Lawrence Battelle, Inc. v. United States
117 Fed. Cl. 579
Fed. Cl.2014Background
- The Air Force issued RFP FA8721-10-R-0001 (SCS IV), a small-business set-aside under NAICS 541712, for multiple ID-IQ contracts for cost-estimating services; up to three awards were contemplated.
- Lawrence Battelle, Inc. (LBI) submitted a proposal; evaluators gave LBI an "unacceptable" technical rating based on staffing, certifications, continuity, and other deficiencies and eliminated LBI from the competitive range on January 14, 2011.
- LBI sought a GAO protest; GAO denied relief, finding the technical rating proper. The contract was awarded to Tecolote on August 10, 2011.
- LBI filed suit in the Court of Federal Claims asserting bid-protest claims plus non-protest claims (42 U.S.C. § 1983, tort/fraud/discrimination, APA, implied-in-fact contract, damages). The government moved to dismiss for lack of jurisdiction and for judgment on the administrative record; LBI cross-moved.
- The court dismissed non-bid-protest claims (§ 1983, tort, APA, implied-in-fact contract) for lack of jurisdiction and reviewed the procurement under the APA standards via the Tucker Act's bid-protest provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Court's jurisdiction over §1983, tort, APA, implied-in-fact contract claims | LBI asserted §1983, tort, APA and implied-in-fact contract claims seeking damages and equitable relief | Gov't: Court of Federal Claims lacks jurisdiction over §1983 and tort; APA and implied-in-fact contract claims are not proper here | Dismissed: §1983 and tort claims dismissed; APA claims dismissed; implied-in-fact contract claims not permitted where bid-protest review under §1491(b) applies |
| Elimination from competitive range / failure to permit correction of ENs | LBI: elimination was arbitrary and in bad faith because it was not allowed to address EN-identified deficiencies while others did | Gov't: Agency chose not to hold discussions; rules permit exclusion of technically unacceptable proposals and discretion in setting competitive range | Denied relief: Elimination was lawful and not arbitrary or capricious; solicitation permitted excluding unacceptable technical proposals before discussions |
| Past-performance evaluation and solicitation request for prime POC feedback | LBI: process violated statutes/regulations and produced irrational past-performance rating | Gov't: Process was disclosed in solicitation; LBI waived challenge by not timely objecting; any past-performance errors were non-prejudicial because LBI was ineligible for award | Denied relief: Argument waived and, in any event, not prejudicial because of LBI's unacceptable technical rating |
| NAICS code designation and DCAA audit relevance | LBI (late): wrong NAICS code/size standard and agency failed to consider DCAA audit, which would have cured technical concerns | Gov't: Challenges were untimely/waived and not properly appealed to SBA; DCAA audit relates to responsibility/cost, not technical acceptability | Denied relief: NAICS challenge barred for failure to timely appeal; DCAA audit argument waived and irrelevant to technical rating |
Key Cases Cited
- Marcum LLP v. United States, 753 F.3d 1380 (Fed. Cir.) (Court of Federal Claims is a court of limited jurisdiction)
- Moden v. United States, 404 F.3d 1335 (Fed. Cir.) (non-frivolous claim needed to survive jurisdictional dismissal)
- Martinez v. United States, 333 F.3d 1295 (Fed. Cir.) (Court lacks jurisdiction to grant relief under the APA directly)
- Res. Conservation Grp., LLC v. United States, 597 F.3d 1238 (Fed. Cir.) (bid-protest review uses APA standards via §1491(b))
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir.) (standard for judgment on the administrative record)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (U.S.) (judicial review focuses on the administrative record)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir.) (set-aside: agency action set aside only if lacking rational basis or procedure violated)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir.) (failure to timely object to solicitation terms waives later protest)
- Data Gen. Corp. v. Johnson, 78 F.3d 1556 (Fed. Cir.) (protester must show significant error and prejudice)
- SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312 (Fed. Cir.) (arguments not raised in opening brief are waived)