| Home |
| Contact Me |
| Current Blog |
| 2023 Blog |
| Courts |
| GAO |
| Boards |
| SBA |
| Statutes |
| Regulations |
| Directives |
| Agency Sites |
| More Agencies |
| Periodicals |
| Research |
2020 Procurement Review: Protests
| Contents |
|
|
|||
|
|||
|
|
|||
|
|
The GAO published 43 decisions sustaining protests on the merits (some of which were originally dated in 2019 but not issued to the public as redacted versions until this year).
The GAO sustained a preaward protest by Academy Medical, LLC, against a solicitation issued as unrestricted, because the agency's market research had relied on outdated information from a prior solicitation with materially different requirements in concluding there was not a reasonable expectation that at least two VOSBs or SDVOSBs would be capable of performing the work at a fair and reasonable price.
The GAO sustained a protest by Booz Allen Hamilton, Inc. because a task order solicitation's requirement that the offeror or its affiliate be an independent public accountant unduly restricted competition (because it was not shown to be necessary to meet the agency's minimum needs) and exceeded the scope of the underlying IDIQ contract.
In Steel Point Solutions, LLC, a case involving an issue one might normally expect to find litigated at a board of contract appeals, the GAO held that, following a default termination, the agency had improperly awarded a reprocurement contract for a term longer than the remaining undelivered term on the terminated contract.
The GAO sustained protests by ASRC Federal Data Network Technologies, LLC; Ekagra Partners, LLC because the solicitation, as interpreted by the agency during discussions, did not provide offerors enough information concerning the level of effort required for certain fixed-price work to permit them to bid intelligently.
The GAO sustained a protest by Booz Allen Hamilton, Inc. because a task order solicitation's requirement that the offeror or its affiliate be an independent public accountant unduly restricted competition (because it was not shown to be necessary to meet the agency's minimum needs) and exceeded the scope of the underlying IDIQ contract.
The GAO sustained a protest by Noble Supply & Logistics, Inc. because: (i) when establishing single-award BPAs with FSS contract holders, the agency’s use of a highest-technically rated, reasonably-priced source selection methodology (which did not include a comparison of prices or an evaluation of price as part of the best value determination) did not satisfy the agency’s obligation to establish BPAs with schedule contractors who can provide the supplies or services that represent the best value and result in the lowest overall cost alternative; and (ii) the solicitation's required pricing structure was inconsistent with the terms of the underlying FSS contract.
The GAO sustained protests by Mythics, Inc.; Oracle America, Inc. against the terms of a solicitation for cloud computing services, finding those terms unduly restrictive of competition because: (i) despite its protestations to the contrary, the agency essentially would be requiring stated brand-name products without the proper justifications; (ii) the solicitation contemplated online marketplaces, which were to be populated with products selected by the cloud service providers without any oversight by the agency to ascertain whether there was competition or whether the selected products met the agency's needs; and (iii) the solicitation was clear that the agency intended to make a single ID/IQ contract award if at all possible when the governing regulations have a preference for the use of multiple awards unless the agency prepares a proper justification for a single award, which it had not done in this case.
The GAO sustained a protest by Chronos Solutions, LLC, et al., against the terms of a solicitation because the procuring agency did not consider material factors, such as the effects of the pandemic, in determining its needs and drafting the the solicitation.
The GAO sustained a protest by AES, UXO, LLC because the solicitation language requiring offerors to have performed work as a prime contractor or joint venture partner in order for that work to count in the past performance and experience evaluations was unduly restrictive of competition and was inconsistent with the agency's stated purpose for including that requirement.
Even though it lost on six of its seven protest grounds, IDS International Government Services, LLC, convinced the GAO that the solicitation’s experience factor was ambiguous because the evaluation criteria and adjectival ratings conflicted regarding the basis on which proposals would be evaluated.
Flawed Evaluation / Lack of Meaningful Discussions
The GAO sustained a protest by IT Objects, LLC, because the awardee’s proposal did not include a letter of commitment for an individual proposed for a key personnel position, and thus failed to satisfy a material solicitation requirement.
In Fluor Intercontinental, Inc.--Advisory Opinion, the GAO held that the agency did not evaluate the awardee’s fixed-price contract line item for reasonableness as required by the solicitation.
In PMSI, LLC d/b/a Optum Workers' Compensation Services of Florida, the GAO found that: (i) the agency had improperly (a) interpreted the solicitation as requiring a certain type of drug utilization review services, (b) credited the awardee and the protester with having offered these services when they had not actually done so, and (c) given the awardee more credit than the protester for allegedly offering these services; and (ii) the agency improperly added an amount to the protester's total evaluated price for the services it had not proposed.
The GAO sustained parts of a protest by Inquiries, Inc. because (i) the agency did not meaningfully consider potential organizational conflicts of interest arising from the awardee's subcontractor's prior and ongoing work on other contracts; and (ii) the agency’s evaluation of the awardee’s compensation of its professional employees in this service contract improperly relied on a comparison of offerors’ burdened labor rates, rather than salary ranges and fringe benefits, as would be required under FAR 52.222-46.
Ohio KePRO, Inc. won its protest because the agency failed: (i) to reasonably assess the protester’s proposed direct labor rates and its proposed level of effort in the cost realism evaluation; (ii) to reasonably evaluate the awardee’s proposed level of effort in the technical evaluation; and (iii) to adequately document the basis for its conclusion that the awardee’s proposal demonstrated the required experience.
The GAO sustained a protest by Addx Corp. because: (i) the agency applied an unstated evaluation criterion in its past performance evaluation and unreasonably evaluated the responses provided in the past performance questionnaires; and (ii) the agency failed to perform and document any analysis that considered the protester’s lower proposed cost in its decision to eliminate the protester’s proposal from the competition.
The GAO sustained a protest by Sayres & Assocs. Corp. because the agency’s cost realism evaluation failed to explain how the agency determined that the historical data and narrative provided by the protester to justify its proposed escalation rate was inadequate
CEdge Software Consultants, LLC won its protest because there was no evidence in the record showing that the agency had performed a qualitative assessment of the merits of the vendors’ differing technical approaches as required by the solicitation.
Deloitte Consulting LLP won its protest because: (i) the agency made an award to a firm that took exception to the solicitation's material delivery requirement; and (ii) the award decision failed to adequately address the evaluated differences between the quotations and why the protester’s higher-rated quotation was not worth a price premium.
The GAO sustained a protest by IAP Worldwide Services, Inc. because, without adequate explanations, the agency assigned evaluated strengths to the awardee's proposal for (i) experience that had no relevance to the work required by the current solicitation and (ii) the awardee's decision not to subcontract.
The GAO sustained a protest by MetroStar Systems, Inc. because (i) the agency improperly credited awardees with certifications that applied only to their affiliates; and (ii) the agency improperly credited an awardee with the corporate experience and past performance of affiliates that were not shown to be contributing to current contract effort.
The GAO sustained a protest by Leidos Innovations Corp. because, contrary to the requirements of the solicitation, the agency failed to consider information submitted by the offerors in Q&A sessions and information submitted by the awardee during subsequent exchanges with it. The agency also shot itself in the foot several times by having to correct erroneous statements to the GAO and by having destroyed the videotapes of the Q&A sessions.
Battelle Memorial Institute won its protest because the agency assigned the protester a weakness for failure to address a solicitation task that the awardee also failed to address without receiving the same demerit.
The GAO sustained a protest by M.C. Dean, Inc. because the awardee failed to notify the agency prior to award that its proposed program manager had been denied a required security clearance.
The GAO sustained a protest by Leumas Residential, LLC because the record of the evaluation did not support the agency's negative conclusions concerning the protester's proposal in several areas.
