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2014 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

Small Business/Set-Asides

Ostensible Subcontractor

Evaluations

Evaluations

Other Affiliation Issues

Responsiveness/Late Bids

Sole Source /Small Business

Other Miscellaneous Size Issues

Sole Source/Small Business/Restricted Competitions

Corrective Action

8(a) / SDVOSB Status

Recovery of Costs

EAJA

NAICS

Conflict of Interest

Miscellaneous

 

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.

 

Court of Appeals for the Federal Circuit

Jurisdiction/Standing

In CMS Contract Management Services, et al., the CAFC reversed a prior CoFC decision because (i) HUD's Performance-Based Annual Contribution Contracts are procurement contracts rather than cooperative agreements, and (ii) the agency acknowledged it did not follow procurement regulations in the conduct of the solicitation.

In SRA International, Inc., the CAFC held that, under FASA, the CoFC lacks jurisdiction over a protest of an agency's OCI waiver in connection with the issuance of a task order.

Small Business Issues/Set-Asides

In Adams and Assocs., the CAFC affirmed CoFC decisions that the DOL acted within its statutory and regulatory authority in setting aside Job Corps procurements for small businesses.

In Kingdomware Technologies, Inc., the CAFC (over a dissent) affirmed the prior CoFC decision and held that the Veterans Act of 2006 does not require the VA to conduct a Rule of Two inquiry before contracting via FSS, so long as the agency is meeting its overall percentage goals for contracting with VOSBs. Subsequently, the Supreme Court reversed the CAFC and held that the Act does require a Rule of Two analysis..

 

SBA Office of Hearings and Appeals

Jurisdiction/Standing/Timeliness/Procedure

In NAICS Appeal of Latvian Connection, LLC, the OHA dismissed (as premature) a NAICS appeal based on a sources sought synopsis because the formal solicitation had not yet been issued.

In NAICS Appeal of Latvian Connection, LLC, the OHA dismissed an appeal of a NAICS code designation because it amounted to an argument that the procurement should have been set aside for small businesses, a type of claim over which the OHA lacks jurisdiction.

In Size Appeal of RELM Communications, Inc., the OHA held that a protest alleging only that a procurement was subject to nonmanufacturer rule and providing no explanation how the protested firm allegedly ran afoul of that rule was  properly dismissed as insufficiently specific.

In Size Appeal of ReliaSource, the OHA affirmed the dismissal of a size protest related to a task order issued in response to an RFQ that did not require recertification under a long term contract.

In Size Appeal of West Texas Power Co., the OHA dismissed, as untimely, an appeal filed more than 15 days after receipt of the underlying size determination.

In Size Appeal of Irvine Sensors Corp. , the OHA (i) dismissed (as untimely) an appeal filed more than 15 days after the Area Office's size determination and (ii) held there was no separate right to appeal the Area Office's refusal to reopen its size determination.

In NAICS Appeal of Rotech Healthcare, Inc., the OHA dismissed (for lack of standing) an appeal of the NAICS code designation for a small business set-aside by a firm that would not be small under either the NAICS code assigned to the procurement or the code it argued was the correct one.

In Size Appeal of Strata-G Solutions, Inc., the OHA held that the Area Office correctly determined that a firm could not protest the size of a company with a long-term contract at the time of a contract modification accomplishing a preplanned downselect. Moreover, in Size Appeal of Systems Technologies Corp., the OHA held that the Area Office correctly determined a firm could not protest the size of a company awarded a BPA under an existing GSA schedule contract.

In Size Appeal of Star Poly Bag, Inc., the OHA denied an appeal by a firm that (i) speculated the challenged firm had submitted false information to the Area Office to obtain a favorable size determination and (ii) requested additional investigation of the issues.

In Size Appeal of Phoenix Environmental Design, Inc., the OHA affirmed the Area Office's dismissal of a size protest as speculative and insufficiently specific.

In Size Appeal of Quality Technology, Inc., the OHA affirmed the dismissal (as untimely) of what appeared to be a strong size protest on the merits because it was not filed within five days of the date the protester received an emailed "snapshot" report from a business development specialist at the agency showing the awardees for numerous task orders, including the one in question.

