United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge.
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.
parties, in their briefs, provided numbered paragraphs of
facts with pinpoint citations to admissible evidence in the
record, in compliance with NECivR 56.1 and Federal Rule
of Civil Procedure 56. Unless otherwise stated, the following
facts are those that appear uncontested.
is a political subdivision established under Nebraska
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.
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.
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
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(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.
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.
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.
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
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.
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.
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) 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.
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).
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)).
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 ...