GovCon Legal Round Up™ - March 31, 2021

U.S. COURT OF FEDERAL CLAIMS (COFC) DECISIONS

SEKRI, Inc. v. U.S. (March 22, 2021)
The COFC dismissed a pre-award bid solicitation protest that was filed directly with the court after an agency (DLA) failed to designate the protestor (SEKRI) as a mandatory source of supply for certain military equipment under the AbilityOne Program.  The COFC deviated from the arguments of both protestor and DLA and ruled, on its own, that the protestor lacked standing under the Tucker Act because, having failed to file a protest before the proposal deadline, it was neither a bidder nor a prospective bidder.  The COFC ruled alternatively that even if the protestor had standing, because it did not object before the close of bidding, it waived its challenge under the Blue & Gold Fleet waiver rule.  (Read decision here.)

Mortgage Contracting Services, LLC v. U.S. (March 18, 2021)
In the second ruling in as many days in favor of a bid protestor, the COFC overruled both the agency (USDA) and GAO and ruled in favor of a protestor (Mortgage Contracting Services).  COFC found that the agency’s evaluation of the winning bidder’s proposal was arbitrary and capricious, that protestor was prejudiced by the agency’s actions, and that protestor was entitled to an injunction against further contract performance by the winning bidder.  In a lengthy analysis, the COFC first determined that the agency’s past performance rating for the winning bidder (which was the same rating given to protestor) was arbitrary and capricious because the agency’s evaluations of two of the three past performance references were unreasonable and not performed in accordance with the solicitation. The COFC also determined that the agency’s technical factor evaluation, which was based in part on relevant experience, and its price realism analysis were both inadequate.  In overturning GAO, the COFC concluded that GAO’s analysis of the past performance issue was lacking and its conclusions summary, and that the GAO did not critically examine the price realism issues.  (Read decision here.)

AGMA Security Service, Inc. v. U.S. (March 16, 2021)
In an earlier decision in favor of a bid protestor, the COFC overruled the agency (FEMA) and determined that its award of a sole-source contract was arbitrary and capricious.  At the beginning of the procurement process, the agency issued an RFP for armed security services, and, at first, made an award decision in favor of the protestor (AGMA Security Service).  After the then-incumbent filed a protest with GAO, the agency took corrective action and subsequently reversed itself and awarded the contract to the incumbent.  The protestor then filed a bid protest with the COFC, which ultimately found no explanation for the agency’s reversal and enjoined the agency from continuing the contract with the incumbent.  Undeterred, the agency nevertheless decided to issue a sole source bridge contract to the incumbent on the grounds that there was insufficient time for a full and open competition.  The protestor then filed a bid protest challenging the sole-source award.  The COFC concluded that the sole-source award was improper and that there was no rational basis for the agency’s sole source decision, and permanently enjoined the agency from continuing its sole source contract with the incumbent.  (Read decision here.)

SBA OFFICE OF HEARING AND APPEALS

In re Size Appeal of Leumas Residential, LLC (Released March 16, 2021)
The SBA’s Office of Hearing and Appeals (OHA) granted a contractor’s (Leumas Residential, LLC’s) appeal of the SBA Area Office’s determination that it was not a small business.  The agency (Navy) had issued an RFP for grounds maintenance services under a contract set aside for 8(a) businesses with a size standard of $8M.  The contractor was awarded the contract but another offeror filed a protest alleging that the contractor was unduly reliant on its subcontractor and in violation of the ostensible contractor rule.  The SBA area office, however, ultimately determined that the contractor and its subcontractor were joint venturers and generally affiliated, that the contractor was not small, and that the ostensible contractor issue was moot.  On appeal, OHA determined that since the proposal was submitted by the contractor, and not a joint venture, the Area office should have addressed the question before it - namely, whether the contractor was in violation of the ostensible contractor rule.  OHA, thus, sent the case back to the Area office for a size determination under an ostensible contractor analysis.  (Read decision here.)

GAO BID PROTEST DECISIONS

In re ISS Action, Inc. (Released March 24, 2021)
GAO denied the bid protest of an offeror (ISS Action) that alleged the agency (DOE) improperly evaluated the winning bidder’s lowest-priced, technically acceptable (LPTA) under personnel qualifications and staffing criteria.  Among its arguments, the offeror objected that the bidder identified as the project manager an employee of the current incumbent, which was proposed to serve as a subcontractor to the bidder.  GAO rejected offeror's arguments, including by concluding that the RFP did not require the project manager to be a direct employee of an offeror.  (Read decision here.)

In re CACI, Inc. - Federal  (Released March 23, 2021)
An agency (Army) relaxed the deadline for offerors to submit notices of intent to propose when it accepted late notices.  After making an award to an offeror that submitted an untimely notice but filed a timely proposal, the protestor (CACI) filed a bid protest arguing that the winning bidder was ineligible for the award because of its untimely notice.  GAO dismissed the protest, concluding that even if the notice deadline waiver was material, the protestor was not next in line for the award in any event and, thus, was not an interested party.  (Read decision here.)

In re Pathfinder Consultants, LLC (Released March 23, 2021)
GAO denied the pre-bid solicitation protest of an offeror (Pathfinder Consultants) that argued the agency (VA) unreasonably omitted past performance from its RFP evaluation factors.  GAO concluded that the agency adequately explained the basis for omitting past performance - namely, that the services sought were not complex or difficult, thus requiring only an assessment of technical approach.  GAO, likewise, rejected the other grounds for offeror's protest based on the agency's failure to respond to its pre-bid questions.  GAO ruled that the offeror failed to demonstrate how the solicitation was inadequate, unclear or ambiguous.  Thus, GAO could not conclude that the agency's failure to respond resulted in unfair or unequal treatment.  (Read decision here.)

In re Jade Excavation, Inc. (Released March 19, 2021)
An offeror (Jade) protested an award by an agency (DOT) to the lowest bidder because it did not have an active SAM registration at the time of its bid submission as required by the invitation for bid.  GAO, however, rejected the protest, relying on its prior decisions that minor informalities related to SAM registration generally do not undermine the validity of an award and are waivable.  (Read decision here.)