal.

Plaintiff contends that some elements of the best proposal would logically be

included in a draft concession contract. Tr. at 12 (relying on principles of “fairness

and logic[] and rationality”), 13 (“That’s a totally arbitrary selection method if

you’re not going to make them do exactly what it was that was the basis for

selecting them for award. There’s no logic to that.”). The court notes, however,

that the relevant regulations give the Park Service substantial discretion in this

regard. For example, 36 C.F.R. § 51.19 states that

[e]xcept for incorporating into the concession contract

appropriate elements of the best proposal, the Director

must not award a concession contract which materially

amends or does not incorporate the terms and conditions

of the concession contract as set forth in the prospectus.

Id. (emphasis added).

Nothing in the concession contract regulations, the prospectus, or internal

guidance documents of the Park Service suggests that all, or even most, of the

elements of the best proposal must be included in the Draft Contract. See AR at

128 (“The [Park] Service, in accordance with 36 C.F.R. Part 51, may include as

terms of the draft concession contract, appropriate elements of the proposal

selected for award of the concession contract, including, without limitation,

investments, facilities, services, and other commitments.”) (emphasis added), 1634

(stating that “commitments made by each offeror above and beyond the

requirements of the [Baseline] Contract . . . may be incorporated into the Contract

before it is executed”) (emphasis added), 1637 (“Anything a winning Offeror

proposes can be incorporated into the draft contract, regardless of [whether] the

element was considered in the scoring or not.”) (emphasis added), 1648 (“The park

staffer responsible for incorporating the terms of the better offer [into the Baseline

Contract] should have a copy of that proposal to begin working on changes to the

16

[Operating Plan] and [Maintenance Plan].”). The court must therefore review

plaintiff’s challenge to the agency’s selection decision, and, in particular,

plaintiff’s contentions regarding the relevance of the inclusion or exclusion of

certain elements of Dawnland’s proposal in the Draft Contract, with the agency’s

discretion in mind.

At oral argument, plaintiff conceded that the Park Service has some

discretion in incorporating elements of a winning proposal in a draft contract, but

plaintiff insisted that the Draft Contract in this case exhibits illogical reasoning or

an abuse of discretion:

[W]e are not challenging the Park Service[’s] mere

ability or authority to exercise discretion. Instead, we are

challenging the specific way the Park Service exercised

its discretion in this particular evaluation. We’re not

asserting that the Park Service must always, in every

evaluation, include any particular element from a

winning proposal as a contract term. We’re asserting that

NPS has abused its discretion in this particular case and

acted illogically given that the specific basis it used to

make its selection is illogical given what it chose to put

in the contract. So, we’re really focusing on the

evaluation process, and thus, we think their conduct

shows that this was illogical in this particular case.

Tr. at 9. Having considered the authorities relied upon by plaintiff, its arguments

based on logic and rationality, the regulatory framework of concession contracts,

the terms of the prospectus, the guidance documents in the record, and the Draft

Contract itself, the court must disagree with plaintiff’s overarching argument that

the Draft Contract renders the award to Dawnland irrational. Further, although the

Draft Contract is not entirely irrelevant to this bid protest, plaintiff attaches far

greater significance to the content of the Draft Contract than is warranted.

First, as defendant notes, there is nothing in the record to suggest that when

the Park Service omitted a particular feature of Dawnland’s proposal in the Draft

Contract, such an omission amounted to a rejection of that feature because it was

17

infeasible or undesirable.7 Def.’s Mot. at 28-31. The record, rationally read,

indicates that this type of concession contract does not necessarily incorporate

every or even most of the features of the winning proposal. Instead, certain

provisions are merely grafted onto a largely boilerplate contract, which in this case

had already been revised in the prospectus to indicate Park Service priorities in

Acadia National Park, to include features in the winning proposal that the Park

Service chose to implement in the new contract. To assume otherwise is pure

speculation that has no support in the administrative record, and such an

assumption, for that matter, is not a logical conclusion.

The court therefore rejects plaintiff’s overall thesis that the agency’s failure

to incorporate certain of Dawnland’s high-scoring proposal features into the Draft

Contract meant that the agency, by definition, had subsequently deemed those

features to be undesirable. Cf. Pl.’s Mot. at 13 (“[T]he evidence which is in the

record demonstrates that a vast number [of] Dawnland’s performance

commitments which were highlighted by the Panel were rejected by NPS because

they were (1) infeasible and thus should have been the basis of a lower score, (2) of

no value whatsoever to the Government and thus not supporting Dawnland’s

higher score, or (3) non-enforceable and thus totally illusory and meaningless.”).

Such a leap of logic fails in the context of the regulatory framework and the terms

of the prospectus which contained no prohibition against defendant’s ability to

select the proposal features it wished to include in the Draft Contract.

It follows, therefore, that the agency was under no obligation to review the

content of the Draft Contract to ensure that its evaluation of proposals guaranteed

the inclusion of all or most of Dawnland’s proposal features in the Draft Contract.

