PRECISE SYSTEMS, INC., Plaintiff, v. THE UNITED STATES, Defendant, and ALL POINTS LOGISTICS, LLC, and B3 SOLUTIONS, LLC, Defendant-Intervenors.
No. 14-1174C
In the United States Court of Federal Claims
April 6, 2015
BID PROTEST; (E-Filed Under Seal: March 31, 2015); (Redacted & Corrected Version Issued for Publication: April 6, 2015); Bid Protest; Pre-Award; Small Business Administration (SBA); Office of Hearings & Appeals (OHA); Service-Disabled Veteran Owned Small Business Concern (SDVO SBC); Status; Ownership Criteria; 15 U.S.C. § 632(q); 13 C.F.R. pt. 125; 13 C.F.R. § 125.9(d); Remand
Thomas K. David, Reston, VA, for defendant-intervenor All Points Logistics, LLC. Kenneth D. Brody, Reston, VA, of counsel.
Kathryn V. Flood, Washington, DC, for defendant-intervenor B3 Solutions, LLC. Pamela J. Mazza and Patrick T. Rothwell, Washington, DC, of counsel.
OPINION AND ORDER
CAMPBELL-SMITH, Chief Judge
Precise Systems, Inc. (Precise) was the apparent awardee on a Department of State solicitation entirely set aside for “service-disabled veteran-owned small business concerns” (SDVO SBCs). Four unsuccessful offerors filed agency protests resulting in a decision by the Small Business Administration (SBA), affirmed by its Office of Hearings and Appeals (OHA), that Precise was ineligible for SDVO SBC status and, therefore, also ineligible for the contract award. Precise challenges the ineligibility determination and seeks reinstatement as a SDVO SBC so that it may compete for this procurement and future procurements.
I. Background
A. Precise‘s Organizational Structure
Precise Systems, Inc. is a small business in the aviation management and engineering services industry. Compl., Dec. 5., 2014, ECF No. 1, at ¶ 9. The company incorporated in 1990 under Maryland law. Id. at ¶¶ 9, 14; see AR2 Tab 15 at 830 (Articles of Amend. & Restatement (Am. Art.), Nov. 30, 2012); Tr., Mar. 4, 2015, ECF No. 44, at 18:23-24.
Mr. John Thomas Curtis, a service-disabled veteran (SDV), was the sole owner of Precise until 2011, when he sold a minority interest in the company to an Employee Stock Ownership Plan (ESOP). Compl. ¶¶ 15-18; Curtis Aff., Jan. 22, 2015, ECF No. 30-1, at ¶¶ 2, 4. By sharing with his employees a minority interest in the company, Mr. Curtis hoped to reward his employees’ contributions to the business and to promote
In January 2014, when Precise responded to the solicitation at issue here, Mr. Curtis held [more than 51%] of all issued shares, and the remaining [less than 51%] of issued shares were held by the ESOP. See AR Tab 11 at 740-41. Shares were divided and distributed between Series A Common Stock and Series B Convertible Preferred Stock. AR Tab 15 at 830 (Am. Art., art. III(a)). The corporation was authorized to issue (i) up to 1.2 million shares of Series A Common, of which [more than 300,000] shares had issued and were all held by the SDV Mr. Curtis; and (ii) up to 300,000 shares of Series B Convertible Preferred Stock, of which all had issued and were held by the ESOP. Id.; Compl. ¶ 22; Tr. 7:21-24; see also Tr. 65:4-6 (“The ESOP is owned by a . . . larger number of the employees . . . .“).
Each share, regardless of series, was entitled to one vote at shareholder meetings,3 and “the powers, preferences[,] . . . qualifications, restrictions and limitations” of each share, regardless of series, were “identical,” “[e]xcept as otherwise provided [in the Amended Articles].” AR Tab 15 at 830 (Am. Art., art III(a)). The Amended Articles, in turn, identified distinctions between Series A and Series B stock with respect to: (1) dividend rights; (2) conversion rights; and (3) redemption rights. See, generally, id. at 830-35.
