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2019 Procurement Review: Protests
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The GAO published 38 decisions sustaining protests on the merits (some of which were originally dated in 2018 but not issued to the public as redacted versions until this year). The GAO issued a new (June 2019) edition of its Guide to Protective Orders.
In Ekagra Partners, LLC, the GAO held that a procurement was unduly restrictive of competition because the agency failed to provide a reasonable explanation for the inclusion of a solicitation term that prohibited a mentor-protégé joint venture from submitting a proposal as part of a contractor teaming arrangement that included additional subcontractors.
In Veterans4You, Inc., the GAO sustained a protest against the terms of a solicitation that had been issued without regard to the requirements of the Veterans Benefits, Health Care, and Information Technology Act of 2006 reserving certain contracting opportunities for SDVOSBs or VOSBs.
The GAO sustained one ground of a protest by Blue Origin Florida, LLC, against the terms of a solicitation contemplating two awards because the evaluation scheme would determine which pair of proposals possessed complementary strengths that would offer the best value. Under this system, because offerors would not know what other offerors proposed (absent collusion), they could not know on what basis their own offers would be evaluated.
Flawed Evaluation / Lack of
Meaningful Discussions
The GAO sustained a protest
by
Soft Tech
Consulting, Inc., because the agency's evaluation
documentation was inadequate to support its disparate
treatment of the quotations of the protester and the awardee
with regard to the solicitation's minimum experience
requirements for mid- to senior-level personnel.
Bristol Environmental Remediation Services, LLC
won its
protest because: (i) the agency conceded three of the five areas
it had identified as weaknesses in the protester's proposal were
erroneously labeled as such; (ii) the agency disparately
evaluated the protester's proposal and that of an awardee with
regard to one other of the five alleged weaknesses; and (iii)
the agency failed to alert the protester about the agency's
concerns with the final area of weakness, which was problematic
because the protester's proposed approach met the parameters of
the solicitation.
The GAO sustained a protest by
Cyberdata
Technologies, Inc., because there was no evidence in the
source source decision that the agency had looked behind the
adjectival ratings to evaluate the substantive strengths of
the competing proposals.
The Lioce
Group won its protest because the agency rejected its
proposal as technically unacceptable for failing to offer a
feature the solicitation only described as "highly desired."
Hope Village,
Inc., won its protest because the awardee failed to
provide proof of its right to use a facility in the form
required by the solicitation, and the record was devoid of
evidence the agency complied with the solicitation requirement
to assess the awardee's right to use the facility.
The
GAO sustained a protest by
Apogee
Engineering, LLC, because: (i) by failing to consider
the awardee's lower pricing in the context of its technical
approach, the agency conducted a flawed price realism analysis;
and (ii) the source selection authority found proposals
technically equal simply by comparing adjectival ratings without
qualitatively assessing the underlying merits of the proposals.
In
OGSystems, LLC,
the GAO sustained one of the protest grounds because neither the
contemporaneous record nor the agency's response to the protest
adequately explained how the risks originally assigned by the
evaluators to the awardee's technical proposal were resolved to
the agency's satisfaction.
The GAO sustained one of the protest grounds by
AlliantCorps,
LLC, because the agency waived a material past experience
requirement only for the awardee without notifying all the
competitors of the waiver. Subsequently,
based on additional information, the GAO
withdrew
its recommended remedies.
The GAO sustained a protest by
VariQ Corp.
because an offeror's quotation did not include sufficient detail
to show that a proposed key person met the minimum experience
requirements of the RFQ, and it was unreasonable for the
agency's evaluator to attempt to supply the missing details
based on the evaluator's own personal experiences in a job with
the same job title as the one listed in the resume.
Total Home
Health won on one of its protest grounds because the GAO
concluded that the agency had engaged in misleading discussions
by advising the protester that the agency was concerned with
three areas of the protester’s price in a manner that misled the
protester into believing a revision in only those three areas
would increase its chances for award.
The GAO sustained one of the protest grounds by
Barbaricum LLC,
because the record did not establish that the agency's evaluation
of the awardee's proposed labor hours and staffing plan as
technically acceptable complied with solicitation's evaluation
scheme.
Native Energy & Technology, Inc., won on one of its protest grounds because the agency's evaluators assigned strengths to the awardee's technical proposal for features not listed there, which the agency merely inferred the awardee would provide based on its work as the incumbent.
The GAO sustained a protest by Information International Assocs. because the agency unreasonably evaluated both: (i) the awardee’s proposal as containing a strength (where the added benefit identified by the agency was either not consistent with the terms of the solicitation or not adequately supported by the record); and (ii) the protester’s proposal as containing a weakness (where the awardee’s proposal was not materially different from the protester’s, and only the protester’s proposal was assessed a weakness).
BDO USA, LLP won its protest because the procuring agency determined the protester's proposal to be ineligible for award without considering certain relevant information submitted by the protester to establish it met the solicitation's facility security clearance requirements.
Peraton, Inc., won its protest because the reasoning behind the agency's conclusion that the awardee's proposal met the solicitation's requirement for small business participation was (i) inconsistent with the clear meaning of the solicitation concerning how such participation should be calculated and (ii) undocumented in the contemporaneous record.
The GAO sustained a protest by Valkyrie Enterprises, LLC, because the agency’s refusal to consider the protester's current payroll data was inconsistent with the cost realism evaluation methodology described in the solicitation.
The
GAO sustained several parts of a protest by
Harmonia Holdings
Group, LLC, finding that: (i) the agency's cost evaluation of
labor rates lacked a rational basis because it concluded the
difference between offered prices for an optional CLIN was
negligible based only on a small sample of the proposed labor
rates (with no explanation as to how that sample was selected)
and only for the base year of a task order that included four
one-year options, where the agency conceded the optional CLINs
were not an indication of what the final price would be and
where the agency did not take into account other differences in
the competing offerors' proposals that might affect the price
evaluation; (ii) the past performance evaluation of the
competing proposals was unreasonable because the evaluation
documents did not contain any discussion about whether and how
the agency followed the solicitation's requirements to evaluate
the degree to which the references identified by the competitors
were similar in size, scope, and complexity to the requirements
of the task order work identified in the solicitation; and (iii)
the agency's assignment of several weaknesses to the protester's
proposal in non-price areas was unreasonable, inconsistent with the terms of the solicitation, and inadequately documented,
especially where the agency's discussion of those ratings during
the protest was generally vague and did not meaningfully explain the
agency's assessment of these weaknesses.
ATA Aerospace, LLC won its protest against the agency's cost realism analysis because there was no basis in the record for the agency's conclusion that both the protester's and the awardee's proposed labor hours were consistent with historical data from the predecessor contract when one offeror proposed twice as many labor hours as the other did.
The GAO sustained a protest by Cognosante, LLC, because: (i) the agency did not evaluate final offers for price reasonableness, contravening FAR § 15.404-1(b)(2)(i); (ii) the agency's award of a strength to the awardee for its proposed method of crediting the agency for failure to propose qualified candidates in a timely manner was not reasonably related to the solicitation requirement that proposals be evaluated in terms of how the offeror would attract, recruit and retain the workforce necessary to perform the requirements at its proposed labor rates; and (iii) the agency used unequal levels of scrutiny to evaluate the awardee's and the protester's proposals.
The GAO sustained parts of protests by Tyonek Global Services, LLC; Depot Aviation Solutions, LLC, because: (i) the agency used an inconsistent standard in evaluating the relevancy of the awardee's past performance; and (ii) the agency failed to conduct any meaningful analysis to assess the realism of the awardee's proposed overhead rates.
The GAO sustained a protest by MCR Federal, LLC, holding that in a solicitation conducted pursuant to FAR 16.5 for a task order under an IDIQ contract, the agency had failed to provide the protester sufficient time to revise its proposal given the nature and magnitude of the concerns raised by the agency during discussions.
In High Noon Unlimited, Inc., the GAO sustained one of the protest grounds because, without explanation, the agency had weighed the awardee's product without attaching a required part in order to determine that it met the solicitation's weight requirement.
Qi Tech, LLC, won on one of its GAO protest grounds because the agency had treated a proposal weakness concerning the awardee's retention rate for SCA personnel as having been resolved simply because the awardee removed the adverse information from its revised proposal.
The GAO sustained a protest by Vane Line Bunkering, Inc., because: (i) the agency failed consider evidence in the awardee's proposal that cast doubt on its ability to meet a technical requirement in the solicitation; and (ii) the record did not (a) confirm the awardee was the contractor on its past performance references or (b) support the reasonableness of crediting it for its subsidiaries' past performance.
The GAO sustained one of four protest grounds by JMark Services, Inc. because the agency had no rational basis to conclude that two offerors were equal under the past performance evaluation factor.
In T3I Solutions, LLC, the GAO held that the awardee's misrepresentation concerning the availability of an incumbent staff member had a material effect on the agency's evaluation of its proposal as technically acceptable.
The GAO sustained a protest by Hi-Tech Bed Systems Corp. concerning an FSS task-order award because there was no indication within the contemporaneous record that the procuring agency meaningfully considered whether the modified bed design quoted by two vendors: (i) would qualify as a customized version of their applicable FSS schedule items; or (ii) complied with the GSA schedule technical requirements, including the applicable testing requirements.
In NCS Technologies, Inc., the GAO held that the awardee's two overlapping FSS contracts were insufficient alone, or in combination, to cover the entirety of the work awarded to it under a BPA.
Responsiveness, Late Bids, Mistakes, Expired Bids
The GAO sustained a protest by BCW Group, LLC, whose low bid had been rejected even though it had responded timely and affirmatively to a request from the agent (FedBid) of the procuring agency (the Bureau of Indian Affairs) to verify the bidder's intent to meet the solicitation's maintenance requirements, because, even though FedBid had never notified the Bureau of the request for validation or the bidder's response, the Bureau was bound by the actions of its agent.
Chags Health
Information Technology, LLC won its GAO protest because it
was improper for the agency to have disqualified its proposal
for the late submission of a password required to decode a
document that related solely to the determination of the firm's
responsibility.
Sole Source/Small Business/Restricted Competitions
In Ekagra Partners, LLC, the GAO held that a procurement was unduly restrictive of competition because the agency failed to provide a reasonable explanation for the inclusion of a solicitation term that prohibited a mentor-protégé joint venture from submitting a proposal as part of a contractor teaming arrangement that included additional subcontractors.
In Veterans4You, Inc., the GAO sustained a protest against the terms of a solicitation that had been issued without regard to the requirements of the Veterans Benefits, Health Care, and Information Technology Act of 2006 reserving certain contracting opportunities for SDVOSBs or VOSBs.
