JULY 2021 BID PROTEST ROUNDUP (Regulation360 Highlight)

This month’s Legislation360 Bid Protest Roundup examines 3 new choices from the U.S. Court of Federal Claims. The initial two conditions emphasize splits between the court docket and the Governing administration Accountability Workplace connected to deal interpretation, cost realism analyses and submit hoc extensions of proposal deadlines. The 3rd scenario requires an in-depth appear at the bounds of sole-resource awards.

CW Govt

Vacation In CW Governing administration Journey Inc. v. U.S., CW lifted many worries to the U.S. Common Providers Administration’s award of a contract for journey administration solutions for the U.S. Military below the Federal Offer Schedules.[1]

Among the other things, CW argued that the GSA (1) unreasonably credited the awardee’s proposed key staff for acquiring U.S. governing administration journey working experience the place they experienced labored only at defense contractors, and (2) unsuccessful to perform rate realism and unbalanced pricing evaluations as expected by the ask for for quotations, or RFQ.

Despite the fact that the GAO summarily denied CW’s protest,[2] the court docket sided with CW and slammed the GSA for both of those its tortured interpretation of the RFQ and its unreasonable analysis.

With regard to critical personnel, the RFQ needed sure positions to have practical experience with U.S. authorities travel. Pursuant to this requirement, the GSA credited the awardee for a number of proposed staff that had working experience in furnishing journey companies for contractors in the aerospace and defense industries but not specifically to federal government workers.

CW argued the GSA’s analysis was opposite to the RFQ, which it claimed evidently necessary knowledge offering travel solutions to governing administration staff, either as a government worker or a contractor.

CW defined that professional journey expertise, which include that supplied to aerospace and protection contractors, is not the exact same as federal government vacation, as contractors are not required to comply with govt and U.S. Section of Protection travel regulations, which are key demands of the RFQ. The GSA defended its evaluation by — improperly — declaring that aerospace and protection contractors traveling at the government’s price are essential to adhere to a lot of of the exact same guidelines as government workers and, hence, practical experience at these contractors fulfilled its demands. The GAO agreed with the GSA, finding that CW was conflating the terms “U.S. government travel” and “official journey,” which was also referenced in the RFQ.

The courtroom, even so, disagreed and approached the difficulty as one of agreement interpretation, discovering that the prerequisite was, as CW argued, straightforward and plainly required expertise furnishing journey products and services right to governing administration personnel. The courtroom noted that the GSA’s interpretation introduces ambiguity into the necessity for the reason that it is unclear what style of authorities contractor experience is satisfactory, supplied that the agency regularly refers to only aerospace and defense contractors.

The court docket also pointed out that the GSA’s reasoning was, as CW pointed out, factually incorrect since contractors are not subject matter to the exact same travel restrictions as government staff. Lastly, the court docket rejected the GSA’s argument that CW conflated the terms “U.S. authorities travel” and “official travel” because the RFQ employs the time period “official travel” in a number of contexts with various meanings.

With regard to cost realism — i.e., no matter whether an offeror’s proposed costs are so small that there is a danger that the offeror does not realize the technological specifications or may possibly not be in a position to correctly perform — and unbalanced pricing, CW argued the GSA failed to carry out a sensible rate analysis and failed to identify the awardee’s unbalanced pricing relevant to its proposal to conduct some contract requirements for free.

CW’s arguments stemmed from the GSA’s possess analysis in which it uncovered that dependent on the awardee’s “low pricing approach, the governing administration may be accepting a sizeable threat about regardless of whether the company actually understands the necessities to control government travel.”

The GSA elevated this concern with the awardee in conversations, and the awardee responded that it comprehended it was offering providers at no value to the governing administration and that it would not be entitled to any changes less than the fixed-price arrangement. The awardee also presented a four-aspect rationale for its pricing. The GSA argued that these conversations, together with its complex evaluation, shown the awardee understood the requirements and solved its unbalanced pricing concerns.

CW argued that the history unsuccessful to clarify how these conversations settled the GSA’s issues, but the information of CW’s reasoning had been not presented in the GAO’s determination. Irrespective of these issues, the GAO sided with the company, obtaining that “the record exhibits the company viewed as the realism of the awardee’s rate,” and that the contracting officer’s more explanations throughout the protest litigation were sufficient to fill any gaps in the contemporaneous report.

The court disagreed, acquiring that regardless of its statements, the GSA experienced failed to conduct suitable price realism and unbalanced pricing evaluations. With regard to selling price realism, the courtroom mentioned that the GSA’s placement experienced flip-flopped in between the GAO and the court docket, with the GSA originally arguing no price realism evaluation was expected and now arguing that it was only expected for all round costs, which it promises to have evaluated.