First, with respect to dividend rights, the Amended Articles authorized five types of dividends, of which only one issued automatically and exclusively to the ESOP‘s Series B shareholders while the other four were optional at the election of the company (effectively, Mr. Curtis) and for the benefit of Series A, Series B, or both, as follows:
(1) Series B Preferred Dividend—The ESOP‘s Series B shareholders were entitled to a cumulative preferential cash dividend at a rate of 5.5% on the face value of the Series B share price, payable no later than the last business day of each calendar year (the Preferred Dividend). Id. at 831 (Am. Art., art. III(c)(1)(A)-(B)). This Preferred Dividend was subordinate only to the Series A Repayment Dividend, next discussed.
(2) Series A Repayment Dividend—The company (effectively, Mr. Curtis as the majority shareholder) could elect to declare and pay a cash dividend to the Series A shareholder (Mr. Curtis) in repayment for his conveyance of [less than 51%] percent interest in the company to establish the ESOP (the Repayment Dividend). See id. at 830 (Am. Art., art. III(b)(i)). This dividend was the only dividend that could issue before the Series B Preferred Dividend. See id. at 831 (Am. Art., art. III(c)(1)(C)) (prohibiting any dividend to issue before the Series B Preferred Dividend “other than [a dividend] payable solely in Series A Common,” i.e., the Repayment Dividend).
(3) Series A Matching Dividend—“Upon payment of the [Series B Preferred Dividend], the holder[] of the Series A Common [Mr. Curtis] [was also] entitled to receive a dividend per share . . . equal to and at the same time and in the same manner as [the Series B] Preferred Dividend” (the Matching Dividend). Id. at 835 (Am. Art., art. III(d)).
(4) Series B Additional Dividend—After the Series B Preferred Dividend has issued, the company (effectively Mr. Curtis, as the majority shareholder) could also elect to pay additional cash dividends to the ESOP‘s Series B shareholders (the Series B Additional Dividend). Id. at 831 (Am. Art., art. III(b)(ii)).
(5) Universal Dividend—Likewise, after the Series B Preferred Dividend has issued, the company (effectively Mr. Curtis, as the majority shareholder) could elect to pay additional cash dividends to all shareholders, regardless of series, equally per share (the Universal Dividend). See id (Am. Art., art III(b) (last sentence)).
See also Tr. 23:5-25:2, 25:10-26:2 (explaining dividend provisions).4
Second, differences between Series A and Series B also existed with respect to conversion rights. Any Series B shareholder could elect, at any time, to convert his or her Series B shares into Series A shares, on a one-to-one basis. AR Tab 15 at 831 (Am. Art., art. III(c)(2)). However, the Series A shareholder (Mr. Curtis) did not enjoy a reciprocal right to convert his Series A shares to Series B shares. See id.
In addition, although not a dissimilarity between Series A and Series B stock, it bears noting that the company‘s Amended Articles ensured the service-disabled veteran‘s representation and enhanced power on the Board of Directors, relative to other shareholders. The Board was comprised of a “Class A Director” who was the majority shareholder (Mr. Curtis) and “Class B Director(s)” elected by a majority of all shareholders (limited to six individuals, but filled by only four). Id. at 836 (Am. Art., art. VI); AR Tab 11 at 616 (Am. & Restated Bylaws (Am. Bylaws), Nov. 30, 2012, at arts. III § 20); see also Tr. 65:6-9. As the Class A Director, Mr. Curtis was “entitled to exercise seven (7) votes on any matter before the Board of Directors or any [of its] committees,” whereas the Class B Directors were each “entitled to one (1) vote [apiece on any of the same matters].” AR Tab 15 at 836 (Am. Art., art. VI). Mr. Curtis was also Chairman of the Board, AR Tab 11 at 653, and had the power to elect and remove Board members with or without cause, AR Tab 11 at 616, 618 (Am. Bylaws, arts. III §§ 2, 14, 15).
Despite the distinctions on the Board of Directors and between Series A and Series B rights, privileges, and obligations, Mr. Curtis retained direct and unconditional majority ownership and control over the company at all times and under all circumstances. For example, there does not appear to be any matter on which Series B shareholders voted exclusively. Rather, Series A and Series B appear to have voted together on every matter requiring shareholder approval, and in each such instance Mr. Curtis, as the majority shareholder, could always out vote the Series B shareholders. Series B stock was limited to a total issuance of 300,000 shares, which was less than [***] of the [more than 300,000] Series A shares issued to Mr. Curtis and less than [***] of the total 1,200,000 Series A shares that could issue to Mr. Curtis. Even if every ESOP Series B shareholder exercised his or her right to convert all of the Series B stock to Series A stock, Mr. Curtis would still own more than 51% of the total issued stock. Likewise, even if the company redeemed all of the ESOP‘s Series B stock, the ESOP effectively would disappear and all of the remaining issued stock would be in the form of Series A and held exclusively by Mr. Curtis. Similarly, Mr. Curtis’ weighted voting power on the Board of Directors ensured that he retained complete control over all of the Board‘s decisions. Likewise, Mr. Curtis, as Chief Executive Officer of the company, AR Tab 11 at 653, and majority shareholder, had the power to appoint and remove the company‘s other officers, with or without cause and at any time, AR Tab 11 at 619-20 (Am. Bylaws, art. IV §§ 1-5).
