Technology & Mgmt v. EPA

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TECHNOLOGY & MANAGEMENT
SERVICES, INCORPORATED,
Plaintiff-Appellant,

v.
No. 96-1386
ENVIRONMENTAL PROTECTION AGENCY;
PRC ENVIRONMENTAL MANAGEMENT,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-95-1047-AW)

Argued: October 30, 1996

Decided: February 18, 1997

Before RUSSELL and WIDENER, Circuit Judges, and
BULLOCK, Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard Murray, MURRAY & JACOBS, Alexandria,
Virginia, for Appellant. Charles Joseph Peters, Sr., Assistant United
States Attorney, Baltimore, Maryland, for Appellee EPA; Thomas
Christopher Papson, MCKENNA & CUNEO, L.L.P., Washington,
D.C., for Appellee PRC. ON BRIEF: Raighne Delaney, MURRAY
& JACOBS, Alexandria, Virginia, for Appellant. Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland, for Appellee EPA.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This appeal arises out of an agency contract award decision. The
Environmental Protection Agency (the "EPA") solicited a contract for
administrative and technical support services for its Office of Solid
Waste and Emergency Response ("OSWER"). The EPA awarded the
contract to PRC Environmental Management, Inc. ("PRC"). Alleging
the EPA violated the procurement laws, 41 U.S.C.§ 253b and the
terms of its own solicitation, Technology & Management Services,
Inc. ("TMS")--an unsuccessful bidder for the contract--brought suit
in district court against the EPA and PRC seeking to void the contract
awarded to PRC. The district court granted the EPA (and PRC as
intervenor) summary judgment because a rational basis existed for the
EPA's decision to award PRC the contract. TMS appeals the district
court's decision and order. Finding no error in the judgment of the
court below, we affirm.

In February 1994, the EPA solicited contract bids for administra-
tive and technical support services bids for its OSWER office. The
contract bid invited persons to provide administrative and technical
support services, and to design, develop and deliver technical and pro-
gram training and other transfer activities involved in the national and
international dissemination of technical and technology-based infor-
mation. The bid invitation indicated the Government would evaluate
1) the technical quality, 2) other factors and 3) the overall cost of each
offer. It emphasized, however, that technical quality was paramount
to cost or price.

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By July, the EPA selected three firms, including TMS, to submit
Best and Final Offers ("BAFOs") and respond to interrogatories
regarding potential weaknesses in their original proposals. TMS sub-
mitted its BAFO and responses to the interrogatories accordingly.
Although TMS submitted the lowest BAFO cost proposal of any of
the competing firms ($12,700,985), the EPA assigned it the lowest
technical rating. Considering its poor technical rating, the EPA con-
cluded that TMS' costs were unrealistic and its overall proposal
reflected a lack of experience in the OSWER program. Furthermore,
the Contracting Officer reasoned that TMS' costs were approximately
$2.3 million below the independent government cost estimate (ICGE)
of $15 million, which was based on historical actual costs incurred on
a previous contract for the same type of services. Reasoning that
PRC, the incumbent contractor, offered the best value to the EPA
based on its proposed cost and technical experience, the EPA awarded
PRC the contract in December 1994 for $14,563,288.

After filing a protest with the EPA and being denied reconsidera-
tion, TMS filed suit in district court on April 7, 1994. Its complaint
alleged inter alia that the EPA violated the procurement laws and the
terms of its own solicitation for two reasons. First, TMS maintained
the contracting officer's statement during TMS' post-award debrief-
ing that "the cost of TMS' proposal was not considered because the
technical aspects of the proposal were paramount[ ]" contradicted the
invitation bid. And second, TMS argued that because the EPA failed
to conduct a cost realism study as mandated by ¶ 4 of the invitation
bid, the EPA violated the terms of its own solicitation. Thus, TMS
argues that the EPA erred by not considering TMS' cost proposal
when making the award decision.

Following the principle that when reviewing contract awards,
courts may set aside the awards only if they are arbitrary, capricious,
an abuse of discretion or otherwise not in accordance with law, 5
U.S.C. § 706(2)(A), the district court reviewed the reasonableness of
the EPA granting PRC the contract. Noting that decisions on cost
realism fall squarely within the contracting officer's expertise, the dis-
trict court found that the EPA had not capriciously awarded the con-
tract to PRC and that the EPA's decision was reasonable. The district
court found that the contracting officer did consider TMS' cost but
deemed it unrealistic due to it being significantly lower than the

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IGCE. Thus, the district court granted summary judgment to the EPA
because no issues of material fact existed as to the propriety of the
EPA's decision making process in granting the award.

After carefully reviewing the record, reading the briefs, hearing
oral argument, and giving full consideration to the parties' conten-
tions, we affirm the judgment below of the district court.

AFFIRMED

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