Progressive Industries, Inc. v. United States
129 Fed. Cl. 457
| Fed. Cl. | 2016Background
- VA issued an RFP for firm‑fixed IDIQ contracts to supply medical cylinder gases across multiple VISNs; six offerors submitted proposals, including incumbent Progressive, Irish Oxygen, and Offeror A.
- The Source Selection Plan (SSP) and the RFP ranked evaluation factors (Technical Capability, Past Performance, Veteran’s Participation, Price) and described a five‑step iterative evaluation process; both documents stated price would be considered in determining the competitive range.
- After initial evaluations and discussions, the Technical Evaluation Team (TET) recommended a competitive range that included Progressive, Irish, Offeror A, and Offeror D; two offerors were eliminated for incomplete proposals.
- The agency held discussions, received revised proposals, then awarded contracts to Offeror A (multiple VISNs) and Irish (VISNs 12 and 23); Progressive protested and the VA took corrective action but reaffirmed awards.
- The administrative record showed: (1) unequal pre‑evaluation exchanges with Irish allowing it to correct missing pricing and other gaps; (2) the contracting officer granted a one‑off extension to Offeror A to submit a revised proposal; and (3) inconsistent/departing evaluation procedures from the SSP, particularly concerning when and how price and technical capability were reevaluated.
Issues
| Issue | Progressive's Argument | VA/Irish's Argument | Held |
|---|---|---|---|
| 1. Unequal pre‑evaluation communications with Irish (impermissible communications / cure of deficiencies) | Emails and pre‑evaluation exchanges allowed Irish to cure material omissions and alter pricing, violating FAR and unfairly favoring Irish | VA contends exchanges addressed ambiguities/mistakes and contracting officer properly exercised discretion to waive informalities; Irish says agency may permit corrections | Court: VA’s exchanges with Irish allowed material, untimely changes and favored Irish; this was improper and prejudicial to Progressive |
| 2. Competitive‑range determination delegation and procedure | TET/CO effectively delegated competitive‑range decisions to TET and failed to apply solicitation criteria (including price) before range determination | VA argued discretion and that price need not be evaluated until later; typographical errors in SSP explain differences | Court: Competitive‑range determination was arbitrary/capricious and inconsistent with FAR and the RFP because price was not properly considered and authority was misapplied |
| 3. One‑off extension to Offeror A for revised proposal (late submission) | Granting an extension only to Offeror A gave it an unfair competitive advantage and violated the “late is late” rule | VA contends CO had discretion to accept late revisions; cites precedent allowing discretion | Court: Extension to Offeror A without offering the same accommodation to others was unequal and impermissible |
| 4. Deviations from SSP and unclear price evaluation (failure to document rationale) | VA deviated from SSP evaluation sequence and failed to document price analysis and tradeoffs, preventing judicial review of rationality | VA contends SSP is internal and deviations do not automatically warrant protest; any differences were form over substance | Court: Although SSP is internal, unexplained departures and inconsistent descriptions of the evaluation process (and absence of a discernible price analysis) prevented the court from finding the award rational |
Key Cases Cited
- PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir.) (factors for injunctive relief in bid protests)
- E.W. Bliss Co. v. United States, 77 F.3d 445 (Fed. Cir.) (proposals failing to conform to material solicitation terms are unacceptable)
- Info. Tech. & Appls. Corp. v. United States, 316 F.3d 1312 (Fed. Cir.) (standing and prejudice standards for post‑award protest)
- Labatt Food Serv., Inc. v. United States, 577 F.3d 1375 (Fed. Cir.) (competitive advantage concerns and prejudice analysis for late submissions)
- Doty v. United States, 53 F.3d 1244 (Fed. Cir.) (egregious procedural violations constitute abuse of discretion)
- Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed. Cir.) (procurement official’s decision must have a rational basis and follow procurement procedures)
- Motor Vehicle Mfrs. Ass'n v. State Farm Ins. Co., 463 U.S. 29 (U.S.) (arbitrary and capricious/administrative law standard)