GovCon Legal Round Up™ - April 21, 2021
U.S. COURT OF FEDERAL CLAIMS (COFC) DECISIONS
Microgenics Corp. v. U.S. (March 30, 2021)
Contractor (Microgenics) filed a bid protest against the Administrative Office of the United States Courts (AOUSC), an entity within the judicial branch, in connection with a solicitation for equipment, supplies and consumables used to operate on-site drug testing laboratories. The COFC, however, dismissed the suit, deciding that the AOUSC was not a “Federal agency” for purposes of bid protests under the Tucker Act. (Read decision here.)
Rocky Mountain Mobile Medical v. U.S. (April 6, 2021)
Contractor (Rocky Mountain Mobile Medical) filed a bid protest alleging that the agency (Air Force) (1) failed to conduct discussions with it to address past performance information, (2) should have excluded a competing bidder’s technical capability volume as noncompliant, (3) assigned contractor an irrational performance confidence rating, and (4) treated the contractor unequally by assigning a “substantial confidence” rating to a competing bidder's past performance rating. On the issue of conducting discussions, the COFC determined that the solicitation stated that the competitive selection would be made in accordance with the Simplified Acquisition Procedures under FAR Part 13. Although the solicitation also stated that “exchanges” - which are referred to in FAR Part 15 and not in FAR Part 13 - might be conducted with some or all offerors, COFC disagreed with contractor that the agency was required to comply with the discussion requirements under FAR Part 15. COFC determined that, in any event, if contractor believed the agency’s description of potential exchanges was inconsistent with FAR Part 15, the time to complain was prior to bidding. COFC also rejected contractor’s remaining protest arguments. (Read decision here.)
GAO BID PROTEST DECISIONS
In re Relyant Global, LLC (Released April 9, 2021)
GAO denied the bid protest of a contractor (Relyant Global, LLC) that challenged an agency’s (Army, Corp of Engineers) decision to amend rather than cancel its request for proposals (RFP). Contractor submitted a timely proposal in response to the initial solicitation and argued that the agency’s subsequent changes to the solicitation were so substantial that the agency should have cancelled the solicitation and reissued a new one. Contractor also argued that the binding teaming agreements it entered into based on the unamended solicitation prevented it from competitively bidding on the revised solicitation. GAO ruled that the contractor was not an interested party for purposes of claiming that the solicitation should have been cancelled and reissued under FAR 15.206(e), which authorizes cancellations so that potential bidders who did not submit proposals have an opportunity to compete. GAO also found that, rather than any unfair action by the government, it was contractor’s own business decision to enter into teaming agreements that could not be modified after a solicitation has been amended that placed the contractor at a competitive disadvantage. (Read decision here.)
In re SAGAM Securite Senegal (Released April 7, 2021)
GAO dismissed as untimely a protest by a contractor (SAGAM Securite Senegal) that challenged an agency’s (Department of State) decision to cancel a solicitation. The contracting officer e-mailed a notice of cancellation to the contractor’s director of operations, who did not acknowledge receipt of the notice. The contracting officer e-mailed the director again five and eight days after the initial notice. After an additional e-mail by the agency to the contractor’s program manager on the eighth day after the initial notice, the contractor’s director finally responded, and ten days after that day, the contractor filed a protest with the GAO. In arguing that its protest was timely, contractor alleged that automatic e-mail replies by its director indicated that his access to e-mail was limited and instructed that urgent matters should be addressed to the program director. Contractor insisted that it did not receive actual or constructive notice of the cancellation until the director accessed his e-mails on the date the agency e-mailed the contractor’s program director. In deciding the protest was untimely, GAO ruled that mechanical receipt of an e-mail during a firm’s normal business hours constitutes notice to a party, that the agency’s first e-mail to the director was available to be opened, and that the director’s inability to access his e-mails did not toll the protest filing deadline. (Read decision here.)
In re APR Staffing, LLC (Released April 6, 2021)
GAO dismissed the protest of a contractor (APR Staffing, LLC) that challenged an agency’s (Department of Energy) decision not to exercise options under the contractor’s blanket purchase agreement. The contractor alleged that the agency’s evaluation of its performance during the base period and that formed the basis for the agency’s decision not to exercise the options constituted a procurement process that could be protested with the GAO. In dismissing the protest, GAO reasoned that option provisions are generally exercisable at the discretion of the government and that the protestor’s disagreement over the agency’s assessment of its performance did not transform the decision not to exercise the options into a procurement action. (Read decision here.)
