KLINGE CORPORATION v. USA

Filing 67

PUBLISHED OPINION. Signed by Senior Judge Eric G. Bruggink. (acm)

K L I N G E CORPORATION v. USA

D o c . 67

In the United States Court of Federal Claims
N o . 08-551C (O rig in a lly Issued Under Seal: April 10, 2009) (R e is s u e d : April 27, 2009)1

************************ K L IN G E CORPORATION, Plaintiff, v. T H E UNITED STATES, Defendant, and S E A BOX, INC. In te rv e n o r. ************************ R ic h a rd P. Rector and Seamus Curley, Washington, DC, for plaintiff. C h r is to p h e r L. Krafchek, United States Department of Justice, Civil D ivisio n , Commercial Litigation Branch, Washington, DC, with whom were M ich a e l F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson, D ire c to r, and Kirk Manhardt, Assistant Director, for defendant. Brent Curtis, M a rin e Corps Systems Command, Quantico, VA, of counsel. Robert Farber, Cherry Hill, NJ, for intervenor. Request for reconsideration; bid protest; bid preparation c o s ts ; standing.

This opinion was first issued under seal on April 10, 2009. The p a rties were directed to propose redactions to the opinion on or before April 1 7 , 2009. None were proposed.

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____________ O P IN IO N ____________ B R U G G IN K , Judge. P e n d in g in this bid protest are plaintiff's and defendant's motions for re c o n sid e ra tio n of our opinion of September 12, 2008. That opinion resolved th e second bid protest in this court arising out of the Marine Corps' ("agency") co n tin u in g effort to procure Large Field Refrigeration Systems ("LFRS"). In th e first proceeding, we granted injunctive relief to plaintiff, Klinge Corp. (" K lin g e " ), enjoining the Marine Corps from going forward with its putative a w a rd to intervenor, Sea Box Inc. ("Sea Box"). In this second action, plaintiff c h a lle n g e d the agency's use of a different procurement vehicle to purchase a s m a lle r quantity of LFRSs, once again from Sea Box. In resolving that second a c tio n , we denied the injunctive relief sought by plaintiff, although we ordered r e im b u r se m e n t of plaintiff's bid preparation and proposal costs. P lain tiff 's motion for reconsideration asserts that new information calls in to question our denial of injunctive relief relating to the second procurement. D e f en d a n t's motion asks us to reconsider the award of bid preparation and p ro p o s a l costs to plaintiff, or to clarify that those costs only relate to the s e c o n d procurement. The matter has been fully briefed, and oral argument was h eld on March 10, 2009. For the reasons stated below, both motions are d e n ie d . PROCEDURAL HISTORY 2 T h e Marine Corps' first effort at obtaining LFRSs was through the use o f a Request For Proposals ("RFP") for an indefinite delivery, indefinite q u a n tity ("IDIQ") contract for between 10 and 300 LFRSs. See Klinge Corp. v . United States, 82 Fed. Cl. 127 (2008) ("Klinge I"). We held in Klinge I that S e a Box could not receive the award because the agency's failure to disqualify
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The facts are drawn from our prior opinions and from the ad m in istra tiv e records prepared in connection with both procurements. In a d d itio n , the court permitted the parties to supplement the administrative re c o rd in connection with plaintiff's motion for reconsideration both prior to a n d during oral argument. 2

