United States: March 2017 Protest Roundup

Our March bid protest round-up brings you disparate treatment, undocumented agency rationales, the duty of candor to courts, the unusual timeliness rules for protests of Organizational Conflicts of Interest (OCIs), and (once again) the Late Is Late rule.

  1. CSR, Inc., B-413973; B-413973.2, Jan. 13, 2017:  GAO affords agencies great deference in their value judgments as to the comparative merits of different offerors' proposals.  It ordinarily is extremely difficult to convince GAO that your rating for a particular factor should have been excellent rather than good, or that your technical approach was actually better than the awardee's, despite an agency finding to the contrary.  The protest of CSR, Inc., however, demonstrates two arguments that – when backed up by the record – can overcome that deference: disparate treatment and insufficient Under the Past Performance factor, the protester argued that the agency ignored positive past performance information not expressly cited in the proposal.  The agency countered that it considered only the most recent evaluation of the past performance references identified in the protester's proposal.  Although GAO permits agencies reasonably to limit their past performance review, the record revealed that, for the awardee, the agency did consider past performance information not referenced in the awardee's proposal.  Because this disparate treatment of the offerors reasonably could have resulted in prejudice to the protester, the GAO sustained this ground of the protest.  CSR also objected to the Source Selection Authority's (SSA) identification of Corporate Experience – for which the protester and awardee received the same rating and similar strengths – as a technical discriminator justifying award to a higher priced offeror.  Nothing in the record, however, substantiated any real difference between the awardee's and protester's Corporate Experience.  Although SSAs are not bound to the findings of evaluators, an SSA must explain and document any difference between the documented evaluation and the SSA's best value tradeoff analysis, especially when that divergence is a basis of the award decision.  Because the SSA failed to explain why she thought the awardee's Corporate Experience was meaningfully superior to the protester's, GAO sustained the protest on this ground, as well, and recommended that the agency re-evaluate proposals.

Takeaway:  If an agency engages in disparate treatment or fails to document the basis for its procurement choices, a protester may be able to overcome the deference ordinarily accorded to agency evaluations and tradeoff decisions.

  1. Harmonia Holdings Grp., LLC, B-413464; B-413464.2, Nov. 4, 2016:  In the case above, the agency failed to document the basis of a key finding in the best value tradeoff analysis.  In Harmonia, the agency apparently did not conduct one at all.  In an ordinary best value procurement, when no single offeror is both lowest priced and highest rated, the SSA must conduct a best value analysis in accordance with the procurement's announced evaluation scheme.  That analysis, which must be documented, includes a tradeoff between cost/price and merit under the non-cost/price evaluation factors.  In Harmonia, the agency received five quotations.  The agency made award to the offeror that had the highest technical score, but also the highest price.  The protester, which had the second highest technical score and the second lowest price, protested.  The record contained only a comparison of the offerors' relative technical scores, but no price/technical comparison between the awardee and any other offeror, and no explanation for why the awardee's technical superiority was worth the $3 million price premium over the protester's quote.  Because the record did not establish that the agency conducted any best value tradeoff at all, GAO sustained the protest.

Takeaway:  Agencies are required to document their best value analyses, including the rationale for any cost/price-technical tradeoffs, and failure to do so is a basis for sustaining a protest.

  1. Level 3 Communications, LLC v. United States, No. 16-829 (Fed. Cl. March 16, 2017):  In a follow-up to a December 2016 opinion (Level 3 Communications, LLC, v. United States, 129 Fed. Cl. 487 (2016)), the Court of Federal Claims recently issued a ruling on counsel's duty of candor to the court.  In July 2016, an incumbent contractor filed a bid protest in the court, challenging a contract award to a competitor for "construction and maintenance of a Structured, High Availability Telecommunications Circuit between Wiesbaden, Germany and Arifjan, Kuwait."  Because performance stays are not automatic in Court of Federal Claims bid protests, the parties disputed whether the court should enter a Temporary Restraining Order (TRO) to halt performance pending adjudication of the protest.  The Government represented to the court that the awardee was currently getting subcontracts in place and securing necessary permits "so that it can begin performance on December 1, 2016."  In reliance on the representation that no significant performance would occur before December 1, the court did not issue a TRO.  On November 9, the court's clerk contacted the parties to request an update on whether the awardee still intended to commence performance on December 1, 2016.  The Government surprised the court by responding that the awardee had completed the circuit on November 1, and the Government had accepted the circuit and would "start using it any day now."  The judge then entered a TRO staying performance, ordered the procuring agency to submit its files to the Inspector General, and ordered the Government to show cause why Rule 11 sanctions should not be imposed.  In this month's ruling, the court accepted the Government's argument that counsel's representations failed to meet the strict standards for imposing Rule 11 sanctions.  The court nevertheless found that those representations violated the general duty of candor to the court.  The court then ordered the Government lawyer's supervisor to determine whether the lawyer should receive an adverse annual performance review "to impress, not only on him, but on other Government lawyers who practice before the United States Court of Federal claims and other federal courts, that the duty of candor matters."

