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2022 Procurement Review: Protests
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So far this year, the GAO has published 27 decisions sustaining protests on the merits (some of which were originally dated in 2021 but not issued to the public as redacted versions until this year).
In JW Mills Management, LLC, the GAO sustained the protest because the agency improperly included the Randolph-Sheppard Act preference in a solicitation that was not for the "operation" of a cafeteria.
Office Depot, LLC, won its protest because the RFQ's market basket of allegedly representative items did not accurately reflect Government's likely purchases of office supplies.
Insight Technology Solutions, Inc. won its protest against the terms of a solicitation for level 1 call center support services for the DHS's student and exchange visitor program because the requirement that offerors submit evidence of a CMMI level 3 certification at the time of proposal submission, rather than at the time of award, exceeded the agency’s reasonable needs since holding that certification was only necessary for performing the contract after award.
Selex ES, Inc. won its protest because, under the protester's reasonable interpretation, the solicitation unduly restricted competition by requiring offerors to meet the navigation system’s flight check qualification and readiness level requirements at the time of proposal submission, rather than after award during performance of the contract.
The GAO sustained a protest by Orlans PC against the terms of a solicitation for commercial services because the record did not establish that the agency had performed adequate market research to demonstrate that the terms were consistent with customary commercial practice, as required by FAR Part 12.
Flawed Evaluation / Lack of Meaningful Discussions
In Vertex Aerospace, LLC, the GAO held that the record was insufficient to conclude that the procuring agency had reasonably and meaningfully considered the effect of the recent acquisition of the awardee by another firm on the awardee's ability to perform a task order.The GAO sustained a protest by Insight Technology Solutions, Inc., because: (i) in evaluating the Management factor, the agency had relied on the awardee's material misrepresentation of the experience of one of its proposed key personnel; and (ii) the agency had treated offerors disparately by evaluating aspects of the awardee’s proposal as advantageous without crediting the protester’s proposal for substantially indistinguishable features.
The GAO sustained a protest by Starlight Corp. because: (i) there was insufficient documentation in the record for the GAO to determine whether the agency's conclusion (that the awardee's past performance examples were relevant) had a rational basis; and (ii) the evaluators improperly downgraded the ratings in one of the protester's PPQs for lack of a narrative, when the PPQ on its face did not require one.
Rice Solutions, LLC, won its GAO protest because the agency conducted discussions only with the awardee in a situation where the record did not support the agency's contention that it had established a competitive range (of one) before conducting those discussions. Also weighing in the protester's favor were the facts that (a) the solicitation's evaluation scheme was unclear and (b) there were conflicts in the record as to whether the agency had found the protester's technical proposal to be unacceptable.
The GAO sustained one of the protest grounds in CharDonnay Dialysis, LLC because the agency's tradeoff analysis concluded the proposals were technically equal without qualitatively comparing their underlying merits.
The GAO sustained portions of a protest by Eccalon LLC because: (i) the agency used an evaluation factor neither expressly mentioned in the RFQ nor reasonably related to any of the stated evaluation factors; and (ii) there was no basis in the record for the source selection authority's disagreement with the source evaluation board's evaluation of a risk associated with the awardee's proposal.
The GAO sustained a protest by CACI, Inc.-Federal because the solicitation clearly provided that the most important factor, Corporate Experience, would be evaluated on a qualitative basis, which the agency failed to do by evaluating only on a Pass/Fail basis.
The GAO sustained a protest by Sehlke Consulting, LLC, because the agency knew prior to completing its evaluation that a proposed key personnel had submitted his letter of resignation and would be unavailable to perform the contract.
AT&T Mobility LLC won its protest because the agency: (i) evaluated technical proposals only on a pass/fail basis rather than conducting a qualitative evaluation as required by the solicitation; and then (ii) awarded the contract to the lowest-priced, technically acceptable proposal rather than conducting a best-value tradeoff analysis to look behind the adjectival ratings and determine whether any qualitative differences between the technical proposals offset the difference in price.
Sabre Systems, Inc., won its protest because the agency’s evaluation of the awardee’s proposed professional compensation plan relied on an unreasonable interpretation of the term "professional employee" to exclude certain categories of workers.
The GAO sustained a protest by Seaward Services, Inc., because there was a lack of evidence in the record (including the awardee's proposal) supporting the agency's decision to assign the awardee two strengths in the technical evaluation while assigning the protester's proposal only one strength for providing far more information than the awardee had concerning relevant experience in those areas. The GAO also chided the agency for redacting documents in the agency report so heavily as to make the GAO's review more difficult.
The GAO sustained a protest by WHR Group, Inc. because: (i) the agency failed to justify its "acceptable" evaluation of protester's technical approach (which had eight strengths and no weaknesses) where the RFQ established that a rating of "outstanding" was to be assigned when strengths "far outweigh any weaknesses," while an "acceptable" rating was appropriate when strengths and weaknesses are "offsetting or will have little or no impact on contract performance"; and (ii) in conducting the best-value tradeoff, the SSA improperly decreased the relative importance of the technical approach and past performance factors, and improperly increased the relative importance of price, from that set forth in the RFQ.
Chicago American Mfg. LLC won its protest because the awardee had quoted an item that was not on its GSA schedule as required by the FSS solicitation.
The GAO sustained a protest by Apprio, Inc. because: (i) the agency's cost realism evaluation of the awardee's proposal could not be shown to be reasonable since nothing in the administrative record indicated that the agency actually considered either (a) the awardee's direct labor rates (e.g., whether the awardee's proposed rates were sufficient to retain incumbent staff)
or (b) the awardee's failure to escalate those rates in the option years; (ii) the agency's conclusion that the awardee's proposed labor rates were realistic based solely on the fact that they were "within the standard deviation" of the rates offered by all proposers was not an adequate justification; and (iii) the agency was simply wrong to conclude that the protester deserved a weakness under the Corporate Experience factor for failing to provide examples of its experience with "the delivery of instruction," when it had submitted multiple examples of that experience.In ISHPI Information Technologies, Inc., the GAO sustained a protest because the agency had established a BPA with, and issued two task orders to, a firm whose quotation included some personnel who failed to meet the solicitation's mandatory minimum education and experience requirements.
The GAO sustained a protest by R&K Enterprise Solutions, Inc. because the agency's supposed best-value tradeoff analysis failed to qualitatively compare the proposals before selecting the higher-rated, higher-priced one.
Tech Marine Business, Inc. won its protest because the agency failed to document or explain its rationale for the evaluation of the protester's transition plan in its technical proposal.
The GAO sustained the protests in Guidehouse LLP; Jacobs Technology, Inc. because the record did not show that the agency had conducted an evaluation of professional employee compensation plans in accordance with FAR 52.222-46.
In KPMG LLP, the GAO held that, where a solicitation contained an unchallenged patent ambiguity concerning which of two stated evaluation methods the agency would use, the agency was free to choose either one and chose a best-value tradeoff method, but then botched that method by failing (i) to consider price and (ii) to compare the technical aspects of the competing proposals.
Sole Source/Small Business/Restricted Competitions
Conflicts of Interest/Procurement Integrity
Guidehouse LLP won its protest because: (i) the agency’s impaired objectivity OCI analysis mistakenly focused upon whether two work efforts were similar in size and scope rather than whether the awardee would be in a position to review its own work; and (ii) the agency's best value tradeoff analysis failed to adequately document or explain why the awardee’s technical advantages justified paying the price premium associated with its quotation.
The GAO sustained a protest by ASRC Federal Data Solutions, LLC, because the awardee's proposal contained a material misrepresentation concerning the availability of key personnel, which affected the evaluation.
In the following decisions, the GAO awarded all or a portion of the protesters' claimed costs as a result of prior successful protests: (i) Amaze Technologies, LLC; (ii) WorldWide Language Resources, Inc.; (iii) Ruchman and Assocs., Inc.; (iv) Piraeus Int'l, Inc.; and (v) Bowhead Mission Solutions, LLC.
The GAO sustained the protests in Softrams, LLC; Chags Health Information Technology, LLC because the agency's corrective action failed to address fully the original error it was trying to correct.
Timeliness/Standing/Jurisdiction/Automatic Stay
In CACI, Inc.-Federal, an unsuccessful post-award protest, the court held that: (i) the protester lacked standing because it failed to present evidence to rebut the Government's contention that it was subject to a biased ground rules OCI and, therefore, was ineligible for award; and (ii) even absent this issue, there were rational bases for the deficiencies the agency found in the protester's proposal, and the agency did not employ unstated evaluation criteria.
In Facility Healthcare Services, Inc., an unsuccessful post-award protest, the court first scolded the plaintiff for having filed a motion for judgment on the administrative record without a single citation to the record and then held that: (i) the Government had engaged in adequate discussions with the plaintiff concerning its price by twice informing it that its price should be reviewed because it was significantly higher than the Government's estimate; and (ii) the plaintiff lacked standing to challenge the technical and past performance evaluations because, considering its price, it was not next in line for award.
In COLSA Corp., an unsuccessful post-award protest, the court held that the plaintiff lacked standing because it had not bid on the solicitation and did not submit its protest until after award.
In B.H. Aircraft Co., an unsuccessful preaward protest, the court held that the protester: (i) lacked standing to challenge a sole-source contract for the repair of F414 aircraft engines because the plaintiff was not authorized to perform the repairs required in the contract as a whole or even for the single part of whose allegedly improper bundling the plaintiff complained, and (ii) failed to state a claim upon which relief could be granted because the solicitation did not meet the definition of a bundled procurement.
In Progress for Bakersfield Veterans LLC, an unsuccessful post-award protest, the court held that: (i) it lacked bid protest jurisdiction over challenges involving appropriations issues under provisions of the the Anti-Deficiency Act and 38 U.S.C. § 8104 because none of these provisions constitutes a procurement statute; (ii) under Blue & Gold Fleet, the plaintiff waived its argument that the awardee could not perform the contract within the required time frame because the plaintiff knew of this issue prior to bidding but failed to protest at that time; (iii) the awardee's proposal contained sufficient information to satisfy the solicitation's requirement that it demonstrate "the right to ownership or control of the site during the term of the lease"; (iv) the agency did not award to a proposal that contained an unfairly large lump sum payment in year one; and (v) increases in the awardee's price during negotiations were based on readily understandable reasons (e.g. COVID) and did not signal that the agency had improperly reduced the importance of price in the evaluation.
