Stan Hinton

2014 Procurement Review: Protests

Contents

Successful GAO Protests

Introduction

The GAO published 39 decisions sustaining protests on the merits (some of which were originally dated in 2013 but not issued to the public as redacted versions until this year). 

Defective Solicitations

The GAO sustained a protest by Iyabak Construction, LLC, against the terms of a solicitation as unduly restrictive of competition because the agency failed (despite repeated opportunities to do so) to articulate a rational basis for the solicitation's statement that the experience and past performance of an offeror's affiliates would not be considered in the evaluation, even with firm commitments from them to perform a meaningful part of the work.

The GAO sustained a protest by System Studies & Simulation, Inc. because the agency's actual needs, as reflected in the contract it awarded, were less than 30% of the amount solicited.

Raymond Express International won its GAO protest against the price evaluation methodology stated in a solicitation because it was ambiguous.

Flawed Evaluation / Lack of Meaningful Discussions 

Wyle Laboratories, Inc., won its GAO protest because the procuring agency did not evaluate any effects of the awardee's disclosed plans to split itself into two companies, one of which would actually perform the contract.

In Piquette & Howard Electric Service, Inc., the GAO sustained the protest because, after the initial evaluation, an agency conducted discussions with the eventual awardee and then allowed only that firm to revise its technical proposal, which resulted in a reevaluation.

In Kardex Remstar, LLC, the GAO rejected the agency's contention that it had only engaged in clarifications with the protester and then sustained the protest because the agency had failed to alert the protester to a deficiency during discussions that rendered its quotation unacceptable.

The GAO sustained a protest by Motorola Solutions, Inc., because the awardee's proposal did not include required evidence that it could actually obtain the equipment it proposed to use, which was material to the acceptability of its proposal.

In Solers Inc., the GAO sustained a protest because (i) the record was inadequate to establish a rational basis for the agency's evaluation of (a) the awardee's proposed labor mix for both the cost-reimbursable and fixed-price CLINs, and (b) the realism of the awardee's proposed level of effort for the fixed-price CLINs; and (ii) the procuring agency's arguments advanced only after the protest had been filed were not an adequate response to the protester's contention that the agency's original evaluation failed to credit its technical proposal for items that exceeded the solicitation requirements.

In McGoldrick Construction Services Corp., the GAO sustained the protest because the agency had improperly downgraded a proposal based on an unstated evaluation criterion concerning quality control staffing requirements.

The GAO sustained the protest in Prism Maritime, LLC,  because (i) there was no basis in the record for SSA's evaluation that disagreed with all the negative findings of the evaluators; and (ii) the cost realism evaluation was flawed, and the SSA used the competitors' proposed, rather than evaluated, prices in making the source selection decision.

Navarro Research and Engineering, Inc. won its portion of a GAO protest because several discriminators used by the agency to distinguish between two similarly rated proposals could not withstand scrutiny and were the result of unreasonable conclusions, unequal evaluations, or inaccurate judgments regarding the differences between the two proposals.

The GAO sustained a protest by Marathon Medical Corp. because the agency permitted the awardee, but not the protester, to submit information establishing the acceptability of its proposal.

Gaver Technologies, Inc., won its protest because (i) there was no rational basis for the source selection authority's failure to credit the protester with several innovative approaches previously found by the agency's evaluators to be significant strengths in its proposal; and (ii) the agency credited the awardee with a 30-day phase-in plan (and relied on that attribute as a key discriminator between the awardee's and the protester's proposals) when the awardee (like the protester) only proposed a 60-day phase in.

Native Resource Development Co. won its protest because (i) the agency acted unreasonably in finding the protester's overall proposed staffing level  to be a weakness without giving the protester reasonable notice of, and the opportunity to address, the agency’s internal staffing estimate and without providing analysis as to specific areas in which the protester’s final staffing numbers were considered insufficient; and (ii) the agency did not even attempt to rebut the protester's contention that its Past Performance should have received the "Outstanding" rating.

Iron Vine Security, LLC won its protest because the agency failed to follow the solicitation's  requirement to evaluate the price realism of proposed labor rates.

