The protester alleged in a COFC protest that the agency hadn’t performed an adequate Rule of Two analysis or a commercial preference evaluation before issuing a task order solicitation. The government argued the protest was barred by Federal Acquisition Streamlining Act (FASA), which prohibits the COFC from hearing protests connected with a task order. The court found the case was not barred. A procurement decision is only connected to a task order if it results in the agency selecting a task order as the contract vehicle. Here, the Rule of Two and commercial preference analyses had not led to the agency’s decision to use a task order. Indeed, those evaluations could have easily led the agency to choose another contracting vehicle.
mLINQS, LLC v. United States, COFC No. 22-1351
Background
Every year thousands of Air Force employees and servicemembers move to new duty stations. The Air Force tracks these moves through a Permanent Change of Station (PCS) Systems.
But the PCS System required intensive manpower to scan documents and coordinate divisions. After conducting market research, the Air Force determined that mLINQS, LLC, a service-disabled, veteran-owned small business, offered a commercially available solution to automate the PCS system. The Air Force entered a sole-source contract with mLINQS.
The Air Force worked with mLINQS for three years. The agency determined mLINQS ‘s solution did not meet all of the Air Force’s needs. The Air Force stopped exercising options under the mLINQS contract.
Instead, in 2021, the Air Force conducted market research for a different PCS system. The Air Force posted a request for information. Thirteen vendors, including mLINQS, responded. Of the 13 responses, the Air Force determined that only one large business and one small business (not mLINQS) were capable of meeting the agency’s needs. The Air Force issued an unrestricted solicitation for the PCS solution.
Before making an award, however, the Air Force inadvertently posted a vendor’s price information to SAM.gov. The vendor alleged this violated the Procurement Integrity Act (PIA). The Air Force decided to cancel the solicitation. The Air Force was worried about the PIA violation, but it also wanted to change some of the requirements.
Eight months after the cancellation, the Air Force rebooted the PCS procurement. This time, however, the Air Force issued a solicitation to holders of an Air Force IDIQ contract. The solicitation contemplated award of a task order.
mLINQS filed an agency protest. mLINQS alleged the Air Force had failed to comply with the Rule of Two before issuing the task order solicitation. Additionally, mLINQS claimed the Air Force didn’t satisfy its obligation to accommodate commercial solutions under FASA. The Air Force denied the protest.
mLINQS filed a protest with the Court of Federal Claims. mLINQS reasserted the arguments it raised in the agency protest. The company also alleged the decision to cancel the solicitation was arbitrary. The Air Force moved to dismiss the protest, and all the parties moved for judgment on the administrative record.
Analysis
Blue & Gold Waiver
The government contended mLINQS had waited too long to file suit and waived its right to protest under Blue & Gold Fleet, L.P. v. United States. The government reasoned mLINQS had filed its protest 10 months after the cancellation decision and thus must have forfeited its protest.
The court found Blue & Gold didn’t apply. The task order solicitation had not been posted publicly. mLINQS didn’t learn about the task order for months. The company filed its protest shortly after learning about the task order solicitation.
FASA Task Order Bar
mLINQS asserted three claims: (1) the cancellation of the solicitation was arbitrary; (2) the Air Force didn’t comply with the Rule of Two before issuing the task order solicitation, and (3) the Air Force didn’t’ make an effort to accommodate commercially available solutions before issuing the task order solicitation. The government argued the last two claims were barred by FASA. Under FASA, the COFC lacks jurisdiction to hear protests connected to the proposed issuance of a task order. The government reasoned the Rule of Two and commercial preference issues were both connected to a task order.
But the court noted the FASA bar does not preclude the court form exercising jurisdiction in every protest involving a task order. The court possesses jurisdiction to hear challenges to procurement decisions that preceded the selection of a task order vehicle. Not every decision that precedes the selection of a task order vehicle is “connected” to a task order. If the challenged decision does not lead directly to the selection of a task order, it is not barred by FASA. Here, the Rule of Two analysis and the commercial preference evaluation were not intertwined with the Air Force’s task order decision. Neither of those determinations directly led the agency to choose a task order vehicle. Indeed, the agency could have still made those determinations and chose a different contract vehicle. mLINQS’s Rule of Two and commercial preference claims were not barred.
Rule of Two
mLINQS contended the Air Force should’ve have conducted a new Rule of Two analysis before issuing the task order solicitation. The government contended the Air Force had conducted a Rule of Two Analysis before issuing the RFP it ultimately cancelled. The government reasoned it didn’t need to conduct an a new analysis for the task order solicitation ten months later.
The court sided with the government. The Air Force conducted a Rule of Two analysis in 2021. As a result of that analysis, the Air Force reasonably concluded it was unlikely to receive offers from two capable small businesses. Indeed, the Air Force had worked with mLINQS for three years and had not been impressed with what it received from a small business. The court further found that the 2021 Rule of Two analysis was still applicable to the 2022 task order solicitation. The task order was really just a truncated version of the 2021 solicitation.
Commercial Preference
Under FASA agencies are required to conduct market research and structure acquisitions to accommodate commercial and non-developmental solutions before choosing a contract vehicle. mLINQS contended the Air Force had not properly conducted market research before issuing the task order solicitation, which sought a developmental solution.
The court was not convinced. The Air Force had worked with mLINQS commercial software for three years. Additionally, the Air Force had conducted market research with a request for information before issuing the initial unrestricted solicitation. This was sufficient for the agency to conclude that a commercial solution was not available.
Cancellation Decision
Lastly. mLINQS alleged the decision to cancel the unrestricted solicitation was arbitrary. The court disagreed. The Air Force didn’t want to proceed with award during the PIA investigation. Due to limitations on the SAM website, the procurement could not be suspended. Cancellation of the solicitation was therefore rational.
mLINQS is represented by Nathaniel Edward Castellano, Aimee Joo, David Robbins, and Moshe B. Broder of Jenner & Block, LLP. The intervenor, Deloitte, is represented by Keith R. Szeliga, Adam Bartolanzo, and Shaunna Bailey of Shepphard Mullin Richter & Hampton LLP. The government is represented by Igor Helman, Dan Bertoni, Elizabeth M. Hosford, Patricia M. McCarthy, and Brian M. Boynton of the Department of Justice as well as Nicholas T. Illif, Jr. and Ricarto Brazela of the Air Force.
–Case summary by Craig LaChance, Senior Editor
