The awardee acquired another firm and then used that firm’s contracts as past performance references. The protester objected, but the COFC didn’t see a problem. The awardee acquired the assets associated with the contracts, and the contracts were ultimately novated to the awardee.
Vectrus-J&J Facilities Support, LLC v. United States, COFC No. 23-300
- The Acquisition – In November 2020 Amentum acquired the parent company of DynCorp International. In 2021, in the midst of integrating DynCorp, Amentum bid on a Navy contract. At the time of the bid, Amentum hadn't novated all of DynCorp’s contracts. Still, Amentum claimed some of those contracts as past performance references. The Navy ultimately accepted the references and awarded the contract to Amentum
- Misrepresentation – The protester argued Amentum made a misrepresentation in its proposal, falsely stating DynCorp had already transferred it assets associated with the referenced contracts. The court, however, found Amentum’s representations were not false. Amentum represented the contracts were in the novation process. Amentum truthfully represented it was waiting for DCMA to approve the novations. What’s more, DynCorp had transferred its assets associated with the contracts to Amentum before Amentum bid on the solicitation.
- Was DynCorp a Subsidiary? – The solicitation prohibited an offeror from relying on a subsidiary’s contract. The protester alleged Amentum violated this provision because DynCrop was a subsidiary. But the court found the solicitation did not prohibit the Navy from treating DynCorp as a predecessor rather than a subsidiary. Indeed, the record showed Amentum controlled all the assets relevant to the contracts at each stage of the integration process.
- Was DynCorp a Predecessor? – The protester argued the Navy could not credit Amentum as a predecessor to DynCorp because Amentum had only acquired portions of DynCorp’s business units. The protester reasoned only a legal entity, not a business unit, can be a predecessor. The court found this argument was not supported by the FAR, and that the agency had some discretion in defining a predecessor.
- Reasonably Predictive Analysis – The protester contended DynCorp’s contracts were not reasonably predictive of Amentum’s ability to perform the current requirements. The court disagreed. DynCorp was Amentum’s predecessor. Amentum held assets associated with the contracts, and all of the contracts were ultimately novated and transferred to Amentum.
The protester is represented by Adam K. Lasky and Amy C. Hoang of Seyfarth Shaw LLP. The awardee is represented by Kevin P. Connelly, Kelly E. Buroker, Tamara Droubi, and Jeffrey M. Lowry of Vedder Price P.C. The government is represented by Stephanie A. Fleming, Brian M. Boynton, Patricia M. McCarthy, and William Grimaldi of the Department of Justice as well as Arum Limani of the Navy.
--Case summary by Craig LaChance, Senior Editor