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2009 Procurement Review--Protests



Contents

Successful GAO Protests

Court of Federal Claims

Court of Appeals for the Federal Circuit

SBA Office of Hearings and Appeals

Introduction

Timeliness/Standing

Jurisdiction/Standing

Defective Solicitations

Evaluations

Responsiveness

Lack of Meaningful Discussions

Sole Source

Mitigation Plan

Faulty Evaluations

Miscellaneous

Supplementation of Record

Organizational Conflicts of Interest

Late/Expired Offers

Price Realism Evaluation

Sole Source

Bid/Proposal/Protest Costs

 

Bid/Proposal/Protest Costs

Discovery/Procedure

OMB Circular A-76

Automatic Stay

Purchase Orders

Successful GAO Protests

Introduction

This year, the GAO published 38 decisions sustaining protests on the merits, as well as six decisions awarding costs to successful protesters. 

Defective Solicitations

Critical Process Filtration protested the terms of six solicitations because the agency did not list a product's salient features to allow offers of other than the specified brand name. The agency countered that it was using simplified acquisition procedures. That argument worked in five of the solicitations, but the protester won the sixth because the total estimated quantity exceeded the simplified acquisition threshold. The agency argued unsuccessfully that each of its orders would be less than the threshold, but the GAO said the agency could not split orders simply to avoid using full and open competition.

SMARTnet won its protest because of a solicitation requirement that exceeded the agency's minimum needs.

PWC Logistics Services Co. prevailed because of defective solicitation terms regarding the evaluation scheme.

In TMI Management Systems, the GAO found that an agency's misclassification of a procurement in its announcement on the FedBizOpps website was inconsistent with the requirement to obtain full and open competition.

Lack of Meaningful Discussions

In  Tiger Truck, the agency failed to conduct meaningful discussion and failed to follow correct procedures for products identified as non-compliant with the Trade Agreements Act.

American K-9 Detection Services won its protest because, in taking corrective action in response to a prior protest, the agency did not engage in meaningful discussions.

Ashbury International Group won its protest not only because the agency failed to conduct meaningful discussions but also because it failed to conduct required tests on the awardee's submittal, and instead simply accepted the awardee's assurances that its product would meet the specifications.

Flawed Evaluations 

The GAO sustained a protest by Master Lock because the Contracting Officer and the Source Selection Official improperly raised the awardee's evaluation scores in the socioeconomic and JWOD evaluation factors from the "poor" rating given by the source evaluation panel to "neutral." The GAO concluded the agency had, in effect, ignored these two evaluation factors simply because the awardee was a small business, which violated the evaluation scheme set forth in the solicitation.

The GAO sustained Arc-Tech's protest because the agency excluded its proposal from the competitive range without evaluating its cost and without any documentation showing the proposal was technically unacceptable.

Honeywell Technology Solutions won prevailed because the agency's Past Performance evaluators were unreasonable in relying on a contract that was too small to be considered relevant. 

ACCESS Systems won its protest because the agency's evaluators did not attempt to justify a task order award to a higher priced offeror.

The GAO sustained Carahsoft's protest because the agency issued a delivery order in response to a proposal that failed to meet one of the minimum technical requirements of the solicitation's specification.

Engineering & Management Integration won its protest because the agency had rejected its proposal for failing to identify (as required) the percentage of its proposed staffers that were certified, when it had provided the number of staffers that were certified (and only a trivial effort would have been required to calculate the percentage from the data it had provided).

The GAO's decision granting the protest of AINS, Inc., is interesting because it goes into much more depth and detail than the GAO normally is willing to undertake in analyzing the protester's proposal and the agency's flawed evaluation of it.

Public Communications Services won its GAO protest against a flawed evaluation that did not treat offerors equally in a solicitation for a no-cost contract to provide telephone services to detainees. 

