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2012 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

EAJA

Ostensible Subcontractor

Evaluations

Evaluations

Other Affiliation Issues

Responsiveness/Late Bids

Sole Source

8(a) / SDVOSB Status

Small Business/HUBZone Issues

Responsiveness/Late Bids

NAICS

Recovery of Costs

Discovery/Procedure

Sole Source

Corrective Action

Miscellaneous

 

Successful GAO Protests

Introduction

This year, the GAO published  44 decisions sustaining protests on the merits. 

Defective Solicitations

In InfraMap Corp., the GAO held that the agency's estimate of future underground utility relocation work in a solicitation lacked a rational basis and likely was significantly understated. 

The GAO sustained a protest by DNO, Inc., because the procuring agency did not properly investigate whether the solicitation should have been set aside for small businesses.

Assisted Housing Services Corp. won its protest because the agency should have issued a solicitation for contract administration services rather than simply publishing a notice of funding availability leading to a cooperative agreement.

Asiel Enterprises, Inc., won its protest because the Air Force lacked the authority to transfer its mission essential food service requirements to a nonappropriated fund instrumentality (NAFI) on a non-competitive basis and without a sole-source justification.

The GAO sustained a protest by Verizon Wireless against the terms of a solicitation to establish BPAs with FSS contractors for commercial items and services pursuant to FAR subpart 8.4 because the record did not establish that the procuring agency had performed adequate market research to demonstrate that the solicitation terms were consistent with customary commercial practice (and not unduly restrictive of competition) as required by FAR 12.301(a)(2).

In FirstLine Transportation Security, Inc., an unsuccessful preaward protest, the court held that (i) a solicitation's 40% "goal" for the participation of small businesses in the contract resulting from solicitation, while unusual, was  not illegal, and (ii) the agency had provided sufficient information in the solicitation and elsewhere to permit qualified offerors to compete on informed and equal basis. In a somewhat unusual move, however, the court merely "recommended" that the agency revise the solicitation to eliminate one ambiguity in it.

Flawed Evaluations 

In SeKON Enterprise, Inc.; Signature Consulting Group, the GAO found a  lack of meaningful discussions because, based on an incomplete analysis of the protester's proposal, the agency misled the protester during discussions by directing it to increase its proposed staffing (and thus its costs).

The GAO sustained a protest by MANCON because the acceptability of the offeror's small business subcontracting plan should have been a responsibility issue, not a pass/fail reason for evaluating the proposal as technically unacceptable.

In Standard Communications, Inc., the GAO found the agency treated the eventual awardee and the protester differently by permitting only the former to make material changes in its quotation, which rendered its technically unacceptable quote acceptable.

In ITT Systems Corp., the GAO could not locate any explanation in the record for apparent discrepancies (and the lack of a logical connection) between the results of the cost and technical evaluations.

In IBM Global Business Services, B-404498, .2 (Feb. 23, 2011), the GAO concluded that the agency had rewarded the awardee's proposal on the basis of an unstated evaluation criterion and that the agency had misled offerors by evaluating on basis of much different quantities than those suggested in the solicitation.

In Wisconsin Physician Service Insurance Corp. (which was originally decided in May 2009), the GAO found flaws in the cost realism, technical, and past performance evaluations, as well as a lack of meaningful discussions regarding the protester's past performance. 

The GAO sustained a protest by ERIE Strayer Co. because the agency conducted discussions only with the awardee and downgraded the protester's proposal in an area concerning which the agency could have, but did not, request clarifications.

Digital Technologies won its GAO protest because the price realism analysis lacked a rational basis: the agency failed to follow the solicitation's clear requirement to consider the proposed prices of all offerors in determining whether the  protester's price was realistic.

The GAO sustained a protest by Y&K Maintenance, Inc., because the agency did not evaluate the protester's key personnel in accordance with the solicitation's stated evaluation criteria.

The GAO published two decisions sustaining protests by The Emergence Group on the same solicitation. In the first, the GAO found that the agency (i) did not  meaningfully evaluate the relevance of prior contracts in the past performance evaluation and (ii) did not evaluate the protester's proposal consistently with evaluation of other offeror's proposals. Dissatisfied with the results of the corrective action undertaken by the agency in response to the first protest, the protester filed a supplemental protest against the revised past performance evaluation, which the GAO subsequently found to be unreasonable and not in accordance with the solicitation's evaluation criteria.

The GAO sustained a protest by Tipton Textile Rental, Inc., on multiple grounds: (i) the awardee's quotation failed to comply with a material solicitation requirement; (ii) the evaluators failed to consider the protester's responses to their queries during discussions; and (iii) the agency improperly ignored the awardee's checking of the "is not" a small business box in this small business set aside. Concerning this last subject, the agency stated it believed the awardee had checked the box in error because the agency had found a very similarly named small business listed in ORCA and because the agency's experience was  that checking the wrong box on the standard solicitation representation form was a common mistake. The GAO said it had looked at the form and found nothing confusing about the layout of the standard form. To the contrary, anybody who has ever had to complete that form knows you have to do a double take to make sure which box to check. The form should be revised to eliminate the possibility of errors such as this one.

KPMG LLP won its protest because (i) during discussions, the procuring agency misled it into believing resumes were required for all proposed personnel for the life of the contract; and (ii) there was no basis in the record for the evaluators' conclusions concerning the cost realism of the awardee's proposal, especially where its proposed cost savings depended on replacing the staff members whose resumes had been relied on by the evaluators for its higher technical rating.

Rocamar Engineering Services, Inc., won its protest because the agency improperly conducted a second fire/burn test (not contemplated by the solicitation) on the protester's proposed system after the protester had taken substantial steps to dismantle the system following the completion of the initial test.

Clark/Foulger-Pratt JV won its protest because there was no basis in the record for raising the awardee's rating or for the SSA's conclusion that two offers were technically equal, where that conclusion appeared  to be at variance with the contemporaneous record of the evaluation.

The Clay Group, LLC won its protest because (i) the agency failed to evaluate in accordance with the solicitation's evaluation scheme, and (ii) there was no evidence in the record that the agency evaluated the awardee's product sample for compliance with the salient requirements of the solicitation.

Cyberdata Technologies, Inc., is one of the extremely rare protests the GAO has entertained under its rule at 4 C.F.R. 21.2(c) ("GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest"). Here, the protester won because the agency ignored FAR 8.405-3(a)(2)'s requirement that price be considered in a best value FSS solicitation for a blanket purchase agreement.

In NikiSoft Systems Corp., the GAO originally held that the agency (i) did not meaningfully consider the protester's lower price in awarding to a higher technically rated proposal and (ii) failed to provide a meaningful explanation for its past performance evaluation. Now, after the agency's reevaluation in response to the original protest decision, NikiSoft wins another protest because there is no basis in the record to justify the agency's decision that NikiSoft's proposed level of effort was inadequate and should be adjusted upward. 

Philips Healthcare Informatics won its GAO protest because (i) the VA improperly considered a late proposal revision by the awardee; (ii) the past performance evaluation was unreasonable, inconsistent with the terms of the RFP, and insufficiently documented; and (iii) the agency waived material solicitation requirements only for the awardee.

The GAO sustained a protest by J.R. Conkey & Assocs. because (i) the agency improperly downgraded the protester's proposal as lacking information that was, in fact, included; (ii) the agency's evaluation of the protester's proposal under the Schedule factor was inconsistent with solicitation's evaluation scheme; and (iii) the agency impermissibly limited its tradeoff analysis to the three proposals with the highest technical scores, regardless of their higher prices.

Triumvirate Environmental, Inc. won its protest because (i) the agency's (a) conclusion that the protester's pricing was unbalanced (too low in some cases) and (b) its post hoc rationalization that the protester had used more employees than needed on a prior contract were not sufficient to justify the conclusion that there was a risk of higher prices to the Government; and (ii) the agency's price/technical tradeoff analysis failed to adequately consider the protester's price advantage. 

