August 11, 2021 - Protests & Litigation

JULY 2021 BID PROTEST ROUNDUP (LAW360 SPOTLIGHT)

This month’s Law360 Bid Protest Roundup examines three recent decisions from the U.S. Court of Federal Claims. The first two cases highlight splits between the court and the Government Accountability Office related to contract interpretation, price realism analyses and post hoc extensions of proposal deadlines. The third case takes an in-depth look at the bounds of sole-source awards.

CW Government 

Travel In CW Government Travel Inc. v. U.S., CW raised several challenges to the U.S. General Services Administration’s award of a contract for travel management services for the U.S. Army under the Federal Supply Schedules.[1]

Among other things, CW argued that the GSA (1) unreasonably credited the awardee’s proposed key personnel for having U.S. government travel experience where they had worked only at defense contractors, and (2) failed to conduct price realism and unbalanced pricing evaluations as required by the request for quotations, or RFQ.

Although the GAO summarily denied CW’s protest,[2] the court sided with CW and slammed the GSA for both its tortured interpretation of the RFQ and its unreasonable evaluation.

With respect to key personnel, the RFQ required certain positions to have experience with U.S. government travel. Pursuant to this requirement, the GSA credited the awardee for several proposed employees that had experience in providing travel services for contractors in the aerospace and defense industries but not directly to government employees.

CW argued the GSA’s evaluation was contrary to the RFQ, which it claimed clearly required experience providing travel services to government personnel, either as a government employee or a contractor.

CW explained that commercial travel experience, including that provided to aerospace and defense contractors, is not the same as government travel, as contractors are not required to comply with government and U.S. Department of Defense travel regulations, which are key requirements of the RFQ. The GSA defended its evaluation by — incorrectly — claiming that aerospace and defense contractors traveling at the government’s expense are required to follow many of the same rules as government employees and, thus, experience at these contractors met its requirements. The GAO agreed with the GSA, finding that CW was conflating the terms “U.S. government travel” and “official travel,” which was also referenced in the RFQ.

The court, however, disagreed and approached the issue as one of contract interpretation, finding that the requirement was, as CW argued, straightforward and plainly required experience providing travel services directly to government employees. The court noted that the GSA’s interpretation introduces ambiguity into the requirement because it is unclear what type of government contractor experience is acceptable, given that the agency repeatedly refers to only aerospace and defense contractors.

The court also noted that the GSA’s reasoning was, as CW pointed out, factually incorrect because contractors are not subject to the same travel regulations as government employees. Finally, the court rejected the GSA’s argument that CW conflated the terms “U.S. government travel” and “official travel” because the RFQ uses the term “official travel” in several contexts with several meanings.

With respect to price realism — i.e., whether an offeror’s proposed prices are so low that there is a risk that the offeror does not understand the technical requirements or may not be able to successfully perform — and unbalanced pricing, CW argued the GSA failed to conduct a reasonable price evaluation and failed to identify the awardee’s unbalanced pricing related to its proposal to perform some contract requirements for free.

CW’s arguments stemmed from the GSA’s own evaluation in which it found that based on the awardee’s “low pricing strategy, the government may be accepting a significant risk regarding whether the company really understands the requirements to manage government travel.”

The GSA raised this issue with the awardee in discussions, and the awardee responded that it understood it was providing services at no cost to the government and that it would not be entitled to any adjustments under the fixed-price arrangement. The awardee also provided a four-part rationale for its pricing. The GSA argued that these discussions, along with its technical evaluation, demonstrated the awardee understood the requirements and resolved its unbalanced pricing concerns.

CW argued that the record failed to explain how these discussions resolved the GSA’s concerns, but the details of CW’s reasoning were not provided in the GAO’s decision. Despite these concerns, the GAO sided with the agency, finding that “the record shows the agency considered the realism of the awardee’s price,” and that the contracting officer’s additional explanations during the protest litigation were sufficient to fill any gaps in the contemporaneous record.

The court disagreed, finding that despite its claims, the GSA had failed to conduct proper price realism and unbalanced pricing evaluations. With respect to price realism, the court noted that the GSA’s position had flip-flopped between the GAO and the court, with the GSA originally arguing no price realism evaluation was required and now arguing that it was only required for overall prices, which it claims to have evaluated.

The court found that the RFP did, in fact, require a price realism evaluation of overall pricing and nothing in the record even suggested the GSA had actually performed such an evaluation.

The only price realism evaluation in the record was in the GSA’s price evaluation, in which the evaluators flagged potential realism issues for specific line items, which the court found to have never been resolved. Central to the court’s reasoning was the fact that the GSA claimed its discussions with the awardee, including the four justifications it provided for its pricing, had assuaged any realism concerns.

