109 Fed. Cl. 497
Fed. Cl.2013Background
- Red River sued in the Court of Federal Claims seeking post-award bid-protest relief for the Tinker BTS award under NETCENTS-1.
- Solicitation FA8101-12-R-0037 for BTS at Tinker was issued as a NETCENTS-1 task order, restricted to NETCENTS-1 contract holders.
- SBA NAICS code challenge by J.D. Broco occurred; SBA stayed the solicitation; Telos awarded the contract on August 20, 2012.
- Plaintiff contends NETCENTS-1 does not cover operation and maintenance of legacy systems outside a network-transition, and challenges the sole-source extension under FASA.
- Blue & Gold Fleet waiver argued: plaintiff either waived or did not have an opportunity to object prior to bid close; court to decide applicability to non-offerors.
- Court allowed plaintiff to amend complaint and held that FASA jurisdiction exists for scope challenges and that NETCENTS-1 contemplates legacy maintenance within a network-transition context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Blue & Gold Fleet waive non-offerors’ protest? | Blue & Gold Fleet should not apply to non-offerors. | Blue & Gold Fleet applies to any party with knowledge and opportunity to protest. | Waiver does not apply to plaintiff; non-offeror not bound by Blue & Gold Fleet under these facts. |
| Does FASA jurisdiction permit challenges to NETCENTS-1 extensions and scope? | Claims challenge the scope of NETCENTS-1 and its extensions; jurisdiction exists. | FASA limits protests to scope/parametric issues but may bar other challenges. | Court has jurisdiction to hear scope-related challenges under FASA. |
| Does the Solicitation increase NETCENTS-1 scope by seeking legacy O&M amid a VOIP transition? | Solicitation targets legacy O&M, outside NETCENTS-1 scope. | NETCENTS-1 contemplates enterprise-wide transition including legacy maintenance. | Solicitation is within NETCENTS-1 scope given the transition to network-centric technology. |
| Is the plaintiff entitled to injunctive relief? | Irreparable harm as incumbent; injunction should ensure competitive process. | No success on merits; equity and public interest do not favor injunction given post-award transition. | Injunctive relief denied. |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (waiver rule for patent errors in solicitations; timeliness of objections)
- COMINT Sys., Corp. v. United States, 700 F.3d 1377 (Fed. Cir. 2012) (post-brief amendment application of Blue & Gold Fleet; timely objections required)
- IDT v. United States, 81 Fed. Cl. 375 (Fed. Cl. 2008) (non-bidder protest waiver discussions; agency notice matters)
- Shamrock Foods Co. v. United States, 92 Fed. Cl. 339 (Fed. Cl. 2010) (waiver and non-bidder protest discussions; perception of notice)
- DGR Assocs., Inc. v. United States, 94 Fed. Cl. 189 (Fed. Cl. 2010) (attorneys’ fees; Blue & Gold Fleet discussion relevance)
- Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324 (Fed. Cir. 2004) (prejudice standard in bid protests)
- Infrastructure Defense Technologies, LLC v. United States, 81 Fed. Cl. 375 (Fed. Cl. 2008) (pre-solicitation notice and waiver considerations in non-bidder context)