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No Evidence Agency Considered Whether Awardee’s Key Individual Could Perform At Proposed Labor Hours; GAO B-416728, Barbaricum LLC

Protest challenging the agency evaluation of the awardee’s proposed program manager is sustained, where the record contained no evidence the agency considered whether the individual would be able to meet the requirements based on the number of proposed labor hours, which were significantly lower than the IGCE. GAO also found the agency’s evaluation of the awardee’s staffing plan contained only cursory statements regarding the proposal, rather than the robust examination contemplated by the solicitation. GAO denied a challenge to the price evaluation and found the agency had not engaged in disparate discussions when it asked the awardee to clarify a minor technical error in its price proposal.

Barbaricum LLC protested the Air Force’s award of a task order for opinion research support services to Fors Marsh Group, challenging the evaluation of price and technical quotations, and the agency’s conduct of discussions.

First, Barbaricum challenged the price evaluation, arguing the agency should have used the total cost on attachment 5 of Barbaricum’s quotation, rather than the sum of the CLINs identified in attachment 2. According to the protester, because labor is the driver for price evaluation purposes, a correct evaluation would have determined Barbaricum offered a lower price than what the agency calculated.

However, GAO disagreed, finding no rational basis for the agency to consider only the pricing information in attachment 5—labor category, hours, and fully burdened labor rates—while ignoring the information in attachment 2, which included CLINs for labor, deliverables, and travel for the base and option years.

Next, the protester argued the agency engaged in discussions with the awardee regarding its labor cost without opening discussions to every offeror. In an email to the awardee, the agency noted the labor cost for the base year was different on the two price attachments. The agency asked FMG to clarify which was the correct price and the awardee responded with a corrected price sheet. Barbaricum argued this exchange constituted discussions. However, GAO disagreed, noting that the difference between the two prices was less than two-tenths of one percent. The agency knew that one of the prices was correct and merely required a clarification. Further, the awardee’s total price remained lower than the protester’s regardless of which price was used.

Finally, Barbaricum argued the agency failed to consider whether the awardee’s proposed program manager/SME hours were sufficient to perform the solicitation’s requirements. According to Barbaricum, the awardee’s proposed hours were significantly less than the estimated hours in the IGCE. The protester argued the record showed no evidence the agency considered the program manager/SME’s ability to perform based on the proposed hours per week or how the individual could be expected to be on immediate call given the low number of hours.

GAO agreed, finding nothing in the evaluation to show the agency considered FMG’s quoted labor hours for acceptability. The agency argued that the IGCE labor hours were based on the current contract, but GAO noted the awardee’s labor hours were purported to reflect the current level of effort. GAO found the agency did not address the disparity between the IGCE and the awardee’s proposed hours. The solicitation provided that the program manager/SME would be significantly involved in performance and required to be reachable on fairly short notice. Given the critical role of this individual, GAO found the agency’s failure to consider the number of proposed hours for the position to be unreasonable, as well as evidence of disparate treatment.

Further, GAO found the agency did not perform the type of comprehensive evaluation of the awardee’s staffing plan that was contemplated in the solicitation. The RFQ required vendors to provide detailed staffing plans, but the evaluation included only cursory statements about the awardee’s proposed mix of personnel and their experience, rather than an examination of the specific requirements in the solicitation. Accordingly, GAO sustained the protest on this basis.

Barbaricum LLC is represented by David Y. Yang and Alix K. Town of Oles Morrison Rinker & Baker, LLP. The government is represented by Jason R. Smith, Department of the Air Force. GAO attorneys Kenneth Kilgour and Jennifer D. Westfall-McGrail participated in the preparation of the decision.

Agency Reasonably Canceled Solicitation to Switch to More Advantageous Contract Vehicle; GAO B-416390.5, Abacus Technology Corporation

Protest alleging that the agency improperly cancelled a solicitation following two protests is denied, where the agency reasonably decided to pursue the requirement using a newly-available IDIQ that provided for a longer period of performance. While the agency knew the IDIQ used for the original solicitation would not provide for its preferred period of performance, department policy required use of this IDIQ. GAO found it reasonable for the agency to switch to new contract vehicles with longer performance periods when they became available.

