“Where there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.”
How later courts described this case
- “Where there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 14-1231 C
Filed: April 6, 2015*
****************************************
*
* Administrative Procedure Act (“APA”),
* 5 U.S.C. § 706 (Scope of review);
Bid Protest;
*
Competition in Contracting Act of 1984
* (“CICA”), 31 U.S.C. § 3551
* (Definitions);
* Federal Acquisition Regulations
* (“FAR”),
* 48 C.F.R. § 2.101 (Definitions),
* 48 C.F.R. § 9.105-1 (Obtaining
* information),
* 48 C.F.R. § 9.105-2 (Determinations
* and documentation),
* 48 C.F.R. § 28.203 (Acceptability of
individual sureties),
ANTHEM BUILDERS, INC., *
48 C.F.R. § 28.203-1 (Security
* interests by an individual surety),
Plaintiff, * 48 C.F.R. § 28.203-2 (Acceptability
* of assets),
v. * 48 C.F.R. § 28.204-3 (Irrevocable
* letter of credit),
THE UNITED STATES, * 48 C.F.R. § 52.228-11 (Pledges of
* assets),
Defendant. * 48 C.F.R. § 52.228-15 (Performance
* and payment of bonds);
* Rule of the United States Court of
Federal Claims (“RCFC”) 52.1
*
(Administrative Record);
* Tucker Act, 28 U.S.C. § 1491(b);
* Uniform Commercial Code (“U.C.C.”),
* U.C.C. § 5-102 (Definitions),
* U.C.C. § 5-104 (Formal
* requirements),
* U.C.C. § 5-108 (Insurer’s rights and
* obligations).
****************************************
*
On March 12, 2015, the court forwarded a sealed copy of this Memorandum Opinion And
Final Order to the parties to delete from the public version any confidential and/or privileged
information, and note any citation or editorial errors requiring correction. Neither party requested
any redactions or edits.
James Hatcher Graham, J. Hatcher Graham, P.C., Warner, Georgia, Counsel for the Plaintiff.
Erin Kathleen Murdock-Park, United States Department of Justice, Civil Division, Washington,
D.C., Counsel for the Government.
MEMORANDUM OPINION AND FINAL ORDER
BRADEN, Judge.
I. RELEVANT FACTUAL BACKGROUND.1
On August 11, 2014, the United States Department of Veterans Affairs, National Cemetery
Administration (“DVA”) issued a Notice of Pre-Solicitation and Solicitation and a Request For
Proposals (“RFP”) for Solicitation No. VA786A-14-R-0047 (“Solicitation”). AR 46–105. The
Solicitation requested bids for a firm-fixed price contract to construct operations at the Golden
Gate National Cemetery in San Francisco, California. AR 46. These operations included the
“demolition and removal of existing pavement and rostrum stage” and the “construction of new
rostrum stage, fencing guardrails, plaza paving, walks, and pavement replacement.” AR 51.
Offerors were to submit proposals to the Contracting Officer (“CO”) by September 11, 2014. AR
46.
1
The facts discussed herein were derived from the January 16, 2015 Administrative Record
(“AR 1–273”) and the February 13, 2015 Supplement To The Administrative Record (“AR 274–
76”). Anthem Builders, Inc. (“Anthem”) does not contest the factual narrative in the Government’s
February 13, 2015 Motion For Judgment On The Administrative Record. Pl. Resp. at 2–3 (“The
facts have been fairly stated in . . . the [Government]’s Motion For Judgment On The
Administrative Record[.]”).
2
The Solicitation incorporated three relevant Federal Acquisition Regulations (“FAR”)
provisions: FAR 28.2032 (regarding the use of a surety); FAR 52.228-113 (regarding requirements
of a surety); and FAR 52.228-154 (regarding surety and security bonds). AR 60–64.
2
FAR 28.203, in relevant part, provides:
(a) An individual surety is acceptable for all types of bonds except position
schedule bonds. The contracting officer shall determine the acceptability of
individuals proposed as sureties, and shall ensure that the surety’s pledged
assets are sufficient to cover the bond obligation. . . .
(b) An individual surety must execute the bond, and the unencumbered value of the
assets (exclusive of all outstanding pledges for other bond obligations) pledged
by the individual surety, must equal or exceed the penal amount of each
bond. . . .
(c) If the contracting officer determines that no individual surety in support of a bid
guarantee is acceptable, the offeror utilizing the individual surety shall be
rejected as nonresponsible[.]
48 C.F.R. § 28.203.
3
FAR 52.228-11, in relevant part, provides:
(a) Offerors shall obtain from each person acting as an individual surety of the bid
guarantee, a performance bond, or a payment bond—
(1) Pledge of assets; and
(2) Standard Form 28, Affidavit of Individual Surety.
(b) Pledges of assets from each person acting as an individual surety shall be in the
form of—
(1) Evidence of an escrow account containing cash, certificates of deposit,
commercial or Governmental securities, or other assets described in
FAR 28.203-2 . . . ; and/or
(2) A recorded lien on real estate[.]
48 C.F.R. § 52.228-11.
4
FAR 52.228-15, in relevant part, provides:
(d) Surety and other security for bonds. The bonds shall be in the form of firm
commitment, supported by corporate sureties whose names appear on the list
contained in Treasury Department Circular 570, individual sureties, or by other
3
On September 10, 2014, Anthem submitted a proposal in response to the August 11, 2014
RFP. AR 130–56. First Standard Asurety, LLLP (“First Standard’) secured Anthem’s proposal
in the amount of $400,000 or 20% of the $2,000,000 proposal price. AR 136–41.5 Anthem’s
proposal included an Irrevocable Trust Receipt (“ITR”), issued “from First Mountain Bancorp
[(“FMB”)] trust secured with cash valued assets, including over $30 million in HSBC Bank as
issued [certificates of deposit] held in escrow account by FMB at Northern Trust Bank in USA.”
AR 138; see also AR 138–42 (Affidavit of Individual Surety).
On September 25, 2014, the CO issued an Obligation Request of $1,599,291 that stated,
“Please obligate funds for Contract Number VA-786A-14-C-0031 [(“Contract”)] to be issued
today for award to Anthem Builders, Inc. . . . . to provide all labor, materials, equipment, tools,
and supervision services necessary for renovat[ion of the] rostrum and roads per specification and
drawings at Golden Gate National Cemetery in San Bruno[], CA.” AR 157.
On October 2, 2014, the CO requested that the Contract Specialist (“CS”) “get [the]
contract awarded to Anthem Builders, Inc., prior to the end of the day.” AR 225. The CS
responded that “she could if the checks on the contractor are okay.” AR 225. When the CS
reviewed Anthem’s proposal, she questioned why: the bid bond listed “individual securities, while
the securities listed were based on securities of a corporation and not an individual”; “corporate
securities were not used because that is the securities that were put forward in the [Solicitation]”;
“the name of the person listed on the individual bond was listed in [the System for Award
Management (“SAM”)] as ineligible for award”; and “the bonding company . . . did not appear on
the Treasury’s list of certified companies.” AR 225. Consequently, the CS informed the CO that
“she believed the bonds did not appear to be correct and/or enforceable.” AR 225. The CO
performed an Internet search on First Standard that returned negative information and then
contacted Anthem’s President, Kelly Moskalik, to inform him that Anthem “needed to provide a
bid bond from the Treasury’s approved list or provide individual securities in accordance with the
FAR, such as cash or cashier’s check.” AR 225.
On October 2, 2014, the CS and Mr. Moskalik spoke. AR 225. Mr. Moskalik agreed to
provide another bond by October 6, 2014. AR 225. That same day, the CS confirmed this
discussion by an email to Mr. Moskalik, emphasizing that Anthem’s “proposal, as submitted, is
acceptable security such as postal money order, certified check, cashier’s check,
[ILC], or, in accordance with Treasury Department regulations, certain bonds
or notes of the United States.
