Northeast Construction, Inc. v. United States

In the United States Court of Federal Claims
No. 14-1076C
(Filed Under Seal: February 5, 2015)
(Reissued for Publication: February 27, 2015)*
************************************* Bid Protest; Motion to Dismiss; Cross-
NORTHEAST CONSTRUCTION, INC., * Motions for Judgment on the Administrative
* Record; One Technically Acceptable
Plaintiff, * Proposal; Solicitation Amendment Issued to
* Offerors Previously Excluded From the
v. * Competition; Challenge to Terms of
* Solicitation Amendment; Waiver; Blue &
THE UNITED STATES, * Gold Fleet; COMINT Systems; Existence
* of an Enforceable Contract; Contract
Defendant. * Required to Be in Writing
*************************************
Jerry Alfonso Miles, Rockville, MD, for plaintiff.
Jeffrey M. Lowry, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Judge
In this bid protest, plaintiff Northeast Construction, Inc. asserts that the procuring agency
improperly cancelled the contract it awarded to plaintiff, and alternatively that the procuring
agency improperly amended the solicitation and reopened the competition. Defendant moves for
the dismissal of the latter claim, arguing that plaintiff waived that claim by failing to raise it in a
timely manner. Additionally, the parties cross-move for judgment on the administrative record
with respect to both claims. As explained in more detail below, plaintiff waived its claim
regarding the amendment of the solicitation, and has not established that it had an enforceable
contract with the government. Consequently, the court grants defendant’s motion to dismiss and,
with respect to plaintiff’s remaining claim, grants defendant’s motion for judgment on the
administrative record.
I. BACKGROUND
A. The Solicitation
*
This reissued Opinion and Order incorporates the agreed-to redactions proposed by the
parties on February 13, 2015. The redactions are indicated with bracketed ellipses (“[. . .]”).
On April 22, 2013, the Garrison Contracting Division of the United States Army
Contracting Command–Aberdeen Proving Ground (“Army”) issued solicitation W91ZLK012-R-
0007-0006 for the repair and maintenance of roofing systems throughout the Aberdeen Proving
Ground.1 AR 82. The Army contemplated awarding a firm-fixed-price requirements contract
with an initial term of one year and four one-year option periods. Id. It expected, as reflected in
its source selection plan, that the source selection process would be brief–lasting just under two-
and-one-half months. Id. at 942.
Pursuant to the solicitation–as amended through June 25, 2013–offerors were to submit
their proposals in two binders: one that contained a technical proposal and past performance
information, and another that contained a price proposal. Id. at 106. The technical proposal was
to include evidence of the offeror’s bonding capacity; a discussion of the offeror’s quality
control, health and safety, and environmental control plans; and a discussion of the offeror’s plan
for contract management. Id. at 108-10.
The Army intended to award a contract to the offeror with the lowest-price, technically
acceptable proposal. Id. at 122. To accomplish this goal, the Army would evaluate the offerors’
proposals on three factors: Technical, Past Performance, and Price. Id. at 112. The Technical
factor was further divided into five subfactors: Bonding Capacity, Quality Control Plan, Health
and Safety Plan, Environmental Plan, and Contract Management Plan. Id. The Army would first
evaluate the offerors’ proposals for technical acceptability; a technically unacceptable proposal
would “be eliminated from further consideration for award.” Id. A proposal would be
considered technically acceptable if the offeror “address[ed] all elements of the subfactors.” Id.
at 113. The Army warned that “[f]ailure to address all elements of the subfactors or failure to
provide any required document [would] render the offeror technically unacceptable for that
element,” and that one unacceptable rating would render the entire proposal technically
unacceptable. Id.; accord id. at 123. Moreover, the Army reserved the right to “reject any or all
proposals if such action was in [its] best interest.” Id. at 126.
The Army indicated how it would evaluate each proposal by describing the elements of
each factor and subfactor that it expected the offerors to address. Id. at 113-22. Of the Technical
subfactors, two are of particular importance in this protest: Quality Control Plan, and Health and
Safety Plan. To be deemed technically acceptable under the Quality Control Plan subfactor, the
Army required the following:
Provide a discussion of planned Quality Control (QC) activities to meet the
requirements of the contract. This discussion should be broad enough to address
all aspects of QC including[,] as a minimum, responsibility for surveillance of
work, acceptance, rejection, documentation and resolution of deficiencies, trends
analysis, corrective actions, QC processes and interface with Government
inspector and contract closeout procedures.
1
The court derives the facts from the administrative record (“AR”).
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The Offeror shall provide written documentation that the corporate Quality
Control Plan has been written, reviewed and/or administered by a Registered Roof
Consultant (RRC) who is either on staff or retained as a consultant to the offeror.
The offeror shall appoint a Quality Control (QC) manager in writing.
....
The offeror’s plan shall describe control procedures of non-compliance for
preventing problems, minimizing the reoccurrence and ensuring deficiencies are
corrected. Identify who is responsible and has the authority for identifying,
stopping work from continuing, documenting, recording, directing replacement of
corrections and ensuring resolution.
The offeror shall describe the process for the identification, documentation and
timely correction of punch list items as well as the final inspection and
government acceptance of work.
....
The Quality Control (QC) Plan shall include the following:
(a) The offeror shall provide the number [of] years of experience and types
of licenses as well as documentation that the qualifications for the Quality Control
(QCM) Manager and Quality Control Inspectors (QCI’s) meet or exceed the
requirements of the specifications.
....
(c) The offeror shall identify in their proposal the name of the inspection
company that will perform the eight month [Infrared] Inspection of the new roof
systems installed on post as a result of any subsequent award.
(d) The offeror shall be able to provide a No-Dollar-Limit Warranty on
applicable roofing systems. The offeror shall provide a statement from the
roofing system manufacturer(s) they intend to use attesting that the offeror can
meet this requirement.
Id. at 113-14. And, to be deemed technically acceptable under the Health and Safety Plan
subfactor, the Army required the following:
Discuss overall health and safety program, including training and documentation.
Demonstrate familiarity with and adherence to the standard Occupational Safety
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and Health Administration (OSHA) safety requirements for all proposals.
Describe steps taken that promoted safety during contract performance within the
last three (3) years.
The offeror shall provide written documentation of a worker’s compensation
insurance Experience Modification Rate (EMR) of less than 1.00 for the previous
five-year operating period. . . .
The offeror shall provide records of OSHA recordable injuries/illnesses reports
for the previous five (5) years included. . . .
Provide documentation that the offeror has a Certified Safety Professional (CSP)
on staff or has retained the services of a CSP for the life of the contract to
administer the Corporation[’]s Health and Safety Plan programs.
The offeror shall provide resumes for the Certified Safety Professional detailing
the years of experience and licenses. These individuals must have a minimum of
five (5) years experience in the oversight of construction related safety programs
and be fluent in English. Identify the years of experience specific to roofing
projects.
The offeror shall provide a written health and safety plan . . . . The plan shall be
prepared by and signed by the Certified Safety professional and signed by the
officers of the Corporation.
The Health and Safety Plan shall include the following:
(a) Provide detailed control procedures for non-compliance [with] safety
and health requirements: identify who is responsible and has the authority for
identifying, stopping work, implementing corrections, documenting, recording
and ensuring resolutions.
(b) Provide a detailed explanation of how the plan provides for ensuring
the material condition of equipment to be used on this [sic] safety switches, safety
overrides and visual/audible warning devices are intact and operational to include
corporately owned and rented equipment.
