In the United States Court of Federal Claims

No. 20-1936C

(Filed: April 5, 2021)

(Re-Filed: April 9, 2021)1

* * * * * * * * * * * * * * * * * * * * * * * * *

ROCKY MOUNTAIN MOBILE MEDICAL,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

 

and

MEDEXPRESS AMBULANCE SERVICES, INC.,

 

Intervenor.

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ORDER

Pending in this bid protest is plaintiff’s motion for reconsideration of 

the court’s opinion of March 18, 2021 (ECF No. 46), asking the court to 

reconsider our decision to deny its motion for judgment on the administrative 

record (“MJAR”) as to its claim that the Air Force conducted unequal 

exchanges by failing to conduct discussions with Rocky Mountain Mobile 

Medical (“RMMM”). Plaintiff also asks the court to reconsider our decision 

denying its request for permanent injunctive relief. 

1 This order was originally issued under seal in order to afford the parties an 

opportunity to propose redactions of protected material. The parties filed a 

joint document on April 8, 2021 (ECF No. 52) notifying the court that the 

parties do not propose any redactions. We thus reissue this order without 

redactions.
2

A motion for reconsideration “must be based on a manifest error of 

law or mistake of fact and must show either: (1) that an intervening change 

in the controlling law has occurred; (2) that previously unavailable evidence 

is now available; or (3) that the motion is necessary to prevent manifest 

injustice.” Griswold v. United States, 61 Fed. Cl. 458, 460-61 (2004) 

(quoting First Fed. Lincoln Bank v. United States, 60 Fed. Cl. 501, 502 

(2004)). The moving party “may not merely reassert arguments that ‘were 

previously made and carefully considered by the court.’” Haggart v. United 

States, 151 Fed. Cl. 58, 64 (2020) (quoting Haggart v. United States, 133 

Fed. Cl. 568, 573 (2017)). Further, a motion for reconsideration is

“unavailing where the moving party ‘raise[s] an issue for the first time that 

was available to be litigated earlier in the case.’” Id. at 64 (quoting Martin 

v. United States, 101 Fed. Cl. 664, 671 (2011)) (internal citations omitted). 

Plaintiff does not allege that there has been a change in controlling 

law nor newly discovered evidence warranting reconsideration of the court’s 

opinion. Plaintiff argues that reconsideration is necessary to “correct clear 

legal errors and to prevent a manifestly unjust result.” Pl.’s Mot. at 12 (ECF. 

No. 48 at 12). Plaintiff offers three reasons. 

Plaintiff’s first argument takes issue with the opinion’s alleged failure 

to address the solicitation’s provision regarding the agency’s right to conduct 

“discussions” in this procurement under Federal Acquisition Regulation 

(“FAR”) 52.212-1(g). Although the opinion did not directly cite the 

solicitation’s incorporation of FAR 52.212-1(g), the opinion addressed 

plaintiff’s overarching argument, which was based upon FAR 15.306 and 

FAR 15.307.2

 Plaintiff’s motion for reconsideration fails on this first point 

because it simply repeats its same argument, which the court carefully 

considered and addressed. Haggart, 151 Fed. Cl. at 64.

The focal point of RMMM’s claim that the agency conducted unequal 

exchanges in its MJAR was based upon the solicitation’s advisement that the 

Air Force may elect to conduct exchanges with “with one, some, or all 

offerors” during its evaluation of quotations, and that the agency exercised 

2 To the extent that plaintiff asks the court to address whether the agency’s 

incorporation of FAR 52.212-1(g) constitutes an election to conduct 

“discussions” under FAR 15.306 and FAR 15.307, this is a new argument 

and is thus unavailing in a motion for reconsideration. Haggart, 151 Fed. Cl. 

at 64.
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its right to conduct exchanges in the form of discussions. AR 258. Plaintiff’s 

argument in its MJAR only mentioned the solicitation’s incorporation of 

FAR 52.212-1(g) once, and it did so merely to illustrate its larger point that 

the Air Force “elected to exercise its right to conduct exchanges in the form 

of discussions, [and thus] it was obliged to comply with both the procedural 

requirements of FAR 15.306 and FAR 15.307.”3

 Pl.’s Mem. 31 (ECF. No. 

