Stan Hinton

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2016 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

Responsiveness/Late Bids/Proposals

Small Business/Set-Asides

Ostensible Subcontractor

Evaluations

Solicitations

 

Other Affiliation Issues

Responsiveness/Late Bids

Evaluations

Other Miscellaneous Size Issues

Sole Source/Small Business/Restricted Competitions

Sole Source /Small Business

8(a) / SDVOSB / WOSB Status

FSS/Delivery Orders

Corrective Action

NAICS

Recovery of Costs

EAJA

   

Conflict of Interest

Miscellaneous

 

Corrective Action

 

 

Successful GAO Protests

Introduction

So far this year, the GAO published 51 decisions sustaining protests on the merits (some of which were originally dated in 2015 but not issued to the public as redacted versions until this year). 

Defective Solicitations

In Red River Waste Solutions, LP, the GAO held that, in a solicitation issued pursuant to FAR Part 12, the agency’s market research failed to reasonably support the agency’s determination that the solicitation’s pricing terms were consistent with customary commercial practice.

In RELI Group, Inc., a successful GAO protest, the GAO determined that a latent ambiguity in a solicitation's instructions concerning the submission of references for purposes of the evaluation of relevant experience, which was not discovered until proposals were evaluated, required the agency to issue a clarification and then permit offerors the opportunity to submit revised proposals.

In CACI, Inc.-Federal; Booz Allen Hamilton, Inc., the GAO sustained preaward protests against the terms of a solicitation because: (i) the solicitation for cost-reimbursable task orders did not require offerors to propose labor rates for individual tasks and, therefore, did not include a means for the Government to compare the probable costs of competing proposals; and (ii) the agency failed to adequately justify its rationale for excluding from the competition any proposals with a total proposed price that was 50 percent below the trimmed average total proposed price.

The GAO sustained a protest by Bluehorse Corp., because an RFQ, which (i) was not electronically advertised, (ii) was sent only to three potential offerors (one of whom was unlikely to be able to supply the required items and did not submit a quote), and (iii) was placed in a binder inside a closed government building on a Saturday with a response due by Monday, did not satisfy the competition and publications requirements for solicitations of commercial items using streamlined procedures under FAR 12.6.

Deloitte Consulting, LLP, won its GAO protest against the agency's implementation of corrective action in response to the firm's prior successful protest because the agency's new solicitation instructions would unreasonably restrict revisions in areas of proposals impacted by changes made as a result of the corrective action.

Flawed Evaluation / Lack of Meaningful Discussions 

In Deloitte Consulting, LLP, et al., the GAO sustained protests by three firms against an award because: (i) the record did not show why the agency had credited the awardee with its parent company's experience under the Corporate Experience factor;  (ii) the awardee had taken exception to the solicitation's data rights requirements; (iii) the agency's evaluators had made unsupported assumptions concerning the awardee's proposed labor mix; and (iv) the agency had evaluated quotations from various competitors unequally where the record did not show the basis for distinguishing among them.

The GAO sustained a protest by Export 220Volt, Inc. because the awardee failed to comply with the solicitation’s stated evaluation criterion that required offerors to provide product literature to substantiate the acceptability of their proposed products.

In ASRC Communications, Ltd., the GAO found no basis in the record to support the agency's decision that the awardee's revised proposal had cured a material deficiency in its original proposal, which would have precluded an award to it.

In AllWorld Language Consultants, Inc., a successful protest, the GAO held that a labor category proposed by the awardee in response to a solicitation for a task order award under an FSS contract did not meet the requirements of the solicitation.

The GAO sustained a protest by Castro & Co., LLC because: (i) the evaluations of the protester's quotation under the Technical and Past Performance factors was  not supported in the record; and (ii) the source selection decision lacked a rational basis where the Contracting Officer selected the awardee’s quotation on the basis of its higher numerical score, without documenting any consideration of the basis for the score, the merits of competing quotations, or whether any advantages of the awardee’s quotation outweighed its higher price.

Intelsat General Corp. won its protest because: (i) the agency engaged in misleading discussions by failing to inform the protester of a change in the agency's interpretation of the solicitation's requirements after the agency conducted discussions; (ii) the agency’s evaluation of the awardee’s proposal  was neither reasonable nor consistent with the terms of the solicitation regarding the requirements for (a) satellite coverage and capacity and (b) required documentation; and (iii) the agency’s price realism analysis was flawed because the awardee’s proposal did not meet the solicitation’s technical requirements for documentation and complete regional satellite coverage.

The GAO sustained a protest by Cascadian American Enterprises because (i) the agency downgraded the protester's proposal in the Key Personnel area without giving it the same opportunity as the awardee had  to address weaknesses in the proposal through discussions; and (ii) the agency rated the small business protester's proposal as unacceptable in the Experience area, which is a responsibility-type factor, without referring the matter to the SBA for a CoC determination.

SRA International, Inc. won its protest because the agency conducted discussions only with the eventual awardee, after which only that firm was permitted to revise its proposal.

The GAO also sustained a protest by Arctic Slope Mission Services, LLC because the agency: (i) gave undue emphasis to one of the evaluation subfactors; (ii) treated offerors unequally by reading some offerors’ proposals expansively and giving them the benefit of the doubt, while applying a much stricter standard when evaluating other proposals; and (iii) failed to evaluate the relevance of past performance adequately.

The GAO sustained a protest by Sterling Medical Corp. because the agency's evaluators (i) improperly credited the awardee for offering features unrelated to the evaluation criteria and (ii) ignored instances where it failed to provide required information.

Innovative Test Asset Solutions, LLC won on two of its protest grounds because the agency had improperly "inverted" the evaluation scheme and used cost risks identified only in the cost realism analysis to assign technical risk in two areas of the technical evaluation of the protester's proposal despite the fact that the technical evaluators had not identified any technical weaknesses.

M7 Aerospace LLC won its protest because the GAO could find no evidence in the contemporaneous record that the procuring agency had complied with solicitation's evaluation scheme, which contemplated a qualitative comparison of the various approaches proposed by the offerors.

Paragon Technology Group, Inc. won its protest because: (i) the agency conducted misleading discussions by directing the protester to remove certain assumptions from its proposal, when those assumptions were not the agency's actual concern with the proposal; and (ii) the agency’s decision to assess the relevance of past performance using a value 200 percent larger than the value of the solicited effort was unreasonable and inconsistent with the requirements of the solicitation.

The GAO sustained a protest by Crowley Logistics, Inc., because the agency failed to conduct meaningful discussions, having neglected to alert the protester to what the agency had evaluated as a significant performance risk. 

The GAO sustained a protest by Deloitte Consulting, LLP because: (i) the agency improperly concluded that one of the awardee's proposed key personnel met the experience requirements of the solicitation; (ii) the contemporaneous record was insufficient for the GAO to assess the adequacy of the agency's evaluation of relevant past performance; and (iii) the agency engaged in unequal discussions with offerors regarding past performance.

DKW Communications, Inc. won its protest because, in the GAO's view at least, the awardee had violated the proposal preparation instructions requiring single spacing by using "compressed line spacing" (which apparently is even less than single spacing) in its technical proposal, which was subject to a 10-page limit.

In Patricio Enterprises Inc., the GAO found that the agency's evaluation of past performance was unreasonable because it actually downgraded the protester for submitting three more (relevant) past performance references than the awardee did, especially when the additional references were judged to be either exceptional or very good in quality.  Patricio Enterprises won another GAO protest because material misrepresentations in the awardee's proposal concerning the availability of personnel tainted the evaluation.

Veterans Evaluation Services, Inc., et al. won their protests on three grounds: (i) the agency's "Good" Past Performance rating of the awardee was unreasonable because it was based on the prior contract performance of a mentor firm that the awardee did not plan to utilize for the current contract work in the geographical area to which this aspect of the evaluation pertained; (ii) the agency's price evaluation methodology did not provide reasonably accurate information concerning the relative total price of the competing proposals; and (iii) the agency engaged in misleading discussions by failing to inform some offerors that, after initially finding their prices reasonable, the agency had changed its mind and concluded they were unreasonably high.

In ASRC Communications, Ltd., the GAO held that the agency's reevaluation of portions of the awardee's proposal following a prior protest was not in accordance with solicitation's evaluation scheme.

In Valor Healthcare, Inc., the GAO held that the agency failed to follow the solicitation's requirement that it compare the awardee's proposed pricing to its technical approach for purposes of assessing price realism.

