In the United States Court of Federal Claims
No. 20-972C
(Filed November 12, 2020)
NOT FOR PUBLICATION
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AGC BISHOP, a Joint *
Venture, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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ORDER
For the reasons stated on the record during the November 9, 2020 status
conference, the government’s cross-motion for judgment on the administrative
record, ECF No. 21, is GRANTED, and plaintiff ’s motions to supplement the
administrative record and for judgment on the administrative record, ECF Nos. 19
& 20, are DENIED. In summary, plaintiff AGC Bishop, a joint venture between
Access General Contracting, Inc. (AGC) and Bishop Inc., was found by the Small
Business Administration (SBA) not to be eligible for a U.S. Navy roofing contract.
Admin. R. (AR) 491. Competition for the contract was limited to small businesses
certified under section 8(a) of the Small Business Act, 15 U.S.C. § 637(a)(1), which
have a bona fide place of business within the geographical boundaries serviced by
the SBA’s San Diego District office. AR 1, 486–87.
The SBA properly found that AGC, the 8(a) Business Development program
participant, had not established a bona fide place of business prior to the date that
plaintiff submitted its initial offer. Contrary to the arguments of plaintiff, although
it employed a joint venture to bid on an apparently consolidated contract, 15 U.S.C.
§ 644(e)(4)(B)(ii) does not allow it to use Bishop’s office to satisfy the geographic
limitation---because this requirement must be met by the 8(a) participant, not the
joint venture, see 13 C.F.R. §§ 124.3, 124.507(c)(2), and because a geographic
preference does not involve any “capabilities” of an offeror. And with the definition
of “bona fide place of business” requiring a regularly-maintained office with at least
one full-time employee, and not counting “construction trailers or other temporary
construction sites,” 13 C.F.R. § 124.3, plaintiff is incorrect in arguing that the
effective date of the AGC district office may be backdated to some earlier time when
that firm conducted other business within the geographic limits. For this reason,
its motion to supplement the administrative record with a contract awarded to AGC
in September 2016 is DENIED, as consideration of such work is not necessary for
effective judicial review of the protested decision. Cf. Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d 1374, 1379–81 (Fed. Cir. 2009) (permitting supplementation
only when necessary to avoid frustrating effective judicial review). †
Under the applicable regulation, AGC needed to establish that it had “a bona
fide place of business within [the specific geographic] area prior to submitting its
offer for the procurement,” 13 C.F.R. § 124.507(c)(2)(iv), and this was to be
determined “as of the date the Participant submitted its initial offer which includes
price,” 13 C.F.R. § 124.507(b)(5). Plaintiff ’s initial offer with a price was submitted
on July 16, 2019, see AR 207–337, but it had yet to maintain its office within the
relevant geographic area---having only submitted a lease application that same day,
AR 742–44. Thus, it was not arbitrary for the SBA to determine that the
geographic requirement was not met. For these reasons, and as more fully
explained during the November 9, 2020 status conference, the government’s cross-
motion for judgment on the administrative record is GRANTED and plaintiff ’s
motion for judgment on the administrative record is DENIED. The Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
† The government’s motion to strike plaintiff ’s references to the AGC contract, see
ECF No. 22 at 5, is DENIED as unnecessary and unwarranted, as the Court may
simply ignore the references to extra-record material.
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