In Superior Optical Labs, Inc., which involved unsuccessful consolidated preaward protests, the court upheld the agency's rejection of the protester's proposals for two VA solicitations set-aside for VOSBs because they did not include the proper certification of compliance with the limitations on subcontracting rules required by VAAR § 852.219-76(d).

Evaluations/Discussions

In Samsara, Inc., a successful post-award protest, the court held that although the agency was not required to level the playing field by ignoring  a capability obtained by the awardee on a prior contract and properly downgraded the protester's proposal for failing to address one required area in the solicitation, the agency improperly used an unstated evaluation criterion to downgrade the protester's proposal for lacking a capability at award that it was not required to have until 180 days after award. 

In Aegis-KK/GardaWorld Federal Africa, a Joint Venture, a partially successful post-award protest, the court held that: (i) the agency's evaluation of the awardee's pricing was not objectionable because the solicitation did not require the level of granularity in pricing proposals alleged by the protester; (ii) although the solicitation did not require that a joint venture offeror have been in existence for a year, joint venture partners  existing under the same corporate umbrella did not satisfy the solicitation requirement that the partners have experience working together with one another for a year; (iii) letters from proposed key personnel expressing their interest in the contract and referring to their "agreement" with the awardee did not satisfy the solicitation requirement that offerors provide the actual employment agreements with  key personnel, and the agency failed to explain why it waived this requirement for the awardee, which requires the court to remand the matter to the agency for further explanation; (iv) the agency had a rational basis for accepting the awardee's explanation that it would meet the solicitation's licensing requirements within six months and the steps it would undertake to do so, especially given the nine-month period between the submission of offers and award; and (v) to the extent the awardee failed to provide sufficient information required by the solicitation concerning affiliates and officers, the failure was not prejudicial to the protester.  

In ASRC Federal Technology Solutions, LLC, an unsuccessful post-award protest, the court denied challenges to multiple aspects of the evaluation, holding: (i) where the solicitation explicitly informed offerors to base staffing levels on current requirements rather than historical levels, the agency's assignment of a weakness to the plaintiff's proposal in this area would not be second-guessed where the plaintiff's proposal was based on historical levels; (ii) there were rational bases for the assignment of a weakness to the protester's management proposal based on a perceived inconsistency between its proposed key personnel and that proposed approach; (iii) the agency rationally concluded the protester's proposal lacked sufficient information regarding its proposed labor categories to perform the work; and (iv) there was a rational basis for the agency's assignment of a strength to the awardee's organizational structure. 

In Health Net Federal Services, LLC, an unsuccessful post-award protest following corrective action, the protester attacked the evaluation of the awardee's proposed small business participation in multiple ways, but the court held that: (i) the agency's evaluation of the awardee's revised subcontracting plan, including goals and participation by proposed subcontractors, had a rational basis; (ii) the awardee's revised proposal did not include material misrepresentations as to its planned subcontract participation and commitments; (iii) during discussions, the agency adequately investigated various aspects of the awardee's proposal concerning its small business participation; (iv) the solicitation's subcontracting percentage was a goal rather than a requirement; and (v) there were rational bases for the agency's past performance evaluation related to small business participation and the agency's responsibility determination related to the awardee. 

