In Next Phase Solutions and Services, Inc., an unsuccessful post-award protest seeking a preliminary injunction, the court held that: (i) the solicitation required offerors to provide a specific approach to meeting its requirements, rather than  the "analysis of alternatives" proposed by the protester (the "analysis of alternatives" being a task for the contractor after award); and (ii) the protester's proposed price was closest to the IGCE only because the agency had made a mistake in calculating its IGCE. 

In AccelGov, LLC, an unsuccessful post-award protest, the court held that: (i) it would not, as suggested by the Government and intervenor, initially address the protester's standing on each of its protest grounds individually, but concluded it had standing on its protest as a whole; (ii) there was a rational basis for the evaluators' assignment of a weakness where the protester's proposal either failed to address certain elements of the PWS or merely parroted its provisions; (ii) the assignment of a weakness to the protester's phase-in plan lacked a rational basis; (iii) the agency treated offerors unequally in only one of 10 areas complained of by the protester; and (iv) even if the agency had not made the two errors noted above and had disqualified the awardee for the material misrepresentation alleged by the protester, the protester still would  have received its "marginal" rating, would not have been selected for award over two higher-rated offerors, and, therefore, cannot show prejudice. 

In Thalle/Nicholson Joint Venture, an unsuccessful post-award protest, the court held that: (i) although the JV/plaintiff had standing to challenge the Government's determination that it was ineligible for award due to its failure to register in the SAM database, the solicitation clearly required the offeror to be registered in SAM, and the plaintiff only supplied evidence that each of the JV members was individually registered; and (ii) the fact that the Government had not noticed the problem until after discussions were concluded (and, therefore, had not raised the issue during discussions)  did not prejudice the plaintiff because the registration requirement had to be completed at the time of initial proposal submission.  

In Abacus Technology Corp. and Valdez Int'l Corp., which involved unsuccessful consolidated preaward protests against the elimination of two firms from advancing to the next phase in a multi-step competition, the court held, inter alia, that: (i) the incumbent/protester lacked standing on its claims that the agency had unauthorized communications with some offerors concerning their past performance in a later stage of the procurement and should have provided the protester with a more detailed preaward debriefing because at the time each of these events occurred, the protester had already been eliminated based solely on its price and was no longer under consideration for the award; (ii) the other protester's total evaluated price was so much higher than any proposal taken to next step of procurement and its ranking so much lower than those who advanced, it did not have standing to maintain any of its protest issues; (iii) the agency was not required to advance any specific number of proposals to the next phase; (iv) the agency was not required to evaluate additional proposals when some of those that made the original cut were found to have correctable errors; (v) communications with some offerors concerning past performance in Step 2, even if they constituted improper discussions, did not prejudice the protester because it already had been eliminated from the competition on the basis of price alone; (iv) the evaluation of professional compensation packages had a rational basis even though it was not exhaustively documented; (v) the agency's erroneous disclosure of labor categories used by incumbent/protester on its prior contract did not constitute a Procurement Integrity Act violation because (a) it was the agency that made the mistake, and (b) the information was contract performance data, not contractor bid and proposal information; and (vi) the amount of information provided by the agency to the protester in the preaward debriefing complied with the FAR's requirement. 

In Golden IT, LLC, an unsuccessful post-award protest, the court held that, although the protester established  the agency made several errors in both its Phase 1 experience evaluation and Phase 2 technical evaluation of the protester's submission, the protester was not prejudiced because even if all the errors were corrected, its price proposal still would be lower rated than those of all offerors selected for award. 

In DigiFlight, Inc., a successful post-award protest, the court held that the agency failed to conduct the rational price realism analysis required by the solicitation because: (i) assuming that two offerors would not both propose unrealistically low prices was irrational; (ii) there was no documentation in the record of the use of the price analysis tool the agency claimed to have employed; (iii) there was no evidence in the record to support the agency's conclusion that all three offerors' pricing demonstrated a clear understanding of the requirements; and (iv) the agency's conclusion that the level of effort and labor mix proposed by all the offerors was realistic lacked a rational basis because that conclusion did not involve any analysis of proposed pricing. The court also held that by failing to perform the required qualitative comparison of technical proposals, the Government had improperly converted a best value procurement into a lowest price technically acceptable competition. 