B. Solicitation and Protests
In January 2014, Precise responded to the Department of State‘s Solicitation No. SAQMMA-13-R-044, for aviation-related program support services for the eradication and interdiction of illicit drugs. See Compl. ¶¶ 10, 26-28; AR Tab 15 at 797 (solicitation excerpt at § B-1); see also Tr. 10:13-16 (noting “[t]he ceiling price of that 10-year contract was $240 million, so a sizeable business opportunity“). As the procurement was set aside solely for SDVO SBCs, see AR Tab 15 at 797, Precise‘s response would have included a self-certification of SDVO SBC status as required by
Four unsuccessful offerors filed protests with the contracting officer. See AR Tab 15 at 826-28, 845-48, 883-88, Tab 14 at 773-74, Tab 15 at 791-93 (four protests). The protests claimed that Precise was not a valid SDVO SBC because it was not “owned” and “controlled” by a “service-disabled veteran,” as those terms are defined by the Small Business Act of 1958, as amended and as codified in relevant part at
C. AD/GC Determination
On September 10, 2014, the AD/GC sustained the protests, finding that Precise was not a SDVO SBC at the time of its offer and thus was ineligible to bid on or receive the protested procurement.6 See AR Tab 8 at 77-84 (AD/GC determination). The AD/GC found that while Mr. Curtis qualified as a “service-disabled veteran” under
The applicable SBA regulation for ownership criteria requires:
A concern must be at least 51% unconditionally and directly owned by one or more service-disabled veterans. More specifically:
. . . .
(d) . . . . In the case of a concern which is a corporation, at least 51% of the aggregate of all stock outstanding and at least 51% of each class of voting stock outstanding must be unconditionally owned by one or more service-disabled veterans.
That Mr. Curtis unconditionally and directly owned [more than 51%] of the aggregate of all issued shares was undisputed. AR Tab 8 at 79. What was (and still is) in dispute is whether he owned “51% of each class of voting stock outstanding.” See id. at 79-80. As further discussed below, resolution of this dispute hinges on what constitutes a “class of voting stock” for purposes of the regulation.
Precise argued that the Series A Common Stock and Series B Convertible Preferred Stock were not separate classes of stock but merely two different “series” within a single “class.” Id. Precise reasoned that the shares of Series A and Series B stock were identical in terms of voting power—each share had one vote; the shares voted together on all issues; and the differences between the shares were not material to voting power or control. Id. The AD/GC rejected Precise‘s rationale, observing that the two
The AD/GC then considered whether Mr. Curtis held sufficient “control” over Precise to satisfy
Mr. Curtis’ purported lack of ownership and control led the AD/GC to determine that Precise was not a SDVO SBC at the time of its offer, and therefore was not eligible to bid on either the protested solicitation or on any future solicitations set aside for SDVO SBCs. Id.
D. Appeal to the SBA‘s OHA
The SBA‘s Office of Hearing and Appeals subsequently denied Precise‘s appeal and affirmed-in-part the AD/GC‘s determination that Precise did not meet the eligibility
The OHA began its analysis of ownership criteria with reference to the second prong of Section 125.9(d), requiring that the service-disabled veteran own “at least 51% of each class of voting stock outstanding.” Id. Noting first that SBA regulations are “silent as to what constitutes a ‘class‘” as well as how to “distinguish a ‘class’ from a ‘series,‘” the OHA turned for guidance to Maryland law under which Precise was incorporated. “Maryland‘s Corporations and Associations Code provides that ‘[i]f the stock is divided into classes,’ the corporation‘s articles of incorporation must include ‘a description of each class including any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption.‘” Id. (quoting
Further, the OHA determined it was not error for the AD/GC to reject Precise‘s alternative view that “different groups of stock are different classes only if they have dissimilar voting rights” because Precise was merely “seek[ing] to substitute its own [narrower] interpretation of the regulation for that of the AD/GC[‘s] [broader interpretation].” Id. at 930.
