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2011 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

Jurisdiction/Timeliness/Standing/Override

Jurisdiction/Standing/Ripeness

Jurisdiction/Timeliness/Standing

Defective Solicitations

Solicitations

Responsiveness

Ostensible Subcontractor

Evaluations

Evaluations

Other Affiliation Issues

Responsiveness/Late Bids

Sole Source

Calculation of Employees or Receipts

Changed Requirements

Small business, 8(a), HUBZone

Miscellaneous

Recovery of Costs

Responsiveness/Late Bids

8(a)/SDVOSB Status

Small Business/HUBZone Issues

Discovery/Procedure

NAICS

Organizational Conflicts of Interest 

Equal Access to Justice

 

Corrective Action

Organizational Conflicts of Interest

Recovery of Costs

Corrective Action

Miscellaneous

Successful GAO Protests

Introduction

The GAO published 36 decisions sustaining protests on the merits. 

Defective Solicitations

The GAO sustained a protest by California Industrial Facilities Resources, Inc. d/b/a CAMSS Shelters against the unduly restrictive terms of a solicitation (issued without an appropriate J&A) that required brand name products without listing salient characteristics that would permit offers of equivalent alternates. 

The GAO also sustained a protest by CWTSatoTravel because the terms of a solicitation were ambiguous as to whether objectives were optional or required.

USA Jet Airlines won its protest because a solicitation requirement that offerors present evidence of certification under ISO 9001, ISO 9100, or AS 9110 at the time of proposal submission, rather than at the time of award or performance, exceeded the agency's minimum needs and unduly restricted competition.

In Technosource Information Systems, LLC; TrueTandem, LLC, the GAO sustained a protest because the agency failed to establish any legitimate government need for a solicitation requirement that any non-U.S.-based cloud computing data centers be located in Trade Agreements Act Designated Countries.

Flawed Evaluations 

The GAO sustained a protest by Resource Dimensions, LLC because there was inadequate information on the record to support the agency's evaluation of the protester's oral presentation during discussions.

Northeast Military Sales, Inc., won its protest after the GAO concluded that the agency ignored adverse past performance information concerning the awardee with the result that its past performance rating of "exceptional" lacked a rational basis. 

In A1 Procurement, JVG, the GAO found there was no documentation in the record supporting agency's rationale for rejecting the protester's fixed-price proposal as being "too low."

In I.M. Systems Group, the GAO sustained another protest because the agency did not perform required cost realism evaluations of either the awardee's or the protester's proposal.  

The GAO sustained a protest by Technology Concepts & Design, Inc., because the evaluation lacked a rational basis and because a part of it was made on a different basis than required by the solicitation.

In U. S. Information Technologies Corp., the GAO sustained a protest in an FSS best-value procurement because (i) there was no explanation in the record why the awardee's past projects were considered similar in scope and complexity to the order being issued and (ii) the agency (in its best-value analysis) failed to assess the vendors' differing strengths or otherwise explain why the quotations were technically equal. 

The GAO sustained a protest by Solers, Inc. because (i) the awardee took exception to a solicitation requirement to propose a fixed price; (ii) there was nothing in the record to establish the past performance evaluation was reasonable; and (iii) the technical evaluation was flawed.

MPRI won its GAO protest because the amount of agency's upward adjustment to the protester's labor rates during a cost realism evaluation was unreasonable.

The GAO sustained protests by One Largo Metro LLC, et al., because portions of the evaluation were not in accordance with the solicitation's evaluation scheme and because the source selection official failed to meaningfully consider the evaluated differences among competing proposals.

Mission Essential Personnel won its protest because the agency failed to evaluate resumes in accordance with the solicitation's evaluation scheme.

The GAO sustained the protest of SafeGuard Services where the agency rejected a proposal after the offeror submitted its revised business plan (containing some subcontractor spreadsheets) late; the GAO reasoned that the agency should have considered whether the proposal was complete even without the spreadsheets.

In PCCP Constructors, JV; Bechtel Infrastructure Corp., the GAO concluded that (i) the agency evaluated a technical proposal for foundation design in a manner inconsistent with solicitation requirements; (ii) the agency led offerors to believe they had to bid the full budget amount and then credited the awardee for proposing less than that; and (iii) the agency's investigation of an OCI was inadequate because the agency did not consider a former official's access to source selection information about the procurement through his prior access to documents and his continuing contacts with source selection officials.

The GAO sustained a protest by EBA Ernest Bland Assocs. because the agency made its selection without consideration of the solicitation's evaluation factors.

In Raytheon Technical Services Co., the GAO found that the agency (i) improperly relaxed an evaluation requirement for the awardee by ignoring its material failure to propose loaded labor rates for 20 labor categories; (ii) failed to provide a common cut-off date for receipt of proposals; and (iii) treated offerors unequally by giving the awardee credit under the management factor for a similar item to that proposed by the protester, who was not given that same credit.

In Raytheon Co., the GAO found (i) a lack of meaningful discussions and (ii) the improper evaluation of references under the experience evaluation factor.

In protests by North Wind, Inc., and Earth Resources Technology, Inc., the GAO determined that the agency improperly evaluated the awardee's proposal by, in effect, waiving the solicitation's 50-page proposal limit by allowing it to submit significant portions of its proposal in appendices without informing other offerors, who strictly complied with the page limit, that the approach taken by the awardee to provide additional information was acceptable.

The GAO sustained a protest by The Ross Group Construction Corp. because the past performance evaluation lacked a rational basis: the awardee received a superior rating despite failing to comply with the solicitation's stated requirements. 

The GAO sustained a protest by APEX-MBM, JV because the agency used an unstated evaluation criterion to evaluate an item the solicitation did not require to be submitted with the proposals (but instead suggested would be addressed after award).

Changed Requirements

In Global Computer Enterprises, Inc., the GAO sustained the protest because the Government's needs for migration services during first two years of contract changed dramatically so that they were much less than the amount of migration on which offerors were required to bid.

Diebold won its GAO protest because the agency materially modified a commercial item solicitation's requirements only for the awardee.

Responsiveness, Late Bids, Expired Bids

The GAO sustained a protest by Ocean Services, LLC, because the agency should not have rejected a bid whose acceptance period expired on a Saturday when the bidder revived it the next Monday by extending the acceptance period. The GAO also sustained a protest by Solers, Inc. because the awardee took exception to a solicitation requirement to propose a fixed price.

