Transcript Slide 1

BOSTON // HARTFORD // NEW YORK // NEWARK // STAMFORD // PHILADELPHIA // WILMINGTON
Significant Bid Protest Decisions from 2009
Gary J. Campbell, Esq. & Bonnie A. Vanzler, Esq.
March 10, 2010
Overview
♦ FY2009 Bid Protest Statistics
♦ Significant Protest Decisions
– GAO
– Court of Federal Claims
– Federal Circuit
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GAO Bid Protest Statistics for FY2009
♦ Total protests filed = 1,989 (~20% increase)
– Why? In part, GAO’s expanded bid protest jurisdiction
 Task Order protests (139)
 TSA protests (13)
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Protests sustained = 57
Increase in corrective action by agencies
Hearings conducted = 65
100% increase in ADR
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Task and Delivery Order Jurisdiction
♦ Armorworks Enters., LLC, B-401671.3 (Nov. 6, 2009)
– Protest of three separate delivery orders
♦ GAO will not aggregate separate delivery orders
to get over the $10M jurisdictional threshold
– Each delivery order was valued under $10M
– No basis to find that the separate delivery orders
reflected a single requirement
– No showing that Army’s decision to procure items
separately was a deliberate effort to evade jurisdiction
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Task and Delivery Order Jurisdiction
♦ Innovative Tech. Corp., B-401689 (Nov. 9, 2009)
♦ GAO’s jurisdiction to consider protests of task
orders in excess of $10M extends to protests
objecting to the terms of the task order solicitation
– Do not need to wait until an order exceeding $10M is
actually issued to file a protest
♦ As incumbent contractor, ITC knew (or should
have known) task order would be valued >$10M
– Alleged solicitation improprieties were apparent on the
face of the RFP
– Post-award protest dismissed as untimely
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GAO Will Not Review Agency
Management Decisions
♦ Aleut Facilities Supp. Servs., B-401925 (Oct. 23, 2009)
– Protest of cancellation of solicitation
♦ GAO has jurisdiction to review reasonableness of
agency decisions to cancel solicitations
♦ But GAO will typically not review a decision to
cancel a solicitation to perform work in-house
– An agency’s decision to perform work in-house is
generally a matter of executive branch policy
– None of the limited exceptions are applicable here
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Timely Filing a GAO Protest
♦ RTI Technologies, LLC, B-401075 (April 15, 2009)
♦ Must protest adverse action on agency-level
protest within 10 days of agency response
– Complaint does not have to be an actual “protest”
♦ Contractor cannot wait until after it receives a
required debriefing to protest the issue to GAO
– But grounds of protest that first become known at the
debriefing may be timely if filed within 10 days of the
debriefing (or within 5 days to get automatic stay)
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Bidders Must Seek Timely Debriefings
♦ UMASS Donahue Inst., B-400870.3 (July 15, 2009)
– Post-award protest filed more than 3 months after
protester’s proposal was eliminated from competition
♦ Exception to timeliness rules based on receipt of
a debriefing does not apply where protester
delayed debriefing on elimination of its proposal
until after contract award
♦ Protest dismissed as untimely
– Debriefing did not provide any more information or
raise any additional protest grounds
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Agency Cannot Relax Its Evaluation
Scheme Without Giving Notice to Bidders
♦ The S.M. Stoller Corp., B-400937 (Mar. 25, 2009)
♦ The evaluation scheme announced in the
solicitation must be consistent with the evaluation
actually conduced by the agency
♦ Department of Energy cannot waive or relax its
requirements without giving notice to bidders
– The absence of an express prohibition is not an
authorization to deviate from the terms of the PWS
– Bidders must be allowed to submit bids on the basis
stated in the solicitation
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Bidder Does Not Get Automatic Credit for the
Past Performance of its Affiliates
♦ Health Net Fed Servs., Inc., B-401652.3 (Nov. 4, 2009)
– GAO sustained protest of $16 billion contract award
♦ DoD conducted flawed past performance evaluation
– Awardee should not be credited for affiliates who were
not involved in performing the prior contracts
– Proposal did not identify the roles each affiliated entity
would perform if awarded the contract
– Awardee’s past performance references were very small
in relation to the size of the contract to be awarded
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Even the Appearance of Impropriety May
