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2021 Procurement Review: Protests
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So far this year, the GAO has published 34 decisions sustaining protests on the merits (some of which were originally dated in 2020 but not issued to the public as redacted versions until this year).
The GAO sustained a protest by Innovate Now, LLC because: (i) a solicitation requirement that protégé members of a mentor-protégé joint venture have the same level of experience as other offerors violates the SBA reg at 13 C.F.R. § 125.8(e); and (ii) a solicitation requirement that offerors demonstrate the staffing used on a prior contract at “a single point in time” is flawed because the phrase is undefined, ambiguous, and, therefore, incapable of guaranteeing that offerors will be able to compete on a common basis.
InfoPoint LLC won its protest because a solicitation requirement that a joint venture as a unit, rather than its individual members, possess a Top Secret facility clearance violated both the NDAA for FY 2020 and applicable SBA regulations.
In Computer World Services Corporation; CWS FMTI JV LLC, the GAO held that there was inadequate justification in the record for the CIO-SP4 solicitation's limit of two experience examples from the large business mentor in mentor-protégé JV offerors, especially where there was no such limit when the mentor was a small business.
The GAO sustained a protest by Westwind Computer Products, Inc. against the terms of a solicitation because the agency failed to adequately justify the solicitation's restriction to brand name sources for software: specifically, the agency's market research failed to establish that no other company's software could meet, or be modified to meet, the agency’s needs.
Flawed Evaluation / Lack of Meaningful Discussions
The GAO sustained a protest by OneSource PCS, LLC because the agency’s conclusion that the awardee’s past performance experience references were relevant to the work to be performed under the solicitation was inconsistent with the terms of the solicitation and was, therefore, unreasonable.The GAO sustained a protest by Innovative Management & Technology Approaches, Inc. because the awardee's quotation included an assumption that took exception to material solicitation requirements, and the agency conducted impermissible and unequal discussions in allowing the awardee to remove this assumption from its quotation prior to award.
The GAO sustained a protest by GOV National Healthcare Drive, LLC because, during discussions, the agency had failed to alert the firm to any of the weaknesses or deficiencies identified in its proposal.
The GAO sustained consolidated protests by Crowley Government Services, Inc. and Petro Star, Inc. because the agency failed to evaluate prices in accordance with the methodology stated in the solicitation.
In Public Properties, LLC, the GAO sustained the protest because: (i) the record did not reflect that the agency (as it was required to do by the solicitation) had evaluated the potential impact of the fact that a portion of the awardee's proposed land was in a 100-year floodplain; and (ii) in numerous instances, nothing in the record indicated that the agency had evaluated various technical aspects of offerors' proposals.
The GAO sustained a protest by Alpha Omega Integration, LLC, holding that the best-value tradeoff analysis was inadequately documented-- specifically, it did not explain, beyond references to the adjectival ratings, the capabilities or features identified to justify the award decision.
In FreeAlliance.com, LLC; Radus Software LLC/Radus CTA; Mobomo, LLC, the GAO held that: (i) the agency had applied unstated evaluation criteria in the evaluation under the key personnel experience and past performance evaluation factors; (ii) the agency did not adequately document the basis for assigning adjectival ratings for the technical evaluation; (iii) the agency conceded it had made an error in evaluating a protester's price quotation which resulted in that protester being eliminated from award consideration; and (iv) the best-value tradeoff and the award decision did not explain why higher-priced, higher technically rated quotations were worth a price premium as compared to lower-priced, lower technically rated quotations.
Vectrus Mission Solutions Corp. won its protest because the agency improperly made an upward "most probable cost" adjustment to a proposed cost that the protester legally bound itself to absorb during contract performance.
The GAO often states that it will not reevaluate proposals, but it came close in the successful protest by TekSynap Corp. where the GAO found that the agency: (i) had unreasonably evaluated the awardee's proposal that failed to meet a mandatory key personnel requirement; and (ii) did not rate the protester's technical proposal as highly as the solicitation's evaluation criteria would require.
The GAO sustained a protest by AECOM Management Services, Inc. because, in a solicitation conducted pursuant to FAR Part 16, the agency conducted discussions with multiple offerors, but only permitted the eventual awardee to revise its proposal substantially.
The GAO sustained a protest by DigiFlight, Inc., finding disparate treatment where the agency assessed a strength to the awardee’s quotation but not to the protester’s for substantively indistinguishable features in their employee retention plans.
The GAO also sustained a protest by PAE National Security Solutions, LLC because the agency: (i) applied unstated evaluation considerations in areas of "continuous vetting" and "experience" and (ii) evaluated the quotations disparately in areas of proposed staff size and retention rates.
Yang Enterprises, Inc. won its GAO protest because the agency acted inconsistently with the solicitation's evaluation scheme by crediting the awardee with the past performance of the large business mentor of the joint venture in areas where that firm was not proposed to perform on the contract at issue.
The GAO sustained a protest by Mayvin, Inc., because the agency evaluated quotations disparately by assigning a significant benefit to the awardee’s quotation, but not the protester’s, for substantively indistinguishable features of the vendors’ employee recruitment and retention plans.
The GAO sustained a protest by Sunglim Eng'g & Constr. Co., holding that the agency had failed to conduct meaningful discussions with the protester because significant weaknesses in the protester's proposal in the solicitation's most important technical evaluation area, which should have been (but were not) identified by the agency and disclosed to the protester during the agency’s initial evaluation, subsequently formed the basis for downgrading the protester's revised proposal, which was unchanged in this area.
Deloitte Consulting, LLP won its GAO protest on the ground that the incumbent/awardee's proposal failed to comply with an explicit solicitation requirement (made clear in a published response to a bidder's question) that all offerors must propose "all transition costs along with full performance of the PWS requirements."
The GAO sustained a protest by Marquis Solutions, LLC because the record of the evaluation lacked explanations of the agency's negative conclusions concerning the protester's quotation, and the agency reached different conclusions concerning similar aspects of the awardee's quotation.
The GAO sustained a protest by Africa Automotive Distribution Services, Ltd. because the agency's evaluation of transportation costs during corrective action did not comply with the requirements of the solicitation.
Academy Leadership, LLC won its GAO protest because, in a procurement conducted under simplified acquisition procedures, the agency's notification to the eventual awardee that its price was significantly higher than the prices of the other offerors, coupled with the question "is this the best offer you can provide?" constituted discussions, and the agency's failure also to inquire about the aspects of protester's technical proposal with which agency had concerns constituted a lack of meaningful discussions with the protester.
Northrop Grumman Systems Corp.--Mission Systems won its GAO protest because the agency had found the awardee's proposal acceptable despite the fact that it did not describe an approach that actually met certain solicitation requirements.
The GAO sustained a protest by Ashlin Management Group, finding that the awardee’s proposal was unacceptable because the awardee failed to notify the agency that a quoted key person became unavailable during the corrective action period.
The GAO sustained a protest by WRGA Fire Training Simulation Solutions, Inc. because there was no justification in the record for the agency's conclusion that awardee had satisfied the material solicitation requirement to provide restrooms in a permanent structure.
Science Applications International Corp. won its GAO protest on two grounds: (i) there was a lack of meaningful discussions because the agency failed to notify the protester during discussions that the agency had found its prices to be unreasonably high; and (ii) the agency solicited, but then largely ignored, information from offerors that would have enabled the agency to assess whether the offered prices were fair and reasonable.
The GAO sustained parts of a protest by Microsoft Corp.,
holding that: (i) the agency's assignment of
significant risk to one aspect of the protester's technical proposal was
based upon (a) the false premise that it had a contractual
relationship with another firm and (b) an inaccurate and unreasonable
reading of the protester's proposal; and (ii) the agency failed to evaluate
proposals regarding latency values on a common basis because the awardee's
proposal was based on estimated values while the protester's was based on
actual values, and the significant strength awarded to the awardee's proposal
for its estimated values was unreasonable.
The GAO sustained a protest by Deloitte Consulting,
LLP because a task order award was for
services outside the scope of the awardee's underlying FSS contract. The GAO sustained a protest by Meridian Knowledge
Solutions, LLC because the awards of BPAs to
two vendors for periods only equal to the time remaining on their
underlying FSS contracts was inconsistent with the material requirement of
the solicitation that contemplated 10-year awards (a base year and nine,
one-year options)
Conflicts of Interest/Procurement Integrity The GAO sustained one of the protest grounds by Inmarsat Government,
Inc. because the procuring agency had failed to sufficiently mitigate the competitive harm from the inadvertent release
in the published, draft solicitation of the incumbent/protester's comprehensive,
detailed, and recent pricing for its non-commercial solution. The GAO sustained a protest by Steel Point
Solutions, LLC, because the agency failed to
adequately consider the awardee's work on other contracts that created
an impaired
objectivity OCI. Northrop Grumman
Systems Corp.--Mission Systems won its GAO protest on the ground
that the agency had failed to reasonably consider the potential impact of a
conflict of interest created by a government employee who developed the specifications for
the solicitation while simultaneously engaging in employment negotiations with
the firm that
ultimately received the award under the solicitation. The GAO sustained a protest by Serco Inc. because, after
undertaking corrective action to investigate an allegation
that the awardee had gained an unfair competitive advantage
in preparing its proposal by using information provided by
former high-level agency officials, the agency unreasonably concluded that the information
to which the former officials had access (as well as information that was demonstrably
provided to the awardee) did not constitute non-public, competitively useful information.
Recovery of Costs
In the following
decisions, the GAO awarded all or a portion of the claimed costs following
prior successful protests: (i) Protection
Strategies, Inc.; (ii)
Apex Transit Solutions, LLC: (iii)
Odyssey Systems Consulting Group, Ltd; (v) and GOV
National Healthcare Drive, LLC.
In
DynCorp International LLC, an unsuccessful post-award protest, the
court held that: (i) the
protester's challenge to a task order award on the basis that the
awardee's name had changed from the entity that received the
underlying IDIQ contract was
a protest "in connection with" the issuance of a task order over which
the CoFC
lacks jurisdiction under FASA; (ii) the protest did not fall within
FASA's exception for protests that a task order exceeds the "scope" of
the underlying IDIQ contract because "scope" means the scope of the
statement of work of the underlying contract; and (iii) the fact that
the awardee of the IDIQ contract changed from a corporation
to a limited liability company (with the Government's
approval) did not mean that the subsequent task order was
awarded to a different entity.
