Maule-Ffinch et al v. Johnson et al

Filing 142

ORDER denying as moot 87 Motion to Supplement; denying 88 Motion for Summary Judgment; denying as moot 106 Motion to Strike ; denying as moot 107 Motion to Strike ; granting 110 Motion for Summary Judgment by "Marina Partners"; gr anting 114 Cross-Motion for Summary Judgment by "Federal Defendants" on Count One of the First Amended Complaint; denying as moot 124 Motion to Strike. A Joint Proposed Pretrial Order to be lodged by 4/20/09. Setting Pretrial Conferenc e for 5/11/09 at 10:30 am in Courtroom 606, Sixth Floor, Sandra Day O'Connor United States Courthouse, 401 West Washington Street, Phoenix, Arizona. A trial date and any other necessary deadlines will be set at the Pretrial Conference. Signed by Judge Robert C Broomfield on 3/20/09. (DMT, )

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 wo IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Protect Lake Pleasant, LLC, an Arizona limited liability company; David Maule-Ffinch; Michael Viscuis; and Pensus Group, L.L.C., an Arizona limited liability company, ) ) ) ) ) ) ) Plaintiffs ) ) vs. ) ) J. William McDonald in his ) official capacity as ) Commissioner, United States ) ) Bureau of Reclamation;1 United States Bureau of ) Reclamation; an agency of ) the United States Department ) of Interior, and Ken Salazar, ) in his official capacity as ) Secretary, United States ) ) Department of Interior,2 ) Defendants ) 1 No. CIV 07-0454-PHX-RCB ORDER In accordance with Fed. R. Civ. P. 25(d), which allows for substitution when, among other reasons, "a public officer who is a party in an official capacity . . . ceases to hold office while the action is pending[,]" the court hereby substitutes J. William McDonald, Acting Commissioner of the Bureau of Reclamation ("BOR"), for Robert W. Johnson, former BOR Commissioner. As with Mr. Johnson, in accordance with Fed. R. Civ. P. 25(d), the court hereby substitutes Ken Salazar, current Secretary of the Interior, for Dirk Kempthorne, former Secretary of the Interior. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ) ) ) Lake Pleasant Marina Partners,) LLC, an Arizona limited ) liability company, ) ) ) Defendant-Intervenor) ______________________________) and In count one of their First Amended Complaint ("FAC") plaintiffs allege that the United States Bureau of Reclamation ("BOR"),3 by authorizing Maricopa County ("the County") to proceed with the development and construction of the Scorpion Bay Marina & Yacht Club at Lake Pleasant Regional Park ("LPRP"), violated the Federal Property and Administrative Services Act of 1949 ("FPASA"), as well as various related regulations and BOR Directives and Standards ("D&Ss") and policies. Currently pending before the court is plaintiffs' motion for partial summary judgment pursuant to Fed. R. Civ. P. 56 on count one (doc. 88). 114). BOR is cross-moving for that same relief (doc. Defendant/intervenor Lake Pleasant Marina Partners, LLC, ("Partners") filed a "counter motion" for partial summary judgment also directed to count one (doc. 110). Three motions to strike, by BOR (doc. 106); ("Partners") (doc. 107); and plaintiffs (doc. 124) are also pending. Finally, plaintiffs are moving to supplement the thirteen volume administrative record (doc. 87).4 Hereinafter BOR shall be read as including the individual federal defendants as well, Messrs. McDonald and Salazar. As Fed. R. Civ. P. 78(b) allows, the court will decide these motions without oral argument and thus denies the parties' requests in that regard. The court is quite familiar with this litigation and the parties provided fairly comprehensive briefs on the issues. Consequently, oral argument will not aid the 4 3 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Background This recitation of facts is for the limited purpose of providing a factual overview of plaintiffs' FPASA claims in count one of the FAC. These facts will be further developed herein as necessary to resolve discrete issues, such as jurisdiction, which these motions raise. Two agreements figure prominently in plaintiffs' FPASA claims the 1990 "Recreational Management Agreement" ("RMA") between BOR and the County and the "Use Management Agreement" ("UMA") between the County and Partners. The statutory authority for the first agreement, the RMA, is the Federal Water Project Recreation Act. Admin. Rec., Vol. 1 at 1. In that RMA, BOR "designat[ed]" the Id. County as its "exclusive recreational management contractor[.]" at 4, Art. 2(a). As part of that Agreement, the County transferred "existing park facilities and related property interests" to BOR. Id. at 6, Art. 4. forms. The consideration for that transfer took several As part of that consideration, with BOR's "approval[,]" BOR granted to the County "the authority . . . to enter into third party concession agreements[,]" such as the "Use Management Agreement" ("UMA") entered into between the County and Partners for the LPRP marina. See id. at 7, Art. 4(c)(4). Another aspect of that consideration was BOR's $2,500,000.00 payment to the County to "be utilized only in connection with the recreational development of the LPRP wherein [BOR] has Federal land management responsibility." Id. court's decisional process, and its denial will not result in prejudice to any party. See Lake at Las Vegas Investors Group, Inc. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991) (no prejudice in refusing to grant oral argument "[w]hen a party has [had] an adequate opportunity to provide the trial court with evidence and a memorandum of law[]"). -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 at 7, Art. 4(c)(6). Article 13 of the RMA delineated the circumstances under which the County could "enter into direct agreements with third parties to operate concession attractions, developments or services on the LPRP[.]" Id. at 15, Art. 13(a). In that Article, the County "agree[d] to provide to [BOR] for its approval, a copy of each third party concession agreement involving a pre-approved use as set forth" later in Article 13. Id. The marina complex which was the See id. subject of the UMA is included in that "pre-approved list." At 16, Art. 13(d)(3);(d)(4); and (d)(6). "Subject to final [BOR] approval," the RMA also provided that the County "may consider" the marina complex, among other items, to be "pre-approved for negotiation purposes[.]" Id. In 2005 the County issued a Request for Proposal ("RFP") for the Scorpion Bay Marina. That RFP contained a clause, section 6.8, entitled "Competition, Non-Collusion & Conflict of Interest[.]" PSOF (doc. 89)5, exh. 29 thereto at BORFOAI00315. Plaintiffs view that clause as "anti-competitive," whereas defendants view it as "procompetition." Regardless, essentially section 6.8 precluded any party possessing any commercial interest adjacent to or near Lake Pleasant from bidding on that project. Because plaintiff Pensus Group ("Pensus") operates a marina adjacent to the Lake, it claims that in light of section 6.8, it could not bid on the project. 