The GAO sustained a protest by Business Integra Technology Solutions, Inc. because, in conducting a reevaluation as corrective action in response to a prior protest, the agency improperly (i) rated the awardee's Past Performance highly on the basis of contracts that were much smaller than the current order, in violation of a solicitation requirement; (ii) assigned a "weakness" to the protester's proposal for proposing an innovation that the agency did not believe was actually one, when the solicitation only contemplated assigning strengths for innovations, not weaknesses for a failure to propose them; (iii) based its new source selection decision in part on the superseded evaluation that was the subject of the original protest (a mistake the agency conceded during the protest); and (iv) failed to comply with the solicitation's requirements to consider "total" price in the best value price/technical trade-off.
The GAO sustained a protest by Patronus Systems, Inc. because (i) the agency unreasonably concluded that the awardee’s revised technical proposal resolved a deficiency in its initial proposal; and (ii) the agency’s evaluation of inconsistencies between the labor hours proposed in the awardee’s technical and price proposals was unreasonable and inadequately documented.
Avionic Instruments, LLC won its protest because there was no contemporaneous explanation in the record of the evaluation for: (i) the agency's decision to credit the awardee with experience beyond that stated in its proposal and (ii) the agency's failure to credit the protester for demonstrating that it could timely deliver a product manufactured in its own facilities.
Evergreen JV won its GAO protest because the agency evaluated the protester's statement of qualifications in a manner inconsistent with the stated evaluation criteria in a synopsis for A/E services.
The GAO sustained a protest by Weston-ER Federal Services, LLC because the agency evaluated proposals disparately and not in accordance with the solicitation's requirements in the past performance and previous experience factors.
The GAO sustained a protest by Knight Point Systems, LLC because the agency erroneously concluded that the protester's parent company rather than the protester was the entity submitting the quotation.
Connected Global Solutions, LLC, and HomeSafe Alliance, LLC both won their GAO protests concerning the same procurement on multiple grounds, including, inter alia, that: (i) the agency's affirmative responsibility determination of the awardee was improper because the awardee's statements concerning its responsibility conflicted with representations in its technical proposal; (ii) the agency failed to adequately document oral discussions; (iii) (with regard to HomeSafe), the agency conducted misleading discussions by repeatedly informing it that its total evaluated proposed price seemed high when, in fact, it was low compared to that of other offerors; and (iv) the agency disparately evaluated technical capability proposals, which subsequently tainted the best value tradeoff determination.
In QBase, LLC, et al., a consolidated protest involving several protesters, the GAO held that: (i) the agency's evaluation treated one protester's proposal unequally with those of other offerors who received higher credit for proposing the same thing; and (ii) the agency "performed a mechanical tradeoff that relied exclusively on adjectival ratings, excluded technically acceptable proposals without any consideration of the price of those proposals, and, in general, did not meaningfully consider price."
The GAO sustained a protest by Master Pavement Line Corp., finding that it was improper to reject the low bid as nonresponsive for failure to have an active SAM registration at the time of bid submission. That type of error is only a matter of responsibility that the bidder should have been given an opportunity to correct.
Pasha Hawaii Holdings LLC won its GAO protest on multiple grounds: (i) the past performance and technical evaluations were inconsistent with the terms of the solicitation; (ii) the price realism evaluation was flawed because the record did not reflect that the agency had considered the risk to contract performance of the awardee's low-priced proposal; and (iii) the solicitation contained a latent ambiguity concerning crew requirements.
The GAO sustained a protest by Hoover Properties in a procurement for leased office space because the agency did not adequately document its basis for the relocation and move-related costs that it added to the protester’s proposal during the price evaluation.
The GAO sustained a protest by DevTech Systems, Inc. because: (i) the agency conducted unequal discussions by requesting that the awardee confirm that its proposed subcontractors would comply with a cost ceiling, but without providing the protester with an opportunity for discussions; and (ii) the agency unreasonably evaluated the realism of offerors’ proposed costs where the agency conceded that errors were made in the evaluation, and other areas of the evaluation were not supported by the record.
The GAO sustained a preaward protest by Academy Medical, LLC, against a solicitation issued as unrestricted, because the agency's market research had relied on outdated information from a prior solicitation with materially different requirements in concluding there was not a reasonable expectation that at least two VOSBs or SDVOSBs would be capable of performing the work at a fair and reasonable price.
Eminent IT, LLC won its protest because the agency did not establish that, pursuant to FAR § 19.815 and 13 C.F.R. § 124.504(d), certain follow-on work was a "new requirement" that would justify the agency in removing it from the 8(a) program.
In UpSlope Advisors, Inc., the GAO held that the agency failed to comply with the SBA’s regulations (specifically, 13 C.F.R. § 124.506(b)) when it announced its intention to award a sole-source contract to a tribally owned concern where the contract was for the same requirement as one previously competed within the SBA’s section 8(a) program.
The GAO sustained parts of a protest by Inquiries, Inc. because (i) the agency did not meaningfully consider potential organizational conflicts of interest arising from the awardee's subcontractor's prior and ongoing work on other contracts; and (ii) the agency’s evaluation of the awardee’s compensation of its professional employees in this service contract improperly relied on a comparison of offerors’ burdened labor rates, rather than salary ranges and fringe benefits, as would be required under FAR 52.222-46.
AT&T Corp. won its GAO protest because the Contracting Officer’s determination that there was no potential impaired objectivity OCI associated with the awardee was based on unreasonable interpretations of the SOW.
The GAO sustained a protest by Teledyne Brown Eng'g, Inc., holding that the procuring agency failed to adequately investigate or mitigate an apparent conflict of interest arising from an ongoing personal relationship between an agency employee (who was intimately involved with every aspect of the procurement, including the evaluation) and an employee of the predecessor prime (which was also a major subcontractor to the winning bidder).
In Barbaricum, LLC--Costs, the GAO recommended the reimbursement of the protester's costs incurred in responding to the agency's meritless request for reconsideration of a prior GAO decision sustaining the protest.
In Spry Methods, Inc.,--Costs, the GAO recommended reimbursement of costs where the agency unduly delayed corrective action related to faulty technical evaluation.
In Markit! Forestry Management, LLC--Costs, the GAO recommended reimbursement of costs where agency unduly delayed corrective action related to faulty price and tradeoff evaluations.
The GAO sustained a protest by Computer World Services Corp. because the agency's proposed corrective action would have materially changed the evaluation methodology without amending the solicitation and permitting offerors to submit revised proposals.
The GAO sustained a protest by Peraton, Inc. against an agency's proposed corrective action because it would not permit the protester to revise sections of its proposal that were required by the solicitation to align with other sections that would be changing as a result of the corrective action, i.e., the corrective action would require the protester to submit a flawed proposal that was internally inconsistent.
Timeliness/Standing/Jurisdiction/Automatic Stay
In Desktop Alert Inc., the court held it lacked jurisdiction over a protest alleging that the Government had decided to utilize items it already owned rather than procuring items because there was no procurement to be protested. The court also noted that other allegations first raised by the plaintiff in its proposed motion to supplement its response to the Government's motion to dismiss were new allegations which could only form the basis of a different protest should the plaintiff decide to file one.
In W&G Machine Co., an unsuccessful protest, the court held that the plaintiff, who had not responded to agency's notices of the proposed procurement or submitted a proposal, lacked standing to challenge a bundled procurement.
In Relyant Global, LLC, an unsuccessful post-award protest, the court held that: (i) the plaintiff had waived its right to challenge the solicitation's security clearance requirements by failing to raise the issue before the close of bidding; and (ii) the court lacked bid protest jurisdiction over the claim that the Government improperly allowed the awardee to delay obtaining a facility security clearance after award because that allegation involved a matter of contract administration.
In MCI Diagnostic Center, LLC, an unsuccessful preaward protest, the court held that the protester's proposal did not meet several mandatory solicitation requirements, and, therefore, the protester was ineligible for award and lacked standing to challenge the cancellation of the solicitation.
In Cashman Dredging and Marine Contracting Co., LLC, the court denied the plaintiff's motion for a preliminary injunction, holding that: (i) the court lacked jurisdiction over a challenge to the rationality of the SBA's decision to issue a CoC to the protester's competitor; and (ii) the protester did not establish prejudice from the irregular manner in which the SBA provided notice of the CoC to the Contracting Officer.