(c) Provide company drug and alcohol policies to include prevention
programs as well as actions to be followed for employees with substance abuse
issues.
Id. at 114-15. With respect to the Past Performance factor, the Army intended to evaluate the
relevancy of the offerors’ past performance, the recency of the offerors’ past performance, and
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the responses to past performance questionnaires, ultimately rating the past performance as
acceptable or unacceptable. Id. at 120-21. Finally, the Army provided that it would evaluate the
offerors’ proposed prices using the price analysis techniques described in Federal Acquisition
Regulation (“FAR”) 15.404-1(b);2 an offered price was required to be reasonable and balanced.
Id. at 122.
B. Proposals
The Army received [. . .] proposals in response to the solicitation by the July 10, 2013 due
date. Id. at 82, 972. The proposals were submitted by plaintiff; [. . .]. Id. at 972. From August
19 to August 23, 2013, a Source Selection Evaluation Board (“SSEB”) reviewed the proposals
and determined that only one proposal–the one submitted by plaintiff–was technically acceptable.
Id. With respect to the remaining proposals, the SSEB identified the following deficiencies:3
[. . .] 4
[. . .]
See id. at 983-95, 1096-98 (footnote added). Pursuant to the terms of the solicitation, these
deficiencies rendered the proposals technically unacceptable. Id. at 113, 123.
Although the SSEB reviewed the submitted proposals in August 2013, id. at 972, and the
source selection plan reflected that the Army expected to award the contract one month after the
SSEB evaluated the proposals, id. at 942, it was not until seven months later that the [. . .]
offerors with technically unacceptable proposals were notified of that fact, id. at 983-95, 1096.
In preaward-notice-of-exclusion letters dated March 25 and 26, 2014, the contracting officer,
Kimmie I. Edwards, advised those offerors that they had been eliminated from the competition
and would no longer be considered for contract award. Id. In each letter, Ms. Edwards described
the deficiencies identified by the SSEB. Id.
C. Negotiations With Plaintiff
In the meantime, after the SSEB determined that plaintiff had submitted the only
technically acceptable proposal, the Past Performance Evaluation Team reviewed plaintiff’s past
2
Unless otherwise stated, citations to the FAR are to those provisions in effect when the
Army issued the solicitation at issue in this protest.
3
The information that follows is derived from multiple sources in the administrative
record. See AR 983-95, 1096-98. The recitation for each offeror contains quotations from these
sources, lightly edited for clarity and consistency.
4
[. . .]
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performance information. Id. at 967-71. In a January 24, 2014 report, the team concluded that
plaintiff’s past performance was acceptable, with [. . .]. Id. at 967, 971. Thus, the Army was
satisfied with plaintiff’s technical proposal and past performance.
However, the Army was dissatisfied with the price offered by plaintiff. The Army’s
initial estimated cost for the contract–for the base year and the four option years–was [. . .].5 Id.
at 78. In contrast, plaintiff’s proposed price was [. . .]. Id. at 923. In light of this difference, the
Army invited plaintiff to negotiate its price. Id. at 1001. A conference call was convened on
March 26, 2014; participants included Woo K. (David) Cheon (President), Scott Lee (Vice
President), and Hae Hong (Preconstruction Manager) for plaintiff; and Ms. Edwards, Renae I.
McHenry (Contract Specialist), Marian J. Friedman (Contract Specialist), and Bruce Erdner
(Project Manager) for the Army. Id. at 997, 999-1000. During the conference call, Ms. Edwards
offered to award the contract to plaintiff for [. . .]. Id. at 997. Plaintiff requested time to evaluate
the offer, and the parties agreed to reconvene in person the following day “to finalize pricing
arrangements.” Id.
The meeting occurred as scheduled on March 27, 2014. Plaintiff was represented by Mr.
Cheon, Mr. Lee, and two other individuals, while the Army continued to be represented by Ms.
Edwards, Ms. McHenry, Ms. Friedman, and Mr. Erdner. Id. The parties exchanged a number of
counteroffers, with plaintiff ultimately presenting an offer of [. . .]. Id. Ms. Edwards accepted
this offer. Id. Accordingly, on April 2, 2014, plaintiff provided the Army with a revised price
proposal reflecting the negotiated contract price. Id. at 998.
D. Responses From Excluded Offerors
While the Army was engaged in price negotiations with plaintiff, one of the offerors with
a technically unacceptable proposal, [. . .], responded to the preaward-notice-of-exclusion letter
that it received. Id. at 1096. In a March 28, 2014 letter, [. . .] disputed the deficiencies identified
by the Army and explained where in its proposal the Army could locate the allegedly missing
information. Id. at 1096-98. The Army did not immediately respond to [. . .]’s letter.
A second offeror with a technically unacceptable proposal, [. . .], lodged a protest with
Ms. Edwards on April 7, 2014. Id. at 1080. Like [. . .], [. . .] disputed the [. . .] identified by the
Army and explained where in its proposal the Army could locate the allegedly missing
information. Id. at 1080-86. In a May 6, 2014 letter, Lieutenant Colonel Derek J. Draper, Chief
of the Garrison Contracting Division, agreed with [. . .]’s contention that [. . .] provided the
required insurance information. Id. at 1087, 1091. However, he disagreed with the contention
that [. . .] met the solicitation’s requirements regarding the use of a Certified Safety Professional.
Id. 1088-91. Accordingly, he denied [. . .]’s protest. Id. at 1091.
5
The government cost estimate included in the administrative record is undated, see AR
1-78; presumably it was prepared prior to April 22, 2013, when the solicitation was issued.
-6-
Almost one month later, the Army responded to [. . .]’s March 28, 2014 letter. Id. at
1096. In a June 4, 2014 letter, a new contracting officer, Major Michelle Lewis, agreed that
[. . .]’s proposal should not have been deemed technically unacceptable based on [. . .]
deficiencies identified by the Army. Id. at 1096-98. However, she concluded that the Army
correctly noted that [. . .] did not provide [. . .]. Id. at 1096-97. [. . .] responded to Major Lewis’s
letter on June 10, 2014, expressing its continued disagreement with the Army’s deficiency
findings. Id. at 1099.
E. Further Communications With Plaintiff
While the Army was entertaining the objections raised by [. . .], it continued to
communicate with plaintiff regarding contract award. In a June 5, 2014 electronic-mail message,
plaintiff asked Ms. McHenry, presumably based on information previously provided, whether it
could expect the contract award the following day. Id. at 1094. Ms. McHenry responded that the
Army needed ten days to answer plaintiff’s question. Id. Plaintiff followed up on June 20, 2014,
asking Ms. McHenry when the contract would be awarded. Id. at 1093. Ms. McHenry
forwarded plaintiff’s inquiry to Major Lewis, who responded to plaintiff that same day, as
follows: “[I]n light of the issues raised during the protest and debriefings, the Government has
decided to amend/revise the requirement and re-solicit. Once the amended solicitation is ready,
your company will be invited to provide a revised proposal.” Id. at 1092.