it for non-compliance with the Trade Agreements Act ("TAA"), 19 U.S.C. §§ 2 5 0 1 et seq. (2006), was arbitrary and not in accordance with law. 82 Fed. Cl. a t 137-38. The action was dismissed, and plaintiff was later awarded attorney fees. On July 31, 2008, plaintiff filed a new complaint. In the interim, the a g e n c y had elected to obtain twenty-five LFRSs from the General Services A d m in is tra tio n Federal Supply Schedule ("GSA FSS") using a Request for Q u o ta tio n s ("RFQ"). See Klinge v. United States, 83 Fed. Cl. 773 (2008) (" K lin g e II"). Plaintiff was ineligible to compete because it was not on the F S S . Plaintiff therefore sought an injunction on the grounds that the agency h a d improperly cancelled the RFP and was using the RFQ to steer work to the in te rv e n o r. In our September 12, 2008, opinion, we denied injunctive relief. It was im p o rta n t to the result that plaintiff did not have standing to challenge the RFQ b e c au s e it was ineligible for an award under the FSS. We agreed with plaintiff th a t the follow-on contract would not have occurred but for the cancellation o f the award to Sea Box and but for the agency's mistaken belief that Klinge w a s ineligible for award under the RFP. We nevertheless held that the error d id not implicate the integrity of the RFQ and hence did not warrant injunctive re lie f . See id. at 780. We concluded that the limit of plaintiff's standing to c h a lle n g e the RFQ was the opportunity to show that the agency's action re f lec ted something approaching bad faith or something otherwise seriously u n d e rm in in g the integrity of the procurement. We ultimately found no e v id e n c e of that. Instead, we awarded the alternative relief requested by p l a in t if f ­ bid preparation and proposal costs. In denying injunctive relief, we took into account the fact that one of th e potential awardees under the RFQ was Charleston Marine Containers Inc. (" C M C I" ). CMCI is a schedule contractor but it did not yet have an LFRS on th e schedule. Klinge had applied to have its refrigeration unit added to C M C I' s offerings on the FSS, so the possibility existed that Klinge might o b t a in benefits as a subcontractor under the RFQ. During the pendency of K lin g e II, defendant considered it a possibility that CMCI would be awarded t h e contract as it appeared to offer the best value under the RFQ. On D e c em b e r 12, 2008, however, the agency awarded an order for twenty-five L F R S s to Sea Box under a Blanket Purchase Agreement ("BPA"). At that tim e , CMCI was not able to offer an LFRS because Klinge's equipment had n o t yet been added to CMCI's FSS offerings. 3

D e f en d a n t filed its motion for reconsideration on December 18, 2008, c o n te stin g the award to plaintiff of bid preparation and proposal costs to the e x te n t they arise out of the original RFP. Defendant argues that the award of in ju n c tiv e relief in Klinge I precludes the monetary relief awarded in Klinge II, at least to the extent it relates to the first procurement. Plaintiff contends th a t the law permits the award of both injunctive and monetary relief. Plaintiff filed its motion for reconsideration on December 23, 2008, a ss e rtin g that information it recently obtained calls into question the factual b a sis of our denial of injunctive relief in Klinge II. Plaintiff asserts that the a g e n cy's inaccurate market research should be "the straw that breaks the c a m e l's back to support a finding by the Court that the agency's determination th a t Klinge's proposal under the RFP was non-compliant . . . was pretextual a n d designed to ensure the award of the contract to Sea Box." Pl.'s Mot. for R e c o n s. at 8. Plaintiff further claims that the December 12, 2008, award of the c o n tra c t to Sea Box was an unjustified sole source award and a violation of F ed era l Acquisition Regulation ("FAR") Subparts 8.405-6 and 8.405-1(c)(1). D e f en d a n t contends, however, that the agency satisfied the surveying re q u ire m e n ts of FAR Subpart 8.405-1(c)(1) and that there is no evidence of p re tex t. A brief review of the agency's market research and surveying efforts a s set forth in the Administrative Record ("AR") is provided below. BACKGROUND In his declaration of August 22, 2008, the Contracting Officer ("CO") T ere n ce McGinn, explains the efforts that he and Program Manager ("PM"), M ic h a el Gallagher, undertook after the court's decision instructing the agency th a t the award under the RFP to Sea Box could not stand. According to the C O , the agency opted in favor of attempting to use the GSA FSS because it o f f e re d the advantage of speed, at least in connection with an initial, smaller o rd e r, and it obviated concerns about TAA compliance. Mr. Gallagher provided a supplemental declaration on February 4, 2 0 0 9 . In it, he explains that in doing market research, he began with the data h e had accumulated prior to the decision in 2007 to utilize an RFP. During his 2 0 0 7 market research, Mr. Gallagher visited the production facilities of a n u m b e r of contractors potentially capable of producing LFRSs. At that time, n o n e of these contractors had an LFRS on the GSA schedule. Nevertheless, th re e of the vendors­ AAR Mobility Systems ("AAR"), CMCI, and Sea Box­ 4