However, these so-called justifications were nothing more than quotations from the awardee’s proposal. The court concluded that:

[It] would seem the very definition of arbitrary and capricious for an agency to conclude that the reasoning an offeror has already provided to an agency and is clearly within an agency’s possession before it sought clarifications can somehow suffice for

a “meaningful” price realism analysis when that reasoning is repeated verbatim to the agency in a later communication.

The court also disagreed with the GSA as to whether it conducted an unbalanced pricing evaluation on similar grounds. While the agency noted unbalanced pricing concerns in its original pricing evaluation, those concerns were not — and could not be — resolved through the awardee’s citations to its own proposal in discussions.

Takeaways 

CW Government Travel demonstrates the potential benefits of bringing second-shot protests involving complex issues of contract interpretation to the court after a denial at the GAO. Here, while the GAO afforded the agency’s interpretation of the RFQ great deference, the court took a much more critical approach.

Syncon

Syncon LLC v. U.S. involves a substantive split between the GAO and the court, this time involving the so-called late-is-late rule, which requires rejection of proposals submitted after the submission deadline except in very limited circumstances.[3]

In Syncon, offerors were instructed to submit their proposals to the U.S. Navy using the DOD’s secure access file exchange, or SAFE, website. Offerors were required to request upload links prior to bid submission, and were instructed that successful submission would result in a “drop-off completed” notification.

The protestors stated that they attempted to upload their proposals in the last few minutes before the submission deadline but seemed to encounter technical issues as they did not receive drop-off completed notifications.

In response to the technical issues the protestors experienced, the Navy opted to amend the solicitation to extend the submission deadline post hoc and allow the protestors and all other offerors to submit updated proposals before the new deadline.

The agency based its decision on a long-standing GAO rule, reflected in the GAO’s March 2007 decision in Geo-Seis Helicopters Inc., or Geo-Seis I, in which GAO held that post hoc time extensions are permitted “where the motivation for the extension is enhanced competition,” as long as all offerors are given the benefit of the time extension.[4]

Another offeror — which met the original proposal deadline — then submitted an agency-level protest of the post-hoc extension, citing the court’s July 2007 decision in Geo-Seis Helicopters Inc. v. U.S., or Geo-Seis II, in which the court held that post hoc extensions violate the late-is-late rule in Federal Acquisition Regulation 52.215-1.[5]

In response to that protest, the Navy opted for a post hoc rescission of its post hoc extension and notified the original protestors that their proposals were, once again, rejected as late.

Syncon then brought the issue to the court, arguing that (1) the agency’s decision to rescind the post hoc extension was unreasonable as the extension was allowed under the precedent established by the GAO in Geo-Seis I, and (2) the agency’s decision was the result of a deficient agency-level protest where the protestor failed to demonstrate it was prejudiced by the extension. The protestors alternatively argued that their proposals should have been accepted under one of the limited exceptions to the late-is-late rule.

The court denied the protests.

With respect to the allowability of post hoc extensions, the court reaffirmed its ruling in Geo-Seis II, stating that issuing post hoc amendments would render the late-is-late rule in FAR 52.215-1 a nullity. The court noted that, although contracting officers have considerable discretion, “that discretion does not extend to violating the FAR.”

Addressing the split with the GAO, the court stated that the GAO’s holding in Geo-Seis I and subsequent cases is a comptroller-general-created rule that is not reflected in the FAR, and thus would not be adopted by the court.

The court also rejected the protestors’ complaints about the propriety of the agency-level protest that led to the rescission of the extension, finding that even if the protest was deficient, the agency had the discretion to take corrective action to remedy its own perceived errors so long as it had a rational basis for that corrective action.

Finally, the court denied the protestors’ arguments that certain exceptions to the late-is-late rule should apply here. With respect to the unanticipated event exception, the court explained that the record contained no evidence of any unanticipated events that impacted the submission of proposals.

Not only were all other offerors able to successfully submit their proposals through the DOD SAFE service, but DOD SAFE administrators also confirmed there were no outages or errors in the system during the relevant time period.

With respect to the government control exception, the court found that the protestors’ claims that their proposals were timely uploaded were unsupported.

While the protestors provided screenshots of web history demonstrating they visited the DOD SAFE website at the time of their claimed submissions along with supporting declarations from employees, this did not establish the proposals were within the government’s control before the deadline.