The GAO sustained a protest by MEDI-e-ImageData Corp. because the awardee's proposal did not comply with material requirements of an RFQ. 

Shaka, Inc. won its protest because it was improper for the agency to reject a bid bond (and find the bidder nonresponsive) solely because the bidder disclosed that it had obtained the bond through its sub's relationship with the surety.

In NCI Information Systems, Inc., the GAO sustained a protest and held that a proposal was late because it was submitted after the time stated in the FAR (4:30 pm) for application to solicitations that do not include a specific time by which proposals must be received.

Small Business/SDVOSB/HUBZone Issues

Explo Systems won its GAO protest because the solicitation required the agency to apply the HUBZone price evaluation preference in evaluating proposals, even though the HUBZone proposal was lower in price than the large business proposal.

In Aldevra, the GAO held that (i) the VA violated the Veterans Benefits, Health Care, and Information Technology Act of 2006 and its implementing regulations in the VAAR by using non-mandatory FSS procedures rather than setting aside an acquisition for  SDVOSBs; and (ii) FAR provisions implementing the separate Veterans Benefit Act of 2003 are not controlling in this situation. Again, in Kingdomware Technologies  the procuring agency improperly used FSS procedures rather than setting the procurement aside for SDVOSBs.

In Construct Solutions, the GAO recommended that the agency terminate an award and award the contract to the SDVOSB protester after the SBA reversed its initial refusal to issue a COC to the protester because that decision had been based on the use of the wrong standard for determining the firm's compliance with the "Limitations on Subcontracting" clause.

In W. B. Construction and Sons, the GAO decided it was improper to award an 8(a) contract to a business entity form (corporation) different from the one that submitted the proposal (LLC).

The GAO sustained the protest of Commandeer Construction after the agency rejected its bid as the apparently successful offeror on an SDVOSB set-aside because it was not listed as an eligible SDVOSB on the VA's Vendor Information pages even though the solicitation indicated such businesses were entitled to expedited verification reviews.

Recovery of Costs

The GAO granted two requests by protesters for reimbursement of the costs associated with filing protests because, in each case, the agency waited until after the agency report had been filed and an outcome determination conference had been conducted before it decided to take corrective action: Greentree Transportation and Symvionics.

In Friendship Dental Laboratories, the GAO recommended that the protester recover its costs because the agency filed the agency report disputing the protest after the agency knew a protest ground had merit.

Organizational Conflicts of Interest  

In PCCP Constructors, JV; Bechtel Infrastructure Corp., the GAO concluded that the agency's investigation of an OCI was inadequate because the agency did not consider a former official's access to source selection information about the procurement through his prior access to documents and his continuing contacts with source selection officials.

In VSE Corp., the GAO sustained a protest against a Contracting Officer's termination of an awarded contract based on her belief that there was an appearance of impropriety (an OCI) in the contractor's employment of a former federal employee as a consultant. The GAO concluded that the Contracting Officer's decision was largely based on misunderstandings and unfounded assumptions as to both the facts and the applicable law.

Corrective Action

Power Connector won its protest against an agency's corrective action because, after the agency materially amended the  solicitation, it should have permitted offerors to revise all aspects of their proposals, including price.

Court of Federal Claims

Timeliness/Standing/Jurisdiction/Automatic Stay 

Despite numerous errors in the procurement, the court dismissed the protest of Digitalis Education Solutions because it submitted neither a timely expression of interest to the agency nor a timely protest to the court and, therefore, suffered no prejudice, was not an interested party and lacked standing.

In Northeast Military Sales, the court denied (as untimely) a motion to intervene filed almost two months after the original protest and less than 48 hours before final oral arguments were scheduled.

In Hallmark-Phoenix 3 LLC (a decision specifically disagreeing with the court's recent decision in Santa Barbara Applied Research), the court held that, under the concept of prudential standing, the plaintiff was not within the zone of interests protected by statutes setting requirements for the Government's decision to in-source work and, therefore, lacked standing to challenge the Government's decision that it would in-source work rather than exercise the next option in plaintiff's contract. Until the Federal Circuit settles the issue, contractors will just have to guess whether Judge Allegra or Judge Firestone is right. 

In Jacobs Technology, the court held it had jurisdiction over an awardee's protest against an agency's decision to follow the GAO's recommendation to revise a solicitation and allow offerors to submit another round of proposals as a result of a post-award GAO protest. The court also held that it had jurisdiction over the original GAO protester's challenge to the terms of the revised solicitation issued by the agency as corrective action.

In Vanguard Recovery Assistance, Joint Venture, the court, inter alia, (i) refused the intervenor/awardees' request to expand the timeliness holding in Blue & Gold Fleet and (ii) held that a protest was timely filed after a reevaluation of proposals conducted in accordance with a GAO recommendation made as a result of an earlier GAO protest by another offeror  even though the GAO had, at the same time, rejected the protester's complaints at the GAO about the original evaluation. The court indicated a different result might apply if the agency had sought revised proposals rather than simply reevaluating proposals, but I do not see how that distinction merits a different result.

In Castle-Rose, the court discussed its jurisdiction  over  protests based on an alleged breach of the covenant of good faith and fair dealing after the Federal Circuit's decision in Resource Conservation Group

In Outdoor Venture Corp., an unsuccessful post-award protest, the court held, inter alia, that the awardee of a total small-business set-aside contract lacks standing to complain that its contract may be terminated as a result of a post-award SBA determination that it is not a small business.

In Med Trends, Inc., the court held that, after the expiration of FASA's sunset provision regarding task order protests (41 U.S.C. 4106(f)), the court has jurisdiction over bid protests of task orders under 28 U.S.C. 1491(b)(1). In a subsequent decision in Med Trends, the court held that (i) the protester had waived its claims against several alleged defects apparent on face of the solicitation because it had not protested before bids were due; and (ii) the court lacked  jurisdiction over the protester's claim that its suspension by the SBA (which applied governmentwide but was not the result of the protested procurement) improperly deprived the plaintiff of the right to compete on the instant procurement.