In Toni and Vin Hooper Property Management, LLC dba Hoover Properties, a successful post-award protest, the court held that in a solicitation for leased property:  (i) the Government failed to document the basis for, and to substantiate, its evaluation of tenant improvement costs for the protester and the awardee; and (ii) the protester had established prejudice from this deficiency in the evaluation. 

In Konecranes Nuclear Equipment & Services, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) requirements listed in the statement of work but not among the evaluation factors were not to be evaluated; (ii) there was a rational basis for the agency's price reasonableness analysis (i.e., comparison of prices to the IGCE); and (iii) the agency's responsibility determinations did not treat unfairly offerors unequally because the offerors were situated differently and thus could not have had identical procedures followed in making the determinations. 

In Thalin, LLC, an unsuccessful post-award protest, the court held that: (i) the agency correctly found that the protester failed to comply with a material solicitation requirement to describe in a particular place, inter alia, the percentage and type of work to be provided by its mentor; (ii) although the agency failed to document why the SSEB kept the protester's rating in the Staffing subfactor of the Technical evaluation as Acceptable despite deleting all four weaknesses the original evaluators had found, the protester did not establish prejudice from this error; and (iii) the SSA rationally evaluated the competing proposals in making the final source selection decision. 

In VSolvit, LLC, an unsuccessful post-award protest, the court held that: (i) reading the solicitation as a whole, a single reference to the "offeror's team" in the solicitation did not mean the Government was required to include subcontractors when evaluating an offeror's experience; (ii) any ambiguity on that point was patent, making a post-award protest untimely; (iii) in any event, the protester could not establish prejudice from the alleged ambiguity because the remedy would have been to allow the protester to submit a revised proposal, which would not be compliant because the protester lacked the required experience absent its subcontractors; (iv) there were rational bases for the agency's assignment of four weaknesses to other aspects of the protester's technical proposal; and (v) the price evaluation was conducted in accordance with the procedures announced in the solicitation and did not constitute an improper price realism analysis. 

In Allicent Technology, LLC, et al., which involved consolidated post-award protests by nine disappointed bidders against various aspects of the evaluations that had resulted in 15 contract awards, the court discussed each plaintiff's protest grounds separately and found that four of the nine protests merited requiring the agency to re-evaluate the successful plaintiffs' technical proposals. 

In STG Int'l, Inc., which involved two consolidated protests, the court sustained a protest against the protester's elimination from a phased competition because its Phase 1 proposal was not an offer, i.e., it could not be accepted to form a contract, and, therefore, the requirement for SAM registration did not apply until an offer subsequently was submitted. The court rejected the other protester's challenges to the price and past performance evaluations and to the conduct of discussions, mainly because the hurdles involved in such challenges are substantial. 

In Myriddian, LLC, a successful post-award protest, the court held that the awardee's proposal failed to comply with a material solicitation requirement (FAR 52.204-7(b)(1)) because its SAM registration had lapsed for a period of time after it submitted its proposal and before award was made (even though its registration was effective both on the date the proposal was submitted and the date when award was made). 

In Konecranes Nuclear Equipment & Services, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) requirements listed in the statement of work but not among the evaluation factors were not to be evaluated; (ii) there was a rational basis for the agency's price reasonableness analysis (i.e., comparison of prices to the IGCE); and (iii) the agency's responsibility determinations did not treat unfairly offerors unequally because the offerors were situated differently and thus could not have had identical procedures followed in making the determinations. 

In Samsara, Inc., an unsuccessful post-award protest, the court held, inter alia, that: (i) the awardee's participation in a prior pilot program was like an incumbent's prior performance, which does not give rise to an OCI and does not require the Government to neutralize the advantages gained thereby;  (ii) there was no unequal access to information OCI because other competitors had access to public information that was adequate to address the solicitation requirement in question; (iii) the agency took reasonable steps to mitigate any competitive advantage resulting from participation in the pilot program; (iv) the mere fact that some selection officials had participated  in the prior pilot program was insufficient to establish that they were tainted by bias in the absence of clear evidence of impaired objectivity that was sufficient to overcome the presumption that government officials act in good faith; (v) the assignment of a weakness to the protester's proposal regarding a cable that was not required until after award was not the use of an unstated evaluation criterion because the agency could, and did, evaluate the proposed approach for developing the cable; (vi) the agency did not apply unstated evaluation criteria in assigning a weakness for the lack of FedRAMP authorization because, although such authorization was not required at the time of award, the solicitation contemplated the agency would compare an offeror's FedRAMP status against the SOW's  requirements; and (vii) according to the language particular to this solicitation, the agency was not required to disclose all weaknesses to an offeror, but any discussions would only relate to additional information needed by the agency. 