5 In These motions present a procedural conundrum. On the one hand, defendants are seeking to strike nearly all of the exhibits included with plaintiff's statement of facts ("PSOF"), while at the same time, they are arguing lack of jurisdiction. Plainly, if the court is without jurisdiction, it would not have the power to rule on the motions to strike or plaintiffs' motion to supplement. Because the defendants are not moving to strike exhibits 29 (the 2005 RFP) and 30 (the Proposed UMA), the court will consider those documents, which, in any event, evidently are part of the Administrative Record. -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 response to the 2005 RFP, Partners submitted the only bid for the Scorpion Bay project. As the next step in the process, the County prepared a Proposed ("UMA") for Partners. Plaintiffs allege that the Proposed UMA "varied significantly from the terms contained in the 2005 RFP." FAC (doc. 4) at 11, 43. In particular, the 2005 RFP included two According to provisions which were not in the Proposed UMA. plaintiffs, the 2005 RFP included an encumbrance provision prohibiting the concessionaire from mortgaging or encumbering marina improvements, whereas the Proposed UMA did not include such a provision. Furthermore, the 2005 RFP included a provision mandating that the concessionaire transfer all marina improvements to the County upon termination of any contract entered into pursuant to that RFP, PSOF (doc. 89), exh. 29 thereto at 5, 2.0, whereas the Proposed UMA omitted that reversion provision. Then, despite the fact that the 2005 RFP did not give the concessionaire a "right of first refusal" with respect to 30 additional acres of land, the Proposed UMA did. Subsequently, the BOR approved the Proposed UMA Admin. Rec., Vol. 1 at 000162. In as tendered by the County. turn, the County entered into a Final UMA with Partners for the development and operation of Scorpion Bay Marina. 000163-000210. Broadly stated, based upon the foregoing plaintiffs contend that the BOR violated the FPASA by not ensuring "full and open competition" with respect to the Scorpion Bay Marina bidding process. For one thing, plaintiffs allege that the BOR improperly The See id. Vol. 1 at allowed the County to include section 6.8 in the 2005 RFP. -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 result, according to plaintiffs was a "lack of competition for the 2005 RFP" and a concomitant "contract price substantially below market value." Pl. Mot. (doc. 88) at 16:6-7. Second, plaintiffs contend that the BOR improperly allowed the County to make material changes to the UMA. One purported material change is that the encumbrance and reversion provisions, mentioned above, which had been in the 2005 RFP were not included in the Final UMA. Another improper material change, according to plaintiffs, is that the Final UMA included a right of first refusal which did not appear anywhere in the 2005 RFP. The underlying theory of plaintiffs' FPASA claims is that the "BOR has independent oversight responsibilities" with respect to non-federal partners, such as the County. See id. at 17:9. Based upon that theory, the FAC sweepingly alleges that "BOR's failure to ensure [the] County's compliance with applicable law, regulation, and policy was arbitrary and capricious, an abuse of discretion, and a violation of governing provisions of federal law." at 18, 82. FAC (doc. 4) In similarly broad language, plaintiffs further allege that "BOR's approval of the Proposed UMA, which was based on the illegal 2005 RFP, was also arbitrary and capricious, an abuse of discretion, and a violation of governing provisions of federal law." Id. at 18, 83. Plaintiffs conclude count one by alleging: The consequences of BOR's unlawful action are, among others, a prima facie violation of federal procurement law that excluded Plaintiffs Maule-Ffinch and Pensus from responding to the 2005 RFP for which they were highly and uniquely qualified and known to be a financially viable candidate. Id. at 18, 84. In their motion for partial summary judgment -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 plaintiffs are seeking a declaration that the Final UMA is "illegal and void ab initio. Pl. Mot. (doc. 88) at 1. Succinctly stated, BOR's response is that for the most part, in count one plaintiffs are focusing on the County's actions, and obviously the County is not a party to this lawsuit. As for the RFP which is the subject of count one, BOR stresses that it was "neither authorized by nor subject to [BOR's] approval." 113) at 25:22. BOR Resp. (doc. Turning to the UMA, over which BOR did have final approval, BOR asserts that it is entitled to summary judgment as to count one because its decision to approve that agreement "was not arbitrary, capricious or otherwise not in accordance with the law." Id. at 9. As the private entity which ultimately was awarded the UMA for the marina, Partners' interests differ from those of the BOR, and their arguments herein reflect those differences. Instead of focusing on plaintiffs' interactions with BOR, Partners focuses on plaintiffs dealings with the County. It first argues that plaintiff Pensus failed to exhaust available County administrative remedies. Similarly, Partners maintains that "the Arizona Court of Appeals has already found that the County followed local procurement procedures[.]" Part. Mot. (doc. 110) at 4:16-17. Next, Partners assert that jurisdiction properly lies in the Court of Federal Claims, not this district court. Finally, Partners claims that they are entitled to summary judgment as to count one because plaintiffs "failed to object to the County's 2005 RFP in a timely manner." at 6:3-4. Id. Importantly, Partners expressly joins in BOR's summary Id. at 1:9-11. judgment motion. -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. Jurisdiction Discussion In responding to plaintiffs' motion for partial summary judgment and in cross-moving for partial summary judgment, BOR strongly implies that subject matter jurisdiction is lacking here. Similarly, presupposing that count one is a "bid protest," Partners assert jurisdiction lies with the Court of Federal Claims - not with this court. Part. Mot.6 (doc. 110) at 5:21. Lack of subject matter jurisdiction is not the first argument which defendants advance on these motions. Consistent with the established principle, that "[f]ederal courts must determine that they have jurisdiction before proceeding to the merits[,]" the court will address this issue first. See Lance v. Coffman, ___ U.S. ___, ___, 127 S.Ct. 1194, 1196, 167 L.Ed.2d 29 (2007) (citation omitted). Indeed, the court must proceed in this way given the Supreme Court's admonition against "`assuming' jurisdiction for the purpose of deciding the merits - the `doctrine of hypothetical jurisdiction.'" See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (citation omitted). Only when it has satisfied itself that it has subject matter jurisdiction can the court consider the parties' respective summary judgment motions, and the other pending motions. That is so because "`[w]ithout jurisdiction the court cannot proceed at all in any cause." Id. (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. "`Jurisdiction is the power to declare the law, and 264 (1868)). when it ceases to exist, the only function remaining to the court is Although styled as a motion for "summary judgment," Part. Mot. (Doc. 110) at 1:2, like plaintiffs, Partners are seeking only partial summary judgment as their motion is directed only at count one. 6 -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 that of announcing the fact and dismissing the cause.'" Id. (quoting McCardle, 7 Wall. at 514). Indicative of those well-settled principles, Rule 12(h)(3) mandates that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3) (emphasis added). The pending summary judgment motions pertain only to count one, wherein plaintiffs allege violations of, inter alia, the FPASA. Plaintiffs do not invoke jurisdiction under that Act, however. Rather, they list three separate jurisdictional bases: (1) 28 U.S.C. 1331 (federal question); (2) 5 U.S.C. 701-706 (the Administrative Procedure Act) ("APA"); and (3) 28 U.S.C. 1361 (the mandamus statute). FAC (doc. 4) at 2, 2. Plaintiffs are seeking declaratory relief pursuant to 28 U.S.C. 2201 and injunctive relief pursuant to 28 U.S.C. 2202, but the FAC does not rely upon either of those statutes as a jurisdictional basis. See id. Defendants' initial subject matter jurisdiction challenges were rather cursory. The BOR contends that neither the FPASA, the Declaratory Judgment Act nor the mandamus statute confer jurisdiction upon this court. Of course, as just shown, plaintiffs are not relying upon either of those first two statutes as a basis for jurisdiction herein. More to the point, BOR accurately states that "[j]urisdiction must come from a source other than the APA." BOR Resp.