in d ic a te d to Mr. Gallagher that "if the Marine Corps were going to be p ro c u rin g LFRS via GSA, they intended to get [an] LFRS on a GSA schedule c o n tra c t." AR Tab 18. When Mr. Gallagher revisited the question of procuring LFRSs in June 2 0 0 8 , he "conducted follow-up market research." Id. He provides no details a s to what that follow-up research entailed, although defendant points to re f ere n c es in the administrative record regarding the agency's search of e le c tro n ic databases available to it through GSA to find the two separate, c o n s titu e n t components of an LFRS. See AR Tabs 22-24. It is undisputed th a t CMCI, Sea Box, and AAR are all schedule contractors. The agency se a rc h e d the relevant Special Item Number ("SIN") on the GSA schedule (6 1 7 -2 ), "Purchase of Container Systems," which is a catch all category that inclu d es container systems. See AR Tab 25. Tab 25 of the AR, which the c o u rt allowed defendant to supplement during oral argument, is a snapshot of th is schedule as of March 10, 2009. Tab 25 as supplemented shows AAR as a schedule contractor offering items under SIN 617-2.3 Tab 22 indicates that A A R offers both containers and refrigeration units. F ro m this research, as supplemented by his prior field visits, Mr. G allag h er produced an updated table of vendors. In it, AAR and Sea Box are b o th labeled as on the schedule and capable of offering a "viable solution." Id. C M C I was shown on the schedule as not capable of offering a solution. Mr. G a lla g h e r states that this was a mistake he cannot explain. Instead, he c o n c lu d e s that an accurate depiction would have shown CMCI as a viable o p tio n as well. The conclusion of the agency's market research, therefore, was th a t at least three entities­ Sea Box, CMCI, and AAR­ were capable of o f f e rin g a "viable solution" through the FSS.

Plaintiff contends that this information cannot be used to prove what A A R was offering in June 2008. Defendant responds that the submission it w a s allowed to offer at oral argument demonstrates that AAR has been on the G S A schedule with respect to SIN 617-2 since August 9, 2004. Plaintiff, h o w e v e r , points out that the master contract can be, and frequently is, am ended. 5

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D IS C U S S IO N I. Plaintiff's Motion for Reconsideration T h e new information plaintiff offers in its motion for reconsideration is that AAR does not have and never did have an LFRS on the GSA schedule. T h is is supported by email correspondence between Heinrich Klinge and A rth u r Breithhaupt, AAR's Vice President of Sales and Marketing. Mr. B re ith a u p t recites in his email dated November 21, 2008, "as to whether AAR M o b ility Systems was or is on the GSA schedule for the 20' ISO Refrigerated C o n tain er, the answer is no." Pl.'s Mot. for Reconsideration, Attach. B. If A A R was not in fact on the schedule with respect to LFRSs, then according to p la in tif f , there were, at most, only two vendors that were capable of r e s p o n d i n g to an RFQ for LFRSs and not three as purportedly required by F A R 8.405-1(c)(1). Plaintiff asserts that this is a demonstration of both pretext b y the agency against Klinge and a violation of procurement law. We will a n a lyz e first plaintiff's argument that the government's actions were a v io latio n of procurement law and, second, that the procurement was pretextual. A . Was the Procurement a Violation of Law? P la in tif f requests that we permanently enjoin the agency from accepting p e rf o rm a n c e from Sea Box of the recently awarded RFQ because the new ev id en ce reveals that AAR did not offer an LFRS on its schedule and therefore th re e contractors were not capable of bidding on the RFQ. According to p la in tif f , this is a violation of FAR 8.405-1(c)(1). FAR Subpart 8.405-1(c)(1) p ro v id e s that, before placing an order on the FSS for purchases of the size c o n tem p late d here, "an ordering activity shall consider reasonably available in f o rm a tio n . . . by surveying at least three schedule contractors through the G S A Advantage! on line shopping service . . . ." The parties fundamentally disagree on what is meant by the surveying req u irem en ts set forth in FAR 8.405-1(c)(1). Plaintiff contends that an award m a d e under an RFQ when three contractors are not capable of bidding on the s o lic ita tio n violates the FAR. Applicable procurement regulations, it contends, re q u ire the agency to satisfy itself through accurate surveying that at least three c o n tra c to rs who were capable of making offers had LFRSs on their schedule.