In Orion Technology, the court dismissed a protest for lack of standing because the bidder failed to comply with a solicitation requirement to submit cost or pricing data for each of its team members. In Joint Venture of Comint Systems Corp., et al., the court dismissed consolidated protests for lack of standing because the protesters did not have a substantial chance of receiving award even if the alleged errors in the procurement were corrected.

In URS Federal Services, the court held that a "best interests" override of an automatic stay (pending the resolution of GAO protests) was improvidently issued because  the agency did not consider (i) any alternatives to the override, such as extending the incumbent's contract temporarily or (ii) the effect of an override on the integrity of the procurement system.

Solicitation Language

In Crewzers Fire Crew Transport, Inc., an unsuccessful pre-award protest, the court rejected various challenges to the Forest Service's nationwide procurement for establishment of regionally based BPAs.

In Glen  Defense Marine (Asia) PTE LTD, the court denied a pre-award protest in which the protester claimed that the information in the solicitation was not sufficient for bidders to price (or the agency to evaluate)  proposals intelligently. 

In CW Government Travel, Inc. d/b/a CWTSATOTravel, a pre-award protest, the court issued a declaratory judgment that the GSA’s use of a 15-year fixed pricing schedule in a solicitation for commercial services violated customary commercial practice and was, therefore (in the absence of a valid waiver), arbitrary, capricious, and contrary to law.

In U.S. Foodservice, the court upheld a challenge to the agency's use of a Most Favored Customer clause in a solicitation because the terms of the clause were not a reasonable means of achieving the agency's objective.

Evaluations

In Bannum, Inc., the court denied a protest based on alleged errors in the evaluation of (i) the successful offeror's compliance with the zoning compliance requirements of the solicitation and (ii) the protester's (a) technical/management proposal; (b) most recent past performance information; and (b) experience as the incumbent. Concerning the last area, the court held that numerous and continuing problems on less relevant contracts could have significant (negative) evaluation weight compared to performance on the single most highly relevant contract, i.e., the protester's work as the incumbent.

On remand from the Federal Circuit, the Court of Federal Claims held in Resource Conservation Group, LLC that (i) the Government properly rejected as nonresponsive a bid that proposed a use for leased property (sand and gravel mining) that violated a federal statute and associated regulations; (ii) the bidder was charged with notice of those provisions even though they were not cited in the solicitation; and, therefore, (iii) the bidder's claim that the Government had an obligation to specifically apprise it of the issue (under the doctrine of superior knowledge) was unavailing.  

The court held in Acrow Corp. of America (an unsuccessful post-award protest) that, in making a favorable responsibility determination, the Contracting Officer (i) did not rely on a bidder's misstatements concerning involvement in a bribery scheme and (ii) reviewed sufficient information to support her favorable responsibility determination. The court based its conclusion on the fact that, in her determination, the Contracting Officer referred to "the events" that led to prosecution, as opposed to the statement of "the practices" that led to prosecution in the bidder's misleading submission.  

In Fulcra Worldwide, LLC, an unsuccessful post-award protest, the court held that (i) an agency's "vague" statement that work under the contract resulting from solicitation would be "largely similar" to the work currently being performed by the protester under a bridge contract did not invalidate agency's subsequent award to the protested firm at a significantly lower price than that proposed by protester; and (ii) the protester did not establish that the awardee engaged in a prohibited "bait and switch" of key personnel. Concerning the latter issue, the court noted that, to prove a bait and switch, a protester must show: "(1) The awardee represented in its proposal that it would rely on certain specified personnel in performing the services; (2) the agency relied on this representation in evaluating the proposal; (3) it was foreseeable that the individuals named in the proposal would not be available to perform the contract work; and (4) personnel other than those proposed are performing services."

In Commissioning Solutions Global, LLC, the court held that, given the deference it was required to accord an agency's decision-making process, the agency's failure, despite some efforts, to locate all the relevant past performance information in its own files concerning the protester's past work did not vitiate its conclusion that the awardee had more relevant, highly rated experience.

The procurement in The Huntsville Times Co., has to be in the running for the title of the worst solicitation process ever because, in sustaining the plaintiff's post-award protest, the court concluded there were "(1) procedural errors in establishing the [Source Selection Plan "SSP"]; (2) a confusing and internally inconsistent SSP; (3) ratings that were based on evaluation criteria different from those stated in the [solicitation]; (4) ratings that were irrational or were in violation of the governing regulation; and (5) a failure to apply the weighting scheme for evaluation criteria set forth in the [solicitation]" (and that summary does not do justice to the multiple specific errors the court detailed in its decision.)

In Ceres Environmental Services, the court denied a post-award protest against, inter alia, a price realism analysis even though the court found many problems with the analysis and concluded that determining it was acceptable was a "close call." 

In Santa Barbara Applied Research, the court held that a contractor had standing to protest the  Government's decision to in-source work previously performed by the contractor, but the Government's decision had a rational basis and, therefore, was upheld.

In Patriot Taxiway Industries, an unsuccessful post-award protest, the court held that (i) a past performance evaluation was sufficiently documented and reasonable; (ii) discussions were meaningful; and (iii) the awardee's price reasonableness evaluation had rational basis.

In Tech Systems, an unsuccessful, scattershot protest against technical, past performance, and price evaluations, the court held, inter alia, that complaints about entries on individual evaluators' worksheets were immaterial where the evaluation was to be by consensus and the SSA then exercised its own independent judgment in adopting the consensus evaluation.

In Jacobs Technology, the court held that the GAO's prior protest decision decision finding defects in a procurement (i.e., the agency's use of unstated evaluation criteria and its failure to provide sufficient information for all offerors to compete on a fair and equal basis) had a rational basis and, therefore, the agency was justified in accomplishing the GAO's suggested corrective action.

In United Concordia Companies, the court denied a protest against (i) a Past Performance evaluation (concluding the agency did not have to give the incumbent a higher rating than its competitors solely because of its incumbency) and (ii) the evaluation of sub-subcontractor efforts (in part, because the solicitation did not require lower tier subs to provide the information the the protester complained was missing).

In Nilson Van & Storage, Inc., an unsuccessful protest, the court held that (i) the awardee was properly registered in government databases at the time of award; (ii) the awardee was not required to possess interstate carrier permits because the contract did not require interstate transportation; and (iii) the awardee's change of  its proposed place of performance after submission of initial offers but before award was unobjectionable because the agency verified the new location was acceptable.

