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2017 Procurement Review: Protests
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The GAO published 42 decisions sustaining protests on the merits (some of which were originally dated in 2016 but not issued to the public as redacted versions until this year).
Walker Development & Trading Group, Inc., won its protest because, despite having been given numerous opportunities to do so, the procuring agency failed to provide a consistent, rational explanation for canceling a solicitation and extending the incumbent's contract.
In Pitney Bowes, Inc., a successful protest, the GAO found that the agency's specifications were unduly restrictive of competition because the agency failed to establish that they were required to meet its needs. Similarly, the GAO sustained a protest by Global SuperTanker Services, LLC, after concluding that the agency's numerous rationales for a restrictive specification were unsupported in the record and, therefore, were unduly restrictive of competition.
Flawed Evaluation / Lack of Meaningful Discussions
Harmonia Holdings Group, LLC, won its protest because nothing in the record showed the agency had conducted a required best-value tradeoff analysis between the awardee's higher-priced, higher technically-rated proposal and protester's lower-priced, lower technically-rated proposal.
In CSR, Inc., the GAO sustained the protest because: (i) the agency engaged in disparate treatment of offerors in its past performance evaluation by limiting its review of the protester's CPARs to projects specifically identified in its proposal, without imposing such a restriction on the review of the awardee's CPARs; and (ii) the best-value tradeoff analysis offered no explanation for finding the awardee's corporate experience superior to that of the protester when the two firms had been rated equally in this area by the evaluators. Similarly, the GAO sustained a protest by Tribalco, LLC, because the agency had engaged in disparate treatment of offerors by overlooking the same type of flaws and omissions in the awardee's Integrated Master Schedule for which agency had downgraded the protester's proposal.
The GAO sustained a protest by XPO Logistics Worldwide Government Services, LLC because the solicitation required an assessment of the magnitude of the offerors’ past efforts relative to the solicited requirement, but the record failed to show how the awardee’s comparatively low-value past efforts reasonably could have been assessed as somewhat relevant.
In General Revenue Corp., et al., a decision involving consolidated protests by 15 protesters that defies a brief summary, the GAO (i) held that the agency's evaluation failed to comply with solicitation's evaluation scheme in multiple areas and lacked rational bases, but (ii) sustained the protests only of those protesters who demonstrated prejudice from the evaluation errors.
Walden Security won its protest because the procuring agency violated the terms of the solicitation by failing to permit the offeror to address adverse past performance information to which it was not previously allowed to respond.
The GAO sustained a protest by Verdi Consulting, Inc., holding that: (i) the protester was an interested party because it showed a "reasonable possibility" of prejudice by successfully challenging the Past Performance, Price, and tradeoff evaluations, even where several technical proposals were rated higher; (ii) the agency waived its right to object at the GAO to the fact that the protester failed to submit a revised price proposal because the agency evaluated the protester's final proposal (and that of another offeror) without objection; (iii) the agency improperly downgraded the protester's Past Performance proposal based on an unstated evaluation factor, and the agency's Past Performance evaluation was insufficiently documented; (iv) nothing in the record indicated the agency evaluated option year pricing, as was required by the solicitation; and (v) the agency's best-value tradeoff analysis was inadequately documented and showed the agency failed to take into account option year pricing.
The GAO sustained a protest by A-P-T Research, Inc. because: (a) in a situation where the non-incumbent awardee had proposed a high retention rate for incumbent employees and the agency had determined that the awardee’s proposed professional compensation was at the low end of the experience and compensation scales used for evaluation, the contemporaneous record lacked a reasoned basis for finding the awardee’s professional compensation or proposed costs to be acceptable or realistic; and (b) there was no indication in the contemporaneous record that, during the evaluation process, the agency (i) had assessed a potential impaired objectivity OCI posed by the awardee’s major subcontractor or (ii) had found the awardee’s proposed mitigation plan to be sufficient.
The GAO sustained portions of consolidated protests by Mevacon NASCO JV; Encanto Facility Services, LLC, because: (i) the agency failed to conduct meaningful discussions with one protester by neglecting to alert it to weaknesses in its technical proposal that the agency evaluated as creating a high risk of unsuccessful performance; and (ii) the award decision failed to explain why the agency selected the higher-rated, but also higher-priced, proposal for award.
The GAO sustained a protest by Knight Point Systems, LLC because, in a solicitation for quotations under an FSS contract, the agency did not reasonably consider whether the services offered by the protester through its subcontractors were within the scope of the protester's GSA schedule contract, but, instead, considered only whether the cloud systems offered by the protester were listed by brand name on the protester's GSA schedule contract, which was not a requirement of the solicitation.
The GAO sustained parts of a protest by TOTE Services, Inc., because the agency: (i) failed to adequately document its evaluation of past technical performance; (ii) credited offerors for relevant performance without considering its quality; and (iii) credited offerors for positive performance without considering its relevance.
The GAO sustained a protest by AdvanceMed Corp. because, in its cost realism evaluation, the agency failed to recognize and reasonably assess two aspects of the likely costs stemming from the awardee’s proposed technical approach.
The GAO sustained protests by Next Tier Concepts, Inc.; MAXIMUS Federal Services, Inc. due to a flawed price realism evaluation because the price evaluators' conclusion (that the awardee's prices were so low as to indicate a lack of understanding of the technical requirements) was not communicated to the technical evaluators or considered in the final source selection decision.
The GAO sustained a protest by Red River Computer Co., finding an unequal price evaluation where the agency's price evaluators permitted one awardee to propose on a basis forbidden by the solicitation and denied to other offerors.
The GAO sustained one of the protest grounds in SITEC Consulting, LLC, et al. because the agency's evaluators deviated from the evaluation scheme for Past Performance by improperly assigning a "confidence" rather than a "neutral" rating to several offerors who lacked relevant performance.
Pinnacle Solutions, Inc. won its protest because the record: (i) did not support the evaluators' assignment of weaknesses to various aspects of the protester’s proposal; (ii) reflected the evaluators' disregard of portions of that proposal; and (iii) indicated the agency had used unstated evaluation criteria.
The GAO sustained a portion of a protest filed by Global Aerospace Corp. because, in a NASA solicitation under an SBIR program, the contemporaneous record did not include any analysis of the protester's proposal at the SMD recommendation phase, and the subsequent analysis prepared by the agency to respond to the protest lacked a rational basis.
The GAO sustained a protest by SURVICE Engineering Co., LLC because: (i) the agency failed to evaluate the awardee's professional compensation plan in accordance with FAR 52.222-46(b), i.e., the agency did not reasonably compare the awardee's salaries to incumbent salaries, a necessary step to determine whether the proposed salaries were lower than incumbent salaries; and (ii) the agency evaluated proposals on unequal bases, utilizing unstated evaluation criteria.
YWCA of Greater Los Angeles won its protest because the agency engaged in unequal discussions by permitting the awardee to amend its proposal, after final proposal revisions had been submitted, in order to substitute a new key person, without reopening discussions with other offerors.
David Jones CPA PC won its protest because, in a solicitation to establish multiple BPAs, the agency improperly excluded the protester's proposal from further consideration solely on the basis of a single line-item price the agency considered too high, without considering whether that would result in the agency paying an unreasonably high price for the performance of a typical order under a BPA.
Global Language Center won its protest because the procuring agency: (i) allowed only the eventual awardee to submit material changes to its proposal after final proposal revisions were due; (ii) failed to adequately document its past performance evaluation; and (iii) credited the awardee for past performance without considering its relevance and failed to credit the protester for its clearly relevant past performance as the incumbent.
The Arcanum Group, Inc., won its protest because the record did not contain an adequate explanation of the SSA's decision to override the SSEB's conclusion that the awardee had not submitted sufficiently similar projects for the past performance evaluation.
The GAO sustained a protest by McCann-Erickson USA, Inc., because the agency had eliminated the protester's proposal from the competition for failure to comply with certain proposal preparation instructions without evaluating the proposal fully in accordance with the solicitation's stated evaluation criteria.
The GAO sustained a protest by CR/ZWS LLC because the awardee's proposal failed to comply with a material requirement of the solicitation.
The GAO sustained a protest by AT&T Corp. because: (i) the discussions were misleading and unequal where the agency only advised the awardee of a proposal concern that agency also had with protester's proposal; (ii) the agency failed to adequately document aspects of the technical evaluation; and (iii) the SSA's source selection decision relied in significant part on issues not documented in the record.
The GAO sustained a protest by Fluor Federal Solutions, LLC because (after prior corrective actions) the agency evaluated proposals disparately under the staffing and resources factor, criticizing the protester's proposed approach as possibly involving a risk that it would not be able to recruit the incumbent workforce, while at the same time failing to meaningfully consider whether the awardee's proposed approach of repeatedly replacing its exempt employee workforce over the life of the contract posed a significant risk.