The GAO sustained a protest by Glotech, Inc. because the agency failed to consider price in evaluating quotations for BPAs under the FSS program.

In Orion Technology, Inc.; Chenega Integrated Mission Support, LLC, the GAO sustained protests by two offerors because the agency mechanically and unequally applied undisclosed staffing estimates in evaluating offerors’ proposed staffing to determine the acceptability of proposals.

Lifecycle Construction Services, LLC, won its protest because the agency's rejection of its proposal as unreasonably low was unreasonable where that determination was based on the fact that the proposed price was 15% below the median of all other proposed prices, which included proposals that were unacceptable, unreasonably high, or otherwise ineligible for award.

Supreme Foodservice GmbH won its protest against the agency's evaluation where (i) the  awardee's proposal was given the highest possible rating in the experience/past performance evaluation despite the fact that none of its past contracts met the dollar size requirements; (ii) the record was insufficient to establish whether it was reasonable for the agency to use  internally-obtained past performance data in place of unfavorable information in the awardee's proposal; and (iii) the agency was inconsistent in its evaluations of the protester's and the awardee's proposals under the past performance factor.

In Emergint Technologies, Inc., there was no basis in the record for the deficiencies the agency found in the protester's proposal in the technical evaluation, and the agency downgraded the proposal for lack of price realism when the solicitation's evaluation scheme did not provide for such an analysis. 

Science Applications International Corp. won its GAO protest because the agency's evaluators did not consider the awardee's particular technical approach in evaluating either its technical proposal or its price realism.

The GAO sustained a protest by Exelis Systems Corp. because the agency's evaluation was not in accordance with solicitation's evaluation scheme and treated offerors unequally.

Responsiveness, Late Bids, Expired Bids

The GAO sustained a protest by W. B. Construction and Sons because both of the agency's grounds for rejecting a bid as nonresponsive were improper: (i) the bidder's failure to provide a price for one of many line items included in a bid schedule, where the omitted item was divisible from solicitation’s overall requirements, de minimis as to total cost, and would not affect the competitive standing of the bidders; and (ii) the bidder's submission of an unbalanced bid where the agency failed to conduct a FAR 15.404-1(g) risk analysis to determine whether the unbalanced bid posed an unacceptable risk to the Government.

Veterans Contracting Group won its protest because the agency improperly rejected its bid as nonresponsive for proposing a brand of chiller and refrigerant that the agency simply did not like, when the specifications neither prohibited those items nor required a different brand.

The GAO sustained a protest by Sea Box, Inc., and held that (i) the failure of the protester's quotation in response to an RFQ to include the 90-day acceptance period stated in the solicitation did not render it unacceptable because quotations are not offers, and (ii) the awardee's failure to comply with the RFQ's requirements to submit technical information concerning its quotation meant the record did not support the agency's decision that its quotation was acceptable.

As noted above, Philips Healthcare Informatics won its GAO protest partially because the VA improperly considered a late proposal revision by the awardee.

In Infoshred LLC, the GAO held the agency was wrong to reject a quotation for failure to acknowledge an immaterial solicitation amendment that did not impose any additional requirements on the contractor. 

Sole Source

Asiel Enterprises, Inc., won its protest because the Air Force lacked the authority to transfer its mission essential food service requirements to a nonappropriated fund instrumentality (NAFI) on a non-competitive basis and without a sole-source justification.

Small Business/HUBZone Issues

In The Argos Group, a protest against the terms of a solicitation, the GAO held that the GSA improperly failed to include the 10 percent price evaluation preference for HUBZone small business concerns mandated by the Historically Underutilized Business Zone Act of 1997, 15 U.S.C. § 657a(b)(3)(B), because the statute applies "in any case in which a contract is to be awarded on the basis of full and open competition," and (i) the lease that will result from this procurement is a contract; (ii) the agency is using full and open competition to award the contract; and (iii) there is no language in the statute suggesting that an exception is applicable for GSA lease procurements.

Aldevra won its GAO protest because the VA failed to consider whether the FSS acquisition should have been set aside for SDVOSBs. Crosstown Courier Service, Inc. won on the same issue. Still later, Aldevra won again on the same issue. Aldevra won yet another GAO protest (actually, it won four more protests, which were consolidated into one decision) against the terms of solicitations because the VA persisted in failing to investigate whether two or more SDVOSBs can meet its requirements at a reasonable price before proceeding with FSS acquisitions, which violates the Veterans Benefits, Health Care, and Information Technology Act of 2006. Later, Aldevra won yet another set of GAO protests on the same basis.  Kingdomware Technologies also won its protest in a situation where the VA's own market research showed at least 20 SDVOSBs could perform the work. However, on November 27, the Court of Federal Claims, in the important Kingdomware Technologies, Inc., decision,  held that, contrary to the conclusions reached in the GAO's Aldevra, Crosstown Service, and Kingdomware decisions, the Veterans Benefits, Health Care, and Information Technology Act does not require the VA to determine whether a procurement can be set aside for VOSBs or SDVOSBs before proceeding with an FSS procurement. The court is not, strictly speaking, an appellate court in relation to the GAO, so it will be interesting to see how the GAO handles the next one of these cases.  

The GAO sustained a protest by DNO, Inc., because the procuring agency did not properly investigate whether the solicitation should have been set aside for small businesses.

In Phoenix Environmental Design Inc., the VA issued a purchase order to a small business in violation of the Veterans Benefits, Health Care, and Information Technology Act of 2006, where the VA (i) was aware of SDVOSBs that appeared capable of performing the work and (ii) did not conclude that there were not two or more SDVOSBs that could perform the work at fair and reasonable prices. 

In Reema Consulting Services, Inc. (an unsuccessful protest filed by one of the original competitors on an 8(a) set-aside of an agency's decision to reprocure as a small business set-aside when existing task orders expire based on a post-award decision by the SBA  that the current contractor  was not an eligible small business), the protester lost (i) its claim for injunctive relief because it was asking the court essentially to preclude the agency from deviating from its planned corrective action, something the agency showed no intention of doing, and (ii) its claim for bid and proposal costs on the original procurement because, since the regulations contemplate both that small businesses can self-certify and that agencies may continue with contract performance in certain circumstances after successful small-business protests, this agency had done nothing wrong in evaluating the original proposals. 

Recovery of Costs

In Shaka, Inc., the GAO held that a successful protester was entitled to recover its costs of filing and pursuing its protest, including attorneys' fees billed to a subcontractor who had supported the protest, as well as the costs associated with pursuing the claim for costs at at the GAO because the agency had unreasonably failed to pay the original claim for costs.

In URS Federal Services, Inc., the GAO recommended reimbursement of costs related only to the portion of the protest that was meritorious.

 

Court of Federal Claims

Timeliness/Standing/Jurisdiction/Automatic Stay 

The court denied a protest by Brooks Range Contract Services, after concluding the plaintiff lacked standing (i) with respect to an argument it was required to, but did not, raise in its initial brief and (ii) because it did not establish it would have had a substantial chance for award if its protest had been sustained. The court also rejected the plaintiff's argument that the awardee's contractor teaming agreement should have been analyzed as a joint venture (although the court did concede that the agency's (and the solicitation's) guidance concerning the requirements for a teaming agreement were far from clear).

Science Applications International Corp. survived preliminary motions to dismiss its complaint for lack of standing based upon the evaluation of its management proposal as unacceptable (even though the court indicated this argument could be raised again in motions on the merits for judgment on the administrative record).

In URS Federal Services , the court (i) denied the Government's request to reconsider a prior decision declaring an agency override of an automatic stay to have been improvidently issued and (ii) concluded that the court is not required to use the four-factor test for injunctive relief when analyzing the merits of an automatic override for purposes of issuing a declaratory judgment.