48 C.F.R. § 52.228-15(d); see also 48 C.F.R. § 52.228-15(b) (discussing the amount of required
bonds); 48 C.F.R. § 52.228-15(c) (stating that contractors “shall furnish all executed bonds . . . to
the [CO], within the time specified in the Bid Guarantee provision of the solicitation, or otherwise
specified by the [CO], but in any event, before starting work.”).
5
Some documents refer to the proposal amount as approximately $1,600,000 (AR 134,
157), while others refer to it as $2,000,000 (AR 136). This may be because the $400,000 surety is
included in the $2,000,000 amount.
4
non-responsive” and including a link to a list of the Department of Treasury’s approved sureties.
AR 158.
On October 6, 2014, Mr. Moskalik sent a substitute bond by email, listing David Eugene
Harris, as surety, and indicating that an original would be mailed that same day. AR 161–72. Mr.
Moskalik recognized that David Eugene Harris was “not on the US Treasury list, since he is an
Individual, and not a Corporate Surety,” but added that David Eugene Harris was not the David
Harris listed as an excluded vendor in the SAM. AR 161. Nevertheless, Mr. Moskalik stated that
Anthem’s bond met the requirements of FAR 28.203 and that David Eugene Harris “has
demonstrated in the past to some of [Anthem’s] other clients that the Trust Assets are verifiable
and meet the legal requirements of the FAR.” AR 161. That same day, the CS reviewed the
substitute bond and determined that it still “appeared to be incorrect.” AR 225.
On October 7, 2014, the CS “telephoned Mr. Moskalik and informed him that the bonds
would be going to legal” for review. AR 225. On October 20, 2014, the DVA’s Office of General
Counsel (“OGC”) informed the CS that the “bond is unacceptable because [Anthem does not]
identify any real collateral” and that Anthem’s bid should be “rejected as non-responsible per FAR
28-203C,” i.e., (1) “[t]he assets are not identified”; (2) “[t]he assets have not been properly pledged
or provided”; and (3) the OGC does not “know what the alleged assets are . . . and [has] no idea
what is encumbered and what is[ not].” AR 225–26.
On October 22, 2014, the DVA “initiated a modification to de-obligate6 the monies
obligated . . . to zero out the award input into the system by Mr. Harris.” AR 226; see also AR
219–20 (Modification of Contract). The de-obligation justification was that the “Contract Bonding
was not acceptable.” AR 220.
On October 28, 2014, an Award Determination Memorandum (“ADM”) issued that
determined Anthem’s bid was non-responsible and awarded the Contract to E.C. Smith, Inc. AR
221–30.
On October 29, 2014, the de-obligation was completed. AR 232.
On October 30, 2014, the CS prepared a Memorandum For Record explaining the non-
responsibility determination. AR 231–32.
On November 4, 2014, Robelto Joshua, the new acting CO, informed Mr. Moskalik that
Anthem’s “proposal does not offer the best value to the Government” and that the contract was
awarded to E.C. Smith, Inc. AR 261; see also AR 215 (informing Mr. Moskalik that a new acting
CO was appointed).
On November 10, 2014 and November 14, 2014, Mr. Moskalik requested a debriefing. AR
240–41. On November 19, 2014, the CO informed Mr. Moskalik that he “[b]elieve[d] Ms. Clark
ha[d] already addressed this issue with [Anthem]. Bonding issues were the proximate
cause . . . and without acceptable bonding, the Government cannot proceed with [the] award.” AR
6
The Amendment Of Solicitation/Modification Of Contract de-obligated the $1,599,291
in funds the DVA had set-aside for payment to Anthem under the Contract. AR 219–20.
5
240. The CO also referred Mr. Moskalik to Department of Treasury’s acceptable bonding and
sureties listing. AR 240.
On November 24, 2014, Mr. Moskalik sent a Protest Letter by email to the CO, stating that
“[i]t is the contention of Anthem . . . that [Anthem is] being excluded from the award because they
are utilizing a surety that is not listed on the Department of Treasury website as an acceptable
Corporate Surety. . . . [T]here is no provision in the [FAR] or [f]ederal contracting statutes that
authorizes a [CO] to refuse to accept an individual surety for Payment or Performance Bonds.”
AR 243.
On December 15, 2014, the CO responded to Anthem’s November 24, 2014 Protest Letter,
explaining the reasons why the DVA determined that the individual surety in Anthem’s bid was
unacceptable and Anthem’s protest was denied. AR 274–76.
II. RELEVANT PROCEDURAL HISTORY.
On December 23, 2014, Anthem (“Plaintiff”) filed a Complaint (“Compl.”) and a Motion
For Preliminary Injunction (“Pl. Mot.”) in the United States Court of Federal Claims.
On December 29, 2014, the court held a telephone status conference with the parties. On
December 30, 2014, the court entered a Scheduling Order.
On January 16, 2015, the Government filed an Unopposed Motion For Protective Order, a
Notice Of Filing Administrative Record, and the Sealed Administrative Record. See, supra, n.1.
On January 20, 2015, the court granted the Government’s January 16, 2015 Unopposed
Motion For Protective Order.
On January 28, 2015, Plaintiff filed a Motion For Summary Judgment (“Pl. Mot.”),
pursuant to Appendix C and Rule 56 of the Rules of the United States Court of Federal Claims
(“RCFC”).
On February 13, 2015, the Government filed a Motion For Judgment On The
Administrative Record And Response To Plaintiff’s Motion For Summary Judgment (“Gov’t
Mot.”), as well as an Unopposed Motion To Amend/Correct The Administrative Record.
On February 18, 2015, the court granted the Government’s February 13, 2015 Motion To
Amend/Correct The Administrative Record.
On February 20, 2015, Plaintiff filed a Response to the Government’s February 13, 2015
Motion For Judgment On The Administrative Record (“Pl. Resp.”).
On February 27, 2015, the Government filed a Reply (“Gov’t Reply”).
6
III. DISCUSSION.
A. Jurisdiction.
The United States Court of Federal Claims is required to make a threshold determination
regarding jurisdiction. See Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (“[A]t
the outset [the court] shall determine . . . whether the Constitutional provision, statute, or regulation
is one that is money-mandating. If the court’s conclusion is that the Constitutional provision,
statute, or regulation meets the money-mandating test, the court shall declare it has jurisdiction
over the cause, and shall then proceed with the case in the normal course.”).
Pursuant to 28 U.S.C. § 1491(b)(1), the United States Court of Federal Claims has
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.
Id.
The December 23, 2014 Complaint alleges that the DVA’s “determination that the Bid
Bond furnished by the Individual Surety was not in compliance with the [FAR] is arbitrary,
capricious, an abuse of discretion and not in accordance with the fact or the law.” Compl. ¶ 31.
Therefore, the December 23, 2014 Complaint alleges sufficient facts of a money-mandating claim
to satisfy 28 U.S.C. § 1491(b)(1), as it places in issue violations of law or regulation “in connection
with” the Solicitation.
B. Standing.
As a threshold matter, a plaintiff contesting the award of a federal contract must establish
that it is an “interested party” to have standing under 28 U.S.C. § 1491(b)(1). See Myers
Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (“Myers”)
(“[S]tanding is a threshold jurisdictional issue.”). The United States Court of Appeals for the
Federal Circuit has construed the term “interested party” under 28 U.S.C. § 1491(b)(1) as
synonymous with “interested party” under CICA, 31 U.S.C. § 3551(2)(A). See Rex Serv.
Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006) (citing decisions adopting the CICA
definition of “interested party” for 28 U.S.C. § 1491(b)(1) purposes). A two-part test is applied to
determine whether a protestor is an “interested party:” the protestor must show that “(1) it was an
actual or prospective bidder or offeror, and (2) it had a direct economic interest in the procurement
or proposed procurement.” Distrib. Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed.