The OHA also concluded the AD/GC did not err in ultimately determining—based on a broad range of considerations beyond “voting rights“—that the Series A and Series B shares at issue here were “sufficiently dissimilar” to warrant treatment as separate classes. Id. at 931. The OHA reasoned that “Series B shareholders may receive
The OHA rejected Precise‘s warning that an affirmance of the AD/GC determination would create inconsistencies with the SBA‘s 8(a) Business Development (BD) program and the Department of Veterans Affairs (VA) program for SDVO SBCs. Id. The SBA‘s 8(a) BD program imposes a similarly-worded ownership requirement, see
Because the OHA could find “no clear error” in the AD/GC‘s reasoning or conclusion that Precise‘s service-disabled veteran, Mr. Curtis, lacked sufficient ownership to satisfy
E. Appeal to this Court
Precise responded to the OHA decision by filing a pre-award bid protest in this court, arguing the OHA decision was “arbitrary, capricious, lacked a rational basis, and contrary to law.” Compl. ¶ 1. Shortly thereafter, and with no objections from the parties, the court permitted two of the unsuccessful offerors—All Points Logistics, LLC (All Points or APL) and B3 Solutions, LLC (B3)—to intervene as interested parties. See Order, Dec. 29, 2014, ECF No. 13; Order, Jan. 8, 2015, ECF No. 22.
Whether Precise satisfied the SBA‘s statutory and regulatory criteria for ownership by a service-disabled veteran is the sole focus of this court‘s review and the only remaining obstacle to Precise‘s eligibility as a SDVO SBC. Following oral
II. Jurisdiction
This court‘s bid protest jurisdiction includes the authority “to render judgment on an action by an interested party objecting [1] to a solicitation . . . or [2] to a proposed award or the award of a contract or [3] [to] any alleged violation of statute or regulation in connection with a procurement . . . [,] without regard to whether suit is instituted before or after the contract is awarded.”
Plaintiff alleges that the SBA violated
No reported opinions confirm this court‘s authority to review an SBA decision where, as here, the SBA has deemed an apparent awardee ineligible for SDVO SBC status in the context of an ongoing procurement. Such a decision, however, is a “final agency decision.” See
Having found the decision subject to judicial review, this court further finds that, under the facts of this case, this court is an appropriate forum to engage in the review. This court has repeatedly exercised jurisdiction over other SBA decisions made in the context of a procurement. E.g., Arcata Assocs., Inc. v. United States, 110 Fed. Cl. 290, 295 (2013) (holding that a “[contracting officer‘s] initial [NAICS code] designation and [the] OHA‘s decision rejecting that designation . . . are both ‘in connection with’ a proposed ongoing procurement” (quoting
In the course of some of these challenges, defendant has even conceded this court‘s jurisdiction. E.g., Advanced Sys. Tech., Inc. v. United States, 69 Fed. Cl. 474, 481 (2006) (quoting the government‘s concession that “the Court possesses jurisdiction to consider determinations of the [SBA] that affect the award of a contract to an interested party” (citation to briefing omitted)); Chapman Law Firm v. United States, 63 Fed. Cl. 25, 30 (2004) (quoting the government‘s concession that the phrase “in connection with” is “sufficiently broad to encompass agency action that is delegated by the [procuring] agency to another agency for purposes of making a[n] [award] determination” (citation to trial transcript omitted)).
