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2018 Procurement Review: Protests
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The GAO published 41 decisions sustaining protests on the merits (some of which were originally dated in 2017 but not issued to the public as redacted versions until this year).
In Office Design Group, the GAO (i) interpreted an email from the offeror to the Contracting Officer (expressing confusion regarding whether an amendment to the solicitation had changed its status as an SDVOSB set-aside and requesting clarification) as an agency-level protest, giving the firm 10 days from receipt of the Contracting Officer's response to file a timely GAO protest; and (ii) held that the amendment, which eliminated certain requirements for an SDVOSB set-aside while retaining other language indicating the procurement was still set aside, created a patent ambiguity.
The GAO sustained a protest by Castro & Co., LLC., because the agency's limitations on the scope of proposal revisions following corrective action unreasonably prohibited the protester from revising some aspects of its proposal that had been materially impacted by the corrective action.
The GAO sustained protests by Western Pilot Service, et al., against the terms of a solicitation because the flight services sought by a task order request for proposals for exclusive-use, extended, guaranteed periods of performance were beyond the scope of the protesters' underlying IDIQ contracts for on-call services.
Flawed Evaluation / Lack of Meaningful Discussions
In East Cost Utility Contractors, Ltd., the GAO found that, where the solicitation provided for the consideration of the past performance of the offerors' proposed management teams, the agency had improperly failed to consider the past performance of one of the protester's managers.
The GAO also sustained part of a protest by Red River Computer Co. because one of the awardees failed to provide price discounts at the BPA level as required by the solicitation.
BAE Systems Technology Solutions & Services, Inc., won its protest because the awardee's proposal did not include sufficient information for the agency to assess whether its proposed personnel met the solicitation's minimum experience requirements.
The GAO sustained a protest by Harper Construction Co., holding that: (i) the protester had based its proposal submission on a reasonable interpretation of latently ambiguous solicitation language, and (ii) the agency's rejection of the proposal based on the agency's contrary interpretation had prejudiced the protester.
ManTech Advanced Systems International, Inc. won its protest because the final source selection decision document did not include any comparison of proposals sufficient to explain the agency's conclusion that the awardee's proposal was superior to the protester's.
In Transworld Systems, Inc., the GAO sustained another protest because the agency did not evaluate quotations equally when it assigned a weakness to the protester's proposal for an omission shared by the awardees' quotations, which were not assigned a weakness.
Savannah River Technology & Remediation LLC won its protest because the record did not show that the agency had evaluated the viability of the awardee's proposed technical approach as required by the solicitation.
In Dynaxys LLC, the GAO sustained the protest because: (i) the agency's technical evaluators unreasonably assigned "minor strengths" to two aspects of the awardee's proposal that merely met the solicitation's minimum requirements, which adversely affected the conclusion in the final trade-off analysis that the awardee's and protester's proposals were essentially equal under the Technical Approach factor; and (ii) the agency failed to conduct a meaningful comparison of the proposals during the trade-off analysis.
In ORBIS Sibro, Inc., although the GAO found no fault with some challenged aspects of the evaluation, it did conclude that the agency had unreasonably adjusted the protester's total price upward in its cost realism analysis, essentially double counting adjustments the evaluators already had made in their analysis.
The GAO sustained a protest by ARES Technical Services Corp. because there was no evidence in the record that, in evaluating the awardee's proposal, the agency had considered the effects of the awardee's OCI mitigation strategy on its proposed technical approach.
SKER-SGT Engineering & Science, LLC won its protest because: (i) the record was insufficient to show that the agency considered whether offerors' past performance contracts were comparable to the scope of the current procurement; (ii) the agency's relevancy determinations were not sufficiently documented to determine whether they were reasonable; and (iii) in its cost realism analysis, the agency failed to adequately consider the proposed staffing efficiencies in the protester's proposal.
Conley & Assocs. won its protest because: (i) the technical evaluation departed from the RFP’s evaluation criteria and was unreasonable or unequal in multiple respects; and (ii) the cost realism analysis was inadequate and unreasonable.
The GAO sustained a protest by Ace Info Solutions, Inc., due to a flawed evaluation, because the agency mistakenly switched the background references for two of the awardee's contract references, which materially affected the agency's past performance and best-value tradeoff evaluations and, therefore, was not, as the agency claimed, a harmless cut-and-paste error.
In ANHAM FZCO, another successful protest, the GAO determined that the agency's evaluation of experience was flawed because: (i) the agency improperly substituted an experience reference in the awardee's prior proposal submission for the reference included in its final proposal submission; and (ii) the agency violated a specific requirement of the solicitation by crediting the awardee (which did not submit any contracts it had performed, itself) with the experience of affiliated companies.
360 IT Integrated Solutions won its protest due to multiple evaluation errors by the agency, including: (i) without an adequate explanation, considering negative past performance information concerning the past contract of one of the protester's proposed subcontractors, even though the protester had removed that contract as a past performance reference in its latest proposal revision and had downgraded the proposed subcontractor's role to a very limited one; (ii) evaluating proposals unequally by assigning more significant strengths to the awardee's proposal for approaches similar to those identified in the protester's proposal; and (iii) failing to a provide a reasonable explanation for the decision not to assign a strength in the management area to a proposed approach clearly described in the management approach section of the protester's proposal.
In EFS Ebrex SARL, the GAO held that the agency had implemented unstated evaluation factors where the source selection plan established undisclosed benchmarks that a proposal must meet in order to receive a rating of acceptable or higher under the experience evaluation factor, and the agency’s discussions with offerors were less than meaningful regarding those undisclosed requirements.
In VariQ Corp., the GAO held that: (i) the record did not support the agency's conclusion that an individual proposed by the awardee for a key personnel position met the solicitation's requirements; (ii) the agency relied on incorrect past performance questionnaire ratings in evaluating the protester’s quotation; and (iii) the agency failed to explain why the source selection official did not find two approaches proposed by the protester to be of significant program benefit to the agency while finding that the awardee’s similar proposed approaches were of significant benefit.
In Will Technology, Inc.; Paragon TEC, Inc., the GAO sustained a portion of consolidated protests due to the unequal evaluation of proposals after the agency conceded that certain representations in the awardee's proposal were accepted at face value while those in the protesters' proposals were subjected to a stricter standard.
The GAO also sustained a protest by Immersion Consulting, LLC, which challenged a reevaluation following the same protester's prior successful protest, holding that: (i) the agency's revised evaluation of the staffing plan subfactor was unreasonable because it only reinstated a weakness based on discrepancies in two labor categories in the awardee's staffing plan while ignoring similar discrepancies present throughout the remainder of the plan; and (ii) the reevaluation of the technical factor was flawed because there was no explanation why the protester was given only an Acceptable rating when the evaluators' description of its proposal corresponded to the solicitation's definition of an Outstanding rating.
ENSCO, Inc., won its protest based primarily on the agency's flawed cost realism analysis, in which the agency adjusted the proposed direct labor rates only for those employees for whom DCAA rates were available, without any other analysis of individual direct labor rates. The agency also assigned greater confidence to the competitor's proposed approach of recruiting the incumbent's employees without analyzing the impact of the firm's significantly lower proposed direct rates on its ability to recruit.
United Valve Co. won its GAO protest because the agency had made an award of a source-control item contract to a company with a different CAGE code than the one required by the solicitation without an adequate investigation whether that firm was the same legal entity as a firm with the correct CAGE code.
Relying on a 35-year-old GAO decision as precedent even though the governing regulations have changed since then, the GAO sustained a protest by Addison Constr. Co., holding that the agency erred in rejecting a bid on an IFB as nonresponsive for failing to provide some of the information clearly required by the solicitation to determine whether the bidder was entitled to an exception from the Buy American Act. The GAO held that the bidder had given the agency enough information so that the agency could go out and conduct its own investigation to fill in the blanks to decide whether an exception was merited.
The GAO sustained a protest by Veteran Technology Integrators, LLC, holding that the agency had erred in excluding the proposal from the competition for failure to provide a subcontract number for one past performance reference because: (i) the original subcontract did not have an identifying number; (ii) the protester's proposal contained sufficient information concerning the subcontract for the agency to evaluate the subcontract's contribution to the protester's past performance and experience; and (iii) the identifying information provided in the proposal concerning the subcontract did not violate the solicitation's instructions for preparing proposals.
The GAO published four decisions sustaining parts of protests by four offerors under the same solicitation. Specifically, Technatomy Corp. established that, given that the solicitation had many offerors and multiple awardees, the agency failed to compare offered prices pursuant to FAR 15.404-1(b)(2)(i) to determine whether those prices were fair and reasonable. OGSystems, LLC, and Novetta, Inc., each convinced the GAO that there was no meaningful explanation in the contemporaneous record for the SSEB's decision to remove a strength assigned to each firm's proposal by the Technical Evaluation Board. Finally, Solers, Inc., demonstrated there was an inconsistent evaluation because, in evaluating the protester's proposal, and those of several other offerors, the SSEB repeatedly concluded that a strength increased the probability of successful performance only to assign a rating of "acceptable" on the basis that the strength would have little or no impact on contract performance.
In Millennium Corp., a protest with an unusual remedy, the GAO held that the language in a multiple-award solicitation regarding the CPAR categories the agency would use to score proposals was latently ambiguous (i.e., susceptible to two, reasonable interpretations); and the GAO recommended that the agency (a) rescore the protester's proposal using the protester's reasonable interpretation of the solicitation's CPAR requirements and (b) "simply" make an additional award if the rescoring placed the protester's score higher than that of the lowest-scored proposal that had received an award.
