Che Consulting, Inc. v. United States
125 Fed. Cl. 234
| Fed. Cl. | 2016Background
- This is a postaward bid protest in the United States Court of Federal Claims by CHE Consulting, Inc. against the Defense Logistics Agency’s procurement of hardware and software maintenance services.
- DLA issued RFQ SP4701-15-Q-0299 for Oracle storage/backup maintenance; NAICS 541519; anticipated firm-fixed-price under a GSA FSS/Oracle ESI framework.
- DLA awarded to Affigent, LLC after evaluating three proposals; Affigent’s price of $393,172.32 was the lowest; contract executed September 29, 2015.
- CHE contends the solicitation/award were arbitrary and violated competition rules, bundling principles, and posting requirements; CHE seeks discovery and supplement of the administrative record.
- The court grants in part and denies in part: (i) dismisses CHE’s remaining challenges for lack of standing, (ii) denies CHE’s motion for judgment on the administrative record, (iii) grants defendant’s cross-motion for judgment on the administrative record, (iv) denies discovery and supplements, and (v) grants plaintiff’s motion to strike related declarations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DLA’s consolidation of hardware and software maintenance violated CICA or FAR | CHE argues bundling restricts competition and violates CICA/FAR | DLA had discretion to consolidate; no unlawful bundling or required justification given value | Not violated; consolidation valid and within discretion |
| Whether CHE had standing to challenge procurement and related issues | CHE had substantial chance to win and direct economic interest | CHE lacked substantial chance for software-maintenance elements; standing limited | CHE has standing to challenge consolidation but lacks standing on other procurement challenges |
| Whether DLA properly posted/advertised the solicitation and NAICS code used | CHE was improperly informed; misleading posting and NAICS code | Posting was proper; no obligation to inform CHE; NAICS choice appropriate given scope | Posting/NAICS use deemed proper; CHE not prejudiced by posting approach |
| Whether discovery/supplementation and declarations were appropriate | Discovery would reveal bad-faith evidence and procurement knowledge | Record review should be limited to administrative record; discovery not warranted | Discovery denied; declarations struck; no supplementation necessary |
Key Cases Cited
- Kingdomware Techs., Inc. v. United States, 754 F.3d 923 (Fed. Cir. 2014) (FSS procurement priority; agencies may order off schedule)
- Tyler Construction Grp. v. United States, 570 F.3d 1329 (Fed. Cir. 2009) (agency discretion to consolidate where no statutory/regulatory prohibition)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (highly deferential standard; narrow review in bid protests)
- Ellsworth Assocs., Inc. v. United States, 45 F.3d 388 (Fed. Cir. 1999) (no obligation to solicit incumbents; posting decisions under FAR 8)
- A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126 (2006) (judgment on the administrative record; review framework)