Cir. 2008) (citations omitted). In addition, to establish “interested party” status, a protestor must
show the alleged errors in the procurement were prejudicial. See Labatt Food Serv., Inc. v. United
States (“Labatt”), 577 F.3d 1375, 1378 (Fed. Cir. 2009) (“It is basic that because the question of
prejudice goes directly to the question of standing, the prejudice issue must be reached before
addressing the merits.”) (internal citations and quotations omitted); see also Myers, 275 F.3d at
1370 (“[P]rejudice (or injury) is a necessary element of standing.”). A party demonstrates
prejudice when “it can show that but for the error, it would have had a substantial chance of
7
securing the contract.” Labatt, 577 F.3d at 1378. Importantly, a proper standing inquiry must not
conflate the requirement of “direct economic interest” with prejudicial error. Id. at 1380
(examining economic interest but excluding prejudicial error from the standing inquiry “would
create a rule that, to an unsuccessful but economically interested offeror in a bid protest, any error
is harmful[]”).
In this case, Plaintiff submitted a proposal in response to the Solicitation. AR 106–56. As
an “actual bidder,” Plaintiff satisfies the first element of the “interested party” test. See Distrib.
Solutions, Inc., 539 F.3d at 1344.
As to the second element, i.e., that a plaintiff “must show that it had a ‘substantial chance’
of winning the contract,” Plaintiff has satisfied that element, because the DVA considered
Plaintiff’s bid competitive and initially intended to award the Contract to Plaintiff. AR 157, 225.
Therefore, Plaintiff has met the second element of the “interested party” test by showing a “direct
economic interest in the procurement.” Distrib. Solutions, Inc., 539 F.3d at 1344.
As to prejudice, Plaintiff contends that the CO’s decision was “arbitrary and unsupported”
and that “the assets and security pledged by the individual surety met the requirements of the
[FAR].” Compl. ¶ 8. The DVA’s failure to accept security that complied with the Solicitation and
the FAR would constitute an error that prejudiced Plaintiff, because “there is a ‘substantial chance’
[that Plaintiff] would have received the contract award but for the . . . error[] in the bid process.”
Bannum, Inc. v. United States, 404 F.3d 1346, 1358 (Fed. Cir. 2005) (“Bannum”); see also Labatt,
577 F.3d at 1378 (same).
For these reasons, the court has determined that Plaintiff has standing to seek an
adjudication of this bid protest.
C. Standard of Review.
Pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution Act,
Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), the United States Court of Federal
Claims is authorized to review challenges to agency decisions, pursuant to the standards set forth
in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4) (“In
any action under this subsection, the courts shall review the agency’s decision pursuant to the
standards set forth in section 706 of title 5.”); see also 5 U.S.C. § 706(2)(A) (“[T]he reviewing
court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to
be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”);
Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004) (“Among the
various APA standards of review in section 706, the proper standard to be applied in bid protest
cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it
is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”)
(citations omitted); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009)
(“Weeks Marine”) (same).
If a bid protest is based on a regulatory or procedural violation, i.e., “not in accordance
with law,” our appellate court also has imposed an additional requirement that “the disappointed
bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Axiom
Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (“Axiom”) (internal
8
quotations and citations omitted). This burden is even greater when the procurement is a “best
value” procurement. See Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed.
Cir. 2004) (“Galen”) (“[A]s the contract was to be awarded based on ‘best value,’ the contracting
officer had even greater discretion . . . . [T]he relative merit of competing proposals is primarily a
matter of administrative discretion.”) (citations omitted); see also TRW, Inc. v. Unisys Corp., 98
F.3d 1325, 1327 (Fed. Cir. 1996) (“In determining whether the agency has complied with the
regulation authorizing best value procurements, the [reviewing authority] may overturn an
agency’s decision if it is not grounded in reason.”).
If an award decision is challenged because it was made without a rational basis, the trial
court must determine “whether the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of
showing that the award decision had no rational basis.” Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (international citations and
quotations omitted); see also Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1287
(Fed. Cir. 2010) (“[W]e must sustain an agency action unless the action does not evince rational
reasoning and consideration of relevant factors.”) (internal alterations, quotations, and citations
omitted); Weeks Marine, 575 F.3d at 1368–69 (“We have stated that procurement decisions invoke
highly deferential rational basis review . . . . Under that standard, we sustain an agency action
evincing rational reasoning and consideration of relevant factors.”) (internal alterations,
quotations, and citations omitted).
In the alternative, if an award decision is challenged on the grounds that an agency acted
in an arbitrary or capricious manner, the court may intervene “only in extremely limited
circumstances.” United States v. John C. Grimberg Co., Inc., 702 F.2d 1362, 1372 (Fed. Cir.
1983) (“Grimberg”). “Courts have found an agency’s decision to be arbitrary and capricious 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) (“State Farm”)).
In this case, Plaintiff filed a Motion For Summary Judgment, and the Government filed a
Motion For Judgment On The Administrative Record, requiring the court to conduct a proceeding
akin to an expedited trial on the record. See RCFC 52.1;7 see also Bannum, 404 F.3d at 1356
7
RCFC 52.1, in relevant part, provides:
(c) Motions for Judgment on the Administrative Record.
(1) Initial Motion. Absent an order by the court establishing a different
procedure, a party may move for partial or other judgment on the
administrative record and must include in its motion or supporting
memorandum a statement of facts that draws upon and cites to the portions
of the administrative record that bear on the issues presented to the court.
9
(“[T]he judgment on an administrative record is properly understood as intending to provide for
an expedited trial on the record.”). The existence of a material issue of fact, however, does not
prohibit the court from granting a motion for judgment on the administrative record, although the
court has not conducted an evidentiary proceeding. See Bannum, 404 F.3d at 1357 (authorizing
the court to make “factual findings under RCFC [52.1]8 from the [limited] record evidence as if it
were conducting a trial on the record”).
D. Whether Anthem Builders, Inc.’s Bond Met The Standards For Individual
Sureties Required By Federal Acquisition Regulations.
1. The Government’s Argument.
The Government argues that Plaintiff’s individual surety did not meet the standards set
forth in 48 C.F.R. § 28.203 “for three reasons: (1) the revised bid bond did not properly identify
assets; (2) the assets were not properly pledged or provided; and (3) any additional encumbrances
on the assets were unknown.” Gov’t Mot. at 11 (citing AR 225–26).
Plaintiff’s bond did not properly identify pledged assets, nor “sufficiently demonstrate that
the [ITR] was an irrevocable letter of credit [(“ILC”)], and thus only cash or readily marketable
assets could be used to satisfy the underlying bond obligations.” Gov’t Mot. at 11. Plaintiff
“represent[ed] the assets as the [ITR] from First Mountain Bancorp trust secured with cash valued
assets totaling over $1 Billion, including parts totaling over $30 million in HSBC Bank issued
[certificates of deposit] held in escrow account by FMB.” Gov’t Mot. at 12 (citing AR 225). But,
as the OGC concluded, “If the ITR itself is the asset, this is not acceptable. It is not in and of itself
a cash equivalent and it is not an [ILC] issued by a federally insured financial institution.” AR
(2) Response. A party opposing a motion based on the administrative record
must include in any response a counterstatement of facts that similarly
draws upon and cites to the administrative record.
RCFC 52.1(c)(1)–(2).
8
In 2006, RCFC 56.1 “Review of a Decision on the Basis of the Administrative Record”
was repealed and replaced with RCFC 52.1, to conform to the United States Court of Appeals for
the Federal Circuit’s decision in Bannum, 404 F.3d at 1354 (holding that the court should “make
factual findings from the record evidence as if it were conducting a trial on the record”). See RCFC
52.1, 2006 Rules Committee Notes. “Summary judgment standards are not pertinent to judicial
review upon the [A]dministrative [R]ecord.” RCFC 52.1, 2006 Rules Committee Notes.
10
225. Plaintiff’s ITR also does not meet the definition of ILC in FAR 2.101,9 because “the written
commitment in the form of the ITR is from [FMB], which is not a federally insured financial
institution” and “even if somehow [FMB] is FDIC insured, the ITR conditions payment” by
providing for a forty-five day payment period. Gov’t Mot. at 12, 13 (citing 31 C.F.R. § 208.2(j)
(defining insured financial institution as “any financial institution, the deposits of which are
insured by the Federal Deposit Insurance Corporation under 12 U.S.C. Chapter 16”); AR 168
(noting the lack of a “FDIC Insured” seal on FMB’s letterhead)).
