COFC decision denying a protest is affirmed. The protester argued that the awardee’s proposal was a late and should have been rejected. The court, however, held that the agency had extended the proposal deadline. The agency had posted an amendment extending the deadline. Due to technical issues with the agency’s computer system, however, the amendment was not posted until after the due date. Nonetheless, the court found that the agency had decided to extend the deadline and emailed offerors about the extension prior to the due date. Thus, the late posting of the amendment did not negate the extension. The protester also challenged the past performance evaluation, but the court found its arguments meritless.
The Army Corps of Engineers posted a solicitation seeking construction of facilities at a NATO complex in Poland. Shortly before the proposal deadline, two offerors notified the Corps that they were having difficulties uploading proposal documents to the agency’s website. Given these issues, the contracting officer decided to extend the proposal deadline by one day. The Corps posted notification of a solicitation amendment extending the deadline, but due to technical difficulties, the amendment didn’t post until after the deadline had passed.
Nevertheless, the Corps received six proposals by the extended deadline, including proposals from Zafer Taahut, Insaat ve Ticaret, A.S. and Warbud SKE Joint Venture. The Corps selecting Warbud for award, finding its proposal offered advantages over the offerors under the non-price factors and that these advantages justified Warbud’s price premium.
Zafer filed a protest challenging the award with the Court of Federal Claims. The COFC entered judgment in favor the government. Zafer then appealed to the Federal Circuit.
Zafer argued that the Corps should have rejected Warbud’s proposal as late. Warbud had submitted its proposal after the initial proposal deadline but within the extended deadline. While the Corps had attempted to extend the proposal due date, Zafer argued that extension was null because the Corps had not extended the deadline until after the deadline had passed.
The court noted that the Army had posted an amendment extending the deadline, but due to system errors, the amendment didn’t post until after the deadline had passed. Nevertheless, the court reasoned, the contracting officer had the made the decision to extend the deadline prior to deadline. What’s more, the contracting officer had emailed all the offeror informing them of the extension before the due date. Because the decision to extend the deadline was made and communicated before the deadline passed, the delay in posting the amendment did not affect the validity of the extension. Warbud’s proposal, therefore, was timely.
Zafer claimed there was no evidence that offerors had problems uploading documents to the site, so the extension was unnecessary. But the court noted that the Corps itself had experienced problems uploading documents. Thus, the record supported the Corps’ position.
Zafer also implied that the Corps acted in bad faith, extending the deadline simply to benefit Warbud. The court, however, found no impermissible motive or favoritism. The agency had reasonably determined that it was not fair, on in the best interest of the government, to exclude potentially qualified offerors because of technical problems with the government’s system.
Zafer also objected to the Corps’ past performance evaluation. Zafer claimed the Corps irrationally determined that two of its past projects were merely “relevant” instead of “very relevant.” The court rejected this argument reasoning that a determination of relevance is owed deference as it is among the minutiae of the procurement process that the court will not second guess.
Zafer also argued that the Corps disparately evaluated past performance by treating one of Zafer’s projects in Afghanistan as not remote while crediting another offeror for having a project in the same area. But the court found that Zafer had oversimplified the past performance criteria which focused on the substantive nature of the project in addition to its location. The Corps had not negatively rated Zafer’s project based solely on its location. Rather, it had found that project somewhat relevant because it only met four of the seven criteria for relevancy. The other offeror’s project satisfied more criteria. The was no disparate treatment because the two references were substantively different
Lastly, Zafer alleged that the Corps had wrongly credited Warbud, a joint venture, with past performance projects that had only been performed by individual partner of the joint venture, not by the joint venture entity itself. But the court noted that the solicitation provided that the experience of a joint venture partner could be submitted for the joint venture entity.
Zafer is represented by Sam Gdanski of Gdanski & Gdanski LLP. The intervenor, Warbud, is represented by William Francis Savarino of Cordatis LLP. The government is represented by Steven Michael Mager, Jeffrey B. Clark, Robert Edward Kirschman, Jr. and Douglas K. Mickle of the Department of Justice as well as Herbert James Aldridge, II and Megan Jaye Tooman of the Army.