(doc. 113) at 12:12-13 (citations omitted). For that reason, and disregarding the possibility of federal question jurisdiction, the federal defendants raise the specter that subject matter jurisdiction is lacking here. -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Partners challenges subject matter jurisdiction in a different way.7 Implying without any analysis or discussion that count one is actually a "bid protest," Partners asserts that jurisdiction lies with the Court of Federal Claims pursuant to the Tucker Act, as amended by the Administrative Disputes Resolution Act ("ADRA"), 28 U.S.C. 1491(b). Part. Mot. (doc. 110) at 5:22. Accordingly, Partners properly seek "dismiss[al][,]" id.. at 6:2, as opposed to summary judgment, for lack of subject matter jurisdiction. See California Save Our Streams Council v. Yeutter, 887 F.2d 908, 913 (9th Cir. 1989) (citation omitted) ("Summary judgment is an inappropriate disposition when the district court lacks [subject matter] jurisdiction."); see also Smith v. United States, 1999 WL 33318819, at *1 (D.Ariz. March 11, 1999) ("Although Defendant raises the issue of subject matter jurisdiction in a motion for summary judgment, the court will treat the motion as one suggesting dismissal based on lack of subject matter jurisdiction because the court cannot enter judgment but rather only dismiss the complaint if it lacks subject matter jurisdiction."), aff'd, 1999 WL 793695 (9th Cir. 1999). Plaintiffs' first response is procedural. Plaintiffs contend that because the defendants admitted jurisdiction in their answers, After stating the general premise that "[t]he Federal Court of Claims has . . . Jurisdiction," Partners claim that "venue" is not "proper" in this court. Part. Mot. (doc. 110) at 5:21. "`[V]enue is not jurisdictional[,]'" however. Morales v. Willett, 417 F.Supp.2d 1141, 1142 (C.D.Cal. 2006) (quoting Libby, McNeill & Libby v. City National Bank, 592 F.2d 504, 510 (9th Cir. 1978)). Indeed, "`jurisdiction must be first found over the subject matter and the person before one reaches venue[.]'" Park v. Cardsystems Solutions, Inc., 2006 WL 2917604, at *2 (N.D.Cal. Oct. 11, 2006) (quoting Bookout v. Beck, 354 F.2d 823, 825 (9th Cir. 1965)). Thus, because venue and subject matter jurisdiction are two distinct concepts, they cannot be used interchangeably. The court construes Partners' argument as raising strictly a jurisdictional challenge. 7 - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 they are now "bound" by those "admissions[.]" See Pl. Resp. (doc. 133) at 9:12 (citation omitted). Defendants did expressly admit See Part. Ans. (doc. 14) As explained below, jurisdiction in their respective answers. at 1-2, 2; and BOR Ans. (doc. 42) at 2, 2. however, those "admissions" are insufficient to confer subject matter jurisdiction upon this court, assuming it is otherwise lacking. It is beyond peradventure that "`[t]he jurisdiction of the federal courts . . . is a grant of authority to them by Congress and thus beyond the scope of litigants to confer.'" U.S. Fidelity & Guar. Co. v. Lee Investments LLC, 551 F.Supp.2d 1069, 1079 (E.D.Cal. 2008) (quoting Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167, 60 S.Ct. 153, 84 L.Ed. 167 (1939)). In other words, defendants cannot agree to or admit subject matter jurisdiction absent a Congressional grant of jurisdiction to this court. Second, notwithstanding defendants' admissions, "lack of subject matter jurisdiction is never waived[,]" and indeed "may be raised by the court sua sponte at any juncture." Harrison v. Howmedica Osteonics Corp., 2008 WL 615886, at *1 (D.Ariz. March 3, 2008) (citing Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-595 (9th Cir. 1996)). In light of the foregoing, plaintiffs' argument that defendants cannot challenge jurisdiction because of the "admissions" in their answers, is wholly without merit. Plaintiff's second response to defendants' jurisdictional challenges is that the Tucker Act "only applies to claims for money damages[,]" and they are seeking declaratory and injunctive relief. Pl. Resp. (doc. 122) at 9:18-19 (citations omitted). - 11 Hence, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 plaintiffs reason, subject matter jurisdiction properly lies in this district court. Indeed, plaintiffs go so far as to state that "[t]he Court of Federal Claims `does not have the authority to issue a declaratory judgment.'" Id. at 9:22-23 (quoting Justice v. Lyng, 716 F.Supp. 1567, 1569 (D.Ariz. 1988)). Plaintiffs are conveniently overlooking the fact, however, that the Tucker Act was amended by ADRA in 1996. The ADRA enlarged the jurisdiction of the Court of Federal Claims, as well as expressly authorizing that Court to "award any relief that [it] considers proper, including declaratory and injunctive relief[.]" 28 U.S.C. 1491(b)(2) (West 2006) (emphasis added). Thus, plaintiffs cannot circumvent the jurisdiction of the Court of Federal Claims based upon the nature of the relief which they are seeking. See Advanced Systems Technology, Inc. v. Barrito, 2005 WL 3211394, at *6 (D.D.C. Nov. 1, 2005) (finding that because section 1491(b)(1) of the ADRA allows for awards of declaratory and injunctive relief, the fact that plaintiff sought only such relief did not provide a basis for district court jurisdiction). Moreover, the Tucker Act's 1996 amendment means that plaintiffs' reliance upon cases such as Justice, decided well before that enactment, is misplaced. The APA is the statutory basis for plaintiffs' claim that the BOR's alleged violations of the FPASA are subject to judicial review. The APA provides that in most circumstances, "[a]n action in a court of the United States seeking relief other than money damages . . . shall not be dismissed nor relief therein be denied on the ground that it is against the United States." (West 2007). 5 U.S.C. 702 Citing to the seminal case of Califano v. Sanders, 430 - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the BOR accurately states that the APA does not provide an independent jurisdictional basis for reviewing agency actions. Plaintiffs are also relying upon the federal question statute, 28 U.S.C. 1331, as a jurisdictional basis though. Section 1331 grants district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. 1331 (West 2006). As plaintiffs are quick to point out, the Califano Court explained that section 1331 "confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate." Califano, 430 U.S. at 105; 97 S.Ct. at 984 (emphasis added); see also ANA Intern., Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004) (citation omitted) ("The default rule is that agency actions are reviewable under federal question jurisdiction, pursuant to 28 U.S.C. . . . 