In Savantage Financial Services, Inc., an unsuccessful post-award protest, in addition to rejecting challenges to multiple aspects of the evaluation, the court held that the "late is late" rule (FAR § 52.212-1(f)(2)(i)) did not require the Contracting Officer to reject proposal modifications submitted after the due date for such revisions in a situation where the modifications had no effect on price, quantity, quality, or delivery. The court also stated that the protester was not prejudiced, nor the other offerors advantaged, by the Contracting Officer's decision not to disqualify them in this situation
In ZeroAvia, Inc., the court dismissed a protest against the protester's exclusion from the competitive range because the allegations of procurement errors in its Complaint did not contain sufficient factual support to demonstrate that the protester had a substantial chance of receiving an award, and, therefore, the protester lacked standing.
In L3 Technologies, Inc. Communications Systems-West, the court dismissed for lack of standing and as moot a protest against the agency's implementation of corrective action following a GAO protest against the award to the plaintiff because, since the GAO's decision was wrong, the agency had decided not to follow its recommendations and, instead, had decided to continue the contract award to the protester, and the fact that another bidder had filed a protest in a different suit was not sufficient to grant standing to the protester in the current suit.
In Velocity Training, LLC, an unsuccessful post-award protest, the court held that a protester had no substantial chance of receiving an award, and, therefore, lacked standing to protest because a key subcontractor required to meet solicitation requirements had withdrawn after the deadline for final proposal revisions.
In Hydraulics Int'l, Inc., an unsuccessful post-award protest, the court: (i) denied the Government's motion to dismiss for lack of jurisdiction because a request for white papers (pursuant to an Other Transaction Agreement to develop a prototype to upgrade military helicopter ground power units) was made "in connection with" a procurement since it contemplated (although it did not guarantee) a follow-on procurement; (ii) denied the protester's motion to supplement the administrative record with a document merely offering one person's opinion disagreeing with one aspect of other offerors' submittals; (iii) held there were rational bases for the agency's evaluation of the protester's schedule and pricing; and (iv) held that the record did not establish the agency had relaxed a solicitation requirement for the other offerors.
In Ekagra Partners, LLC, an unsuccessful post-award protest, the court dismissed two counts of the complaint for lack of standing because the plaintiff did not even allege facts that would establish prejudice. The court then held that: (i) the agency properly evaluated the (lack of) experience of two of the protester's key personnel; (ii) the agency properly evaluated the awardee/incumbent's quotation because there was no solicitation requirement that its prior work be disregarded; and (iii) the agency properly assessed unbalanced pricing issues with the awardee's proposal, finding its low price for a fixed-price CLIN did not pose an unacceptable risk.
In SEKRI, Inc., the court dismissed all four claims in the plaintiff's original complaint to the court because the agency's actions after a decision by the CAFC vindicating the plaintiff's claims that it was the mandatory source for the items to be procured had provided the relief the plaintiff sought. The court also held that it could not force the agency to procure the items within a specified time limit.
Solicitation Language/Preaward
Protests
In Michael Stapleton Assocs., Ltd., et al., an unsuccessful preaward protest, the court addressed several steps the agency had undertaken to mitigate an organizational conflict of interest ("OCI") that one offeror was found to have had only after multiple investigations, holding that: (i) the record of the agency's predecisional deliberations provided a rational basis for the agency's decision to unbundle the contract requirements from one to two projects as one way to mitigate the OCI; (ii) the solicitation did not contain patent ambiguities as to how two contractors should interact on ancillary matters or how disputes between two contractors could be resolved; (iii) the agency's decision to reduce the look-back period for past performance projects had a rational bases, which were to increase competition and to mitigate the advantage of the bidder that had been determined to have the OCI, even though the agency's approach was not the most rational way of addressing the problem; and (iv) the agency's decision to evaluate the experience of other offerors in one area equally with the OCI offeror's experience in another was one rational way to mitigate the OCI offeror's OCI.
In Homeland Security Solutions, Inc., an unsuccessful preaward protest by the incumbent against the agency's decision to set-aside the follow-on procurement for SDVOSBs (which would render the incumbent ineligible to compete), the court held that the fact that the prior procurement was not set aside as a result of market research showing the requirements of the Rule of Two were not met at that time was not dispositive because the current procurement's market research was adequate to establish that the requirements for the Rule of Two were now met.
In BAE Systems Norfolk Ship Repair, Inc., an unsuccessful preaward protest, the court held that the agency had a reasonable basis to cancel a solicitation (and resolicit) based on FAR 15.206(e) after it received only one offer and determined that competition would be enhanced if the solicitation were amended to ease certain restrictions
In Savantage Financial Services, Inc., an unsuccessful post-award protest, in addition to rejecting challenges to multiple aspects of the evaluation, the court held that the "late is late" rule (FAR § 52.212-1(f)(2)(i)) did not require the Contracting Officer to reject proposal modifications submitted after the due date for such revisions in a situation where the modifications had no effect on price, quantity, quality, or delivery. The court also stated that the protester was not prejudiced, nor the other offerors advantaged, by the Contracting Officer's decision not to disqualify them in this situation.
In FreeAlliance.com, LLC, the court held that where a solicitation amendment in a procurement conducted under FAR section 8.405 procedures warned that late proposals would be rejected as nonresponsive, the agency properly rejected a proposal sent via email by the plaintiff 9 minutes before the deadline for receipt of proposals, but not received by the agency's server until 6 minutes past the deadline. I have no problem with the basic holding. However, the court rejected the plaintiff's argument that the late proposal could be waived as a minor informality, reasoning that only FAR 12 and 15 procurements involve a regulation giving the agency explicit authority to waive minor informalities. This seems like the tail wagging the dog to me, since Part 8 procurements are subject to fewer rigorous requirements than Part 15 procurements, and, thus, while a specific regulation might be required for a waiver in Part 15 procurements, I would argue that waivers in less rigorous Part 8 procurements would not require it. I think a better argument for the court might be that where a solicitation clearly states that a late proposal will be rejected without exception, a late proposal is not a minor informality.
In G4S Secure Integration, LLC et al., a successful protest against the agency's determination that the protesters were ineligible for award, the court held that where the solicitation unambiguously permitted the SAM registrations of the individual members of an unincorporated joint venture to satisfy the requirement of the joint venture's registration, but the agency decided after proposal submission to adopt a decision by another CoFC judge that the SAM registration of the joint venture, itself, is required, the agency should have amended the solicitation or conducted discussions with the competitors that did not satisfy the new interpretation rather than just disqualifying them.
In eSimplicity, Inc., a successful protest against the rejection of an electronic proposal as untimely, the court held that, where the solicitation did not state a file size limit for electronically submitted proposals, the fact that a government server rejected the protester's emailed proposal because of its size amounted to the application of an unstated evaluation criterion. Judge Schwartz also noted that, though prior opinions of the court were split on the issue, when proposals are submitted by email, the "government control" exception to the "late is late" rule should be considered.
In CGS-ASP Security JV, LLC, an unsuccessful preaward protest, the court held that the Government did not err in rejecting the plaintiff's proposal for failure to have completed its registration in the SAM database at the time of proposal submission because (i) the solicitation clearly required it and warned that the registration process took time, and (ii) the protester's own delays were partially responsible for fact that its registration process was not completed in time.
In
Leeward Constr., Inc., the court denied a
protest against the rejection of the plaintiff's proposal as
nonresponsive, holding that: (i) the limitation of liability in the bond
(standard AIA Form A310)
contravened FAR 52.228-1(e); (ii) the language of the savings clause
in the bond (quoted below) was
too nonspecific to be held to have incorporated the FAR provision by
reference; (iii) the bond could not unambiguously be considered as a
"statutory" bond; (iv) the defect in the bond was a material
defect in the bid; and (iv) allowing the correction of a
clerical mistake in the awardee's pricing proposal did not
amount to disparate treatment of the competitors:
When this bond has been furnished to comply with a statutory or other legal requirement in the location of the Project, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.
In Golden IT, LLC, an unsuccessful post-award protest, the court rejected a contrary GAO rule and held that, absent any specific requirement in the solicitation to do so, the awardee had no obligation to update the Government on the availability of a proposed key personnel for changes occurring between the submission of its offer and award, so long as the awardee had a reasonable belief, at the time it submitted its offer, that the proposed key would be available for contract performance.
In CGS-SPP Security Joint Venture, a successful post-award protest, the court held that the solicitation contained a latent ambiguity concerning the person to whom proposals should be submitted, and plaintiff's interpretation was reasonable, so its proposal should have been considered.
In Systems Implementers, Inc., an unsuccessful post-award protest, the court rejected numerous challenges to various aspects of the evaluation.
In Gritter Francona, Inc., an unsuccessful post-award protest, the court held that there were adequate explanations in the record for the Source Selection Authority's proper exercise of his independent judgment in (i) removing a strength assigned to the protester's technical proposal by the SSEB and (ii) assigning a higher past performance rating to the awardee's proposal than that assigned by the SSEB.
In Progress for Bakersfield Veterans LLC, an unsuccessful post-award protest, the court held that: (i) it lacked bid protest jurisdiction over challenges involving appropriations issues under provisions of the the Anti-Deficiency Act and 38 U.S.C. § 8104 because none of these provisions constitutes a procurement statute; (ii) under Blue & Gold Fleet, the plaintiff waived its argument that the awardee could not perform the contract within the required time frame because the plaintiff knew of this issue prior to bidding but failed to protest at that time; (iii) the awardee's proposal contained sufficient information to satisfy the solicitation's requirement that it demonstrate "the right to ownership or control of the site during the term of the lease"; (iv) the agency did not award to a proposal that contained an unfairly large lump sum payment in year one; and (v) increases in the awardee's price during negotiations were based on readily understandable reasons (e.g. COVID) and did not signal that the agency had improperly reduced the importance of price in the evaluation.