In Computer World Services Corp., an unsuccessful post-award protest, the court: (i) refused to apply the Blue & Gold Fleet rule to this situation where the protester had not filed suit until two months after the GAO had denied its preaward protest of its exclusion from proceeding to Phase 2 of the competition (and more than a month after the contract had been awarded); but (ii) denied the protest on the merits because (a) the contractor (whose technical proposal was lower-rated than all but one of the 21 proposals that were evaluated) had failed to establish prejudice, and (b) the Government's assignment of each of five weaknesses to the proposal and its decision not to assign additional strengths to the proposal all had rational bases. The court refused to extend the Blue & Gold Fleet reasoning to situations not involving challenges to the terms of a solicitation.
In BHB Ltd. Partnership & Indiana Assocs. Ltd. Partnership of Washington, D.C., the court denied the plaintiffs' application for a TRO against the agency's potential award of a contract before the underlying protest was decided because the issues in that protest were not yet sufficiently developed for the court to assess the likelihood of success on the merits.
In Electra-Med Corp., the court dismissed the case because the contracts at issue had lapsed and the original protest did not afford the court the power to exercise continuing oversight authority over subsequently-awarded bridge contracts.
In Top Gun Services, LLC, the court held that the protester lacked standing to challenge modifications of AbilityOne contracts on a sole-source basis because it was not a qualified nonprofit agency capable of receiving AbilityOne contracts had the awards been competitive.
In Wisconsin Physicians Service Insurance Corp., an unsuccessful post-award protest, the court held: (i) the protester had standing to challenge the evaluation of its proposal because if every error it alleged in that evaluation were recognized by the court and corrected, its chance of award would not have been insubstantial; (ii) there were rational bases for the Government's determination that the protester's technical approach weaknesses rendered its proposal unacceptable; (iii) the protester lacked standing to challenge alleged errors in the procurement (the handling of the awardee's OCI mitigation plan) occurring after the protester was eliminated from the competition; and, in any event, (iv) the handling of the mitigation plan was not improper.
In
Melwood Horticultural Training Center, Inc., the court held that: (i) it lacked bid protest jurisdiction
over a claim that a contract had been wrongfully canceled; (ii) a letter
indicating
the Government's intent to
re-compete a contract did not constitute a final agency action subject to a bid
protest challenge; and (iii) a claim that the Government's action in
implementing a Pilot Program as a whole violated
the
Administrative Procedures Act was not within the court's jurisdiction and
should be transferred to a federal district court.
Solicitation Language/Preaward Protests
In Kiewit Infrastructure West Co., a successful preaward protest against the cancellation of an IFB, the court held that the Determination and Findings purportedly justifying the cancellation: (i) concluded that both bids received were unreasonably priced by simply restating FAR 14.404-1(c)(6) without any meaningful analysis and without any mention of the agency’s earlier, opposite determination; and (ii) raised unresolved questions about the accuracy of the IGCE, but then relied on the IGCE as a measure of price reasonableness.
In Paradigm Engineers and Constructors, PLLC, the court held that there were rational bases for (i) the prior determination by the procuring agency and then the OHA that the principal purpose of the contract work contemplated by a solicitation was architectural services (even though those services did not comprise the largest share of the contract value) and (ii) the assignment of a NAICS code based on that determination. The court also noted that the governing regulations did not require the agency to use the NAICS code assigned to previous procurements that were allegedly similar to the current procurement.
In Savantage Financial Services, Inc., an unsuccessful preaward protest against the terms of a solicitation, the court rejected the protester's allegation that the solicitation unduly restricted competition, finding that there were rational bases for: (i) the Government's decision to conduct separate procurements for software licenses and software implementation services; and (ii) the solicitation's prior implementation experience requirements.
In Superior Optical Labs, Inc., a successful preaward protest, the court held that, under the Veterans Affairs Contracting Preference Consistency Act of 2020 (the "Consistency Act"), which created an "exception" to the Veterans Benefits, Health Care, and Information Technology Act of 2006, the VA may not transition requirements currently set-aside for SDVOSBs as a result of a Rule-of-Two Analysis to the AbilityOne Program, i.e., the "exception" is not limited to contracts that were competitively awarded.
In VSolvit, LLC, an unsuccessful preaward protest, although the court permitted the protester to supplement the administrative record with an expert's explanation in the particular situation where the protester was contending the solicitation lacked essential information (because the administrative record, would, by definition, likely not include that information), the court, nevertheless, went on to hold that: (i) the agency provided offerors with sufficient information to compete intelligently; (ii) the protester failed to provide specific evidence of the incumbent's alleged unequal-access-to-information OCI, and merely being an incumbent does not establish such an OCI; and (iii) there was no requirement for the agency to employ a Rule of Two analysis before deciding to use FAR Part 8 FSS procurement vehicle, which does not require such an analysis.
In G4S Secure Solutions (USA), Inc., an unsuccessful post-award protest by the higher-priced incumbent, the court held that there were rational bases for the Government's (a) "cross-walk" analysis to determine whether an offeror's pricing was in line with its technical approach, (b) consideration of the experience of the awardee's proposed subcontractor as part of the determination that the awardee had the capability to perform the work, and (c) evaluation of the protester's oral presentation.
In Caddell Constr. Co. (DE), LLC, an unsuccessful post-award protest, the court held that: (i) the agency had rational bases for, inter alia, assigning deficiencies to the protester's proposal for failure to clarify the availability of key personnel, for the lack of experience of proposed team members in working together, and for a lack of requisite experience of certain proposed personnel; and (ii) the agency was not required to seek clarifications concerning protester's proposal.
In Harmonia Holdings Group LLC, an unsuccessful protest, the court held that: (i) a protester that had waited five months to file suit after the agency had denied its preaward protest had waived its preaward protest grounds; (ii) those preaward protest grounds could not be revived by being combined with its post-award protest allegations at court; and (iii) there were rational bases for the agency's award decision based on its evaluation of the protester's proposal in each area about which the protester now complains. Subsequently, the court denied the plaintiff's motion for an injunction pending its appeal to the CAFC. Still later, the CAFC reversed holdings (i) and (ii).
In Quality Control International, LLC, an unsuccessful post-award protest, the court held that an agency's comments during discussions that some of the protester's prices were considered unrealistically low did not constitute misleading discussions and did not coerce the protester to raise its prices because it could have kept them the same and explained why they were not unrealistic.
In The Green Technology Group, LLC, a successful post-award protest, the court (while denying most of the protester's allegations regarding various aspects of the evaluation) held that the agency did not assess the performance risk associated with the awardee's materially unbalanced pricing for a fixed-price contract as required by FAR 15.404-1(g)(2).
The court published three decisions concerning a set of protests on the same solicitation:
In Fluor Intercontinental, Inc., the court held that: (i) although the agency's technical, past performance, and cost realism evaluations had rational bases and were unobjectionable, the agency's decision to evaluate only the low offer for price reasonableness and then to determine the remaining offers were reasonably priced only by comparing them to low offer (despite significant disparities in the offered prices) failed to comply with the solicitation and FAR 15.404-1; but (ii) the agency's subsequent re-evaluation of price reasonableness during corrective action while the protest was pending complied with both the solicitation's requirements and the FAR.
In Computer World Services Corp., an unsuccessful post-award protest, the court: (i) refused to apply the Blue & Gold Fleet rule to this situation where the protester had not filed suit until two months after the GAO had denied its preaward protest of its exclusion from proceeding to Phase 2 of the competition (and more than a month after the contract had been awarded); but (ii) denied the protest on the merits because (a) the contractor (whose technical proposal was lower-rated than all but one of the 21 proposals that were evaluated) had failed to establish prejudice, and (b) the Government's assignment of each of five weaknesses to the proposal and its decision not to assign additional strengths to the proposal all had rational bases. The court refused to extend the Blue & Gold Fleet reasoning to situations not involving challenges to the terms of a solicitation.
