ROCKY MOUNTAIN MOBILE MEDICAL v. USA

Filing 53

REPORTED ORDER. Signed by Senior Judge Eric G. Bruggink. (hem) Service on parties made.

In the United States Court of Federal Claims
No. 20-1936C
(Filed: April 5, 2021)
(Re-Filed: April 9, 2021) 1

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ROCKY MOUNTAIN MOBILE MEDICAL,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
and
MEDEXPRESS AMBULANCE SERVICES, INC.,
Intervenor.
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ORDER
Pending in this bid protest is plaintiff’s motion for reconsideration of
the court’s opinion of March 18, 2021 (ECF No. 46), asking the court to
reconsider our decision to deny its motion for judgment on the administrative
record (“MJAR”) as to its claim that the Air Force conducted unequal
exchanges by failing to conduct discussions with Rocky Mountain Mobile
Medical (“RMMM”). Plaintiff also asks the court to reconsider our decision
denying its request for permanent injunctive relief.

This order was originally issued under seal in order to afford the parties an
opportunity to propose redactions of protected material. The parties filed a
joint document on April 8, 2021 (ECF No. 52) notifying the court that the
parties do not propose any redactions. We thus reissue this order without
redactions.
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A motion for reconsideration “must be based on a manifest error of
law or mistake of fact and must show either: (1) that an intervening change
in the controlling law has occurred; (2) that previously unavailable evidence
is now available; or (3) that the motion is necessary to prevent manifest
injustice.” Griswold v. United States, 61 Fed. Cl. 458, 460-61 (2004)
(quoting First Fed. Lincoln Bank v. United States, 60 Fed. Cl. 501, 502
(2004)). The moving party “may not merely reassert arguments that ‘were
previously made and carefully considered by the court.’” Haggart v. United
States, 151 Fed. Cl. 58, 64 (2020) (quoting Haggart v. United States, 133
Fed. Cl. 568, 573 (2017)). Further, a motion for reconsideration is
“unavailing where the moving party ‘raise[s] an issue for the first time that
was available to be litigated earlier in the case.’” Id. at 64 (quoting Martin
v. United States, 101 Fed. Cl. 664, 671 (2011)) (internal citations omitted).
Plaintiff does not allege that there has been a change in controlling
law nor newly discovered evidence warranting reconsideration of the court’s
opinion. Plaintiff argues that reconsideration is necessary to “correct clear
legal errors and to prevent a manifestly unjust result.” Pl.’s Mot. at 12 (ECF.
No. 48 at 12). Plaintiff offers three reasons.
Plaintiff’s first argument takes issue with the opinion’s alleged failure
to address the solicitation’s provision regarding the agency’s right to conduct
“discussions” in this procurement under Federal Acquisition Regulation
(“FAR”) 52.212-1(g). Although the opinion did not directly cite the
solicitation’s incorporation of FAR 52.212-1(g), the opinion addressed
plaintiff’s overarching argument, which was based upon FAR 15.306 and
FAR 15.307. 2 Plaintiff’s motion for reconsideration fails on this first point
because it simply repeats its same argument, which the court carefully
considered and addressed. Haggart, 151 Fed. Cl. at 64.
The focal point of RMMM’s claim that the agency conducted unequal
exchanges in its MJAR was based upon the solicitation’s advisement that the
Air Force may elect to conduct exchanges with “with one, some, or all
offerors” during its evaluation of quotations, and that the agency exercised
To the extent that plaintiff asks the court to address whether the agency’s
incorporation of FAR 52.212-1(g) constitutes an election to conduct
“discussions” under FAR 15.306 and FAR 15.307, this is a new argument
and is thus unavailing in a motion for reconsideration. Haggart, 151 Fed. Cl.
at 64.
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its right to conduct exchanges in the form of discussions. AR 258. Plaintiff’s
argument in its MJAR only mentioned the solicitation’s incorporation of
FAR 52.212-1(g) once, and it did so merely to illustrate its larger point that
the Air Force “elected to exercise its right to conduct exchanges in the form
of discussions, [and thus] it was obliged to comply with both the procedural
requirements of FAR 15.306 and FAR 15.307.” 3 Pl.’s Mem. 31 (ECF. No.
23). The court fully considered whether the Air Force elected to exercise its
right to conduct exchanges in the form of discussions thus obligating it to
comply with the procedural requirements of FAR 15.306 and FAR 15.307,
and we found that “the agency simultaneously disavowed such an intent [of