The GAO sustained a protest by Arcadis U.S., Inc. because (i) there was no basis for the evaluators' decision to downgrade the protester's otherwise meritorious technical proposal for a fixed-price task order on the basis of the allegedly higher costs of the proposed approach since there was no risk those costs would be passed on to the agency; (ii) the agency's evaluators provided no rational explanation for disregarding the awardee's lack of project experience; and (iii) the subsequent source selection decision based on these and other defects lacked a rational basis.

Alutiiq Banner Joint Venture won its protest because: (i) the agency improperly credited a member of the awardee's joint venture for past performance of which there was no record; and (ii) the awardee was ineligible for award of an 8(a) set-aside because it had not timely submitted an addendum to its 8(a) joint venture agreement to the SBA for approval as required by SBA regulations, causing the SBA to rescind approval of the joint venture.

The GAO sustained a protest by Rotech Healthcare, Inc. because: (i) the evaluators did not comply with the solicitation requirement to consider and document the similarity of the awardee's past contracts in the Past Performance evaluation; and (ii) the agency conducted unequal discussions by allowing only the awardee the opportunity to revise its price after the protester had submitted its final proposal revisions.

The GAO sustained a protest by MicroTechnologies, LLC because: (i) the agency's evaluation of the awardee’s proposed professional employee compensation plan  was not adequately documented; (ii) the data relied upon by the agency did not provide a meaningful basis to evaluate the awardee’s proposed compensation; and (iii) the agency acknowledged it mistakenly relied upon incorrect data from a salary survey.

The GAO sustained a protest by Kratos Defense & Rocket Support Services, Inc., because the awardee's proposal was based on the assumption that the agency would provide an on-site workspace when the solicitation clearly stated it would not.

The GAO sustained a protest by Professional Service Industries, Inc. because the awardee's proposed Program Manager failed to meet solicitation's requirement for management experience.

The GAO sustained a protest by AT&T Government Solutions, Inc. because: (i) the record did not demonstrate that the agency reasonably evaluated a potential unequal-access-to-information OCI arising from the relationship between the awardee and one of its proposed subcontractors; and (ii) the past performance evaluation contained errors in the assignment of adjectival ratings, which the source selection authority subsequently relied on in making the award decision.

In Engility Corp., a rare decision sustaining a protest against a nonresponsibility determination, the GAO held that, in determining a firm did not have a required facility security clearance, the agency: (i) relied on incomplete information and speculation, (ii) ignored evidence suggesting  the agency's conclusion was incorrect, and (iii) failed to contact the firm to clarify the situation.

The GAO sustained a protest by Halbert Construction Co. because: (i) the agency treated the protester and a competitor disparately in the evaluation of their past performance; and (ii) the agency's tradeoff analysis was  based upon a non-existent distinction in the definitions of the assigned adjectival rating terminology.

The GAO sustained a protest by Phoenix Air Group, Inc. because (i) the agency's decision that the awardee met the offer acceptability criteria ignored the fact that the awardee had provided inconsistent information concerning the identify of its proposed aircraft, and (ii) the agency applied unstated evaluation criteria in downgrading the protester's proposal.

The GAO sustained a protest by NCI Information Systems, Inc., because (i) there was nothing in the record to document that the agency meaningfully considered the awardee's potential impaired objectivity OCI or its proposed mitigation measures prior to award; and (ii) the record was insufficient to support the agency's conclusions that the awardee's proposed price: (a) was commensurate with the proposed technical approach and reflected realistic labor category pricing; and (b) was not clearly unrealistic.

CALNET, Inc., won its protest because there was no basis in the record for the agency's conclusions (i) that the offerors' proposed costs were realistic or (ii) that four proposals were equivalent under the non-cost evaluation factors.

The GAO sustained a protest by Glacier Technical Solutions, LLC because there was no basis in the record to explain the agency's decision to assign a "Good" Mission Capability rating to the awardee despite the evaluators' conclusion that one of its staffing methodologies should be rejected.

Although several of its protest allegations were denied, Jacobs Technology, Inc., won its protest because the agency's evaluation failed to reasonably consider a significant aspect of the awardee’s technical submission that indicated a lack of technical understanding.

Target Media Mid Atlantic, Inc. won its protest against the procuring agency's cost evaluation because the agency failed to evaluate the realism of the awardee’s cost proposal in accordance with its proposed technical approach and failed to evaluate the awardee’s professional employee compensation plan in accordance with the requirements of the solicitation.

The GAO sustained a protest by GiaCare and MedTrust JV, LLC on numerous grounds, including the following: (i) the agency's price realism evaluation failed to consider discrepancies between the awardee's price proposal and its proposed technical approach; (ii) the agency used labor rates in its price realism analysis that did not match those actually proposed by the offerors; (iii) there was no basis to support the agency's conclusion that the awardee's proposed indirect rate was not unrealistically low; and (iv) the agency did not properly consider the awardee's unrealistically low direct and indirect proposed rates in evaluating the risk associated with its proposed technical approach.

EFW Inc. won its GAO protest because: (i) the agency's discussion questions did not alert the protester to the agency's true concerns; (ii) a faulty past performance evaluation obscured the differences among the proposals; and (iii) the agency assigned the protester a significant weakness in the price realism evaluation based upon considerations not properly within scope of such an analysis.

Vencore Services and Solutions, Inc. won its protest because the agency engaged in misleading discussions with the protester based on a faulty, inflated agency cost estimate.

Xtreme Concepts Inc. won its protest because the agency improperly lowered its evaluation and excluded it from the competitive range based on its neutral past performance rating.

The GAO sustained a protest by Patriot Solutions, LLC, because the procuring agency improperly converted the best-value tradeoff competition set forth in the solicitation into a lowest-priced, technically acceptable competition.

Responsiveness, Late Bids, Expired Bids

In Ultimate Concrete, LLC, an unsuccessful post-award protest, the court held that: (i) although the awardee's original bid was unbalanced, it was not materially so because the base item was priced low and the option item (which not be awarded at all) high, and there was no risk of an advance payment or of default; and (ii) although it was improper to permit the awardee to modify its bid, the protester was not prejudiced because the awardee still would have won the contract with its original bid.

Sole Source/Small Business/Restricted Competitions

In Spur Design, LLC, the GAO held that the VA improperly interpreted the Rule of Two mandate of the Veterans Benefits, Health Care, and Information Technology Act of 2006 to require it to set-aside multiple-award ID/IQ solicitations for VOSBs or SDVOSBs only when there was a reasonable expectation that two qualified firms would compete for each of the contemplated number of awards (in this case 14). In overturning the agency's decision not to set this procurement aside, the GAO did not specify exactly what the agency was supposed to do to correct the situation.

Alutiiq Banner Joint Venture won its GAO protest because: (i) the agency improperly credited a member of the awardee's joint venture for past performance of which there was no record; and (ii) the awardee was ineligible for award of an 8(a) set-aside because it had not timely submitted an addendum to its 8(a) joint venture agreement to the SBA for approval as required by SBA regulations, causing the SBA to rescind approval of the joint venture.

The GAO sustained a protest by Phoenix Environmental Design, Inc., because the agency's justifications for restricting a solicitation to certain brand name items did not have a rational basis and did not comply with the competition requirements of FAR Part 13 regarding simplified acquisition procedures.

The GAO sustained a protest by Bluehorse Corp., because an RFQ, which (i) was not electronically advertised, (ii) was sent only to three potential offerors (one of whom was unlikely to be able to supply the required items and did not submit a quote), and (iii) was placed in a binder inside a closed government building on a Saturday with a response due by Monday, did not satisfy the competition and publications requirements for solicitations of commercial items using streamlined procedures under FAR 12.6.

FSS/Delivery Orders

The GAO sustained a protest by Tempus Nova, Inc. because the Government issued a delivery order for an item not included in the underlying FSS blanket purchase agreement.

Recovery of Costs

In Fluor Energy Technology Services, LLC-Costs, the GAO recommended reimbursement of protest costs because agency waited until after an ADR outcome prediction conference to undertake corrective action. Similarly, in Chase Supply, Inc., the GAO recommended reimbursement of protest costs for a clearly meritorious protest because the agency waited until well after the agency report was filed (and almost to the expiration of the 100-day statutory period) before undertaking corrective action. Furthermore, in another Chase Supply, Inc.  decision involving the same master solicitation, the GAO recommended reimbursement of costs because, even though agency undertook corrective action before filing the agency report, that action was still tardy considering that the agency already knew of defects in the master solicitation prior to the protest filing, and prior protests were further evidence of agency delays in responding to the current protest.

In TRAX International Corp.--Costs, the GAO recommended reimbursement of the protester's costs of challenging the agency's undue delay in undertaking corrective action in response to a clearly meritorious challenging the agency's implementation of corrective action following a prior protest.