In Leupold Stevens, Inc., the GAO recommended rescission of a contract modification as being beyond the scope of the contract because it (i) was for services prohibited by the contract and (ii) would result in a material increase in the contract's value.
In ASRC Federal Data Network Technologies, LLC, the GAO held that, under the terms of the applicable SBA SBIR Program Policy Directive, the protested awardee was ineligible to receive an SBIR phase III sole-source award because it had never performed, or been novated, a phase I or II award.
The GAO recommended reimbursement of a protester's costs in CloudFirstJV, LLC--Costs, because the agency had waited to undertake corrective action until after the protester had filed its comments on the agency report even though the merits of the protest should have been clear to the agency prior to filing the agency report.
In Harley Marine Services, Inc., the GAO recommended the reimbursement of costs except for those related to an allegation that was not clearly meritorious and not intertwined with the clearly meritorious protest ground.
In ActioNet, Inc.--Costs, the GAO recommended the reimbursement of the costs of filing and pursuing a protest of the agency’s OCI evaluation where the agency unduly delayed taking corrective action when a reasonable inquiry into the protest allegations would have shown that they were meritorious.
In Ace Info Solutions, Inc., the GAO recommended reimbursement only for additional costs of unsuccessful protest issues that were intertwined with successful grounds for protest.
In Voith Hydro, Inc.--Costs, the GAO recommended reimbursement for additional costs of unsuccessful protest issues that were intertwined with successful grounds for protest and for attorneys' fees that were well-documented and reasonable absent any articulated reason by the agency for disputing them. Subsequently, the GAO granted the protester's request for reconsideration of denial of certain other costs.
In Abacus Technology Corp.--Costs, the GAO recommended reimbursement only for delayed corrective action on a meritorious protest ground that was severable from other, unsuccessful protest issues.
Conflict of Interest/Unfair Competitive Advantage
The GAO sustained a portion of a protest by Safal Partners, Inc., because (i) the awardee's subcontractor had a separate contract with the agency that could benefit the subcontractor financially since it could both recommend grantees for technical assistance under that contract and provide that technical assistance under the protested contract; and (ii) the Contracting Officer's analysis of that situation, which concluded there was no impaired objectivity OCI, was flawed in that it relied on an improper legal standard.
The GAO sustained a protest by Obsidian Solutions Group, LLC, because, in a competition for a multiple-award indefinite-delivery, indefinite-quantity contract, the record did not support the Contracting Officer’s determination that the hiring of a former government employee by the protester’s subcontractor, and his appearance at an oral presentation on behalf of the protester (shortly after his retirement from the agency), created an unfair competitive advantage under FAR subpart 3.1 since (i) all qualified offerors with an acceptable proposal, and a fair and reasonable price, were to receive an award, and thus there was little risk of an unfair competitive advantage from these actions at this stage in the procurement, and (ii) none of the three categories of information to which the former government employee allegedly had access could be considered competitively useful non-public information.
In
NavQSys, LLC, the
GAO sustained a protest against the agency's corrective action because the
agency provided no documentation to support its decision to reject the
former unpopulated joint venture/awardee's proposal for failure to have a
facility security clearance.
Timeliness/Standing/Jurisdiction/Automatic
Stay
In
ATSC Aviation, LLC, an unsuccessful post-award protest
against the protester's exclusion from the competitive range,
the court held that: (i) the protester who
knew of the reasons for its exclusion from the competitive range
before award but waited to protest until after award had not not
waived its right to protest because the protest was based on an
allegation the protester became aware of only after award,
i.e., the allegation that, because everyone remaining in
the competitive range that submitted a timely revised proposal
received an award, the non-price evaluation factors were merely
pretextual; but (ii) the Government's evaluations of the
protester's technical, past performance, and small business
participation plans as well as the Government's establishment of
the competitive had a rational basis.
In
MLS-Multinational Logistic Services, Ltd, an unsuccessful preaward
protest, the court first held that where (a) the plaintiff had filed a
timely agency-level protest of the solicitation's terms prior to the close
of the solicitation, (b) the agency had failed to respond to the protest
until after the solicitation had closed, (c) the plaintiff, nevertheless,
had submitted a timely, unqualified, proposal while the agency protest was
pending, (d) the GAO had found a subsequent protest by the plaintiff
untimely because it was filed more than 10 days after the GAO felt the
protester had learned of adverse agency action on the agency protest (i.e.,
the agency's receipt of proposals without action on the protest), and (e)
the protester had not filed its suit in court until more than four months
after the GAO dismissed its protest (because, in that interim, the
Government had engaged in negotiations with the protester in an attempt to
resolve the issues), the plaintiff had not waived its right to
file a preaward protest under the Blue & Gold Fleet standard. However, the
court dismissed the Complaint because the plaintiff, as one of the
contract awardees, had not shown the requisite economic injury to
establish bid protest standing. The court noted the plaintiff
will not be foreclosed from filing a claim under the CDA for the issues in
dispute. This summary barely scratches the surface of the dense legal
analysis in the decision, especially the discussion of standing.
The court held that
Eskridge & Assocs. lacked standing in its
post-award protest because, of the five technically acceptable proposals,
the plaintiff's was the highest-priced.
In
Telos Identity Management Solutions, LLC, an unsuccessful
post-award protest, the court: (i) deferred to
the agency's reasonable interpretation of an ambiguous provision
in the TSA Modernization Act; and (ii) held that the plaintiff's
post-award challenge to the agency's decision to make a single
award was untimely under the Blue & Gold Fleet standard
because the plaintiff had failed to object when the agency
repeatedly indicated that that was its intention during the
course of the solicitation.
In
Veteran Technology Integrators, LLC, an unsuccessful
post-award protest, the court held that: (i)
under the
Blue & Gold Fleet standard, the plaintiff's challenge to a
mandatory solicitation requirement that rendered it ineligible
for award was untimely because the plaintiff had failed to protest prior to
submitting its offer; and (ii) the plaintiff lacked standing to
protest because it failed to meet two mandatory solicitation
requirements. In
PTC, Inc., another unsuccessful post-award protest (this one
of a sole-source award), the court dismissed the protest for
lack of standing because the plaintiff did not establish it was
a responsible contractor that had the capability to perform the
contract or to compete with the awardee's price. In
Oracle America, Inc. an unsuccessful protest of the protester's
elimination from the competition, the court held that: (i) the Contracting Officer
had reasonably justified her determination under 10 U.S.C. § 2304a(d)(4)
and FAR 16.504(c) to use a single- versus a multiple-ward approach;
(ii) although a separately-required DoD determination and finding
supporting the single-award approach relied on an exception to
the 10 U.S.C. § 2304a(d)(3)
single -award prohibition that did not accurately reflect
the structure of the solicitation at issue here, the protester was not
prejudiced because the agency's minimum needs were reflected in
the security concerns in Gate Criteria 1.2, which was enforceable
and which the protester could not meet; and (iii) although the
allegations the protester had made concerning conflicts of interest were "certainly
sufficient to raise eyebrows," the Contracting Officer's
determinations regarding these matters were rational and
consistent with FAR subparts 3 and 9.
In
Peraton, Inc., a post-award protest of an agency's
corrective action in response to a prior
GAO protest, the court held that: (i) the plaintiff lacked standing
to challenge the sole-source bridge contract awarded while the
agency took the corrective action because the plaintiff had not
shown it had a substantial chance of receiving the award of that
contract; and (ii) even though the agency's proposed corrective
action of limited discussions had a rational basis, the agency's actual
ongoing implementation of that corrective action
was not likely to survive the rational basis test stated in the
CAFC's decision in
Dell Federal Systems, L.P. v. United States and, therefore,
the plaintiff was entitled to limited injunctive relief pending
the full resolution of its protest on the merits. Subsequently,
in
another Peraton decision, the court dismissed complaints by the protester that the agency's revisions to its corrective action following the court's earlier decision granting temporary injunctive relief to the protester amounted to a bad faith attempt to steer the contract to the company holding the temporary bridge contract.
In
Zeidman Technologies, Inc., an unsuccessful post-award
protest, the court held the plaintiff lacked standing because it
failed to present any evidence that, but for the alleged
evaluation errors, it would have been in line for award (six
proposals having been ranked higher).
In
Criterion Systems, Inc., an unsuccessful preaward protest,
the court held: (i) the agency's
decision in an FSS procurement conducted under FAR Part 8 to reject
a quotation submitted 90 seconds late was unobjectionable; (ii)
the plaintiff waived its right
to challenge the agency's alleged failure to amend the solicitation to
account for changed requirements because the plaintiff failed to
protest before submitting its quotation; and (iii) a protest that
the agency treated
another offeror with a defective quotation differently was
premature because the agency had not yet acted on that
quotation.
In
TRAX International Corp., an unsuccessful preaward protest, the
court held that the protester lacked standing because both an
alleged change in required staffing levels and an act that
resulted in an alleged failure to conduct an adequate
Procurement Integrity Act investigation occurred after the
protester had been eliminated from the competition on a basis
unrelated to either allegation.
n
Space Exploration Technologies Corp., the court held it lacked protest jurisdiction over launch service
agreements (one type of the "other transactions" the DoD is
authorized to enter into by 10 U.S.C.
§§ 2371(a), 2371b(a)) because the agreements are not
procurement contracts.
In
Technatomy Corp., an unsuccessful post-award protest of the
protester's failure to secure an award after corrective
action following the protester's partially successful GAO protest, the
court quickly rejected of all of the
protester's challenges to the evaluation on the merits. The
interesting part of the decision, however, is the court's denial
of a motion, based on
Blue & Gold Fleet, to dismiss (as
waived) those of the protester's allegations that it had raised
in the original GAO protest but that had not been sustained
there and, therefore, that had not been addressed in the
corrective action:
The Court rejects these arguments for two reasons. First, the
Court does not find that [the protester] could have brought these
challenges once the corrective action, recommended by the GAO,
had begun. Because of that corrective action, the decision which
injured plaintiff---the source selection decision---was no
longer in force, and none of the technical evaluation decisions
which plaintiff challenges were the sort which necessarily
disqualified plaintiff. Until the technical determinations are
applied in a best-value analysis and an award (or competitive
range) decision, they are interlocutory by nature. Thus,
plaintiff had neither standing nor a ripe claim to pursue once
the corrective action was announced. To find otherwise would
open the floodgates to bid protests challenging evaluation
minutiae brought by parties that had not yet even been excluded
from a competitive range.
Second, and more fundamentally,
the Court finds that [the protester] preserved these protest grounds
by raising them before the GAO in the first place.
