Post-Award Bid Protest Sustained for Flawed Award Decision

In Firstline Transportation Security, Inc. v. United States, 100 Fed.Cl. 359 (Sept. 27, 2011), the Court sustained a post-award bid protest, finding that the agency's selection of a low-price technically inferior proposal in a best-value procurement was not justified.

Non-price factors were more important than price in the RFP. It was not sufficient for the government to simply state that the proposal's technical superiority is not worth the payment of the price premium; instead, the government must explain specifically why it does not warrant the premium.

The Court concluded that the best-value analysis performed by the SSEB was both irrational and inconsistent with the evaluation scheme set forth in the RFP - and thus contrary to law. The errors had the effect of converting the best-value procurement contemplated under the RFP into one based on low price and mere technical acceptability.

"In a best-value procurement, the relevant question is not whether the lowest-priced proposal will meet the minimum technical requirements set forth in the RFP; rather, the government must determine which proposal represents the best value to the government."

GAO Sustains Protest of Contract Award to Different Legal Entity

In Matter of: W.B. Construction and Sons, Inc., B-405874, B-405874.2, December 16, 2011, GAO sustained a protest that the contracting agency improperly awarded an 8(a) contract to an entity that did not participate in the procurement.

The construction contract award was made to DQSI, Corporation, which was the 8(a) entity approved by SBA. However, the proposal had been submitted by DQSI, LLC. It is undisputed that the award was made to a legal entity other than the entity that submitted the proposal.

The protester alleges that DQSI, Corporation no longer exists because it converted to a LLC in 2009. Further, the protester alleged that DQSI, Corporation did not receive advance SBA approval of the change in business structure or ownership. SBA confirmed that DQSI, Corporation was the 8(a) eligible participant.

The protest against the 8(a) award to DQSI, LLC was sustained by GAO, and the Army instructed to terminate the contract for convenience if DQSI, LLC is not eligible for the 8(a) award.

Post-Employment Restrictions for Government Employees

Former government employees are subject to statutory post-employment restrictions, including both permanent restrictions and 2-year restrictions. In November 2011, GAO sustained a bid protest against a contracting officer's termination of a contract based on a finding of an appearance of impropriety. See information on post-employment activities and appearance of impropriety.

Court of Federal Claims Blasts Government for Sole Source Contract

The Court of Federal Claims found that the government violated the Competition in Contracting Act in awarding a sole source contract for sixteen 50-man bare base shelter systems for troops in Afghanistan.

Even when facing unusual and compelling urency, the government must request offers from as many potential sources as is practicable. Since the government had 26 days between its awareness of the requirement and award of the contract, the government could easily have obtained competitive prices from other sources - and its failure to do so was in violation of law.

The Court also found that the Government had intentionally delayed posting the Justification & Approval for the sole source award until after performance was completed for the purpose of avoiding a bid protest. The Court found this action to be arbitrary and capricious.

The Court found the protest not to be moot because of an exception to the mootness doctrine - the Government's violation of statutory competition requirements for the war effort is capable of repetition, and could again evade review.

California Industrial Facilities Resources, Inc. v. United States, 100 Fed.Cl. 404 (July 8, 2011).

Department of Defense Contract Awards

For daily update of Department of Defense government contract awards, see http://www.defense.gov/Contracts/default.aspx.

War Zone Government Contractor Tort Liability

For a discussion of the ongoing Multi-District Litigation civil tort cases against government contractor Kellogg Brown & Root, Inc. (KBR, Inc.) and other LOGCAP contractors performing waste disposal and water treatment services for war zone military bases in Iraq and Afghanistan, see Karen S. Hindson PC government contract news update on KBR, Inc. Burn Pit Litigation, United States District Court, District of Maryland, September 8, 2010.

The door is open to potential civil liability for government contractors who provide services to the U. S. military in war zones.

For another case on contractor tort liability for actions in a war zone, see Karen S. Hindson PC August 6, 2010 blogpost.

Contact Karen S. Hindson P.C., government contracts attorneys, for your contract law questions or case evaluation.

Government Contractor Immunity Case - Katrina Litigation

The Fifth Circuit Court of Appeals dealt a blow to government contractor Washington Group International, Inc. on September 14, 2010, when it overturned a District Court decision granting WGI government contractor immunity in the Katrina Canal Breaches Litigation.

The Fifth Circuit, reviewing de novo the summary judgment decision in favor of WGI, found that the government had not approved reasonably precise specifications - a necessary prong to the government contractor immunity test first articulated by the Supreme Court in 1988.

Contact Karen S. Hindson, government contracts attorney, for more information or to discuss your case.