Jordan Pond Company, LLC v. United States
115 Fed. Cl. 623
Fed. Cl.2014Background
- NPS issued a prospectus (July 19, 2012) and baseline concession contract for a 10-year concession at Acadia National Park; incumbent Jordan Pond operated since 1932 and sought renewal.
- The prospectus set evaluation factors and scoring (principal factors scored 0–5, total possible 29), with explicit subfactors for resource protection, visitor services, past performance, financial capability, and minimum franchise fee.
- Three meaningful proposals were evaluated; Dawnland, LLC was selected for award, followed by [second place] and Jordan Pond in third.
- Jordan Pond filed a pre-award bid protest in the Court of Federal Claims alleging (a) the draft contract with Dawnland failed to incorporate many proposal elements that supported Dawnland’s score and (b) the evaluation contained errors and procedural flaws.
- The court treated the protest under its 28 U.S.C. § 1491(a) jurisdiction over concessions (Eco Tour precedent), limiting remedies to bid-preparation costs and reviewing the award for arbitrariness or abuse of discretion.
- The court found two minor, non-prejudicial evaluation errors (inconsistent food-sourcing statements in Dawnland’s proposal) but otherwise concluded the evaluation and the draft contract incorporation decisions were rational and within NPS discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction / proper remedy | Jordan Pond asserted broader relief; argued concession might be a "mixed" procurement | Government: concession falls under §1491(a); remedies limited to bid costs | Court: Jurisdiction under §1491(a); remedies limited (Eco Tour controlling) |
| Relevance of Draft Contract to selection | Omitted Dawnland commitments from Draft Contract undermines award — NPS should have reevaluated | NPS: selection and post-selection contract drafting are distinct; regs allow incorporation of appropriate elements only | Court: Draft Contract does not render selection irrational; agency need not incorporate all proposal elements and need not re-evaluate |
| Evaluation errors and scoring | Panel mis-scored multiple factors (e.g., retail/"grab and go", sourcing, infractions), producing irrational results | NPS: scores reflect reasonable, technical judgments; two minor sourcing oversights were non-prejudicial | Court: Most challenges reflect disagreement with agency judgment; only two minor, non-prejudicial errors found; overall scoring rational |
| Evaluation panel composition/conflicts | Technical advisor from Acadia not timely made confidential; local expertise underutilized causing errors | NPS: procedural lapse was de minimis; panel had sufficient expertise and non-voting advisors | Court: Failure to obtain advisor’s certificate timely was de minimis; panel composition valid and did not prejudice outcome |
Key Cases Cited
- Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6 (Fed. Cl. 2013) (concession contracts reviewed under §1491(a) and remedies limited)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (standard for RCFC 52.1 review of administrative record)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency action arbitrary and capricious standard)
- Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372 (Fed. Cir. 2009) (examples of arbitrary and capricious agency action)