In
Winston-Salem Industries for the Blind, Inc. d/b/a IFB Solutions, over
the plaintiff/protester's objections, the court granted
a firm's motion to intervene as a matter of right in a protest of an agency's decision to override
a CICA stay because the intervening firm's interests in performing the work would be impaired
if the plaintiff's protest were successful.
In
PAE-Parsons Global Logistics Services, LLC, the court denied the Government's motion claiming that FASA
barred a protest challenging the ratings the protester received
in a solicitation for an IDIQ contract in a situation where the
agency awarded the IDIQ contract and the task order under it
simultaneously. The court concluded that the protester was
challenging the IDIQ evaluation process, not the task order
award. In
Akira Technologies, Inc., an unsuccessful post-award protest, the
court held it lacked jurisdiction over the protester's challenge to the agency's decision to sole source certain work required in an IDIQ contract to another firm through a task order modification because that challenge was a protest in connection with the issuance of a task order and thus fell within FASA’s protest bar.
In
Orbital Maintenance and Construction Co., an unsuccessful
post-award protest, the court held that the
highest-priced of three offerors in a lowest-priced, technically
acceptable competition lacked standing to challenge the
responsibility determination of the awardee because, even if the
awardee were not selected, the protester would not be in line
for award.
In Land Shark Shredding, LLC,
an unsuccessful preaward protest against the cancellation of a
solicitation, the court held that: (i) the
protester lacked standing because its offer was four times the
amount of the agency's available funding and, therefore, it did
not have a substantial chance of award; and (ii) neither the
solicitation's requirement that prices be evaluated for
reasonableness pursuant to FAR Part 13 nor the agency's
determination that the offered prices were not reasonable
conflicted with the requirements of the Rule of Two.
In
InSap Services, Inc., an unsuccessful preaward protest, the
court held that, under FASA, the court lacked
jurisdiction over a protest of an agency's decision to bundle
the performance of certain IT service contracts under a single
task order because that decision was made "in connection with"
the issuance of the order, a matter within the exclusive protest
jurisdiction of the GAO, a forum of which this protester had
already availed itself, losing on the merits.
In
Ideogenics, LLC, an unsuccessful preaward protest against an
agency's proposed sole-source award, the court
held that the protester lacked standing to object to the
agency's failure to consult with the SBA before allegedly
removing a follow-on contract from the 8(a) program because,
under either theory advanced in its Complaint, the protester
would not have been a qualified bidder.
In Advanced Concepts Enterprises, Inc., an unsuccessful preaward protest, the court held that: (i) the protester lacked standing because it had not shown that it could satisfy several specific requirements of the solicitation, and its suggestion that it could hire subcontractors to perform the work was insufficient to establish it had the financial resources to perform the contract, which was much larger than any contract it had performed in the past; (ii) there was a rational basis for the SBA OHA's decision upholding the Contracting Officer's choice of the NAICS code for the solicitation; and (iii) the past performance evaluation criteria did not violate FAR 15.305(a)(2)(i) and 13.305(a)(2)(iv) or 41 U.S.C. § 1126(b).
In Second Street Holdings, LLC, et al., an unsuccessful preaward protest against the inclusion of a firm fixed-price purchase option provision in a request for lease proposals, the court rejected a litany of complaints against the clause, holding, inter alia, that there was a rational basis for its inclusion and that it did not (i) unduly restrict competition, (ii) require offerors to predict fair market value, or (iii) interfere with third-party leasing activities.
In FMS Investment Corp., et al., which involved unsuccessful preaward protests by group of incumbent private collection agencies (PCAs), the court held that: (i) the procuring agency had provided sufficient justification for its decision to cancel a solicitation for PCAs to collect student debt in favor of a "Next Gen" procurement combining default collection with other student loan servicing work (whereby one entity oversees the full life-cycle of a student loan from origination to payoff); and (ii) the Next Gen procurement (i) does not per se violate federal and state laws governing debt collectors and (ii) is not otherwise arbitrary and capricious. Subsequently, in Emergency Planning Management, Inc., another unsuccessful preaward protest against the same procurement, the court held that: (i) there was no valid basis for deviating from the court's prior determination in FMS that the agency had a rational basis for bundling the work; (ii) the agency conducted an appropriate Rule of Two market research analysis before deciding there was no reasonable expectation of receiving offers from two or more responsible small businesses; and (iii) the solicitation's HUBZone goals were not anticompetitive and had a rational basis. Still later, the contractor's motion for a stay pending appeal was denied.
In Criterion Systems, Inc., an unsuccessful preaward protest, the court held: (i) the agency's decision in an FSS procurement conducted under FAR Part 8 to reject a quotation submitted 90 seconds late was unobjectionable; (ii) the plaintiff waived its right to challenge the agency's alleged failure to amend the solicitation to account for changed requirements because the plaintiff failed to protest before submitting its quotation; and (iii) a protest that the agency treated another offeror with a defective quotation differently was premature because the agency had not yet acted on that quotation.
In Veterans4You, Inc., an unsuccessful preaward protest that is best read in light of the company's prior GAO protest, the court held that the Government Printing Office is not required to conduct a Rule of Two analysis when issuing a procurement on behalf of the VA pursuant to the printing mandate of 44 U.S.C. § 501.
In A Squared Joint Venture, an unsuccessful protest against the cancellation of a solicitation, the court held that: (i) there were rational bases for the Contracting Officer's determination that the three-year lapse since the submission of proposals raised issues concerning the continuing relevance and viability of those proposals in light of intervening circumstances, including the agency's determination to adopt an agency-wide approach to obtaining the services covered by solicitation (among others); (ii) the Contracting Officer adequately considered the situation before advancing a new acquisition plan; and (iii) there was no proof of bad faith by the Contracting Officer because the cancellation was supported by many factors, and there was no showing that it was a ruse to avoid an adverse court decision in this contested procurement. Subsequently, the court denied the contractor's motion for reconsideration of the judgment concerning the cancellation decision but modified the judgment to indicate that the protester's claim for bid preparation costs survived.
In
Chromalloy San Diego Corp., an unsuccessful protest against
solicitation provisions and the evaluation, the court held, inter alia, that the agency had conducted
a sufficient analysis of the limited rights data obtained from
the manufacturer in order to conclude that offerors must either
(i) possess a manufacturer's license in order to utilize
technical manuals or (ii) have independent access to such
manuals and technical bulletins; therefore, those requirements
did not exceed the agency's minimum needs or violate CICA in any
other way. The court wrote, in part, as follows:
The evidence in the administrative record does not portray a model source selection process. The Navy seemingly took corrective action and amended the solicitation without fully understanding the consequences of its amendment, and then reversed course again when faced with heavy pressure from GE. Nevertheless, the Navy’s decisions to require independent access to GE's technical manuals and service bulletins and use of GE-manufactured special tools find support in the administrative record.
In
Thoma-Sea Marine Constructors, LLC, an unsuccessful post-award protest,
the court held, inter alia, that: (i) there was
a rational basis for the agency's evaluation of the awardee's ship design,
including the agency's evaluation of the "seakeeping" representations made
by the awardee in its proposal; (ii) the agency conducted an adequate
responsibility investigation of the awardee, and the awardee did not fail
to disclose any negative information regarding disputes that it was
legally required to disclose; and (iii) the agency's actions regarding its
Past Performance evaluation of the awardee during a voluntary remand after
the original protest had been filed were not improper because those
actions were designed to investigate issues raised by the protester.
In
Chenega Healthcare Services, LLC, an unsuccessful post-award protest,
the court held that, where the solicitation gave notice of the agency's
intent to award without discussions, the agency was not required (i) to
evaluate a change in the protester's key personnel submitted after the
deadline for receipt of proposals or (ii) to provide a separate rationale
for evaluating the originally submitted proposals (and to make the award)
without conducting discussions.
In its detailed decision in
Sigmatech, Inc., another unsuccessful post-award protest, the
court examined multiple challenges by the protester to various aspects
of the evaluation, concluding that:
(i) the agency
had not evaluated corresponding sections of the protester's and
the awardee's proposals unequally or disparately; (ii) the agency had rational bases for rating various sections
of the awardee's proposal more favorably than those of the
protester; and (iii) there was a rational basis for the
Contracting Officer's determination that no impaired objectivity OCI existed.
Subsequently, the court
denied the protester's motion for relief from
the court's
prior decision denying the protest because allegedly "newly discovered" evidence regarding conflicts of interest
had been available to the protester (at least its attorneys) at the
time of entry of the original judgment and because, even if that
evidence were "newly discovered," the protester had not established
the evidence would "probably" have produced a different decision by
the court.
In
Mantech Advanced Systems International, Inc., which involved
two, unsuccessful, consolidated preaward protests against the
elimination of the protesters during Phase 1 of a two-phase
competition, the court held that the agency
had reasonably concluded that: (i) one offeror's inclusion of an
additional labor category chargeable to the contract in its
proposal was a material error that could not be remedied through
a clarification; and (ii) the other offeror's failure to include
a dollar amount for a proposed labor category was also a
material error that could not be remedied by means of a
clarification.
FAR § 52.222-46(a) specifies that, in evaluating contracts for
professional services, the "professional compensation proposed
will be considered in terms of its impact upon recruiting and
retention, its realism, and its consistency with a
total plan for compensation" [emphasis added]. In
Sparksoft Corp., a successful preaward protest, the court held that that provision requires the procuring
agency to conduct a price realism analysis even for the
fixed-price portion of the contract for professional services: "Labeling
a contract as "FFP," when the contract requires almost entirely
professional services, does not magically excuse the government
from performing a realism evaluation of the proposed
professional compensation rates."
In ATSC Aviation, LLC, an unsuccessful post-award protest against the protester's exclusion from the competitive range, the court held that: (i) the protester who knew of the reasons for its exclusion from the competitive range before award but waited to protest until after award had not not waived its right to protest because the protest was based on an allegation the protester became aware of only after award, i.e., the allegation that, because everyone remaining in the competitive range that submitted a timely revised proposal received an award, the non-price evaluation factors were merely pretextual; but (ii) the Government's evaluations of the protester's technical, past performance, and small business participation plans as well as the Government's establishment of the competitive had a rational basis.
In System Studies & Simulation, Inc., an unsuccessful post-award protest, the court held that: (i) the protester had not established prejudice from the alleged evaluation errors because the administrative record showed that the protester's evaluation ratings would not have changed if the agency had not made those errors; and (ii) the protester's challenges to specific aspects of the agency's evaluation were unsubstantiated.