In
Newimar, S.A., the court dismissed a protest for lack of jurisdiction because
the protested award
had been set aside and the agency's corrective action had rendered the protest
moot.
In
SEKRI, Inc., an unsuccessful preaward protest, the court held
that: (i) the plaintiff lacked standing because it was
not an actual or potential bidder; and (ii) under Blue & Gold Fleet,
the plaintiff had
waived any right it might have had to challenge the solicitation's terms by failing to
object to a patent issue before the solicitation closed. Subsequently, the CAFC
reversed the decision. In 22nd Century Technologies, Inc.,
an unsuccessful protest of the protester's elimination from
the competition, the court held the
plaintiff lacked standing because it had proposed rates higher than the
maximum allowed by the solicitation, which, as the solicitation
warned, made its proposal unacceptable with no chance of award, in
which circumstance the agency was not required to seek clarification
before rejecting the proposal.
In
Mail Transportation, Inc., et al., the court analyzed multiple issues regarding requests to
supplement the administrative record and reiterated its stance that a challenge to
the Postal Service's
insourcing decision was not mooted by the expiration of the plaintiff's
contract during the pendency of the action. In
Microgenics Corp., an unsuccessful post-award protest, the court held that it lacked bid protest jurisdiction over
a protest of an award by the Administrative Office of the United States Courts
because that office is not an "agency" within the meaning of 28 U.S.C. 451.
In
Amazon Web Services, Inc., the court denied motions to dismiss
a portion of the plaintiff's Complaint, refusing to extend
Blue & Gold Fleet's waiver doctrine to
permit its use to bar a challenge to the implementation of
corrective action, i.e., to require that such a challenge be
brought before the corrective action was executed. In
KGL Food Services WLL,
an unsuccessful preaward protest claiming that one offeror,
whose proposal was received late, should have been
eliminated from the competition, the
court decided only that, although the Government erred in extending
the submission dates to allow all proposers, including the one whose proposal had
been received late, to submit revised proposals, the plaintiff failed
to establish prejudice
because the Government had not yet announced what will be done about the
late proposal, i.e., the protest was premature. In
Amazon Web Services, Inc., the court denied motions to dismiss
a portion of the plaintiff's Complaint, refusing to extend
Blue & Gold Fleet's waiver doctrine to
permit its use to bar a challenge to the implementation of
corrective action, i.e., to require that such a challenge be
brought before the corrective action was executed. In
M.R. Pittman Group, LLC, an unsuccessful post-award protest, the
court held that, under the Blue & Gold
Fleet standard, the plaintiff had waived its argument that the
procurement was not a small business set-aside by failing to object
until after the submission of offers.
In M Nicolas Enterprises, LLC d/b/a World Wide Health Services, and Michelle Nicolas, individually,
the court held that, since
it has bid protest jurisdiction only over 28 U.S.C. 1491(b)(1) bid
protest claims, the plaintiffs' 1491(a)(1), APA, Tucker Act, and CDA claims
must be dismissed for lack of jurisdiction. In
Land Shark Shredding, LLC, the court held that
because the original protester had since sold all its assets
necessary to conduct its government contract work to two other firms
and was operating under a new name, the newly named firm was neither a bidder
on the protested solicitation nor a "complete successor in interest"
that "could stand in the shoes" of the original bidder and, thus, did not have
standing to protest.
VS2, LLC is a successful, and interesting, court
post-award protest. The dispute began with a GAO protest,
and the GAO recommended that the contract with the original
awardee be terminated and awarded to the original protester.
The
original awardee did not immediately protest this GAO decision, but,
instead, waited to protest until the agency had followed the
recommendation and awarded the contract to the original
protester. The GAO found that subsequent protest of the reaward
to be an untimely request for reconsideration of the original GAO
protest decision. The original awardee then promptly filed
suit, and the agency and new awardee countered with the
argument that the CAFC's decision in Blue & Gold Fleet
meant the plaintiff had waived its right to file suit by
failing to challenge the recommended corrective action
immediately. With some hesitancy and a great deal of
analysis, the court refused to expand the Blue & Gold
Fleet waiver rule to situations other than challenges
to a solicitation defect. The court also held that its
jurisdiction was not limited by the GAO's rule on the
timeliness of requests for reconsideration. On the merits,
the court gave the GAO a good spanking for its original
decision. The GAO had held that, where an offeror proposes
to cap its costs below a realistic projection of those costs, there is
no basis for an upward adjustment of the proposed costs in the
evaluation. The court held that only price risk is addressed by
such a cap, not the performance risk associated with a loss contract,
and that the
GAO's contrary decision was erroneous as a matter of law, in that it ignored (i) clear solicitation provisions,
(ii) the FAR, and (iii) GAO's own precedent.
In
Squire Solutions, Inc., the court held that: (i) under the
specific facts of the case, the court had bid protest jurisdiction over a
Phase I SBIR solicitation because it was "in connection with a
procurement"; (ii) there were rational bases for the agency's evaluation of
the protester's
proposal; and (iii) the protester failed to offer sufficient proof for
its allegations of agency bias
against its proposal. In
Aero Spray, Inc., d/b/a Dauntless Air, an unsuccessful post-award protest,
the court held that: (i) a successful awardee of
a multiple award ID/IQ contract lacked standing to challenge additional
awards to other firms; and (ii) the protest also was untimely under
Blue & Gold Fleet because it
involved a patent solicitation ambiguity.
In
22nd Century Technologies, Inc., the court held
that a suit complaining of
an agency's decision to cancel a task order as a result of an OHA
determination that a firm was not small was a bid protest and, therefore,
was subject to FASA's bar on the court's review of task order protests. In
Melwood Horticultural Training Center, Inc., a successful preaward
protest, the court held that a solicitation based on an AbilityOne Pilot
Program was a clear and prejudicial violation of 41 U.S.C. § 8504 and 41
C.F.R. § 51-2.7 because it included a price competition and made price a
central component of the selection criteria. In
Syncon, LLC, an unsuccessful preaward protest, the court held that: (i) the court could consider documents generated
during remands (one of which the protester agreed to and the other it
had sought) after earlier protests; (ii) the agency had a rational basis for rescinding
a solicitation amendment that had
extended the due date for proposals after it had passed because that
amendment had not been issued in accordance with the governing FAR
regulations; (iii) following an agency-level protest, the agency had
an independent
basis to rescind the amendment to correct the perceived error in issuing it
and, therefore, the protester's failure to allege prejudice was not
relevant in this case; and (iv) the agency had a rational basis for rejecting offers
as late because they failed to satisfy any of the exceptions to FAR 52.215-1
re late bids. In
Medline Industries, Inc., a successful preaward protest, the court held
that: (i) the agency's
decision to transfer its requirements to another agency had no support
in the administrative record (a point conceded by the agency); (ii)
the solicitation did not reflect the agency's
current requirements (which changed several times after the solicitation was issued) in violation of FAR 15.206;
and (iii) the protester was entitled to
bid and proposal costs because the agency breached its implied-in-fact
contract with the protester by issuing the solicitation despite the agency's undisclosed
plan to truncate the scope of performance and transfer its requirements to another
agency. See also
Owens & Minor Distribution, Inc. In
American K-9 Detection Services. LLC;
Global K9 Protection Group, LLC, which involved consolidated pre-
and post-award protests, the court held,
inter alia, that: (i) the USPS' Supplying
Principles & Practices (SP&P) document, while not a formal
regulation, nevertheless provides standards by which USPS
procurement actions can be judged; (ii) there was a rational basis for
the USPS' decision to bundle canine
screening and alarm resolution services into a single procurement;
(iii) structuring the solicitation to favor a single award for both types of
services did not unduly restrict competition in part because five
offerors did, in fact, offer both; (iv) the Government's interest in historical
data and past performance had a rational basis and did not amount to
structuring the solicitation in order to favor an incumbent; (v) a USPS
provision requiring the parties to exhaust administrative remedies before
suing in court did not preclude the court's consideration of issues discovered only when
the Government filed the administrative
record in response to the protests; (v) the Government failed to enforce
its font size
requirement against the awardee and simply ignored the error instead of
considering the issue and waiving it as a minor informality, but the
error was not prejudicial because "[a]ll parties had ample opportunity to fully detail and explain
technical proposals, and the government fairly and fully considered each proposal";
but (vi) the case must be remanded for a second time
because the investigation ordered by the first remand still did not provide
sufficient information for the resolution of all OCI allegations.
In
Goodwill Industries of South Florida, Inc., the court dismissed a preaward protest against solicitation
terms as premature because the agency had not issued one of the
challenged solicitations yet,
and an amendment had been issued extending the closing date of another
while the agency undertook action that might resolve the protest issue.
In
Progress for Bakersfield Veterans LLC, an unsuccessful preaward protest of exclusion from
the competitive range, the court held that, under
the Blue & Gold Fleet standard, the plaintiff
had waived
its claims that (a) the structure of the solicitation would violate
the Anti-Deficiency Act and (b) the agency's decisions to cancel
the prior
solicitation and reissue it with a very short response time evidenced
agency bias. On the merits, the court rejected a plethora of challenges
to various aspects of the evaluation, including the allegations that
the agency had employed an unstated evaluation criterion and
treated offerors unequally.
In
Harmonia Holdings Group, LLC and Snap, Inc., which involved unsuccessful,
consolidated, post-award protests, the court held that: (i) the
agency had a rational basis for assigning a weakness to a proposal that
proposed work at a facility that was already completed and that was
not part of the statement of work; (ii) the agency did not treat proposals
unequally merely by awarding strengths to only one of them; (iii) the agency's
price evaluation methodology (a) was reasonable in contrast to the protester's
suggested
methodology, which would have required the agency to use a figure that
did not appear in any offeror's price workbook, and(b) did not prejudice
the protester; (iv) the agency did not err in failing to look
outside a proposal for the meaning of a word in the proposal that was not clearly explained
there; (v) especially where the solicitation did not include an evaluation of
past performance and, contrary to its contention, the protester was not the incumbent,
the protester could not
complain that it should have received a higher score than the awardee
for understanding of the requirements for the work; and (vi) the agency performed
a rational
tradeoff analysis.