Accordingly, this court‘s jurisdiction, under the third prong of
III. Bid Protest Standard of Review
The court will review the SBA‘s decision subject to “the standards set forth in section 706 of title 5 [of the Administrative Procedure Act],”
When a challenge is premised on a lack of rational basis, the reviewing court should inquire whether the agency‘s decision “was legally permissible, reasonable, and supported by the facts.” ViroMed Labs, Inc. v. United States, 62 Fed. Cl. 206, 212 (2004) (citing Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An agency‘s determination lacks a rational basis if it “relied on factors which Congress ha[d] not intended it to consider, 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 is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Nat‘l Ass‘n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting Motor Vehicle Mfrs., 463 U.S. at 43); see also In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“[T]he agency tribunal must present a full and reasoned explanation of its decision . . . set[ting] forth its findings and the grounds thereof, as supported by the agency record, and explain[ing] its application of the law to the found facts.“); Humane Soc. of U.S. v. Clinton, 236 F.3d 1320, 1324-25 (Fed. Cir. 2001) (explaining the agency must “consider[] the relevant factors and articulate[] a rational connection between the facts found and the choice made” (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983))); Impresa Construzioni, 238 F.3d at 1333 (explaining the agency must provide “a coherent and reasonable explanation of its exercise of discretion” (quoting Latecoere Int‘l, Inc. v. United States Dep‘t of Navy, 19 F.3d 1134, 1356 (11th Cir. 1994))). “[A] court,” however, “is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs., 463 U.S. at 43.
When a challenge is premised on a violation of law, the protestor must show “a clear and prejudicial violation of applicable statutes and regulations.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting Impresa Construzioni, 238 F.3d at 1333).
If the court finds prejudicial error on either ground, the 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.”
IV. Discussion
A. Statutory and Regulatory Framework
Within SBA programs, a “small business concern owned and controlled by service-disabled veterans” (SDVO SBC) is defined, first and foremost, by Congress as “a small business concern“:
(A) not less than 51 percent of which is owned by one or more service-disabled veterans . . . ; and
(B) the management and daily business operations of which are controlled by one or more service-disabled veterans . . . .
A concern must be at least 51% unconditionally and directly owned by one or more service-disabled veterans. More specifically:
. . . .
(d) . . . . In the case of a concern which is a corporation, at least 51% of the aggregate of all stock outstanding and at least 51% of each class of voting stock outstanding must be unconditionally owned by one or more service-disabled veterans.
There are no definitions of “class” or “voting stock” in the statute or
Neither the SBA nor a court has had occasion to interpret § 125.9‘s phrase “each class of voting stock” in a reported decision. However, the OHA has interpreted a materially identical ownership requirement in the context of the SBA‘s 8(a) BD program, see
In Precision, the “socially and economically disadvantaged individual,” upon whom eligibility was based, owned 51% of the company‘s Class A Common Stock and
The SBA‘s initial decision nevertheless determined that the “limited voting rights” afforded the Class B Common Stock and Preferred Stock were sufficient to render such stock “voting stock” for purposes of the 8(a) BD program‘s ownership criteria. Id. at *2, *6. But the OHA found this conclusion irrational. Id. at *6. The OHA reasoned that the ownership criteria was in place to “ensure[] that financial benefits accrue to the disadvantaged individual, prohibit[] nondisadvantaged individuals’ ownership of the kind of voting stock that could lead to control of the firm, and further ensure[] that the intended purposes of the legislation are accomplished.” Id. Conversely, prohibiting “nondisadvantaged individuals” from owning stock with “‘limited’ voting rights that have no possible bearing upon the deprivation of the intended rights of the disadvantaged individual [was] clearly meaningless.” Id. The “nondisadvantaged stockholders” had limited voting rights “in form” only; “in substance, . . . [they] ha[d] no ability to influence the management or operations [of the company] and [their] classes of stock should, therefore, not be considered voting stock.” Id. “Furthermore, these voting rights afford[ed] no power to the [“nondisadvantaged” holders] to deprive the disadvantaged majority owner of the benefits that were intended to be his.” Id. The SBA‘s initial decision “clearly elevate[d] form over substance.” Id. Rather, the company “ha[d] carried its burden of proving that not only is 51 percent of the aggregate of all outstanding shares of stock unconditionally owned by [the disadvantaged individual], . . . but [he] likewise own[ed] 51 percent of each class of voting stock.” Id. What was important, the OHA reasoned, was whether there was a materially adverse or “meaning[ful]” effect on the “intended rights” of the preferred status holder—on his or her voting and control, or rights, privileges, and benefits of ownership. See id.