In a decision originally made in September 2008, but just now published, the GAO sustained the protest of Radiation Oncology Group because the agency permitted the awardee to submit proposal revisions after the deadline for receipt of proposals and failed to document the bases for its evaluation.

Northrop Grumman Information Technology won in part because the agency awarded differing proposals the same score even though the solicitation stated that they would be evaluated on "the extent to which" they exceeded a solicitation requirement and because the agency failed to evaluate the protester's proposed staffing in certain evaluation subfactors as required by the solicitation.

In a rare slam dunk, T-C Transcription won its GAO protest because the VA mis-evaluated its technical proposal in so many ways that the GAO just cited some "examples" of the agency's problems.

In  Caddell , the GAO concluded the procuring agency had no basis for concluding, as required by Security Act, that an offeror had the requisite experience performing services “similar in complexity, type of construction and value to the project being bid,” as required by the Security Act, 22 U.S.C. § 4852(c)(2)(D).

The GAO sustained the protest of The S. M. Stoller Corp. because the agency allowed the winning offeror to propose an approach that did not strictly comply with the PWS requirements, without alerting other offerors that such alternative approaches might be considered.

Humana Military Healthcare Services won its protest because the agency's evaluation unreasonably failed to fully recognize and reasonably account for the likely cost savings associated with protester's record of obtaining network provider discounts from its established network in the region where the contract would be performed.

In Health Net Federal Services, the GAO found a multitude of prejudicial errors in the procurement, including flawed past performance, price realism, and staffing risk evaluations, as well as the appearance of an unfair advantage because a former high level government official with access to sensitive information had helped the awardee prepare its proposal.

The Port of Bellingham won its protest because the agency's evaluation of the awardee's proposed pier location lacked a rational basis.

The Analysis Group won its protest because the agency (i) permitted the successful offeror to improve its offer through discussion without providing the protester a similar opportunity and (ii) failed to consider the successful offeror's "impaired objectivity" organizational conflict of interest. 

The GAO sustained the protests of Navistar Defense and BAE Systems against the Army's award to Oshkosh for the production of the family of medium tactical vehicles because of the lack of a basis in the record for the past performance evaluation and an improper risk evaluation of existing production capabilities.

The GAO sustained the protest of Coastal Environments because the agency did not include any but the highest technically ranked, highest priced proposals in its tradeoff analysis, even though lower priced proposals were judged technically acceptable and low risk.

LIS, Inc. won its protest against a flawed best-value analysis lacking in documentation supporting its conclusions.

After sustaining Velos' original protest in 2008, the GAO subsequently found the required reevaluation unreasonable because the Source Selection Official had (i) ignored the technical evaluation panel on one issue in favor of the opinion of a consultant who had only reviewed the response to one discussion question rather than evaluating the proposals as a whole and (ii) downgraded Velos' performance risk solely on the basis of the date of the D&B report it had submitted.

Organizational Conflicts of Interest

L-3 Services won its GAO protest because the Air Force improperly concluded the awardee had neither "biased ground rules" nor "unequal access to information" organizational conflicts of interest.

The Analysis Group won its protest, in part, because the agency failed to consider the successful offeror's "impaired objectivity" organizational conflict of interest.

Defective Solicitations

The GAO sustained TFab Manufacturing's protest against a solicitation's requirements concerning the applicability of the "Limitations on Subcontracting" clause.

Sole Source Issues

Mission Critical Solutions won its protest against a sole source award because  the agency made the award without considering whether it could obtain competition from two or more HUBZone small businesses as required by the HUBZone statute, the provisions of which the GAO recognized as "mandatory."  Interestingly, the SBA fought against the protester's position in the protest (so the GAO decided against the SBA's interpretation). On the SBA's request for reconsideration, the GAO reaffirmed its decision in the Mission Critical Solutions protest that HUBZone program set-asides are mandatory when the statutory conditions are met. However, shortly thereafter, the OMB issued a memorandum and then the Office of Legal Counsel of the Department of Justice issued its own memorandum concluding the GAO's position was incorrect and directing executive agencies to disregard it.

