OPINION AND ORDER
Pending befoi'e the court is an application by plaintiff, Alabama Aircraft Industries, Inc.-Birmingham (“Alabama Airei’aft”),
BACKGROUND
Alabama Aircraft filed its complaint in this court on June 27, 2008. Alabama Aircraft,
In September 2006, the Air Force received proposals from Boeing, Alabama Aircraft, and Lockheed Martin, and it requested that the three offerors submit final proposals by June 2007. Alabama Aircraft,
Alabama Aircraft then filed a second protest at GAO, raising several objections to the Air Force’s award of the KC-135 PDM contract to Boeing, most notably to the failure of the Air Force to obtain and analyze information that was necessary to determining the viability of Boeing’s proposal given the aging of the KC-135 fleet. Alabama Aircraft, 83
At that juncture, Alabama Aircraft filed a complaint in this court, and the court implemented an accelerated schedule for submitting the administrative record and cross-motions for judgment on that record in accordance with RCFC 52.1. Alabama Aircraft,
STANDARDS FOR DECISION
Under the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), a disappointed offeror who prevails in a bid protest can receive “any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.” 28 U.S.C. § 1491(b)(2). In its prior ruling, the court found that a reprocurement was necessary and that Alabama Aircraft was entitled to bid preparation and proposal costs “because of the lengthy process involved with the procurement and the government’s failure ever to clarify the aging-aircraft issue in the [Request for Proposals] and amendments to it.” Alabama Aircraft,
Such costs are defined in the Federal Acquisition Regulations (“FAR”), which states that bid preparation and proposal costs are those “costs incurred in preparing, submitting, and supporting bids and proposals (whether or not solicited) on potential [g]ovemment or non-[g]overnment contracts.” 48 C.F.R. § 31.205-18(a). Bid preparation and proposal costs must be both reasonable and allocable to be recoverable. 48 C.F.R. § 31.205-18(c); see Coflexip & Servs., Inc. v. United States,
ANALYSIS
The amount Alabama Aircraft seeks to recover in bid preparation and proposal costs, $2,146,361.91, is approximately .18% of the total evaluated price of the final proposal it submitted to the Air Force. Pl.’s Application at 2. Alabama Aircraft specifically seeks to recover $1,343,569.77 for internal labor costs, Pl.’s Application at 3; Pl.’s Reply at 1 n. 1, $88,201.42 in internal expenses, Pl.’s Application at 4, and $714,590.72 for “fees and expenses paid to consultants for their work on the KC-135 proposal,” Pl.’s Applica
A. Permissibility of Awarding Both Injunctive Relief and Bid Preparation and Proposal Costs
In arguing that this court cannot “award both full injunctive relief and bid preparation and proposal costs,” Def.’s Resp. at 6, the government looks chiefly to the law as it existed prior to the modification of the Tucker Act by the ADRA. Under that law, the government contends that “a successful protestor could receive either equitable or monetary relief, but not both.” Def.’s Resp. at 6-7. The government maintains that the ADRA of 1996 was not intended “to alter the remedies available to a successful protester.” Def.’s Resp. at 7. Additionally, the government argues that if the court has the ability to grant both injunctive and monetary relief, it should not do so in the instant case because allowing Alabama Aircraft to recover bid preparation and proposal costs would violate the principle that a remedy should not put a plaintiff “in a better position than if no breach had occurred.” Def.’s Resp. at ll.
The government errs in stating the legal principles underpinning its arguments. By enacting 28 § U.S.C. 1491(b)(2) as part of the ADRA, Congress specifically empowered the court to exercise discretion in fashioning equitable relief and monetary relief consisting of bid preparation and proposal costs. See 28 U.S.C. § 1491(b)(2) (“[T]he court[] may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.”).