Cf. Pl.’s Mot. at 2 (“NPS should have gone back and reevaluated the proposals

[but] . . . NPS inexplicably did not reevaluate the proposals and apparently intends

to proceed with awarding the contract to Dawnland.”). Indeed, there is no

7

/ Additions of highly-specific contract requirements, such as those chosen from among

the many commitments in Dawnland’s proposal, are edited into the Operating Plan and

Maintenance Plan sections of the Baseline Contract. AR at 1648. As evidenced by the Draft

Contract here, these highly-specific commitments constitute a small portion of the contract terms

that will bind the parties. See AR at 1845-66, 1902-06 (“Additional initiatives”), 1919

(“Concessioner Improvements”). Highly-specific features of the Operating Plan and the

Maintenance Plan of the incumbent concession contract also constituted but a small portion of

the terms binding the Park Service and Jordan Pond. See AR at 43-58, 79-89.

18

indication that the award decision procedures outlined in the prospectus or in the

Park Service’s internal guidance documents contemplated such a feedback loop.

See AR at 126, 1629-49. The “enhanced” selection procedure that plaintiff

advances here, which requires a comparison of the Draft Contract with Dawnland’s

proposal, contradicts the selection procedure set forth in 36 C.F.R. Part 51 and the

prospectus. See 36 C.F.R. §§ 51.16-51.17; AR at 125-26. The court cannot fault

the agency for an alleged failure to re-evaluate proposals when such a re-evaluation

process is in direct conflict with applicable regulations and the prospectus.8

The court acknowledges that there might be, hypothetically, a draft

concession contract which, by its failure to include significant elements from the

winning proposal, evinces an arbitrary and capricious selection process conducted

by the Park Service. The court need not decide that issue in this case. The Draft

Contract in the record here, which has already been executed by Dawnland,

contains significant elements of Dawnland’s proposal and is, in the court’s view,

entirely consistent with the winning score awarded Dawnland’s proposal. Most of

these proposal elements are included in the Operating Plan and the Maintenance

Plan in the Draft Contract, see AR at 1845-66, 1902-06, 1919, and the Draft

Contract, despite plaintiff’s numerous protestations to the contrary, does not render

the agency’s award decision illusory, arbitrary or capricious. Nor did the Park

Service abuse its discretion in adopting certain elements of Dawnland’s proposal

and not others.

B. The Evaluation of Proposals Was Not Significantly Flawed

Plaintiff correctly identifies two errors in the evaluation report but has not

shown that these minor errors invalidated the ratings awarded by the evaluation

panel to the proposals of Dawnland, [ ] and Jordan Pond, or that these two errors

were prejudicial to Jordan Pond. In addition, although plaintiff argues strenuously

to convince the court that the evaluation panel did not correctly rate the proposals

in many of the selection factors and subfactors, the court must agree with

8

/ Intervenor-defendant suggests that plaintiff’s contentions regarding the inclusion of

the winning proposal’s terms in the Draft Contract is barred by Blue & Gold Fleet, LP v. United

States, 492 F.3d 1308, 1313-14 (Fed. Cir. 2007), because plaintiff’s challenge to the terms of the

prospectus is untimely. Dawnland’s Mot. at 14 n.5. Plaintiff disagrees. See Tr. at 8-10.

Because plaintiff’s arguments regarding the Draft Contract have no merit, the court need not

decide whether these arguments are barred by the doctrine invoked by intervenor-defendant.

19

defendant that these arguments are largely plaintiff’s “subjective disagreement

with the judgment of the agency.” Def.’s Mot. at 23. Finally, plaintiff finds fault

with the composition of the evaluation panel, but the court in that regard has

discerned in the record only a de minimis failure to follow a procedure outlined in a

non-binding internal guidance document. For these reasons, the court must rule

against plaintiff on the merits of its protest. The court addresses plaintiff’s

principal contentions regarding flaws in the evaluation process by addressing these

topics: minor non-prejudicial evaluation errors, valid evaluation results, and valid

evaluation panel composition.9

1. Minor Evaluation Errors of No Prejudicial Impact: [ ] and

Native Sturgeon Roe

The incumbent concession contract required that [ ] be served at Jordan Pond

House, AR at 45, and a copy of the incumbent contract (including the [ ] provision)

was appended to the prospectus, id. at 292. The Baseline Contract in the

prospectus omitted the [ ] requirement, however, a fact that was lamented by

Jordan Pond in its proposal.10 Id. at 1399 (stating that [ ]). Jordan Pond’s proposal

9

/ The court has considered all of Jordan Pond’s arguments presented in the body of

plaintiff’s briefs and at oral argument. To the extent that some of plaintiff’s arguments are not

mentioned here in the interests of judicial economy, the court has found those arguments to be

unpersuasive.

10

/ The court notes that one of the distinguishing features of the proposals submitted by

Dawnland and Jordan Pond is that these proposals varied in the tone of their discussion of

tradition at Jordan Pond House. Dawnland describes its experience in “taking on under-

performing concessions [and] turning them around,” AR at 830, and describes its restaurant

offerings as “respecting Jordan Pond House . . . traditions like popovers, homemade ice cream,

and tea service but also paying homage to traditional foods eaten by the Wabanaki, native tribes

that predated European settlement,” id. at 892. Jordan Pond, however, emphasizes tradition by

stating that “we feel uniquely qualified to provide park visitors with the traditional Jordan Pond

House experience,” id. at 1201, and devoting extensive sections of its proposal to topics such as

“Keeping the Tradition in Jordan Pond House,” id. at 1387, “Preserving the Unique History of

Jordan Pond House,” id. at 1398, “Ensuring Traditional ‘Tea House’ Service of the 1930s,” id.,

and “Plan for Changes to Keep the Tradition Fresh,” id. at 1401. Dawnland’s proposal appears

to present a more aggressive approach to change, id. at 1002 (stating that “we think that the

current operation can be improved significantly”), whereas Jordan Pond’s proposal touts the

incumbent’s proven ability to “maintain a very tight grip on ensuring the quality of the ‘iconic’

(continued...)

