Appellant’s claim argued that the construction cost estimate for the statement of work had been negligently prepared and requested that the fixed fee rate specified in the contract be increased. . . . In contrast, the appeal raises two different arguments that merited an increase to the value of the contract: (1) the modified scope of work required increased design effort in preparing drawings, and (2) the modified scope of work required a greater number of drawings as compared to what appellant anticipated based on the original cost estimate. . . . On this record, we find that the arguments and relief sought in the claim are different than those in the appeal.

[W]e find no language that could be read to create a duty for MARAD to deliver any completed item of construction. Nothing states what specifically is to be built, where, or with what dimensions. Nothing identifies a deadline for delivery, or any binding timeline for any part of the project. Nothing identifies the cost for what MARAD is ostensibly delivering to Anchorage. Consistent with the 2003 Memorandum’s plain language, Cheryl Coppe, a former Anchorage official and one of the primary drafters of the 2003 Memorandum, . . .  testified that the 2003 Memorandum did not define any particular project structure to be built or any price, and that the decision of what was going to be built had not yet been made when the 2003 Memorandum was executed. . . .  The absence of any of these terms demonstrates that MARAD did not contractually promise to construct a port structure or to assure that one would be built through the 2003 Memorandum. 

In VSBC Appeal of Snowfensive LLC, the OHA overturned the denial of a firm's SDVOSB status because a provision in its Operating Agreement requiring the agreement of a "majority of members" must be read in light of the definition in the agreement that a majority of members meant members "holding more than 50% of the Sharing Ratios,” of which there was only one: the SDV.

In VSBC Appeal of Xebec, Inc., the OHA overturned the denial of a firm's VOSB status for alleged lack of control by the veteran because: (i) the veteran sat on the Board of Directors and was the majority shareholder in a situation where there were no supermajority voting requirements; (ii) according to the law of the state where the firm was registered, a simple majority was required for shareholder action, and the veteran, as the majority shareholder, clearly had the ability to control formal shareholder action; (iii) the applicable state law merely required a plurality vote to elect directors, and as the majority shareholder, the veteran had the ability to control the election of directors; and (iv) a provision in the Bylaws that informal action by the shareholders required the written consent of all shareholders was not a supermajority voting requirement but provided, as a convenience, an alternate mechanism for actions to be taken without a meeting, but did not enable the minority shareholder to block any action.

In VSBC Protest of Veteran Elevated Solutions LLC JV, the OHA denied a protest of  a firm's SDVOSB status because, inter alia,  its SDV provided persuasive evidence that his involvement with other firms did not interfere with his management of the firm to which he devoted his efforts full time during normal business hours every day of the workweek and on weekends as necessary.

In VSBC Protest of Blue Water Thinking, LLC, the OHA held that: (i) the fact that the SDVOSB member of a mentor-protégé JV had been temporarily listed as inactive by the controlling state agency (as a result of a clerical error) was not fatal to its status because the firm had been reinstated and that state's law provided that once reinstated, the reinstatement related back to, and took effect as of, the effective date of the dissolution and the firm thereby resumed carrying on its business as if the dissolution had never occurred; (ii) the assertion that the JV agreement failed to comply with the applicable requirements was unsupported and refuted by a point-by-point comparison of the JV's provisions to their counterparts in the controlling regulation. By the way, the sentence fragment in the first paragraph is not my mistake.

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.

No evidence in the record shows or even suggests that [the awardee's] president’s wife either provided any confidential information to, or communicated with, her husband regarding the solicitation or the incumbent contract. Further, the conflicted contracting officer played no role in any decision regarding the development and issuance of the solicitation, the evaluation of offers to the solicitation, or the subsequent contract award. [The agency] did not rely upon the alleged omission of [the awardee], and an OCI neither affected the award nor created the appearance of any impropriety. Therefore, the contracting officer’s conclusion, finding that the alleged appearance of an OCI was not disqualifying, was reasonable.

An LHA is an agreement between a labor organization and an employer before the union has been selected or recognized as the collective bargaining representative of the employer’s personnel. . . .  Under a typical LHA, the labor organization will give up its right to strike, and the employer will provide numerous concessions, including permitting the labor organization to recruit and organize its employees, remaining neutral in any organizing campaign, and providing employees’ names and contact information.  

