2025 Procurement Review: Protests

Contents

Introduction

The GAO published 22 decisions sustaining protests on the merits (some of which were originally dated last year but not issued as redacted versions until this year).

The GAO sustained a preaward protest by The Mission Essential Group, LLC, finding that the use of lowest-priced-technically-acceptable (LPTA) source selection procedures for the acquisition was improper because the agency had not satisfied the following requirements of DFARS section 215.101-2-70: (i) the solicitation did not reasonably define the minimum requirements for the required services "clearly and comprehensively" or express the requirements "in terms of performance objectives, measures, and standards that would be used to determine the acceptability" of an offer; (ii) the agency had not established that “[n]o, or minimal value will be realized from a proposal that exceeds the minimum technical or performance requirements"; and (iii) there was no determination from the agency that the lowest price would reflect full life-cycle costs. The GAO was unimpressed and unpersuaded by the facts that the solicitation had been recommended by the agency's complexity analysis tool (CAT) or that the agency had used this model on other similar solicitations.

Flawed Evaluations / Lack of Meaningful Discussions

Both MicroTechnologies LLC and SMS Data Products Group, Inc. won their GAO protests against a task order award to Trace Systems Inc. The GAO sustained the protest by SMS Data Products Group, Inc. because: (i) in evaluating professional compensation, there was no explanation for the agency's adoption of a baseline of 8% below the incumbent's rates before proposed rates would be flagged, and the agency did not evaluate whether the lower rates were sufficient to "maintain program continuity, uninterrupted high-quality work, and availability of required competent professional service employees" as required by FAR § 52.222-4; and (ii) the agency failed to conduct the price risk analysis required by DFARS § 252.204-7024, specifically "a measure of whether a proposed price for a product or service is consistent with historical prices paid for that item or service." In MicroTechnologies LLC, in addition to finding the lack of the required price risk analysis discussed in its SMS decision, the GAO held that: (i) the agency unreasonably compared the awardee's proposed direct labor rates for professional personnel only to market data instead of to the incumbent's direct labor rates, as required by FAR § 52.222-4; (ii) the record did not contain a comparison of proposed fringe benefits to the incumbent's fringe benefits, as also required by FAR § 52.222-4; and (iii) in evaluating non-professional compensation in the parties' revised proposals, the agency ignored the solicitation requirement that it compare proposed rates to the incumbent's rates.

The GAO sustained a protest by Perimeter Security Partners, LLC, concluding that the agency unreasonably found a technical quotation unacceptable after assigning two deficiencies for pages from that allegedly exceeded a page count limit when the solicitation was latently ambiguous as to whether the items in dispute (charts) were among those that the solicitation indicated would be excluded from the page count and where both the agency's and the protester's interpretations were reasonable.

The GAO sustained protests by SynergisT JV LLC and VMD Systems Integrators, LLC dba VMD Corp. because the agency improperly disqualified the protesters for quoting based on their underlying FSS labor categories rather than the special item number (SIN) identified in the RFQ when the solicitation did not specifically limit quotes to that SIN.

The GAO sustained a protest by TISTA Science and Technology Corp. because the agency evaluated essentially equivalent quotations disparately in three areas, including surge staffing, surge staffing onboarding, and the use of a master schedule to track projects.

The GAO sustained a protest by Trace Systems, Inc. because the agency's evaluation of the awardee did not comply with the specific criteria in the PWS for evaluating the relevance of past performance.

Anika Systems, Inc. won its protest because, although the GAO denied quite a few of the protester's grounds for protest, it did find that the agency's evaluators treated the protester and the awardee unequally (a) in assigning only the awardee's proposal a positive finding for identifying significant goals of standards, structure, relative tools for work, security, and audit capabilities when the protester's proposal provided a similar approach, (b) in concluding that the protester’s proposal lacked "innovative visualizations," and (c) in assigning the protester's proposal a lesser rating in its approach to data automation when the awardee's proposal contained the same features.

In Centerra Security Services GmbH and Continuity Global Solutions, LLC, another case involving consolidated post-award protests, this one with mixed results, the court held that: (i) the agency properly followed the "late is late" rule by rejecting the awardee's revised proposal for being one minute late, without being required also to reject its initial, timely proposal, and by allowing the eventual awardee to participate in continued discussions and to submit further proposal revisions because its continued participation in the procurement would not prejudice other offerors and did not result in unequal treatment since all offerors had the opportunity to correct deficiencies in their proposals; (ii) the agency used unstated evaluation criteria (which its own evaluators stated were "in addition to" the recency and relevancy criteria in the solicitation) to demote one plaintiff's past performance rating; (iii) the agency did not treat that same plaintiff and the awardee disparately by giving the awardee a higher evaluation under the technical factor regarding required licenses and permits because, as the incumbent, the awardee would naturally have the advantage of already having such licenses and required certifications for its instructors; (iv) the source selection advisory committee had a rational explanation for giving the other plaintiff a lower score in the technical area than the initial evaluators had; and (v) the agency's evaluation of total proposed staffing numbers was not arbitrary, and its overall evaluation of the second plaintiff's management plan complied with the solicitation's evaluation scheme.

In BrightPoint, LLC, although the protester was unsuccessful on several of its protest grounds, the GAO found that the agency failed to provide meaningful rebuttals to the protester's allegations of various flaws in the Source Selection Evaluation Board's analyses, including allegations that the agency's positive findings regarding aspects of the awardee's proposal lacked a rational basis and that it treated offerors unequally. One would hope the reason for the agency's failure to respond was that there was no good response, and not just substandard advocacy.

The GAO sustained a protest by Owl International Inc., d/b/a as Global, a 1st Flagship Co. because the agency ignored the solicitation requirement to assess professional compensation plans in accordance with FAR § 52.222-46.

Although the protester did not win on all its protest grounds, the GAO sustained a protest by emissary LLC because: (i) the agency's evaluators admittedly erred in crediting the awardee's technical proposal with an Outstanding rating for fulfilling a solicitation requirement to propose the exact labor mix stated in the PWS when it clearly did not do so; (ii) the agency ignored a solicitation requirement to evaluate phase-in plans on a qualitative basis, turning that evaluation into a pass/fail evaluation and, thereby, ignoring qualitative advantages of the protester's proposal in this area; (iii) there was no basis in the record or even in the agency's post-protest justifications for the evaluators' conclusion that the awardee's proposed key person had the level of experience credited to him by the agency; and (iv) there was no indication in the record that the agency had considered the impact of the awardee's OCI mitigation plan on its previously-evaluated technical approach, which was changed by that plan.

The GAO sustained a protest by Island Peer Review Organization, Inc., d/b/a IPRO because the agency's evaluation was not insufficiently documented for the GAO to review how the agency had determined that the awardee satisfied the eligibility assessment on the merits and structure of its own organization as required by the solicitation.

Solvere Technical Group, LLC won its protest because: (i) the agency's interpretation of the Personnel Approach evaluation factor was directly contrary to the interpretation it had advanced (and the GAO had rejected) in another GAO protest concerning a substantially identical provision; and (ii) the fact that the solicitation specifically allowed offerors to submit TBD for proposed non-key personnel meant the protester should not have been penalized for doing so in the technical and cost evaluations.

The GAO sustained a protest by Tiger Natural Gas, Inc. because (a) the agency's heavily redacted documentation (redacted in spite of a protective order) was insufficient to allow the GAO to conclude that there was a rational basis for the agency's finding that the awardees' proposals were technically acceptable, and (b) post hoc declarations by an evaluator supporting the evaluation were not entitled to significant weight.

Markon LLC won its protest because, inter alia, the agency's cost realism evaluation of the protester's proposal was not conducted in accordance with the solicitation's requirements, relying, instead, on oral instructions given to bidders that were not incorporated into the solicitation.

Responsiveness, Late Bids, Expired Bids

The GAO sustained a protest by UNICA-BPA JV, LLC because, although the agency could have declared the firm ineligible for award for lack of a SAM registration at the time of its initial offer, the agency allowed it to remain in the competition and later to submit a revised offer after discussions, at which time it had a valid SAM registration. Similarly, the GAO sustained a protest by Metris LLC, B-422996.2, holding that it was improper for the agency to declare a firm ineligible for award for a break in its SAM registration between the time of its initial proposal and its final proposal revision because the final proposal revision extinguished the original proposal and the SAM registration was active at the time of the final proposal revision and from then through award.

Sole Source/Small Business/Restricted Competitions

In a decision involving statutory interpretation, the GAO sustained a protest by E.K.K. Investments, LLC, holding that in a solicitation (by means of an RFI) for fresh fruits and vegetables for resale at commissary stores in Korea, the agency could not establish a sole-source BPA without executing a J&A or soliciting offers from as many sources as practicable.

In Analysis, Studies, and Training International, LLC, and SOFIS-TRG, LLC (unsuccessful consolidated protests by two firms eliminated from a procurement set aside for women-owned small businesses (WOSBs) pursuant to a DoD class deviation, which required that offerors submit SAM certifications with their offers showing that they were WOSBs), the Court of Federal Claims held that: (i) the SAM registration and submission requirements were material terms of the solicitation (based on a detailed analysis of the meaning of the term "material") and, therefore, could be a basis for disqualifying an offeror; (ii) one firm's SAM registration mistakenly failed to identify it as a WOSB, and that firm's explanation for the mistake could not cure the problem; and (iii) the other firm's SAM registration lapsed for a few days between the submission of its offer and the award, which violated FAR § 52.204-7(b)(1)'s requirement applicable at that time that offerors must "be registered in SAM when submitting an offer or quotation, and . . . continue to be registered until time of award." Concerning this latter issue, the court held that a subsequent revision of the FAR provision was not retroactive, and the plaintiff had not submitted a "final proposal revision" even if such a revision could have cured the lapse in SAM registration.

Conflicts of Interest

The GAO sustained a protest by DirectViz Solutions, LLC, because the agency failed to adequately consider an impaired objectivity OCI arising from the awardee's work under a previously awarded task order, which would require the awardee to advise the agency on work in which it had a competing interest because of its role in the protested award.

The GAO sustained a protest by Castro & Co. because, in establishing a BPA: (i) the Contracting Officer failed to effectively investigate, consider, or mitigate the awardee's impaired objectivity OCI identified by the protester; and (ii) the agency failed to adequately document aspects of its evaluation of the protester’s quotation in the area of technical approach and, consequently, failed to establish the reasonableness of its evaluation.

Solutiions71, LLC won its protest because because the agency did not meaningfully consider the possibility of an impaired objectivity OCI created by the award of a task order for an enterprise level geographic information system to a firm whose corporate affiliate held a related contract that would require the affiliate to provide recommendations and review the firm's work under the order.

Corrective Action

Recovery of Costs

In Delphinus Eng'g, Inc.--Costs, the GAO recommended the reimbursement of the protester's costs attributable to its readily severable allegations concerning the impropriety of the best-value trade-off, which were clearly meritorious and concerning which the agency had unduly delayed taking corrective action, even though the protester had lost on several other grounds.

Court of Federal Claims

Timeliness/Standing/Jurisdiction/Automatic Stay

In Raytheon Co., Court of Federal Claims Judge Bonilla (seeking to provide some clarity on a jurisdictional issue courts have confronted without a clear standard so far) held that the court has exclusive Tucker Act bid protest jurisdiction over challenges to those "other transactions" and "other transactional agreements" defined in 10 U.S.C. §§ 4021–22 that involve "an acquisition instrument other than a traditional procurement vehicle intended to provide the government with a direct benefit in the form of products or services" [emphasis added] as opposed to those intended only to facilitate "the creation or expansion of a commercial market for the general public from which a federal agency or instrumentality might someday purchase."

