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Stan Hinton |
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2015 Procurement Review: Protests |
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Contents
The GAO published 41 decisions sustaining protests on the merits (some of which were originally dated in 2014 but not issued to the public as redacted versions until this year). The GAO sustained a protest by Smith and Nephew, Inc., finding a specification was unduly restrictive of competition because the agency had not established that it had any actual need for the requirement. In the extremely rare case where it grants a protester's motion for reconsideration, the GAO held that (although it was too late in the procurement process to recommend anything other than that the protester recover its bid preparation and protest costs) SCB Solutions, Inc. should prevail because the solicitation had not provided sufficient information for offerors to compete intelligently and on a fair and equal basis. Through an unusual, but interesting, confluence of circumstances (and even though it had mailed one copy of its original offer to the wrong address and had not protested within the GAO's normal time limits), Latvian Connection, LLC, won its protest because the agency had not provided it sufficient time to respond to a solicitation amendment. Already having failed in its attempt to satisfy its needs with a sole-source acquisition, DHS again struck out swinging in Harris IT Services Corp., a successful GAO protest against the terms of two DHS solicitations issued to multiple award IDIQ contractors under the tactical communications (TacCom) program, because the GAO found the solicitations impermissibly (in violation of FASA): (i) contemplated the issuance of what amounted to a single, second-tier IDIQ instrument, under which the agency would place subsequent delivery orders, without providing the multiple-award IDIQ contract holders a subsequent, fair opportunity to compete for those delivery orders; (ii) contemplated the issuance of delivery orders that potentially could exceed the scope of the underlying IDIQ contracts; and (iii) included restrictive specifications (effectively limiting competition to Motorola products) that had not been justified. In XTec, Inc., the GAO: (i) sustained a protest because the agency’s inadequate advance planning led to the issuance (and then the cancellation) of a solicitation with an insufficiently detailed statement of requirements; and (ii) recommended that the protester recover its bid preparation and protest costs. Eastern Forestry won its protest because the agency's publication of a substantive amendment to the solicitation at 7 p.m. on the eve of a 10 a.m. bid opening time did not leave the protester sufficient time to submit the required hard copy of its bid. Global Technical Systems convinced the GAO that a solicitation for engineering services contained only vague statements of its requirements and did not contain sufficient information to permit offerors to compete intelligently and on a common basis. Flawed Evaluation / Lack of Meaningful Discussions The GAO sustained a protest by Glen Mar Construction, Inc., related to sealed bid competition because the agency’s price evaluation (i) improperly included the prices of options (additive items) the agency knew with reasonable certainty that it would not have sufficient funds to purchase, and, therefore, (ii) could not guarantee award was being made to the low bidder. In CFS-KBR Marianas Support Services, LLC; Fluor Federal Solutions LLC, the GAO held that the procuring agency mechanically (and, therefore, improperly) used only the government estimate to evaluate the cost realism of each offeror's proposed staffing in initial proposals, without regard to the varying proposed technical approaches, and then used that flawed analysis to conduct misleading discussions with offerors regarding the sufficiency of their proposed staffing. In Hanel Storage Systems, L.P., the GAO held that the VA erred in issuing a purchase order to a vendor whose quotation did not comply with a material requirement of an RFQ, rejecting the agency's loopy argument that, because a quotation is not an offer, anything goes in an RFQ. The GAO sustained a protest by Alcazar Trades, Inc., because the agency had performed the price realism analysis required by the solicitation by simply comparing bids to the government estimate (and to one another) without taking the protester's unique staffing approach into account. In Caddell Construction Co., the GAO found that the procuring agency's determination (i.e., that applicants for prequalification had met the requirements of the Security Act concerning adequate financial resources and total business volume) was unreasonable and not supported by the record. The decision was essentially overturned by the Court of Federal Claims. The GAO sustained parts of a protest by DKW Communications, Inc. because the procuring agency failed: (i) to consider the cost to the Government as part of its cost/technical trade-off analysis; (ii) to document other aspects of its proposal evaluation; and (iii) to consider the protester's relevant, positive past experience. The GAO sustained a protest by International Waste Industries because the procuring agency conducted discussions with the awardee, allowing it to correct unacceptable aspects in its quotation, while failing to conduct discussions with the protester. The GAO sustained the protest in B&B Medical Services, Inc.; Ed Medical, Inc. because there was no evidence in the contemporaneous record that the agency had conducted the price realism analysis contemplated by the solicitation even though the awardee's price was much lower than other offerors' prices and the Government's estimate. The GAO sustained a protest by Cubic Applications, Inc., finding that the agency had engaged in unequal evaluations after it rated the protester's optional labor rates so exceptionally low as to pose an unacceptable risk while not evaluating the awardee's even lower optional labor rates in that manner. The GAO sustained protests by Metis Solutions, LLC, et al. due to numerous flaws in the agency's evaluation process including the following: the agency downgraded a proposal for failure to provide a plan not required by the solicitation; the agency assigned weaknesses to two offerors, but not to the awardee, for the same proposal content; there were unexplained discrepancies between the technical evaluation report and the source selection evaluation report; there were inconsistencies in the agency's evaluation of the relevancy of the past performance submission of the awardee versus other offerors; there was not a sufficient basis in the record for the performance confidence ratings; and the source selection decision failed to include a price versus technical tradeoff analysis and failed to evaluate proposals individually. The GAO sustained a protest by Lilly Timber Services after the agency had found the protester's bid for a fixed-price contract unrealistically low because the solicitation did not alert offerors that the agency intended to evaluate price realism. In eAlliant, LLC, the agency kept selecting the original awardee through several rounds of protests and corrective actions, but then, apparently worn down by the battles, finally selected another offeror, at which point the original awardee protested. The GAO sustained the protest because there was no basis stated in the record for the agency's downgrades of the protester's scores when its proposal was essentially unchanged. The GAO sustained a protest by Starry Assocs. because the agency did not properly evaluate whether the personnel proposed by the awardee were available and qualified to perform the required work. The GAO sustained a protest by FCi Federal, Inc. because, in undertaking corrective action nine months after its original award, the agency had failed to consider whether (given that the awardee had been sold to another company in the interim) the awardee’s proposal still accurately reflected the manner in which the contract would be performed and the resources, experience, and past performance to be relied upon in that performance.