Plaintiff’s only identified assets were “cash/cash equivalents,” but “the ‘cash/cash
equivalents’ listed in the ITR were insufficiently pledged or provided so as to satisfy the FAR’s
requirements.” Gov’t Mot. at 13. Pursuant to FAR 52.228-11, “for an individual surety to be
acceptable on a bid bond, the pledged assets must either be in an escrow account or a recorded lien
on real estate—not, as [Plaintiff] suggests, in a different, unmentioned form.” Gov’t Mot. at 14.
Because Plaintiff did not identify a recorded lien on real estate, FAR 52.228-11(b) requires that
the assets be held in escrow. Gov’t Mot. at 14. But “[t]he escrow account identified by [Plaintiff]
did not meet the conditions of [FAR] 28.203-1(b),”10 since the forty-five day payment period in
the ITR “far exceed[s] any time period specified in a demand, and is insufficient under [FAR]
28.203-1(b)(1)(i)11.” Gov’t Mot. at 15 (citing AR 168). In addition, “[e]ven assuming that not all
of the particulars of an escrow account needed to be listed in the bid bond, ‘the terms and
conditions [of the escrow account] must be acceptable to the [CO].’” Gov’t Mot. at 15 (quoting
FAR 28.203-1(b)(1)). In this case, “the CO was not comfortable with the terms and conditions of
9
FAR 2.101, in relevant part, defines ILC as,
a written commitment by a federally insured financial institution to pay all or part
of a stated amount of money, until the expiration date of the letter, upon the
Government’s (the beneficiary) presentation of a written demand for payment.
Neither the financial institution not the offeror/contractor can revoke or condition
the letter of credit.
48 C.F.R. § 2.101.
10
FAR 28.201-(1)(b), in relevant part, provides that “the assets pledged . . . may be
provided by one or a combination of the following methods: (1) An escrow account with a federally
insured financial institution in the name of the contracting agency. . . . (2) A lien on real
property[.]” 48 C.F.R. § 28.203-1(b).
11
FAR 28.203-1(b)(1)(i), in relevant part, provides:
The account must provide the [CO] the sole and unrestricted right to draw upon all
or any part of the funds deposited in the account. A written demand for withdrawal
shall be sent to the financial institution by the [CO], after obtaining the concurrence
of legal counsel, with a copy to the offeror/contractor and to the surety.
48 C.F.R. § 28.203-1(b)(1)(i).
11
the escrow account” and “exercised his discretion and determined that the individual surety was
unacceptable as the assets were not properly pledged or provided.” Gov’t Mot. at 15.
In addition, there may have been unknown additional encumbrances on the assets. Gov’t
Mot. at 15–16. For example, the OGC did not know whether FMB had pledged the same assets
for other sureties and projects, thereby failing to comply with FAR 28.203(b)’s requirement that
the bid bond be “free from liens and encumbrances.” Gov’t Mot. at 16 (quoting FAR 28.203(b)).12
2. Anthem Builders, Inc.’s Response.
Plaintiff responds that the individual surety bid bond complies with the FAR and federal
common law requirements concerning letters of credit, and that the assets were properly identified,
pledged, and free from encumbrances. Pl. Mot. at 8–15; see also Pl. Resp. at 7–12.
FAR 28.203(b)(1) does not impose any requirements on Plaintiff’s ITR. Pl. Mot. at 11
(“[FAR 28.203-1(b)] states that the asset ‘may . . . be provided in one or a combination of the
following methods’” and “does not state that [bonds] have to comply with all of the provisions
listed, or that they have to comply with any of the suggested methods.”) Thus, pursuant to FAR
2.101 and 28.204-3, as well as the Uniform Commercial Code (“U.C.C.”) Sections 5-102(a)(10),13
12
The December 23, 2014 Complaint also alleges that the DVA failed to comply with FAR
28.203(f). Compl. ¶ 29 (citing 48 C.F.R. § 28.203(f) (“[CO]s shall obtain the opinion of legal
counsel as to the adequacy of documents pledging the assets prior to accepting the bid guarantee
and payment and performance bonds.”)). But, the parties’ briefs do not address this issue further,
and the CO clearly obtained the OGC’s opinion that Plaintiff was non-responsible. AR 225.
13
U.C.C. Section 5-102(a)(10) provides:
“Letter of credit” means a definite undertaking that satisfies the requirements of
Section 5-104 by an issuer to a beneficiary at the request or for the account of an
applicant or, in the case of a financial institution, to itself or for its own account, to
honor a documentary presentation by payment or delivery of an item of value.
U.C.C. § 5-102(a)(10) (2002).
12
5-104,14 and 5-108,15 Plaintiff’s individual surety should be considered an ILC. Pl. Mot. at 9–10
(stating that the individual surety complies with the FAR and U.C.C. requirements on letters of
credit, because the Affidavit of Individual Surety and ITR were authenticated and issued in
accordance with the FAR’s requirements for ILCs); see also Pl. Resp. at 9 (stating that the ITR
“fulfills all of the requirements of the FAR and the [U.C.C.] to be considered equivalent to an
[ILC]”); Pl. Resp. at 8–9 (the U.C.C. has been adopted in forty-nine states and has been cited
favorably by the United States Supreme Court, as well as other federal courts). For example,
Plaintiff cites the Eastern District of Michigan’s holding that an “ITR [from FMB is] a ‘letter of
credit.’” Pl. Resp. at 9–10 (citing Macomb Cnty. Bd. of Comm’rs v. StellarOne Bank, 2010 WL
891247, at *2 (E.D. Mich. Mar. 10, 2010)).
In this case, the assets were properly identified as “certificates of deposit issued by a
federally insured financial institution (HSBC Bank) and held in trust in Northern Trust Bank,
another federally insured institution.” Pl. Resp. at 10. Therefore, “whether the ITR is or is not
considered an [ILC] . . . , the bonds are still supported by assets that meet the FAR definition of
‘cash or readily marketable assets’ in the form of [certificates of deposit].” Pl. Resp. 10; see also
Pl. Mot. at 12–14 (same).
The assets also properly were pledged. Pl. Resp. at 10 (citing AR 208). The ITR states
that the DVA “had the unrestricted right to draw against the [certificates of deposit] up to the penal
sum,” without conditions, and the forty-five day processing time “did not restrict the Government’s
right to demand payment.” Pl. Resp. at 10, 11. Moreover, the CO “never requested a list of the
terms and conditions,” and these “are never initially provided in a bid bond and are normally never
requested.” Pl. Resp. at 11. “If the [CO] had questions[,] he could request more information and
it would have been provided.” Pl. Resp. at 11.
Finally, if COs required more detail than a statement that the assets are “free from liens
and encumbrances of any kind whatsoever,” “the contracting process would be unduly
exacerbated.” Pl. Resp. at 12 (citing AR 210).
3. The Government’s Reply.
In reply to Plaintiff’s argument that HSBC, a federally insured institution, held the cash or
cash equivalents in escrow, the Government insists that “the [ILC] itself must be issued by a
14
U.C.C. Section 5-104 provides:
A letter of credit, confirmation, advice, transfer, amendment, or cancellation may
be issued in any form that is a record and is authenticated (i) by a signature or (ii) in
accordance with the agreement of the parties or the standard practice referred to in
Section 5-108(e).
U.C.C. § 5-104 (2002).
15
U.C.C. Section 5-108, in relevant part, states that “an issuer shall honor a presentation
that . . . appears on its face strictly to comply with the terms and conditions of the letter of credit.”
U.C.C. § 5-108(a) (2002).
13
federally insured financial institution.” Gov’t Reply at 5 (citing 48 C.F.R. § 28.204-3(b); 48 C.F.R.
§ 2.101). “HSBC did not issue the ITR; rather, First Standard—a non-federally insured financial
institution—issued the ITR. Arguing that the ITR’s assets are held in a federally insured financial
institution does not bypass the requirement set forth in the FAR that the issuing institution be
federally insured.” Gov’t Reply at 5.