In
ProSecure, LLC, an unsuccessful post-award protest, the court held that: (i) the agency did not violate the "too close at
hand" doctrine in evaluating the protester's past performance because it
evaluated both the information submitted by the protester and other
information available to the agency; (ii) the agency's comparative magnitude relevance
analysis of the
reference contracts under the solicitation's relevant past performance
evaluation had a rational basis; (iii) there was also a rational basis
for the agency's determination that the incumbent's contract was most directly
relevant to the work to be procured under the current solicitation;
(iv) the agency had
a rational basis for assigning increased risk to the protester's proposal
because only one of its joint venture partners had relevant past
performance experience; and (v) the agency did not engage in disparate treatment
of the offerors
in evaluating the Management Approach factor.
In Brighton Cromwell, LLC,
another unsuccessful post-award protest (this one of IDIQ award decisions in
a solicitation for Level 2 Disposable Isolation Gowns), the
court denied the protester's
motion for a TRO and a preliminary injunction because the protester had not
shown a likelihood of success on the merits of its allegations that
the agency (a) employed an unstated evaluation criterion in rejecting its offered
gowns, (b) engaged in unequal treatment of offerors, or (c) failed to seek
clarifications from the protester concerning the issues that
resulted in the finding that its gowns were unacceptable. In Perspecta Enterprise Solutions LLC,
an unsuccessful post-award protest, the court held that: (i) under
Blue & Gold
Fleet, the plaintiff had waived its argument that the awardee's employment of
a former government employee was an OCI because the plaintiff knew of that
employment prior to submitting its offer but did not protest; (ii) where
the solicitation did not require the evaluation of named personnel and
the agency
did not conduct such an evaluation, the fact that one of the employees listed in
the awardee's proposal
had left its employ was not a material misrepresentation; (iii) the protester
was not prejudiced by the methodology the agency used to conduct the price realism
analysis; (iv) the agency's price realism analysis of the awardee's fixed-price
CLINs, some of which it determined were unrealistically low, was
unobjectionable
because the agency, viewing the proposal as a whole, determined there
were no performance risks associated with those prices; (v) the agency did not
treat offerors disparately under the cost realism analysis because
a solicitation amendment permitted offerors either to explain previously
questioned rates or to change them, and the offerors simply chose
different courses in response; and (vi) the agency did not engage in improper
unequal discussions with the offerors. In
People, Technology & Processes, LLC, an unsuccessful post-award protest,
the court held, inter alia, that: (i) the court "can reasonably discern the Agency’s path in rating the Capabilities portion of
[the protester's] proposal as unacceptable"; (ii) there was no support for
protester's claim that the agency ignored the narrative portions of its
proposal or that the evaluations of different portions of its proposal
were inconsistent with one another; and (iii) the protester failed to establish that
the agency treated its proposal unequally from those of other offerors
with allegedly similar deficiencies. In System Studies & Simulation, Inc. and L3 Doss Aviation, Inc.,
which involved unsuccessful, consolidated post-award protests of
the award after a reevaluation following a
prior protest, the court (in a decision impossible to summarize
precisely because of heavy redactions) held that: (i) the agency did not err in declining to award
the protester
extra credit for its incumbency or in declining to assign the protester
other "strengths" it felt it deserved; (ii) the
agency's decision to credit the awardee with a strength for expected costs
savings lacked a rational basis but ultimately did not prejudice the
protesters; and (iii) the agency did not err in its past performance
evaluation, its small business participation evaluation; or in the
final tradeoff
evaluation. Subsequently, the court
denied the protesters' motions for reconsideration. Still
later, the CAFC
affirmed the court's opinion In
IAP World Services, Inc., a partially successful post-award protest,
the court held that: (i) the Past Performance
evaluation had a rational basis and the protester's arguments to contrary
were based on a misreading of the solicitation's requirements;
(ii) the protester's argument regarding unbalanced pricing,
which was not
included in the protester's Complaint and which was raised for first time in its
motion for judgment on the administrative record, would be considered by
the court
because both the Government and the intervenor responded to it on the merits
without objecting to its tardiness; (iii) the case should be remanded to
the agency to conduct
an unbalanced pricing analysis, which was required by the FAR 15.404-1(g)(2) but which
had not been performed by the agency. Subsequently, in its
follow-up decision, the court held that the Government's determination that none of
the offerors had utilized unbalanced pricing was rational and
supported by the record. In Huffman Building P, LLC, an unsuccessful post-award protest, the
court held that: (i) absent an amendment to the solicitation,
the court lacked jurisdiction over a protest allegation that the agency
had changed the contract
after award because that allegation involved a matter of contract administration;
(ii) absent significant countervailing evidence, the agency's determination that the awardee's proposal was technically
acceptable based on the awardee's certification of compliance with a
solicitation requirement had a rational basis; and (iii) whether an
offeror of a building lease meets zoning requirements is not a
requirement for a FAR 9-104 responsibility determination. In Quanterion Solutions, Inc.,
another unsuccessful post-award protest, the court held that: (i) the protester's interpretation
of the solicitation's requirement regarding a transition plan and costs
was
not reasonable considering the language of the solicitation as a whole
and the bidders' questions and answers, so a protest that the agency
had violated
this supposed requirement must be denied; (ii) even if the solicitation's
transition plan requirement could be
considered ambiguous, the ambiguity was patent so the protester should have protested
it prior to the submission of proposals; and (iii) a minor
mathematical error in the agency's calculation of the IGCE
did not prejudice the protester. In
Colonna's Shipyard, Inc., an unsuccessful post-award protest, the
court held that: (i) the agency had a rational basis for
utilizing FAR Part 13 simplified acquisition procedures to conduct
the procurement; (ii) the solicitation did not mislead offerors into believing
the procurement was being conducted under FAR Part 15; (iii)
the protester did not
show that the lack of notice of the use of simplified acquisition procedures
prejudiced it; and (iv) there were rational bases for the agency's past performance and
technical capability evaluations. In
The Severson Group, LLC, an unsuccessful post-award protest,
the court held that: (i) there were rational bases for
the challenged aspects of the agency's
evaluation of the awardee's technical proposal; and (ii) the protester failed to
establish that the awardee engaged in a bait and switch concerning its proposed project
manager because the protester failed to demonstrate that the awardee made
a false statement concerning that position. In
Salient Federal-SGIS, Inc., an unsuccessful preaward protest against
the protester's
elimination from the competition, the court
held that: (i) the agency did not fail to give the protester
adequate credit for its proposal; (ii) the agency did not employ unstated
evaluation criteria; (iii) the solicitation did not contain any latent
ambiguities; and (iv) the agency did not evaluate proposals disparately,
plaintiff's arguments to the contrary being based only on highly selective
portions of the competing proposals. In
Mortgage Contracting Services, LLC, a successful post-award protest,
the court held that the awardee's proposal had been
accepted by the agency despite the fact that it was noncompliant with
a material solicitation requirement. In
Sirius Federal, LLC (f/k/a Force 3, LLC), et al., the
court held that, although the plaintiffs did not lose
their standing to challenge
the rejection of their proposals for multiple awards under a BPA as team
leaders simply because they were also members of other teams that won
awards, their requests for a preliminary injunction must be denied
becuase: (i)
the solicitation gave offerors ample notice of, and time to revise,
proposals in accordance with solicitation amendments; (ii) the agency reasonably evaluated
the offerors' proposals for
end-of-life products under the price evaluation factor; (iii) the tradeoff
evaluation was unobjectionable, especially where the awardees' proposals were
both higher rated technically and lower priced than the protesters'
proposals; (iv) the court would not consider an argument raised for
the first time
in a protester's reply brief; and (v) the protesters failed to establish
irreparable harm from the denial of the preliminary injunction.
In
Harmonia Holdings, LLC, an unsuccessful post-award protest, the
court held, inter alia, that:
(i) the agency did not use unstated
evaluation criteria in evaluating the protester's past performance because
the criteria were "intrinsic" to the explicit criteria stated in
the solicitation;
(ii) there was a rational basis for the agency's decision to assign
a weakness to the protester's
proposal for providing inadequate assurances that the incumbent's
employees would join its team; and (iii) there was no merit to the protester's argument that
the SSA
did not exercise independent judgment in her final best-value tradeoff
evaluation of proposals.
In
Rocky Mountain Mobile Medical, an unsuccessful post-award protest,
the court held that: (i) in a Part 13 procurement,
where the solicitation specifically warned bidders that the agency might
conduct discussions with none, some, or all bidders, the agency's decision
to conduct exchanges with only some bidders was unobjectionable
(especially where the protester had failed to timely object
to the terms of the solicitation); (ii) where
the solicitation included a page limit for proposals, the agency's decision to
remove the cover letter from the awardee's proposal (rather than removing
its final three pages) had a rational basis; (iii) the agency also had
a rational
basis for finding the awardee's past performance reference relevant;
and (iv) the agency's misevaluation of another unsuccessful offeror's proposal was
irrelevant to this protest.