In AGMA Security Service, Inc., an unsuccessful post-award protest, the court held that: (i) the agency had a rational basis for not evaluating the protester's higher-priced technical proposal when the solicitation had informed offerors that situation might occur; (ii) the agency's error in failing to include the six-month option period in the total evaluated price evaluation did not prejudice the protester because its proposal would still have been higher priced had that period been included; (iii) the agency's detailed price realism analysis had a rational basis; (iv) the agency's past performance rating of the awardee was the result of a thorough analysis and was supported by the record; (v) the awardee was only required to meet the contract's licensing requirements at the time work began, not, as the protester suggested, at the time of award; and (vi) the awardee's teaming agreement (which was specifically contemplated by the solicitation) did not violate any laws or regulations concerning independent price determination or restricting subcontractor sales to the Government or antitrust issues.
In AcesFed, LLC, an unsuccessful post-award protest of the protester's exclusion from the second competitive range in a two-step solicitation that contemplated multiple awards to SDVOSBs, the court held that: (i) as the competitor with allegedly the highest-rated technical proposal with the lowest price not included in the competitive range, the protester had standing to challenge evaluation of its proposal; (ii) the agency had a rational basis for the evaluation of the proposal, used all the evaluation factors in its evaluation, and did not treat the protester disparately from those proposals included in competitive range; and (iii) the protester lacked standing to challenge various agency actions subsequent to its elimination from the competitive range because it could not show prejudice. Concerning this last holding, the court specifically held that: (i) the allegation that another awardee should have been disqualified from the competitive range is unavailing because there was no guaranteed quantity of awards, so the agency would not have been required to "replace" the awardee with another offeror; (ii) the agency's conduct of the competitive range did not prejudice the protester because its proposal had already been properly excluded from the competitive range; and (iii) the protester "does not explain, nor can the court discern, how a different evaluation of [an] alleged OCI would have improved plaintiff’s chances of securing the contract in this multi-award procurement where plaintiff’s proposal had already been properly evaluated by the agency and found not to merit further consideration."
The court then decided three more
protests of exclusions from the competitive range in the
same solicitation as the AcesFed case.
Specifically, in
Blue Water Thinking, LLC, an unsuccessful
post-award protest of the plaintiff's exclusion from the
competitive range, the court held that
there were rational bases in the record for the agency's
evaluation of the plaintiff's proposal, and there was no basis for the
plaintiff's claims of
disparate treatment in the proposal evaluations. In REV, LLC,
another unsuccessful post-award protest against the
protester's elimination from the competitive range, the
court held that: (i) the agency did not engage in unequal
treatment of proposals during the evaluation because the plaintiff did
not establish that its proposal was substantively indistinguishable from other
proposals in the disputed areas; (ii) there were rational bases for
the agency's evaluation of
the plaintiff's proposal; and (iii) the plaintiff lacked standing to challenge
the agency's
actions subsequent to the plaintiff's elimination from the competitive range
because the plaintiff was not prejudiced by those actions. In
Trilogy Federal, LLC, yet another unsuccessful post-award protest against
the protester's exclusion from the competitive
range, the court held that: (i) the agency following solicitation's evaluation criteria in
conducting its price realism analysis; (ii) there were rational bases for
the agency's
evaluation of protester's proposal; (iii) the agency applied all evaluation
criteria stated in the solicitation; and (iv) the plaintiff lacked standing to challenge
the agency's actions subsequent to the plaintiff's exclusion from
the competitive
range because it could not establish prejudice from those actions. In
Crowley Government Services, Inc., an unsuccessful post-award protest,
the court held, generally, that the agency's
evaluation did not unduly credit the awardee in several areas for its incumbent status and
that all strengths assigned to the awardee were based upon stated
solicitation evaluation factors. For example, the
solicitation permitted the agency to consider the relevant experience of
offerors' proposed key personnel and to determine that the awardee's prior performance and
ability to seamlessly assume contract performance provided a benefit to the Government.
The court also held that: (i)
in the Past Performance evaluation, FAR 15.305(a)(2)(i) does not require
the Government (a) to review the CPARS narratives, (b) to
consider whether the CPARS narratives justify the corresponding adjectival ratings,
or (c) to determine that the context of the past performance data be derived from the CPARS
narratives; (ii) the agency's determination of the degree of relevancy of a contract
submitted by the protester for the Past Performance evaluation had a rational
basis; (iii) the agency had a rational basis for determining that it could
not assess the
quality of past performance on a commercial contract submitted by the
protester because it never received a completed past performance
questionnaire; and (iv) the agency conducted adequate discussions with
the protester by
informing it that agency had not received the completed questionnaire. In
Thalle Constr. Co., a successful post-award protest, the court held that, although there were rational bases for
the agency's evaluation of the protester's proposal in 10 areas that
it had challenged, in two others, the agency had treated proposals
unequally, in another the agency had failed to explain its
rationale for assigning the protester a weakness, and in yet another,
the agency incorrectly concluded that two parts of the protester's proposal
were inconsistent with one another. The court ordered the agency to
reevaluate proposals after correcting these evaluation
errors. In
D&J Enterprises, Inc., an unsuccessful post-award protest against
the best value trade-off analysis
in a solicitation where the three non-price evaluation factors combined were "approximately" equal to price,
the court held that the SSA could find differences in
proposals with the same adjectival ratings and had
adequately explained the selection of the higher-priced offeror
because its proposal was
found superior in the two most important of the non-price factors. In
Stratera Fulcrum Technologies, LLC, an unsuccessful post-award protest of awards in
a "Highest Technically Rated
with a Fair and Reasonable Price" solicitation where awards were to be
split between large and small businesses, the court held,
inter alia, that: (i) the agency had followed the solicitation's statements that
it intended to award at least five contracts using a ratio of 3 small
businesses to 2 large businesses and that it would select the three
highest-rated small businesses first; (ii) the agency's use of the transitive property
(if a>b and b>c then a>c) rather than direct comparison to evaluate proposals was acceptable;
and (iii) the protester had waived its objection to the price
evaluation methodology under Blue & Gold Fleet by
failing to object prior to the submission of proposals. The
court also rejected a plethora of other challenges to
specific aspects of the evaluation. In
IAP Worldwide Services, Inc., a largely unsuccessful post-award protest
that, nevertheless, left one huge question hanging, the court held that: (i) the solicitation's requirements for staffing
in Iraq were "material" requirements; (ii) there was a rational basis for
the Government's
assignment of a deficiency to the protester's proposal for failure to
conform to those requirements; (iii) the evaluators reasonably
determined the protester's offer failed to conform to the solicitation
requirements for support in Iraq; (iv) the evaluators reasonably found
the awardee's proposal complied with the solicitation’s Information
Technology Infrastructure Library (“ITIL”) Foundation certification requirement,
which, even though the solicitation described it as "critical" did not
meet the definition of a "material" requirement and was only required to
be met as of the contract's start date; (v) the awardee did not misrepresent
the status of a key personnel because it did not identify the individual
as a key personnel and there was no evidence it knew the individual would
be unavailable after contract award; (vi) a flaw in the cost realism analysis was
not proven to lead to the conclusion concerning the awardee's proposal
advanced by the protester and did not prejudice the protester because
the agency
reasonably found the protester's proposal "unawardable";
(vii) there was a rational basis for
the agency's evaluation of proposed labor rates; (viii) there
was no disparate treatment of
proposals; but (ix) the administrative record did not support the agency's decision
not to conduct discussions, especially in light of
the presumption in
their favor in DFARS 215.306; and (x) additional briefing will be required from the
parties to determine whether the court should order the Government
to go back and consider whether discussions should be conducted using
the proper application of the DFARS. Subsequently, after
receiving the additional briefing it had ordered, the court
remanded the
dispute to the procuring the agency for it to decide how to apply DFARS 215.306
(concerning discussions) by either (i) standing by its prior award decision with additional
elaboration on why it decided not to conduct discussions or (ii) issuing a
new decision either (a) establishing a competitive range followed by
discussions leading to a new award or (b) replacing its previous contract award decision with a new contract award
decision that declines to engage in discussions but is supported by a new
explanation and further development of the administrative record. In
EnGlobal Government Services, Inc., an unsuccessful post-award protest
against the award of an IDIQ contract as a result of
corrective action, the court held,
inter alia, that (i) email exchanges
between the Government and the eventual awardee during corrective action were
for the purpose of a clarification, not discussions, because they only
afforded the firm the opportunity to correct a discrepancy involving seemingly
contradictory numbers in its proposal regarding its compensation plan
for professional employees and not an opportunity to revise the
proposal; (ii) the protester failed
to timely object to the limited scope of the agency's corrective action plan;
(iii) even if
the exchanges were discussions, the protester had not demonstrated prejudice
because it had not shown, given the limited scope of the corrective action,
that it
could have revised its proposal in such a way as to have changed the award
decision; and (iv) the agency did not treat proposals disparately or conduct an
improper price realism analysis, and its evaluation of the total
compensation packages complied with FAR 52.222-46.
In
The Bionetics Corp., an unsuccessful protest, the court held that
the agency had a rational basis for rejecting a proposal
because it did not comply with the solicitation's material
requirement that it include labor rates consistent with the
applicable collective bargaining agreement ("CBA"),
including properly escalating those rates in the out years,
and the solicitation gave the agency the discretion to
reject such proposals without asking for clarifications,
even though the protester's proposal also contained a
conclusory statement that it would comply with the CBA. In
Elevated Technologies, Inc., a successful post-award protest, the
court held that: (i) the protester's
failure to
argue for all elements necessary for injunctive relief until its brief
did not require dismissal of the suit; (ii) promptly filing a GAO protest and
then promptly filing suit after voluntarily dismissing that protest
shortly before the GAO's 100-day deadline for issuing a decision did not bar
the suit under the doctrine of laches; and (iii) the Government should have disqualified
the awardee because it submitted multiple quotes in response to
an RFQ which clearly
provided that if more than one quote were submitted by a responder, all
its quotes would be
rejected.