In FirstLine Transportation Security, a successful bid protest, the court (Judge Bush) held that (i) the SSEB failed to evaluate the technical factors in accordance with relative weights (as required by the solicitation) and failed to offer any specific justification for preferring the lower priced proposal over the higher technically rated proposal when technical factors were supposed to be paramount; and (ii) the SSA simply adopted the SSEB's recommendation without any independent analysis. The court also held that, even though the protester had not filed a timely protest of the solicitation's price evaluation scheme, that scheme should be modified by the agency as part of its remedial actions in response to the meritorious parts of the protest because the scheme was irrational and not in conformance with the applicable regulations.

In D&S Consultants, the court denied a post-award protest because (i) discussions were not misleading, inadequate, or unequal; (ii) the Government did not add an unstated evaluation criterion in analyzing the protester's proposal; (iii) there was a rational basis for the IGCE; and (iv) there was a rational basis for the evaluation of the protester's management proposal.

In Standard Communications, Inc., the court held that, in its best-value, tradeoff analysis, the agency did not sufficiently explain or document its rationale for selecting lower-priced, lower technically-rated proposals over a higher-priced, higher technically-rated proposal in a solicitation where non-price factors were more important than price. Specifically, it was not sufficient for the SSA to write simply: "I hereby determine that this higher-priced proposal does not exhibit sufficient superiority in the non-Price factors to warrant an award."

In Survival Systems, USA, Inc., the court held that (i) even though the protester had complained about the technical evaluation in its complaint, it waived that objection by failing to raise it in its principal brief and arguing it only in the reply brief; and (ii) the agency's evaluation of price reasonableness and its evaluation for possible unbalanced pricing were both unobjectionable, even though the record did not include the specific steps the agency used to conclude the pricing was not unbalanced.

In Vanguard Recovery Assistance, Joint Venture, the court denied a protest (even though it was clear the agency had violated procurement law in important respects by failing to prepare and obtain past performance information on the incumbent contractors and by failing to obtain relevant past performance information from competitors) because the protester did not meet its burden of establishing it was prejudiced by the agency's failures: "While it is evident that the agency violated the law, the consequences of that transgression insofar as this procurement are concerned remain obscured."

IBM Corp, U.S. Federal faulted numerous aspects of the agency's technical, past performance, and price evaluations, as well as the Source Selection Authority's comparative evaluation and the adequacy of the agency's discussions, but the Court of Federal Claims  rejected all the protest grounds.

In Akal Security, an unsuccessful post-award protest, the court held that: (i) an awardee's failure to disclose a government investigation regarding wage payments that subsequently ripened into a civil action was not fatal to the Government's favorable  responsibility determination because the awardee did disclose a related class action lawsuit and because the size of the undisclosed matter was not great enough to affect the awardee's overall financial responsibility; (ii) there was no violation of FAR 15.308 where the SSA simply signed the CO's award recommendation in the blank beside the word "Approved" because there was no evidence in the record that the SSA did not exercise independent judgment in coming to its conclusion; and (iii) an evaluator's scoring error, even after being corrected, did not change the ultimate rankings of offerors.

In Furniture by Thurston, the court held that, although the protester demonstrated that the winning offer failed to comply with a material requirement of the solicitation, the protester's remedy was limited to the recovery of bid and proposal costs because the contract at issue already had been substantially performed. (The court also held that the protester's reorganization in bankruptcy did not affect its standing to protest.)

Sole Source/Restricted Competitions

Google won a preliminary injunction against a proposed noncompetitive award by the Interior Department (involving Microsoft products) because the Determination and Findings purporting to justify the award was deficient in its content and was not approved by the proper officials.

In L-3 Communications Corp., the court denied a preaward protest against Egypt's sole-source selection of a contractor to provide flight simulators under an FMS agreement after Egypt had originally requested the plaintiff as the sole-source supplier but then changed its mind.

In Gear Wizzard, the court upheld the agency's decision to cancel a procurement that had been improvidently issued as a small business set-aside because there was not a reasonable expectation that bids would be received from two small businesses although a responsive, responsible bid had been received from one qualified small business.

MORI Associates won its protest because, in response to earlier protests at the GAO, the agency improperly canceled a solicitation that should have been set aside for small businesses and issued a task order solicitation under the FSS.

California Industrial Facilities Resources won its bid protest because the court found there was no adequate justification for a sole-source award, and the court issued a stinging rebuke to the Government for intentionally withholding publication of the J&A supporting the sole source award until the contract had been almost completed, simply in order to avoid protests.

Small Business, 8(a), HUBZone

In K-LAK Corp., the court held there was nothing improper in the agency's decision to purchase under an FSS order items that previously had been purchased under a small business set-aside.

In Mission Critical Solutions, the court held that, in order to obtain an HUBZone contract, a firm must meet the 35% employee residency threshold both at time of its initial offer and at the time of contract award.

In companion decisions, the court reluctantly denied pre- and post-award protests by RCD Cleaning Service against its decertification from the HUBZone program (and its subsequent elimination from the competition in one procurement and the cancellation of its contract award in another) after it failed to provide all requested information to the SBA concerning the location of its principal office in the process of another firm's protest of its HUBZone status. The court, however, was critical of the SBA's unwieldy and error-prone methods of determining HUBZone status in such protests.

MORI Associates won its protest because, in response to earlier protests at the GAO, the agency improperly canceled a solicitation that should have been set aside for small businesses and issued a task order solicitation under the FSS.

Responsiveness/Late Bids

In DOW Electric, the court held the low bid was properly rejected as nonresponsive because it included items that did not conform to the specification requirements.

In Castle-Rose, the court  held that the agency's determination to reject an offer as arriving late at the government office designated for receipt of offers was reasonable. 

Discovery/Procedure

The court's decision in the  RN Expertise, Inc. bid protest is a great example of the burden of proof. The court  found that both the plaintiff and the defendant presented equally conclusory and unsupported arguments and then called that tie in favor of the defendant because the plaintiff had the burden of proof. 