In Tantus
Technologies, Inc., the GAO sustained the protest on several
grounds: (i) the agency failed to consider whether, under the
personnel and management evaluation factor, the awardee’s
proposal to relocate a significant number of employees to a
cheaper labor market after the first year of the task order
posed a risk to the awardee’s ability to retain qualified staff;
(ii) the agency did not evaluate corporate experience and or the
relevance of past performance in a manner consistent with the
RFP; and (iii) the awardee's proposal to hire incumbent
subcontractor staff at substantially lower rates than they were
currently being paid resulted in a risk of unrealistically low
labor rates that the agency should have adjusted upward in
conducting its cost-realism evaluation. Trandes Corp. won its protest because several of the awardee's proposed key personnel failed to meet the experience requirements of the solicitation. In General Dynamics Advanced Information Systems, Inc., the GAO found that the agency had incorrectly interpreted a spreadsheet as proposing uncompensated overtime and, therefore, had improperly made an upward adjustment to the protester's estimated costs as part of a cost realism analysis. W.P. Tax & Accounting Group won its GAO protest because the agency had determined its quotation was unacceptable due to an unrealistically low price even though the solicitation had not advised bidders that price realism would be evaluated. The GAO sustained a protest by AECOM Technical Services, Inc. against the agency’s decision to reject a proposal that was submitted to an incorrect location within the FedConnect web portal where the record showed that: (i) the complete proposal was timely submitted; (ii) the agency was contemporaneously aware of the proposal’s submission; (iii) the agency planned to make multiple awards, so that no other competitor could claim to have been meaningfully harmed by accepting the proposal; (iv) the proposal was out of protester’s control and therefore could not have been altered or revised after the deadline for proposal submission had passed; and (v) acceptance of the proposal as timely would enhance competition. In Logistics Management International, Inc., et al., the GAO sustained portions of several protests against the agency's reevaluation of past performance in response to prior, successful GAO protests because: (i) the reevaluation gave the original awardee credit for a number of orders that did not meet the solicitation's requirement for treating orders as a series and a single reference; and (ii) the agency's reevaluation also involved disparate treatment of the offerors because the reevaluation denied one protester the same opportunity to submit additional information as had been afforded to another offeror. he GAO sustained a protest by Coastal International Security, Inc. because the collective bargaining agreement incorporated in the solicitation included latent ambiguities regarding the required wage rates in two labor categories, which offerors interpreted differently, leading to differing proposed labor rates and a lack of competition on a common basis, which, in turn, tainted the agency's price realism and best value trade-off evaluations. In Smartronix, Inc.; ManTech Advanced Systems International, Inc., the GAO sustained a protest alleging that the agency’s cost realism evaluation failed to reasonably assess whether the vendors’ proposed direct labor rates were realistic and consistent with the vendors’ various proposed approaches. The GAO sustained a protest by Protect the Force, Inc., because: (i) the awardees' proposals did not fulfill a solicitation requirement that they demonstrate how they met a particular technical requirement; and (ii) the agency's finding that these proposals were technically acceptable lacked a rational basis. The frequency with which the GAO makes an exception and hears and sustains an untimely protest on the grounds that it presents an issue of significant interest to the procurement community as a whole makes a blue moon seem like a common occurrence by comparison, but that is just what happened in DRS Technical Services, Inc., where the GAO: (i) sustained an untimely protest of the solicitation’s evaluation scheme because it failed to account for differences in offerors’ transition plans and effectively penalized offerors that proposed to provide full staffing and operational performance on the first day of the task order and rewarded offers that proposed a phased approach to staffing and performance; (ii) found that the agency’s evaluation of the awardee’s proposed level of effort was unreasonable and inconsistent with the terms of the solicitation; and (iii) held that the agency’s organizational conflict of interest (OCI) investigation was not reasonable as it failed to meaningfully consider whether the awardee’s performance of a portion of the work required under the anticipated task order would result in an impaired objectivity OCI. The GAO sustained a protest by Celta Services, Inc. because: (i) the SSA's award memorandum indicated she had improperly considered weaknesses in the protester's proposal that had been resolved during discussions; (ii) the evaluators' point scores were not applied consistently among offerors; and (iii) the record was not sufficient to conclude that the evaluation of the awardee's Past Performance was reasonable. The GAO sustained a protest by CORTEK, Inc. because the agency had improperly (i) accepted a proposal that included references to employees who did not meet the solicitation's experience requirements, (ii) allowed the awardee to exceed the solicitation's clear page limitation (by one page), and (iii) used information on that additional page, which should have been ignored, to reach a favorable evaluation of the awardee's past performance. The GAO also noted that the administrative record produced by the agency was so heavily redacted that it was difficult for the GAO to evaluate the agency's response to the above (and other) protest allegations. The GAO sustained a protest by West Coast General Corp. because (i) the agency failed to enforce a solicitation requirement that offered G&A rates be supported by (and evaluated on basis of) certified financial statements or DCAA audit reports; and (ii) the agency's award determination was based entirely on a mechanical comparison of total technical scores and G&A rates. Sole Source/Small Business/Restricted Competitions Latvian Connection, LLC won two protests because the procuring agency excluded it from a competition due to a perceived lack of business integrity without referring the matter to the SBA for a CoC determination. In Triad Isotopes, Inc., the GAO held that the agency had failed to conduct an adequate market analysis to determine that it would receive at least two bids from responsive, responsible small business, and, therefore, its