The court holds 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 holds 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]

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.

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 Platinum Services, Inc., the Court of Federal Claims denied the plaintiff's application for EAJA fees because the plaintiff had lost on its claim that had by far the largest dollar value, and the Government's litigation position had been substantially justified on the novel question involved in the smaller value claim on which plaintiff had prevailed.  

In Utility Constr. Co., the court: (i) denied the Government's motion to compel the production of certain documents because the Government failed to demonstrate that there were any specific documents (or class of documents) that existed, but that the contractor had failed to produce, especially in light of the contractor's representation that it had produced all documents; (ii) denied the contractor's motion to compel production of certain documents concerning which it had not yet made a discovery request; (iii) denied the contractor's motion to compel responses to certain interrogatories because the Government had made substantial objections to those interrogatories; (iv) granted the contractor's motion to compel production of certain documents because the Government's response (that the Government would produce a universe of documents it deemed relevant) was improper; (v) granted the contractor's motion to compel the production of documents withheld due to an alleged deliberative process privilege the Government now concedes was baseless; and (iv) ordered the Government to show cause why it should not be sanctioned for withholding those documents. 

Ostensible subcontractor. Where a subcontractor that is not a certified VOSB or SDVOSB will perform the primary and vital requirements of a VOSB or SDVOSB contract, or where a VOSB or SDVOSB prime contractor is unduly reliant on one or more small businesses that are not certified VOSBs or SDVOSBs to perform the VOSB or SDVOSB contract, the prime contractor is not eligible for award of that VOSB or SDVOSB contract.

Here, the government made [the contractor's] phasing plan part of the contract when the contracting officer unilaterally modified the contract to incorporate the Final Design. . . . This modification adopted the substance of [the contractor's] VECP—its phasing plan and trailer reduction. . . . When the contracting officer executed Modification No. P00002 just one day after rejecting the VECP, she did so with full knowledge that [the contractor] considered its phasing plan to be a VECP. . . . Through this action, the government constructively accepted [the contractor's] VECP. Thus, we conclude that the government rejected [the contractor's] VECP, in form, but accepted it, in fact.

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]

Based on our review of the record, including the video of the December 8, 2022 meeting, the Board concludes that Woolpert did not have a reasonable basis to believe that the contracting officer was reconsidering her final decision. Rather, the record demonstrates that Woolpert simply refused to accept “no” for an answer. . . . At the December 8, 2022 meeting, the contracting officer and another USACE official informed Woolpert at least four times that the decision was final and that Woolpert could appeal the decision if it disagreed. The contracting officer also made it clear that she had agreed to the meeting only as a courtesy due to their past relationship and to assure Woolpert that USACE had thoroughly vetted the decision. While it is true that the contracting officer stated at the end of the meeting that she would speak with other USACE officials, she said this only after Woolpert continued to badger her. She never stated that she would reconsider the decision, and a Woolpert official acknowledged that the decision was final.

A middleman is not automatically an agent. While the Army did provide direction and authorization to [its contractor] in discrete situations, it also apparently intended to use [its contractor] "as a buffer between it and the claims of the subcontractors." [citation omitted] Thus, the agreements here have not created an agency relationship between [the contractor] and the Army, and [plaintiff] is not in privity of contract with the Government.

On appeal, the Federal Circuit — not sitting en banc, but in a panel decision — concluded that the "interested party" issue "presents a question of statutory standing rather than Article III standing," which is not a controversial statement per se. CACI, 67 F.4th at 1151.19 But the Federal Circuit then swept away decades of its own jurisprudence in holding that: (1) "[o]ur prior caselaw treating the interested party issue as a jurisdictional issue . . . is no longer good law[,]" id.; and (2) "the issue of prejudice is no longer jurisdictional unless it implicates Article III considerations, and our cases to the contrary are no longer good law[,]" id. at 1153 (emphasis added). With respect to the latter point, the Federal Circuit further explained that "[t]he issue of prejudice can properly be resolved by the Claims Court initially only if . . . the issue need not be remanded to the agency, for example, if the issue is a purely legal question." Id. at 1153-54 (emphasis added). Otherwise, "if the issue has not been addressed in the first instance by the contracting officer, a remand is necessary for the contracting officer to address the issue of prejudice." Id. at 1154.