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D ef en d an t contends that FAR Subpart 8.405-1(c)(1) does not require th e agency to locate any particular number of vendors actually capable of o f f e rin g the item sought. Instead, according to defendant, the FAR requires a more general survey of the marketplace, for the purpose of ensuring full and f a ir competition. Defendant contends that it satisfied the surveying r e q u ire m e n ts of FAR 8.405-1(c)(1) when the agency conducted market re se a rc h in 2007 and found that at least three entities­ Sea Box, CMCI, and A A R ­ were capable of offering a viable solution through the FSS. Most im p o rta n t from the government's perspective, however, is that when the time c a m e to solicit, the agency sent notices via GSA's online procurement system ("G S A e-Buy online") to all vendors offering items under SIN 617-2. SIN 6 1 7 -2 is a list of items which covers many different types of containers. On th e date of oral argument, over sixty vendors were listed as offering items c o v e re d under SIN 617-2. This GSA e-Buy online solicitation, the g o v e rn m e n t contends, satisfied surveying requirements and ensured full and f a ir competition pursuant to FAR 8.405-1(c)(1). Defendant also argues that plaintiff does not have standing to challenge th e current procurement because Klinge was incapable of responding to the R F Q . We consider the jurisdictional issue of standing first. T h e Tucker Act gives the court jurisdiction over a claim by "an in te re ste d party objecting to . . . the award of a contract or any alleged v io la tio n of statute or regulation in connection with a procurement . . . ." 28 U .S .C . § 1491(b)(1). An interested party is defined in accordance with the C o m p e titio n in Contracting Act ("CICA") as a protester who is an "actual or p ro s p e c tiv e bidder or offeror whose direct economic interest would be affected b y the award of the contract or by failure to award the contract." 31 U.S.C. § 3 5 5 1 (2 )(A ). A subcontractor is not an interested party, as it is not considered to be an actual or prospective bidder. See Eagle Design & Mgmt. v. United S ta te s, 62 Fed. Cl. 106, 108 (2004). As plaintiff concedes, it was not eligible to compete on its own under the FSS RFQ. Instead, its interest is as a potential subcontractor to CMCI, w h ic h is a contractor on the schedule.4 Plaintiff contends that it has standing

As of the date of oral argument, March 10, 2009, Klinge still had not b e e n added to the GSA schedule as a subcontractor to CMCI and CMCI th e re f o re did not offer a viable option on the schedule. Plaintiff was added to 7

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b e c au s e an RFQ could not have been successfully issued in compliance with th e regulations. According to plaintiff, the agency would have been unable to justify use of a sole source award under FAR 8.405-6, and would therefore h a v e had to utilize the original RFP, for which plaintiff had submitted a bid. P la in tif f cites the Federal Circuit's treatment of plaintiffs in Distributed S o l u tio n s , Inc. v. United States, as an example of a more generous view of stan d in g in the context of a procurement. 539 F.3d 1340 (Fed. Cir. 2008). In D is tr ib u te d Solutions, plaintiff contractors challenged the government's d e c is io n to task a single contractor with the responsibility of awarding s u b c o n tra c ts under the contract, in effect circumventing federal procurement la w s . Id. The Federal Circuit determined that plaintiffs were interested parties p u rsu a n t to 28 U.S.C. § 1491(b)(1) because they were prospective bidders with a direct economic interest in the proposed procurement, as opposed to "mere `d is a p p o i n t e d subcontractors' without standing." Id. at 1344-45. Plaintiffs h a d submitted qualifying proposals in response to the agency's Request for In f o rm a tio n ("RFI") and were prepared to submit bids upon the issuance of an R F Q or an RFP. The Federal Circuit concluded that plaintiffs had standing a n d were denied the opportunity to compete when the government decided, a f te r issuing the RFI, to "forego the direct competitive process of p ro c u re m e n t," which, the court reiterated, begins with the process for d e t e r m i n i n g a need for property or services (such as an RFI). Id. at 1345 (c itin g 41 U.S.C. § 403(2)). The facts in Distributed Solutions are materially different from the facts o f this case, however. Plaintiffs in Distributed Solutions sought the o p p o rtu n ity to respond to an RFQ or RFP in order to submit qualifying bids on th e ir own behalf. The error in that procurement was cutting off the rights of q u a lif ie d potential bidders. Unlike the complainants in Distributed Solutions, K lin g e could not submit a qualifying proposal on its own behalf, and the a g e n cy's implementation of the RFQ process did not limit competition or e x c lu d e contractors. This means that plaintiff's primary contention­ that the way the agency w e n t about the procurement violated applicable regulations­ would appear to b e outside the scope of plaintiff's standing. Only a vendor capable of resp o n d in g to the RFQ could complain that the applicable regulations were