decision to restrict the competition to small businesses lacked a rational basis. The GAO sustained a protest by Fire Risk Management, Inc., because the agency's market research was flawed and could not justify the agency's conclusion that the procurement should not be set aside for SDVOSBs. The GAO sustained a protest by Onix Networking Corp. because an out-of-scope modification to a task order adding a product not contemplated by the original award amounted to an improper sole-source award. In US Investigations Services, Professional Services Division, the GAO sustained a protest because the record did not support the agency's determination that a purchase order was within the scope of the awardee's underlying FSS where that contract did not include the labor categories involved in the purchase order. The GAO sustained a protest by Onix Networking Corp. because an out-of-scope modification to a task order adding a product not contemplated by the original award amounted to an improper sole-source award. Satellite Tracking of People, LLC won its protest because the agency failed to investigate or mitigate an OCI. In 6K Systems, Inc.--Costs, the GAO recommended the reimbursement of the protester's legal fees except for its pre-protest costs related to attending the agency's debriefing and post-protest costs related to considering possible next steps after the GAO decision on the protest. The GAO also recommended reimbursement at the requested rate of $225 per hour because FASA does not impose a $150 per hour cap on small businesses' claims for attorney fees in protests. In JRS Staffing Services--Costs, the GAO recommended reimbursement of protest costs only for the severable portion of a protest that was noted by the GAO to be clearly meritorious during an outcome prediction ADR conference. In Genesis Business Systems--Costs, the GAO recommended reimbursement of protest costs only for the severable portion of a protest that was clearly meritorious (and the protest grounds that were intertwined with it).
Timeliness/Standing/Jurisdiction/Automatic Stay In Universal Marine Co., K.S.C., the court held that the fourth-highest rated offeror who had failed to protest the ratings of any but the winning offeror and who had filed only one (untimely) challenge to the overall solicitation, lacked standing. In Caddell Construction Co., the court ignored a protester's understandable trepidation and held that, absent an actual contract award, the court lacked jurisdiction over protests that the Government was violating CICA's automatic stay provisions by continuing the evaluation process during a timely GAO protest in which a decision had not yet been issued. In Charles F. Day & Assocs., LLC, the court held that the procuring agency's decision to award a competitive bridge contract to the original awardee during a pending GAO protest rendered the protester's challenge to the agency's previous override decision moot. In Coast Professional, Inc., the court held that the Government's decisions not to extend task orders based on contractual provisions for evaluating performance were matters of contract administration and did not provide the court with bid protest jurisdiction. The court dismissed a protest by Visual Connections, LLC because the protester had waived its right to challenge a patent ambiguity in the solicitation's terms by failing to protest until after award. In Pernix Group, Inc., the court dismissed protests as unripe because the agency had not yet announced whether it would implement a GAO recommendation from a prior protest that would be adverse to the plaintiffs' positions. In NVE, Inc., an unsuccessful post-award protest, the court held, inter alia, that the protester's challenge to the procuring agency's corrective action decision, which the protester raised only after submitting a proposal for the reevaluation, was waived under the reasoning of the CAFC's Blue & Gold Fleet decision, i.e., an offeror cannot fully participate in a second round of proposal submissions and then only later challenge the agency’s corrective action decision. In Bannum, Inc., the court held that a procuring agency's decision to transfer inmates formerly housed pursuant to the incumbent/protester's bridge contract to facilities operating under contracts distinct from the protested contract did not constitute a de facto override of the automatic CICA stay accompanying the protester's GAO protest. In Guam Industrial Services, Inc., the court held that, pursuant to FASA, the court lacked jurisdiction over a protest of the cancellation of a solicitation for a task order under an IDIQ contract. In Sigmatech, Inc., despite efforts by one of the intervenor/defendants to keep the original protest alive, the court dismissed it as moot based on the Government's decision to take corrective action. In Savantage Financial Services, Inc., an unsuccessful protest against DHS' decision to acquire financial management services by use of a federal shared service provider without permitting plaintiff (or others) to compete, the court denied a significant portion of the protest because of a lack of prejudice from the Government's errors. In
The ClayGroup, LLC, the court held that a
firm whose quote for an FSSI BPA was too high to have a
substantial chance of being selected for an award lacked
standing to protest the agency's decision, made long after
award, to convert the BPAs to exclusive and mandatory
arrangements. In TENICA & Assocs., LLC, an unsuccessful protest, the court held, inter alia: (i) it lacked jurisdiction to consider a disappointed bidder's challenge to the procuring agency's decision to allow the original awardee to proceed with performance temporarily during a reevaluation process undertaken by the agency in response to a prior GAO protest; and (ii) the plaintiff, absent the capacity to perform these services during the reevaluation period, lacked standing to protest. In Square One Armoring Service, Inc., an unsuccessful protest, the court held that: (i) the protester's challenge to the original evaluation and award was moot because the agency already had announced its decision to undertake corrective action in response to the protester's original protest at the GAO; (ii) the protester lacked standing to challenge the agency's proposed corrective action (issuing a revised solicitation) because the protester would be eligible to compete under that procurement; and (iii) any protest of the supposed terms of the revised solicitation is premature until those revisions are issued. In National Telecommuting Institute, Inc., the court held that the doctrine of laches barred a protest (as untimely) because the protester had not filed suit until six months after the official notice of award and nearly ten months after it had exhausted its agency appeals. The court also found the protest failed on the merits because the agency's source selection decision had a rational basis. Octo Consulting Group, Inc. lost its post-award protest because: (i) the protester's quoted price was substantially higher than those of competitors selected for multiple-award blanket purchase agreements, so it lacked standing; and (ii) the solicitation did not mandate a specific number of awards, so, even if the protester's allegation (that three of the awardees were noncompliant) were true, the agency would not have been required to replace those awards with an award to the protester. In