In East Coast Nuclear Pharmacy--Costs, after the agency unduly delayed taking corrective action, the GAO recommends reimbursement of costs for all protest actions related to the one meritorious, severable protest ground.

In 22nd Century Team, LLC--Costs, the GAO recommended the award of costs except for a supplemental protest issue in response to which the agency did not delay corrective action.

In Technatomy Corp., Octo Consulting Group, Inc.--Costs, the GAO recommended the award of costs because agency undertook corrective action only after the outcome prediction conference.

In Vencore Services and Solutions, Inc.--Costs, the GAO granted a request for higher than the statutory $150/hour limit on attorneys fees based on  the protester's proof of an increase in the cost of living using the DOL's CPI.

In ANAMAR Environmental Consulting, Inc.--Costs), the GAO recommended the award of protest costs for the original and follow-up protests where the contractor was required to file multiple protests after the agency failed to fulfill its commitment to corrective action following the first protest.

In Shertech Pharmacy Piedmont, LLC--Costs, the GAO recommended the award of costs only for the clearly meritorious protest grounds, rejecting the claims for other protest grounds that were clearly not meritorious.

Conflict of Interest/Unfair Competitive Advantage

 The GAO sustained a protest by ASM Research because the procuring agency had failed to reasonably consider a potential conflict of interest that would be created by the awardee evaluating under one task order the performance of items that would have been developed, implemented, and deployed by the awardee under another task order.

The GAO sustained a protest by AT&T Government Solutions, Inc. because: (i) the record did not demonstrate that the agency reasonably evaluated a potential unequal-access-to-information OCI arising from the relationship between the awardee and one of its proposed subcontractors; and (ii) the past performance evaluation contained errors in the assignment of adjectival ratings, which the source selection authority subsequently relied on in making the award decision.

The GAO sustained a protest by NCI Information Systems, Inc., because (i) there was nothing in the record to document that the agency meaningfully considered the awardee's potential impaired objectivity OCI or its proposed mitigation measures prior to award; and (ii) the record was insufficient to support the agency's conclusions that the awardee's proposed price: (a) was commensurate with the proposed technical approach and reflected realistic labor category pricing; and (b) was not clearly unrealistic.

Corrective Action

Deloitte Consulting, LLP, won its GAO protest against the agency's implementation of corrective action in response to the firm's prior successful protest because the agency's new solicitation instructions would unreasonably restrict revisions in areas of proposals impacted by changes made as a result of the corrective action.

Court of Federal Claims

Timeliness/Standing/Jurisdiction/Automatic Stay 

In U.S. Security Assocs., the court held that (i) a protester lacked standing because its bid was contingent and, therefore, nonresponsive to the solicitation's requirement for a firm, fixed-price bid; and (ii) the protester had not established that the court has jurisdiction over protests challenging decisions by the Administrative Office of the United States.

In Dellew Corp., the court dismissed a protest as moot after the Government voluntarily undertook to accomplish corrective action that specifically addressed the grounds for the original protest.

In Nexagen Networks, Inc.,, a case involving both contract claims and bid protest allegations, the court held that: (i) it lacked jurisdiction over a CDA claim because the plaintiff had not submitted a certified claim to the Contracting Officer until after it had commenced its action in court; (ii) under FASA, the court lacked jurisdiction over the plaintiff's complaint against agency's corrective action in cancelling the plaintiff's task order award; and (iii) the plaintiff's challenge to a termination for default was moot because the agency already had converted it to a termination for convenience.

In an interesting decision involving timeliness, the court dismissed a protest by Phoenix Management, Inc. because the protester had failed to raise its protest against the terms of a solicitation before the original due date for proposals, and the time to protest was not extended by the Government's subsequent corrective action, which, although it permitted the submission of revised proposals, was related only to the evaluation of proposals and did not amend the terms of the solicitation.

In Precision Asset Management Corp.,, an unsuccessful post-award protest, the court dismissed a protest for lack of standing because the protester would not have had a substantial chance for award even if the errors it alleged in the procurement had been corrected.

In Excelsior Ambulance Service, Inc., the court held that the original awardee, which had waited to attempt to intervene in a protest until a judgment had been entered in favor of the protester, was too late. (The awardee wanted to intervene only so that it could appeal the court's decision because the agency had decided not to.)

In REO Solution, LLC, an unsuccessful post-award protest, the court held that a firm whose offered price was substantially higher than the awardee's and several others' did not have standing because there was no substantial chance it would have received award even if its protest grounds had been upheld.

In Braseth Trucking, LLC, following a remand to the Contracting Officer, during which he further explained the basis for the award decision, the court of held that the protester lacked standing because it would not have a substantial chance for award even if the errors in the procurement of which it originally had complained were corrected.

In Transatlantic Lines LLC, the court dismissed a protest for lack of jurisdiction because the contractor had signed a bridge contract, and, therefore, any  disputes it had regarding the rates to be paid by the Government under the contract were matters involving contract administration that must be handled under the CDA.

In Universal Protection Service, LP, an unsuccessful post-award protest, the court held that the firm that had purchased the original bidder/protester (which was one subsidiary of a much larger firm) during the pendency of the second round of corrective actions undertaken by agency following the original protest did not have standing to protest following the corrective action because the purchaser was not the complete successor-in-interest to the original protester since individuals and assets of the original protester's parent company, referenced and relied on in the original proposal and evaluated by the agency, were not included in the sale.

In Wallace Asset Management, LLC, which involved unsuccessful post-award protests, the court held that the protester lacked standing because it would not have been next in line for award should the awardee have been disqualified; and, even if the protester had standing, the agency's past performance evaluation had a rational basis, and there was no evidence in the record of an OCI involving the awardee.

In Palantir Technologies, Inc. and Palantir USG, Inc., the court dismissed (as waived) one plaintiff preaward protest because its initial protest at the GAO had been untimely, but refused to dismiss a second plaintiff's preaward protest filed in court 43 days after an adverse GAO decision because that plaintiff's original GAO protest had been timely filed and no award had yet been made by the agency.

In denying motions to dismiss two, consolidated protests for lack of standing, the court held in Precision Asset Management Corp. and Q Integrated Companies, LLC that the protesters need only establish that, absent the alleged errors in the evaluations, their evaluation ratings would have improved and their chances of securing a contract award would have increased, there being no requirement that they were next in line for award.

In InSpace 21 LLC, an unsuccessful post-award protest, the court held that: (i) the doctrine of laches did not bar the protester's suit even though it was filed four months after the original GAO decision on its protest because, inter alia, the protester had timely requested reconsideration from the GAO and then had filed suit within 10 days of the GAO's decision on reconsideration; and (ii) rational bases existed for the challenged aspects of the evaluation, including the agency's decision not to adopt the views of a minority of its evaluators.

In Omran Holding Group, an unsuccessful protest, the court held that, in a lowest-price, technically acceptable procurement with only one awardee, the protester lacked standing to challenge the agency's finding that its proposal was nonresponsive on technical grounds because 18 technically acceptable offerors proposed a lower price than the protester did.

In Nevada Site Science Support and Technologies Corp., the court denied motions by third parties to intervene in a bid protest challenging an agency's decision to rescind a contract and used the following colorful analogy to support its reasoning: "[T]he simple fact that a party might benefit from another’s legal misfortune does not lead to an understanding that said party should have a role in . . . that legal misfortune. If a singer suffers a voice injury and is, as result, fired from her job, it is hardly conceivable to believe that a Court would allow a rival singer to intervene in that case on the side of the employer simply because he might subsequently get the newly vacant job!"

In Alluviam, LLC, an unsuccessful post-award protest, the court held that the plaintiff had waited far to too long to challenge a procurement strategy adopted 12 years previously, especially because all the contracts at issue were almost fully performed.

In Proxtronics Dosimetry, LLC, an unsuccessful post-award protest, the court held that: (i) it lacked jurisdiction over claims sounding in tort based on the Lanham Act;  (ii) the plaintiff lacked standing to protest a sole-source award because it had failed to provide any notice of its objections or its own availability at the time the notices of the sole-source procurement were issued; (iii) the plaintiff waived its right to challenge the agency's decision not to set aside a procurement for small businesses because it did not protest at the time the solicitation was issued; and (iv) the plaintiff's protest of a contract that already had been fully performed was moot.

In Loch Harbor Group, Inc., an unsuccessful request for emergency relief (a TRO and preliminary injunction) pending a full trial on the merits, the court held that: (i) the evidence in the record so far was not sufficient to demonstrate that the protester had standing (because it was not a small business under the size standard applicable to the protested procurement, which likely would be applicable to any reprocurement); and (ii) the available record suggested the agency had complied with all requirements of the Veterans Benefit, Health Care, and Information Technology Act in awarding a sole-source contract to a veteran-owned business, and, therefore, the protester had not demonstrated it was likely to succeed on the merits of the case.