The GAO sustained a protest by Protection Strategies, Inc. because the agency did not have reasonable bases for: (i) evaluating the awardee's proposed personnel as a strength; and (ii) concluding that the differences between the competitors' proposals in non-price factors were negligible.
Language Select, LLP, dba United Language Group won its protest because: (i) the agency held unfair discussions by asking only the awardee about the role of its affiliated company in providing services; (ii) the agency lacked a reasonable basis for attributing its affiliate's corporate experience to the awardee; and (iii) the agency unreasonably minimized the significance for the awardee's proposal of a prior termination for cause of a similar contract.
AdvanceMed Corp. won its protest because: (i) the agency deviated from both FAR requirements and the express terms of the solicitation by failing to give meaningful consideration to an impaired objectivity OCI implicated by contracts held by the awardee's parent company; and (ii) the agency's determination that the awardee's proposal was acceptable under the "508 compliance" evaluation factor was unreasonable where the compliance officer had found that the awardee's system required remediation in order to be compliant and no such remediation had occurred.
The GAO sustained a protest by ENSCO, Inc.; PAE National Security Solutions, LLC because: (i) the agency's evaluation of the awardee's proposal was not in accordance with the solicitation's evaluation criteria; (ii) the agency's cost realism analysis of the awardee's proposal was not adequately documented; (iii) the agency's assignment of significant weaknesses to a protester's proposal was not in accordance with the stated evaluation criteria; and (iv) the agency improperly allowed the awardee to exceed the page limitation for resumes.
The GAO sustained a protest by L3 Unidyne, Inc. because: (i) the agency failed to evaluate whether the awardee's requirement that certain newly-hired key employees sign binding arbitration agreements violated a statutory prohibition against such agreements; (ii) the agency unreasonably assigned a deficiency to the protester's proposal related to its Government Property Manager for working outside the commuting area identified by the solicitation and for the protester's failure to describe his duties fully because the GAO agreed that he was a non-key employee performing what the DCMA recognized as a centralized function at the firm's office for more than just the contract at issue and any informational deficiency in describing his duties fully did not rise to the level of a material deficiency; and (iii) the agency failed to evaluate the significant differences in the offerors' proposed staffing levels for various tasks.
Immersion Consulting, LLC won its protest because the administrative record lacked a reasonable explanation for the SSA's decision to deviate from the SSEB's assessment of strengths and weaknesses in the competing proposals.
Bluewater
Management Group, LLC, won its protest because the task
order issued to the awardee pursuant to an FSS RFQ was for
services not included in that firm's underlying FSS contract.
Responsiveness, Late Bids, Expired Bids
The GAO sustained a protest by Innovation Assocs., Inc. because the awardee's proposed system failed to comply with two material requirements of the solicitation.
Sole Source/Small Business/Restricted Competitions
Threat Management Group, LLC won its protest because the limited information made available by the agency supported the protester's contention that the agency had issued an out-of-scope task order rather than competing the requirement.
Competitive Range Solutions, LLC, won its protest because the agency’s exclusion of the company's proposal from the competition based on its failure to have sufficient capabilities in health-related missions amounted to a nonresponsibility determination that should have been referred to the SBA under its COC procedures.
The GAO sustained a protest by Goodwill Industries of the Valleys; SourceAmerica because the procuring agency violated the Javits-Wagner-O’Day Act and its implementation under the AbilityOne program by failing to acquire custodial services for the leased premises from the mandatory source.
In KWR Construction, Inc.--Costs, the GAO recommended the protester be reimbursed its costs of pursuing a protest ground raised in response to the agency report because: (i) the protest was clearly meritorious even though the GAO required further development of the record to demonstrate that the agency's response to the protest was not meritorious; and (ii) the agency unduly delayed taking corrective action when it put the protester to the further expense of replying to the agency's response to the protester's meritorious protest ground.
Conflict of Interest/Unfair Competitive Advantage
Dell Services Federal Government, Inc. won its protest because: (i) the agency's Procurement Integrity Act determination that the disclosure of the protester's proposals had not adversely the competition was not reasonable; and (ii) the agency did not adequately investigate or address possible OCIs of the protester's competitor.
AdvanceMed Corp. won its protest because: (i) the agency deviated from both FAR requirements and the express terms of the solicitation by failing to give meaningful consideration to an impaired objectivity OCI implicated by contracts held by the awardee's parent company; and (ii) the agency's determination that the awardee's proposal was acceptable under the "508 compliance" evaluation factor was unreasonable where the compliance officer had found that the awardee's system required remediation in order to be compliant and no such remediation had occurred.
Timeliness/Standing/Jurisdiction/Automatic Stay
In Munilla Construction Management, LLC, the court denied the protester's request for a TRO because: (i) it might lack standing since it was not next-in-line for award; and (ii) it did not show irreparable harm because, inter alia, the court had established an aggressive schedule for full consideration of its protest.
In York Telecom Corp., an unsuccessful post-award protest, the court held that a protest of the agency's determination that the plaintiff was not an eligible small business under the solicitation's size standard was untimely because the protest had not been raised until after the notice of award in a situation where the questions and answers issued during the solicitation process had created a patent ambiguity as to the applicable size standard for the competition (and, indeed, the solicitation was poorly drafted, imposing a size standard with a 150 employee limit and, in the same breath, specifying the nonmanufacturer rule, which has a 500-employee limit for nonmanufacturers).
In Systems Dynamics International, Inc., an unsuccessful protest against elimination from the competitive range, the court held that: (i) the protester had waived its rights to object to patent omissions in the solicitation of (a) data required to comply with a solicitation requirement and (b) historical staffing mix and levels, because it had not protested prior to the submission of proposals (even though it had suggested the latter data be added to the solicitation); and (ii) the Government's price evaluation had a reasonable basis.
In Ecosystem Investment Partners, the court dismissed a protest because: (i) the plaintiff neither submitted a bid nor timely protested the issuance of a solicitation, and, thus, lacked standing; (ii) the letter the plaintiff sent providing comments on the proposed solicitation did not fulfill the requirements for an agency-level protest; and (iii) the Government's decision that ultimately led to the solicitation was not a procurement decision and, thus, was not within the court's protest jurisdiction.
In Global Dynamics, LLC, an unsuccessful post-award protest, the court held that, where the agency's discussion questions created a patent ambiguity as to whether the agency was conducting a price realism analysis, the protester had a duty to inquire about their meaning and, not having done so, could not later complain about the effect of its decision to raise its prices based upon its (mistaken) assumptions about the agency's intentions.
In The Concourse Group, LLC, an unsuccessful post-award protest, the court held that the plaintiff had waived its OCI objections because it had not raised them prior to the close of the bidding process even though they were based on facts that were easily recognizable or obvious before that time.
In Continental Services Group, Inc.,, after the Government declined to commit to continuing a previous stay triggered by a prior GAO protest and the protester alleged the Government was diverting work to other contractors to circumvent the protest, the court issued a TRO, even though the record was not sufficiently developed yet for the court to determine the protester's likelihood of success on the merits, because the other three factors the court weighs in deciding such motions favored the protester.
In Continental Service Group, Inc., the court discussed in detail the tests for determining whether (and when) actions are moot and then denied the Government's motion to dismiss the protesters' actions as moot because the Government's corrective action in response to prior protests was not complete and the plaintiffs might suffer additional harm in the interim.
In i3 Cable & Harness LLC, an unsuccessful post-award protest, the court held that: (i) the protester had waived its challenges to (a) the agency's use of undisclosed quantities to re-evaluate price and (b) a patent ambiguity in the solicitation regarding the required place of manufacture, because the protester had failed to object to these issues prior to submitting its offer; (ii) the quantities used by the agency to re-evaluate prices after corrective action had a rational basis; and (iii) the protester had not submitted any evidence to support its OCI allegations or its allegations of bad faith.
In QTC Medical Services, Inc., an unsuccessful post-award protest, the court held, inter alia, that (a) under the Blue & Gold Fleet test, the protester had waived its objections to (i) the calculation of the price benchmark, (ii) allegedly misleading discussions about price, and (iii) the methodology used by the agency for calculating price reasonableness, because all of these grounds for protest were apparent, but not protested, prior to the submission of final proposal revisions; (b) there were no unmitigated OCIs on the part of the awardees; and (c) the agency's tradeoff analysis had a rational basis.