In Boston Harbor Development Partners, LLC, the court held that the protester lacked standing because its complaint (that a lease should be terminated to allow the procuring agency to complete corrective action in response to a prior protest without possible bias towards the current awardee in the reevaluation) was purely speculative.

In  Solute Consulting, the court held it lacked jurisdiction over a post-award protest of an agency's evaluation of task order proposals (and rejected the protester's definition of the term "scope" in its attempt to fit its protest into the exception for protests of task order awards beyond the scope of the underlying contracts).

In Clinton Reilly, the court held that a bid protest filed more than nine months after the plaintiff learned of the facts forming the basis of the protest was barred by the doctrine of laches.

The court held that, pursuant to 10 U.S.C. 2304c(e)(1), it lacked subject matter jurisdiction over a protest filed by Mission Essential Personnel, LLC, against corrective action undertaken by the agency as a result of a prior GAO protest because Mission Essential's complaint was filed "in connection with" the issuance of a task order.

The court held that Triad Logistics Services Corp., the incumbent contractor, lacked standing to challenge the DoD's insourcing decision because its contract had been completed before it filed its second complaint. The protester had begun challenging the DoD's decision at the GAO before its contract expired and filed its first complaint in the court the day the contract expired, after which the court dismissed that complaint without prejudice because the agency voluntarily undertook corrective action, which the plaintiff promptly challenged when it learned of the results. Thus, the timing of the second complaint was dictated by the actions of the Government.

The court found a post-award protest by Contract Services, Inc., untimely because, prior to submitting its proposal, the protester had not objected to a solicitation requirement that it appear on the list of HUBZone certified firms at the time of proposal submission, even though it had been aware it was not on the list and had asked the SBA to speed up the process of including its name. 

In Three S Consulting, the court held that (i) the protester lacked standing to challenge the original contract award because it was not a qualified offeror and (ii) the alleged actions of a government employee (who was not authorized to enter into government contracts) in facilitating agreements between private parties to complete work on a cancelled contract were not within the court's bid protest jurisdiction.

In 360Training.com, Inc., the court held it had jurisdiction under 28 U.S.C. 1491(b)(1)  over a post-award protest involving a "request for application" issued by OSHA under which successful applicants would be awarded nonfinancial cooperative agreements to provide online OSHA Outreach Training Program courses. The court noted as follows:

[T]he Court recognizes that not all cooperative agreements are procurements under the Tucker Act. Where an agency, pursuant to a statutory directive, is distributing funds or providing assistance to service providers to ensure a service’s availability, it is not conducting a procurement. However, where an agency has a statutory mandate to provide a service, and the agency decides to use a cooperative agreement to obtain the provision of that service, that agency has engaged in a procurement process under the Tucker Act and this Court has jurisdiction over protests in connection with that process.

In CBY Design Builders, the court held (i) it lacked jurisdiction over a challenge to corrective action involving a new OCI determination undertaken by the agency as a result of a prior GAO protest because the corrective action had been completed and favored the plaintiff (even though the results were in the process of being protested at the agency level by its competitors); (ii) a protest against the agency's decision to reopen the competition as corrective action recommended by the GAO is ripe for review without requiring the protester to wait for the results of the corrective action; (iii) the court does not defer to the GAO on questions of law, e.g., interpretations of solicitations; (iv) the GAO's interpretation of the price evaluation scheme was irrational because it would result in price evaluation that violated CICA's requirements; and (v) the agency's decision to undertake corrective action based on the GAO's finding of a flawed technical evaluation had a rational basis.

In International Genomics Consortium, an unsuccessful preaward protest, the court took pains to distinguish (and limit the holding of) Distributed Solutions in concluding that the plaintiff lacked standing to protest an agency's decision to assign one of its prime contractors the responsibility to procure certain services needed to run an agency project.

In Wildflower International, Ltd., the court addressed the effect of the 2012 National Defense Authorization Act's (NDAA) restoration of the previously sunsetted limitations on civilian agency protests of task order awards and held that (i) the new statute does not apply retroactively to divest the court of jurisdiction over a pending protest filed after the prior sunset date but before the 2012 NDAA; (ii) absent FASA's limitations on such protests, the Tucker Act grants the court jurisdiction over protests of task orders; (iii) the court has jurisdiction over a protest of corrective action (the termination for convenience of the protester's prior delivery order and reissuance of the underlying solicitation) as a type of preaward protest; and (iv) the reissuance of an amended solicitation to correct an ambiguity in the original solicitation was reasonable, even if the protester's winning price had been disclosed to other offerors in the interim as required by the FAR.

In Admark Korea Limited, the court held that the accrual suspension doctrine did not apply and that a protest was time-barred by the six-year statute of limitations where the plaintiff waited to protest even though it knew enough to be, and was, very suspicious years earlier that the eventually protested activities (obtaining an AAFES contract by means of bribery) had occurred. The protester argued unsuccessfully that its earlier suspicions would not have overcome the presumption of regularity that is accorded actions of government officials. 

In Elmendorf Support Services Joint Venture, an unsuccessful protest, the court held that, although the incumbent contractor had standing to protest (and the court had jurisdiction to consider) the Government's decision to perform the remainder of the contract in-house rather than exercising further options, the plaintiff was not entitled to a preliminary injunction because: (i) even absent an in-sourcing decision, the Government could have decided not to exercise the options; (ii) the plaintiff waited an inordinate amount of time to file suit after learning of the Government's decision; (iii) the plaintiff's allegation of an inadequate cost comparison was unlikely to succeed on the merits.

In McTECH Corp., a preaward protest, the court held that a protester's amended complaint challenging the scope of the Government's corrective action in response to the original protest concerning the Government's removal of the protester from the competition due to a potential OCI was not moot because potentially viable relief remained available (i.e., the protester still had an argument that the corrective action did not go far enough).

In IHS Global, Inc., the court dismissed a pre-award protest for lack of standing because the plaintiff did not establish it was a qualified offeror with the present capacity to perform the contract resulting from the procurement. 

In The Alamo Travel Group, LP, the court held that a protest against the Government's failure to evaluate past performance information actually involved an untimely challenge to a patent error in the solicitation.

Solicitation Language

The Guzar Mirbachakot Transportation protest is an example of the closer review a protester may receive at the Court of Federal Claims as opposed to the GAO. In this case, the GAO had dismissed a protest based on (i) the agency's assertion that the solicitation prohibited the submission of proposals via "zip" files and (ii) a message sent to by the agency's contract specialist to the protester just a few hours before the proposal deadline stating that such files were prohibited. The court, however, allowed expert testimony and determined (i) that the solicitation contained a latent ambiguity on the issue, (ii) that the protester's interpretation was reasonable, and (iii) that the last-minute email from the contract specialist was not enough to change the court's opinion, especially because the agency had waived other responsiveness requirements for other offerors. Of course, a protest at the court is generally much more expensive than one at the GAO, but you get what you pay for.

In InGenesis, Inc., a bid protest based on the plaintiff's disagreement with a NAICS decision by the SBA's OHA, the court, like the SBA's OHA before it, upheld the Contracting Officer's choice of NAICS code 621111 (Physician's Services) as opposed to 622110 for the solicitation at issue.

In California Industrial Facilities Resources, Inc., the court held that an RFQ and the proposed award of the resulting task order were unobjectionable because they did not exceed the scope of the underlying ID/IQ contracts.

In BINL, Inc., a successful preaward protest, the court held that (i) a group of potential bidders (transportation service providers, i.e., carriers) had standing to challenge the refund terms for lost or damaged freight included in an annual rate solicitation issued by DoD's Surface Deployment and Distribution Command; and (ii) the challenged freight refund terms violated the Carmack Amendment by potentially exposing carriers to essentially duplicative charges  that exceeded the statute's liability limit.