Major Contracting Services "won" its protest against a brief sole-source extension. The agency had decided to recompete its requirements instead of exercising the full original contract option because the contractor had been determined not to be an SDVOSBC as it had represented when bidding for the contract. Therefore, the Government announced it was extending the original contract for only four months pursuant to the "Option to Extend Services" clause (FAR 52.217-9) while it conducted the recompetition. Major Contracting Services protested that the Government should have conducted a new solicitation even for that four-month extension. In its decision, the GAO agreed because (i) the four-month extension option had not been evaluated at the time of the original procurement, (ii) the extension, therefore, could only be justified under FAR Part 6 as a sole-source extension, and (iii) the agency's delay in making a decision to re-compete had created the urgency that it said justified the extension. However, since the GAO's decision did not come until two weeks before both the extension and the recompetition would be complete, all the protester won was its costs of pursuing the protest.

The GAO sustained the protest of RBC Bearings against a sole source contract award because the agency's lack of advance planning created the situation.

OMB Circular A-76

Rosemary Livingston  involved an OMB A-76 public-private competition in which the agency inadequately documented,  and made inconsistent statements, concerning the tender's shortcomings.

The GAO sustained another protest because the agency failed to reasonably consider whether agency tender's material and supply costs were realistic.

The GAO sustained the protest of Frank A. Bloomer--Agency Tender Official in an A-76 public-private competition because the agency unreasonably : (i) accepted the private-sector offeror’s revised fringe benefit ratios in its cost realism analysis; (ii) accepted the private-sector offeror’s unsupported assumption that the firm could perform a significant portion of the workload 10 percent more efficiently; and (iii) allowed the private-sector offeror to omit the labor cost associated with the material supply function from its cost proposal, and these errors prejudiced the protester.

In Bruce Bancroft--Agency Tender Official, the lack of agency documentation supporting its conclusion that a staffing plan was adequate made for a successful protest on that grounds.

Cancellation of Solicitation

In OSC Solutions, the GAO found that  cancellation of an RFQ and issuance of orders on a sole-source basis to a non-profit agency under the authority of the Javits-Wagner-O'Day Act was improper because the acquired items were not on the procurement list maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled.

Purchase Orders

The GAO sustained a protest against the issuance of a purchase order to an FSS contractor for items that were not included on its FSS contract list.

Protest Costs

Pond Security Group prevailed in its application for costs at the GAO based upon its protest of a defect in a solicitation despite the fact that its subsequent proposal later was determined to be noncompliant. The GAO said the award of costs in such protests is not dependent on post-protest events in the competition. 

In Public Communications Services, Inc., B-400058.4-Costs (June 25, 2009) , the GAO recommended the  reimbursement of costs for pursuing protest plus the costs of pursuing the claim for costs). 

In Commercial Design Group, Inc.--Costs, B-400923.3  (June 10, 2009), the GAO granted a request for reimbursement of protest costs where the agency unreasonably delayed in taking corrective action in face of clearly meritorious protest concerning the the insufficiency of resumes submitted by awardee.

In Alsalam Aircraft Co., the GAO awarded costs on a protest of an FMS procurement where the agency delayed taking corrective action on a meritorious protest until after filing the agency report.    

 

Court of Federal Claims

 

Timeliness/Standing/Jurisdiction 

In Rhinocorps, the Court of Federal Claims ruled on a preliminary skirmish in an incumbent small business's challenge of the Air Force's decision not to re-compete its small-business, set-aside contract in favor of adding essentially the same work to an ongoing contract being performed by a large business. The court held that the plaintiff's challenge to the adequacy of the Government's D&F supporting the decision not to re-compete was sufficient to survive a motion to dismiss. In doing so, the court considered the import of the Federal Circuit's recent decision in the Distributed Solutions case concerning what constitutes a "procurement" that can be protested.

