Three disappointed offerors challenged the government’s decision to not carry out discussions. They argued it violated DFARS § 215.306(c). However, COFC emphasized that the provision only stated the government “should” conduct discussions. Even though the solicitation stated the government intended to carry out discussions, it nevever ogligated the government to hold discussions.
System Studies & Simulation, Inc. et al. v. United States, COFC Nos. 24-1429, 24-1467, 24-1496
- Protest – The government awarded a firm-fixed-price contract for flight instructors to train Army pilots to operate helicopters. Three disappointed offerors challenged the government’s failure to conduct discussions and evaluation of proposals.
- Discussions – All the offerors challenged the government’s decision to not hold discussions. They argued it violated DFARS § 215.306(c). COFC emphasized that this provision provides that acquisitions with an estimated value of $100M or more “should conduct discussions.” Even though the solicitation indicated the government “intend[ed] to conduct discussions in accordance with DFARS § 215.306(c),” the very next sentence stated “the Government may choose to award without discussions.”
- 10 U.S.C. § 3303(a)(2): One of the offerors also alleged the government’s decision to not conduct discussions also violated 10 U.S.C. § 3303(a)(2) and its implementing regulation FAR § 15.306(a)(3). The offeror argued that these statutes meant the government was not authorized to award without discussions absent the required language in solicitation. The court pointed out the solicitation expressly incorporated FAR §52.215-1, which provides that “The Government intend[ed] to evaluate proposals and award a contract without discussions…”
- Evaluation Challenges –
- Non-qualified Workforce: The government assigned a deficiency to one of the offeror’s proposals because it did not relegate instructors on sick leave to the “non-qualified workforce.” Because this directly contradicted the plain language of the PWS, COFC found the deficiency was rationally assessed, and it denied the challenge.
- Lack of Experience: The government also assigned a different offeror’s proposal a deficiency for the perceived lack of experience of its proposed Alternate Program Manager (APM). The APM did not possess the minimum of 4 years of experience in planning, directing, coordinating, monitoring and managing contracts related to aviation training programs. Because this was explicitly required by the PWS, the court found this deficiency was also rationally assessed.
- Withdrawn Challenges: Finally, the last offeror dropped its challenges to the deficiencies the government assigned to its proposal. Because of this, it could no longer show it was competitively prejudiced by the award decision. Hence, COFC granted judgment for the government.
The protesters were represented by W. Brad English, Emily J. Chancey, Micahel R. Pillsbury, Taylor R. Holt, and Hunter M. Drake of Maynard Nexsen, PC; Christopher L. Lockwood of Womble Bond Dickinson LLP; Jerome S. Gabig of Government Procurement Lawyer, LLC; Anuj Vohra, Cherie J. Owen, Issac D. Schabes, and Roxanne N. Cassidy of Crowell & Moring LLP. The government was represented by Kara M. Westercamp, Corinne A. Niosi, Patricia M. McCarthy, and Brian M. Boynton of DOJ; and Danielle C. Naser of U.S. Army Legal Services Agency. The defendant-intervenor was represented by Alexander B. Ginsberg, Robert C. Starling, and Katherine L. St. Romain of Fried, Frank, Harris, Shriver & Jacobson LLP.
— Case summary by Joshua Lim, Assistant Editor.