Takeaway:  Orders such as this are rare in public procurement cases and are good reminders to the Government and private bar alike of the duty "to be truthful, direct, and complete in all communications with federal judges" and other tribunals, and to recognize that courts may expect you to apprise them promptly of changed circumstances that are reasonably likely to be material to the proceedings.

  1. Concourse Group, LLC v. United States, No. 17-129C (Fed. Cl. March 3, 2017):  In this case, the Court of Federal Claims addressed a post-award protest ground alleging various OCIs due to the incumbent awardee's allegedly "unusually close" relationship between the awardee's proposed subcontractor (the incumbent) and the procuring agency.  The court found that the protester knew or should have known of the grounds of its protest "well before contract award."  Two documents upon which the protester relied in making its allegations were public documents accessible before contract award, and the court likewise found the protester was aware of the awardee's interest in the procurement and its relationship with the incumbent contractor.  Citing Blue & Gold Fleet L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), the court held that the protester waived these OCI grounds by failing to raise them before contract award.

This holding is similar to that of Honeywell Tech. Solutions, Inc., B-400771; B-400771.2, Jan. 27, 2009, 2009 CPD ¶ 49, where GAO held that, although alleged OCIs generally are raised as post-award grounds, a different rule applies "where a solicitation is issued on an unrestricted basis, the protester is aware of the facts giving rise to the potential OCI, and the protester has been advised by the agency that it considers the potential offeror eligible for award."  at 6.  In such cases, GAO requires the grounds to be raised before the next date set for receipt of proposals.  Id. It is not always easy to determine whether a particular OCI concern is a pre- or post-award protest ground.  Here, for example, the Concourse court did not find that the agency advised the protester that it considered the potentially conflicted firm eligible for award while the procurement was still pending – a prerequisite to a pre-award OCI protest under GAO's Honeywell rule.  This raises the possibility that GAO would have found the same OCI ground timely as a post-award protest, even though the Court required it to have been raised as a pre-award protest.  The difficulty in distinguishing pre-award and post-award OCI grounds in each protest forum is a strong reason for discussing such concerns early on with your lawyer.

Takeaway:  If you are aware a competitor has an impermissible OCI, you may be found to have waived the protest ground if you wait until after contract award to file a protest, particularly at the Court of Federal Claims.  Identify potential OCI protest grounds early in the procurement and discuss the possibility of protest with your government contracts attorney.

  1. Peers Health, B-413557.3, March 16, 2017:  The "Late is Late" rule ensures that GAO will never run out of bid protests to deny.  As we have discussed before, agencies ordinarily will reject any proposal not received at the location and by the time specified in the solicitation, regardless of when the offeror submitted the proposal.  In Peers Health, quotations were due by high noon on November 28, 2016, either by email to a specified email address or by regular or overnight mail.  The solicitation incorporated the provision at FAR 52.212-1, which articulates the "Late is Late" rule.  The protester submitted its quotation by email at 11:59 a.m. on the due date specified in the solicitation.  For an unexplained reason, the protester's email was not received by the email address designated in the solicitation until nearly four hours later, at 3:49 p.m.  The agency rejected the quotation as late, and the offeror protested to GAO.  The outcome was not surprising:  regardless of the time the protester submitted the quotation, and regardless of the fact that the quotation apparently spent a few hours in a Government email server before being delivered to the destination address, the dispositive fact here was that the quotation did not reach the designated email address by the established deadline.

The protester argued that the exception for proposals "under the Government's control" in FAR 52.212-1(f)(2)(i)(B) should excuse the late receipt because the quotation was received by a Government server, and was therefore under Government control, prior to the time set for the receipt of quotations. GAO rejected this argument, reaffirming its precedent that this exception does not apply to electronic submissions.  GAO also noted that the quotation could not benefit from FAR 52.212-1(f)(2)(i)(A)'s exception for electronically submitted proposals that are "received at the initial point of entry to the Government infrastructure" by 5:00 p.m. on the preceding workday, as the protester waited until last moment to hit the send button.  "In this regard," GAO observed, "where a vendor waits until one minute before offers are due to submit its quotation, it should expect the possibility that there will be a delay in transmitting it to the specified location, which will result in the quotation being received late."

Takeaway:  Don't wait until the last minute to submit your proposal.  Leave yourself enough time to confirm receipt and, if necessary, to resend in case there are delivery problems.  For electronic submissions, consider submitting your proposal before 5 p.m. the workday before proposals are due to avail yourself of the special exception in FAR 52.212-1(f)(2)(i)(A).

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.