In Ekagra Partners, LLC, et al., which involved unsuccessful post-award, consolidated protests of awards in each of two tracks in a solicitation for the award of multiple BPAs, the court held, inter alia, that: (i) the agency (a) had properly determined from looking at available information in public databases that certain proposed subcontractors were not small businesses under the only NAICS code assigned to the small-business-set-aside solicitation and (b) had not, thereby, conducted a "size determination" within the jurisdiction of the SBA; (ii) the agency correctly determined that it was not free to rely solely on the offerors' proposed small businesses' self-certification as small businesses under allegedly similar NAICS codes because the definition (scope) of a particular NAICS code is different from the size standard under that code; (iii) under Blue & Gold Fleet, the plaintiffs waived their argument that the solicitation was unclear as to how the NAICS code requirement would be verified by failing to protest until after award; (iv) the agency did not engage in disparate treatment by not reducing one awardee's self-score for using a large business subcontractor because awardee had properly scored it as a large business (while the protester had incorrectly scored it as a small business); (v) the agency had a rational basis for using the Federal Procurement Data System to verify whether an offeror's past performance references met the minimum required dollar value; (vi) even if the agency made mistakes in evaluating some of these references, only one failure was required and, therefore, the plaintiffs were not prejudiced by any mistakes; (vii) one of the plaintiffs lacked standing to complain that one awardee should have been declared ineligible because that plaintiff did not show it would have had a substantial chance of award had that ineligibility determination been made; (viii) the agency had a rational basis for finding a protester did not follow the solicitation requirement to propose labor categories "appropriate" for the required tasks; (ix) in most of the numerous cases alleged by the protesters, the agency did not apply unstated evaluation criteria and where there were errors, they were not prejudicial because there were other valid reasons the protesters were found ineligible for award; and (x) the agency's explanations for its findings of ineligibility were either adequate in the circumstances or, in the cases where they were not adequate, were non-prejudicial because there were other adequate reasons for finding the proposals ineligible for award. 

In Thalle Constr. Co., an unsuccessful post-award protest, the court held that: (i) the alleged inadequacy of a commitment letter from the awardee's proposed subcontractor was irrelevant because, in its revised offer, the awardee proposed to self-perform the work; and (ii) the awardee's revised proposal included the correct duration for its construction schedule. The court, however, found that the agency had not followed "best practices" in its imprecise description of its evaluations in both these areas, which had given the protester grist for its arguments and had made the court's job of assessing their validity more difficult. 

In L3Harris Technologies, Inc., an unsuccessful scattershot post-award protest, the court held, inter alia, that: (i) the agency properly evaluated the awardee's proposal in accordance with the stated evaluation criteria rather than the proposal preparation instructions; (ii) the plaintiff misinterpreted an evaluation criterion that applied to one subfactor as if it should be the standard for them all; (iii) the agency assigned a weakness to the awardee's proposal under the correct subfactor rather than the one espoused by the plaintiff; (iv) there was a rational basis for the weakness (rather than deficiency) assigned to one aspect of the awardee's proposal; (v) the allegation that the agency should have assigned multiple weaknesses, rather than a single weakness, to the awardee's proposal was mere quibbling with the agency's judgment, to which court owed deference; (vi) there was a rational basis for the agency's cost realism analysis, including the spare parts cost analysis;  (vii) there was a reasonable basis for the agency's evaluation of the awardee's costs associated with exercising options; (viii) the agency did not treat proposals unequally because the sections of the competing proposals in question were  not substantially identical; (ix)  the agency's evaluation was adequately documented; and (x) the plaintiff failed to allege the necessary hard facts demonstrating any agency impropriety in handling a possible issue of conflict of interest or unfair advantage. 

In SSI Claimsnet, LLC, and Availity, LLC, which involved unsuccessful consolidated post-award protests, the court denied the protesters' motions to supplement the administrative record with the results of evaluations from a similar, but separate, procurement that allegedly would have shown evaluation results inconsistent with the challenged evaluation in the current protests  and then held that: (i) under the agency's reasonable interpretation of the protester's less that perfectly clear proposal on this point, the evaluators' finding that the protester's proposed approach was "infeasible" had a rational basis; (ii) the agency treated one aspect of the protester's proposal unequally with a substantially indistinguishable aspect of the awardee's proposal but there was no prejudice because correcting that error would not have overcome the other technical advantages of the awardee's proposal; (iii) the agency's price reasonableness analysis had a rational basis, as did its finding that the protester's price was "unreasonable," making it ineligible for award, especially given that the protester's price was more than a standard deviation higher than the average; (iv) the agency's conclusion that the protester's pricing was unbalanced had a rational basis and was consistent with all applicable regs; and (v) the agency was not required to consider each of the awardee's CLINs separately in evaluating whether its pricing was unbalanced. 