Abacus Technology Corporation protested U.S. Citizenship and Immigration Services’ decision to cancel a solicitation for IT services after several rounds of challenges to the evaluation and award decisions.

USCIS initially awarded the contract to Abacus, but that decision was protested by Salient CRGT Inc. After corrective action, the agency awarded the contract to Salient and Abacus protested. At this time, the agency decided to cancel the solicitation altogether and begin with a fresh acquisition using a different contract vehicle. The agency explained that the EAGLE II IDIQ would expire in 2020 and thus task orders under the contract would not be able to provide five years of uninterrupted services.

Abacus argued that the agency’s rationale for cancelling the solicitation is premised upon an incorrect reading of the underlying EAGLE II IDIQ contract and that any alleged desire for a five-year period of performance is belied by agency actions over the course of this procurement. Instead, Abacus alleged the cancellation is a pretext to avoid defending against another protest.

However, GAO found the agency’s rationale reasonable. First, GAO rejected Abacus’ argument that the agency misread the provisions of the IDIQ. Abacus noted that task orders could run through September 2021, even though the IDIQ expires in September 2021. However, the agency’s stated preference was to award a task order that would provide uninterrupted services for at least 60 months, well beyond the September 2021 expiration date. Therefore, GAO found it irrelevant whether a task order issued under the cancelled solicitation would run for 20 months or 32 months.

Alternatively, Abacus argue the agency was well aware of the expiration date for EAGLE II when the original solicitation was issued, and therefore the impending expiration of the contract is not a new issue that justifies a change in the agency’s procurement strategy. According to Abacus, USCIS knew that a five-year period of performance was not available, and that the agency never purported to require such a period.

Specifically, Abacus noted that the solicitation contemplated a four-year period of performance. Further, the agency issued the initial award to Abacus even though only three years of performance remained, and made the second award to Salient, even though less than three years remained. Abacus alleged that the desire to avoid another protest was the true reason for the cancellation.

USCIS conceded that the initial solicitation provided for a four-year period of performance, as that was the maximum time available under EAGLE II. However, the agency noted it was required by DHS policy to use EAGLE II for these services, even though it would have preferred a longer period of performance. However, as the second protest played out, DHS announced a portfolio of contracts designated to replace EAGLE II and USCIS decided to avail itself of one of these new vehicles. Thus, rather than award a task order under EAGLE II, which would require the agency to conduct another procurement within the next 2 to 3 years, USCIS opted to pursue the work using a new contract vehicle that would provide its preferred period of performance.

GAO found nothing objectionable about the agency’s decision and no evidence the agency wished to avoid a competitive procurement or another protest. GAO noted that an agency may reasonably cancel a solicitation when it identifies a contract that is more advantageous. GAO also explained that the question here is not what the agency would have done absent the second protest, but whether its actions were reasonable.

Abacus Technology Corporation is represented by Gregory R. Hallmark and Elizabeth N. Jochum of Holland & Knight LLP, and Alexander B. Ginsberg and Meghan D. Doherty of Pillsbury Winthrop Shaw Pittman LLP. Salient CRGT Inc. is represented by Holly A. Roth, Elizabeth G. Leavy, and Lawrence P. Block of Reed Smith LLP. The government is represented by John Cornell, Department of Homeland Security. GAO attorneys Elizabeth Witwer and Jennifer D. Westfall-McGrail participated in the preparation of the decision.

Protester Cannot Show Prejudice from Agency’s Use of Commercial Item Procedures; GAO B-417292, Pilot Xpress LLC

Protest challenging the terms of a solicitation issued under commercial item procedures is denied, where the protester failed to show any prejudice arising from the agency’s use of commercial item procedures and, in fact, had submitted a proposal for the requirement. While the protester argued that flight training conducted under live-fire flight engagement scenarios was not available on a commercial basis, GAO declined to consider the appropriateness of the agency’s decision to use commercial item procedures absent evidence of prejudice.