The Defendant contends that potential offerors would have reasonably anticipated the modification, and therefore, it was within the scope of the contract. The Defendant's assertions, however, are conclusory and not supported by the Administrative Record. . . .Similarly, the Plaintiff's assertions that the potential offerors would not have reasonably expected at the time of competition that the addition of on-site collections would have been within the scope of the contract's changes clause are conclusory and not supported by the Administrative Record. For example, the Plaintiff does not make any argument based on contract language in support of its position. Unfortunately, since the burden concerning this factor rests on the Plaintiff, this Court must decide against the Plaintiff on the reasonable expectations of potential offerors.

In Tech Systems, Inc., the court held the protester had met the tests for supplementing the record with affidavits from its officers and employees in order to permit effective judicial review: 

[When] a plaintiff alleges bad faith and bias on the part of an official who had at least some involvement in the procurement, and seeks to supplement the record with evidence of bias and bad faith allegedly coming from that official’s own mouth, effective judicial review would be frustrated if the Court were not to allow the record to be supplemented.

In Northeast Military Sales, the court granted the plaintiff's motion to supplement the administrative record with documents the solicitation indicated the Government should have examined in evaluating proposals.

In The Tauri Group, the court allowed partial supplementation of administrative record (e.g., with evaluator's worksheets) requested by the plaintiff and amendment of the record requested by the agency.

In East West, Inc., the court denied the protester's request to add a declaration by  one of its officers to the administrative record but granted the protester's alternative request to include the declaration in the court record on the issue of alleged prejudice from the agency's actions: in this case, how the protester interpreted, and responded to, those actions.

In  Survival Systems, USA, the court denied the Government's motion to supplement the administrative record with the declaration of the individual who conducted the price analysis because the declaration was prepared after the fact, and the information it purported to provide already was ascertainable from the record. 

The court issued a TRO in favor of the protester/incumbent contractor, Serco (conditioned on the posting of a $300,000 bond), because the protester established it had a reasonable chance of success on the merits, and the balance of equities weighed against displacing the incumbent's workforce for the short period of time required to resolve the protest.

In Orion Technology, Inc., the court ruled on various motions to supplement the administrative record in a bid protest, including denying plaintiff's motion to supplement the record with the declaration of an expert opining as to the impropriety of the protested procurement action by the Government, which had been submitted to the GAO in connection with the original protest at that forum.

Organizational Conflicts of Interest 

In Netstar-1 Government Consulting, the court granted the plaintiff's request for a preliminary injunction in a post-award protest because the awardee's work on prior contracts gave it access to plaintiff's proprietary information and created an unmitigated organizational conflict of interest. Later, the court issued a permanent injunction.

The court denied an application for a TRO by The Geo Group because the protester's allegation that its  former official gave the awardee pirated information, which the awardee then used to prepare its winning proposal, does not amount to a Procurement Integrity Act violation or an organization conflict of interest. The interesting part of the court's reasoning is its conclusion that the Procurement Integrity Act, read as a whole, "appears to apply only to current or former officials of the United States or persons who are acting or have acted on such an individual’s behalf."

In Jacobs Technology, which involved allegations that the incumbent had improper access to source selection information that helped it prepare its proposal, the court held that (i) the agency was required to conduct an additional investigation concerning an unequal-access-to-information OCI related to a reprocurement but that (ii) the protester had not established a Procurement Integrity Act violation.

Corrective Action

In Systems Application & Technologies, a successful protest, the court held that an agency's decision to take corrective action (after receiving an email from a GAO attorney indicating GAO likely would sustain a protest) was irrational because, contrary to the statements in the GAO's email, there was nothing wrong with the original source selection decision. The court was emphatic in rejecting the GAO attorney's analysis of the alleged errors in the evaluation process. 

Recovery of Costs

In Defense Technology, Inc., the court held that the protester was entitled to recover its bid and proposal costs after the Government published a non-required notice of a proposed sole-source award to a Russian entity, which (incongruously) stated that all proposals would be considered. 

Miscellaneous

The court held in Acrow Corp. of America (an unsuccessful post-award protest) that, in making a favorable responsibility determination, the Contracting Officer (i) did not rely on a bidder's misstatements concerning involvement in a bribery scheme and (ii) reviewed sufficient information to support her favorable responsibility determination.

In Watterson Construction Co., the court held that a  bidder was improperly eliminated from  a competition after an email flood backed up the Government's servers and was responsible for the late delivery of an emailed bid.

Equal Access to Justice

In DGR Associates, the court held that the protester was entitled to an EAJA award and, in so doing, provided a good, basic discussion of the tests for whether the Government's position was substantially justified and for granting a COLA adjustment to the statutory cap on hourly attorney rates ($125).

        

Court of Appeals for the Federal Circuit

Jurisdiction

In Resource Conservation Group, the CAFC held that the Court of Federal Claims lacks jurisdiction under 28 U.S.C. 1491(b)(1) over non-procurement protests (in that case a protest of a lease of government property).  Now, in Creation Upgrades, Inc., the CAFC holds that, under the same reasoning, the Court of Federal Claims lacks jurisdiction under 28 U.S.C. 1491(b)(1) over protests involving the sale of government property. The court describes the holding as nonprecedential, but it is the law, so heed it.

In Turner Construction Co., the CAFC affirmed the decision of the Court of Federal Claims  mandating reinstatement of the original awardee's terminated contract because, since there was no showing that an OCI allowed the awardee access to competitively useful information, there was no reason for the agency to have followed the GAO's original recommendation (in response to an original protest at the GAO) to terminate the awardee's contract. The court also rejected an argument that the Court of Federal Claims exceeded its authority by ordering reinstatement of the terminated contract since the plaintiff had not followed the procedures of the CDA in pursuing its requested relief in federal court. The CAFC held the CoFC's actions were well within its bid protest jurisdiction to fashion equitable relief. 

In a decision labeled nonprecedential, which is nonetheless very interesting, the CAFC held in Totolo/King, Joint Venture that the death of the disabled veteran who was source of plaintiff's status as an SDVOSB during litigation which involved that status  rendered its case moot.

Responsiveness

In Allied Technology Group , the CAFC affirmed a prior decision by the Court of Federal Claims (which, itself, had reached the same conclusion as an earlier decision on the protest by the GAO) and upheld a Contracting Officer's decisions (i) to disqualify an offeror for taking exceptions to solicitation requirements but (ii) to accept an awardee's certification of compliance with other requirements despite minor exceptions. 