20

also noted that [ ] are not grown locally (Maine) or regionally (New England), and

that the incumbent’s operation used “over 61,000 [ ] annually.” Id. at 1573.

All three offerors proposed to serve [ ] at Jordan Pond House. Secondary

Selection Factor Subfactor 1(b) (SSF1(b)) measured the offerors’ plans regarding

“Local, Regional, and Other Sustainable Food Sources.” AR at 149. This

selection subfactor states in relevant part that:

Identify your baseline percentage of purchases to meet

the local and regional food sourcing standards outlined in

the Operating Plan . . . and identify how you will increase

the percentage of purchases over the term of the contract.

Include the targets you seek to achieve by the end of the

contract and the methods you will use to accomplish

those targets. Identify how you will monitor progress on

these purchases on an annual basis in order to

demonstrate progress. You may supplement the table

with narrative descriptions.

If local or regional food sources are not available for

certain food items either during part or all of the

operating season, explain what other food items you will

feature to support a comprehensive program of providing

sustainable food choices to visitors.

Id. It is undisputed that Dawnland’s proposal stated that [ ] of its produce would

be sourced locally or regionally, which means, according to the terms in the

prospectus, that [ ] produce for Dawnland’s menu items would be grown in Maine

or New England.11 Id. at 191-92, 1181.

10

(...continued)

foods and the ‘traditional’ experiences that continue to be the highlight of every visitor who

comes to the Jordan Pond House Restaurant,” id. at 1398.

11

/ Although Dawnland labels its table of baseline percentages of purchases and later-

year percentages of purchases as “Goals,” the prospectus did not request goals for year one but

actual baseline percentages of purchases. Compare AR at 149, with id. at 1181. Thus, the Park

(continued...)

21

Plaintiff has presented conjecture that Dawnland misrepresented its sourcing

of [ ] to the Park Service. The court finds no evidence in the record as to

Dawnland’s subjective intent. The record does show, however, an inconsistency

between Dawnland’s proposed menu, which includes [ ], and its ambitious produce

sourcing plan, which depends [ ] on New England products. The evaluation team

did not note this inconsistency. See AR at 1791 (noting, without commentary,

Dawnland’s [ ] baseline percentage for local and regional produce sourcing). The

court agrees with plaintiff that the evaluation panel erred when it failed to note the

inconsistency between Dawnland’s sourcing plan and its menu.

The court must agree with defendant and intervenor-defendant, however,

that this evaluation error was not prejudicial. Even if the obvious mistake

regarding [ ] had been taken into account, the Park Service would have rationally

preferred Dawnland’s sourcing plan to Jordan Pond’s plan. Dawnland’s targets

were [ ] and the methods outlined in Dawnland’s proposal for meeting those targets

were [ ]. AR at 1794-95. Had the Park Service re-aligned the evaluation in light of

the mistake regarding [ ], one aspect of SSF1(b) would have been downgraded for

Dawnland, but the other aspects would still have been superior to Jordan Pond’s

proposal under this subfactor.

Even taking the most negative view of Dawnland’s mistake regarding the

sourcing of [ ], logically the Park Service would have dropped Dawnland’s score

on SSF1(b) from [ ] to [ ], which was also the rating for Jordan Pond’s less-

ambitious sourcing plan. The record shows that Dawnland had earned a [ ] rating

for SSF1(a). AR at 1795. Under the rating scheme used for SSF1, a [ ] rating on

one subfactor, and a [ ] rating on the other, produces a score of [ ]. Id. Dawnland’s

score from the evaluation panel on SSF1 was [ ]. Thus, at most, Dawnland’s

overall score, which was [ ] points higher than Jordan Pond’s, would fall to [ ]

points higher than Jordan Pond’s overall score. There is no possible prejudice to

Jordan Pond from a maximum [ ] reduction due to the [ ] on Dawnland’s menu and

its food sourcing plan.

11

(...continued)

Service evaluated Dawnland’s commitment to sourcing [ ] of its produce locally and regionally,

not an aspirational commitment to try to achieve [ ] local and regional sourcing of produce. AR

at 1791, 1794.

22

There was another inconsistency between Dawnland’s menu and

Dawnland’s sourcing plan, although this inconsistency was not readily apparent.

One of the appetizers on Dawnland’s menu, “[ ],” includes an ingredient of “native

sturgeon roe.” AR at 892. There appears to be no dispute that seafood used in

menu items must be local or regional, id. at 192, and that “native sturgeon roe”

cannot be sourced from New England. Dawnland asserted that all of its seafood

would be sourced from New England. Id. at 1181 & n.2. This error in Dawnland’s

seafood sourcing plan was not noted by the evaluation panel.