Subsequently, the court found Rhinocorps had standing to continue its protest despite the fact that the company did not bid on the protested solicitation because the protest had been pending since well before the solicitation was issued and the protester claimed the solicitation was issued as a pretext to keep it from being awarded a follow-on contract. However, eventually Rhinocorps lost on the merits (see discussion under "miscellaneous" below.

Red River Holdings won its post-award protest at the Court of Federal Claims because of a defective evaluation, but the winner got to retain the contract for the base period because of national security needs, so Red River received both partial equitable relief and the right to recover its proposal costs. The court spent quite a bit of space analyzing whether it had jurisdiction because the contract was a maritime contract which raised the issue whether even the protest should be under the exclusive admiralty jurisdiction of a federal district court.

The court dismissed part of Unisys' protest because it was a challenge to a solicitation term untimely filed after the time that quotes were due.

In Taylor Consultants, the plaintiff had been determined to be other than small by the SBA after originally being awarded a contract and then submitted a complicated, rapid-fire salvo of letters and emails denoted as protests of the subsequent award to another firm and contract claims for possible wrongful termination of its contract. Basically, the court found the plaintiff lacked standing on its protests and stayed its contract actions alleging violations of the Trade Secrets Act, the Procurement Integrity Act, and the Contract Disputes Act in order to allow the plaintiff the opportunity to submit proper claims to the Contracting Officer.

In the Phillip Ozdemir bid protest, the court decided it had jurisdiction under 28 U.S.C. 1491(b)(1) to hear a protest that a new DOE agency had refused to consider plaintiff's concept paper after having solicited such papers. The Government had argued there was no jurisdiction because there was no "procurement."

Medical Development International, Inc. Government Healthcare Services lost its pre-award protest against its exclusion from the competitive range. It argued that the competitive range had not been established until after the date stated in the solicitation to which prices must remain firm and that, therefore, no rational price determination could have taken place. The court noted that while such a situation was not optimal, it could be addressed as the competition proceeded. The interesting aspect of the case, however, is the court's reasoning that the protester had standing. The court saw the protest as neither fish (a pre-award protest of a solicitation) nor fowl (a post-award protest), but held that denying a protester standing in this situation "could have the frustrating result of depriving [the protester] completely of any possibility of judicial relief."  

In Alatech Healthcare, the court the precedent of the CAFC in the Distributed Solutions case and held that the Government's involvement in a procurement by its prime contractor was sufficient to give the court bid protest jurisdiction.

In Government Technical Services, the court held that the Government's failure to exercise an option under an ID/IQ contract did not establish bid protest jurisdiction in the court.

Faulty Evaluations

The court awarded Ashbritt a declaratory judgment and a permanent injunction on its post-award protest because of serious errors by the agency in the price evaluation and because the agency treated offerors unequally during discussions by giving one offeror significantly more information and opportunities to improve its proposal. The court ordered the agency to "reprocure" certain items. Subsequently, at the agency's request, the court clarified its use of the term "reprocure" in its original decision granting the protest and ordering the agency to reprocure certain items. The court stated as follows: "The Court used the word 'reprocure' in its broadest sense to permit Defendant to effect a remedy of the procurement errors at any stage in the reopened procurement process that the agency deems appropriate. Defendant has asked whether the Corps could reopen discussions and evaluate revised proposals or whether it must issue a new solicitation. Reopening discussions and proceeding from that point in the reprocurement effort will comply with the Court’s order, so long as the agency corrects the errors identified in the opinion. As this Court emphasized, the agency has discretion in taking corrective action, and 'it is not for this Court to dictate the particulars of each step the agency should take to remedy what transpired.' "

Blackwater Lodge & Training Center lost its post-award protest, but Judge Wheeler certainly gave the protester's complaints against the technical and past performance evaluations and the trade-off evaluation a full and fair analysis. One wishes  judges were always this thorough.