F. Plaintiff’s Protest at the Government Accountability Office
In response to the information provided by Ms. Lewis, plaintiff lodged a protest at the
Government Accountability Office (“GAO”) on June 30, 2014, challenging the Army’s
“cancellation” of the solicitation.6 Id. at 1100. Plaintiff argued that it was unreasonable for the
Army “to cancel the solicitation after receipt of solicitation responses, review and evaluation of
said responses, negotiations, and determining an apparent awardee,” and requested that the GAO
recommend that the Army continue with its award of the contract to plaintiff. Id.; see also id. at
1103-04 (containing plaintiff’s contention that the Army cancelled the contract award). The
Army responded by advising the GAO that “the solicitation has not been canceled, nor has a
contract award been made under the solicitation. Rather, the Army intends to issue an
amendment to the current solicitation to revise the ambiguous evaluation criteria and then invite
new proposals under the revised solicitation.” Id. at 1105. In support of these assertions, the
Army submitted a declaration from Major Lewis, who stated:
(4) Offerors whose proposals were rejected were provided, when requested, a
6
In its protest letter, plaintiff indicates that it learned that the Army intended to cancel
the solicitation during a June 20, 2014 conference call, and that the Army confirmed its intent to
cancel the solicitation and reissue it at a later date in a June 24, 2014 electronic-mail message.
AR 1101. There is no contemporaneous evidence of a June 20, 2014 conference call or a June
24, 2014 electronic-mail message in the administrative record.
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debriefing. In addition, a contracting officer-level protest was filed by an offeror
who was determined to be technically unacceptable. At this stage, the Army
became aware of material ambiguities in the solicitation’s evaluation criteria,
which is [why] the Army is preparing an amendment to the solicitation, [under
which] all offerors will have an opportunity to submit a new proposal.
(5) The Army never made a formal award selection, although it appears the prior
Procuring Contracting Officer improperly advised Northeast Construction that it
was the likely awardee.
(6) On June 20, 2014, Mr. Scott Lee, representative from Northeast Construction
Inc., called me in reference to an email . . . in which I stated that I had decided to
amend the solicitation and seek revised proposals.
(8) [sic] I informed Mr. Lee that the Army was not cancelling the solicitation or
the requirement, but instead was revising the solicitation, and that the amendment
would issue in the near term.
(9) [sic] Mr. Lee expressed concerns as he and members of his company were
given a verbal confirmation from the previous Procuring Contracting Officer that
Northeast Construction, Inc. was the anticipated awardee. However, I told him
that there were ambiguities within the evaluation criteria, and that, as such, the
Army decided to revise the evaluation criteria, and permit all offerors to propose
in accordance with the revised solicitation.
Id. at 1107. The Army therefore requested that the GAO summarily dismiss plaintiff’s protest.
Id. at 1105-06.
In a July 11, 2014 letter, plaintiff opposed the Army’s request for summary dismissal. Id.
at 1108-12. It argued that the Army did, in fact, award it the contract. Id. at 1108. But even if
there was no contract award, plaintiff continued, the Army’s decision to amend the solicitation to
correct allegedly ambiguous evaluation criteria was arbitrary and capricious. Id.; accord id. at
1110 (“[T]he Agency offered absolutely no explanation as to its reasons . . . for amendment of
the Solicitation . . . .”), 1111 (“[T]he Agency should be required to evaluate and provide an
accepted reason for . . . amendment . . . . If the GAO finds that the Agency . . . is amending the
Solicitation, we still contend that summary dismissal is unwarranted. [U]nder [FAR] 15.206, the
government may amend a solicitation when it ‘changes its requirements or terms and conditions’,
but there has been no such showing in this case.”). The GAO, however, concluded that the
absence of an awarded contract or a cancelled solicitation rendered plaintiff’s protest academic.
Id. at 1113. Accordingly, it dismissed plaintiff’s protest on July 14, 2014. Id. Plaintiff sought
reconsideration on July 24, 2014, id. at 1114-19, a request that the GAO denied on September
25, 2014, id. at 1120-21.
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G. Further Amendments of the Solicitation
On October 22, 2014, the Army issued Amendment 7 to the solicitation, describing the
amendment as follows: “Revision to the Scope of Work and the evaluation criteria.” Id. at 650.
The extent to which the Army revised the Scope of Work is unclear; neither a revised Scope of
Work nor a description of the revisions to the Scope of Work was included in the administrative
record.7 However, the administrative record reflects that the Army substantially changed the
evaluation criteria. Id. at 658-65.
With respect to the process by which it would evaluate proposals, the Army decided not
to evaluate all of the proposals for technical acceptability and then, from the pool of technically
acceptable proposals, award the contract to the offeror that proposed the lowest price. Instead,
the Army provided that it would first rank all of the proposals by price and then:
evaluate the lowest offeror’s technical proposal. If the proposal is determined to
be technically unacceptable, it will be eliminated from further consideration for
award. The Government will then go to the next low offeror in the same manner.
This process will continue until an offeror is found to be technically acceptable in
ascending order of the low price. Once a proposal is determined to be technically
acceptable, past performance will be evaluated. If the past performance is deemed
unacceptable, the next lowest technically acceptable proposal will be evaluated for
acceptability. This process will continue until an offeror is found to be technically
acceptable with acceptable past performance.8
Id. at 658 (footnote added). Left unaltered from the initial evaluation procedures were the
warnings that “[f]ailure to address all elements of the subfactors or failure to provide any
7
The Scope of Work was included with the solicitation as an attachment, AR 104, 174,
which was titled “Post-Wide Roofing Requirements Statement of Work and Contract
Specification,” id. at 185. Only the original Scope of Work attachment is included in the
administrative record. Id. at 185-429.
8
Given the same set of proposals and the same evaluation criteria, the result of the two
different evaluation processes would be the same. The original process required the Army to
identify the technically acceptable proposals, and then, from that group, select for award the
offeror that proposed the lowest price. The amended process required the Army to identify the
offeror that proposed the lowest price, but prohibited the Army from awarding the contract to that
offeror if the proposal was not technically acceptable. Under either process, the Army was
required to award the contract to the offeror who submitted the lowest-price, technically
acceptable proposal. Indeed, if the Army used the amended process to evaluate the originally
submitted proposals under the original evaluation criteria, plaintiff would have been the
successful offeror because even though it may not have proposed the lowest price, the offerors
who proposed lower prices would have been excluded as technically unacceptable.
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required document [would] render the offeror technically unacceptable for that element,” and that
one unacceptable rating would render the entire proposal technically unacceptable. Id. at 659.
In addition to changing its evaluation process, the Army amended its criteria for
evaluating the Technical subfactors. Id. at 659-60. For example, it expanded the criteria for
evaluating the Quality Control Plan subfactor as follows:
Provide a discussion of planned Quality Control (QC) activities to meet the
requirements as outlined in the specification sections 01-01-01, General
Conditions, and 01-45-00.10-20[,] Quality Control. Quality control is defined as
the plans, procedures and organization necessary to produce an end product which
complies with the requirements set forth in this solicitation and subsequent
contract documents and specifications. A Quality Control Plan is defined as a
compilation of the means and methods to be employed by an organization to
ensure their work practices, materials acquisition, logistics support and
management controls are in place and functioning to provide an end product that
meets the requirements outlined within the contract documents and specifications.
This discussion should be broad enough to address all aspects of QC including[,]
as a minimum, responsibility for surveillance of work, acceptance, rejection,
documentation and resolution of deficiencies, trends analysis, corrective actions,
QC processes and interface with Government inspector and contract closeout
procedures.
The Offeror shall provide written documentation that the corporate Quality
Control Plan has been written or reviewed by a Registered Roof Consultant
(RRC) who is either on staff or retained as a consultant to the offeror. The RRC
shall sign and date the offeror’s QC Plan indicating their specific role in the
development and/or review of the plan. Their signature shall attest that the
Quality Control Plan meets the minimum requirements of Section
01-45-00.10-20, Quality Control and accepted roofing industry standard[s].