Subsequently, the court
denied the protester's motion for reconsideration. In
XTec, Inc., an unsuccessful post-award protest, the court
held, inter alia, that: (i) under FASA, it lacked jurisdiction
over a protest of the issuance of a task order; (ii) the evidence in
the record did not substantiate
the protester's allegation that the awardee improperly transferred substantial risks and costs to the
agency in its proposal; (iii) the agency provided sufficient support for
its price
realism analysis; (iv) the awardee's proposal did not materially misrepresent
its or its subcontractor's past experience; and (v) the agency did not engage in
disparate treatment of proposals. In
Appsential, LLC, an unsuccessful post-award protest, the Court of
Federal Claims held: (i) there were rational bases for both (a)
the agency's
evaluation of the awardee's staffing mix even though it was "leaner" than
the incumbent/protester's, and (b) the agency's conclusion that
the awardee's
staffing was adequate for its proposed technical approach while
the incumbent's technical advantage was not worth its higher cost;
(ii) general
statements by the awardee that acquired companies had been fully
integrated into its operations were sufficient for the agency to conclude
they would have significant involvement in contract performance and,
therefore, could be used by the awardee as references for the corporate
experience evaluation; and (iii) the agency reasonably reacted to a potential OCI
involving an agency employee married to an employee of the awardee where
the agency's
employee was removed from the process of drafting the agency's statement of
work prior to the time the solicitation was officially released, and
the awardee's
employee was recused from the awardee's proposal preparation efforts. In PAE Applied Technologies, LLC,
an unsuccessful post-award protest, the court held that: (i)
the agency was within its
discretion to evaluate the protester's proposal as originally submitted and
to conclude it was unacceptable due to the unavailability of proposed key
personnel; (ii) the agency had a rational basis for its cost realism analysis of
the awardee's proposed wage rates even though they were lower than the
wage rates of the incumbent's employees (of which awardee was
unaware); and (iii) the agency properly considered both positive and negative CPAR
comments in evaluating the protester's past performance. In
Logistics Health, Inc., an unsuccessful post-award protest
containing many allegations, the court
held, inter alia, that: (i) there was a rational basis for
the agency's
evaluation of the awardee's technical proposal concerning the network of
providers it could develop after receiving the award, in accordance with the
solicitation's requirements; (ii) the awardee did not mislead the agency
concerning this area in its proposal; (iii) a material difference in
the proposals
demonstrated the agency did not treat them unequally by awarding only
the awardee a strength for proposing to provide audiology vans;
(iv) the agency did
not err in giving the awardee credit for proposing to expedite
the transition-in time frame beyond the solicitation's requirement;
(v) the Government
complied with the FAR requirement to document its evaluation adequately
and was not required to explain its position on every individual PWS
requirement; (vi) the Government's limited corrective action (allowing
the awardee
to substitute a new program manager) in response to a prior GAO protest
was reasonably tailored to address a minor error that was the
Government's own problem and did not result in unequal discussions,
and allowing the plaintiff to revise its price after having seen the
awardee's price would have been unfair; and (vii) the Government's unbalanced
pricing analysis was not required to extend below CLINs to procedures
identified in attachments to the solicitation. The court also examined
whether several of plaintiff's arguments were time-barred under Blue &
Gold Fleet, finding that one of them was.
In
LAX Electronics, Inc. d/b/a, Automatic Connector, an unsuccessful protest,
the court held that, although DoD Manual 4120.24 does
not have the force and effect of law because it was not the product of
"notice and comment" rule-making, it was the standard the agency
utilized in removing the protester from the QPL list, and the agency
followed the procedures in the manual, making
determinations that had rational bases. In
Vectrus Systems Corp., an unsuccessful post-award protest by the incumbent
contractor, the court held that: (i) the agency did not engage
in disparate treatment in its past performance evaluation, neither
understating the awardee's past performance issues nor exaggerating
concerns with the protester's past performance; (ii) the agency did not err in
the degree of relevance assigned to a contract performed in Greenland as
opposed to locations "within Europe or Africa" as specified by the
solicitation; and (iii) the protester's argument, in essence, that the agency should have used
the protester's own (incumbent) pricing to determine the price reasonableness for all
offerors
Solicitation Language/Preaward
Protests
In SigNet Technologies, Inc. dba Convergint Federal Solutions, an unsuccessful post-award protest, the court, inter alia: (i) declined to rule on an allegation that the plaintiff had violated the terms of a GAO protective order by including protected information under that order in its Complaint because that issue was currently pending before the GAO, and it was the GAO's order; (ii) held that there was a rational basis for the agency's determination that the awardee's quotation documents included all the information required by the solicitation; and (iii) held that the agency did not treat proposals unequally, having rational bases for its price and tradeoff evaluations.
In WaveLink, Inc., a successful post-award protest, the court, inter alia: (i) denied the protester's complaint that the agency took an unreasonably long time (10 months) between its receipt of proposals and awards so that the information regarding important evaluation factors in the proposals became stale; (ii) held that the agency was not required to seek updated "relevant experience" information from the protester because that would have constituted discussions, which the agency had "assiduously avoided" throughout the procurement; (iii) held that the agency only sought clarifications from various offerors, which did not require it to conduct discussions with the protester; (iv) determined that the agency improperly relaxed a mandatory solicitation requirement (i.e., that, in order to be eligible for award, offerors must provide a "convincing rationale to support" a direct labor rate outside of a set range) for multiple awardees, but the protester was only entitled to relief in the award "pool" in which it was prejudiced by this error; (v) rejected the Government's contrary reading of the mandatory provision as unreasonable (noting that the Government was judicially estopped from advancing it); and (vi) held that the Government's prior corrective action in response to a GAO protest did not shield it from the consequences of its misapplication of the mandatory provision.
In Apt Research, Inc., an unsuccessful post-award protest, the court held that the agency correctly concluded that the protester's failure to submit a required bilaterally-signed employment agreement with its proposed Program Manager rendered the proposal Unacceptable under the Mission Capability factor and, therefore, unawardable, which meant the protester could not establish prejudice from the agency's alleged unequal treatment of offerors in other areas of the solicitation.
In Sophian Bioscience, Inc., an unsuccessful post-award protest, the court held that: (i) the solicitation was unambiguous as to the meaning of "throughput," so that the agency's use of that meaning in the evaluation was not an unstated evaluation criterion; and (ii) the agency did not treat proposals unequally in the evaluation.
In ACI Technologies, Inc., an unsuccessful post-award protest, the court utilized the principle of interpretation that a specific solicitation provision controls over a conflicting general provision in holding that a provision identifying a specific part number as approved governed over a general provision that parts must have an Airworthiness Release for use in the airframe involved in the procurement. The court also held that the problem with the solicitation stemmed from a typographical error that had been quickly corrected once discovered and that had not prejudiced the protester.
In Blue Tech Inc, a successful post-award protest, the court held that where the solicitation required quotes for a "device only" that was "capable of supporting" stated amounts of data storage and RAM, the agency improperly rejected an offer of a device that had the required capabilities but did not have that amount of storage already installed and found the Government's contrary interpretation unreasonable (and any ambiguity latent) even though almost all other offerors had proposed items with the stated amounts of disc storage and RAM already installed.
In Oak Grove Technologies, LLC, a successful, post-award protest, the court held that: (i) the Government repeatedly withheld relevant documents that were detrimental to its positions on the protest issues from the administrative record and is ordered to show cause why it should not be sanctioned for wasting the court and the plaintiff's time; (ii) the requirement to submit an executed teaming agreement with one's offer was a material requirement that the agency was not free to ignore; (iii) the agency failed to conduct a required financial responsibility analysis of a proposal; (iv) the agency failed to justify its decision not to conduct discussions where the governing regulation established a preference for them; and (v) the agency failed to adequately investigate allegations of improper conduct by a procurement official.
In 10 Tanker Air Carrier, LLC, an unsuccessful post-award protest, the court held: (i) there was a rational basis in the best-value analysis for focusing on what the solicitation stated was the most important price consideration (total overall price) rather than on one of its components (cost per gallon of fuel); and, alternatively (ii) the plaintiff's arguments were time-barred under Blue & Gold Fleet because, prior to the submission of offers, it could have protested the solicitation's weighting of total overall price over cost per gallon of fuel.
In VS2, LLC the court gave the GAO a good spanking for its original decision on a protest. The GAO had held that, where an offeror proposes to cap its costs below a realistic projection of those costs, there is no basis for an upward adjustment of the proposed costs in the evaluation. The court held that only price risk is addressed by such a cap, not the performance risk associated with a loss contract, and that the GAO's contrary decision was erroneous as a matter of law, in that it ignored (i) clear solicitation provisions, (ii) the FAR, and (iii) GAO's own precedent.
In XL Assocs., Inc., an unsuccessful post-award protest, the court held that: (i) the agency did not use unstated evaluation criteria in requiring offerors to describe their experience managing day-to-day operations and disaster operations simultaneously or in concluding a proposed subcontractor was a "major subcontractor" (which required a letter of commitment) even though the protester had stated in its proposal that the firm was not a major subcontractor; (ii) the solicitation's experience requirements and evaluation were distinct from the past performance requirements and evaluation and, thus, the agency could downgrade a proposal for lack of relevant experience even though lack of past performance was to be rated neutrally; (iii) there were rational bases for the various portions of evaluation challenged by the protester; and (iv) the agency determined the awardee's price was fair and reasonable based upon adequate price competition, and there was nothing objectionable in the agency's use of the independent government estimates as part of the price evaluation.
In Kinemetrics, Inc., which involved an unusual peer-review process for selecting a firm to provide seismic monitoring equipment, the court dismissed the protest for failure to state a claim because, in reaching the conclusion that infrastructure changes would be necessary to supply the electrical power required by the Kinemetrics equipment, which would ultimately increase the life cycle cost, the agency did not employ unstated evaluation criteria, and its technical evaluation was entitled to deference from the court.
In Agile Bot II, LLC, an unsuccessful post-award protest, the court held that: (i) the agency had a rational basis for the limited scope of its price realism analysis, which was not contrary to the terms of the solicitation; (ii) the awardee did not fail to comply with the solicitation's requirements concerning available facility space; and (iii) the agency did not treat proposers disparately under the Recruitment/Retention Strategies evaluation factor.
In PAE Aviation & Technical Services, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) there was a rational basis for the agency's assignment of a weakness to the protester's proposal in the area of labor efficiency and reduction of mechanic hours in an out year; (ii) the agency could not have addressed this issue with a request for clarification because any response would have involved material revisions to the proposal; (iii) the agency was not precluded from adjusting the protester's cost proposal upward in light of the weakness noted in labor efficiency and staffing; (iv) the agency did not treat the protester's and the awardee's staffing proposals unequally because their proposed approaches were fundamentally different from one another; (v) the agency evaluated the awardee's change in ownership and rationally concluded it would have no impact on performance; and (vi) the agency had a rational basis for adjusting the protester's proposed escalation rates because those rates were inadequately explained in the proposal, which was a solicitation requirement.