In Size Appeal of Southwind Construction Services, LLC, affirmed on reconsideration, even though the protester wanted to keep going, the OHA held that the Area Office had been properly dismissed the protest after the original apparently successful offeror (the protested firm) had withdrawn its offer and the agency had announced it would award to next firm in line.

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.

Ostensible Subcontractor

In Size Appeal of NEIE Medical Waste Services, LLC, the OHA reversed the Area Office's finding of affiliation through the ostensible subcontractor rule because the prime contractor was experienced at the type of work involved in the contract, would manage the work, and would perform the majority of its primary requirements. In addition the Area Office's determination of what constituted the primary and vital work lacked a rational basis.

In Size Appeal of Professional Security Corp. , the OHA affirmed the Area Office's finding of affiliation through the ostensible subcontractor rule because the prime proposed to employ the exact percentage of its subcontractor's (the incumbent's) staff as the prime's percentage of work on the contract as well as the incumbent's managerial staff to assume the same positions on the prime, and because the prime had little experience with contracts of this magnitude.

In Size Appeal of Tinton Falls Lodging Realty, LLC, the OHA held that the Area Office had correctly determined that the awardee would perform the primary and vital requirements of the contract and, therefore, would not run afoul of the ostensible subcontractor rule.

In Size Appeal of WG Pitts Co., the OHA upheld the Area Office's finding of a affiliation under the ostensible subcontractor rule because, as described in the final proposal in response to a solicitation, a large business subcontractor rather than the protested firm, as prime contractor, would be performing the primary and vital contract requirements.

In Size Appeal of Lynxnet, LLC, the OHA affirmed the Area Office's (i) identification of the primary and vital requirements of a contract and (ii) conclusion that the contractor was not unduly reliant on its subcontractor.

In Size Appeal of Brown & Pipkins LLC, the OHA held that the Area Office had correctly determined that the prime was affiliated with its large business sub through the ostensible subcontractor rule because the sub's procedures, people, quality control program, and equipment would be used to conduct the primary and vital contract responsibilities.

Other Affiliation Issues

In Size Appeals of Real Estate Resource Services, Inc. and OneSource REO, LLC, the OHA held that (i) the Area Office properly concluded firms were not affiliated because the former affiliation ended well before the date of size certification; and (ii) the Area Office had no obligation to investigate a possible affiliation issue not raised in the original protests.

In Size Appeal of Lukos-VATC  JV, LLC, the OHA held that the Area Office had correctly concluded that a JV's member firms were affiliated because their mentor-protégé agreement had not been approved until two days after the JV submitted its offer on the procurement in question.

In Size Appeal of Drace Anderson Joint Venture, the OHA granted a size appeal because the Area Office, without explanation, had failed to consider whether a firm was eligible for an exception to the normal rules of affiliation as a mentor-protégé joint venture under 13 C.F.R. § 121.103(h)(3)(iii).

In Size Appeal of Industria Lechera de Puerto Rico, Inc., petition for reconsideration dismissed, the OHA affirmed the Area Office's finding that a firm was affiliated with the Commonwealth of Puerto Rico because government officials had the power to control the firm's parent company. 

In Size Appeal of Rich Chicks, LLC, the OHA held that the SBA had properly applied the adverse inference rule to a firm that refused to provide requested documents concerning the firm identified in its proposal as the place of manufacture, in order for the SBA to determine compliance with the nonmanufacturer rule.

In Size Appeal of Knight Networking & Web Design, Inc., the OHA held the Area Office correctly found affiliation through identity of interest among family members.

In Size Appeal of Elite Construction Management Corp., the OHA held that the Area Office correctly applied the adverse inference rule after a firm failed to provide requested ownership records required to establish whether there was affiliation through identity of interest among various firms.

In Size Appeal of Crosstown Courier Service Incorporated, the OHA remanded a size appeal to the Area Office because it had not adequately investigated the issue of whether firms were affiliated through close family relationships.

In Size Appeal of Trailboss Enterprises, Inc., the OHA affirmed the Area Office's finding of affiliation by identity of interest of husband and wife. Subsequently, Trailboss' petition for reconsideration was denied. Similarly, in Size Appeal of Industrial Support Service, LLC, the OHA affirmed the Area Office's finding of affiliation by identity of interest among various family members.