SBA Office of Hearings and Appeals

Jurisdiction/Timeliness/Standing/Ripeness/Lack of Specificity 

In Total Solutions,  the OHA held it lacked jurisdiction to award fees under the EAJA.

In Matter of Fidelis Design and Construction, LLC, the OHA dismissed an appeal because it lacks jurisdiction over determinations by the VA's Office of Small and Disadvantaged  Business Utilization concerning whether firms are eligible SDVOSBs.

In Size Appeal of A-Top Security Co., the OHA dismissed an appeal not filed within 15 days of contractor's receipt of a size determination, although it was postmarked on the 15th day.

In Size Appeal of David Boland, Inc., the OHA affirmed the Area Office's finding that a firm was no longer affiliated with a with large business under the totality of circumstances, identity of interest, clear fracture, and common management analyses.

In NAICS Appeal of Head, Inc., the OHA dismissed an appeal for lack of standing because, in an unrestricted procurement, the firm did not establish that it was eligible for any price or evaluation preference based on the NAICS designation in the solicitation.

In Size Appeal of Outdoor Venture Corp., the OHA dismissed an appeal filed more than 15 days after the firm's receipt of a size determination as untimely, even though the firm had attempted to file by email in a timely manner, because the email was not received by the OHA. It did not matter that the firm received no indication that its email transmission had been unsuccessful. 

In Size Appeal of Falcon, Inc., the OHA found the original size appeal was untimely because it was filed more than five days after receipt of the notice of award from the Contracting Officer (and filing a protest at the GAO did not extend the period for filing the size protest).

In Size Appeal of MWE Services, Inc., the OHA affirmed the Area Office's dismissal of a protest where the initial protest submissions were  insufficiently specific and later submissions were untimely filed more than five days after the posting of the contract award notice on the FedBiZOpps website.

In NAICS Appeal of NexOne, the OHA held that an appeal of a NAICS code in a presolicitation notice was premature. 

In Size Appeal of Garco Construction, Inc., the OHA affirmed the Area Office's dismissal of a size protest as untimely because it was filed more than five business days after the Contracting Officer notified the protester of the identity of the prospective awardee.

In NAICS Appeal of  Secure Network Systems, the OHA held that a NAICS appeal filed based on a presolicitation (and before issuance of the actual solicitation) was premature. However, in NAICS Appeal of Quantum Research International, Inc., the OHA dismissed an appeal filed more than 10 days after the issuance of the initial solicitation as untimely.

In Size Appeal of Bush Technologies, LLC, the OHA held the Area Office erred in dismissing as insufficiently specific, a protest alleging that, based on information in a government website, a firm exceeded the size standard because it had more than the dollar limit in contracts in its most recent year. 

In Mission Essentials, the OHA held that a protest alleging that the challenged firm failed to comply with the joint venture regulations covering SDVOSBs at 13 C.F.R. 125.15(b) was sufficiently specific and should not have been dismissed.

In Fidelis Design & Construction, LLC, the OHA held that a protest had been properly dismissed as insufficiently specific and that the fact that a firm was not listed in the VetBiz database was not grounds for protest in a non-VA procurement.

Ostensible Subcontractor

In Alutiiq Education & Training, LLC, the SBA's OHA affirmed the Area Office's  finding of affiliation under the ostensible subcontractor rule. 

In EarthCare Solutions, Inc., the SBA's OHA upheld the Area Office's determination that firms were affiliated under the ostensible subcontractor rule because one was "unusually reliant" on the other.

In Size Appeal of Four Winds Services, Inc., the OHA concluded a firm that would perform the majority of the contract labor and would staff the second most influential contract position was the offeror's ostensible subcontractor. 

However, in Size Appeal of The Patrick Wolffe Group, Inc., the OHA reversed the Area Office's finding of an ostensible subcontractor because (although the offeror delegated specific contract tasks to be performed by its proposed subcontractor), (i) the offeror alone would manufacture the contract items, (ii) its representative presided over the oral presentation, and (iii) the Contracting Officer concluded that the offeror had the necessary experience and capability to produce the items and manage the contract.

In Size Appeal of Spiral Solutions and Technologies, Inc., the OHA reversed the Area Office's finding of a violation of the ostensible subcontractor rule because the prime contractor would perform primary and vital contract requirements.

In Size Appeal of National Sourcing, Inc., the OHA reversed the Area Office's finding that a firm violated the "ostensible subcontractor" rule and held that the firm was not "unusually reliant" on the alleged affiliate.

In Size Appeal of GPA Technologies, Inc., the OHA reversed the Area Office's findings of affiliation because there was no basis for finding  a lack of clear fracture or identity of interest based only on a limited number of shared employees.

In Size Appeal of Onopa Management Corp., the OHA affirmed the Area Office's finding of affiliation based on the ostensible subcontractor rule through unusual reliance on a subcontractor for vital subcontract requirements.  

In Size Appeal of DoverStaffing, Inc., the OHA affirmed the Area Office's finding of affiliation under the ostensible subcontractor rule due to unusual reliance on a subcontractor because, inter alia, the protested firm intended to hire a significant number of its sub's employees as firm's key employees and relied almost entirely on the sub's past performance for the past experience part of the proposal. 

In Bering Straits Logistics Services, LLC, the OHA reversed the Area Office's finding that a firm violated the ostensible subcontractor rule by unusual reliance on a subcontractor, specifically rejecting the Area Office's conclusions regarding key employees, the importance of a subcontractor's qualifications to obtaining the job, the percentages of labor costs attributable to the contractor and subcontractor, respectively, and the division of work assigned to each.

In Size Appeal of Four Winds Services, Inc., the OHA denied a petition for reconsideration of SIZ-5260 ( which found a violation of the ostensible subcontractor rule) because a firm's proposal did contain a firm commitment to perform the work at issue.

In Size Appeal of Accent Service Co.,  the OHA held that a Master Subcontracting Agreement did not establish a joint venture and did not establish that one firm was the ostensible subcontractor of the other; the fact that the contested firm often awarded subcontracts to another firm did not establish economic dependence, if anything it made the other firm dependent on the contested firm.

In Size Appeal of EarthCare Solutions, Inc., the OHA affirmed the Area Office's  finding that the contested firm would be unusually reliant upon another firm under the ostensible subcontractor rule.