the GSA schedule as CMCI's subcontractor two days later, on March 12, 2009. 8

m isa p p lied . The alleged misapplication here was the failure to document a ju s tif ic a tio n in accordance with FAR 8.405-6 to forego the survey re q u ire m e n ts of FAR 8.405-1(c)(1). Here, the presumptive beneficiaries w o u ld be vendors prequalified for the FSS RFQ. That would leave plaintiff o u t. Nevertheless, during oral argument, plaintiff clarified its argument that it has standing to argue illegality despite not being on the FSS. If plaintiff is c o rre c t in its view of FAR 8.405-1(c)(1), then the agency would have had to m a k e a justification under FAR 8.405-6 to use limited sources. Plaintiff s u g g e sts that the agency would have been unable to meet the requirements of F A R 8.405-6, and thus it would be forced back into the use of the RFP, for w h ic h plaintiff would be qualified to compete. It is unnecessary to resolve which of the parties' interpretations of FAR 8 .4 0 5 -1 (c )(1 ) is correct. Even if we agreed with plaintiff, we would decline to follow it into the thicket of FAR 8.405-6. In order to establish prejudice, p lain tiff would have to eliminate a series of possible rationales made available to the agency there: that only one source is capable of responding due to the u n iq u e or specialized nature of the work; that the new work is a logical followo n to a prior procurement; or that an urgent and compelling need exists. See F A R 8.405-6(b). The current state of the record does not permit an e x a m in a tio n of these issues, nor should it. They are far too attenuated. The c o u rt would be drawn into collateral questions which would require extensive f a ctu a l inquiry and which would ultimately be impossible to answer with any c e rta in ty. In short, we limit plaintiff's standing to the argument that the a g e n c y chose to use an RFQ instead of an RFP simply as a pretext, either to a v o id giving the contract to Klinge or to funnel the work to Sea Box. Plaintiff d o e s not have standing to challenge the validity of the RFQ in any other c o n te x t. There is an additional reason for our conclusion. During the second p ro te s t , the issue that features so prominently here­ the alleged violation of F A R 8.405(c)(1)­ was not raised. It is no answer for plaintiff to respond that it did not know that AAR should not have been counted toward the minimum n u m b e r of potential vendors. The court was informed at the time that, a lth o u g h CMCI had not been qualified to offer an LFRS on its schedule, that w a s about to change. It was anticipated that CMCI would succeed in s u p p le m e n tin g its schedule with Klinge's equipment. Plaintiff apparently was w illin g to take a chance on getting part of the work as a subcontractor. In 9

