Orion Technology, Inc. v. United States
2013 U.S. App. LEXIS 897
| Fed. Cir. | 2013Background
- Orion submitted a bid protest after being excluded from a Army acquisition for services under solicitation W9124J-11-R-0001.
- The solicitation stated offerors would be evaluated on cost/price and that incomplete data may render a proposal ineligible, though it did not mandate disqualification.
- Orion omitted cost data for five subcontractors, later attempting to submit late data that were returned unopened.
- The contracting officer rejected Orion’s proposal for missing mandatory subcontractor cost/price information, blocking price realism evaluation.
- Orion challenged the rejection in the Claims Court and on GAO review; Amendment 7 later opened discussions only for those in the competitive range, prompting Orion to submit again but be rejected.
- The Claims Court dismissed for lack of standing, and Orion appealed; the appellate court ultimately addressed standing and reasonableness of the Army’s exclusion decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing—whether Orion had standing to challenge the exclusion | Orion argues the Army’s discretionary exclusion and cost-data gaps caused a non-trivial injury. | The Army contends standard standing requires substantial chance of winning and Orion lacked this due to late, incomplete data. | Orion had standing under the substantial chance standard. |
| Reasonableness of excluding Orion’s proposal | Orion contends the Army misapplied the solicitation terms and could have pursued cure or discussions. | The Army reasonably excluded Orion for an incomplete, untimely proposal that precluded proper cost realism analysis. | The Army reasonably excluded Orion; its actions had a rational basis. |
Key Cases Cited
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (established the narrow exception to standing for pre-award challenges; non-trivial injury required)
- Rex Serv. Corp. v. United States, 448 F.3d 1305 (Fed. Cir. 2006) (standing requires actual or prospective bidder with direct economic interest)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (arbitrary and capricious review; rational basis required for agency decisions)
- Labatt Food Serv., Inc. v. United States, 577 F.3d 1375 (Fed. Cir. 2009) (standing and review standards in bid protests)
- Comint Systems Corp. v. United States, 700 F.3d 1377 (Fed. Cir. 2012) (distinguishes cases on standing where merits not reached; discretionary decisions reviewed for rationality)