Pilot Xpress LLC protested the terms of a request for proposals for aircrew flight and maintenance training for helicopters, issued by the General Services Administration on behalf of the Air Force. PX argued that the agency improperly is soliciting certain services on a commercial item basis, despite the fact that such services are not sold commercially.

The RFP requires firms to offer both classroom coursework, and hands-on training using both aircraft and flight simulators. PX contested the solicitation requirement for live-fire training, under which firms must provide both classroom coursework and training aboard aircraft equipped with mounted machine guns to be used in live-fire exercises performed by the trainees. According to the protester, live-fire training services are not available on a commercial basis, and therefore the agency cannot use FAR part 12 commercial services procedures.

GAO denied the protest, finding that PX was not prejudiced by the terms of the solicitation. When a protester cannot demonstrate prejudice, GAO will not decide the issue of whether solicited services properly are designated as a commercial item, or whether the solicitation properly was issued using commercial item procedures.

GAO noted that the sole reason the agency issued the subject solicitation is that the live-fire element is out of scope of the agency’s existing contracts for obtaining aircrew flight and maintenance training. The live-fire element therefore is central to the purpose of the solicitation. GAO also noted that PX has the capability to offer the live-fire element of the requirement, and that it had submitted a proposal in response to the solicitation that includes the live-fire element of the requirement.

PX did not challenge the agency’s need for the training but argued only that it should not be solicited as a commercial item. However, PX did not argue that any aspect of the provisions or procedures unique to commercial item procurements put it at a competitive disadvantage, or that it otherwise is prejudiced by the agency’s use of commercial item procedures. PX’s sole basis for claiming that it has been prejudiced is its assertion that it will be required to use a subcontractor to provide these services as part of its proposal team.

According to GAO, even if it agreed with PX that the agency inappropriately solicited the live-fire element of the requirement as a commercial service, its recommendation would be to simply continue with the acquisition using only FAR part 15 negotiated contracting procedures. In light of the central nature of the live-fire element, GAO found not recommend that the agency eliminate the live-fire element from the solicitation.

Since PX is able to compete under the current RFP, and has not alleged or demonstrated that any aspect of FAR part 12’s provisions or procedures unique to commercial item procurements put it at a competitive disadvantage, GAO found no basis to sustain the protest, even if it agreed with PX on the merits.

Pilot Xpress LLC is represented by Bryan R. King and Andres M. Vera of Offit Kurman Attorneys-at-Law. The government is represented by Amy A. Cook and Angie Calloway, General Services Administration. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.

GAO Says Five Days Enough Time to File Protest; GAO B-417491, Warrior Service Company

Protest challenging the terms of a solicitation is dismissed as untimely, where the protester filed its protest after the deadline for quotations, even though it was submitted within 10 days of the solicitation posting date. Although the agency limited the time available for responses, GAO found that five days was sufficient for the protester to file its challenge and declined to make an exception to its timeliness rules.

Warrior Service Company protested the time to submit quotations allotted by the Department of Veterans Affairs for a procurement for brand name furniture, arguing that the RFQ did not provide enough time to prepare a quotation and the brand name or equal requirement unduly restricts competition.

The solicitation was issued on April 3, 2019, and it required vendors to submit quotations by April 8, 2019. Six vendors submitted their quotations on time and WSC filed its protest on April 15, 2019.

The agency argued the protest was untimely, as it was filed after the closing time for quotations. In response, WSC argued that because its protest was filed within 10 days of the RFQ’s posting, it should be considered timely. WSC argued that VA cannot shorten the solicitation response time such that the 10 day time period to file a protest at GAO is eliminated. WCS noted that GAO has previously recognized an exception to its timeliness rules when, as a result of extremely limited time periods, circumstances do not permit filing a protest before the solicitation closes.

GAO acknowledged that in a previous protest, it had made such an exception. However, in that case, the protester received a solicitation amendment that provided its protest grounds only one day before bid opening. GAO found the protester did not have a reasonable opportunity to protest before the solicitation period closed.