o th e r words, plaintiff had every reason to know at that time that CMCI, the o th e r vendor relied on by Mr. Gallagher to offer a "viable solution," was in f a c t not capable of offering an LFRS. In short, plaintiff had the opportunity p rio r to Klinge II to raise this same argument. We consider it waived. B. Was the Procurement Pretextual? W e will assume, arguendo, that plaintiff is correct in its assertion that th e agency did not comply with applicable procurement regulations in the c u rre n t RFQ. The narrow question remains, then, whether this alleged nonc o m p l ia n c e establishes pretext. We do not believe it does. In Klinge II, we set o u t what we viewed to be the relevant inquiry: We agree that something short of bad faith can be sufficient to c a ll into question the cancellation of a procurement, see, e.g., S h ie ld s Enterprises, Inc. v. United States, 28 Fed. Cl. 615, 6242 5 (considering whether the cancellation lacked a reasonable b a sis ); Coastal Corp. v. United States, 6 Cl. Ct. 337, 343-44 (1 9 8 4 ) (applying arbitrary, capricious, not in accordance with la w standard), although it is our observation that the cases a c tu a lly granting relief appear to involve the exercise of bad f a ith . And in this case it is clear that the decision not to pursue a n award with Klinge cannot have been reasonable. It was p r e d i c a t e d on a mistake of both law and fact, namely that K lin g e ' s explanation of its compliance with the TAA was a m o d if ic a tio n and not a clarification of its proposal. The mistake was also, more likely than not, prejudicial. T h e CO makes plain that, because he assumed Klinge was not e lig ib le for award, proceeding with the RFP would have meant in v itin g a new round of modifications from all bidders. In that s c e n ario , resorting to a FSS task order makes sense. The real q u e s tio n is whether the appropriate remedy is to enjoin the FSS tas k order award. As we explain above, there is no reason to th in k that integrity of the second procurement is undermined by th e mistaken "cancellation" of the first. We believe the mistake, a lth o u g h probably prejudicial, was understandable and innocent.

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T h e se circumstances do not warrant the extraordinary5 relief of e n jo in in g an otherwise unimpeached procurement. Klinge II, 83 Fed. Cl. at 779-80. The basic facts surrounding the use of the RFQ in the current p ro c u re m e n t were available to the court at the time of Klinge II. What plaintiff c u rre n tly asserts as new evidence is that Mr. Gallagher's assumption that three v e n d o rs were capable of offering an LFRS was, in fact, wrong because AAR d id not offer an LFRS on the schedule. As stated in Klinge II above, however, pretext or bad faith involves m o re than mere error. The agency apparently believed it did not have to find th re e vendors actually capable of supplying a completely integrated LFRS. T h e re is no reason to conclude, therefore, that even if the agency knew only o n e or two vendors could respond to the RFQ, it was acting against Klinge on p re te x tu a l grounds or that it was attempting to favor Sea Box. We take at face value Mr. Gallagher's and Mr. McGinn's statements th a t AAR, CMCI and Sea Box were capable of offering a "viable solution" on th e FSS. At the time Mr. Gallagher's notes from his site visits were compiled in 2007, there would have been no reason to fabricate a rationale for avoiding a n award to Klinge. We also take at face value Mr. Gallagher's statement that th e GSA e-Buy online notice was used as a way to expand, rather than to limit, in te re st in the solicitation. That would not have happened if the RFQ was o rc h e stra te d to funnel work to Sea Box. Even if AAR should not have been listed as capable of responding to an RFQ, we conclude that there is in s u f f ic ie n t evidence of bad faith or that the integrity of the procurement p ro c e s s was impaired to warrant the extraordinary remedy of enjoining the p ro c u re m e n t. As plaintiff lacks standing to request the court's reconsideration o f the current procurement on any other ground, plaintiff's motion is denied. II. Defendant's Motion for Reconsideration D e f en d a n t's motion for reconsideration is premised on an alleged error o f law in granting plaintiff both injunctive relief and bid preparation costs re la tin g to Klinge I. Defendant contends that "[a] successful plaintiff in a bid

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Baird Corp v. United States, 1 Cl. Ct. 662, 664 (1983). 11