“In cases of statutory interpretation, courts first examine the plain meaning of the statute, and, if it is unambiguous, enforce that meaning.” America Online v. United States,
In 1996, the ADRA changed the law by providing that “[b]oth the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.” 28 U.S.C. § 1491(b)(1). The ADRA also contained a sunset provision, which provided that after January 1, 2001 the Court of Federal Claims would be the exclusive judicial tribunal to adjudicate bid protest claims. Pub.L. No. 104-320, § 12(d), 110 Stat. 3870, 3875 (1996). The effect of the ADRA was “to confer the Court of Federal Claims with the same power in bid protest actions that the district courts exercised under the APA.” See Lion Raisins, Inc. v. United States,
In support of its argument that an award of bid preparation and proposal costs in addition to the injunctive relief awarded to Alabama Aircraft would result in an impermissible double recovery, the government cites to decisions in Beta Analytics,
In Beta Analytics, the court ordered equitable relief that called upon the government to institute a new procurement to replace a contract that had been improperly awarded.
The facts in Bannum render that precedent readily distinguishable from the circumstances of this case. At the time Bannum filed its protest, the government had yet to decide which offeror would be awarded the contract.
The foremost principle in fashioning a remedy is to endeavor to place the plaintiff in the position he or she would have occupied but for defendant’s wrong. See, e.g., Glendale Federal Bank, FSB v. United States,
B. Claimed Costs
In determining whether particular claimed costs are recoverable as bid preparation and proposal costs, the court examines whether the amounts sought are competitively reasonable and allocable specifically to the contract that was at issue. See Coflexip,
1. Labor costs.
Alabama Aircraft seeks to recover $1,343,569.77 it expended in labor costs in preparing its bid proposal for KC-135 PDM contract. Pl.’s Application at 3; Pl.’s Reply at 1 n. 1. The declaration of Randall Shealy, Chief Financial Officer and Treasurer of Alabama Aircraft, explains how the company calculated its labor costs. Deel. of Randy Shealy at 3 (Oct. 28, 2008) (“Shealy Deck”). As the government notes, the exhibits attached to support and document Alabama Aircraft’s labor costs are not “contemporaneous records of actual hours worked or costs actually incurred in this project.” Def.’s Resp. at 14. Due to the failure of Alabama Aircraft to submit contemporaneous records substantiating its request for bid preparation and proposal costs, the government requested that the Defense Contract Audit Agency (“DCAA”) audit Alabama Aircraft’s application. Id. Alabama Aircraft asserts that the results of the Air Force’s audit should not be determinative in deciding whether it is entitled to bid preparation and proposal costs because the DCAA treated its claimed costs as a request for a price adjustment, requiring it to produce contemporaneous documentation that is not needed to support an application for bid preparation and proposal costs. Pl.’s Reply at 10-11.
In an effort to calculate the labor costs incurred in formulating Alabama Aircraft's proposal, Tim Walker, who oversaw the development of Alabama Aircraft’s KC-135 PDM proposal, formulated “a list of current
The government claims that this court should not rely on the Shealy Declaration to support plaintiffs application for bid preparation and proposal costs because Alabama Aircraft failed to submit sufficient contemporaneous evidence to substantiate its claimed labor costs. Def.’s Resp. at 14-15. The government’s challenge is unavailing. It is well established in this court that a disappointed offeror is not required to submit contemporaneous records to support its award of bid preparation and proposal costs. See Geo-Seis,
The government farther asserts that Fed. R.Evid. 1006 “precludes the [c]ourt from considering the labor costs claimed in Alabama Aircraft’s application” because Alabama Aircraft did not produce the originals or duplicates of the documents used to generate the summaries. Def.’s Resp. at 15-16. In this respect, the government principally objects to the summary of labor cost calculations appended to the Shealy Declaration as Exhibit B. Alabama Aircraft responds that the government’s argument concerning Fed. R.Evid. 1006 “mischaracterizes the nature of the evidence submitted by Alabama Aircraft” because its proffered exhibits and declarations are “not summaries of other evidence, but rather evidence in and of themselves,” and thus that Fed.R.Evid. 1006 is inapplicable. Pl.’s Reply at 18.