Responsiveness/Late Bids/Proposals

In Johnson Controls Government Systems, LLC, the court held that the procuring agency had properly rejected a proposal as late because, although the protester had uploaded it to the proper FedConnect Responses web portal in a timely manner, the protester had failed to follow the instructions on the fedconnect.net website for completing the delivery of the proposal to the Government so that it was not actually received until five days after the deadline.

In Federal Acquisition Services Team, LLC, a successful preaward protest, the court held that the procuring agency had improperly rejected a proposal as late even though the proposal met the solicitation's size limit when transmitted, had been timely sent to the email address specified in the solicitation, and had been received by the government server associated with that email address, because the Government's system had apparently added data to the original file, which took it over the size limit, in retransmitting the file to a second server within the Government's system. The important holding of the case is that the "government control" exception (FAR 52.215-1(c)(3)(ii)(A)(2)) to the "late is late" rule applies to electronic submissions.

Solicitation Language

In DynCorp International, LLC, an unsuccessful preaward protest, the court held that an incumbent contractor that had consistently failed to mark its cost data submissions as proprietary and that had not objected to the Government's announced plan to post life cycle cost management reports as part of the follow-on solicitation and then waited until five months after the solicitation was published to protest had waived its objections to such publication.

In Worldwide Language Resources, LLC, an unsuccessful preaward protest, the court rejected the protester's contentions that the solicitation was structured so that only the incumbent would have (i) sufficient information to bid intelligently and (ii) sufficient relevant past performance to merit a positive evaluation. 

Phoenix Management, Inc., is an interesting, albeit unsuccessful, preaward protest of the terms of a solicitation, in which the court held that: (i) for well-defined fixed-price work, the Government is not required to disclose the incumbent's historical ODC data to all competitors; and (ii) in a low-price, technically acceptable evaluation, the agency may treat offerors with no past performance as "acceptable" because the regulations requiring such offers to be treated neither favorably nor unfavorably basically create a quandary in situations where past performance is not qualitatively evaluated as part of a trade-off analysis. 

Evaluations/Discussions

In Amidon, Inc., an unsuccessful post-award protest, the court held that, contrary to the protester's allegations, the awardee's technical proposal addressed the solicitation's requirements, and there was a rational basis for the best-value decision to award to the higher-rated, higher-priced proposal.

In Jacqueline R. Sims d/b/a JRS Staffing Services, an unsuccessful protest, the court held that an agency's nonresponsibility determination and the SBA's subsequent refusal to issue a CoC were rationally based, inter alia, on the protester's failure to accept other contracts for which it had been the successful offeror and the failure of an affiliated company (which was operated by the same individual from the same home office as the protester) to perform another contract.

In Caddell Construction Co.,, the court issued a limited injunction against an award on the basis of misleading discussions because the awardee (i) had reduced its offered price after the Government had mistakenly informed it that its originally proposed price was higher than the IGE (when it was actually lower) and then (ii) won the award because its price was the lowest. The injunction will allow only the awardee the opportunity to revise its price after having been given the correct information by the Government. Of course, the awardee now knows what the IGE is and that its current bid is low (and it can guess from the redactions a great deal about the other offers), so what are the chances it will use the opportunity of additional discussions to price itself out of its victory? (The protester was one of the awardee's competitors, so I am sure it is not optimistic it will win the contract on the basis of the "remedy" fashioned by the court.)

Usually, if a protester loses its motion for a preliminary injunction, it goes away. In Lockheed Martin Corp., however, it appears the protester may press on even after the court held that (on the basis of the limited record reviewed by the court in denying the motion for a preliminary injunction) the Government's discussions with the protester "likely" were meaningful and not misleading, and the evaluators probably did not treat offerors unequally. The court left open  the possibility it might reach different conclusions in reviewing the full record when it considers whether a permanent injunction is warranted.

In Caddell Construction Co., the court intially held that the administrative record was inadequate for it to rule on cross motions for judgment in a post-award protest and, therefore, remanded the case to the agency to provide its previously unarticulated reasons for finding the eventual awardee prequalified in the first phase of a staged procurement. Subsequently, the court held that: (i) the awardee was not prohibited by either the solicitation or applicable law from radically revising its proposal regarding the role of a proposed subcontractor following discussions with the agency; (ii) the awardee's proposed home office staffing approach was not prohibited by the solicitation and was rationally evaluated as acceptable by the agency; (iii) the awardee repeatedly represented that it would comply with the "Limitations on Subcontracting" clause and whether it does so will be a matter of contract administration; (iv) the Contracting Officer's decision not to conduct a new responsibility determination concerning the awardee based on a court decision concerning fraud by a predecessor of one of its proposed subcontractors was reasonable because that  decision did not affect any of the awardee's prior representations; and (v) the Contracting Officer's decision not to conduct a new responsibility decision of the same subcontractor was rational because the solicitation did not require responsibility determinations of subcontractors and a prior court decision had affirmed a separate responsibility determination of the subcontractor because of various remedial measures it had taken since the original fraud finding.

In AvKARE, Inc., a "hybrid" contract dispute/protest, the court: (i) dismissed the contractor's challenges to the agency's responses to its requests for modification under its existing contract for lack of CDA jurisdiction because the contractor had not submitted claims to the Contracting Officer; and (ii) denied a protest against the agency's refusal to renew the contract because, after the agency reasonably concluded the protester was not a manufacturer, the protester repeatedly rebuffed the agency's requests to provide the additional information required from dealers./p>

In Innovative Test Asset Solutions LLC,, an unsuccessful post-award protest of the Government's alleged failure to consider the protester's proposal fairly and honestly during a reevaluation required as a result of the protester's prior, successful GAO protest, the court held that, although "the record provides enough evidence to raise skepticism about the [G]overnment’s treatment of [the protester's proposal] . . . [and] raises the possibility that the Air Force did not truly reevaluate the proposals, but instead made revisions only insofar as to provide further justification for its award to" the original awardee, the record as a whole showed the agency did conduct a satisfactory reevaluation.

In Constellation West, Inc. and Serv1Tech, Inc., unsuccessful post-award protests, the court held that: (i) the Government had not applied unstated evaluation criteria to its analysis of proposals; (ii) an error in evaluating one area under the wrong evaluation section had not prejudiced the protester; and (iii) the agency's refusal to evaluate one protester's price proposal that had omitted material, required information had a rational basis.

In Prescient, Inc., an unsuccessful protest, the court held, inter alia, that: (i) the protester had failed to establish prejudicial disparate treatment by the evaluators concerning its proposal versus those of other offerors; and (ii) most of the deficiencies identified by the agency in the protester's proposal were "material," which justified its final rating.

In Remington Arms Co, LLC, a ssuccessful protest, the court held that the procuring agency's responsibility determination concerning the awardee lacked a reasonable basis because both the outcome of the awardee's pending bankruptcy case and its production capability were in serious doubt.

In In Wallace Asset Management, LLC, an unsuccessful post-award protest, the court held that: (i) the protester lacked standing to challenge four of five disputed awards because it was not next in line for award; (ii) the agency's evaluation of past/present performance had a rational basis; and (iii) the agency had appropriately investigated, and cleared, OCI issues involving the awardee.

In Constellation West, Inc. and Serv1Tech, Inc., unsuccessful post-award protests, the court held that: (i) the Government had not applied unstated evaluation criteria to its analysis of proposals; (ii) an error in evaluating one area under the wrong evaluation section had not prejudiced the protester; and (iii) the agency's refusal to evaluate one protester's price proposal that had omitted material, required information had a rational basis. 

In Res Rei Development, Inc., an unsuccessful preaward protest against the protester's exclusion from the competitive range, the court held that: (i) the protester was responsible for errors it introduced in editing its original offer down in size after its initial offer was rejected by the Government's email server as too large, especially when the better course of action would have been simply to break down the original offer into several smaller emails; and (ii) the Government's evaluation of other aspects of the proposal was unobjectionable.

In Q Integrated Companies, LLC, a successful post-award protest, the court held that, although the Government's evaluations of the protester's and the awardee's Past Performance had a rational basis, the Government had failed to conduct meaningful discussions with the protester because the Government had failed to disclose that the protester's Past Performance proposal, including the completed questionnaires it had submitted, contained material weaknesses or deficiencies.

