Newimar, S.A. v. United States
21-1897
| Fed. Cl. | May 19, 2022Background
- NAVSTA Rota (Spain) BOS solicitation for base operations support; competition between incumbent Newimar S.A. and J&J Maintenance (doing business as J&J Worldwide Services).
- Original award to J&J was protested (GAO dismissed; CFC litigation followed and the Navy took corrective action, cancelling the original award).
- Navy issued a Revised Solicitation (Amendments 0008/0010): removed Staffing Approach as an evaluated factor, shifted some licensing (pest-control/business licenses) to post-award/pre-performance, and reopened final proposal revisions.
- After re-evaluation under the Revised Solicitation, SSEB/SSAC/SSA found J&J’s price lower, Corporate Experience and Past Performance advantages favoring J&J, and J&J responsible; Navy awarded to J&J and Newimar filed this post-award protest.
- Court reviewed the administrative record under APA standards and denied Newimar’s motion, granting the government’s and intervenor’s cross-motions; injunctive relief denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Timeliness / "taint" of Revised Solicitation changes | Newimar: revisions (removal of Staffing Approach; license deadline moved post-award) were designed to favor J&J and are improper | Defs: objections were untimely (waived by failing to protest pre-award), abandoned in briefing, and unsupported by clear evidence of bad faith | Waived and meritless; changes benefitted both offerors and no clear-and-convincing proof of bad faith was shown |
| 2. Responsibility / compliance with Spanish law and ADC | Newimar: J&J lacked required Spanish registrations, tax numbers, pest-control licenses and violated ADC and Spanish labor rules, rendering it non-responsible | Defs: many requirements are post-award contract-administration (not responsibility); record shows J&J had NIF; ADC/foreign-treaty issues outside CFC jurisdiction | Most arguments rejected as untimely, non-justiciable (contract administration or treaty-based), or factually unsupported; responsibility finding upheld |
| 3. Use of undisclosed evaluation criteria | Newimar: Navy used unstated criteria (numerosity of projects, % self-performed, devaluing incumbency) which prejudiced Newimar | Defs: solicitation disclosed assessment of "depth and breadth" and preference for self-performed work; evaluators acted within discretion; no prejudice shown | Court: criteria were intrinsic to stated factors, Navy did not use undisclosed standards, and Newimar failed to prove prejudice |
| 4. Best-value tradeoff sufficiency | Newimar: Navy either did not perform a proper tradeoff or misstated its analysis; award irrational given price differences | Defs: SSA reasonably concluded J&J was superior on price and non-price factors; no tradeoff necessary where one offer is better or equal on non-price and lower on price | Navy’s best-value decision rational and documented; no arbitrary or capricious conduct |
| 5. Price reasonableness / realism | Newimar: J&J’s price was 9.64% lower than Newimar’s and 14% below IGCE — Navy should have probed realism/unreasonableness | Defs: Navy validly used permitted FAR techniques (adequate price competition and IGCE comparison); price realism not authorized by this fixed-price RFP | Price analysis reasonable under FAR; price realism analysis improper in this fixed-price procurement and was not required |
| 6. Unbalanced pricing analysis (CLIN vs. ELIN) | Newimar: Navy ignored ELIN-level anomalies and should have found J&J’s pricing materially unbalanced | Defs: Navy reasonably evaluated unbalancing at CLIN level (RW vs NRW ratios) using permissible techniques; no legal requirement to analyze ELINs | Navy’s CLIN-level unbalancing analysis was reasonable; no unbalanced pricing identified; materiality analysis not triggered |
| 7. Injunctive relief | Newimar: seeks injunction to stop award and require re-evaluation | Defs: plaintiff not likely to succeed on merits; balance of harms/public interest disfavors injunction | Because plaintiff failed on merits, injunctive relief denied |
Key Cases Cited
- Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054 (Fed. Cir. 2000) (APA review of procurement decisions)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (standards for bid-protest relief: lack of rational basis or regulatory violation)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (pre-award challenge waiver rule)
- Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234 (Fed. Cir. 2002) (presumption of agency good faith; clear-and-convincing standard for bad-faith allegations)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (RCFC 52.1 trial on the administrative record)
- Centech Grp., Inc. v. United States, 554 F.3d 1029 (Fed. Cir. 2009) (injunction factors in procurement protests)
- Serco Inc. v. United States, 81 Fed. Cl. 463 (Court of Federal Claims 2008) (price-outlier analysis in price reasonableness determinations)
- DynCorp Int’l, LLC v. United States, 10 F.4th 1300 (Fed. Cir. 2021) (agency discretion in selecting price-analysis techniques)
- IAP World Servs., Inc. v. United States, 153 Fed. Cl. 564 (Court of Federal Claims 2021) (approving CLIN-level unbalanced-pricing analysis)
- Per Aarsleff A/S v. United States, 829 F.3d 1303 (Fed. Cir. 2016) (pre-award protest obligations to challenge solicitation terms)