Fed.R.Evid. 1006 provides that “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at [a] reasonable time and place.” The Court of Appeals for the First Circuit has stated that “[c]harts admitted under Rule 1006 are explicitly intended to reflect the contents of the documents they summarize and typically are substitutes in evidence for the voluminous originals.” United States v. Milkiewicz,
The summary of labor costs prepared by Mr. Shealy and attached as Exhibit B to his declaration is not subject to the requirements of Fed.R.Evid. 1006. The government’s main objection to Exhibit B centers on the hours-worked component of the chart, namely that Mr. Shealy lists the number of hours each employee worked on its bid proposal but detailed time records are not available for each employee who worked on the KC-135 proposal. Def.’s Resp. at 14. Alabama Aircraft asserts that the government’s argument is misplaced because it overlooks the fact that Exhibit B is not a summary of time records. PL’s Reply at 18. It is axiomatic that for Fed.R.Evid. 1006 to be implicated original documents must be summarized. That is not what Alabama Aircraft did. Because Alabama Aircraft did not maintain contemporaneous records of the time each employee spent working on its KC-135 PDM proposal, Alabama Aircraft was forced to recreate the time each employee worked on the proposal through indirect means, i.e., examining records of communication and the schedule for the solicitation. See, e.g„ Pi’s Reply at 18; Shealy Deck at 1-2. In short, Fed.R.Evid. 1006 does not pertain to the listing Mr. Shealy prepared with the assistance of other Alabama Aircraft employees.
In contrast, Exhibit C to Mr. Shealy’s declaration is “based upon Alabama Aircraft’s actual non-salary fringe labor expenses for each year as they appear in Alabama Aircraft’s general ledger.” Shealy Deck at 3. Unlike Exhibit B, Exhibit C distilled hundreds of preexisting pages of financial records and documents pertaining to the company’s burdened labor costs over a three-year period. Thus, Exhibit C to Alabama Aircraft’s application for bid preparation and proposal costs is a summary that falls within the purview of Fed.R.Evid. 1006. However, Alabama Aircraft in actuality provided the government an opportunity to examine the underlying records because it allowed the DCAA to examine Alabama Aircraft’s claimed costs. DCAA. earned out such an examination, although it mistakenly treated Alabama Aircraft’s claimed bid preparation and proposal costs as a “price adjustment claim” for which a specific accounting category had to be established to accumulate costs and charges. Def.’s Resp. Attach. (DCAA Audit Report No. 1201-1009G17200001 (“DCAA Report”)) at 2. As a consequence, DCAA “questioned the claimed fully burdened labor in its entirety.” Id. Notably, in an earlier audit dated August 17, 2007, DCAA had found Alabama Aircraft’s “accounting system to be adequate for accumulating costs on [government contracts.” Id. at 3. Nothing in the most recent examination changed that conclusion, apart from DCAA’s mistaken comments treating a request for bid preparation and proposal costs as if it were a price-adjustment claim for which a separate, specific accounting category had to be established. In all events, DCAA had an opportunity to examine Alabama Aircraft’s general ledger for non-salary labor expenses. Thus, the requirements of Fed.R.Evid. 1006 were satisfied, contrary to the government’s claim, and the labor-burden summaries contained in Exhibit C can be considered by the court in determining Alabama Aircraft’s entitlement to bid preparation and proposal costs.
Specifically, Alabama Aircraft seeks to recover $491,774.62 in burdened labor costs for 2005, $561,907.41 in costs for 2006, and $289,877.31 in costs for 2007. PL’s Application, Shealy Deck Ex. B (Total Labor Costs); Walker Deck at 3. Alabama Aircraft asserts that it began to work on the KC-135 PDM contract “in the second half of 2005,” when it was a subcontractor on Boeing’s proposal, “and ended in the first half of 2007.” Shealy Deck at 2. Despite working as a subcontractor for Boeing, Alabama Aircraft contends that it “was responsible for preparing substantial portions of the ... joint proposal.” Walker Deck at 2.
