CBY Design Builders v. United States
105 Fed. Cl. 303
Fed. Cl.2012Background
- This bid protest concerns a Hurricanes Infrastructure Office design-build project for Permanent Canal Closures and Pumps by CBY Design Builders (Brasfield & Grome, CDM Constructors, W.G. Yates) after CBY was initially awarded the contract.
- GAO sustained protests alleging an OCI, price misdirection under Build-to-Budget, and issues with CBY’s foundation evaluation, prompting corrective action including a third OCI investigation, amendment of the RFP, and resolicitation of proposals.
- The SSA ultimately awarded CBY the contract for $675 million, but the GAO protests led to corrective actions including new discussions, revised proposals, and a potential reaward process.
- CBY challenged the corrective action as arbitrary and capricious, asserting the GAO decision was irrational and that the third OCI investigation was unwarranted and that CBY’s foundation design was properly evaluated.
- The court granted the government’s and intervenors’ cross-motions for judgment on the administrative record and dismissed CBY’s claims related to the third OCI investigation, while affirming the rational basis for the remaining corrective actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third OCI investigation was moot and CBY lacked standing | CBY argues the third OCI investigation remains live and injurious to CBY | Gov’t contends the third OCI investigation is moot and CBY lacks standing | Yes, moot with no standing; but ripeness for remaining actions. |
| Whether GAO’s Build-to-Budget interpretation was rational | CBY asserts GAO misread RFP and misapplied law; language allows below-budget bids | GAO’s interpretation was rational and supported by record | GAO’s interpretation was not a rational basis; the Court finds the Build-to-Budget reading irrational in supporting corrective action. |
| Whether the Corps reasonably evaluated CBY’s foundation design | CBY says Volume IV data were properly evaluated and CBY’s foundation complied | Corps did not meaningfully evaluate CBY’s foundation per RFP; GAO’s finding had rational basis | GAO’s finding that evaluation was not meaningful was rational; corrective action upheld. |
| Whether corrective action to re-solicit proposals is ripe for review | CBY seeks pre-award challenge to the re-solicitation process | Action to re-solicit is final in effect and reviewable | Corrective action to re-solicit is ripe for review; proceedings permitted. |
Key Cases Cited
- Centech Grp., Inc. v. United States, 554 F.3d 1029 (Fed. Cir. 2009) (courts review GAO decisions with APA standards; corrections may be final actions challenging GAO outcomes)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (finality/participation issues in bid protests; solicitations and amendments have ongoing relevance)
- Jacobs Technology Inc. v. United States, 100 F.3d 1575 (Fed. Cir. 2015) (pre-award protests and post-award corrective actions; finality of recompetition decisions)
- Sheridan Corp. v. United States, 95 Fed.Cl. 141 (Fed. Cir. 2010) (ripeness and corrective-action review in bid protests)
- Ceres Gulf, Inc. v. United States, 94 F.3d 303 (Fed. Cl. 2010) (corrective actions and new competitions; finality of re-solicitation decisions)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (standing requirement in bid protests; nontrivial competitive injury)
- Turner Construction Co. v. United States, 645 F.3d 1377 (Fed. Cir. 2011) (review standards for GAO-follow-on actions; deference framework)
- Honeywell, v. United States, 870 F.2d 1083 (Fed.Cir. 1989) (deference when GAO recommendations are followed; limitations on de novo review for questions of law)