In Aspire Therapy Services & Consultants, Inc., a successful preaward protest against the protester's elimination from the competition, the court held that the agency should have asked for clarification under FAR 15.306(a) to resolve a clerical error when the labor hours listed on two different spreadsheets in the protester's proposal did not match, especially where the clarification would not substantially affect the overall price or rating of the proposal. 

In Thalin, LLC, an unsuccessful post-award protest, the court held that: (i) the agency correctly found that the protester failed to comply with a material solicitation requirement to describe in a particular place, inter alia, the percentage and type of work to be provided by its mentor; (ii) although the agency failed to document why the SSEB kept the protester's rating in the Staffing subfactor of the Technical evaluation as Acceptable despite deleting all four weaknesses the original evaluators had found, the protester did not establish prejudice from this error; and (iii) the SSA rationally evaluated the competing proposals in making the final source selection decision. 

In Vectrus-J&J Facilities Support, LLC, an unsuccessful protest of the agency's decision not to expand the scope of corrective action in response to an agency protest, the court held that: (i) the awardee did not make misrepresentations concerning the contents of a novation package and its status at the time the awardee submitted its proposal; (ii) the agency properly credited the awardee with the past performance and experience of a predecessor firm that became awardee's subsidiary only after the projects that were credited to the awardee had transpired; (iii) nothing in the FAR prohibited the agency from treating a firm as a predecessor of the awardee or from considering its projects as "reasonably predictive" under the solicitation's evaluation scheme; (iv) the conclusion that the predecessor's contracts were reasonably predictive of the awardee's ability to perform the current contract was properly  based on a finding that the predecessor had transferred its assets and nearly all employees involved in performing those contracts to the awardee; and (v) there was no prejudice to the protester from the limited scope of the second corrective action. 

In Harmonia Holdings Group, LLC, an unsuccessful post-award protest seeking a preliminary injunction, the court held that: (i) the plaintiff filed suit within a reasonable time after learning of its grounds so the suit was not barred by laches; (ii) the agency properly documented every step in its evaluation; (iii) the agency applied evaluation criteria intrinsic to the announced factors, not unstated factors; and (iv) there were rational bases for the agency's assignments of weaknesses to the protester's proposal.

In DigiFlight, Inc., an unsuccessful, scattershot, post-award protest of a task order awarded to a BPA holder, the court held, inter alia, that: (i) the protester offered no support for its contentions that the agency failed to assign various strengths to its proposal, beyond expecting the court to reevaluate on its own; (ii) the DFARS debriefing requirement that the protester claimed the agency violated was not adopted until well after the solicitation was issued and was not made retroactive; (iii) the evaluated technical differences between the competing proposals were significant and had rational bases, which left price as the least important evaluation factor; and (iv) the regulations concerning BPAs did not render the successful offeror ineligible for award.  

In KPMG LLP, a successful post-award protest, the court held that when an offeror learned, after proposal submission, but prior to award, that one of its proposed key personnel intended to resign and notified the agency of this fact while continuing to attempt to change the employee's mind, the situation did not constitute the unavailability of that individual that would render the proposal unacceptable.  

In TekSynap Corp., an unsuccessful post-award protest, the court allowed supplementation of the record with depositions necessary for review of the protester's claim of material misrepresentation and then held that: (i) the use of the phrase "Proposal Manager" rather than "Program Manager" in one of the awardee's key personnel resumes was a typographical error, not a misrepresentation; (ii) the statement that the awardee's President would step down to perform as program manager once the contract was awarded was not a misrepresentation but was an accurate description of the awardee's plan; (iii) the protester did not show that the methodology the agency used to conduct the price realism evaluation failed to take account of relevant information, relied on irrational assumptions, or resulted in critical miscalculations; (iv) the agency did not mislead the protester during discussions by revealing that certain of its proposed rates appeared too low; and (v) the agency did not conduct unequal discussions with the competitors.  