1331 and reinforced by the enactment of the . . . APA, even if no statute specifically authorizes judicial review.") After "not[ing] that agency actions are generally reviewable under federal question jurisdiction, pursuant to 28 U.S.C. 1331," the Ninth Circuit in Spencer Enterprises, Inc. v. U.S., 345 F.3d 683 (9th Cir. 2003), offered the following rationale: Even if no statute specifically provides that an agency's decisions are subject to judicial review, the Supreme Court customarily refuse[s] to treat such silence as a denial of authority to [an] aggrieved person to seek appropriate relief in the federal court, . . . and this custom has been reinforced by the enactment of the [APA], which embodies the basic presumption of judicial review to one suffering legal wrong because of agency action, or adversely affected - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 or aggrieved by agency action within the meaning of a relevant statute. Id. at 687-88 (internal quotation marks and citations omitted). foregoing convinces the court that it has subject matter jurisdiction under section 1331, "reinforced by" the APA, see ANA Intern., 393 F.3d at 890, to consider whether BOR acted arbitrarily, capriciously and abused its discretion as the FAC alleges. The court's jurisdictional analysis cannot end here though. That is because the claims herein are against the United States, i.e., the BOR. As a sovereign the United States "is immune from The suit unless it has expressly waived such immunity and consented to be sued." McGuire v. U.S., 550 F.3d 903, 910 (9th Cir. 2008) "Such waiver Id. (internal quotation marks and citation omitted). cannot be implied, but must be unequivocally expressed." (internal quotation marks and citation omitted). Accordingly, even if jurisdiction is proper under section 1331, still, there must be an explicit waiver of sovereign immunity. See id. (internal quotation marks and citation omitted) ("Where a suit has not been consented to by the United States, dismissal of the action is required . . . [because] the existence of such consent is a prerequisite to jurisdiction.") Plaintiffs did not consider this Because a sovereign immunity issue and BOR only alludes to it. waiver of sovereign immunity is an essential part of the court's subject matter jurisdiction in this case, however, the court must carefully consider that issue. A. Waiver of Sovereign Immunity Section 1331 is an undeniably broad jurisdictional grant, but - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 in and of itself that statute is not a waiver of sovereign immunity. Pit River Home and Agr. Co-op Ass'n v. U.S., 30 F.3d 1088, 1098 n.5 (9th Cir. 1994) (citations omitted); see also Hughes v. U.S., 953 F.2d 531, 539 n. 5 (9th Cir. 1992) (citations omitted). Consequently, this court has subject matter jurisdiction under section 1331 only if there is separate statutory waiver of sovereign immunity, which here means returning to the APA. The APA contains a limited waiver of sovereign immunity. "[S]ection 702 of the APA waives sovereign immunity for Plaintiffs' claims if (1) the claims are not for money damages; (2) an adequate remedy for the claims is not available elsewhere; and (3) the claims do not seek relief expressly or impliedly forbidden by another statute." Grant County Black Sands Irr. Dist. v. U.S., 539 F.Supp.2d 1292, 1296 (E.D.Wash. 2008) (citing Tucson Airport Authority v. General Dynamics Corp., 136 F.3d 641, 644 (9th cir. 1998)). Plaintiffs' claims herein satisfy all three prongs of this test, as more fully explained below. 1. "Money Damages" Plaintiffs are not seeking monetary relief in this case; they are seeking declaratory and injunctive relief, as noted earlier. Consequently, there is no dispute that the first element of the APA's limited waiver of sovereign immunity is met here. 2. Adequate Remedy Not Available Elsewhere Partners maintains that the Tucker Act as amended by the ADRA vests exclusive jurisdiction in that Court. Framed in terms of sovereign immunity, if an adequate remedy is available in the Court of Federal Claims under the ADRA, then plaintiffs would not be - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 entitled to rely upon the APA's limited waiver of sovereign immunity. See Fire-Trol Holdings L.L.C. v. U.S. Dep't of Agriculture Forest Service, 2004 WL 5066232, at *4 (D.Ariz. Aug. 13, 2004) (because plaintiff "alleges the violation of a statute or regulation in connection with a proposed procurement, under the ADRA, the Court of Federal Claims ha[d] exclusive jurisdiction[,]" thus "preempt[ing]" the court's 1331 jurisdiction and the APA's waiver of sovereign immunity), aff'd in part, rev'd in part on other grounds without pub'd opinion, 209 Fed. Appx. 625 (9th Cir. 2006). Conversely, if an adequate remedy is not available in the Court of Federal Claims, then the second element necessary to establish a waiver of sovereign immunity under the APA is present here. Whether an "adequate remedy is available" in the Court of Federal Claims necessarily implicates that Court's jurisdiction in the first instance. Section 1491(b)(1) provides in relevant part that the United States Court of Federal Claims: [S]hall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. 28 U.S.C. 1491(b)(1) (West. 2006).8 In arguing the merits, the parties vigorously dispute whether the UMA or the RMA are "procurement" contracts. They did not specifically address the Consideration of whether this action comes within the scope of the ADRA is imperative for the additional reason that "where a case falls under Tucker Act [ADRA] jurisdiction, federal question jurisdiction[,]" which plaintiffs herein are invoking, "cannot serve as an alternative basis for jurisdiction." Marceau v. Blackfeet Housing Authority, 455 F.3d 974, 986 n. 6 (9th Cir. 2006). 8 - 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 "interested party" or "Federal agency" aspects of section 1491(b)(1). For the sake of completeness, the court will address all three factors. a. "Interested Party" A concrete definition for "interested party" under section 1491(b)(1) has "yet [to be] precisely . . . delineated[.]" Phoenix Air Group, Inc. v. United States, 46 Fed.Cl. 90, 102 (Fed. Cl.), appeal dismissed per stipulation, 243 F.3d 555 (Fed. Cir. 2000). "Without an explicit definition, previous Court of Federal Claims decisions have found that, to be an `interested party' under the Tucker Act, a plaintiff must stand in some connection to the procurement, and it must have an economic interest in it." (internal quotation marks and citation omitted). Id. Given this broad interpretation, it is possible to find that plaintiffs Maule-Ffinch and Pensus (the only plaintiffs which count one names), are "interested parties" for purposes of section 1491(b)(1). They stood "in some connection to the procurement" in that, as a marina developer and operator in the area, they wanted to respond to the 2005 RFP (although they believed that section 6.8 precluded them from so doing). Those plaintiffs also had an economic interest in the "procurement," because an award of the UMA to them, rather than to Partners, obviously would have inured to their financial benefit. Under the terms of the Pleasant Harbor lease, Partners maintains that plaintiffs were not qualified bidders because supposedly that lease prohibited plaintiffs from basically operating a competing marina, such as Scorpion Bay. Plaintiffs are correct Immediately that Partners selectively quoted from that lease. - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 following that seemingly prohibitive language, the lease lists the "conditions" under which the lessor was required to permit plaintiffs to engage in a competing marina business. (doc. 26) at 1-2 (citation omitted). Pl. Resp. There is no need at this juncture to become mired down in the discrete issue of whether that lease barred plaintiffs from bidding on the 2005 RFP, especially because Partners did not raise that issue in the context of section 1491(b)(1). For present purposes, the court is hesitant to adopt a strict and narrow view of an "interested party" under that statute. This hesitancy stems in part from how broadly the Court of Federal Claims has construed "interested party." L-3Communications EOTech, Inc. v. United States, 2009 WL 426462 (Fed. Cl. Feb. 18, 2009), is illustrative. There the court "held that protestors had standing to protest the agency action, even though there was no solicitation by the agency for which they could compete." omitted). Id. at *4 (citation That holding is representative of the broad parameters of Thus, the the "interested party" element of section 1491(b)(1). court finds that plaintiffs Maule-Ffinch and Pensus are "interested parties" within the meaning of that statute. b. "Federal Agency" The next jurisdictional prerequisite under the ADRA is a showing that plaintiff "competed in a government-sponsored solicitation, which was issued by a federal agency and not a private party." Blue Water Envt'l, Inc. v. U.S., 60 Fed.Cl. 48, 51 (2004). That is because the