The COFC sustained a protest, finding, among other things, that the agency did not sufficiently investigate the protester’s allegations of agency bias. But the Federal Circuit reversed, holding the COFC was substituting its judgment for the agency’s. The investigation could have been more thorough, but the agency’s mediocre investigation did not amount to an abuse of discretion.
Oak Grove Technologies, LLC v. United States, F3EA, Inc., Fed. Cir., 2022-1556, 2022-1557
- GAO Protest – The Army awarded a contract for special forces training to F3EA. Oak Grove Technologies, an unsuccessful offeror, filed a GOA protest challenging the award. Oak Grove alleged the Army erred in finding its proposal unacceptable. Oak Grove also alleged the agency was biased. Oak Grove contended the chairperson of the SSEB had attempted to steer the contract to F3EA by deliberately selecting the sample task order F3EA had performed under the predecessor contract.
- Corrective Action – In response to the protest, the agency took corrective action to reevaluate and investigate the allegations of bias. The agency concluded that Oak Grove’s allegations of bias were not credible. The agency also reaffirmed the award to F3EA.
- COFC Protest – Following the corrective action, Oak Grove filed a second protest with the COFC. The court was more sympathetic to Oak Grove. The court found, among other things, that F3EA’s proposal was defective, and that the company should not have received the award. The court also found that the Army had not thoroughly investigated Oak Grove’s allegations of bias. What’s more, the COFC sanctioned the government for failing to compile an adequate administrative record. F3EA and the government appealed to the Federal Circuit.
- Discussions – The COFC had found that the Army erred in not conducting discussions. The Federal Circuit, however, reversed on this issue. The solicitation had made it clear that the agency did not plan to hold discussions. If Oak Grove wanted to challenge the lack of discussions, it should have raised the issue in a challenge to the terms of the solicitation. Oak Grove had not raised the issue until after the award and thus waived the argument under Blue & Gold.
- Teaming Agreements – The COFC had found that F3EA was ineligible for award. The solicitation required offerors to submit teaming agreements. F3EA’s proposal had referenced a team member, but F3EA had not provided a teaming agreement. But the Federal Circuit did not think this was a problem. The Federal Circuit reasoned that the teaming agreement requirement was not material; indeed, the solicitation had provided that parties were not locked into teaming agreements. Because the teaming agreement requirement was not material, F3EA’s omission of a teaming agreement was not fatal.
- Bias Investigation – The Federal Circuit found that the COFC’s finding on the agency’s bias investigation was erroneous. The Federal Circuit noted that agencies have considerable discretion in investigations and that there’s a strong presumption that government officials will act consistent with their duties. The Federal Circuit thought the COFC had ignored these layers of deference and substituted its judgment as to what constitutes a proper investigation. The COFC was not supposed to perform a de novo review of the investigation. While a more thorough investigation would have been nice, the Federal Circuit thought the agency’s investigation was adequate and did not amount to an abuse of discretion.
- Sanctions – While the Federal Circuit vacated many of the COFC’s findings concerning the protest arguments, it declined to vacate the sanctions order against the government. The Federal Circuit agreed with the COFC—the government had omitted relevant documents from the administrative record.
Oak Grove is represented by Craig Holman and Thomas Pettit of Arnold & Porter Kaye Scholer LLP. F3EA is represented by Joshua Allen Mullen and Raymond Bennett of Womble Bond Dickinson (US) LLP. The government is represented by William James Grimaldi, Brian M Boynton, Patricia M. McCarthy, Douglas K. Mickle, and Joseph Allan Pixley of the Department of Justice as well as Michael Ray Tregle, Jr. of the Army.
–Case summary by Craig LaChance, Editor in Chief
