Protest challenging agency’s decision to cancel a solicitation as part of a corrective action is sustained. In response to a protest challenging award of a contract for translation services, the agency took corrective action, terminated the award, and cancelled the solicitation. The agency claimed it cancelled the solicitation because none of the proposals it had received had proposed translation services for all the languages covered in the solicitation. The awardee of the terminated contract challenged the corrective action. The court found that the corrective action was arbitrary and capricious. The agency had failed to articulate an adequate explanation for the cancellation decision. The agency had not explained whether cancellation would actually remedy the problems with the procurement. Moreover, while the agency was concerned that none of the offerors had proposed to cover all the languages in the solicitation, some of the language listed in the solicitation did not actually exist. The court therefore found that the agency had failed to consider important aspects of the issue before cancelling the solicitation.
The Federal Bureau of Prisons (BOP) issued a solicitation seeking translation and interpretation services for incarcerated individuals. The solicitation contemplated the establishment of blanket purchase agreement. The procurement was set aside for small businesses. .
BOP selected PGLS, LLC for award. An unsuccessful offeror, Legal Interpreting Services, Inc. (LIS) filed a protest with GAO challenging the award. In response to the protest, BOP took corrective by cancelling the solicitation with plans to re-procure the services under a new unrestricted solicitation. BOP stated that it cancelled the solicitation because all offerors, including PGLS, had failed to include every language identified in the statement of work in their proposals. GAO dismissed the protest as academic.
PGLS then filed a protest with the Court of Federal Claims, alleging that the cancellation of the solicitation was arbitrary and capricious. PGLS asked the court to enter an injunction precluding BOP from terminating its contract. LIS then filed a protest also challenging the cancellation of the solicitation. The court consolidated the cases. All the parties moved for judgment on the administrative record.
In assessing whether a corrective action is arbitrary and capricious, the court looks to whether the agency has examined the relevant data and articulated a satisfactory explanation for its actions. Here, the court found that BOP had not met this standard. BOP’s corrective action did not address all the relevant factors. For instance, the memo did not discuss whether the agency’s requirements mandated strict compliance with the solicitation’s language requirements or whether the corrective action would in fact cure the solicitation’s alleged deficiencies.
Also, the court continued, BOP purportedly cancelled the solicitation because none of the offerors had proposed to cover all the languages listed in the solicitation. But many of the languages listed in the solicitation did not actually exist. Some of the listed “languages” were in fact countries, or they were archaic and uncommon. Thus, the record showed that BOP had failed to consider an important aspect of the problem.
Additionally, the court found, the record did not support a finding that any error had occurred in the COP assessment of PGLS’s technical acceptability. In its proposal, PGLS had offered to cover uncommon languages under an “All other languages” catchall line item. BOP had conducted discussions with offerors that had deficiencies in their proposals, but did not hold discussions with PGLS, which, the court reasoned, amounted to functional acceptance of PGLS’s “all languages” line item. BOP argued that it could not verify whether PGSL’s catchall line item actually covered all the languages listed in the solicitation. But the court found that this was a post hoc rationalization that was not supported by the contemporaneous record.
The court found that PGSL was entitled to injunctive relief. Not only had the company prevailed on the merits, but the court found it had been irreparably harmed by the cancellation of the solicitation and the possibility of having to now compete on an unrestricted basis.
PGLS is represented by Alexander Brewer Ginsberg of Pillsbury Winthrop Shaw Pittman, LLP. LIS is represented by Ryan Christopher Bradel of Ward & Berry PLLC. The government is represented by Bryan Michael Byrd of the Department of Justice.