The government asserts that Alabama Aircraft is precluded from recovering any labor costs it sustained while serving as a subcontractor on Boeing’s proposal. Def.’s Resp. at 16. While Alabama Aircraft was serving as a subcontractor to Boeing, it “did not contemplate submitting an offer in its own right.” Id. at 17. Only when Boeing terminated its partnership with Alabama Aircraft, in re
Alabama Aircraft does not challenge the government’s description of events that led up to the reopening of the procurement, but it does contest the government’s assertion that reopening the procurement marked the start of a new competition. PL’s Reply at 12. In support of its position, Alabama Aircraft relies on the fact that the same underlying type of work was involved and the same evaluation procedures were to be used in analyzing the offerors’ proposals. Id. According to Alabama Aircraft, its work as a subcontractor for Boeing “served as a foundation for [its] independent proposal.” Walker Decl. at 2. Thus, Alabama Aircraft claims it is entitled to recover the costs of its work as a subcontractor on a joint proposal with Boeing because that work was “incorporated into Alabama Aircraft’s proposal and the costs associated with these efforts would not have been incurred in the absence of the competition.” PL’s Reply at 13.
If plaintiff seeks to recover a cost that it sustained prior to working on its own proposal, the allocability requirement obligates the disappointed bidder to demonstrate that “the claimed cost[] [was] incurred in anticipation of competing for the specific contract at issue.” Tri Tool, Inc., B-265649,
Bid preparation and proposal costs have been awarded to a successfully protesting offeror for costs sustained prior to the solicitation only when it was working on its own proposal. See Naplesyacht.com, Inc. v. United States,
The government asserts that Alabama Aircraft is precluded from recovering any of the labor costs it sustained in 2006, even those that oceuired after the termination of Alabama Aircraft’s partnership with Boeing, arguing that there is no meaningful way to determine the portion of the costs in 2006 that were attributable to Alabama Aircraft’s work as a subcontractor on Boeing’s proposal. Def.’s Resp. at 18. The court has examined the declarations and exhibits submitted by Alabama Aircraft to discern whether Alabama Aircraft’s work on the joint proposal with Boeing can be segregated from work on its own proposal. No principled
For 2007, Alabama Aircraft seeks to recover $289,887.31 in burdened labor costs. See Pl.’s Application, Shealy Deck, Ex. B (Total Labor Costs) at 2; Walker Deck at 3. In 2007, Alabama Aircraft incurred all of its labor costs in pursuing its own KC-135 PDM proposal. The declarations and exhibits submitted by Alabama Aircraft are sufficient to substantiate the amount requested and explain how that amount was calculated. As the amount sought is both reasonable and allocable, Alabama Aircraft can recover the $289,887.31 it expended on labor costs in 2007.
2. Internal expenses.
Alabama Aircraft seeks to recover $88,201.42 from the government for costs it classifies as “internal expenses.” Pl.’s Application at 4. In its application, Alabama Aircraft denominates “travel and other expenses” it incurred while “working on [its] proposal” as internal expenses. Shealy Deck at 1. Alabama Aircraft claims that it incurred $52,498.01 in internal expenses in 2005, $28,436.07 in internal expenses in 2006, and $7,267.34 in internal expenses in 2007. Shealy Deck at 3. A majority of the internal expenses incurred by Alabama Aircraft occurred when it was formulating a joint proposal with Boeing. See id. The government asserts that Alabama Aircraft is not entitled to recover its claimed internal expenses because “these [] costs were either not supported by any contemporaneous substantiating evidence or because the costs were incurred prior to June 2006, which is when Boeing terminated its subcontracting] arrangement with Alabama Aircraft.” Def.’s Resp. at 19.
As discussed previously, costs that Alabama Aircraft sustained when it was working as a subcontractor for Boeing are not properly recoverable as bid preparation and proposal costs. The government does not have to reimburse Alabama Aircraft for any “internal expenses” that it incurred prior to June 2006, when it began to develop its own individual proposal. Thus, Alabama Aircraft cannot recover the $52,498.01 of internal expenses that it incurred in 2005.