In Alpine Companies, Inc., an unsuccessful post-award protest, the court held that: (i) the scope of the agency's investigation of possible Procurement Integrity Act violations was reasonable, as was its conclusion that there were no violations; and (ii) there were rational bases for the agency's evaluations of the protester's and the awardee's proposals.
In Blue Origin Federation, LLC, the court rejected a protest on multiple grounds, holding that: (i) the protester could not establish prejudice because (a) its bid greatly exceeded the available funding, (b) its proposed approach would not have benefited from a waiver it claims the agency provided only to the awardee, (c) its proposed advance payments were not allowed by the solicitation, which rendered its offer ineligible for award, and (d) the alternative proposal it claims it would have submitted "is purely speculative, including hypothetical pricing and hypothetical technical ratings"; (ii) the protester waived various objections to the solicitation by failing to raise them until after award; and (iii) even without all these defects, the protest would fail on the merits.
In Intuitive Research and Technology Corp., another unsuccessful post-award protest, the court held that there was a rational basis for: (i) the agency's price realism determination; and (ii) the agency's conclusion that the awardee's lower offered price outweighed the slight technical advantages of the protester. The court also held that the agency neither employed unstated evaluation criteria nor treated offerors unequally.
In A.T. Kearney Public Sector and Defense Services, LLC, an unsuccessful post-award protest, the court denied the plaintiff's motion for a preliminary injunction because the plaintiff failed to establish a likelihood of success on the merits on any of its claims that the agency: (i) failed to accord its proposal the strengths it deserved; (ii) used unstated evaluation criteria; and (iii) treated proposals disparately.
In CW Government Travel, Inc. a/k/a CWTSatoTravel, a successful post-award protest, the court held that, although the agency's Past Performance evaluation had a rational basis and the agency had not treated offerors disparately: (i) the awardee's key personnel did not meet the unambiguous experience requirements in the solicitation, and the agency's contrary interpretation of those requirements was unreasonable; (ii) the agency failed to examine the awardee's proposal for unbalanced pricing; and (iii) the RFP required the agency to conduct a price realism analysis, which it had failed to do--
In sum, the Court poured over the Administrative Record in search of anything appearing to be an overall price realism analysis. The task proved futile. Instead, the Court is left with a strange mess of the government’s own making. To the extent the agency conducted a price realism analysis, which GSA itself asserted it did not, that analysis resulted in a recommendation against [the awardee] because of its potentially unrealistic pricing and risk of unsatisfactory performance. Truth be told, Plaintiff’s allegation that GSA failed to perform a "rational" price realism analysis appears to give GSA too much credit. No such analysis appears to have occurred. Instead, if GSA did conduct an overall price realism analysis, "the agency’s own evaluations do not reflect why the [agency] found [the awardee’s] prices were realistic." [citation omitted] This mess is not for the Court to resolve, but for GSA to correct in accordance with the terms of its own RFQ.
Conflicts of Interest/Procurement Integrity Act
In Appsential, LLC, an unsuccessful post-award protest, the court held: (i) there were rational bases for both (a) the agency's evaluation of the awardee's staffing mix even though it was "leaner" than the incumbent/protester's, and (b) the agency's conclusion that the awardee's staffing was adequate for its proposed technical approach while the incumbent's technical advantage was not worth its higher cost; (ii) general statements by the awardee that acquired companies had been fully integrated into its operations were sufficient for the agency to conclude they would have significant involvement in contract performance and, therefore, could be used by the awardee as references for the corporate experience evaluation; and (iii) the agency reasonably reacted to a potential OCI involving an agency employee married to an employee of the awardee where the agency's employee was removed from the process of drafting the agency's statement of work prior to the time the solicitation was officially released, and the awardee's employee was recused from the awardee's proposal preparation efforts.
In American K-9 Detection Services. LLC; Global K9 Protection Group, LLC, which involved consolidated pre- and post-award protests, the court held, inter alia, that: (i) the USPS' Supplying Principles & Practices (SP&P) document, while not a formal regulation, nevertheless provides standards by which USPS procurement actions can be judged; (ii) there was a rational basis for the USPS' decision to bundle canine screening and alarm resolution services into a single procurement; (iii) structuring the solicitation to favor a single award for both types of services did not unduly restrict competition in part because five offerors did, in fact, offer both; (iv) the Government's interest in historical data and past performance had a rational basis and did not amount to structuring the solicitation in order to favor an incumbent; (v) a USPS provision requiring the parties to exhaust administrative remedies before suing in court did not preclude the court's consideration of issues discovered only when the Government filed the administrative record in response to the protests; (v) the Government failed to enforce its font size requirement against the awardee and simply ignored the error instead of considering the issue and waiving it as a minor informality, but the error was not prejudicial because "[a]ll parties had ample opportunity to fully detail and explain technical proposals, and the government fairly and fully considered each proposal"; but (vi) the case must be remanded for a second time because the investigation ordered by the first remand still did not provide sufficient information for the resolution of all OCI allegations.
In Insight Public Sector, Inc., a partially successful post-award protest, the court remanded the case to the agency to further investigate whether an email from the awardee to the agency contained data which indicated that a Procurement Integrity Act (PIA) violation (i.e., improper access to the protester's bid and proposal information) had occurred. The court dismissed a second PIA allegation as untimely.
Sole Source/Small Business/Restricted Competitions
In BTAS, Inc., an unsuccessful protest against the SBA's determination that the protester was not a small business, the court held that section (3)(a)(2)(C)(ii) of the Runway Extension Act, which provides for a five-year versus a three-year period for calculating average annual receipts in determining a firm's size, does not impose limitations on the SBA’s prescription of size standards but, instead, applies to agencies and departments other than the SBA that lack independent statutory authority to promulgate size standards, and even if it does apply to the SBA, the five-year averaging method is applicable only after the the effective date of the final regulations that the SBA promulgated to establish it.
In Obsidian Solutions Group, LLC, the court upheld a prior decision by the SBA's OHA that a plaintiff was not a small business for purposes of the procurement at issue because, as has been held by another judge of the court and repeatedly by the SBA, itself, the Small Business Runway Extension Act does not require the SBA to utilize a five-year period for calculating average annual receipts.
In In Darton Innovative Technologies, Inc., the court upheld the decisions by the SBA's Area Office and then by the OHA that the plaintiff had not rebutted the presumption that it was affiliated with a larger business because more than 70% (actually 100%) of the plaintiff's revenues over the past three years (indeed, five years) had been derived from its work as a subcontractor to that business.
In AGMA Security Service, Inc., a successful post-award protest, the court (in a detailed analysis) held that the J&A provided an inadequate justification for the sole-source bridge contract award after the court's prior bid protest ruling against the agency.
In Harmonia Holdings Group, LLC, the court denied a motion to enjoin a sole-source bridge contract (in the form of a task order) following the agency's decision to cancel a solicitation and re-compete rather than complete the corrective action it had begun in response to a prior GAO protest.
In Ranger American of Puerto Rico, Inc., an unsuccessful preaward protest, the court held that the agency had a rational basis for setting aside a procurement for small businesses and was not required to make a procurement-specific "fair proportion" finding before doing so.
In Sierra Nevada Corp., the court enjoined a proposed sole source award because it was set to begin before it was required and to last longer than was justified.
In Swift & Staley, Inc., the court used principles of statutory construction to reverse a decision by the SBA's OHA. Specifically, the court held that a firm is not required to include its share of revenue from its membership in a populated joint venture for purposes of a size determination.
In AccelGov, LLC, a partially successful preaward protest of the Government's intent to award a sole-source 8(a) bridge contract pending resolution of a protest, the court held that: (i) the agency did not publicly express a clear intent to award a small business set-aside; (ii) the bridge contract was not a new requirement (it was a follow-on) so the SBA should have, but did not, conduct an adverse impact analysis pursuant to 13 C.F.R § 124.504; and (iii) there were rational bases for the agency's evaluation of the offerors' capabilities. The court remanded the case for the SBA to conduct the adverse impact analysis.
In
Quanterion Solutions, Inc., an unsuccessful preaward protest, the
Court of Federal Claims denied the protester's objection to
the SBA's
acceptance of a requirement and a firm into the 8(a) program without
conducting an adverse impact analysis on the protester because: (i)
the requirement was "new work"
under 13 C.F.R. § 124.504(c)(1)(ii)(C); and (ii) there was no prejudice to the protester
from the fact that the proposed awardee's size had changed to exceed
the applicable size standard during the pendency of the dispute
because, since the work was new work, the contract could have been
awarded to some other firm without an adverse impact analysis anyway
Corrective Action and CICA Stays
In PGLS, LLC d/b/a Piedmont Global Language Solutions, a successful post-award protest, the court granted the protester a permanent injunction because the court could not "find a reasonable or satisfactory explanation for the Agency’s decision" to cancel the award to the protester and reprocure.
In AGMA Security Service, Inc., another successful post-award protest involving corrective action, the court found that, although the agency's contract award (for protective services to safeguard federal employees, visitors and property during disaster and emergency declarations for Puerto Rico) did not violate the Stafford Act, the record lacked explanations for why the Contracting Officer changed the award determination upon re-evaluation during corrective action after a GAO protest.
In Superior Optical Labs, Inc., a successful protest by the original awardee against the agency's proposed corrective action, the court held that "there was no error that needed correcting.
In Amazon Web Services, Inc., the court denied motions to dismiss a portion of the plaintiff's Complaint, refusing to extend Blue & Gold Fleet's waiver doctrine to permit its use to bar a challenge to the implementation of corrective action, i.e., to require that such a challenge be brought before the corrective action was executed.
In
Clarke Health Care Products, Inc.,
the court noted that its
prior
decision remanding a bid protest case to the VA to identify any documents supporting
the agency's decision to take corrective action does not permit the VA to
make a new decision justifying the corrective action because that
would amount to a post hoc rationalization. The court also
noted that its decision was not inconsistent with the
Supreme Court's decision in Dept.
of Homeland Security et al. v. Regents of the
University of California et al.