In PAE-Parsons Global Logistics Services, LLC, the court held there were rational basis for the Source Selection Authority's assignment of an elevated risk description to the protester's Technical rating based on its proposed labor staffing model even though the evaluators had not assigned any weakness in this area.
In AECOM Management Services, Inc., the court held that the Government's interpretation of the solicitation's requirements for the labor staffing model was correct and that the Government had evaluated the labor staffing models consistent with that interpretation.
In American Relocation Connections, LLC dba ARC Relocation LLC, an unsuccessful post-award protest, the court held that, in evaluating two competing firms under each of five, equally-weighted subfactors, the agency could discriminate between the offers by assessing the advantages of one firm or the other in individual subfactors even where the differences were not large enough to result in different adjectival ratings.
In Poplar Point RBBR LLC, an unsuccessful protest against the protester's elimination from the competition in a solicitation for leased space for the SEC that must include certain amenities which either (a) currently existed or (b) would exist by the Government's required occupancy date and were "substantially likely to remain active and viable at that location throughout the term of the lease," the court (after denying the protester's motion to supplement the administrative record with documents concerning the Government's alleged past practice because those documents did not relate to the current procurement and were not referenced in it) held that the solicitation unambiguously stated that the 'substantial viability' requirement applied only to offerors (such as the protester) proposing sites without currently existing amenities. From this, the court held that the agency did not treat the protester's offer disparately from those offering sites with existing amenities. The court also held, inter alia, that: (i) the protester had waived any right to challenge the solicitation's substantial viability requirements as imposing an impossibly high standard by not raising that issue prior to the submission of proposals; (ii) the agency did not apply unstated evaluation criteria in evaluating the protester's proposal because the information the agency requested the protester to submit was necessary to evaluate its ability to comply with the solicitation's requirements concerning amenities; and (iii) the agency conducted meaningful discussions with the protester concerning the amenities deficiencies in its initial proposal and did not mislead the protester concerning what it would take to resolve those weaknesses.
In Quantico Tactical Inc. and Unifire, Inc., which involved unsuccessful preaward protests against exclusions from the competitive range, the court held that: (i) the agency had a rational basis for excluding a proposal because its unacceptable rating in one category rendered it "unawardable" regardless of the propriety of the agency's evaluations of other sections of proposal; and (ii) there was a rational basis for the agency's exclusion of the other protester's offer because the solicitation had explicitly warned offerors to cross-reference each aspect of their proposal, and, therefore, the agency was not required to sift through the protester's proposal to find details in other sections that were missing from the section that was found lacking.
In Defense Base Services, Inc., an unsuccessful post-award protest, the court held that: (i) the record supported the Government's evaluation of the relevance of the awardee's past performance references; (ii) the Government was not required to evaluate the price reasonableness of individual elements of the awardee's price proposal where the solicitation specifically required only an examination of the reasonableness of the total evaluated price; and (iii) the record supported the conclusion of the Government's trade-off analysis that the awardee's higher past performance rating justified its higher price.
In Harmonia Holdings Group, LLC, an unsuccessful post-award protest, the court: (i) dismissed a count alleging that the agency should have recognized an ostensible subcontractor issue and referred the matter to the SBA for a size determination because the plaintiff did not, itself, file a size protest, and, therefore, did not exhaust its administrative remedies before filing suit; and (ii) held that there were rational bases for (a) the risks assigned to the plaintiff's proposal and (b) the price/technical trade-off analysis.
In Quality Control International, LLC, an unsuccessful post-award protest, the court held that: (i) the Government's instruction to the protester during discussions to address the Government's concerns with the protester's low prices did not amount to coercion to raise those prices; and (ii) raising concerns with the incumbent's (protester's) pricing based on a comparison of that pricing to the IGE was not misleading absent any evidence (beyond the protester's unsupported assertion) that the IGE was inaccurate.
In DynCorp International LLC a post-award protest that succeeded in part, the court held that: (i) the Government adequately considered information concerning past issues (and their resolution) in arriving at its "S
ubstantial Confidence" rating for the awardee's Past Performance; (ii) the agency's decision to conduct price discussions only with offerors whose price proposals were considered flawed was not objectionable; and (iii) the agency's instruction to the protester to provide additional support for the normalization factor it used in its pricing was not a misleading direction to raise its price; but (iv) the agency failed to evaluate the reasonableness of each offeror's prices, as required by the solicitation, by merely noting that, because the winner's price was lowest in comparison to other (often much higher) prices, it was, by that standard, alone, reasonable. In a companion decision, the court held that the Government had complied with one of permissive requirements of FAR 15.404-1 in re-analyzing price reasonableness as a part of corrective action in response to the original protest.In Technology Innovation Alliance LLC, et al., which involved consolidated post-award protests by seven unsuccessful offerors for a multiple-award contract, the court rejected all the challenges to various aspects of the evaluation, including those related to the Past Performance evaluation and those based on claims of disparate treatment.
In Goldschmitt & Assocs., LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) having one more evaluated technical strength than its competitor did not mean the protester was automatically entitled to a higher adjectival rating; (ii) a corporate experience evaluation challenged as "mechanical" was actually a desirable approach based on hewing closely to the solicitation's evaluation scheme; and (iii) a past performance evaluation that was to be based on contracts for similar "products or services" did not limit the evaluation to contracts of the same "size."
In M V M, Inc., an unsuccessful post-award protest, the court held, inter alia, that: (i) the agency did not evaluate proposals disparately under the Corporate Experience and Staffing evaluation factors and, in any event, the plaintiff could not establish prejudice from any of the errors it alleged; (ii) the Source Selection Authority adequately explained the rationales for her conclusions; and (iii) the Government did not breach its duty to fairly and honestly consider the plaintiff's proposal.
In Ace-Federal Reporters, Inc., an unsuccessful post-award protest, the court, inter alia: (i) denied a motion to supplement the administrative record with information the agency did not consider during its evaluation because considering that information would put the court in the position of evaluating proposals; (ii) similarly, declined to supplement the record with evidence of the awardee's alleged past noncompliance with formatting requirements for transcripts because the solicitation did not require the evaluators to evaluate these materials; (iii) held that the court was not required to give deference to the protester's interpretation of statements on a website of an agency that was not a party to the case before the court; (iv) found that the procuring agency's interpretation of that website was neither arbitrary nor capricious; (v) concluded that the agency's technical and past performance evaluations of the awardee had rational bases; and (vi) held that the plaintiff had not not waived arguments regarding the past performance evaluation that it had originally raised in its prior GAO protest by failing to file a protest of the agency's proposed corrective action that did not address those arguments.
In HVF West LLC, an unsuccessful post-award protest, the court held that although the court has bid protest jurisdiction to hear a challenge to a bridge contract for the sale of government property, there was a rational basis for the Government's finding that the high bidder was nonresponsible due to environmental concerns at its facilities.
In Glocoms, Inc., an unsuccessful post-award protest, the court held that there were rational bases for the procuring agency's evaluation of the protester's technical plans (including its contingencies for possible pandemic-related issues), and the agency did not treat offerors disparately in the evaluation.
In DigiFlight, Inc., an unsuccessful post-award protest, the court held that an offeror's failure to submit its profit rationale in its initial proposal (which was a material requirement in a solicitation intended to be awarded without discussions) was not simply a clerical error and, therefore, did not require the agency to seek clarification. Specifically, months after the initial proposal submission, the agency asked whether it was correct in concluding that the initial proposal did not contain the required rationale. The protester responded by conceding that point but also by trying to supply the missing rationale. The court agreed with the agency that the submission was too late and also held that another count in the Complaint, a post-award protest of the solicitation's terms, was untimely.
In Bluewater Management Group, LLC (a successful post-award protest) after rejecting the Government's argument that the protester lacked standing and finding the protester was an actual bidder that had a substantial chance of award if its protest were sustained, the court held that, although the agency had not erred in engaging in discussions with the awardee and did not treat its proposal more leniently than those of other offerors, the agency had ignored aspects of the awardee's technical proposal that failed to meet material requirements of the solicitation.