Alabama Aircraft's request for reimbursement for internal expenses it incurred in 2006 does not distinguish between the costs it incurred when working as a subcontractor for Boeing and those sustained in formulating its own proposal. Pl.’s Application, Shealy Deck, Ex. D (Internal Expenses for 2005 to 2007 (Oct. 28, 2008)). The government claims that Alabama Aircraft cannot recover any of the internal expenses it incurred in 2006 because there is no method of determining whether the costs were incurred while it worked with Boeing or in developing its own bid proposal. See Lion Raisins, 52 Fed.Cl. at 633. Here, however, the government’s reliance on the separability principle is misplaced. Alabama Aircraft submitted 314 pages of receipts to the court to substantiate its request for reimbursement of its internal expenses. Pl.’s Application, Shealy Deck, Ex. E. The court is able to review the dates of the receipts to determine whether Alabama Aircraft incurred the cost after it had initiated work on its own proposal. After reviewing the receipts, Alabama Aircraft is able to recover $5,866.18 in internal costs that it expended after June 2006 in developing its own proposal.
The government asserts that Alabama Aircraft should only be allowed to recover $2,020.86 in internal expenses for 2007, claiming that Alabama Aircraft failed to properly substantiate the remainder of these expenses for 2007. Def.’s Resp. at 19-20. This argument by the government is unavailing because the receipts and declarations submitted by Alabama Aircraft serve as sufficient evidence to support its claim to recover the internal expenses it incurred in 2007. Alabama Aircraft has sustained its burden of showing that the $7,267.34 in internal ex
3. Consultants’fees and expenses.
In preparing its proposal for the KC-135 PDM contract, Alabama Aircraft retained three consultants: Shipley Associates, Dayton Aerospace, and Michael B. Taggart. Shealy Decl. at 3. Alabama Aircraft paid Shipley Associates $626,976.13 for assistance in drafting its proposal, $77,876.89 to employ Dayton Aerospace as a technical advisor in formulating its proposal, and Michael B. Taggart $13,540.65 “to assist in the preparation of [Alabama Aircraft’s] proposal.” Shealy Decl. at 4. These payments total $718,393.67 to consultants. Alabama Aircraft initially sought to recover $716,393.67 from the government for expenditures it made in retaining and employing consultants who provided assistance in preparing its proposal. Pl.’s Application at 4. Subsequently, it determined that it had slightly overstated the claimed amount and now seeks to recover $714,590.72 for consultants’ fees and expenses. See Pl.’s Reply, at 1; Def.’s Resp. at 19.
The government resists Alabama Aircraft’s entitlement to recover any of these claimed expenses, claiming that Alabama Aircraft has failed “to break out these costs in any manner.” Def.’s Resp. at 18. Alabama Aircraft responds that its consultants “were not hired until after the Boeing-Alabama Aircraft team split” and worked solely on its own individual proposal. Pl.’s Reply at 17 (citing Walker Decl. at 2-3). Additionally, Alabama Aircraft cites to the fact that none of the invoices from their consultants “predate the termination” of Boeing’s partnership with Alabama Aircraft, Id.
The Air Force claims that Alabama Aircraft should not be able to recover $14,323.32 it reimbursed Shipley Associates for attendance at a three-day writing workshop. Def.’s Resp. at 19. The workshop that Shipley Associates attended was entitled “Writing Winning Proposals: Capturing Federal Business.” Pl.’s Application, Shealy Decl., Ex. G (Invoices from Shipley Associates) at 6. Alabama Aircraft claims this expense is recoverable because it “is ‘not a company in the bid proposal writing business’ ” and thus attendance at the workshop was necessary to learn how to draft the company’s proposal. Pl.’s Reply at 17 (quoting Beta Analytics,
CONCLUSION
For the foregoing reasons, Alabama Aircraft is entitled to receive bid preparation
Because this decision might contain “confidential or proprietary information” within the meaning of RCFC 26(c)(7) and the protective order issued in this case, it is being issued under seal. The parties are requested to review the decision and submit any proposed redactions to the court on or before February 2, 2009.