In Citizant, Inc., a successful post-award protest, the court held that the Contracting Officer: (i) erred in relying on DCAA letters to validate two offerors' claims that they maintained an acceptable CAS because he could not rationally conclude that from those letters that offerors possessed a CAS that had been audited and deemed adequate; (ii) failed to properly consider the solicitation requirement that an offeror certify that it had not made material changes to its CAS since its last audit; and (iii) erred in evaluating the pricing, specifically the proposed fully burdened labor rates, by (a) failing to evaluate the offerors’ pricing in a consistent manner, without explaining why he analyzed offerors differently, (b) for multiple offerors, calculating an average and Deviation Range for each CLIN using rates proposed by an arbitrary group of 87 offerors, excluding the rates proposed by some awardees, omitting the rates proposed by many of the offerors, and double-counting the rates proposed by two offerors, and (c) failing to provide a rational explanation for concluding that the rates offerors proposed outside the Deviation Range were reasonable.
In KSC Boss Alliance, LLC, an unsuccessful preaward protest of the protester's exclusion from the competitive range, the court held, inter alia, that: (i) the agency's assignments of various weaknesses to the protester's proposal had rational bases; (ii) the agency's competitive range determination was adequately documented; (iii) the agency's point-score system, which was used as a guide to the competitive range determination, did not distort or artificially inflate the differences among the offerors’ proposals; and (iv) the agency meaningfully considered price in determining the competitive range.
In URS Federal Services, Inc., an unsuccessful post-award protest, the court held, inter alia, that: (i) the Government's independent estimate, developed from historical data, was an appropriate basis for reviewing the craft labor hours proposed by the offerors as a means of evaluating their understanding of the effort required to perform certain areas of work, as part of the Technical Approach assessment; and (ii) where the protester's price had not been determined to be unreasonably high, the agency was not required to discuss price with the protester, even though (a) its price was significantly higher than that of other offerors in the competitive range and (b) price turned out to be the deciding factor in the award.
In Treadwell Corp., an unsuccessful post-award protest, the court held that: (i) interpreted as a whole, the solicitation did not require delivery of the first production units within 15 months of award as alleged by the protester, and, therefore, the awardee's proposal was responsive in this regard; (ii) the offerors were not treated unequally with regard to the solicitation's delivery schedule requirements; and (iii) a post-award modification to clarify the delivery schedule was not a cardinal change requiring recompetition.
In Tele-Consultants, Inc., an unsuccessful post-award protest, the court held that: (i) the Government had a rational basis for rejecting the protester's Phase 2 proposal because it failed to comply with the solicitation requirement that it explain any differences in the CAGE code listed in the Corporate Experience section with the CAGE code of the offeror and include an affirmative statement that the two entities were the same; and (ii) where the Government had stated it intended to conduct Phase 2 without discussions, it was not required to re-open discussions to permit the protester to explain the differences in the CAGE codes, which had first appeared in the protester's proposal in Phase 2.
In Vertex Aerospace, LLC, an unsuccessful post-award protest by the incumbent, the court held that: (i) there was a rational basis for the evaluators' assignment of a moderate technical risk rating for the protester's failure (during discussions) to adequately explain lowering its proposed overhead and G&A rates; (ii) the Government had reasonably evaluated the technical risk in the awardee's proposal in each of the multiple areas challenged by the protester; and (iii) the protester's assertion that the solicitation inaccurately reflected the flight hours required by the Government was untimely because the incumbent had sufficient information to question those hours before award but did not protest the issue until after award.
In Veterans Electric, LLC, an unsuccessful preaward protest of the plaintiff's exclusion from the competitive range, the court held, inter alia, that: (i) the protester's failure to include sufficient details in its proposal in several areas (including its Company Experience, Project Management, and safety plan) justified the low ratings it received in each category; (ii) the protester's contention that the page limit for the technical proposal was too short was (a) untimely and (b) belied by fact that its own proposal was significantly shorter than that limit; (iii) the agency did not use undisclosed evaluation factors; (iv) the agency correctly evaluated areas of the protester's proposal as "weaknesses" as that term was described in the solicitation; and (v) the agency's exclusion of the protester's proposal from the competitive range had a rational basis given its relative inferiority to other proposals included in the range.
In Agile Defense, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that the following solicitation language permitted the Government to use cost analysis techniques to analyze the realism even of labor rates that fell within the one standard deviation window: "The Government considers a rate that is 1 standard deviation below the average to be a realistic rate, subject to cost analysis techniques in accordance with FAR 15.404." The court also held that: (i) there was a rational basis for the concerns the agency raised with the mismatches between the years of experience and education levels required by the solicitation for various labor categories and those listed in supporting documentation the protester submitted with its proposal; and (ii) during discussions, the agency did not overstate its concerns with the protester's labor rates or otherwise mislead the protester.
In Mark Dunning Industries, Inc., an unsuccessful post-award protest, the court held that, in a sealed bid procurement: (i) the failure to acknowledge an amendment was immaterial where the subsequent bid incorporated the change made by amendment; (ii) the agency had a rational basis to determine that the awardee's low bid was reasonable, especially where the bidder confirmed its bid price when requested to do so by the agency and there was no evidence the awardee neglected to bid on any line items required to be bid by solicitation; (iii) the agency reasonably determined the awardee's the bid was not materially unbalanced; and (iv) there was a rational basis for the agency's responsibility determination of the awardee; and (iv) a protest of an allegedly ambiguous solicitation provision was untimely and, in any event, the protester failed to establish the agency treated bidders differently by providing them with differing information concerning that provision. Subsequently, the court denied the protester's motion for relief from the court's judgment because the proffered evidence in support of the motion did not qualify as newly discovered evidence under court Rule 60(b)(2) and, in any event, was immaterial to court's original decision. In its motion, the contractor had argued that it had learned in a meeting with the Government and the contract awardee (held after the court's original decision) that the Government intended to provide the awardee with a free "laydown" storage area, which the protester had previously argued (unsuccessfully) was prohibited by the solicitation.
In Voith Hydro, Inc., an unsuccessful post-award protest, the court (in a lengthy and detailed decision) rejected what were mostly disagreements with the evaluators' subjective conclusions concerning the relative merits of the competing proposals and held that: (i) there was a reasonable basis for the agency's evaluation of the protester's proposal in each of three challenged Technical areas; (ii) there was a rational basis for the agency's evaluation of proposals in the Past Performance factor in each of four areas challenged by the protester; (iii) there was a rational basis for the best value trade-off analysis; and (iv) the protest of the price evaluation methodology was untimely.
In iAccess Technologies, Inc., an unsuccessful preaward protest against the plaintiff's elimination from the second competitive range after round 2 of discussions, the Court of Federal Claims held that, although the protester's case withstood standing and waiver challenges: (i) the protester failed to establish that the agency erred in finding the protester's technical proposal unacceptable and not capable of correction; (ii) the agency's discussions with the protester in both rounds 1 and 2 were meaningful and were not misleading; and (iii) the protester's disqualification was not a de facto responsibility determination and, thus, the agency was not required to refer the protester to the SBA for a responsibility determination prior to disqualifying it.
In Mission1st Group, Inc., an unsuccessful post-award protest, the court held that: (i) in performing its cost realism analysis, the agency was not required to resolve a discrepancy in the protester's proposal by guessing which of two methods it contained was the correct one to use to calculate overhead costs; (ii) the agency did not treat the protester's proposal disparately from the way it evaluated other proposals because various issues in the other proposals were distinguishable in kind from the one in the protester's proposal; and (iii) the agency was not required to seek clarification of discrepancy in the protester's proposal because, inter alia, the discrepancy violated a material requirement of the solicitation, and the agency had no way of knowing that it involved a clerical error as opposed to a conscious decision by the protester.
In Red Cedar Harmonia, LLC, an unsuccessful post-award protest, the court held that there were rational bases underlying: (i) the evaluators' adjustments to the protester's proposed labor hours in various categories; and (ii) the agency's assignment of "strengths" to the awardee's proposal in areas where the protester's proposal was not rated as highly (so that there was no disparate treatment of the competitors during the evaluation).
In Safeguard Base Operations, LLC, an unsuccessful post-award protest, the court held that: (i) properly interpreted (including an extended discussion of the meaning of the word "please"), a solicitation amendment and a response in a Q&A required offerors to provide pricing for two, disputed CLINs; (ii) the protester's failure to include this pricing was a material omission, not a minor informality curable through clarifications; (iii) the agency's disqualification of the protester's proposal on the basis of the pricing problem had a rational basis, and because of that disqualification, the agency had not been required to include the protester's proposal in a best-value tradeoff; and (iv) agency did not the breach duty of good faith and fair dealing in evaluating the protester's proposal.
In State of Oklahoma, et al., an unsuccessful request for preliminary injunctive relief in a post-award protest, the court: (i) after a lengthy and complex analysis, held it had jurisdiction over those protest allegations that were unrelated to the protester's Randolph-Sheppard Act claims pending before an arbitral panel, and then potentially before a district court, but (ii) denied the request for preliminary injunctive relief because providing that relief would unnecessarily disrupt food services provided by the Army, and the protester had not shown a likelihood of success on the merits on issues involving the agency's discretion in conducting its technical evaluation.
In WellPoint Military Care Corp., an unsuccessful post-award protest, the court held, inter alia, that: (i) the agency did not use an unstated evaluation criterion in evaluating the offerors' existing provider network under the Network Management and Claims Adjudication evaluation subfactor; (ii) the agency did not treat offerors disparately in evaluating offers under the Corporate Experience/Capability subfactor and, in any event, the protester was not prejudiced by the weakness assigned to it under this subfactor because the agency did not consider that weakness in making its final best value determination; and (iii) the agency's method for evaluating the cost savings afforded by each offeror was reasonable and consistent with solicitation's terms. Subsequently, the court denied the protester's motion for an injunction pending an appeal because the protester had not made strong showing that the appeal was likely to succeed on the merits.
In Harmonia Holdings Group. LLC., an unsuccessful post-award protest, the court held that there were rational bases for the Contracting Officer's determinations on remand that no OCIs tainted the procurement, including the findings that: (i) two of the sources for the OCI allegations were disgruntled employees (one of whom admitted he had been angry and withdrew his allegations) and (ii) there were no "hard facts" supporting the allegations that various personal relationships between the awardee's and the agency's employees had affected the procurement. The court also held that there were rational bases for (a) the agency's assignment of a weakness to the protester's proposal in the area of Relevant Experience and (b) the evaluation of the awardee's staffing plans (and pricing) for the various contract years.