The court uncovered that the RFP did, in simple fact, have to have a price realism analysis of over-all pricing and practically nothing in the document even suggested the GSA had essentially performed such an analysis.

The only rate realism evaluation in the document was in the GSA’s cost evaluation, in which the evaluators flagged opportunity realism concerns for unique line goods, which the court found to have under no circumstances been solved. Central to the court’s reasoning was the reality that the GSA claimed its discussions with the awardee, including the four justifications it presented for its pricing, experienced assuaged any realism fears.

On the other hand, these so-named justifications have been very little far more than quotations from the awardee’s proposal. The court docket concluded that:

[It] would seem the extremely definition of arbitrary and capricious for an agency to conclude that the reasoning an offeror has now supplied to an company and is obviously within just an agency’s possession before it sought clarifications can someway suffice for

a “meaningful” rate realism examination when that reasoning is recurring verbatim to the company in a later interaction.

The courtroom also disagreed with the GSA as to whether it executed an unbalanced pricing analysis on very similar grounds. Even though the company observed unbalanced pricing issues in its original pricing analysis, those people concerns have been not — and could not be — fixed by the awardee’s citations to its have proposal in conversations.

Takeaways

CW Federal government Journey demonstrates the likely advantages of bringing 2nd-shot protests involving intricate difficulties of agreement interpretation to the court docket after a denial at the GAO. Listed here, although the GAO afforded the agency’s interpretation of the RFQ terrific deference, the courtroom took a a lot more vital technique.

Syncon

Syncon LLC v. U.S. consists of a substantive split concerning the GAO and the court, this time involving the so-known as late-is-late rule, which necessitates rejection of proposals submitted right after the submission deadline other than in pretty limited conditions.[3]

In Syncon, offerors had been instructed to submit their proposals to the U.S. Navy working with the DOD’s protected accessibility file exchange, or Safe, site. Offerors have been expected to request upload back links prior to bid submission, and were being instructed that prosperous submission would final result in a “drop-off completed” notification.

The protestors stated that they tried to upload their proposals in the last number of minutes just before the submission deadline but appeared to come upon specialized troubles as they did not receive drop-off concluded notifications.

In response to the technological difficulties the protestors seasoned, the Navy opted to amend the solicitation to lengthen the submission deadline write-up hoc and make it possible for the protestors and all other offerors to post up-to-date proposals before the new deadline.

The company based its selection on a extensive-standing GAO rule, reflected in the GAO’s March 2007 final decision in Geo-Seis Helicopters Inc., or Geo-Seis I, in which GAO held that article hoc time extensions are permitted “where the determination for the extension is increased opposition,” as very long as all offerors are presented the reward of the time extension.[4]

A different offeror — which achieved the primary proposal deadline — then submitted an company-level protest of the publish-hoc extension, citing the court’s July 2007 final decision in Geo-Seis Helicopters Inc. v. U.S., or Geo-Seis II, in which the court held that put up hoc extensions violate the late-is-late rule in Federal Acquisition Regulation 52.215-1.[5]

In response to that protest, the Navy opted for a post hoc rescission of its post hoc extension and notified the authentic protestors that their proposals had been, as soon as once again, rejected as late.

Syncon then introduced the concern to the court docket, arguing that (1) the agency’s choice to rescind the put up hoc extension was unreasonable as the extension was permitted beneath the precedent established by the GAO in Geo-Seis I, and (2) the agency’s conclusion was the final result of a deficient company-amount protest in which the protestor failed to display it was prejudiced by the extension. The protestors alternatively argued that their proposals ought to have been accepted beneath a single of the confined exceptions to the late-is-late rule.

The court denied the protests.

With regard to the allowability of submit hoc extensions, the court reaffirmed its ruling in Geo-Seis II, stating that issuing put up hoc amendments would render the late-is-late rule in Significantly 52.215-1 a nullity. The court docket famous that, whilst contracting officers have substantial discretion, “that discretion does not increase to violating the Much.”

Addressing the split with the GAO, the court stated that the GAO’s holding in Geo-Seis I and subsequent conditions is a comptroller-typical-developed rule that is not mirrored in the Much, and therefore would not be adopted by the court docket.

The court docket also rejected the protestors’ problems about the propriety of the agency-level protest that led to the rescission of the extension, acquiring that even if the protest was deficient, the agency experienced the discretion to consider corrective motion to cure its have perceived faults so prolonged as it experienced a rational basis for that corrective motion.

Eventually, the court docket denied the protestors’ arguments that specified exceptions to the late-is-late rule ought to utilize below. With regard to the unanticipated occasion exception, the court defined that the history contained no proof of any unanticipated gatherings that impacted the submission of proposals.

Not only ended up all other offerors ready to effectively submit their proposals via the DOD Protected company, but DOD Protected directors also verified there were no outages or problems in the system through the appropriate time interval.