In Cotton & Co., LLP, an unsuccessful protest, the court held that, after (a) the agency had terminated the plaintiff's contract for convenience and issued a new solicitation (because the agency's requirements had changed during delays associated with a prior GAO protest) and (b) the plaintiff had failed to bid on that new solicitation, the court lacked jurisdiction over: (i) the plaintiff's "protest" against the convenience termination because that was a matter of contract administration, and no CDA claim had been filed; and (ii) the plaintiff's protest of the new solicitation because the plaintiff had failed to bid on it and, therefore, lacked standing to protest.
In Remote Diagnostic Technologies, LLC, the court granted the Government's motion to dismiss a protest on the basis that the plaintiff lacked standing because it did not meet the solicitation's minimum requirements, which it had not shown were unduly restrictive. The protester had wanted that issue to await a decision on the merits and, therefore, had not argued it extensively in response to the Government's motion, so the court's decision is partly the result of the protester's litigation strategy.
The basic holding by the court in Sonoran Technology and Professional Services, LLC, was that all of the protester's challenges to the agency's corrective action (as a result of which the agency canceled the contract award to the protester and awarded the contract to a competitor) were, for various (to me, unconvincing) reasons, untimely.
In Loomacres, Inc., the court denied the Government's motion to dismiss and held that a prospective bidder had standing to challenge the Government's decision to insource services, even though the plaintiff did not have a current contract to provide the insourced services. The court, all but inviting an appeal, recognized its decision might vary from two earlier court decisions on a similar issue and noted that the Federal Circuit had yet to rule on the precise question.
In CliniComp International, Inc., an unsuccessful preaward protest, the court held that the plaintiff lacked standing to complain of a sole source award because, although it had provided basic services to the agency in the past, it did not have any experience providing the large dollar value of comprehensive services at the large number of facilities required by the proposed contract and, therefore, could not have competed for the award. Subsequently, the court denied the plaintiff's motion for an injunction pending its appeal of an earlier decision that the company lacked standing to protest because it did not have the capabilities required to perform the contract at issue.
The court dismissed a protest by the State of Texas as premature because (i) being included in the competitive range did not automatically entitle the protester to an award, and the protester was still being considered and, thus, still had a chance to win.
In XPO Logistics Worldwide Government Services, LLC, an unsuccessful post-award protest largely based on the facts that the protester's original scores were lowered during a reevaluation undertaken without additional discussions as part of corrective action after a prior protest, the court held that: (i) the protester waived its right to complain that the agency should have conducted discussions during corrective action (as well as its related argument that, absent re-opened discussions, the prior discussions had been unequal and misleading) because it was on notice no discussions were contemplated but did not protest until after award; (ii) the agency's evaluation of the magnitude of the protester's past contracts was unobjectionable because the agency used the values protester, itself, provided as part of its proposal; (iii) the agency had a rational basis for its rating of the relevance of one past contract; (iv) under the explicit terms of the solicitation, the agency was permitted to consider corporate experience in its best value tradeoff decision; and (v) several other protest grounds already had been litigated and thus were precluded by the doctrine of res judicata.
In Straughan Environmental, Inc., the court agreed with the protester that the awardee was ineligible for award because it did not have the required annual written approval from the SBA extending its mentor-protégé agreement. While that holding will not have a significant precedential impact (because the SBA has since changed its rules so that annual written approvals of such agreements are not required), the case still includes two interesting holdings on standing issues, specifically that: (i) even though the plaintiff did not originally file a size protest within the SBA's time limit, it nevertheless had standing to sue because the Contracting Officer had requested a size determination, which eventually had came back in favor of the awardee (and, therefore, adverse to the protester's interests); and (ii) if the OHA erred in dismissing the protester's appeal to the OHA for lack of standing (because it was ineligible for award) the protester still had standing to sue because there was only one firm determined to be eligible for award, and, if that firm were actually ineligible, then the protester was adversely affected.
In Open Spirit, LLC, an unsuccessful preaward protest, the court held that legitimate environmental contamination concerns of which the Government became aware near end of a lease competition, not bad faith or bias, caused the Government to cancel the competition.
In Tetra Tech, Inc., an unsuccessful post-award protest, the court held that, "[w]hile it is a close question," a particular work assignment was within the scope of (i.e, "did not materially depart from") the Performance Work Statement of the underlying contract and, therefore, was not issued in violation of CICA.
In Cleveland Assets, LLC, an unsuccessful preaward protest, the court held, inter alia, that the rental rate cap in the Government's solicitation for lease proposals was not unreasonably low or unduly restrictive of competition, in part because the Government had received multiple offers in response to the solicitation and the rate cap was the maximum amount authorized by Congress.
In Strategic Business Solutions, Inc., an unsuccessful preaward protest, the court held that the procuring agency did not err in rejecting a proposal for failure to comply with a mandatory solicitation requirement to provide a redacted copy of its proposal because the failure was not a minor informality or irregularity that could be waived.
In Parcel 49C Limited Partnership, another unsuccessful preaward protest, the court held that: (i) the procuring agency had twice investigated allegations of an organizational conflict of interest involving the protester's competitor and had properly found that any conflict, even if it existed, had been mitigated; (ii) the challenged firm had committed to meet the solicitation's single-owner requirement if awarded the contract, which was all the solicitation required of it; and (iii) the solicitation's requirements were necessary to meet the agency's minimum needs and, therefore, were not unduly restrictive of competition.
In IT Shows, Inc., an unsuccessful post-award protest, the court held that: (i) the awardee's plan to dedicate a project management office and its staff exclusively to the contract and to bill them as direct rather than overhead costs did not violate the solicitation's requirements or the FAR; (ii) the procuring agency was not required to inform the protester during discussions that it could do the same because its billing of these items as overhead costs was not a deficiency in its proposal; and (iii) the protester waived its right to the protest agency's intention to use ceiling rates in its cost realism analysis because that intention was clearly stated in the solicitation and, therefore, should have been protested before the close of the bidding process.
In Limco Airepair, Inc., an unsuccessful post-award protest, the court held that: (i) the Government conducted an adequate price realism analysis simply by comparing the prices of the only two offers received in response to the solicitation; and (ii) the protester failed to establish prejudice from the Government's ex parte communication with the awardee. On the other hand, in Active Network, LLC, a successful post-award protest, the court remanded the case to the procuring agency to conduct a price realism analysis because there was scant, if any, evidence in the administrative record that the agency had evaluated price realism in accordance with the clear requirements of the solicitation.
In Munilla Construction Management, LLC, another unsuccessful protest, the court held that: (i) comparing the prices of four offerors satisfied the requirement to evaluate price reasonableness, without any obligation to determine whether an offered price was too low; and (ii) the Government appropriately examined individual CLIN pricing to determine whether unbalanced pricing had occurred.
In Mercom, Inc., an unsuccessful post-award protest, the court held that there was a rational basis for the agency's assignment of an "Unacceptable" rating to one aspect of the protester's technical proposal, reasoning as follows: "[The protester] failed to submit satisfactory evidence of qualifying experience related to sub-factor B2. Mercom’s proposal does not describe its work under the contracts it cited in sufficient detail to enable the agency to reasonably conclude that Mercom performed all of the work stated and had the requisite depth and breadth of experience to be awarded the contract. The contract references provided by Mercom frame the company’s work pursuant to sub-factor B2 hypothetically, i.e., in terms of work that Mercom could perform rather than work it actually did perform."
In Rivada Mercury, LLC, an unsuccessful challenge to the protester's elimination from the competitive range, the court held that: (i) extensive communications and exchanges between the Government and the offerors prior to establishing the competitive range were specifically contemplated by the solicitation's selection plan for this complex procurement and did not constitute discussions because offerors were neither requested nor permitted to revise their proposals prior to establishment of the competitive range; and (ii) the protester's quarrels with numerous aspects of the agency's technical evaluation all lacked merit.
In Greenland Contractors I/S, an unsuccessful post-award protest, after the CAFC had vacated the CoFC's earlier decision, the CoFC decided two issues that had not been addressed in the prior litigation and held that: (i) the procuring agency had not conducted misleading discussions with the protester by failing to advise it of each individual CLIN price that was significantly higher than its competitors' prices because the solicitation required the agency only to evaluate the total price and the prices for two specific CLINs; and (ii) the solicitation language advising offerors to "show justification for unique practices that significantly lower pricing" did not require offerors to show justification for all lower prices but only for unique practices that lowered prices significantly.