The RRC shall be certified by the Roofing Consulting Institute (RCI) that said
individual meets the standards set forth by the RCI for knowledge, experience and
ethical practices required. The RRC shall have a minimum of five (5) years
experience as a Registered Roof Consultant. The experience resume and
credentials of the Registered Roof Consultant (RRC) shall be submitted with the
Quality Control Plan as an attachment.
The offeror shall retain the services of a Registered Roof Observer (RRO) who
has been certified by the Roofing Consulting Institute (RCI) that said individual
meets the requirements set forth by that organization for experience, knowledge
and ethical practices for the purpose of installation monitoring and documentation
of roofing projects issued during the course of the contract award period. The
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RRO shall be an integral part of the Quality Control program and shall function as
the Quality Control Manager (QCM) for the offeror.
The offeror shall provide a detailed experience resume of the RRO documenting a
minimum of three (3) years experience as a Registered Roof Observer. The
offeror shall provide the experience resume and credentials of the Registered Roof
Observer (RRO) they have retained as an attachment to the offeror’s Quality
Control Plan[.]
The appointment of the Quality Control Manager (QCM) by the offeror shall be in
writing. This appointment shall be on the offeror’s corporate letterhead and shall
clearly delineate the authorities, the duties and the responsibilities as well as the
reporting requirements for the position of Quality Control Manager respective of
the offeror[’]s operations at Aberdeen Proving Ground. This appointment letter
shall be signed by the president or chief operating officer of the offeror’s
organization.
The offeror shall insure that Quality Control Manager (QCM) and any Quality
Control Inspectors (QCI’s) shall not be assigned to any duties or responsibilities
that would prevent or preclude them from focusing upon their primary
responsibility for Quality Control. . . .
The offeror’s plan shall describe control procedures of non-compliance for
preventing problems, minimizing the reoccurrence and ensuring deficiencies are
corrected. At a minimum, the plan shall clearly answer the following questions:
Who is responsible for the identification of problems relating to non-compliance
[with] the specifications, installation methods and work practices? How is this
communicated and documented up the chain of command to local management
and to the corporate level? Who has authority to issue a stop work order with
regard to non-compliant materials, work practices, [and] installation methods?
Who is responsible for the documentation of the issue, the steps taken to correct
the issue and methods to be employed to prevent a reoccurrence of the issue? The
plan shall spell out in detail the company procedures to address these questions.
The offeror shall describe the means and methods for the identification,
documentation and timely correction of punch list items as well as the final
inspection and government acceptance of work. At a minimum the plan shall
address who is responsible for notification that the installation is ready for
inspection, [and] who performs the inspection and documents the results[.] Who
is responsible for the correction of all documented deficient items? How are
additional deficiencies not captured by the initial inspection to be addressed?
What procedures must be satisfied before the government’s final acceptance
inspection and [what are] the procedures for correction of deficiencies found
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during the Government inspection?
....
The Quality Control Plan (QCP) shall include the following:
a) The offeror shall provide the number [of] years of experience as well as
other pertinent documentation that the qualifications of the RRO who shall be
responsible for performing the duties of the Quality Control Manager (QCM) and
any additional Quality Control Inspectors (QCI’s) meet the requirements of
section 01-45-00.10-20, Quality Control, of the specifications.
....
c) The offeror shall identify in their proposal the name of the inspection
company that will perform the eight month [Infrared] Inspection of the new roof
systems installed on post as a result of any subsequent award. The requirements
and qualifications for the [infrared] inspection company are listed in Section
01-45-00.10-20 Paragraph 1.11.1.b of the specifications.
d) The offeror shall be able to provide a No-Dollar-Limit Warranty on
applicable roofing systems. The offeror shall provide a statement from the
roofing system manufacturer(s) they intend to use attesting that the offeror can
meet this requirement.
Id. at 659-60. The Army also expanded the criteria for evaluating the Health and Safety Plan
subfactor as follows:
The offeror shall provide an overview of their overall health and safety program,
including training and documentation. This overview shall provide sufficient
detail as to clearly demonstrate a thorough working knowledge of the OSHA and
EM-385-1-1 regulations and requirements that pertain to construction related
activities. Additionally, the overview shall provide a detailed working knowledge
of the “means and methods” to be employed to show compliance with and
adherence to the Occupational Safety and Health Administration (OSHA) and EM
385-1-1 safety requirements . . . . Describe steps taken that promoted safety
during contract performance within the last three (3) years.
The offeror shall provide written documentation in the form of correspondence on
Insurance Carrier[] letterhead of a Worker’s Compensation insurance Experience
Modification Rate (EMR) of 1.00 or less for the previous five year operating
period. . . .
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The offeror shall provide records of OSHA recordable injuries/illnesses (OSHA
Form 300, 300A and 301) logs for the previous five (5) year period. . . .
The offeror shall provide the company’s General Liability/completed operations
insurance claims history for the past five (5) years. This information shall be
supplied on insurance company letterhead. The total amount of valid claims paid
by the insurer shall not exceed $1,000,000.00 for the previous five (5) year period
nor shall valid claims for one (1) year exceed $350,000.00.
Provide documentation that the offeror has a Certified Safety Professional
(CSP)[,] with a certificate awarded by the Board of Certified Safety Professionals
(BCSP), on staff or has retained the services of a CSP awarded by the BCSP for
the life of the contract to administer the Corporation[’]s Health and Safety Plan
programs. A copy of the certificate of award for the CSP will be submitted as
well.
The offeror shall provide resumes for the Certified Safety Professional (CSP)
detailing the years of experience and licenses possessed by the CSP (both active
and inactive). The CSP SHALL have a minimum of five (5) years experience in
the oversight of construction related safety programs and be fluent in English.
The offeror shall have a minimum of five years of roofing construction experience
as defined by the following features:
a) Pneumatic nailer safety program development
b) Ladder safety to include establishment of inspection
c) Fall protection and prevention program development and
implementation
d) Pre-construction assessment and evaluation of potential hazards to
include inspection of walking/working surfaces (from beneath and above)
e) Assessment and prevention of injuries during roof removal operations
f) Torch and asphalt kettle safety programs to include transfer piping and
transportation of hot asphalt across roof
g) Electrical safety to include working near overhead and adjacent electric
power sources as well as electric power to roof mounted components
h) Operation of powered lifting and hoisting equipment
The offeror shall provide a written health and safety plan . . . . The plan shall be
prepared by and signed by the Certified Safety professional and signed by the
officers of the Corporation.
The offeror shall ensure that the following items are addressed in their Health and
Safety Plan:
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(a) What are the detailed control procedures for non-compliance [with] the
company’s safety and health requirements? Who is responsible and who has the
authority for identifying, stopping work, implementing corrections, documenting,
recording and ensuring resolutions?
(b) What are the procedures for ensuring that the material condition of the
equipment, both company owned and rented, that is to be used on this contract
meets the requirements of the regulations as they relate to the operation of safety
switches, safety overrides and visual/audible warning devices? What steps are to
be taken to ensure said devices are intact and operational? What are the
procedures for reporting faulty, unsafe or out of tolerance equipment to prevent its
use on this contract?
(c) What are the offeror’s drug and alcohol policies to include prevention
programs as well as actions to be followed for employees with substance abuse
issues? How will these programs be applied to sub-contractors?