In Eagle Hill Consulting, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) an erroneous spreadsheet initially filed by the Government in the administrative record was not the spreadsheet actually provided to offerors, and thus was not the basis for a protest; (ii) the solicitation was not ambiguous concerning the method the agency would use to conduct the price analysis; (iii) the solicitation contained a patent ambiguity concerning the information the offerors were to include on the pricing worksheet, which the protester failed to timely challenge under the Blue & Gold Fleet standard;  (iv) the solicitation did not require the awardee to provide a "crosswalk" between the labor categories in its offer and those in its GSA schedule contract, and the agency did review the two sets of information, which was all that was required; and (v) there was an adequate explanation in the record for the agency's evaluation of Corporate Experience, which court would not second-guess. 

In L3Harris Technologies, Inc., an unsuccessful scattershot post-award protest, the court held, inter alia, that: (i) the agency properly evaluated the awardee's proposal in accordance with the stated evaluation criteria rather than the proposal preparation instructions; (ii) the plaintiff misinterpreted an evaluation criterion that applied to one subfactor as if it should be the standard for them all; (iii) the agency assigned a weakness to the awardee's proposal under the correct subfactor rather than the one espoused by the plaintiff; (iv) there was a rational basis for the weakness (rather than deficiency) assigned to one aspect of the awardee's proposal; (v) the allegation that the agency should have assigned multiple weaknesses, rather than a single weakness, to the awardee's proposal was mere quibbling with the agency's judgment, to which court owed deference; (vi) there was a rational basis for the agency's cost realism analysis, including the spare parts cost analysis;  (vii) there was a reasonable basis for the agency's evaluation of the awardee's costs associated with exercising options; (viii) the agency did not treat proposals unequally because the sections of the competing proposals in question were  not substantially identical; (ix)  the agency's evaluation was adequately documented; and (x) the plaintiff failed to allege the necessary hard facts demonstrating any agency impropriety in handling a possible issue of conflict of interest or unfair advantage. 

In Anders Constr., Inc., a successful protest leading to a permanent injunction, the court held that there was no rational basis for any of the five reasons advanced by the agency to justify finding the plaintiff's proposal technically unacceptable following corrective action after finding it acceptable originally, e.g., (i) the protester's alleged failure to provide a "sample" completion report with its offer when the solicitation only required a completion report during contract performance, (ii) the protester's alleged failure to label certain documents submitted with its proposal in a certain way when the solicitation did not require them to be labeled, and (iii) the protester's alleged failure to provide a diver's certificate for a proposed employee when its proposal unambiguously labeled that individual as a Supervisor, rather than a diver. The court also held that it lacked jurisdiction over the protester's alternative claim under the Declaratory Judgment Act.  

In Trumble Constr., Inc., an unsuccessful post-award protest, the court held, inter alia, that: (i) under the key management evaluation factor, the evaluators reasonably assigned deficiencies to the protester's proposal for failing to demonstrate adequate experience of its proposed managers after the agency had communicated those deficiencies to the protester and had given it a chance to revise its proposal, and the agency was under no obligation to discuss the deficiencies with the protester further after it failed to adequately address the deficiencies in its revised proposal; (ii) similarly, the agency reasonably assigned a deficiency to the protester for failing to list its proposed subcontractors, as required by the solicitation, even after being given a second chance to do so following discussions; (iii) the agency reasonably assigned the protester a weakness for having only a vague schedule;  (iv) the agency had a rational basis in the record for amending the solicitation to extend the performance period; and (v) the agency rationally evaluated the awardee's price as fair and reasonable and was not required to compare it to the protester's lower price because the protester's proposal was unawardable and, therefore, the agency had no basis to determine that the protester's price was fair and reasonable.

In Safal Partners LLC, an unsuccessful post-award protest, the court held that, although the protest was timely under Blue & Gold Fleet and stated a sufficiently plausible claim to survive a 12(b)(6) motion to dismiss, the agency did not mislead the protester by allegedly changing the definition of "strength" from the list of strengths provided to the protester in an initial debriefing to the strengths found by the agency after a subsequent evaluation because "strength" was never a defined term in any version of the solicitation and the information regarding strengths initially provided to the protester was too nebulous to have a definition inferred from it. 

In HealthRev, LLC, an unsuccessful post-award protest, the court held that: (i) the agency properly evaluated the offer by a mentor-protégé joint venture under 13 C.F.R. § 125.8(e) by evaluating each member's strengths and weaknesses in order to determine the capability of the joint venture as a whole ("in the aggregate"); and (ii) the agency did not evaluate proposals disparately or apply unstated evaluation criteria.  