The court considers the oversight of the evaluation panel regarding the

sourcing of “native sturgeon roe” in Dawnland’s proposal to be an evaluation error,

but one that has no prejudicial effect on Jordan Pond. This second and much less

significant sourcing error in Dawnland’s proposal would have no additional impact

on the rating of proposals once the [ ] issue had been noted by the panel. The [ ]

and native sturgeon roe mistakes, together, in other words, carry no more weight

than the sourcing error regarding [ ], when considering flaws in the ambitious local

and regional food sourcing plan presented by Dawnland. For the reasons stated

above, even when these flaws are considered, Dawnland’s rating on this factor

would still be superior to Jordan Pond’s rating on SSF1(b). Furthermore, even

when these two evaluation errors are corrected, the maximum negative impact on

Dawnland’s overall score would still be a deduction of [ ]. The court finds that

Jordan Pond suffered no competitive prejudice from the errors in the panel’s

scoring of SSF1(b).

Plaintiff speculates that had the [ ] and native sturgeon roe mistakes been

recognized by the panel, the reliability of Dawnland’s sourcing plans would have

been questioned and its rating on SSF1(b) would have been drastically

downgraded. The court disagrees. The record shows, consistent with the panel’s

determination, that Dawnland’s local and regional sourcing plans are thorough,

creative, detailed and, despite these two minor errors, rational overall. See AR at

1181-85. In contrast, Jordan Pond’s local and regional sourcing plan is dominated

by charts of food items, with almost no attention paid to detailed methods for

improvement or measurement of progress meeting targets. Id. at 1573-77. On this

record, the evaluation panel’s rating of Dawnland on SSF1(b), AR at 1794-95,

which reviewed baseline sourcing, target sourcing, methods and measurement,

would have dropped very little, if at all, because of erroneous sourcing plans for [ ]

and native sturgeon roe.

23

2. Evaluation Scores Supported by the Record

a. Grab and Go Location

Jordan Pond House is described in the prospectus as having a restaurant in

one area and a retail operation in another area. AR at 101, 111. The Operating

Plan requires that a food service called “grab and go” be offered “within the Jordan

Pond House retail area.” Id. at 111, 191. More grab and go food options were to

be provided under the Baseline Contract than were required in the incumbent

concession contract. Id. at 111, 190-91.

Under Principal Selection Factor Subfactor 2(a) (PSF2(a)), titled “Retail

Operations,” proposals were rated on “[w]here and how you will offer the grab and

go food items at a reasonable range of price points at Jordon Pond House.” Id. at

137. The court references this particular facet of retail operations as the “grab and

go location.” This aspect of retail operations was one of four considered by the

evaluation panel, and was the only aspect of the evaluation of retail operations that

was specific to Jordan Pond House, as opposed to applying generally to all three

retail locations of the concessioner (Jordan Pond House, Thunder Hole and

Cadillac Mountain).

Plaintiff alleges that Dawnland’s ratings in PSF2, and indeed, many of its

other evaluation ratings, were incorrectly inflated by a [ ] that was not permitted by

the prospectus.12 Plaintiff’s basic theory of evaluation error rests on a number of

premises. First, according to plaintiff, Dawnland’s impermissible plan to [ ] (also

known as Dawnland’s “[ ]”) was a necessary underpinning to a great number of

high evaluation scores received from the evaluation panel. Second, plaintiff

alleges that if Dawnland’s grab and go operation were rated by the panel as [ ]

(also known as Dawnland’s “[ ]”), Dawnland’s proposal would have been scored

much lower in a number of evaluation factors. Third, plaintiff contends that the

evaluation panel did not understand Dawnland’s grab and go [ ] or the

12

/ There is no dispute that in the Draft Contract the Park Service clearly requires

Dawnland’s grab and go operation to take place in the retail area of Jordan Pond House. AR at

1852. The court relies on the prospectus, however, for this proposal requirement, rather than on

subsequent actions of the NPS. See id. at 111, 191.

24

requirements of the prospectus, and that its evaluation of Dawnland’s proposal was

therefore irrational.

The record shows, however, that Dawnland proposed [ ] (its “[ ]” and its “[

]”); that many aspects of its grab and go service (and its other retail operations at

Jordan Pond House) would have been similar [ ]; and that the evaluation panel did

not rely only on [ ] for its evaluation of Dawnland’s retail operations. Further,

despite plaintiff’s strained analysis of the record, there is no evidence that the

evaluation panel misunderstood Dawnland’s proposed grab and go [ ] or the

requirements of the prospectus.

The parties have expended enormous effort parsing artist renderings,

blueprints, proposal text, square footage requirements, and the evaluation panel’s

rating of PSF2(a). The court has considered these arguments and agrees with

defendant and intervenor-defendant that there is no error in the evaluation of

proposals which can be traced to Dawnland’s [ ].

The court notes that Dawnland offered [ ], AR at 868-69, 884-85, but

provided that the menu [ ] would be the same, id. at 869. Nor did the evaluation

panel misunderstand Dawnland’s proposed [ ]:

[]

Id. at 1740. As to specific commentary comparing Dawnland’s [ ] proposal to [ ]

proposed by other offerors, the panel “[ ].” Id. at 1751. To explain Dawnland’s

high rating on all four aspects of its retail operations, not just its grab and go [ ],

the panel stated that Dawnland “[ ].” Id. at 1752. There is no record evidence that

the evaluation panel relied more on Dawnland’s [ ] for a [ ] than on Dawnland’s [ ]

to produce this “excellent” rating for PSF2(a).