Id. at 660-61.
In contrast to expanding the evaluation criteria for the Technical subfactors, the Army
significantly reduced its discussion of how it would evaluate the Past Performance factor to one
sentence, providing that “an acceptable past performance rating [will be assigned if,] ‘based on
the offeror’s performance record, the Government has a reasonable expectation that the offeror
will successfully perform the required effort, or the offeror’s performance record is unknown.’”
Id. at 665. And, the Army completely omitted any reference to evaluating price using the
techniques described in FAR 15.404-1(b); it merely indicated that it would rank the offerors’
proposed prices from lowest to highest. Id. at 658.
The Army sent Amendment 7 to all of the offerors who submitted proposals in response
to the solicitation–the [. . .] offerors who had been notified that they had been eliminated from
the competition and plaintiff. Id. at 667. Two days later, on October 24, 2014, the Army issued
Amendment 8, advising the offerors that revised proposals were due by 10:00 a.m. on November
3, 2014, and providing the offerors with its answers to questions submitted by the recipients of
Amendment 7. Id. at 666-69. Of particular note was the following exchange:
1. Why is this amendment (#7) being sent to my company after we received an
unsuccessful letter?
ANSWER #1: Your Company is receiving this amendment because the
Government has decided to clarify ambiguities that were in the original
solicitation. Since the technical portion was changed, all companies that provided
a proposal are being given another opportunity. The amendment has been issued
to all the original companies that provided a proposal in response to the
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solicitation.
The amendment only changed verbiage within the technical evaluation portion of
the solicitation.
If your company does not meet the requirements set forth in the solicitation then
you should not provide a revised proposal.
Id. at 667. Finally, on October 28, 2014, the Army issued Amendment 9, which contained
additional questions and answers. Id. at 670-72.
H. Plaintiff’s Protest in This Court
In response to the Army’s decision to amend the solicitation and permit the offerors who
had been excluded from the competition to submit revised proposals, plaintiff filed a bid protest
in this court. In its complaint, filed on November 4, 2014, plaintiff sets forth two claims for
relief. First, plaintiff contends that the Army unreasonably cancelled the contract that it awarded
to plaintiff. Compl. ¶¶ 69-74. Second, plaintiff contends that the Army’s decision to amend the
solicitation and reopen the competition was arbitrary, capricious, an abuse of discretion, or
contrary to law; plaintiff specifically asserts that in amending the solicitation, the Army
improperly provided amendments to offerors eliminated from the competition in violation of
FAR 15.206(c), allowed previously eliminated offerors to submit revised proposals in violation
of FAR 15.307, and provided the other offerors with an unfair competitive advantage. Id. ¶¶ 75-
88. Plaintiff accordingly seeks an injunction enjoining the Army from awarding the contract
pursuant to Amendments 7 and 8, and an order requiring the Army to award the contract pursuant
to the solicitation as it existed prior to the issuance of Amendments 7 and 8. Id. at 17.
After filing its complaint, plaintiff moved for judgment on the administrative record on
both of its claims for relief. In response, defendant moved to dismiss plaintiff’s second claim for
relief, and for judgment on the administrative record on both of plaintiff’s claims. The parties
have fully briefed their motions, and the court heard argument on February 3, 2015.
II. LEGAL STANDARDS
A. Motions to Dismiss
Defendant brings its motion to dismiss pursuant to Rule 12(b)(6) of the Rules of the
United States Court of Federal Claims (“RCFC”), contending that with its second claim for
relief, plaintiff has failed to state a claim upon which relief can be granted. To survive such a
motion, a plaintiff must include in its complaint “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, a
plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(citing Bell Atl., 550 U.S. at 556).
B. Motions for Judgment on the Administrative Record
Both parties have moved for judgment on the administrative record pursuant to RCFC
52.1. In ruling on such motions, “the court asks whether, given all the disputed and undisputed
facts, a party has met its burden of proof based on the evidence in the record.” A & D Fire Prot.,
Inc. v. United States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d
1346, 1356 (Fed. Cir. 2005)9). Because the court makes “factual findings . . . from the record
evidence,” judgment on the administrative record “is properly understood as intending to provide
for an expedited trial on the administrative record.” Bannum, 404 F.3d at 1356.
C. Bid Protests
When entertaining a motion for judgment on the administrative record in a bid protest,
the United States Court of Federal Claims (“Court of Federal Claims”) reviews the challenged
agency action pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4)
(2012). Although section 706 contains several standards, “the proper standard to be applied in
bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the
agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004).
Under this standard, the court “may set aside a procurement action if ‘(1) the procurement
official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation
of regulation or procedure.’” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
2009) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001)).
Procurement officials “are entitled to exercise discretion upon a broad range of issues
confronting them in the procurement process.” Impresa, 238 F.3d at 1332 (internal quotation
marks omitted). Thus, when a protester challenges the procuring agency’s decision as irrational,
the court’s review is “highly deferential” to the agency’s decision, Advanced Data Concepts, Inc.
v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000), and “[t]he court is not empowered to
substitute its judgment for that of the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971). “Accordingly, the test for reviewing courts is to determine whether
the contracting agency provided a coherent and reasonable explanation of its exercise of
discretion, and the disappointed bidder bears a heavy burden of showing that the award decision
had no rational basis.” Impresa, 238 F.3d at 1332-33 (citation and internal quotation marks
omitted); accord Advanced Data Concepts, 216 F.3d at 1058 (“The arbitrary and capricious
standard . . . requires a reviewing court to sustain an agency action evincing rational reasoning
9
The decision in Bannum was based upon then-RCFC 56.1, which was abrogated and
replaced by RCFC 52.1. RCFC 52.1 was designed to incorporate the decision in Bannum. See
RCFC 52.1, Rules Committee Note (June 20, 2006).
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and consideration of relevant factors.”). When a protester claims that the procuring agency’s
decision violates a statute, regulation, or procedure, it must show that the violation was “clear
and prejudicial.” Impresa, 238 F.3d at 1333 (internal quotation marks omitted).
III. PLAINTIFF’S SECOND CLAIM FOR RELIEF
A. The Waiver Rule Described in Blue & Gold Fleet Applies to Plaintiff’s Second Claim
for Relief
The court begins its analysis by addressing defendant’s motion to dismiss plaintiff’s
second claim for relief. The basis of defendant’s motion is straightforward; according to
defendant, under the rule described by the United States Court of Appeals for the Federal Circuit
(“Federal Circuit”) in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007),
plaintiff waived its right to protest the Army’s amendment of the solicitation by filing its
complaint after the deadline for submitting revised proposals. Plaintiff responds that the Federal
Circuit limited the scope of this waiver rule in COMINT Systems Corp. v. United States, 700
F.3d 1377 (Fed. Cir. 2012), to permit challenges to the terms of a solicitation that are brought
after the due date for proposals but before contract award. Plaintiff also contends that the actions
it took prior to the deadline for submitting revised proposals are sufficient to avoid the waiver of
its claim.
In Blue & Gold Fleet, the Federal Circuit affirmed the conclusion of the Court of Federal
Claims that the protestor’s challenge to the terms of the solicitation, which was not raised until
after the deadline for the submission of proposals, was untimely. 492 F.3d at 1312-16. In doing
so, the Federal Circuit recognized, for the first time, a waiver rule for bid protests, holding that
a party who has the opportunity to object to the terms of a government solicitation
containing a patent error and fails to do so prior to the close of the bidding process
waives its ability to raise the same objection subsequently in a bid protest action
in the Court of Federal Claims.
