National Air Cargo Group, Inc. v. United States
127 Fed. Cl. 707
Fed. Cl.2016Background
- TRANSCOM issued an RFP (IDIQ) for international multi-modal shipping, stating it "intends to award approximately four" IDIQ contracts; offers were to remain firm for 180 days.
- Seven offers were submitted; TRANSCOM initially awarded five contracts (June 11, 2015), excluding United based on a "limited confidence" past-performance rating despite United having the lowest price.
- United filed an agency-level protest; TRANSCOM took corrective action, reevaluated past performance for all offerors, and ultimately awarded a sixth IDIQ to United (Jan. 21, 2016).
- National (a five-awardee) protested both at GAO and in the Court of Federal Claims, arguing TRANSCOM improperly added United (violating the RFP’s reopening/recompetition clause and the "approximately four" limit) and that the best-value tradeoff was arbitrary.
- The court denied motions to dismiss and found jurisdiction; on the merits it reviewed the agency’s corrective-action decision under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction / standing to challenge award of additional IDIQ | National: as an awardee it suffers a non-trivial competitive injury from adding United and thus is an "interested party" | Gov/United: awardee cannot bring a bid protest or lacks an injury to sue | Court: National has standing; jurisdiction under 28 U.S.C. §1491(b)(1) exists |
| Effect of "unsuccessful offeror" letter on United's offer (firm-offer rule) | National: the June 11 letter terminated United's offer, so later award required reopening | Gov/United: offers stayed open for 180 days per solicitation; United never withdrew | Court: solicitation created a firm-offer period (180 days); United did not withdraw, so offer remained acceptabl e |
| Whether "approximately four" limited awards prohibits six awards | National: phrase limits awards and agency reversed itself; six awards violated RFP | Gov/United: "approximately" allows flexibility; agency may exercise discretion and justified six awards | Court: "approximately four" is not a strict cap; agency reasonably determined six awards satisfied the solicitation and needs |
| Best-value tradeoff re: United's limited past performance vs. low price | National: agency irrationally awarded United despite unchanged "limited confidence" rating; corrective action arbitrary | Gov/United: corrective action reevaluated best value considering task-order competition and mitigation of performance risk; tradeoff reasonable | Court: agency’s best-value decision was rational and not arbitrary or capricious (risk mitigated by task-order competition and equal weight to price/past performance) |
Key Cases Cited
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (standard for trial on administrative record and factual findings in bid protests)
- Systems Application & Techs., Inc. v. United States, 691 F.3d 1374 (Fed. Cir. 2012) (distinguishing CDA and bid-protest jurisdictional boundaries)
- Centech Grp., Inc. v. United States, 554 F.3d 1029 (Fed. Cir. 2009) (APA standard of review for procurement decisions)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (setting aside procurements lacking rational basis or violating procedures)
- Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed. Cir. 2004) (solicitation interpretation begins with plain language and must harmonize provisions)
- F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (agency changes in position are permissible if adequately explained)