United States Court of Appeals, District of Columbia Circuit
April 7, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-00529) Kevin R. Garden argued
the cause and filed the briefs for appellant.
J. Field, Assistant U.S. Attorney, argued the cause for
federal appellees. With him on the briefs were R. Craig
Lawrence and Alexander D. Shoaibi, Assistant U.S. Attorneys.
S. Swain argued the cause and filed the brief for appellee
City Sightseeing Washington D.C., Inc.
Tatel and Wilkins, Circuit Judges, and Silberman, Senior
Wilkins, Circuit Judge.
National Mall Tours of Washington, Inc. ("National Mall
Tours") competed with City Sightseeing Washington D.C.,
Inc., doing business as "Big Bus Tours, " for a
highly coveted 10-year concession contract with the Park
Service that would allow it to provide guided tours on the
National Mall. Big Bus Tours won the contract. National Mall
Tours sued the U.S. Department of Interior, Secretary Sally
Jewell, the National Park Service, and Director of Park
Service Jonathan Jarvis (collectively, the "Park
Service") in the District Court under the Administrative
Procedure Act and the National Park Service Concessions
Management Improvement Act of 1998, 54 U.S.C. § 101911
et seq. ("Concessions Act"). National Mall
Tours challenged the agency's decision to proceed with
the award of the contract to Big Bus Tours despite the fact
that Big Bus Tours underwent a change of ownership midway
through the award process. National Mall Tours also
challenged the agency's failure to notify two
congressional committees of the proposed concession contract
between the Park Service and Big Bus Tours, as allegedly
required by the Concessions Act. The parties submitted
cross-motions for summary judgment. The District Court ruled
in favor of the Park Service and dismissed the action. This
begin by examining the legal framework governing awards of
concession contracts and then turn to what happened in this
1998 Concessions Act and accompanying Park Service
regulations govern the competitive process by which the
agency solicits proposals and awards concession contracts for
visitor services on the National Mall. Generally, the Park
Service issues a prospectus, bidders (known as
"offerors") respond by submitting proposals, and
the Park Service then selects the winning proposal. The
Concessions Act provides certain minimum standards the Park
Service should follow along the way and affords the agency
discretion to determine whether those standards are met.
Concessions Act instructs the Park Service to select the
offeror with the "best proposal, as determined by the
Secretary through a competitive selection process, " 54
U.S.C. § 101913(1), with reference to various criteria
including statutorily enumerated Principal Selection Factors,
id. §§ 101913(1), (5)(A); see 36
C.F.R. § 51.16. For example, Principal Selection Factor
3 considers the "experience and related background"
of the offeror, and Principal Selection Factor 4 considers
"the financial capability" of the offeror to carry
out its proposal. 54 U.S.C. § 101913(5)(A)(ii)-(iii).
The Park Service must take these and other factors into
account when determining which offeror has the
"best" proposal. Id. § 101913(5)(A).
The Concessions Act also provides certain grounds for which
the Park Service "shall reject, " or not even
"consider" proposals, when the Park Service
"determine[s]" that an offeror fails to meet
certain standards. Id. § 101913(4)(A)-(B).
here, Park Service regulations provide that the agency will
reject a proposal when it "determin[es]" the
proposal is not "responsive." 36 C.F.R. §
51.18. A "responsive proposal" is one that the Park
Service has "determined" "provide[s] the
information required by the prospectus, " among other
things. Id. § 51.3. This does not mean a
proposal lacking any requisite minutiae will necessarily be
rejected. Rather, the agency approaches missing information
with a view toward its materiality - that is, the information
that it considers to be "required by the
Prospectus" is that which is both "expressly
required by the Prospectus and . . . material, as
determined by the Service, to an effective evaluation of
the proposal under the applicable selection factor."
Prospectus, J.A. 311 (emphasis added). Importantly, once
proposals are submitted, offerors are generally prohibited
from amending or supplementing their proposals. See
36 C.F.R. § 51.15(a). Thus, omissions can be fatal if
the Park Service deems them material.
October 2014, the Park Service issued a Prospectus soliciting
proposals for a 10-year concession contract on the National
Mall. The Prospectus called for all proposals to be submitted
by December 12, 2014. At the time, Big Bus Tours served as a
temporary concessioner with its contract set to expire on
March 31, 2015.
companies supplied proposals for the contract - Big Bus
Tours, City Sights D.C., and National Mall Tours. The Park
Service's Evaluation Panel reviewed all three proposals,
scored them, and ultimately recommended that the agency
select Big Bus Tours to be the concessioner on the new
contract. Park Service management approved the
recommendation, agreeing Big Bus Tours had the best proposal.
On March 15, 2015, the agency informed each bidder of its
decision and sent Big Bus Tours a copy of the proposed
contract for its signature.
March 19, after learning it would lose the bid, National Mall
Tours interjected with an email to a Park Service manager:
"Are you aware that Big Bus was sold in February of this
year? Do you know who you are dealing with at this
point?" The email alluded to the recent acquisition by
Exponent Private Equity Partners III LP of 60% of the
outstanding equity of Big Bus Tours Ltd. ("Big Bus
UK"), which was the United Kingdom-based ...