The court's analysis of the caselaw establishes that, if the procurement process is found to be invalid or illegal, one remedy would be to nullify the award, and to reopen the solicitation for the lease award. Another remedy would be to award the contract to the next lowest, responsive bidder, which, in this case, could possibly be Plaintiff, after a reevaluation of the factors, but could also be one of the two other offerors, Uniland or Benderson. A court may order that a contract be awarded to a specific party when "it is clear that, but for the illegal behavior of the agency, the contract would have been awarded to the party asking the court to order the award." Delta Data Systems Corp. v. Webster, 240 U.S. App. D.C. 182, 744 F.2d 197, 204 (D.C.Cir. 1984). It is also well established that "the ultimate grant of a government contract must be left to the discretion of the government agency." Id.
In this case, four offerors competed for the award of the IRS lease. After an analysis of the award factors, WCA was deemed to be the most responsive bidder, and was awarded the lease, while Plaintiff was deemed to be the least responsive offeror. The court finds that, even if WCA were to be disqualified on the basis that the lease award was illegal and invalid, it is not clear that Plaintiff would automatically be entitled to the lease award. Rather, the case law suggests that, following an evaluation in accordance with the relevant statutes and regulations, the next, lowest responsive bidder would be entitled to the award. The fact that neither Uniland nor Benderson has joined the litigation does not change this result, as nothing in the case law suggests that these parties would be automatically disqualified because of their decision not to sue. See Ulstein Maritime, Ltd., supra, at 1058 (court stated that it was "important to note that the order of the district court [was] not an order directing the [defendant] to award the contract to a specific plaintiff" where appellees were the third and fourth lowest bidders on the contract, as it was possible that the second lowest bidder would be awarded the contract).
Accordingly, the court concludes that, while it has the authority to nullify the award of the IRS lease to WCA, it would not award the lease to Plaintiff unless the Plaintiff had first established material illegalities in the procurement process involving the IRS lease, and then was found to be the next, lowest responsive bidder.
However, Defendant also asserts that it is clear that recovery of bid preparation costs only are a legitimate remedy to an aggrieved unsuccessful bidder. See Delta Data Systems Corp. v. Webster, 244 U.S. App. D.C. 39, 755 F.2d 938 (D.C.C. 1985); B.K. Instrument, Inc. v. United States, supra. In Delta Data Systems, supra, the court held that, where the government had already been proceeding under its contract with the successful bidder for a year, it was inappropriate to interrupt the contract, but, rather, the plaintiff should pursue its remedy under the Tucker Act, 28 U.S.C. § 1491, for bid preparation costs. Delta Data Systems Corp., supra, at 939-940. In B.K. Instruments, Inc., supra, the court stated that, if the court should rule in the plaintiff's favor on the merits, but should decide that dismissal of the claims for declaratory or injunctive relief was required because of equitable factors, such as partial performance of the contract, it should allow recovery to the plaintiff for its bid preparation costs only. B.K. Instruments, Inc., supra, at 730-32.
In this case, the contract with WCA has been proceeding since January, 1991, a period of almost four years. Therefore, while, as noted above, the court may legitimately nullify a contract which has been procured based on illegal factors, equitable factors present in this case may result in the plaintiff being permitted a remedy as to recovery of bid preparation costs only. See B.K. Instruments, Inc., supra, at 730 (courts have "considered partial performance of a contract to be an important factor in the denial of equitable relief to frustrated bidders") (citing Keco Industries, Inc. v. Laird, 318 F. Supp. 1361, 1364 (D.D.C. 1970) (given partial performance of a contract, "only very serious government irregularities will support injunctive relief")).
Accordingly, these remedies are all available to the court if Plaintiff is ultimately successful. While, as discussed below, the court is recommending that both Plaintiff's and Defendants' motions for summary judgment be denied, and that, if and when judgment is entered for plaintiff, it will be up to the district judge to fashion appropriate relief, see Latecoere International, Inc. v. United States of America Department of the Navy, 19 F.3d 1342, 1366 (11th Cir. 1994), the court notes that, if it is found that the lease award was predetermined in bad faith, thus going to the integrity of the bidding process and the important public policies implicated in the alleged violations, the district court should not hesitate to nullify the lease award to WCA, and either rebid the entire lease, or award it to the next responsive bidder.
2. Bid Process for IRS Lease
A plaintiff has standing to challenge an agency action as illegal under the Administrative Procedure Act ("APA") if the agency's decision has resulted in injury to the plaintiff, and if the plaintiff is within the "zone of interests" protected by the statute, executive order, or regulation which the agency is alleged to have violated. See Clarke v. Securities Industry Association, 479 U.S. 388, 395, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987). Therefore, to have standing based on its status as a disappointed bidder, Plaintiff must first demonstrate that, as a result of not obtaining the lease award, it suffered an "injury in fact." Gosnell v. Federal Deposit Insurance Corporation, 938 F.2d 372, 375 (2d Cir. 1992). If Plaintiff can establish such an injury, it must further prove that it is "arguably within the zone of interests to be protected or regulated by the relevant statutory scheme." Gosnell, supra at 375. This second test "denies a right of review if a plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Gosnell, supra, at 375 (citing Clarke, supra, at 397). Those statutes under which courts have granted standing to disappointed bidders all contain specific procedural guidelines protecting the bidders' rights. Gosnell, supra, at 376. However, disappointed bidders have also been granted standing in instances where the bids involved government contracts, as a primary reason for granting standing to disappointed bidders for government contracts is that "doing business with the Government has become an important part of American economic life" and that "arbitrary deprivation of government contracts on non-discretionary grounds is a serious wrong." Gosnell, supra, at 377 n. 3 (citing B.K. Instruments, Inc. v. United States, supra, at 719).
Defendants argue that plaintiff is relying upon the provisions of Executive Order 12072, Temporary Reg. D-73 of the Federal Property Management Regulations, which implements the policy established in Executive Order 12072, and the National Historic Preference Act to constitute "relevant statutes" giving rise to standing under the APA, and that these provisions cannot serve as the basis for obtaining APA review. Plaintiff contends that "there are numerous cases upholding the right to seek judicial relief as a result of a biased, predisposed, subjective and unlawful procurement process," and that, as such, Plaintiff clearly has standing to dispute the lease award. See Plaintiff's Response Memorandum, dated December 9, 1994, at p. 3. The court agrees.
In Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859 (D.C.Cir. 1970) (Tamm, J.), the court stated that:
The public interest in preventing the granting of contracts through arbitrary or capricious action can properly be vindicated through a suit brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a "private attorney general."