In Spectrum Comm, Inc., an unsuccessful post-award protest, the court held that the Source Selection Authority's decision (both before and after corrective action) to award the contract to a different firm from the one  recommended by the agency's evaluation team had a rational basis in the record, did not violate the solicitation's evaluation scheme, and did not convert the solicitation from a best-value to a lowest-priced-technically-acceptable procurement.

In Algese 2 s.c.a.r.l., a successful  post-award protest, the court held that an offeror had willfully failed to disclose in its offer an extensive history of public corruption and fraud by its parent and affiliates in government procurements and had falsely certified concerning those subjects, and, therefore, had made material misrepresentations rendering the firm ineligible for award. Later, in a subsequent proceeding, after a remand to the agency for a new responsibility determination and the receipt of additional explanations from the agency, the court reluctantly lifted its previous injunction against an award, which had been based on the court's prior findings of "multiple failures to disclose rampant criminal conduct by [the awardee's] parent company officers and principals. . . ." Subsequently, the court denied a motion to stay its decision pending an appeal.

In T.W LaQuay Marine, LLC, an unsuccessful post-award protest, the court held that the agency's initial evaluation of offers as technically unacceptable and its subsequent decision to conduct discussions were reasonable, and the discussion questions and subsequent evaluation and award to the lowest-priced technically acceptable offeror, as provided for in the solicitation, had rational bases.

In Tetra Tech AMT, an unsuccessful post-award protest, the court: (i) rejected the protester's challenge to the agency's disregard for excess pages in its proposal because the protester's interpretation of the solicitation's proposal page imitation requirements was not within the zone of reasonableness; (ii) held that the protester waited too long to raise issues with (i.e., waived its objections to) the awardee's alleged manipulation of the page limitation requirements; and (iii) found the protester's challenges to various aspects of the evaluation and trade-off analysis undermined by the administrative record.

In InSpace 21 LLC, an unsuccessful post-award protest, the court held that: (i) the doctrine of laches did not bar the protester's suit even though it was filed four months after the original GAO decision on its protest because, inter alia, the protester had timely requested reconsideration from the GAO and then had filed suit within 10 days of the GAO's decision on reconsideration; and (ii) rational bases existed for the challenged aspects of the evaluation, including the agency's decision not to adopt the views of a minority of its evaluators.

In Dellew Corp., the court upheld the agency's selection (after two sets of corrective actions) of the same firm it had originally selected (despite the facts that (i) the evaluations were very close, (ii) the protester's evaluated price was lower, and (iii) there were flaws in the evaluation) because the Contracting Officer had rationally exercised his discretion in awarding the contract.

In TAT Technologies, LTD, the court rejected the protester's contention that the solicitation required offerors to perform and pass qualification tests on the contract items prior to award.

In McConnell Jones Lanier & Murphy LLP, an unsuccessful post-award protest, the court held that there were rational bases for the disputed aspects of the agency's technical and cost realism evaluations, and, in any event, the protester was not prejudiced by any errors in the cost realism evaluation.

In Great Southern Engineering, Inc., an unsuccessful pre-award protest, the court held there was a rational basis for the agency's past performance evaluation of "past projects," which scored an offeror submitting information from totally separate contracts more favorably than the protester, who had submitted only multiple task orders under a single IDIQ contract. In reaching that conclusion, the court asserted that the Supreme Court's decision in Kingdomware Technologies should not be read to hold that, as a general proposition, task orders are always contracts.

In Veterans Electric, LLC, an unsuccessful protest, the court held that the procuring agency was entitled to consider past positive experiences with the awardee as a contractor in selecting its low-priced, somewhat ambiguous, proposal for award.

In Sallyport Global Holdings, Inc., an unsuccessful post-award protest, the court held that: (i) the procuring agency's finding that the protester's proposed dual-Project Manager structure did not meet the solicitation's requirement for a single qualified Project Manager deployed on site was supported by the record; (ii) the agency's improper assignment of a weakness to the protester's proposal based on the unjustified assumption that it had contacted agency personnel during a blackout period was not prejudicial because the proposal was unacceptable for the reason above; and (iii) the "certification" held by the awardee's proposed Project Manager met the solicitation's requirement.

In Tiber Creek Consulting, Inc., an unsuccessful post-award protest, the court held that the Contracting Officer's best value analysis (determining that the awardee's 20% lower price outweighed the protester's superior technical expertise) had a rational basis and was supported by the administrative record.

In CSC Government Solutions, LLC, the court held that: (i) contrary to the protester's contentions, the agency's cost realism analysis considered both option years and direct labor rates; (ii) the agency's cost evaluation of the awardee's staffing plan satisfied the requirements of FAR 52.222-46 (which addresses how offerors' proposals that may reduce compensation for incumbent employees should be analyzed); (iii) any inconsistencies between the Government's positive evaluation of the protester's technical approach and concerns the Government raised during discussions concerning the protester's cost-price realism were not prejudicial because the Government ultimately evaluated its cost-price as realistic; (iv) there was a rational basis for the agency's technical evaluation of the phase-in staffing plan; (v) the solicitation gave the agency the discretion to evaluate only the past performance references submitted by offerors and did not require it to conduct additional research of a particular contract mentioned only fleetingly in the awardee's proposal and not submitted as a reference;  and (vi) the agency's discussions with offerors were not misleading, unequal, or coercive.

Progressive Industries, Inc. won its post-award protest of the procuring agency's decision in response to an earlier agency-level protest to make awards to the same two firms as it had originally selected; specifically: (i) in establishing the competitive range, the agency treated offerors inconsistently; (ii) the agency granted only one offeror an extension of time to submit its revised proposal; (iii) the record did not show when or how the agency evaluated price; and (iv) the record indicated the final source selection decision following corrective action was accomplished using different standards and methodology than those set forth in the original source selection plan.

Level 3 Communications, LLC, the incumbent contractor, won its post-award protest because: (i) in the lowest-priced, technically-acceptable competition, the Contracting Officer should have sought clarification from the protester regarding an aspect of its significantly lowest price proposal rather than finding it unacceptable; (ii) the Contracting Officer engaged in disparate treatment of offerors by finding one unacceptable for a defect shared by the successful offeror; and (iii) given that the incumbent's proposed price was 40% lower than the awardee's, the Contracting Officer should have entered into negotiations with offerors, especially where the awardee could not meet the start-up timing requirement in the solicitation. The decision ends with the court's unusual scolding of the agency for leading the court to believe that contract performance would not begin until December 1 when it actually began significantly earlier.

Sole Source/Small Business/Restricted Competitions

In CHE Consulting, Inc., an unsuccessful post-award protest, the court held that consolidating requirements for hardware and software maintenance services into a solicitation for a single contract did not constitute "bundling" because the resulting contract was not "likely [to] be unsuitable for award to a small business," especially where three small businesses submitted offers in response to the solicitation and award was made to a small business. The court also dismissed other allegations because the protester lacked standing to raise them since it was ineligible to compete for award under the solicitation's requirements.

In Lawson Environmental Services, LLC, after a lengthy set of agency-level and GAO protests, the court held that, because the Key Personnel evaluation factor in a solicitation was a traditional responsibility issue: (i) the procuring agency had properly referred the issue to the SBA for a CoC once the agency had determined the apparent awardee, a small business, had failed that factor due to questions about the accuracy of the resume of one of its proposed key personnel; (ii) the agency had supplied the SBA with appropriate documentation concerning the issue; and (iii) the SBA had a rational basis for issuing a CoC to the protested firm.

In Orion Construction Corp., an unsuccessful protest, the court held that: (i) the procuring agency had not impliedly amended the solicitation to incorporate a new size standard issued between the submission of Phase One and Phase Two proposals; (ii) the agency's decision not to incorporate the new size standard was not improper; and (iii) the SBA's size determination regarding the protester's size had a rational basis.

In GEO-Med, LLC, which involved unsuccessful preaward protests, the court held that: (i) OCI allegations involving one bidder became moot when the agency awarded the contract to a different firm; (ii) the agency was within its discretion not to seek a waiver of the  nonmanufacturer rule and set-aside the procurement for SDVOSBs;  and (iii) the solicitation did not constitute impermissible bundling and was not unduly restrictive of competition.

The court held, in AugustaWestland North America, Inc., that: (i) the Army's order to designate a specific helicopter as the Army's institutional training helicopter and its manufacturer as the only responsible source was a procurement decision that violated, inter alia, CICA; and (ii) the Army did not have a rational basis for its decision to limit competition to one manufacturer.

