Claims Updates
Adapt Consulting, LLC v. General Services Administration, CBCA 7213, 7393 (July 22, 2024)
- The Civilian Board of Contract Appeals sustained a contractor's appeal of its termination for default for the contractor's alleged failures to correct an issue with card readers installed at access-controlled doors.
- Adapt was awarded a contract to modernize security systems at a building occupied by the Environmental Protection Agency (EPA), including updating the EPA's physical access control system with card readers on interior and exterior doors. After Adapt installed the new card readers, GSA reported receiving error messages from some of the access doors and requested that Adapt investigate and fix the errors. The contractor's investigation could not find a hardware or programming issue with the card readers and concluded that the problems must be caused by user error with the doors, such as leaving the access doors unlatched, or from electromagnetic interference from existing systems within the building. Notwithstanding these findings, GSA partially terminated the contract for default on the basis that the card readers had been defectively installed.
- The board reversed GSA's termination for default decision. The board reasoned that the contractor had convincingly shown that the errors with the card readers were not caused by hardware problems or defective installation through a reasonable investigation. GSA not agreeing with the results of Adapt's investigation did not render the investigation unreasonable. In addition, the board found that Adapt was entitled to recover the costs for conducting the investigation at GSA's request because where there were no contractor-caused defects to remedy, the government's request to investigate was outside the scope of Adapt's contract.
This decision provides a helpful reminder that while the government has broad discretion to terminate a contractor for default, the board will invalidate a termination where the government cannot show that the default decision was justified.
Protests Updates
National Aerospace Solutions, LLC, B-422471.1, B-422471.2 (July 2, 2024)
- In an Air Force procurement for test operations and sustainment services at Arnold Engineering Development Complex valued in excess of $4 billion, GAO denied the protest alleging, among other things, that the Air Force unequally evaluated workload management tools.
- Applying the "substantively indistinguishable" or "nearly identical" standard for disparate treatment, GAO found that there was more than adequate support in the contemporaneous record for the Air Force's conclusion that the awardee's tool offered beneficial capabilities that the protester's tool did not.
- For example, the awardee's tool included certain forecasting features and was capable of ingesting types of data that the protester's tool could not. The protester's tool also appeared untested; it was characterized as "recently developed" and there was no indication that it was ever previously used.
A protester alleging unequal treatment in the evaluation of technical proposals continues to face a heavy burden: it must show that the agency's evaluation unreasonably downgraded or failed to recognize features of its proposal that were substantively indistinguishable from, or nearly identical to, those contained in other proposals. Of course, competing offerors are expected to propose technical solutions with distinct features, illustrating the difficulty of prevailing on this type of protest.
Assessment and Training Sols. Consulting Corp., B-421575.3, B-421575.4 (July 16, 2024)
- GAO denied a protest from incumbent contractor Assessment and Training Solutions Consulting Corporation (ATSCC) alleging that the CIA overlooked strengths in its proposal and that the awardee gained an unfair advantage by failing to comply with the solicitation's font size and formatting limitations.
- The CIA sought proposals for tactical and non-tactical medical support services in regions around the world. The agency twice awarded the contract and twice voluntarily took corrective action in response to protests filed by ATSCC.
- Following the CIA's third award to the same company, ATSCC again protested and alleged, inter alia, that the agency overlooked strengths in its technical approach and failed to reasonably credit ATSCC's incumbent performance. ATSCC also challenged the awardee's compliance with the solicitation's font size limitations.
- GAO found no basis to sustain the protest. As GAO explained, there is no requirement that an incumbent contractor be given extra credit for its incumbent experience or proposing incumbent personnel for the same roles. Further, ATSCC's technical protest grounds merely disagreed with the evaluators' judgments and the weight accorded to certain advantages.
- Finally, although the protester dedicated much of its protest to taking issue with formatting in the awardee's proposal, GAO found that the solicitation did not expressly prohibit the awardee's usage of smaller font in certain graphics. In any event, the protester could not establish that the awardee gained an unfair competitive advantage with the relatively minor additional page space.
- On August 5, 2024, ATSCC filed suit at the Court of Federal Claims, continuing its challenge of CIA's award decision.
Although protesters often rely on claimed benefits from incumbency in developing initial protest arguments, this decision illustrates that incumbency alone often will not prove sufficient to obtain meaningful relief.
Compliance Update
Buy American Act Compliance Update
- DoD OIG released an audit report finding that several DoD agencies violated the Buy American Act of 1933 (BAA) and related executive orders (EOs) in their procurement of light emitting diode (LED) products.
- For context, DoD agencies procure LED lighting improvement projects as part of larger energy savings contracts, subject to compliance with the BAA and executive orders requiring domestically produced supplies and materials.
- DoD received a complaint alleging that contractors had installed BAA non-compliant LED products across 37 DoD installations. In response, DoD OIG audited four DoD installations by sampling 46 LED product models from nine manufacturers that contractors had installed at these locations.
- DoD OIG observed that several of the sampled LED products and components were made in China and other foreign countries. DoD OIG also found that many DoD contracting officials failed to take adequate measures to comply with the BAA. This occurred, in part, because DoD contracting personnel relied on prime contractor assurances that subcontractors installed BAA compliant items. As a result, DoD OIG recommend that contracting officials document their reviews of contractors' BAA compliance.
The report serves as an important reminder to contractors—particularly prime contractors that rely on subcontractors to provide BAA compliant goods and materials—that DoD is increasing its scrutiny of supply chains.
Court of Federal Claims Update
Amendments to Rules of the US Court of Federal Claims
- On July 29, 2024, the US Court of Federal Claims amended its rules, including several anticipated changes to the Appendix C procedures for handling the administrative record in bid protest cases.
- Initial service of the administrative record will be accomplished through an electronic transfer platform, rather than the ECF docket.
- Consistent with the practice of many judges, the parties must confer to prepare a joint appendix of the record pages cited in the briefs.
Many of these procedural mechanisms have already been tested in protest matters over recent years. Practitioners should take this opportunity to review the court's most current rules.
Defense Pricing and Contracting Re-Organization
What's in a Name? Apparently quite a bit. The office once known as Defense Procurement and Acquisition Policy, and more recently as Defense Pricing and Contracting, is now going to be known as Defense Pricing, Contracting, and Acquisition Policy (DPCAP). The change is effective immediately.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.