Bcpeabody Construction Services, Inc. v. United States
112 Fed. Cl. 502
Fed. Cl.2013Background
- The Army Corps (Jacksonville District) issued an FAR Part 15, small‑business set‑aside solicitation for cutoff wall and dike rehabilitation work; award was to be made on a lowest‑price, technically acceptable basis.
- BCPeabody and Edens each proposed to use Bauer as the major subcontractor for cutoff wall work and submitted identical unconditional commitment letters from Bauer.
- BCPeabody accidentally submitted two identical project information sheets for Bauer (a duplicative copy) and omitted the required distinct project sheet showing Bauer’s experience with penetrating an unremovable subsurface obstruction; the contracting officer rated BCPeabody unacceptable for Cutoff Wall Experience and excluded its offer.
- Edens was rated technically acceptable (it submitted sufficient project descriptions) and received the award at a price about $1,084,361 higher than BCPeabody’s bid.
- GAO found the contracting officer erred in treating Bauer’s experience differently between offerors but concluded BCPeabody was not prejudiced because the corrective project sheet it later provided referenced a distinct corporate entity; BCPeabody then sued in the Court of Federal Claims and obtained a preliminary injunction.
- The Court of Federal Claims held that the contracting officer abused her discretion by (1) failing to seek a clarification about BCPeabody’s clerical copying error under FAR § 15.306(a)(2) and (2) unequally crediting Bauer’s experience for Edens but not for BCPeabody; the court set aside the award and ordered BCPeabody restored to the competition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contracting officer was required to seek clarification of BCPeabody’s copying error under FAR § 15.306(a)(2) | BCPeabody: the duplication was a clerical error; CO knew Bauer was the subcontractor and Bauer’s qualifications, so CO should have sought clarification | Government: FAR § 15.306(a)(2) is discretionary; CO had no duty to clarify and could reject an incomplete proposal | Court: The omission was a clerical error susceptible to clarification; CO abused discretion by failing to inquire given the record evidence that Bauer was the intended subcontractor and qualified |
| Whether the agency impermissibly treated the same subcontractor’s past performance differently between offerors | BCPeabody: CO knew Bauer supported both offers and could not reasonably accept Bauer for Edens but not for BCPeabody | Government: CO properly evaluated each proposal independently and had discretion | Court: CO’s unequal treatment was unreasonable; agency may not ignore prior performance information of which it is aware |
| Whether the error was material (i.e., whether BCPeabody was prejudiced) | BCPeabody: had lowest price and would have been technically acceptable but for the clerical error—thus substantial chance of award | Government: GAO concluded no prejudice because the corrective sheet attached later was a different legal entity | Court: BCPeabody demonstrated prejudice—without the error it would likely have won the award |
| Appropriate remedy (injunction / setting aside award) | BCPeabody: seeks reinstatement to competition and reevaluation; injunctive relief justified | Government/Edens: rescinding award harms awardee; delay harms interests | Court: Equitable factors favor relief—grants permanent injunction, sets aside award, directs Corps to restore BCPeabody and reevaluate proposals |
Key Cases Cited
- Orion Tech., Inc. v. United States, 704 F.3d 1344 (Fed. Cir.) (agency may reject technically incomplete proposals when omission prevents meaningful evaluation)
- Information Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir.) (exchanges to obtain subcontractor information can be clarifications, not discussions)
- PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir.) (standards for injunctive relief and review of procurement actions)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir.) (arbitrary and capricious / rational‑basis standard for procurement review)
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir.) (agency decision must be coherent and reasonable)
- Data Gen. Corp. v. Johnson, 78 F.3d 1556 (Fed. Cir.) (prejudice requirement in bid protests)