Advanced American Construction, Inc. v. United States
111 Fed. Cl. 205
Fed. Cl.2013Background
- AAC filed pre- and post-award bid protests in Oct 2012 challenging the Corps' 8(a) set-aside and award to TSS-Garco for a Lower Granite Dam barge moorage project.
- The IFB (W912EF-12-B-0022) involved a firm-fixed-price contract with an estimated value around $9.12 million; awardee TSS-Garco was an 8(a) JV; AAC was non-8(a).
- The Corps initially considered SDVOSB, then moved to an 8(a) set-aside after outreach; SBA Seattle identified 13 qualified 8(a) firms; TASB reviewed the decision.
- SBA accepted the project into the 8(a) BD program; the FedBizOpps synopsis and IFB (July 2012) described a competition among 8(a) firms in WA/ID.
- The court held AAC had standing and did not find Blue & Gold Fleet waiver; but ultimately granted judgment on the administrative record to the Government, upholding TSS-Garco's responsibility and the 8(a) set-aside.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does AAC have standing to challenge the set-aside and award? | AAC has non-trivial competitive injury and interests in marine construction procurement. | AAC, a non-8(a) firm, lacks standing to challenge 8(a) set-aside/award decisions. | AAC has standing. |
| Were 8(a) set-aside and market-research decisions compliant with FAR 19.805-1 and 10.001/10.002? | Agency failed to show two capable 8(a) firms and did inadequate market research. | There were two or more capable 8(a) firms; market research was adequate and properly documented. | No violations; decisions upheld. |
| Are the drilled-shaft and mooring-dolphin experience provisions true definitive responsibility criteria? | IFB contained definitive criteria that the successful 8(a) firm must meet itself. | Those experience provisions are post-award submittal requirements, not pre-award definitive criteria. | Not definitive pre-award criteria; not violated. |
| Did the government violate FAR 10.001/10.002 by not adequately documenting market research? | The market research was insufficient or inadequately documented. | Market research was conducted and properly documented; regulations complied. | No violation; documentation adequate. |
Key Cases Cited
- Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir. 2003) (standing requires prejudice and direct economic interest)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (pre-award standing requires substantial competitive injury)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (Blue & Gold waiver rule for solicitation challenges)
- Comint Systems Corp. v. United States, 700 F.3d 1377 (Fed. Cir. 2012) (pre-award challenges may be raised post-closing if first raised timely)
- Assessment & Training Solutions Consulting Corp. v. United States, 92 Fed. Cl. 722 (2010) (market research discretion in 8(a) set-aside cases)
- DGR Assocs., Inc. v. United States, 94 Fed. Cl. 189 (2010) (agency review of bid protests on the merits)
- ATSCC (Assessment & Training Solutions) v. United States, 92 Fed. Cl. 722 (2010) (valuation of market research and 8(a) set-aside precedents)