In By Light Professional IT Services, Inc., an unsuccessful post-award protest, the court held that: (i) the protest of a solicitation requirement not raised before the submission of final offers was untimely, especially where the agency had specifically warned the offeror of the requirement during discussions prior to the submission of final offers; (ii) the agency reasonably assigned a deficiency to the protester's proposal for failing to provide a required task order number for one of the contracts it was submitting to satisfy the Experience sub-factor; (iii) there no prejudice to the protester from the agency's decision to raise a competitor's score under the Past Performance factor because the agency did the same with the protester; and (iv) the procuring agency's trade-off analysis (which recognized that one offer had more strengths in the Technical Capability factor despite the fact that both offers received the same overall rating) had a rational basis.
In Enhanced Veterans Solutions, Inc., an unsuccessful post-award protest, the court held that: (i) there was a rational basis for the agency's assignment of a Marginal rating to the protester's proposed staffing reductions under the Operational Approach subfactor in the Technical evaluation, and the protester's counter-arguments relied on an unreasonable interpretation of the solicitation documents; (ii) the agency's methodology of assigning a Marginal rating to the Technical factor as a whole if an offeror received a Marginal rating in any one of the equally-weighted subfactors was not objectionable; and (iii) the agency's decision not to include the protester's low-priced proposal in the best value tradeoff analysis was not objectionable in the circumstances of this procurement, especially when the SSA's decision clearly explained why the proposal would not have been successful even if it had been included.
In The Concourse Group, LLC, an unsuccessful post-award protest, the court held that: (i) the technical evaluation did not employ any unstated evaluation criteria regarding relevant experience; and (ii) the agency's discussions with the protester were meaningful and fair.
In Vintage Autoworks, Inc., an unsuccessful post-award protest, the court rejected the protester's objections to the agency's responsibility determination concerning the awardee because the requirements the protester alleged the awardee failed to meet were contract requirements, and, thus, were matters of contract administration, not solicitation requirements.
In IT Enterprise Solutions JV, LLC, an unsuccessful post-award protest, the court held that: (i) under a standard dictionary definition of the word "count," the Government had complied with the terms of the solicitation by giving the protester's joint venture as a whole credit for the relevant experience of its minority member, but was not required to give that experience the same weight as that of the majority member who would be performing more of the required effort; (ii) under the standard dictionary definition of the verb "address," the Government had correctly evaluated the relevancy of the past performance of a proposed subcontractor, especially where the protester offered no alternative definition for the term, and, in any event, the protester was not prejudiced by any errors in this aspect of the evaluation; (iv) the Government followed the solicitation's requirements in evaluating the "recency" of a proposed subcontractor's past performance; and (v) in its tradeoff analysis, the agency could distinguish between offerors that had the same general adjectival rating. Concerning the "recency" issue, the court held that the agency correctly determined one proposed subcontractor failed to meet the criteria for recency because its ongoing contract had been ongoing one week short of the six months required by the solicitation, even where that work was a continuation of work that had been ongoing for several prior years, because the protester had not identified that prior work as part of its proposal submission.
In Iron Bow Technologies, LLC, an unsuccessful post-award protest, the court denied the protester's request for a TRO and preliminary injunction because, inter alia, the protester was not likely to succeed on the merits of its challenges to the technical and price evaluations due to the protester's failures: (i) to adequately explain the changes to the labor hour in its revised technical proposal (the discussions concerning which were neither incomplete nor misleading); and (ii) to provide sufficient information on the relationship of the figures in its price proposal to the revised technical proposal to the allow the agency to assess price reasonableness. Subsequently, in a later decision in the same case, the court held that, in the context of clear solicitation requirements to provide details justifying an offeror's proposed approach, the agency's discussions with the protester were adequate and had not been misleading, and the protester was not reasonable in assuming it could simply add hours to its proposal to respond to a weakness identified by the agency during discussions without explaining how those added hours related to its technical approach.
In SupplyCore Inc., an unsuccessful post-award protest, the court held that: (i) the agency had not used unstated evaluation criteria in the past performance evaluation because the solicitation specifically alerted offerors that past performance in the areas of the current technical evaluation would be examined; (ii) the agency's discussions with the protester were adequate; and (iii) the agency's past performance ratings of the awardee had a rational basis.
In Board of Regents of the Nevada System of Higher Education on behalf of The Desert Research Institute, an unsuccessful post-award protest, the Court of Federal Claims held, inter alia, that: (i) the court had no basis to conclude that the agency should have assigned deficiencies rather than weaknesses to the awardee's proposal; (ii) where the solicitation was to be conducted without discussions, a broken link to its cost data in the protester's proposal, which made it impossible for the agency's evaluators to access data that would allow them to determine the realism and reasonableness of the protester's proposed costs, was not minor clerical error, did not require the agency to seek clarification, and did not prejudice the protester because, even after finding the protester's proposal unacceptable, the agency still explained why the awardee's proposal was a better value due to its technical superiority; and (iii) under the Blue & Gold Fleet standard, the protester's post-award challenges to the agency's failure to provide certain information to prospective offerors was untimely.
In The Informatics Applications Group, Inc., an unsuccessful preaward protest, the court held that the Government had reasonably excluded a quotation sent to the eBUY portal rather than by email to the point of contact designated in the RFQ's instructions.
In UnitedHealth Military & Veterans Services, LLC, an unsuccessful post-award protest, the court held that, read in the context of the solicitation as a whole, the following provision did not require the Government to conduct a price realism evaluation: "M.2.2. Unrealistic Proposals. The Government may reject any proposal that is evaluated to be unrealistic in terms of program commitments, contract terms and conditions such that the proposal is deemed to reflect an inherent lack of competence or failure to comprehend the complexity and risks of the program."
In A Squared Joint Venture, another unsuccessful protest, the court held that there was a rational basis for the agency's decision to eliminate a firm from a competition due to a potential OCI arising from its use of individuals with access to sensitive information to prepare its proposal for a follow-on contract.
In Mail Transportation, Inc., et al., a group of unsuccessful protests by holders of Postal Service delivery contracts, the court held that the Postal Service performed an adequate analysis, as required by 39 U.S.C. § 5005(c), in selecting routes to be converted from Highway Contract Route (HCR) contracts to Postal Vehicle Service (PVS) routes.
In Treadwell Corp., an unsuccessful post-award protest, the court held, inter alia, that: (i) the protester had not established it would be irreparably harmed absent a stay of performance, in part because it waited until eight months after contract award to file suit; (ii) there was no merit to the protester's allegation that the awardee's proposal should have been rejected as nonresponsive simply because the awardee's proposal did not show the awardee could meet the strictest delivery schedule the Government might have imposed on the contractor, especially where the record showed the awardee committed to the solicitation's delivery schedule; (iii) the fact that the awardee did not propose as aggressive a delivery schedule as the protester had did not mean that the Government treated offerors unequally in the evaluation; and (iv) a post-award modification of the delivery schedule was not a cardinal change.
In Geiler/Schrudde & Zimmerman, A Joint Venture, an unsuccessful post-award protest, the court held that: (i) the death of the SDVOSB protester's owner after the award of a contested contract did not deprive the protester of standing to pursue its original Complaint against the award because standing is determined as of the time of award; (ii) however, the court lacked protest jurisdiction over the protester's Supplemental Complaint challenging the post-award revocation of its SDVOSB status as a result of its owner's death; (iii) as to the original Complaint, the protester's challenges to the agency's determinations that the awardee's past projects met the solicitation's experience and past performance requirements were unavailing because such determinations are generally within the agency's discretion; and (iv) the agency's price evaluation techniques complied with the FAR and with the solicitation's requirements, and the agency was not required to credit the protester for an alternate bid suggesting a reduction in price might be possible if certain contingencies occurred.
In Harkcon, Inc., an unsuccessful post-award protest, the court held, inter alia, that: (i) the facts that (a) the awardee's proposed price was close to the incumbent's and (ii) a Government employee who had only a limited relationship with the solicitation was subsequently hired by the awardee, were not sufficient to create even the appearance of impropriety; (ii) the agency's assignment of a deficiency to the protester's staffing was reasonable because several proposed key employees did not meet the solicitation's mandatory educational requirements; and (iii) that staffing subfactor deficiency was sufficiently significant that it justified the agency's decision to "roll-up" the deficiency into the overall factor evaluation.
In Tender Years Learning Corp., an unsuccessful protest of the Government's alleged breach of the implied-in-fact contract to consider the protester's bid fairly, the court held, inter alia, that: (i) the protester had failed to timely submit evidence to the agency that the protester had the required board of directors; and (ii) the Government had a rational basis for its conclusion that a number of the protester's current staff lacked the required qualifications.