B. Analysis
The court must decide whether the OHA erred in its interpretation and application of
Precise counters that the OHA‘s decision is “arbitrary, capricious, and lacks a rational basis” because “Precise‘s Articles establish[ed] a single class of voting stock, and the SDV own[ed] [more than 51%] of that stock.” Pl.‘s Mot. J. AR (Pl.‘s MJAR), ECF No. 30, at 3. Precise maintains it had only one class of voting stock because: (1) “[a]ll shareholders vote[d] as a single class on all issues;” (2) “[f]or every matter that require[d] shareholder approval, the SDV owner‘s vote [was] dispositive;” and (3) “distinctions between the SDV‘s shares and the ESOP shares . . . [did not] affect . . . the SDV‘s operation, management, or control;” or stated another way, “[m]inority shareholders [could not] under any circumstance overcome Mr. Curtis’ position on any issue; nor [could they] vote to prohibit Mr. Curtis from accomplishing any lawful purpose.” Id. at 2-4.
Precise further contends that the OHA‘s decision was in derogation of its statutory mandate, id. at 5, and “cast its net much farther than its regulations allow,” id. at 2, insofar as the OHA disregarded Precise‘s organizational documents reflecting a specific intent to create two “series” within a single “class,” id. at 12-15, and instead distinguished “class[es] of voting stock” on characteristics that did not relate to voting rights, id. at 21, and that had no material adverse effect on Mr. Curtis’ ownership and control, id. at 3-4, 28. Precise advocates for a test that inquires: “[I]f there are [voting stock] dissimilarities, whether they‘re meaningful in terms of the SDV‘s ownership interest and his ability to control and run the company on a daily basis.” Tr. 27:23-28:1. Such a test, Precise contends, would be “tethered to the congressional intent of the [SDVO SBC] program, that is, to make sure that the benefits of the program only go to service-disabled veterans’ companies.” Id. at 48:7-9.
1. Interpretation of the Regulation
When interpreting § 125.9(d), the AD/GC came to some conclusions, impliedly affirmed by the OHA, that were rational and adequately explained. Precise‘s reference to “series” in its organizational documents, rather than “classes,” was not dispositive. See AR Tab 8 at 79 (AD/GC determination). “[W]hat is important is not the nomenclature used, but how the firm‘s various sets of equity are treated.” Id. The “SBA regulations are focused on treatment of the various classes, series, collections, sets, [and] groups of shares themselves, and how those various classes, series, collections, sets, [and] groups
On appeal, the OHA also interpreted § 125.9(d) with a measure of rationality and reason. For example, the OHA found that a “class” may be distinguished by any number of characteristics. See AR Tab 20 at 930-931 (OHA decision); see Def.‘s MJAR 10 (arguing same). The regulations do not define the term “class.” In the absence of a specific definition, the plain and ordinary meaning of the term applies. See Tesoro Haw. Corp. v. United States, 405 F.3d 1339, 1346 (Fed. Cir. 2005) (“We construe a regulation in the same manner as we construe a statute, by ascertaining its plain meaning.“) (citing, e.g., Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414-15 (1945)); Rumsfeld v. United Techs. Corp., 315 F.3d 1361, 1369-70 (Fed. Cir. 2003) (defining the term “cost” according to its “standard dictionary definition[],” citing Webster‘s Third New Int‘l Dictionary 515 (1968)). Here, the term “class” is defined broadly: “A group of people, things, qualities, or activities that have common characteristics.” Black‘s Law Dictionary 304 (10th ed. 2014)). Indeed, considering a wide array of possible dissimilarities among stock may inform not only whether there are separate “class[es] of voting stock,” § 125.9(d), but also whether the SDV‘s ownership is “direct” and “unconditional,” § 125.9(a), (d), and whether the SDV retains requisite “control,” § 125.10. The OHA also rationally reviewed the company‘s Articles and Bylaws in its attempt to uncover differences in the rights, privileges, and obligations among shareholders.15 See AR Tab 20 at 931. Further, the OHA rationally considered dissimilarities in dividend preferences, redemption abilities, and conversion rights among shareholders because these differences were apparent on the face of Precise‘s organizational documents. See id. at 930-31.