L-3 Communications EOTech lost its protest at the Court of Federal Claims because the agency's decision to eliminate the protester from the competitive range (leaving only one competitor in the competitive range) survived the "close" scrutiny such an action entails. L-3 was eliminated from further consideration primarily because its bid samples were not satisfactory to the agency.

Unisys lost its protest in part because the court found that a GSA solicitation for a blanket purchase agreement under a Federal Supply Schedule contract pursuant to FAR 8.405-2 did not include the FAR Part 15 requirement that, if discussions are held with one offeror, they must be held with all. On another issue, the court refused to conclude that when two offerors receive an equal number of deficiencies, they must also receive the same adjectival evaluation rating: "As the government correctly observes, not all weaknesses are equal. Simply tallying up the weaknesses accrued by Unisys and Lockheed and finding that the number each accrued is the same does not provide a basis for asserting that they should then have achieved the same adjectival rating. This is all the more true where, as here, the adjectival ratings being compared are for two different factors."

PAI lost all three grounds its post-award protest concerning (i) the incumbents' alleged organization conflicts of interest; (ii) the evaluation of proposed subcontractors experience; and (iii) the cost realism evaluation.

Sometimes an agency's perseverance (obstinance) prevails. After losing two GAO protests, the Bureau of Prisons stuck with its choice for contractor on the second required reevaluation, and Bannum lost the third GAO protest of that decision. The Court of Federal Claims then reached the same conclusion on the oft-repeated principle that Bannum's  mere disagreement with the agency's evaluation of various factors was not sufficient to sustain the protest.

Sole Source  

In L-3 Communications EOTech , the court held that the Government did not violate any law or regulation in awarding a sole-source bridge contract to the  protester's competitor pending the completion of a competition for a follow-on contract because protester's product was not "type classified" (even though the Government previously had awarded  contracts for the items to the protester, among others).

Carahsoft, too,  lost its protest involving a bridge contract because the court was "simply dumbstruck" by the protester's theory that certain terms from a bridge contract had been incorporated in a subsequent follow-on contract despite a contractor's explicit exclusion of them--terms that would have required the agency to pay twice for the same items. 

In Datapath, the court enjoined a contract award because the Government's J & A was sketchy at best; the Government had contributed to the delay responsible for the emergency buy; the Government did not have the administrative record available for review by the protester before the proposed time of contract award; and the court was mindful of President Obama's memorandum to executive agencies of March 4 concerning government contracting policies and competition requirements. 

Savantage could not convince the court that the Government's actions are violating the court's previous injunction against proceeding with a sole-source award to Oracle. Reading the decision, some of you may feel (as I do) that Savantage lost only because of its high burden of proof and that the Government probably is doing what Savantage suspects (i.e., maneuvering around the court's earlier injunction).

Miscellaneous

SP Systems originally won a NASA award, but, after the GAO sustained a protest against the evaluations of cost realism, management approach, and past performance that led to that award, the agency followed the GAO's specific recommendations for corrective action and (after re-evaluation) awarded the contract to a competitor. SP Systems then filed suit in the Court of Federal Claims, which found both the GAO's decision and the agency's decision to follow it, reasonable, even though there were other ways the agency might have re-evaluated proposals.

 

Academy Facilities Management lost its post-award bid protest after the court requested an advisory opinion from the GAO. The decision is notable not so much for any particular holding on the various evaluation errors the protester alleged, but for the fact that the judge seems to cite every case under the sun for each step in his analysis. If you ever want a starting point for analyzing the standards applicable to a bid protest at the court, this would be one good place to begin your education.

Rhinocorps finally lost its protest because the agency had a rational basis for concluding, as a result of a market analysis, that there were not two, responsible small businesses available to justify setting aside a procurement. Rhinocorps had argued that the market analysis was a sham undertaking meant only to reinforce a decision the Government already had made. The court concluded as follows: "And, although the administrative record reveals that the Air Force reluctantly performed the required analysis under FAR 19.502-2(b), and only did so after plaintiff forced the issue, the FAR does not require the Air Force to negate evidence of a predisposition."