In Synergy Solutions, Inc., an unsuccessful post-award protest, the court rejected all of the disappointed incumbent bidder's objections to numerous aspects of the evaluation, including the evaluations of: (i) corporate experience; (ii) past performance; (iii) cost realism; (iv) direct labor rates; (v) indirect rates; (vi) staffing plans; and (vii) the offerors' demonstrated ability to comply with the technical requirements. In addition, the court held that: (i) the protester had waived its objections to agency's conduct of discussions because those objections were not raised before the implementation of corrective action in response to a prior protest of the procurement during which those discussions had been held; and (ii) the protester had not established it was prejudiced by any errors that might have occurred.
In T Square Logistics Services Corp., a successful preaward protest, the court held that, after (i) the protester contacted both the Contract Specialist and the Contracting Officer by email (prior to the due date) to inform them of a weather-related delay of FedEx's delivery of a hard copy of the proposal (as required by the solicitation), enclosing an email copy of the proposal, and (ii) the Contract Specialist replied by assuring the contractor that the late delivery of the hard copy would not be a problem because there was evidence the contractor had shipped it prior to the due date (in reliance upon which assurances the contractor then advised its local rep it was not necessary to print out and hand-deliver a hard copy of the proposal), the Government improperly rejected the FedEx hard copy as late under 52.212-1 without considering whether the late submission should be waived as a minor informality.
In FreeAlliance.com, LLC, an unsuccessful preaward protest, the court held there was a rational basis for the agency's decision to exclude the protester from further consideration for award because it failed to comply with a solicitation requirement to provide verification on letterhead that the offerors' accounting systems had been audited and determined adequate for determining costs applicable to the contract in accordance with FAR § 16.301–3(a)(1).
In Precision Asset Management Corp. a successful post-award protest, the court held that: (i) the Government's failure to notify the protester of issues that ultimately were treated as significant weaknesses in the final award decision (even though they had only resulted in a "neutral" rating) constituted a lack of meaningful discussions; and (ii) the Government's evaluation of the awardee's proposal (based on the evaluators' mistaken assumption that a certain company was either a joint venture partner or a mentor of the awardee) was irrational.
In Intelligent Waves, LLC, and Missionist Group, Inc., which involved consolidated, unsuccessful post-award protests, the court denied requests for a TRO and preliminary injunction and held that: (i) there was a rational basis for the agency's determination that one of the protesters had an OCI issue, which the protester failed to address adequately despite multiple notices of the problem and opportunities to correct it, and, in any event, there was no prejudice in this area because the awardee's proposal would still have had a higher evaluation even if the weaknesses the evaluators assigned for the OCI were removed; and (ii) various challenges to other aspects of the evaluation were not likely to succeed on the merits because the agency followed the evaluation criteria and there were rational bases in the record for its conclusions.
In Dyncorp International, LLC, a decision in which Judge Hodges repeatedly emphasizes the high burden of proof faced by protesters, the court: (i) rejected various challenges to the evaluation and (ii) held that, even though a former employee of the incumbent/protester had given the awardee's senior management sensitive, proprietary information belonging to the protester that could have benefited the eventual awardee in the bidding process, there was a rational basis for the Contracting Officer's conclusion, after investigation, that there was no evidence the awardee had used this information in the competition and, in fact, all the available evidence suggested the awardee had not done so.
In PDS Consultants, Inc., a successful preaward protest, the court held that the VA is required to perform a Rule of Two analysis for all future procurements, regardless whether they involve items on the AbilityOne list, i.e., that the requirements of the the Veterans Benefits Act of 2006 essentially trump those of the Javits-Wagner-O’Day Act.
In an interesting decision highly critical of what the court viewed as the SBA's nebulous and ambiguous regulations concerning affiliation, the court held in Veterans Technology, LLC and MDW Assocs., LLC, inter alia, that a prior decision by the SBA's OHA, which had affirmed the Area Office's finding that firms were affiliated through economic dependence and contractual relationships, was arbitrary and capricious because neither the OHA nor the Area Office had adequately investigated or provided an analysis of the circumstances that led to the contractual relationships between the firms.
In Veterans Contracting Group, Inc., a successful preaward protest, the court issued a preliminary injunction against the Government because the court (i) disagreed with an SBA Area Office's finding that a provision in the protester's shareholder agreement ("upon shareholder death, incompetency, or insolvency, all of his or her shares must be purchased by the corporation at the Certificate of Value price") ran afoul of the requirement that an SDVOSB must be "unconditionally" 51%-owned by a service disabled veteran; and, therefore, (ii) concluded that the SBA's finding should not have been used by the VA as the basis to remove the firm from the VA's VIP database of qualified SDVOSBs. In a later decision in the same case, the court held that: (i) it was irrational for the VA to remove the firm from the VA's qualified list based solely on an SBA determination of eligibility, without considering the differences in the VA's and SBA's definitions of unconditional ownership, but (ii) the agency had a rational basis for canceling a solicitation because the protester was not on the qualified list at the time and the only two qualified bids exceeded the IGE. Both these decisions involved VA SDVOSB set-asides. In still another Veterans Contracting Group decision (this one involving a non-VA SDVOSB set-aside), the court reluctantly affirmed an OHA decision that the plaintiff did not qualify as an SDVOSB because of a lack of unconditional ownership by the SDV (based on an earlier OHA precedent for interpreting "unconditional ownership," in light of the regulations' silence on the issue). What troubled the court was that the regulations for the 8(a) and WOSB programs do contain explanations of "unconditional ownership" that are less rigorous that the standard adopted by the OHA for the SBA's SDVOSB program.
In
Analytical Graphics, Inc., unsuccessful
post-award protest (post-award because it followed an
unsuccessful protest at the GAO, during the pendency of which the
agency had continued the competition), the Court of Federal
Claims held: (i) it could not find any clear direction in the controlling
statutes that either (a) the Rule of Two or (b) the commercial
availability analysis required of an agency must come first;
(ii) therefore, the court would not not
second-guess the agency's decision in this situation to conduct both analyses
essentially simultaneously after the completion of market research;
(iii) the agency properly concluded the Rule of Two requirement for
a small
business set-aside was met without having to consider the
potential offerors' capabilities
or price in the same detail as would be required in the actual
evaluation of proposals after the set-aside; and (iv) the
agency's market research was
sufficient to support the agency's determination that its requirement
as
a whole could not be satisfied with commercial items even though
certain individual elements could.
The court's decision is lengthy and highly fact-dependent, and one can
certainly understand from the serpentine
history of the procurement why the protester was frustrated with
agency's Rule of Two and commerciality determinations.
Corrective Action
In Progressive Industries, Inc., after a prior bid protest judgment in favor of the plaintiff, the court denied the plaintiff's motion to alter the prior judgment (because the plaintiff's motion was untimely) and denied the plaintiff's alternative motion for relief from that final judgment because the plaintiff did not show entitlement to that relief under Rule 60(b). (Basically, the plaintiff objected to the corrective action the Government undertook in response to the prior protest.
In Jacobs Technology, Inc., the court rejected challenges by both the awardee and its competitor to the proposed scope of the agency's third round of corrective actions, after the agency had repeatedly chosen the same awardee after the earlier rounds of corrective action.
In Continental Services Group, Inc., et al., the court issued a preliminary injunction in a complex case involving multiple parties to preserve the status quo until the Government announced its corrective action in response to a prior GAO decision on a protest.
In Gallup, Inc., the Government undertook corrective action and paid the protester's attorneys fees as a self-imposed sanction after it discovered and reported to the court that the Contracting Officer had prepared a Memorandum for the Record justifying a small business set-aside after the protest against the set-aside had been filed but had back-dated it to make it appear as if it were a part of the contemporaneous record.
In Harmonia Holdings Group, LLC, an unsuccessful preaward protest of the scope of the agency's corrective action in response to a prior protest, the court held that the agency was not required to limit the corrective action to a reevaluation and could also revise the solicitation to address issues the agency saw in the original solicitation that were not specifically raised in the prior protest.
In Dell Federal Systems, L.P., et al., a successful protest, the court held that the agency's proposed corrective action in response to prior protests was overly broad and that allowing offerors to submit clarifications was all that was required to cure defects in the prior solicitation process, whereas reopening the competition for full-blown discussions was not necessary. Subsequently, the CAFC reversed this decision.
However, iIn Novak Birch, Inc., an unsuccessful protest against proposed corrective action in response to a prior protest, the Court of Federal Claims held that the Contracting Officer's decision to (i) terminate the prior contract award to the current protester, (ii) cancel the solicitation, and (iii) return to market research, had a rational basis in what the Contracting Officer reasonably perceived as defects in the prior solicitation process, and, given those defects, the proposed corrective action was not overly broad.