In reply to Plaintiff’s argument that the cash or cash equivalents listed in the ITR are
acceptable assets, the Government adds that “[S]ection 7(b) of the Affidavit of Individual Surety
. . . stated that the assets were the ITR itself,” and not the assets in the HSBC escrow account.
Gov’t Reply at 6 (citing AR 196). In addition, the CO was not obligated to inquire about the terms
and conditions of the escrow account, because “the CO is the arbiter of determining the extent of
the information he needs to make an informed responsibility determination, . . . . [e]specially
where, as here, the terms and conditions of the escrow account where unacceptable on the face of
the ITR.” Gov’t Reply at 8 (citing John C. Grimberg Co., Inc. v. United States, 185 F.3d 1297,
1303 (Fed. Cir. 1999) (“John C. Grimberg”) (“Although FAR 9.105-1(a) does require the [CO] to
have, or to obtain, enough information to make a responsibility determination, the [CO] is the
arbiter of what, and how much, information he needs.”)). Similarly, the ITR states “that the
document itself is free from liens and encumbrances, rather than the assets described earlier in the
document,” and “this indicates an intentional distinction” between the ITR and the assets. Gov’t
Reply at 9.
4. The Court’s Resolution.
Pursuant to FAR 52.228-15(d), bonds must be supported by “corporate
sureties . . . list[ed] . . . in Treasury Department Circular 570, individual sureties, or by other
acceptable security such postal money order, certified check, cashier’s check, [ILC], or . . . certain
bonds of the United States.” 48 C.F.R. § 52.228-15(d). Each of three requirements is addressed
herein.
a. Whether Anthem Builders, Inc.’s Bond Properly Was
Supported By A Corporate Surety Listed In Treasury
Department Circular 570.
First, Plaintiff’s bonding company, First Standard, is not listed as a corporate surety on
Treasury Department Circular 570.16 Therefore, Plaintiff’s bond was not supported by a corporate
surety listed in Treasury Department Circular 570.
b. Whether Anthem Builders, Inc.’s Bond Properly Was
Supported By An Individual Surety.
Second, the court must determine whether Plaintiff’s bond satisfied the requirements for
an individual surety. Pursuant to FAR 52.228-11(a), Plaintiff properly pledged assets and
submitted Standard Form 28, Mr. Harris’s Affidavit of Individual Surety. AR 206–09. Pursuant
16
U.S. DEP’T OF TREASURY, BUREAU OF THE FISCAL SERV., DEP’T OF TREASURY’S LISTING
OF CERTIFIED COMPANIES, available at http://fiscal.treasury.gov/fsreports/ref/suretyBnd/c570-
certified-comp-07-01-14.pdf (last visited Mar. 10, 2015).
14
to FAR 52.228-11(b), the pledged assets must be in the form of either “(1) [e]vidence of an escrow
account containing cash, certificates of deposit, commercial or Governmental securities, or other
assets described in FAR 28.203-2 . . . ; and/or (2) [a] recorded lien on real estate.” 48
C.F.R. § 52.228-11(b). Therefore, Plaintiff complied with FAR 52.228-11(b)(1), by providing Mr.
Harris’s Affidavit of Individual Surety that the ITR from FMB was a “trust secured with cash
valued assets totaling over $1 Billion, including parts totaling over $30 million in HSBC Bank
issued [certificates of deposit] held in escrow account by FMB at Northern Trust Bank in USA.”
AR 208. Thus, Plaintiff’s bond complied with FAR 52.228-11(b).
But, FAR 28.203, 28.203-1, and 28.203-2 further limit the acceptability of individual
sureties. See 48 C.F.R. §§ 28.203, 28.203-1, 28.203-2.17 First, FAR 28.203 grants the CO
discretion to “determine the acceptability of individuals proposed as sureties” and to reject “the
offeror utilizing the individual surety . . . as nonresponsible.” 48 C.F.R. § 28.203(a), (c); see also
48 C.F.R. § 28.203-1(b)(1) (stating that the terms and conditions of the escrow account “must be
acceptable to the [CO]”).18
FAR 28.203-1(b)(1)(i) requires that the escrow account “provide the contracting officer
the sole and unrestricted right to draw upon all or part of the funds.” 48 C.F.R. § 28.203-1(b)(1)(i).
The Government argues that the forty-five day payment period in the ITR “far exceed[s] any time
period specified in a demand” and thus fails to provide the CO with the sole and unrestricted right
to draw funds. Gov’t Mot. 15. FAR 52.228-15(c) governs the timing of the submission of bonds
and states that contractors “shall furnish all executed bonds . . . to the [CO], within the time
specified in the Bid Guarantee provision of the solicitation, or otherwise specified by the [CO],
but in any event, before starting work.” 48 C.F.R. § 52.228-15(c). In this case, the Bid Guarantee
provision of the Solicitation, in relevant part, states:
If the successful bidder, upon acceptance of its bid by the Government within the
period specified for acceptance, fails to execute all contractual documents or
17
FAR 28.203-2(a) provides, “The Government will accept only cash, readily marketable
assets, or [ILCs] from a federally insured financial institution from individual sureties to satisfy
the underlying bond obligations.” 48 C.F.R. § 28.203-2(a); see also 48 C.F.R. § 28.203-2(b)
(listing the acceptable assets as “[c]ash, or certificates of deposit, or other cash equivalents with a
federally insured financial institution”; “United States Government securities at market value”;
“[s]tocks and bonds actively traded on a national U.S. security exchange with certificates issued
in the name of the individual surety”; “real property owned in fee simple by the surety without any
form of concurrent ownership”; and “[ILCs] issued by a federally insured financial institution in
the name of the contracting agency and which identify the agency and solicitation or contract
number for which the ILC is provided”); see also 48 C.F.R. § 28.203-2(c) (listing unacceptable
assets as including “[n]otes or accounts receivable”; “[f]oreign securities”; certain forms of real
property; “[p]ersonal property other than that listed in paragraph (b)”; “[s]tocks and bonds of the
individual surety in a controlled, affiliated, or closely held concern of the offeror/contractor”;
“[c]orporate assets”; “[s]peculative assets”; and “[l]etters of credit”).
18
For a discussion of whether the contracting officer abused this discretion, see Section
III.E below.
15
furnish executed bond(s) within [ten] days after receipt of the forms by the bidder,
the [CO] may terminate the contract for default.
AR 73.
Therefore, on its face, the forty-five day period specified in the ITR exceeds the ten-day
period in the Bid Guarantee provision of the Solicitation. Compare AR 193 (ITR) with AR 73
(Bid Guarantee provision). Further, there is also no indication in the Administrative Record that
the CO specified another time period. Therefore, the court has determined that the forty-five day
period for payment under the ITR exceeds the time period in the Bid Guarantee provision of the
Solicitation, thereby violating FAR 28.203-1(b)(1)(i)’s requirement that the escrow account
“provide the contracting officer the sole and unrestricted right to draw upon all or part of the
funds.” 48 C.F.R. § 28.203-1(b)(1)(i).19
In addition, FAR 28.203-2(a) states that “the Government will accept only cash, readily
marketable assets, or [ILCs] from a federally insured financial institution from individual sureties
to satisfy the underlying bond obligations.” 48 C.F.R. § 28.203-2(a); see also 48 C.F.R. § 28.203-
2(b) (listing acceptable assets); 48 C.F.R. § 28.203(c) (listing unacceptable assets). Given the
acceptable assets listed in FAR 28.203-2(b), Plaintiff’s bond only could qualify as “[ILCs] issued
by a federally insured financial institution in the name of the contracting agency and which identify
the agency and solicitation or contract number for which the ILC is provided” or “[c]ash, or
certificates of deposit, or as other cash equivalents with a federally insured financial institution.”
48 C.F.R. § 28.203-2(b)(5), (1). These alternatives also are addressed herein.
i. Whether Anthem Builders, Inc.’s Bond Properly Was
Supported By An ILC.
FAR 28.203-2 provides that “[t]he Government will accept . . . . [ILCs] issued by a
federally insured financial institution in the name of the contracting agency and which identify the
agency and solicitation or contract number for which the ILC is provided.” 48 C.F.R. § 28.203(a),
(b)(5).