Ekagra
Software Technologies, Ltd. won its protest because: (i) the
agency's negative evaluation of the protester's quotation under
the Organizational Experience factor was inadequately documented
and unreasonable; and (ii) the agency failed to demonstrate it
had evaluated the experience of personnel proposed by the
awardee consistently with solicitation's minimum personnel
requirements.
Savannah Cleaning Systems, Inc. won its protest because it was improper for the agency to have issued an FSS purchase order where the quoted item (i) did not meet the specifications, (ii) was not shown to be equivalent to the specified brand name item, and (iii) was not listed on the vendor's FSS contract.
The GAO
sustained part of a protest by
Scope Infotech,
Inc., because, in a competition among FSS vendors, the
agency improperly issued a task order to one vendor that
included non-FSS items.
Alliant
Solutions, LLC won its protest because a letter of
technical direction issued by the Government ordered work beyond
the scope of a contractor's underlying task order.
Responsiveness, Late Bids, Mistakes, Expired Bids
The GAO sustained a protest by Herman Construction Group, Inc. because the record did not support the agency's conclusion that the awardee had submitted sufficient evidence to permit the agency to allow it to correct an allegedly mistaken bid.
The GAO sustained a protest by
Veteran
Technology Integrators, LLC, holding that the agency had
erred in excluding the proposal from the competition for failure
to provide a subcontract number for one past performance
reference because: (i) the original subcontract did not have an
identifying number; (ii) the protester's proposal
contained sufficient information concerning the subcontract for
the agency to evaluate the subcontract's contribution to the
protester's past performance and experience; and (iii) the
identifying information provided in the proposal concerning the
subcontract did not violate the solicitation's instructions for
preparing proposals.
Sole Source/Small Business/Restricted Competitions
In a dispute with an unusual issue, the GAO sustained a protest by Oracle America, Inc., finding that the Army's use of its "other transaction authority" to enter into a "follow-on production transaction" was improper because it was not accomplished in accordance with the governing statute, 10 U.S.C. 2371b.
AeroSage, LLC won on one of its protest grounds because the agency had failed to conduct adequate market research before deciding not to set aside certain line items for small businesses.
In HESCO Bastion, Ltd--Costs, the GAO granted the protester's application for costs where the agency had unduly delayed taking corrective action in response to a clearly meritorious protest.
In
Auxilio FPM JC,
LLC--Costs, where the agency delayed taking corrective action until
after the outcome prediction conference, the GAO recommended
reimbursement not only of the costs specifically associated with the
clearly meritorious protest grounds identified in the conference, but also
of the protester's challenges to the technical evaluation that shared
common factual and legal bases with the clearly meritorious protest
grounds.
In
Veterans
Electric, LLC, although the GAO recommended reimbursement of the
protester's protest costs where the agency had unduly delayed taking
corrective action following a clearly meritorious protest, it denied the
protester's claim for its bid costs because the agency had a rational
basis for cancelling the IFB.
Conflict of Interest/Unfair Competitive Advantage
The GAO sustained a protest by ARES Technical Services Corp. because there was no evidence in the record that, in evaluating the awardee's proposal, the agency had considered the effects of the awardee's OCI mitigation strategy on its proposed technical approach.
Archimedes Global, Inc. won its protest because the agency’s decision to disqualify the protester for an OCI was not based on hard facts, but, rather, on "innuendo and supposition" concerning the activities of another firms' employees: "Chief among our concerns is the fact that the contracting officer, without any underlying evidence, concluded that, because there was a possibility that the individuals in question may have had access to competitively useful, non-public information, that information necessarily was provided to [the protester]. However, the record shows that neither individual currently is employed by [the protester], and there is no evidence to show that the individuals provided [the protester] with competitively useful, non-public information, or otherwise participated in preparing [the protester's] proposal."
The GAO sustained a protest by Dell Services Federal Government, Inc., finding an unequal access OCI where an individual participating in the preparation of the awardee’s proposal had access to competitively useful, non-public information about the protester under another contract.
C2C Innovative Solutions, Inc. won its GAO protest because the agency: (i) failed to evaluate a potential impaired objectivity OCI where the awardee's wholly owned subsidiary would decide appeals from the awardee's own claims decisions; and (ii) failed to reasonably evaluate an unequal access to information OCI arising from the relationship between the awardee and its subsidiary.
Timeliness/Standing/Jurisdiction/Automatic
Stay
In
Acetris Health, LLC, an unsuccessful preaward protest, the
court held: (i) it lacked bid protest
jurisdiction over allegations involving disputes concerning the
acceptability of products (medicine) supplied during the
performance of the incumbent's contract; and (ii) the
solicitation provision requiring offerors to certify that the
proposed end product was "Trade Agreements Act compliant" did
not conflict with either the Trade Agreements Act or its
implementing regulations.
In
Management & Training Corp., an unsuccessful post-award
protest, the court held that the
plaintiff/incumbent lacked standing to challenge the award of an
interim DOL task order to operate a Job Corps center pending the
resolution of a prior GAO protest because, under DOL rules and a
clause in the incumbent's contract (which the incumbent did not
timely protest), the incumbent contractor is ineligible to
compete for such interim "Contingency Contract Vehicles." The
court also found lack of standing under the test for standing in
the CAFC's
Distributed Solutions
case, whose analysis of standing
the lower court found to be murky and largely unhelpful.
Intelligent Waves, LLC, a successful protest against a "best
interest" override of an automatic CICA stay during a GAO
protest of the award of a new task order, the court held that the agency's rationales for the override were
insufficient: To allow an override based merely on the
fact that to work towards a bridge contract, or to have acted
timely and negotiated an extension are more difficult to
accomplish than continuing to have the incumbent perform the new
contract, would allow agency manipulation of a congressional
mandate. In
Acetris Health, LLC, the court denied
the Government's motion to dismiss a preaward protest under Rules 12(b)(1)
and 12(b)(6) and held it had jurisdiction over the plaintiff's allegations
that, in conducting a solicitation to purchase ntecavir Tablets, the VA
improperly: (i) interpreted the solicitation’s Trade Agreements clause;
(ii) included a provision in the solicitation that was contrary to the
Trade Agreements clause; and/or (iii) relied on Customs and Border
Protection's country-of-origin determination concerning the acceptability
of tablets offered by the plaintiff rather than independently interpreting
the solicitation’s Trade Agreements clause.
In
CBE Group, Inc., an unsuccessful
protest of award-term extensions issued to several contractors following
corrective action, the court held that: (i) the protester lacked standing
because its low scores entirely disqualified it from consideration as an
eligible offeror; and (ii) the protest was untimely because the protester
had withdrawn its earlier protest of the awards and, in the court's view,
had then waited on the sidelines to see what would happen. In
FMS Investment Corp., et al.,
the court dismissed a group of prior protests as moot and
lifted its prior preliminary injunction because
the Government had canceled the protested procurement and awards; and (ii)
denied the protesters' motions to amend their prior pleadings to protest
the decision to cancel the procurement (a denial which will, in turn,
require the plaintiffs to file new protests). In
SVD Stars II, LLC,
the court, following the reasoning of the
court in the earlier
Access Systems
case, held that the award of a separate bridge contract during the
pendency of a GAO protest was not an improper override of a CICA stay. The court dismissed a protest by
Couture Hotel Corporate because:
(i) the plaintiff's bid protest allegations involving an alleged
patent error in the procurement procedure chosen by the Government were
untimely and waived under
In
KGL Food Services WLL, the court denied a third
party's motion to intervene as an interested party in the original
awardee's protest of the procuring agency's corrective action because the
party seeking to intervene was not an offeror on the original procurement.
In
Veterans Electric, LLC, an unsuccessful preaward protest, the
court dismissed the protester's challenge to the cancellation of
a solicitation for lack of standing because the protester was not
qualified to meet the original solicitation's requirements.
In
Agility DGS Logistics Services Co. KSC(C), an
unsuccessful protest, the court held that the
plaintiff, who had not bid on the original solicitation because
it had been involved in ongoing suspension proceedings at the
time, lacked standing to protest (i) that the corrective
action (reevaluation of proposals) undertaken by the agency in
response to a protest by an actual bidder was too limited and
(ii) that the solicitation should be re-opened to allow the
plaintiff to compete.
In
Timberline Helicopters, Inc., an unsuccessful post-award
protest, the court denied the plaintiff's
motions for a TRO and preliminary injunction basically because
the plaintiff, which had not submitted an offer on the
solicitation, waited for more than a year to file suit after the
GAO had denied its preaward protest and the agency had awarded
the contract to another firm.
In
Safeguard Base Operations, LLC, a second, unsuccessful
challenge to the procuring agency's decision to override the
automatic CICA stay pending resolution of the protester's GAO
protest, the court held, inter alia,
that there was a rational basis for the agency's finding of
unusual and compelling circumstances justifying the override;
i.e., there were no reasonable alternatives available
to the agency for the provision of dormitory maintenance
services during pendency of the protest, and the lapse of the
contract would imperil the agency's ability to train the
individuals housed in the dormitories for law enforcement work
during that period. In
Loomacres, Inc.,
an unsuccessful protest against an
insourcing decision, the court held that OMB Circular A-76 does not govern
procurements of services that are necessary for the implementation or
enforcement of an Integrated Natural Resources Management Plan, and the
Air Force was required to give priority to a federal conservation or
wildlife agency to perform such services.
