The protester alleged the awardee misrepresented its past performance. The COFC agreed. The awardee had painted a glorious picture of its past performance when in fact it had a record of shoddy work.
Global K9 Protection Group, LLC v. United States, COFC Nos. 23-210, 23-311
- Previous Awards and Protests – The U.S. Postal Service awarded a contract for canine mail screening. Disappointed offerors, including Global K9, filed protests with the COFC. The court granted the protests, finding the awardee had a conflict. After that, the agency took corrective action, re-solicited the requirement, and chose a new awardee, K2 Solutions.
- Second Protest – Global K9 filed a second protest, challenging the award to K2. Global contended K2 made material misrepresentations about its past performance. Global said K2 mischaracterized its prior work as Global’s subcontractor.
- Performance Issues – After Global filed its protest, the government informed the court that K2 was having performance issues. Effectively vindicating Global’s claims, the government indicated it may need to transition away from K2 on the contract.
- Supplementation of Administrative Record – Global moved to supplement the administrative record with a declaration from its chief operating officer. The officer was familiar with K2’s past performance as Global’s subcontractor. The government also requested to supplement the record with a declaration from the contracting officer, who had reviewed the allegations of misrepresentation against K2. The court granted both motions. The declarations were necessary for effective judicial review of the misrepresentations.
- Falsity – To prove a misrepresentation, the protester must show the awardee made false statements in its proposal. Here, the court found the awardee had made false statements. For instance, K2 claimed in its proposal it had 78 certified teams. K2 only employed 66 individuals. Also, K2 claimed it had met all contract requirements in its past references. In actuality, K2 had trouble covering shifts and often arrived at a work site months after promised.
- Materiality – A protester alleging a misrepresentation must prove the representations are material—that is, they were made intentionally and relate to a solicitation requirement. In this case, the court found K2’s misrepresentations were material. Indeed, without the misrepresentations, K2 would have lacked relevant past performance.
- Reliance – A protester alleging a misrepresentation must show the agency relied on the misrepresentations. The court found reliance. The agency had specifically noted K2’s past performance record when making the award.
- Remedy – The court issued an injunction barring K2 from participating in the procurement.
Protester Global K9 is represented by Walter Brad English, Jon D. Levin, Emily J. Chancey, and Nicholas P. Greer of Maynard Nexsen PC. Protester Michael Stapleton is represented by Ryan Christopher Bradel of Ward & Berry PLLC. Daniel Jonathan Strouse and Joshua D. Schnell of Cordatis LLP represent the intervenor. The government is represented by Steven Gillingham, Reginald T. Blades, Patricia M. McCarthy, and Brian M. Boynton of the Department of Justice.
–Case summary by Craig LaChance, Senior Editor