Court of Federal Claims "has no authority over non-Federal entities." Id. (internal quotation marks and citation - 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 omitted). Thus, unless the soliciting entity is federal or "acting as an `agent' for a federal entity[,]" jurisdiction under 1491(b)(1) of the ADRA is lacking. See id. Novell, Inc. v. The ADRA does not define "federal agency." U.S., 46 Fed.Cl. 601, 606 n. 3 (2001). However, it "[i]s is well- settled that for purposes of determining Tucker Act jurisdiction, the definition of `agency' in 28 U.S.C. 451 is controlling." Water Envt'l, 60 Fed.Cl. at 51. Blue That statute's definition of agency "`includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest unless context shows that such term was intended to be used in a more limited sense.'" Id. at 51-52 (quoting 28 U.S.C. 451). In count one, plaintiffs allege a "prima face violation of federal procurement law" arising from BOR's "approval of the Proposed UMA, which was based on the illegal 2005 RFP." 4) at 18, 83 and 84. FAC (doc. That RFP allegedly was "illegal" because it "violated the principle of full and open competition reflected in federal procurement law" in several ways. 18, 83. Id. at 17, 80; and at The 2005 RFP was issued by Maricopa County, however. Therefore, on the face of it, the underlying solicitation which forms the basis for count one was not issued by a federal agency under section 451's definition. Nonetheless, the court must consider whether the County was "acting as `agent' for a federal entity[,]" i.e. so as to confer "Federal agency" status upon the County within the meaning of section 1441(b)(1). In Blue Water Envt'l, the court discussed two - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 possible theories which could render a non-federal entity a "Federal agency" with the meaning of that statute "day-to-day supervision" and "purchasing agent[.]" 53. Blue Water Envt'l, 60 Fed. Cl. at 51 and The court in Blue Water Envt'l held that a private contractor, Brookhaven Science Associates ("BSA"), which operated a national laboratory owned by the Department of Energy ("DOE") pursuant to a contract with DOE, was not a "Federal agency" under either theory. Thus, it dismissed the complaint for lack of subject matter jurisdiction. BSA, the private contractor in Blue Water Envt'l, issued a series of RFPs which ultimately resulted in a contract between it and another private entity to perform remediation at the laboratory site. A "disappointed proposer[]" filed suit against the DOE claiming that BSA "illegally, arbitrarily and capriciously . . . review[ed] the proposals under the [RFP], and violated the law by awarding the [clean-up] contract" to another entity. (internal quotation marks omitted). On its motion to dismiss for lack of subject matter jurisdiction under 1491(b)(1), the DOE argued that BSA was not a "Federal agency" within the meaning of that statute. Plaintiff Id. at 50 attempted to establish that the BSA was a "Federal agency" because it was "managing and operating a government facility under the dayto-day supervision of the Federal Government." Id. at 52. Rather than examining that broader alleged supervision, the court narrowed its inquiry to whether "the BSA was an `agency' under a day-to-day supervision theory in connection with the subject procurement." Finding that "DOE was removed from day-to-day supervision of the - 20 Id. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 subcontracting process at issue[,]" and that it did not "control[]" that process, the court held that even if "plaintiff's day-to-day supervision theory [wa]s sufficient to establish `agency' for purposes of the Tucker Act, the plaintiff . . . failed to establish that DOE supervised or directed the subcontracting process in th[at] case." Id. at 52-53. Therefore, the court found that BSA was not a "Federal agency" as section 1491(b)(1) uses that phrase. Several factors weighed in the Blue Water Envt'l court's determination that "BSA acted independently from DOE[.]" Id. at 52. First, the court pointed to the absence of consultations between BSA and DOE in terms of "selecting and awarding the subcontract" at issue. Id. Second, neither DOE's contracting officer nor his staff Id. Third, DOE "participate[d] in the subcontracting process[.]" did not "exercise any control over" that subcontracting process as is evidenced in part by the fact that DOE "did not review the . . . project solicitation or contract[.]" omitted). Id. (internal quotation marks In light of the foregoing, the Blue Water Envt'l court found that "DOE was removed from day-to-day supervision of the subcontracting process[.]" Id. Thus, the court declined to find that BSA was acting as a "federal entity for purposes of the subject procurement." Id. The present case stands in sharp contrast to Blue Water Envt'l. Far from "act[ing] independently" from BOR, BOR had significant involvement in the RFP process which is the basis for count one. See id. The 2005 RFP was preceded by RFPs in 2002 and 2004. Those earlier two RFPs were remarkably similar to the 2005 RFP, but unlike that RFP, the earlier two RFPS never came to fruition. - 21 So even 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 though count one refers only to the 2005 RFP, the court cannot ignore BOR's involvement with the marina project over the years, up through its approval of the Final UMA in 2005. BOR was heavily involved in the decision-making process with respect to the marina project, unlike the private contractor in Blue Water Envt'l. The County did not undertake that process on its own. There was extensive interplay between the County and BOR as to the 2002 RFP. BOR. In 2002, the County submitted at least two draft RFPs to On May 13, 2002, BOR received Admin. Rec., Vol. 1 at 000158. an RFP from the County for BOR's "review and approval[.]" Id. Although BOR approved the May 2002 RFP, on September 25, 2002, BOR received from the County an "amended copy" of the 2002 RFP. Id. A couple of months later, a BOR e-mail shows that BOR questioned whether "the County changed something after our [BOR's] approval." Id. That e-mail further states that BOR would "never have agreed to the language in Article 6.2 Competition, Non-Conclusion [sic] & Conflict of Interest." Id. Other internal BOR communications provide further indica that unlike Blue Water Envt'l, BOR was not "removed from day-to-day supervision" of the RFP process through the years. Envt'l, 60 Fed. Cl. at 52. See Blue Water Although it seems that from the outset BOR viewed the inclusion of the "competition" clause as problematic, by March, 2003, BOR had somewhat allayed its concerns, noting that it "and the County [would] have some control over rates[.]" Admin. Re., Vol. 1 at 000159. Also in March, 2003, BOR "offer[ed]" to the County "to use the services of a review by the National Marina Operator's president[.]" Id. - 22 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Further evidence of the close working relationship between the County and BOR with respect to the marina RFP process is the County's offer to "let [BOR] into the current process[.]" Id. BOR "declined" at that time, but "[if] the bidder [wa]s determined to be valid, [BOR] [was to] be brought into th[e] process for further questioning on his plans and proposal." Id. (emphasis added). BOR's involvement with the RFP process continued in the following years. On August 11, 2004, the County provided BOR with an RFP, asking for BOR's "review" and to "make any necessary comments on behalf of [BOR]." Id. at 255.2. BOR continued to express concern with inclusions of the RFP. "Competition" clause in that BOR noted its "total disagree[ment]" with that language because "not only" does it "violate the competitive bid process, but it also eliminates the owners of commercial operations `near' LPRP." Id. at 255.1. BOR further observed that it "appear[ed] from the contents of the