United States: April Bid Protest Roundup

Our monthly bid protest roundup for April identifies decisions by the Government Accountability Office (GAO) and the Court of Federal Claims on issues concerning:  small businesses' right to a certificate of competency review from the Small Business Administration before being excluded for responsibility-like reasons; how potentially problematic organizational conflicts of interests can and should be mitigated prior to award; an extraordinary decision by the court to award enhanced attorney's fees based on the government's intransigence; and, finally, the definition of "adverse past performance."

Competitive Range Solutions LLC, B-413104.10

Competitive Range Solutions LLC (CRS) challenged the National Institutes of Health's (NIH) decision to exclude CRS's proposal from consideration for an information technology (IT) contract because CRS did not sufficiently demonstrate its capabilities or relevant experience related to IT health missions.  NIH deemed CRS's proposal unacceptable because of the deficient response to the Management Approach criteria, finding that CRS's examples of IT services and solutions did not establish experience with related IT missions.

According to NIH, its determination that CRS failed to demonstrate relevant capabilities and experience amounted to nothing more than the agency's reasonable conclusion that CRS submitted a non-responsive and unacceptable proposal.  CRS, on the other hand, argued that NIH's evaluation and conclusion amounted to a nonresponsibility determination, which should have been referred to the Small Business Administration (SBA) under its certificate of competency (COC) procedures.

Under the Small Business Act, the SBA must certify whether a small business can responsibly perform the contractual requirements.  15 U.S.C. § 637(b)(7)(A).  The responsibility determination includes an assessment of the contractor's capability, competency, capacity, credit, integrity, perseverance, and tenacity.  The COC regulations state that an agency must refer the small business to the SBA for a COC review prior to rejecting the small business's proposal when the evaluation is non-comparative (e.g., a pass/fail, go/no-go, or acceptable/unacceptable) and assess whether the small business is responsible or capable of performing the contractual tasks.

NIH argued that the assessment was not a responsibility determination because the agency did not review whether CRS lacked capabilities or was "responsible" rather, it evaluated whether CRS had fully responded to the solicitation requirements by demonstrating sufficient capabilities necessary to perform health-related IT missions.  The GAO disagreed, however, and found that a COC review was required prior to excluding CRS from consideration for award.

First, the GAO focused on the bifurcated nature of the evaluation as evidence that NIH was performing a non-comparative evaluation of CRS's capability to perform the technical requirements.  The solicitation established a two phase evaluation that required NIH to evaluate proposals on a "go"/"no-go," non-comparative basis in Phase 1.  This was problematic for the agency because the COC regulations specifically cite a "go"/"no-go" determination as a matter of responsibility.

Second, the GAO found the agency's record did not support its argument that CRS's proposal was eliminated because it was not responsive to the solicitation.  The GAO, however, focused on the agency's evaluation of CRS's "capability" to perform the contract, which contradicted NIH's argument that CRS submitted a non-responsive proposal.

Takeaways:  Small businesses should be mindful of possible legitimate protest arguments when they are eliminated from contention for a contract during an initial review or phase of the evaluation.  They should also pay particular attention to how the evaluation is characterized and, if eliminated during an initial phase, be certain to ask questions about the rationale for its exclusion during any debriefing.

Harkcon Inc., B-412936.2

The issue in Harkcon was whether the United States Coast Guard (USCG) reasonably evaluated an alleged organizational conflict of interest (OCI) arising from the awardee's hiring of a recently retired, high ranking USCG official.  The solicitation sought proposals for Training and Analysis Support Services (TASS) to be provided over a five year period at USCG training centers.

Harkcon's initial protest largely focused on the perceived OCI created by the awardee's hiring of the former USCG official.  In response to the first protest, the USCG agreed to investigate the OCI claims.  In December 2016, the USCG notified Harkcon that it had completed its OCI investigation and found no evidence that the awardee had an unfair competitive advantage due to receipt of information from the former USCG official.  The USCG affirmed its award to Metris LLC, which prompted Harkcon to file another protest raising similar concerns.

Harkcon argued that Metris had unequal access to information because Metris hired the recently retired USCG official.  Harkcon argued that the former USCG officer must have provided non-public information because the employee led the USCG's training division for Forces Readiness Command and had access to "competitively useful, nonpublic information" about Harkcon.

The GAO reviewed the USCG's investigation of the OCI and found that the investigation had clearly shown that the former USCG employee did not have access to "procurement sensitive or competitively useful information" related to Harkcon's previous contract.  The GAO also concluded that the USCG investigator reasonably found that, even if the individual had access to the information, it would not have been competitively useful for the new TASS solicitation.

The GAO also found it significant that the former employee had cleared the intent to serve as Metris's program manager with the agency's ethics office.  The GAO took the opportunity to re-affirm the notion that mere familiarity with a contract or scope of work due to prior government employment is not evidence of an unfair competitive advantage unless there are additional facts demonstrating such advantage.

Takeaways:  Certain types of OCIs are difficult to overcome and, for that reason, it is imperative to conduct extensive diligence before hiring a former government official.  It is also helpful to try to ensure that the agency has performed any investigative or mitigation steps prior to award.  For disappointed offerors, the protest process is still useful as a tool to verify and confirm that a proper review or investigation of a potential OCI was completed, but, if the agency follows protocol, GAO is unlikely to second guess the agency's conclusions.