In an unsuccessful post-award protest, the court rejected
Newimar S.A.'s everything-but-the-kitchen-sink approach and held,
inter alia, that:
(i) under Blue & Gold Fleet, the protester had waived its
argument that the agency's corrective action had amended the solicitation to favor
the awardee
because the protester had failed to object prior to submitting its
revised proposal (and, in any event, the protester had
failed to prove bad faith by the agency); (ii) the protester
had waived
various arguments by failing to address them in its reply briefing;
(iii) various allegations relating to the awardee's responsibility
were actually matters of contract administration not within
the court's
protest jurisdiction; (iv) the protester failed to present evidence in support
of its allegation that the awardee was noncompliant with Spanish law;
(v) allegations based on the awardee's proposal in response to the
original solicitation had been mooted by the corrective action, which
revoked the original award; (vi) the agency did not evaluate proposals
using undisclosed criteria and, in any event, the protester was not prejudiced by
the
evaluation; and (vii) the agency's price evaluation had a rational basis. Subsequently, the court
denied the protester's motion for a stay pending appeal. In
Ascendant Services, LLC, an unsuccessful post-award protest
primarily of the agency's key personnel evaluation, the
court held that: (i) the plaintiff’s interpretation of
the solicitation's education and work
experience requirements for the program manager and two project manager positions
was unreasonable, contravened the plain
meaning of the solicitation’s terms, and would make the plaintiff’s own proposed key
personnel unacceptable; and (ii) having failed in its key personnel argument,
the plaintiff conceded it
was not prejudiced by the other errors it alleged in the evaluation. In
ACI Technologies, Inc., an unsuccessful post-award protest, the
court held, inter alia, that: (i)
the agency rationally evaluated past
performance, including the relevancy of the awardee's past performance
examples; (ii) the agency's use in its cost evaluation of the most recent DCAA rates
for the protester rather than earlier rates the protester had proposed was not
objectionable, especially because using the earlier rates would not have
resulted in an award to the protester, and the agency was not required to alert
the protester to this situation either through discussions or
clarifications because its proposal was technically acceptable and
the solicitation generally contemplated discussions only with regard to
evaluated deficiencies in the technical proposals; (iii) the cost realism analysis of
the awardee's proposal, including start up costs, had a rational basis;
(iv) the agency's decision to improve the awardee's rating in
the technical factor
after receiving and reviewing its response to discussion questions had
a
rational basis; and (v) the protester failed to articulate any prejudice from alleged
errors in the technical evaluation. It should be noted that an
obviously irritated court repeatedly chastised the protester
for failure to cite any relevant case law in support of its
positions and for expecting the court to do the protester's
job of pointing out evidence in the evaluation that
supported its general allegations.
Subsequently, the court
denied the protester's motion for an injunction or stay
pending appeal.
In
LB&B Assocs., Inc., an unsuccessful post-award protest, the
court held that: (i) there were rational bases for
the agency's
assignment of each of four weaknesses to the plaintiff's proposal, and
the plaintiff was essentially asking the court to substitute its judgments for
those of the agency's evaluators; (ii) there were rational basis for each of two
strengths assigned to the awardee's proposal by the agency, as well as
the agency's
decision not to assign a weakness to the awardee's proposal for its alleged
failure to specifically detail procedures for maintaining solar
panels; (iii) since it would be abnormal for a non-incumbent to have key
personnel already on staff and the solicitation only required the submission
of resumes for proposed key personnel, the agency's evaluation of
the non-incumbent awardee in this area was rational; (iii)
there was a rational basis for the best value
determination; (iv) the protester failed to establish disparate treatment of
the offerors in several areas, largely because it failed to establish
the proposals were substantively indistinguishable in those areas;
and (v) because the the protester failed to challenge any of the "key" strengths in the
awardee's proposal that the agency identified as the sole basis of its
award, the protester could not show prejudice. In
Hydraulics Int'l, Inc., an unsuccessful post-award protest, the court:
(i) denied the Government's motion to dismiss for lack of jurisdiction
because a request for white papers (pursuant to an Other Transaction Agreement to develop
a prototype to upgrade military helicopter ground power units) was made
"in connection with" a procurement since it contemplated (although
it did not guarantee) a follow-on procurement; (ii) denied the
protester's motion to supplement the administrative record with
a document merely
offering one person's opinion disagreeing with one aspect of other offerors'
submittals; (iii) held there were rational bases for the agency's evaluation of
the protester's
schedule and pricing; and (iv) held that the record did not establish
the agency had relaxed a
solicitation requirement for the other offerors. In
CGS-SSG Joint Venture, an unsuccessful post-award protest, the
court held there was a rational basis for the Contracting Officer's interpretation of
the protester's complex pricing proposal and, therefore, for the method
the Contracting
Officer used to compare the proposed prices of the competitors. In
Integrated Finance & Accounting Solutions, LLC, an unsuccessful
scatter-shot, post-award protest against multiple aspects of
the evaluation of both the protester and the awardee, the
court held, inter alia, that: (i)
the agency's interpretation of a disputed Past Performance
evaluation criterion was
more reasonable than the protester's, so the agency's evaluation in this
area had a rational basis; (ii) the agency's assignment of a technical weakness
to the protester's proposal had a rational basis and, where the solicitation
clearly
stated that award without discussions was contemplated, the agency was not
required to hold discussions concerning that weakness with the
protester even if
discussions could have resolved the problem; (iii) the court would not expand the
"too close at hand" doctrine, which applies to past performance
evaluations, to a technical evaluation; (iv) the agency had a rational basis for
not assigning any strengths to the protester's technical proposal;
(v) the protester's challenge to the evaluation of awardee's past performance
was
nothing more than a disagreement with the agency's conclusions; (vi)
the agency's
assignment of a "neutral" Confidence rating to the awardee comported with
the definition of that rating in the solicitation; and (vii)
there was a rational basis for the agency's evaluation
of the awardee in the area of technical management. In
Trillion ERP Venture Tech LLC, an unsuccessful post-award protest,
the court denied the protester's motion
to add documents to the administrative record because, inter alia,
the documents were not considered by the agency in making its award decision.
The court then held that: (i) the agency did not treat offerors unequally;
(ii) the solicitation did not require the
agency to conduct a price realism analysis; (iii) the agency's evaluation of
the level
of effort and labor mix for each CLIN was not improper; and (iv) the agency's
determination in its best value trade-off analysis that the proposals were
technically equal so that price was the deciding factor had a rational basis.
In
KGJJ Eng'g Solutions, LLC, a successful post-award protest
seeking a permanent injunction against an award, the court held that: (i)
by crediting the awardee with the experience of its "sister"
companies, the agency had
In Frawner Corp., a successful post-award protest against multiple contract awards to third parties to perform maintenance and repair tasks at a large military installation, the court held that although several aspects of the challenged Past Performance evaluation were unobjectionable and the agency had not engaged in disparate treatment of offerors, the agency had used an unstated evaluation criteria contrary to the solicitation's language by assigning an overall "relevancy" rating equal to the lowest of three subcategory relevancy ratings achieved by each offeror, and the agency had imposed another unstated evaluation criteria by setting an arbitrary cap of $2 million on past projects that would qualify to be evaluated all all under the "magnitude" sub-factor. Subsequently, in Ames 1 LLC , the court dismissed cross motions for judgment on the record as moot because the issues already had been decided in Frawner Corp.
In Management & Training Corp., a successful post-award protest of a DOL award to operate a Job Corps center, the court held that: (i) the evaluators' determination of the relevance of offerors' past performance contracts deviated, without explanation, from the evaluators' own stated criteria for determining whether work was of a similar scope to the work to be performed under the protested contract; (ii) the agency failed to explain how it determined that the past performance contracts proffered by the offerors were of similar size to the protested procurement; (iii) in violation of the solicitation's terms, the agency failed to evaluate the past performance of one proposed subcontractor of the awardee that would perform a "critical" part of the resulting contract; (iv) the agency did not engage in disparate treatment of offerors (and the type of disparate treatment alleged by the protester was not legally cognizable); (v) the solicitation did not require the agency to evaluate price realism; and (vi) there were several deficiencies in the agency's evaluation pursuant to FAR 52.222-46, ("Evaluation of Compensation for Professional Employees"), which had been incorporated by reference in the solicitation.
In Management & Training Corp., a successful post-award protest of a DOL award to operate a Job Corps center, the court held that: (i) the evaluators' determination of the relevance of offerors' past performance contracts deviated, without explanation, from the evaluators' own stated criteria for determining whether work was of a similar scope to the work to be performed under the protested contract; (ii) the agency failed to explain how it determined that the past performance contracts proffered by the offerors were of similar size to the protested procurement; (iii) in violation of the solicitation's terms, the agency failed to evaluate the past performance of one proposed subcontractor of the awardee that would perform a "critical" part of the resulting contract; (iv) the agency did not engage in disparate treatment of offerors (and the type of disparate treatment alleged by the protester was not legally cognizable); (v) the solicitation did not require the agency to evaluate price realism; and (vi) there were several deficiencies in the agency's evaluation pursuant to FAR 52.222-46, ("Evaluation of Compensation for Professional Employees"), which had been incorporated by reference in the solicitation.
In Algese, an unsuccessful post-award protest of two awards, the court held, inter alia, that the awardee's failure to mention labor unrest, litigation, and workforce reductions in its Past Performance proposal was not a material misrepresentation because the Government was well aware of the issue, concluded the staff reductions were a matter of conventional business judgment, and rationally concluded (i) not to downgrade the awardee's proposal in this area and and (ii) that the awardee was a responsible contractor.
In Lightbox Parent, L.P., an unsuccessful post-award protest, the court held that the protester failed to prove multiple allegations that the awardee had misrepresented various terms of its license agreement with a third party in responding to the solicitation.