In
PAE Applied Technologies, LLC,
an unsuccessful protest against proposed corrective action,
the court reluctantly upheld the agency's decision to limit
corrective action by allowing revisions only to cost proposals
despite the protesters' arguments that: (i) both the lengthy period since
the solicitation
was issued and the intervening COVID pandemic would have effects on
the technical proposals; and (ii) the solicitation required that technical proposals
harmonize with cost proposals
so that a change in the latter might require an
adjustment in the former.
In
Clarke Health Care Products, Inc., the court denied
the plaintiff's motion for relief from a prior judgment by
the court
because the fact that the plaintiff had revised its corrective action plan in
response to GAO protests filed after the court's prior judgment
did not mean the plaintiff had misrepresented its intentions to the court
regarding its plans at the time of that prior judgment. In
AccelGov, LLC, the court denied a request for an injunction against
a short-term sole-source bridge
contract pending the outcome of a protest because the Government's national
security interests would be impaired absent the contract.
In
SAGAM Securite Senegal, a successful preaward protest, the court held that, instead of canceling the solicitation,
the agency should have declared the competitor (to whom the agency had improperly
disclosed the protester's proposal data) ineligible for award.
In
Yang Enterprises, Inc., an unsuccessful protest, the
court held that the agency had provided a rational explanation for
its decision to cancel a solicitation instead of reevaluating offers as had
been recommended by the GAO as a result of a successful prior protest of
an award.
In
Superior Optical Labs, Inc., the court held that
the prevailing party in an
earlier protest was entitled to recover its legal fees under the
EAJA because the Government's litigation position (misinterpreting a clear
statute and contradicting its pre-litigation position and actions) had not
been substantially justified. In
SAGAM Securite Senegal, the court denied the Government's motion to stay
a portion of a
prior judgment in a successful preaward protest pending appeal to
the CAFC because the Government had not shown a likelihood of success on
the merits of its appeal. In
Oak Grove Technologies, LLC, the court imposed sanctions on the Government for its shortcomings in
the handling and production of the administrative
record
in a
successful bid protest
Court of Appeals for
the Federal Circuit In
Land Shark Shredding, LLC, a decision it labeled as nonprecedential,
the CAFC held that, although contrary to the
prior CoFC decision,
the protester had standing to protest even though its bid
price exceeded the Government's available funding, the lower court correctly determined that
the protester had
failed to present a plausible claim upon which relief could be granted because
the Government had a reasonable
basis for cancelling the solicitation after concluding the offered prices, which
exceeded the available funding and which were higher than the incumbent's
contract pricing and in excess of the Government's estimate, were not
fair and reasonable according to a FAR provision in the solicitation to
which the protester had failed to timely object. In a
companion (also nonprecedential)
Land Shark Shredding, LLC decision, the CAFC held that, although
(again) the protester had standing to
protest, the
prior CoFC decision must be affirmed because: (i) the agency had
a rational basis for rejecting
the protester's bid as unreasonably high and (ii) the protester's protest of
the solicitation's
tiered evaluation system was untimely. In
HVF West, LLC, a decision it labeled as nonprecedential, the CAFC reversed the
prior CoFC decision and held that the protester, who had mounted nothing more than
a speculative challenge to the intervening, higher-ranked offerors between
itself and the challenged awardee, lacked standing. In
Safeguard Base Operations, LLC, the CAFC resolved a longstanding
jurisdictional issue by holding that, under 28 U.S.C § 1491(b)(1),
the CoFC has
jurisdiction over a claim that the Government breached an
implied-in-fact contract to fairly and honestly consider an offeror’s
proposal in the procurement context, making the issue reviewable under the APA.
The court then affirmed the
prior CoFC decision, holding that the
CoFC did not err in determining that: (i) the solicitation at issue required
the
submission of the disputed pricing data; (ii) the solicitation notified offerors
that the failure to provide that data could be grounds for disqualification;
and (iii) the protester's failure to provide the data was a material omission that could not
be waived or resolved through minor clarifications.
In
Harmonia Holdings Group, LLC the CAFC affirmed the
prior CoFC decision denying a post-award protest,
holding that, while the CoFC erred in
dismissing one count in the Complaint for lack of jurisdiction (because alleging
the Contracting Officer failed to refer a question concerning the
awardee's size to the SBA was a bid protest (over which the CoFC had
jurisdiction) as opposed to a size protest (where the plaintiff would
have had to exhaust its administrative remedies before appealing), that
count should, nevertheless, have been dismissed for failure to state a
claim because the Complaint did not contain sufficient facts to state a plausible claim that the
Contracting Officer violated FAR 19.301-1(b) or otherwise abused his discretion by failing to refer
the awardee to the SBA for a size status determination concerning a
violation of the ostensible subcontractor rule where nothing in the
awardee's proposal evidenced such a violation. The appeals court also agreed with
the CoFC that
the agency had rational bases for its evaluations of the proposals, including
determining that a single feature could both offer advantages and have some
risk
associated with it. In
Asset Protection & Security Services, L.P., the CAFC affirmed the
prior CoFC decision
because the protester's
bid included information that expressly contradicted the solicitation’s material terms,
making it nonresponsive and, therefore, ineligible for award, which
means the protester
lacked standing to protest the award to another firm. In
another
Harmonia Holdings Group, LLC, decision, the CAFC reversed the
prior CoFC decision and held that the Blue & Gold Fleet
waiver rule did not require the lower court to
dismiss a suit brought five months after the agency's denial of a timely-filed
preaward protest to the agency.
In Veteran Shredding, LLC, a decision it labeled as nonprecedential, the CAFC affirmed the prior CoFC decision dismissing a preaward protest because: (i) the agency had a rational basis to cancel the solicitation where all bids vastly exceeded the agency's cost estimate and were unreasonably high; and (ii) the agency was not required to set aside the solicitation where the agency had conducted an acceptable Rule of Two analysis and concluded the conditions for a set-aside were not present.
In Veterans4You LLC, the CAFC reversed the prior CoFC decision and held that the printing mandate of the constitutionally suspect provision at 44 U.S.C. 501 did not require the VA to route a procurement for imprinted information on gun locks and attached labels through the Government Printing Office (the lower court had used that rationale to deny the protester's claim that the agency had failed to conduct a required "Rule of Two" analysis).
Evaluations
In Zafer Taahut, Insaat Ve Ticaret A.S., which is labeled as nonprecedential, the CAFC affirmed the prior CoFC decision because the agency's decision to extend the deadline for submission of offers (which was communicated to all offerors prior to the deadline) had a rational basis in that several offerors had reported difficulty uploading their offers to the agency's website. The court also held that the agency's evaluation of the protester's past performance did not involve unequal treatment.
In DynCorp International, LLC, an unsuccessful post-award protest, the CAFC affirmed the prior CoFC decision and held that: (i) FAR 15.404-1(b)) is permissive and does not require the Contracting Officer to make a written determination that competitive or historical price information is unavailable or insufficient before utilizing any but the first two price reasonableness evaluation techniques listed there; and (ii) despite the differences in the proposed prices, the agency had a rational basis for determining that all the prices were reasonable when each was considered in light of the differing technical approaches proposed by the competitors.
In System Studies & Simulation, Inc., the CAFC affirmed the prior CoFC bid protest decision that the plaintiff had failed to establish prejudice from an agency's error and specifically declined to adopt the plaintiff's suggestion that there is a presumption that an error results in prejudice.
In NIKA Technologies, Inc., the CAFC reversed the prior CoFC decision and held that, unless a protester actually asks questions about its initial debriefing, the five-day period for obtaining an automatic stay with a GAO protest begins on the date that the debriefing is received, not on the subsequent deadline for asking questions.
SBA Office of Hearings and Appeals
Jurisdiction/Standing/Timeliness/Procedure
In Matter of SJ Innovations, LLC, the OHA held it lacked jurisdiction over an appeal from an alleged 8(a) termination filed before an official notice of termination had been issued by the SBA.
In Size Appeal of Sevenson Environmental Services, Inc., the OHA denied a size protest challenging a mentor-protégé JV under the SBA's All Small Mentor-Protégé Program because: (i) the allegation that the challenged firms had entered the mentor-protégé agreement (MPA) under false pretenses and with an illegitimate aim was subjective, speculative, and unsupported by any evidence; (ii) the allegation that the MPA, itself, was improper was not a valid basis for a size protest; and (iii) the allegation that an alleged "misuse" of the MPA constituted affiliation was not a recognized basis in the regulations for a finding of affiliation.
In Size Appeal of Advant-EDGE Solutions of Middle Atlantic, Inc./span>, the OHA held that a firm whose proposal had been found to be unacceptable (due to "alternative pricing" and the failure to complete the required representations and certifications) lacked standing to file a size protest of the awardee.
In Size Appeal of Avenue Mori Medical Equipment, Inc., the OHA dismissed an appeal of whether a firm qualified for award under the nonmanufacturer rule as moot because the agency had taken corrective action in response to a bid protest and would obtain new proposals.
In Size Appeal of Blackhawk Medical Transportation, Inc., d/b/a Vandenberg Ambulance, the OHA: (i) rejected the protester's argument that standing to file a size protest in a procurement with a tiered evaluation scheme is governed by 13 C.F.R. § 121.1001(a)(7); (ii) held that standing in protests involving SDVOSB procurements is governed by 13 C.F.R. § 121.1001(a)(8); and (iii) concluded that the protester was ineligible to compete in the same solicitation tier as the challenged firm (and did not submit an offer) and, therefore, lacked standing to protest that firm's size status.
In Matter of Optimum Low Voltage, LLC dba Optimum Fire & Security, the OHA dismissed an appeal of a letter cancelling a firm's appearance in the VIP database of qualified SDVOSBs because the appeal failed to allege any errors in the cancellation decision. Subsequently, the OHA denied the appellant's petition for reconsideration.