GAO found this circumstance inapplicable to WSC’s protest. GAO noted that WSC had five calendar days before quotations were due to submit its protest, in contrast to the shorter time periods which have prompted GAO to make an exception to its timeliness rules. Believing five days was enough time for WSC to prepare its protest, GAO found no compelling reason to make an exception to its rules.

Warrior Service Company is represented by Frank V. Reilly of Frank V. Reilly Attorney at Law. The government is represented by Kathleen Ellis, Department of Veterans Affairs. GAO attorneys Sarah T. Zaffina and Peter H. Tran participated in the preparation of the decision.

GAO Protest Decision Does Not Trigger Collateral Estoppel for Claim; ASBCA No. 61320, Appeal of Chugach Federal Solutions Inc.

The government’s motion for partial summary judgment on a claim asserting it withheld superior knowledge of the estimated amount of work required for contract performance is denied, where the appellant’s participation as an intervenor in a protest challenging its award did not preclude it from pursuing its superior knowledge theory of recovery. The agency argued the appellant had asserted in the protest that the independent government estimate of the workload was inaccurate and therefore it could not change its litigating position to argue that the agency withheld this allegedly inaccurate estimate to its detriment.

However, the board held that the protest did not turn on the accuracy of the IGE and that the agency had never asserted the IGE was unreliable, and therefore the appellant had not presented arguments that conflicted with its litigating position at GAO. The board also held that a decision in a tangentially related GAO protest did not constitute a decision that triggered collateral estoppel. Finally, because the appellant was only the intervenor in that protest, it could not have previously asserted a claim, nor waived its ability to assert the claim.

Chugach Federal Solutions Inc. and the government filed cross motions for partial summary judgment on Chugach’s claim alleging that the government withheld superior knowledge regarding the level of effort required to perform its contract and how the work differed from the prior contract.

Chugach’s claim arose from a protest challenging the agency’s decision to award it an IDIQ contract for base operations support services, which came under protest by an unsuccessful offeror. Chugach intervened in that protest and worked with the Navy to prepare the agency report. As part of this coordination, Chugach had access to Navy source selection documents and Chugach’s counsel, in turn, provided the Navy access to a secure document exchange system to facilitate the Navy’s sharing of documents with CFSI.

The protest involved the agency’s evaluation of offerors’ proposed staffing. The Navy first compared the offerors’ proposed staffing levels to the IGE and then additionally evaluated the staffing levels using a statistical analysis calculating the mean and standard deviation of the offers, excluding the IGE, and reviewed the offerors’ technical approaches. The agency explained that, rather than relying entirely on an inaccurate and undisclosed estimate, it employed a statistical analysis that would identify any elements of an offeror’ s proposal that significantly deviated from that of the other offerors and then evaluated whether anything in that offeror’s proposal supported such a deviation. The Navy asserted the IGE was simply a “starting point” for its reasonable evaluation.

After GAO denied the protests, Chugach submitted a certified claim to the Navy for $36,043,945, alleging that the government withheld superior knowledge regarding the level of effort required to perform the contract and how the work differed from the prior base operations support contract. The CO denied the claim and this appeal followed.

The Navy moved for partial summary judgment, arguing that Chugach’s actions constitute judicial estoppel. According to the Navy, Chugach’s current position—that the Navy possessed superior knowledge that was reflected in the IGE—is inconsistent with positions asserted in the GAO protest, in which Chugach intervened and participated in the preparation of responses. The Navy argued that Chugach had presented the IGE as “inaccurate” during the GAO protest, and therefore could not now point to the IGE as evidence of the Navy’s superior knowledge to support its claim.

In response, Chugach maintained that its statements of general support in favor of the Navy’s position do not constitute a litigating positing before GAO, and the statements were not inconsistent with its current position. Chugach noted GAO did not adopt its contentions and that the Navy has not established that Chugach would gain an unfair advantage in its appeal. The Navy argued that statements in the agency report can be attributed to Chugach because Chugach assisted in drafting the report and endorsed the agency report to the GAO.