recent RFP that [the County]" did not take "advice" from BOR, among others. Id. The court cannot stress enough that at this juncture, the import of these BOR communications is not in how BOR purportedly viewed the "competition" clause, but BOR's awareness of it in the first place. BOR's awareness that the County was including that clause shows that BOR was quite closely monitoring those RFPs. Indeed the documents quoted above, taken together, give the distinct impression that BOR and the County were engaged in somewhat of a collaborative effort in terms of the RFP process. The County would provide BOR with a draft RRP; BOR would review it and comment and return it to the County for revision. - 23 The process would continue 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 until BOR approved the RFP. In addition to being part of the RFP process, in sharp contrast to BSA which did not "exercise any control" over the subcontracting process in Blue Water Envt'l, here, BOR exercised ultimate control. The RMA vested the prerogative of final approval rights in the BOR. Under the express terms of the RMA, agreements such as the UMA, were "[s]ubject to the final approval of" BOR. 000016. Admin. Rec., Vol. 1 at Another provision of the RMA includes an express retention by BOR of the "right of final approval" over all agreements such as the UMA. Id. at 00018. Additionally, the Administrative Record makes clear that BOR actually exercised the approval authority which it had under the RMA. In a November 14, 2005, letter BOR "indicat[ed] [its] Id. at 000162. In that letter, agreement in principle" to the UMA. BOR advised the County that it had "reviewed [the County's] most recent draft [UMA] between . . . [the] County and [Partners], . . . , for the development of the . . . Marina." Id. at 000160. BOR further stated that "[f]inal review and approval of this contract will be provided after minor corrections are addressed and legal review has been completed." Id. That letter continued, noting that the draft UMA "accurately state[d] that various activities during both the developmental phase and the operational phase of this project will Require [BOR] approval." added). Id. (emphasis BOR "reiterate[d] the importance of abiding by th[o]se Consistent with the foregoing, BOR noted that requirements[.]" Id. the draft UMA needed to be "correct[ed] . . . to add [BOR] as an approving entity" for a certain potential use. - 24 Id. After listing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 "[k]ey areas requiring [BOR] approval[,]" BOR advised the County of BOR's "require[ment]" for advance funding for certain administrative costs. Id. Furthermore, while BOR agreed that as part of the UMA, Partners could be offered a "right of first refusal for the potential use" of certain "Highway . . . frontage[,]" BOR expressly conditioned that approval upon [BOR] developing and executing an Amendment with the County to the [RMA] for th[o]se uses." Id. at 000161. Among other things that amendment would "provide for a long term revenue sharing agreement between" BOR and the County. Id. In the penultimate sentence of that letter, BOR informed the County that "[o]nce legal review is complete," it would "provide . . . formal approval" of the UMA. Id. Lastly, the County was instructed to contact BOR if it Id. had "any further questions." In a second letter, dated December 6, 2005, BOR informed the County that it had "completed [its] final review of the [proposed UMA], including [the County's] most recent changes[.]" Id. at 00162. BOR found the proposed UMA "acceptable" in that form. Id. Again, BOR closed that letter by indicating the if the County had "any further questions[,]" it could contact the BOR staff person named therein. Id. As detailed above, BOR had an integral role in the RFP process; it was not merely rubber-stamping those RFPs. BOR actively participated nearly every step of the way in the process which culminated in the Final UMA. UMA. It reviewed the RFPs and the proposed BOR attempts to distance itself from its final approval authority by stressing that the RMA did not require that it give - 25 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 final approval to the RFPs, only to the UMA itself. In that regard, BOR notes that "[b]oat storage/both wet and dry/boat repair and sales[,]" and "[s]upply stores/including boat equipment" are specifically enumerated in the "pre-approved list of potential public recreational uses for LPRP third party concession agreements[.]" Id. at 000017. Reliance upon the fact that the marina was on the "pre-approved" list of potential uses ignores the reality of BOR's involvement. On the record as presently constituted, BOR's heavy involvement in the RFP process, culminating in approving the Final UMA, is readily apparent. Given its retention of broad "final approval" rights over the UMA, if BOR was not satisfied with any aspect of that Agreement, including the RFP process, it could have withheld final approval; but it did not. Therefore, the court finds that the County was "acting as an `agent' for a federal entity[,]" BOR, within the meaning of section 1491(b)(1). See Blue Water Envt'l, 60 Fed. Cl. at 51. c. Violation in Connection with Procurement Having found the plaintiffs Pensus and Maule-Ffinch are "interested parties" and that the County was acting as an agent for BOR, the next step in analyzing section 1491(b)(1) is whether plaintiffs are claiming "any alleged violation of statute or regulation in connection with a procurement or proposed procurement[]" in count one. See 28 U.S.C. 1491(b)(1). The "in connection with" language, which the Federal Circuit has observed is the "operative phrase," is "very sweeping in scope." RAMCOR Serv. Group, Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999). "[A] statute is `in connection' with a procurement, or a proposed - 26 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 procurement, `[a]s long as [the] statute has a connection to a procurement proposal." Rhinocorps Ltd. Co. v. United States, 2009 WL 320642, at *5 (Fed.Cl. Jan. 28, 2009) (quoting RAMCOR, 185 F.3d at 1289). "The clause ["in connection with"] `does not require an objection to the actual contract procurement.'" Public Warehousing Company K.S.C. v. Defense Supply Center Philadelphia, 489 F.Supp.2d 30, 38 (D.D.C. 2007) (quoting RAMCOR, 185 F.3d at 1289). "Thus, a `statute or regulation in connection with a procurement or a proposed procurement' includes, by definition, a regulation in connection with any stage of the federal contracting acquisition process, including `contract completion and closeout.'" Id. Likewise, "the Federal Circuit [has] held that a statute is `in connection with a procurement' where `an agency's actions under a statute . . . clearly affect the award and performance of a contract.'" Id. (quoting RAMCOR, 185 F.3d at 1289). Phoenix Air Group, supra, is particularly instructive given that the plaintiff therein alleged violations of the Armed Services Procurement Act ("ASPA"), which is "almost identical" to the FPASA the primary basis for count one herein. (citation omitted). See id. at 101, n. 12 The ASPA requires, like other statutes, that "government agencies conducting procurements must obtain full and open competition through the use of competitive procedures in accordance with the requirements of this chapter and the Federal Acquisition Regulation[s] [("FAR")][.]" Id. at 101 (internal quotation marks and citation omitted). After noting the "sweeping scope" of the phrase "in connection with," the Phoenix Air Group court held that allegations that defendant violated the ASPA by - 27 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 "sole-source acquisition of training flight services . . . without any competition[,]" was "sufficient to satisfy the portion of the jurisdictional requirements [of section 1491(b)(1)] relating to a `violation of statute or regulation.'" Id. In the