Netstar-1 Government Consulting, Inc. v. United States
101 Fed. Cl. 511
Fed. Cl.2011Background
- NetStar challenges ICE's award of a blanket purchase agreement to ALON for program management support to the OCIO; the BPA's value is undisclosed.
- RFQ HSCEMS-10-00015 issued June 16, 2010 to 13 vendors; non-price and price evaluation factors prioritized technical/management approach, experience, and past performance over price.
- HSAR 3052.209-72 OCI clause warned of potential conflicts and mitigation or disqualification options; bidders could certify no OCI or provide mitigation plans.
- July 6, 2010 five quotations received; ALON and NetStar claimed no actual or potential OCI; award based on best value with ALON’s lower price.
- ICE later found potential OCIs due to ALON and NetStar access to agency data (BEP, Shared Drive, PRISM); mitigation plans were submitted and reviewed in December 2010.
- January 31, 2011 CO reinstated the ALON award after accepting ALON’s mitigation plan; NetStar protested and eventual injunctive relief was issued on October 14, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the OCI identified and mitigated properly? | ALON's unequal information access created a significant OCI not properly mitigated. | CO identified and mitigated the OCI; mitigation was adequate and consistent with FAR. | OCI existed; mitigation inadequate and arbitrary |
| Did the agency's mitigation plan adequately address unequal access to information? | CO relied on flawed, late, or unverified assurances and declarations. | Mitigation plan satisfied FAR requirements and relied on ALON and OCIO assurances. | Mitigation plan deficient and unreasonable |
| Did the contracting officer identify the significant OCI early enough in the process? | CO knew of prior ALON contracts raising OCI concerns before RFQ and should have acted earlier. | Pre-award identification is not always possible; late identification can be mitigated. | Delay in identification flawed but not fatal; mitigation failed |
| Was NetStar prejudiced by the award decision? | OCI prejudice presumed where significant OCI existed; NetStar would have competed fairly absent error. | Prejudice questioned; NetStar must show specific harm from the OCI. | Prejudice established; injunction appropriate |
| Should injunctive relief be granted? | Irreparable harm from loss of opportunity; public interest favors fair competition. | No irreparable harm shown; agency could reprocure. | Injunction granted; set aside award and suspend activities |
Key Cases Cited
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed.Cir.2005) (distinguish judgment on the administrative record from summary judgment)
- Turner Constr. Co. v. United States, 94 Fed.Cl. 561 (2000s) (post-award evaluation can cure OCI taint if comprehensive)
- ARINC Eng’g Servs., LLC v. United States, 77 Fed.Cl. 196 (2007) (prejudice in OCI cases linked to unequal information access)
- Data Gen. Corp. v. Johnson, 78 F.3d 1556 (Fed.Cir.1996) (protest prejudice required for relief)
- Gulf Group, Inc. v. United States, 56 Fed.Cl. 391 (2003) (reasonableness of agency decision and needed factors)