In Dolphin Park TT, LLC, another unsuccessful post-award protest, the court held, inter alia, that: (i) the agency's determination that the protester's offered property was in a prohibited 100-year floodplain had a rational basis especially where the protester, itself, repeatedly asserted that fact in its proposals; (ii) the agency's discussions with the protester were meaningful because, inter alia, its discussion letter was titled a deficiency letter and specifically identified the floodplain issue as one of the discussion items, which was adequate to generally lead the protester into the areas of its proposal requiring amplification or correction; (iii) the agency was not required to notify the protester that another offeror had met the floodplain requirements, which would render the protester's proposal unacceptable; and (iv) agency did not treat offerors unequally because, under the protester's interpretation of the solicitation, the agency had waived a requirement for both offerors.
In Second Street Holdings, LLC, an unsuccessful post-award protest of a procurement for lease spaces, following numerous unsuccessful GAO protests, the court held that: (i) the awardee's proposal complied with the solicitation's requirement to provide "at least a conditional commitment of funds" sufficient to prepare the proposed lease space for occupancy (and the quoted solicitation language did not create a definitive responsibility criterion); (ii) a vague occupancy date range mentioned once in the solicitation, and described only as an estimate, was a not a firm requirement that the awardee failed to meet; (iii) the solicitation only required the offeror (not all related parties with ownership interests in the properties) to have a SAM registration, and information supplied by the awardee adequately reflected its ability to speak on behalf of another firm on its team with an ownership interest; (iv) GSAM clause 570.306(b), which was incorporated in the solicitation, does not require a price realism analysis, and the agency's analysis of the awardee's price satisfied the requirements of that provision; (v) the price analysis had a rational basis, and there was no requirement for the Government to update its price estimates between the submission of final proposals and award (plus, the protester's challenge to the Government's failure to do so was untimely); (vi) there was no evidence that the awardee's proposed operating expenses and tax estimates were unrealistically low or that the Government's evaluation of them was unreasonable; (vii) the solicitation (when properly interpreted) did not require the Government to evaluate "holdover costs" as posited by protester; (viii) the protester failed to show the Government's requirements so substantially changed after the solicitation was issued that cancellation or reissuance was required (and the protester waived this objection by failing to file a preaward protest during the lengthy delay period; and (ix) the agency did not engage in unequal discussions.
In Connected Global Solutions, LLC and American Roll-On Roll-Off Carrier Group, Inc., which involved consolidated protests with a long history of challenges to a procurement, the court held, inter alia, that: (i) the agency did not err when, in conducting a reevaluation after revising the solicitation and receiving revised proposals as part of corrective action, it arrived at a different number of technical strengths for the protester's proposal and was not required to explain the reason for the difference; (ii) discussions were neither misleading nor unequal and the agency was not required to reopen discussions during corrective after concluding that one offeror's approach was more advantageous than its competitor's; (iii) there was a rational basis for the agency's technical evaluation, including, inter alia, the agency's decision to consider an offeror's written proposal as taking precedence over an inconsistent statement made during its oral presentation; (iv) the agency did not depart from the solicitation's evaluation scheme and the best value tradeoff analysis had a rational basis; and (v) the price analysis was not arbitrary or capricious.
In AccelGov, LLC, an unsuccessful post-award protest; the court held that: (i) the Contracting Officer did not use unstated evaluation criteria when it downgraded the protester's confidence rating based on its proposed Operations Manager's failure to meet the solicitation's experience requirements; (ii) the agency did not treat competitors unequally in evaluating their VIP support approaches and training programs; (iii) the agency's evaluation of the protester's oral presentation had a rational basis; and (iv) the agency's choice of the higher-priced, higher technically-rated proposal had a rational basis where price was less important than the technical factors.
In LS3, Inc, d/b/a LS3 Technologies, Inc., an unsuccessful post-award protest seeking a preliminary injunction, the court held that the protester was unlikely to succeed on the merits of its challenges to (a) the agency's evaluation of its technical proposal and its past performance or (b) the evaluation of the awardee's proposal.
In Ahtna Logistics, LLC, an unsuccessful post-award protest, the court rejected a multitude of challenges to the agency's evaluation of the protester's and its competitors' proposals and concluded that, since the protester's challenges to both proposals that were higher rated than its own were meritless, the protester had not established prejudice "on the merits" because it was not in line for award.
In AccelGov, LLC, an unsuccessful post-award protest; the court held that: (i) the Contracting Officer did not use unstated evaluation criteria when it downgraded the protester's confidence rating based on its proposed Operations Manager's failure to meet the solicitation's experience requirements; (ii) the agency did not treat competitors unequally in evaluating their VIP support approaches and training programs; (iii) the agency's evaluation of the protester's oral presentation had a rational basis; and (iv) the agency's choice of the higher-priced, higher technically-rated proposal had a rational basis where price was less important than the technical factors.
In Ekagra Partners, LLC, an unsuccessful post-award protest, the court dismissed two counts of the complaint for lack of standing because the plaintiff did not even allege facts that would establish prejudice. The court then held that: (i) the agency properly evaluated the (lack of) experience of two of the protester's key personnel; (ii) the agency properly evaluated the awardee/incumbent's quotation because there was no solicitation requirement that its prior work be disregarded; and (iii) the agency properly assessed unbalanced pricing issues with the awardee's proposal, finding its low price for a fixed-price CLIN did not pose an unacceptable risk.
In The Ginn Group, Inc., an unsuccessful post-award protest, the court held that: (i) the agency's evaluation of one subset of one technical evaluation category, i.e., the provision of recycling services "to the maximum extent possible," did not require it to assign a significant strength to the protester's unique proposal for recycling white paper and aluminum cans or to downgrade the awardee's proposal for failing to do so or to ignore the protester's higher price for doing so; (ii) the agency had a rational basis for evaluating the awardee's staffing levels (which were only nominally below the agency's estimates) as adequate; and (iii) the agency conducted meaningful discussions with the protester by giving it a chance to revise its proposal--there was no requirement to alert it to revise its staffing levels or to change its recycling approach because neither was considered a significant deficiency:
The agency did not take any concrete actions during the discussions to put [the protester] under the impression that it should not revise its staffing level or change its recycling proposal and its mere inaction with regards to those areas cannot constitute misleading discussion.
Conflicts of Interest/Procurement Integrity Act
In Trident Technologies, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) the agency's investigation of alleged impaired objectivity OCIs and its mitigation plan were reasonable; (ii) the protester failed to provide "hard facts" to support its allegations of unequal access to information OCIs, and the agency's investigation of that issue was reasonable as well; (iii) the agency exercised reasonable discretion by deciding to develop a mitigation plan rather than disqualifying the awardee for undisclosed OCIs; and (iv) the agency's decision to reopen discussions on one point with the awardee that had been resolved earlier but then reintroduced in the awardee's revised proposal did not amount to coaching or unequal discussions.
Insight Public Sector, Inc., is an unsuccessful post-award protest. The background is that the agency originally had awarded the contract to the protester, but subsequently had required pricing revisions after discovering the protester/original awardee had failed to price several required items, and, finally, had awarded the contract to the current awardee after evaluating those revised prices. In the current protest, the Court of Federal Claims held, inter alia, that: (i) the solicitation did not require the Government independently to check the awardee's GSA Schedule to verify its proposal statement that all required items were included there; (ii) the requirement that each member of a contractor teaming agreement (CTA) have privity of contract with the Government was not violated simply because a subcontractor could provide the items being supplied by one member of the team, and the solicitation did not require both team members to provide products from their respective GSA schedules; (iii) there were rational bases for the protester's Confidence and Relevance ratings under the Past Performance evaluation factor; (iv) even if those ratings were wrong, the protester had not established prejudice because its proposal was higher priced, which was a more important factor in the award selection; (v) the fact that the Government initially awarded the contract to the protester undercut its arguments that the Government was prejudiced in favor of the ultimate awardee; (vi) no regulation prohibited the Government from responding to a question by the awardee submitted one day after the deadline for bidders' questions; (vii) no regulation required the Government to disclose the awardee's question to the protester where the communications did not create an unfair advantage; (viii) even if the Government should have disclosed the question to the protester, the protester had not established prejudice, i.e., that it would have received award absent the change to the solicitation made as a result of the awardee's question; (ix) the Government's question asking the awardee to provide additional details concerning its CTA was not an improper discussion under FAR 15 because that section did not apply to this procurement; (x) even if the question were examined under FAR 15, it was more in the nature of a clarification because it asked for information that the solicitation did not require (i.e., additional details concerning the awardee's CTA); (xi) even if the question did constitute a discussion, it was, in the words of FAR 15, tailored to the awardee's proposal, (xii) again, there was no prejudice the protester's proposal did not contain errors that it could have remedied had the Government provided it that opportunity because the protester's proposal did not rely on a CTA; (xiii) nothing prohibited the Government from assigning the same personnel involved in the original procurement to investigate PIA allegations, and the protester's allegations were insufficient to overcome the presumption that government officials act in good faith; (xiv) the Government conducted a reasonable investigation into PIA allegations and was not required to conduct the more expansive investigation suggested by the protester; and (xv) the protester's allegation of a subsequent PIA violation was untimely.
In Michael Stapleton Assocs, Ltd., a successful preaward protest, the court issued a permanent injunction barring the incumbent from a competition because, inter alia: (i) an individual's continued involvement in a resolicitation violated the Contracting Officer's directive to avoid OCIs; and (ii) the Postal Service's actions were insufficient to mitigate the incumbent's OCI advantages.
Sole Source/Small Business/Restricted Competitions
In Superior Optical Labs, Inc., an unsuccessful protest, after an extended analysis concluding the protester had standing, the court held that a decision by the SBA's OHA (that the protester was not an eligible SDVOSB due to provisions in its agreement with its former owner that impermissibly limited the control by its SDV owner) had a rational basis.
In E&L Constr. Group, LLC, a protest challenging the prior SBA decision (upheld by the OHA) that a firm was ineligible as an SDVOSB due to its lack of unconditional ownership by an SDV, the court denied cross motions for judgment on the record and remanded the case to the OHA to explain its reasoning that the OHA's test for unconditional ownership articulated in Matter of Wexford Group International, Inc., SBA No. SDV-105, at 6 (2006) survives the superseding changes in the applicable regulations.