In National Government Services, Inc., an unsuccessful preaward protest, the court held that CMS' Contract Awards Limitations policy in Medicare Administrator Contractor ("MAC") procurements is neither contrary to law (e.g., the requirement for full and open competition) nor lacking a rational basis.
In Veterans Contracting Group, Inc., an unsuccessful preaward protest, the court: (i) dismissed the protester's challenge to the cancellation of a solicitation because the protester already had lost on that issue in a prior case at the court; and (ii) held that the protester had not alleged sufficient facts to call into question the Contracting Officer's Rule of Two analysis, which had resulted in broadening the resolicitation from an SDVOSB set-aside to a competition open to all small businesses.
In Acetris Health, LLC, a successful preaward protest (after a previous decision concluding the court had jurisdiction over the case), the court held that, in a solicitation to purchase Entecavir Tablets, the procuring agency (the VA) was required to interpret the term "U.S.-made end product" as used in the Trade Agreements clause at FAR 52.225-5 to include "domestic end products" as defined at FAR 25.003.
In Team Waste Gulf Coast, LLC, an unsuccessful post-award protest challenging the SBA OHA's prior decision upholding a size determination finding affiliation through negative control, the court held that: (i) the plaintiff had waived its right to raise an argument in court not first presented at the OHA; and (ii) an Operating Agreement contained several provisions that gave one firm the power to exercise negative control over another and, therefore, the firms were affiliated for size determination purposes.
In Centerra
Group, LLC, an unsuccessful post-award protest, the court held that: (i) a solicitation did not require offerors to base
their proposed staffing plan levels on those of the incumbent, and there
was a rational basis in the record for the Government's evaluation of the
awardee's "leaner" staffing plan; (ii) the solicitation required the price
analysis only to determine whether the offered prices were reasonable and
balanced and did not require the additional analysis of the performance
risk associated with price as advocated by the protester; and (iii) the
conclusion in the tradeoff analysis that the protester's technical
superiority was not sufficient to justify its higher price was consistent
with the evaluation criteria. In
Walden Security, an unsuccessful post-award protest, the
court held that, after multiple rounds of
corrective action following prior GAO protests, the agency: (i)
had carefully considered all past performance information
concerning the protester and the awardee and had reasonably
concluded the proposals were essentially equal in this
evaluation factor; and (ii) had reasonably concluded that, while
both proposals had earned a technical rating of "Good," the
awardee's proposal included discriminators that rendered it
superior to the protester's proposal and that justified paying a
slight premium for the additional benefits of the awardee's
proposal. In
Harmonia Holdings Group, LLC, an
unsuccessful post-award protest, the court held that:
(i) the agency's conclusion that the protester's price was unrealistically
low had a rational basis in the record; (ii) the protester's unbalanced
pricing was not the fault of any error in the information provided with
the solicitation, and the evaluators had a rational basis for assessing
the protester's expertise and apparent understanding of the contract (or
lack thereof) in light of the unbalanced pricing; (iii) there were
rational bases for the agency's assignment of weaknesses to several
aspects of the protester's technical proposal; and (iv) various
"assumptions" listed in awardee's proposal were not exceptions to the
solicitation's requirements, but were intended to illustrate the awardee's
understanding of the solicitation. In
Ernst & Young, LLP, a successful post-award protest, the
court held that the VA's conduct of a
procurement was seriously flawed in several ways, including: (i)
the Contracting Officer's violation of FAR 9.504(a) by failing
to identify, evaluate, and mitigate a significant unequal access
to information OCI involving the eventual awardee; (ii)
the VA's improper assignment of weaknesses to areas of the
protester's proposal that complied with the solicitation's
stated requirements; (iii) the evaluators' improper decision to
credit the awardee with the corporate experience and past
performance of a proposed subcontractor that it did not list as
a major subcontractor, which was a solicitation requirement for
receiving such credit; and (iv) the Contracting Officer's
decision not to conduct discussions, which violated FAR
1.102-2(c)(3), because, inter alia, the proposals of four
offerors demonstrated a lack of understanding of key parts of
the solicitation, which should have alerted the Contracting
Officer to the possibility of problems with the solicitation and
the need for clarifications through discussions.
In Iron Bow Technologies, LLC, an unsuccessful preaward protest, the court held that the agency's decision to eliminate the protester from a competition was based on a risk assessment conducted in accordance with the terms of the RFQ, as a result of which the agency reasonably concluded that the protester's quotation presented an unacceptable supply chain risk to the Government.
In Pinnacle Solutions, Inc., an unsuccessful protest primarily against the protester's exclusion from the competitive range but also against the evaluation of the successful offeror's proposal, the court held that, overall, the protester had failed to establish prejudice because, inter alia: (i) there were reasonable bases for the numerous weaknesses assigned to the protester's proposal under the Mission Suitability subfactors; (ii) the agency's decision not to assign strengths to the protester's Management Approach was reasonable; (iii) the evaluations of the protester's proposal under the (a) Technical Approach and (b) Safety and Health subfactors and under the Past Performance factor were reasonable; (iv) the agency's evaluation of the successful offeror's proposal was reasonable; and (v) the protester failed to establish unequal treatment in the evaluation of proposals.
In
American Correctional Healthcare, Inc., a successful
post-award protest, even though the protester lost on, or
waived, most of its protest grounds, the court
held that the agency had failed to evaluate the diversity of
services offered by the competitors on an equal basis because it
credited the awardee with offering a specific type of service
that the protester's proposal clearly stated was not available
in this situation without investigating whether the protester's
position was correct.<
In its protest,
Kiewit Infrastructure West Co. utilized the scattergun
strategy of contesting almost every aspect of the evaluation and
lost on all of them when the court held,
inter alia,
that: (i) the SSA's consideration of
unit prices and cost risks in its tradeoff analysis was not
inconsistent with the solicitation's requirements; (ii) the SSA's mention of
the cost savings associated with the awardee's proposal was inconsequential in relation to
its principal
determination that the awardee's "vastly superior" technical
proposal was worth its slight price premium; (iii) the agency adequately
explained the protester's "Good" rating in a technical factor and was
not required to explain why the protester's responses to discussion
questions had not raised its rating to "Outstanding";
(iv) the agency
adequately explained the ratings of the awardee's proposal in
several areas; and (v) the protester
had failed to establish that the agency had evaluated the proposals
disparately.
In
Tetra Tech, Inc., an unsuccessful post-award protest, the
court rejected the protester's challenges to
the evaluations of its own and the awardee's proposals in the
areas of Key Personnel (e.g.,
the ratings of the programs managers proposed by both parties
based, in large part, on their ability to "innovate"), Past
Performance (the past contracts of the awardee that the agency
chose to evaluate), and Corporate Experience (the contracts the
agency chose to examine to evaluate both the awardee's and the
protester's experience). To me, the closest call was the court's
determination that the evaluators' focus on the ability of the
proposed program managers to innovate did not constitute an
unstated evaluation criterion. The solicitation did not use the
term "innovation" with regard to the program manager's required
qualifications so I'm not sure how the offerors were supposed to
know it was to be (such an especially large) part of their
evaluation.
In
Technik, Inc., an unsuccessful post-award protest, the
court held that: (i) the agency's Marginal rating of
the protester's proposal was rational because the proposal did
not clearly commit to meeting one of solicitation's staffing
requirements; and (ii) no tradeoff analysis was required because
the awardee's proposal was both higher rated and lower priced
than the protester's.
In
Trans Digital Technologies, LLC,
an unsuccessful post-award protest, the court held that: (i) the
careful wording of the protest could not obscure the fact that
the protester had waived its right to challenge a solicitation
amendment that eliminated certain test results from
consideration by agency in its evaluation; (ii) the protester
was not prejudiced by any agency errors in the technical
evaluation of previous demonstrated production experience; and
(iii) the court would not second-guess the agency's decision to
choose the significantly higher-priced offer where the
solicitation warned that technical factors were more important
than price.
In
Chenega Healthcare Services, LLC,
an unsuccessful post-award protest, the court held that: (i)
where the solicitation called for award without discussions, the
agency was not required to consider the protester's substitution
of its proposed Project Manager after proposals were due; and
(ii) the plaintiff had waived its argument that the
clarifications sought by agency were actually discussions that
were not meaningful because it did not raise this protest ground
until it filed its reply brief in court. In
General Dynamics Mission Systems, Inc. an unsuccessful
post-award protest, the court reluctantly
held, inter alia, that it must follow binding CAFC precedent requiring deference to
an agency's technical evaluation and, therefore, must let stand
the agency's tradeoff evaluation that the awardee's lower price outweighed
a technical flaw in the awardee's proposal which, if it materialized
during performance, would result in a safety issue, described by
the evaluators as follows: "the impact of a failure would
be devastating, throwing hundreds of TSE offline and delaying
the screening operations for the checkpoints." The court
practically begged the CAFC to take the case on appeal and review its
standard in this area: The . . . Court of Appeals for the Federal Circuit has held
that 'technical ratings . . . involve discretionary
determinations of procurement officials that the court will
not second guess.' E.W. Bliss Co. v. United States,
77 F.3d 445, 448 (Fed. Cir. 1996) (emphasis added)[Footnote
omitted]. Adherence to this precedent, however, requires the
court to exempt technical evaluations from traditional
Administrative Procedure Act review. Therefore, if the United
States Court of Appeals for the Federal Circuit has an occasion
to reconsider that directive, either on appeal of this or
another case, it is suggested that the Court clarify that
technical ratings, particularly in cases where a mistake in
agency judgment could jeopardize the safety of the public, are
not entitled to absolute deference, even where the agency
conducts a “best value” tradeoff in awarding a contract. In
Price Gordon Services d/b/a Veteran National Transportation, LLC,
an unsuccessful post-award protest based largely on the
protester's belief that the agency had evaluated it unfairly due
to its performance issues on the predecessor contract, the Court
of Federal Claims: (i) denied the protester's request for
discovery to supplement the administrative record because that
request was based on allegations of the Government's bad faith
and bias that, in the court's view, actually were
"self-inflicted deficiencies in plaintiff's proposal rather than
improper motives on the part of the" Government's evaluators;
(ii) held that there were reasonable bases for the weaknesses
the Government assigned to various aspects of of the protester's
technical proposal; (iii) found no evidence of bias or bad faith
in the Government's Past Performance evaluation, including
the fact that the evaluator's write-up concerning the
protester's Past Performance was lengthier than that of its
competitors; and (iv) held that (a) the solicitation did not
require a price realism analysis and (b) the agency had
conducted an appropriate price reasonableness analysis.