In ANHAM FZCO (a successful post-award protest of an evaluation conducted as part of corrective action following a prior GAO protest) although the court (a) rejected several of the protester's arguments concerning the evaluation of the awardee's technical capability (e.g., the credit the awardee received for the proposed contribution of its parent company to the work) and (b) held that, under the Blue & Gold Fleet standard, the protester had waived its protests of both the the agency's alleged failure to assign appropriate risk to the the awardee's chances of being ejected from a warehouse and the agency's responsibility determination concerning the awardee, the protester was, nevertheless, correct in asserting that the agency had improperly credited the awardee with an "Outstanding" rating for ownership of a warehouse that was owned by its affiliate, and the protester was prejudiced by this inflated scoring. Therefore, the court permanently enjoined the agency from proceeding with the proposed award.
In RX Joint Venture, LLC, an unsuccessful protest against the agency's determination that the protester's technical proposal was unacceptable, the court held that the agency did not require excessive detail in the proposal to establish the relevant technical experience, and the agency was not required to presume that the protester had technical expertise in areas that were not explicitly detailed in its proposal.
In
North South Consulting Group, LLC, an unsuccessful
post-award protest after an unsuccessful GAO protest, the court held that the agency had neither improperly
applied the weighting scheme for the evaluation factors nor
evaluated the protester's and awardee's proposals with
sufficient disparity to merit sustaining the protest. The court,
itself, noted the second issue was a close call but reasoned as
follows:
The disparate treatment allegation is a closer
question, but also one that cannot be resolved in plaintiff’s
favor. It appears that the agency did not "discount" strengths
from [the awardee's] management approach, in recognition of untabulated strengths in
[the protester's] technical approach, in
the same way that untabulated strengths in [the protester's]
technical approach were discounted in recognition of some of
[the awardee's] strengths in its management approach. Plaintiff
complains that this agency treatment was unfair, and the GAO
considered this agency practice to be "flawed."
The court does not conclude, however, that the SSA’s decision demonstrates that the agency committed a significant error which would merit sustaining this protest. Equal treatment in proposal evaluation does not necessarily mean that each strength is valued exactly the same as another, or that a qualitative assessment of an evaluation factor cannot discriminate between strengths in one offeror’s proposal and strengths in another. See 48 C.F.R. § 1.102-2(c)(3) (2018) ("All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same."). The SSA’s comparison of the technical approach and management approach ratings for the proposals of [the protester] and [the awardee] is not unreasonable or unfair simply because he discounted strengths in favor of [the awardee] and did not discount strengths in favor of [the protester]. The significance of this aspect of the evaluation process is unclear, and while it may be erroneous to some degree, plaintiff has not established that the SSA’s award decision was unfair or arbitrary. [citations and footnotes omitted]
In LOC Performance Products, Inc., an unsuccessful post-award protest, the court held that: (i) there were rational bases for the agency's assignment of weaknesses to sections of the protester's technical proposal and a marginal rating to the technical proposal as a whole; (ii) the agency could properly winnow the number of proposals in the competitive range by focusing on the evaluation of technical proposals; and (iii) the protester was not prejudiced by alleged errors in the evaluation of a competitor because the protester would not have had a substantial chance of being awarded a contract even if the court had found those errors existed.
In Metropolitan Interpreters and Translators, Inc., an unsuccessful post-award protest, after granting the Government's motion to strike two exhibits the plaintiff proposed to supplement the administrative record, the court held: (i) the agency had a reasonable basis for finding the awardee complied with formatting requirements for its technical proposal; and (ii) there were rational bases for the agency's evaluations in each of the many areas of the agency's technical, price, and past performance evaluations challenged by the protester.
In System Studies & Simulation, Inc., a successful post-award protest, the court held that the Source Selection Authority had effectively converted an acquisition from a best value procurement (in which the non-price factors combined were supposed to be more important than price) into a lowest-price, technically-acceptable procurement, repeatedly attempting to equalize the technical proposals by minimizing or glossing over the evaluators' conclusions concerning their differences.
In HVF West, LLC, a successful postaward protest, the court: (i) rejected (a) the protester's allegations concerning the evaluation of other offerors (because those allegations were based on a patent solicitation ambiguity concerning which the protester had failed to timely inquire) and (b) several allegations concerning the evaluation of the awardee; but (ii) sustained the protester's contentions that the Government failed to properly evaluate both the awardee's financial responsibility and its "treatment, storage, and disposal facility" plan because the awardee did not provide required information in each of those areas and, thus, was ineligible for award. The decision also contains interesting analyses concerning standing and prejudice (the protester was not next in line for award). Subsequently, the court denied the awardee's motion for reconsideration or relief from judgment,
In Inserso Corp., an unsuccessful post-award protest, although the court agreed with the protester that a potential OCI existed due to the nature of the procurement in which potentially advantageous information was disclosed only to some competitors, there was compelling evidence to rebut the presumption of prejudice from the disclosure because, even before the disclosure, plaintiff's price had been significantly higher than the prices of the offerors to whom the information was disclosed.
In Sigmatech, Inc., another unsuccessful post-award protest, the court examined multiple challenges by the protester to various aspects of the evaluation, concluding that: (i) the agency had not evaluated corresponding sections of the protester's and the awardee's proposals unequally or disparately; (ii) the agency had rational bases for rating various sections of the awardee's proposal more favorably than those of the protester; and (iii) there was a rational basis for the Contracting Officer's determination that no impaired objectivity OCI existed. Subsequently, the court denied the protester's motion for relief from the court's prior decision denying the protest because allegedly "newly discovered" evidence regarding conflicts of interest had been available to the protester (at least its attorneys) at the time of entry of the original judgment and because, even if that evidence were "newly discovered," the protester had not established the evidence would "probably" have produced a different decision by the court.
In Oracle America, Inc. an unsuccessful protest of the protester's elimination from the competition, the court held that: (i) the Contracting Officer had reasonably justified her determination under 10 U.S.C. § 2304a(d)(4) and FAR 16.504(c) to use a single- versus a multiple-ward approach; (ii) although a separately-required DoD determination and finding supporting the single-award approach relied on an exception to the 10 U.S.C. § 2304a(d)(3) single -award prohibition that did not accurately reflect the structure of the solicitation at issue here, the protester was not prejudiced because the agency's minimum needs were reflected in the security concerns in Gate Criteria 1.2, which was enforceable and which the protester could not meet; and (iii) although the allegations the protester had made concerning conflicts of interest were "certainly sufficient to raise eyebrows," the Contracting Officer's determinations regarding these matters were rational and consistent with FAR subparts 3 and 9.
In
Harmonia Holdings Group. LLC., an unsuccessful post-award
protest, the court held that there were
rational bases for the Contracting Officer's determinations on
remand that no OCIs tainted the procurement, including the
findings that: (i) two of the sources for the OCI allegations
were disgruntled employees (one of whom admitted he had been
angry and withdrew his allegations) and (ii) there were no "hard
facts" supporting the allegations that various personal
relationships between the awardee's and the agency's employees
had affected the procurement. The court also held that there
were rational bases for (a) the agency's assignment of a
weakness to the protester's proposal in the area of Relevant
Experience and (b) the evaluation of the awardee's staffing
plans (and pricing) for the various contract years.
Sole Source/Small Business/Restricted Competitions
In XOtech, LLC, an unsuccessful challenge to decisions by the SBA and the OHA, the court held that an LLC firm was ineligible to compete for SDVO set-asides because, under its Operating Agreement, the LLC's SDV owner shared equal authority over its management decisions with two non-SDVs (his wife and son) and, thus, did not independently control the operations of the business.
In North Wind Site Services, LLC, an unsuccessful post-award protest, the court held that: (i) the agency had complied with the SBA's regulations in deciding not to exercise options to extend the term of an IDIQ contract (rather than immediately terminating that contract) after the OHA determined (post-award) that the awardee was not an eligible small business for purposes of the procurement; and (ii) under FASA section 4106(f)(1)(A), the court lacked jurisdiction over protests of task orders issued to the awardee under the contract.
In Land Shark Shredding, LLC, an unsuccessful post-award protest, the court denied the protester's renewed application for a TRO and preliminary injunction due, in part, to a finding that there was not a likelihood of success on the merits in a protest against the agency's decision not to award a contract to the only SDVOSB bidder in a tiered solicitation system that gave first preference to SDVOSBs because the SDVOSB's offer was determined to be unreasonably high (more than five times the price of the two non-SDVOSB offerors). Subsequently, the court denied the protest because: (i) the agency had conducted an appropriate Rule of Two market analysis before deciding not to set aside the procurement for SDVOSBs; (ii) the plaintiff's protest against the solicitation's tiered preference system of selection was untimely under the Blue & Gold Fleet standard, and, in any event, the plaintiff failed to establish that that system was inconsistent with the requirement for a Rule of Two analysis; (iii) the agency was not precluded by the FAR from conducting a price reasonableness analysis of the protester's proposal (and rejecting it as unreasonably high); and (iv) the agency's responsibility determination involving the awardee's ability to perform the contract, including its compliance with the solicitation's limitations on subcontracting, was not unreasonable.
In Oracle America, Inc. an unsuccessful protest of the protester's elimination from the competition, the court held that: (i) the Contracting Officer had reasonably justified her determination under 10 U.S.C. § 2304a(d)(4) and FAR 16.504(c) to use a single- versus a multiple-ward approach; (ii) although a separately-required DoD determination and finding supporting the single-award approach relied on an exception to the 10 U.S.C. § 2304a(d)(3) single -award prohibition that did not accurately reflect the structure of the solicitation at issue here, the protester was not prejudiced because the agency's minimum needs were reflected in the security concerns in Gate Criteria 1.2, which was enforceable and which the protester could not meet; and (iii) although the allegations the protester had made concerning conflicts of interest were "certainly sufficient to raise eyebrows," the Contracting Officer's determinations regarding these matters were rational and consistent with FAR subparts 3 and 9.
In Kingfisher Systems, Inc., an unsuccessful preaward protest challenging a size determination made by the SBA as upheld by the OHA, the court held that the SBA's Area Office: (i) had properly based its analysis of a company's receipts on its tax returns (as required by applicable regulations); and (ii) had properly treated an item identified as income on those tax returns as receipts for purposes of the size determination (especially absent any indication in the tax return it should be treated otherwise). The court also found that, even if the disputed item were labeled as the protester claimed it should be, it would still be counted as receipts within the broad definition applicable to the dispute.
In Veterans4You, Inc., an unsuccessful preaward protest that is best read in light of the company's prior GAO protest, the court held that the Government Printing Office is not required to conduct a Rule of Two analysis when issuing a procurement on behalf of the VA pursuant to the printing mandate of 44 U.S.C. § 501.