present case, the statutory basis for count one is the FPASA, and related regulations. Quoting several regulations requiring "full and open competition" in "[a]ll procurement transactions[,]" FAC (doc. 4), at 15, 63 and 66 (emphasis in FAC), plaintiffs are seeking a declaration, inter alia, that defendants violated "FPASA by failing to ensure compliance with federal procurement law by [the County], and authorizing the Proposed UMA based on the illegal 2005 RFP[.]" Id. at 26, Prayer for Relief, at 1. Given that the FPASA is "almost identical" to the ASPA, and that plaintiffs herein are relying upon essentially the same "full and open competition" requirements at issue in Phoenix Air Group, the court has little difficulty finding that alleged violations of the FPASA and related regulations satisfy the "portion of the jurisdictional requirements relating to a `violation of a statute or regulation'" under section 1491(b)(1). Group, 46 Fed.Cl. at 101; and at 101 n. 12. That does not end the court's inquiry, however. In fact, in See Phoenix Air some respects that is just the starting point because "[m]uch depends . . . on the meaning of the term `procurement'" - another term which the ADRA does not define. F.Supp.2d at 38. procurement. Public Warehousing, 489 Nor, for that matter, do the FARs define Instead, after the listing for "procurement[,]" the FARs directly refer to the definition of "`acquisition'" therein. - 28 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 See 48 C.R.F. 2.101(b). However, "[t]he Court of Federal Claims has construed `procurement' as used in section 1491(b)(1) to encompass `all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout,' borrowing from Congress's definition of the term procurement at 41 U.S.C. 403(2)." Public Warehousing, 489 F.Supp.2d at 38 (citations and footnote omitted) (emphasis added). Section 403(2) does not define "acquiring," but the FARs are instructive. Section 2.101(b)(2) defines acquisition as follows: the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. 48 C.F.R. 2.101(b)(2) (emphasis added). That FAR further defines Id. "supplies" as "all property except land or interest in land." (emphasis added). Among other things, "supplies" "include[] (but is not limited to) public works, buildings, and facilities; ships, [and] floating equipment . . . ; and the alteration or installation of any of the foregoing." Id. The FARs do not define services. The parties vigorously dispute, albeit in the merits context, whether the RMA and the UMA are procurement contracts. There is no reason to believe that the parties would not advance these same arguments in considering whether plaintiffs can avail themselves of the APA's sovereign immunity waiver. assumption. Plaintiffs are seeking a declaration that defendants violated - 29 The court will proceed on that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 the FPASA by "authorizing the Proposed UMA based on the illegal 2005 RFP." FAC (doc. 4) at 26, Prayer for Relief, at 1 (emphasis Ultimately, plaintiffs are seeking to have this court added). "[s]et aside the [Final] 2005 UMA[.]" Id. at 27, Prayer for Relief, at 8 (emphasis added). Thus, for the moment, the court will confine its analysis to whether the UMA, as opposed to the RMA, is a procurement contract, so as to bring it within the ambit of section 1491(b)(1). BOR contends that the UMA is not a procurement contract; it is a concession contract. Expressly distinguishing concession from procurement contracts, the Court of Federal Claims has explained that the former operates as "a grant of a permit to operate a business and the Government is not committing to pay out government funds or incur monetary liability." Frazier v. United States, 67 Fed.Cl. 56, 59 (2005) (internal quotations and citations omitted), aff'd without pub'd opinion, 186 Fed.Appx. 990 (C.A.Fed. 2006). BOR maintains that the UMA easily fits within that definition. Additionally, BOR reasons that the UMA cannot be deemed a procurement contract because it did not "require[] or obligate[] the expenditure of federal appropriated funds or involve[] the acquisition of property, services, or construction for the federal government or even the County." 18:1. Begging the issue, in their reply plaintiffs simply contend that "BOR's mandatory [D&Ss] require that concessions by nonfederal partners comply with federal law, and make no exceptions for federal procurement law." Pl. Reply (doc. 188) at 5:22-24. - 30 BOR Resp. (doc. 113) at 17:27- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiffs never explain how the UMA can be considered a procurement within the meaning of the applicable statutes, regulations or case law, however. Examination of the UMA shows that it is not a procurement contract. UMA. Neither the County nor BOR acquired property under the Regardless of the definition of "services," the "public at large" acquired the "services" rendered thereunder - not the County and not BOR. Admin. Rec., Vol. 1 at 000167 (stating that the parties were entering into that agreement "to provide dry stack storage, watercraft rentals, boating supply store and other related services to the public at LPRP ").9 Further, under the UMA neither the County nor BOR are committed to paying out any government funds. The funds flowed the opposite way; Partners is obligated to Id., Vol. 1 at pay the County a percentage of gross receipts. 000168- 000170. Likewise, neither BOR nor the County incurred any monetary liability under the UMA. shall "indemnify and Moreover, the UMA mandates that Partners Id., hold harmless" both the County and BOR. Vol. 1, at 000186 at 21(A). The UMA also mandates that Partners as "`additional insureds' under include both the County and BOR all policies of insurance." Id., Vol. 1 at 000188, 21(B)(4)(a). These provisions severely restrict if not avoid altogether the possibility of either the County or BOR incurring any monetary The court realizes that the Administrative Record contains what purports to be the December 6, 2005 "Final Version" of the UMA, and the FAC is quoting from a October 19, 2005 "Draft" version. See FAC, exh. I thereto. The language quoted herein is the same in both versions, however, so for present purposes it matters not that the Administrative Record contains the "Final Version," but the FAC is relying upon a "Draft" version. 9 - 31 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 liability under the UMA. Thus the fundamental hallmarks of a procurement contract are missing from the UMA. Bolstering the conclusion that the UMA is a concession contract is the language which that agreement employs. The UMA is For replete with references to concession in its various forms. example, Partners is referred to throughout as the "CONCESSIONAIRE." See Admin. Rec., Vol. 1 at 000166-000203 "General Provisions" in the UMA (emphasis in original). specifically describe the "Concession Granted[.]" Id., Vol. 1 at 000167, 1. The UMA also specifically refers to BOR's "Directives Id., and Standards ["D&Ss"] as identified in exhibit B" thereto. Vol. 1 at 000167. The "subject" of those particular D&Ss is "Concessions Management by Non-Federal Partners[.]" Id., Vol. 1 at 000150 (emphasis added). Somewhat tellingly, at the same time plaintiffs are strenuously arguing that this is a procurement action, they sometimes refer to the UMA as a "concession agreement." See, e.g., Pl. Reply (doc. 118) at 2:18-19. The court hastens to add that use of the word "concession" or "concessionaire" is not alone dispositive of the nature of the UMA. After all, any agreement could be denoted a "concession agreement." Rather what governs here is the nature of the UMA, which clearly granted Partners permission to develop, operate and maintain a marina at LPRP, without any expenditure of government funds. Having found that the UMA is a concession contract, necessarily, the Court of Federal Claims would not have jurisdiction under section 1491(b)(1) over any claimed statutory or regulatory violations "in connection with" the UMA. - 32 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The court cannot disregard plaintiffs' argument, however, that the RMA, which authorized the County to enter into the UMA, is a procurement contract. Vigorously contending that the RMA is a procurement contract, plaintiffs tacitly assume that so, too, is the UMA. The court has serious reservations as to this line of But again, to be thorough, and because the BOR and reasoning. plaintiffs devoted a fair portion of their briefs to this issue, the court will address it as well. Plaintiffs point to several aspects of the RMA which they believe establish that it is a procurement contract. First, they stress that BOR acquired property from the County under the RMA. The County "transfer[red] to" BOR, inter alia, "any and all incorporeal property interests of said County in the existing park lands, and facilities, including any purported water rights . . . ; and any and all fixtures or improvements in such lands which have not been otherwise acquired by [BOR]." 