In Siemans Government Technologies, Inc., the court denied the Government's motion to dismiss a protest seeking to recover the plaintiff's bid preparation costs on two canceled procurements for lack of jurisdiction due to FASA's bar on task order protests in the court because neither requirement in the statute (that the protest be (i) in connection with (ii) a proposed or issued task order) had been met: (i) the solicitation was redundant and could not be consummated because the Government was aware it already had a contract in place for the solicited services; and (ii) the plaintiff "has never sought to set aside or generally interfere with any pending or issued task order [and] only wishes to be made whole after being led astray by the [Government's] false procurement needs--a claim FASA does not bar."

The court held that, as a debarred individual, Dee Monbo, lacked Article III and statutory standing to protest an agency's refusal to consider her offer in response to a solicitation.

In Starside Security & Investigation, Inc., the court held that the rule that a protester is entitled to CICA's automatic stay only if the Contracting Officer receives notice of a GAO protest within 10 days of award can be equitably tolled and should have been in this case because the protester did not receive timely notice of award through no fault of its own and despite its diligent efforts to obtain that information.

In MVM, Inc. and Trailboss Enterprises, Inc., a post-award protest, over the plaintiffs' and the awardee's objections, the court granted the Government's motion to dismiss the case as moot because, after oral arguments in the underlying protests, but before the court's decision was issued, the agency (GSA) notified the court that it had canceled the solicitation (which the GSA was conducting on behalf of a division of Homeland Security (the Office of Refugee Resettlement or "ORR")) and had represented that it had no intention (or ability) to resolicit in the future in part because ORR had requested the return of its funding.

In CAN Softtech, Inc., the court dismissed (as moot) the plaintiff's challenge to the agency's sole source extension of a contract during a prior protest because that extension had expired and had been replaced by a bridge task order for which the plaintiff was not eligible to compete and which it had not challenged. However, the court also held that, while the agency's notice to the GAO in the prior protest that it would take corrective action by re-evaluating quotations in accordance with the solicitation's stated evaluation criteria had a rational basis in the record, nevertheless the case should be remanded to the agency for further explanation because the current record was not adequate to support the agency's subsequent decision to go beyond the re-evaluation, cancel the award to the plaintiff, and resolicit.

In Siemens Government Technologies, Inc., a suit for the recovery of the plaintiff's bid preparation costs in its unsuccessful bid for a task order award, which contained counts alleging both a CDA claim and claims under the court's bid protest jurisdiction, the court denied the Government's motion to dismiss the various counts. Specifically, the court held that: (i) FASA did not bar the plaintiff's claims because the plaintiff sought only to recoup the money it spent in its failed bid and did not challenge the issuance or proposed issuance of the task order; and (ii) the plaintiff adequately pled a count for breach of contract by alleging that the contract at issue gave the Contracting Officer the discretion to reimburse bid preparation costs and that he had abused that discretion in failing to do so in circumstances where the Contracting Officer had allegedly failed to perform several actions that would have facilitated an award to plaintiff.

In Brandt Development, the court dismissed the plaintiff's protest allegations because the plaintiff was not prejudiced since it failed to contest the agency's preaward determination that its bid was "not selectable" (beyond an unsupported allegation of an "improper technicality") and it waived its right to object to that preaward classification since it did not timely protest to the agency (taking nearly two years after award to do so). The court also dismissed the plaintiff's other claims of fraud by the awardee and improper contract administration after award because they were outside the court's bid protest jurisdiction.

In United Aero Group, LLC dba Arista Aviation Services, LLC, an unsuccessful post-award protest, the court held that, under FASA, it lacked jurisdiction over a protest of an agency's direction to a task order awardee to perform maintenance work at a challenged location because the FASA exception for task orders that fall outside the scope of the underlying contract did not apply to this situation, since, contrary to the plaintiff's allegation, the place of performance was within the area contemplated by the underlying contract and the task order, itself. The court also held that the agency's direction to the contractor under the existing task order to perform work at a permissible location did not require a Rule of Two analysis because it was a technical direction rather than a modification:

Critically, the Agency’s issuance of a technical direction to [the plaintiff] did not amount to a modification. Rather, the Agency directed [the plaintiff] to perform the services at the Sanford Hangar under the existing . . . Task Order "without adding additional manpower or funds." . . . Because the challenged activity did not rise to the level of a modification, the Court holds that the Agency was not required to conduct a separate Rule of Two analysis.

In Strata-G Solutions, LLC, the agency issued a two-phase solicitation utilizing its internal procedures rather than the FAR. Pursuant to those procedures, after phase one's evaluation, the agency advised offerors which of them were the lowest ranked and "unlikely" to be successful in phase two, at which point the plaintiff, being one of those lower ranked offerors, protested that (a) it was improper for the agency to solicit utilizing its internal procedures rather than the FAR, and (b) the agency had not evaluated the plaintiff's proposal in accordance with the solicitation's evaluation scheme. The court dismissed the first count for lack of standing and the second count as premature, both on the basis that because the phase one evaluation was only advisory and offerors so advised could still proceed to phase two, the plaintiff had not yet suffered any harm.

In CS 321 East 2nd Investors, LLC, an unsuccessful preaward protest of the minimum square footage requirement in a solicitation for leased office space, the court held that: (i) the plaintiff had Article III standing because the plaintiff's inability to meet the agency's allegedly improper square footage requirement would render it "unlawfully disadvantaged" in competing for award; (ii) pursuant to the "non-trivial competitive injury" standard applicable to this particular factual situation, the plaintiff also had statutory standing under 28 U.S.C. §1491(b)(1) because the other deficiencies in its proposal that the the Government alleges would make it ineligible for award have not yet been finally determined by the Contracting Officer since final proposal revisions have not been received; and (iii) on the merits, neither the USE IT Act nor the OMB Memoranda implementing the Act's requirements are procurement authorities and, therefore, could not be a basis for overturning the solicitation's minimum square footage requirement, which was not otherwise unreasonable.

In Hydraulics International, Inc., an unsuccessful preaward protest, the court held that despite the Government's "anemic" market research supporting its proposed sole source award, the plaintiff lacked standing to contest that award because the plaintiff was not capable of producing compliant contract items on the date the Government announced its intention to make the award.

In Active Deployment Systems, LLC, an unsuccessful post-award protest by the winner of one of the IDIQ contracts for detention-related services for ICE awarded by DHS, the court held that: (i) the solicitation's statement that the Government intended to award "5 or more contracts" did not mean only "approximately 5" contracts, and, therefore, the award of 42 contracts was unobjectionable; (ii) the plaintiff lacked standing to complain of the solicitation's pricing structure because the plaintiff was not prejudiced since it won an award for all the solicitation objectives that it proposed; (iii) the plaintiff's complaints about the allegedly flawed price ceilings in the solicitation were speculative, and the plaintiff would not be required to bid on any specific work with those allegedly improper ceilings; and (iv) the plaintiff, when asked by the court if it wished to withdraw its bid and seek bid and proposal costs, declined and stated it wanted to continue with its contract.

In Siemens Government Technologies, Inc, the court denied the Government's motion to dismiss (for lack of jurisdiction) the plaintiff's claim for its development costs in seeking a task order that ultimately was not issued under its IDIQ contract because FASA's bar does not apply where the claims are not “directly and casually connected” to the issuance of a task order and the requested relief would leave the task order unaffected. The court also denied (at this stage) the Government's motion to dismiss the bid protest claim that the Government breached the implied- in-fact contract to treat the plaintiff fairly in the task order procurement because the court had not yet decided the viability of the CDA claim so this bid protest claim remained a viable alternative theory.

In KL3, LLC, an unsuccessful protest of an agency's set-aside of two contracts for the 8(a) program, the court began its opinion with a lecture on the importance of alleging and proving prejudice in any protest, the failure of which doomed this one:

In order to successfully protest a government procurement, a protestor must demonstrate that the government agency committed an error in conducting the procurement at issue and that the error prejudiced the protestor. Although both of these requirements must be met, protestors regularly focus (sometimes exclusively) their protest pleadings and briefing on the former requirement, ignoring the equally important prejudice requirement. Many times, this strategy works as the prejudice created by an agency’s error is readily apparent. Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (“Often the circumstances of the case will make clear [that the error] . . . was harmful and nothing further need be said.”). But in instances in which the alleged prejudice caused by the error is not obvious, failure to allege in the complaint and then prove prejudice on the merits is fatal to a protestor’s case. As will be explained in detail below, prejudice in the instant protest falls into this non-obvious category and is fatal to the protestor’s case.

Despite the fatal ending to which failure to plead and prove prejudice in a bid protest leads, this is by far not the first time a protestor has offered only conclusory allegations and statements regarding prejudice in both its complaint and briefing on its motion for judgment on the administrative record. The Court is not sure if this failure to plead and prove how an error is harmful to the protestor is the result of protestors believing the errors they allege are so obviously prejudicial (even if they are not) that there is no need to allege or prove them or whether protestors simply think that prejudice is some technicality that a judge will fill in for them if an error has been proved. But filling in allegations and proof of a necessary component of a bid protest is neither a judge’s job nor even an appropriate task for a judge in our adversarial system of justice. Simply put, a protestor bears the burden of plausibly alleging in its complaint that an agency not only committed an error in the procurement process but that this error caused the protestor harm. Then, on the merits, it must prove both of these allegations.

Solicitation Language

In MVL USA, Inc., which involved successful consolidated protests by 12 construction companies, the court held that federal agencies' automatic mandate that prospective contractors enter project labor agreements with unions in order to be considered for federal construction projects exceeding $35 million based on E.O. 14063 is anticompetitive and arbitrary and capricious and violates the CICA directive that agencies must promote full and open competition in federal procurements unless a statutory justification is properly invoked.

In Brasfield & Gorrie, LLC, one of many recent cases involving Project labor Agreements ("PLA")-- this one a protest against an amendment to a solicitation for a large scale construction contract to add a requirement for a PLA pursuant to E.O. 14063--the Court of Federal Claims held, inter alia, that: (i) the agency's failure to identify the agency’s needs for a PLA specific to the procurement, its failure to analyze the benefits from a PLA requirement, and its reliance solely on executive order presidential policy to justify a PLA requirement were arbitrary and capricious; (ii) the PLA requirement effectively excluded bidders, and the agency failed to make a rational determination that the PLA requirement furthered the agency's needs for the solicitation to comply with CICA’s mandate for full and open competition; (iii) the agency's failure to invoke a statutory exception to CICA’s full and open competition requirement was arbitrary and capricious in violation of CICA; (iv) for these failures, the agency was enjoined from proceeding with the inclusion of the the PLA in this solicitation; but (v) the court lacked jurisdiction over the plaintiff's motions for a ruling from the court invalidating EO 14063 entirely for facially violating CICA and FPASA (and, therefore, Article II of the Constitution for exceeding the President’s statutorily-defined authority)

Responsiveness

In Science and Technology Corp., an unsuccessful post-award protest, the court upheld an award because the plaintiff had failed to provide required information in multiple sections of its proposal. Specifically, the court held: (i) there were rational bases for the agency's upward adjustment of the plaintiff's proposed costs in the cost realism analysis because the plaintiff failed to provide sufficient information to support them; (ii) the court would not accept the plaintiff's current explanations for its costs because they had not been included in its proposal; (iii) the agency was not required to hold discussions concerning the missing information where the solicitation clearly stated the agency did not intend to hold discussions and the solicitation clearly required the explanatory data the plaintiff failed to provide; (iv) the agency was not required to seek clarifications to allow the plaintiff an opportunity to cure deficiencies in its proposal; (v) there was a rational basis for the agency's evaluation of the plaintiff's proposal for Mission Suitability because, inter alia, the plaintiff's proposal lacked a clear explanation of how it would perform the contract requirements in this area; and (vi) there was a rational basis for the differing Past Performance evaluations of the plaintiff's and the awardee's proposals because the plaintiff had failed to provide relevant explanatory information in its proposal. Subsequently, the court of Federal Claims denied the plaintiff's request for a stay of the court's decision pending the plaintiff's appeal to the CAFC, finding, inter alia, that the plaintiff was unlikely to prevail on the merits of its argument that the agency should have decided to conduct discussions in this Part 15 procurement.

