Protest challenging the award of a sole source bridge contract while the agency conducts corrective action is sustained, where the agency failed to adequately explain why it had not completed its corrective action more than 250 days after it indicated to the court it would do so, nor explained why it had not awarded a competitive bridge contract for the services. However, the court did not enjoin performance of the contract, given the sensitive nature of the requirement. Instead, it asked the plaintiff to submit further analysis of whether permanent injunctive relief is appropriate, and how that remedy would be implemented.
Global Dynamics LLC brought suit in the Court of Federal Claims, challenging the conduct of the U.S. Army Medical Command in connection with a contract to provide nursing services. By the time it reached COFC, the procurement had a long, byzantine history, involving five earlier protests and three corrective actions over four years.
Global Dynamics’ complaint before COFC asserted that the agency’s conduct following the fifth protest was unreasonable. As relevant to this proceeding, Global Dynamics argued MedCom’s decision to award a fifth sole source bridge contract to the incumbent, MedTrust LLC, during the pendency of the third corrective action, was improper.
In response, the agency had argued that it needed to award the sole source contract because following the decision to take corrective action, there was not enough time to conduct a new competition before the incumbent’s fourth sole source bridge contract expired. Global Dynamics countered that the time constraints were due to the agency’s failure to properly plan a transition, and COFC agreed, noting that the agency had 117 days to conduct the corrective action before awarding the fifth sole source contract. What’s more, four months after awarding the fifth sole source contract, the agency had still not completed the corrective action.
The agency had no explanation for this delay. Without an explanation from the agency, the court found that it was unable to determine whether the fifth sole source contract had a rational basis. Accordingly, the court remanded the matter to the agency to identify any additional facts that would explain the basis for the “extraordinary and unexpected delays” in taking corrective action.
In response to the order, the agency filed a memorandum providing a detailed timeline of the agency’s actions between November 2, 2016, when the GAO issued its protest decision, and September 14, 2017, when the agency approved the fifth sole-source contract. In explaining the delay, the government noted that several unexpected matters interfered with its ability to allocate resources to the corrective action, including (1) a Department of Labor wage determination proceeding; (2) resolution of an agency protest; (3) the solicitation and award of an interim award, also relating to nursing services; and (4) work on a large dental services acquisition. The agency also explained that personnel retirements reduced the workforce in the office responsible for the procurement. Finally, the agency noted that the CO had been given an unofficial notification that the requirement for registered nurses could increase, which required additional work on cost estimates.
Global Dynamics argued the award of the fifth sole-source contract was unreasonable, because the services were available from more than one source and because the services were not so unusual or urgent that the agency was required to limit the number of sources from which it solicited bids. The government argued that it specifically relied on the first test—that only one source was available—in making its decision.
In its initial order remanding the matter to the government for further development of the record, the court noted that the agency had not adequately explained the delay in completing the corrective action. While the agency initially estimated that 120 days would be sufficient, it missed its self-imposed deadline of April 29, 2017. When the corrective action still was not finalized, the agency eventually awarded the fifth sole-source contract on September 5, 2017, more than eight months after the agency stated it would take the corrective action.
The court found nothing in the record explaining why the agency could not conduct its corrective action within the time it estimated, nor why the corrective action was still incomplete more than 250 days later. The court was unpersuaded by the reasons the government provided for the delay.
The court acknowledged that the retirement of contracting officers from the cognizant office would have an impact on productivity, but found no evidence the retirements were unplanned or unexpected, nor any reason the government was unable to fill the vacancies. Further, the agency was presumably aware of the vacancies when it set its various deadlines for completing the corrective action. The court considered the agency’s inadequate staffing a failure on its part to plan for the retirements.
The court also was unpersuaded by the agency’s other reasons for the delay. While the court did not doubt the agency spent time on these matters, the agency’s time management issues did not provide a justification for its failure to complete the corrective action. Further, the agency’s evidence did not suggest the other matters were especially urgent, to the extent they had to be prioritized over the corrective action. The court also rejected the impact of the potential for an increase to the requirement, noting that the initial deadline for the corrective action fell well before the time the CO was notified of the potential need for additional resources. Therefore, the need for additional nurses identified in July cannot serve to justify the agency’s failures to act in April, May, or June.
Finally, the court noted the government offered no separate explanation of its failure to award a competitive bridge contract. The court concluded that the fifth sole-source award lacked a rational basis, and therefore, the agency’s decision to make the award did not comport with the requirements for awarding a contract outside of the competitive process. The court also found that Global Dynamics was prejudiced by the error. In the long history of this procurement, the plaintiff was awarded the contract three times, and therefore it is reasonable to expect Global Dynamics had a substantial chance of being the awardee again once the corrective action was complete.
Global Dynamics asked the court to enjoin performance of the contract after June 30, 2018, and to direct the agency to either complete the corrective action and transition the contract by that time, or award a competitive bridge contract. However, the court was sensitive to the agency’s need to ensure the continuity of critical medical services, and therefore asked offered Global Dynamics the opportunity to submit further analysis of whether permanent injunctive relief is appropriate, and how that remedy would be implemented given the unique constraints of this case.
Global Dynamics LLC is represented by Craig A. Holman of Arnold & Porter Kaye Scholer, and by Michael E. Samuels and Alexandra L. Barbee-Garret, of counsel. The government is represented by Tanya B. Koenig, Trial Attorney, with whom appeared Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, and Jessica E. Hom and Evan C. Williams, United States Army Legal Services Agency, of counsel, and John T. Harryman and Eugene J. Smith, United States Army Medical Command, of counsel. The intervenor-defendants are represented by Jacqueline K. Unger of PilieroMazza PLLC.