The GAO sustained a protest by Raytheon Co. because (i) there was no rational basis in the record for certain discriminators found by the agency between the protester's and the awardee's proposals; and (ii) the agency improperly credited the awardee for the experience of an affiliate that was not shown in the awardee's proposal to contribute significantly to the proposed contract work.

The GAO sustained a portion of a protest by Risk Analysis and Mitigation Partners because the agency used unstated evaluation criteria, which offerors could not reasonably know to address in their proposals, to assign weaknesses to the protester's proposal.

Alutiiq Pacific, LLC won its protest because: (i) the agency credited the awardee with the experience of two affiliated firms even though its proposal did not explain how they would contribute significantly to the work; (ii) the agency accepted the awardee's assertion that it would retain a large proportion of the incumbent's staff even though its proposal showed it intended to offer them significantly less pay than the incumbent had; and (iii) the agency treated similar aspects of the awardee's and the protester's proposals disparately in the evaluation.

In Intelligent Decisions, Inc., et al., the GAO sustained parts of several protests because (i) the agency's performance confidence evaluation failed to consider all the elements required to be evaluated by solicitation, and (ii) the agency's final source selection decision failed to meaningfully consider the offered prices.

In PricewaterhouseCoopers LLP, the GAO sustained a protest because there was no rational basis for source selection authority's conclusion (which contradicted that of the evaluators) that the awardee's Past Performance distinguished its proposal from the protester's.

CPS Professional Services, LLC won its protest because the agency failed to follow the solicitation's requirement to assess the relative relevancy and quality of offerors' past performance submissions.

Electrosoft Services, Inc. won its protest because the GAO found flaws in the agency's evaluations of: (i) the experience of the awardee's proposed program manager; (ii) the protester's past performance; and (iii) the relative technical merits of protester's and the awardee's proposed approaches, which were similar.

In Swets Information Services, the GAO found insufficient documentation in the record to determine whether the agency's evaluations of vendors' product demonstrations were reasonable and, therefore, sustained that portion of the protest.

FCi Federal, Inc. won its protest because, in making an affirmative responsibility determination concerning the awardee, the Contracting Officer failed to investigate and consider serious open allegations of fraud against the awardee's parent with which the awardee was closely connected.

The GAO sustained the protests by Computer Sciences Corp., et al. because the agency's cost realism, past performance, technical, and tradeoff evaluations were all flawed. 

The GAO sustained a protest by Quality Services International, LLC because the agency did not evaluate the awardee's experience in accordance with the solicitation's evaluation scheme.

CGI Federal Inc. lost on many of its protest grounds, but it only takes one winner to prevail, and the GAO held that the original price evaluation scheme should have been revised to match the agency's changed ordering strategy.

Responsiveness, Late Bids, Expired Bids

The GAO sustained a protest by C&D Construction, Inc., because the agency improperly waived a material IFB requirement for the awardee by ignoring a problem in its bid that resulted in the lack of a clear commitment to perform the optional scope of work.

ICI, Services, Inc., won its GAO protest against the agency's rejection of its submission of a revised proposal by email to the Contract Specialist after the agency and several offerors had experienced problems with the SeaPort-e Proposal Event Website portal officially designated for receiving proposals, because (i) the offeror had received permission from the Contract Specialist to email the proposal revision directly to him, (ii) that email had been timely sent and received, and (iii) the protester timely complied with the agency's subsequent solicitation amendment  instructing all offerors to resubmit the proposal revisions to the SeaPort-e website portal.

The GAO sustained a protest by AeroSage LLC, because the Contracting Officer had improperly imposed a bid confirmation requirement not identified in the solicitation and had relied on the protester's failure to respond to it to bypass the protester's low bid, despite the fact that the protester had timely and properly confirmed its bid in accordance with the solicitation's terms.

The GAO sustained a protest by Hamilton Pacific Chamberlain, LLC, and held that the awardee's failure to submit the required original of its bid guarantee at bid opening could not be waived by the agency as a minor informality.