In this case, the ITR was issued in the name of the contracting agency and identified the
Solicitation No. VA-786A-14-R-0047. AR 168, 193. But, FMB is not a FDIC insured financial
institution.20 FED. DEPOSIT INS. CO., INDUSTRY DIRECTORY, available at
19
The court recognizes that there may be a scenario where the payment could be made
within the ten-day period in the Bid Guarantee provision. For example, Plaintiff could have sent
an invoice for the ITR on the ITR’s date of issue, October 7, 2014 (note that the Date of Maturity
is January 7, 2014, which may affect the availability of funds), making payment due forty-five
days later on November 21, 2015. Under this scenario, if Plaintiff received the forms from the
bidder after November 11, 2015, then the ITR could have been paid before the expiration of the
time period in the Bid Guarantee provision. But, there is no indication in the AR that Plaintiff
invoiced the ITR or that the DVA ever sent the forms to Plaintiff.
20
Although the District Court in Macomb County held that an ITR from FMB was a letter
of credit, this determination was derived from Michigan’s version of Article 5 of the U.C.C. and
16
https://www2.fdic.gov/idasp/main.asp (last visited Mar. 10, 2015) (finding no results when
searching for “First Mountain Bancorp,” only one different bank when searching for “First
Mountain,” and no results when searching “First Standard”); see also 31 C.F.R. § 208.2(j)
(defining insured financial institution as “any financial institution, the deposits of which are
insured by the Federal Deposit Insurance Corporation[.]; AR 168, 193 (there was no “FDIC
Insured” seal on FMB’s letterhead). Because the ITR was not “issued by a federally insured
financial institution,” the ITR is not an ILC. 48 C.F.R. § 28.203-2(b)(5).21
Therefore, Plaintiff’s bond was not properly supported by an ILC.22
ii. Whether Anthem Builders, Inc.’s Bond Properly Was
Supported By Cash Or Cash Equivalents.
FAR 28.203-2 provides that “[t]he Government will accept . . . . [c]ash, or certificates of
deposit, or other cash equivalents with a federally insured financial institution.” 48
C.F.R. § 28.203-2(a), (b)(5); see also 48 C.F.R. § 52.228-15(d) (stating that the bonds may be “in
the form of firm commitment, supported by corporate sureties whose names appear on the list
contained in Treasury Department Circular 570, individual sureties, or by other acceptable security
such as postal money order, certified check, cashier’s check, [ILC], or, in accordance with
Treasury Department regulations, certain bonds or notes of the United States”); 48 C.F.R.
§ 52.228-11(b) (“Pledges of assets from each person acting as an individual surety shall be in the
is not precedential. See 2010 WL 891247, at *2 (“Under Michigan’s version of Article 5 of the
U.C.C., the ITR is defined as a letter of credit.”) (citing Mich. Comp. Laws § 440.5102(j) (noting
that the state statute does not require that the letter of credit be insured by FDIC, thereby
distinguishing the statute from 48 C.F.R. § 2.101)). Moreover, Section 5-108(e) does not require
that the letter of credit be issued or confirmed by a federally insured financial institution. See
U.C.C. § 5-108(e) (2002) (stating that “[a]n insurer shall observe standard practice[s] of financial
institutions that regularly issue letters of credit”).
21
Plaintiff could have argued that the “$30 million in HSBC Bank as Issued [certificates
of deposit] held in escrow account by FMB at Northern Trust Bank in USA” qualified the ITR as
an ILC confirmed by HSBC. See 48 C.F.R. § 28.204-3(b) (stating that the ILC must be
“issued/confirmed by an acceptable federally insured financial institution as provided in paragraph
(g) of this subsection”) (emphases added); see also FED. DEPOSIT INS. CO., INDUSTRY DIRECTORY,
available at https://www2.fdic.gov/idasp/main.asp (last visited Mar. 10, 2015) (finding two results
when searching for “HSBC” and one result when searching for “Northern Trust”). But, Plaintiff
did not do so and thus waived the argument. See SmithKline Beecham Corp. v. Apotex Corp., 439
F.3d 1312, 1319 (stating that it is “well established that arguments not raised in the opening brief
are waived”). In any event, there is no evidence in the Administrative Record that Plaintiff
“provide[d] the [CO] a credit rating from a recognized commercial rating service that indicates the
financial institution has the required rating(s) as of the date of issuance of the ILC.” 48 C.F.R.
§ 28.204-3(g)(1).
22
In addition, as discussed above, the forty-five day payment period in the ITR conditions
the letter of credit.
17
form of—(1) Evidence of an escrow account containing cash, certificates of deposit, commercial
or Governmental securities, or other assets described in FAR 28.203-2[.]”).
In this case, the parties dispute whether the ITR must be issued by a “federally insured
financial institution,” or whether the certificates of deposit issued by HSBC and held in escrow at
Northern Trust Bank—both of which are “federally insured financial institution[s]”—are
sufficient. Compare Pl. Resp. at 10 (stating that the Government “appears to ignore that the
Affidavit of Individual Surety . . . states specifically that the [certificates of deposit] are being held
i[n] an escrow account at Northern Trust Bank, which is a federally insured financial institution”)
(citing AR 208)) with Gov’t Reply at 6 (arguing that the ITR is an asset, not the certificates of
deposit).
FAR 28.203-2 does not clearly resolve this issue. Compare 48 C.F.R. § 28.203-2(a)
(requiring that the cash, readily marketable, assets, or ILCs be “from a federally insured financial
institution”) (emphasis added) with 48 C.F.R. § 28.203-2(b)(1) (stating that “[c]ash, or certificates
of deposit, or other cash equivalents with a federally insured financial institution” are acceptable
assets) (emphasis added).23 Moreover, FAR 52.228-11(b) requires only “evidence of an escrow
account containing cash, certificates of deposit, commercial or Governmental securities, or other
assets described in FAR 28.203-2[.]” 48 C.F.R. § 52.228-11(b)(1) (emphasis added). In this case,
Plaintiff has shown “evidence of an account containing . . . certificates of deposit” (48 C.F.R.
§ 28.203(b)(1)) that are “with a federally insured financial institution” (48 C.F.R. § 28.203-
2(b)(1)); AR 138 (stating that the ITR was issued “from First Mountain Bancorp [(“FMB”)] trust
secured with cash valued assets, including over $30 million in HSBC Bank as issued [certificates
of deposit] held in escrow account by FMB at Northern Trust Bank in USA”).
But, Plaintiff failed to show that the assets were “unencumbered.” 48 C.F.R. § 28.203(b).
The ITR asserts only that the ITR, and not the HSBC certificates of deposit held at Northern Trust,
are “free from encumbrances.” AR 193 (“FMB certified that this ITR is . . . free from liens and
encumbrances of any kind whatsoever.”) (emphasis added). Therefore, the individual surety did
not comply with the FAR, and the CO properly exercised his authority in determining that the
assets may not have been unencumbered. See 48 C.F.R. § 28.203(a)–(b).
23
In FAR 28.203-2(b)(1), the phrase “with a federally insured financial institution” applies
to all three asset types: “[c]ash”; “certificates of deposit”; and “other cash equivalents.” 48 C.F.R.
§ 28.203-2(b)(1); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 147–51 (2012) (“READING LAW”) (discussing the “Series-
Qualifier Canon” that provides: “When there is a straightforward, parallel construction that
involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to
the entire series.”) (emphasis added). But, the inclusion of the “or” before “certificates of deposit”
could imply that the phrase “with a federally insured financial institution” applies only to “other
cash equivalents,” and not to “cash” or “certificates of deposit.” See United States v. Pritchett,
470 F.2d 455, 459 (D.C. Cir. 1972) (holding that a similar postpositive phrase did not apply to all
positions listed in that clause due to the presence of an “or” before the position at issue). But see
READING LAW 150 (“The [Pritchett] court was right about the result and the comma, but it was the
to rather than the or that set the last phrase apart.”) (emphasis in original).
