from the United States Court of Federal Claims in No.
1:14-cv-01225-PEC, Judge Patricia E. Campbell-Smith.
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.
represented by Chad A. Readler, Robert E. Kirschman, Jr.,
Douglas K. Mickle.
Prost, Chief Judge, Mayer and Reyna, Circuit Judges.
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.
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.
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"),  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.
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.
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
Id. The judgment also stated: "As to appeal, 60
days from this date, . . . ." Id.
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.
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.
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.
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