In IBM U.S. Federal, et al., the GAO sustained a protest because an awardee's quotation took exception to material solicitation terms and violated the solicitation’s page limit provisions, and the SSA’s decision overruling the technical evaluation committee’s determination regarding the technical unacceptability of the quotation was inadequately documented.

Paradigm Technologies, Inc. won its GAO protest because the agency had ignored the fact that the awardee's proposal failed to satisfy a material solicitation requirement concerning key personnel.

Federal Builders, LLC-The James R. Belk Trust won its GAO protest because the agency accepted a proposal that did not include a clear commitment to pay the wage rates required by the solicitation for reconstruction of the existing building it offered. 

Premiums & Specialties, Inc. won its protest because the GAO found it unreasonable for the agency to reject the protester's low quotation after the agency had waited less than an hour to hear back from its telephonic message requesting the firm to confirm the quotation when the solicitation had not advised bidders that such fast responses would be required.

Sole Source/Small Business/Restricted Competitions

In Coulson Aviation (USA) Inc., et al., the GAO sustained the protest because the agency's agreement to award a sole-source contract to a firm in exchange for its withdrawal of a protest was not an adequate justification for a sole-source award.

In BGI-Fiore JV, LLC, the GAO found that an agency had improperly determined an 8(a) JV member was ineligible to compete on the basis that the SBA had not approved its JV agreement by the time proposals were submitted--SBA's regulations only require approval by the time of award.

In FitNet Purchasing Alliance, the GAO sustained the protest by a small business because (i) the agency's past performance evaluation was flawed in several respects; and (ii) that evaluation amounted to a finding that the protester was nonresponsible, an issue that should have been referred to the SBA for a COC determination.

Recovery of Costs

In Carney, Inc.--Costs, after the agency took corrective action following the filing of the protester's comments on the agency report, the GAO limited the protester's  recovery of costs to a segregable protest ground that was clearly meritorious.

In Intermarkets Global--Costs, the GAO held that, absent more reliable documentation from the protester, the agency had reasonably calculated  the amount of claimed costs attributable to a successful protest issue based on the percentage of pages in the protest that had been devoted to that issue.

In VSE Corp.; The Univ. of Hawaii--Costs, the GAO recommended the reimbursement of costs, but only for the segregable, successful protest grounds, where the agency waited until after the protesters had filed comments on the agency report to take corrective action.

In CACI Technologies, Inc.--Costs, the GAO recommended that the protester be awarded its costs of filing and pursuing its protest because the agency waited until after the outcome prediction conference before undertaking corrective action.

Conflict of Interest/Unfair Competitive Advantage

In International Resources Group, the GAO held that the procuring agency had failed to adequately investigate whether the awardee's employment of a high level agency official involved with the procurement had afforded the awardee access to non-public, competitively useful information, and, therefore, the GAO sustained a protest alleging that the employment had resulted in an unfair competitive advantage.

Court of Federal Claims

Timeliness/Standing/Jurisdiction/Automatic Stay 

In SRA International, Inc., the court held that FASA's limitations on task order protests did not deprive the court of jurisdiction over a claim that an agency's use of FAR 9.503 to waive an OCI was ineffective. The court held that the protest did not involve the alleged violation of a regulation occurring "in connection with" the issuance of a task order even though the agency had made the waiver specifically in order to get rid of the protest and to get on with this particular procurement. Subsequently, the Court of Appeals for the Federal Circuit vacated the decision, and, finally, the Court of Federal Claims dismissed the case.

In Innovative Management Concepts, Inc., the court dismissed (for failure to state a claim upon which relief could be granted) a suit essentially claiming that a prior GAO protest decision lacked a rational basis. The court noted it does not function as an appellate court from the GAO and that the protest should have been framed as a direct challenge to the underlying agency procurement action. 

In B&B Medical Services, Inc. , the court dismissed a protest as moot because a recently revised regulation will result in the protester being considered an eligible small business despite its differences with the Government over the proper interpretation and application of the non-manufacturer rule. In other words, no harm, no foul.