Summit Multi-Family Housing Corp., the court held that an
awardee whose contract was canceled as a result of corrective
action undertaken by the Government lacked standing to challenge
the original procurement process that led to its award
since it was injured by the corrective action, not by the
procurement. In Raymond Express International, LLC, an unsuccessful preaward protest,, the court held that: (i) there was nothing improper in the solicitation's treatment of transportation costs; (ii) the market research conducted by the agency in determining the form of the solicitation was adequate; and (iii) the solicitation's price evaluation scheme had a rational basis. In American Safety Council, Inc., a successful preaward protest, the court held that: (i) portions of a solicitation's technical data rights clauses were unduly restrictive because they did not reflect the agency's actual, minimum needs; and (ii) there was sufficient evidence to warrant requiring the agency to make an OCI determination. In Draken International, Inc., an unsuccessful preaward protest, the court held that: (i) there was no basis for the protester's contention that justifiable delays in the solicitation process converted what were initially unobjectionable solicitation terms into undue restrictions on competition; (ii) the argument that the protester had been treated differently from other offerors was unripe because award had not yet been made; and (iii) the court does not perform an appellate review of the decision on an underlying agency-level protest, but, instead, reviews only an agency's procurement actions. In Framaco International, Inc., the court held that the procuring agency had a rational basis for declining to adjust the value of the protester's past projects for inflation or to credit it with the value of unresolved REAs so that it would meet the requirements to have performed work of a specified value in order to prequalify to participate in the competition at issue. In Equa Solutions, Inc., an unsuccessful post-award protest, the court held that (i) a solicitation amendment issued after initial proposals were submitted did not require the agency to conduct discussions with the protester concerning deficiencies in its proposal; and (ii) the agency properly concluded the protester's price proposal was unrealistically low because it did not include elements discussed in the protester's technical proposal. In Red River Computer Co., one of those decisions that demonstrates just how hard it is to win a bid protest, the court held that, where there were many proposals that were more highly rated than the plaintiff's, the agency's errors in evaluating the plaintiff's Past Performance were not shown to be prejudicial, and the agency's decision to exclude the plaintiff from the competitive range, despite its low price, had a rational basis. It looks to me, however, that the agency's own administrative record reveals that its errors had a significant effect on the evaluation of the protester. In The Electronic On-Ramp, Inc., an unsuccessful post-award protest, the court held that the procuring agency had a rational basis for downgrading the protester's proposal because it failed to comply with what the agency considered to be material requirements of the solicitation. In Anthem Builders, Inc., the court upheld the procuring agency's decision that the protester's proffered bond did not satisfy the requirements of FAR Part 28. In Unique Builders Construction Co., an unsuccessful protest, the court held that, under the highly deferential standard applicable to such situations, the Government had a rational basis for its determination that, based on an analysis of a firm's integrity and ethics, the firm was ineligible for award. In Per Aarsleff A/S, a consolidated group of successful post-award protests by disappointed bidders, the court held that the agency improperly awarded the contract to a subsidiary of a foreign company, which violated the solicitation's eligibility requirement that the contractor must be a Danish or Greenlandic company. In Rotech Healthcare, Inc., an unsuccessful post-award protest, the court held that the procuring agency's evaluation of the awardee's transition plan, past performance, and price realism all had rational bases and were in accordance with the solicitation's requirements. In WIT Assocs., Inc., the agency's award decision had been delayed long after the original offers had expired, so the agency asked each offeror whether it would be willing to revive its original price. The protester said it would need the opportunity to submit a revised offer since so much time had passed. The ultimately successful offeror, whose original offer was 60% higher than the protester's, agreed to revive its original offer. So, the agency concluded the protester had removed itself from the competition and awarded to the higher-priced offeror, and the court went along with that decision. In A-T Solutions, Inc., an unsuccessful post-award protest, the court held that (i) staffing costs proposed by the awardee were not objectionable simply because they were lower than Government's estimate; and (ii) the Government's evaluations of cost realism and of the competitors' transition plans each had a rational basis. In Transatlantic Lines, LLC, the court held that the procuring agency agency reasonably evaluated the schedules in the awardee's technical proposal, despite minor discrepancies in them, as complying with the solicitation's requirements. In ViON Corp., another unsuccessful post-award protest, the court held that: (i) the procuring agency had properly evaluated the awardee's proposed technical solution and its proposed price and had conducted a reasonable price realism analysis; (ii) the awardee's proposal did not take exception to any material requirements of the RFP; and (iii) the protester had failed to provide any substantial evidence of an OCI involving the awardee. In CYIOS Corp., an unsuccessful post-award protest, the court held that the protester was not prejudiced by the errors the court found in the evaluation because the protester's proposal was still inferior to the awardee's, even after correcting for those errors. Subsequently, the court denied the protester's motion for reconsideration. Similarly, in ACC Construction Co., an unsuccessful preaward protest, the court held that, even allowing