In Wisconsin Physicians Service Insurance Corp., an unsuccessful post-award protest, the court held: (i) the protester had standing to challenge the evaluation of its proposal because if every error it alleged in that evaluation were recognized by the court and corrected, its chance of award would not have been insubstantial; (ii) there were rational bases for the Government's determination that the protester's technical approach weaknesses rendered its proposal unacceptable; (iii) the protester lacked standing to challenge alleged errors in the procurement (the handling of the awardee's OCI mitigation plan) occurring after the protester was eliminated from the competition; and, in any event, (iv) the handling of the mitigation plan was not improper.
In Summit Technologies, LLC, an unsuccessful preaward protest of the plaintiff's exclusion from the competitive range, the court held, inter alia, that: (i) the agency properly applied the solicitation's adjectival rating system in concluding the plaintiff's proposal was unacceptable; (ii) the agency did not use any unstated evaluation criteria in evaluating plaintiff's proposal; and (iii) the agency evaluated plaintiff's price in accordance with the solicitation's requirements.
In Navarro Research and Engineering, Inc., an unsuccessful post-award protest, the court held, inter alia, that: (i) the solicitation instructions in Section L were not Section M evaluation factors; (ii) the awardee's proposal clearly stated that it intended to hire the majority of a group of key incumbent personnel that it targeted for specific reasons and did not misrepresent its intent to do so; and (iii) the solicitation neither explicitly nor implicitly required a price realism analysis.
In Mitchco International, Inc., an unsuccessful post-award protest, the court held that: (i) a state licensing agency/awardee under a procurement subject to the Randolph-Sheppard Act was not subject to the SBA's size standards; and (ii) the protester had "misfired badly" on all of its allegations of procurement law violations, including those involving improper discussions and Procurement Integrity Act violations.
In EFW, Inc., another unsuccessful post-award protest, the court held that: (i) there was no evidence of bias or a conflict of interest in the past performance evaluation, which was adequately documented; (ii) the agency conducted a reasonable cost realism evaluation of the awardee's proposal and made adjustments where warranted; (iii) the agency properly used a qualitative assessment to assign the awardee's technical approach a moderate risk, as opposed to the quantitative approach advocated by the protester; (iv) the protester's technical risk rating was not the result of the application of an unstated evaluation criterion; (v) the SSA properly exercised independent judgment to depart from the SSEB's technical risk evaluation; and (vi) there was a rational basis for the best value analysis:
The bottom line is that [the protester] did not lose the competition because of the second . . . contract performance questionnaire, the SSA’s decision that {[he protester's] dual sensor approach did not warrant a risk reducer, or its higher cost. It lost because of the overall inferiority of its proposal. Both proposals had weaknesses and both offerors had prior experience with similar technology. "Logic suggests that as [the magnitude of the price differential] increases, the relative benefits yielded by the higher-priced offer must also increase." Mil-Mar Century Corp. v. United States, 111 Fed. Cl. 508, 553 (2013). Thus, the SSA’s conclusion that the minor technical difference did not evidence such a technical superiority to warrant a $7 million premium is reasonable and consistent with the RFP.
In AAR Manufacturing, Inc., an unsuccessful preaward protest alleging that various types of OCIs should disqualify a firm from a competition, the court held that: (i) although the firm was the sole contributor to a portion of the TDP, under FAR 9.505-2(b)(1)(ii), this "development and design" work is exempted from requiring exclusion from a follow-on competition based on a biased-ground-rules OCI; and (ii) the plaintiff's allegations of other types of OCIs were speculative and unsupported by "hard facts."
Sole Source/Small Business/Restricted Competitions
In
Veteran Shredding, LLC, an unsuccessful preaward protest, the
court held that, after having canceled a solicitation
set aside for SDVOSBs because all five submitted bids were
unreasonably high, the Contracting Officer acted rationally (and did not
violate the Rule of Two) in opening the resolicitation to small businesses
when the only two SDVOSBs that submitted responses to market research
for the new solicitation were among those whose bids were found to
be unreasonably high on the previous procurement.
In
Navistar Defense, LLC, an unsuccessful post-award protest, the
Court of Federal Claims held that: (i) by executing a settlement
agreement resolving its prior GAO protest, the protester waived its
claims related to the Government's 2016 decision to extend a contract and to procure additional tactical vehicles under that contract;
and (ii) in light of the prior (2016) J&A authorizing the Government to extend
the requirements contract and to order additional vehicles, a new (2019)
sole-source modification of the contract to further extend its term and to
procure an additional 1,916 vehicles was not a cardinal change and did
not violate CICA.
In
Cashman Dredging and Marine Contracting Co., LLC, the court denied the plaintiff's motion for a preliminary
injunction, holding that: (i) the court lacked jurisdiction over
a challenge to the rationality of the SBA's decision to issue a CoC
to the protester's competitor; and (ii) the protester
did not establish prejudice from the irregular manner in which the SBA provided
notice of the CoC to the Contracting Officer.
In
Utech Products d/b/a EndoSoft, LLC, a successful protest of a sole-source award,
the court held, inter alia, that: (i)
the agency's opinion that the awardee could perform better than
the incumbent/protester was not a sufficient basis
to forego competition in favor of a sole-source award; and (ii) the assertion that
only the awardee had the capability to migrate data with its migration tool
was
flawed because that tool could not be used to migrate the incumbent's data,
and the incumbent had another tool with which it had successfully
migrated data.
In
SSI Technology, Inc., an unsuccessful preaward protest against a proposed sole-source award,
the court held, inter alia, that: (i)
the
J&A supporting the award, which was based on urgent and compelling circumstances,
adequately described the steps the agency had taken to locate as many
sources as possible, including publishing an RFI to which the plaintiff
inexplicably had failed to respond; (ii) the plaintiff was not qualified because it
had not produced the exact item required by the sole source award; and
(iii) the
extended time the period since the plaintiff had produced a similar
item and the numerous intervening changes in the specifications for
the item justified the Government in disapproving the plaintiff's request for a
waiver of FAT. In
Warrior Service Co., LLC,
an unsuccessful preaward protest against the SBA's determination (affirmed by
the SBA's OHC) that the protester was other than small based on its affiliation
with a large business through the ostensible subcontractor rule, the
court held that: (i)
because size is determined as of the date of the submission of a
firm's
proposal, the SBA properly based its size decision on information in
that proposal rather than contradictory information submitted later by
the protester concerning the percentage of work it would perform;
and (ii) the SBA and OHA
properly determined that the protester, itself, lacked the experience,
qualified personnel, and finances to perform the contract's primary
and vital requirements and instead was relying on its large
business subcontractor in all of those areas.
In
Superior Optical Labs, Inc., a successful preaward protest, the
court held that, under the Veterans Affairs Contracting Preference Consistency Act of 2020 (the "Consistency Act"), which
created an "exception" to the Veterans Benefits, Health Care, and Information Technology Act of 2006,
the
VA may not transition requirements currently set-aside for SDVOSBs as
a result of a Rule-of-Two Analysis to the AbilityOne Program, i.e., the
"exception" is not limited to contracts that were competitively awarded.
In
The Tolliver Group, Inc. and People, Technology, and Processes, LLC,
a successful
protest of the cancellation of solicitations in a FAR Part 8 procurement for the express purpose of moving
the work from an SDVOSB set-aside under a GSA Federal Supply Schedule to a multiple-award
ID/IQ vehicle (a contract that the plaintiffs in this case did not hold), the court held that: (i)
FASA's bar to protests "in connection with the issuance or proposed issuance of a task or delivery order" does not
bar the court's jurisdiction over challenges to an agency's
alleged failure to conduct a Rule-of-Two analysis; (ii) the agency
did not support its decision to cancel the solicitations with any
factual evidence to support its bald assertion that the cancellation
and transfer to a different contract vehicle would be beneficial;
and (iii) the agency's failure to employ a Rule-of-Two analysis
before deciding to cancel the solicitations was improper.