In Ceres Environmental Services, Inc. and D&J Enterprises, Inc., which involved unsuccessful post-award protests, the court rejected a plethora of challenges by the plaintiffs and held that the Government had complied with all applicable laws and regulations in awarding a sole-source contract for debris removal and disaster cleanup services based upon unusual and compelling urgency following an F4 tornado.
In Swift & Staley, Inc., the court upheld the prior OHA decision (on remand from the court) that the plaintiff was other than small due to negative control and also denied the plaintiff's request to supplement the administrative record with an affidavit because the record was sufficient for the court to decide the case without it. Subsequently, the court stayed its decision pending the plaintiff's appeal to the CAFC because the plaintiff had presented a substantial case on the merits and the other factors for an injunction weighed heavily in its favor.
Previously in E&L Constr. Group, LLC, a protest challenging the prior SBA decision (upheld by the OHA) that a firm was ineligible as an SDVOSB due to its lack of unconditional ownership by an SDV, the court denied cross motions for judgment on the record and remanded the case to the OHA to explain its reasoning that the OHA's test for unconditional ownership articulated in Matter of The Wexford Group International, Inc., survives superseding changes in the applicable regulations. Subsequently, on remand, the OHA in CVE Protest of Randy Kinder Excavating, Inc, d/b/a RKE Contractors affirmed its prior decision that the definition of "unconditional" ownership discussed in Wexford survives, and, thus, the challenged firm was not fully controlled by a SDV because it was substantially dependent on a non-veteran. Now, back at the Court of Federal Claims, the court holds that there was a rational basis for the OHA's decision in part because a seemingly contradictory statement in a CAFC case (Veterans Contracting Group, Inc.) was only dicta because that case was dismissed as moot.
The court sustained a protest by Goodwill Industries of South Florida, Inc., because the Government attempted to procure women’s IHWCU trousers using a competitive solicitation without following the required procedures under the JWOD Act and its implementing regulations for determining that qualified nonprofits were unable to meet the Government's requirements.
In SEKRI, Inc., the court dismissed all four claims in the plaintiff's original complaint to the court because the agency's actions after a decision by the CAFC vindicating the plaintiff's claims that it was the mandatory source for the items to be procured had provided the relief the plaintiff sought. The court also held that it could not force the agency to procure the items within a specified time limit.
In Focus Revision Partners ("FRP"), the court reversed the prior OHA decision (which had dismissed a size protest filed in the wrong name instead of permitting correction of the record) because:
FRP had an active SAM registration and was an actual offeror for the procurement at issue; (2) although FRP mistakenly filed its size protest using the incorrect corporate name, neither {the contracting agency] nor the SBA nor [the protested party] were confused or prejudiced by FRP’s error; (3) at all times, FRP was the true protestor and party-in-interest; and (4) no SBA regulation precluded the simple correction FRP sought, which, in any event, would not have prejudiced any party.
Corrective Action and CICA Stays
In VAS Realty, LLC, the CAFC reversed the prior unreported CoFC decision (dismissing a protest for lack of standing due to the protester's alleged ineligibility for award) because there was a legitimate possibility that it would have a chance for award if its protest ground (that an OIG report had found numerous errors in the award decision) were sustained since the agency would likely have to reprocure and allow offerors to rebid. Now, on remand, the CoFC has held that the protester is entitled only to bid and proposal costs because, since both the lower and appeals court had denied the protester's motions to stop contract performance pending the appeal, the project is now too far along to be canceled. Relevant to the court's analysis of whether injunctive relief is available is the fact that the protester could have protested earlier but waited months for the OIG report before proceeding.
In C&E Services, Inc., an unsuccessful suit by the incumbent seeking a preliminary injunction against the agency's "best interests" determination to override a CICA stay pending the resolution of the incumbent's GAO protest, the court held that the limited record before it was insufficient to conclude that the plaintiff was likely to succeed on the merits of challenging the override.
In Yahya Technologies, LLC, d/b/a Y-Tech, LLC, the court denied the plaintiff/incumbent's motion for a TRO against the override of an automatic stay triggered by plaintiff's GAO protest of the performance of a bridge contract by another firm because the incumbent/plaintiff's current contract is set to expire, so stopping the bridge contract would not lead to continued performance by the incumbent--i.e., no meaningful relief can be provided to the incumbent, so its suit is, essentially, moot.
In Harmonia Holdings Group, LLC, an unsuccessful protest by one of the original awardees against the cancellation of the solicitation during corrective action undertaken as a result of GAO protests of the original awards, the court held that there was a rational basis for the cancellation where higher-ups in the agency had multiple concerns with the conduct of reevaluations during the corrective action, which the evaluators did not address adequately even after being apprised of those concerns.
In its latest Seventh Dimension, LLC protest decision, the court (addressing concerns raised in the Government's motion for reconsideration) modified some of the terms of the injunction and remand in its prior decision, but stood by its original conclusion that the Government had improperly canceled a solicitation after the company's successful protest.
In Vanquish Worldwide, LLC, an unsuccessful protest, the court held that the plaintiff, which had formally agreed with the other parties that a prior protest would be dismissed and that specific corrective action would be undertaken, could not complain when agency did exactly that: "This is a story not of a party sleeping on its rights but relinquishing them and then seeking a mulligan."
AGMA Security Service, Inc., was a largely successful EAJA application for attorneys' fees following a prior, successful protest in the court. In the new case, the court (in a 42 page opinion) discussed in exhaustive detail the standards for each requirement of an EAJA application and how each applied to the facts of this case, i.e., whether plaintiff was a prevailing part (it was): whether the Government's litigation position had been substantially justified (it had not); whether the plaintiff met the eligibility requirements, including whether its submission of an itemized statement of the claimed fees was sufficient absent the actual bills submitted by the attorneys to the clients (it was); whether the client met the small size requirement (it did); whether the fees incurred in defending against an appeal filed by the original intervenor rather than the Government could be recovered (they could in the circumstances of this case); whether fees incurred in filing and litigating the EAJA application could be recovered (they could); how to calculate the COLA adjustment for inflation to increase the $125 per hour statutory cap on recoverable fees; and whether several individual time entries to which the Government objected were recoverable (most were) and why or why not.
In G4S Secure Integration, LLC, et al., the court denied the protesters' request for an injunction pending their appeal of a prior unreported decision that the protesters had not established prejudice from the agency's violation of FAR 52.204-7 (requiring SAM registration at the time a proposal is submitted) because the protesters had benefited from the same error. Specifically, the court held that in requesting the injunction, the protesters had not shown a likelihood of success on merits or that they had presented a substantial case on the merits, and the harm to the protesters from the lack of an injunction was outweighed by the harm to the Government if an injunction were granted.
In Dolphin Park TT, LLC, a post-award bid protest of a lease award by the GSA, the court, inter alia, granted the plaintiff's motions to supplement the administrative record (AR) with: (i) the plaintiff's unredacted GAO protest for the limited purpose of deciding whether the plaintiff had timely submitted certain GAO protest exhibits, and whether the GSA should have considered them, and, if so, following any briefing considering the court’s ruling in that regard, whether their consideration undermines the agency’s award decision; and (ii) deposition testimony concerning discussions between the plaintiff and the GSA in a situation where there were conflicts and inconsistencies in the AR with regard to those discussions.
In consolidated protests by Connected Global Solutions, LLC and American Roll-On Roll-Off Carrier Group, Inc., the court allowed limited discovery because information related to the protest allegation that the awardee's offer contained a material misrepresentation concerning the security level of its information technology system would not likely be in agency's administrative record. In a subsequent Connected Global Solutions, LLC, decision in the same protest, the court further discussed the standards for deciding whether to admit various additional of documents to supplement the administrative record.
In Seventh Dimension, LLC, a successful protest against the Government's decision to cancel a solicitation pursuant to FAR 15.206(e) rather than making an award to the sole surviving competitor after prior protests, the court held that the statement in the regulation that the decision to cancel must be based on "market research or otherwise" means "based on market research or evidence similar to market research," which in turn requires that the the decision must be rely on reasoned judgment based on evidence or facts contained in the administrative record rather than a mere hypothesis or conjecture that competition likely would increase were the solicitation cancelled. The court concluded that these requirements were not met in this case.
In Trace Systems Inc., because the administrative record submitted by the agency to that point appeared "thin" (consisting of only 13 pages), the court ordered the agency to continue searching for additional documents, especially where the few documents submitted to that point in time suggested the Government may have considered other documents in making the protested decision.
In The Logistics Co., an unsuccessful post-award protest, the court held that the awardee was not required to disclose four past legal proceedings under FAR 59.209-7(c)(1) because one (a divorce proceeding) was not in connection with a government contract, one did not result in any finding of fault or liability, one involved findings of fault and liability occurring more than five years before the awardee submitted its current proposal, and another resulted in a settlement agreement rather than a judgment. The court also held that the Contracting Officer's responsibility determination concerning the awardee had a rational basis in that it took into account negative details from past legal proceedings and could not be second-guessed by the court.
Court of Appeals for the Federal Circuit
In SEKRI, Inc., which involved a protest (filed after the close of the bidding process but before award was made) of a solicitation amendment notifying prospective bidders that the agency contemplated making an award on an unrestricted basis, the CAFC reversed the prior CoFC opinion dismissing the protest for lack of standing and a Blue & Gold Fleet waiver and held that (i) a qualified mandatory source of a commodity in the AbilityOne Program qualifies as a "prospective bidder or offeror" for purposes of standing; and (ii) the plaintiff's notice to the agency prior to the close of the bidding process that it was a mandatory source for the items being procured satisfied the requirements of Blue & Gold Fleet. Basically, because of the compulsory provisions of the Javits-Wagner-O’Day Act and its implementing regulations, the court has established unique standing and waiver requirements for mandatory sources under that Act.