Global Computer Enterprises won its protest because the Court of Federal Claims determined that work added by the Government to a contract was outside its scope and should have been competed. The interesting thing about the decision, however, is the court's finding that the Coast Guard repeatedly had overstated the harm it would suffer if it were required to compete rather than proceed as it wished. Usually, the court is much more deferential to an agency's avowals of the dire consequences of an injunction, regardless how overwrought such predictions may be. Subsequently, the Coast Guard convinced the court to dilute the language in its original decision a bit,  from requiring the Government to recompete a protested procurement using "fair and open competition," to the following: "The Coast Guard must procure these services in accordance with the law and in a manner that preserves the integrity of the procurement process, exercising its discretion in a reasonable manner."

In Alatech Healthcare, the court interpreted the meaning of the word "feasible" in a federal statute giving preference to domestic condom manufacturers.

Late/Expired Offers

Camden Shipping made all sort of ingenious arguments why its offer remained open (or was revived) after the 60 day limit it had checked on the offer form. The Court of Federal Claims did not buy into any of those arguments and concluded that revival would harm the competitive process.

Protest Costs/EAJA and Bid and Proposal Costs

In Information Sciences Corp. (ISC), after the court twice invalidated a GSA award under a competitive solicitation because of faulty evaluation procedures, the agency (stubbornly) awarded a sole-source contract to its contractor-of-choice. Rather than protest a third time, Information Sciences filed suit on the basis that the latest "award [i] violated FAR requirements to conduct business with integrity, fairness, and openness, and [ii] breached an implied-in-fact contract with ISC." ISC's Complaint did not request that the sole-source award be set aside. Instead it sought monetary damages for "employee time, labor, material, and expert time involved in pursuing the two prior solicitations." The court dismissed the Complaint because neither of the prayers for relief was a proper request for bid and proposal costs cognizable under the Administrative Dispute Resolution Act, but noted that the contractor could refile for such costs.

The court awarded Alabama Aircraft Industries, Inc. - Birmingham about $1 million in bid and proposal costs as a result of its earlier, successful protest (about half the amount it had claimed). However, the Court of Appeals for the Federal Circuit subsequently reversed the decision on appeal.

The court (somewhat reluctantly) dismissed Datapath's protest, citing 28 U.S.C. § 1491(b)(3) for the proposition that courts must "give due regard to the interests of national defense and national security and the need for expeditious resolution of the action." Datapath did, however, recover certain costs associated with pursuing its protest, in a somewhat unusual manner, as revealed in footnote 5 to the court's opinion: "Recognizing that the court has authority to award bid preparation and proposal costs, in the event DataPath prevailed in this protest, following oral argument, L-3 Global, the incumbent contractor and primary beneficiary of this contested Solicitation, agreed to the court’s request to reimburse DataPath for certain costs incurred to date. Since the issues raised by this bid protest are complex and were well presented by DataPath’s counsel, this accommodation by L-3 Global is appropriate, as it serves the interest of an 'expeditious resolution of the action.' 28 U.S.C. § 1491(b)(3)."

In its post-award protest, Afghan American Army Services Corp. established multiple failings in the Government's evaluation, but the court only awarded it bid and proposal costs rather than the requested injunction.

Discovery/Procedure

In the court's decision on the NEQ post award protest, Judge Allegra refused to go as far as some other judges appear to in allowing supplementation of the administrative record. He wrote, in part: "The court will not repeat itself here except to reiterate, in particular, its refusal to supplement the record, via discovery, with more information regarding the agency’s reasoning for an award, or to otherwise add to the record evidence, not previously possessed by the agency, designed supposedly to improve the court’s 'understanding' of a case."

