Ettefaq-Meliat-Hai-Afghan Consulting, Inc. v. United States
106 Fed. Cl. 429
| Fed. Cl. | 2012Background
- EMA challenges Army NAT trucking awards in Afghanistan as to EMA's nonresponsibility and as to the vendor vetting program.
- The Army disqualified EMA from award based on nonresponsibility under FAR 9.104 and on EMA’s vendor vetting rating.
- EMA seeks remand for a new responsibility determination and a debriefing with reconsideration rights, plus an injunction.
- ARB and classified annexes support the Army’s conclusions; EMA’s protests were denied at the agency level and in court.
- The court grants the Army’s motion for judgment on the administrative record and denies EMA’s injunction relief.
- The NAT procurement followed the HNT contract and evaluated for lowest price technically acceptable with two criteria: technical capability and price.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Army’s nonresponsibility determination was arbitrary and capricious | EMA argues the record shows insufficient basis to deem EMA nonresponsible | Army defends a rational, data-supported assessment of past performance and integrity | Yes, the Army's determination was reasonable and rational |
| Whether the vendor vetting process was properly applied to EMA | EMA asserts it was improperly treated as ineligible due to vetting before the final responsibility decision | Defendant contends EMA’s vetting status was not misapplied and debriefing not required | No reversible error in vetting application |
| Whether EMA was entitled to a debriefing/reconsideration under vendor vetting | EMA claims it was an apparent successful offeror and thus entitled to reconsideration debriefing | EMA was not an apparent successful offeror when debriefing rights attached | Not entitled to new debriefing or reconsideration under vetting process |
| Whether EMA’s corrective actions affected the responsibility determination | EMA’s corrective actions should mitigate past performance deficiencies | Past deficiencies, not remedied, supported nonresponsibility | Corrective actions did not negate the rational basis for nonresponsibility |
| Whether remand for a new debriefing is warranted | EMA seeks remand for additional debriefing | Remand is not required given proper application of vetting and responsibility standards | Remand denied |
Key Cases Cited
- Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed.Cir.2004) (contracting discretion in responsibility determinations; rational basis upheld)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed.Cir.2001) (wide discretion to contracting officers; rational decision required)
- O.S.G. Prod. Tankers LLC v. United States, 82 Fed.Cl. 570 (Fed.Cl.2008) (burden on contractor to show current responsibility; information lacking supports nonresponsibility)
- John C. Grimberg Co. v. United States, 185 F.3d 1297 (Fed.Cir.1999) (contracting officers have broad discretion in responsibility determinations)
- News Printing Co. v. United States, 46 Fed.Cl. 740 (Fed.Cl.2000) (courts defer to agency judgments when supported by record)
- Bender Shipbuilding & Repair Co. v. United States, 297 F.3d 1358 (Fed.Cir.2002) (agency may rely on accumulated deficiencies; not error to base decision on pattern)
- Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372 (Fed.Cir.2009) (affords deference to agency’s negotiated procurement decisions)