Evaluations
In Mitchco Int'l, Inc., the CAFC affirmed the prior CoFC decision denying a post-award protest of a procurement for for food and dining room operations subject to the Randolph-Sheppard Act ("RSA"), holding that: (i) the "constructive cancellation" of a solicitation after award does not render a protest by another bidder seeking bid and proposal costs moot; (ii) having failed to timely protest a solicitation provision stating a state licensing agency (SLA) would be given preference pursuant to the RSA if it were found to be in the competitive range, the protester is foreclosed from doing so now; (iii) the fact that the SBA determined the SLA to be other than small did not disqualify it from this small business set-aside because the Randolph-Sheppard Act's provisions establishing a preference for SLAs take precedence; (iv) a DoD Joint Statement of Policy section stating that one blind person should be assigned in a managerial position to each dining facility is trumped by the RSA, which has no such requirement; and (v) information the plaintiff claims was used improperly by the awardee does not constitute "contract bid or proposal information" under the Procurement Integrity Act because it was information the awardee was entitled to obtain from the protester as its subcontractor on the predecessor contract.
In VAS Realty, LLC, the CAFC reversed the prior unreported CoFC decision (dismissing a protest for lack of standing due to the protester's alleged ineligibility for award) because there was a legitimate possibility that it would have a chance for award if its protest ground (that an OIG report had found numerous errors in the award decision) were sustained since the agency would likely have to reprocure and allow offerors to rebid. Now, on remand, the Court of Federal Claims has held that the protester is entitled only to bid and proposal costs because, since both the lower and appeals court had denied the protester's motions to stop contract performance pending the appeal, the project is now too far along to be canceled. Relevant to the court's analysis of whether injunctive relief is available is the fact that the protester could have protested earlier but waited months for the OIG report before proceeding.
SBA Office of Hearings and Appeals
Jurisdiction/Standing/Timeliness/Procedure
In Size Appeal of Potomac River Enterprise Solutions, LLC, the OHA reversed the Area Office's determination that a size protest was untimely because, as explained in the preamble to revised 13 C.F.R. § 121.1004(a)(2)(iii): "This rule specifically authorizes a size protest relating to an order issued against a MAC where the order is set aside for small business and the underlying MAC was awarded on an unrestricted basis, except for orders or Blanket Purchase Agreements issued under any FSS contract." 85 Fed. Reg. at 66154.
In Size Appeal of EBA Ernest Bland Assocs., P.C., the OHA held that the Area Office correctly dismissed a size protest concerning a task order RFQ under a long-term contract as untimely because the RFQ did not include a request for recertification of size, and references to standard FAR provisions are not alone sufficient to constitute a request for recertification.
In Size Appeal of Miami-Chameleon, LLC, the OHA refused to consider an argument (i.e., that a firm was a former affiliate of the appellant whose receipts should not have been counted in determining size) because the appellant had failed to present that information to the Area Office (having listed the firm as an affiliate on its Form 355).
In Size Appeal of Venergy Group, LLC, the OHA dismissed a defective appeal that (a) failed to allege error by the Area Office, (b) was based entirely on new evidence not provided to the Area Office, and (c) failed to establish the relevance of the new evidence.
In Size Appeal of RBVetCo, LLC dba Rocky Bleier Constr. Group, the OHA dismissed, as untimely, an appeal filed with the OHA more than 15 days after the Area Office's size decision had reached the appellant's email server. The OHA held that the fact that the appellant's representative had not opened the size determination until after the close of business that day was irrelevant. On the opposite end of the spectrum, in Size Appeal of Stuff Overnight, LLC, the OHA dismissed the appeal as premature because the Area Office had yet to issue a size determination.
In Size Appeal of AAR Manufacturing, Inc. d/b/a AAR Mobility Systems, the OHA dismissed a size appeal as moot because the agency had taken corrective action resulting in cancellation of the award to the challenged firm. Similarly, in Size Appeal of Calderwood Enterprises, the OHA dismissed the appeal as moot due to the cancellation of the solicitation.
In Size Appeal of Focus Revision Partners JV LLC, the OHA dismissed an appeal filed under the name of a firm that did not exist and did not submit a proposal for the challenged procurement. The firm conceded that the name under which it had submitted its proposal was simply Focus Revision Partners (without the "JV LLC"). The decision was reversed by the Court of Federal Claims in Focus Revision Partners v. United States, No. 22-657 C (Sept. 12, 2022).
In Size Appeal of DRI, Inc., the OHA upheld the Area Office's decision dismissing a protest as untimely because the protester had conceded it did not file the protest within five days of an IFB bid opening, and an email it had sent only to the Contract Specialist within that time period was too equivocal to have been considered a protest.
In Size Appeal of C2 Alaska, LLC, where the size protest only alleged a violation of the ostensible subcontractor rule, the OHA held that the case must be remanded to the Area Office because it had failed to notify the challenged firm that the office was also considering whether there was affiliation based on the totality of the circumstances.
In Size Appeals of Anchor Labs, Inc. d/b/a Anchorage, the OHA held that where the challenged firm had failed to timely appeal two of three size determinations, its timely appeal of the remaining size determination was moot because the other two size determinations, which had become final, had found it other than small under the size standard applicable to the procurement.
In Size Appeal of Alrac Escalators, LLC, the OHA dismissed an appeal of a size determination as untimely and also noted the appeal was not in compliance with several other requirements for such appeals, e.g., it (a) was based on new evidence not presented to the Area Office, (b) was unsigned, and (c) was not filed on the other parties.
In Size Appeal of Ace Ventures, LLC, the OHA held that a timely-filed document expressing only the concern that the awardee was affiliated with a non-profit entity was insufficiently specific because it lacked any allegation that would establish that the combined size of the allegedly affiliated firms would be other than small.
In CVE Protest of SouthCo Services LLC, the OHA dismissed an SDVOSB protest as moot because the protested firm already had been declared ineligible for the award as a result of a successful size protest.
In In the Matter of Idaho Heatseeker, LLC, the OHA noted it lacked jurisdiction over appeals of decisions denying a firm's admission into the WOSB program. (The OHA only has jurisdiction over appeals from decisions on protests of the WOSB status of the apparently successful offeror in a particular solicitation.)
In Size Appeal of Pacific Lighting Management, Inc., the OHA vacated the Area Office's decision sustaining a size protest because the protest was in connection with a delivery order under a GSA Schedule contract in a situation where the Contracting Officer had not requested recertification of size for purposes of the order.
In NAICS Appeal of Laredo Technical Services, Inc., the OHA dismissed, as untimely, a NAICS appeal filed more than 10 days after the solicitation was issued because the subsequently-published Q&A did not change any of the terms of the solicitation and, even if it had, it did not affect the NAICS designation and, thus, did not extend the deadline for filing the appeal.
In NAICS Appeal of Mediterranean Linguistics Services, LLC, the OHA dismissed the appeal after the appellant did not respond to a show cause notice noting that: (i) the contract already had been awarded so the case was moot; (ii) the appellant had not bid on the solicitation and, therefore, lacked standing; and (iii) the appellant had failed to establish that the appeal was timely.
In Size Appeal of ROAM LP, LLC d/b/a ROAM Lake Powell, the OHA dismissed (as untimely) an appeal filed more than 15 days after receipt of theh Area Office's size determination.
In CVE Appeal of ISC Intelligent Strategic Coaching and Consulting LLC d/b/a Meineke Car Care Center #2835, the OHA dismissed an appeal of the CVE's denial decision because the appeal was not properly served on the CVE and did not specify any reason why the CVE's decision was alleged to be erroneous.
In In the Matter of Jean Frantz Guillaume d/b/a Negro American, the OHA dismissed (for lack of jurisdiction) the appeal by an applicant whose incomplete paperwork for admission as a verified SDVOSB was to be transferred from CVE to the SBA for further processing as of January 1, 2023. The appellant made a number of peculiar allegations, including that the OHA judge was biased solely on the basis of a webinar he had conducted concerning the procedures for filing CVE appeals to the OHA.
In Size Appeal of Special Operations Group, Inc., the OHA dismissed an appeal filed by a parent company contesting the dismissal of its subsidiary's size protest against the recipient of a BPA. The original size protest had been dismissed because the subsidiary had not bid on the procurement and because its protest was untimely. The parent company/appellant had bid on the procurement and had been awarded one of the BPAs, which had subsequently been terminated.
In CVE Protest of NEIE Medical Waste Services, LLC, the OHA dismissed an SDVOSB status protest because the agency had undertaken corrective action and the protested firm was no longer the awardee.
In Size Appeal of NFRL LLC, the OHA upheld the Area Office's finding that the Appellant did not meet the ownership and control requirements for the SBIR program at 13 C.F.R. § 121.702(a)(1) because it and its ostensible subcontractor must be treated as joint venturers and, therefore, as affiliates.
In Size Appeal of High Desert Aviation, LLC, the OHA held that the Area Office correctly identified the primary and vital contract requirements and correctly concluded the subcontractor would provide most of those requirements, with the result that the the appellant and the sub were affiliated through the ostensible subcontractor rule.
Other Miscellaneous Size Issues
In Size Appeal of Optimal GEO, Inc., the OHA upheld the Area Office's finding that a firm was other than small because the joint venture of which it was a member had violated the current "unlimited in two" rule by continuing to seek awards more than two years after the first award to the joint venture and, therefore, the firm that owned 50% of the joint venture was deemed to be affiliated with the joint venture. In another Size Appeal of Optimal GEO, Inc., the OHA upheld the Area Office's finding that the same firm was other than small because the same joint venture also had violated the former "three in two" rule applicable at the time of this dispute so that the joint venture's members were thenceforth considered "affiliated for all purposes." In other words, the joint venture had run afoul of both the old and the new regs.
The OHA denied the Size Appeal of LuminUltra Technologies, Inc., because there is no mechanism in the SBA's size regulations for excluding from a firm's revenue the proceeds of a short term contract to respond to a pandemic emergency.
In Size Appeal of The Onyx-Urban Collaborative Joint Venture, the OHA upheld the Area Office's application of an adverse inference after the challenged firm refused to provide the requested tax return for a required year because, even though tax return had not been filed with the IRS at the time of self-certification, it had been by the time of the request from the Area Office.
In Size Appeal of Superior Optical Labs, Inc., the OHA upheld the Area Office's determination that the provisions of a "Services and Supply Agreement" between the challenged firm and another, when read as a whole, showed sufficient control to establish affiliation under a totality of the circumstances analysis.