Global Computer Enterprises succeeded in its efforts to supplement the record extensively in its bid protest at the Court of Federal Claims over objections that its submissions contained impermissible lay opinions and hearsay (e.g., non-agency RFP summaries and material from various web pages).

Two decisions discuss, inter alia, the standards for permitting supplementation of the administrative record after the Court of Appeals for the Federal Circuit's decision in the Axiom case (discussed below): Kerr Contractors and Bannum.

In PlanetSpace, Inc. , the court discussed the evidentiary record appropriately admitted in a bid protest, the scope of admissible declarations, and the standards for allowing supplementation of the administrative record.

Automatic Stay

In The Analysis Group, the court refused to reinstate an automatic stay after an agency override during the pendancy of a GAO protest. The court noted it would reach the same result regardless whether it used the four-pronged test of an override decision enunciated in the APA or the four-pronged analysis announced in the Reilly's Wholesale Produce case.

In Unisys Corp., the Court of Federal Claims discussed the confusing recent history of the statutes and regulations governing the Transportation Security Administration ("TSA") and concluded that CICA's automatic stay provisions now apply to protests of TSA procurements at the GAO.

 

        

Court of Appeals for the Federal Circuit

Jurisdiction/Standing

The court reversed Weeks Marine's Court of Federal Claims bid protest victory because the Fed Circuit (i) found the agency had a rational basis for its procurement plan to utilize an ID/IQ contract and (ii) refused to second-guess the agency's rationale. Just as interesting as the ultimate holding, however, is the court's discussion of the appropriate test for a protester's standing in a pre-award protest. The court settled on the following standard (after considering several alternatives): "standing is established by alleging 'a non-trivial competitive injury which can be redressed by judicial relief.'"

The Court of Appeals for the Federal Circuit reversed the Court of Federal Claims decision enjoining the Government in a bid protest case because the protester (Labatt Food Service) lacked standing to protest.  The facts are somewhat complicated, but, basically, the Court of Federal Claims had found Labatt had standing because the Government had allowed all the competitors to submit offers by an unauthorized method (email). The Federal Circuit holds that non-prejudicial errors in a bid process do not automatically invalidate a procurement: "Labatt tautologically argues that it was harmed by the method of transmission error because it would have a substantial chance of receiving the contract award in a rebid. By conflating the standing requirements of prejudicial error and economic interest, Labatt would create a rule that, to an unsuccessful but economically interested offeror in a bid protest, any error is harmful. Under this radical formulation there would be no such thing as an error non-prejudicial to an economically interested offeror in a bid contest. We decline to adopt such a rule."  Or, as the court says a bit more succinctly later in the decision: "All errors are not equal" (and Labatt had been eliminated from the procurement for submitting a late bid, not for  submitting a bid by email).

Responsiveness

The CAFC affirmed the Court of Federal Claims' decision dismissing the protest of The Centech Group because, in its offer, it had not agreed to comply with a material requirement of the solicitation.

Mitigation Plan

The CAFC reversed the Court of Federal Claims' prior decision in the Axiom bid protest case because the appeals court did not believe it appropriate for the Court of Federal Claims to have set aside a contract award based solely on its suspicion that the Contracting Officer would not enforce Lockheed's OCI mitigation plan.

Price Realism Evaluation

The Court of Appeals for the Federal Circuit reversed the Court of Federal Claims' prior decision sustaining the protest in the Alabama Aircraft Industries bid protest. The appeals court ruled that the lower court was wrong to fault the agency's price realism analysis because the lower court had judged that evaluation on the basis of how the court felt the agency should have addressed the problem of aging aircraft rather than limiting itself to analyzing whether the agency had followed the evaluation scheme set forth in the solicitation.

Supplementation of the Administrative Record

In Axiom the court found fault with the lower court's decision to permit supplementation of the administrative record without any showing that such an action was essential for effective judicial review.