In Bannum, Inc., an unsuccessful protest, the court held that a firm whose offer did not comply with a mandatory solicitation requirement (and was, therefore, nonresponsive) lacked standing to protest. In an interesting side note, the court also held that the Federal Circuit's decision in Blue & Gold Fleet does not require a formal preaward protest of a solicitation defect to the GAO or court: a letter addressed to the Contracting Officer and explicitly objecting to the solicitation's terms was sufficient to preserve the protester's right to later file a post-award protest against the terms in court, even if the original letter did not conform to all regulatory requirements for an agency-level protest. 

In Hughes Group, LLC, an unsuccessful post-award protest, the court held that the incumbent lacked standing to protest discussions with the awardee leading to the new award because its low evaluation rating meant it had no substantial chance of receiving the award.

In Science and Management Resources, Inc., an unsuccessful post-award protest, the court denied the Government's motion to dismiss for lack of standing because standing is determined based on the allegations in the complaint, not from a decision on their merits.

In Orbis Sibro, Inc., the court dismissed a protest because, under FASA, the court lacked jurisdiction over the protester's challenges to the evaluation in a competition for an individual task order under a multiple order ID/IQ contract.

The court denied a protest by Lawrence Battelle, Inc., et al., which was not filed until a year after a prior GAO decision denying the protest, because (i) the court lacked bid protest jurisdiction over allegations sounding in tort and those alleging fraud and racial discrimination under 42 U.S.C. 1983; (ii) the protester was not entitled to discussions concerning the weaknesses in its proposal since it was not within the competitive range; and (iii) the protester's other protest allegations were untimely or had been waived.

In Kellogg Brown & Root Services, Inc., the court dismissed a suit styled as a preaward bid protest because it actually involved matters of contract administration in a contract close-out.

In Octo Consulting Group, Inc., after the protester conceded at oral argument that its evaluated score would not put it in line for award, the court held it lacked standing because it could not establish prejudice. 

In Trident Technologies, LLC, an unsuccessful protest, the court  held that it lacked jurisdiction over a protest of a task order award for less than $10,000,000, and a post-award protest against the procedures the agency had chosen for the solicitation was untimely.

In VFA, Inc. , the court dismissed a protest for lack of jurisdiction because the Government's decision to standardize operations by using software it already owned was not a procurement.

In Savantage Financial Services, Inc., the court dismissed a protest as moot after the Government decided to take corrective action.

Solicitation Language

In Optimization Consulting, Inc., the court held, inter alia, that (i) the protester had waived its objections to the pricing model to be used in the evaluation by failing to protest prior to the deadline for the submission of proposals; and (ii) there was nothing improper in the evaluation panel's Past Performance rating of the protester, which (due, in part, to the personal knowledge of the situation by one of the evaluators) discounted the rating given the protester by its Contracting Officer on its prior contracts.

In SEK Solutions, LLC, the court upheld the DLA's decision to create an "Emall" of tent systems through the use of an unrestricted procurement for ID/IQ contracts, followed by competitions limited to ID/IQ holders for individual orders, denying plaintiff's allegations that (i) the procurement violated various CICA and FAR requirements and (ii) the Contracting Officer had failed to conduct a proper Rule of Two analysis in deciding not to set aside the procurement for small businesses.

In CGI Federal Inc., the court held that unusual payment terms included in an FSS solicitation conducted under FAR Part 8.4 did not violate any applicable regulations or unduly restrict competition.

In Rotech Healthcare Inc., a successful preaward protest, the court  held that the nonmanufacturer rule applied to solicitation that was only partially for supplies regardless of the fact that the solicitation was categorized under a NAICS code for service contracts.

In RLB Contracting, Inc., a successful preaward protest, the court held that, in selecting  NAICS code 237990 (Other Heavy and Civil Engineering Construction) for the procurement, neither the Contracting Officer nor (subsequently) the SBA's OHA  made the required quantitative analysis of which component of the work comprised the greatest percentage of the total contract value. 

Evaluations/Discussions

In Sentrillion Corp., an unsuccessful post-award protest, the court held that the procuring agency had properly evaluated the protester's and the awardee's proposals under the solicitation's requirements for evidence of partnership agreements and business licenses.

