Sagam Securite Senegal v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-1138C
(Filed: October 7, 2021)
***************************************
SAGAM SECURITE SENEGAL, *
*
Plaintiff, *
* Postjudgment Motion for Leave to
v. * Intervene; Timeliness; Bid Protest
*
THE UNITED STATES, *
*
Defendant. *
***************************************
Thomas A. Coulter, Washington, DC, for plaintiff.
James W. Poirier, United States Department of Justice, Washington, DC, for defendant.
Robert Nichols, Washington, DC, for putative intervenor.
OPINION AND ORDER
SWEENEY, Senior Judge
In this preaward bid protest now on appeal to the United States Court of Appeals for the
Federal Circuit (“Federal Circuit”), plaintiff SAGAM Sécurité Senegal (“SAGAM”) challenged
the cancellation of a solicitation by the United States Department of State (“State” or “agency”).
The court sustained the protest and entered an injunction in SAGAM’s favor. The contract
awardee under the cancelled solicitation, Torres-SAS Security LLC Joint Venture (“Torres”),
now moves to intervene in the protest. For the reasons set forth below, the court denies Torres’s
motion.
I. BACKGROUND
For approximately thirty-five years, SAGAM has been providing local guard services to
the United States embassy in Dakar, Senegal. State issued Solicitation No. 19AQMM18R0332
for the continuation of these services on April 19, 2019, and amended the solicitation three times.
The awardee would perform contract services for a base year, with the possibility of extending
performance for four option years. Award would go to the lowest price, technically acceptable
proposal.
Three offerors submitted proposals, with only SAGAM and Torres entering into
discussions with the agency once the third offeror had been eliminated. In a second round of
discussions soliciting best and final offers, the contracting officer (“CO”) disclosed specific
elements of SAGAM’s proposal to Torres. State chose Torres as the awardee because of
Torres’s lower price.
SAGAM lodged a protest at the Government Accountability Office (“GAO”) to
challenge the agency’s award decision, alleging that Torres’s price was too low to meet guard
compensation requirements in Senegal. State took corrective action to evaluate the
compensation plans of the offerors. The GAO therefore dismissed SAGAM’s protest as
academic.
Once SAGAM’s first GAO protest had been dismissed, the agency’s legal staff
discovered that the CO had violated the Procurement Integrity Act (“PIA”), 41 U.S.C.
§§ 2101-2107, by disclosing SAGAM’s proposal information to Torres. The CO concluded that
the disclosure had an impact on the procurement and State decided to cancel the solicitation.
Although SAGAM protested the cancellation at the GAO, SAGAM’s second GAO protest was
dismissed as untimely. SAGAM’s protest in this court followed. Torres expressly declined to
seek to intervene.
In its June 25, 2021 decision, the court concluded that State improperly disclosed
portions of SAGAM’s proposal to Torres and then erred when it cancelled the solicitation and
ordered as follows:
[T]he court DIRECTS State to restore this competition to its status
precancellation, ENJOINS State from cancelling Solicitation No.
19AQMM18R0332 and from resoliciting the contract requirement, DIRECTS
State to disqualify Torres as the beneficiary of improperly disclosed information
taken from SAGAM’s proposal, and DIRECTS State to proceed to award the
contract to the remaining offeror in the competitive range if that offeror is
determined to be responsible.
SAGAM Securite Senegal v. United States, No. 21-1138C, 2021 WL 3140559, at *18 (Fed. Cl.
June 25, 2021). Although the decision was filed under seal, these directives were set forth in the
publicly available judgment issued the same day.
Defendant filed a notice of appeal on August 19, 2021. Three weeks later, on September
10, 2021, Torres sought to intervene in the protest by filing a motion in this court. Torres states
that it “wishes to intervene so that its counsel may gain access to protected information under the
Protective Order and participate in the appeal at the Federal Circuit.” Torres’s Mot. 3. Torres
represents that defendant does not oppose the motion to intervene. However, SAGAM opposes
the motion. The motion is fully briefed and ripe for a ruling. 1
II. DISCUSSION
A. Timeliness Requirement
1
Defendant did not respond to Torres’s motion.
-2-
The requirements for intervention are to be construed in favor of intervention. Am. Mar.
Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed. Cir. 1989)). Nonetheless, pursuant to
Rule 24 of the Rules of the United States Court of Federal Claims, only timely motions to
intervene may be granted. “Timeliness is to be determined from all the circumstances,” and is an
issue committed to the court’s discretion. NAACP v. New York, 413 U.S. 345, 366 (1973). As
Torres notes, the court considers three factors when determining whether a motion to intervene is
timely:
(1) the length of time during which the would-be intervenor actually knew or
reasonably should have known of his right to intervene in the case before he
applied to intervene;
(2) whether the prejudice to the rights of existing parties by allowing intervention
outweighs the prejudice to the would-be intervenor by denying intervention[; and]
(3) [the] existence of unusual circumstances militating either for or against a
determination that the application is timely.