SBA Office of Hearings and Appeals

In its first decision relating to the Women's Business Center (WBC) awards program, the SBA's Office of Hearings and Appeals (OHA) threw out the SBA's decision not to renew the CHARO Community Development Corp.'s award because the SBA had not established any procedures for notice of, or opportunity to contest, such decisions, thus violating the the petitioner's due process rights. However, in CHARO Community Development Corp., on reconsideration, the OHA reversed itself and decided that the SBA had established a de novo hearing under the APA at the OHA as the means of review for firms believing themselves aggrieved by actions of the SBA under WBC program cooperative agreements. See also entry at January 16 below.

More and more, redactions are delaying and eroding access to judicial and administrative decisions. Now, we are having to wait for redacted versions of OHA decisions. Witness the belated issuance of Baldt, Inc., which remains an interesting size decision analyzing affiliation despite all the "x's."

In Cummings Construction, the OHA overruled the determination of the Area Office and found that the one person who had a majority membership interest of a limited liability company had the power to control it, despite that fact that he and another individual had made equal capital contributions (because capital contributions are not a factor in determining control).

In KVA Electric, the OHA faulted the Area Office for relying on a firm's self-serving post-offer statements contracting clear evidence in the resumes submitted in its offer of excessive reliance on a firm that the OHA found should have been considered its affiliate under the ostensible subcontractor rule. In Henderson Group Unlimited, the OHA found a firm had rebutted a presumption of affiliation by establishing a that a "clear fracture" existed between two firms.

In Leader Communications, the OHA held that amounts paid for the New Mexico gross receipts tax and a GSA funding fee should not be excluded in determining a firm's annual receipts.

In Command Languages, the OHA upheld a finding that a service-disabled vet controlled a company's operations even though he lived 900 miles from the company's headquarters: "(1) corporate location within the United States; and (2) the location of the service-disabled veteran within the United States are irrelevant to the issue of control when a concern performs the majority of its contracts overseas. Instead, the key, under 13 C.F.R. § 125.10, is whether the Record establishes the service-disabled veteran actually controls the SDVO concern. In the instant case the Record confirms [the SDV] built [the company] to its current level of success and that he controls its operations through his hard work, nearly incessant travel, and use of modern electronic communications."

In Taylor Consultants, the OHA interpreted, inter alia, the requirement in 13 C.F.R. § 121.1001(a)(2)(i) to mean that, to have standing to file a size protest, a firm that has been eliminated from the competition must have been eliminated based on its size and, even in that case, it does not have standing unless there is only one remaining offeror that has been determined to be small.

In Alutiiq, the OHA reversed an Area Office's determination that a firm had violated the ostensible subcontractor rule because the Area Office's failure to notify the protested firm of that issue and specifically to request documents related to it constituted a lack of due process.

In the Cox Construction decision, the OHA specifically held that, for purposes of determining a firm's size, the SBA's regulations control over any conflicting FAR regulations. In Cox, a firm self-certified as small at the time it submitted its initial, unpriced offer. Subsequently, the Contracting Officer did not require offerors to re-certify at the time they submitted priced offers. The OHA upheld the Area Office's determination that the firm should, nevertheless, have re-certified at that time and was other than small as of the later date, despite contrary FAR regulations.  

In The Centech Group, the OHA dismissed a NAICS protest because the agency that issued the solicitation, the FAA, is not subject to the Small Business Act. 

In C.E. Garbutt Construction, the OHA found a violation of the ostensible subcontractor rule when the protested firm's only contribution to the project was its HUBZone status and its contract was simply a pass through.

In Inuit Services, the OHA upheld an Area Office finding that a firm was other than small because that is what the materials it had submitted to the Area Office clearly stated, even though the firm asserted on appeal, and offered evidence that, its original submission had been mistaken. The OHA's reasoning was that the Area Office had to base its decision on the record before it. 

In Blue Cord Construction, the OHA found affiliation between a newly organized firm and a firm whose key employee and officer had formed the new firm and which was providing it with technical and financial assistance, where there was no fracture.


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