In Size Appeal of Alutiiq Education & Training, LLC, the OHA dismissed an appeal based on an alleged violation of the ostensible subcontractor rule because the contract at issue already had been awarded.

In Size Appeal of Assessment & Training Solutions Consulting Corp., the OHA affirmed the Area Office's determination that there was no violation of ostensible subcontractor rule.

Other Affiliation Issues (e.g., newly organized concern, common management, former affiliate, identity of interest, economic dependence)

In C2G Ltd Co., the OHA reversed the Area Office's determination and found that a firm was no longer affiliated with its former affiliate under the former affiliate rule because the former affiliate was no longer the primary source of its revenue.

In  Allstates Employer Services II, Inc., the OHA affirmed the Area Office's finding that a firm's average annual receipts exceeded the applicable size standard and noted that the issue of the number of employees that should be counted for a firm supplying employee leasing services is irrelevant to a determination under a revenue-based size standard. NOTE: This decision no longer appears in the SBA's database, but there are other decisions that cite to it. 

In Size Appeal of Active Deployment Systems, Inc., the OHA vacated the Area Office's decision and found three firms were affiliated through common management.

In Size Appeal of Argus and Black, Inc, the OHA overturned the Area Office's finding of affiliation through economic dependence because that determination was based only on one, small contract.

In Matter of Artis Builders, Inc. , the OHA upheld the SBA's finding that a non-SDV had the power to control the company's Board of Directors, in part because he was required to be present for a quorum, and the bylaws did not specify what happened in case of a tie vote between the two directors.

In Size Appeal of McClendon Acres, Inc., although the OHA affirmed the Area Office's findings of affiliation with various firms through majority ownership, control based on initial capital contributions, ownership of a non-majority block of stock that was large compared to other outstanding blocks, and identity of family interests without clear fracture, the OHA also held that the Area Office failed to determine the primary industry of a firm applying for HUBZone status and to apply the single appropriate size standard for that industry.

In Size Appeal of Manroy USA, LLC, the OHA overturned the  Area Office's finding of affiliation through identity of interest because the business ties between an individual and a firm were limited to, and did not extend beyond, furthering the business of the challenged entity.

In Size Appeal of ETouch Federal Systems, LLC, the OHA upheld the Area Office findings that firms were affiliated through the newly- organized concern rule (where there was no clear fracture) and by identity of interest due to economic dependence. Size Appeal of ETouch Federal Systems, LLC, SBA No. SIZ-5271 (Aug. 25, 2011) has the same holding.

In Size Appeal of CJW Construction, Inc., the OHA reversed the Area Office's size determination because the Area Office erroneously (i) looked behind a valid mentor-protégé agreement to find a violation of the newly-organized concern rule; (ii) found a violation of the newly-organized concern rule based on a key employee of the new firm who had not been an owner, officer, director, or key employee of the prior firm; and (iii) found affiliation based on the totality of the circumstances based on erroneous and inadequate considerations.

In Size Appeal of Grantco Pacific, Inc., the OHA affirmed the Area Office's finding of affiliation through identity of interest of a firm owned by the son with another firm owned by his parents. 

In Size Appeal of DMI Educational Training LLC, the OHA affirmed the Area Office's findings of affiliation due to (i) common management existing as of the self-certification date and (ii) application of the adverse inference rule (after the protested firm failed to provide information requested by Area Office), even though the Area Office was incorrect on the application of the newly-organized concern rule).

In Size Appeal of BR Construction, LLC,, the  OHA affirmed the Area Office's finding that a minority owner had negative control of a firm where the firm's operating agreement required his approval for many types of actions.

In Size Appeal of TPG Consulting, LLC,, the OHA affirmed the Area Office's determination that a firm was affiliated with Toyota through economic dependence on Toyota as the firm's customer.

In Size Appeal of Active Deployment Systems, Inc., the OHA held that a firm formed by four former employees of a bankrupt firm (none of whom were officers, directors, or owners of that firm) was not affiliated with the bankrupt firm through the newly-organized concern rule even though these personnel were employed by a bankruptcy trustee to assist in winding up the former firm.

In Size Appeal of Technibilt, LTD., the OHA affirmed the Area Office's finding that, under 13 C.F.R. 121.103(c)(2),  a contested firm was affiliated with two firms that each owned approximately 36% of the stock in the company that controlled the contested firm.

In Size Appeal of Siga Technologies, Inc. , the OHA affirmed the Area Office's finding of affiliation through control by the individual who controlled two firms whose combined ownership interest in the protested firm, although a minority, was large compared to all other ownership interests.

Calculation of Number of Employees or Receipts

In Size Appeal of Camden Shipping Corp. , the OHA upheld the Area Office's decision in spite of the appellant's contention that the Area Office did not count all employees of challenged firm.

In Size Appeal of C2 Freight Resources, Inc., the OHA vacated the Area Office's determination because the amounts a firm collects for freight carriers as a property broker should be excluded from the calculation of its annual receipts.

In Size Appeal of Malouf Construction, LLC, The OHA affirmed the Area Office's inclusion of the Mississippi Material Purchase Certificate tax in a firm's average annual receipts because that tax is levied on prime contractors, and there is no indication it is to be collected from a firm's customers on behalf of the taxing authority.

In Size Appeal of Barlovento LLC, the OHA analyzed the calculation of average annual receipts when multiple joint venture affiliates are involved.

In Size Appeal of The MayaTech Corp., the OHA affirmed the Area Office's finding that reimbursements for items the contractor purchased at its customer's request under various government contracts and subcontracts could not be excluded in calculating its receipts under 13 C.F.R. 121.104(a).

In Size Appeal of Hui O Aina, LLC, the OHA granted a petition for reconsideration of SIZ-5245 and held that the contested firm was not a small business because the proper interpretation of footnote 1 to 13 C.F.R. 121.201 ("A firm is small if, including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours") means (i) the majority to the receipts of the challenged concern, itself, must be derived from the generation, transmission, and/or distribution of electric energy, and (ii) the majority of the aggregated receipts of the challenged concern and its affiliates must be derived from the generation, transmission, and/or distribution of electric energy. 

In Size Appeal of Hal Hays Construction, the OHA held that, under 13 C.F.R. 121.104(a)(1), the SBA must use tax returns filed before date of self-certification to determine size, not amended returns filed after that date but before the initiation of the size determination.