In
DZSP 21, LLC, a successful post-award protest, the court held
that: (i) the agency was required to amend the solicitation
because its requirements had changed during multiple prior protests
and bridge contracts; (ii) the Past Performance evaluation
was flawed because the agency failed to take into account
protester/incumbent's work on those bridge contracts; and (iii)
the agency's re-evaluation, which changed the awardee from
the incumbent/current protester to the prior protester lacked a rational basis
for its changed conclusions. In
Advanced
Management
Strategies
Group,
Inc./Reefpoint
Group,
LLP, a successful post-award
protest, the court held that the agency had erred in crediting the awardee
with the experience of a subcontractor that would perform less than 3% of
the work.
In
2M Research Services, LLC, a successful post-award protest, the court
held that: (i) the procuring agency violated the specific terms of the
solicitation by including the eventual awardee's proposal in the
competitive range even though it was clearly noncompliant on its face with
the solicitation's Limitation on Subcontracting provision; (ii) the
awardee's Staffing proposal "did not meet the most basic of requirements
in order to [merit its] 'Superior' rating--it was not almost devoid of
risk"; and (iii) the agency did not evaluate proposals on a fair and equal
basis because it "repeatedly overlooked deficiencies in [the awardee's]
proposals, relaxed Solicitation requirements, and amended its Technical
Evaluation in favor of" the awardee.
In DynCorp International LLC, the court largely echoed the GAO's earlier decision denying a protest and held, inter alia, that the agency's responsibility determination regarding the successful offeror and its Past Performance evaluations of the protester and the successful offeror were reasonable.
In Ultra Electronics Ocean Systems Inc., an unsuccessful preaward protest against the agency's rejection of the protester's proposal as unacceptable, the court held that: (i) there was a rational basis for the agency's finding that the protester's technical proposal was unacceptable because, despite being given an opportunity to do so during discussions, the protester failed to comply with the solicitation's requirement that it describe how it would meet the launch trajectory requirements; (ii) any ambiguity in the terms associated with the launch trajectory requirements was patent and should have been protested before the proposal was submitted and negatively evaluated; and (iii) the agency was not required to evaluate the proposal on the current procurement in the same manner as it had on a prior procurement, especially where the protester did not establish the two procurements were identical.
In Criterion Systems, Inc., an unsuccessful post-award protest, the court held that: (i) a discrepancy in the protester's proposal was not the type of discrepancy concerning which the solicitation required the Contracting Officer to seek clarification; (ii) the Contracting Officer had no reason to seek clarification of documents missing from a proposal when there was nothing to suggest the omission was unintentional, and, indeed, the circumstances suggested the protester had intended to omit the documents; and (iii) the Contracting Officer did not abuse his discretion in refusing to waive the omission of the documents (which were clearly required by solicitation) as a minor informality.
In consolidated, unsuccessful, post-award protests by RX Joint Venture, LLC, and TISTA Science and Technology Corp., the court held, inter alia, that: (i) the Contracting Officer had no duty to seek clarification concerning the protester's ability to satisfy the CAS certification requirement because there was no indication that any documents were inadvertently missing from the proposal, not even a reference to them its Table of Contents; (ii) in alleging the Government lost a portion of its proposal, the protester failed to meet its burden of proof, i.e., to present clear and convincing evidence to overcome the presumption of regularity in the Government's actions; (iii) the protester failed to establish the Government had inadequately safeguarded the proposals in its possession; (iv) certain information alleged to support the protest was not available the time of the procurement decision being protested.
In RCF Information Systems, Inc., another unsuccessful post-award protest, the court held that: (i) the Contracting Officer was not required by the solicitation for firm, fixed-price IDIQ contracts to conduct a cost realism analysis to determine whether the salaries proposed by offerors would be too low to attract the incumbent/protester's workforce; (ii) the evidence did not support the protester's contention that agency had used an undisclosed mandatory minimum staffing requirement in evaluating proposals; and (iii) even if there had been a mandatory minimum, such minimums are used to reject proposals that do not meet them, and the protester was as not prejudiced because its proposal exceeded the alleged minimum.
In Technical & Management Resources, Inc., an unsuccessful post-award protest, the court held that: (i) the Contracting Officer's analysis of the protester's justification for proposing labor rates outside of DOL ranges was not required to be supported by additional documentation because the Contracting Officer had concluded that the protester had not provided any justification for its proposal in this regard; and (ii) there were rational bases for various aspects of the evaluation that led to the conclusion that the protester had not proposed fair and reasonable pricing.
In Dynanet Corp., another unsuccessful post-award protest, the court: (i) rejected the protester's contention that the Contracting Officer erred by deducting evaluation points relating to the protester's cost accounting system without contacting the DCAA to see whether the system was approved because the Contracting Officer had sufficient information to know that the relevant DCAA audit had not been completed and, thus, the system could not have been approved; and (ii) denied the protester's equitable estoppel argument because the Contracting Officer had not done anything improper upon which the contractor had relied.
In
MSC Industrial Direct Co., an unsuccessful post-award
protest, the Court of Federal Claims held that: (i) there was a
rational basis for the Government's decision to eliminate the
protester's proposal from consideration for failure to submit an
item with its quotation that was a "material element" clearly
required by the solicitation, which the Government needed in
order to perform its technical evaluation; and (ii) under the
Blue & Gold Fleet standard, the protester had waived
its claim that the solicitation should have been canceled
because it knew or should have known of the issue before a new
new contract (BPA) was awarded but had failed to object until
after that award.
In Ernst & Young, LLP, a successful post-award protest, the court held that the VA's conduct of a procurement was seriously flawed in several ways, including: (i) the Contracting Officer's violation of FAR 9.504(a) by failing to identify, evaluate, and mitigate a significant unequal access to information OCI involving the eventual awardee; (ii) the VA's improper assignment of weaknesses to areas of the protester's proposal that complied with the solicitation's stated requirements; (iii) the evaluators' improper decision to credit the awardee with the corporate experience and past performance of a proposed subcontractor that it did not list as a major subcontractor, which was a solicitation requirement for receiving such credit; and (iv) the Contracting Officer's decision not to conduct discussions, which violated FAR 1.102-2(c)(3), because, inter alia, the proposals of four offerors demonstrated a lack of understanding of key parts of the solicitation, which should have alerted the Contracting Officer to the possibility of problems with the solicitation and the need for clarifications through discussions.
In KPMG LLP, the court denied the protester's motion for a preliminary injunction in part because the court found that the plaintiff was unlikely to succeed on the merits of its contentions that the Government had treated the plaintiff and the awardee disparately in determining whether either of them was subject to, or impacted by, alleged OCIs.
Sole Source/Small Business/Restricted Competitions
In Sigmatech, Inc., an unsuccessful protest against the decision to set aside a procurement for small businesses, the court held that: (i) the Rule of Two analysis does not require a Contracting Officer to determine the responsibility of particular firms before a solicitation is issued; and (ii) multiple responses to a market research RFI provided the Contracting Officer with sufficient facts to form a reasonable expectation that offers would be obtained from at least two responsible small business concerns and that award would be made at a fair market price. Subsequently, the court denied the protester's motion for an injunction pending its appeal of the court's decision.
In SKC, LLC, an unsuccessful protest by the incumbent small business contractor against the agency's decision to designate what would appear (to lay eyes at least) to be a follow-on procurement as sole-source under the SBA's 8(a) program, the court held that: (i) the agency had not previously expressed publicly a clear intent to award the contract as a small business set-aside under 13 C.F.R. 124.504(a), even though it had come awfully close to doing so; and (ii) the agency's interpretation that the procurement was a "new" requirement that did not require an adverse impact analysis under 13 C.F.R. 124.504(c)(ii)(C) was not clearly erroneous, even though the agency had cycled through several interpretations of the regulations in the course of the dispute before finally settling on one that would justify its position.
In Global Dynamics, LLC, which arose after multiple GAO protests on a procurement and multiple attempts at corrective action by the agency, the court held that: (i) the agency had not adequately explained why it was necessary to award a fifth sole-source bridge contract after the agency's unexplained delays in meeting its own projected timeline for conducting corrective action (and, therefore, the court gave the agency only 30 days to provide such an explanation, if it could); and (ii) the doctrine of laches barred the plaintiff's challenge to the prior GAO decision on the underlying protest that had been adverse to plaintiff, because the plaintiff had decided not to challenge that GAO decision until after another problem arose, i.e., the agency's subsequent decision to cancel the procurement (a decision the agency, still later, rescinded). Subsequently, the court held that the agency's proffered excuses (lack of adequate staffing, presence of other matters requiring attention, informal indications of increased requirements) failed to justify the agency's delays in completing its corrective action. Still later, however, the court held that the plaintiff was not entitled to a permanent injunction against completing the fifth bridge contract because of the very brief time remaining on it.