Id. at 1313; accord id. at 1315. It found support for such a waiver rule in (1) the statutory
mandate of 28 U.S.C. § 1491(b)(3) that courts are to “give due regard to . . . the need for
expeditious resolution of” bid protests; (2) the fairness rationale underlying the doctrine of patent
ambiguity; (3) the GAO’s rule that challenges to the terms of a solicitation must be brought prior
to the deadline for submitting bids or proposals; and (4) the analogous doctrines of laches and
equitable estoppel in the patent context. Id. at 1313-15. Of these rationales for the recognition of
a waiver rule, the Federal Circuit placed particular emphasis on fairness and the expeditious
resolution of bid protests:
In the absence of a waiver rule, a contractor with knowledge of a solicitation
defect could choose to stay silent when submitting its first proposal. If its first
proposal loses to another bidder, the contractor could then come forward with the
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defect to restart the bidding process, perhaps with increased knowledge of its
competitors. A waiver rule thus prevents contractors from taking advantage of the
government and other bidders, and avoids costly after-the-fact litigation.
Id. at 1314; see also id. at 1315 (“[T]he statutory mandate of [28 U.S.C.] § 1491(b)(3) for courts
to ‘give due regard to . . . the need for expeditious resolution of the action’ and the rationale
underlying the patent ambiguity doctrine favor recognition of a waiver rule.”); DGR Assocs., Inc.
v. United States, 690 F.3d 1335, 1343 (Fed. Cir. 2012) (“[I]f there is a patent, i.e., clear, error in
a solicitation known to the bidder, the bidder cannot lie in the weeds hoping to get the contract,
and then if it does not, blindside the agency about the error in a court suit.”).
The Federal Circuit revisited the Blue & Gold Fleet waiver rule in COMINT Systems. In
that case, the procuring agency amended the solicitation four months after the proposal
submission deadline. 700 F.3d at 1380. More than two months later, it awarded three contracts
pursuant to the amended solicitation. Id. The protestor objected to the terms of the amendment,
but did not lodge a protest until after the procuring agency awarded the contract. Id. at 1380-81.
Specifically, the protestor lodged a protest with the GAO almost two weeks after the contracts
were awarded, and then, two months later, after the GAO denied its protest, filed a complaint
with the Court of Federal Claims. Id. at 1380.
On review, the Federal Circuit agreed with the government that the protestor failed to
preserve its challenge to the terms of the solicitation amendment by not raising it prior to the
award of the contracts. Id. at 1381. Although it recognized that the Blue & Gold Fleet waiver
rule was not directly applicable to the circumstances before it because the solicitation was
amended after the proposal submission deadline, the Federal Circuit concluded that the reasoning
of Blue & Gold Fleet “applie[d] to all situations in which the protesting party had the opportunity
to challenge a solicitation before the award and failed to do so.” Id. at 1382; see also id.
(remarking that the rationales behind the Blue & Gold Fleet waiver rule–the need for fairness and
the expeditious resolution of bid protests–supported the extension of the rule “to all pre-award
situations”). Accordingly, it held that “assuming that there is adequate time in which to do so, a
disappointed bidder must bring a challenge to a solicitation containing a patent error or ambiguity
prior to the award of the contract.” Id.
The Court of Federal Claims has addressed the decision in COMINT Systems in a
handful of decisions. In Red River Communications, Inc. v. United States, the court considered
whether the Blue & Gold Fleet waiver rule applied to protestors who did not, or could not,
submit a bid or proposal. 109 Fed. Cl. 497, 506-11 (2013). In a footnote, the court distinguished
COMINT Systems, remarking that the Federal Circuit in that case held that “when a solicitation
is amended after the close of bidding and the amendment contains a patent error[,] . . . it is
incumbent on the protestor to raise an objection to the amendment prior to contract award.” Id.
at 507 n.5. In other words, the court considered the rule announced in COMINT Systems to
apply only in situations where the procuring agency amended the solicitation after the proposal
submission deadline. The court reached the same conclusion in Advanced American
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Construction, Inc. v. United States, noting that the Federal Circuit in COMINT Systems “held
that when an alleged error in the procurement is not apparent until after the closing date for
bidding, the protestor does not waive its arguments so long as it raised them before the contract is
awarded.” 111 Fed. Cl. 205, 220 (2013).
In two other decisions, however, the court interpreted the waiver rule described in
COMINT Systems more broadly to allow a protest concerning the terms of a solicitation to be
filed any time prior to contract award. See Commc’n Constr. Servs. v. United States, 116 Fed.
Cl. 233, 259 (2014) (“[T]he Federal Circuit extended the time a protestor may file a pre-award
protest from the ‘close of the bidding process’ as articulated in Blue & Gold to any time before
award is made.”); Bannum, Inc. v. United States, 115 Fed. Cl. 257, 274 (2014) (“[U]nder
COMINT, a protestor may raise a challenge to a solicitation any time prior to award–a time
frame that may be beyond the close of the bidding process.”); cf. Sotera Def. Solutions, Inc. v.
United States, 118 Fed. Cl. 237, 253-54 (2014) (“The waiver rule in Blue & Gold Fleet has been
extended in COMINT Systems . . . so that protests of the terms of an amendment to a solicitation
are waived if not raised before award.”). However, it was not necessary for the court in those
cases to apply its interpretation of COMINT Systems’s waiver rule to the facts before it. In
Bannum, the court determined that the protestor objected to the terms of the solicitation prior to
the deadline for the submission of proposals. 115 Fed. Cl. at 262, 273-74. And in
Communication Construction Services, the court concluded that the protestor waived its statutory
and organizational-conflict-of-interest claims because despite knowing the basis of those claims
prior to contract award, it did not raise them until after the procuring agency awarded the
contract. 116 Fed. Cl. at 238, 260-61. In neither case did the protestor attempt to challenge the
terms of the solicitation after the proposal submission deadline, but before the procuring agency
awarded the contract. Thus, the courts’ interpretation of the COMINT Systems waiver rule is
dicta.
After a careful review of the Federal Circuit’s decisions in Blue & Gold Fleet and
COMINT Systems, the court concludes that the waiver rule articulated in COMINT Systems is
limited to situations where the solicitation was amended after the proposal due date, and does not
render timely every challenge to the terms of a solicitation lodged prior to contract award. As
stated in Blue & Gold Fleet and reinforced in COMINT Systems, one of the primary purposes of
the waiver rule is to encourage the expeditious resolution of bid protests. 700 F.3d at 1382-83;
492 F.3d at 1313-15. This purpose would not be served if a protestor could wait until after its
proposal was due to challenge the terms of the solicitation. In such circumstances, the procuring
agency might have expended significant resources in evaluating proposals, and if discussions
were held, both the procuring agency and other offerors would have incurred additional expenses.
Thus, as stated in Red River Communications and Advanced American Construction, the rule set
forth in COMINT Systems may be invoked only if the solicitation terms to be challenged were
added to the solicitation after the proposal submission deadline.