Evaluations/Discussions

In In DecisionPoint Corp., an unsuccessful post-award protest of the award in a SDVOSB set-aside procurement that permitted teaming with large business subcontractors, the court held that: (i) the respective functions of the awardee's team members were clearly stated and were in line with the solicitation's requirements, including the requirement that offerors demonstrate that they would "successfully integrate and coordinate all [contract] activities" under the contract, especially where the SDVOSB/prime contractor would fill all management positions, would comply with the limitations on subcontracting requirement by incurring more than 50% of the labor costs, and certified in its proposal that it agreed with all terms, conditions, and provisions in the solicitation, including the small business qualifications; (ii) the agency gave a rational explanation for its adjectival rating of the awardee's past work experience as "somewhat relevant" under the Past Performance evaluation, especially where the plaintiff conceded its own calculations of what the awardee's relevancy rating should be were wrong; and (iii) the agency followed the solicitation's requirement by evaluating the past performance of the awardee's team members as a whole, rather than separately, as suggested by the plaintiff.

In RELI Group, Inc., an unsuccessful post-award protest against a task order award in response to an RFQ for medical auditing services, the court held that the agency was not required to conduct discussions with all offerors because (a) this was a FAR Subpart 8.4 procurement, (b) the solicitation specifically disclaimed the use of FAR Part 15 procedures, and (c) the RFQ specifically contemplated discussions with "at most" two offerors. In these circumstances, the decision not to hold discussions with the plaintiff did not violate "fundamental fairness" because the award was made on the basis of the evaluation of initial proposals, and discussions were used only to confirm the initial evaluation.

In Orion Government Services, LLC, an unsuccessful post-award protest, the court held that: (i) the agency's evaluation of price reasonableness by comparing offerors' prices to the IGE and to one another complied with the FAR and was unobjectionable; and (ii) the Agency Record was sufficient to establish that the agency also evaluated offers for unbalanced pricing, even though the record did not include the details of that evaluation.

In AcmeSolv, Inc., an unsuccessful post-award protest, the court held that, viewed as a whole, the agency's Past Performance evaluation was not merely quantitative (which the plaintiff alleged violated the solicitation), but was qualitative as well, and the plaintiff undermined its allegation by offering its own quantitative analysis to argue that its past performance should have been evaluated more highly. The court also held that the plaintiff failed to show prejudice because, even accepting the evaluation it claimed its past performance deserved, it was only equal to the awardee in the Past Performance and Technical evaluations, while its price was significantly higher than the awardee's.

In Blue Water Thinking, LLC, an unsuccessful post-award protest, the court held that: (i) given the Contracting Officer's thorough (90+ page) trade-off analysis and the extended length of the procurement, her timing in conducting a prior OCI investigation and in seeking an OCI waiver and her prior reference to the eventual awardee as the "apparent awardee" did not amount to "pre-selecting" the eventual winner and, therefore, were not objectionable; (ii) the solicitation required only that unbalanced pricing be considered, and did not require a price realism analysis; (iii) there was an adequate basis in the record for the Contracting Officer's decision to accept the technical evaluation panel's rating of the awardee's proposal as "outstanding" in the third evaluation, when she had downgraded that rating to "good" in the second evaluation; and (iv) the competing proposals were not sufficiently identical to support the protester's claim of disparate treatment in the evaluation of technical capability.

In Thales USA, Inc., an unsuccessful post-award protest in a solicitation for a firm fixed-price contract to replace the Air Force’s legacy tactical air navigation systems with a new man-portable system, the Court of Federal Claims held, inter alia, that: (i) the D&F underlying the solicitation clearly stated the agency would not evaluate past performance, and past performance was not an evaluation criterion, so the protester's post-award complaint in this area was waived (Blue & Gold Fleet); (ii) the agency was not required to assign a weakness to the awardee in an evaluation factor that the solicitation clearly stated would be evaluated only as Acceptable or Unacceptable; (iii) the agency did not evaluate offerors unequally because the offers were not substantially identical in the areas complained of by the plaintiff; and (iv) the agency's price realism analysis was consistent with the solicitation's evaluation scheme and utilized acceptable methods of analysis.

In System Studies & Simulation, Inc., et al., which involved unsuccessful consolidated post-award protests in an acquisition of helicopter training support services, the court held that: (i) pursuant to the CAFC's decision in Oak Grove Technologies, the plaintiffs had waived their right to object to the agency's failure to conduct discussions as allegedly required by DFARS § 215.306(c), 10 U.S.C. § 3303(a)(2), or FAR § 15.306(a)(3) because the solicitation had made it clear that the agency did not intend to do so; and (ii) various weaknesses and deficiencies assigned to the plaintiffs' proposals had a rational basis and complied with the solicitation's evaluation scheme or were not prejudicial.

In GovWave, LLC, et al., the court dismissed a large group of consolidated preaward protests against the elimination of the plaintiffs in a preliminary stage of the evaluation process for failure to comply with one of what the solicitation repeatedly labeled as "Strict Compliance Requirements" (a statement on adverse past performance, a complete price model, and a complete equipment list) because the solicitation clearly and repeatedly (ad nauseum, actually) warned that any such failures would result in disqualification from further consideration.

In Warrior Focused Solutions, LLC, an unsuccessful post-award protest, the court held that: (i) under Blue & Gold Fleet, the plaintiff had waived its objection to the agency's failure to conduct discussions because it had not timely protested the unequivocal statement in the solicitation that there would not be any discussions; (ii) there were rational bases for assigning weaknesses in each of many areas challenged by the plaintiff in the evaluation of Mission Capability; (iii) there was a rational basis for rating the plaintiff's Small Business Participation plan as Good rather than Outstanding because the rating was based on a holistic evaluation rather than focusing only on an allegedly unenforceable teaming agreement, and according to the agency's evaluator who identified discrepancies in its proposal, clarification concerning some clerical errors among them should be sought only if the Government decided to enter discussions; and (iv) the Cost Realism analysis was unobjectionable because, inter alia, lacking any documentation, such as rate agreements or historical rates, to justify the newly formed JV's proposed overhead and G&A rates, the agency was justified in performing the cost realism analysis of the plaintiff by comparing its proposed rates to those of the two other offerors, which is an acceptable method under FAR § 15.404-1(c)(iii).

In Culmen Int'l, LLC, an unsuccessful post-award protest in a solicitation for threat reduction logistics services, the court held that the agency did not err: (i) in assigning the awardee a technical rating of "Outstanding" even though cost realism analysis had determined its proposed prices were too low because the solicitation required the cost and technical evaluations to be made separately; (ii) in evaluating the awardee's Past Performance because, contrary to the plaintiff/incumbent's allegation, the solicitation did not require each individual past performance reference to demonstrate experience in every aspect of the PWS; (iii) in assigning the plaintiff a weakness for failing to address replenishment requirements (and the agency did not evaluate the competitors unequally in this area because the awardee proposed a different approach than the plaintiff); and (iv) in adjusting the plaintiff's proposed travel costs upward during the price realism analysis because the plaintiff failed to include sufficient details of its travel plans for effective evaluation and substantiation of the validity of those proposed travel costs (especially given the significant variance between the plaintiff's proposed travel costs and the IGCE). The court also held that the agency took appropriate steps to investigate the plaintiff's claims of bias in an evaluation board member, removing one board member from the evaluation for the appearance of possible bias and retaining another member as a nonvoting member of the board.

In DevTech Systems, Inc., an unsuccessful, scattershot, post-award protest in a solicitation for a task order for technical professional staffing, the court held, inter alia, that the agency reasonably found that the awardee's proposal complied with the material requirements of the solicitation in all the areas challenged by the plaintiff, e.g.: (i) the awardee's reference to another section of its proposal in describing its approach to the Optional Tasks complied with the solicitation's instructions to be concise and to avoid repetition; (ii) the agency's evaluation of the awardee's pricing had a rational basis, especially where, pursuant to Blue & Gold Fleet, the plaintiff had waived its objection involving any patent inconsistency between the quantity of Optional Tasks listed in the Tasks Section versus the Payment Schedule of the solicitation; (iii) the awardee's proposal did not reserve a right to re-price the Optional Tasks at a later date, but merely recognized that they would be better defined after contract award; (iv) there was a rational basis for the agency's determination that the awardee's proposal concerning one task was a weakness, rather than a more serious deficiency, especially where the task in question was an immaterial requirement, and the plaintiff was not prejudiced by the agency's evaluation because the plaintiff's proposal contained the same weakness as the awardee's; (v) similarly, the agency rationally concluded that awardee's proposed project manager met the solicitation's qualification requirements, and, in any event, the plaintiff was not prejudiced because its own proposed project manager had the same type qualifications; and (vi) the awardee appropriately mapped its proposed positions to categories in its underlying MAS price list, and in any event, the plaintiff was not prejudiced because its own proposal contained the same infirmity as it alleged in the plaintiff's. The court also held that the plaintiff could not establish prejudice from the agency's alleged failure to evaluate professional compensation in connection with FAR § 52.222-46, and in any event, the plaintiff had waived that objection under Blue & Gold Fleet because the omission of that provision in the solicitation was a patent error. The court also held that the agency had not been required to conduct discussions and did not do so; and, even if the agency had undertaken discussions, it would not have been obligated to inform the plaintiff that its price was too high.

In 22nd Technologies, Inc., a successful post-award protest against the evaluation of the plaintiff's proposal, the court held that: (i) in concluding that the plaintiff had failed address one item under the Management evaluation factor, the agency's evaluators "simply . . . missed" the proposal's clear and properly placed discussion of that issue; and (ii) in evaluating the Staffing factor, the agency ascribed a weakness to the plaintiff's proposal language that was similar to that of other offerors whose proposals the agency had not faulted.

In Red Cedar Harmonia, LLC, et al., which involved unsuccessful consolidated protests concerning a solicitation under FAR § 8.405-3 seeking quotations for a single-award blanket purchase agreement ("BPA") for on-premises and cloud infrastructure support services, the court: (i) rejected the protesters' allegations that the Past Performance evaluators should have treated one of the awardee's references (an IDIQ contract) as a series of delivery orders since only some orders were placed within the solicitation's five-year recency window; and (ii) held that the protesters lacked standing to assert that only the part of the contract within the recency window should be counted because the protesters, themselves, submitted contracts only partially within the window and the agency had evaluated those contracts as a whole. The court also held that although the protesters were correct that, in conducting the price evaluation, it might have been wise for the agency to have done more than simply recognize that the awardee's significantly lower price was due to its stratagem of mapping less qualified workers to BPA roles, the agency was not required to do so either by FAR § 8.405-3(b)(2)(vi) or the solicitation because neither of them required a price realism analysis.

In Gemini Tech Services, LLC, a successful post-award protest of a task order award for logistics support services, the court held that by establishing the competitive range and opening discussions with all six offerors absent any analysis in the record of how or why the offerors were considered "the most highly rated" against the technical acceptability factor, the agency violated FAR § 15.306(c)(1).

In Professional Analysis, Inc., an unsuccessful post-award protest which involved interpreting a solicitation, the court held that: (i) where the solicitation expressly provided that minimum proposal requirements were identified by the word "shall," a proposal instruction merely requesting a certification was not a mandatory requirement; (ii) there was a rational basis for the agency's conclusion that the awardee's proposal contained only assumptions and reservations (which it adequately explained) but no exceptions to any material solicitation terms; (iii) there was nothing improper about a statement in the awardee's proposal amounting to a reservation of the right to seek a price adjustment, where the awardee did not state it had a right to receive such an adjustment; and (iv) by omitting any argument concerning alleged prejudice in its motion for judgment on the administrative record, the plaintiff waived all such arguments, and, therefore, had not established prejudice.