In Veterans Contracting Group, Inc., an unsuccessful preaward protest, the court: (i) dismissed the protester's challenge to the cancellation of a solicitation because the protester already had lost on that issue in a prior case at the court; and (ii) held that the protester had not alleged sufficient facts to call into question the Contracting Officer's Rule of Two analysis, which had resulted in broadening the resolicitation from an SDVOSB set-aside to a competition open to all small businesses.
In SupplyCore, Inc., an unsuccessful protest involving a solicitation for the acquisition, warehousing, and distribution of aircraft and ground transportation tires to the military, the court held that the Contracting Officer's designation of NAICS services code 493190 (Other Warehousing and Storage) for the procurement, which was subsequently affirmed by the SBA's OHA, was rational because, even though the cost of purchasing the tires was the major cost of the procurement overall, the contractor's purchases were just pass-throughs at set prices that were immediately reimbursed by the Government, and, therefore, the "principal purpose" of the contract was not the procurement of supplies.
In Veterans Technology, LLC, a successful protest with a complicated history, the court reversed and vacated a prior decision by the SBA's OHA (which, itself, had reversed an Area Office determination finding no affiliation based on economic dependence between firms) because the OHA had applied the wrong legal standards in reviewing the Area Office's determination and in carrying out the court's prior order as to the steps to be taken by the Area Office on remand, i.e., "to conduct a new size determination specifically to ascertain whether the actions of [the Government] were the cause of [two firms] entering into a subcontracting relationship . . . , as well as to consider evidence proffered by" one of those firms that it was not dependent on the other.
In
Senter, LLC, an unsuccessful protest, the
court held that there was a rational basis in the record for
the SBA's determination that the protester was not eligible for
an 8(a) set-aside award because its joint venture was not
unpopulated, as it was required to be by 13 C.F.R. 121.103(h). In
CR/ZWS LLC, an unsuccessful
protest upholding the SBA's determination that a joint venture was
ineligible for an 8(a) award, the Court of Federal Claims, rejecting,
inter alia, several challenges to the procedure the SBA had
used in making its ineligibility determination, held that the 8(a)
member of the joint venture brought little besides its 8(a) status to
the contract at issue and "the equipment, expertise, and experience
necessary for performance of the contract would be supplied almost
exclusively" by the non 8(a) member, which was also the incumbent
contractor.
In its latest decision on the
Global Dynamics, LLC protest, the court
held that, although the plaintiff had
previously prevailed on its claim that a fifth sole-source
bridge contract pending the completion of corrective action was
improper, the plaintiff was not entitled to a permanent
injunction against completing the bridge contract because of the
very brief time remaining on it.
In Ideogenics LLC, the court rejected a challenge to a prior decision by the SBA's OHA finding affiliation via application of the ostensible subcontractor rule to the relationship between the protester and two of its proposed subcontractors, which rendered the protester other than small for purposes of a contested HUD procurement.
In American Relocation Connections, L.L.C., an unsuccessful preaward protest involving a complex analysis of a multitude of FAR and SBA regulations, the court held that the agency had conducted adequate acquisition planning and market research, with due regard to applicable SBA regulations, before deciding to issue a solicitation for employee relocation services as an unrestricted procurement under the FSS program rather than one restricted to small businesses.
In BTR Enterprises of SC, LLC, an unsuccessful preaward protest, the court held that the VA had a rational basis for canceling a firm's status as a verified SDVOSB in the VetBiz database after a solicitation was issued because representations made by the veteran (in order to obtain disability benefits) that he had PTSD and was unable to work directly conflicted with the representations he made to show he was in day-to-day control of the business for purposes of achieving status as a verified SDVOSB.
Corrective Action
In HESCO Bastion Ltd., an unsuccessful protest, the court held that an agency's decision to undertake corrective action to eliminate unduly restrictive requirements that could be met only by the protester's product was "eminently reasonable."
In ARxIUM, Inc., a successful post-award protest, the court held that it was improper for the agency to remove the protester from the competitive range during corrective action following a GAO protest, because the agency retroactively adopted the GAO's interpretation of a latently ambiguous solicitation term without conducting discussions or allowing revised proposals. Subsequently, in ARxIUM, Inc., another success by the same protester, the court held that the protester was entitled to recover its bid and proposal costs because, despite the prior successful protest against the agency's removal of the protester from the competitive range, the solicitation was structured in such a way that it was impossible for the protester to access information necessary to meet one of its requirements.
In Coast Professional, Inc., et al., the court granted the agency's motion to dismiss the plaintiff's complaints in consolidated post-award protests because the agency's voluntary corrective action was rationally related to the alleged defect in the procurement, adequately addressed that defect, and, therefore, rendered the plaintiffs' complaints moot.
In DZSP 21, LLC, a successful post-award protest by the incumbent/original awardee (after a five-year history including four successful GAO protests by a challenger to the award and three rounds of corrective action by the agency, the first two of which confirmed the original award and the final one switching the award to the challenger), the court held that: (i) the Government had improperly adopted the GAO's (erroneous) interpretation of the challenger's proposal to assign it a strength not merited by the language of the proposal; and (ii) in the most recent round of corrective actions, which finally overturned the original award, the Government lacked a rational basis for its upward adjustment of the incumbent's proposed cost. The upshot was that the court set aside the award to the company that had prevailed repeatedly at the GAO and directed the agency to conduct a new evaluation or, at its option, to conduct a new solicitation.
In Centerra Group, LLC, a successful post-award protest that begs the question how the agency could have believed it would get away with this, the court held that, during a voluntary remand to accomplish corrective action following the original protest, the agency conducted discussions only with the original awardee (resulting in material changes to improve the awardee's proposal) in a transparent attempt to justify the original award.
In Quantum Research International, Inc., an unsuccessful protest of the agency's corrective action following a prior protest, the court held that: (i) the agency justifiably downgraded the protester's proposal for ignoring a clear solicitation requirement; (ii) the agency's evaluators were not required to list every item proposed by the offerors in evaluating their proposals and, therefore, cannot be faulted for failing to specifically mention two items related to the awardee's proposal, especially when the protester also was not faulted by the evaluators for not specifically addressing two items in its own proposal; and (iii) the agency had a rational basis for accepting the awardee's explanation of an initially confusing part of its proposal.
In FMS Investment Corp, et al., a successful protest against an agency's decision to cancel a solicitation for the collection of defaulted student loans after the agency had begun implementing corrective action in response to an earlier protest, the court held that the document intended to justify the cancellation on the basis of a purported change in the agency's acquisition vision was "slipshod" and lacked a coherent explanation for the cancellation. Subsequently, the court s granted the Government's motion to clarify the court's decision and held that the Government was enjoined only from cancelling on the basis of the administrative record the Government had relied on in the prior protest, but might still cancel if a different, legal, sufficiently supported reason justified it.
In Ideal Industries, Inc., an unsuccessful post-award protest, the court held that the agency's corrective action (terminating the plaintiff's contract and soliciting another round of offers after revising the original solicitation) was reasonable because the agency had determined that the original solicitation, which involved adequate price competition, had solicited cost data that was not required by FAR 15.403 (and the agency originally had rejected the low offeror for failing to provide that unnecessary data).
EAJA/Fees/Costs
In A Squared Joint Venture, an unsuccessful protest against disqualification from a competition due to an unequal access to information OCI, the court held that: (i) the Contracting Officer did not delay in identifying and investigating the potential OCI; (ii) the Contracting Officer's OCI findings were based on "hard facts," e.g., the protester's employees' access to the sensitive competitive information of a competitor; and (iii) FAR 9.504(e) does not apply in this case because it only covers the disqualification of the apparently successful offeror, and this disqualification occurred before the awardee was selected.
In General Dynamics Mission Systems, Inc., the court "reluctantly" entered a TRO (without requiring any bond) against permitting further performance by the awardee for a brief period to allow the court time to review the parties' submissions on the merits, the court acknowledging that, because of its heavy workload, it had not yet determined whether the plaintiff was likely to succeed on the merits but had concluded the the Government would be harmed more by the TRO than the plaintiff would be without it. Similarly, In FMS Investment Corp., et al., the court issued a preliminary injunction against the Government's recall of the incumbents' work pending the resolution of the protest, stating that the court had determined the plaintiffs were likely to succeed on the merits (one of the prerequisites for an injunction) without detailing any of the facts or analysis that led it to that conclusion.
In FMS Investment Corp., et al., upon a motion by one of the intervenor/awardees, the court disqualified the law firm representing one of plaintiffs in a post-award protest due to a conflict of interest involving that plaintiff and the intervenor.
In KGL Food Services WLL, the court denied a third party's motion to intervene as an interested party in the original awardee's protest of the procuring agency's corrective action because the party seeking to intervene was not an offeror on the original procurement.
In IAN, Evan & Alexander Corp., a successful post-award protest, the court issued a permanent injunction against performance under a contract modification it found to be outside the scope of the original competition and, therefore, in violation of CICA's competition requirements.
