American Apparel, Inc. v. United States
108 Fed. Cl. 11
Fed. Cl.2012Background
- DLA solicited coats all-weather for five line items (0001–0005) with 1-year base and four option years; initial evaluation prioritized technical factors over price.
- Six bidders submitted proposals; one was eliminated for not submitting prices; five remained and were evaluated.
- Source Selection Authority identified DJ Manufacturing for Item 0001 and American Apparel for Items 0002–0005 as best values; price was weighted against technical factors.
- In 2011, DLA invoked DLAD Add/Deletion of Items to add Items 0006 and 0007 to American Apparel and Bluewater contracts, with price-only evaluation.
- American Apparel protested that the 2011 add/Deletion process violated CICA and FAR by not considering non-price factors; GAO dismissed as corrective action proceeded; later this court considered whether the addition was in-scope and whether jurisdiction existed.
- Court concludes that Items 0006 and 0007 additions were in-scope modifications within the original procurement and not subject to new competition; grants dismissal of American Apparel’s protest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court has subject-matter jurisdiction over the protest | American Apparel challenges Add/Delete-based actions under 1491(b)(1). | Modification within scope excludes protest jurisdiction; challenges to Bluewater's contract are not proper under §1491(b)(1). | Jurisdiction present but case dismissed on in-scope modification grounds. |
| Whether the 2011 additions were outside the scope requiring competition | Add/Delete Clause and 2009 synopsis anticipated additions; protested price-only evaluation violated CICA/FAR. | Add/Delete additions were within the scope of the original procurement; no new competition required. | Additions 0006/0007 were in-scope modifications; no new competition required. |
| Whether non-price factors should have been considered for Items 0006/0007 | Past performance/cSocioeconomic factors should be evaluated; price-only analysis violated FAR/Mandates. | Price was the determining factor; non-price factors need not be considered for these additions. | Court declines to require consideration of non-price factors for these in-scope modifications. |
| Whether modification was a cardinal change or materially different | Additions significantly altered scope/cost and could be a cardinal change. | Modifications stayed within scope; costs increased but were consistent with original procurement. | Modification did not materially depart from original scope. |
| Relief sought and procedural posture | Terminate Bluewater award and require competition; ensure proper adherence to law. | Dismissal appropriate; actions were in-scope modifications. | Complaint dismissed; judgment for defendant; cross-motions moot. |
Key Cases Cited
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed.Cir.2001) (APA-review standard; rational basis deference in bid protests)
- Data General Corp. v. Johnson, 78 F.3d 1556 (Fed.Cir.1996) (prejudice standard requires substantial chance of award but not necessity)
- AT&T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed.Cir.1993) (modification within scope allowed; CICA not require new competition for every change)
- Northrop Grumman Corp. v. United States, 50 F.3d 443 (Fed.Cl.2001) (scope of original procurement and bidder expectations considered)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed.Cir.2005) (two-step APA review; prejudice required; significant error standard)
- CHE Consulting, Inc. v. United States, 552 F.3d 1351 (Fed.Cir.2008) (highly deferential rational basis review in procurement)