It is so ORDERED.
Notes
. Because this opinion and order might have contained confidential or proprietary information within the meaning of Rule 26(c)(7) of the Rules of the Court of Federal Claims ("RCFC") and the protective order entered in this case, it was initially filed under seal. The parties were requested to review this decision and to provide proposed redactions of any confidential or proprietary information on or before February 2, 2009. One set of redactions was requested, and accordingly the opinion is being reissued with only one change. Redactions are shown by asterisks enclosed by brackets, as follows: T * *].’•
. Alabama Aircraft was previously named Pemco Aeroplex, Inc. until it changed its name in 2007 in conjunction with a corporate restructuring. See Alabama Aircraft,
. The court’s award of injunctive relief was accompanied by a direction to the clerk to enter final judgment as to such relief under RCFC 54(b). See Alabama Aircraft,
. One judge on this court has stated that "the FAR explanations of 'reasonableness,’ ..., and 'allocability/ ..., [provide] useful guidance in determining the proper size of an award of bid preparation and proposal costs, but ... these provisions are not authoritative" in calculating plaintiff’s entitlement to bid preparation and proposal costs. Beta Analytics Int’l, Inc. v. United States,
. In its reply brief, Alabama Aircraft contends that “[t]he Air Force waived its opportunity to challenge the [c]ourt's authority to award both an injunction and [bid preparation and proposal] [c]osts by failing to raise the issue during the [cjourt’s consideration of the merits of the case.” Pl.’s Reply at 7. Alabama Aircraft argues that ”[t]he current proceeding is merely an adjudication of the proper quantum of relief — not the propriety of the relief already awarded.” Id. at 7 n. 3. The government was granted leave to file a sur-reply and responded that at the prior stage of this litigation, all parties were focused upon whether injunctive relief was due, not whether bid preparation and proposal costs could also be awarded. Def.’s Sur-Reply at 2. The government has the better part of this argument. In its complaint, Alabama Aircraft sought bid preparation and proposal costs in addition to equitable relief, Compl., Prayer for Relief 11E, but such costs were not specifically put at issue during the briefing and argument about injunctive matters.
In a related vein, Alabama Aircraft urges that the government’s challenge to an award of injunctive relief and bid preparation and proposal costs should have been raised in a motion for reconsideration of the court’s judgment and that such a motion had to be filed within ten days after the judgment issued on September 30, 2008. Pl.’s Reply at 9 (citing RCFC 59(e)). This contention is also unavailing because the prior judgment was entered pursuant to RCFC 54(b) and related only to injunctive matters. See Alabama Aircraft,
. The relevant provision was then codified as 28 U.S.C. § 1491(a)(3), now supplanted by amendments to the statute, and specified that "[t]o afford complete relief on any contract claim brought before the contract is awarded, the court shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief.”
. Several of the earliest bid protest precedents viewed the prospect of monetary relief as a barrier to an award of injunctive relief. See, e.g., Cincinnati Elecs.,
. Despite this assertion by Alabama Aircraft, the summary of invoices that Alabama Aircraft submitted with its application for bid preparation and proposal costs shows that it received an invoice in February 2006 from Dayton Aerospace, which is prior to the June 2006 termination of the company's partnership with Boeing. PL's Application, Shealy Decl., Ex. H (Dayton Invoices (Oct. 28, 2008)) at 2. However, the attached invoice shows that the costs actually were incurred in February 2007, and thus the date on Dayton Aerospace's invoice is manifestly in error. PL’s Application, Shealy Decl., Ex. H (Dayton Invoices (Oct. 28, 2008)) at 31. Similarly, in its summary of invoices submitted by Michael Taggart, Alabama Aircraft transcribed the incorrect date from the first invoice into the summary. See PL's Application, Shealy Decl., Ex. I (Taggart Invoices (Oct. 28, 2008)) at 2-3.