In Size Appeal of Osprey Technology Solutions, Inc., the OHA held that the Area Office had correctly dismissed (as untimely) a size protest filed more than five business days after the notice of award despite the protester's contention that the agency's discussions with the protester concerning establishing a bridge contract and the award of that contract demonstrated the agency was reconsidering its award to the protested firm.
In Size Appeal of Caldaia Controls, LLC, the OHA dismissed as premature an appeal filed before any size determination had been issued and, apparently, before any size protest had been filed.
In CVE Protest of Land Shark Shredding, LLC, the OHA dismissed the protest as moot because the underlying solicitation had been canceled.
In Appeal of Governance and Information Technology Program Management, LLC, the OHA dismissed, for lack of jurisdiction, an appeal of an SBA District Office's determination that an 8(a) firm was ineligible for a specific contract award.
In NAICS Appeal of WEC1 Consulting, the OHA dismissed (as late) a NAICS appeal filed more than 10 days after the solicitation was issued; the appellant had transmitted only a Certificate of Service with no appeal document, and even that Certificate was 8 minutes late.
The OHA dismissed a size appeal by Red Orange North America, Inc. because it (i) was untimely, (ii) was not submitted by an officer of the appellant or its attorney, and (iii) was unsigned.
In Size Appeal of Ascendant Services, LLC, the OHA held that the Area Office had correctly dismissed a size protest that included only speculative allegations, misinterpreted the applicable size standard, and alleged only that a revenue based standard was exceeded in a single year.
In Matter of Joseph M. Walls d/b/a Jailhouse Lawyers Ass'n, the OHA granted the CVE's motion to dismiss because its denial of a firm's application for entry as a verified SDVOSB in the VA's VIP program was based in part on a lack of good character (the applicant was on parole after a lengthy sentence for several serious crimes), which is not an issue that is appealable to OHA.
In CVE Protest of Griffin Resources LLC, the OHA dismissed the portion of a protest challenging a firm's SDVOSB status because (i) it was not clear the procurement was set-aside for SDVOSBs or that the protest was filed within five days of the notice of award; (ii) the original protest did not allege, or provide evidence of, any grounds for a status protest set forth at 13 C.F.R. § 134.1003 or any of the eligibility criteria for SDVOSBs at 13 C.F.R. part 125; and (iii) the one issue the protester first alleged after a show cause notice from the OHA (that the challenged firm intended to utilize subcontractors for the procurement which might impair that firm's ability to make independent business judgments) was untimely and seemingly a non sequitur as well.
In NAICS Appeal of Air Center Helicopters, Inc.
, the OHA dismissed a NAICS appeal as untimely because it was filed long after the 10-day time limit, and the appellant failed to respond to an OHA order to show cause why the appeal should not be dismissed.In Size Appeal of J.E. McAmis, Inc., the OHA held that the Area Office had correctly dismissed size protest filed more than two months after bid opening and disclosure of awardee's identity as untimely because the protester could not wait to protest until the agency allegedly disclosed additional details about the awardee's size.
In Matter of Nu-Life Medical Equipment and Supplies, Inc., the OHA dismissed (for lack of jurisdiction) an appeal of the termination of a firm from the 8(a) program for failure to file required reports and documents to the SBA because the appeal alleged nothing more than the alleged burden of those requirements, which is not a basis for appeal.
In
CVE Protest of Esterhill Boat Services Corp., the OHA dismissed what was styled as an SDVOSB protest but which failed to allege grounds for challenging the status of the SDVOSB and, instead, was mainly a disagreement with the manner in which the procurement was conducted:The protest did not reference any of the grounds for an SDVOSB status protest at 13 C.F.R. § 134.1003, nor allege that
[the challenged firm] fails to meet any SDVOSB eligibility criteria, as set forth at 13 C.F.R. part 125. The protest did not explain why
[the challenged firm] would have needed to comply with SDVOSB eligibility criteria, given that the underlying procurement was not restricted to SDVOSBs. Further, the protest contained no evidence or factual support to demonstrate a connection between
[an individual it mentioned] and [the challenged firm].
In
Size Appeal of Leumas
Residential, LLC, the OHA remanded the case to the Area
Office because it had failed to conduct a required analysis based on
the ostensible subcontractor rule.
In
Size Appeal of Montech, Inc., the OHA held that the Area Office erred in finding an ostensible
subcontractor relationship because it misanalysed at least factors two and four
of the DoverStaffing criteria for a finding of undue reliance, specifically: (i)
the record did not support the conclusion that the
challenged firm would hire a "large majority" of its
workforce from the incumbent/subcontractor; and (ii) there
was no basis for concluding that the challenged firm relied
on the past performance of the subcontractor to win the
award because past performance was not an evaluation factor. /p>
In
Size Appeal of Leumas
Residential, LLC, after the OHA had remanded the case
to the Area Office to determine whether there was
affiliation based on the ostensible subcontractor rule, the
OHA held that the Area Office had erred in
finding such an affiliation because: (i) the primary
and vital requirements of the contract involved only grounds maintenance
and not also the provision of equipment; (ii) the prime contractor's
post-protest statement clarified what was not stated in proposal, i.e., that it would provide 61% of the grounds maintenance;
and (iii) only one
of the four DoverStaffing requirements for a showing of undue
reliance on a subcontractor was present, i.e., that the incumbent
was the subcontractor and was ineligible for award as the prime.
The OHA also held there were insufficient facts to support
the Area Office's finding of affiliation via the totality of the
circumstances. In
Size Appeal of Crash Research &
Analysis, Inc.,, the OHA held that: (i) there was no violation of
the ostensible subcontractor rule where the section of the
challenged firm's proposal that
was supposed to identify subcontractors did not mention the alleged subcontractor
(even though the Area Office did not have access to the
entire proposal); (ii) there was no
violation of the newly organized concern rule where there was no evidence
the alleged
key employee of the affiliated firm had any part in organizing, conceiving, creating,
or funding the challenged firm; and (iii) there were insufficient relationships
between the challenged firm and its alleged affiliate to establish
affiliation through the totality of the circumstances. In
Size Appeal of Estrategy
Consulting, LLC, the OHA held that the Area Office had correctly
determined that a subcontractor providing all medical waste collection and disposal
services in a contract for such services was performing the contract's
primary and vital requirements and, thus, was affiliated with the
prime according to the ostensible subcontractor rule.
In
Size Appeal of Telesis
Corp., the OHA reversed the Area Office's finding of a
violation of the ostensible subcontractor rule because, inter alia, at least two of the
four factors for a finding of undue reliance were not present:
the appellant did not propose to hire the "vast majority" of its workforce from
the subcontractor/incumbent, and the appellant would supervise and control the
Project Manager it would hire from the subcontractor.
In
Size Appeal of Critical
Contingency Services, LLC, the OHA held that the Area Office
erred in dismissing a size protest for lack of specificity
simply on the basis that the protester had not
identified the alleged ostensible subcontractor because the protester
had alleged
sufficient facts that the prime did not have the requisite experience or
capacity to perform the work and, therefore, was likely to be relying
on a subcontractor for all or almost all of the work.
Other Miscellaneous Size Issues
In Size Appeal of Swift & Staley, Inc., the OHA upheld the Area Office's finding that the challenged firm's average annual receipts, combined with its proportionate share of a joint venture's revenues, exceeded the size standard applicable to the subject procurement because members of a populated joint venture are required to assume their proportionate share of joint venture receipts, and the Area Office did not err in using the firm's percentage of ownership in the populated joint venture to determine its proportionate share of receipts.
In Size Appeal of Mechanix Wear, LLC, the OHA upheld the Area Office's determination that the challenged firm, which would have only one employee supervising activities in the facility of another firm where production would actually occur, was not the manufacturer.
In Size Appeal of DSC-EMI Maintenance Solutions, LLC, Native Energy and Technology, Inc., the OHA upheld the Area Office's determination that a mentor-protégé joint venture agreement did not comply with the requirements for such agreements because it failed to identify the responsibilities of the parties for providing an important component of the work on the contract resulting from the solicitation.
In Size Appeal of Randy Kinder Excavating, Inc. d/b/a RKE Contractors, the OHA held that: (i) the Area Office correctly denied a size protest because the challenged firm was not "new" and did not meet the requirements for a finding of affiliation under the newly organized concern rule or the totality of the circumstances; and (ii) the Area Office had an adequate basis in the record for its conclusion and was not required to undertake further, speculative investigations into whether the challenged firm had been "dormant" for some of the years in which it had been in business.
In Size Appeal of 22nd Century Technologies, Inc., the OHA held that the Area Office had correctly determined that, even though the solicitation omitted certain standard information, there was sufficient information to determine that: (i) it was a small business set-aside; (ii) re-certification of small business status was required for a task order; and (iii) appellant was other than small in these circumstances.
In Size Appeal of Swift & Staley, Inc., the OHA found affiliation through multiple instances of negative control, e.g., the requirement for the affiliated firm to be present for any meeting to take place and other requirements for the affiliate's advance written approval before certain ordinary actions could be undertaken by the challenged firm.
In Size Appeal of Rocky Mountain Medical Equipment, Inc., the OHA affirmed the Area Office's use of a sworn document generated after the date to determine size in order to conclude that a JV between a small business and its SBA-approved mentor was small because the document merely described an acceptable banking arrangement that existed prior to that time but that simply had not been memorialized yet.
In Size Appeal of Modern Healthcare Services, J.V. LLC, the OHA held that (under the regulation in effect at the time) a firm that had self-certified as small at the time of its offer for a multiple award contract had to recertify its size status for an award made during corrective action as result of a GAO protest of the original award because the challenged firm had been acquired by another firm between the dates of its original offer and the final award.
In Size Appeal of Crew Training Int'l, Inc., the OHA affirmed the Area Office's denial of a size protest because: (i) two of four requirements for a finding of affiliation under the newly organized concern rule were not met (sworn declarations established that an individual's CFO title was honorary rather than substantive and she was not a key employee, and there was no indication that one of the firms was providing support and assistance to the other beyond what was permitted under their approved mentor-protégé agreement, which had not lapsed because 13 C.F.R. § 125.9(e)(5) provided it would be automatically renewed); and (ii) a situation that the protester claimed "smells of affiliation" was not sufficient to establish affiliation under the totality of the circumstances.