Sumitomo Metal Indus., Ltd. v. Babcock & Wilcox Co., 669 F.2d 703, 707 (C.C.P.A. 1982)
(footnotes omitted); see also Bannum, Inc. v. United States, 96 Fed. Cl. 364, 378 (2010)
(applying the Sumitomo factors to a prejudgment motion to intervene in a bid protest (citing
Belton Indus., Inc. v. United States, 6 F.3d 756, 762 (Fed. Cir. 1993))), aff’d, 451 F. App’x 953
(Fed. Cir. 2012).
B. Torres Fails the Timeliness Test
As noted above, SAGAM first protested the cancellation of the solicitation at the GAO.
The public version of the GAO’s decision dismissing SAGAM’s second protest, which describes
the bases of SAGAM’s protest, is dated March 22, 2021. SAGAM Securite Senegal,
B-418583.2, 2021 CPD ¶ 155 (Comp. Gen. Mar. 22, 2021). Torres thus had notice on March 22,
2021, that SAGAM alleged that a PIA violation rendered State’s cancellation of the solicitation
improper.
On March 30, 2021, SAGAM filed its protest in this court. On March 31, 2021, after
being notified of the protest, counsel for Torres informed defendant’s counsel that Torres
decided not to move to intervene. On April 22, 2021, SAGAM filed a redacted complaint, which
clearly outlined its requested relief that Torres be disqualified and that award be made to the only
remaining offeror in this competition. Thus, on April 22, 2021, Torres had notice that it might
be disqualified from the competition, that resolicitation of the requirement might be enjoined,
and that award of the contract might be made to SAGAM. Torres still did not move to intervene
in this protest.
On June 25, 2021, the judgment entered on the public docket of this case disclosed all of
the elements of the injunctive relief awarded SAGAM:
• The United States Department of State (“State”) is directed to restore this
-3-
competition to its status precancellation;
• State is enjoined from cancelling Solicitation No. 19AQMM18R0332 and
from resoliciting the contract requirement;
• State is directed to disqualify Torres as the beneficiary of improperly
disclosed information taken from SAGAM’s proposal; and
• State is directed to proceed to award the contract to the remaining offeror
in the competitive range if that offeror is determined to be responsible.
Judgment, June 25, 2021. Torres again chose not to move to intervene. Rather, it was not until
September 10, 2021, three weeks after defendant filed its notice of appeal, that Torres finally
filed a motion to intervene.
Torres does not dispute that it had notice of this protest from the outset of the litigation in
this court. Torres argues, nevertheless, that “any timeliness concerns should be outweighed by
the two other factors: prejudice and existence of unusual circumstances.” Torres’s Mot. 3. The
court cannot ignore, however, “the length of time during which the would-be intervenor actually
knew or reasonably should have known of his right to intervene in the case before he applied to
intervene.” Sumitomo, 669 F.2d at 707. Here, Torres waited for this protest to be decided, and
then, again, for a notice of appeal to be filed, before applying to become a party to this litigation.
Over five months elapsed between the filing of the complaint and the filing of Torres’s motion to
intervene, which, in a bid protest, is an eternity.
In Belton Industries, Inc., the Federal Circuit affirmed the denial of postjudgment
motions to intervene filed by the countries of Sri Lanka and Peru at the Court of International
Trade, and the description of the prejudicial effect of such untimely filings is instructive:
Both Sri Lanka and Peru were aware of the Court of International Trade
proceedings from their inception. Although their rights to intervene arose when
[the appellees] instituted proceedings in the Court of International Trade, Sri
Lanka and Peru chose to wait nearly two years before seeking to intervene. If the
trial court had allowed Sri Lanka and Peru to intervene, appellees would have
suffered prejudice. Specifically, appellees would have had to defend against two
additional parties and address new issues in a case that had already been decided.
This prejudice outweighs any harm to Sri Lanka and Peru caused by their own
tactical decisions not to appear in the Court of International Trade proceeding.
No unusual circumstances warrant granting the motions.
Both Sri Lanka and Peru were content to sit on the sidelines during this
dispute and let other parties, particularly the United States Government, do the
heavy lifting. They sought to intervene only when they realized, too late, that
these other parties would not do all of their work for them. This court discerns no
abuse of discretion in the Court of International Trade’s weighing of the
-4-
Sumitomo factors or its denial of Sri Lanka’s and Peru’s motions to intervene.
6 F.3d at 762 (citing Sumitomo, 669 F.2d at 707-08). Similarly, Torres made a tactical decision
and sat out this litigation. It waited too long to intervene in this protest and this factor weighs
heavily against its request to intervene.