In American Sanitary Products, Inc., an unsuccessful protest of corrective action, the court held that an agency's decision to cancel an award and resolicit had a rational basis because the agency had discovered (after a GAO protest by another offeror had been filed) that the agency had underestimated its requirements in the original solicitation.
In XPO Logistics Worldwide Government Services, LLC, which involved unsuccessful consolidated protests by both the original awardee and a competitor against the procuring agency's corrective action (reevaluating past performance references and making a new source selection decision) following earlier GAO protests, the court: (i) denied the original awardee's protest because the court agreed with the GAO that the contemporaneous evaluation record did not show how the agency arrived at its conclusion that the magnitudes of the awardee's past contracts were sufficient to evaluate them as somewhat relevant; and (ii) denied a competitor's protests that the corrective action was insufficiently broad in that it allegedly (i) did not take into account the awardee's unbalanced pricing (the court finding that the Contracting Officer had properly analyzed the offers and found no unbalanced pricing), and (ii) improperly relied solely on total evaluated price in the final cost evaluation (the court finding that this evaluation was consistent with the solicitation's stated evaluation scheme).
In Automated Collection Services, Inc. and Alltran Education, Inc., the court denied protests of the scope of the agency's corrective action in response to prior protests because of the agency's wide discretion in determining such matters.
In XPO Logistics Worldwide Government Services, LLC, an unsuccessful post-award protest largely based on the facts that the protester's original scores were lowered during a reevaluation undertaken without additional discussions as part of corrective action after a prior protest, the court held that: (i) the protester waived its right to complain that the agency should have conducted discussions during corrective action (as well as its related argument that, absent re-opened discussions, the prior discussions had been unequal and misleading) because it was on notice no discussions were contemplated but did not protest until after award; (ii) the agency's evaluation of the magnitude of the protester's past contracts was unobjectionable because the agency used the values protester, itself, provided as part of its proposal; (iii) the agency had a rational basis for its rating of the relevance of one past contract; (iv) under the explicit terms of the solicitation, the agency was permitted to consider corporate experience in its best value tradeoff decision; and (v) several other protest grounds already had been litigated and thus were precluded by the doctrine of res judicata.
EAJA/Fees/Costs
In a blistering opinion highly critical of the agency's conduct, the court held in Starry Assocs., Inc., that the procuring agency's repeated misconduct and misrepresentations, which had forced the protester to file multiple protests to vindicate its rights, constituted a "special factor" under the EAJA, entitling the protester to recover its attorneys fees at the actual rates charged, rather than at the normal statutory cap of $125 per hour.
In Q Integrated Companies, LLC, the court determined the quantum of proposal preparation costs and EAJA attorneys' fees and costs due a protester whose protest resulted in "substantial relief" (even though it did not prevail on some of its alternative grounds of protest), including the appropriate COLA adjustment to apply to determine the recoverable hourly attorney rates, and related costs such as filing fees, electronic legal research, FedEx shipping, courier charges, travel expenses, and conference calls.
In Sigmatech, Inc., the CoFC denied the Government's request to seek an advisory opinion from the GAO because the record before the court included several hundred pages of documents not originally available to the GAO and waiting for a GAO review would delay the proceedings unnecessarily.
In Level 3 Communications, LLC, the court held that the Government's counsel had repeatedly violated his duty of candor to the court by leading the court to believe performance on a protested contract had not begun when, in fact, it had. Subsequently, the CAFC reversed this ruling.
In Q Integrated Companies, LLC, the court denied the Government's motion for relief from a prior judgment in favor of a bid protester because the SBA's post-judgment finding that the protester was not an eligible small business for contracts in geographic areas different from those at issue in the protest did not necessarily mean it would not be able to compete under a reopened competition for the area under dispute in the current protest.
In Sonoran Technology and Professional Services, LLC, the court authorized the protester to depose the Contracting Officer for a limited amount of time concerning two specific issues to correct deficiencies in the administrative record concerning the agency's decision to take corrective action, but denied the contractor's requests: (i) to depose SBA officials concerning their handling of a CoC referral from the contracting agency; and (ii) to extend the Contracting Officer's deposition to other alleged deficiencies in the record that were not necessary for the court's analysis of the protest. Subsequently, in another decision in the protest of Sonoran Technology and Professional Services, LLC, the court ordered additional supplementation of the administrative record because supplementation following the prior court order revealed that information previously deemed irrelevant was, in fact, relevant to resolution of the protest.
In Cleveland Assets, LLC, the court denied the protester's motion to stay the court's prior decision denying the protest pending appeal to the Federal Circuit because the protester had not shown a substantial case on the merits related to either of its two grounds of appeal.
In Sonoran Technology and Professional Services, LLC, the court denied the protester's motion to amend its Complaint to add two counts against the SBA for allegedly issuing a CoC to a nonresponsible bidder and reopening a CoC referral contrary to established SBA practices because (i) the court lacks jurisdiction to review the issuance of a CoC and (ii) the protester waited too long to file its motion to amend.
In Harkcon, Inc., the court denied the protester's motion to supplement the administrative record because, inter alia: (i) one requested document was already publically available and others did not exist or were identical to documents already included in the record; and (ii) the deposition of a government employee would not aid in the court's analysis because there was already a written record of the rationale for his decision.
In Torres Advanced Enterprise Solutions, LLC, the court held that information in the protester/incumbent's CPARS that was discussed in the court's decision on the protest was not protected from release under the protective order covering the protest and would not be redacted from the court's published decision.
In
PDS Consultants, Inc., the court granted the defendant/intervenor's
motion to stay the court's prior judgment (that the VA must perform a Rule
of Two analysis before purchasing items off the AbilityOne Procurement
List) pending the appeal of the court's judgment to the CAFC.
Court of Appeals for the Federal Circuit
In Kevin Diaz, the CAFC affirmed the prior CoFC decision and held that the protester lacked standing to complain that the Government improperly rejected his unsolicited proposal because the proposal failed to fulfill the requirements of FAR 15.603(c) and, thus, the protester did not have a direct economic interest in the procurement, i.e., did not have a substantial chance of receiving a contract.
In Dellew Corp., the CAFC reversed the prior CoFC decision awarding EAJA costs to a protester, because comments by a CoFC judge from the bench during a hearing favoring the protester's position, but not memorialized in a court order or opinion, did not confer "prevailing party" status on the protester. The appeals court also criticized the lower court's reliance on its own precedent rather than that of higher courts: "We reaffirm a well -known principle that the Court of Federal Claims failed to follow here: the Court of Federal Claims must follow relevant decisions of the Supreme Court and the Federal Circuit, not the other way around."
SBA Office of Hearings and Appeals
Jurisdiction/Standing/Timeliness/Procedure
In Size Appeal of DataSavers of Jacksonville, Inc., the OHA held that the Area Office had correctly dismissed the following protest allegation as speculative and insufficiently specific: "One of the basis for my pending protest to the GAO is that the award of this contract would clearly violate the Ostensible Subcontractor Rule if in fact the subcontractor is not a small business. If the subcontractor is a small business, then, there is a possibility the Ostensible Subcontractor Rule would not be violated if the affiliation between the prime and sub does not exceed the size standard . . . ."
In Size Appeal of K2 Group, Inc., the OHA held that the Area Office had correctly determined a size protest was untimely because the agency's delay in awarding the contract did not toll the normal requirement that size protests must be filed within five days after receipt of the pre-award notice of the identity of the prospective awardee.
In Size Appeal of Platinum Business Services, LLC, the OHA held that the Area Office had correctly determined a size protest involving the award of a task order under a multiple-award schedule contract was untimely because task order solicitation did not require recertification of size status.
In Size Appeal of Lost Creek Holdings, LLC d/b/a ALL-STAR Health Solutions, the OHA vacated the Area Office's decision to dismiss a protest for lack of standing because the OHA found there was no clear evidence to support the Area Office's finding that the size protester's proposal in response to the solicitation at issue was technically unacceptable.
In Size Appeal of NuGate Group, LLC, the OHA upheld the Area Office's dismissal of a protest as insufficiently specific because it failed to include any evidence or documentation to support its allegations.
In Matter of Redhorse Corp. (PFR), the OHA dismissed a Petition for Reconsideration of its original decision dismissing an SDVOSB status protest as untimely because: (i) the PFR relied on arguments that could have been, but were not, made during the original protest; (ii) the PFR incorrectly interpreted 13 C.F.R. 125.18(e)(1)(iii) as creating an exception to the normal rule that recertification is not required for a particular order unless the Contracting Officer requests it; and (iii) the Supreme Court's ruling in Kingdomware Technologies does not change SBA's rules in this area.