The court therefore rejects plaintiff’s contentions that the evaluation panel

misunderstood Dawnland’s grab and go [ ] proposal, that the evaluation panel

misunderstood prospectus requirements, and that the evaluation panel erred in its

evaluation of Dawnland’s grab and go operation. As to plaintiff’s related

arguments, that many other evaluation factors, and other aspects of Dawnland’s

retail operations, were dependent on [ ] for Dawnland’s grab and go [ ], the court

finds these arguments to be too speculative to have merit. It is certainly true that

25

Dawnland’s grab and go [ ] cannot be viewed in isolation, because all of the Jordan

Pond House retail operations are affected by the [ ], and a [ ], for example, is not

available under Dawnland’s “[ ].” The court does not read the record, however, to

show a single evaluation error traceable to Dawnland’s [ ].

b. No Unstated Evaluation Criteria in Retail Operations

Plaintiff alleges that the evaluation panel erred, Pl.’s Mot. at 24-25, Pl.’s

Reply at 36, when it preferred Dawnland’s explanation of “[ ]” over the other

offerors’ proposals. AR at 137. According to plaintiff, the evaluation panel

impermissibly rated the “[ ]” aspect of Dawnland’s marketing plan, instead of

limiting its rating to the “where” and “how” aspects specifically denoted in

Principal Selection Factor Subfactor 2(a) (PSF2(a)):

The Prospectus very specifically requested offerors to

describe “where” and “how” they would provide retail

operations, but never asked them to [ ]. Thus, in its

evaluation, the Panel improperly created a new

requirement for the Prospectus that fit with Dawnland’s

proposal and then gave Dawnland bonus points for

complying with this newly invented term.

Pl.’s Mot. at 24-25. Plaintiff’s argument suggests that pursuant to the terms of the

prospectus the evaluation panel could not consider anything beyond the location

(“where”) and method of display (“how”) of these retail items in the offerors’

proposals.

The court reads the prospectus differently. PSF2 begins with an explanation

of the objectives of retail operations, which are to provide “visitors [with] the

opportunity to purchase items that will help ensure their safety while visiting the

Park as well as items that will prolong the memory of their visit to the Park.” AR

at 137. To this end, PSF2(a) inquires into the “merchandising plan” of the offeror.

Id. The specific provision relied upon by plaintiff notes the Park Service’s interest

in how each offeror would “improve the visitor’s onsite experience at Acadia

National Park, at a reasonable range of price points.” Id. As the court reads

PSF2(a), the evaluation subfactor contains an implicit query as to [ ], and is not

limited to the identification of retail stock locations and methods of display.

26

The court finds no unstated criteria in the scoring of PSF2(a) by the

evaluation panel, which preferred Dawnland’s proposal, in part, because Dawnland

“[ ].” AR at 1751. The evaluation panel correctly rated Dawnland’s explanation of

the [ ], because the [ ] is implicit in a request for the specifics of a marketing plan:

As this court has stated, [w]hen weighing the merits of a

proposal under a specific evaluation factor, an agency

may consider all matters that offerors would reasonably

have believed to be within the scope of the factor.

Furthermore, agency evaluation personnel are given great

discretion in determining the scope of an evaluation

factor. As this court has often found, a solicitation need

not identify each element to be considered by the agency

during the course of the evaluation where such element is

intrinsic to the stated factors.

Kerr Contractors, Inc. v. United States, 89 Fed. Cl. 312, 327-28 (2009) (internal

quotations and citations omitted, alteration in original). For this reason, the court’s

rejects plaintiff’s challenge to the evaluation panel’s scoring of PSF2(a).

c. Management of Food Service Infractions

Principal Selection Factor Subfactor 3(b) (PSF3(b)), titled “Violations or

Infractions,” states that:

The Service is aware that any business may receive the

occasional audit deficiency, notice of violation, penalty,

fine, less than satisfactory public health rating, or similar

regulatory notice from a federal, state, or local agency

(hereinafter collectively referred to as “Infractions”).

The Service is interested in understanding how your

business manages these Infractions.

AR at 140. Offerors having received infractions in the last five years were directed

to provide detailed information on each of those infractions and the offeror’s

response to those infractions. Id. The Park Service included instructions for

27

offerors that had received no infractions for the last five years: “[E]xplain how you

would respond if you do receive an Infraction and the process you would follow to

resolve such Infractions and minimize future occurrences.” Id. Jordan Pond

complains that the evaluation panel erred in giving Dawnland and [ ] the same

rating as Jordan Pond for PSF3(b), because Jordan Pond had no infractions

whereas Dawnland had [ ] infractions and [ ] had [ ] infractions. Pl.’s Mot. at 29-

30 & nn.12-13, 35-37 & n.15; Pl.’s Reply at 38-41.

Plaintiff’s argument has no merit. The prospectus does not require the Park

Service to score PSF3(b) based on the number of infractions received by an

offeror. The NPS could rationally rate the management of infractions by these

three offerors to be equal. Plaintiff may disagree with the formulation of the

selection subfactor, but such a challenge to the prospectus is untimely because it is

lodged after proposals had been submitted to the Park Service. Blue & Gold Fleet,

LP v. United States, 492 F.3d 1308, 1313-14 (Fed. Cir. 2007). Plaintiff may also

disagree with the agency’s technical judgment as to the importance of infractions,

but such a disagreement is not sufficient to invalidate the selection decision here.