In CMI Management, Inc., an unsuccessful preaward protest of a firm's exclusion from the competitive range, the court (i) found rational bases for the agency's evaluations of various areas of the protester's proposal and also (ii) held that the willingness of one team of evaluators to overlook some weaknesses in other offerors' proposals in one area of the evaluation while a different group of evaluators had been unwilling to overlook shortcomings in the protester's proposal in a different area of the evaluation did not amount to  unequal treatment of offerors.

In DM Petroleum Operations Co., an unsuccessful post-award protest, the court held that the procuring agency exercised reasonable judgment in its evaluations of various aspects of the protester's and the awardee's proposals.

In Jordan Pond Co., LLC, another unsuccessful protest, the court held that (i) the agency's technical evaluation was not flawed in any significant way that prejudiced the protester, and (ii) the draft contract's failure to incorporate certain features from the awardee's proposal that the evaluators had found desirable was not objectionable.

In FCN, Inc., a successful post-award protest, the court held that the  Government improperly credited the awardee's proposal to utilize government-furnished property to perform significant aspects of the work, when the solicitation did not contemplate such an approach. Thus, the Government did not properly investigate, conduct a price realism analysis of, or follow FAR Part 45 procedures with regard to the awardee's proposed approach.

In Ocean Ships, Inc., an unsuccessful post-award protest, the court held that (i) the protester had not established how it was prejudiced by the agency's failure to amend a solicitation (and request revised offers) to take into account a 4% wage rate escalation that occurred after the submission of offers and that none of the offerors had taken into account in their proposals; and (ii) there were rational bases for the agency's technical, past performance, and best value evaluations.

In Hyperion, Inc., a successful post-award protest, the court held that there was no rational basis for the agency's conclusion that the awardees' proposals on a small business set-aside established that they would comply with the requirement in FAR 52.219-14 (Limitations on Subcontracting) that at least 50% of the cost of contract performance incurred for personnel would be expended by the awardees' employees.

The court denied a protest by AM General, LLC because the agency's errors (crediting the awardee with the past performance of its non-major subcontractors and misevaluating one subfactor in the technical evaluation) did not prejudice the protester.

In Business Integra, Inc., the court held that, where a solicitation covered by FAR Part 15 provided that failure to include all required pricing information would render a proposal ineligible for award, the protester's omission of three required labor rates in its proposal was a material defect (even though those three categories represented only .0041% of the total value of its proposal) and was not a problem the agency was required to permit the protester to correct through  clarifications or to waive.

The court  granted a protest by Laboratory Corporation of America Holdings because "the VA deviated from the RFQ terms, neutralized [the protester's] technical advantage, eliminated the need for a best value trade-off analysis, conducted an "apples to oranges" price comparison, and failed to recognize [the awardee's] significant miscalculations." 

In ARKRAY USA, Inc., a post-award protest, the court stayed the case and remanded the issue to the Contracting Officer for a determination whether the BPA awardee met the solicitation requirement to have an existing FSS contract for all offered items. Subsequently, the court held that the fact that the BPA awardee's affiliate was an FSS contractor did not authorize the awardee to represent itself as an eligible FSS contractor.

In Science and Management Resources, Inc., an unsuccessful post-award protest, the court held that the technical, past performance, and cost/price evaluations all had rational bases.

In CliniComp International, Inc., a successful post-award protest, the court held that the VA had treated proposals unequally by rating the protester's proposal technically unacceptable for failing to commit to a solicitation requirement, while rating the awardee's proposal acceptable even though it, too, contained no commitment to comply with that requirement.

In American Auto Logistics, LP, an unsuccessful post-award protest, the court held, inter alia, that (i) there was sufficient information in the awardee's proposal about an affiliate's participation in the project for the agency to credit the awardee with the past performance of the affiliate; (ii) the solicitation did not limit the undefined term "major subcontractor" to firms that would be performing a large dollar amount of work; (iii) there was a rational basis for the performance/price tradeoff analysis; and (iv) the awardee's proposed subcontractors were not debarred or suspended at the time of the award decision.