Importantly, FAR 52.215-1(3)(iii)(A)(2) requires offerors have proof of receipt of the proposal by the government to trigger this exception, which the protestors could not prove by demonstrating their attempts to timely upload their proposals.

Takeaways 

This case is yet another example of the need to leave ample time to address technical issues while submitting proposals. Last-minute submissions are a recipe for disaster, so proposal teams should plan accordingly.

Sierra Nevada

In Sierra Nevada Corp. v. U.S., the U.S. Air Force issued a justification and approval, or J&A, for a $981 million, five-year, sole-source, indefinite delivery, indefinite quantity contracts award to Sikorsky Aircraft Corp. for capability upgrades to the combat rescue helicopter program.[6] The J&A was premised on the fact that the Air Force anticipated a delay in obtaining the technical data package required for other contractors to perform the work.

Although Sikorsky was contractually required to deliver the technical data package in early 2021, a combination of program delays and a dispute between Sikorsky and the Air Force over data rights delayed delivery. Thus, as the original manufacturer, Sikorsky is the only contractor with the technical data package necessary to perform the work without several years of reverse engineering.

Sierra Nevada protested the J&A, arguing it was based on incomplete market research and lack of advance planning. The court disagreed with Sierra Nevada on both grounds.

With respect to market research, Sierra Nevada claimed the J&A was improper because the agency failed to consider its second submission in response to the sources-sought synopsis. The court rejected this argument as not only was Sierra Nevada’s second submission submitted seven months after the submission deadline, but it also failed to provide any new information that would undermine the J&A. Specifically, Sierra Nevada argued that its second submission demonstrated that it could perform much of the work without the technical data package and thus a sole source was unnecessary. In rejecting this reasoning, the court noted that Sierra Nevada’s original submission had already stated that Sierra Nevada could do a lot of the work without the package, but the Air Force reasonably determined that working without the package would create too significant of a risk.

Sierra Nevada also argued the J&A was the product of a lack of advanced planning on the part of the Air Force and thus could not serve as the justification for the sole-source award under the Competition in Contracting Act. Specifically, Sierra Nevada argued that the Air Force had ample time to resolve its data rights dispute with Sikorsky in time to alleviate the need for a sole-source award.

The court not only disagreed with Sierra Nevada, but instead noted that the J&A itself represented the Air Force’s attempts mitigate anticipated problems with the technical data package delivery. The court noted that the dispute with Sikorsky appeared to be a good faith dispute, and that while the technical data package was delayed, Sikorsky had not yet breached the contract, nor had the Air Force failed to take appropriate measures to enforce the contract.

Despite denying both of Sierra Nevada’s grounds for protest, the court still found the length of the sole-source award to be inappropriate, and granted Sierra Nevada’s request for injunctive relief. The court noted that while the sole source was appropriate for the current technical data package issue, the long length of the award would improperly stifle competition well after the expected delivery of the technical data package:

In that regard, the critical problem for the Agency is that the J&A simply does not explain how the current unavailability of a [technical data package] justifies a sole-source award for the entirety of the combat rescue helicopter upgrade contract, which contemplates a five-year order period and a seven-year delivery period.

Further, while the J&A acknowledged this issue and established procedures for ensuring competition to the maximum extent practicable once the technical data package was delivered, these promises were neither enforceable nor protestable due to the task-order protest bar. The court concluded that “[a]n unenforceable promise to compete future delivery orders … is insufficient to comply with the [Competition in Contracting Act’s] requirements.”

Takeaways 

This decision serves as a reminder to contractors to ensure market research responses are complete and accurately communicate capabilities. Learn from Sierra Nevada’s mistake, as you may not get a second bite at the apple. This decision also emphasizes the need to scrutinize all aspects of sole-source J&As. Even where an agency’s sole source justification otherwise appears sound, the resulting award may be overturned if not appropriately tailored to the circumstances giving rise to the justification.

[1] CW Government Travel Inc. v. U.S., No. 21-1354C (Fed. Cl., June 28, 2021, reissued July 21, 2021).

[2] CW Government Travel Inc., B-419193.4 et seq., April 15, 2021.

[3] Syncon LLC v. U.S., No. 21-1035C (Fed. Cl., July 2, 2021, reissued July 15, 2021).

[4] Geo-Seis Helicopters Inc., B-299175, B-299175.2, 2007 CPD ¶ 135 (Comp. Gen. Mar. 5, 2007).

[5] Geo-Seis Helicopters Inc. v. U.S., 77 Fed. Cl. 633 (2007).

[6] Sierra Nevada Corp. v. U.S., No. 21-1186C (Fed. Cl., July 1, 2021, reissued July 12, 2021).