In Size Appeal of Griswold Industries dba CLA-VAL Co., the OHA affirmed the Area Office's decision to count a firm's "inactive employees" in determining its size.

In Size Appeal of The Associated Construction Co., the OHA held that the Area Office properly included a firm's interdivisional labor receipts in calculating its average annual receipts because the firm's division was not a separate legal entity and, therefore, not an affiliate within the meaning of 13 C.F.R. 121.104(a)

Miscellaneous

In Size Appeal of OSC Solutions, Inc., the OHA held that, because a solicitation was for services, the nonmanufacturer rule and the corresponding 500 employee size standard did not apply.

In Size Appeal of IRA Green, Inc., the OHA held it was clear error for the Area Office to determine a firm complied with the nonmanufacturer rule solely on the basis of the firm's bare assertions, without requiring any proof, that it normally sold the type of item in question and that it would supply the product of a U.S. small business manufacturer.

In Size Appeal of Innovative Resources, the OHA affirmed the Area Office's finding that the contested firm was not generally affiliated with its joint venture partners under 13 C.F.R. 121.103(h). 

In Size Appeal of Emerald Biostructures, Inc., the OHA held that, under 13 C.F.R. 121.702(a)(1), a firm with multiple layers of corporate ownership above it is ineligible to participate in the SBIR program. 

In Size Appeal of NMA Architects Planners Leed Consultants, the OHA held that,  despite the general rule at 13 C.F.R. 121.404(a) that size is determined as of the date of self-certification with a priced offer, the Area Office erred in dismissing a protest as premature, which was filed upon notification of the identity of the offeror chosen for negotiation (before submission of a price) in a formal two-step procurement for A/E services under the Brooks Act pursuant to FAR 36.6. 

In Size Appeal of Quantum Professional Services, Inc., the OHA vacated a size determination because it was based on a task order award under ID/IQ contract absent a request for size recertification by the ordering agency); Size Appeal of Quantum Professional Services, Inc., SBA No. SIZ-5225 PFR (Apr. 13, 2011) affirmed this decision on reconsideration.

In Size Appeal of Pugh Enterprises, the OHA affirmed (i) a decision that a firm was not eligible for a disaster loan and (ii) the determination of its primary industry.

In Size Appeal of M1 Support Services, LP, the OHA affirmed the  Area Office's finding that a firm (i) was not the manufacturer of the contract items (its proposed subcontractor was) and (ii) was too large to qualify for the application of the nonmanufacturer rule.

8(a) / SDVOSB Status

In Benetech, LLC, the OHA held that a service-disabled veteran who, under Louisiana law, shared management responsibilities with another member of the LLC, did not control the LLC as required by 13 C.F.R. 125.10.

In Ai Procurement LLC/JVS, the OHA held that two service-disabled veterans shared control of the contested firm and that the firm was not disqualified as an SDVOSB by the facts that a non-SDVOSB held a minority interest in the firm or that the SDVOSB was dependent on a non-SDVOSB for certain required licenses.

In the Matter of Construction Engineering Services, an important decision overruling two prior OHA decisions, the SBA's OHA clarified the law and held that, for an SDVO joint venture, it is not required that the SDV control the joint venture. The proper, two-step analysis is: (i) whether the SDVO SBC joint venture partner meets the SDVO SBC program eligibility requirements set forth in Subpart B of 13 C.F.R Part 125; and, then, (ii) whether the joint venture meets the requirements of 13 C.F.R. § 125.15(b).

In Innovative Construction & Management Services, LLC, the Area Office had determined that an 8(a) firm was other than small based on its size as of the dates of (i) its application for 8(a) status and (ii) notice to the firm that its size was in question. The OHA reversed the size determination because the second date used by the Area Office was not the date required by the regulations (i.e., the date the firm was actually certified by the SBA). [SH Note--I can no longer locate a link to this decision]

NAICS

In NAICS Appeal of InGenesis, Inc., the OHA held that a solicitation for physicians' services  was properly classified under NAICS Code 621111 (Offices of Physicians, Except Mental Health Specialists) rather than 622110 (General Medical and Surgical Hospitals).

In another NAICS Appeal of  InGenesis, Inc., the OHA held that a solicitation for  nursing services  was properly classified under NAICS Code 621399 (Offices of All Other Miscellaneous Health Care Professionals) rather than NAICS Code  622110  (General Medical and Surgical Hospitals).

In NAICS Appeal of AllSource Global Management, LLC, the OHA held that a solicitation for administrative support services (including clerical, secretarial, logistical, and administrative services) to various health clinics  was properly classified under NAICS Code 561110 (Office Administrative Services) rather than 561210 (Facilities Support Services).

In NAICS Appeal of  Technica Corp., the OHA held that a solicitation for global information services grid management engineering, transition, and implementation was properly classified under NAICS Code 541512 (Computer Systems Design Services) rather than NAICS Code 517110 (Wired Telecommunications Carriers).

In NAICS Appeal of SD Titan Resources/SM&MM, the OHA held that a solicitation for leased modular vehicles should be classified under NAICS Code 236220 (Commercial and Institutional Building Construction) rather than either NAICS Code 321992 (Prefabricated Wood building Manufacturing), which had been the code designated by the Contracting Officer, or NAICS Code 531120 (Lessors of Nonresidential Buildings (except miniwarehouses)), which was the code proposed by the appellant. 

In the NAICS Appeal of Millennium Engineering and Integration Co., the SBA's OHA upheld the Contracting Officer's assignment (in a NASA procurement) of the exception for Military and Aerospace Equipment and Military Weapons under NAICS Code 541330 ( Engineering Services).

In NAICS Appeal of Phoenix Environmental Design, Inc. , the OHA held that the Contracting Officer should have assigned the manufacturing NAICS code 325320, Pesticide and Other Agricultural Chemical Manufacturing, instead of the wholesale trade NAICS code 424910, Farm Supplies Merchant Wholesalers, because RFQ was for supplies.

In NAICS Appeal of Bevilaqua Research Corp., the OHA held that a solicitation was properly classified under NAICS Code 541690 (Other Scientific and Technical Consulting Services ) rather than 541712 (Research and Development in the Physical, Engineering, and Life Sciences (except Biology)).


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