Protest alleging agency failed to conduct meaningful discussions is denied. The court noted that while the protester had moved for judgment on the administrative record, it had not submitted a separate statement of facts citing the record as required by the rules. The court was perplexed as to how one could move judgment on the record without actually citing the record. Despite this failure to comply, the court considered the protester’s arguments. The protester alleged discussions were not meaningful because the agency had not explained the importance of the government estimate in evaluating price. The court rejected this argument, finding that the government had sufficiently advised the protester that its price exceeded the estimate and wasn’t required to spoon-feed the protester additional information.
Background
The National Institute of Standards and Technology (NIST) issued a solicitation seeking maintenance and operations services. NIST received five proposals. After conducting discussions with offerors, NIST awarded the contract to Peak Facility Solutions.
An unsuccessful offeror, Facility Healthcare Service filed a protest with the Court of Federal Claims. Peak intervened. All the parties moved for judgment on the administrative record.
Legal Analysis
- Facilitty’s Motion for Judgment on Administrative Record Was Non-Compliant – The COFC rules provide that a party moving for judgment on the administrative record must include a statement of facts that draws upon and cites the administrative record. Facility had not filed a separate statement of facts with its motion. Indeed, Facility had not cited to the administrative record at all in its motion. The court reasoned that its rules are not mere guidelines for protesters to follow as they see fit. The court opined that it should probably dismiss the protest for failure to comply with the rules but decided to consider the protester’s arguments anyway.
- NIST Conducted Meaningful Discussions – Facility alleged the agency failed to conduct meaningful discussions because it had not explained the “actual import of a price exceeding the government estimate.” The court rejected the argument. As an initial matter, the FAR only required the agency to discuss deficiencies and significant weaknesses. Offerors did not receive deficiencies or weaknesses for their price, so the agency was not even required to discuss price with Facility. Aside from this, NIST’s discussions were more than sufficient to lead Facility to the agency’s concerns. NIST informed Facility that its price exceeded the government estimate and even identified CLINs that were too high. Providing any additional information would have amounted to spoon-feeding.
- Facility Lacked Standing to Challenge Technical and Past Performance Evaluation – Facility also objected to the agency’s technical and past performance evaluations. But the court noted that Facility had failed to challenge the technical acceptability of two offerors who ranked ahead of Facility. To have standing, Facility had to challenge the intervening offerors.
Facility is represented by William M. Weisberg of the Law Office of William Weisberg PLLC. The intervenor, Peak Facility, is represented by John Ryan Prairie and George E. Petel of Wiley Rein LLP. The government is represented by Galina I. Fomenkova of the Department of Justice and Jonathan S. Baker of the Department of Commerce.