In Harmonia Holdings Group, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) there was a rational basis for the agency's decision to assign the protester a low confidence rating for its technical approach and assign it risk for reduced capacity because the protester failed to explain why its staffing proposal was less than the agency's staffing estimate; (ii) it was arbitrary and capricious for the agency to assign a separate "Decreases Confidence" rating for protester's failure to include a QA role because the agency failed to consider an important aspect of the problem (the protester's substitution of a QA specialist with a full-stack developer, which allowed the proposed team to perform the required automated regression testing and other QA tasks); (iii) although there was a rational basis to assign "Decreases Confidence" to the protester's proposal for failure to utilize current employees as key personnel, the agency did not apply that same standard to other proposals; but (iv) the latter two errors did not the prejudice the protester (i.e., correcting them would not change the final outcome). 

In Air Borealis Limited Partnership, an unsuccessful post-award protest involving a solicitation for fixed-wing airlift support services to transport personnel and cargo across the North Warning System in the Canadian Arctic, the court held, inter alia, that: (i) the agency had a rational basis for concluding that, although lengthy, the protester's transition plan lacked the details required by the solicitation, and the agency had not evaluated the transition plans of the protester and awardee disparately; (ii) although the evaluation of the protester's zone coverage proposal was flawed, the protester was not prejudiced because there were valid reasons for disqualifying the proposal due to deficiencies in its transition plan; (iii) under Blue & Gold Fleet, the protester failed to timely protest the role of Canadian Commercial Corporation (CCC) in "endorsing" the apparently successful Canadian offeror; and (iv) the agency's actions in obtaining the CCC's endorsement and running contract payments through the CCC complied with the applicable DFARS regulation (225.870-3(b)).

In MC2 Sabtech Holdings, Inc., an unsuccessful post-award protest, the court dismissed the protest because the agency had a rational basis for its determination that the item being procured was a commercial product under the definition in FAR 2.101.

In Systems Dynamics Int'l, Inc., a successful post-award protest, the court held that the awardee's failure to meet the solicitation's material, minimum education requirements for multiple proposed personnel was a "deficiency" that rendered the proposal "ineligible" for award under the definitions in the solicitation.  

In Sparksoft Corp., an unsuccessful, scattershot post-award protest against an evaluation, the court held, inter alia, that: (i) the Contracting Officer did not ignore weaknesses identified by TEP in the awardee's proposal; (ii) the agency properly considered the superior relevancy of the incumbent's prior experience on the contract; and (iii) the agency properly considered the awardee's proposed staff under the appropriate evaluation factor and its staffing plan under another. 

In Navarre Corp., an unsuccessful post-award protest, the court: (i) rejected the protester's contention that the solicitation contained a definitive responsibility criterion concerning financial responsibility; (ii) found that the agency's conclusion that the awardee was financially responsible had a rational basis, and that bankruptcy materials not available to the agency at the time it made that determination were not relevant to the protest but were a matter of contract administration; and (iii) held that the protester did not provide evidence for its assertion that agency had misevaluated quotes or treated competitors disparately.  

In A. Prentice Ray and Assocs., LLC, an unsuccessful post-award protest seeking a preliminary injunction,the court held that: (i) the price realism analysis could include (a) limited use of the IGCE and (b) comparisons of one year of each offeror's unburdened labor costs; and (ii) the agency's determination that two offerors' unburdened labor costs were reasonable despite being significantly lower than the average of those of other offerors had a rational basis.

In Myriddian, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) the awardee's plan to employ a (key personnel) Medical Director part time, supplemented by an Associate Medical Director working full time, was permitted by the solicitation and, besides, the agency had considered the risks associated with this approach; (ii) the solicitation's vague requirement that the undergraduate degree of the Program Director should be relevant to the contract's purpose (Medicare related services) was sufficiently broad that an undergraduate major in psychology was acceptable; and (iii) the agency adequately considered the differences in ratings between the competing proposals in other areas of staffing and technical merit. 

In Greystones Consulting Group, LLC, an unsuccessful post-award protest employing various theories to attack the agency's interpretation that the evaluation criterion requiring a "single integrated platform" impliedly called for "a single user experience" in a solicitation for data management software, the court held that: (i) the agency did not utilize an unstated evaluation criterion but reasonably relied on a common industry definition of the evaluation term that other offerors understood and took into account in preparing their proposals; (ii) the plaintiff failed to provide substantial evidence supporting its contention that solicitation contained ambiguous terminology; and (iii) the agency did not evaluate proposals disparately--it rejected three other offers for providing the same solution the agency objected to in the plaintiff's proposal. 