In Telesto Group, LLC an unsuccessful protest of the prototype phase of the Enterprise Business System-Convergence Program initiated under the Army’s “other transaction” (OT) authority pursuant to 10 U.S.C. § 4022 to develop a solution to consolidate five Army business systems and improve their efficiency, the court held that this OT program became one in connection with a proposed procurement (over which the court has Tucker Act jurisdiction pursuant to 1491(b)(1)) when the Army completed the prototyping process and determined both that the process was successful and that the Army would acquire the successful prototype through a follow-on production contract. Having established jurisdiction, the court: (i) denied the protester's claim that the Army had violated 10 U.S.C. § 4022(d)(1)(A) (which allows a DoD component to use an OT when "[t]here is at least one nontraditional defense contractor [NDC] or nonprofit research institution participating to a significant extent in the prototype project" [emphasis added]) because there was a rational basis for the agency's conclusion that, in the aggregate, numerous of the awardee's NDC subs would contribute significantly to the project; and (ii) denied the plaintiff's challenge to agency's amendment lowering the standards in an evaluation criteria for one stage of the OT because (a) the principles of Blue & Gold Fleet should extend to OTs, and the plaintiff failed to challenge the amendments when they occurred, and (b) the amendments lowered the standards for both competitors and, thus, treated the competitors equally, which meant the plaintiff could not show prejudice.

In Kropp Holdings, Inc., a successful post-award protest, the court was faced with a situation where (over a significant period of time during corrective actions) the agency repeatedly gave the awardee unwarranted chances to correct deficiencies in its proposal. The court held, inter alia, that: (i) the agency improperly accepted the awardee's untimely proposal; (ii) the agency conducted misleading discussions with the protester and treated the competing proposals unequally; and (iii) the agency irrationally attributed the awardee's corporate experience and past performance to a completely walled-off division created by the awardee to compete for the contract and relied on those flawed attributions in awarding the contract.

In Red River Science & Technology, LLC, an unsuccessful preaward protest, the court of Federal Claims held, inter alia, that: (i) even if another offeror's GAO protest were untimely, the agency was not precluded from declining to assert that defense and instead could choose to take corrective action by opening discussions based on that protester's allegations in order to improve the procurement; and (ii) even though the solicitation provided that "tak[ing] exception" to a rate-capping process "will render the Offeror’s proposal unacceptable" and that the proposal "will not be further considered for award," the agency was not precluded from including such an unacceptable proposal when it decided to open discussions; and (iii) where the agency already had determined the plaintiff's indirect rates were sufficiently supported, conducting discussions only with other offerors whose proposals needed further support did not amount to unequal discussions.

In Assured Consulting Solutions, LLC, an unsuccessful post-award protest involving a solicitation to establish a Blanket Purchase Agreement with a qualified small business to provide a range of IT capabilities, including cybersecurity and technical IT consultation, the court held that: (i) during a remand to permit the Government to recalculate its pricing analysis to eliminate prior errors in that analysis, the Government was not required to (and, appropriately did not) permit offerors to update their prices because that would have allowed a revision of pricing after having seen a competitor's pricing; (ii) the pricing re-evaluation corrected the errors in original analysis but did not change the competitors' relative price standing (which favored the awardee); and (iii) especially under the relaxed evaluation standards applicable to a FAR Part 8.4 solicitation and the broad discretion afforded an agency's evaluators, the protester's challenges to the agency's technical evaluation amounted to subjective disagreements, and the bases for that evaluation were rationally supported in the record.

In Advanced Technology Systems Co., a partially successful post-award protest involving a solicitation to provide Egypt with a maritime surveillance system via a foreign military sale, the court held that: (i) the protester was correct in asserting that the definition of a neutral past performance rating in the solicitation as neither favorable nor unfavorable applied to the evaluation of an individual offer and did not require the agency to consider a neutral rating equal to a satisfactory rating when comparing multiple offers in the best value trade-off analysis; (ii) the agency's system for evaluating the relevance of past performance references and the agency's actual explanation for its evaluation of those references were both indecipherable; and (iii) the agency engaged in an unequal evaluation by crediting one offeror with two satisfactory past performance references when it and its sub both worked the same contract but not doing so for the plaintiff in the same situation. The court also held there were rationale bases for four other aspects of the evaluation with which the protester disagreed. The court found that national security concerns outweighed the protester's request for an injunction, and, therefore, the court remanded the case to the agency to provide clearer explanations (if it could) to address the areas of concern highlighted by the court in its decision.

In Golden IT, LLC, an unsuccessful post-award protest, after a detailed analysis of the standards of review under the APA in various sorts of protests, the court held that: (i) the Government reasonably determined that there was a rational basis for the agency's conclusion that the protester's proposed key personnel lacked required qualifications, and the agency's determination was adequately explained in the administrative record; and (ii) in any event, the protester had not demonstrated prejudice because: "This the Court thus finds, as a matter of unrefuted fact, that [plaintiff's key personnel's] experience is fatally lacking, just as the [agency] found (notwithstanding that its stated rationale is not as fulsome as it could have been). Simply put, [plaintiff] proposes no calculation of [plaintiff's key personnel's] IT experience to counter the [agency's] or intervenors’ calculations" that the experience was lacking.

In Gemini Tech Services, LLC, an unsuccessful post-award protest concerning a solicitation for contract to perform maintenance, supply, and transportation support services for Fort Knox, the court held that: (i) under standard dictionary definitions of the terms "committed" and "abide by," the agency reasonably concluded that statements in the protester's proposal that it was "committed to" and would "abide by" its proposed overhead and G&A rates (which were below its historical rates) unambiguously violated the modified solicitation's prohibition against capped rates; (ii) where the solicitation specifically permitted it, agency was entitled to waive the results of the preliminary "strict compliance review" after having conducted it; and (iii) the agency did not treat offerors disparately with regard to the prohibition on capped rates because the record did not support the protester's contention that the awardee had proposed such a cap.

In TISTA Science & Technology Corp., an unsuccessful post-award protest of a contract for IT services, the court held that: (i) under the deferential standard the court must utilize in weighing challenges to OCI investigations, the plaintiff did not establish that the Contracting Officer (a) failed to consider certain facts critical to the OCI issue, (b) relied on spurious factual findings (i.e., facts not supported by the administrative record), or (c) reached conclusions that were not supported by her factual findings; and (ii) the plaintiff's claims of disparate treatment in the evaluations of various sections of competing proposals failed because those allegations required the court to second guess evaluations left to the discretion of the agency, and the proposals were not "substantially indistinguishable" in any of the challenged areas.

In SOFITC3, LLC, an unsuccessful post-award protest of a firm fixed-price contract for cyber-security services, the court held that: (i) the plaintiff's and defendant's disparate interpretations of the meaning of the word "engagements" in the solicitation were both within the zone of reasonableness, and the plaintiff had waived its right to protest based on this patent ambiguity by failing to raise the issue until after award; (ii) the court would not disturb the agency's discretionary evaluation that the awardee's corporate experience (engagements totaling $30 million over 3 years) was sufficiently close to the solicitation's statement of roughly $50 million over five years, especially where the protester did not explain how it arrived at its alternate calculation; (iii) the agency's evaluators did not engage in disparate treatment of the competing proposals because, despite some similarities, the proposals were not substantially indistinguishable; and (iv) the agency was not required to reject the awardee's proposal that was found to have a "weakness" in the staffing approach factor, especially where the agency had evaluated the protester's proposal as "Low Confidence."

In NARCORPS Specialties, LLC, an unsuccessful post-award protest involving a contract to provide role-playing support services for a TSA training center, the court held that: (i) despite the use of the word "experience" in the Introduction to the SOW, the solicitation's evaluation criteria clearly did not contemplate the evaluation of experience under the Technical evaluation factor, but instead under the Past Performance factor, where it had been, in fact, properly evaluated; (ii) given the high degree of deference afforded an agency's evaluation of Past Performance, the court would not disturb the agency's conclusions that the awardee's past performance references included previous contracts that were similar in size, scope, and complexity to the one contemplated by the current solicitation; and (iii) a statement in an Appendix to the solicitation that the "Government may reject any quote that is evaluated to be non-compliant with the solicitation requirements or reflects a failure to comprehend the complexity and risks of the work performed" was distinguishable from statements that other court decisions have found to imply a requirement for a price realism analysis (in part, because there was no mention of the word "price" in this statement).

Competitive Innovations, LLC is an unsuccessful post-award protest of the disqualification of the plaintiff's quote in response to a TSA solicitation for BPAs to be issued to GSA MAS contract award holders. The court based its denial on the facts that despite multiple opportunities provided by the agency to revise a quote that did not meet the solicitation's requirement that all proposed labor categories must map to the quoter's MAS contract, the plaintiff failed to do so (indicating, instead, that it was requesting the GSA to modify one of the labor categories); and then the agency properly rejected (as late, pursuant to the "late is late" rule) the plaintiff's revised quotation that arrived on the date for submission of revised proposals, but two hours after the time limit set for submissions. The court specifically rejected all of the protester's arguments that: (i) FAR § 52.212-1(f)(2)(i) (the "late is late" rule) did not apply to this procurement; (ii) the agency should have extended the deadline for receipt of quotes; (iii) the requirement that the labor categories already be on the MAS contract at the time quotes were submitted was an unstated evaluation criterion; and (iv) the plaintiff's original job description was close enough to the solicitation's requirements that it should not have been a cause for rejection by the agency.

In Wave Digital Assets, LLC, an unsuccessful post-award protest of a contract to manage seized cryptocurrencies, the court held that: (i) there was a rational basis for the agency's disqualification of the plaintiff's proposal for failure to comply with a solicitation requirement that it remain capable of taking custody, and managing, all types and quantities of crypto currency throughout the performance of the contract, even after the agency gave it an opportunity to correct its proposed plan in this area, and the plaintiff could not complain of the short turnaround time the agency permitted for it to correct the plan, especially where the plaintiff had refused to do so; (ii) the agency did not treat the offerors unequally in this area because the awardee's proposal was not indistinguishable from the plaintiff's; and (iii) (although this portion of the decision was heavily redacted) the court would not disturb the agency's conclusion that the risk of an OCI involving the awardee was minimal.

In Jacobs Eng'g Group, Inc., which involved a Brooks Act procurement for a multiple-award IDIQ contract for A-E services pursuant to FAR subpart 36.6, in which the plaintiff complained that it was not among the offerors selected for final negotiations, the court held, inter alia, that: (i) the agency's evaluation of the qualifications of proposed personnel in the categories and the priority of professional disciplines stated in the solicitation complied with solicitation's evaluation scheme and did not rely exclusively or mechanically on adjectival ratings; (ii) the agency did not utilize unstated evaluation criteria or evaluate substantially identical proposals disparately; and (iii) the protester's allegations of how it would have been evaluated had its suggested methods of evaluation been utilized was speculative and was not sufficient to establish prejudice.

In National Energy Security Operations, LLC, an unsuccessful post-award protest of a contract to manage and operate the Strategic Petroleum Reserve, the court held, inter alia, that although the agency had applied an unstated evaluation criterion by evaluating the protester's CAS approach against a special contract provision (that was only supposed to apply post-award) instead of the evaluation criterion in the solicitation, the protester was not prejudiced because the awardee's proposal was so superior in other respects that correcting this error would not have changed the award decision.

In American Tech Solutions, LLC, an unsuccessful post-award protest, the court held that: (i) the solicitation did not require quoters to separately identify their proposed costs for contractor acquired property; (ii) although the cost evaluator admittedly erred by increasing the awardee's total proposed labor hours per full-time employee in the option years to account for a perceived discrepancy between the awardee's pricing narrative and its pricing workbook, the error was not prejudicial because the change (a) was only communicated to the technical evaluation team and was not used in the price evaluation and (b) did not change what the awardee's technical evaluation score would have been without the error; and (iii) there was a rational basis for each of the three "merits" the evaluators had assigned to the awardee's technical proposal.

