103 Fed. Cl. 471
Fed. Cl.2012Background
- This post-award bid protest challenges the Marine Corps Systems Command’s award of a TFWS contract to J.G.B. Enterprises based on a misrepresentation and related procurement actions.
- Solicitation M67854-11-R-5030 sought Tactical Fuel and Water Systems under a 1-year base with four option years and a $99M ceiling, using FAR Part 12 procedures and a best-value framework with past performance prioritized over technical and price.
- Intervenor was awarded the contract on July 6, 2011; Delivery Orders 0001 and 0002 followed, with performance later paused and then modified.
- GTA Containers, Inc. (plaintiff) protested, arguing the award was improper due to misrepresentation by intervenor listing a supplier ([]) in its past performance section.
- SBA size determination and corrective actions led to ongoing actions: termination/corrective actions, partial performance, and continued procurement under Delivery Order 0001 for emergency needs.
- Plaintiff sought injunctive relief; the court ultimately found a live controversy, granted injunctive relief, and ordered cancellation or modification of the disputed delivery order under the contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing and injury for protest | GTA had a direct economic interest and standing under Rex Serv. | GCSC contends mootness and lack of standing after corrective actions | GTA has standing; protest not moot due to ongoing reliance on misrepresentation evidence. |
| Mootness from corrective action | Corrective actions do not erase the injury from misrepresentation and competitive harm | Cancellation renders protest moot | Not moot; live controversy remains due to continued procurement under a reduced order. |
| Material misrepresentation by intervenor | Intervenor listed [] as a supplier to bolster past performance; misrepresentation violated FAR 52.212-2 | Representations were facially compliant; reliance not established | Intervenor’s misrepresentation is established; prejudice to GTA shown. |
| Pricing evaluation following Solicitation framework | MCSC failed to apply evaluated quantity as stated, deviating from the framework | Evaluated quantity interpretation upheld; methodology reasonable | MCSC did not follow the stated evaluation framework; prejudice shown. |
| Public interest and national security considerations | Prevention of tainted award best serves integrity of procurement and defense readiness | National defense requires expedient procurement; corrective action burdens may be outweighed | Public interest favors injunctive relief to enforce procurement integrity. |
Key Cases Cited
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (two-step APA standard; prejudice required for relief)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) ( Blue & Gold doctrine on pre-award protest timeliness and solicitation challenges)
- Labatt Food Serv., Inc. v. United States, 577 F.3d 1375 (Fed. Cir. 2009) (standing requires substantial chance of securing contract)
- Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324 (Fed. Cir. 2004) (prejudice standard for bid protests; within zone of active consideration)
- Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999) (prejudice need not be strict but-for causation; разум)