In Size Appeal of Ordnance Holdings, Inc., the OHA dismissed (as untimely) an appeal filed more than 15 days after the appellant was deemed to have received an email transmitting the Area Office's size determination because that email address was the same address the appellant used in subsequently filing its appeal.
In Size Appeal of Bridgeway Professionals, Inc. the OHA dismissed (as moot) an appeal of a finding of violation of the ostensible subcontractor rule because the underlying solicitation had been cancelled.
In Size Appeal of Sea Box, Inc., the OHA upheld the Area Office's decision to treat a firm's letter as a protest and then to dismiss it for lack of standing because the protester already had been eliminated from the competition for a procurement-related reason.
In Matter of Research Solutions, Group, Inc., the OHA held that a timely protest did not include any objection to the protested firm's SDVOSB status, and a subsequent protest of that status was untimely filed.
In Size Appeal of University Strategy Group, Inc., the OHA held that the Area Office correctly dismissed a size protest because the Contracting Officer had not required firms to recertify as small businesses for a task order under a Multiple Award Contract.
In Size Appeal of Seaborn Professional Staffing, the OHA remanded the case to the Area Office for further review because it was unclear from the record whether the solicitation called for the award of a contract, a task order, or a BPA, and as a result, which size protest rules should be applied to the dispute.
In Size Appeal of Chenega Support Services, LLC, the OHA held that the Area Office had correctly dismissed a size protest as untimely because the procuring agency's decision to suspend the performance of (but not to cancel) the contract at issue in response to a GAO protest did not toll the requirement that any size protest must be filed within five days of the original notice of the identity of the apparent awardee.
In Size Appeal of Unissant, Inc., the OHA held that a protest of a size certification made in connection with the exercise of an option of a long term contract was untimely because it was filed at least four months after that recertification and, despite not having received a direct notice of the recertification, the protester had reason to know of it long before the protest was filed.
In Size Appeal of QuaLED Lighting, the SBA's OHA held that the Area Office had correctly found a protest untimely because it only mentioned the base contract award (which occurred more than a year before the protest was filed) rather than the subsequent award of a task order.
In Size Appeal of Charitar Realty, the OHA held that the Area Office correctly found affiliation under the ostensible subcontractor rule because the proposed subcontractor was the incumbent contractor and prime's proposed personnel were former employees of the subcontractor.
In Size Appeal of A-P-T Research, Inc., the OHA held that the Area Office had correctly found there was no affiliation under the ostensible subcontractor rule because although the Area Office misidentified the contract's primary and vital requirements, the challenged firm will perform the bulk of the actual primary and vital requirements and is not unduly reliant on its subcontractors.
In Size Appeal of the Frontline Group, the OHA remanded the case to the Area Office to analyze whether the protested firm would perform the bulk of the primary and vital requirements of the contract in compliance with the ostensible subcontractor rule or whether that firm and its proposed subcontractor were exempt from the application of the rule as "similarly situated entities" pursuant to 13 C.F.R. § 121.103(h)(4).
In Size Appeal of Synergy Solutions, Inc., the SBA's OHA denied an appeal and decided the Area Office had correctly identified the contract's primary and vital requirements and had found that a firm was unduly reliant on subcontractors in violation of the ostensible subcontractor rule.
The OHA held in Size Appeal of Automation Precision Technology, LLC, that the Area Office had correctly found affiliation under the rule where the small business prime proposed to hire the large business incumbent's workforce en masse and almost entirely rely on that large business (as a subcontractor) for managing the contract.
In Size Appeal of Lost Creek Holdings, LLC d/b/a All-STAR Health Solutions, the SBA's OHA held that the ostensible subcontractor rule at 13 C.F.R. § 121.103(h)(4), which requires that a contractor and its ostensible subcontractor be treated as affiliates for size determination purposes, has not been overridden by 13 C.F.R. § 121.103(h)(3)(i), which provides that a joint venture of two small businesses may submit an offer for any federal procurement. The OHA concluded that the Area Office should have investigated the protester's allegation that two small businesses ran afoul of the ostensible subcontractor rule. In its decision, the OHA quotes (with approval) language that seems to me to harmonize the two provisions: "The purpose of the [ostensible subcontractor rule] is to 'prevent other than small firms from forming relationships with small firms to evade SBA's size requirements.'" [emphasis added; citation omitted] If the purpose of the ostensible rule is to prevent a large business from forming a relationship with a small business to evade the SBA's size restrictions, then isn't the ostensible subcontractor rule perfectly consistent with the rule that two small businesses may form a joint venture for any federal procurement without any problems with affiliation?
In Size Appeal of The Frontline Group, the OHA held that the Area Office reasonably concluded that: (i) a proposed subcontractor was a small, similarly-situated entity, and, therefore, (ii) the ostensible subcontractor rule did not apply.
In Size Appeal of Equity Mortgage Solutions, the SBA's OHA overturned the Area Office's decision after finding that the challenged firm ran afoul of all four prongs of the ostensible subcontractor rule because: (i) the proposed subcontractors were the incumbent contractor and its subcontractor, both of which were ineligible to compete for the current procurement; (2) the prime contractor planned to hire the large majority of its workforce from the subcontractors; (3) the prime contractor's proposed management previously served with the subcontractor on the incumbent contract; and (4) the prime contractor lacked relevant experience and seemed to be reliant on the experience of its proposed subcontractors to win the contract.
In Size Appeal of Emergent, Inc. the SBA's OHA upheld the Area Office's finding that the small business prime's proposed use of the large business incumbent as its subcontractor did not violate the ostensible subcontractor rule because: (i) the small business would not hire its workforce en masse from the incumbent; (ii) the small business would not hire its management personnel (specifically its PM) from the incumbent; (iii) the small business prime had relevant experience of its own; and (iv) the small business prime would be perform the majority of the contract's primary and vital contract requirements.
Other Miscellaneous Size Issues
In
Size Appeal of First Nation
Group d/b/a Jordan Reses Supply Co., LLC,
the SBA's OHA held that the Area Office erred in finding
affiliation under the totality of the circumstances based mainly
on a subordinated, unsecured note that did not give one firm the
power to control the other.
In Size Appeal of Global
Submit, Inc., the SBA's OHA
held that the Area Office had properly declined to publish
the protested firm's proprietary information in a size decision
and that the Area Office
had correctly applied the OHA's longstanding interpretation that 13 C.F.R. §
121.105(a)(1) does not bar foreign-owned small businesses from
participating in small business set asides, provided that the small
business is based in the U.S. and contributes to the U.S. economy.
In Size Appeals of MPC Containment
Systems, LLC, and GTA Containers, Inc.,
the OHA held that (on remand
after a
prior OHA decision)
the Area Office had correctly found that the protested firm was a manufacturer and
that there
was no affiliation through identity of interest because the firm was
widely held by entities who had competing interests).
In Size Appeal of Precision Asset
Management Corp. and Q Integrated Companies, LLC,
the OHA denied
a Petition for Reconsideration
because, in deciding issues involving a mentor-protégé agreement,
there was no
reason to deviate from the normal rule that size is determined as of
the date of
the initial offer.
In
Size Appeal of Technology Assocs,
Inc.,
the SBA's OHA held that the Area Office had
correctly determined that the challenged firm was not the manufacturer
because it would not utilize its “own facilities” to manufacture the
contract item (an ice-breaking tugboat), as required by 13 C.F.R. §
121.406(b)(2).
In Size Appeal of CTSI-FM, LLC,
the OHA held that, although the Area Office had
correctly found affiliation among three firms based upon identity of
interest between two brothers, the Office had erred in finding affiliation
with another firm through common management because the challenged
individual held no management position in the allegedly affiliated firm. In
Size Appeal of ProSol
Assocs., LLC
In
Size Appeal of Quadrant
Training Solutions, LLC,
after
remand from the CoFC, the OHA affirmed its
prior decision's
finding of affiliation because the document court directed the
OHA to consider did not support the conclusion that SBA had
extended approval of a mentor-protégé relationship for another
year. As noted in the decision, the regulations governing such
extensions have since been revised to relax the requirements.