In FMS Investment Corp, et al., a successful protest against an agency's decision to cancel a solicitation for the collection of defaulted student loans, the court held that the document intended to justify the cancellation on the basis of a purported change in the agency's acquisition vision was "slipshod" and lacked a coherent explanation for the cancellation. Subsequently, the court granted the Government's motion to clarify the court's decison and held that the Government was enjoined only from cancelling on the basis of the administrative record the Government had relied on in the prior protest, but might still cancel if a different, legal, sufficiently supported reason justified it.
In Electra-Med Corp., et al., an unsuccessful protest, the court held that (although contract modifications violated both CICA and the VA's Rule of Two requirement and were not adequately justified by a J&A) the court would not enjoin performance because the public's interest in the uninterrupted delivery of high quality health care to veterans outweighed the harm to the plaintiffs. Still, the court's displeasure with the state of the governing legislation and regulations is palpable:
Court of Appeals for the Federal Circuit
In AgustaWestland North America, Inc., the CAFC vacated a preliminary injunction previously issued by the CoFC and reversed the CoFC's protest decision because, contrary to the lower court's findings: (i) Army Order 109-14 was not a procurement decision subject to review; (ii) the administrative record had not required supplementation, especially not sua sponte by the lower court (because the original record was sufficient for a decision); and (iii) the sole source J&A for the purchase of helicopters from a specified vendor was not arbitrary and capricious, but had a rational basis.
In Cleveland Assets, LLC, the CAFC affirmed the COFC's prior decision (i) dismissing one count of a preaward protest because it was based on an appropriations act and not a procurement statute, and (ii) determining that the rental cap in a solicitation for lease proposals had a rational basis in the record. Then, over a dissent, the CAFC denied the protester's request for en banc reconsideration of the court's decision. The protester originally had argued that the terms of a Request for Lease Proposals (RLP) issued by the GSA exceeded its authority to solicit offers under a specific provision of an appropriations act (40 U.S.C. 3307). In affirming the lower court's dismissal, the CAFC stated that, by its "plain language," the jurisdictional statute (28 U.S.C. 1491(b)(1)) covered only an "alleged violation of statute or regulation in connection with a procurement or proposed procurement." Therefore, in the court's view, because 40 U.S.C. 3307 was not a "procurement statute," it could not be the basis of 1491(b)(1) jurisdiction. However, 1491(b)(1) does not state that jurisdiction depends upon an alleged violation of a "procurement statute." It covers an alleged violation of "a statute" in connection with a procurement. So, the issue should have been whether this situation involved a "procurement," not whether it involved a "procurement statute." And the recitation of the facts by the court shows that this clearly was a procurement, complete with a request for proposals, evaluation factors for award, etc. In fact, in another section of the opinion, where the court analyzes another count of the Complaint and finds a rational basis for the agency's decision on how to structure the solicitation, the court repeatedly refers to the deference courts pay to the actions of "procurement officials," including, as the court notes, those involved in this RLP.
In Progressive Industries, Inc., the CAFC affirmed the CoFC's prior decision (i) finding that appellant's motion under Rule 59(e) to alter or amend a prior judgment was untimely filed and (ii) denying appellant's request for relief from judgment under Rule 60(b)(6) because the appellant could have raised its concerns before the original judgment was issued.
In Geiler/Schrudde & Zimmerman, A Joint Venture (GSZ), et al., a decision labeled as nonprecedential, the CAFC affirmed the CoFC's prior decision dismissing a protest for lack of subject matter jurisdiction because the VA's revocation of the firm's SDVOSB status after its SDV owner died did not occur in connection with a specific procurement or proposed procurement.
In CliniComp International, Inc., the CAFC affirmed the CoFC's previous dismissal, for lack of standing, of the protester's challenge to a proposed sole-source award because the protester did not have the capabilities to perform the contract requirements if the competition had been opened.
In Palantir USG, Inc., the CAFC upheld a prior CoFC decision granting an injunction because, in issuing the contested solicitation, the agency had failed to adequately consider whether its needs could be met by a commercial item in accordance with the requirements of 10 U.S.C. 2377(c).
EvaluationsIn Strategic Business Solutions, Inc., a decision labeled as nonprecedential, the CAFC affirmed the prior decision by the CoFC that the procuring agency had a rational basis for rejecting a proposal because the protester failed in multiple instances to comply with a solicitation requirement to submit redacted copies of certain portions of its proposal.
Sole Source/Restricted Competition
In AgustaWestland North America, Inc., the CAFC vacated a preliminary injunction previously issued by the CoFC and reversed the CoFC's protest decision because, contrary to the lower court's findings: (i) Army Order 109-14 was not a procurement decision subject to review; (ii) the administrative record had not required supplementation, especially not sua sponte by the lower court (because the original record was sufficient for a decision); and (iii) the sole source J&A for the purchase of helicopters from a specified vendor was not arbitrary and capricious, but had a rational basis.
In PDS Consultants, Inc., the CAFC affirmed the prior CoFC decision that the VA is required to use a Rule of Two Analysis to determine whether to restrict competitions to VOSBs even when the goods or services being procured are on the AbilityOne list subject to the Javits-Wagner-O'Day Act.
In Continental Service Group, Inc., et al., a decision labeled as nonprecedential, the CAFC: (i) upheld the portion of the CoFC's prior bid protest ruling preliminarily enjoining the awardees from performing; but (ii) reversed the portion of the same ruling enjoining the agency from transferring the work to be performed under the protested contract to other contracting vehicles in order to circumvent or moot the protest.
In Dell Federal Systems, L.P., et al., the CAFC reversed the prior CoFC decision and upheld the agency's decision, after the original award announcement had been made (including the disclosure of the winning prices), to take corrective action by disclosing all offered prices (to level the playing field), reopening discussions, and soliciting revised proposals.
In Level 3 Communications, LLC., the CAFC reversed the prior decision by the CoFC that had sanctioned the Government's attorney for violations of the duty of candor to the lower court.
In Starry Assocs., the CAFC reversed the CoFC's prior decision and held that an agency’s improper or dilatory conduct during the administrative process that gives rise to litigation (here a bid protest) cannot constitute a "special factor" in section 2412(d)(2)(A) of the EAJA that would authorize a tribunal to increase the statutory attorney fee rate in an EAJA award.
SBA Office of Hearings and Appeals
Jurisdiction/Standing/Timeliness/Procedure
In Size Appeal of Conrad Shipyard, LLC, the OHA held that the Area Office had correctly: (i) dismissed (for lack of standing) a protest filed in the name of an entity that was not an offeror for the subject procurement; and (ii) rejected a subsequent (untimely) attempt to amend the protest because the size protest regulations do not permit such amendments.
In Size Appeal of AeroSage,
LLC, the OHA dismissed, as untimely,
an appeal filed more
than 15 days after appellant's receipt of the Area Office's size determination because
"OHA has no discretion to extend or waive the deadline."
In
Size Appeal of AeroSage,
LLC,
the OHA held that the Area Office had correctly dismissed a size
protest for lack of standing because, by refusing the Contracting
Officer's request to extend its offer acceptance period, the firm had
removed itself from the competition.
In
Size Appeal of Cliffdale
Mfg., LLC, the OHA held that a firm lacked standing to
appeal a size determination adverse to its wholly-owned
subsidiary.
In
Size Appeal of Elliott Aviation,
Inc., the OHA, inter alia, refused to consider
the appellant's allegation that
the challenged firm was not a manufacturer of the items being procured because
the protester had not made that allegation in its original size protest.
In
Size Appeal of GovSmart, Inc.,
the OHA held that the Area Office had correctly dismissed a size
protest involving a proposed 8(a) sole source award of a purchase
order for lack of standing because the protester was not an 8(a) firm
nominated for the award.
In
Matter of Island Creek,
Assocs., LLC, the OHA held that, because the
Contracting Officer did not request recertification of WOSB
status for a particular order, a protest not filed within five
days of notification of the apparently successful offeror on the
underlying multiple award contract was untimely. In
NAICS Appeal of
AMEL Technologies, Inc., the OHA dismissed, as untimely,
a NAICS
appeal filed
40 calendar days after issuance of the
RFP and 18 calendar days after issuance of most recent
RFP amendment.
In
NAICS Appeal of
K2 Aerial Application, LLC,
the OHA dismissed a NAICS appeal filed 13 days after
the issuance of the solicitation as untimely and also as moot because the
contract already had been awarded.
In
Size Appeal of ILKA Technologies,
Inc., the OHA dismissed a size protest for lack of standing
under 13 C.F.R. 121.1001(a)(1)(i)
because the protester's proposal had been determined to
be technically unacceptable by the Contracting Officer.
In
Size Appeal of AWA Business Corp.,
the OHA held that the Area Office correctly applied the adverse
inference rule in a size protest because the protested firm
failed to provide specific documents requested by the Area
Office that related to the firm's size and were necessary for a
decision on the protest.
In
Size Appeal of Arrow Moving &
Storage -- Mayflower Transit, the
OHA held that the Area Office
was correct in dismissing a protest as insufficiently specific because it
provided no evidence to support its allegation of affiliation through
common financial and administrative control and no evidence that, even
if there were affiliation, the combined receipts of the allegedly
affiliated firms exceeded the
applicable size standard.
In
Size Appeal of JEQ & Co., LLC, the SBA's OHA
held that: (i) the Area Office had correctly dismissed a protest as
insufficiently specific because it alleged only that the protested firm
was "not even small" without any supporting evidence; and
(ii) the OHA lacked jurisdiction
over an allegation that the challenged firm was not a HUBZone business.