In this case, the principal amendments challenged by plaintiff–Amendments 7 and 8–were
issued after the original deadline for submitting proposals. If the Army had not invited revised
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proposals and set a deadline for their submission in Amendments 7 and 8, then under the rule
described in COMINT Systems, plaintiff may have been able to challenge the terms of those
amendments at any time prior to contract award. However, the Army did set a new proposal
submission deadline. Thus, plaintiff is bound by the Blue & Gold Fleet waiver rule, which
requires a party seeking to challenge the terms of a solicitation to file its protest before the
proposal submission deadline if it has the opportunity to do so. Plaintiff had such an opportunity,
and therefore should have filed its protest before the deadline for submitting revised
proposals–10:00 a.m. on November 3, 2014.
B. Plaintiff Has Waived Its Second Claim for Relief
Plaintiff, of course, did not file its protest in this court until November 4, 2014. It argues,
however, that its protest is timely because it preserved its claims by lodging a protest with the
GAO. Plaintiff’s contention, although facially appealing, is ultimately not persuasive.
Under the waiver rule articulated in Blue & Gold Fleet, a party is required to “object to
the terms of a government solicitation . . . prior to the close of the bidding process” to avoid
waiving “its ability to raise the same objection subsequently in a bid protest action in the Court of
Federal Claims.” 492 F.3d at 1313. Under the plain language of the rule, the objection need not
be raised in a complaint filed in the Court of Federal Claims. All that Blue & Gold Fleet requires
is that a protestor “do something before the closing date to preserve its rights . . . .” DGR
Assocs., Inc. v. United States, 94 Fed. Cl. 189, 203 (2010), rev’d on other grounds, 690 F.3d at
1335. As a result, the Court of Federal Claims has concluded that a party will avoid the
consequences of the waiver rule by lodging an agency-level protest or by filing a protest with the
GAO. See Bannum, 115 Fed. Cl. at 274 (“At present, the law does not require that [the
protestor] do anything more than [advising the contracting officer by letter that it objected to the
terms of the solicitation]. All that is required is that a protestor must have ‘done something’ to
challenge a solicitation prior to award to preserve its right to protest the solicitation in this
Court.”); Advanced Am. Constr., 111 Fed. Cl. at 219 (“The Federal Circuit did not hold . . . that
a protestor must always file suit in this court before the closing date for the receipt of bids to
avoid waiving its claims. . . . [A]s a general rule, a party may preserve its rights by filing a
protest with the agency or GAO, instead of this court, before the closing date for bidding.”); cf.
Red River Commc’ns, 109 Fed. Cl. at 510-11 (remarking that sending a letter to a congressional
representative would not be sufficient to avoid waiver because such a letter would not afford “the
procuring agency an adequate opportunity to address potential errors in a solicitation”).
Here, plaintiff filed a protest with the GAO on June 30, 2014, challenging what it
believed was the Army’s cancellation of the solicitation. Plaintiff slightly broadened its
challenge in its July 11, 2014 opposition to the Army’s motion for summary dismissal; it argued
that to the extent that the Army would be amending, rather than cancelling, the solicitation, such
action was also improper because the Army had not demonstrated that an amendment was
warranted due to a change in “requirements or terms and conditions” as required by FAR
15.206(a). Upon reviewing all of plaintiff’s submissions to the GAO, the court concludes that
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plaintiff sought to challenge at the GAO the Army’s supposed cancellation of the contract award,
the Army’s purported cancellation of the solicitation, and/or the Army’s allegedly unsupported
decision to amend the solicitation.
However, when plaintiff lodged its protest at the GAO, the Army had not yet amended or
cancelled the solicitation. Indeed, the Army did not take any action before plaintiff’s GAO
protest concluded with the GAO’s September 25, 2014 denial of plaintiff’s request for
reconsideration. Rather, it was not until October 22, 2014, that the Army amended the
solicitation by issuing Amendment 7. Because plaintiff’s GAO protest predated Amendment 7, it
cannot logically be understood to constitute a challenge to that amendment. Moreover, plaintiff’s
GAO protest would not have put the Army on notice of plaintiff’s specific concerns with
Amendments 7 and 8 such that the Army could address them prior to the deadline for submitting
revised proposals. See, e.g., DGR Assocs., 690 F.3d at 1343 (noting that a protestor should not
“blindside” a procuring agency with its bid protest complaint); Bannum, 115 Fed. Cl. at 274
(“The point of the waiver rule is to provide notice to the agency so that it can remedy a defective
solicitation before award.”); Red River Commc’ns, 109 Fed. Cl. at 509-10 (“[T]he waiver rule
permits the Government an opportunity to address potential defects in a solicitation at an early
stage in the procurement process, thereby avoiding wasted procurement efforts.”), 510-11
(emphasizing that a protestor must raise an objection in a manner that allows a procuring agency
to address the potential error in the solicitation). In its GAO protest, plaintiff advanced the
general complaint that amending the solicitation was improper because the Army had not
established that an amendment was necessary pursuant to 15.206(a). Plaintiff raises completely
different claims in its complaint here–that the Army (1) provided the amendments to offerors
eliminated from the competition in violation of FAR 15.206(c); (2) allowed previously excluded
offerors to submit revised proposals in violation of FAR 15.307; and (3) provided the other
offerors with an unfair competitive advantage. The Army had no notice of these claims before
the deadline for submitting revised proposals. Therefore, plaintiff has waived its second claim
for relief.
IV. PLAINTIFF’S FIRST CLAIM FOR RELIEF
Plaintiff’s remaining claim is that the Army unreasonably cancelled the contract it
awarded to plaintiff. Plaintiff cannot pursue this claim unless it first establishes the existence of
a contract with the Army. Generally, a contract with the federal government must meet the
following requirements: “mutual intent to contract including an offer and acceptance,
consideration, and a Government representative who had actual authority to bind the
Government.” Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997). Here,
plaintiff argues that there was a written offer and an unambiguous oral acceptance,10 and that the
10
Plaintiff contends that the unambiguous oral acceptance was followed by written
confirmation via electronic mail, but no such electronic-mail messages are contained in the
administrative record.
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contracting officer–Ms. Edwards–was authorized to bind the Army.11 Defendant responds that
there was no binding contract between plaintiff and the Army because the contract for this
procurement was required to be in writing, and the parties had, at most, an oral agreement.
Defendant is correct.
The circumstances in this case are remarkably similar to those presented in American
General Leasing, Inc. v. United States, 587 F.2d 54 (Ct. Cl. 1978), a decision cited by neither
party. In American General Leasing, the procuring agency determined that one proposal,
submitted by Infodyne Systems Corp. (“Infodyne”), was technically superior to the other
submitted proposals. Id. at 56. It subsequently met with Infodyne to negotiate certain changes to
Infodyne’s proposal. Id. Immediately after the parties agreed to various changes (which were
memorialized by Infodyne in a letter that it sent to the procuring agency), the contracting officer
advised Infodyne that he would issue “a letter of intent evidencing [the procuring agency’s]
commitment to the agreement” three days later. Id. However, the contracting officer did not
issue the letter of intent, and the procuring agency formally cancelled the solicitation. Id. In its
bid protest complaint, Infodyne argued that “the parties had entered into a binding express oral
contract that was enforceable against the Government.” Id. Defendant disagreed, arguing that no
binding contract existed because “the parties contemplated a formal written agreement that was
never executed.” Id. at 56-57.
In its decision, the United States Court of Claims (“Court of Claims”), the Federal
Circuit’s predecessor, noted that the solicitation at issue contained the following provision: “A
written award (or Acceptance of Offer) mailed (or otherwise furnished) to the successful offeror
within the time for acceptance specified in the offer shall be deemed to result in a binding
contract without further action by either party.” Id. at 57. It further remarked that the relevant
procurement regulations contained the following definition: “‘Contract’ means establishment of
a binding legal relation . . . . It includes all types of commitments which obligate the
Government to an expenditure of funds and which except as otherwise authorized are in writing.”