In Size Appeal of Harbor Services, Inc., the OHA affirmed the Area Office's findings that firms were not affiliated through common management or by virtue of a mentor-protégé agreement.

In Size Appeal of FTSI-Phelps, JV, the OHA held that the Area Office had correctly determined the members of  a joint venture to be affiliates for purposes of a small business set-aside when one member had graduated from the 8(a) program before priced offers in response to the two-step solicitation were due, and, thus, the JV members could no longer claim the exemption for participants in a mentor-protégé agreement.

In Size Appeal of Axxon International, LLC, the OHA held that the Area Office correctly applied an adverse inference against the challenged firm after it failed to provide required information by the original (and then by an extended) deadline.

In Size Appeal of Radant MEMS, Inc., the OHA affirmed the Area Office's finding of affiliation through common management because the same person was President of the two companies in question.

In Size Appeal of Quality Services International, LLC, the OHA affirmed the Area Office's finding that numerous joint ventures (and contracts) between two protested firms, although significant, did not establish general affiliation.

In Size Appeal of Glucan Biorenewables LLC, the OHA affirmed the Area Office's determination that a firm did not meet the SBIR requirement at 13 C.F.R. 121.702(a)(1)(i) that it be " more than 50% directly owned and controlled by one or more individuals (who are citizens or permanent resident aliens of the United States), other small business concerns (each of which is more than 50% directly owned and controlled by individuals who are citizens or permanent resident aliens of the United States), or any combination of these"  because it was 13% owned by an entity that was not a small business, and 48% owned by an entity that was not directly controlled by individuals.

In Size Appeal of MCH Corp., the OHA remanded the case to the Area Office so that it could consider whether there was an identity of interest between parents and their daughter and, if so, whether there was a clear fracture preventing a finding of affiliation.

In Size Appeal of Kisan-Pike, A Joint Venture, the OHA affirmed the Area Office's finding that two firms were affiliated by virtue of their  joint venture agreement because the provisions of the agreement between a mentor and its 8(a) protégé did not meet the requirements of 13 C.F.R. §§ 124.513(c) and (d).

In Size Appeal of MCH Corporation, the OHA upheld the Area Office's finding that, as of the date of self-certification, a clear fracture overcame the familial identity of interest between parents and child. The OHA also concluded that, even absent much analysis of the issue by the Area Office, the protester had not presented sufficient evidence for its contention that the protested firm was affiliated with various nonprofit firms.

Other Miscellaneous Size Issues

In Size Appeal of BA Urban Solutions, LLC, et al., the OHA affirmed the Area Office's denial of size protests because (i) the protested firm's size was correctly determined as of date of its initial offer; (ii) the Area Office correctly based its calculation of receipts on the period of measurement specified in 13 C.F.R. 121.104(c)(3) rather than (c)(2) because the protested firm had been in business for three complete fiscal years, one of which was a "short year"; and (iii) the Area Office correctly concluded there was no affiliation through negative control.

In Size Appeal of TLS Contracting, Inc., the OHA held that the SBA had properly added the cost of goods sold to a corporation's total income to derive its receipts for purposes of determining its size.

In Size Appeal of TISTA Science and Technology Corp., the OHA held that, for a set-aside task order solicitation under an FSS contract, the Area Office correctly determined a firm's size as of date of its most recent certification under the main FSS contract because (i) the task order solicitation did not explicitly require recertification, and (ii) 15 U.S.C. § 632(w)(2) should not be interpreted to mean that the mere submission of an offer constitutes a recertification.

In Size Appeal of Bull Moose Energy Ventures, LLC , the OHA affirmed a finding that a firm, together with its affiliates, was not small because it was not primarily engaged in the generation, transmission, and/or distribution of electric energy for sale, which was a requirement of the size standard applicable to the procurement.

In Size Appeal of DefTec Corp., the OHA held that the Area Office was unjustified in applying an adverse inference against a firm for failure to submit requested documentation because the firm reasonably believed that the issue in question had been resolved without the need to supply further information.

In Size Appeal of Stronghold Engineering, Inc., the OHA held that the Area Office had correctly determined that the protester was not primarily engaged in the generation, transmission or distribution of electric power as of the date its size was determined, and, therefore, was not small under the NAICS code applicable to the procurement.