for any errors the agency had made in its evaluation, the protester's proposal was not strong enough to merit advancing it to Phase II of the competition.In Advanced Concepts Enterprises, Inc. the court held that (i) the agency had conducted a price realism analysis even though the agency, itself, wrote that it had not; and (ii) although the agency had failed to perform a proper analysis for unbalanced pricing, the protester failed to establish prejudice from that error "because" [?!] the awardee's total price was substantially lower than the protester's. In EMTA Insaat, A.S., the court denied a post-award protest challenging a price realism evaluation because the solicitation did not mandate the method the Government must use to perform the analysis, and the evidence showed the Government had evaluated price realism even though the evaluators had not mentioned the term "realism." In Crowley Technical Management, Inc., an unsuccessful post-award protest against an agency's cost realism evaluation and adjustments, the court held that: (i) the agency's decision that a "tolerance adjustment" of the awardee's proposal was unnecessary was supported in the record, and the protester's only "evidence" to the contrary was speculative; and (ii) the protester's remaining arguments for different price realism adjustments were not sufficient to establish prejudice, i.e., to displace the awardee's low evaluated price. In Caddell Construction Co., the court held (once again) that the State Department's interpretation of the "total business volume" and "similar work" requirements of Omnibus Diplomatic Security and Antiterrorism Act of 1986 in evaluating proposals was reasonable. This is the latest in the long-running stand-off between the GAO and the court over whether the Act requires a company to have the specified business volume in each of three of the last five years or only cumulatively. The GAO originally picked the former interpretation in its 2007 Caddell decision. Subsequently, the court reached the opposite conclusion in Grunley-Walsh. The GAO stuck with its guns in its most recent Caddell case, and the court has now approved the State Department's decision not to follow the GAO's recommendation. As noted in the court's decision, we need a decision by the CAFC to break the logjam. In FCN, Inc., an unsuccessful preaward protest, the court upheld the agency's decision to leave the protester out of the competitive range, despite its lower price, because other offerors had higher technical scores. In Raymond Express International, LLC, an unsuccessful post-award protest, the court held, inter alia, that (i) various erroneous references in one awardee's proposal to its corporate name did not create uncertainty as to identity of the party to be bound by the contract because only one CAGE code and one DUNS number were used throughout the proposal; (ii) given the solicitation's stated evaluation scheme, there was nothing objectionable in the agency's consideration of the business references of one awardee's affiliated companies in the Past Performance evaluation; and (iii) the use of a weighted price realism analysis as urged by the protester would have been contrary to the terms of the solicitation. In FP-FAA Seattle, LLC, the court rejected the protester's contention that the awardee improperly conditioned its lease proposal on an offer of an approximate amount of space. On the other hand, in Springfield Parcel C, LLC, a successful post-award protest, the court held that: (i) the GSA improperly accepted a proposal that contravened a material requirement of the solicitation regarding the maximum allowable leased space; and (ii) the awarded lease violated 40 U.S.C. 3307 and was void ab initio because, in seeking the required Congressional approval of the lease, the agency did not accurately describe the size of the leased space.
In
Excelsior Ambulance Service, Inc., a successful post-award
protest, the court found that: (i) the
successful offeror had failed to provide the business license
required of all offerors by the solicitation; and (ii) the
successful offeror's original (protested) offer did not comply
with the solicitation's requirement that at least 50% of the
work be performed by SDVOSBs, and that offeror was then
improperly permitted to substantially revise its offer to make
it compliant in response to what was supposed to be only a
clarification request during the agency's corrective action
arising out of the original protest. In KWR Construction, Inc., the court held that (in its fourth reevaluation after prior protests) the procuring agency's rejection of a small business's revised price proposal as unrealistically low contravened the terms of the solicitation, lacked a reasonable basis in the record, and amounted to a de facto nonresponsibility determination which should have been referred to the SBA.
In
Braseth Trucking
and again in
FFL Pro LLC, the court remanded protests to the procuring agency to provide an
explanation, lacking in the administrative record, for its
evaluation. Sole Source/Small Business/Restricted Competitions In Adams and Assocs., after having lost previous protests and appeals at the Court of Federal Claims, the Federal Circuit, and the GAO, the incumbent lost yet another challenge to the agency's decision to conduct a procurement for operation of a Job Corps center as a small business set-aside, this time failing in its argument that the agency's generalized request for public comments on how to implement Congressional instructions (passed well after the solicitation had been issued) that the DOL should consider an incumbent's performance in making such set-aside decisions constituted a new procurement decision. In Precise Systems, Inc., the court held that, in determining that a service disabled veteran did not own 51% of "each class" of a firm's voting stock, the SBA's OHA had not explained its conclusion that two types of stock were "sufficiently dissimilar" to constitute separate classes; and, therefore, the court remanded the case so that the OHA could complete its analysis. However, after the OHA issued the additional explanation, in a later Precise Systems decision, the court held that there was a rational basis for the OHA's decision, which concluded that (for purposes of determining that the protester did not meet the SDVOSB requirement that an SDV own a majority of each class of voting stock) this situation involved two different classes of stock, even though the court conceded the protester's contrary interpretation also had a reasonable basis and would have been upheld had the OHA adopted it. In IEI-Cityside, JV, the court essentially ratified the OHA's prior decision that the joint venture agreement of a mentor-protégé joint venture competing for a non-8(a) procurement contained only generalized statements and lacked the specificity required by 13 C.F.R. §§ 124.513(c) and (d).