In
Top Gun Services, LLC, the court held that the protester lacked standing to challenge modifications of AbilityOne
contracts on a sole-source basis because it was not a qualified nonprofit agency capable of receiving AbilityOne contracts
had the awards been competitive. In
HWI Gear, Inc., a successful post-award protest, the court held that an award was invalid because the agency
had failed to require the awardee to
comply with a solicitation requirement that it recertify its status
as a small business following a merger.
In Centerline Logistics Corp., an unsuccessful protest of corrective action, the court held, inter alia, that: (i) under the Blue & Gold Fleet standard, the protester had waived its right to challenge the form of a corrective action by submitting a revised proposal without objection; and (ii) the protester lacked standing to challenge a subsequent corrective action because it failed to protest prior to the due date for proposals and declined to submit a proposal.
In NIKA Technologies, Inc., the court directed the agency to implement the automatic CICA stay pending the resolution of a GAO protest because under the regulations applicable in a DoD (Army Corps of Engineers) procurement, the plaintiff had timely filed its GAO protest within five days of the close of the two-day window for submitting questions after receipt of its written debriefing. Subsequently, the CAFC reversed the ruling.
In ANHAM FZCO, an unsuccessful protest of allegedly overbroad corrective action, the court held that under the standard enunciated by the Court of Appeals for the Federal Circuit in Dell Federal Systems, L.P. v. United States, an agency is only required to have a rational basis for the scope of its corrective action, which need not be narrowly tailored to remedy a previously identified defect in the procurement.
In Clarke Health Care Products, Inc., the court remanded the case to the agency because the administrative record (consisting solely of a Contracting Officer's explanation in a non-contemporaneous memorandum) was insufficient for the court to evaluate the decision to undertake corrective action.
In Glocoms, Inc., an unsuccessful post-award protest, the court held that: (i) in a lowest-priced, technically acceptable competition, the fact that the original awardee had increased its bid price during a resolicitation as a result of corrective action did not mean it had been afforded an unfair competitive advantage; (ii) the protester failed to show how it was prejudiced by the agency's failure to respond to questions concerning wage and occupational codes during the resolicitation; and (iii) the protester's allegations regarding the awardee's alleged noncompliance with the Service Contract Act involved matters of contract administration not addressable in a bid protest.
In
Comprehensive Health Services, LLC, an unsuccessful protest of an agency's decision to
override the automatic CICA stay pending the resolution of a GAO protest of
the award of a contract for rapid COVID testing services, the
court held that, in making its override determination, the agency
had considered the factors laid out in the court's
Reilly's Wholesale decision, and its determination had a
rational basis.
In STG LLC, the court held that the agency's decision to override the automatic CICA stay pending the resolution of a GAO protest had a rational basis:
[T]he Army identified significant adverse consequences that would occur if the Army did not have a contractor providing mission command network operations and maintenance services. The Army rationally determined that there were no reasonable alternatives to overriding the CICA stay, considered the costs and benefits associated with overriding the CICA stay, and considered the effects of the Agency’s actions on the integrity of the procurement system. The Army decision to override the CICA stay "based upon mission essential reasons which are urgent and compelling, that will not permit waiting for a decision in the protest," therefore, was not arbitrary and capricious.
EAJA/Fees/Costs
The court denied A Squared Joint Venture's motion for reconsideration of the court's prior judgment upholding the agency's decision to cancel a solicitation but modified the judgment to indicate that the protester's claim for bid preparation costs survived.
In The Green Technology Group, LLC, the court denied an EAJA application by a prevailing protester, finding the Government's litigation position to have been substantially justified because the legal issue on which the plaintiff had prevailed was novel and the law surrounding it had been uncertain.
In A Squared Joint Venture, the court denied: (i) the protester's claim for bid and proposal costs because an agency's error did not cause the plaintiff to incur them unnecessarily; and (ii) the protester's EAJA claim because the protester was not a prevailing party.
In Utech Products d/b/a EndoSoft, LLC, the court held that the cancellation of a solicitation the same day the protest was filed against it rendered the protest moot and precluded the protester's subsequent recovery of bid preparation costs and EAJA attorneys fees.
In EFW, Inc., the court granted, in part, the protester's motion to supplement the administrative record because an in camera review satisfied the court that some documents that had been withheld from the administrative record might bear on the protester's allegation that the Contracting Officer's undisclosed dual role in the procurement may have affected the Past Performance evaluation.
In BHB Ltd. Partnership & Indiana Assocs. Ltd. Partnership of Washington D.C., the court denied the plaintiff-protesters' motion to supplement or complete the administrative record because the existing record appeared to contain ample documentation concerning the issue in dispute, and the plaintiffs had not identified any specific documents they claimed were missing, but rather had listed what were essentially discovery requests for additional documents that might exist and be relevant.
In Quantico Tactical, Inc., a bid protest, the court: (i) granted only a portion of the protester's motion to supplement the administrative record; and (ii) denied its motion to take discovery concerning allegations of the Government's bad faith because the allegations were innuendo and provided "neither a motivation for any particular government employee to have acted in bad faith nor conduct that is hard to explain absent bad faith."
In HVF West, LLC, the court denied the intervenor's motion for a stay of the court's prior judgment in a winning protest pending the intervenor's appeal primarily because the court found the intervenor did not have a substantial chance of success on the merits of any of its grounds for appeal. Specifically, the court reaffirmed that: (i) pursuant to longstanding GAO precedent, the procurement was a "mixed transaction," which was within the court's jurisdiction; (ii) the protester had standing because it was in a position to compete for award if the original award were found to be erroneous; and (iii) the court's finding that two aspects of the intervenor's proposal were inconsistent with the solicitation's requirements was correct.
In Mitchco International, Inc., over the objections of both the plaintiff and the defendant, the court permitted a subcontractor to intervene in the protest because it would be the party actually performing the work, and its interests in the contract award went beyond those of a normal subcontractor and would not be adequately protected by the other parties to the protest.
In Harmonia Holdings Group, LLC and Snap, Inc., the court denied one protester's application for a TRO pending the resolution of the protest because a 3-month delay while the protest is decided will not result in irreparable economic injury to the protester but would result in injury to the Government if the TRO were entered.
Court of Appeals for the Federal Circuit
In Eskridge & Assocs, the CAFC affirmed the prior CoFC decision dismissing a protest for lack of standing because even if the protest had succeeded, there were three other bidders ahead of the protester in line for award and the protester failed to allege sufficient prejudice to require the contract to be rebid.
In Inserso Corp., over a dissent (which had the better argument, imo), the CAFC affirmed a prior CoFC decision denying a post-award protest, but on a different ground. Specifically, the court held that, under the Blue & Gold Fleet standard, the plaintiff had waived its right to challenge the improper disclosure of information to certain offerors by failing to protest the terms of a solicitation that involved a high likelihood of that disclosure. The solicitation was written so that awards would be made separately on the unrestricted and the small business portions of the work. Small businesses could bid on both. The awards on the separate parts were not made simultaneously, and the protester's allegation was that the small businesses that were debriefed after awards on the unrestricted portion of the procurement received information that they could use to their advantage on the still-open small business portion of the procurement. No application of Blue & Gold Fleet should require that a protester have Jeane Dixon's talents in order to be timely.
In Asset Protection & Security Services, L.P., the CAFC held that the plaintiff lacked standing to protest because its offer was nonresponsive: its price proposal was based in part on its presumption that it could benefit from a tax exemption certificate after the agency had clarified that no such exemption was available.
In LAX Electronics, Inc. dba Automatic Connector, a decision labeled as nonprecedential, the CAFC vacated a portion of the prior CoFC decision and held that, by removing the protester's products from the QPL, the Government had taken a "definitive position" disqualifying those products from certain sufficiently identified future procurements, a protest against which is a protest "in connection with a procurement or proposed procurement" over which the CoFC has jurisdiction under 28 U.S.C. 1491(b)(1)
In Oracle America, Inc., the CAFC affirmed the prior CoFC decision denying multiple grounds for a preaward protest and held, inter alia, that (i) the solicitation's requirements had reasonable bases and did not render the procurement non-competitive; and (ii) there were reasonable bases for the Contracting Officer's conclusion that conflicts of interest did not affect the procurement.