In Loch Harbor Group, Inc., an unsuccessful request for emergency relief (a TRO and preliminary injunction) pending a full trial on the merits, the court held that: (i) the evidence in the record so far was not sufficient to demonstrate that the protester had standing (because it was not a small business under the size standard applicable to the protested procurement, which likely would be applicable to any reprocurement); and (ii) the available record suggested the agency had complied with all requirements of the Veterans Benefit, Health Care, and Information Technology Act in awarding a sole-source contract to a veteran-owned business, and, therefore, the protester had not demonstrated it was likely to succeed on the merits of the case.

In Dorado Services, Inc., an unsuccessful post-award protest, the court held: (i) it had bid protest jurisdiction over a contract awardee's suit challenging the SBA's decision to decertify it as an eligible HUBZone business for purposes of the HUBZone set-aside contract it was already performing (the SBA's decision coming as a result of a HUBZone status protest filed by another firm shortly after award); and (ii) the SBA had correctly concluded that certain of the plaintiff's employees did not reside in HUBZones at the time of award  and, therefore, that the plaintiff did not meet the HUBZone program requirement that 35 % of its workers do so.

In Palantir USG, Inc., a successful preaward protest, the protester obtained a permanent injunction because, although the protester failed to establish bias by the Government against its product, the documents the agency relied on in limiting competition did not establish that the agency had conducted adequate market research and analysis to determine whether the agency's needs could be met by commercial items in accordance with the preference for such items in 10 U.S.C. 2377.

Corrective Action

In MacAulay-Brown, Inc., the court held that the procuring agency's proposed corrective action (cancellation of a task order) was not supported in the record because it was based on alleged OCI issues that the agency had previously determined were not a problem and that the agency had not further investigated since that original determination.

In MSC Industrial Direct Co., an unsuccessful post-award protest, the court held that: (i) the procuring agency had reasonably decided to take corrective action by revising a solicitation after discovering that a delivery requirement as stated in the original solicitation was in error; (ii) the agency reasonably decided to undertake further corrective action by allowing competitors to submit revised pricing because many prices had changed during the passage of time since the original price submissions; (iii) the subsequent award of BPAs to a firm was proper because the argument that that firm had manipulated pricing was speculative and the solicitation requirement that it not sell items equal to AbilityOne items was a matter to be determined during contract performance, not as part of the evaluation of its bid. 

In PricewaterhouseCoopers Public Sector, LLP, an unsuccessful protest of an agency's proposed corrective action (revising the solicitation and seeking new proposals) in response to a prior GAO decision, the court, although questioning one of the GAO's original conclusions concerning one alleged flaw in the procurement, held that: (i) the GAO was correct concerning a sufficient number of other flaws in the prior evaluation to justify the agency's decision to undertake corrective action; (ii) as part of the corrective action process, the agency was within its discretion to revise the solicitation to reflect the agency's changed needs between original proposal submission and the date of the revised solicitation, which, in turn, would require the submission of revised proposals (as opposed to simply reevaluating the original proposals); and (iii) the argument that one competitor has an OCI is premature before revised proposals have been submitted and the agency, itself, has the opportunity to examine that issue.

In Starry Assocs., Inc., a successful post-award protest, the court held that the agency lacked a rational basis for cancelling a solicitation rather than undertaking the corrective action previously recommended by the GAO and that the cancellation merely "punctuates a series of actions [by the agency] which reflect a lack of fidelity to the procurement process."

In SOS International LLC, an unsuccessful preaward protest of the agency's proposed corrective action of clarifying ambiguous proposal page limitation requirements in response to a previous protest, the Court of Federal Claims held: (i) the protester lacked standing because it was not the winner of the original competition and could not establish it would be in line for award but for the proposed corrective action; and in any event (ii) the proposed corrective action was reasonable because the original solicitation was, in fact, ambiguous.

In Professional Service Industries, Inc., the court held that the corrective action undertaken by the agency in response to a prior, successful GAO protest was unacceptable because the agency had merely revised the solicitation to water down its requirements to match the qualifications and experience of the PM originally proposed by the awardee.

EAJA/Fees/Costs

In Dellew Corp., despite the fact that the court had never issued a written opinion on the underlying protest, it held that the protester was a "prevailing party" entitled to attorneys' fees under the EAJA because the Government had undertaken corrective action after closing arguments in an oral hearing, during which the court had commented favorably on the merits of the protest.  Subsequently, the CAFC reversed this decision. 

Miscellaneous

In DynCorp International, LLC, the court permitted the plaintiff to supplement the administrative record in a preaward protest with an expert's report detailing the alleged prejudice resulting from the Government's disclosure of the plaintiff's proprietary data to its competitors.

In Starry Assocs., Inc., the court granted the protester's motion to supplement the administrative record by taking four depositions because the plaintiff had made credible allegations that the agency's decision to cancel a solicitation was tainted by bias.

In Sigmatech, Inc., the court: (i) permitted the protester to take the Contracting Officer's deposition concerning the compilation of the Administrative Record and the potential inconsistencies in the documents produced because the Government had corrected the record after the protester had filed briefing materials based on the original record; and (ii) ordered the Government to reimburse the attorneys' fees incurred by the plaintiff in preparing briefs based on the original, uncorrected record.

In Parcel 49C Limited Partnership, a preaward protest, the court allowed supplementation of the administrative record with information concerning the agency's development of the independent government estimate (IGE).

In Lawson Environmental Services, LLC, the court refused to stay its previous decision (in which had denied a bid protest) pending the protester's appeal to the CAFC.

In Aegis Technologies Group, Inc., an unsuccessful post-award protest, the court held that: (i) the plaintiff failed to provide "hard facts" (beyond inference and speculation) necessary to establish that the awardee's proposed subcontractor suffered from (a) a biased-ground-rules OCI under FAR 9.505-1, (b) an unequal-access-to- competitively-useful-non-public information OCI, or (c) an impaired objectivity OCI; and (ii) there were rational bases for the agency's cost realism, technical risk, and past performance evaluations.

In Favor TechConsulting, LLC, the court granted the protester a TRO prohibiting the Government from proceeding with performance of awarded orders for seven days (within which time the agency would have the opportunity to submit additional documentation concerning its contention that the original GAO protest was not filed within 10 days of the award date) because the documentation in the record so far supported the protester's contention that it filed its GAO protest within the time period required to trigger CICA's automatic stay. Subsequently, the court extended the TRO for an additional 10 days to permit the parties to submit their respective filings. Finally,  court required the agency to institute a stay pending the resolution of a GAO protest because all the evidence available to the protester had indicated the contract award date was September 27, meaning it had filed its GAO protest on the tenth day after award, which, according to the court, was in time to obtain the CICA stay. The court's reasoning is based largely on grounds of fairness--the protester used the only available information to compute its 10-day time limit for filing and obtaining the automatic stay:

The Government’s failure to institute the CICA’s automatic stay in this case is founded neither in fact nor law. The record is absolutely clear that Plaintiff learned of the contract award via the September 27, 2016 Notice of Award. The Notice of Award is marked "September 27, 2016," and no other date appears that awards the BPAs. . . . Nor were there any other publically available notices of the award date, and nothing in the nearly 300-page October 24, 2016 Appendix submitted by the Government suggests anything to the contrary. In addition, the Government has not demonstrated, either in the two status conferences convened by the court in this case or in its filings, how Plaintiff was supposed to know that the contract was awarded by DIA on September 26, 2016.

In Level 3 Communications, LLC, the court issued a TRO against further contract performance pending its decision on the merits of a bid protest after the agency (without notice to the court) allowed the awardee to begin performance sooner than it had previously predicted it would to the court.

In Telos Corp., the court denied the plaintiff's request for an injunction pending its appeal of a prior court decision denying its protest. The Court of Appeals for the Federal Circuit also affirmed the CoFC's prior decision on the merits.

 

Court of Appeals for the Federal Circuit

Jurisdiction/Standing

In Jay Hymas d/b/a Dosmen Farms, the court reversed the prior CoFC decision and held that the Department of the Interior's Fish & Wildlife Service's cooperative farming agreements with farmers to grow crops on public lands are cooperative agreements rather than procurement contracts and, thus, are not subject to the CoFC's Tucker Act protest jurisdiction. 

In Coast Professional, Inc., the CAFC reversed the prior CoFC decision and held that, under the specific provisions of the contracts at issue, award term extensions of FSS task orders were new task orders and, therefore, the propriety of the decision to issue such extensions was a matter within the CoFC's bid protest jurisdiction.

In Guardian Moving Storage Co., a decision it labeled as nonprecedential, the CAFC affirmed the prior CoFC decision and held that a protest against the agency's corrective action was based on the flawed assumptions that the protester's proposal was acceptable and that no corrective action was necessary.

Supreme Court

In Kingdomware Technologies, Inc., the Supreme Court reversed the prior CAFC decision that the Veterans Act of 2006 does not require the VA to conduct a Rule of Two inquiry before contracting via FSS and held that such an analysis is mandatory.