In Size Appeal of SysCom, Inc., the OHA remanded the case to the Area Office for further investigation because of numerous indications in the record (some provided by the protested firm, itself) that called into question the Area Office's finding that the protested firm was a small business, including whether the protested firm was, as it claimed to be, a joint venture between two business concerns, majority-owned and controlled by its Managing Venturer.
In Size Appeal of Avenge, Incorporated, the OHA held that a firm was required to recertify at the time of a task order solicitation under a multiple award contract because the underlying contract stated individual orders would be limited to small businesses even though the individual task order solicitation did not specifically state that recertification was required.
In Matter of M Patterson Services, LLC, the OHA upheld the SBA's denial of an application for entrance into the 8(a) program due to insufficient evidence of social disadvantage, especially where the petitioner sought a de novo review by OHA rather than presenting evidence of any alleged errors in the agency's determination.
In Matter of Geotechnical Innovation, PLLC, the OHA upheld the termination of a firm from the 8(a) program for failure to submit required Annual Review information despite numerous reminders from the SBA to do so, the pandemic being no justifiable excuse for that failure.
In CVE Appeal of Victory Solutions, Inc., the OHA upheld the cancellation of a firm's verified SDVOSB status because the firm failed to respond to a Notice of Proposed Cancellation or to provide the information required by that notice and failed to prove it had not received the agency's multiple emails alerting it of the notice.
In CVE Appeal of Watanabe Enterprises, LLC, the OHA dismissed an appeal from the cancellation of a firm's verified SDVOSB status because the appeal failed to allege any errors in CVE's reasoning behind the cancellation, but specifically admitted the firm was "guilty" of failing to provide notice of a change in ownership structure.
In CVE Appeal of Gruene Shredding, LLC, the OHA upheld the cancellation of a firm's verified SDVOSB status because the firm failed to present documentation indicating its SDV had the requisite managerial control and failed to timely update its information following a change in ownership.
In Matter of SJ Innovations, LLC, the OHA upheld the decision terminating a firm from the 8(a) program because its owner's AGI over the previous three years exceeded the applicable standard for economic disadvantage of $350,000, and the firm had failed to present timely evidence to rebut the presumption that she was no longer economically disadvantaged.
In Matter of iHealth Innovative Solution, LLC, the OHA upheld the decision denying a firm entry into the 8(a) program because the record did not clearly establish that the total number of hours worked by the firm's disadvantaged manager during the firm's normal business hours was sufficient under the governing regulations given his concurrent work at another firm.
In Matter of LFM Industries, Inc., d/b/a Massey Industries, Inc., the OHA dismissed an appeal of a firm's termination from the 8(a) program because the appeal was filed late (the fact that the termination notice initially went to the appellant's junk email folder being no excuse) and failed to comply with other requirements for such appeals.
In CVE Appeal of Advent Capital Inc., d/b/a Alpine Roofing, the OHA upheld the denial of a firm's application for verification as a Veteran-Owned Small Business ("VOSB") because the trust that owned more than 99% of the firm's stock did not meet the requirements to be considered a fictional veteran (i.e., neither the grantor nor all the beneficiaries were veterans) and there were numerous other problems with the firm's structure which precluded a finding that it was owned and controlled by veterans.
In CVE Protest of Reliable Vets, LLC, the OHA denied a protest of a firm's SDVOSB status because: (i) an SDV was the 51% owner and sole President of the firm; (ii) identity of interest affiliation allegations are irrelevant in an SDVOSB protest; (iii) the evidence demonstrated the SDV controlled both the long term and day-to-day issues in the firm; and (iv) there was no supermajority voting requirement limiting that control.
In Matter of Transcendence, Inc., the OHA upheld the decision to remove a firm from the VIP database because the firm failed to provide all the documents requested by CVE despite multiple extensions providing it additional time to do so.
In CVE Protest of Randy Kinder Excavating, Inc., on remand from the CoFC, the OHA affirmed its prior decision that the definition of "unconditional" ownership discussed in In the Matter of Wexford Group Int'l, Inc., SBA No. SDV-105 (2009) survives a subsequent change in the regulation, and, pursuant to that definition, the challenged firm was not fully controlled by a SDV because it was substantially dependent on a non-veteran.
In CVE Protest of In and Out Valet Co., the OHA denied a protest of a firm's SDVOSB status because: (i) two SDVs owned a majority interest in the firm without restrictions; (ii) an SDV managed and had "exclusive" control of the challenged firm; (iii) others of the protester's allegations lacked supporting evidence and were denied by the challenged firm; and (iv) the fact that the NAICS code for procurement was not listed in the SDVOSB's company profile was not a valid basis for an SDVOSB protest.
In Matter of Brendan Lau Agricultural LLC, the OHA denied an appeal of the SBA's denial of a firm's application for entry into the 8(a) program because unrebutted evidence in the record (some of it provided by the petitioner, itself) contradicted the petitioner's assertion that its owner only worked limited hours (all of them outside standard business hours) for two firms in addition to the applicant.
In CVE Protest of Veterans Care Medical Equipment, LLC, after permitting CVE to correct the case file by adding hundreds of exhibits omitted from the original file and after permitting the challenged firm to submit additional evidence and a sworn declaration to correct an erroneous email, the OHA held that, at the relevant times for determining its status, the challenged firm was a standalone firm (rather than its previous form as a JV), which was majority-owned and controlled by an SDV and (based upon evidence OHA permitted the firm to submit in response to the protest even though the content was not precisely stated in the underlying agreements) the OHA held that the challenged firm was not unduly reliant upon a non-SDVOSB subcontractor but would comply with the "Limitations on Subcontracting" clause for the services portion of the mixed services and supplies contract that was primarily one for services under the assigned NAICS code.
In CVE Protest of Patriot Strategies, LLC, the OHA granted a protest against a joint venture's eligibility for an SDVOSB set-aside because the joint venture agreement: (i) did not itemize "all major equipment, facilities, and other resources to be furnished by each party to the joint venture, with a detailed schedule of cost or value of each,” as is required by 13 C.F.R. § 125.18(b)(2)(vi) and (ii) did not specify "the responsibilities of the parties with regard to negotiation of the contract, source of labor, and contract performance,” as required by 13 C.F.R. § 125.18(b)(2)(vii).
In CVE Appeal of Holistic Serendipity LLC d/b/a Native Ceuticals Tampa, the OHA upheld the denial of a firm's application for verified SDVOSB status because an affiliate agreement between the applicant and another firm imposed numerous restrictions on the SDV's control of the applicant.
In CVE Appeal of Komplete Systems Integrators, Inc., the OHA upheld a decision cancelling a firm's status as a verified SDVOSB because the firm did not show that there was good cause for its failure to timely submit required/requested information to verify its status.
In Matter of Strategic Alliance Solutions LLC, the OHA, inter alia, affirmed the decision that a firm was not eligible as an SDVOSB joint venture because it had had failed to comply with the regulatory requirements at 13 C.F.R. § 125.18(b)(2)(ii), specifically that initiating certain litigation under the JV agreement required unanimous approval, allowing the non-SDVOSB member negative control beyond extraordinary circumstances. Subsequently, the Court of Federal Claims disapproved of the decision and remanded it to OHA for further consideration, upon which the OHA reversed the decision.
In CVE Appeal of ING Unmanned Aerial Systems LLC, the OHA upheld the denial of a firm's application for verification as an SDVOSB because amendments to its defective Operating Agreement made by the applicant after the denial would not be considered by the OHC. The OHC also noted that the amended Operating Agreement still contained provisions that might prevent acceptance.
In
CVE Protest of Vet Reporting,
LLC, the OHA denied a protest against a firm's SDVOSB
status because, contrary to the protester's allegations, a Georgia court reporting license
was not a required
license under the solicitation at issue and none of the contract work would
take place in Georgia.
In NAICS Appeal of
Noble Supply & Logistics, LLC, the OHA held that in
a solicitation for logistic support services for Alaska, the Contracting
Officer's choice of NAICS code 493190 ("Other Warehousing and
Storage") with a $ 30 million annual receipts size standard was
preferable to contractor's choice of NAICS code 339999 ("All Other
Miscellaneous Manufacturing") with a 500-employee size standard
because the primary purpose of the solicitation was not to procure
supplies as the contractor claimed. In NAICS Appeal of
Laredo Technical Services, Inc., the SBA's OHA held that a
solicitation for "Medical Support Assistants / Administrative Professionals to perform a variety of technical support duties"
was more accurately described by appellant's choice of NAICS code 561110 ("Office Administrative Services")
than by the Contracting Officer's
designation of NAICS code 561311 ("Employment Placement Agencies").
In
NAICS Appeal of
Elevated Technologies, Inc., the OHA held that in
a solicitation for elevator repair and maintenance services,
the appellant's
proposed NAICS code 238290 ("Other Building Equipment Contractors") was preferable to
the Contracting Officer's
designation of NAICS code 811310 ("Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance"): NAICS code 238290 . . . covers construction projects that
"may include new work, additions, alterations, or maintenance and repairs."
. . . The NAICS Manual includes elevator installation as an illustrative example of the work considered under this designation.
. . . Generally, the construction sector contains construction, repair, and maintenance of new or existing structures. The description of the Repair and Maintenance Subsector notes that repair and maintenance related to buildings is included in the Construction Sector.
. . . Also within this sector is the installation or service of building equipment, including elevators.
. . . Here, the principal purpose of this PWS is to provide
"maintenance and repair of freight and personnel elevators."
. . . The PWS makes it clear that a contractor is required to maintain elevators by providing repairs, preventative maintenance, and service calls for elevators.
. . . Further, I find persuasive Appellant's argument that the services sought by this solicitation require a specialty trade contractor, as argued by Appellant, and should be designated under the construction sector.
. . . The descriptions of covered activity for this code and its industry group include the installation of elevators specifically, and maintenance and repairs generally. Further, the PWS requires qualified and trained personnel, and as argued by Appellant, specialty trade contractors best meet the PWS requirements and ensure public health and safety.
. . . [Citations omitted]
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