In Pacific Engineering, Inc., a post-award protest of a contract to produce MK 41 Vertical Launching Systems canisters, where the awardee's technical superiority had been found to justify its higher price, the court held that there were rational bases for the agency’s assignment of each of four weaknesses to the plaintiff's technical proposal, and, in each area of weakness, the agency (a) had neither employed unstated evaluation criteria nor engaged in disparate treatment of proposals by rating them differently in areas where they were not indistinguishable and (b) had engaged in meaningful discussions with the plaintiff.

In Cosette Pharmaceuticals, Inc., a successful post-award protest, the court held that the allegedly excessive cost of a brand name drug from a compliant country is not among the recognized exceptions allowing purchase of a cheaper generic drug that is not from a compliant country under Trade Agreements Act.

In ITegrity, Inc., an unsuccessful post-award protest by the incumbent, the court held that in accordance with the solicitation's Past Performance evaluation scheme, the agency (a) properly considered the two (of three) plaintiff's references the agency found relevant, (b) did not penalize the plaintiff for the reference found irrelevant, (c) evaluated the two relevant references as a whole, including subcontracts, and (d) was not required to limit its evaluation to the single most relevant reference submitted by the plaintiff (its incumbent contract), especially where the current solicitation exceeded the prior contract in scope and complexity. The court found that, in any event, the plaintiff was not prejudiced by the Past Performance evaluation adjectival rating because the best value trade-off specifically found the awardee's Past Performance submission to be superior, and the plaintiff's lower price was evaluated (as the solicitation required) as significantly less important than Past Performance:

In reviewing an evaluation of past performance information in a negotiated procurement, "the greatest deference possible is given to the agency – what our Court has called a 'triple whammy of deference.'" Gulf Group Inc. v. United States, 61 Fed. Cl. 338, 351 (2004) (quoting Overstreet Elec. Co. v. United States, 59 Fed. Cl 99, 117 (2003))

Sole Source/Small Business/Restricted Competitions

In WP Health Consulting, LLP, an unsuccessful protest, the court held that in eliminating the plaintiff from a competition by finding its proposal was not ranked high enough to merit inclusion in the competitive range in Phase II of the competition, the agency was not required by FAR § 19.601(c) and 13 C.F.R. § 125.5 to submit the proposal to the SBA for a CoC determination because the agency did not evaluate the offer on a "non-comparative" (e.g., pass/fail, go/no go, acceptable/unacceptable) basis, and, in any event, the plaintiff was not prejudiced because it was the lowest ranked offer among all those that had made it to Phase II before the agency selected the competitive range, and it failed to explain how its relative standing among the offerors would have improved had the SBA issued a CoC.

In Daniels Bldg. Co., an unsuccessful protest of a prior SBA OHA decision, the court upheld the OHA's finding that the challenged SDVOSB member of a team performing a construction contract would not violate the ostensible subcontractor rule because it would perform the primary and vital requirements of the contract, which, in the case of construction contracts, are "the management, supervision and oversight of the project, including coordinating the work of various subcontractors, not the actual construction work performed." 13 C.F.R. § 121.103(h)(3)(iv). The court also held that: (i) the issue of whether the contractor was unduly reliant on its team member/sub was properly before the OHA; and (ii) its analysis of that issue was unobjectionable.

In Hydraulics Int'l, Inc., an unsuccessful preaward protest mainly alleging deficiencies in the agency's market research, the court declined to issue a preliminary injunction against a proposed sole-source award for helicopter aviation ground power units, finding that the plaintiff was unlikely to succeed on the merits because it had failed to provide sufficient evidence that its units could meet the solicitation's requirements or that it had the production capability to provide compliant units within the required time frame.

In Veteran Elevated Solutions, LLC, the court remanded the case to the OHA because its prior decision did not adequately explain how the Administrative Judge had reached his conclusion that an SDV had the requisite control of the challenged SDVOSB.

In The DaVinci Co., LLC, a successful post-award protest, the court held that in a procurement for a prostate drug set aside for small businesses after obtaining a waiver of the non-manufacturer rule, the agency had violated the Trade Agreements Act by awarding the contract for a drug manufactured in India after the Made in America Office had granted a nonavailability waiver.

In Multimedia Environmental Compliance Group JV, the court upheld a prior decision by the SBA's OHA finding the plaintiff to be an ineligible mentor-protégé JV in a procurement of environmental compliance engineering services. Specifically, the court held that: (i) the OHA had employed the correct standard of review in reversing the Area Office's initial findings; (ii) the OHA correctly applied the version of 13 C.F.R. § 125.8(b)(2)(ii) applicable at the time the solicitation was issued to conclude the JV agreement did not provide the protégé with adequate control over contract performance; and (iii) the OHA had adequately considered all relevant evidence in making its findings.

In GovCIO, LLC, et al., although the court found that the Administrative Record did not contain an adequate justification for the agency's contention that an urgent and compelling need existed for a sole-source bridge contract (task order) for scanning and digitizing incoming tax filings and correspondence in order to meet the requirements of Executive Order 14247 ("Modernizing Payments To and From America’s Bank Account"), it also noted that the Government had filled in the gaps in the record during the briefing of the protest, so the court denied the consolidated plaintiffs' request for an injunction and remanded the case for 30 days to permit the Government the opportunity to plug those holes in the Administrative Record: "On remand, the Agency shall, consistent with this ruling, either provide (1) a fulsome explanation of the Agency’s reasoning at the time of the agency action, or (2) render a new agency decision regarding its justification to limit competition of the . . . task order based on FAR 8.405-6."

In Vinsys IT Hub LLC, an unsuccessful protest, the court held that under 13 C.F.R § 124.3, the agency had properly established that the solicitation was for a new, rather than a follow-on, contract, and, therefore, under 13 C.F.R. § 124.504, the agency was only required to notify the SBA that the new contract would not be an 8(a) set-aside, rather than obtaining the SBA's approval, which would have been required were the new contract a follow-on to the previous 8(a) contract.

Responsiveness/Late Bids

Corrective Action/Stay Pending Protest

In Zolon PCS II, LLC, an unsuccessful protest of corrective action, the court held that, during corrective action, the agency's amendment of a solicitation to incorporate a recent revision of FAR § 52.204-7 (which eliminates the requirement that offerors have a continuous SAM registration from the time of offer through award) was authorized by FAR 1.108(d)(2) because the agency intended to make new awards after the amendment, and the amendment was not "impermissibly retroactive." The protester had won an earlier protest against the agency's first try, which was to incorporate a deviation of the prior FAR rule in order to permit offerors that otherwise would have been disqualified by a lapse in their registrations to continue to compete.

In MVL USA, Inc., et al., the court denied the consolidated protesters' motion for a permanent injunction because the Government's corrective action (in response to a prior successful protest) followed the court's recommendation and eliminated the requirement for a project labor agreement in all the protested solicitations either by deleting the requirement or by canceling the procurement, rendering the protests moot. The protesters had essentially been asking the court to enjoin the procuring agencies from making the same mistake again on future procurements.

In Kropp Holdings, Inc., a successful post-award protest, the court was faced with a situation where (over a significant period of time during corrective actions) the agency repeatedly gave the awardee unwarranted chances to correct deficiencies in its proposal. The court held, inter alia, that: (i) the agency improperly accepted the awardee's untimely proposal; (ii) the agency conducted misleading discussions with the protester and treated the competing proposals unequally; and (iii) the agency irrationally attributed the awardee's corporate experience and past performance to a completely walled-off division created by the awardee to compete for the contract and relied on those flawed attributions in awarding the contract.

In CAN Softtech, Inc., the court dismissed (as moot) the plaintiff's challenge to the agency's sole source extension of a contract during a prior protest because that extension had expired and had been replaced by a bridge task order for which the plaintiff was not eligible to compete and which it had not challenged. However, the court also held that, while the agency's notice to the GAO in the prior protest that it would take corrective action by re-evaluating quotations in accordance with the solicitation's stated evaluation criteria had a rational basis in the record, nevertheless the case should be remanded to the agency for further explanation because the current record was not adequate to support the agency's subsequent decision to go beyond the re-evaluation, cancel the award to the plaintiff, and resolicit.

In Gemini Tech Services, LLC, the court denied a challenge to a D&F justifying the override of a CICA stay based on urgent and compelling circumstances. Specifically, the court held that (even though tardily issued) the D&F, which allowed the continued construction of a detention facility for single adults awaiting immigration proceedings or deportation, was sufficiently specific as to the adverse consequences of delaying construction, adequately considered whether any reasonable alternatives to the override existed, adequately documented the agency's consideration of the potential costs of proceeding with the override, as well as the agency's comparison of those costs to the benefits of doing so, and included sufficient evidence to show that the agency had considered the impact of the override on competition and on the integrity of the procurement system.

In Culmen Int'l, LLC, after the plaintiff had agreed to a dismissal without prejudice to permit the Government to undertake corrective action, the court denied the plaintiff's motion to keep the protective order in place to make protected materials available in case the plaintiff had to challenge the results of corrective action, holding that, on the particular facts of this case, such an order was not necessary:
Finally, this Court agrees with the government that “Culmen fails to explain . . . why protected materials obtained during this litigation might be necessary to substantiate a future challenge, during which the same materials would be available to the protestor to the extent relevant to the facts alleged.” [citation omitted] Given that concession by the government — and the Court appreciates the government’s candor — the likelihood of any prejudice to Culmen is minimal. Depending on the contours of any future protest claims, the government indeed will have to provide the same materials, anyhow.

Conflicts of Interest/PIA

In Marathon Targets, Inc., an unsuccessful (and unusual) post-award protest, the plaintiff requested a preliminary injunction, claiming that the agency's OCI investigation (which had resulted in its post-award disqualification from the competition) was procedurally and substantively flawed. That investigation had resulted in the conclusion that the plaintiff (a) had used source selection sensitive information inadvertently disclosed to it by the Contracting Officer to file an SBA protest and (b) had failed to indicate it would take all the mitigation steps requested by the Contracting Officer in using that information in this CoFC protest. The court found that the four-hour time limit the agency gave the plaintiff to respond to the agency's final OCI report was not violative of due process because, inter alia, (a) the plaintiff had had plenty of time to respond to the agency's concerns over the prior weeks (and had done so), (b) those were the same concerns raised in the report, and (c) the plaintiff did not establish what additional information it could have provided had it been given additional time to respond. Substantively, there were ample examples of conduct by the plaintiff after it received the inadvertent disclosure to support the OCI investigation's conclusion that there was an appearance of impropriety.

In Loyal Source Government Services, LLC, an unsuccessful preaward protest by the incumbent in a solicitation for medical services at the Border, the court held that in compliance with FAR § 3.104-7, the procuring agency (Customs and Border Protection or "CBP") took appropriate steps to address an alleged Procurement Integrity Act violation by quickly determining that the violation (improper disclosure of evaluations of the offeror's proposal) had occurred, pausing the procurement, and transferring the procurement from CBP to DHS, with entirely new personnel, which insured that the disclosures would not taint the procurement. The court also held that the CBP did not have to conduct PIA investigations of letters sent to Congress that the protester alleged showed bias by CBP officials against it because the procurement already had been transferred to DHS and bias is not a PIA violation.