In Cedge Software Consultants, LLC, the court held that the the agency's discussions with the protester were adequate and that the agency had then properly assigned a technical deficiency to the protester's proposal and removed it from the competitive range.

In Bailey Tool & Manufacturing Co., an unsuccessful preaward protest, the court held that the Contracting Officer was not required to consider additional information submitted by a bidder after an initial nonresponsibility determination.

In Bannum, Inc., an unsuccessful protest, the court held that the protester had failed to show disparate treatment of offerors by the agency's evaluators. Specifically, the protester's own proposal failed to provide evidence of required zoning; and a competitor's proposal provided all required information regarding Past Performance, even though some of that information was located in different proposal volume than the one contemplated by the solicitation. In a subsequent decision, the court also denied Bannum's post-award protest holding that the procuring agency did not abuse its discretion in accepting the awardee's proposal despite additional questions raised by Bannum related to the awardee's compliance with the solicitation's zoning requirements and the awardee's alleged misrepresentations related to those requirements.

In Kvichak Marine Industries, Inc., an unsuccessful post-award protest, the court held that (i) a part of the  protester's challenge to the technical evaluation was actually an untimely challenge to ambiguous solicitation terms; and (ii) other parts of the protest essentially asked the court to re-evaluate the proposals. 

In Bahrain Maritime & Mercantile International BSC (C), the incumbent initially filed a series of GAO protests after it lost on the the new solicitation, in response to which the agency took various corrective actions (some of which were successfully protested), and reevaluated, but reached the same conclusion. When the GAO finally had had enough and denied the incumbent's latest protest, it filed suit. The court  denied the protest, holding that there was no basis to overcome the presumption of regularity accorded the agency's actions or to conclude its various corrections, re-analyses, and re-evaluations after the prior protests were just a pretext to award the contract to the original awardee.

Lynxnet, LLC lost its post-award protest because (i) the record did not clearly establish that the awardee would violate the solicitation's Limitations on Subcontracting (LOS) requirement; (ii) the Contracting Officer's decision to recalculate the awardee's proposed price by deleting one element that was not supposed to have been included, rather than bringing the matter to the awardee's attention, was not a material error; and (iii) the fact that the administrative record did not include any discussion of the LOS issue did not prove it was not considered.

In IBM Corp., an unsuccessful post-award protest, the court held that, in a solicitation governed by FAR Part 8, (i) the agency did not improperly relax solicitation requirements for the awardee or engage in discussions with the awardee that would have required the agency to conduct additional discussions with the protester; (ii) the agency properly investigated a potential OCI; and (iii) the agency properly evaluated the awardee's transition plan, which was not deficient merely because it mentioned that the awardee "might" attempt to subcontract with the protester (the incumbent). In an earlier decision in the case that was publicly published the same day, the court had denied the protester's request for a temporary injunction and its motion to supplement the administrative record with depositions concerning (i) possible post-award communications between the  Government and the  awardee regarding awardee's proposal and (ii) the extent of the Government's investigation of the possible OCI.

In FirstLine Transportation Security, Inc., another unsuccessful post-award protest, the court initially had sent the case back to the agency with various questions because the court found the record inadequate to address the protester's contentions. Subsequently, the court held that the agency's answers satisfied the court's concerns regarding the justifications for various aspects of the evaluation, in which the incumbent/protester and awardee were rated technically equal, and the awardee won on the basis of of its lower price.

Sole Source/Small Business/Restricted Competitions

Management and Training Corp. is the latest in what is becoming a long line of cases in which the court has denied protests by large businesses against the DOL's decisions to set aside contracts for the operation of various Job Corps Centers for small businesses.

In Lukos VATC JV LLC, an unsuccessful protest, the court held that, although it had jurisdiction over a claim that the SBA had approved an 8(a) mentor-protégé agreement in time for a particular procurement and although the SBA had given preliminary approval in time, the final approval was not given until two days after the solicitation closed, meaning the members of the JV bidder were deemed to be affiliates for purposes of determining size eligibility for the 8(a) set-aside procurement.