In Golden Manufacturing Co., an unsuccessful preaward protest, the court held that an amendment to the solicitation issued after the initial evaluation of proposals did not change the solicitation's requirements sufficiently to constitute a cardinal change and, therefore, did not require the issuance of a new competition.

Evaluations/Discussions

BayFirst Solutions won its initial protest because the evaluators (i) irrationally awarded a strength to the awardee for inadequate resumes while declining to assign a strength to the protester for resumes that were deemed adequate; (ii) assessed weaknesses in the protester's Transition Plan that were irrational or not warranted under the solicitation's evaluation criteria; and (iii) treated offerors unequally in the Past Performance evaluation. Subsequently, however, the Government cancelled the solicitation and awarded a task order to a firm under its already existing ID/IQ contract as a bridge to tide the Government over until it could issue a new solicitation. BayFirst protested that task order (and the cancellation of the original solicitation) because BayFirst claimed that transferring the incumbent's employees to the bridge contractor during the interim period would deprive BayFirst of the advantage it would have had bidding on the original solicitation since it had planned to offer to use the incumbent's employees (by utilizing the incumbent as its subcontractor). Although the court found it had jurisdiction over significant portions of the protest, which were not affected by the limits on task order protests, the court then denied a second protest because BayFirst failed to prove that the cancellation was unfair or unjustified or that the task order was beyond the scope of the ID/IQ contract.

In GTA Containers, Inc., the court  issued a permanent injunction against performance of a delivery order based on the fact that the awardee's submission to the SBA for purposes of a post-award size determination indicated the awardee did not really intend to subcontract with a firm it had identified in its bid as a subcontractor, a representation the agency's evaluators had relied on in favorably evaluating the awardee's proposal. Also interesting is the court's refusal to acquiesce in the corrective action undertaken voluntarily by the procuring agency during the pendancy of the protest, i.e., terminating all but what the agency regarded as the essential portions of the original delivery order.

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.)

In Contracting Consulting Engineering LLC, the court denied the protester's motion for a preliminary injunction in a post-award protest even though the protester raised "troubling" allegations concerning the agency's evaluations of the experience of the awardee's and protester's key employees (but still set a briefing schedule for a decision on a permanent injunction).

Contracting, Consulting, Engineering, LLC, won its post-award protest because the agency's evaluators irrationally supplied required information missing from the awardee's proposal by assuming that the experience of the awardee's proposed employees was consistent with the evaluators' knowledge of the length of typical agency tours of duty.

In Terex Corp., a post-award protest, although the court could not determine which party's interpretation of test data (concerning whether or not a test vehicle improperly stalled) was correct, it denied the protest because (i) the agency had thoroughly analyzed the data as part of a rational evaluation of the relevant factors (and the court was not in a position to substitute its judgment for that of the agency's evaluators); and (ii) the solicitation did not require offerors to build and test an actual production vehicle, but only to present test data from similar vehicles to the one it planned to provide, which would be predictive, rather than conclusive.

In CBY Design Builders, the court held that the GAO's prior interpretation of the price evaluation scheme was irrational because it would result in price evaluation that violated CICA's requirements, but the agency's decision to undertake corrective action based on the GAO's finding of a flawed technical evaluation had a rational basis.

In Glenn Defense Marine (Asia), an unsuccessful post-award protest, the court found that the evaluations of the awardee's and the protester's past performance had rational bases and that the resulting tradeoff analysis culminating in award to the significantly higher-priced firm with a higher past performance rating was justified where past performance was more important than price in the solicitation's evaluation scheme.

In 360Training.com, Inc., a successful post-award protest, the court held that (i) the agency used undisclosed evaluation factors to disqualify the protester's offer; (ii) the actual evaluation differed from the evaluation scheme described in solicitation; and (iii) there was no rationale for the agency's decision in the administrative record.

In Omniplex World Services Corp., an unsuccessful post-award protest, the court found that (i) although the Government's letter to the offeror did not fulfill the requirements of FAR 15.307(b) to notify the offeror that the Government was establishing a common cutoff date for receipt of final proposal revisions, there was no prejudice because the plaintiff would not have submitted competitive pricing if it had received a compliant letter; and (ii) the Government adequately notified the offeror of deficiencies in its pricing proposal in accordance with FAR 15.306(d).

In Distributed Solutions, Inc., an unsuccessful post-award protest against multiple aspects of an evaluation, the court held that: (i) the protester's contention that the procurement should have been set aside for small business was untimely because it was not raised prior to submission of proposals; (ii) the agency's use of the original technical evaluation panel to reevaluate quotations as corrective action was unobjectionable; (iii) the agency's corrective action plan for the reevaluation was reasonable; and (iv) the agency's evaluation of the protester's quotation under the technical evaluation factor was reasonable, as were its evaluations of the protester's past performance and product demonstration, and of price reasonableness.

In Phoenix Management, Inc., an unsuccessful post-award protest, the court held that (i) an agency's investigation (which rejected the protester's allegations of Procurement Integrity Act violations and Organizational Conflicts of Interest by the awardee) had a rational basis and (ii) the solicitation did not require that an offeror provide commitments to work for it from proposed employees. 

In Afghan American Army Services Corp., a successful post-award protest, the Court of Federal Claims remanded the dispute for a new responsibility determination because the prior determination had been based on (i) allegations of forgery on other contracts (which the court believed the Contracting Officer should have investigated further before accepting) and (ii) a referral for debarment (which was ultimately dismissed after the nonresponsibility determination). This has to be viewed as a unique set of facts because normally a nonresponsibility determination in a situation such as this one would be bullet proof. Subsequently, the court published a redacted version of a classified addendum denying the plaintiff's claims that it had been disparately treated in relation to another similarly-situated firm.

In Atlantic Diving Supply, Inc., an unsuccessful post-award protest, the court rejected the protester's challenges to (i) multiple aspects of the evaluation and (ii) the agency's alleged divergence from an evaluation procedure described only in internal agency document that conferred no rights on offerors.

In Ettifaq-Meliat-Hai-Afghan-Consulting, Inc., the court denied the plaintiff's challenges to a nonresponsibility finding and a finding of ineligibility under the Government's "vendor vetting" procedures in Afghanistan.

In J.C.N. Construction, Inc., a successful post-award protest resulting in the award of bid preparation costs, the court held that the procuring agency had treated offerors unequally where only the awardee had information concerning the work it had already completed on the predecessor contract and thus could underbid other offerors who could not ascertain from the solicitation that the work was no longer required.

In Science Applications International Corp., an unsuccessful post-award protest, the court rejected a plethora of challenges to numerous aspects of the evaluation, including the protester's contentions that the agency evaluated it differently for proposing essentially the same thing as other offerors. Basically, the court concluded that all the evaluations were within the discretion of the agency and had a rational basis in the record.

Sole Source/Small Business/Restricted Competitions

In Ceradyne, an unsuccessful protest, the court held that the Government's decision to modify one awardee's contract to add items that were supposed to have been produced by another contractor that had defaulted on its companion contract (i) was a type of modification contemplated by the original solicitation, (ii) was within the scope of the awardee's contract and (iii) was not an improper sole source award in violation of CICA. The court also held that the plaintiff's complaint about the Government's alleged failure to conduct a proper responsibility determination should be dismissed as moot because the same claim was previously settled as part of a prior GAO bid protest.

In Distributed Solutions, Inc. and STR, L.L.C. (after the CAFC reversed the Court of Federal Claims' prior decision that it did not have jurisdiction over this type of protest), the court held that the procuring agency had not provided a rational basis for switching from proposed direct procurements of two types of software to having its prime contractor to procure the software.

In Res-Care, Inc., the court held that the competition requirement in section 2887 of the Workforce Investment Act does not preclude the Labor Department from setting aside Job Corps procurements for small businesses.