See, e.g., E.W. Bliss, 77 F.3d at 449 (stating that “technical ratings . . . involve

discretionary determinations of procurement officials that a court will not second

guess”). For these reasons, the court rejects plaintiff’s challenge to the scoring of

PSF3(b).

d. Miscellaneous Disagreements with the Agency’s

Technical Judgment

Aside from the issues addressed thus far in this opinion, plaintiff also

attempts to discredit the evaluation scores won by Dawnland’s proposal and [ ]’s

proposal. None of these arguments is persuasive. There are two broad themes in

these arguments. First, according to plaintiff, Jordan Pond’s proposal was

superior, and its experience as the incumbent concessioner in Acadia was superior

to Dawnland’s and [ ]’s concessioner experience. Second, plaintiff alleges that the

evaluation panel’s analysis was superficial, erroneous, contradictory and unfair.

The court will briefly address these arguments.

Plaintiff argues, for example, that its plan for providing healthy food options

was equivalent to [ ]’s, thus invalidating [ ]’s higher score for this selection

subfactor. Pl.’s Mot. at 28-29 & n.11. Similarly, plaintiff asserts that Dawnland’s

28

plan for [ ] did not merit high ratings, because, in part, it “conflicted with the

traditional appearance of Jordan Pond House.” Id. at 18; see also id. at 46

(characterizing “Dawnland’s highly-regarded plan to [ ] [as] infeasible”). Plaintiff

also finds fault with the evaluation panel’s assessment of [ ]’s financial strength; in

plaintiff’s view, there should have been a greater difference than [ ] points between

Jordan Pond’s rating on this selection factor and [ ]’s rating. Pl.’s Reply at 42.

The court finds no errors in the evaluation panel’s ratings challenged in these

arguments.

Each of plaintiff’s arguments relies on a subjective disagreement with the

agency’s perspective as to the “[r]elative [q]uality” of information presented in the

offerors’ proposals. AR at 1636. The evaluation panel’s report does not show

evidence of unsupported or irrational ratings for the aspects of proposals that

plaintiff challenges here. The court defers, as it must, to the agency’s expertise in

rating the technical aspects of proposals. See, e.g., E.W. Bliss, 77 F.3d at 449.

Furthermore, plaintiff’s arguments have not convinced the court that it would have

rated the proposals any differently on the contested evaluation factors, even if the

court could substitute its judgment for that of the agency.

Defendant characterizes plaintiff’s challenge to evaluation ratings as

“subjective and conclusory,” and the court must agree. Def.’s Mot. at 39.

Intervenor-defendant concludes that “[t]aken as a whole, . . . Plaintiff’s protest

raises no substantial basis to support its claim that the Evaluation Panel’s scoring

of proposals was not reasonably based.” Dawnland’s Reply at 17. The court must

again agree. Plaintiff has not met its burden to show that the evaluation panel’s

scoring of proposals shows that “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 [that the decision] is so implausible

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

expertise.’” Alabama Aircraft, 586 F.3d at 1375 (citation omitted).

As to plaintiff’s arguments regarding the ratings of the offerors for Principal

Selection Factor Subfactor 3(a) (PSF3(a)), titled “Iconic Food Service Dining

Experience,” AR at 139, plaintiff appears to believe that the incumbent advantage

enjoyed by Jordan Pond could not be overcome, see Pl.’s Mot. at 33 (describing

Jordan Pond as having “perfect qualifications”). According to plaintiff, Dawnland

lacks the requisite experience of running a very busy full-service seasonal

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restaurant in a national park. Pl.’s Mot. at 33-35 & n.14. Plaintiff therefore

describes the equal ratings received by Jordan Pond and Dawnland on PSF3(a) as

irrational. Id. at 34.

Neither the prospectus nor the internal guidance documents used by the Park

Service shows an intent to provide the incumbent contractor an insurmountable

advantage. In relevant part, PSF3(a) states that:

The Service is interested in preserving the unique history

of the Jordan Pond House and also ensuring its

traditional “tea house” service of the 1930s continues to

appeal to contemporary visitors . . . . During a short

operating season, the Concessioner serves a large volume

of visitors at the Jordan Pond House. The Service desires

a Concessioner with capabilities to adapt quickly to the

existing operating environment and plan for changes to

keep the tradition at the Jordan Pond House fresh. . . .

[P]rovide two examples of your experience in the

operation and management of dining locations that

demonstrate your ability to operate the Jordan Pond

House, particularly its concentrated visitor use patterns

and its traditional “tea house” service. . . .

Explain how this experience makes your organization a

suitable operator of a high volume, unique restaurant like

the Jordan Pond House.

Explain the nature of the operation when you assumed

operations and what changes you were able to introduce

to improve the operations (internally and for your

customers) while at the same time maintaining certain

pre-existing aspects of the operation that drew customers.

AR at 139-40. Although this selection subfactor focuses on the offeror’s capability

to operate a seasonal, high-volume restaurant with cherished traditions, the court

does not consider this subfactor to require that the non-incumbent offeror have

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perfectly equivalent experience in order to merit a high rating. Indeed, competition

for government contracts generally requires that incumbents compete on equal

footing with other suitably qualified offerors, and this principle is enshrined in

regulations pertinent to this competition. E.g., 36 C.F.R. §§ 51.6, 51.16, 51.17.

