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LLC v. Transit Authority of City of Omaha

United States District Court, D. Nebraska

November 20, 2019

BJ'S FLEET WASH, LLC, Plaintiff,
v.
TRANSIT AUTHORITY OF THE CITY OF OMAHA; and GOODWILL INDUSTRIES, INC., Serving Eastern Nebraska and Southwest Iowa a Nonprofit Organization, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge.

         This matter is before the Court on the Motion for Summary Judgment, ECF No. 134, filed by Defendant Transit Authority of the City of Omaha (Metro), and the Motion for Summary Judgment, ECF No. 136, filed by Defendant Goodwill Industries, Inc., Serving Eastern Nebraska and Southwest Iowa a Nonprofit Organization, (Goodwill). For the following reasons, the motions will be granted.

         BACKGROUND

         The parties, in their briefs, provided numbered paragraphs of facts with pinpoint citations to admissible evidence in the record, in compliance with NECivR 56.1[1] and Federal Rule of Civil Procedure 56. Unless otherwise stated, the following facts are those that appear uncontested.

         Metro is a political subdivision established under Nebraska law[2] to provide public transportation to the Omaha metropolitan area. Metro receives federal funding pursuant to the Federal Transit Act, 49 U.S.C. § 5301 et seq. Metro is governed by a five-person board of directors appointed by the Mayor of Omaha.

         Amy Haase is a member of Metro's board of directors. Haase has been an equity owner of the design and architectural firm RDG Planning & Design (RDG) since at least 2002. She works as an urban planner for RDG. She was a partner in 2012 and is currently a principal. RDG did design work for Goodwill from 2009-14. Haase did not provide services to Goodwill, nor did Goodwill ever request services from RDG's urban planning division. RDG has not provided services to Goodwill since 2014.

         Metro maintains a fleet of approximately 150 city buses and maintains covered shelters at approximately fifty stops throughout the Omaha Metropolitan Area. Prior to 2009, Metro employees cleaned, serviced, and maintained the buses and shelters. In 2009, Metro contracted with Goodwill for the cleaning of the bus interiors and covered shelters. After the contract expired in October 2012, Goodwill continued to perform the work on a month-to-month basis for approximately two years.

         In 2013, Metro issued a Request for Competitive Proposals (RFCP) for the cleaning of the city bus interiors and covered shelters (Project 08-13). Metro received four bids for Project 08-13. Goodwill submitted a bid. Plaintiff BJ's Fleet Wash, LLC[3](BFW), whose sole member, Rodney Johnson, is African-American submitted a bid as well. During a board meeting on June 27, 2013, Metro staff recommended to the board of directors that Project 08-13 be awarded to Goodwill. At that meeting, BFW and one other bidder raised an issue with the quality of the work currently being done by Goodwill and expressed concern that disadvantaged business entities were not given credit under the RFCP criteria.

         BFW filed a formal pre-award protest on July 23, 2013. The protest raised two primary complaints and requested that Goodwill be excluded from competing. First, BFW argued that Metro and Goodwill had an organizational conflict of interest because of their ongoing relationship. BFW claimed that because of this relationship, Goodwill set the scope and specifications of the work which eventually came to be Project 08-13, giving Goodwill an unfair advantage. Second, BFW argued that Metro did not follow Federal Transit Administration regulations regarding disadvantaged business entities and small businesses. On July 30, 2013, Metro's Executive Director, Curt Simon, rejected BFW's protest. On August 5, 2013, BFW appealed Simon's rejection to Metro's board of directors. On August 20, 2013, then-chairman, Michael Young, responded to BFW's appeal and informed BFW that the board intended to reject all bids. On September 5, 2013, Metro's board publicly announced that it would reject all bids for Project 08-13 and it intended to issue a new request for proposals. Haase voted in favor of rejecting all bids.

         On April 13, 2015, Metro issued an invitation to bid for cleaning services of its transit centers and bus stop shelters (Project 03-15). Two bids were received for Project 03-15-one from BFW and one from Goodwill. On May 28, 2015, Metro's board awarded BFW the contract for Project 03-15. Haase voted in favor of the award.