18
E. Whether The Department Of Veterans Affairs’ Review of Anthem Builders
Inc.’s Bond Violated the Administrative Procedures Act.
1. The Government’s Argument.
The Government argues that the CO did not violate the APA24 by: determining that
Plaintiff’s individual surety did not comply with the FAR; considering the SAM record; or
considering the Internet search. Gov’t Mot. at 9–23; see also Gov’t Reply at 9–16.
The Government’s arguments that Plaintiff’s individual surety did not comply with the
FAR, have been discussed and resolved. Regarding the SAM search, the Government argues that
the CO conducting the SAM search and did not evidence bad faith. Gov’t Mot. at 16–18; see also
Gov’t Reply at 12–15. According to FAR 9.105-1(a), the CO must “possess or obtain information”
necessary to make a responsibility or nonresponsibility determination, and that information must
be included in the contract file. Gov’t Mot. at 16–17 (citing 48 C.F.R. § 9.105-1(a); 48 C.F.R.
§ 9.105-2(a)); see also Gov’t Reply at 13 (same). The CO’s decision to run the SAM search on
the individual surety was proper, as the SAM search is one of the items that could be considered
when making a responsibility decision under FAR 9.105[-1](c).25 In addition, since the search was
conducted, the results were required to be included in the file pursuant to Section 9.105-2(b).”26
24
The Government’s February 13, 2015 Motion relies on the same arguments in support
of its contention that the DVA did not violate the APA’s “arbitrary or capricious” or “not in
accordance with the law” standards (Gov’t Mot. at 9–20), but separately addresses the “rational
basis” standard (Gov’t Mot. at 20–23). The Government’s February 27, 2015 Reply jointly
addresses the “arbitrary or capricious” and “not in accordance with the law” standards (Gov’t
Reply at 9–15) and separately argues that the court should defer to the DVA’s determination (Gov’t
Reply at 16–17). But, the court will address separately the “arbitrary or capricious,” “rational
basis,” and “not in accordance with the law” standards in its resolution.
25
FAR 9.105-1(c), in relevant part, provides:
In making the determination of responsibility, the [CO] shall consider information
in FAPIIS . . . , including information that is linked to FAPIIS such as from the
[SAM] Exclusions and the Past Performance Information Retrieval System
(PPIRS), and any other relevant part performance information[.]
48 C.F.R. § 9.105-1(c).
26
FAR 9.105-2(b), in relevant part, provides that when making a responsibility or
nonresponsibility determination, the CO must provide the following support documentation:
(1) Documents and reports supporting a determination of responsibility or
nonresponsibility, including any preaward survey reports, the use of FAPIIS
information . . . , and any applicable Certificate of Competency, must be
included in the contract file.
19
Gov’t Mot. 17. Moreover, although Mr. Moskalik assured the DVA that Plaintiff’s individual
surety was not the same David Harris identified in the SAM search, he did so after the search was
conducted, so the CO did not rely on Mr. Moskalik’s assurances. Gov’t Mot. at 17 (citing AR
161); see also Gov’t Reply at 14 (“[E]ven though Mr. Moskalik also provided the CO with copies
of Mr. Harris’s passport, driver’s license[,] and Georgia firearms license, the excluded David
Harris[] could have moved to Georgia after exclusion, or could have had a second residence or
workplace in Illinois.”) (internal quotation omitted).
Plaintiff also “identifies no evidence that the DVA had a specific intent to injure it,” beyond
including this required information. Gov’t Mot. at 18 (citing Galen, 369 F.3d at 1330 (stating that
there is a “presumption of good faith” on behalf of the Government); Am-Pro Protective Agency,
Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002) (“Am-Pro”) (stating that a plaintiff
claiming bad faith must show “irrefragable proof,” i.e., “some specific intent to injure the
plaintiff”) (internal quotation omitted)). It is a “nonissue” that another agency purportedly
accepted First Standard as an individual surety, because the DVA was not bound by other agencies’
prior actions. Gov’t Mot. at 18. And, Plaintiff cannot show that it was prejudiced by the search.
Gov’t Reply at 14 (stating that the CO “questioned the bid bond on its face—not because of the
SAM search results”); Gov’t Reply at 15–16 (arguing that Plaintiff cannot show prejudicial error).
The court also may not consider Plaintiff’s counsel’s subsequent Internet search. Gov’t
Mot. at 19. “Anecdotal evidence of a Google search performed by [Plaintiff]’s counsel several
months after the award determination is not properly part of the [A]dministrative [R]ecord.” Gov’t
Mot. at 19 (citing Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for judicial review
should be the [A]dministrative [R]ecord already in existence, not some new record made initially
in the reviewing court.”); Axiom, 564 F.3d at 1380 (limiting the supplementation of the
Administrative Record “to cases in which the omission of the extra-record evidence precludes
effective judicial review”) (internal quotation omitted)). In any event, “[t]hese [I]nternet search
results were not heavily relied upon when the CO made his responsibility determination” and any
“oversight is a de minimis error which caused no harm to [Plaintiff].” Gov’t Mot. at 20; see also
Gov’t Reply at 11–12 (arguing that the DVA’s nonresponsibility determination relied heavily on
the OGC’s recommendation that did not mention the Internet search results and that the Internet
search was not a document or report that needed to be included in the contract file); Gov’t Reply
at 15–16 (arguing that Plaintiff cannot show prejudicial error).
2. Anthem Builders, Inc.’s Response.
The CO abused its discretion by finding Plaintiff non-responsible, conducting the SAM
search, and conducting the Internet search. Pl. Mot. at 14–16, 5–7. The DVA’s “actions were
....
(2) (ii) The [CO] is responsible for the timely submission, within 3 working days,
and sufficiency, and accuracy of the documentation regarding the
nonresponsibility determination.”
48 C.F.R. § 9.105(b) (emphasis added).
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arbitrary, capricious, not in accordance with regulations, and just plain wrong.” Pl. Resp. at 3.27
Specifically, the inclusion of the SAM and Internet search results violated 48 C.F.R. § 9.105-
2(b)(2)(ii). Pl. Resp. at 4–5.
On October 6, 2014, the CO was notified that the David Harris identified in the SAM search
was not the same David Harris serving as Plaintiff’s individual surety. Pl. Mot. at 6; see also Pl.
Resp. at 4 (same) (citing AR 161, 191, 200, 203, 216). On October 26, 2014, twenty days after
this notification, the CO issued the ADM, and “[t]here is no evidence in the [Administrative
Record] that the [CO] ever fact checked the information.” Pl. Resp. at 4 (citing AR 221). In
addition, Plaintiff provided a copy of Mr. Harris’s “passport, driver’s license[,] and Georgia
Firearms License . . . [that a]ll showed that he lived in Georgia and not the three other states
indicated in the SAM.” Pl. Resp. at 5 (citing AR 213–14). But, the CO still “allowed the incorrect
information to remain in the [ADM].” Pl. Resp. at 5 (citing AR 225).
Regarding Plaintiff’s counsel’s independent Internet search, “[t]here is absolutely no
information concerning any fraud perpetrated by First Standard. . . . When asked about supporting
documentation[,] the [DVA] could not produce any.” Pl. Mot. at 7; see also Pl. Resp. at 5 (“There
was no support documentation offered and none was presented in the Administrative Record.
Plaintiff’s counsel personally requested from [the Government]’s counsel any supporting
documentation for this statement and was told that none existed.”). While CO’s are permitted to
conduct Internet research, “the information must be accurate.” Pl. Resp. at 5.
The inclusion of the CO’s SAM and Internet search results were not de minimis errors. Pl.
Resp. at 5–7. “No matter what the [Government] argues, the inclusion of this incorrect and
unsubstantiated information amounts to the ringing of the bell that could not be unrung and had to
have an effect on the award.” Pl. Resp. at 6. Moreover, “[i]t was only after the CO reviewed the
SAM data and drew his inaccurate and false conclusions that the award and the bid bond were
questioned.” Pl. Resp. at 6. Finally, “[t]he Comptroller General has not been reluctant to overturn
awards that were based on incorrect information.” Pl. Resp. at 6–7 (citing, for example, L-3
Commc’ns Corp., B-281784.3 et. al, 1999 CDP ¶ 81 (Comp. Gen. April 26, 1999)).