Further, the internal guidance documents used in this competition also

reflect that an incumbent’s knowledge of the concession should not unduly

advantage that offeror’s proposal ratings. For example, these instructions state that

the precision and comprehensiveness of an incumbent’s maintenance plan may not

be better than the less-detailed but equally effective maintenance program of a non-

incumbent; scoring on this aspect of a proposal should not unfairly advantage the

incumbent’s access to non-public information regarding concession operations.

AR at 1644. The court finds nothing in the relevant regulations, the prospectus or

the NPS internal guidance documents which suggests that the incumbent

concessioner should necessarily score higher than non-incumbents on the “Iconic

Food Service Dining Experience” evaluation subfactor.

Here, the evaluation panel praised all three offerors’ experience and

capabilities relevant to running an iconic restaurant in a national park. The panel

noted differences in experience but decided that equal ratings should be given to

the offerors in PSF3(a). The following excerpts capture the panel’s reasoning,

which is not arbitrary or capricious:

[]

AR at 1766-67. Although plaintiff disagrees with the judgment of the agency,

Jordan Pond has not met its burden to show that the evaluation of proposals on

PSF3(a) was arbitrary or capricious.

Plaintiff also attacks numerous scores in the evaluation panel’s report by

characterizing the conclusions reached by the panel as superficial, erroneous,

contradictory and/or unfair. The court has examined each of these allegations and

finds them to be without support in the record. Only one instance cited by plaintiff

merits additional discussion, that of an alleged internal contradiction in the rating

of Principal Selection Factor Subfactor 1(a) (PSF1(a)), titled “Resource Education

for Visitors and Employees.” AR at 136. The particular aspect of this evaluation

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subfactor highlighted by plaintiff is the offeror’s proposed measurement of success

in resource education. Pl.’s Mot. at 16-17; Pl.’s Reply at 41-42.

Plaintiff seizes upon two related excerpts from the evaluation of PSF1(a) in

the panel’s report and finds them contradictory. The first excerpt states that when

Dawnland “[ ].” AR at 1736. The second selection states that “[ ].” Id.

Dawnland’s superior rating in PSF1(a) is supported, among other reasons, by the

panel’s conclusion that Dawnland provided “[ ].” Id.

The parties dispute the meaning of this section of the evaluation report. In

plaintiff’s view, a finding of equivalence was replaced by an inconsistent finding

of superiority on the same issue of the measurement of success in resource

education. In defendant’s and intervenor-defendant’s view, the finding of

equivalence was limited to the use of [ ], whereas the finding of superiority

concerned [ ] proposed by Dawnland. Def.’s Mot. at 35-37; Dawnland’s Mot. at

27-28. The citations to the record provided by these parties, Def.’s Mot. at 37;

Dawnland’s Mot. at 28, show that the evaluation panel was able to rationally

distinguish between [ ] and the [ ]. The court finds nothing in the panel’s

evaluation of PSF1(a) to be contradictory, irrational, arbitrary or capricious.

e. Jordan Pond’s Third-Place Evaluation Ranking

Survives Review

The court has reviewed the selection factors outlined in the prospectus, the

proposals submitted by Dawnland, [ ] and Jordan Pond, and the evaluation

conducted by the Park Service. Having considered all of plaintiff’s arguments, the

court does not consider the evaluation of proposals to have been arbitrary or

capricious. Dawnland’s selection for award, [ ]’s second-place evaluation score

and Jordan Pond’s third-place finish survive this court’s scrutiny. The record

reflects a rational evaluation process that evinces only two minor non-prejudicial

errors. The court turns now to plaintiff’s final argument – that an infirmity in the

composition of the evaluation panel caused the panel to make numerous evaluation

errors.

3. Evaluation Panel Composition Was Valid Despite a De

Minimis Deviation from Internal Guidelines

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Plaintiff asserts that the evaluation panel had a technical advisor from

Acadia National Park assigned to it, but that this person did not adequately assist in

the evaluation of proposals. Pl.’s Mot. at 5, 7-9; Pl.’s Reply at 42-44; Tr. at 20-23.

The technical advisor, [ ], was contacted sometime after the prospectus issued,

along with other panel members, and agreed to serve. AR at 1613. Although

many of the panel members signed a “Conflict of Interest and Confidentiality

Certificate” before or as the evaluation panel convened on December 3, 2012 in

Philadelphia, id. Tab 9, [ ] did not sign her certificate until April 15, 2013, id. at

1627, approximately three and a half months after the evaluation panel report had

been finalized. Plaintiff concludes that [ ], the only representative of Acadia

assigned to the evaluation panel, was not shown any confidential information from

Dawnland’s proposal as the evaluation of that proposal occurred, and that the

evaluation process therefore lacked important expertise. See Pl.’s Reply at 43

(stating that “the record clearly shows that the Panel concluded that it did not need

any such local assistance given that the local advisor did not sign her

confidentiality agreement until long after the Panel had written its report and thus

she could not be shown any aspects of the proposals prior to the Panel reaching its

conclusion and disbanding”) (citations omitted); Pl.’s Mot. at 46 (stating that “if

the Panel had actually used the Technical Advisor from Acadia National Park to

validate Dawnland’s assertions give[n] that she was specifically designated

because of her knowledge of the area and operations, many of these [evaluation]

errors [by the panel] would not have occurred”); Tr. at 23 (asserting that [ ] “was

not properly utilized because the panel made, not just one, but numerous mistakes

that had it been properly taking advantage of the local knowledge, it shouldn’t

have made”).