In
Size Appeals of KIHOMAC, Inc., the OHA
held that the appellant failed to demonstrate that any
of the regulations it cited overcomes the general rule that a firm is not
considered affiliated with its licensed SBIC investor, especially where
(as here) the investment is not sufficiently large to establish control.
8(a)/SDVOSB/VA/CVE/WOSB Status
In Matter of American Power, LLC, the SBA's OHA affirmed the SBA's determination that a firm was not eligible for the 8(a) program because it failed to establish by a preponderance of the evidence that its Azerbaijani Turkish-American, Muslim owner had experienced economic and social disadvantage based on his immigrant status, origin from a Muslim majority nation, race, ethnicity, and religious beliefs.
In CVE Protest of In and Out Valet Co., the OHA denied the protest because the challenged firm was owned and controlled by a disabled veteran, was not affiliated with another firm that was merely one of its clients, and would perform the primary and vital contract requirements without undue reliance on a subcontractor.
In Matter of GTEC Industries, Inc., the OHA upheld the denial of an entity's application for entrance in the 8(a) program because it did not qualify as a tribally-owned concern recognized by the cognizant state governmental agency.
In In the Matter of The Edge Connection, the OHA remanded the case to the SBA because it had not provided an administrative review of the suspension of the award of a cooperative agreement as requested by the affected WBC and as required by the applicable regulations.
In Matter of American Power, LLC, the OHA affirmed the SBA's determination that a firm was not eligible for the 8(a) program because it failed to establish by a preponderance of the evidence that its Azerbaijani Turkish-American, Muslim owner had experienced economic and social disadvantage based on his immigrant status, origin from a Muslim majority nation, race, ethnicity, and religious beliefs.
In In the Matter of Joint Information Network, the OHA affirmed a finding that a firm did not qualify as WOSB at the time it submitted its offer because its woman owner did not exercise the requisite control, which was shared with a man for key decisions.
In CVE Protest of Blue CordDev Group, LLC, the OHA rejected an allegation of a violation of the ostensible subcontractor rule because it does not apply to a contract for leased space but (initially) held that the challenged firm was not controlled by its SDV because: (i) he did not have the managerial experience of the extent and complexity needed to run the concern; (ii) another firm was so crucial to the challenged firm's business operations that the SDV could not exercise independent business judgment without great economic risk; and (iii) the SDV lived too far from the challenged firm's headquarters to adequately supervise the company. Then, shortly thereafter, on reconsideration, the OHA reversed itself on all issues and held: (i) the SDV's work with the challenged firm established he had the requisite experience even though his statement of experience prior to that work was vague; (ii) the evidence in the record established the SDV had the requisite authority to control the challenged firm; and (iii) the challenged firm had provided evidence to sufficiently rebut the presumption of a lack of control by showing that the firm's headquarters were located within a reasonable distance from its SDV.
In CVE Appeal of First State Mfg., Inc., the OHA upheld the decision to remove a firm from the VIP database of eligible SDVOSBs because the firm failed to respond adequately to an inquiry under 38 C.F.R. § 74.21 regarding its present responsibility due to the convictions of two of its senior officials for bribery followed by a consent judgment agreed to by the firm to settle the allegations in a False Claims Act suit.
In CVE Protest of Welch Constr., Inc., the OHA, first, dismissed (as untimely) supplemental protest allegations filed more than five days after bid opening and, then, denied a protest of the SDVOSB status of a mentor-protégé JV because: (i) its members were not co-located and the SDVOSB protégé member of the JV was solely owned and controlled by its SDV; (ii) the fact that the mentor prepared the JV's bids was not disqualifying (indeed, would be encouraged by the regs); (iii) allegations that the mentor also "conducted business" with another SDVOSB and was affiliated with a third firm were irrelevant; and (iv) the protester presented no facts in support of its speculative allegation that the protégé "might be" unable to perform the contract requirements.
In CVE Protest of HamHed, LLC, the OHA held the challenged SDVOSB failed to rebut the presumption that its SDV (who worked full time for another firm) did not control the SDVOSB.
In CVE Protest of Security Logistics Intelligence Constr. Eng'g Co., the OHA denied the protest as factually baseless and speculative in the face of clear evidence that the protested firm was unconditionally owned and controlled by an SDV.
In CVE Protest of First Nation Group, LLC, d/b/a Jordan Reses Supply Co., the OHA first had to engage in an extensive analysis to conclude that the SDVOSB's revised Bylaws, which cured problems in earlier Bylaws, could be accepted as evidence by the the OHA even though they were submitted only after a supplemental protest was filed. The OHA then found that: (i) the revised Bylaws showed acceptable control by the SDV; (ii) the SDV worked full time for the SDVOSB despite his involvement with other businesses; and (iii) the evidence showed letters of commitment from suppliers in support of the SDVOSB's bid were provided to the SDV, and were not obtained by or provided to the mentor, as alleged by the protester. Subsequently, in CVE Protest of Avenue Mori Medical Equipment, LLC, the protester and the challenged firm switched places, and the OHA rejected a scattershot group of allegations that an SDV did not control an SDVOSB, finding, inter alia, that: (i) there was no requirement that the controlling SDV must have been the founder of the SDVOSB; (ii) the SDV's alleged lack of experience at a time years prior to the time at which the SDVOSB's status was determined was irrelevant; (iii) the fact that the SDV required financing for a merger did not disqualify her from being in control; and (iv) the fact that the SDV's compensation was only slightly higher than the second most highly compensated individual did not disqualify her from being in control.
In CVE Protest of Veterans Command, LLC, the OHA held that, especially absent any evidence from the protester that a non-SDV controlled the SDVOSB, an SDV with extensive experience who was Chairman of the Board, President/CEO, and the deciding shareholder vote in all decisions clearly controlled the SDVOSB. Moreover, the protester only speculated that the firm was unduly reliant on subcontractors, again without any evidence to that effect.
In CVE Protest of PDS Consultants, Inc., although the OHA rejected multiple allegations by the protester and found that the agreement had since been remedied, it held that the agreement in effect at the relevant dates for determining SDVOSB status for the procurement at issue put impermissible limits on the SDV's control by requiring him to obtain approval from another business concern for decisions in situations in addition to the "extraordinary circumstances" permitted by the regulations.
In CVE Protest of Land Shark Shredding, LLC, the OHA held that the protester had made compelling arguments that the protested SDVOSB, which had "only a single employee and no apparent experience with secure document destruction, must rely upon a subcontractor to perform the instant contract, in contravention of 13 C.F.R. §§ 125.18(f) and 134.1003(c)." Subsequently, the challenged firm's petition for reconsideration was denied.
In Matter of United Systems of Arkansas, Inc., the OHA affirmed the SBA's denial of a firm's entry into 8(a) program, holding that the SBA had properly included his income from separate firms in the owner's income to determine that he was not economically disadvantaged.
In CVE Appeal of The Hope Cos., the OHA affirmed the denial of a firm's verified status as an SDVOSB because its franchise and operating agreements contained numerous provisions that restricted the SDV's ability to control the firm.
In CVE Protest of Valiant Construction, LLC, the OHA held that the challenged firm had established all the required elements of ownership and control of the SDVOSB by its SDV while the protester had offered only allegations and speculation unsupported by evidence.
In Matter of Bravo Federal Consulting, LLC, the OHA affirmed the cancellation of a firm's inclusion in the VIP database because it did not comply with the eligibility requirement that it must be listed in the System for Award Management.
In CVE Protest of Welch Constr., Inc., the OHA poured out a challenge to an SDVOSB's status because the OHA found clear evidence that the challenged firm was 100% owned and controlled by an SDV with the requisite managerial experience who worked full time at the firm and had demonstrated compliance with the limitations on subcontracting requirements.
In Matter of Greenwater Marine Sciences Offshore, Inc., the OHA upheld the cancellation of a firm's verified SDVOSB status because it failed to timely file all required documentation of its change from an LLC to a B corporation. Similarly, in Matter of Warrior Service Co., LLC, the OHA upheld the cancellation of a firm's verified SDVOSB status because the firm failed to timely file VA Form 0877 concerning a change of ownership.
In NAICS Appeal of
Taurean General Services, Inc., which involved a
solicitation for security support services, the OHA upheld the Contracting
Officer's selection of NAICS 561210 (Facilities Support Services), with a corresponding size standard of $41.5 million average annual receipts,
as opposed to appellant's preference of NAICS
541690 (Other Scientific and Technical Consulting Services) with an associated size standard of $16.5 million average annual receipts.
In NAICS Appeal of
Millennium Health & Fitness, Inc., which involved a
solicitation for Wellness and Fitness Staffing, the OHA upheld the Contracting Officer's selection of NAICS
713940 (Fitness and Recreational Sports Centers) with a corresponding size standard of $8 million average annual receipts, as opposed to
the appellant's suggested codes.
In
NAICS Appeal of
Regency Consulting, Inc., the OHA dismissed an
appeal as untimely because it was not filed within 10 days of the
issuance of the solicitation or any amendment affecting the NAICS
designation, even though the appellant had requested the Contracting
Officer to change the code, and the Contracting Officer had published
answers to questions, which included a statement that the Government
would accept bids involving either the code in the solicitation or the
code suggested by the appellant.
In NAICS Appeal of
Applewood Eng'g, the OHA held that, in a solicitation for a contractor to perform
support for atmospheric modeling and data assimilation, the Contracting Officer's selection
of the exception for "Guided Missiles and Space Vehicles, Their Propulsion Units and Propulsion Parts," with
a 1,250 employee size standard, to the basic NAICS
code 541715
("Research and Development in the Physical, Engineering, and Life Sciences (except Nanotechnology and Biotechnology)"
was not appropriate because the "principal services do not involve evaluations and simulations involving missiles and similar devices"
and "a thorough knowledge of these technologies, in the context of Guided Missiles and Space Vehicles."
Thus, the basic code with its 1,000 employee size standard
should apply.
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