In Land Shark Shredding, LLC, an unsuccessful preaward protest against the cancellation of a solicitation, the court held that: (i) the protester lacked standing because its offer was four times the amount of the agency's available funding and, therefore, it did not have a substantial chance of award; and (ii) neither the solicitation's requirement that prices be evaluated for reasonableness pursuant to FAR Part 13 nor the agency's determination that the offered prices were not reasonable conflicted with the requirements of the Rule of Two.
In Harmonia Holdings Group, LLC, an unsuccessful protest against the award of a sole-source follow-on to an originally competitively-placed FSS order, the court held that: (i) the agency's analysis justifying the award satisfied the standard at FAR 8.405-6(a)(1)(i)(C) that the extended work be "[i]n the interest of economy and efficiency"; (ii) the agency's preaward market research was reasonable and was not a sham exercise done after the agency had already made its decision to make a sole-source award; and (iii) the agency did not ignore the protester's capabilities statement, but, in fact, considered it carefully before making the award.
Corrective Action and CICA Stays
In Inverness Technologies, Inc., an unsuccessful protest of the DOL's decision to cancel a solicitation in the midst of corrective action because of changed requirements, specifically changes required by the John S. McCain National Defense Authorization Act for FY 2019, the court held that the Contracting Officer's written rationale for the cancellation was detailed and had a rational basis.
In Synaptek, Inc., an unsuccessful post-award protest of the agency's actions during corrective action following a GAO protest, the court held that: (i) the SSA was justified in concluding the awardee's price was reasonable because she provided a rational explanation why that price was lower than the data points used for comparison; (ii) the SSA did not turn the best-value procurement into a lowest-price, technically-acceptable procurement because she did not award the contract to the lowest-priced, technically-acceptable offeror; (iii) the SSA provided a reasonable explanation why the protester's technical advantage was not sufficient to justify its 40% price premium over the awardee; and (iv) both the technical evaluation of the awardee and the responsibility determination were sufficiently documented and had rational bases.
In FMS Investment Corp., the court denied the plaintiffs' motion for a preliminary injunction to extend their current contracts while their protests against a solicitation for debt collection services was ongoing because an injunction would not be necessary either (i) to preserve the status quo or (ii) to permit the court to provide meaningful relief in the protests.
In Conley & Assocs., an unsuccessful protest by the former awardee against proposed corrective action, the court upheld the agency's decision to reevaluate proposals without conducting discussions after the awardee informed the agency that the awardee could not produce one of the individuals it had identified as key personnel in its proposal. The court specifically found that the individual's unavailability should have been foreseeable by the protester at the time it submitted its proposal.
In Fisher Sand & Gravel Co., an unsuccessful protest of an agency's override of a CICA stay pending the resolution of a GAO protest concerning a sole-source award to construct a portion of President Trump's border wall, the court held that the D&F supporting the override had a rational basis and complied with applicable regulations.
In Peraton, Inc., a post-award protest of an agency's corrective action in response to a prior GAO protest, the court held that: (i) the plaintiff lacked standing to challenge the sole-source bridge contract awarded while the agency took the corrective action because the plaintiff had not shown it had a substantial chance of receiving the award of that contract; and (ii) even though the agency's proposed corrective action of limited discussions had a rational basis, the actual ongoing implementation of that corrective action by Government was not likely to survive the rational basis test stated in the CAFC's decision in Dell Federal Systems, L.P. v. United States and, therefore, the plaintiff was entitled to limited injunctive relief pending the full resolution of its protest on the merits.
In Netcentrics Corp., an unsuccessful protest, the court upheld the agency's decision to rescind an award to the plaintiff because: (i) the agency discovered, during corrective action, that the plaintiff's proposal contained material misrepresentations concerning the status and availability of a key person upon which the agency had relied, and (ii) there was no additional requirement that the agency prove the offeror had intended to mislead the agency. Subsequently, the contractor's motion for stay pending appeal was denied.
In ANHAM FZCO, the court denied the protester's motion for an order of contempt against the Government because the Government did not violate the terms of the prior injunction by awarding a brief bridge contract (four month base period with two three-month options) to the prior awardee while implementing corrective action.
In Alaska Structures, Inc., an unsuccessful protest against corrective action, the court held that: (i) although the agency issued a "new" solicitation, it was identical to the prior solicitation but for a requirement regarding verification of a test result by competitors, which was the point of the corrective action, so the "new" solicitation was in essence just a permissible modification of the original solicitation; and (ii) the agency, although concerned there might have been a misrepresentation of a test result by the original awardee, never concluded there was one, and, therefore, undertook reasonable corrective action by revising the solicitation to clarify the required test verification rather than excluding the original awardee from the competition.
EAJA/Fees/Costs
In
IAP Worldwide Services,
Inc., the court denied the contractor's
motions to recover bid and proposal costs from two prior
protests because, inter alia, the contractor had voluntarily dismissed the
protests following corrective action and its decision not to
seek a TRO or preliminary injunction following the corrective
action facilitated its ability to continue to compete for the
contract work at issue.
[A]lthough the court is
sympathetic to IAP’s plight regarding its choices, IAP has not
demonstrated that the court committed a clear error of law that
resulted in manifest injustice when it entered judgment in Case
No. 18-400C without an award of bid and proposal costs pursuant
to RCFC 59(e). The court also finds that IAP has not
demonstrated the kind of inequity regarding the judgments in
Case Nos. 17-1959C and 18-179C required to reopen the judgments
pursuant to RCFC 60(b)(5), nor has IAP sufficiently demonstrated
extraordinary circumstances justifying relief from these
judgments pursuant to RCFC 60(b)(6). Throughout the history of
IAP’s four protests in this court, Case Nos. 17-1959C, 18-4C,
18-179C, and 18-400C, IAP maintained for itself an opportunity
to compete for a possible award of a portion of the contract
work . . . , although
IAP was unsuccessful in the competition at the end of the day
after the Army Corps’ evaluation of IAP’s final revision of its
proposal, which the court found was neither an arbitrary nor
capricious evaluation.
In Zeidman Technologies, Inc., the court imposed sanctions for violation of a protective order after the protester's counsel disclosed protected information to the protester's principal, who had been admitted to the protected order only on a limited basis and who had not been authorized to view the documents in question.
In Voith Hydro, Inc., the court denied an expert's application for admission to a protective order because his testimony was not necessary to the resolution of the dispute and the risk of inadvertent disclosure was too great given the sensitivity of the protected information and the expert's consulting work in the same region and in the same industry.
In Voith Hydro, Inc., which involved a post-award protest, the court denied the protester's motion to supplement the administrative record with an expert report because: (i) the motion was essentially an untimely request to add a new method to the RFP for evaluating the relative merits of proposals; (ii) the report was not necessary for adequate judicial review of the protest; (iii) the plaintiff provided no evidence for its brief contention that the report would aid the court's weighing of the public interest factor in considering whether to issue an injunction; (iv) the report was not needed for the court to assess the allegation of competitive prejudice allegedly suffered by the protester; and (v) the report was not necessary for the court to understand the technical aspects of the solicitation.
In Technica LLC, a successful protest, the court applied the analysis it had used previously in Reilly's Wholesale Produce and held that the agency's decision to override the automatic CICA stay pending the outcome of a GAO protest lacked a rational basis.
In Alaska Structures, Inc., the court required the record to be supplemented with a test report that the awardee had not provided with its quotation but which was necessary to permit the court to resolve inconsistencies in the record relevant to the allegation that the awardee's quotation contained a material misrepresentation as to whether the awardee's offered system complied with the solicitation's requirements.
In Poplar Point RBBR, LLC, the court denied the protester's motion to supplement the administrative record because an in camera review persuaded the court that the requested materials were inter-agency deliberative documents, including attorney-client privileged communications, that would not add anything relevant to the existing administrative record.
Court of Appeals for the Federal Circuit
In American Relocation Connections, L.L.C., a decision it labeled as nonprecedential, the CAFC affirmed the CoFC's prior decision denying a preaward protest because the protester could not establish it was prejudiced by the agency's failure to consult with the SBA during market research prior to issuing the procurement as unrestricted. Even if the agency had done consulted with the SBA, it would not have issued the procurement as a small business set-aside because there were not enough qualifying small businesses to compete under the applicable NAICS code.
In Safeguard Base Operations, LLC, the CAFC dismissed (as moot) an appeal of the CoFC's denial of an injunction to stop the override of CICA's automatic stay of contract performance because the stay had expired (due to an adverse GAO decision).
Sole Source/Restricted Competition
In National Government Services, Inc., the CAFC reversed the CoFC's prior decision in a preaward protest and held that a CMS solicitation's Award Limitation Policy would exclude certain offerors and limit full and open competition without having been formulated in compliance with 41 U.S.C. 3303(a)(1) and FAR 6-202, which would require a Determination and Findings justifying the exclusion for the solicitation at issue. The court was careful to state that it was not holding such findings could not be made by the agency.
In Veterans Contracting Group, Inc., over a dissent, the CAFC affirmed the prior CoFC decision that the Contracting Officer did not abuse his discretion in canceling a solicitation after determining all eligible bids were unreasonably high, because at the time he made that decision he had no reason to know that the Government was wrong to have removed the protester from the list of eligible SDVOSB bidders in the VetBiz database.
SBA Office of Hearings and Appeals
Jurisdiction/Standing/Timeliness/Procedure
In Size Appeal of AeroSage, LLC, the OHA held that the Area Office correctly dismissed a protest for lack of standing because the protester was neither an offeror nor eligible to submit an offer on the procurement in question.
In Matter of GTEC Industries, Inc., the OHA held it lacked jurisdiction over an appeal from the SBA's denial of an application for entry into the 8(a) program based on a finding that the applicant did not meet the potential for success requirements for tribally-owned entities at 13 C.F.R. § 124.109(c)(6).
In Size Appeal of Point Blank Enterprises, Inc., the OHA held that, in HUBZone procurements, size is determined as it is in other situations, i.e., as of date of self-certification with the initial priced offer, not the date of award.
In Size Appeal of KCW Design Group, LLC,the OHA held that the Area Office had correctly applied an adverse inference after the protested firm failed to respond to specific and credible protest allegations.
In Size Appeal of TIC Security, LLC, the OHA upheld the Area Office's dismissal (as untimely) of a size protest filed in connection with the issuance of a task order under a long-term (GSA Schedule) contract because the Contracting Officer had not requested recertification of size for purposes of the task order.
In Matter of Fairwater Assocs., the OHA upheld the SBA's decision to dismiss a protest filed two days after a debriefing, but ten days after the notice of award, as untimely.