Disqualify an Offeror from Competition
♦ Health Net Fed Servs., Inc., B-401652.3 (Nov. 4, 2009)
– GAO sustained protest of $16 billion contract award
♦ Use of former high-level gov’t employee in preparing
proposal created appearance of impropriety
– This gave the awardee unequal access to non-public,
competitively useful information
♦ May be disqualified from competition even if there is
no actual impropriety or real competitive advantage
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Access to Competitive Information May
Bar Contractors from Future Competitions
♦ Kellogg Brown & Root Servs., B-400787 (Feb. 23, 2009)
♦ Contractor was properly excluded from future task
order competitions because:
– (1) it had access to source-selection sensitive and
proprietary information; and
– (2) it refused to “wall off” or isolate those individuals who
had the information from the competitions
♦ Protester does not need to show that contractor
actually gained an unfair competitive advantage
♦ Contractor may be excluded from competition
even if it permanently deletes
information
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Price and Cost Evaluations Must
Meaningfully Consider Price
♦ ACCESS Systems, Inc., B-400623.3 (Mar. 4, 2009)
– Best-value, 8(a) government-wide acquisition contract
– Contract awarded to higher-priced quotation
♦ Even where price is less important than non-price
factors, agency must meaningfully consider price
– Marine Corps conceded that it did not weigh price
– Marine Corps did not identify any superior capabilities
to justify making the higher-priced award
♦ To make an award to a higher-priced offeror, one
firm’s technical advantage must be determined to
outweigh the other firm’s
price advantage
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Agency’s Discussions Must Treat Offerors
Fairly, If Not Equally
♦ Ashbury Int’l Group, Inc., B-401123 (June 1, 2009)
♦ Protester downgraded for failure to include
information that was not required by solicitation
– Protest sustained because Marine Corps failed to
conduct “meaningful” discussions
♦ Instead, agency should have:
– (1) Amended the solicitation to include the changed
requirements; or
– (2) Conveyed its new requirements during discussions
with offerors
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Agency’s Corrective Action Discussions
Must be “Equal” and “Meaningful”
♦ Am. K-9 Detection Servs., B-400464.6 (May 5, 2009)
♦ Army took corrective action, but allowed only the
awardee to fix its defective proposal
– Army also failed to account for other significant
weaknesses or deficiencies in the proposal
– Did not allow protester the opportunity to engage in
discussions with Army to become more competitive
♦ GAO held that Army improperly engaged in
“unequal, not meaningful discussions”
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Contracting Officer Must Address OCIs
♦ L-3 Services, Inc., B-400134.11 (Sept. 3, 2009)
♦ Subcontractor’s prior procurement planning work
created an unmitigable “biased ground rules” OCI
– Precluded subcontractor from participating in
subsequent procurement
♦ Subcontractor’s prior work also gave it unequal
access to competitively useful, non-public
information (“unequal access to information” OCI)
– Air Force failed to adequately investigate and analyze
the OCI and the efficacy of a mitigation plan
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Contracting Officer Must Address OCIs
♦ The Analysis Group, LLC, B-401726 (Nov. 13, 2009)
♦ Protest sustained because successful vendor had
“impaired objectivity” OCI where:
– RFQ for advice and assistance on counter proliferation
of WMDs
– Vendor sells detection and prevention products
♦ GSA did not adequately consider the possibility
of an OCI and whether it could be avoided,
neutralized, or mitigated
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Federal Supply Schedule Contracts Must
Include All Items that Will be Ordered
♦ SAIC, B-401773 (Nov. 10, 2009)
♦ A purchase order issued under a FSS contract
must include only those items currently on the
awardee’s FSS contract
– Non-FSS items must be purchased using full and open
competition procedures
– Addition to Schedule before delivery date not enough
♦ Where an agency orders from an existing FSS
contract, all items quoted and ordered must be on
a vendor’s FSS contract “as a precondition to its
receiving the order”
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Agency Rejection of GAO’s
Recommendations
♦ Mission Critical Solutions, B-401057 (May 4, 2009)
♦ GAO: 15 U.S.C. § 657a requires agencies to set
aside contracts for HUBZones when:
(1) at least two HUBZone small businesses will
bid; and (2) the winner can offer a fair price
– HUBZone set-asides have priority over other set-asides