In Jay Hymas d/b/a Dosmen Farms, the court held that the Fish and Wildlife Service's practice of awarding cooperative farming agreements to private individuals, who raise commercial crops on public lands in wildlife refuges under a "priority" system that essentially limits awards to incumbents without competition, violates CICA, among other statutes and regulations. Subsequently, the CAFC reversed the decision.

In SEK Solutions, LLC, the court upheld the DLA's decision to create an "Emall" of tent systems through the use of an unrestricted procurement for ID/IQ contracts, followed by competitions limited to ID/IQ holders for individual orders, denying plaintiff's allegations that (i) the procurement violated various CICA and FAR requirements and (ii) the Contracting Officer had failed to conduct a proper Rule of Two analysis in deciding not to set aside the procurement for small businesses.

In AmBuild Co., LLC, a successful post-award protest, the court held that the VA's removal a firm from the list of qualified SDVOSBs was improper because (i) the VA had failed to provide advance notice to the affected firm of the grounds on which the VA ultimately based the firm's decertification; and (ii) none of the provisions of the Operating Agreement cited by the VA as support for its decision impermissibly limited the SDV's ownership or control of the firm.

In Akima Intra-Data, LLC, an unsuccessful post-award protest, the court held that: (i) in finding the awardee qualified for an AbilityOne contract, the agency properly calculated the statutory ratio of direct labor using all work performed by the awardee (both on AbilityOne and elsewhere) rather than only the types of services contemplated by the contract (as had been urged by the protester); and (ii) the agency properly analyzed all four required factors for determining that the contract was suitable for adding to the AbilityOne procurement list. Subsequently, the court denied the plaintiff's motion for an injunction pending appeal.

Corrective Action

In Manus Medical, LLC, a successful post-award protest, the court held that an agency's corrective action in response to a prior GAO protest (i.e., the agency's submission of a proposal that had omitted information required for a past performance evaluation to the SBA for a CoC review) was improper because the issue was a matter of responsiveness rather than responsibility.

In WHR Group, Inc., et al., the court held that an agency's corrective action in response to an earlier GAO protest, i.e., canceling all awards and resoliciting the requirements for relocation services, was unreasonable because, inter alia, (i) the original protest had been against only one of the four awards; (ii) the Contracting Officer's conclusory musings in his notes to file concerning the advisability of removing a solicitation requirement for 100% financial capability as part of the corrective action did not amount to agency findings on the administrative record that would justify the step; and (iii) the proposed corrective action was more drastic than would have been required to address any alleged flaws in the evaluation or the terms of the solicitation, itself.

In Cherokee Nation Technologies, the court held that the agency lacked a rational basis for its determination to issue a sole-source bridge contract as part of its corrective action on a procurement. 

In RUSH Construction, Inc., a successful post-award protest against an agency's proposed corrective action in response to a prior GAO decision sustaining a protest alleging that a construction contract bid was nonresponsive, the court, in a sweeping and thorough indictment, held that the GAO's decision lacked a rational basis because it was based upon (i) precedents that were not applicable and (ii) a flawed analysis of the facts of the original awardee's bid, which contained only a minor flaw and, therefore, was responsive.

In Applied Business Management Solutions, Inc., a successful protest against an agency's corrective action in response to an earlier GAO protest, the court held that the agency failed to justify how alleged budget reductions required it to terminate a competitively awarded contract and move to a more expensive sole-source 8(a) contract.

In Sotera Defense Solutions, Inc., the court held that there was nothing objectionable in the agency's decision to reevaluate proposals in response to an earlier GAO protest and that the reevaluation, itself, had a rational basis.

In Coastal Environmental Group, Inc., the court imposed sanctions (attorneys' fees) on the Government because two government officials had acted in bad faith when they prepared and backdated an inaccurate Determination and Findings document to make it appear as if there had been a written justification for the Government's decision at issue in a protest. However, on the merits, the court denied the protest and held that the agency was not required to explain why it decided to conduct a new procurement instead of requesting bidders on the original procurement to extend already expired bids after it had terminated the protested contract for convenience.