In Bowhead Enterprise, Science and Technology, LLC, an unsuccessful post-award protest of an Army contract to perform systems engineering and program management support services, the court rejected a scattershot protest of many aspects of the evaluation, holding, inter alia, that the Contracting Officer's investigation of an impaired objectivity OCI related to the awardee's alleged ability to review of its designated subcontractors' work on other contracts was thorough and would not be disturbed given the standards under which the court is required to review such decisions:

The Court declines Bowhead’s invitation to further kick the proverbial tires on the Army’s OCI investigation to assess whether the inquiry was sufficiently exhaustive and, relatedly, whether an unimpeachable decision was reached. To do so would constitute reversable [sic] error. See, e.g., Oak Grove, 116 F.4th at 1380–81, quoted in ITellect, LLC v. United States, 173 Fed. Cl. 550, 560 (2024) ("A court may not second-guess the adequacy of an agency’s OCI investigation and may not overturn an agency’s conclusion, even when the agency failed to take additional investigative steps that may have been appropriate. The scope of an OCI investigation remains 'a proper exercise of the agency’s discretion.'"). Given the absence of a confirmed OCI, no mitigation plan was required to be submitted by DNI or assessed by the Army under the terms of the RFP or the FAR. See AR 598 ("If any actual or potential OCIs are identified, then the Offeror shall submit a mitigation plan . . . ." (emphasis added)); 48 C.F.R. § 9.506(b) (requiring contracting officer to analyze whether a potential conflict could be mitigated "[i]f the contracting officer decides that a particular acquisition involves a significant potential organizational conflict of interest" (emphasis added)). The absence of a confirmed OCI further defeats Bowhead’s assertion that [the awardee's] ratings were improperly inflated due to the Army’s failure to offset the assigned strengths of [the awardee's] proposal by the claimed OCI.

EAJA/Fees/Costs

In The QED Group LLC d/b/a Q2 Impact, the court denied an EAJA application after a successful protest because the agency's position was substantially justified in both law and fact, relying on a reasonable, if unsuccessful, statutory interpretation.

Miscellaneous

In CAN Softtech, Inc., the court denied the plaintiff's motion to reconsider the court's earlier opinion largely denying the plaintiff's motion to require the Government to provide additional documents allegedly needed to complete the Administrative Record because, inter alia: (i) pre-decisional deliberative process records are not properly part of the Administrative Record and, therefore, need not be identified in a privilege log; and (ii) the plaintiff had not provided sufficient evidence to overcome the presumption of regularity in the Government's compilation of the Administrative Record. The decision included cogent arguments by both sides concerning the applicability of both CAFC precedent and precedent from other jurisdictions, so I'm guessing eventually the CAFC will have to weigh in to clarify the standards to be applied in this area.

In Competitive Innovations LLC, the court denied the plaintiff's motion to supplement the Administrative Record, holding that materials from a prior (allegedly identical) procurement (which allegedly showed the agency applied a standard inconsistent with the one used in the protested procurement) were irrelevant because each procurement stands on its own, and the prior materials were not necessary for the court to evaluate the current protest. The court also denied a request to complete the Administrative Record with the same materials because the plaintiff failed to provide "clear evidence" that the current record was incomplete when the plaintiff alleged only that "the record is not complete because [it] does not contain an explanation for" how the agency evaluated the disputed element. In CAN Softtech, Inc., after an in camera review, the court required the Government to complete the Administrative Record by filing a draft memorandum (redacted to exclude portions protected by the attorney-client or deliberative process privileges) referenced in a decisional document already in the Administrative Record regarding potential Procurement Integrity Act violations, even though the deliberations concerning those violations were not issues in the protest, because those deliberations might help explain the time the Government took to decide to terminate the contract and issue a new solicitation.

In IntelliBridge, LLC, an unsuccessful preaward protest, the court held that the challenged solicitation did not violate 41 U.S.C. § 3307(b)'s requirement that a federal agency, "to the maximum extent practicable," define the products or services it is seeking in a manner that allows for the procurement of "commercial services or commercial products or, to the extent that commercial products . . . are not available, nondevelopmental items" because, in this case, the agency was not soliciting a software product that would replicate the functionality of a specific existing product through a developmental solution, but rather was soliciting an expansive set of cloud and IT services. Subsequently, the court denied the plaintiff's request for reconsideration.

In The QED Group LLC d/b/a Q2 Impact, a successful protest against the plaintiff's disqualification from the OASIS+ competition, the court undertook a detailed statutory analysis to conclude that section 889(d)(2) waivers issued by the Director of National Intelligence (under his authority to waive the prohibition in Section 889 of the John S. McCain NDAA for FY 2019 against using telecommunications equipment or services provided by Chinese-government-owned companies) are not limited to a single contract or a single entity, as opposed to waivers issued by agency heads under section 889(d)(1) of that statute, which are specific to the requesting entity and are time-limited.

In an unsuccessful preaward protest by Loyal Source Government Services, LLC, the court held that: (i) the agency's removal of staffing estimates from the solicitation was an appropriate response to a prior protest and did not prevent offerors from formulating intelligent offers; (ii) where there were different state licensing laws concerning how many personnel a physician may supervise, the agency (a) was not allowed to preempt state laws by establishing a single requirement in the solicitation and (b) could properly place the burden of determining choice-of-law questions concerning state licensing requirements on offerors; (iii) contrary to the protester's contention, the solicitation was not ambiguous as to the required presence of regional supervisors at various medical units; and (iv) although the solicitation's requirement that offerors provide wage and health and welfare rates with their proposals violated the FAR, which only requires such information from contractors (i.e., post award), the plaintiff could not show prejudice because the solicitation made clear that the data would not be used in the evaluation, and the plaintiff's only grounds for its protest was is its speculation that the data might be improperly disclosed.

In Westwind Partners LLP, et al., the court denied motions to supplement and to complete the Administrative Record in a protest involving a solicitation with two functional categories of awards in order to show disparate evaluations of identical proposals in the two categories because the solicitation made it plain that such a situation could occur, and the two categories were evaluated by different evaluators.

In Telestro Group, LLC, an unpublished decision on preliminary issues in the case discussed in the June 3 entry below, the court denied all the plaintiff's motions to supplement and complete the administrative record because, inter alia: (i) declarations designed to support allegations that the agency's conduct of the procurement was arbitrary and capricious were not necessary where the court lacked jurisdiction in this instance to review that conduct under an arbitrary and capricious standard; (ii) a declarant's understanding of the meaning of the 10 U.S.C. § 4022(d)(1)(A), which requires that "at least one nontraditional defense contractor or nonprofit research institution participat[e] to a significant extent" in the project [emphasis added] was not necessary for effective judicial review; and (iii) declarations and evidence related to the agency's decision to amend the solicitation to lower the evaluation standards were unnecessary where the plaintiff had waived that claim and has not shown prejudice.

In Marathon Targets, Inc., an unsuccessful post-award protest of an IDIQ Marine Corps contract for Trackless Mobile Infantry Targets system support services, the court held that there was a rational basis for the agency's post-award disqualification of the plaintiff based upon the agency's determination that the plaintiff's mishandling and misuse of source selection sensitive information about the awardee that had been inadvertently disclosed to it created the appearance of impropriety, and that determination was not a responsibility determination that needed to be referred to the SBA. The court also rejected the plaintiff's challenges to various aspects of the agency's evaluation of proposals

In Yona-Brixtel, LLC, a post-award protest, the court denied a motion to complete or supplement the administrative record with documents concerning contract modifications generated during contract performance well after contract award because (a) they were not created during the evaluation process and (b) they are not "core documents" within the meaning of paragraph 22(s) of Appendix C of the court's Rules, "which should not be read as referring to 'any . . . performance pending resolution of the bid protest,' but rather to 'any stay, suspension, or termination of award or performance."

In the American Access, Inc. protest, the court granted the agency's request for a seven-day remand to permit it to provide an explanation of its reasoning at the time of its prior decision to take corrective action because its original Notice of Corrective Action did not include that explanation.

In 22nd Century Technologies, Inc., the court: (i) denied the Government's request for remand only to allow the Government to consider whether it should have conducted discussions with the plaintiff during a prior remand to undertake corrective action and (ii) set a briefing schedule for the court's own decision concerning that issue.

The court dismissed a protest by American Tech Solutions, LLC for failure to prosecute in a decision that will not add anything to well-established law but is a cautionary tale of the importance of following procedural rules:

After filing its complaint, American Tech moved for entry of a protective order, which the court granted. American Tech struggled to comply with the protective order, publicly filing documents that contained protected material several times. The court repeatedly warned American Tech of its violations. Then, after further violations, the court issued a show-cause order directing American Tech to comply with the court’s rules and requiring American Tech’s counsel to show cause for why he should not be sanctioned for earlier failures to comply.

While the show-cause order was pending, American Tech failed—three times—to timely request an extension of time to file its motion for judgment on the administrative record. When it belatedly requested those extensions, American Tech did not seek the defendants’ positions, in violation of this court’s rules. American Tech’s counsel attributed his failures to file to his having to address the problems with complying with the protective order and to computer failures. The court ordered American Tech to file its motion for judgment on the administrative record by March 13, 2025, and stated that no further extensions of the deadline would be granted. American Tech did not file its motion or request an extension of time to file the motion by the deadline. Thus, the court sua sponte dismissed American Tech’s complaint without prejudice for failure to prosecute under rule 41(b) of the Rules of the Court of Federal Claims.

Mercifully, the dismissal was without prejudice.

Court of Appeals for the Federal Circuit

Jurisdiction/Standing

In Associated Energy Group, LLC, dba AEG Fuels, the CAFC affirmed the prior CoFC decision dismissing a protest against a bridge contract because, although the expiration of the bridge contract did not render the protest moot, the plaintiff lacked both Article III standing (because it could not meet a material requirement of the solicitation) and statutory (Tucker Act) standing (because even if all the alleged errors in the procurement were remedied as requested by the protester, it still would not have a substantial chance of award and, thus, did not have a substantial economic interest in the procurement).

Percipient.AI, Inc's protest has a winding history. Originally, the Court of Federal Claims bought the plaintiff's argument that the court had bid protest jurisdiction over Percipient's protest, which alleged that, post award, the Government violated the requirement in 10 U.S.C. § 3453(b)(1)-(2) that defense agencies and their contractors must acquire commercial products to the maximum extent practicable. Subsequently, the same court vacated its own decision and dismissed the case for lack of jurisdiction (lack of standing). Then, the CAFC weighed in and reversed the CoFC, holding that the protest did not allege the task order was, or would be, wrongfully issued and, therefore, was not "in connection with" a task order covered by FASA's bar on task order protests, and a protest alleging a violation of 10 U.S.C. § 3453 and related regulations (which establish a preference for commercial services) falls within the CoFC's jurisdiction under the third prong of the Tucker Act: "any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." 28 U.S.C. § 1491(b)(1). Now the CAFC, too, has had second thoughts and holds in a decision labeled as precedential that, in order to have standing as an interested party, under 28 U.S.C. § 1491 a plaintiff objecting to any alleged violation of statute or regulation in connection with a procurement or a proposed procurement must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract. The court, therefore, upheld the CoFC's dismissal for lack of jurisdiction. The upshot is that the standing requirement is the same regardless of the type of allegations being made. There is a dissent.

Solicitation Language

Evaluations

Small Business Issues/Set-Asides

SBA Office of Hearings and Appeals

Jurisdiction/Standing/Timeliness/Procedure

In Size Appeal of Team CSI Joint Venture, LLC, the OHA held that the Area Office had correctly dismissed (as untimely) a size protest of a task order award under a long-term IDIQ MAC contract because the Contracting Officer had not requested size recertification in connection with the task order solicitation.

In Size Appeal of MicroTechnologies, LLC, the OHA dismissed (as premature) an appeal seeking a firm's recertification as a small business because there was no indication the firm previously had sought recertification from an Area Office or that an Area Office had issued a decision on such a request. (The firm had submitted a request to the GSA in conjunction with the VETS 2 Governmentwide Acquisition Contract asking that it be "reinstated and be able to pursue VETS 2 opportunities" and had assumed, incorrectly, that the GSA's denial of that request was appealable to the OHA.)

In Size Appeal of Marathon Targets, Inc., the OHA affirmed the dismissal of a protest for lack of standing because the protester had been eliminated from consideration for award for procurement-related reasons (here, an organizational conflict of interest, an appearance of impropriety, and an unfair competitive advantage), even though that determination had not been made until well after the size protest was initially filed. The protester argued that the following regulation meant that standing should be determined as of the date of filing (and that is what the language clearly seems to suggest), but the OHA rejected the argument (probably because it would lead to an illogical result): "[T]he following entities may file a size protest in connection with a particular procurement, sale or order: (i) Any offeror that the contracting officer has not eliminated from consideration any procurement-related reason. . . ." 13 C.F.R. § 121.1001(a)(1)(i) (italics added).