The court agrees with plaintiff that the Park Service did not follow its

internal guidance procedures as to the utilization of [ ] and her expertise, but does

not read the record to show that this was anything more than a de minimis

procedural misstep. [ ] made at least one concrete contribution to the evaluation

panel’s work – she supplied the panel with a document titled “Brief Overview of

Important Points and Challenges” regarding the concession contract at Acadia. AR

at 1658-70. The evaluation report also states that [ ] served as a “non-voting

remote technical advisor who assisted the panel as needed.” Id. at 1721; see id. at

1630 (“The [Acadia] technical advisor is [ ]. [ ] will be available via phone

thoughout the week with any questions.”). The panel also included an “on-site”

technical advisor from the Northeast Regional office of the Park Service who was

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present when the proposals were evaluated. Id. at 1721. The record does not

show, however, that either of these technical advisors assisting the panel submitted

a signed certificate regarding confidentiality and conflicts of interest by the first

day that the panel convened.

According to the internal guidance documents used by the panel chair,

“technical advisors are required to sign a Conflict of Interest and Confidentiality

Certificate Agreement prior to the start of the evaluation.” AR at 1631. The input

of technical advisors into an evaluation varied depending on the needs of the panel:

Technical advisors review proposals as directed by the

chair and, when requested, provide technical information

and advice to the panel (e.g., the scope of existing

concession operations, environmental regulations, and

financial analysis). Technical advisors may also

participate in the drafting of the evaluation summary

when requested by the chair. Technical advisors only

participate in the panel’s proposal scoring discussions to

provide information regarding questions of fact, not

regarding the scores themselves or the comparison of

proposals.

Id. at 1630. The record does not specify how much, if any, access [ ] and the other

technical advisor had to confidential information in Dawnland’s proposal while the

evaluation of that proposal took place, and the record does not specify the level of

consultation provided to the panel by these technical advisors. The record does

show, however, that the Park Service did not follow its procedures for obtaining a

conflict of interest and confidentiality certificate from the technical advisors.

Plaintiff does not allege that this failure to follow a non-binding guidance

document, in itself, invalidates the selection decision of the Park Service. See Pl.’s

Reply at 44 (stating that such failures “are not in and of themselves violations of

law”). Instead, plaintiff alleges that the Park Service lacked adequate local

expertise to make informed decisions when evaluating Dawnland’s proposal.

Plaintiff’s argument fails for two reasons. First, the evaluation panel

contained adequate expertise, whether or not [ ] had access to confidential

information in the offerors’ proposals, to rate Dawnland’s proposal against the

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evaluation factors and subfactors which were explained in abundant detail in the

prospectus, and which follow a standard evaluation scheme established by

regulation for all NPS concession contract awards. The panel included seven

voting members who worked in concessions oversight for the Park Service. AR at

1721. The voting members of the panel included an attorney and a Certified Public

Accountant, and many of the voting members of the panel had served on similar

panels in the past. Id. Tab 8. It is pure speculation on the part of plaintiff that the

panel would have scored Dawnland’s proposal differently if someone from Acadia

had played a greater role in the evaluation process.

Second, the evaluation “errors” that plaintiff blames on the composition of

the evaluation panel consist, except for the evaluation of the sourcing of [ ] and

native sturgeon roe, of rational technical judgments of the panel with which Jordan

Pond disagrees. The court cannot disturb these technical findings of the agency

unless they are proved to be irrational or arbitrary, a burden which plaintiff has not

met here. The catalogue of evaluation “errors” that plaintiff attributes to the lack

of local expertise, Pl.’s Mot. at 46, are not substantiated by the record except in

two minor, non-prejudicial instances. The failure to obtain conflict of interest and

confidentiality certificates from the panel’s technical advisors is, therefore, nothing

more than a de minimis failure to follow non-binding evaluation procedures. De

minimis errors in an agency’s consideration of proposals do not justify relief from

this court. E.g., Grumman Data, 88 F.3d at 1000 (citation omitted).

CONCLUSION

Plaintiff has not shown that the Park Service’s selection decision was

arbitrary, capricious, or an abuse of discretion, or that Jordan Pond was prejudiced

by any evaluation errors or procedural flaws in the evaluation process.

Accordingly, it is hereby ORDERED that

(1) Plaintiff’s Motion for Judgment on the Administrative Record, filed

January 6, 2014, is DENIED;

(2) Defendant’s and Intervenor-Defendant’s Motions for Judgment on the

Administrative Record, filed on January 25 and 27, 2014, are

GRANTED;

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(3) The Clerk’s Office is directed to ENTER final judgment in favor of

defendant and intervenor-defendant and to DISMISS the amended

complaint with prejudice;

(4) On or before April 4, 2014, 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; and,

(5) On or before April 4, 2014, defendant shall FILE the Redacted

Second Amended Administrative Record in CD-ROM format so as

to establish a proper public record of this protest.

/s/Lynn J. Bush

LYNN J. BUSH

Senior Judge

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