Similarly, in
Size Appeal of JEQ & Co., LLC,
the OHA held it lacked jurisdiction over
allegations involving a HUBZone business certification. In still
another protest by the same firm,
Size Appeal of JEQ & Co., LLC,
the OHA held that: (i) the Area Office had correctly
dismissed a size protest for lack of standing because the protester's offer
had been found to be technically unacceptable; and (ii) the OHA lacks jurisdiction
to hear appeals involving HUBZone protests.
In another
Size Appeal of JEQ & Co., LLC,
at the appellant's request, the OHA dismissed an appeal because it was
not based on a size protest but rather upon on
a bid protest alleging that the contract award should have been made to
the appellant rather than
to the awardee.
In Size Appeal of Bid Solve, Inc., the OHA held that an appeal filed with OHA 20 days after the appellant's receipt of a size determination was untimely, even though the appellant had filed copies of the appeal with other required parties in a timely manner.
In Size Appeal of Advanced Management Strategies Group, Inc./ReefPoint Group, LLC, the OHA held that the Area Office correctly found that a size protest of the awardee of a BPA under long-term GSA Schedule contract was untimely where the Contracting Officer had not requested recertification of size in connection with the issuance of the BPA.
In NAICS Appeal of Credence Management Solutions, the OHA dismissed a NAICS appeal against the NAICS code designated for an order under a long-term contract because: (i) the regulations required the Contracting Officer to use that specific NAICS code; (ii) the appeal was untimely (by a long shot); and (iii) the appellant lacked standing since it was not an offeror.
In Size Appeal of Velocity Training, LLC, the OHA dismissed a size appeal as moot because it involved the ostensible subcontractor rule, which is a contract-specific issue, and the contract had been terminated in its entirety.
In Size Appeal of Navarre Corp., the OHA held that the Area Office had correctly dismissed a second size protest filed by the same protester on a procurement as untimely because it was filed long after the original notification of award, even though (a) the agency had conducted multiple rounds of corrective action in the interim as a result of GAO protests and (b) the size protester was making an allegation based upon facts that had not existed when original size protest was filed. The crucial point for the OHA was that the original award had never been cancelled (contract performance had just been suspended pending the resolution of the GAO protests and the corrective actions).
The OHA affirmed the dismissal of two protests as insufficiently specific because, in both instances, the protester originally had alleged only that the contested firms were not listed as SDVOSBs in the VA's VetBiz database, when the procurements at issue were not VA procurements and, therefore, no such listing was required. See XtremeConcepts Systems, VET-272 and VET-273.
In Size Appeal of Penn Enterprises, Inc., an interesting variation on the usually strict enforcement of the timeliness rules for size protests, the OHA held that the Area Office had erred in dismissing a size protest as untimely because (despite repeated requests for the information from the eventual protester), the procuring agency had refused to identify the apparently successful offeror until three weeks after an 11 p.m. bid opening (a late-hour event which the OHA indicated it did fault the protester for failing to attend in person).
In Size Appeals of DNT Solutions, LLC, and Alliant Solutions Partner, LLC, the OHA held that the certification information sought in a task order solicitation was not a request for recertification under a long term contract, but rather was intended to enable the procuring agency to ascertain which, if any, of the prime contractors were eligible for a particular evaluation preference included in the solicitation, so the Area Office should have dismissed a size protest filed after the issuance of the task order solicitation as untimely.
In Size Appeal of DB Systems Tech, Inc., the OHA granted a motion to dismiss an appeal because it failed to allege any mistake of fact or law in the Area Office's finding of affiliation under the ostensible subcontractor rule.
In Size Appeals of DNT Solutions, LLC, and Alliant Solutions Partner, LLC, the SBA's OHA held that the certification information sought in a task order solicitation was not a request for recertification under a long term contract, but rather was intended to enable the procuring agency to ascertain which, if any, of the prime contractors were eligible for a particular evaluation preference included in the solicitation, so the Area Office should have dismissed a size protest filed after the issuance of the task order solicitation as untimely.
Ostensible Subcontractor
In
Size Appeal of Jacob's Eye, LLC,
despite the apparent (and confusing) typos in the first two sentence of
its Conclusion, the OHA remanded the case to the Area Office for
further development of the record because, without a full copy of the
appellant's proposal, the record was insufficient to support the Area
Office's conclusion that the appellant had violated the ostensible
subcontractor rule.
In Size Appeal of Martin Bros. Construction, Inc., the OHA held that: (i) the protested firm had not run afoul of the ostensible subcontract rule because (a) it would be managing the day-to-day operations of the construction contract, which is the normal role for a small business prime contractor on a construction project, (b) there was no proof offered for allegations of its lack of bonding capacity, and (c) allegations of the prime's lack of experience were irrelevant since the solicitation did not require an evaluation of past performance and, thus, the agency would not have evaluated the experience of the alleged ostensible subcontractor in making an award decision; and (ii) the Area Office correctly rejected the protester's allegations of affiliation through identity of interest because: (a) the current regulations exclude in-laws from those relationships establishing an identity of interest, and (b) there was a clear line of fracture between the owner of the protested firm and his estranged wife, who was involved in an alleged affiliate.
In Size Appeal of Elevator Service, Inc., the OHA affirmed the Area Office's finding that, analyzing all the Dover Staffing factors, the protested firm did not run afoul of the ostensible subcontractor rule even though its proposed subcontractor was the incumbent that was not, itself, eligible for award and the challenged firm planned to hire a significant number of the incumbent's workers, because (i) the contract required experienced, licensed union workers, which limited the pool available for the protested firm to draw from, and (ii) the protested firm: (a) had relevant past experience of its own, (b) would supervise the work with its own managerial employees, and (c) would exercise managerial control over the day-to-day primary and vital contract requirements. Please note there is an obvious typo in the penultimate sentence of the OHC's decision. It states that the challenged firm is "an other than small" concern for this procurement. It should state that the firm is "small."
In Size Appeal of Synaptek Corp., a complicated case of first impression with a lengthy procedural history, the OHA upheld the Area Office's finding that the small business prime did not run afoul of the ostensible subcontractor rule because: (i) the two large business subcontractors would not be performing the contract's primary and vital requirements; (ii) the two small business subcontractors were similarly situated entities ("SSEs"), and the small business prime, with those SSEs, would be performing the contract's primary and vital requirements; and (iii) only one of the four factors in a standard ostensible subcontractor analysis was indicated here, i.e., the prime's reliance on its subcontractors' past performance experience, and the prime also had relevant past performance experience. The decision comes down to the policy behind the ostensible subcontractor rule because the OHA concluded that the large business subcontractors were not being utilized to evade the SBA's size regulations.
In Size Appeal of Jacob's Eye, LLC, the OHA held that the Area Office had correctly (i) identified the primary and vital contract requirements and (ii) concluded that the protested firm would violate the ostensible subcontractor rule because its offer noted its proposed large business subcontractors would perform essentially all those primary and vital contract requirements.
Other Miscellaneous Size Issues
In Size Appeal of Mistral, Inc., the OHA held that the Area Office had correctly concluded that a firm on a small business set-aside was a manufacturer of the end items (CATVs) because the firm would have to do extensive work to bring the supplied items up to the procuring agency's requirements, without which work the supplied items would be useless to the agency, and (especially since the solicitation did not require ownership of the manufacturing facilities), the fact that the firm would lease the manufacturing facilities did not mean it was not the manufacturer.
In
Size Appeal of Nordstrom
Contracting & Consulting Corp.,
the OHA held that, in computing
the challenged firm's size for a receipts-based size standard, the Area Office
correctly declined to consider: (i) a tax return for a fiscal year that
had not
been completed at the time of self-certification; and (ii) data from
USASpending.gov, because "there is no authority for an area office to
consider any evidence apart from tax returns (when they have been
filed) when calculating a firm's average annual receipts." In
Size Appeal of Melton Sales &
Service, Inc., the OHA held that, although the Area Office had
made significant errors in evaluating one alleged affiliate under the
minority shareholder rule, those errors were harmless because the
appellant had failed to establish the existence of additional affiliated
firms under the totality of circumstances and common management tests,
and, after aggregating the employees of the affiliated firms, the
protested firm was still small under the employee-based size standard
applicable to the procurement.
In Size Appeal of Hendall,
Inc., the OHA upheld the
Area Office's determination that the protester had failed to
demonstrate any deficiencies in the challenged firm's approved
mentor-protégé agreement or in its joint venture agreement.
In Size Appeal of National Security Assocs., Inc., the OHA held that, although the Area Office had erred in finding affiliation through common management despite multiple sworn declarations from the challenged firm to the contrary, the Area Office's additional finding of affiliation due to the totality of the circumstances was reasonable where there were multiple indicia of connections between two firms that together indicated control.
In Size Appeal of U.S. Army Corps of Engineers, the OHA upheld the Area Office's determination that the amount of work a dredging contractor was to subcontract did not run afoul of the admittedly ambiguous note 2 to 13 C.F.R. 121.201. The OHA interpreted that note by utilizing SBA's comments concerning it in the regulatory history.
In Size Appeal of CopaSat, LLC, the OHA upheld the Area Office's finding of affiliation through common management (individual who is majority owner, President and CEO of appellant is also Vice President and member of Board of Managers of affiliated company) despite the Area Office's (harmless) error in finding an additional basis of affiliation through identity of interest.