In Office Design Group, the CAFC affirmed the prior CoFC decision denying a protest and adopted the CoFC's test for evaluating claims that agencies evaluated proposals disparately: a protestor must show that the agency unreasonably downgraded its proposal for deficiencies that were "substantively indistinguishable" from or "nearly identical" to those contained in other proposals that were not similarly downgraded.
In WellPoint Military Care Corp., the CAFC affirmed the prior CoFC decision denying a protest because: (i) the agency did not use an unstated evaluation criterion in evaluating existing provider networks under the Network Management and Claims Adjudication Subfactor; (ii) the agency did not treat offerors unequally in evaluations under the Corporate Experience/Capability Subfactor; (iii) the agency was required to conduct a trade-off analysis, and its analysis had a rational basis; (iv) the agency properly evaluated the cost savings associated with the protester's and the awardee's proposals; (iv) the agency's trade-off analysis did not rely on incorrect information from the protester's proposal; and (v) the protester did not establish that it was prejudiced by any of the alleged problems with the evaluation.
In Agile Defense, Inc., the CAFC affirmed the prior CoFC decision that a solicitation did not prohibit the agency from evaluating an offeror's supporting documentation for labor rates that fell within one standard deviation of the average labor rate as part of the cost realism evaluation.
In G4S Secure Solutions (USA), Inc., a decision it labeled as nonprecedential, the CAFC affirmed the prior CoFC decision denying a post-award protest because the agency's determination that the awardee's experience and risk awareness/mitigation supported a "High Confidence" rating was not arbitrary, capricious, or in violation of law.
In Red Cedar Harmonia, LLC, a decision it labeled as nonprecedential, the CAFC affirmed the prior CoFC decision that there was a rational basis for the agency's technical evaluation and that the agency did not treat the protester's proposal unequally or use an unstated evaluation factor to rate it.
Sole Source/Restricted Competition
In XOTech, LLC, the CAFC affirmed the prior CoFC decision that a firm was not an eligible SDVOBC because its service disabled veteran did not control all decisions made by the company.
In Acetris Health, LLC, the CAFC upheld the prior CoFC decision sustaining a preaward protest but modified its conclusions to make it even clearer that the Government's interpretation of the Trade Agreements Act and of FAR's definition of U.S. made end products was incorrect and could not be applied to the protester's products (pharmaceutical tablets), which were produced in the United States even though their primary active ingredient came from a foreign country
SBA Office of Hearings and Appeals
Jurisdiction/Standing/Timeliness/Procedure
In CVE Appeal of Starblast, Inc., the OHA dismissed an appeal as untimely even though the appellant received erroneous oral advice from a VA employee recommending the appeal be sent to the VA, and the VA's letter denying the appellant's CVE application did not provide an address or email or phone number for contacting the OHA.
In Size Appeal of Bacik Group, LLC, the OHA dismissed an appeal because: (i) the Appellant failed to respond to a motion to dismiss; and (ii) the issues Appellant raised were beyond the OHA's jurisdiction (i.e., involving matters of contract administration) or were raised for the first time on appeal.
In CVE Protest of Superior Optical Labs, Inc., SBA No. CVE-163 (2020), the OHA held that, although the two protests pertained to different solicitations, the facts and issues were essentially identical, so the OHA's prior decision CVE-157-P required denial of this protest under the doctrine of issue preclusion.
In NAICS Appeal of Caduceus Healthcare, Inc., the OHA dismissed an appeal as untimely because it was not filed within 10 days of the issuance of the original solicitation (in 2015) where a much-later amendment to the solicitation re-opened it but did not change the original NAICS code or the nature of the services being solicited.
In Size Appeal of Glen/Mar-Hensel Phelps Joint Venture,
the OHA held that the Area Office had incorrectly calculated
the time for submitting the
size protest, so the OHA remanded the protest to the Area Office to determine
whether it had been timely submitted within the five-day window.
In Size Appeals of Blueprint Consulting Services, LLC, dba Excelicon and STS-Optimo, CTA, the OHA dismissed size protest appeals because the agency's decision to follow the GAO's recommendation in a protest to terminate the contract award rendered the size protests moot.
In Matter of GeologyReview, LLC, the OHA dismissed an appeal because it lacks jurisdiction over appeals of denials of admission into the 8(a) program for reasons other than a negative finding of social disadvantage, economic disadvantage, ownership, or control.
In Matter of Hamstra-Juliet JV, LLC (a CVE protest), the OHA noted that a protest not filed within five days of notification of the awardee's identity must be dismissed regardless of its merits.
In Size Appeal of Indigo Blue Constr., LLC, the OHA held that, under the law-of-the-case doctrine, a firm could not relitigate the same issue already decided against it in a previous OHA opinion concerning the same size determination.
In Size Appeal of Recycle Track Systems, Inc., the OHA held that a non-SDVOSB lacked standing to protest the size of the awardee under an SDVOSB set-aside procurement.
In NAICS Appeal of Salvadorini Consulting LLC, the OHA dismissed a NAICS code appeal filed more than 10 days after the issuance of the solicitation as untimely and noted that the appellant's efforts to resolve the matter with the agency before appealing did not extend the time for filing.
In CVE Protest of Security Operations Group Int'l, LLC, the OHA held that a protest of the apparent awardee's SDVOSB status filed one day late must be dismissed as untimely.
In CVE Appeal of Taylor Made Solutions, LLC, the OHA dismissed, as untimely, an appeal of the cancellation of the appellant's SDVOSB status filed with OHA more than 10 business days after the notice of cancellation even though (i) the notice of appeal had been sent to CVE within 10 days of the cancellation and (ii) the appellant had tried, but failed, to reach the OHA within the 10 day period for an explanation of the appeal process (the OHA noting that the explanation was readily available online and via regulations referenced in the cancellation notice).
In Size Appeal of Warrior Service Co., the OHA held that based on documents available at the time of self-certification, the Area Office correctly found a firm violated the ostensible subcontractor rule because it would rely on its subcontractor to perform all, or almost all, of the contract work.
In Size Appeal of NorthWind-CDM Smith Advantage JV, LLC, the OHA affirmed the Area Office's decision that a firm did not violate the ostensible subcontractor rule despite employing a large business/incumbent as its subcontractor because: (i) the protested firm would perform the majority of the contract's primary and vital requirements; (ii) the protested firm would hire not only the incumbent's workers (and only after individual reviews of each worker to determine his/her suitability, as opposed to simply hiring them en masse) but also workers from other firms on the prior contract and a substantial number of new workers as well; (iii) the incumbent's managerial personnel hired by the protested firm would be under the protested firm's management and control; (iv) the protested firm was a proven business with experience in the area of the current contract.
In Size Appeal of Contego Environmental, LLC, the SBA's OHA remanded the case to the Area Office to consider whether the prime would be performing the primary and vital contract requirements of a construction contract when the subcontractor's employees would seem to be in charge of managing all on-site operations.
In Size Appeal of Navarro Research and Eng'g, Inc., the OHA held that: (i) even though the Area Office did not identify the contract's primary and vital contract requirements or explain its conclusion that the challenged prime would perform them, the record was sufficient for the OHA to ascertain those requirements and to conclude that the Area Office's conclusion had a rational basis; (ii) the record did not support the protester's contention that the challenged firm relied on its sub for past performance; (iii) there was no presumption of affiliation through economic dependence where the challenged firm did not derive 70% of its receipts from the alleged affiliate over the three fiscal years preceding self-certification; (iv) the current percentage of revenues derived from the alleged affiliate was immaterial to this analysis; and (v) there was no affiliation based on the totality of circumstances where there had been no finding of affiliation through economic dependence or a violation of the ostensible subcontractor rule.