The OHA then turned to Maryland corporate law to define the characteristics dispositive of a “class,” but did not provide a discernably thorough reasoned explanation for its analysis. See id. Maryland law plainly contemplates that a corporation may have “classes or series” of stock and these “classes or series” may be distinguished on
The OHA seems to have focused on identifying classes of stock without ascribing any particular meaning or importance to the modifier “voting” in the phrase “voting stock,” as it appears within § 125.9(d)‘s requirement that the SDV own “at least 51% of each class of voting stock.” See AR Tab 20 at 930-31. Again, because the regulations do not define the phrase, the court turns to its plain and ordinary meaning. See Tesoro, 405 F.3d at 1346; Rumsfeld, 315 F.3d at 1369-70. The phrase “voting stock” means: “Stock for which the holder has the right to vote in the election of directors, in the appointment of auditors, or other matter brought up at the annual meeting.” Amer. Heritage Dictionary 1943 (5th ed. 2011); accord Black‘s Law Dictionary 1643-44 (defining “voting stock” as “[s]tock that entitles the holder to vote in the corporation‘s election of directors and on other matters that are put to a vote“); cf. id. at 1643 (defining “nonvoting stock” as “[s]tock that has no voting rights under most situations“). Likewise, when “voting” is viewed as an attribute of “stock“—as an adjective modifying a noun—it means stock “entitling one to vote.” See Webster‘s Third New Int‘l Dictionary 2565 (1993) (defining “voting“). So broadly defined, the Series B stock at issue here plainly appears to be “voting stock.”
While it is helpful to start from the knowledge that the individual terms “class” and “voting stock” are defined broadly, ultimately § 125.9(d) uses the terms together in the phrase “class of voting stock.” This wording suggests it is “voting stock” that qualifies what potential groups of stock (“class[es]“) are relevant, and vice versa. See Def.‘s MJAR 11-12 (arguing same). For example, if the SBA identified a privilege enjoyed by a group of shareholders, but this group had no voting rights on any issue, the group and its privilege could conceivably be disregarded for purposes of § 125.9(d)‘s ownership analysis. See Def.‘s MJAR 9 (citing, for helpful comparison, Size Appeal of: Native Energy & Tech., Inc., SBA No. SIZ-5249, 2011 WL 4429042, at *10 (Jun. 16, 2011), which disregarded non-voting stock “as an indicia of control under the totality of the circumstances” in size appeal).
However, the OHA failed to give meaning to its “sufficiently dissimilar” test because it offered no guideposts for measuring “sufficiency.” The government admits this frailty in the OHA‘s decision. See Tr. 41:15-16 (“[I]t‘s true, OHA did not specifically lay out factors that would go to sufficiently dissimilar.“) The government argues, though, that despite the lack of explicit guideposts one can infer that the OHA “was looking at important differences in rights and privileges between the different categories of shareholders.” Id. at 41:16-41:19 (emphasis added). But saying that the OHA looked for what was “important” affords no more clarity about what was “sufficient.” So, too, the government‘s further comment that the OHA would look to “numerosity and materiality of the distinctions,” Tr. 42:16-24, might provide more guidance but still begs the question, “what is material?”
There are obvious sources from which guideposts are commonly drawn but the OHA makes no attempt to tie what is “sufficiently dissimilar” to any of them,16 such as (i) the purpose or intent of the statutory or regulatory ownership requirements; (ii) the SBA‘s mandate; or (iii) the congressional intent behind set-asides for SDVO SBCs in government contracting generally. Cf. Precision, SBA No. 384, 1991 WL 540468, at *5-7 (considering whether limited voting rights held by “class of voting stock” had a material adverse effect on the ownership or other rights and privileges that Congress and the SBA had intended for the beneficiary in the protested concern). Likewise, the OHA could have found guideposts in the words and phrases surrounding “each class of voting stock,“—e.g., does a difference among the stock affect the SDV‘s “ownership” generally or, more specifically, the SDV‘s ability to hold his or her ownership interest “directly and unconditionally“? See § 125.9(d). Or, as argued by Precise, the OHA could have followed precedent in the analogous 8(a) BD Program and/or independently concluded that only those dissimilarities that related to voting rights would be material. See Pl.‘s MJAR 15-18, 21-28; Pl.‘s Reply, ECF No. 37, at 2-3, 9-13; cf. 69 Fed. Reg. at 25,263 (noting that the “SBA and its [OHA] ha[ve] established policy on [control] criteria [under the 8(a) BD program] that [would] be helpful for [the SDVO SBC] program.“).
The OHA goes even further to reject the reasoning set forth in Precision, which employs these guideposts when applying its material differences approach in the context of the SBA‘s 8(a) BD program. See id. at 931. The OHA summarily rejected Precision
Moreover, there is some evidence that the SBA intended consistency between its 8(a) BD program and its SDVO SBC program. The programs employ materially identical ownership criteria. Compare
At best, the OHA‘s “sufficiently dissimilar” guidepost might have been Maryland law, insofar as the OHA found dispositive those variances among Series A and Series B that were listed among possible distinguishing characteristics of stock under Maryland law. See AR Tab 20 at 930-31. But, without more from the OHA, the court cannot evaluate the rationality of the agency‘s decision regarding eligibility.