In Size Appeal of Complete Packaging and Shipping Supplies, Inc., the OHA held that a solicitation to establish BPAs under FSS contracts did not require quoters to recertify their status as small businesses as part of their initial quotes. (The OHA reached the same conclusion in several other protests filed by the same protester against various quoters on the same procurement.)

In Size Appeal of Pacific Power, LLC, the OHA held that the Area Office had properly used the NAICS code originally assigned to a procurement to determine that a firm was not small since the Contracting Officer had not modified the solicitation to reflect a change in the NAICS code designation and definition implemented by the SBA after the date the solicitation was issued. 

In Size Appeal of Star Poly Bag, Inc., the OHA denied an appeal by a firm that (i) speculated the challenged firm had submitted false information to the Area Office to obtain a favorable size determination and (ii) requested additional investigation of the issues.

In Size Appeal of Altendorf Transport, Inc., whether the challenged firm was small depended upon which trucking/freight-related NAICS code its business fell under, and the OHA held the Area Office had correctly analyzed the situation.

In Size Appeal of Project Enhancement Corp., the OHA held that (i) the procuring agency had properly concluded that both the RFQ and underlying BPA were unclear as to the applicable size standard, and (ii) the agency's subsequent clarification and choice of size standard were unobjectionable.

In Size Appeal of Sea Box, Inc., the OHA held that the Area Office had correctly determined that the protested firm was the manufacturer of the contract items because it would perform more than minimal operations on the finished product.

In Size Appeal of U.S. Department of State and Precise Systems, Inc., the OHA held that, even though a solicitation did not formally incorporate a NAICS code designation or size standard, both the solicitation's synopsis and the agency's responses to questions and answers clearly did, and, therefore, it was improper for the Area Office to have substituted another size standard in deciding a size appeal, absent a timely challenge to the NAICS code selected by the Contracting Officer.

In Size Appeal of Connected Logistics, Inc., the OHA held that the Area Office correctly determined the challenged firm acted as a broker rather than a conference management service provider, and, therefore, under 13 C.F.R. 121.104(a), was not entitled to exclude from its receipts revenue that the challenged firm had characterized as reimbursements.

8(a) / SDVOSB Status

In Matter of Battalion, LLC, the OHA affirmed a finding that a protested firm was not an eligible SDVOSB because its SDV and majority owner was a full time employee of another firm controlled by the protested firm's minority owner. 

In Matter of Arima Capital, LLC, the OHA affirmed the SBA's decision terminating a firm from the 8(a) program for failure to submit required annual reporting documents.

In Matter of Bartkowski Life Safety Corp., the OHA remanded a matter to the SBA for further review after the OHA determined that the SBA's refusal to admit a firm into the 8(a) program was not well-reasoned given that the firm (i) had offered examples of gender-motivated bias in all three phases of its principal's life, and (ii) had provided evidence that the social disadvantage allegedly caused by that bias had hindered and frustrated her entrepreneurial opportunities.

In Matter of United Global Technologies, Inc., the OHA upheld the SBA's denial of an applicant's entry into the 8(a) program for failure to demonstrate social disadvantage.

In Matter of Cabin John Consulting Corp., the OHA held that the SBA had properly calculated an applicant's adjusted net worth in denying him admission to the  8(a) program.

In Matter of Wichita Tribal Enterprises, LLC, the OHA ordered the SBA to lift its suspension of a firm from 8(a) program because the SBA had repeatedly failed to comply with OHA's orders to present evidence in support of its suspension allegations (which were "cogent" on their face).

In Matter of Pynergy, LLC, the OHA repeated its oft-held maxim that it lacks jurisdiction over the appeal of a firm denied entrance into the 8(a) program for reasons other than a negative finding of social disadvantage, economic disadvantage, ownership or control.

In Matter of Express Plus Staffing LLC, the OHA affirmed the SBA's denial of an applicant's entry into the 8(a) program because "immigrant" is not a protected ethnicity, and her allegations of sexual bias were not sufficiently specific.