3. The Court’s Resolution.
i. Whether The Department Of Veterans Affairs Violated
The APA By Determining That Anthem Builders, Inc.’s
Bond Did Not Meet The Standards For Individual
Sureties Required By The FAR.
The APA requires that the court “hold unlawful and set aside agency action, findings, and
conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law[.]” 5 U.S.C. § 706(2); see also 28 U.S.C. § 1491(b)(4) (“In any action under
this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in
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Plaintiff does not distinguish between the “arbitrary or capricious,” “rational basis,” or
“not in accordance with the law” standards. Pl. Resp. at 3–6. But, the court will separately address
these standards in its resolution.
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section 706 of title 5.”). The court has determined that the DVA’s nonresponsibility determination
accorded with the FAR, and the court will rely on this determination in considering whether the
DVA’s decision violated the APA.
To establish a regulatory or procedural violation, i.e., procurement not in accordance with
law, “the disappointed bidder must show a clear and prejudicial violation of applicable statutes or
regulations.” Axiom, 564 F.3d at 1381 (internal quotations and citations omitted). Because the
court previously determined that that the DVA’s nonresponsibility determination accorded with
the FAR, the court has determined that the procurement did not violate an applicable law or
regulation.
To establish a lack of a rational basis, a plaintiff must show that the agency failed to reduce
to writing a “rational reasoning and consideration of relevant factors.” Savantage Fin. Servs., 595
F.3d at 1287 (internal quotation omitted). In this case, the OGC thoroughly evaluated Plaintiff’s
bond and determined it was unacceptable, as explained in the text of the OGC’s October 20, 2014
email reproduced in the ADM. AR 225; see also 48 C.F.R. § 28.203(f). Therefore, the DVA had
a “rational basis” in finding Plaintiff’s bid bond unacceptable pursuant to the FAR. See Bannum,
404 F.3d at 1355, 1357 (requiring the United States Court of Federal Claims to “weigh[] the
evidence” of procurement errors “as if it were conducting a trial on the record”); see also Weeks
Marine, 575 F.3d at 1368–69 (“[P]rocurement decisions invoke[] highly deferential rational basis
review . . . . Under that standard, we sustain an agency action evincing rational reasoning and
consideration of relevant factors.”) (internal quotations and citations omitted); Centech Group,
Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (requiring the court to “determine
whether the contracting agency provided a coherent and reasonable explanation of its exercise of
discretion, and the disappointed bidder bears a heavy burden of showing that the award decision
had no rational basis”) (internal citations and quotations omitted).
And, to overturn an award decision as arbitrary or capricious, the court must determine 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 [the decision] is so
implausible that it could not be ascribed to a difference in view or the product of agency expertise.”
State Farm, 463 U.S. at 43; see also Grimberg, 702 F.2d at 1372 (holding that the court may set
aside agency action “only in extremely limited circumstances”). The Administrative Record
evidences that the DVA thoroughly considered the evidence and reasonably determined that
Plaintiff’s bond did not comply with the FAR’s requirements. AR 225. Therefore, the DVA’s
decision was not arbitrary or capricious.
For these reasons, the court has determined that the DVA’s nonresponsibility determination
was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”
5 U.S.C. § 706(2)(A); see also 28 U.S.C. § 1491(b)(4).
ii. Whether The Department Of Veterans Affairs Violated
The Administrative Procedures Act By Including The
System For Award Management Search Results.
FAR 9.105-1(c) provides that, “the [CO] shall consider information in
FAPIIS . . . , including information that is linked to FAPIIS such as from the [SAM] Exclusions[.]”
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48 C.F.R. § 9.105-1(c). FAR 9.105-2(b)(1) also provides that this information “must be included
in the contract file.” 48 C.F.R. § 9.105-2(b)(1) (emphasis added). In this case, the Administrative
Record evidences that the CO properly conducted a SAM search and then was required to include
this information in the contract file. AR 225. In addition the Administrative Record demonstrates
that the DVA primarily relied on the acceptability of the bond, not on the SAM search results,
when making the nonresponsibility determination. AR 225, 231–32 (discussing the OGC’s
recommendation and concerns with the bond rather than the SAM search results). Therefore, any
error in including the SAM search in the contract file would be nonprejudicial. See Bannum, 404
F.3d at 1358 (requiring a showing that “there [is] a ‘substantial chance’ [that Plaintiff] would have
received the contract award but for the . . . error[] in the bid process”); see also Labatt, 577 F.3d
at 1378 (same).
For these reasons, the court has determined that the DVA’s inclusion of the SAM search
results was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]” 5 U.S.C. § 706(2)(A); see also 28 U.S.C. § 1491(b)(4).
iii. Whether The Department Of Veterans Affairs Violated
The APA By Including The Internet Search Results.
Finally, FAR 9.105-1(a) requires the CO to “possess or obtain information sufficient to be
satisfied that a prospective contractor” meets the requirements of an individual surety. 48 C.F.R.
§ 9.105-1(a). Plaintiff concedes that the CO was permitted to conduct an Internet search. Pl. Resp.
at 5. But, the DVA was not required to include copies of the results of the Internet search in
contract file. See 48 C.F.R. § 9.105-2(b)(1) (limiting the required supporting documentation to
“[d]ocuments and reports”). In addition, the Administrative Record evidences that the DVA
focused primarily on the acceptability of the bond, not on an Internet search, when making the
nonresponsibility determination, rendering any error in referencing the Internet search results
nonprejudicial. AR 225, 231–32 (discussing the OGC’s recommendation and concerns with the
bond rather than the Internet search results); see also Bannum, 404 F.3d at 1358 (requiring a
showing that “there [is] a ‘substantial chance’ [that Plaintiff] would have received the contract
award but for the . . . error[] in the bid process”); see also Labatt, 577 F.3d at 1378 (same).
For these reasons, the court has determined that the DVA’s reference to an Internet search
results was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]” 5 U.S.C. § 706(2)(A); see also 28 U.S.C. § 1491(b)(4).
iv. Whether The Department Of Veterans Affairs Violated
Its Duty Of Good Faith And Fair Dealing.
Certain allegations in Plaintiff’s January 28, 2015 Motion For Summary Judgment could
be construed as arguments that the DVA violated its duty of good faith and fair dealing. See, e.g.,
Pl. Mot. at 6 (stating that, by including the SAM search, the CO “injected false information into
the [ADM], knowing that it was false”); Pl. Mot. at 7 (stating that, by including the Internet search
in the ADM, the Government alleged that Plaintiff had committed fraud without providing
supporting documentation); see also Metcalf Constr. Co. v. United States, 742 F.3d 984, 991 (Fed.
Cir. 2014) (“The covenant of good faith and fair dealing imposes obligations on both contracting
parties that include the duty not to interfere with the other party’s performance and not to act so as
23
to destroy the reasonable expectations of the other party regarding the fruits of the contract.”)
(internal quotation, alterations, and emphasis omitted); RESTATEMENT (SECOND) OF CONTRACTS
§ 205 (1981) (“Every contract imposes upon each party a duty of good faith and fair dealing in its
performance and its enforcement.”). But, to the extent that these allegations are construed to allege
a violation of the duty of good faith and fair dealing, Plaintiff has not shown that the DVA had
“some specific intent to injure the plaintiff.” Am-Pro, 281 F.3d at 1240 (internal quotation
omitted). Therefore, the presumption of good faith by the Government remains. See Galen, 369
F.3d at 1330 (stating that there is a “presumption of good faith” on behalf of the Government).
IV. CONCLUSION.
For reasons discussed herein, Plaintiff’s December 23, 2014 Motion For Preliminary
Injunction and January 28, 2015 Motion Summary Judgment are denied. The Government’s
February 3, 2015 Motion For Judgment On The Administrative Record is granted. See RCFC
52.1. Accordingly, the Clerk is direct to enter judgment on behalf of the Government.
No costs.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
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