Eco Tour Adventures, Inc. v. United States
114 Fed. Cl. 6
Fed. Cl.2013Background
- NPS issued a prospectus (Dec. 20, 2012) soliciting proposals for guided cross-country ski tour concession contracts in Grand Teton National Park; incumbent concessioners (Jackson Hole and Hole Hiking) were designated "preferred offerors."
- The prospectus required certain financial documentation for Principal Selection Factor 4 and stated that only a "responsive" proposal (one that provides the information required by the prospectus) is eligible for award; paragraph 1(d) limited "information required" to information the Service deems "material."
- Eco Tour submitted the highest-scoring responsive proposals for two contracts (GRTE024-13 and GRTE032-13). The evaluation panel found Jackson Hole and Hole Hiking omitted required financial items but nevertheless deemed their proposals "responsive" as the omissions were immaterial; NPS allowed them to match twelve terms identified as better in Eco Tour’s proposals.
- Eco Tour filed a pre-award bid protest alleging (1) the responsiveness/materiality determinations were unlawful and arbitrary, (2) improper disclosure of Eco Tour’s allegedly confidential proposal terms (raising Procurement Integrity Act and implied-contract claims), and (3) NPS failed to require Hole Hiking to match Eco Tour’s biodiesel/fuel-term.
- The Court of Federal Claims concluded it lacked §1491(b) procurement jurisdiction (concession contracts are not procurements) but had jurisdiction under §1491(a) via an implied-in-fact contract claim; it reviewed the agency action under the APA standard and granted judgment for Eco Tour on the responsiveness/materiality issue, awarding bid-preparation costs (equitable relief unavailable under §1491(a)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: whether §1491(b) or §1491(a) governs | Eco Tour sought relief under §1491(b) and §1491(a) | Government: concession contracts are not procurements, so §1491(b) inapplicable | Court: concession contracts are not procurements here; §1491(b) inapplicable; implied-contract jurisdiction under §1491(a) exists for money damages |
| Responsiveness / materiality of omitted financial info | Eco Tour: Jackson Hole and Hole Hiking omitted required financial documents and so were not "responsive" under 36 C.F.R. §51.3; the agency’s materiality limitation in paragraph 1(d) conflicts with regs | NPS: paragraph 1(d) is within its discretion; omissions were immaterial or responsibility determinations (not reviewable) | Court: paragraph 1(d) challenge waived; but even on merits NPS acted arbitrarily and capriciously in finding omissions immaterial (bank statements, balance sheet, credit report, pro forma errors) — responsiveness determinations unlawful; Eco Tour prejudiced |
| Disclosure / confidentiality & Procurement Integrity Act | Eco Tour: NPS disclosed Eco Tour’s confidential proposal terms to preferred offerors in violation of paragraph 4 and Procurement Integrity Act; also breached implied contract | NPS: Procurement Integrity Act doesn’t apply to non‑procurement concession contracts; disclosed items were public/common and Eco Tour failed to follow marking procedures; no prejudice | Court: PI Act inapplicable; disclosed terms were not contractor bid/proposal information or were public; Eco Tour failed to properly mark specific confidential pages; no actionable implied-contract breach or demonstrated prejudice on disclosure claim |
| Requirement to match biodiesel-term (GRTE032-13) | Eco Tour: NPS should have required Hole Hiking to match Eco Tour’s biodiesel/fuel commitment under §51.32 | NPS: biodiesel requirement would materially change contract or is not an appropriate/incorporable term for a ski-tour concession; discretionary technical evaluation | Court: decline to disturb agency technical judgment; not arbitrary to omit biodiesel as a matching requirement |
Key Cases Cited
- Resource Conservation Grp., Inc. v. United States, 597 F.3d 1238 (Fed. Cir. 2010) (§1491(b) procurement jurisdiction applies only in procurement context; implied-contract remedies remain under §1491(a))
- National Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803 (U.S. 2003) (discussing NPS concession regulatory scheme and nature of concession contracts)
- Blue & Gold Fleet, LP v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (challenge to patent solicitation terms must be raised before bid deadline or is waived)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (judicial review of procurement/responsibility determinations cannot be categorically foreclosed)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (standard for RCFC 52.1 judgment on the administrative record and "substantial chance" prejudice standard)