The OHA dismissed the Size Appeal of Fiber Business Solutions Group, Inc. d/b/a GForce because neither an Area Office nor the OHA has jurisdiction over a challenge to an awardee's 8(a) eligibility, even when the appellant tries to label it as a size protest.

The SBA's OHA dismissed the NAICS Appeal of Veterans Command, LLC because the OHA lacks jurisdiction over a protest alleging that a solicitation should have been set aside especially for SDVOSBs rather than just small businesses generally, especially a protest styled as a NAICS appeal that does not challenge the NAICS code assigned to the solicitation.

In VSBC Appeal of Force99 Technologies, LLC, the OHA dismissed an appeal of the denial of a firm's application for certification as an SDVOSB because, inter alia, the appeal was filed a year later than the required 10 days from the date of the denial.

In VSBC Protest of Airborne Medical, LLC, the OHA dismissed a protest of a firm's SDVSB status because the protest failed to follow OHA's procedural requirements in several respects (including its lack of specificity), and the protester failed to respond the the OHA's show cause notice concerning those defects.

In Size Appeal of Tribologik Corp., the OHA affirmed the dismissal of a size protest because it was initially filed five days late (and the Contracting Officer's alleged advice could not override the controlling regulation concerning timeliness), and it was insufficiently specific (alleging only that the protested firm was related to another unnamed entity and failing to provide evidence that the combined receipts of the firms would exceed the applicable size standard).

In Size Appeal of Solvet Services, LLC, the OHA held that the Area Office had erred in dismissing a size protest as insufficiently specific despite the fact that it provided specific evidence of the protested firm's receipts, which exceeded those allowable by the applicable size standard.

In Size Appeal of C4CJV, LLC, the OHA upheld the Area Office's dismissal of the protest because: (i) on appeal, the appellant did not re-raise its original allegations involving the ostensible subcontractor rule and the totality of the circumstances, thus abandoning them; (ii) the protester used the wrong fiscal years to support its allegation of affiliation based on an identity of interest due to economic dependence under 13 C.F.R. § 121.103(f)(2); and (iii) the allegation that the SBA should not have approved a mentor-protégé agreement is not a proper ground for a size protest because the SBA's regulations prohibit any finding of affiliation or control based on such an agreement.

In Size Appeal of Federated Maritime, LLC, the OHA remanded the case to the Area Office with a scathing rebuke because that office had failed (a) to consider multiple aspects of the original protest filings, taking one party's allegations at face value, and (b) to look behind the excessive redactions in a key document (a limited partnership agreement), and, finally, (c) to investigate the protester's allegations concerning the ownership and alleged affiliations of the challenged firm, which the protester had supported with substantial evidence.

In Size Appeal of Mission Analytics, LLC, the OHA held that while the SBA had properly dismissed a size protest on the basis of information provided by the procuring agency that the agency had cancelled an award as part of corrective action in response to a related GAO protest, that information was inconsistent with the information the agency had provided to the GAO, indicating only that it would re-evaluate proposals (in which case dismissal of the size protest would have been inappropriate), so the OHA remanded the case to the SBA to determine what the actual state of the procurement was.

In VSBC Protest of Kaige Electrical Solutions, LLC, the OHA dismissed a protest as untimely because a notification that one intends to file a protest does not extend the timeliness requirement for the actual filing.

In VSBC Protest of General Services Administration, the OHA held that issue preclusion (collateral estoppel) required the dismissal of a protest because it involved the same allegations (that a firm's JV agreement lacked certain required provisions) by the predecessor Contracting Officer on same procurement against the same firm previously decided against the agency in a prior OHA decision, which held that the firm's Operating Agreement together with its JV agreement contained all the necessary provisions.

Ostensible Subcontractor

In Size Appeal of Kupono Government Services, LLC, the OHA held that the Area Office was correct in finding no violation of the ostensible subcontractor rule because: (i) the primary and vital contract requirements in a solicitation for management and operations of the DOE's National Training Center in Albuquerque, New Mexico (issued prior to the "safe harbor" rule at 13 C.F.R. § 121.103(h)(3)(iii) became effective (which would only have required the prime to agree to the "Limitations on Subcontracting" provision)), were management services and oversight duties rather than "training" as alleged by the appellant: (ii) the challenged firm would self-perform and control most of the contract's managerial positions, most of the labor hours under the most important of the three contract CLINs, and all of the work under the other two; and (iii) none of the four requirements for a finding of undue reliance on a subcontractor (the prime had two subs) was satisfied. The OHA noted it was irrelevant that the agency had not discussed the primary and vital requirements in detail in a second size determination issued after corrective action because the solicitation had not changed since the original size determination, which had discussed those requirements.

In Size Appeal of Osang, LLC, the OHA held that although the Area Office had used wrong date to assess a firm's compliance with the ostensible subcontractor rule, that was harmless error because the firm fell under the safe harbor provision of 13 C.F.R. § 121.103(h)(3)(iii) by demonstrating that it would comply with the limitations on subcontracting provisions set forth in 13 C.F.R. § 125.6.

In Size Appeal of Bowhead Enterprise, Science, and Technology, the OHA noted that the recent revision to 13 C.F.R. § 121.103(h)(3)(iii) establishes that when a small business together with all its small business subcontractors will comply with the limitations on subcontracting provisions, that is sufficient to avoid application of the ostensible subcontractor rule:

To circle back to the revised rule, the standard is now that of a brightline rule, where in respect to a services, specialty trade construction, or supply contract: "SBA will find that a small business prime contractor is performing the primary and vital requirements of the contract or order, and is not unduly reliant on one or more subcontractors that are not small businesses, where the prime contractor can demonstrate that it, together with any subcontractors that qualify as small businesses, will meet the limitations on subcontracting provisions set forth in § 125.6 of this chapter.” 13 C.F.R. § 121.103(h)(3)(iii), (emphasis supplied). SBA itself also noted during the issuance of the rule that it “believe[d] that meeting the applicable limitation on subcontracting requirement is sufficient to overcome any claim of the existence of an ostensible subcontractor." 88 Fed. Reg. 26,164, 26,166 (Apr. 27, 2023), (emphasis supplied).

Other Affiliation Issues

In Size Appeal of Hometown Veterans Medical LLC, the OHA held that, pursuant to 13 C.F.R. § 121.103(h), the members of a joint venture were affiliated by virtue of having submitted an offer more than two years after the award of the first contract to the joint venture even though the initial award was terminated for convenience prior to performance (so that the JV did no work and received no benefit).

In Size Appeal of Acacia 7, which has a lengthy procedural history, the OHA held that a mentor-protégé joint venture agreement was deficient in terms of control by the protégé because it created two entities in addition to the small business Responsible Manager contemplated by the regulations: a Program Manager with (almost) equal authority to the Responsible Manager and an Executive Committee with oversight over both the Responsible Manager and the Program Manage and comprised of one member each of the mentor and protégé so that the mentor had negative control.

Other Miscellaneous Size Issues

In Size Appeal of The Povolny Group, Inc., the OHA affirmed the Area Office's dismissal of a size protest against a mentor-protégé JV as nonspecific because the protester acknowledged that the protested firm was a joint venture between an SBA-approved mentor and protégé, and that its protégé member was a certified SDVOSB, alleging only that the firms were generally affiliated, due to the ratio between contracts awarded to three mentor-protégé ventures as compared with contracts awarded to the protégé in its individual capacity, which is to be expected because, in accordance with 13 C.F.R. § 125.9(a), the mentor is supposed to provide assistance to the protégé in performing prime contracts with the Government through joint venture arrangements.

In Size Appeal of Chenega Base and Logistics Services, LLC, the OHA upheld the appeal in a size protest concerning an 8(a) set-aside procurement because, pursuant to 13 C.F.R. § 121.103(h)(2)(i), the Area Office should have examined the protester's contention that an 8(a) joint venture agreement failed to comply with the requirements for such agreements at 13 C.F.R. § 124.513(b) and (c).

In Size Appeal of Acacia7 JV, although the appellant lost on many of its allegations of affiliation, it ultimately prevailed when the OHA held that a mentor-protégé joint venture agreement (JVA) of the challeged firm did not comply with 13 C.F.R § 125.8 because the Responsible Manager designated by the small business was subject to oversight and control by an Executive Committee comprised of one member each from the mentor and the protégé whose decisions must be unanimous and because the Responsible Manger shared authority with a Program Manager that was an employee of the mentor. The OHA also found that the JVA did not comply with 13 C.F.R. § 125.8(b)(2)(viii), which requires the JVA to have a provision obligating all parties to ensure performance of the contract and to complete performance despite withdrawal of a member.

In Size Appeal of DecisionPoint-Agile Defense JV, LLC, the OHA held that, in finding a joint venture other than small, the Area Office had incorrectly limited its review to the firm's joint venture agreement (JVA) instead of examining both the JVA and Operating Agreement together.

In Size Appeal of Secise, LLC, the OHA held that the 180-day period at 13 C.F.R. § 125.12(e)(2)(i) (formerly, 13 C.F.R. § 121.404(g)(2)(iii)) for determining whether a small business has undergone a merger or acquisition that renders it ineligible for award in a particular procurement begins to run from the date of the initial offer and does not restart at the date of any subsequent offers.

In Size Appeal of Advanced Information Systems Group, Inc., the OHA held that a virtual business incorporated in the United States that does not conduct business in a physical location but does business and delivers the services it sells online, which is owned by Americans and employs Americans residing in their homes from which the online services are delivered in the United States has a "place of business located in the United States" pursuant to 13 C.F.R. § 121.105(a)(1).

In Size Appeal of BahFed Corp., the OHA affirmed the Area Office's dismissal of a size protest as nonspecific because the protester's allegation was that the number of "Associated Members" on the challenged firm's LinkedIn page exceeded the number of employees in the applicable size standard when, as the protester conceded, Associated Members on LinkedIn are not necessarily limited to employees. Then, in HUBZone Appeal of BahFed Corp., which involved the same challenger, the same challenged firm, and the same procurement, the OHA denied an appeal of a determination that the challenged firm was a qualified HUBZone firm for this procurement because the rule that a firm's HUBZone status is to be determined as of the submission of its initial proposal in a two-step procurement is not limited to certain types of two-step procurements or which section of the FAR the solicitation is being conducted under and also is not limited to the submission of a priced proposal. The challenged firm's submission of its initial proposal in this two-step procurement was within one year of its certification as a HUBZone firm, as required by the regulations.

In Size Appeal of Veteran Elevated Solutions, LLC, the OHA held that a firm was other than small for the procurement because it did not meet two of the four requirements of the statutory nonmanufacturer rule (15 U.S.C. § 637(a)(17)(B)): (i) it did not qualify as a small business concern under the numerical size standard for the Standard Industrial Classification Code expressly assigned to the solicitation (in this case, 500 employees); and (ii) it would not supply the product of a domestic small business manufacturer (in this case the items would come from the Korean parent company).

In Size Appeal of Petromax Refining Co., LLC, the OHA affirmed the Area Office's finding of affiliation based on the totality of circumstances because, inter alia, the challenged firm leases its place of business, and all its equipment from the alleged affiliate, receives its financing entirely from the alleged affiliate, and deposits its funds in the alleged affiliate's bank account. Moreover, the alleged affiliate has electronic access to the challenged firm's bank accounts and has a say-so over agreements between the challenged firm and other firms for the storage and handling of specified products.