000007, Art. 4(a) (emphasis added). Admin. Rec., Vol. 1 at Plaintiffs further explain that in accordance with the RMA, "[a]s full and complete consideration" for transfer of those property interests, BOR granted the County, inter alia, "the exclusive right . . . to manage for public recreational uses the lands and waters thereon . . . as Federal LPRP land manager." Art. 4(c)(3). Id., Vol. 1 at 000007, at That consideration also included BOR granting authority to the County to "enter into third party concession agreements[.]" Id., Vol 1 at 000008, Art. 4(c)(4). In addition to the foregoing consideration, BOR paid the County $2.5 million which, from plaintiffs' standpoint, was "in exchange for the County - 33 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 providing services in the form of management of BOR land." Reply (doc. 118) at 5:16-17 (emphasis added). Pl. The County was to "utilize[]" those monies "only in connection with the recreational development of the LPRP wherein [BOR] has Federal land management responsibility[,]" however. 4(c)(6) (emphasis added). Admin. Rec., Vol. 1 at 000008, Art. Therefore, the County was not receiving payment for rendering management services per se. Plaintiffs further rely on one cost-sharing provision of the RMA which they believe demonstrates that it is a procurement contract. In that provision, the County and BOR agreed to "share costs . . . for the development of the LPRP for public recreational uses." Id., Vol. 1 at 000005 at Art. 2(d). Lastly, plaintiffs note that "any development of LPRP lands subject to the third party concession agreement . . . may be completed at [the] . . . County's sole cost and expense" provided BOR has given its prior approval. Id., Vol. 1 at 000011, Art. 6(b). Plaintiffs highlight the fact that that provision further states that "[u]pon termination of th[e] [RMA], title to such facilities shall be vested in [BOR] unless otherwise noted in [BOR]'s approval of the development of such Facilities." Id. Although unstated, evidently it is plaintiffs' position that that possible future vesting of title amounts to BOR acquiring certain facilities pursuant to the RMA. BOR strongly disagrees with plaintiffs' characterization of the RMA as a procurement contract. BOR counters that none of the aspects of the RMA upon which plaintiffs are relying establish that it is a procurement contract. Essentially, it is BOR's position that it did not "acquire" anything from the County pursuant to the - 34 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 RMA. BOR explains that the management right which it granted the County under the RMA was "as partial consideration for the County's property transfer to [BOR]." Fed. Def. Reply (doc. 134) at 7:20. Therefore, despite plaintiffs' assertion to the contrary, BOR maintains that that management right was "not a `service' for which [it] was paying consideration." Id. at 7:21. BOR further asserts that the only "property" which it acquired was land, which is "excluded from federal procurement law." C.F.R. 2.101.) Id. at 7:24 (citing 48 Nor were these monies to provide financial As further support for this argument, assistance to the County. BOR stresses that the RMA's transfer provisions, found in Article 4, are not incorporated in Article 2's recreational management provision, nor in the third-party concession provision of Article 13. BOR also challenges plaintiffs' attempt to cast any of the RMA's cost sharing provisions as an acquisition, and hence a procurement. BOR explains that it did not "acquire" anything under Rather, those cost sharing provisions "merely those provisions. outline the circumstances under which some costs will be shared between [BOR] and the County[]" on a 50-50 basis. 134) at 8:3-4. BOR Reply (doc. Perhaps most notably, in accordance with the RMA, no federal funds or assistance were provided in connection with development of facilities such as the marina complex. The development was undertaken pursuant to the UMA - a third party agreement, with Partners bearing the cost. As to the possible future vesting of title in BOR for "improvements built without federal assistance" under Article 6, - 35 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 which sets forth, inter alia, "LPRP Development Obligations[,]" BOR persuasively asserts that its "ability to potentially obtain improvements to the park under the contingencies noted in [that] article . . . can hardly fall within the definition of acquisition as noted in . . . FAR[,] 48 [C.F.R.] 2.101." 134) at 8:15-18. BOR Reply (doc. Instead, BOR maintains that the RMA is, as its name indicates, nothing more than a management agreement, which is not synonymous with procurement. In disputing whether the RMA is a procurement contract, the parties fail to take into account the entirety of what was transferred to BOR. BOR emphasizes that pursuant to Article 4 of This emphasis is the RMA, the County transferred land to it. understandable because, as previously mentioned, in defining supplies under the FARs, "land or interest in land" is expressly excluded from the definition of "supplies" which may be acquired by contract. See 48 C.F.R. 2.101(b). Therefore, if, as BOR urges, the RMA exclusively involves a transfer of "and or interest in land," then the RMA would not be a procurement, as section 1491(b)(1) uses that term. federal procurement laws. Hence, the RMA would not be subject to Necessarily then, the Court of Federal Claims would lack jurisdiction under section 1491(b)(1) to consider any disputes pertaining thereto. Significantly, however, the County transferred more than just land to the BOR under the RMA. As Article 4 states in its title, it pertains to the "[t]ransfer of [e]xisting [p]ark [f]acilities and [r]elated [p]roperty [i]nterests[.]" Admin. Rec., Vol. 1 at 000007, Art. 4 (emphasis added). Subarticle (a) explicitly states - 36 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 that the "County agrees to transfer to [BOR]. . . and [BOR] accepts . . . , any and all incorporeal property interests of said County in the existing park lands, and facilities[.]" Id., Vol. 1 at 000007, Art. 4(a) (emphasis added). Subsection(c) of that Article 4 indicates that "[a]s full and complete consideration for [the] County's transfer of its property interests as set forth in subarticle (a) above, [BOR] shall provide[]" to the County, inter alia, $2.5 million. and 4(c)(6). Id., Vol. 1 at 000007 and 000008, Arts. 4(c) Under the express terms of the RMA then, the County transferred to BOR not only land interests, but also facilities. Although land interests are exempt from the definition of "supplies" under the FARs, facilities are not, as noted earlier. Additionally, those facilities were obtained through the expenditure

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