In
Schott Government Services, LLC, an unsuccessful post-award protest, the
court held that:
(i) the protester's contention that the awardee
lacked a facilities security clearance was irrelevant because
the solicitation did not require one; and (ii) a contract modification
requiring compensation from the awardee for the delivery of
nonconforming supplies was a matter of contract administration,
not grounds to challenge the original award as a violation of
CICA. In Brocade Communications Systems, Inc., the court dismissed (as unripe and speculative) a suit alleging that the procuring agency would not act in good faith in conducting market research as corrective action to determine whether it was correct to limit the original solicitation to one manufacturer. In Northeast Construction, Inc., an unsuccessful preaward protest, the court held that: (i) a protest against issuance of a solicitation amendment filed after the date the amendment set for the submission of revised proposals was untimely; and (ii) absent a contract document signed by the Government, which the solicitation required, no contract existed between the Government and the plaintiff, even though the Government had determined that the plaintiff's proposal was the only technically acceptable proposal received and had orally informed it that it was the successful offeror. In Hyperion, Inc., the court held that, although it had jurisdiction over a post-award protest of an agency's decision to cancel a solicitation and substitute a sole-source award directed by a foreign government, the International Agreement exception to CICA applied to the situation and precluded the protester from recovering its bid and proposal costs. In RLB Contracting, Inc., the court denied the protester's motion for an injunction pending its appeal of the court's prior order to the procuring agency because (i) there was no current protest before the court, and (ii) the agency had literally complied with the court's order to reconsider its determination of the correct size standard applicable to a procurement, even though the agency had reached the same conclusion after that reconsideration. In Raytheon Co., the court held that, where the procuring agency had not evaluated proposals in accordance with the solicitation's requirements and had conducted unequal and misleading discussions with offerors concerning IR&D cost reductions, the agency's decision to undertake corrective action in response to a GAO attorney's statements concerning problems with solicitation process during an outcome prediction conference in a prior GAO protest had a rational basis. In Guardian Moving and Storage Co., the court denied the protester's challenges to (i) the type of corrective action taken by the agency in response to its original protest, and (ii) the agency's subsequent decision to affirm its original award. The decision was affirmed on appeal. In Per Aarsleff A/S, an unsuccessful post-award protest, the court held essentially that it was premature to protest an agency's decision to award a bridge contract while considering further corrective action in response to a prior successful protest where the bridge contract could be, but has not yet been, extended sufficiently to obviate the need to award a contract arising out of current solicitation. In CMS Contract Management Services, et al., the court held that a group of prevailing plaintiffs in a prior bid protest were entitled to awards of their bid preparation and proposal costs where the plaintiffs had not been awarded contracts despite their successful protests. In WHR Group, Inc., the court granted an application under the EAJA for attorneys' fees filed by the prevailing party in a prior bid protest. Court of Appeals for the Federal Circuit In Bannum, Inc., the court affirmed the CoFC's prior decisions denying a protest, but on different grounds, i.e., that the protester's challenge to the solicitation's terms was untimely because not it was not "adequately" raised before award, and that, on appeal, the protester had failed to preserve its challenge to the evaluation. In Palladian Partners, Inc., the court, relying on the doctrine of exhaustion of remedies, reversed the CoFC's prior decision, holding the CoFC lacked jurisdiction over a protest by a firm excluded from the competition as a result of an OHA ruling in a NAICS code appeal because that firm had not first participated in the OHA proceeding, knowing that the OHA's decision could (and, as it turned out, did) adversely affect its interests. In other words, if you like the NAICS code assigned to a solicitation and some other firm protests it, you better enter an appearance in that OHA proceeding or risk being unable to appeal if the OHA assigns a new NAICS code that you don't like (e.g., one that would render you ineligible for award). In CGI Federal Inc., the court reversed the CoFC's prior decision in a preaward protest and held that: (i) FAR Part 12 applied to RFQs for commercial item orders made against existing FSS contracts; and (ii) the RFQs' unusual payment terms violated Part 12's prohibition against including contract terms inconsistent with customary commercial practice. As a preliminary matter, the court held that the protester, who had not submitted a bid, but who had filed a timely preaward GAO protest and then promptly (within 3 days) filed suit at the CoFC after the GAO had denied the protest had standing to maintain its protest at the CoFC. Small Business Issues/Set-Asides In Colonial Press International, Inc., the court held that the Government Printing Office, as a legislative branch agency, need not, as part of its bid-evaluation process, refer the responsibility determination to the SBA before declining to award a contract to a small business. In Tinton Falls Lodging Realty, LLC, an appeal to the CAFC of what was essentially a size protest, the court held that (i) there was a rational basis for the SBA's and OHA's determinations (subsequently ratified by the Court of Federal Claims) of what constituted the primary and vital contract requirements in a solicitation for the provision of lodging services, and, thus, (ii) the awardee was not unduly reliant on a subcontractor (a large business hotel) for those requirements. The case also involved a significant issue of standing because the plaintiff had been determined not to be a small business on this small-business set-aside. The court's majority found standing because of the possibility that the solicitation might have to be re-issued unrestricted if the protester prevailed. The dissent found this too speculative. In Raytheon Co., the court affirmed the prior CoFC decision denying a protest and upholding the agency's decision to undertake corrective action because the agency had provided disparate information concerning the solicitation's requirements to bidders, misleading one of them. In Innovation Development Enterprises of America, Inc., the court affirmed the CoFC's prior decision that the protester was not entitled to bid preparation costs under the EAJA because it had not prepared or submitted a proposal.
