The protester filed a COFC protest, challenging the award of an Other Transaction Agreement (OTA). The government argued that an OTA is not a procurement, so the COFC lacked jurisdiction under the Tucker Act. But the court reasoned that the Tucker Act authorizes jurisdiction over protests connected to proposed procurements. Here, the OTA was part of the agency’s process for determining its need for an acquisition. Thus, the OTA was connected to a possible procurement. The court had jurisdiction.
Hydraulics International, Inc. v. United States, COFC No. 22-364
Background
The Army (through an intermediary that manages Other Transactions Agreements) issued a Request for Whitepapers (RWP), which sought to use an OTA for upgrades to helicopter Aviation Ground Power Units. The RWP contemplated a base effort of one prototype unit with an option for ten more prototypes. The RWP provided that the project may result in the award of a follow-on production contract.
Five bidders submitted white papers. The Army selected two of them for OTAs. An unsuccessful bidder, Hydraulics International, filed a protest with the Court of Federal Claims, alleging the Army misevaluated its white paper.
Court’s Analysis
Jurisdiction
The government asked the court to dismiss the protest for lack of jurisdiction. The Army argued that under the Tucker Act, the COFC only has jurisdiction over suits “in connection with a procurement.” The government argued that OTA’s are not procurements, so the court couldn’t decide the case.
The court agreed that generally OTAs are not procurements. Nevertheless, the Tucker Act also gives the COFC jurisdiction over a “proposed procurement,” which contemplates the ability to protest pre-procurement decisions. Therefore, the court opined, if an OTA is part of an agency’s process for determining the need for an acquisition, it is connected to a proposed procurement, and the court can exercise jurisdiction.
Here, the court found the RWP was connected to a proposed procurement. The Army issued the RQP to serve as a bridge between the old and new power units. The Army was using the whitepapers and OTA prototypes to determine whether to purchase upgraded power units. Every aspect of the whitepaper was geared toward determining the Army’s “need for property.” The court had jurisdiction over the protest.
Supplementation of Administrative Record
Hydraulics requested to supplement the administrative record with a declaration from its President, which purported to show that the awardees could not meet a modularity requirement for the power units. The court denied the request, finding that the declaration offered nothing to the record other than a contradiction of the awardee’s submissions. Admitting this declaration would simply convert the “arbitrary and capricious” review into a de novo review. Moreover, even if the allegations in the declaration were true, an offeror’s potential failure to comply with requirements is a matter of contract administration that the court doesn’t consider in protest.
Evaluation of Hydraulics’ Schedule
Hydraulics contended that the Army misevaluated its proposed schedule. Hydraulics had proposed two prototypes, one that complied with an operational requirement, and one that did not. Hydraulics said that the non-compliant could be ready in nine months while the compliant prototype would be ready in a year. The Army’s evaluation had noted the compliant prototype would need “an additional 12 months.” Hydraulics alleged this was incorrect in that the compliant prototype only needed an additional three (the difference between 12 months for the compliant prototype and nine months for the non-compliant prototype).
The court rejected this argument, finding that the Army had property evaluated Hydraulics’ timeline. In fact, the Army rejected the non-compliant alternative. Thus, any discussion of timeline would be in reference to the 12 months needed for the compliant prototype, not the difference between the compliant and non-compliant alternative.
Hydraulics also complained that the Selection Memorandum misstated the company’s schedule. Hydraulics whitepaper had proposed 27 total months of performance. The selection memorandum indicated a period of performance of nine months. Hydraulics believed that this showed the Army relied on incorrect information.
But the court found that the information in the selection memorandum had been provided by Hydraulics itself as part of the whitepaper submissions process. Regardless, Hydraulics had not provided any evidence to show the government actually relied on this information.
Waiver of Modularity Requirement
Hydraulics claimed the Army waived or relaxed a modularity requirement for the awardees. The court noted that much of this argument was based on the declaration from Hyraulics’s President, which the court had already precluded from the record. In any event, Hydraulics had not identified a single statement in the other awardees’ whitepapers that indicated they would not comply with modularity requirements.
Hydraulics is represented by Howard W. Roth, Nicole E. Wolf, and Jedidiah K. Blake of the Oles, Morrison, Rinker & Baker, LLP. The government is represented by Galina I. Fomenkova, Brian M. Boynton, Patricia M. McCarthy, and Douglas K. Mickle as well as Seth B. Ritzman, Bruce L. Mayeaux, and Michael McDermott of the Army.