With respect to the federal government control exception, the court docket located that the protestors’ statements that their proposals were well timed uploaded have been unsupported.

Even though the protestors provided screenshots of internet history demonstrating they visited the DOD Secure site at the time of their claimed submissions alongside with supporting declarations from staff members, this did not establish the proposals had been in the government’s control before the deadline.

Importantly, Significantly 52.215-1(3)(iii)(A)(2) requires offerors have proof of receipt of the proposal by the authorities to induce this exception, which the protestors could not verify by demonstrating their makes an attempt to well timed upload their proposals.

Takeaways

This scenario is yet a further instance of the have to have to depart ample time to address technological concerns although distributing proposals. Very last-moment submissions are a recipe for disaster, so proposal teams must prepare accordingly.

Sierra Nevada

In Sierra Nevada Corp. v. U.S., the U.S. Air Drive issued a justification and approval, or J&A, for a $981 million, five-calendar year, sole-source, indefinite shipping and delivery, indefinite amount contracts award to Sikorsky Plane Corp. for capacity updates to the beat rescue helicopter program.[6] The J&A was premised on the fact that the Air Drive expected a hold off in obtaining the complex data package expected for other contractors to carry out the work.

While Sikorsky was contractually necessary to supply the specialized information offer in early 2021, a mixture of system delays and a dispute amongst Sikorsky and the Air Force in excess of facts legal rights delayed shipping and delivery. Thus, as the authentic manufacturer, Sikorsky is the only contractor with the technical knowledge package needed to conduct the work without several several years of reverse engineering.

Sierra Nevada protested the J&A, arguing it was dependent on incomplete market investigate and lack of advance planning. The court disagreed with Sierra Nevada on the two grounds.

With regard to industry investigate, Sierra Nevada claimed the J&A was inappropriate simply because the agency failed to consider its second submission in response to the sources-sought synopsis. The court docket turned down this argument as not only was Sierra Nevada’s 2nd submission submitted 7 months after the submission deadline, but it also failed to supply any new info that would undermine the J&A. Specially, Sierra Nevada argued that its second submission demonstrated that it could conduct a great deal of the operate without having the complex knowledge bundle and thus a sole resource was pointless. In rejecting this reasoning, the court pointed out that Sierra Nevada’s unique submission had presently mentioned that Sierra Nevada could do a good deal of the operate without the deal, but the Air Force fairly decided that functioning with out the package deal would generate much too important of a chance.

Sierra Nevada also argued the J&A was the product of a deficiency of state-of-the-art planning on the aspect of the Air Force and hence could not provide as the justification for the sole-source award under the Opposition in Contracting Act. Especially, Sierra Nevada argued that the Air Drive had enough time to resolve its data legal rights dispute with Sikorsky in time to relieve the have to have for a sole-supply award.

The court not only disagreed with Sierra Nevada, but instead noted that the J&A by itself represented the Air Force’s attempts mitigate expected challenges with the specialized facts offer shipping and delivery. The court docket pointed out that the dispute with Sikorsky appeared to be a superior faith dispute, and that even though the technological facts package was delayed, Sikorsky had not nonetheless breached the agreement, nor had the Air Power unsuccessful to choose proper steps to enforce the deal.

Despite denying both of Sierra Nevada’s grounds for protest, the court docket nonetheless observed the length of the sole-source award to be inappropriate, and granted Sierra Nevada’s request for injunctive aid. The court docket famous that while the sole source was proper for the present specialized knowledge package deal issue, the very long length of the award would improperly stifle competitiveness perfectly following the anticipated supply of the specialized information package:

In that regard, the significant challenge for the Company is that the J&A merely does not demonstrate how the present-day unavailability of a [technical data package] justifies a sole-supply award for the entirety of the battle rescue helicopter update agreement, which contemplates a 5-calendar year purchase time period and a 7-yr delivery time period.

Even further, though the J&A acknowledged this difficulty and proven techniques for making sure level of competition to the optimum extent practicable as soon as the specialized info package deal was shipped, these guarantees had been neither enforceable nor protestable owing to the process-order protest bar. The court docket concluded that “[a]n unenforceable guarantee to contend long run supply orders … is insufficient to comply with the [Competition in Contracting Act’s] demands.”

Takeaways

This choice serves as a reminder to contractors to assure industry study responses are entire and accurately converse abilities. Master from Sierra Nevada’s mistake, as you may perhaps not get a 2nd chunk at the apple. This selection also emphasizes the have to have to scrutinize all aspects of sole-resource J&As. Even exactly where an agency’s sole resource justification normally appears audio, the ensuing award may possibly be overturned if not properly tailored to the circumstances giving increase to the justification.