In
Size Appeal of Perry
Johnson & Assocs., the SBA's OHA affirmed the Area
Office's finding of affiliation on the basis of adverse inferences after
the challenged firm refused repeated clear requests to provide
additional information to the Area Office concerning its alleged
affiliations. The OHA noted in part:
Appellant was given numerous opportunities by the Area Office to
provide sufficient information to properly establish its size.
However, instead of providing the information the Area Office
requested and allowing the Area Office the chance to determine
its size, Appellant made a conscious decision not to provide the
Area Office with the information it requested, having been
warned that doing so could lead to a finding that Appellant is
not small.
In
Size Appeal of Crop Jet Aviation,
LLC, the OHA affirmed the Area Office's determination that
the evidence presented by the protested firm demonstrated that, although it
had engaged in discussions to merge with an allegedly affiliated firm, as
of the date when size was determined, such discussions had not yet reached
the stage of an agreement in principle to merge pursuant to
13 C.F.R. § 121.103(d).
In
Size Appeal of Level Access, Inc.,
the OHA upheld the Area Office's finding of affiliation based on
stock ownership, finding that: (i) the Area Office correctly drew an
adverse inference from the fact that the challenged firm did not
supply information on an allegedly affiliated concern clearly
identified by the protester in its size protest; and (ii) the Area
Office did not err in declining to find an identify of interest
among the challenged firm's employees and to aggregate their stock
ownership interests for purposes of deciding whether the alleged
affiliate's block of stock was large compared to others because the
challenged firm did not present evidence to establish that identity
of interest.
In
Size Appeal of Martin Bros. Construction, Inc., the OHA held that: (i)
the protested firm had not run afoul of the ostensible subcontract rule
because (a) it would be managing the day-to-day operations of the
construction contract, which is the normal role for a small business prime
contractor on a construction project, (b) there was no proof offered for
allegations of its lack of bonding capacity, and (c) allegations of the
prime's lack of experience were irrelevant since the solicitation did not
require an evaluation of past performance and, thus, the agency would not
have evaluated the experience of the alleged ostensible subcontractor in
making an award decision; and (ii) the Area Office correctly rejected the
protester's allegations of affiliation through identity of interest
because: (a) the current regulations exclude in-laws from those
relationships establishing an identity of interest, and (b) there was a
clear line of fracture between the owner of the protested firm and his
estranged wife, who was involved in an alleged affiliate.
In
Size Appeal of
Telecommunication Support Services, Inc.,
the SBA's OHA
held that the Area Office had erred in treating a Letter of
Intent (LOI) as an agreement in principle to purchase a
business, which should be given present effect under 13 C.F.R.
121.103(d); instead the LOI was only an agreement to negotiate
under certain parameters and, therefore, did not give rise to affiliation
In
Size Appeal of GC&V
Constr., LLC, the OHA held that the Area Office had
incorrectly interpreted a provision of an Operating Agreement
(which merely stated that members could take action by unanimous
consent in lieu of holding a meeting) as giving minority members
the power to exert negative control.
In Size Appeal of G&C
Fab-Con, LLC, the OHA held that
the Area Office erred in finding negative control because the Operating
Agreement provision at issue was identical to the provision previously
examined by the OHA in
Size Appeal of GC&V Constr., LLC.
The OHA held in
Size Appeal of Southern Contracting Solutions III, LLC,
that: (i) the Area Office had erred in finding a minority member
of a firm had the power of negative control because the
Operating Agreement only gave him the power to block
extraordinary actions, not actions essential to the daily
operation of the company; but (ii) the case should remanded to
the Area Office because it had not considered whether the
protested firm was affiliated with others through common
management because the firm's President also may have critical
influence, or the ability to exercise substantive control, over
additional firms.
8(a)/SDVOSB/WOSB Status
In Matter of Analytic Strategies, Inc. (which involved some contortions to interpret at least dense, if not conflicting, SBA regs), the OHA vacated the SBA's determination (and rejected the SBA's interpretation of its own regulations) and held that a firm that initially was qualified as an SDVOSB for a multiple-award, task-order contract was eligible for the award of a task order issued under that contract that was set-aside for SDVOSBs, even though it no longer qualified as such, because the Contracting Officer had not required recertification in connection with the solicitation for the task order award.
In Matter of ASIRTek Federal Services, LLC, the OHA upheld the SBA's determination that a firm was not an eligible SDVOSB for a procurement primarily because its joint venture agreement did not specify the members' responsibilities with respect to the SDVO contract at issue, or, indeed, any SDVO contract at all, but rather only for an unrelated 8(a) procurement.
In Matter of CE Green, Inc., the OHA held that, even though the protester was a WOSB, it lacked standing to protest the WOSB status of the apparently successful offeror in a procurement in which the protester did not compete.
In Matter of Corporate Portfolio Management Solutions, the OHA dismissed an appeal of the SBA's decision to terminate a firm from the 8(a) program due to conduct indicating a lack of business integrity for (a) its failure to pay money it owed to another company and (b) its failure to comply with an arbitration agreement (which had resulted in the entry of a civil judgment against it) because the OHA concluded that the terminated firm failed to raise any evidence at the OHA that the SBA's decision was arbitrary, capricious, or in violation of any law.
In Matter of BKM Global Corp., the OHA remanded the case to the Area Office because it had not adequately investigated the appellant's contention that, as of the date of certification, the service disabled veteran was the firm's "only" officer and exercised the requisite control.
In Matter of Hruckus, LLC, the OHA affirmed the SBA's denial of a firm's entry into the 8(a) program because the petitioner did not establish that his disabled veteran status and PTSD had resulted in (i) bias against him in employment and business history and (ii) social disadvantage.
NAICS
In NAICS Appeal of Noble Supply & Logistics, which involved a solicitation for a Contractor Operated Civil Engineering Supply Store at Andersen Air Force Base in Guam, the OHA rejected both the Contracting Officer's designation of NAICS code 561110 (Office Administrative Services), with a corresponding $7.5 million annual receipts size standard, and the Appellant's suggestion of NAICS code 332722 (Bolt, Nut, Screw, Rivet and Washer Manufacturing), with a corresponding 500 employee size standard, before settling on NAICS 332510 (Hardware Manufacturing), with a corresponding 750 employee size standard.
In In NAICS Appeal of Rollout Systems, LLC, which involved a Naval Air Systems Command, Naval Air Warfare Center Aircraft Division (NAWCAD) solicitation seeking a contractor to provide "full spectrum" IT engineering and management support services for the RDT&E Infrastructure Division of NAWCAD's Integrated Battlespace Simulation and Test Department, the OHA rejected both (i) the Contracting Officer's designation of NAICS code 541715 (Research and Development in the Physical, Engineering, and Life Sciences (except Nanotechnology and Biotechnology)--exception for Aircraft Engine and Engine Parts), with a 1,500 employee size standard, and (ii) Appellant's suggestion of NAICS code 541330 (Engineering Services), in favor of NAICS code 541513 (Computer Facilities Management Services), with a corresponding size standard of $27.5 million average annual receipts., which involved a solicitation for the expansion of the parking garage at a VA hospital, the OHA rejected the Contracting Officer's designation of NAICS 238120 (Structural Steel and Precast Concrete), with a corresponding $15 million average annual receipts size standard, in favor of NAICS 246220 (Commercial and Institutional Building Construction), with a corresponding $36.5 million annual receipts size standard.
In NAICS Appeal of Credence Management Solutions, the OHA dismissed a NAICS appeal against the NAICS code designated for an order under a long-term contract because: (i) the regulations required the Contracting Officer to use that specific NAICS code; (ii) the appeal was untimely (by a long shot); and (iii) the appellant lacked standing since it was not an offeror.
In NAICS Appeal of STG, Inc., which involved a solicitation for non-personal IT services and support requirements, the OHA affirmed the Contracting Officer's designation of NAICS code 541513 (Computer Facilities Management Services) over the incumbent contractor's suggestion of NAICS code 517311 (Wired Telecommunications Carriers), which was the code for the predecessor contract, in part because the term "telecommunications" did not appear anywhere in the PWS.
In NAICS Appeal of Integrity Consulting Engineering and Security Solutions, LC, where the solicitation was for acquisition and program management support services, the OHA held that the Contracting Officer erred in designating NAICS code 541330 ("Engineering Services") and its exception for Military and Aerospace Equipment and Military Weapons, when the appropriate NAICS code was 541611 ("Administrative Management and General Management Consulting Services"), although the OHA's decision does not apply to the current procurement, having been issued after proposals were due.
In NAICS Appeal of Veterans Electric, LLC, the OHA upheld the Contracting Officer's designation of NAICS code 236220 ("Commercial and Institutional Building Construction") in a solicitation for construction work to install a primary patient-to-staff communications and notification system for the Michael E. DeBakey VA Medical Center, as opposed to the protester's choice of NAICS code 238210 ("Electrical Contractors and Other Wiring Installation Contractors").
In NAICS Appeal of Technology Security Assocs., Inc., the OHA upheld the Contracting Officer's designation of NAICS code 541715 ("Research and Development in the Physical, Engineering, and Life Sciences") in a solicitation for cybersecurity solutions and support, as opposed to the protester's choice of NAICS code 541512 ("Computer Systems Design Services").
In NAICS Appeal of Curtin Maritime Corp., the OHA upheld the Contracting Officer's selection of NAICS code 561990 ("All Other Support Services") in a solicitation for the installation of a four-point offshore mooring system, as opposed to the protester's choice of NAICS code 237990 ("Other Heavy and Civil Engineering Construction").
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