In Size Appeal of INV
Technologies, Inc.,
the OHA reversed the Area Office's finding of
affiliation under the totality of circumstances because the Area Office's
findings of fact did not support the conclusion that either allegedly
affiliated firm could control the other or that an individual was a key
employee of the allegedly affiliated firm, based solely on his job title. In
Size Appeal of Coulson Aviation
USA, Inc.,
the OHA held that: (i) the Area Office had correctly
determined from the firm's original proposal that the firm clearly was not
the manufacturer of the contract items; and (ii) the firm's wholesale
revisions to its proposal in response to the size protest were irrelevant. In
Size Appeal of Veterans Construction Coalition, LLC,
the OHA remanded the protest to
the Area Office for further investigation because, based on its
mistaken view of the scope of the former exception to
affiliation found at 13 C.F.R. § 121.103(h)(3)(ii), the Area
Office had failed to consider the protester's allegations that
two firms were
generally affiliated. In
Size Appeal of Aerosage, LLC,
the OHA held that the Area Office correctly found that a firm offering
only to use its "best efforts" to comply with the nonmanufacturer rule did
not meet that rule's requirements. In
Size Appeal of Gregory
Landscape Services, Inc.,
the OHA affirmed the Area Office's
finding that a firm owned 51% and 49% by a wife and husband,
respectively, was affiliated, though identity of interest, with
a firm owned by the husband's parents and siblings, in which the
husband was a major employee. In what it noted was the fifth appearance before it of
an epic battle involving a joint venture's qualifications, the
OHA held in
In
Size
Appeal of Teracore, Inc., the OHA held that the Area Office
had correctly used a tax return filed after the date of a firm's
self-certification, but available during the size determination, in
calculating a firm's size.
In
Size
Appeal of Potomac River Group, LLC,
the OHA held that, in determining affiliation and size, the Area
Office correctly disregarded a revised operating agreement
executed after the date of a firm's self-certification as a
small business.
In
Size Appeal of
Lost Creek Holdings, LLC
d/b/a All-STAR Health Solutions
In
Size Appeal of
MEGEN-AWA2, LLC,, the OHA held that the Area Office had correctly
found two firms to be affiliated under the identity-of-interest rules
because their owners were brothers with no clear fracture between them
since both firms were in the same line of business and had participated in
joint ventures together.
In
Size Appeal of Global Native
Services, Inc.,
the OHA: (i)
dismissed several allegations raised for the first time on appeal; and
(ii) held that the fact that the protested firm's owners were also
employees of another concern did not establish that either firm had the
power to control the other.
In
Size Appeal of Johnson Development, LLC,
the OHA held that: (i) non-profit charitable
foundations are not exempt from the normal rules of affiliation; (ii) the
Area Office correctly found affiliation through both (a) identity of
interests among family members absent any showing of clear fracture
between them and (b) common management; and (iii) the appellant was not
entitled to exclude revenues from transactions between its affiliates to
which it was not a party.
In
Size Appeal
of Stellar Innovations and Solutions, Inc.,
the OHA held that the Area Office had correctly used the date of
initial priced offers to determine a challenged firm's size, rather than
the date that final proposal revisions were submitted after corrective
action in response to a prior GAO bid protest, as the appellant had
advocated.
In
Size Appeal
of LSINC Corp., after a lengthy
litigation up and down through the appeals process, the
OHA held that the appellant had not presented sufficient
evidence to overcome the presumption of economic dependence when
the small business in question had consistently derived more
than 70% of its income from a large business for a prior period
of several years and continued to do so even after the date of
the size determination. For some of the litigation history
see
Veterans Technology, LLC and MDW Assocs., LLC v. United States, No.
16-1489 (Aug. 2, 2017)
(prior
SBA OHA
decision
affirming Area Office finding that firms were affiliated
through economic dependence and contractual relationships was
arbitrary and capricious because OHA did not adequately investigate or
provide analysis of circumstances of contractual relationships).
In
Size Appeal
of Native Energy & Technology, Inc.,
the OHA held that: (i) a firm that had acquired only the small
surviving portion of a former firm was affiliated only with that
portion and not the entire predecessor firm; (ii) there was no
affiliation of firms through common management because the challenged
individuals did not hold management positions in the alleged
affiliate; (iii) there was no additional affiliation through identity
of interest because the challenged spouses did not control any
companies not already included in the SBA's calculations supporting
its size determination.
In
Size Appeal of Team Waste Gulf
Coast, LLC, the OHA affirmed
the Area Office's finding of affiliation
because
the Operating Agreement at issue granted one firm negative control
through the power to block
several types of actions (over certain dollar thresholds) that the OHA has deemed essential to operating a
business, including the creation of debt and the payment of dividends.
In
Size Appeal of First Financial Assocs.,
the OHA held that the
fact that the protested firm's parent company (with which it was
affiliated) was a non-profit concern did not render the
protested firm ineligible as a small business.
In
8(a)
/ SDVOSB / WOSB Status In
Matter of Redhorse Corp.,
the OHA reconciled the interpretations of 13 C.F.R. §§
125.18(e) and .25(d) and held that a protest against a firm's
SDVOSB status, iled after issuance of an order set aside for SDVOSBs in an
option year of a GSA Schedule contract, was untimely because the
Contracting Officer had not requested recertification of the
offerors' SDVO status in connection with the solicitation for
the order.
In Matter of
ORB Solutions Inc., the
OHA held that, in denying a firm's application for admission to
the 8(a) program based on a finding that its owner was not
economically disadvantaged, the SBA (i) properly counted the
amount of an advance to the claimed disadvantaged owner of the
applicant as an asset because the evidence did not establish it
was a loan whose repayment was required; (ii) properly
characterized a personal loan from the owner to the applicant
8(a) firm as an asset of the owner; and (iii) reasonably valued
purchase agreements for corporate investments to purchase
properties and an office for the applicant firm in India.
In Matter of Veterans Contracting
Group, Inc.,
despite other errors in
that determination,
the OHA sustained the SBA's original determination that the disabled veteran did not unconditionally
control the protested firm because provisions of the
shareholder agreement stated that in the event of a shareholder's death or
incapacity, their shares must be sold to the corporation at the
Certificate Value. This position, however, was
disapproved and rejected by the Court of Federal Claims at
approximately the same time as the OHA issued its decision.
In
Matter of KC Consulting, LLC, the SBA's OHA upheld the
agency's decision to terminate
a firm from the 8(a) program because it
failed to submit all required
Annual Review update information despite having received two requests for it.
In Matter of Yard Masters, Inc.,
the OHA upheld the SBA's determination that a firm that had made
some last minute changes to qualify as a WOSB for a particular
procurement had not succeeded because, even though the SBA
erroneously concluded there was not sufficient evidence of a
stock transfer giving the wife 51% "ownership" in the firm,
the woman's husband still held the highest officer position in
the firm and managed its day-to-day operations, so that there
was no "control" by the woman.
In
NAICS Appeal of Creative
Information Technology, Inc.,
the OHA held that, in a solicitation to provide a complete range of
support in managing and operating a Refugee Processing Center, the
Contracting Officer reasonably selected NAICS code 541512 (Computer
Systems Design Services) rather than NAICS code 518210 (Data
Processing, Hosting, and Related Services) for the small business
set-aside.
In NAICS Appeal of Ascendant Program Services, LLC, where the solicitation called for the provision of a wide range of analytical and planning, design, and construction management support services, the SBA's OHA held that the Contracting Officer had correctly selected NAICS code 236220 (Commercial and Institutional Building Construction) rather than any of several alternatives proposed by the appellant.
In NAICS Appeal of Caduceus Healthcare, Inc., the OHA held that, in a solicitation for expert market research, data analytics, recruitment, and advertising services, the appropriate NAICS code was 561311 (Employment Placement Agencies) with a corresponding $27.5 million average annual receipts size standard, rather than the Contracting Officer's original designation of code 541612 (Human Resources Consulting Services) with a corresponding $15 million annual receipts size standard.
In NAICS Appeal of American West Laundry, Inc., the OHA held that, in a solicitation for bulk laundry services, the proper NAICS code should have been 812320 (Drycleaning and Laundry Services (except Coin-Operated)), with a corresponding size standard of $5.5 million average annual receipts, rather than 812331 (Linen Supply) with an associated size standard of $32.5 million average annual receipts (selected by the Contracting Officer) or 812332 (Industrial Launderers) recommended by the SBA.
In NAICS Appeal of BLB Resources, Inc., the OHA held that, in a solicitation for Asset Management Services for HUD real estate owned ("REO") properties, the proper NAICS code was 531390 (Other Activities Related to Real Estate), with a corresponding $7.5 million size standard, rather than either 531210 (Offices of Real Estate Agents and Brokers), selected by the Contracting Officer, or 541611 (Administrative Management and General Management Consulting Services) advocated by the Appellant.
In
NAICS Appeal of
SupplyCore, Inc.,
which involved an unrestricted solicitation
for supply chain management in support of tires, the OHA held that the
Contracting Officer properly chose NAICS code 493190 (Other
Warehousing and Storage)
as opposed to either
NAICS code 326211 (Tire Manufacturing, except Retreading) or 336390 (Other Motor Vehicle Parts
Manufacturing).
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