SBA Office of Hearings and Appeals

Jurisdiction/Standing/Timeliness/Procedure

In Size Appeal of International Filter Mfg. Corp., the OHA held that: (i) the Area Office had properly based its size determination on sworn statements in the protested firm's Form 355 rather than protester's general, unsupported allegations; and (ii) the OHA would not consider additional companies alleged to be affiliates when the protester had not previously identified those firms to the Area Office.

In Size Appeal of ProSouth Construction Services, LLC, the OHA held that: (i) the Area Office had correctly dismissed the original protest as insufficiently specific; and (ii) the appeal suffered from same type of infirmity.

In Size Appeal of CodeLynx, LLC, the OHA held that the Area Office had correctly dismissed (as untimely) a protest involving a task order solicitation under a long-term contract  because the Contracting Officer had not requested offerors to re-certify their size in response to the task order solicitation.

In Size Appeal of Latvian Connection, LLC, the SBA's OHA dismissed a size protest filed initially with the OHA instead of the SBA.

In Size Appeal of ARNC/Bridge Consulting, LLC, the OHA held it was harmless error for the Area Office to rescind a previous size determination after it had been appealed to OHA rather than requesting a remand from the OHA because, had it requested the remand, the OHA would have granted the request even if it had been opposed. 

In Size Appeal of ACR Electronics, Inc., the OHA held that an appeal from a prior dismissal of a size protest was moot because the agency had, in the interim, filed its own protest.

In Size Appeal of OER Services, LLC, the OHA held that, although the body of the original protest was not sufficiently specific, the protest should not have been dismissed by the Area Office because it included a copy of the protested firm's SAM profile showing it was not small for purposes of the instant procurement.

In Size Appeal of Maron Construction Co., the OHA dismissed an appeal that failed to include several types of information required by OHA's regulations concerning, inter alia, the timeliness of the appeal.

In Size Appeal of Hale Laulima, LLC, the OHA held that, contrary to the finding by the Area Office, the protest was timely because the agency had re-opened discussions and solicited revised proposals after the original announcement of the apparent awardee.

In Size Appeal of Straughan Environmental, Inc., the OHA held that a firm that (i) had not protested another firm's size status and (ii) had been eliminated from the competitive range, lacked standing to appeal to the OHA from the SBA's determination of that other firm's size status. Subsequently, the OHA denied the firm's petition for reconsideration.

In Size Appeal of The Emergence Group, the OHA dismissed the appeal because the OHA lacks jurisdiction over protest allegations that an ANC's exemption from the normal rules of affiliation gives it an unfair competitive advantage.

In Size Appeal of K4 Solutions, Inc.,  the OHA held that the Area Office had correctly dismissed a protest against a firm's size status on a BPA issued under a long-term contract as untimely because the protester had  not alleged, until its appeal to the OHA, that recertification was required under 13 C.F.R. § 121.404(g)(2) as a result of an acquisition of the challenged firm. In other words, the Area Office had no obligation to investigate allegations not brought to its attention by the protester.

Similarly, in Size Appeal of System Studies & Simulation, Inc., 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 Contracting Officer had not requested recertification of size in connection with the  order.

In Size Appeal of TMC Global Professional Services, the SBA's OHA found that the Area Office had erred in dismissing (for lack of standing) a size protest by a firm that had received low evaluation scores but that had not been eliminated from the competition.

Ostensible Subcontractor

In Size Appeal of Hamilton Alliance, Inc., the OHA held that the Area Office had correctly determined that the ostensible subcontractor rule applied because the prime contractor would only be responsible for management while the proposed subcontractor would provide all the primary and vital requirements of a refuse collection contract.

In Size Appeal of Modus Operandi, Inc., the OHA held that the Area Office had correctly determined that a firm that was unusually reliant on the incumbent (a large business) as a subcontractor on a new contract ran afoul of the ostensible subcontractor rule, and, in doing so, the OHA reaffirmed the precedential value of the reasoning in the DoverStaffing case.   

In Size Appeal of OSG, Inc., the OHA held that the Area Office had correctly concluded that the contested firm was the "manufacturer" of the transparent armor assemblies required by the solicitation and that it was not unduly reliant on a subcontractor under the ostensible subcontractor rule.

In Size Appeal of Social Solutions International, Inc., a dispute involving the determination of the primary and vital requirements of a particular contract and whether certain types of employees should be counted towards work on those requirements, the OHA affirmed the Area Office's decision that the small business prime would be performing the primary and vital requirements of the contract and, therefore, was not in violation of the ostensible subcontractor rule.

In Size Appeal of Greener Construction Services, Inc., the OHA affirmed the Area Office's finding of a violation of the ostensible subcontractor rule because the challenged firm's subcontractor would perform the primary and vital contract requirements, and the challenged firm's change of approach after it had submitted its final proposal was irrelevant to this determination.

Other Miscellaneous Size Issues

In Size Appeal of Tenax Aerospace, LLC, the OHA: (i) upheld the Area Office's finding of affiliation through identity of interest where firms had a significant number of common investments; (ii) upheld a finding of affiliation where multiple minority owners had approximately equal ownership interests in a firm; (iii) overruled the OHA's prior holding in Size Appeal of Mark Dunning Industries, Inc., SBA No. SIZ-5488 (2013),  that a finding of affiliation under 13 C.F.R. § 121.103(c)(2) may be rebutted by the existence of a quorum requirement; and (iv) held that, in calculating combined receipts, the Area Office was not required to exclude inter-affiliate transfers to which the challenged firm was not a party.

In Size Appeal of Government Contracting Resources, Inc., the OHA held that the Area Office had correctly determined that two firms were affiliated under the minority shareholder rule at 13 C.F.R. § 121.103(c)(2) where the protested firm was one of approximately 20 equal owners of the alleged affiliate.

In Size Appeal of OxyHeal Medical Systems, Inc., the OHA held that the Area Office had properly drawn an  adverse inference against the protested firm after the employee from whom the SBA had requested relevant information failed to respond. The OHA also sanctioned the intervenor's counsel (by striking all the intervenor's pleadings from the record and prohibiting its counsel from appearing before the OHA for one year) after he violated the protective order by distributing unredacted copies of pleadings (which included proprietary information concerning the protested firm) to the intervenor.

In Size Appeal of North Star Magnus Pacific Joint Venture, the OHA held that the Area Office had correctly considered members of a joint venture as affiliates because the term of the previous year's 8(a) mentor-protégé  agreement had expired, and the agreement had not yet been renewed.

In Size Appeal of Financial & Realty Services, LLC, the OHA held that the Area Office had correctly based its decision on revenues as reported in federal income tax returns submitted by the protested firm and had correctly determined size as of the date the protested firm submitted its self-certification with its priced offer.

In Size Appeal of W. Harris, Government Services Contractor, Inc., the OHA held that the Area Office had correctly found affiliation through identity of interest of two individuals based on two common investments, each of which was of substantial value.

In Size Appeal of Core Recoveries, LLC, the OHA held that the Area Office had correctly determined that, under the concept of economic dependence, a firm was affiliated with a company from which it derived more than 70% of its revenues via a multi-year subcontract.

      In Size Appeal of W&T Travel Services, LLC, the OHA reversed and remanded a case because (i) the Area Office's analysis of identity of interest between family members was flawed,  and (ii) the Area Office failed to consider whether two firms were affiliated based on "a longstanding inter-relationship or contractual dependence between the same joint venture partners . . . ." 13 C.F.R. § 121.103(h).

In Size Appeal of WISS Joint Venture, the OHA affirmed the Area Office's decision that a joint venture was other than small for purposes of a particular procurement because the 8(a) mentor-protégé agreement that would have authorized an exception to the normal affiliation rules for joint ventures had expired and had not been renewed as of the date the proposal for the procurement was submitted.

In Matter of eKCG, LLC, the OHA affirmed the SBA's finding that an existing 8(a) mentor-protégé agreement did not obviate the need for a firm competing for an SDVO set-aside to comply with SDVO program-specific requirements, particularly 13 C.F.R. § 125.15(b).

In Size Appeal of Newport Materials, LLC, the OHA affirmed the Area Office's decision that, in calculating the total receipts of a firm and the companies affiliated with it through common ownership, the receipts of one of those affiliates did not satisfy any of the three requirements for exclusion as inter-affiliate transfers.

In Size Appeal of CoSTAR Services, Inc., the OHA remanded the case to the Area Office because it had not adequately investigated the allegation that affiliation existed by virtue of common investments in entities that were not companies.