In Size Appeal of Primary Health Care, LLC d/b/a Anglin Distinctive Health Care JV, LLC, the OHA upheld the Area Office's finding that a firm was other than small because, pursuant to a written request by one of its joint venture partners, a mentor-protégé agreement had terminated (and the SBA had recorded that termination) prior to the date of final proposal revisions, which (pursuant to 13 C.F.R. § 121.404(f)) is the date for determining whether a joint venture meets the size standard in procurements set aside for small businesses, and that termination rendered the joint venture noncompliant with, inter alia, 13 C.F.R. § 121.103(h)(2)(ii).

8(a)/VSBC/SDVOSB/CVE/WOSB Status/HUBZone

In VSBC Protest of Data Monitor Systems, Inc., the OHA denied a challenge to a firm's SDVOSB status because: (i) two of the three members of the LLC were SDVs whose "Voting Block" was required for (a) a quorum and (b) all significant decisions pursuant to the Operating Agreement, which established the requisite control by SDVs; (ii) a qualifying veteran held the highest position in the firm; (iii) the fact that a non-SDV was the company's registered agent did not diminish the control by the two SDVs; (iv) the fact that the SDVs worked at a subcontractor owned by the non-SDV member was not disqualifying because the subcontractor's involvement was not crucial to the SDVOSB's ability to conduct business, and, thus, the SDVs could exercise independent business judgment without economic risk; (v) the SDVs' employment at the sub did not violate the general rule that qualifying vets must work full-time during normal business hours at the SDVOSB because the record established that the SDVs had ultimate managerial authority under the Operating Agreement; and (vi) the protester failed to provide any credible evidence in support of its allegation of a violation of the ostensible subcontractor rule, especially where the protested firm established it would comply with the "limitations on subcontracting" requirement.

In VSBC Protest of Winergy, LLC, the OHA held that, in a solicitation to inspect and certify ventilation equipment at a VA facility, the challenged SDVOSB violated the ostensible subcontractor rule because its proposal did not reflect (a) that the firm would self-perform any portion of the work with its own employees, (b) that any of its employees would be involved with the contract, or (c) that its employees possessed the certification required to perform the contract work.

In BDPE Appeal of iZen ai Inc., the OHA upheld a decision denying admission to the 8(a) program due to lack of economic disadvantage because the owner's tax returns showed income exceeding the $400,000 threshold, including funds withdrawn from an IRA for personal use, and the allegation that those funds were subsequently stolen was irrelevant.

In VSBC Protest of Veteran Military Contracting, the OHA sustained a protest against the SDVOSB status of a competitor in an SDVOSB set-aside because the challenged firm conceded it was not a certified SDVOSB and claimed it had mistakenly checked the box indicating it was an SDVOSB on the solicitation form.

In Matter of The CTS Group LLC, relying on the holding in Ultima Servs. Corp. v. U.S. Dep't of Agric., et al., 683 F. Supp. 3d 745 (E.D. Tenn. 2023), which held that the rebuttable presumption at 13 C.F.R. § 124.103(b) (that individuals who are members of certain minority groups are presumed to be socially disadvantaged for purposes of the 8(a) program) violates due process, the OHA upheld a firm's termination from the program because, in multiple submissions, rather than showing "chronic" social disadvantage, the firm provided only two examples of alleged discrimination towards its owner, neither of which was clearly attributable to bias rather than legitimate, non-discriminatory reasons, and the SBA was not required to provide the firm with additional opportunities to revise its submission.

In VSBC Protest of Seventh Dimension LLC, an unsuccessful protest, the OHA held that the fact that the challenged firm was not listed in the VetCert database was irrelevant because it was certified in the SBA's new system (MySBA Certifications) and was listed as SDVOSB-certified in the new DSBS database (to which the SBA was transitioning). The OHA also held that the facts belied the protester's unsupported and speculative contentions (a) that the challenged firm was affiliated with another firm or that a conflict of interest existed (neither of which would be grounds for a status protest such as this one anyway) and (b) that the challenged firm was unduly reliant on a subcontractor.

In HUBZone Appeal of BahFed Corp., the OHA denied an appeal of a determination that the challenged firm was a qualified HUBZone firm for this procurement because the rule that a firm's HUBZone status is to be determined as of the submission of its initial proposal in a two-step procurement is not limited to certain types of two-step procurements or which section of the FAR the solicitation is being conducted under and also is not limited to the submission of a priced proposal. The challenged firm's submission of its initial proposal in this two-step procurement was within one year of its certification as a HUBZone firm, as required by the regulations.

In HUBZone Appeal of CS Government Solutions, LLC, the OHA noted that, in determining whether a firm seeking HUBZone status has the requisite number of employees, OHA looks beyond payroll records to the totality of the circumstances, and here there was not sufficient work product to indicate that the challenged individuals had actually worked for forty hours in the four weeks preceding the date of review, as required by the regulations at 13 C.F.R. § 126.501(a) in effect as of the date of this determination.

In VSBC Appeal of Display Devices, Inc., the OHA held that although the D/GC had erred in concluding the SDV's was not the most highly compensated position in the challenged firm, the denial of the firm's application for certification as an SDVOSB should be upheld because there was contradictory information whether the SDV held the highest position in the firm, and there was clear information that the SDV's son actually ran the firm's daily operations, which showed a lack of control by the SDV.

The OHA denied the VSBC Protest of Stripes Global LLC because: (i) the bulk of its allegations related to size, which would be decided by the Area Office in a separate size decision; and (ii) the portion of the protest alleging that the protested firm was not controlled by an SDV owner because it would rely on its subcontractor's license to perform the contract involved issues of contract administration, which are not grounds for an VSBC protest, and in any event, a review of the state statute in question appeared to show that a state license was not required for the performance of the contract at issue.

In VSBC Protest of SRM Group, LLC, the OHA held that the protester's allegations (that the SDV did not control the challenged firm) were based on a LinkedIn profile of a different individual altogether. As the sole owner, sole director, and President of the firm (who also had submitted an affidavit describing his control of its daily operations), the SDV clearly had the requisite control, and the fact that others were listed as points of contact for the firm did not vitiate that control in any way.

In another VSBC Protest of Winergy LLC, the OHA denied a protest based on an alleged violation of the ostensible subcontractor rule because, in a solicitation for services, the challenged firm need only show that it will comply with the limitations on subcontracting provisions, and this challenged firm's sworn declaration, which aligned with its proposal, which in turn closely aligned with the solicitation's requirements, provided concrete evidence of the relative responsibilities of the prime and its sub, which complied with the limitations on subcontracting requirements, while the protester's contrary "evidence" was inadequate and speculative.

In VSBC Appeal of Compliant Systems Consulting, the OHA remanded the case for further investigation because the appellant presented evidence tending to show that the VA's inability to verify the firm's President's discharge status as a veteran was wrong and that (a) the Army ultimately issued an honorable discharge which affirmed the retention of all her veteran benefits and (b) all governing agencies had affirmed her veteran status.

In VSBC Appeal of Florida Suncoast Transportation, LLC , the OHA upheld the denial of a firm's certification as an SDVOSB because its Articles of Organization designated a non-SDV as its CEO (the highest officer), and there was no designation of a Managing Member.

In VSBC Protest of Crosstown Courier Service, Inc., the OHA denied a protest of a firm's SDVOSB status, holding that: (i) the protested firms' s merger transaction took place over a short period of time, and a gap of 12 days in completing some merger documentation was irrelevant because after the merger was complete, a qualifying SDV owned and controlled the company, which was all that was required; and (ii) nothing in the protested firm's documentation established that the SDV's ownership was anything other than unconditional:

Protestor further alleges that Mr. Covalli's ownership of Caduceus is not unconditional, as the regulation requires. The qualifying veteran's ownership “must not be subject to any conditions, executory agreements, voting trusts, restrictions on or assignments of voting rights or other arrangements causing or potentially causing ownership benefits to go to another (other than after death or incapacity.” 13 C.F.R. § 128.202(b). Protestor points to the provision of the Interest Purchase Agreement, which requires that Mr. Covalli agrees to dedicate himself to Caduceus's operations. He further agrees to voluntarily relinquish his ownership if he is unable to fulfill those duties. He agrees to exercise good faith in making this determination. Interest Purchase Agreement, ¶ 1.3. Nothing in this provision requires that Mr. Covalli's ownership interest go to another without his consent. Rather, Mr. Covalli is to voluntarily make that decision, it is left to his discretion. This is clearly a provision meant to deal with a possible incapacity of Mr. Covalli, which is explicitly permitted by the regulation.

In VSBC Appeal of Blue Skye Foods, LLC, the OHA sustained a firm's appeal of the denial of its certification as an SDVOSB because provisions in the Operating Agreement requiring the unanimous consent of members for certain actions were meant to protect the interests of the firm's minority members and did not affect the SDV's power to control the daily operations of the business:

Here, the two provisions which the D/GC relied upon to find Appellant ineligible clearly fall into the category of protecting minority shareholders' interests, and not the management and daily business operations of the concern. Engaging in business that is in contradiction of the Operating Agreement, and changing the concern's accounting method or tax classification could adversely affect a minority owner's investment on the one hand, and do not affect the concern's management and daily business operations on the other hand. These provisions clearly fall into the category of provisions permitted by 13 C.F.R. § 128.203(j)(7).

NAICS

In NAICS Appeal of The Red Gate Group, LTD, the OHA held that the appellant lacked standing to appeal the NAICS code for task order solicitation limited to a pool of contractors of which the appellant was not a member.

In NAICS Appeal of Peerless Technologies Corp., which involved a solicitation for advisory services and assistance to the Air Force Research Laboratory's RDT&E projects, the Contracting Officer's choice of NAICS-541611 ("Administrative Management and General Management Consulting Services") was more appropriate than the appellant's choice of NAICS-541715 ("Research and Development in the Physical, Engineering, and Life Sciences") because, inter alia, whether a particular code is superior for maximizing competition is irrelevant in a NAICS appeal.

In NAICS Appeal of MissionAnalytics, which involved a solicitation to procure security cameras and related equipment for VA medical centers, the OHA rejected the Contracting Officer's choice of NAICS-561621 ("Security Systems Services (Except Locksmiths)") because the contract was primarily for manufactured items, and chose instead NAICS-334220 ("Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing").

In NAICS Appeal of ARMADA, Ltd., where the principal purpose of the contract was to obtain assistance with Personnel Security, which, according to the OHA, was best described as involving administrative support services, the Contracting Officer's choice of NAICS 561110 ("Office Administrative Services") was preferable to any of the appellant's suggestions, including NAICS 561611 ("Investigation and Personal Background Check Services").

In NAICS Appeal of ITC Defense Corp., which involved a total small business set-aside to provide contractor logistics support, program management, training support, and materials in support of an anti-ballistic missile system, the OHA rejected the Contracting Officer's designation of NAICS code 541614 ("Process, Physical Distribution and Logistics Consulting Services") with a corresponding $20 million annual receipts size standard in favor of the appellant's choice of NAICS 541330 ("Engineering Services (Exception 1 for Military and Aerospace Equipment and Military Weapons)") with a corresponding $47 million annual receipts size standard.

This website is an informational reference providing links to resources on the web concerning developments in federal government contracting. Although I am a practicing attorney in the area of federal contracting, this website does not offer legal advice, and I do not vouch for the completeness, currency, or accuracy of the sites to which it links. If you have comments, suggestions, corrections, or requests for assistance or advice, please email Stan Hinton or call (720) 772-1754. Law practice strictly limited to federal government contracts. .

Successful GAO Protests

Court of Federal Claims

CAFC

SBA Office of Hearings and Appeals

EAJA/Fees/Costs In The QED Group LLC d/b/a Q2 Impact, the court denied an EAJA application after a successful protest because the agency's position was substantially justified in both law and fact, relying on a reasonable, if unsuccessful, statutory interpretation.

EAJA/Fees/Costs

In The QED Group LLC d/b/a Q2 Impact, the court denied an EAJA application after a successful protest because the agency's position was substantially justified in both law and fact, relying on a reasonable, if unsuccessful, statutory interpretation.