         On May 29, 2015, Metro issued an RFP for the cleaning of the transit fleet interiors (Project 08-15). This bid was to be a two-step process. The first step was to be an unpriced bid in order to determine whether a bidder was considered a “responsible bidder.” Whether the bidder was responsible was determined by the bidder's technical proposal, past performance, reputation, financial capabilities, and other criteria. Metro then would allow bidders it considered qualified to submit a priced technical bid.

         Metro received two first-step bids for Project 08-15-one from BFW and one from Goodwill. These bids were reviewed by an evaluation committee composed of three internal representatives: one member from Metro's marketing department, one from its maintenance department, and one from its custodial department; and two external representatives: one from the University of Nebraska Omaha, and one from the Omaha-Council Bluffs Metropolitan Area Planning Agency. The evaluators graded the bids on four weighted criteria: 1) experience and qualifications of the offeror firm and staff to perform the tasks (35%); 2) adequacy of proposed project management and resources to be utilized (25%); 3) adequacy of character, reputation, judgment, and past performance-including references (20%); and 4) adequacy of financial resources and capability of the offeror to fully implement and perform the work (20%). ECF No. 135-20. The evaluation committee determined that BFW was not a qualified bidder-each evaluator citing concern for BFW's financial resources. ECF Nos. 135-14, 135-15, 135- 16, 135-17, 135-18. On July 2, 2015, Metro asked its independent auditor, Hayes & Associates, LLC (Hayes), to perform an independent evaluation of BFW. Hayes informed Metro that it was concerned that BFW lacked financial wherewithal and did not have enough infrastructure, resources, and cash flow to handle the contract. ECF No. 135-19.[4]

         Metro determined that BFW was not qualified to advance to the second step of the bidding process. Metro informed Johnson of BFW's rejection on July 2, 2015. BFW appealed the rejection to Simon on July 7, 2015. On July 8, 2015, Simon denied the appeal. On July 12, 2015, Johnson emailed Simon and other Metro staff withdrawing “any and all complaints or protest[s]” because he “realize[d] that [Project 08-15] may [have been] too big of a bite for [his] company to chew . . . .” ECF No. 135-21. Metro's board of directors awarded Project 08-15 to Goodwill on July 23, 2015. Haase voted in favor of the award.

         On January 25, 2017, BFW and Johnson “individually and in his official capacity” brought a lawsuit against Metro, Goodwill, Haase, and Joseph Lang-a board member for Goodwill and equity owner of RDG. Compl., ECF No. 1. On May 12, 2017, BFW and Johnson filed a fourteen-count Amended Complaint against the same defendants. First Am. Compl., ECF No. 24. On May 22, 2017, Haase and Metro filed a Motion to Dismiss, ECF No. 25, and on May 26, 2017, Lang and Goodwill filed a Motion to Dismiss, ECF No. 32. The Court granted Haase and Metro's Motion and partially granted Lang and Goodwill's Motion. Mem. & Order, ECF No. 48. The Court dismissed ten counts of the Amended Complaint, dismissed Haase and Lang as defendants, and dismissed all claims brought by Johnson “individually and in his official capacity.” Mem. & Order, ECF No. 48. On April 6, 2018, BFW filed a Second Amended Complaint (SAC)[5] in conformity with the Court's prior Order. SAC, ECF No. 80. On August 7, 2019, Metro filed a Motion for Summary Judgment, ECF No. 134, and Goodwill filed a Motion for Summary Judgment, ECF No. 136. Both Defendants seek dismissal of the remaining claims.

         STANDARD OF REVIEW

         “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “the absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to support the nonmoving party's case.” St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

         In response to the moving party's showing, the nonmoving party's burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual dispute” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

         In other words, in deciding “a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at 1042). Otherwise, where the Court finds that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, ” there is no “genuine issue of material fact” for trial and summary ...


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