Id. Finally, the Court of Claims indicated that the letter that Infodyne sent to the government
reflected that there were “two prerequisites necessary in order to bind the parties contractually
. . . , neither of which occurred.” Id. Based on these facts, the Court of Claims held that the
parties intended, and the procurement regulations required, the contract to be in writing. See id.
at 58 (“[I]t is clear, in addition to other manifestations of the parties’ intent, that applicable
procurement regulations . . . require Government contracts to be in writing in order to be binding
upon the parties.”); accord id. (“[T]he parties envisioned a formal writing as the only document
which could establish a binding contractual relationship between them. A written award
pursuant to the solicitation was never furnished to the plaintiffs. Unless such award was issued,
no contract existed.” (citation omitted)).
11
Plaintiff does not attempt to establish the fourth element of a government
contract–consideration. However, plaintiff’s failure to address the consideration requirement is
irrelevant given the court’s disposition of plaintiff’s claim.
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In this case, the solicitation contains two provisions relevant to the nature of the contract
contemplated by the parties. One provision–nearly identical to the one quoted by the Court of
Claims in American General Leasing–stated: “A written award or acceptance of proposal mailed
or otherwise furnished to the successful offeror within the time specified in the proposal shall
result in a binding contract without further action by either party.” AR 127 (incorporating FAR
52.215-1(f)(10)). The other provision sets forth a prerequisite to the existence of a binding
contract: “This contract is subject to the written approval of U.S. Army Contracting
Command–Aberdeen Proving Ground (ACC-APG) and shall not be binding until so approved.”
Id. at 142 (incorporating FAR 52.204-1). These two solicitation provisions demonstrate that a
written agreement was necessary to have a binding contract. In addition, various statutes and
regulations pertaining to government procurements indicate that a procurement contract must be
in writing to bind the parties. See 10 U.S.C. § 2305(b)(4)(C) (2012) (“The head of the agency
shall award the contract by transmitting, in writing or by electronic means, notice of the award to
such source . . . .”); FAR 2.101 (“‘Contract’ means a mutually binding legal relationship . . . . It
includes all types of commitments that obligate the Government to an expenditure of
appropriated funds and that, except as otherwise authorized, are in writing.”); FAR 15.504 (“The
contracting officer shall award a contract to the successful offeror by furnishing the executed
contract or other notice of the award to that offeror.”); see also 31 U.S.C. § 1501(a)(1)(A) (2012)
(“An amount shall be recorded as an obligation of the United States Government only when
supported by documentary evidence of a binding agreement between an agency and another
person . . . that is in writing, in a way and form, and for a purpose authorized by law[.]”).
Thus, like the parties in American General Leasing, plaintiff and the Army contemplated
that in the event that plaintiff was the successful offeror, the contract would need to be reduced to
writing to be binding. The terms of the solicitation, which plaintiff incorporated into its
proposal, unambiguously require a written agreement as the final step to the creation of an
enforceable contract. And, federal procurement law also requires a written agreement–a
requirement that plaintiff, as a company that contracts with the federal government, is charged
with knowing. See Am. Gen. Leasing, 587 F.2d at 58 (“[P]arties contracting with the
Government are charged with having knowledge of the law governing the formation of such
contracts.”).
It appears from the administrative record that the only step remaining for the
consummation of the contractual relationship between plaintiff and the Army was for the Army
to provide plaintiff with an executed agreement. The Army never took this final step to
formalize its acceptance of plaintiff’s proposal, preventing the creation of a binding contract.
See id. (“The parties may have completed the negotiations that would have led to a contract, but
they had not taken the final and essential step of actually executing an agreement.”); see also
Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1433 (Fed. Cir. 1998)
(“[A]gency procedures must be followed before a binding contract can be formed.”); New Am.
Shipbuilders v. United States, 871 F.2d 1077, 1080 (Fed. Cir. 1989) (“Oral assurances do not
produce a contract implied-in-fact until all the steps have been taken that the agency procedure
requires; until then, there is no intent to be bound.”). The lack of a binding contract between
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plaintiff and the Army is fatal to plaintiff’s claim that the Army cancelled the contract it awarded
to plaintiff–a contract that does not exist cannot be cancelled. Consequently, plaintiff cannot
prevail on its first claim for relief.
V. CONCLUSION
In denying plaintiff’s bid protest, the court is not signaling its approval of the Army’s
conduct in this procurement. Problematically, the competition had already advanced through a
number of stages before the Army decided that the evaluation criteria contained ambiguities.
The Army had reviewed the submitted proposals, entertained and ultimately denied a protest, and
provided at least one debriefing. All of these activities required the Army to review and apply
the evaluation criteria set forth in the solicitation. However, during none of these
reviews–performed by numerous individuals (Ms. Edwards, the SSEB, Lieutenant Colonel
Draper, and Major Lewis)–did the Army identify and/or document any ambiguities. There is
nothing in the administrative record that explains why it took so long for the Army to discern that
the evaluation criteria contained ambiguities.
In addition, the evidence in the record strongly suggests that the Army was reluctant to
award the contract to plaintiff even though plaintiff was the only qualified offeror. First, the
SSEB determined that plaintiff submitted the only technically acceptable proposal in August
2013, but the Army did not formally exclude the [. . .] other offerors from the competition or
initiate price negotiations with plaintiff until late March 2014. This seven-month delay in
proceeding towards contract award is contrary to the Army’s source selection plan, which
provided for a one-month time period between proposal evaluation and contract award, and the
administrative record lacks any explanation for the delay. Second, although plaintiff and the
Army reached an agreement on price in late March 2014 and the Army denied the agency-level
protest in early May 2014, the Army delayed sending plaintiff an executed contract, finally
advising plaintiff in late June 2014 that such a contract would not be forthcoming. The
administrative record does not indicate why the Army did not execute a contract with plaintiff
immediately after the two parties had reached an agreement on the contract price (an agreement
that occurred before the agency-level protest was lodged) or immediately after the Army denied
the agency-level protest.
There is no doubt that the Army did not conduct this procurement in an efficient manner.
Nevertheless, the court is compelled by binding precedent to deny plaintiff’s bid protest. As
explained in more detail above, the court concludes that plaintiff waived its second claim for
relief by not challenging the Army’s issuance of Amendments 7 and 8 to the solicitation prior to
the deadline for revised proposals. It therefore GRANTS defendant’s motion to dismiss and
DISMISSES plaintiff’s second claim for relief for failure to state a claim upon which relief can
be granted. Further, the court concludes that plaintiff has not established the existence of a
binding contract with the Army. It therefore GRANTS defendant’s motion for judgment on the
administrative record and DENIES plaintiff’s first claim for relief. Plaintiff’s motion for
judgment on the administrative record is DENIED in its entirety and its complaint is
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DISMISSED. No costs. The clerk shall enter judgment accordingly.
The court has filed this ruling under seal. The parties shall confer to determine agreed-to
proposed redactions. Then, by no later than Friday, February 13, 2015, the parties shall file a
joint status report indicating their agreement with the proposed redactions, attaching a copy of
those pages of the court’s ruling containing proposed redactions, with all proposed
redactions clearly indicated.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
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