In the important Kingdomware Technologies, Inc., decision, the court held that, contrary to the conclusions reached in several recent GAO protest decisions (including its "Aldevra" decisions), the Veterans Benefits, Health Care, and Information Technology Act of 2006 does not require the VA to determine whether a procurement can be set aside for VOSBs or SDVOSBs before proceeding with an FSS procurement.

In Management & Training Corp., the court denied a protest by the incumbent (the large business operator of the Dayton Job Corps' center) against the agency's decision to set-aside the next procurement for small businesses.

In Systems Application and Technologies, Inc., the court issued a permanent injunction against the decision by the Committee for Purchase from People Who Are Blind or Severely Disabled to place a particular contract on the AbilityOne Procurement List pursuant to the Javits-Wagner-O’Day Act, 41 U.S.C. §§ 8501-506, because the record did not establish that (i) the contract had the potential to create jobs for the severely disabled (or that the severely disabled could perform the work required by the contract) or (ii) the proposed contractor had the capability to meet government quality standards and delivery schedules.

In American Apparel, Inc., an unsuccessful bid protest, the court held that a contract modification adding two types of coats to a contract for coats was within the scope of the contract and, therefore, was not subject to CICA's competition requirements.

In Dellew Corp., an unsuccessful protest alleging the Government had made an improper in-sourcing decision, the court held, among other things, that the decision had been made when the Government had completed the required cost comparison, not at the significantly later times when the Government had terminated the plaintiff's contract for convenience and notified it of the termination.

Responsiveness/Late Bids

In The Electronic On-Ramp, Inc., a successful pre-award protest, the plaintiff convinced the court that the Government's rejection of a proposal as late was unreasonable because the electronic copy had been delivered on time and the only problem with delivery of the hard copy was the Government's delay after the plaintiff's courier made it to the security checkpoint on time.

Discovery/Procedure

In Contracting Consulting Engineering LLC, the court discussed the standards for permitting supplementation of the administrative record.

In Midwest Tube Fabricators, Inc., the court granted the protester's motion to supplement the administrative record by deposing the Contracting Officer (whose declaration had already been filed by the Government) and by filing declarations of its own relating to a simplified acquisition procurement under FAR Part 13 because of gaps in the record attributable to the informal procedures used in the procurement.

In CBY Design Builders, the court granted a motion to amend the terms of the standard protective order to permit counsel for the protester and intervenors to retain copies of protected materials against the possibility that new protests might be filed concerning additional corrective actions or a new award under the same procurement, in order to avoid having to re-copy and re-distribute the voluminous record.

In Laboratory Corp. of America, a protest involving a bid rejected by the GSA's e-Buy website as late, the court ordered briefing from the parties on the issue of sanctionable spoliation after the GSA advised the court that it (routinely) did not retain archival copies of its e-Buy website information needed to address plaintiff's claims regarding the required time for receipt of bids.

Corrective Action

In CRAssociates, the court denied a protest asserting multiple grounds allegedly showing that the agency's second evaluation after a prior successful bid protest was a mere pretext to justify re-award to the original awardee:

In seeking to overturn this award, plaintiff attempts to pile a Pelion of conjecture upon an Ossa of speculation, literally raising dozens of alleged errors in contending that, from the outset, the Army intended to make a second award to Spectrum. But reminiscent of the Greeks of old, whose stone pile atop Mt. Olympus failed to reach the heavens, plaintiff ultimately fails to convince this court that the second set of evaluations performed by the Army was a pretext for giving the contract to its competitor.

Subsequently, the court denied the protester's request for a stay pending its appeal of the court's decision.

In Mission Critical Solutions, the court denied the plaintiff's claim that the agency had violated the court's injunction against a contract award because (i) the new award was not for the same contract covered by the injunction, and (ii) the Government had a good faith basis to interpret the injunction as applying only to the initial procurement, given significant intervening changes in the applicable statute occurring after the date of that procurement.

In Navarro Research and Engineering, Inc., the plaintiff (in protesting the agency's corrective action plan which was based on a prior GAO decision sustaining a protest) essentially asked the court to reevaluate the GAO's  decision, and the court found that all of the GAO's prior holdings were not irrational, including (i) the GAO's decision that the original protests were timely filed under the GAO's protest regulations, (ii) each of the GAO's several holdings that various protest allegations were meritorious, and (iii) the GAO's recommendation for corrective action.

Croman Corp.'s was an unsuccessful protest alleging that the agency's corrective action plan in response to an earlier GAO protest was inadequate to address the alleged errors in the original evaluation. 

EAJA

Standard Communications, Inc., a service-disabled, veteran-owned small business, protested the rejection of its proposal. Originally, the court found that the Government had not properly documented its best-value tradeoff analysis and issued an injunction requiring the Government to conduct another analysis and to document its conclusions. Subsequently, however, after documenting its new analysis, the Government again rejected the protester's proposal. Then, the protester sought to recover approximately $100,000 in legal fees under the Equal Access to Justice Act, as the prevailing party in the original protest. The court, however, denied that request because the Government's position was a "substantially justified" (albeit incorrect) reading of FAR 15.308's requirements concerning documenting best-value tradeoffs. 

Miscellaneous

In an interesting reverse twist on the typical mistake-in-bid case, the court held, in the Virgin Islands Paving bid protest, that the agency lacked a rational, post-award, basis to reject the awardee's bid (and then award to the second-low bidder) on the basis of "mistakes" in the awardee's bid after the agency originally had determined (preaward) that neither the awardee's nor the second-low bidder's bids were mistaken, in part because they were comparable to one another. 

In Your Recruiting Company, Inc., an unsuccessful post-award protest against the Contracting Officer's decision to proceed with award despite a Procurement Integrity Act challenge that certain information regarding the awardee's staffing plan in its proposal was "stolen," the court held that (i) where the statements at issue (a) had not been clearly marked as proprietary initially, (b) involved information that was generally available, and (c) were not the source of the awardee's high evaluation ratings, and (ii) where the awardee stood behind the statements in its proposal, there was a rational basis for the Contracting Officer's decision.

 

Court of Appeals for the Federal Circuit

Jurisdiction/Standing

In Digitalis Education Solutions, the CAFC affirmed a CoFC decision that a company which did not file a statement of capabilities in response to a published notice of a proposed sole-source award lacked standing to protest that award.

In Systems Application & Technologies, Inc., the CAFC affirmed the CoFC's earlier decision holding that (i) the court had jurisdiction under 28 U.S.C. 1491(b)(1) over an awardee's protest against the procuring agency's decision to take corrective action in response to an earlier GAO protest;  (ii) the awardee had standing to file such an action; and (iii) the case was ripe for judicial review.

In COMINT Systems Corporation and EyeIT.com, Inc , a Joint Venture, the CAFC affirmed the CoFC's prior decision denying a protest because (i) the protester waited until after award to challenge a solicitation amendment, making that part of the protest untimely, and (ii) the protester did not establish that its evaluation rating was arbitrary or capricious.

In Evelyn Burney dba Plott Bakery Products, a decision it labels as nonprecedential, the CAFC affirmed the CoFC's prior decision that the portions of a protest alleging patent errors in a solicitation were untimely filed after award and that the protester had not met the heavy burden of showing the evaluation lacked a reasonable basis.

EAJA

In DGR Associates, Inc., the CAFC reversed a CoFC decision awarding the plaintiff EAJA legal fees because, at the time of this dispute, there was significant disagreement among all three branches of Government over the issue in the case on the merits (whether the Small Business Act prioritized the HUBZone program over the 8(a) program), and, therefore, the Air Force's litigation position, although ultimately unsuccessful, was substantially justified.

 

SBA Office of Hearings and Appeals

Jurisdiction/Standing/Timeliness/Procedure

In Size Appeal of Excalibur Laundries, the OHA held that the Area Office was not required to consider a specific allegation of affiliation first raised after the deadline for filing a size protest in a negotiated procurement had passed.