SBA Office of Hearings and Appeals Jurisdiction, Timeliness, Standing In Size Appeal of RX Joint Venture, LLC, the OHA held that the Area Office had correctly dismissed a size protest of a task order awardee under a long term contract because the task order solicitation did not require recertification of size.
In Matter of
JBL System Solutions, the SBA's OHA affirmed the SBA's
dismissal of a VET protest as insufficiently specific where the only allegation
was that the protester had been unable to locate in any online records
evidence that the protested firm met all the requirements for an
SDVOSB. In Matter of Brandt Group, Inc., the OHA affirmed the SBA's dismissal of a protest as untimely, also noting that several of the protest grounds were actually bid protests over which the SBA has no jurisdiction. The SBA's OHA dismissed the protest in Size Appeal of In & Out Valet Co. because there is no SBA or OHA jurisdiction over a protest allegation that a firm in a VA procurement set aside for SDVOSBs is not controlled by an SDV and, therefore, does not meet the SDVO eligibility criteria. In those circumstances, jurisdiction rests in the VA. In Size Appeal of BCS, Inc., the OHA held that the Area Office had correctly identified the primary and vital contract requirements in deciding the protested firm was not unduly reliant on its subcontractors in violation of the ostensible subcontractor rule. In Size Appeal of Tactical Micro, Inc., the OHA affirmed the Area Office's conclusions that the protested firm was not affiliated with other firms through common ownership or management or as a result of asset purchases, (ii) would perform the primary and vital contract requirements, and (iii) was not unduly reliant on a subcontractor in violation of the ostensible subcontractor rule. In Size Appeal of GaN Corp., the OHA held that the record did not support the Area Office's finding of noncompliance with the ostensible subcontractor rule but remanded the case to the Area Office to determine whether the firm's final revised proposal (to which the Area Office did not have access in its original size determination) showed that the firm complied with the rule. In Size Appeal of Hanks-Brandan, LLC, the OHA held that an awardee's teaming arrangement with the incumbent under which the incumbent would become a subcontractor (and the awardee would hire one of the incumbent's employees as the awardee's Program Manager) under the new contract did not run afoul of the ostensible subcontractor rule because, inter alia, the awardee would be responsible for performing primary requirements of new contract as the prime contractor. In Size Appeal of GiaCare and MedTrust JV, LLC, the OHA affirmed the Area Office's decision that the protester's allegations (regarding the protested firm's (i) use of its proposed subcontractor's former employee as the Senior Project Manager on the disputed contract, (ii) inclusion of its proposed subcontractor's past performance references in the current proposal, and (iii) alleged lack of evidence of sufficient lines of credit) did not demonstrate affiliation under the ostensible subcontractor rule. In Size Appeals of G&C Fab-Con, LLC, the OHA affirmed the Area Office's findings that: (i) certain firms were affiliated through common management because family members with identity of interests held several important management positions; and (ii) transactions between affiliated firms that did not involve the protested firm, as well as transactions between firms that did not have a parent-subsidiary relationship should not be excluded in determining the total receipts of the protested firm and its affiliates. In Size Appeal of Medical Comfort Systems, Inc., and B&B Medical Services, Inc., the OHA held that the Area Office had correctly determined that past affiliations between several firms had ended well before the date for determining size and that an identity-of-interest analysis did not apply because there was no evidence of economic dependence or firms being owned by family members or common investors. In
Other
Miscellaneous Size Issues
In
Size Appeal of Novex Enterprises,
the OHA held that (i) a challenge to the NAICS code
assigned to the procurement made during course of a size
determination a year after the solicitation had been issued
was untimely; and (ii) the Area Office correctly determined
the protested firm would not manufacture the end items and,
thus, was not eligible for award under a small business
set-aside procurement.
In
Size
Appeal of Camp
Noble, Inc., dba 3-D Marketing,
the OHA held that the Area Office had correctly
determined that a firm was not
small because it: (i) stated in its proposal that another firm was the
"actual manufacturer" of the contract items; (ii) admitted
it had no employees; and (iii) failed to provide information requested
by the Area Office.
In
Size
Appeal of NMC/Wollard, Inc.,
the
OHA determined that the Area Officer had not adequately
investigated the question whether the protested firm would be
the manufacturer of the contract items and remanded the case
to the Area Office to complete that analysis.
Subsequently, in a second
NMC/Wollard, Inc.,
decision, the OHA affirmed the Area Office's finding after the prior
remand that the
protested firm would be performing sufficient modifications to
John Deere vehicles to be considered the manufacturer of the
final product. In
Size Appeal of
All Around Access, LLC, the OHA
affirmed the Area Office's finding that
a procurement of utility vehicles conducted in accordance with NAICS 336112
(Light Truck
and Utility Vehicle Manufacturing) in conjunction with
2310 (Passenger Motor Vehicles) was subject to a class waiver of the
nonmanufacturer rule.
In Size
Appeal of Jamaica Bearings Co.,
the OHA resolved a clear conflict between two sections of
the applicable regulations and held that, in a procurement
conducted under simplified acquisition procedures, a small
business does not have to supply an item manufactured by a small
business in order to comply with the nonmanufacturer rule. The
OHA also affirmed the Area Office's finding that the protested
firm in this case, which was specifically authorized to
distribute the products of a large business manufacturer, met
the requirements of the nonmanufacturer rule. In
Size Appeal of B GSE Group, LLC,
the OHA held that the Area Office had correctly determined
that a solicitation for frequency converters required a
manufactured end item, not a kit, and that the challenged firm
did not meet the requirements of the nonmanufacturer rule
because it would supply an item manufactured by large business
subcontractor. However,
in another
appeal involving the same firm but a smaller solicitation,
the OHA remanded the case to the Area Office
for a determination whether the firm met the requirements for
the exception to the nonmanufacturer rule
in simplified acquisitions (and, therefore, would not have to
supply an end item manufactured by a small business).