First, even assuming that Chugach’s endorsement of the Navy’s position constitutes Chugach making the same arguments to the GAO, the board held that Chugach did not assert “clearly inconsistent” positions before the GAO and before the board.

First, the board noted that the agency report did not characterize the IGE as inaccurate. The board found that some of the documents the agency used to make this argument were not quoted in the agency report nor cited by GAO. Further, the Navy cited to source selection documents that were prepared before award of the contract, and thus, before the post-award protest and without Chugach’s involvement. Thus, the board held these documents did not constitute statements to a tribunal.

The board therefore limited its analysis to statements actually presented to GAO in the agency report. Contrary to the Navy’s arguments, the statements actually contained in the agency report did not state that the IGE is inaccurate. Rather, the agency report explained how the Navy evaluated staffing and used “inaccurate and undisclosed” only in reference to an evaluation challenged in a prior GAO protest. Read as a whole, the board held that the agency report did not argue that the IGE is inaccurate, but rather that it was but one element of a more thorough analysis.

Put more simply, the dispute before the GAO was process-based, and did not address the quality of the data. Thus, the board held that Chugach had not asserted directly inconsistent positions before GAO and the board. Therefore, the board held there was no risk that either GAO or the board were misled and that there was no need to invoke judicial estoppel.

In its cross-motion, Chugach stated that its superior knowledge claim did not turn on whether the Navy’s IGE was accurate. Rather, it turned on whether the Navy improperly withheld the underlying information that it used to develop that estimate. The Navy argued that Chugach’s statement was an admission that the IGE does not constitute superior knowledge. The Navy asserted that its motion was limited to Chugach’s allegation that the IGE itself, and not the underlying data, constituted superior knowledge.

However, the board found this argument inconsistent with the Navy’s motion, which challenged Chugach’s claim on the grounds that its argument of superior knowledge was undercut by its representation to GAO that the IGE was unreliable. The board Chugach’s position to be that the Navy knew that it would cost the awardee more to perform this contract than it cost the incumbent contractor to perform the previous contract and that this superior knowledge was used by the Navy to prepare the IGE.

In its cross-motion, Chugach argued the Navy cannot establish the affirmative defense of estoppel, and the board agreed. With regard to collateral estoppel, Chugach noted that the required elements for that affirmative defense include a valid final decision on the merits. Chugach argued that a decision in an unrelated GAO protest did not constitute such a decision, and the board agreed, because the GAO issues only non-final advisory opinions in bid protest actions.

Further, Chugach noted the Navy’s inability, in discovery responses, to identify reliance or prejudice. In an interrogatory, Chugach asked the Navy to identify all statements, actions, or omissions that the Navy contends support its affirmative defense of estoppel. In response, the Navy stated that when Chugach submitted its comments to GAO, the Navy had no reason to believe that Chugach was being anything other than accurate. The Navy stated it might be impossible to ever state definitively what actions or inactions the Navy may have taken or not taken had it believed that CFSI’s protest position was not being accurately stated.

The government did not request time to take discovery but simply asserts that the board should deny Chugach’s motion because the government might be able to develop facts in the future to oppose the motion. The board found this argument insufficient. The board explained that the non-moving party cannot request deferral of a ruling on a summary judgment motion simply by noting that discovery is not complete, but must explain specifically how additional discovery will allow the party to rebut the summary judgment motion.

The board also held that Chugach’s joint filing asking GAO to partially dismiss the protest did not constitute waiver, as there was no discussion of staffing levels or other issues relevant to this appeal. Further, as the intervenor, Chugach could not have asserted any-cross-or counter-claims against the Navy. Because Chugach could not have previously asserted a claim, it could not have waived its ability to assert the claim through a filing at GAO.

Chugach Federal Solutions Inc. is represented by Richard B. O’Keeffe, Jr., Gary S. Ward, Cara L. Lasley, Lindy C. Bathurst, and William A. Roberts III, of Wiley Rein LLP. The government is represented by Craig D. Jensen, Navy Chief Trial Attorney, and by David M. Marquez and Anthony Hicks, Trial Attorneys.

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