In Size Appeal of Trident3, LLC, the OHA overturned the Area Office's size determination because an 8(a) firm's joint venture agreement was approved prior to the award of an 8(a) contract and Area Office lacked the authority to review the underlying, approved mentor-protégé agreement in context of an 8(a) procurement.

In Size Appeal of Alutiiq Diversified Services, LLC, the OHA held that, where the parties to an approved mentor-protégé agreement also had an approved JV agreement for a particular procurement, the Area Office's decision that it did not have the authority to examine whether the members of the joint venture had formed too many such ventures together over the years was correct (because the SBA already had determined that the JV was approved for this particular procurement). 

In Size Appeal of Tyler Construction Group, the OHA affirmed the Area Office's dismissal of an untimely protest against a firm's size status for task order award where the Contracting Officer had not requested recertification in connection with the award.

In Size Appeal of BR Construction, LLC, the OHA held that an appellant was barred by the doctrine of issue preclusion from raising the same issues decided against it in an earlier appeal.

In Size Appeal of Ma-Chis Lower Creek Indian Tribe Enterprises, Inc., the  OHA held that a firm lacked standing to appeal statements about its own size included in another firm's size determination (but was free to raise those issues if its own size were ever challenged).

In Size Appeal of Williams Adley & Company -- DC, LLP, the OHA upheld the Area Office's use of a firm's most recent tax return, which had not been filed until after the firm's self-certification but which was available at the time of the SBA's size review.

In Size Appeal of Bosco Constructors, Inc., the OHA held that, even though the Area Office erroneously concluded that the protester had been eliminated from the competition (and lacked standing), the appeal should be dismissed as moot because the agency was in the process of making a new award decision, which might result in an award to a different firm from the one whose size had been protested.

In Size Appeal of Hardie's Fruit & Vegetable Company South, LP, the OHA vacated the Area Office's determination and remanded the case for further analysis because (i) it was not clear which NAICS codes were used for the procurements, which in turn, might have affected which protest allegations the Area Office should have considered; and (ii) the Area Office improperly applied the simplified acquisition exemption to its analysis of the procurements. 

In Matter of H&H -- DMS Joint Venture, the OHA agreed that a protest in an Army procurement alleging only that the protested firm did not appear in the VetBiz database had been properly dismissed as insufficiently specific because there is no such requirement for non-VA procurements, and the protest contained no other allegations.

In Matter of Major Contracting Services, the OHA affirmed the dismissal of an untimely protest of a firm's SDVOSB status because the time period to protest started from the day notice was received by email at 4:43 p.m., which was prior to the 5 p.m. close of business.

In Size Appeal of Carntribe-Clement 8AJV # 1, LLC, the OHA reversed the Area Office's finding that a firm was not an eligible small business because the Area Office had exceeded its jurisdiction in a size protest by improperly conducting an analysis of the firm's compliance with 8(a) requirements and because the Area Office had used the wrong legal standard to find affiliation through negative control.

In Size Appeal of Goel Services, Inc., and Grunley/Goel JVD LLC, the OHA dismissed the SBA's petition for reconsideration of the OHA's prior decision (in SIZ-5320) for lack of standing because the SBA had not appeared or participated in the prior appeal.

In Size Appeal of TFab Manufacturing, LLC, the OHA affirmed the Area Office's decision not to examine affiliation because the protester did not allege it in its original protest.

In Size Appeal of HAL-PE Associates Engineering Services, Inc., the SBA's OHA dismissed an appeal involving a firm's SDVOSB status on a VA procurement set-aside for SDVOSBs because the SBA lacks jurisdiction over that issue.

In Size Appeal of Horizon, Inc., the OHA dismissed, as untimely, an appeal filed more than 15 days after the appellant received the Area Office's size determination.

In Size Appeal of HBC Management Services, Inc., the OHA disregarded evidence of affiliation that was publicly available at the time of the original size protest but not offered until the appeal.

In Size Appeal of A & H Contractors, Inc., the OHA vacated the Area Office's size determination because the firm that originally filed the size protest was ineligible for award due to a bid price that exceeded the statutory limit and, therefore, lacked standing to protest in the first place.

In Size Appeal of CS360, LLC, the OHA dismissed (as untimely) an appeal filed with the OHA more than 15 days after receipt of the original size determination. In Size Appeal of Silvergate Pharmaceuticals, Inc., the OHA reached the same conclusion, even though copies of the appeal had been served on the Area Office, the SBA's Office of General Counsel, and the procuring agency within the 15 day period.

In Size Appeal of VMX International, LLC, the OHA held that an Area Office's past size decisions are not res judicata even with the regard to the same Area Office's subsequent determination involving the same general issue and the same challenged firms.

Ostensible Subcontractor

In Size Appeal of SM Resources Corp., the OHA upheld the Area Office's finding of a violation of the ostensible subcontractor rule where the incumbent contractor was the proposed subcontractor; the protested firm planned to employ many of the incumbent's employees, including those for all key positions; the incumbent initiated contact with the protested firm to suggest joining forces for current procurement; and the protested firm did not have significant past experience in the type of work required for the solicitation.

In Size Appeal of HX5, LLC, the OHA reversed the Area Office's finding of a violation of the ostensible subcontractor rule because  the Area Office erroneously (i) made a determination that Appellant's PM was an employee of its subcontractor, (ii) relied upon Appellant's repeated references to its pending (not yet approved) mentor/protégé agreement as indicia of undue reliance, and (iii) conducted its own independent evaluation Appellant's past performance proposal for the procurement, ignoring the RFP's evaluation criteria and the evaluators' contrary conclusions.

In Size Appeal of CymSTAR Services, LLC, the OHA (i) held the Area Office was  correct in finding no violation of the ostensible subcontractor rule and the nonmanufacturer rule where the protested firm prepared the proposal, was the sole interface with the procuring agency, and provided all key management personnel for the contract; and (ii) rejected the protester's contention that the agency's response to a bidders' question regarding prospects for ECPs was sufficient to establish those ECPs would all be awarded and were the primary and vital requirements of the contract. 

In Size Appeal of J.R. Conkey & Assocs., Inc., the OHA upheld the Area Office's finding of no violation of the ostensible subcontractor rule on a construction contract where the prime was to be the sole contact with Government, had significant relevant experience, was to perform a greater percentage of work than alleged ostensible subcontractor, and was clearly responsible for managing all of the contract work.

In Size Appeal of iGov Technologies, Inc., the OHA affirmed the Area Office's finding that the protested firm did not violate the ostensible subcontractor rule even though it would be procuring the majority of contract dollar value as hardware from a subcontractor because the solicitation as a whole called for more than production and was mainly for the provision of services.

In Size Appeal of Santa Fe Protective Services, Inc., the OHA affirmed the Area Office's finding that a firm did not run afoul of the ostensible subcontractor rule because it would be providing the large majority of what the Area Office had determined were the primary requirements of the solicitation, even though that area of work barely qualified as the primary requirement.

In Size Appeal of Santa Fe Protective Services, Inc., the OHA affirmed the Area Office's finding that a firm did not run afoul of the ostensible subcontractor rule because it would be providing the large majority of what the Area Office had determined were the primary requirements of the solicitation, even though that area of work barely qualified as the primary requirement.

In Size Appeal of IPKeys Technologies, LLC, the OHA affirmed the Area Office's finding that there was no violation of the ostensible subcontractor rule.

In Size Appeal of Wichita Tribal Enterprises, LLC, the OHA affirmed the Area Office's finding of a violation of the ostensible subcontractor rule because (i) the subcontractor was the incumbent (and was ineligible to bid on the current procurement); (ii) the protested firm planned to hire the majority of its workforce from the subcontractor, including its proposed project manager; and (iii) the protested firm was a relatively new firm with modest resources and little relevant corporate experience.