p ro te st may receive its bid and proposal preparation costs or injunctive relief, b u t not both." Def.'s Mot. for Recons. at 3. Defendant is concerned that p lain tiff "will have obtained a double-recovery in that it will receive both m o n e ta ry relief and the opportunity to have its proposal considered as a subc o n tra c to r to CMCI" if we award it bid preparation costs in conjunction with th e RFP. Id. at 2. In the alternative, defendant seeks a clarification by the c o u rt that our September 12, 2008, award of bid preparation costs to plaintiff are in relation to costs incurred for Klinge II and not Klinge I. A t the outset, we can clarify that our intent in Klinge II was, indeed, to a w a rd bid preparation costs flowing from plaintiff's participation in the RFP p ro c e ss , the subject of Klinge I. In addition, we note that the relevant statutory lang u ag e­ "[t]he courts may award any relief that the court considers proper, in c lu d in g declaratory and injunctive relief except that any monetary relief shall b e limited to bid preparation and proposal costs," 28 U.S.C. § 1491(b)(2)­ d o e s not explicitly limit a protestor to either injunctive or monetary relief. Defendant relies on Beta Analytics Int'l, Inc. v. United States, 75 Fed. C l. 155 (2007), to support its position. In Beta Analytics, the plaintiff c o rp o ra tio n sought bid preparation and proposal costs in a post-award bid p ro tes t action after the court had determined that defendant acted arbitrarily a n d capriciously in awarding a contract to the intervenor. 75 Fed. Cl. at 155. T h e court determined that plaintiff was entitled to almost all bid preparation a n d proposal costs sought but then considered whether an award of bid p r e p a r a tio n and proposal costs could be obviated in a post-award bid protest c o n te x t by the availability of injunctive relief. See id. at 159. The court noted th a t "[e]ven in a post-award context, injunctive relief may often be crafted to p ro v id e for the reevaluation of submitted proposals," which it held would then " e lim in a te the basis for an award of bid preparation and proposal costs" as the v ic tim of the arbitrary and capricious government action would be given a " s u b s ta n tia l chance to receive the award." Id. (internal citations omitted). This analysis is not inconsistent with our grant of bid preparation costs h e re . Although we granted injunctive relief in Klinge I, by the time of Klinge II, it was plain that defendant had made the injunctive relief irrelevant, at least i n s o f a r as plaintiff's real interests were concerned, namely, having a chance a t award of a contract. Although we held that the agency had the legal right to use a different procurement vehicle, the effect on plaintiff was that it no lo n g e r had a chance at an award.

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A s plaintiff points out, recent decisions of this court make clear that in ju n c t iv e and monetary relief are not mutually exclusive. In CNA Corp. v. U n ite d States, 83 Fed. Cl. 1 (2008), the court denied defendant's motion to s trik e plaintiff's application for bid preparation and proposal costs after it had p re v io u s ly granted plaintiff injunctive relief in a post-award bid protest. The c o u rt analyzed the relevant statutes and concluded that: . . . this court has discretion to fashion awards that include a m i x tu re of injunctive relief and bid preparation and proposal c o sts . The responsibility and discretion afforded to the court has b e e n amended and broadened since this court's protest ju ris d ic tio n was defined earlier in the Tucker Act, 28 U.S.C. § 1 4 9 1 (1994) . The most sweeping changes came when Congress p a ss e d the Administrative Dispute Resolution Act of 1996 (A D R A ), Pub. L. No. 104-320, 110 Stat. 3870 (1996). The A D R A expanded the Tucker Act to provide the United States C o u rt of Federal Claims and United States District Courts c o n c u rre n t jurisdiction to hear bid protests, and it gave both c o u rts discretion to fashion appropriate awards. 28 U.S.C. § 1 4 9 1 (b )(1 )-(2 ) (2000). The ADRA stated: "To afford relief in s u c h an action, the courts may award any relief that the court c o n sid e rs proper, including declaratory and injunctive relief e x c e p t that any monetary relief shall be limited to bid p rep ara tio n and proposal costs." Pub. L. No. 104-320, §12(a), 1 1 0 Stat. 3870, 3974 . . . . Id . at 10. See also Alabama Aircraft Industries, Inc.- Birmingham v. United S t a te s , 85 Fed. Cl. 558 (2009). In short, we consider the award of bid preparation and proposal costs a n appropriate remedy under the circumstances. We therefore deny d e f e n d a n t' s motion for reconsideration and confirm the award of bid p r e p a r a tio n costs.

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C O N C L U S IO N F o r the reasons stated above, both parties' motions for reconsideration a re denied. The parties have previously stipulated that if bid preparation costs a risin g from the original procurement are properly awardable, they amount to $ 5 0 ,2 1 9 .1 9 . Accordingly, the clerk is directed to enter judgment for bid p re p a ra tio n costs to plaintiff in the amount of $50,219.19. s/Eric G. Bruggink ERIC G. BRUGGINK Judge

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