In PMCG CollaborateUp JV LLC, the court held that the Contracting Officer had erred in concluding a JV was ineligible for award based on the preliminary suspension of one of its members without investigating further when the firm had challenged the suspension and it was lifted before any task order awards were made.

In AccelGov, LLC and SLICOM JV, which involved consolidated protests, the Court of Federal Claims held that  one plaintiff's protest should be denied because there was no prejudicial error: (i) the solicitation did not require that "engineering experience" be limited to experience after receiving an engineering degree; (ii) there was no basis for challenging the agency's assignment of a strength for a proposed personnel's LEED training, especially where the protester was also assigned a strength for LEED "accreditation," and the solicitation required neither training nor accreditation; and (iii) there was a rational basis for agency to assign a strength for proposing a transition manager when the solicitation did not require one. As for the other plaintiff, the court held that the source selection document's trade-off decision, which merely recited that the awardee's price premium was worth it because of its technical superiority, without more, was circular and inadequate, and the case was remanded for another trade-off decision.  

In Barbaricum LLC, a heavily redacted (due to classified information), unsuccessful protest of the plaintiff's exclusion from the competitive range, the court held that: (i) under the deferential standard the court must utilize, the agency's evaluation (that the plaintiff's proposal for the production of Geospatial Intelligence was technically unacceptable) had a rational basis; (ii) the competitors' proposals were sufficiently different from one another in that area that the agency could not be found to have treated offerors disparately; (iii) the plaintiff's failure to provide an analysis in the area of "intelligence scenario response" required by the solicitation justified finding that its proposal was technically unacceptable in that area, too; (iv) even if agency engaged in disparate treatment in evaluating this latter section of the proposals, the plaintiff was not prejudiced because the agency had another basis for finding the proposal technically unacceptable; and (v) there was no good cause to supplement the administrative record as requested by the plaintiff. 

In AccelGov, LLC and SLICOM JV, which involved consolidated protests, the court held that  one plaintiff's protest should be denied because there was no prejudicial error: (i) the solicitation did not require that "engineering experience" be limited to experience after receiving an engineering degree; (ii) there was no basis for challenging the agency's assignment of a strength for a proposed personnel's LEED training, especially where the protester was also assigned a strength for LEED "accreditation," and the solicitation required neither training nor accreditation; and (iii) there was a rational basis for agency to assign a strength for proposing a transition manager when the solicitation did not require one. As for the other plaintiff, the court held that the source selection document's trade-off decision, which merely recited that the awardee's price premium was worth it because of its technical superiority, without more, was circular and inadequate, and the case was remanded for another trade-off decision. 

In RTD Middleburg Heights, LLC, a partially successful post-award protest of the agency's reevaluation in a procurement to lease building space, the court: (i) remanded the case to the agency for additional explanation of its price evaluation because agency had not not provided sufficient documentation to enable the court to evaluate the validity of the protester's claim of disparate treatment in the price reevaluation; but (ii) held that (a) the agency's use of cost-benefit analysis was permissible and did not prejudice the protester, and (b) the protester had failed to prove that it was prejudiced by the agency's admitted error of using the wrong midpoint-of-construction date in its price analysis. 

In Repeat Consultants Int'l, LLC, an unsuccessful post-award protest, the court held that: (i) the use of the word "exclusive" in multiple letters of commitment from fuel suppliers did not amount to a material misrepresentation by offerors as to the availability of fuel and did not render the  proposals technically unacceptable; (ii) during corrective action, the agency had adequately investigated the protester's Procurement Integrity Act allegations against its competitors and had a rational basis for concluding the allegations were unsubstantiated; (iii) the price realism analysis, which compared the three offered prices to one another, was adequate; and (iv) the agency used the correct standard in making its responsibility determinations and made an affirmative findings of responsibility.  

In Assessment and Training Solutions Consulting Corp., an unsuccessful post-award protest, the court held that the plaintiff could not succeed because its proposal employed the same font-size interpretation that it complained the awardee was allowed to use: "The pot may choose to call the kettle black, but it is a surefire way to lose a case." 

