Protest challenging agency’s corrective action is denied. The agency took corrective action to amend a solicitation because it was concerned that an offeror had made a misrepresentation in its proposal. The protester argued that the agency should not have amended the solicitation, and it should have disqualified the offeror suspected of making a misrepresentation. The court, however, found that the agency’s decision to revise the solicitation to clarify the requirement that gave rise to the misrepresentation was reasonable. Additionally, the agency did not err in failing to disqualify the other offeror. The agency never determined the offeror made a misrepresentation; it was simply concerned about a misrepresentation. Corrective action to amend the solicitation was a rational response to the agency’s concern.
The Air Force issued a solicitation for cold weather shelters. Three bidders, including Alaska Structures and CAMSS Shelters, submitted proposals. The Air Force awarded the contract to CAMSS. Alaska Structures filed a COFC protest, alleging that CAMSS’s shelter did not satisfy the snow-load requirements in the solicitation. The court ordered CAMSS to supplement the record with a test report showing its shelter’s snow-load performance.
CAMSS produced a test report, but the report only showed tests for a shelter that was smaller than the shelter required by the solicitation. The Air Force determined there was “reason to doubt the representation made in CAMMS’s” proposal. Consequently, the Air Force took corrective action. It terminated the award to CAMSS and then issued a new solicitation that required offerors to produce test results verifying that their shelters met the solicitation’s requirements.
Alaska Structures protested the corrective action, alleging that the amended solicitation was unnecessary and that CAMSS should have been disqualified for making a material misrepresentation. CAMSS intervened, and all the parties moved for judgment on the administrative record.
Alaska Structures contended that the Air Force did not need to issue a new solicitation because it had all the information it needed to reevaluate the bids submitted in response to the original solicitation. But the court disagreed. While the Air Force had issued a new solicitation under a new number, the substance of the solicitation remained unchanged save for the new test results requirement. The court found that the new solicitation was really a revision of the original solicitation. What’s more, the revision was justified. The additional test requirement went to the heart of the reason for corrective action. The decision to issue a new solicitation was, under the circumstances, not arbitrary.
Alaska Structure also argued that the Air Force should have disqualified CAMSS for making a material misrepresentation in its proposal. But the court noted that the Air Force never actually determined that CAMSS had a made a material misrepresentation; it only expressed concern about a misrepresentation. The chosen corrective action—a revised solicitation that requested test results—rationally responded to that concern.
Alaska Structures is represented by Richard J. Conway and Michael J. Montalbano of Blank Rome LLP. The intervenor, CAMSS, is represented by Paul F. Khoury, Brian G. Walsh, and Cara Lasley of Wiley Rein LLP. The government is represented by John M. McAdams, III, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas Mickle of the U.S. Department of Justice as well as Christopher S. Cole and Lt. Col. Damund E. Williams of the U.S. Air Force.
