Geo-Med, LLC v. United States
126 Fed. Cl. 440
| Fed. Cl. | 2016Background
- VA Solicitation VA240C-15-R-0022 sought a single requirements contract for custom sterile procedure packs covering 46 facilities in the VA Central Service Area Office (SAO-Central).
- Contracting Officer (CO) performed market research and found many small-business distributors but few small-business manufacturers; concluded unlikely to receive two or more offers from small-business manufacturers and issued an unrestricted solicitation with evaluation credit for socioeconomic status rather than an SDVOSB set-aside.
- Six firms submitted proposals: three large firms (including awardee Avid Medical) and three small businesses (Manus, Geo‑Med, and another). The agency eliminated Geo‑Med and Manus from the competitive range based on technical deficiencies and lack of demonstrated relevant experience or ability to control subcontractor performance.
- Manus pursued a GAO protest pre-award and lost on all grounds; Geo‑Med filed an agency protest which was denied. Plaintiffs then filed pre-award protests in this Court challenging set‑aside decision, alleged bundling/unduly restrictive solicitation, alleged OCI favoring an MSPV bidder, and contested exclusion from the competitive range.
- The Court held expedited briefing, denied preliminary relief, dismissed OCI and competitive‑range challenges without prejudice as unripe; after award to Avid Medical the Court found the OCI claim moot, granted government judgment, dismissed Manus with prejudice, and dismissed Geo‑Med without prejudice only as to its competitive‑range challenge (all other claims dismissed with prejudice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether procurement should have been SDVOSB set‑aside / CO abused discretion by not seeking SBA waiver of non‑manufacturer rule | CO should have set aside for SDVOSBs or sought SBA waiver because multiple SDVOSB distributors expressed interest | CO performed adequate market research, few or no qualifying small manufacturers existed, waiver discretionary, agency reasonably chose open competition with socioeconomic evaluation credit | CO did not abuse discretion; decision not to seek waiver reasonable; claim dismissed with prejudice |
| Whether solicitation improperly bundled requirements or was unduly restrictive, precluding small business award | Consolidation of multiple VISN procurements into one contract is improper bundling and unduly restricts competition favoring large firms/MSPVs | Market research showed small businesses could participate; plaintiffs represented they could perform; consolidation was justified to achieve efficiencies | No improper bundling or undue restriction; solicitation lawful |
| Whether solicitation contained unaddressed OCI favoring an MSPV bidder | An MSPV bidder had dual role giving knowledge and pricing advantage; OCI unaddressed | OCI challenge was unripe pre‑award; and award went to a different firm so no injury | OCI claim was moot after award to Avid Medical; dismissed with prejudice |
| Whether plaintiffs were improperly excluded from competitive range | Exclusion was wrongful because solicitation was flawed and biased against small businesses | Exclusions based on evaluation of technical/experience shortcomings; plaintiffs had debriefs (Manus) or not yet (Geo‑Med) | Manus’s challenge dismissed with prejudice (had pre‑award debrief); Geo‑Med’s competitive‑range challenge dismissed without prejudice (no debrief in record) |
Key Cases Cited
- Palladian Partners, Inc. v. United States, 783 F.3d 1243 (Fed. Cir.) (standard of review for bid protests under APA)
- Savantage Fin. Servs. v. United States, 595 F.3d 1282 (Fed. Cir.) (agency discretion in defining minimum needs and procurement structure is afforded deference)
- Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374 (Fed. Cir.) (standing and interested‑party requirements in bid protests)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir.) (competitive injury standard for standing)
- Che Consulting, Inc. v. United States, 125 Fed. Cl. 234 (Ct. Fed. Cl.) (elements required to show unlawful bundling)
- Tyler Constr. Grp. v. United States, 570 F.3d 1329 (Fed. Cir.) (agency market research can justify consolidation/bundling)
- Rotech Healthcare Inc. v. United States, 118 Fed. Cl. 408 (Ct. Fed. Cl.) (purpose and policy behind the non‑manufacturer rule)