In Onésimus Defense, LLC, an unsuccessful post-award protest, the court held that: (i) the  agency had rational bases for its Past Performance and Confidence ratings based upon the (a) scope and (b) magnitude of the offerors' past performance references and did not treat offerors' disparately or apply unstated evaluation criteria; and (ii) the protest was basically just a subjective disagreement with the agency's ratings. 

In CAN Softech, Inc., an unsuccessful post-award protest of an FSS procurement conducted pursuant to FAR 8.4, the court held, inter alia, that: (i) the technical evaluation properly gave weight to the awardee's incumbency because the solicitation did not require the agency to neutralize the incumbent's natural advantage; (ii) the awardee's clear disclosure of planned staff reductions in option years in its Price Volume but not in its Technical Volume did not violate a solicitation requirement for "consistency" between the volumes, especially where the solicitation stated that pricing information would be available to the technical evaluators; (iii) the solicitation did not require a detailed comparison of the competitors' proposed full time employees, but rather only a qualitative assessment of degree to which each offeror's proposed staffing was consistent with meeting the contract's requirements; and (iv) although the record was unclear whether the agency conducted a qualitative level of effort assessment of the awardee's proposed full time employees, the protester had not established "significant prejudice" because changing the evaluation as protester desired did not compel the conclusion that the protester would then have had a substantial chance of award. 

In Hanford Tank Disposition Alliance, LLC, an unsuccessful post-award protest, the court held, inter alia, that: (i) a lapse in the eventual awardee's SAM registration in the original procurement was irrelevant because the agency undertook corrective action, which involved the submission of revised proposals and a reevaluation, and the awardee's SAM registration was effective on the date of submission of revised proposals and from that time through award; and (ii) the cost realism analysis was not objectionable for having examined proposals more fully than the proposal element specifically identified in the solicitation. 

In Two Knights Defense LLC, an unsuccessful post-award protest of an award following corrective action, the court held, inter alia, that: (i) the Government did not adopt inconsistent positions at court from its prior position at the GAO merely by inserting an ellipsis in solicitation language to emphasize which terminology in the solicitation's requirements the protester's proposal failed to address; (ii) the Government's language in its evaluation did not signify the use of unstated evaluation criteria because the pertinent words were present in the solicitation's evaluation scheme; (iii) the Government was not required to look to other sections of protester's proposal to fill in the blanks in the section that formed the basis for the negative evaluation; (iv) the evaluators properly faulted the protester's proposal for failing to discuss a required capability ("hybrid cloud computing environments") at all, and did not add a requirement concerning such capabilities; and (v) the Government followed the solicitation's evaluation scheme in assessing the relevancy of the protester's Past Performance references and was not required to elevate consideration of two elements of the relevancy evaluation (contract type and dollar value) above their status in the solicitation's stated evaluation scheme.  

In Tech Systems, Inc. a unsuccessful protest, the court held that, contrary to the protester's allegations, the Government's rationales for its technical and past performance allegations were sufficiently documented in the record, and the awardee's failure to provide  duty and cost descriptions for five out of 102 positions in its technical proposal was immaterial, especially where they appeared in the cost volume:

First, only five positions—out of 102—lacked duty and cost descriptions. . . .  [The Awardee] provided the costs for those five positions in its cost proposal, and the Army (in its cost-realism analysis) found that those positions matched with SCA/CBA positions. . . .  Third, the solicitation explicitly vested the Army with discretion in how to address technical uncertainties. AR 128 (stating that a proposal “may”—not must—be rejected for technical uncertainty); see also ITellect, LLC v. United States, No. 24-935 . . . (Fed. Cl. Oct. 21, 2024) (“While the use of the permissive ‘may’ does not confer plenary discretion to the contracting officer, in the absence of any prescribed standards . . . the government’s discretion is at its apex.”). Hence, the Army did not have to reject the proposal merely because [the awardee] did not list costs and duties for five positions. And contrary to [the plaintiff's] assertion that the Army had to provide a detailed explanation for why the defect did not render [the awardee's] proposal unacceptable, nothing in the solicitation required the Army to do so. 