electing FAR Part 15] by stating that such communications could be with a
limited number of bidders.” Op. at 15 (ECF No. 46). Even if plaintiff’s
argument here was not repetitive, we would still find that plaintiff waived its
right to complain about any inconsistencies with FAR Part 15 in the
solicitation’s instructions regarding discussions or exchanges by failing to
protest the solicitation’s terms prior to bidding. Blue & Gold Fleet, L.P. v.
United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).
Next, RMMM argues that the court failed to harmonize the
solicitation’s incorporation of FAR 52.212-1(g) with section four of the
solicitation, which advised that the agency may conduct “exchanges” with
“with one, some, or all offerors.” AR 258. Plaintiff argues that, because
both provisions pertain to the same subject, i.e., “exchanges” and
“discussions,” the court must harmoniously interpret FAR 52.212-1(g) with
Section 4 of the solicitation. This is the first time that plaintiff has raised this
issue, however, and thus this argument fails as too late. Haggart, 151 Fed.
Cl. at 64.
Even if we considered this argument, it would still fail on waiver
grounds. Although plaintiff attempts to reconcile the solicitation’s usage of
The plaintiff’s MJAR simply states, “The Solicitation similarly
incorporated FAR 52.212-1(g), which also reserved the Agency’s “right to
conduct discussions.” Pl.’s Mem. 31. Again in plaintiff’s reply brief, it cites
to the solicitation’s incorporation of FAR 52.212-1(g) as an illustration of
the solicitation’s advisement regarding exchanges, “the Solicitation advised
offerors that ‘it might conduct exchanges with none, one, some, or all
offerors.’ Def.’s Br. at 20; see also . . . AR Tab 3 at 60 (reserving the
Agency’s ‘right to conduct discussions if later determined by the Contracting
Officer to be necessary’).” Pl.’s Reply 13 (ECF No. 40).
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the word “exchanges” under section four with FAR 52.212-1(g), which
reserved the Air Force’s right to conduct discussions, by stating that
“discussions” is one of three types of exchanges recognized by FAR 15.306,
the fact still remains that this points to a patent ambiguity between the two
solicitation provisions. Thus, plaintiff had the obligation to complain of that
ambiguity prior to bidding. Blue & Gold, 492 F.3d at 1313.
Finally, plaintiff argues that footnote six of our opinion
mischaracterized the GAO decision in Oregon Innov. Prods., B-231767,
1988 WL 227585 (Comp. Gen. Aug. 2, 1988). RMMM asserts that the GAO
opinion was conducted under the “small purchase procedures” of FAR Part
13, formerly set forth in FAR 13.108, rather than the “simplified acquisition
procedures” of FAR 13 from this solicitation. 4 Although it was apparent that
FAR 13 has since been revised and reorganized, citation to Oregon still
stands as an illustration of the point that the GAO has found that it was “not
legally objectionable” for a CO to follow a provision of a solicitation that
reserved the right to conduct discussions with “any or all quoters.” Id.
Additionally, plaintiff argues that reliance on Oregon is improper
because subsequent GAO decisions have reached the opposite conclusion.
GAO opinions are not controlling, however, and thus our citation to a GAO
opinion would not constitute an error of law in any event nor would ruling
contrary to GAO decisions be in error.
In sum, plaintiff’s motion fails to show that the court’s opinion
involved an error of law such that its motion should be granted to prevent a
manifest injustice. “Manifest, as in manifest injustice, is defined as clearly
apparent or obvious,” and a movant “seek[ing] reconsideration on the ground
of manifest injustice . . . cannot prevail unless it demonstrates that any
injustice is apparent to the point of being almost indisputable.” Haddad v.
United States, 2021 WL 115562, at *13-14 (Fed. Cl. Jan. 12, 2021) (quoting
Lucier v. United States, 138 Fed. Cl. 793, 799 (2018)) (internal citations and
quotation marks omitted).
Here, plaintiff’s motion has only presented repetitive arguments that
the court has already considered, new arguments which are unavailing in a
motion for reconsideration, and arguments that rely on decisions which are
Plaintiff explains in its motion that “The FAR Council substantially revised
and reorganized FAR Part 13 by final order, effective February 9, 1998.”
Pl.’s Mot. at 9.
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not controlling and do not have any direct impact on our opinion. We thus
deny plaintiff’s motion for reconsideration.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge

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