In Size Appeal of SIMMEC Training Solutions, the OHA upheld the Area Office finding that the challenged firm was small, (i) rejecting the protester's claim that the Area Office should have conducted further investigation into other areas of possible affiliation, because the protester did not provide evidence alerting the Area Office to other problem areas, and (ii) holding that the challenged firm did not violate the ostensible subcontractor rule and that the Area Office properly excluded the receipts of the firm not found to be affiliated with challenged firm as of the date of self-certification.

In Size Appeal of Competitive Innovations, LLC, the OHA denied a petition for reconsideration of the OHA's earlier decision in SIZ-5369, which had reversed the decision of the Area Office and held that the challenged firm was not a small business for purposes of the procurement at issue because the firm was affiliated with its four subcontractors through the ostensible subcontractor rule.

In  Size Appeal of Assessment and Consulting Solutions Training Corporation, the OHA affirmed the Area Office's size determination because (i) compliance with the "Limitations on Subcontracting" clause is a matter of contract administration, not for consideration in a size determination; and (ii) the challenged firm did not violate the ostensible subcontractor rule because it was not subcontracting with the alleged ostensible subcontractor.

In Size Appeal of J. W. Mills Management, LLC, the OHA reversed the Area Office and held that a firm that would provide the primary and vital contract services as the prime contractor did not violate the ostensible subcontractor rule.

Other Affiliation Issues

In Size Appeal of RGB Group, Inc., the OHA upheld the Area Office's finding of affiliation through identity of interest with no clear fracture between a husband and wife who had numerous ties to one another in operation of various firms.

In Size Appeal of AIS Engineering, Inc., the OHA held that the Area Office correctly found that a firm's purchase of only some of the assets of a large business did not invoke the successor-in-interest rule (and also noted that interdivisional transactions are excluded from the calculation of receipts).

In Size Appeal of Ceres Environmental Services, Inc., the OHA held the Area Office had incorrectly conducted a size determination in an unrestricted procurement on a firm that did not check the box representing itself as small because the Area Office's had improperly placed reliance on CCH data, ORCA status information not available until after submission of the original priced offer, and a self-certification on another procurement.

In Size Appeal of Signal Ship Repair, LLC, the OHA held (i) the Area Office correctly applied the adverse inference rule after the protested firm twice ignored the Area Office's request to provide information on the number of employees of affiliated firms; and (ii) it was reasonable for the Area Office to base its finding of affiliation on the protested firm's own representation that one firm owned a majority interest in another.

In Size Appeal of W.I.N.N. Group, Inc., the SBA's OHA affirmed the Area Office's conclusion  regarding the "present effect rule" and held that: (i) two firms had not reached an agreement in principle to merge as of the date of submission of the original quote on a solicitation; and (ii) the fact that the firms merged after that date did not affect the original size determination for that procurement.

In SP Technologies, LLC, the OHA overturned the Area Office's finding of affiliation through identify of interest because there was a clear fracture between the allegedly affiliated firms, and the individual with the alleged identity of interest was only a minority shareholder who did not control the allegedly related firm.

In Size Appeal of Rio Vista Management, the OHA found that the Area Office's size determination contained multiple errors, including (i) reliance on circumstances occurring more than three years before the date of the size determination; (ii) finding affiliation from assistance properly provided under an approved 8(a) mentor-protégé agreement; (iii) finding a violation of the newly-organized concern rule when the protested firm's founder was not in one of proscribed positions at the predecessor firm; and (iv) finding affiliation based on an identity of interest between two individuals when neither of them controlled the allegedly affiliated firm.

In Size Appeal of Allied Technical Services Group, the OHA upheld the Area Office's conclusion that both the 40% and 35% owners of the contested firm had the power to control it, and, therefore, the firm was affiliated with four other firms controlled the 40% owner.

In Size Appeal of Advent Environmental, Inc., the OHA affirmed the Area Office's finding of affiliation through common ownership and control and held that, pursuant to 13 C.F.R. 121.103(c)(2), one of the four owners of 25% shares in a company (who also served on its board of managers) had the power to control it and was not merely a passive investor.

In Size Appeal of Nuclear Fuel Services, Inc. , the OHA reversed the Area Office and held that (i) the "present effect" rule did not require a finding of affiliation where discussions between two firms concerning merger or acquisition had not reached the status of an agreement in principle at the time of self-certification (although agreement was reached very shortly thereafter) and (ii) the NAICS code under which size should have been assessed was the one the prime contractor had assigned to the RFP in question rather than the NAICS code for the contested firm's primary industry.

In Size Appeal of Magnum Opus Technologies, the OHA vacated the Area Office's decision on two grounds: (i) the Area Office had improperly based its decision on one violation of the "3-in-2" joint venture rule (which had occurred five years before the events involved in the size protest) without giving notice of the issue to the protested firm, which violated due process; and (ii) the Area Office incorrectly concluded that one violation of the "3-in-2" rule ( particularly by 8(a) BD mentor and protégé when the joint venture in question is not even involved in the instant procurement) automatically establishes that general affiliation exists.

In Size Appeal of Reliable Contracting Group, the OHA affirmed the Area Office's finding that two firms were not affiliated because the assistance provided by one to the other was pursuant to a valid mentor-protégé agreement.

In Size Appeal of Alutiiq Education & Training, LLC, the OHA affirmed the Area Office's finding that firms were not affiliated under the identity of interest, ostensible subcontractor, or totality of the circumstances rules.

In Size Appeal of HAL-PE Associates Engineering Services, Inc., the OHA affirmed the Area Office's finding of lack of affiliation based on the newly organized concern, ostensible subcontractor, identity of interest, and totality of circumstances rules.

In Size Appeal of Macro-Z Technology Co., the OHA affirmed the Area Office's decision drawing adverse inferences based on repeated failures of the protested firm to provide relevant information requested by Area Office. 

In Size Appeal of Roundhouse PBN, LLC, the OHA held that, given the exception at 13 C.F.R. 121.103(b)(2) for analyzing affiliation issues involving Indian tribes, the Area Office erred in finding a firm that was owned by a holding company (which was, itself, owned by a federally-recognized Indian tribe certified as economically disadvantaged by the SBA) was affiliated with other firms owned by same holding company through the newly organized concern rule, identity of interest, the ostensible subcontractor rule, or the totality of the circumstances.

In Size Appeal of Environmental Restoration, LLC, the OHA remanded the case to the Area Office for further investigation because it had not adequately analyzed possible affiliation through common management, including several identical board members on both alleged affiliates.

In Size Appeal of Professional Performance Development Group, Inc., the OHA affirmed the Area Office's denial of a protest because the protester had not presented specific evidence to support its allegation of a violation of the 3-in-2 joint venture rule, and, even if it had done so, the "violation" would have been irrelevant because the firms in question were members of an approved 8(a) mentor-protégé arrangement.

In Size Appeal of Willow Environmental, Inc., the OHA reversed the Area Office's determination that the challenged firm was affiliated with another firm by virtue of the identity of interest or newly organized concern rules. 

In Size Appeal of Alleo Corporation, the SBA's OHA affirmed the Area Office's finding that two firms were affiliated through identity of interests because the principals of the firms were mother and son, respectively.

In Size Appeal of Bosco Constructors, a continuation of Roundhouse saga, the OHA held that a firm owned by an Indian Tribe is exempt under 13 C.F.R.  121.103(b)(2) from a finding of affiliation through common ownership or management. 

In Size Appeal of Civitas Group, LLC , the OHA affirmed the Area Office's finding of affiliation by means of control by a minority stockholder whose ownership interest was 1.75 times larger than the next largest shareholder's.

In Size Appeal of VMX International, LLC, the OHA held that (i) an Area Office's past size decisions are not res judicata even with the regard to the same Area Office's subsequent determination involving the same general issue and the same challenged firms; and (ii) the Area Office was correct in this instance in finding that two firms were affiliated through economic dependence because one was dependent on the other for the vast majority of its revenues.