In Size Appeal of Superior Optical Labs, Inc., the OHA held that: (i) the challenged firm, which had purchased another company (including all of its manufacturing facilities and assets) prior to the submission of the challenged firm's final proposal revisions, would thenceforth be manufacturing the contract items, itself, and, thus, did not violate either (a) the ostensible subcontractor rule (which, in any event, was inapplicable to a procurement under NAICS code 391115 ("Ophthalmic Goods Manufacturing") or (b) the nonmanufacturer rule; and (ii) the two firms, when aggregated, did not exceed the applicable size standard.
In Size Appeal of Contego Environmental, LLC, the OHA reversed the Area Office's finding concerning compliance with the ostensible subcontractor rule because challenged firm's proposal did not establish that it would be responsible for managing the construction contract and documents submitted by the challenged firm after an initial size protest was filed could not be used to vary that proposal.
In Size Appeal of Invisio Communications, Inc., the OHA affirmed the Area Office's determination that: (i) the ostensible subcontractor rule is inapplicable to a solicitation classified as manufacturing procurement subject to the nonmanufacturer rule; (ii) the appellant had offered nothing beyond speculation as support for its claim of affiliation through economic dependence; and (iii) a standard non-exclusive commercial distribution agreement is not, by itself, evidence of affiliation.
Other Miscellaneous Size Issues
In Size Appeal of Cazador Investments LLC, the OHA held that two firms with business connections with one another (one controlled by a father and the other by his son) were affiliated by an identity of interest in the absence of a showing of a clear line of fracture where, as of the time of self-certification, one firm proposed to team or subcontract with the other on the contract at issue.
In Size Appeal of Lukos, LLC, the OHA held, inter alia, that: (i) the existence of a promissory note, without more, did not give its holder control over the challenged firm; and (ii) for purposes of finding affiliation through common management, despite puffery statements to the contrary in an individual's resume, the contested firm's Operating Agreement made it clear that he was not a member of the firm's management.
In Size Appeal of KTS Solutions, Inc., the OHA held that a mentor-protégé joint venture agreement failed to meet the requirements of 13 C.F.R. § 125.18(b)(2)(vi) and (vii) because it did not: (i) itemize the equipment to be used in the performance of the contract; (ii) specify the responsibilities of the parties with respect to negotiation of the contract, source of labor, and contract performance; and (iii) indicate the tasks that each member of the joint venture would perform on the contract, or which employees of each member would perform the functions.
In Size Appeal of Oak Grove Technologies, LLC, the OHA held, inter alia, that the Area Office had correctly evaluated allegations regarding affiliation through economic dependence based upon the three most recently completed fiscal years and that the protester's attempts at "industrial espionage" to find new evidence were unsuccessful.
In line with with its conclusion in several other recent decisions, in Size Appeal of BTAS, Inc., the OHA held that the Area Office correctly used a three-year rather than a five-year averaging period for calculating a firm's revenues in connection with an offer submitted prior to the effective date of the SBA's regulations promulgated as a result of the Runway Extension Act. Similarly, in Size Appeal of Obsidian Solutions Group, LLC, the OHA held that the Runway Extension Act's five-year measurement period for revenues did not apply to appellant's size certification and size determination, and the Area Office had properly used the three-year measurement period.
In Size Appeal of HWI Gear, Inc., the OHA returned the case to the Area Office because it had not adequately articulated a rationale to support its conclusion about the identity of the manufacturer of the end items. Subsequently, the OHA denied the petition for reconsideration by the challenged firm.
In Size Appeal of Apogee Eng'g, LLC, the OHA held that the Area Office correctly made an adverse inference when the firm failed to supply any documents requested by the Area Office for purposes of a size determination and, instead, admitted it was other than small.
In Size Appeal of Darton Innovative
Technologies, Inc., the OHA held that the appellant had offered nothing to rebut the presumption that it
was economically
dependent on a firm that had provided 100% of its revenues for five
years, and the appellant could not rely on a revision to 13 C.F.R. § 121.103(f)(2)
that did not become effective until after it self-certified to change
that conclusion.
8(a)/SDVOSB/VA/CVE/WOSB Status
In Matter of Spectrum of Floors, LLC, the OHA held that the SBA had erroneously double-counted the value of a rental property in determining the majority owner's adjusted net worth.
In In the Matter of JLS Medical Products, LLC, the OHA upheld the cancellation of a firm's status as an SDVOSB in the CVE database because, although CVE had erred in finding the firm did not meet the SDV ownership requirement, the firm did not meet the requirement that it be controlled by an SDV since a non-SDV was a "manager" with broad powers to control the firm's daily operations and the SDV would require the non-SDV's consent to undertake important firm actions. Moreover, the firm had failed to disclose the non-SDV's control interests to CVE.
In CVE Protest of Covenant Constr. Services, the OHA sustained the protest because the challenged firm did not rebut the presumption at 13 C.F.R. 125.13(k) that the SDV on whom the challenged firm's eligibility is based but who works full time at another firm does not control the day-to-day operations of the challenged firm. Subsequently, the OHA denied a petition for reconsideration. Similarly, in Matter of Sonoran Construction Group, aka Sonoran Equipment Appraisal, the OHA upheld the termination of a firm from the 8(a) program because the disadvantaged owner worked for another firm during normal business hours.
In VET Appeal of Seventh Dimension, LLC, the OHA held that the JV agreement between an SDVOSB and its mentor did not comply with the requirements at 13 C.F.R. 125.18(b)(2) because the agreement gave the mentor veto power over several types of day-to-day actions of the JV.
In CVE Protest of U.S. Dep't of Veterans Affairs, the OHA held that the Contracting Officer may not file a CVE protest when the Contracting Officer has neither made an award to the challenged firm nor notified it that it is the apparent successful offeror.
In another CVE Protest of U.S. Dep't of Veterans Affairs, the OHA held that in a mixed procurement for supplies and services, the prime SDVOSB was not unusually reliant on its subcontractor because the prime met the requirement under 13 C.F.R. 125.6(a)(1) that it not subcontract more than 50% of the services to entities that were not similarly situated, and there were no limits on the percentage of the supply components of the contract that it could subcontract.
In CVE Protest of Superior Optical Labs, Inc., the OHA denied a protest arguing that a firm violated the ostensible subcontractor rule in a procurement involving manufacturing because the regulations cited by the protester (a) apply only to service contracts and (b) did not become effective until after the protested firm had submitted its proposal. The OHA also held that the protested firm was owned and controlled by service disabled veterans .
In CVE Appeal of Pro-Sphere Tek, Inc., the OHA held that the CVE had improperly cancelled a firm's verified status as an SDVOSB because the CVE had not identified any non-service-disabled veteran persons or entities that controlled the firm or articulated any theory as to how any such non-service-disabled veteran persons or entities could potentially control the firm.
In
CVE Protest of Vet Reporting,
LLC, the OHA denied a protest of a firm's SDVOSB
status for a particular procurement because, contrary to the protester's
allegations, the SDV who owned and controlled the protested firm was shown to work full time during normal
business hours for the firm, and that firm could not be found to be unusually
reliant on a subcontractor because it did not plan to subcontract any
of the contract work.
In
NAICS Appeal of
Lost Creek Holdings LLC d/b/a ALL-STAR Health Solutions, the
OHA held that, in a solicitation for dental services,
the Contracting Officer's designation of NAICS 621498 (All Other
Outpatient Care Centers) was incorrect, while the appellant's choice of
NAICS 621210 (Offices of Dentists) was appropriate. In
NAICS Appeal of
Caduceus Healthcare Services, the OHA held that in
a solicitation for Airport Security Screening Services at airports participating in
the TSA's Screening Partnership Program, the Contracting Officer's designation of NAICS
561612 (Security Guards and Patrol Services) was incorrect, while appellant's choice of NAICS 488190 (Other Support Activities for Air Transportation) was
appropriate.