In re TekSynap Corporation (March 30, 2021)
In a rare case, GAO sustained a contractor’s (TekSynap Corporation) protest challenging an agency’s (National Geospatial Intelligence Agency) evaluation of non-price evaluation factors. The agency issued a request for proposal contemplating a single award of an IDIQ and simultaneous task order. Initially finding that the contractor’s pricing information was incomplete, the agency sent the contractor items for discussion pointing out flaws and instructing it to revise its pricing proposal. After conducting discussions with offerors, the agency requested final proposal revisions. Upon evaluating the final proposals, the agency found contractor’s pricing proposal was still incomplete, thus precluding the agency from making a pricing reasonableness determination. The agency also concluded that the contractor’s technical/management rating was lower than the rating of the competing bidder that ultimately received the award. Given the contractor’s lower technical/management rating, the agency decided not to conduct discussions with the contractor and made the award to the competing bidder. On review, GAO ultimately decided that the agency’s evaluation of the competing bidder’s proposal as superior to the contractor’s was unreasonable, and thus, the agency’s decision not to reopen discussions was also unreasonable. In its decision, GAO highlighted several of the agency’s assessments that it concluded were unreasonable, including: (1) assignment of only a slight weakness rating to the competing bidder’s proposal for the failure of one of its proposed key personnel to demonstrate a mandatory qualification; and (2) assignment of a moderate strength rating to the contractor’s proposal for management approach, despite positive remarks by evaluators and where the RFP indicated that assignment of a significant strength rating was warranted. (Read decision here.)
ARMED SERVICES BOARD OF CONTRACT APPEALS DECISIONS
In re URS Federal Services, Inc. (March 23, 2021)
Contractor (URS Federal Services, Inc.) submitted a claim against the federal government (U.S. Coast Guard) under the Contract Disputes Act seeking payment for maintenance and repair services that the government accepted but did not pay for. Contractor also alleged that the government’s refusal to pay constituted a breach of the implied duty of good faith and fair dealing. The Armed Services Board of Contract Appeals (ASBCA) struck the breach of implied duty claim from contractor’s complaint because the contractor did not first present the claim to the contracting officer. With regard to the claims under the Contract Disputes Act seeking payment for both unpaid invoices and “unbilled” services, although the contractor submitted invoices to the government during and shortly after contract performance, it did not present a claim to the contracting officer for billed and unbilled services until more than eight years after the last invoice for billed services. The ASBCA ruled that the contractor knew or should have known that it could have converted its invoices to claims within a reasonable time after submitting them to the government and that the contractor’s claim for payment under the Contract Disputes Act was barred by the six-year statute of limitations. (Read decision here.)
CIVILIAN BOARD OF CONTRACT APPEALS DECISIONS
Microtech Technologies LLC v. Department of Justice (March 31, 2021)
Contractor (Microtech Technologies, LLC) filed an appeal of the federal government’s (Department of Justice) decision to deny contractor’s claim for termination costs. Contractor held a multi-award government-wide acquisition contract under which the government issued a delivery order for workstation perpetual software licenses, as well as software maintenance for one base year and two additional option years. At the beginning of the base year, the contractor purchased the perpetual software licenses and also purchased from the manufacturer software maintenance in order to satisfy the maintenance requirement for the base year and the two option years. At the end of the base year, the government initially exercised the software maintenance option for the next following year but then reversed itself and terminated the option year with a unilateral contract modification after it determined that it had exercised the option in error. Contractor subsequently sent the government a claim for termination costs in an amount that represented the cost of software maintenance for one year. Contractor argued that the one-year maintenance cost was non-refundable and that is was a reasonable charge resulting from the termination of the option. The Civilian Board of Contract Appeals (CBCA), however, remained unconvinced finding that the contractor failed to prove that the pre-payment of the maintenance cost a year in advance was required or that it was non-refundable, or that the contractor took action to activate the software maintenance after the contract modification that terminated the option. The CBCA concluded, therefore, that the contractor failed to prove that the software maintenance cost arose from the government's contract modification that terminated the option. (Read decision here.)