– GAO ordered Army to re-open a sole-source award to
a non-HUBZone 8(a) small business
♦ Army: § 657a is permissive, not mandatory
– Army refused to follow GAO’s decision
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COFC Bid Protest Statistics for FY2009
♦ Total protests filed = 74
– Pre-Award Protests = 22
– Post-Award Protests = 52
♦ Protest Decisions = 57 (50 published)
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IDIQ Task Order Jurisdiction
♦ Global Comp. Enter. v. U.S.,
88 Fed. Cl. 52 (May 29, 2009)
– Protest of task order modifications, claiming modifications
exceeded the scope of task order and should have been
competed
♦ COFC has jurisdiction
– FASA only prohibits protests “in connection with” the
“issuance” or “proposed issuance” of a task order
– Task order modifications occur after the issuance of a
task order
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Override of Automatic Stay
♦ The Analysis Group v. U.S., No. 09-542C (Oct. 30, 2009)
– Post-award protest seeking reinstatement of stay of
performance pending GAO protest of task order award
♦ Override of automatic stay was not arbitrary and
capricious
– Stay would result in lapse of services
– Incumbent-plaintiff had poor working relationship
with awardee
– Benefits of authorizing performance outweighed
potential costs of override
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National Security Interests and Proposal
Evaluation Techniques
♦ Red River Holdings v. U.S., 87 Fed. Cl. 768 (July 17, 2009)
– Post-award protest for failure to follow solicitation’s
technical requirements and not evaluating offerors equally
♦ Awardee did not satisfy technical requirements and
Navy’s award violated CICA
– But because of national security concerns, awardee
could perform during the initial performance period plus
one option period
– Protester awarded bid preparation costs
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National Security Interests and Brand
Name Procurements
♦ DataPath, Inc. v. U.S.,
87 Fed. Cl. 162 (May 29, 2009)
– Pre-award protest challenging Army solicitation of a
specific brand name manufactured by only one
manufacturer
♦ Protest denied, dismissed without prejudice
– Brand name justified to prevent significant cost, delay,
and risk to military
– Interests of fair and open competition did not outweigh
national defense and security interests
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Superior Incumbent Performance Does
Not Guarantee Subsequent Award
♦ Software Eng’g Serv. v. U.S., 85 Fed. Cl. 547 (Feb. 5, 2009)
– Post-award protest of IDIQ contract awards
♦ SES alleges arbitrary and capricious evaluation
because:
– Certain relevant proposal sections not evaluated
– Superior incumbent performance not considered
♦ Protest denied because:
– Evaluation documents don’t need to discuss every section
– Offeror must demonstrate capabilities through explicit
description in proposal
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Use of Bridge Contracts
♦ Viromed Laboratories, Inc. v. U.S., 87 Fed. Cl. 493
(June 8, 2009)
– Motion for Sanctions against U.S. for use of bridge contract
– Viromed protested award at GAO, then COFC
♦ Settlement resulted in court order with corrective
action
– Including reconstituted of evaluation board
♦ In interim, agency issued RFQ for bridge contract
with same evaluation board
♦ Court denied because order was for long-term
provision of HIV services26
Federal Circuit: Price Realism
♦ Alabama Aircraft Indus., Inc.—Birmingham v.
United States, 586 F.3d 1372 (Fed. Cir. Nov. 17, 2009)
– Appeal of COFC protest of price realism analysis
♦ COFC’s review of agency action should be limited
to whether the Air Force’s evaluation was
consistent with the RFP
– COFC cannot rewrite the RFP’s evaluation criteria
♦ Federal Circuit enforcing strict limits on the
COFC’s review of bid protests
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Federal Circuit: Standing
♦ Labatt Food Services, Inc. v. United States,
577 F.3d 1375 (Fed. Cir. Aug. 24, 2009)
– Appeal from COFC decision to vacate contract award
♦ Protester lacked standing to challenge contract
award and procurement procedures
– Because failed to submit a timely proposal revision
and could therefore not be considered for award
♦ Agency did not consider Labatt’s final proposal
submission because it was: (1) late; and
(2) submitted via unauthorized manner
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Questions?
Gary J. Campbell
McCarter & English
265 Franklin Street
Boston, MA 02110
617.449.6558
[email protected]
Bonnie A. Vanzler
McCarter & English
265 Franklin Street
Boston, MA 02110
617.449.6501
[email protected]
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