In The Tolliver Group, Inc., an unsuccessful post-award protest, the court was faced with a protest by the original winner of the procurement which had been overturned because (in DigiFlight) the court had found the price realism analysis had been flawed. After corrective action, the original protester had been selected for award, and now the original winner is protesting the price reasonableness evaluation. The court held that (despite some errors in the agency's analysis): (i) using FAR 15.404-1(b)(2) to conduct a "robust"  price reasonableness evaluation (by comparing offered prices) was proper, as was the separate determination that adequate price competition existed. The court also held that the use of the IGCE was appropriate for the price analysis:

While "tie goes to the runner" may be an improper recitation of the rules of baseball, tie goes to the government may best describe this bid protest. . . .  For the reasons that follow, the Court determines that the protestor . . . has not met its burden to show the agency acted in a manner that was arbitrary, capricious[], an abuse of discretion, or otherwise not in accordance with law. Although [the protester] has demonstrated shortcomings with individual aspects of the price reasonableness analysis, it has not demonstrated that, as a whole, the price reasonableness analysis was irrational.

. . .

In sum, contrary to [the protester's] position, the contracting officer did not "[do] exactly what [the sources the protester relies on] say the government can never do—assume prices are fair and reasonable just because there is competition." . . . Rather, the contracting officer conducted a robust comparison of the offerors’ prices in which he broke down the prices and option periods compared to each other, found the composite labor rate, and compared the prices inclusive of the six-month extension option. . . .  That alone would be enough to satisfy the FAR. But the contracting officer further found there was adequate price competition. . . . This "normally" is a stand-alone technique to find prices fair and reasonable. See 48 C.F.R. § 15.404-1(b)(2)(i). . . . [The protester] has offered the Court nothing that satisfies [its] burden to show that the price comparison under FAR § 15.404-1(b)(2)(i) was irrational. [citations omitted] 

In AccelGov, LLC, an unsuccessful post-award protest, the court held that: (i) in a procurement conducted under FAR Part 8.4, the agency was not required to hold FAR Part 15 discussions before determining proposals were unacceptable, especially where the solicitation clearly stated the agency intended to award without discussions; (ii) the agency's evaluation of the protester's technical proposal was reasonable and would not be second-guessed by the court; and (iii) the protester had waived its right to object to the solicitation's personnel experience requirement by waiting until after proposals were submitted. Concerning the second holding, the court noted:

This Court routinely holds that contracting officers enjoy "broad discretion with respect to evaluation of technical proposals," and the Court typically does not “second-guess the technical ratings that the source selection committee gave to each offeror.” [citations omitted] However, unsuccessful offerors repeatedly ignore this. To again emphasize this important point, agencies exercise broad discretion when determining the scope of an evaluation factor. [Emphasis added] 

Sole Source/Small Business/Restricted Competitions

In Federal Performance Management Solutions, LLC, an unsuccessful protest, the court upheld the OHA's decision that a mentor-protégé JV was not small for the procurement in question because its bid was submitted years after the JV's two-year limit for submitting offers had expired pursuant to 13 C.F.R.  121.103(h). 

In Clean Team Janitorial Service, Inc., an unsuccessful protest by the incumbent contractor against the award of a follow-on set-aside 8(a) contract, the court held that: (i) although the plaintiff's reporting of alleged PIA violations was timely (because informal statements to its on-site janitorial staff would not be immediately imputed to the business owners),  the agency's two independent investigations finding no merit to the allegations were "more than sufficient"; (ii) even after correcting for admitted ministerial errors, the value of procurement fell below the amount that would require competition among eligible 8(a) firms; and (iii) regardless of its status at the beginning of this process, the awardee was an 8(a) certified joint venture by the time of the latest award to it after series of corrective actions undertaken by the agency in response to earlier protests. 