EAJA/Fees/Costs

In Insight Technologies Corp. and CenterScope Technologies, Inc., the court denied EAJA claims for attorney fees by successful protesters because the case was one of first impression involving an unusual fact pattern, and the Government was substantially justified in relying on some sparse prior case law, even though the court ultimately held those cases had been wrongly decided. The court also denied a claim by one of the protesters for bid preparation costs because it failed to prove it could not bid on the reprocurement and, thus, failed to establish its earlier expenditures were wasted.

In BC Peabody Construction Services, Inc., the court analyzed the allowability of various types of costs claimed by a successful protester under the EAJA, (i) finding, among other things, that there was no showing of entitlement to an enhanced hourly rate for the protester's attorneys and (ii) discussing, inter alia, bonding costs; filing fees; paralegal expenses; and travel, copying, and FedEx expenses.

In Hyperion, Inc., the court held, inter alia, that: (i) the agency's original failure to evaluate proposals regarding the issue involved in the protest meant the Government's  subsequent litigation position was not substantially justified; (ii) the plaintiff had presented sufficient evidence that it met the size requirements for submitting a claim for EAJA expenses; and (iii) the costs the plaintiff claimed at attorney hourly rates for work that normally is performed by paralegals were recoverable only at the paralegal hourly rate.

Miscellaneous

In Coastal Environmental Group, Inc., the court granted the agency's request to dismiss a protest against an award as moot because the agency had canceled the award. However, the court granted the protester leave to file a supplement complaint to challenge the agency's decision to cancel the original procurement.

In Laboratory Corp. of America Holdings, the court permitted supplementation of the administrative record with a declaration by a price analysis expert, but rejected another declaration concerning an untimely protest of the solicitation's terms. In FirstLine Transportation Security, Inc., the court denied the Government's motion to strike a probative  declaration by a the protester's expert in cost and price analysis. However, in Communication Construction Services, Inc., the court held that the same expert had crossed line between simply providing analysis to assist the court in complex technical issues and substituting his judgment for that of the Government's evaluators.

In Coastal Environmental Group, Inc., the court imposed sanctions (attorneys' fees) on the Government because two government officials had acted in bad faith when they prepared and backdated an inaccurate Determination and Findings document to make it appear as if there had been a written justification for the Government's decision at issue in a protest. However, on the merits, the court denied the protest and held that the agency was not required to explain why it decided to conduct a new procurement instead of requesting bidders on the original procurement to extend already expired bids after it had terminated the protested contract for convenience.

In Global Military Marketing, Inc., an unsuccessful preaward protest, the court held that very bad weather at the plaintiff's location (which caused the FAA to shut down airports in the plaintiff's vicinity, which, in turn, delayed delivery of its proposal) did not excuse the plaintiff's failure to deliver a timely proposal when, pursuant to FAR 52.212-1(f)(4), there was no interruption of "normal government processes" at the government location designated to receive proposals.

In InfoReliance Corp., the court held that the plaintiff had presented sufficient evidence of possible bad faith or bias by a procurement official to support its motion for additional discovery to supplement the administrative record.

In Size Appeal of AIS Engineering, Inc., the OHA dismissed, as untimely, a size protest concerning a task order solicitation issued under a long term contract because the contracting officer had neither requested recertification in the solicitation nor joined in the protest.

In Size Appeal of Research and Development Solutions, Inc., the OHA held that the Area Office had properly dismissed (as untimely) a protest of a firm's size for purposes of a task order solicitation under a long-term contract because the Contracting Officer had not requested recertification for the solicitation--this despite the fact that, by the time the Government had gotten around to awarding the task order, the protested firm had certified as other than small for purposes of another option under the same long term contract. The decision was affirmed on reconsideration

In Size Appeal of Kisan-Pike, A Joint Venture, the OHA dismissed an appeal because an SBA District Office's decision that a joint venture agreement did not meet the requirements of the regulations was not a size determination and, therefore, could not be appealed to the OHA.

In Size Appeal of Solis Constructors, Inc., the OHA affirmed the Area Office's dismissal of a protest as untimely because a FedBizOpps notice of award was sufficient to start the clock running for filing the protest.