Starry Associates, Inc. v. United States, COFC No. 16-44C, Apr. 10, 2017

This protest began as multiple post-award challenges at the GAO, morphed into a protest of the agency's decision to cancel the solicitation at the Court of Federal Claims, and finished with a remarkable decision by the court to award protester enhanced fees.  The enhanced costs were warranted because the government engaged in conduct the court described as "an egregious example of intransigence and deception, not just with the regard to the bidder, but to the GAO and to the court."

Although the court's decision to award the protester enhanced fees is interesting, it was based on unique and unusual facts.  For practitioners, this case is equally noteworthy because:  (i) it is a rare instance of a successful challenge to an agency's decision to cancel its solicitation, and (ii) the protester was able to supplement the administrative record with deposition testimony of agency personnel.

An agency's decision to cancel a solicitation is typically afforded an almost impenetrable amount of discretion by the court.  This level of deference is premised on the fact that the agency (and only the agency) can define its requirements and determine whether those requirements have changed or are no longer necessary.  The agency need only proffer a rational and contemporaneously documented determination and the court will, in nearly all cases, uphold a decision to cancel a solicitation.  Here, however, the record "contains no basis on which can pin the rationality of its decision to cancel."  127 Fed. Cl. at 551.  All the court could point to were post hoc declarations and testimony from agency personnel that offered little more than conclusory assertions that the requirements were no longer necessary.

Also, the facts in this case present the unusual circumstances necessary for the court to grant limited discovery – in this case, depositions of agency officials.  Under the Federal Circuit's Axiom decision and its progeny, the Court of Federal Claims may only permit the supplementation of the contemporaneous agency record when necessary for effective judicial review.  One of the few instances in which the court will permit supplementation with discovery is where the plaintiff has raised colorable allegations of bias or bad faith, as such evidence would not typically be reflected in an agency's documentation.  Here, Starry proffered sufficient facts of bias, and, although the court did not reach the issue of bias, the court used the deposition testimony to not only sustain the substance of the plaintiff's challenge to the solicitation's cancellation, but also as the basis for granting the extraordinary remedy of enhanced costs as the deposition revealed the "intransigence and deception" the court found so distasteful.

Takeaways:  Although offerors and their counsel often reflexively file protests first at the GAO (and for good reason), there are circumstances where filing immediately with the court makes sense.  This may include circumstances where the offeror has colorable and justified concerns about the propriety of the agency's conduct because the court is better equipped and often more willing to probe such issues.  Potential offerors, however, should be cautious before blindly casting aspersions on the agency.  The burden of proof for bad faith or bias allegations is extraordinarily high, and, more often than not, such contentions weaken or water down otherwise strong arguments on the merits.

Walden Security, Akal Security, Inc., B-413523.6 et al.

This post-award protest involved the award of contracts for the staffing of court security officers for three judicial circuits.  Past performance was, along with the technical factor, the most important evaluation criteria.  The protester Walden and the awardee received identical "Very Good" adjectival ratings for Past Performance, but the agency noted in the narrative evaluation of Walden that it had experienced "some difficulty in 'maintaining performance while scaling up services.'"  The Source Selection Authority ("SSA") did not discriminate the awardee's and Walden's past performance in its tradeoff decision and instead reasoned that the awardee's slight premium was justified in light of its slight yet clear technical advantages.

Walden challenged, among other things, the agency's evaluation of its past performance.  Even though Walden's Past Performance was rated Very Good overall, and its Past Performance evaluation did not factor into the SSA's tradeoff decision, Walden argued that the negative aspects of the narrative description of its experience were unreasonable.  Typically, such arguments find no traction at the GAO, which affords agencies broad discretion to interpret and evaluate offerors' past performance.  Here, however, the Solicitation provided that "[o]fferors will be given an opportunity to address adverse past performance information to which the offeror has not previously had an opportunity to respond."

The agency argued, among other things, that Walden's past performance information was not "adverse" because it was overall very positive and did not result in the protester receiving "an unfavorable or less than satisfactory" rating.  The GAO disagreed because, notwithstanding the overall rating, "the agency relied on the[] same performance concerns in determining that Walden's past performance was not a discriminator" over the awardee.  For this reason, the GAO determined that the information was "sufficiently adverse that the agency should have provided Walden with an opportunity to respond."  The GAO found competitive prejudice in the error because, had Walden had an opportunity to respond, it could have increased its Past Performance rating from Very Good to Exceptional.

Takeaways:  Where agencies are required to afford offerors an opportunity to respond to adverse past performance, whether as a result of an RFP requirement or as a result of discussions under FAR subpart 15.3, protesters and their counsel should not view adverse past performance in a vacuum, but assess it under the circumstances of the overall competition.  Protesters ought to consider whether an improvement to otherwise positive past performance ratings could have improved their chances for award.  Although this places agencies in a difficult spot because it requires they forecast what may or may not be deemed "sufficiently adverse" before award, it should be seen as an opportunity for protesters.

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.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions