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The protester claimed it was improperly required to disclose wage information in violation of FAR 12.302. The Court agreed that the term was improperly added to the solicitation because the government failed to first obtain a waiver. Despite this, the Court granted judgment in favor of the government because the protester was unable to show prejudice beyond pure speculative harm.
Loyal Source Government Services, LLC v. United States, COFC No. 24-1945
- Background – The protester has provided medical services to people crossing the Southern Border under a contract with DHS for years under an expired contract. The procurement for the replacement contract was delayed for several years resulting in a series of bridge contracts. The instant protest alleged the existence of patent ambiguities in the solicitation. Furthermore, the protester claimed it was improperly compelled to disclose certain pricing data regarding wages.
- Patent Ambiguities – The protester complained of several provisions in the solicitation. COFC did not find any of them ambiguous.
- Removed Staffing Level Estimates: The protester alleged it could not intelligently price its proposal because the Government removed staffing level estimates for certain labor categories. The Court found removing the estimates was an appropriate exercise of discretion. Case law dictated that the agency may “impose maximum risks on the contractor and minimum burdens on the agency,” meaning the offeror must account for such risks in its proposal.
- On-Site Requirements: The protester claimed the solicitation contradicted itself regarding whether Regional Pediatric Advisors (RPAs) and Regional Physician Supervisors (RPSs) must be present 24/7. The Court found the solicitation was not ambiguous when one reads the entire relevant sentence. The RPAs and RPSs need to be able to be in each of their assigned MUs at least quarterly and provide oversight in these MUs as required.
- Requiring Supervision of Sector Physicians: The protester also argued that the requirement that RPSs exercise “[c]linical supervisory authority over sector physicians ” was ambiguous because there was no position description for a “sector physician.” COFC concluded there was no ambiguity because the term “region” encompassed the term “sector.” It was clear that the term “sector physicians” referred to any physicians who were staffed in the medical unit in the sectors within each region.
- Customary Commercial Practice – The protester asserted that the requirement to provide wage and H&W rates or certain labor categories was impermissible under FAR 12.301 & 12.302 because it is not a standard commercial requirement. The Court found the government attempted to add the relevant term without first obtaining the necessary waiver. Thus, 12.302(c) barred this term or condition. However, the Court found the protester could not show prejudice because its alleged harm was based on pure speculation that a competitor could access the protester’s rates under another contract.
- Injunctive Relief: Even if the protester could show prejudice, the court ruled it would deny injunctive relief because the protester did not suffer any irreparable harm. It did not lose any ability to compete fairly for the award. Furthermore, the delay caused by the protest weighed heavily against injunctive relief.
Samuel Knowles, Thomas E. Daley, and David R. Lacker of DLA Piper LLP represented the protester. Galina I. Fomenkova, Brett A. Shumate, Patricia McCarthy, and Douglas K. Mickle of DOJ and Roger A. Hipp and Pavan Mehrotra of DHS represented the government.
— Case summary by Joshua Lim, Assistant Editor.
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