National Mall Tours of Washington, Inc. v. United States Department of the Interior
2017 U.S. App. LEXIS 12141
| D.C. Cir. | 2017Background
- In 2014 the National Park Service issued a prospectus for a 10‑year concession contract on the National Mall; three offerors bid, and the evaluation panel recommended Big Bus Tours as the winner.
- After award decision but before contract execution, National Mall Tours alerted the Park Service that Exponent acquired 60% of Big Bus UK (Big Bus Tours’ grandparent) in February 2015 (the "Exponent Transaction").
- The Park Service asked Big Bus Tours to clarify whether the ownership change affected its responses to Principal Selection Factors 3 (organizational structure/experience) and 4 (financial capability).
- Big Bus Tours replied (March 28 Letter) that U.S. operations and the proposal’s responses were unchanged; Park Service managers proceeded to sign the contract on March 30, 2015.
- National Mall Tours sued under the Administrative Procedure Act and the Concessions Act, arguing (1) the ownership change made Big Bus’s proposal materially inaccurate and (2) the Park Service failed to submit the proposed contract to two congressional committees as required.
- The district court granted summary judgment to the Park Service; the D.C. Circuit affirmed the award decision and dismissed the congressional‑notification claim for lack of standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ownership change after submission made Big Bus’s proposal invalid/materially inaccurate | Exponent Transaction changed controlling ownership such that the proposal was inaccurate and must be disqualified | Agency had discretion to assess materiality; ownership change did not materially alter the offeror’s proposal | Court: No categorical disqualification; Park Service rationally concluded the change was not material and could rely on Big Bus’s March 28 Letter |
| Whether Big Bus’s March 28 Letter unlawfully amended the proposal (and prejudiced competitors) | The Letter effectively amended/supplemented the proposal after the deadline, violating 36 C.F.R. § 51.15(a) | The Letter was a limited clarification; plaintiff shows no prejudice or need for symmetrical opportunity to amend | Court: Not a clear, prejudicial regulatory violation; review limited to whether agency decision lacked a rational basis |
| Whether the Park Service lacked a rational basis in proceeding with the award after learning of the transaction | Change rendered financial/organizational statements unreliable and therefore irrational to proceed | Park Service investigated, requested clarifying information, and reasonably concluded no material change to Principal Selection Factors 3/4 | Court: Park Service had a rational basis to proceed; summary judgment for agency affirmed |
| Whether plaintiff has standing to challenge failure to submit the contract to congressional committees under the Concessions Act | Submission was required (anticipated receipts > $5M); failure injured bidder’s right to a legally valid procurement process | Plaintiff lacks evidence that omission caused a competitive injury or affected the award; the notification step is distinct from the competitive evaluation | Court: Plaintiff failed to show causation/traceable injury; lacks Article III standing; claim dismissed for lack of jurisdiction |
Key Cases Cited
- LeBoeuf, Lamb, Greene & MacRae, LLP v. Abraham, 347 F.3d 315 (D.C. Cir.) (agency contract decisions reviewed for rational basis)
- Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978) (courts should not impose their preferred procedures on agencies)
- Fulton Iron Co. v. Larson, 171 F.2d 994 (D.C. Cir.) (rejecting automatic‑disqualification theory for post‑submission changes)
- Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013) (agency interpretations can be permissible and entitled to deference)
- Alvin Lou Media, Inc. v. FCC, 571 F.3d 1 (D.C. Cir.) (disappointed bidder has a right to a legally valid procurement process)
- City of Waukesha v. EPA, 320 F.3d 228 (D.C. Cir.) (procedural‑breach standing requires showing the omitted procedure likely caused the plaintiff’s injury)
- Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658 (D.C. Cir.) (procedural‑injury cases require substantial probability that omission caused the claimed injury)