In Size Appeal of Davis Defense Group, Inc., the OHA (as had the Area Office) (i) noted that the size protest was untimely because the Contracting Officer had not requested re-certification prior to awarding a task order under a long term contract and also (ii) held that the protester lacked standing because its offer had been found to be technically unacceptable.
In NAICS Appeal of Veterans4You, Inc., the OHA held it lacked jurisdiction over a NAICS appeal of the NAICS code in a GPO solicitation issued on behalf of the VA because the GPO is a legislative branch agency not subject to SBA requirements.
In CVE Protest of Crosstown Courier Service, Inc., the OHA dismissed a protest because the only allegations the protester advanced (e.g., that the protested firm lacked the capability to perform the contract) were not within the OHA's CVE protest jurisdiction.
In CVE Appeal of Arctic Tundra Supply and Services, LLC, the OHA dismissed an appeal requesting only that the underlying decision be "reconsidered" without alleging or identifying any errors in the decision.
In Size Appeal of AOC Connect, LLC, the OHA held that the Area Office had correctly dismissed a protest as nonspecific because its allegations were based on the challenged firm's alleged size on the date it submitted its revised offer when the correct date for determining size was the date of the initial offer.
In Size Appeal of Wilson Walton Int'l., Inc., the OHA held that a protest merely alleging affiliation without presenting any evidence that the combined size of the allegedly affiliated firms exceeded the applicable size standard was insufficiently specific.
In Size Appeal of ALOG Corp., the OHA affirmed the Area Office's determination dismissing a protest for, inter alia, lack of standing because orders under a contract originally set aside for small businesses no longer were restricted, and the protested firm had not represented itself as small.
In Size Appeal of Resicum International, LLC, the OHA held that the Area Office erred in dismissing a protest as nonspecific because the protester quickly corrected the problem within the five-day time limit for filing a protest.
In Size Appeal of Land Shark Shredding, LLC, the OHA held that the Area Office correctly determined that the protester lacked standing to file its size protest because it had been eliminated from the competition for submitting a late quotation. In CVE Protest of Land Shark Shredding, LLC, the OHA dismissed a protest of a firm's SDVOSB status because the contract initially awarded to the protested firm had been terminated for convenience. Several other decisions involving Land Shark Shredding emphasize that a protest of SDVOSB status requires more than a mere allegation (especially an allegation of something unrelated to that status) to avoid dismissal-- see SBA No. CVE 138-P, 139-P, and 142-P.
In Size Appeal of Mid-Continent Group, LLC, the OHA dismissed (as untimely) an appeal filed more than 15 days after the appellant received the Area Office's determination.
In NAICS Appeal of EYP Squared
Joint Venture, LLP, the OHA
dismissed an appeal of the NAICS code in a presolicitation
notice as premature because the formal solicitation had not yet
been issued.
In NAICS Appeal of Keating Dental Arts, the OHA dismissed an appeal as moot because the solicitation had been canceled.
In Size Appeal of Inquiries, Inc., the OHA affirmed the Area Office's denial of a size protest because: (i) the facts that (a) two firms worked together on two other projects, (b) their offices were in proximity to one another, and (b) the proposal referred to them as a "team" were not sufficient to find affiliation, especially in the absence of common ownership, management, or employees or any evidence that one firm was financially dependent on the other; and (ii) based on the final two factors in the standard DoverStaffing analysis, the challenged firm did not run afoul of the ostensible subcontractor rule simply by teaming with a large business that had been the incumbent on a predecessor contract since (a) the challenged firm would hire the incumbent's management personnel and make them its own employees, and (b) the challenged firm had sufficient past performance experience on its own so that it was not unduly reliant on the past performance experience of the alleged affiliate.
In Size Appeal of Nationwide Pharmaceutical, LLC, which involved the ostensible subcontractor rule, the OHA held that the Area Office had correctly found that the challenged firm would perform the contract's primary and vital requirements based in part on an MOU and a declaration that had been created after the proposal was submitted to explain the respective roles of the prime and subcontractor because those documents did not contradict the proposal, which had been silent on the issue. The OHA also held that the appellant had failed to establish that the prime was unusually reliant upon the sub because three of the four factors required by the DoverStaffing decision to establish such a finding were not present here.
In Size Appeal of Bukkehave, Inc., the OHA: (i) denied a motion to submit new evidence that could have been, but was not, submitted to the Area Office; (ii) held that the Area Office was not required to investigate an alleged noncompliance with the nonmanufacturer rule because the appellant did not raise that issue in its size protest; (ii) denied the appellant's arguments that the protested firm provided incomplete or inaccurate evidence to the Area Office because the arguments were based on "new" evidence that OHA had determined was inadmissible; and (iv) decided that the appellant, by failing to address an affiliation argument in its supplemental appeal, had abandoned the argument.
In Size Appeal of Cypher Analytics, Inc., d/b/a Crown Point Systems, the OHA held that the Area Office had correctly determined that a firm was ineligible for award because no waiver of the nonmanufacturer rule applied to the procurement and the firm would not supply end items manufactured by small businesses. The OHA specifically noted that the Contracting Officer's erroneous announcement to potential offerors that a class waiver of the nonmanufacturer rule was applicable to the procurement was irrelevant because only the SBA has the authority to issue waivers.
In Size Appeal of Tesecon, Inc. the OHA upheld the Area Office's finding of affiliation of firms through the identify of interest of brothers who had close connections in several business interests.
In Size Appeal of Hardwire, LLC, the OHA reversed the Area Office's finding that two firms were not affiliated through common management because the fact that they had different majority shareholders did not preclude a finding that they were affiliated through common management (the same person was the CEO of both firms as of the date of self-certification).
In Size Appeal of TelaForce, LLC, the OHA denied a petition for reconsideration of a portion of the OHA's prior decision because there was a valid basis for its conclusion that the Area Office had not explained its rationale for concluding that the first element of the newly-organized concern rule had been met.
Previously, in Size Appeals of Dehler Mfg. Co., Inc., the OHA (i) upheld the Area Office's finding that a firm's ownership of the designs and drawings did not qualify it as the manufacturer of the end item for purposes of the nonmanufacturer rule, and (ii) held that the Area Office was not required to consider the contention (first raised on the appeal to the OHA) that the contested firm's small business subcontractor was the manufacturer, especially where that argument was inconsistent with allegations originally made to the Area Office. Now, the OHA has denied the firm's petition for reconsideration.
In Size Appeal of Kingfisher Systems, Inc., the OHA upheld the Area Office's determination that the contested firm's average annual receipts exceeded the applicable size standard because the firm had not provided any explanation to the Area Office as to why the normal rule that receipts equals income was inapplicable in this case, and that position was not evident from the supporting documents the firm had supplied to the Area Office in response to the size protest.
In Size Appeal of Birmingham Industrial Constr., LLC, the OHA held that, in calculating the average annual receipts of affiliated companies, the Area Office had erred in failing to make any deductions for interaffiliate transactions on the assumption that the Appellant's tax returns took into account such transactions simply because its financial statements were consolidated, where Appellant had made no such statement, and where each entity filed its own separate tax return.
In Size Appeal of Excellus, LLC, the OHA held that the Area Office had correctly concluded that a JV had violated the 3-in-2 rule because merely altering the composition of the JV over time was not sufficient to comply with the regulation requiring a new JV to be established to avoid noncompliance with the rule.
In Size Appeals of Kentucky Bldg. Maintenance, Inc. and NMI Alaska, Inc., the OHA held, inter alia, that the protested firm was an eligible 8(a) mentor-protégé joint venture for purposes of the solicitation at issue, even though one of the JV members had terminated the mentor-protégé agreement after the JV's submission of its initial offer, but prior to award, because size is determined as of the date of the initial priced offer, and the agreement provided that its termination would not impair any obligations of the JV.
In Size Appeal of Atlantic Diving Supply, Inc. the OHA held that the Area Office: (i) failed to provide the protested firm with an opportunity to respond to the Area Office's concern prior to drawing an adverse inference against the firm; (ii) failed to address the issue of whether a clear line of fracture had been established between the interests of challenged parties; (iii) erred in relying upon past connections between the protested firm and its alleged affiliates; and (iv) (most importantly) failed to clearly articulate on which basis it was finding affiliation.
In Size Appeal of Mystic Ventures Group, LLC, the OHA held that the Area Office had correctly determined that a firm failed to comply with the nonmanufacturer rule because it proposed to supply items manufactured by a large business.
In Size Appeal of Global Dynamics, LLC, the OHA rejected a litany of complaints by the protester and held, inter alia, that: (i) events occurring after a firm's self-certification as of its initial priced proposal were irrelevant to the Area Office's size determination; (ii) a 2016 change in the SBA's regulations essentially forbidding populated joint ventures was not retroactive; and (iii) contrary to the protester's contentions, the JV in question met all the requirements in 13 C.F.R. 124.513(c) and (d).
In Size Appeal of Avar Consulting, Inc., the OHA held that the Area Office's decision finding a challenged firm (TelaForce) to be an eligible small business was not inconsistent with the OHA's prior decisions in TelaForce I and TelaForce II. Specifically: (i) there was a rational basis for the Area Office's conclusion that there was no violation of the newly organized concern rule because the first required element of the rule (that the former officers, directors, principal stockholders, managing members, or key employees of one concern organize a new concern) was not present; (ii) the Area Office correctly determined there was no presumption of economic dependence because almost all of the revenue the challenged firm derived from its mentor was under an approved mentor-protégé agreement, and, thus, did not count toward the 70% figure that would have triggered the presumption; and (iii) there was no affiliation via the totality of the circumstances because there were no allegations of affiliation apart from the two allegations the Area Office had rejected.
In Size Appeal of ZLynx Enterprises, Inc., the OHA upheld the Area Office's finding of affiliation among three firms based on (i) the identity of interest between father and son absent any evidence of a line of fracture and (ii) common management because aggregating the positions of the father and son in the firms demonstrated that they controlled the firms.
In Size Appeal of Cypher Analytics, Inc. d/b/a Crown Point Systems, the OHA denied a protest alleging that the Runway Extension Act requires basing a firm's revenue-based size on a five- (rather than a three-) year revenue period because the Act only applies to establishing a size standard, not to calculating a particular firm's size, and even interpreted as the protester claims, the Act contemplates that rulemaking procedures will be followed before its provisions are implemented, and those procedures have not yet occurred.
In Size Appeal of The Coleman Group, Inc. d/b/a Spherion Staffing Services, the OHA held that a franchisor and franchisee for temporary employment services were affiliated because of the amount of control the franchise agreement gave the franchisor over the franchisee's operations.