In ELB Services, LLC, which involved a challenge to a prior decision by the SBA's OHA that a joint venture was not an eligible SDVOSB, the court held that: (i) the plaintiff's motion to supplement the administrative record should be denied, in part, because it would include documents not considered by the OHA in its decision; (ii) the OHA did not err (a) by refusing to dismiss the underlying protest based on allegations of the protest's lack of specificity or (b) by failing to adopt the underlying SBA determination on the basis of collateral estoppel; but (iii) the OHA's decision (that a joint venture agreement was deficient for lack of specificity in defining its members' roles in the contract at issue) was based on an incorrect reading of 13 C.F.R § 128.402(c)(7), which requires only only a reduced level of specificity in the JV agreement whenever an indefinite contract is involved. The applicable sentence from the regulation reads as follows:

If a contract is indefinite in nature, such as an indefinite quantity contract or a multiple award contract where the level of effort or scope of work is not known, the joint venture must provide a general description of the anticipated responsibilities of the parties with regard to negotiation of the contract, source of labor, and contract performance, not including the ways that the parties to the joint venture will ensure that the joint venture and the certified VOSB or SDVOSB partner(s) to the joint venture will meet the limitations on subcontracting requirements set forth in paragraph (d) of this section, or in the alternative, specify how the parties to the joint venture will define such responsibilities once a definite scope of work is made publicly available.

In RBVETCO, LLC, an unsuccessful post-award protest involving a solicitation set aside for SDVOSBs, the court held that: (i) the agency properly evaluated the awardee's mentor-protégé JV under 13 C.F.R. 128.8(e) by examining the strengths and weaknesses of the JV members in the aggregate in accordance with the interpretation of that provision recently stated by the court in HealthRev, LLC; and (ii) the agency did not violate 13 C.F.R. 128.8(c) because that section applies to contract performance, not to pre-contract evaluation, and the awardee certified that it would meet all technical requirements, including that the protégé had the capability to perform the required 40% of the work, and there was no countervailing evidence available to the evaluators. 13 C.F.R. 128.8(e) reads as follows:

When evaluating the capabilities, past performance, experience, business systems and certifications of an entity submitting an offer for a contract set aside or reserved for small business as a joint venture established pursuant to this section, a procuring activity must consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously. A procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally. The partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems and certifications necessary to perform the contract. 

In Legacy Corporation of Illinois, an unsuccessful protest, the court held that the agency had a rational basis for (i) referring the plaintiff to the SBA for a CoC based on problems with the firm's past and ongoing performance and (ii) declining to consider plaintiff's offer further after the SBA declined to issue the CoC where the plaintiff had an adequate opportunity to respond to the Government's concerns at the SBA.  The court rejected the plaintiff's arguments that (i) the agency and SBA did not give adequate weight to the plaintiff's corrective actions for the problems and (ii) the agency was required to generate a CPAR before the matter could be referred to the SBA. 

In Superior Optical Labs, Inc., which involved unsuccessful consolidated preaward protests, the court upheld the agency's rejection of the protester's proposals for two VA solicitations set-aside for VOSBs because they did not include the proper certification of compliance with the limitations on subcontracting rules required by VAAR § 852.219-76(d). 

In Rotair Aerospace Corp., an unsuccessful protest against a sole source procurement, the court held that: (i) the available records demonstrated that the agency conducted a reasonable investigation (even though it was not as exhaustive as the protester maintained it should be) before concluding that the item being procured was proprietary to the sole source recipient and that the agency did not have data rights in it; (ii) although the agency violated FAR 9.207(b) by failing to provide the protester with timely notice of its removal from the approved sources list, the protester had not shown that the basis for its removal was improper or arbitrary, and since receiving the tardy notice of its removal, the protester had not sought to attain requalification, so it was unclear what the outcome of that process would have been, which precluded the court from finding that, had the agency timely notified protester of its removal as an approved source, the protester would have had a substantial chance at receiving an award (i.e., there was no proof of prejudice); and (iii) the protester failed to prove a clear violation of 10 U.S.C. § 3243, which provides instructions for establishing a qualification requirement, because the record did not show that the protester requested the qualification requirements for the sole-source items or that the agency refused to provide them, and while § 3243 (c)(3) provides that a potential offeror may not be denied the opportunity to submit an offer solely because the offeror is not on the qualified bidders list, this applies only when the potential offeror demonstrates that it or its product meets the qualification requirements or can meet such requirements before the contract award date, and the record does not show that the protester attempted to make such a demonstration for the either of the sole source items or that it was denied an opportunity to do so.  

Responsiveness/Late Bids

Corrective Action/Stay Pending Protest