As far as the extraordinary circumstances factor is concerned, nothing in Torres’s motion
persuades the court that its dilemma is anything but the natural result of a decision to abstain
from litigation in the hope that the court would rule in favor of defendant. Such gambles do not
always pay off, cf. Torres’s Mot. 1 (stating that Torres’s “interests have been impacted by the
Court’s disposal of the case”), but that is hardly extraordinary. Torres asserts, nonetheless, that it
is extraordinary that it will “bear the brunt of [the] State Department’s error,” noting its
disqualification from the procurement of this contract requirement. Id. at 3; see also Torres’s
Reply 2 (contending that “enjoining the cancellation of the solicitation and requiring the
Government to award the contract to Plaintiff present[] unusual circumstances”). But the loss of
an award opportunity because of a decision not to intervene in a bid protest is not unusual–
government errors often lead to an award to the protestor, which is the result here. No
extraordinary circumstance permits Torres to escape the consequences of its own decision not to
intervene in this protest at the outset. 2 The extraordinary circumstances factor, too, weighs
against intervention.
Finally, turning to the weighing of prejudice factor, Torres now asserts that it “will be
hamstrung in supporting the Government’s appeal.” Torres’s Mot. 3; see also Torres’s Reply 2
(stating that Torres “will be prejudiced because its attorneys will not be able to gain access under
the Protective Order” entered in this case). Torres is not significantly prejudiced. It may request
permission to supply an amicus brief to the Federal Circuit, and it may, as it has, apply to
intervene as a party to defendant’s appeal before the Federal Circuit. As for access to protected
information, the court observes that the parties did not request any redactions to the merits
opinion filed under seal in this case; Torres therefore has full access to the court’s analysis of the
CO’s PIA violation, the agency’s irrational corrective action, and the tailoring of injunctive relief
to the specific facts and circumstances of this bid protest. In addition, any prejudice potentially
flowing from Torres’s disqualification is mitigated by defendant’s appeal–the government is
once again carrying Torres’s water by appealing the court’s judgment. The prejudice to Torres
appears to be minimal, if any.
SAGAM, on the other hand, would be forced to litigate against a second, late-arriving
opponent and expend additional resources in doing so. See Pl.’s Opp’n 11 (“SAGAM has
already expended significant time and resources prosecuting this bid protest and this case has
concluded. SAGAM will be substantially prejudiced by the additional time and cost of
2
Torres references one postjudgment intervention in a bid protest decided by this court,
but that intervention involved an effort to obtain an appellate clarification of a jurisdictional
question. See Red River Holdings, LLC v. United States, No. 09-185C, 2009 WL 3423838, at
*1 (Fed. Cl. Oct. 22, 2009) (granting intervention because “trial courts ha[d] not been consistent
in their rulings concerning jurisdiction over protests related to maritime and admiralty
procurements”). There is no such jurisdictional controversy in this case.
-5-
re-litigating this case against Torres . . . .” (citations omitted)). As a general rule, such prejudice
to a party opposing a postjudgment request to intervene outweighs the putative intervenor’s
allegations of prejudice. E.g., E. Mins. Int’l, Inc. v. United States, 168 F.3d 1322 (Fed. Cir.
1998) (table); Belton Indus., Inc., 6 F.3d at 762; Excelsior Ambulance Serv., Inc. v. United
States, 126 Fed. Cl. 69, 72 (2016); Cheyenne-Arapaho Tribes of Indians of Okla. v. United
States, 1 Cl. Ct. 293, 296 (1983); see also Cherokee Nation of Okla. v. United States, 54 Fed. Cl.
116, 119 (2002) (denying tribe’s prejudgment motion to intervene because the tribe initially
refused to be joined in the suit, the prejudice to the existing parties nearing settlement
outweighed the prejudice to the putative intervenor, and there were no extraordinary
circumstances weighing in favor of intervention). Here, too, the prejudice to SAGAM outweighs
the prejudice to Torres; thus, the prejudice factor also weighs against intervention at this late
date.
III. CONCLUSION
Because all of the Sumitomo factors weigh against a postjudgment intervention in these
circumstances, the court DENIES Torres’s motion to intervene. 3
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Senior Judge
3
In its reply brief, Torres suggests that this court has the discretion to permit
intervention “in light of the facts and circumstances of this case.” Torres’s Reply 3-4 (citing
Mitchco Int’l, Inc. v. United States, 149 Fed. Cl. 683, 685 (2020)). In Mitcho International, Inc.,
however, the motion to intervene was filed within two weeks of the filing of the bid protest, and
well before the filing of the administrative record or dispositive briefing; accordingly, the
Sumitomo factors governing untimely motions to intervene were not considered by the court. Id.
at 684-85. In contrast, Torres’s motion is a postjudgment request to intervene. In the court’s
view, it would be an abuse of discretion to ignore the Sumitomo factors and grant Torres’s
untimely motion.
-6-