In Size Appeal of
Wescott Electric Co., the
OHA affirmed the Area Office's decision that the protested
firm was a small business because the protester had initially
failed to produce specific evidence to the contrary, even though
apparently relevant and significant evidence was publicly
available at the time of the protest.
In
Size Appeal of
Government Contracting Resources, Inc., the OHA remanded
a case to the Area Office to consider the appellant's argument
that a firm was controlled by a six-person Executive Committee
that did not include the challenged individual.
In
Size Appeal of
Orion Construction Corp., the
OHA held that: (i) the Area
Office had correctly relied on the size standard included in the
original solicitation because the Contracting Officer had not
explicitly amended the solicitation to reflect a revised
size standard that had been published during the bidding
process; and (ii) the protester's arguments were unpersuasive
because they merely hinted at certain arguments the protester
should have researched by reviewing the appeal file for
supporting evidence.
In Size
Appeal of Sea Box, Inc., although
the SBA's OHA denied a size appeal on the grounds advanced by
the protester, it nevertheless remanded the case to the Area
Office to determine whether the awardee complied with the fourth
element of the nonmanufacturer rule on the basis of the
subcontractor the awardee had included in its proposal rather
than new subcontractor it had proposed after the size protest
was filed. (By the way, unless I am misreading the decision, I
think the judge used the term "Appellant" a couple of times on
the last page of this opinion when he meant to refer to the
awardee, instead.)
In
Size Appeal of Western
River Restoration Partners, the OHA held that the Area
Office had properly used a nonprofit affiliate's tax return to
calculate its total receipts, rather than using other records to
reduce those receipts, as had been suggested by the appellant.
In
Matter
of The Desa Group, Inc., the OHA upheld a termination from the
8(a) program because, even though two of the grounds for termination
lacked a rational basis, the third (that the firm was unduly reliant on
another business that already had graduated from the program) was
supported by the evidence in the record. In
Matter of Arrow S. Co.,
the OHA held that the petitioner should be admitted into
the 8(a) program because, in considering her application,
the SBA had improperly rejected or discounted clear evidence
of social disadvantage due to gender bias and discrimination,
which had limited her entrance into and advancement within
typical male-dominated industries.
In
Matter of A.J.
Nesti Materials, the OHA held it lacked jurisdiction over
an appeal from a denial of entry into the 8(a) program that was based on
the conclusion that the firm had not shown the potential to successfully meet
the business development objectives of the program.
In
NAICS Appeal of
Pinnacle Solutions, Inc., the OHA upheld the
Contracting Officer's assignment of NAICS code 336413
(Other Aircraft Parts and Auxiliary Equipment
Manufacturing), with a corresponding size standard of
1,000 employees, over appellant's contention that the
appropriate code was 611512 (Flight Training), with a size
standard of $27.5 million average annual receipts, on a
contract to manage, operate, maintain, and modify aircraft
simulator devices used to train Air Force personnel to
properly operate KC-10 aircraft.
In
NAICS Appeal of
Heritage Health Solutions, Inc.,
the OHA
overturned the NAICS code of 621399 (Office for All Other
Miscellaneous Health Practitioners), assigned by the Contracting
Officer, in favor of NAICS code 446110 (Pharmacies and
Drugstores), in a solicitation for the provision of pharmacy
benefits management services.
In
NAICS Appeal of
Downrange Operations and Training LLC, et al.,
the OHA overturned the Contracting Officer's NAICS code
designation of 541330 (Engineering Services) in favor of 611430
(Professional and Management Development Training) in a
solicitation for offers to
provide training support services, equipment, material,
instruction, and products to improve the capability of U.S. and
partner nation agencies' capability to detect, deter, disrupt,
and degrade national security threats posed by illegal drugs,
trafficking, piracy, transnational organized crime, threat
finance networks, and any potential nexus among these
activities.
In
NAICS Appeal of RCF Information Systems, Inc.,
the OHA
upheld the Contracting Officer's assignment of NAICS code 517110
(Wired Telecommunications Carriers) over 541513 (Computer
Facilities Management Services) in a solicitation for offers to
provide support services to operate, sustain, and assure the
availability of the Air Force Information Network. In
NAICS Appeal of National Electric Coil,
the OHA held that the Contracting Officer had properly classified a solicitation for
the replacement of the stator core and stator winding in an
air-cooled, vertical hydro-electric generator under NAICS code
237990 (Other Heavy and
Civil Engineering Construction) rather than
333611 (Turbine and Turbine
Generator Set Unit Manufacturing), as had been urged by the protester.
In
NAICS Appeal of T3 TigerTech,
the OHA held it lacked jurisdiction over a protest involving the SIN
number designation in a solicitation rather than the NAICS classification.
In
NAICS Appeal of Global
Precision Systems, LLC, the
OHA held that the Contracting Officer had correctly
determined that, pursuant to 13 C.F.R. 121.402(b)(2), a
solicitation for the provision of maintenance consumables should
be classified under the appropriate manufacturing or supply
NAICS code, not under a Wholesale Trade or Retail Trade NAICS
code.
In
Matter of VetPride
Services, Inc., the OHA affirmed the SBA's finding
that a firm was a qualified SDVOSB because the record
established that a service-disabled veteran was its
highest-ranking officer.
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