In Size Appeal of Advanced Technology Systems Co., following its own precedent in Size Appeal of Cypher Analytics, Inc. d/b/a Crown Point Systems, the OHA held that the Area Office did not err in computing a firm's receipts using a three-year rather than a five-year period because regulations had not yet been promulgated implementing the requirements of the Runway Extension Act.
In Size Appeal of BCI Constr. USA, Inc., the OHA upheld the Area Office's conclusion that the protested firm was not the manufacturer of the end item being procured because the firm's own proposal did not contain any indication it would manufacture the item and indeed stated that another firm was the manufacturer.
8(a)/SDVOSB/VA/CVE/WOSB Status
In Matter of 7Skyline, LLC, the OHA affirmed the SBA's denial of a firm's application for entry into the 8(a) program because much of the information offered to support a claim of social disadvantage based on gender discrimination was vague, conclusory, and lacking in detail, was unrelated to the applicant's personal experiences, or was insufficient to show either that (a) the alleged incidents of discriminatory conduct adversely affected the individual's entry into, or advancement in, the business world or (b) the alleged social disadvantage was both "chronic and substantial" as required by the governing regulations.
In CVE Protest of Alpha4 Solutions LLC d/b/a Alpha Transcription, the OHA upheld the qualification of a firm as an SDVOSB because two of its three owners were SDVs; the collective unconditional ownership interests of those two SDVs totaled at least 51%; and those two SDVs fully controlled the operations of the SDVOSB.
In Size Appeal of North Wind Site Services, LLC, which involved an 8(a) procurement, the OHA held that after the Area Office had verified that the offeror had an approved 8(a) mentor-protégé joint venture agreement, it was unnecessary, and would have been improper, for the Area Office to conduct a separate review of that agreement, and Area Offices are not required to forward all 8(a) eligibility allegations to the Office of Business Development for review
In Matter of Progressive X-Ray, Inc., the OHA held that its new jurisdiction over protests of eligibility for inclusion in the VA's Center for Verification and Evaluation (CVE) database does not include jurisdiction over bid protests of a procuring agency's evaluation of proposals in response to a solicitation and, therefore, dismissed the protest in question.
In CVE Protest of Veterans Contracting, Inc., the OHA sustained a protest of an SDVOSB JV's eligibility because the JV agreement did not contain the required breakdown of the JV partners' respective responsibilities for the procurement at issue.
In CVE Protest of Williams Bldg. Co, Inc., the OHA denied a protest alleging lack of control of an SDVOSB by an SDV because (i) the SDV worked 60 hours per week at the challenged firm and had resigned from his previous second jobs, and (ii) neither of two "ordinary members" of the challenged firm had the power to control it-- one of them held a position subordinate to that of the SDV, and the other was not an officer of the SDVOSB, and his outside ownership interest was not with a firm that conducted any business with the SDVOSB.
In In the Matter of C & E Industrial Service, Inc., the OHA affirmed the SBA's finding that the two women shareholder/owners of a company lacked the necessary managerial experience and expertise to control the concern because their husbands, who also had interests and positions in the firm, had significantly more relevant experience in the areas required to run the company.
In CVE Protest of Advanced Management Strategies Group, LLC/Reefpoint Group, LLC, the OHA sustained the protest because the challenged firm was not majority-owned by the SDV or by a qualified revocable trust in which the SDV was the grantor, trustee, and sole current beneficiary.
In CVE Appeal of Valor Constr., Inc., the OHA upheld the denial of an application for inclusion as an SDVOSB in the VIP database because the SDV did not have the required managerial experience, was prohibited by the firm's Bylaws from unilaterally setting salaries, and was employed full-time at another job.
In CVE Appeal of SDVC, LLC, the OHA upheld the cancellation of a firm's verification in the VET database after its SDV owner died and the firm failed to present adequate evidence that it was still owned and controlled by an SDV.
In CVE Protest of Commonwealth Home Health Care, Inc., a successful protest, the OHA held that, although the JV between an SDVOSB protégé and its mentor firm did not have to satisfy the ownership and control requirements applicable to stand-alone SDVOSBs, it was required to, but did not, comply with the requirement at 13 C.F.R. § 125.18(b) that, as of the date of self-certification, the JV agreement specify the parties' respective contributions to the procurement at issue.
In CVE Appeal of Secure2ware, Inc., the OHA held that the mere statement that a firm did not agree with the decision denying its application for inclusion in the VIP database of SDVOSBs was not sufficient to satisfy the required burden of proof in its appeal of that decision.
In CVE Appeal of Next Dimension Training, the OHA held that the VA did not err in denying a firm's application for inclusion in the VIP database of SDVOSB firms because, inter alia, the SDV lived half way across the country from the firm's office and the evidence did not demonstrate he had the requisite power to manage and control it.
In CVE Appeal of GCBO Sourcing Partners the OHA upheld the decision to remove a firm from the VIP database after the firm failed to provide requested documents to demonstrate its continued eligibility for inclusion.
In CVE Appeal of Afily8 Government Solutions, LLC, the OHA denied a firm's appeal of its removal from the VIP database because, in response to requests for information to ascertain its continued eligibility, the firm provided inaccurate information concerning its SDV's outside employment and failed to provide other requested information concerning its subcontracts.
In CVE Appeal of Veterans 1st Architecture, LLC, the OHA sustained an appeal of the denial of a firm's application for re-verification in the VET database of eligible SDVOSBs because the fact that the SDV did not have a license required by State of Georgia for the practice of architecture was not fatal to his ability to manage and control the daily operations of the firm since the firm did more than just practice architecture. However, in CVE Appeal of Supreme Cleaning, Inc., the OHA upheld the denial of a firm's recertification in the VIP database because the SDV lacked the required state licenses to exercise managerial and supervisory control for the NAICS codes listed in firm's VIP profile.
In CVE Appeal of RealSims, LLC, the OHA affirmed the removal of a firm from the VIP database for repeated failures to provide requested documentation concerning its eligibility.
In CVE Appeal of Oasys International Corp., the OHA granted an appeal of a cancellation from the VET database because the submitted documentation clearly showed that, through a merger, ownership of the firm had been transferred from the prior SDV to another eligible SDV.
, the OHA upheld the cancellation of a firm's inclusion as a verified SDVOSB in the VIP database because the firm did not: (i) promptly notify the CVE of its change in ownership, as required by 38 C.F.R. §§ 74.21(d)(7), (8); or (ii) provide sufficient information for CVE to determine the extent to which a non-veteran participated in the firm's management, in contravention of 38 C.F.R. § 74.21(d)(4).In CVE Appeal of Barry Capital Projects, Inc., the OHA upheld the denial of a firm's status as an SDVOSB in the CVE database because the firm failed to rebut the finding that its SDV lacked the requisite managerial and supervisory control over the individual who held the firm's state-required operational license for a remodeler.
In Matter of SDVE, LLC, the OHA upheld the SBA's determination that a firm was not an eligible SDVOSB because (i) the firm did not present evidence that the SDV had managerial experience in the firm's area of business (construction), and (ii) there was no evidence that the SDV actually was the majority owner of the firm.
In In the Matter of Cali Electric, Inc., the OHA denied an appeal that failed to state why the cancellation of a firm's SDVOSB status was erroneous. The appeal in its entirety read as follows: "Please give me back sdvosb. My determination letter is incorrect because I am a service disabled veteran and I have provided all the documents proving that to the va."
In Matter of Caduceus Healthcare, Inc., by way of summary judgment, the OHA upheld the SBA's termination of a firm from the 8(a) program because the undisputed facts established that the sole owner's personal net worth exceeded the $750,000 limit prescribed by 13 C.F.R. § 124.104(c)(2), and his total assets exceeded the $6 million limit prescribed by 13 C.F.R. § 124.104(c)(4).
In CVE Protest of BMK Ventures, Inc., the OHA held that: (i) an individual is not required to disclose his SDV status on his personal social media accounts (e.g., LinkedIn); and (ii) the documentation established that the SDV controlled the SDVOSB because (a) he worked there from 7:30 am to 5:30 pm Monday through Friday, and (b) he did not spend any time managing a separate real estate holding company set up just for the one SDVOSB property.
In CVE Appeal of David Han d/b/a Coresivity, the OHA affirmed the cancellation of a firm's SDVOSB status in the CVE database for failure to provide information requested by CVE.
In NAICS Appeal of Keystone Turbine Services, LLC, the OHA held that the Contracting Officer erred in assigning NAICS code 488190 ("Other Support Activities for Air Transportation") to a solicitation for the repair and overhaul of Rolls Royce model 250 aircraft engines for Navy TH-57 helicopters when the appropriate NAICS code is 336412 ("Aircraft Engine and Engine Parts Manufacturing") with a corresponding size standard of 1,500 employees.
In NAICS Appeal of PrimeTech International, Inc., which involved a solicitation for third party logistics and management services for a consolidated storage program, the OHA rejected both the Contracting Officer's selected NAICS code 541614 ("Process, Physical, Distribution, and Logistics") and the appellant's proposed alternative of NAICS code 561210 ("Facilities Support Services") in favor of NAICS code 493190 ("Other Warehousing and Storage") with a $27.5 million annual receipts size standard.
In NAICS Appeal of Salvadorini Consulting, LLC, which involved a procurement to lease one new mobile Computerized Tomography (CT) scanner, the OHA rejected both the protester's proposed NAICS code 621512 ("Diagnostic Imaging Centers") and the Contracting Officer's choice of NAICS 334517 ("Irradiation Apparatus Manufacturing") in favor of NAICS code 532490 ("Other Commercial and Industrial Machinery and Equipment Rental and Leasing") with a corresponding size standard of $32.5 million average annual receipts.
In NAICS Appeal of Oak Grove Technologies, LLC, which involved a solicitation for Army Special Operations Forces Training Support, the OHA upheld the Contracting Officer's assignment of NAICS code 611519 ("Other Technical and Trade Schools") as opposed to the protester's suggested alternatives, including NAICS code 711310 ("Promoters of Performing Arts, Sports, and Similar Events with Facilities") and 561210 ("Facilities Support Services").
In NAICS Appeal of Paradigm Engineers and Constructors, PLLC, which concerned a solicitation for an A/E Firm to provide site investigation, schematic design, design development, construction documents, and bid documents for the renovation of a VA Medical Center building, the OHA affirmed the Contracting Officer's amended choice of NAICS 541310 (Architectural Services), with a corresponding $8 million annual receipts size standard as opposed to NAICS 541330 (Engineering Services) with a corresponding $16.5 million annual receipts size standard, which had been the original standard applied to the solicitation.&