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Progressive Industries Inc. v. United States

United States Court of Appeals, Federal Circuit

April 30, 2018


          Appeal from the United States Court of Federal Claims in No. 1:14-cv-01225-PEC, Judge Patricia E. Campbell-Smith.

          Mary F. April, McDonald Hopkins, LLC, West Palm Beach, FL, argued for plaintiff-appellant. Also represented by Tyler Lee Mathews, Cleveland, OH.

          Antonia Ramos Soares, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee.

          Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Douglas K. Mickle.

          Before Prost, Chief Judge, Mayer and Reyna, Circuit Judges.

          Prost, Chief Judge.

         Appellant Progressive Industries, Inc. ("Progressive") appeals the decision of the Court of Federal Claims ("Claims Court"), denying Progressive's Motion for Reconsideration of Amended Judgment Pursuant to Rule 59(e) or, in the Alternative, for Relief from Final Judgment Pursuant to Rule 60(b). We affirm.


         This bid protest pertains to the Department of Veterans Affairs's ("VA") procurement of medical gases for certain medical facilities maintained by the VA. In re sponse to the VA's initial solicitation, six offerors submitted proposals. Three companies were eventually determined to be in the competitive range: RAS Enterprises LLC ("RAS"), Irish Oxygen Co. ("Irish"), and Progressive. J.A. 2798.

         On the merits, Progressive won its protest in part. J.A. 2796-832; Progressive Indus., Inc. v. United States, 129 Fed.Cl. 457 (2016). In its October 31 Opinion and Order ("October 31 Order"), [1] the Claims Court found the VA had, among other things, treated the offerors inconsistently when it established the competitive range and that this unequal treatment prejudiced Progressive.

         Despite its initial victory, however, Progressive did not obtain the full result it desired. On November 1, the day after issuing its decision, the Claims Court issued another order ("November 1 Order"). J.A. 2768-69. This order enjoined the VA from awarding the contracts to RAS and Irish, vacated the existing awards to those companies, and directed the Clerk of the Court to enter judgment remanding the case to the VA for appropriate action consistent with the October 31 Order. J.A. 2769. The November 1 Order also stated that "[n]o costs are awarded to plaintiff, " referencing Progressive's prior request for costs and attorney fees. Id. The order further stated that Progressive could file a motion for the court to reconsider its decision regarding attorney fees by December 1, 2016. Id.

         Based on the October 31 and November 1 Orders, judgment was entered in Progressive's favor on November 2, 2016. J.A. 2770. The one-page judgment stated, in relevant part:

IT IS ORDERED AND ADJUDGED this date, pursuant to Rule 58, that the VA is enjoined from awarding the contract to RAS Enterprises, LLC and Irish Oxygen Company, and the VA's decision to award the contract to RAS Enterprises, LLC and Irish Oxygen Company is vacated. This case is remanded to the contracting officer for appropriate action consistent with the court's Opinion and Order of October 31, 2016. No costs.

Id. The judgment also stated: "As to appeal, 60 days from this date, . . . ." Id.

         On November 3, the day after judgment was entered, the VA filed a Motion for Leave to Submit Status Report Regarding Compliance with the Court's Injunction, and, in the Alternative, Emergency Motion to Modify Court's Injunction. J.A. 2771-76. The VA's motion explained the VA's need to continuously supply medical gases and informed the court of its plan to award emergency bridge contracts to RAS and Irish while it resolicited the contract consistent with the Claims Court's opinion. The motion requested that, if the court did not consider the VA's proposed course of action to be consistent with the November 1 Order, the court modify its injunction to permit the VA to continue performance of the current contracts for seven days until the VA could put bridge contracts in place. J.A. 2772.

         The next day, without receiving a response from Progressive, the Claims Court in a November 4 Order granted the VA's motion for leave to file the status report and stated that it "[did] not deem the proposed course of action to be non-compliant." J.A. 2777.

         Later that day, Progressive filed a motion for reconsideration of the November 4 Order, explaining that Progressive could just as easily supply the necessary medical gases if awarded the emergency bridge contracts. J.A. 2778-80. In the same motion, Progressive asked for an opportunity to explain its "entitlement to compensation for the severe economic harm it has suffered as a result of the loss of the opportunity to supply facilities . . . covered by the contracts at issue." J.A. 2780.

         On November 15, the Claims Court denied most of Progressive's motion, but granted the motion to a limited extent. J.A. 2781-83. With regard to Progressive's claim of entitlement to compensation for economic harm, the court explained that the Tucker Act permits the court to "award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs." J.A. 2783 (quoting 28 U.S.C. § 1491(b)(2)). Based on the statute, the court emphasized that it did not have authority to compensate Progressive for lost profits. The court then stated: "To the extent that Progressive wishes to recover costs incurred in connection with its bid protest, plaintiff may file a motion for relief ...

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