23). The court fully considered whether the Air Force elected to exercise its 

right to conduct exchanges in the form of discussions thus obligating it to 

comply with the procedural requirements of FAR 15.306 and FAR 15.307, 

and we found that “the agency simultaneously disavowed such an intent [of 

electing FAR Part 15] by stating that such communications could be with a 

limited number of bidders.” Op. at 15 (ECF No. 46). Even if plaintiff’s 

argument here was not repetitive, we would still find that plaintiff waived its 

right to complain about any inconsistencies with FAR Part 15 in the 

solicitation’s instructions regarding discussions or exchanges by failing to 

protest the solicitation’s terms prior to bidding. Blue & Gold Fleet, L.P. v. 

United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). 

Next, RMMM argues that the court failed to harmonize the 

solicitation’s incorporation of FAR 52.212-1(g) with section four of the 

solicitation, which advised that the agency may conduct “exchanges” with 

“with one, some, or all offerors.” AR 258. Plaintiff argues that, because 

both provisions pertain to the same subject, i.e., “exchanges” and 

“discussions,” the court must harmoniously interpret FAR 52.212-1(g) with 

Section 4 of the solicitation. This is the first time that plaintiff has raised this 

issue, however, and thus this argument fails as too late. Haggart, 151 Fed. 

Cl. at 64.

Even if we considered this argument, it would still fail on waiver 

grounds. Although plaintiff attempts to reconcile the solicitation’s usage of 

3 The plaintiff’s MJAR simply states, “The Solicitation similarly 

incorporated FAR 52.212-1(g), which also reserved the Agency’s “right to 

conduct discussions.” Pl.’s Mem. 31. Again in plaintiff’s reply brief, it cites 

to the solicitation’s incorporation of FAR 52.212-1(g) as an illustration of 

the solicitation’s advisement regarding exchanges, “the Solicitation advised 

offerors that ‘it might conduct exchanges with none, one, some, or all 

offerors.’ Def.’s Br. at 20; see also . . . AR Tab 3 at 60 (reserving the 

Agency’s ‘right to conduct discussions if later determined by the Contracting 

Officer to be necessary’).” Pl.’s Reply 13 (ECF No. 40). 
4

the word “exchanges” under section four with FAR 52.212-1(g), which 

reserved the Air Force’s right to conduct discussions, by stating that 

“discussions” is one of three types of exchanges recognized by FAR 15.306, 

the fact still remains that this points to a patent ambiguity between the two 

solicitation provisions. Thus, plaintiff had the obligation to complain of that 

ambiguity prior to bidding. Blue & Gold, 492 F.3d at 1313.

Finally, plaintiff argues that footnote six of our opinion 

mischaracterized the GAO decision in Oregon Innov. Prods., B-231767, 

1988 WL 227585 (Comp. Gen. Aug. 2, 1988). RMMM asserts that the GAO 

opinion was conducted under the “small purchase procedures” of FAR Part 

13, formerly set forth in FAR 13.108, rather than the “simplified acquisition 

procedures” of FAR 13 from this solicitation.4

 Although it was apparent that 

FAR 13 has since been revised and reorganized, citation to Oregon still 

stands as an illustration of the point that the GAO has found that it was “not 

legally objectionable” for a CO to follow a provision of a solicitation that 

reserved the right to conduct discussions with “any or all quoters.” Id. 

Additionally, plaintiff argues that reliance on Oregon is improper 

because subsequent GAO decisions have reached the opposite conclusion. 

GAO opinions are not controlling, however, and thus our citation to a GAO 

opinion would not constitute an error of law in any event nor would ruling 

contrary to GAO decisions be in error. 

In sum, plaintiff’s motion fails to show that the court’s opinion 

involved an error of law such that its motion should be granted to prevent a 

manifest injustice. “Manifest, as in manifest injustice, is defined as clearly 

apparent or obvious,” and a movant “seek[ing] reconsideration on the ground 

of manifest injustice . . . cannot prevail unless it demonstrates that any 

injustice is apparent to the point of being almost indisputable.” Haddad v. 

United States, 2021 WL 115562, at *13-14 (Fed. Cl. Jan. 12, 2021) (quoting 

Lucier v. United States, 138 Fed. Cl. 793, 799 (2018)) (internal citations and 

quotation marks omitted). 

Here, plaintiff’s motion has only presented repetitive arguments that 

the court has already considered, new arguments which are unavailing in a 

motion for reconsideration, and arguments that rely on decisions which are 

4 Plaintiff explains in its motion that “The FAR Council substantially revised 

and reorganized FAR Part 13 by final order, effective February 9, 1998.” 

Pl.’s Mot. at 9. 
5

not controlling and do not have any direct impact on our opinion. We thus 

deny plaintiff’s motion for reconsideration. 

s/Eric G. Bruggink 

ERIC G. BRUGGINK

Senior Judge