In Matter of Ironwood Commercial Builders, Inc., the OHA found a host of errors in the SBA's analysis, and rejection, of an applicant's evidence of gender-motivated bias leading to social disadvantage and remanded the case to the SBA for reanalysis in compliance applicable law and regulations. 

In Matter of Laurus Construction Corp., the OHA affirmed the early termination of a firm from the 8(a) program for failure to provide required Annual Review documents, holding that the pending divorce of the firm's principals from one another and the husband's inability to locate his wife were not sufficient excuses for the missing documents. 

In Matter of Precise Systems, Inc., the OHA affirmed the SBA's determination that a concern was not qualified as an SDVOSB because it had two different classes of stock, one of which was not owned by a service-disabled veteran. 

In Matter of Cornerstone Construction Services, Inc., the OHA held that, in analyzing whether an 8(a) applicant was economically disadvantaged, the agency had correctly determined that the amount of a home loan taken as second mortgage on a primary residence should be subtracted from the equity value of that residence in computing the applicant's net worth.

In Matter of KBT Contracting Corp., the OHA affirmed the SBA's denial of a firm's entrance into the 8(a) program because, although SBA's analysis of the claimed social disadvantage as a result of gender bias was deficient, the separate basis for denial (control of the business by a nondisadvantaged individual) was supported by the record.

NAICS

In NAICS Appeal of The U.S. Small Business Administration, a successful protest, the OHA held that the correct NAICS Code for RFPs for a broad range of support equipment was 334419 (Other Electronic Component Manufacturing), with a corresponding size standard of 500 employees, rather than 541330 ( Engineering Services).

In NAICS Appeal of Information Ventures, Inc., a successful appeal, the OHA held that the appropriate NAICS code for the solicitation was 541611 (Administrative Management and General Management Consulting Services), with a size standard of $14 million average annual receipts, as opposed to 541712 (Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology)) because the solicitation was not one for research and development.

In NAICS Appeal of ACE Consulting Services, LLC, the OHA reversed the Contracting Officer's designation of  NAICS code 541611 (Administrative Management and General Management Consulting Services) in favor of  611430 (Professional and Management Development Training) because the solicitation primarily involved training services rather than consulting services.

In NAICS Appeal of Palladian Partners, Inc., the OHA dismissed a NAICS code appeal because it had already issued its decision in a previous NAICS code appeal involving the same issue.

In NAICS Appeal of AeroSage, LLC, the OHA dismissed, as moot, a NAICS appeal filed after contract award.

In NAICS Appeals of RLB Contracting, Inc., et al., the OHA upheld the Contracting Officer's determination that a project to create marsh and restore shoreline was primarily construction work under the main NAICS code of 237990 (Other Heavy and Civil engineering Construction), rather than fitting within the exception under that category for dredging and surface cleanup. It seems to me that the protesters made a fairly compelling case to the contrary. The decision was subsequently overturned by the Court of Federal Claims.

Similarly, in NAICS Appeal of QED Systems, LLC, the OHA upheld the Contracting Officer's determination that a project fit within general category 541330 (Engineering Services), rather than the exception under that category for Military and Aerospace Equipment and Military Weapons. 

In NAICS Appeal of eScience & Technology Solutions, Inc., the OHA held that a solicitation for support of courseware development and instruction should be categorized under NAICS code 611430 ( Professional and Management Development Training), rather than the NAICS code 541549 (Other Computer Related Services) chosen by the Contracting Officer. 

In NAICS Appeal of B&B Medical Services, Inc., the OHA upheld the Contracting Officer's determination that a contract to provide home oxygen services and ventilation belonged under NAICS 621610 (Home Health Care Services) rather than 532291 (Home Health Equipment Rental).

In NAICS Appeal of Environment International, Ltd., the OHA upheld the Contracting Officer's assignment of NAICS 562910 (Environmental Remediation Services) to a solicitation for natural resource damage assessment support services, rather than 541620 (Environmental Consulting Services), as suggested by the protester.

In NAICS Appeal of Allserv, Inc., a successful protest, the SBA's OHA held that a solicitation for the maintenance of cemetery grounds and structures belonged under NAICS 561730 (Landscaping Services) rather than the Contracting Officer's choice of 812220 (Cemeteries and Crematories).

 


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