In Size Appeal of REO Solutions, LLC, the OHA found that the Area Office had incorrectly dismissed a size protest relating to a firm's small business status pursuant to a mentor-protégé joint-venture agreement because, even though the agreement already had been determined to be appropriate in a prior protest involving the same parties and the same procurement (but a different geographic area of award) under a multiple-award solicitation that involved separate contact awards for each geographical area, a separate analysis should have been undertaken for this award because certain requirements for an acceptable agreement could vary from one area to the next.

In Size Appeals of Insight Environmental Pacific, LLC, the OHA held that the Area Office correctly concluded from an Operating Agreement that an LLC was a joint venture and that, therefore, its members were affiliated for purposes of the procurement at issue.

In Size Appeals of GTA Containers, Inc. and MPC Containment Systems, LLC, the  OHA found that the Area Office had failed to consider several issues and, therefore, remanded the case to the Area Office to determine whether: (i) the challenged firm was the manufacturer of the contract items or qualified under the nonmanufacturer rule; (ii) the challenged firm was affiliated with another firm as alleged by the protesters; and (iii) there was an identity of interest among the largest stockholders of a firm such that their interests should be aggregated.

In Size Appeal of Tenax Aerospace, LLC, the OHA remanded the case to the Area Office for a determination as to whether new SBA Size Policy Statement No. 3 requires a different analysis of interaffiliate transactions.

In Size Appeal of Quadrant Training Solutions, LLC, the OHA reversed the Area Office's decision because the evidence in the record did not support the Area Office's conclusion that the protested firm's mentor-protégé agreement had been approved and renewed during its annual review. Therefore, the protested firm was considered to be affiliated with its joint venture partners.

In Size Appeal of Human Learning Systems, LLC, the OHA reversed the Area Office because the founder of the protested firm was not an officer, director, or key employee of the allegedly affiliated firm; therefore, there was no affiliation under the newly organized concern rule.

In Size Appeal of BryMak & Assocs., the SBA's OHA held that the Area Office had erred in finding affiliation based on familial identity of interest between a stepmother and her stepchild despite clear evidence presented by the appellant that the two were not close (in fact, were estranged) and had no significant ongoing ownership or business interests in one another's firms.

In Size Appeal of Veterans Technology, LLC, the OHA upheld the Area Office's finding of affiliation through economic dependence because the challenged firm had derived more than 70% of its revenues from a large business for each of the past three years.

In Size Appeals of ProActive Technologies, Inc. and CymSTAR Services, LLC, the SBA's OHA remanded the case to the Area Office to analyze whether, under a solicitation for manufactured items set aside for small businesses, the challenged firm qualified as the manufacturer when considering the three factors listed at 13 C.F.R. 121.406(b)(2)(i).

In Size Appeal of Quigg Bros., Inc., the OHA held that the Area Office had correctly determined that the appellant had failed to rebut the presumption of affiliation through identity of interest among brothers.

In Size Appeal of Sage Acquisitions, LLC, the OHA held that the Area Office (although it had made other errors) had correctly determined that the 8(a) member of a purported mentor-protégé joint venture did not satisfy the regulatory requirement that it perform more than merely administrative and ministerial functions.

In Size Appeal of MDW Assocs., the OHA upheld the Area Office's finding of affiliation through economic dependence less than two months after the date on which a previous size determination had found such affiliation because the affected firm had not shown any change in circumstances that would warrant a different conclusion.

In Size Appeal of Encore Analytics, LLC, the OHA affirmed the Area Office's dismissal of a protest because the procuring agency was not required to, and did not, revise a solicitation to reflect the requirements of a newly-amended regulation on which the protester's arguments relied. The regulation at issue is at 13 C.F.R. § 121.201 n.20 and SBA's accompanying commentary in the Federal Register and states that a procurement of non-customized software under NAICS code 511210 should be treated as a supply procurement, subject to the nonmanufacturer rule.

In Size Appeal of Emergency Pest Control, Inc., the OHA affirmed the Area Office's finding that the protested firms were not affiliated as a result of a franchise agreement and held that the Area Office was not required to examine other issues not raised in appellant's original size protest, which was not clearly worded.

In Size Appeal of Gregory Landscape Services, Inc., the SBA's OHA remanded a case to the Area Office because it had found affiliation through identity of interest based in part on findings it did not give the challenged firm a fair opportunity to rebut.

8(a) / SDVOSB / WOSB Status

In The Desa Group, Inc., the United States District Court for the District of Columbia held that, in terminating a company from the 8(a) program, the SBA concluded, without sufficient supporting evidence in the record, that existing business relationships between the company and non-disadvantaged individuals caused such dependence that the company could not exercise independent business judgment without great economic risk pursuant to 13 C.F.R. § 124.106(g)(4). Basically, the court determined that the SBA and the OHA, in their prior decisions. were cavalier in their analysis and relied more on conjecture than on hard evidence.

In Matter of Jamaica Bearings Co., the OHA sustained an appeal against the SBA's determination that a firm was not an eligible SDVOSB because the original protest was nonspecific on that issue, and the SBA should not have considered it.

In Matter of Crystal Clear Technologies, Inc., the OHA held that the SBA had correctly found that the challenged firm met all the WOSB eligibility requirements despite the fact that certain of its SAM representations and certifications were inaccurately filled in.

NAICS

In NAICS Appeal of The Tolliver Group, Inc.,, which involved a procurement for programmatic support services, the OHA overturned the Contracting Officer's selection of NAICS code 541330 (Engineering Services) under the Military and Aerospace Equipment and Military Weapons (MAE&MW) exception, in favor of NAICS code 541611 (Administrative Management and General Management Consulting Services), which covers procurements for administrative and management services and contracts for advice and consulting services.

In NAICS Appeal of DCS Corp., the OHA upheld the Contracting Officer's selection of the exception for Space Vehicles and Guided Missiles, their Propulsion Units, their Propulsion Units Parts, and their Auxiliary Equipment and Parts (the SVGM exception) under NAICS code 541712 (Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology)) in a procurement for  SEEK EAGLE Modeling, Analysis, and Tools Support 2 (SEMATS 2).

In NAICS Appeal of Fortis Networks, Inc., the SBA's OHA upheld the Contracting Officer's assignment of NAICS code 238990 (All Other Specialty Contractors) the protester's proposal of NAICS code 236220 (Commercial and Institutional Building Construction) in a contract to provide "specialty trade construction services with minimal design requirements for new minor construction, facility repair, rehabilitation, and alterations for a broad range of renovation and construction work.

In NAICS Appeal of Active Deployment Systems, Inc., the OHA overturned the Contracting Officer's NAICS designation but also rejected both of the protester's suggestions in favor of NAICS code 532490 (Other Commercial and Industrial Machinery and Equipment Rental and Leasing) in a solicitation for Rotational Life Support Services.

In NAICS Appeal of Arrowhead Contracting, Inc., the OHA upheld the Contracting Officer's assignment of NAICS code 238990 (All Other Specialty Contractors) in a solicitation for Design-Build and Design-Bid-Build Repair and Alterations services at Land Ports of Entry, as opposed to the protester's suggestion of NAICS code 236220 (Commercial and Institutional Building Construction).

In NAICS Appeal of Noble Supply & Logistics, the OHA held that the Contracting Officer had improperly assigned a Retail Trade sector NAICS code to a solicitation for supplies, instead of the required manufacturing or supply NAICS code.

In NAICS Appeal of Dentrust Optimized Care Solutions, the OHA held that the Contracting Officer had properly assigned NAICS Code 621210 (Offices of Dentists) to a solicitation for commercial dental services consisting of dental examinations and dental treatments.

In NAICS Appeal of Hendall, Inc., the SBA's OHA held that, in a solicitation for support for HHS' Public Engagement Platform (PEP) project, the Contracting Officer's selection of NAICS Code 511199 (All Other Publishers) was incorrect, and NAICS Code 561422 (Telemarketing Bureaus and Other Contact Centers) should have been selected.

In NAICS Appeal of Milani Construction, LLC, the OHA held that the Contracting Officer reasonably selected NAICS Code 238910 (Site Preparation Contractors) for a solicitation for road and infrastructure improvement around the National Museum.

In NAICS Appeal of LJR Solutions, LLC, the SBA's OHA held that, in a solicitation for on-site animal husbandry support services in the FDA's Animal Care and Use Program, the Contracting Officer reasonably selected NAICS code 541711 (Research and Development in Biotechnology) rather than NAICS code 561210 (Facilities Support Services) as advocated by the appellant. The OHA reached essentially the same conclusion based on similar reasoning in another NAICS appeal by the same firm, LJR Solutions.


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