8(a) / SDVOSB Status

In Matter of RUSH-LINK ONE Joint Venture, the OHA upheld the determination that the protested firm was not a properly constituted SDVOSB joint venture because (i) the SDV did not (a) own and control the SDVOSB member (having received commercially irregular loans from the minority owners) or (b) control the board of directors of the joint venture; and (ii) the proposed project manager for the contract at issue was not an employee of the SDVOSB.

In Matter of HANA-JV, the OHA affirmed a finding that a JV failed to meet multiple requirements at 13 C.F.R. 125.15 for qualified SDVOSB JVs, including the requirement to designate an SDVO SBC as the managing venturer of the joint venture.

In Matter of Unicon, Inc., the OHA held the SBA had correctly denied admission to the 8(a) program on the basis that an individual of Iranian heritage had not presented adequate proof that his business opportunities had been impaired as a result of ethnic bias.

In Matter of Best Technology Services, Inc., the OHA granted the Government's motion to dismiss the appeal for lack of jurisdiction because the SBA's denial of a firm's admission to the 8(a) program had been based in part on a negative finding of potential for success pursuant to 13 C.F.R. 124.107, over which the OHA lacks jurisdiction.

In Matter of Loyal Source Government Services, the OHA remanded the case to the SBA for further proceedings because the SBA (i) had improperly disregarded incidents of alleged social disadvantage presented in the 8(a) applicant's request for reconsideration of an initial denial of its entrance into the 8(a) program, and (ii) had not adequately documented its analysis of other allegations.

In Matter of BDS Protective Services, LLC, the OHA overturned the SBA's determination that an 8(a) applicant did not not manage a firm on a full-time basis as required by 13 C.F.R. 124.106 simply because his full-time, night-shift work on the third shift at another firm "might" detract from his ability to concentrate on the development of the applicant firm. The OHA noted that the applicant had been operating successfully on the same schedule for 10 years.

In Matter of C.J. Hearne Construction Co., the SBA's OHA granted the SBA's petition to dismiss an appeal because the company that had been terminated from the 8(a) program did not deny that it had failed to repay a debt to the Government.

In Matter of StrategyGen Co., the OHA found that the SBA had misinterpreted and misapplied the "chronic and substantial bias" test of social disadvantage due to gender and, therefore, had improperly denied a firm entry into the 8(a) program.

In Matter of Wholesale Distribution, the OHA decided the SBA had a rational basis for denying an applicant admission into the 8(a) program because she failed to prove that her narcolepsy and epilepsy had resulted in a disability-related bias.

In Matter of Novel Wares, Inc., the OHA held it lacked jurisdiction over an appeal from a denial of admission to the 8(a) program because it was based on something other than a negative finding of social disadvantage, economic disadvantage, ownership or control, i.e., the fact that the business had not existed for the required two-year period.

Other Miscellaneous Size Issues

In Size Appeal of Wear Mark, Inc., the OHA interpreted one prong of the nonmanufacturer rule at 13 C.F.R. 121.406(b)(iii): A firm can qualify as a nonmanufacturer if it "[t]akes ownership or possession of the item(s) with its personnel, equipment or facilities in a manner consistent with industry practice by arranging for the transportation of the contract items." The OHA interpreted this prong to establish an either/or requirement: (i) ownership (without more) or (ii) possession of the items with its personnel, equipment, or facilities. Thus, a firm that used a common carrier to transport goods satisfied the ownership prong of requirement because (i) the existence of a carrier lien on the goods was irrelevant, and (ii) there was no requirement for the contested business also to have possession of the goods or to have ownership with its own personnel, equipment, or facilities. 

In Size Appeal of Professional Product Services, Inc., the OHA denied an appeal and held that, in an FSS solicitation set aside for small businesses that was silent as to which NAICS code should apply, the Area Office had chosen an appropriate size standard (following a size protest) with which to analyze the awardee's size, pursuant to which the firm was not small.

In Size Appeal of American Construction Co., the OHA affirmed the Area Office's finding that the challenged firm complied with 13 C.F.R. § 121.201, n.2, which provides that, to be considered small under the exception in the regulations for Dredging and Surface Cleanup Activities under NAICS Code 237990, a "firm must perform at least 40% of the volume dredged with its own equipment or equipment owned by another small dredging concern."

In Size Appeal of American Blanching Company, the OHA held that the Area Office properly applied the adverse inference rule to find a firm other than small after it failed to submit the requested Form 355 in response to a size protest.

NAICS

In NAICS Appeal of Ash Stevens, Inc., after offerors had submitted proposals and participated in discussions, the Contracting Officer notified Ash Stevens that, although the NAICS code in the original solicitation was correct, the associated size standard had been incorrectly stated. Ash Stevens asked the Contracting Officer to waive the requirement and, after being informed that was not possible, protested the original NAICS code. The OHA held that since the NAICS appeal had been filed more than 10 days after the solicitation was issued (and more than 10 days after the Government had notified Ash Stevens that the size standard in the solicitation was erroneous), the appeal was untimely.

In NAICS Appeal of R. Christopher Goodwin & Assocs., Inc. and NAICS Appeal of Eagle Home Medical Corp., the OHA dismissed, as untimely, two appeals of Contracting Officers' NAICS designations filed more than 10 calendar days after the issuance of the solicitations in question, in each case noting that the current reference to 10 "business" days in 13 C.F.R. 121.1103(b)(1) is an inadvertent, clerical error in the regulation.

In NAICS Appeal of Delphi Research, Inc., the OHA held that the correct NAICS designation for a procurement to perform research facilities and engineering support services at the Dryden Flight Research Center was NAICS Code 541513, Computer Facilities Management Services ( with a corresponding size standard of $25.5 million in average annual receipts), not NAICS Code 541712, Research and Development in Physical, Engineering, and Life Sciences (except Biotechnology).

In NAICS Appeal of Dial General Engineering, the OHA held that the correct NAICS designation for a procurement to raise, realign, and reset upright marble headstones, flat markers and private headstones onto a new marker grid support system at a national cemetery was NAICS Code 238110, Poured Concrete Foundation and Structure Contractors ( with a corresponding $14 million annual receipts size standard), not NAICS Code 561730, Landscaping Services.

In NAICS Appeal of CHP International, Inc., the OHA held that the correct designation for a procurement of Job Corps outreach and admissions and career training services was NAICS Code 541611, Administrative Management and General Management Consulting Services ( with a corresponding $14 million annual receipts size standard), not NAICS Code 561990, All Other Support Services ( with a corresponding $7 million annual receipts size standard).

In NAICS Appeal of J.D. Broco, LLC, the OHA dismissed a NAICS protest for lack of standing because protester was not a qualified offeror on the procurement.

In NAICS Appeal of edCount, LLC, the OHA held that the Contracting Officer erred (i) by stating that either of two NAICS codes, with  different size standards, might apply to the procurement, and (ii) by indicating that the procuring agency would determine which of those codes to utilize only at the time of contract award.

In NAICS Appeal of IMPAQ International, LLC, the OHA affirmed the CO's designation of NAICS Code 541611 (Administrative Management and General Management Consulting Services) as opposed to 541720 (Research and Development in the Social Sciences and Humanities) to cover a solicitation requiring support for the Job Corps' data integrity, program evaluation and statistical support program functions.

In NAICS Appeal of Cape Fox Government Services, LLC, the SBA's OHA dismissed, as untimely, a NAICS appeal filed 14 calendar days after issuance of the solicitation.

In NAICS Appeal of IMPAQ International, LLC, the OHA affirmed the CO's designation of NAICS Code 541611 (Administrative Management and General Management Consulting Services) as opposed to 541720 (Research and Development in the Social Sciences and Humanities) to cover a solicitation requiring support for the Job Corps' data integrity, program evaluation and statistical support program functions.


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