Bona Fide Conglomerate, Inc. v. United States
96 Fed. Cl. 233
Fed. Cl.2010Background
- 5–6 legally material facts: (1) This is a post-award bid protest challenging a GSA/Committee AbilityOne procurement for custodial and grounds maintenance in Las Vegas, with OVI awarded the contract and Bona Fide challenging. (2) NISH evaluated proposals under SSN No. 10709; Bona Fide and OVI were deemed fully qualified, with Bona Fide allegedly higher on the heavily-weighted Capability and Capacity factor but OVI favored on What Customer Wants. (3) The Committee and GSA awarded to OVI on Oct 1, 2010; NISH and the Committee notified, with a September 2010 addition of OVI to the Procurement List. (4) Bona Fide appealed under AbilityOne Bulletin procedures; NISH upheld the award to OVI. (5) The court granted a TRO extending to Nov. 20, 2010 due to complex, novel jurisdictional issues and potential irreparable harm. (6) The TRO allows continued procurement from TTCC or other sources during the TRO period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under Tucker Act and AbilityOne process | Bona Fide asserts government action via NISH adoption is reviewable | Defendant insists actions were not a federal procurement actionable under §1491(b)(1) | Court finds likely jurisdiction over the procurement action. |
| Merits—evaluation consistency with SSN and weighting | Bona Fide claims Bona Fide should have higher score given heavier weight on Capability and Capacity and Quality Control | NISH/Committee followed stated SSN criteria | Plaintiff raises serious questions; evaluation may have misapplied weights. |
| Irreparable harm in absence of TRO | Without TRO, OVI could begin performance; Bona Fide lacks adequate legal remedy | Government can continue interim procurement; harm minimal | Irreparable harm shown; TRO warranted. |
| Public interest and balance of hardships | Preserve integrity of procurement process | Interim disruption harms contractor and government | Public interest favors restraining award during protest. |
| Bond amount adequacy | Low bond sufficient to cover potential costs | Higher standby/administrative costs argued | Bond set at $50,000. |
Key Cases Cited
- Distributed Solutions v. United States, 539 F.3d 1340 (Fed.Cir.2008) (procurement process includes need-determination stage; broad Tucker Act jurisdiction)
- Angelica Textile Servs., Inc. v. United States, 95 Fed.Cl. 208 (2010) (procurement reviewable when committee adopts recommendations)
- Honeywell, Inc. v. United States, 870 F.2d 644 (Fed.Cir.1989) (agency adoption of third-party recommendations reviewable; rationality standard)
- Magellan Corp. v. United States, 27 Fed.Cl. 446 (1993) (likelihood of success is flexible for TROs in bid protests)
- Gentex Corp. v. United States, 58 Fed.Cl. 634 (2003) (irreparable harm evaluation in TROs; no single factor controls)
- Cincom Sys., v. United States, 37 Fed.Cl. 266 (1997) (public interest considerations in bid protests)