In Eastern Shipbuilding Group, Inc., an unsuccessful post-award protest challenging almost every aspect of the agency's evaluation of the awardee's and the protester's proposals in a solicitation for a contract to build ships, the court held, inter alia, that: (i) there were rational bases for the agency's (a) assignment of a significant strength to the awardee's proposed production facilities (despite the fact that they had not yet been built) and (b) evaluation of the production risk of its proposed production approach; (ii) the agency could not have taken into account an alleged risk to the awardee's proposed schedule caused by additional vessels the awardee had been contracted to build by another agency because the contract option awarding this work had not been exercised at the time of the evaluation; (iii) the agency was not required to assign schedule risk under multiple evaluation factors and accounting for it as a production risk was reasonable; (iv) the agency's decision to evaluate the awardee's past performance as it improved over time (rather than giving more weight to earlier problems) was reasonable; (iv) the agency's evaluation of the awardee's price proposal had a rational basis, including the agency's decision to consider certain production line item prices as a group rather than individually, which vitiated the protester's argument that two individual line items suffered from unbalanced pricing; (v) because the agency found no unbalanced pricing, it was not required to conduct a pricing risk analysis; (vi) there were rational bases for the Government's evaluation of various and sundry aspects of the protester's proposal; (vii) the determination that the awardee was responsible reasonably relied on, and was limited to, standard sources of information for such reviews; (viii) although the awardee's certification in compliance with FAR 52.209-5(a)(1)(C) was inaccurate  in light of an Australian judicial proceeding, the inaccuracy did not rise to the level of a material misrepresentation, considering the findings in that proceeding; and (ix) the agency conducted a reasonable investigation of an allegation of an OCI involving the awardee's employment of former agency official, finding that no unauthorized person had access to significant sensitive source selection information and that even if the former employee had previously had access to  non-public proprietary information, it was unlikely he had retained it or that it would still be competitively useful in the contested solicitation, which was issued three years later. 

In Scott Technologies, Inc., an unsuccessful post-award protest, the court held that: (i) the agency record was sufficient to show the agency evaluated self-identified risks of the awardee's proposal, and the agency was not required to document its evaluation of specific risk elements to the level of detail advocated by the protester; (ii) interpreted in the context of the solicitation as a whole, a protested evaluation subfactor allowed the agency to reward the awardee for exceeding the required production output (delivery requirements); (iii) discussions should be individually tailored, so the fact that discussions with the offerors were not identical does not mean they were unequal or resulted in disparate treatment;  and (iv) the court would not substitute its judgment for agency's and (merely on the basis of the protester's highlighting its proposal's alleged merits to the court) assign the protester a strength where the agency did not do so, especially in an area where the awardee did not receive a strength either.  

In Fluor Federal Services, Inc., an unsuccessful post-award protest, the court held that: (i) protests that the agency should have utilized a multiple- versus a single-award BPA and that the agency should have considered past performance outside the period stated in the solicitation were both untimely under Blue & Gold Fleet; and (ii) the remainder of the protester's challenges to the evaluation were "mere disagreements with the Agency’s discretionary determinations. 

In Global K9 Protection Group, LLC, which involved consolidated post-award protests by two firms competing on a USPS procurement (and litigation that has lasted years), the court held that: (i) it would allow supplementation of the administrative record with written declarations on the issue of whether the challenged firm made material misrepresentations in its bid because those documents were necessary for effective judicial review of the protest allegations; (ii) the awardee intentionally made materially false statements about its past performance that the agency relied on in making its award decision; (iii) the Contracting Officer's post hoc conclusion that knowing of the misrepresentations would not have changed the outcome of the evaluation was arbitrary and capricious for failing to consider important aspects of the issue; and (iv) an injunction disqualifying the awardee from further performance would issue. The court concluded that the second protester who already had been disqualified from the competition due to an OCI had no standing to participate in this protest, even though it had appealed its disqualification to the CAFC and was awaiting a decision. The court also denied the protest allegation that the agency had not conducted meaningful discussions because the USPS' vague regulations about discussions do not create the same obligations as the FAR does.  

Sole Source/Small Business/Restricted Competitions