Nor is the court persuaded by the government‘s argument that the “sufficiently dissimilar” test, without guideposts, should be upheld because: (i) it is a bright-line test; and (ii) the agency has an interest in avoiding time-consuming factual analysis. First, the court does not question the merits of a “clear rule, offering clarity, offering predictability,” Tr. 40:10-11, 39:5, one that would allow “people in the SDV community, . . . [to] know what [the criteria] means, [so that] that they can structure their corporations accordingly,” id. at 39:3-4. Nor does the court question that such a “clear rule” might “reduce the uncertainty of [an alternative] multi-factor, very fact-intensive analysis.” Id. at 39:6-7. But for the reasons already set forth, the “sufficiently dissimilar” test employed by the OHA in this case, without guideposts, is not at all a clear rule.
Second, the government‘s argument for avoiding time-consuming factual analysis may have some basis. “Certainly agencies have a responsibility to reach decisions on protests promptly.” Miles Constr., LLC v. United States, 108 Fed. Cl. 792, 804 (2013). But here the concern is largely a non-sequitur. The agency advocates a test hinging on “sufficiency” that cannot be applied without factual analysis and, indeed, the OHA engaged in factual analysis of Precise‘s organizational structure to reach its ineligibility decision. What the OHA failed to do was to provide an adequately reasoned explanation for its conclusions in writing. Such an explanation is required under
The OHA identified three variances between Series A Common Stock and Series B Convertible Preferred Stock: (i) Series B shareholders enjoyed the Preferred Dividend; (ii) Series B shareholders had a right to convert their shares, one for one, to Series A Common Stock; and (iii) the company (essentially Mr. Curtis as the majority shareholder) was empowered to vote to redeem (or buy back) the Series B shares from the ESOP, but there was no corollary preferred dividend, conversion, or redemption rights for the Series A shareholders. AR Tab 20 at 931; see also Tr. 15:15-16:1, 19:17-20:7 (discussing same). The OHA then determined these variances were “sufficient” to render Series A and Series B separate “classes” for purposes of
But the OHA offered little explanation as to why the variances were “sufficient” to conclude that Mr. Curtis (the SDV) lacked sufficient ownership rights. It appears the OHA based its sufficiency conclusion on the mere fact that the variances existed and reflected rights enjoyed or obligations suffered by Series B shareholders that were not shared equally by the SDV in his capacity as the Series A shareholder. See id. The mere existence of differences, though, says nothing of the relevance or materiality of any of the differences. See Pl.‘s Reply 2.
In short, the government has neither “‘provided a coherent and reasonable explanation of its exercise of discretion‘” in decertifying Precise, Impresa Construzioni, 238 F.3d at 1333 (quoting Latecoere Int‘l, 19 F.3d at 1356), nor articulated a “‘a rational connection between the facts found and the choice made,‘” Motor Vehicle Mfrs., 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
V. Conclusion
For the reasons stated, the court cannot find, based on the record before it, that Precise either was or was not an eligible SDVO SBC at the time of its offer. Thus, the SBA‘s OHA decision is SET ASIDE and the court REMANDS this matter to the SBA to determine, consistent with this opinion, whether Precise satisfies ownership criteria for SDVO SBC status. See Beta Analytics Int‘l, Inc. v. United States, 67 Fed. Cl. 384, 395 (2005) (noting that matters of technical expertise are best left to “the special expertise of procurement officials” (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996))). The court STAYS the parties’ motions for judgment on the administrative record, ECF Nos. 30, 32-34, for the duration of remand.
On remand, it is the SBA‘s prerogative to determine whether or not it will maintain its position regarding Precise‘s eligibility. In either circumstance, the SBA shall set forth its rationale for the decision with greater clarity regarding the standard for assessing eligibility and how it applies to Precise. See Mark Dunning I, 58 Fed. Cl. at 225 (citing SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947)). The court observes
The SBA shall file its determination with the court by May 4, 2015. See
IT IS SO ORDERED.
s/ Patricia Campbell-Smith
PATRICIA CAMPBELL-SMITH
Chief Judge