Res-Care, Inc. v. United States
2013 U.S. App. LEXIS 23399
| Fed. Cir. | 2013Background
- WIA §2887(a)(2)(A) requires selecting a Job Corps Center on a competitive basis, with CICA exceptions; §2887 references the CICA framework for noncompetitive procedures.
- Blue Ridge JCC is operated by Res-Care since 1998; DOL announced a December 2011 procurement for Blue Ridge operation.
- Respondents included one large and four small firms; Res-Care, a large firm, did not submit a capabilities statement.
- A contracting officer found two small firms capable and, applying the Rule of Two, determined small-business competition would likely yield bids at fair market prices; a 100% small-business set-aside for Blue Ridge was announced for April 2013.
- Res-Care protested in the U.S. Court of Federal Claims arguing WIA does not permit small-business set-asides and sought to supplement the administrative record with extra-record materials; the Claims Court denied some supplementation.
- The Claims Court, and now this court, held that §2887(a)(2)(A) allows a set-aside so long as competition among small businesses remains viable and the Rule of Two is satisfied; the record supported the contracting officer’s analysis; the appeal is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does WIA's 'competitive basis' allow small-business set-asides? | Res-Care—no, WIA requires broader competition not limited to small businesses. | DOL—'competitive basis' permits set-asides under CICA's framework. | Yes; small-business set-asides are permissible under a competitive basis. |
| Was the contracting officer's use of the Rule of Two proper? | Res-Care—the set-aside violated the Rule of Two. | Government—two capable small businesses suffice; criteria were properly applied. | No abuse of discretion; Rule of Two satisfied. |
| May the administrative record be supplemented with extra-record materials? | Res-Care—supplementation would aid evaluation. | Record supplementation is limited and here unhelpful. | No reversible error; supplementation denied or not material to result. |
Key Cases Cited
- Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054 (Fed. Cir. 2000) (arbitrary, capricious review standard in bid protests)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (highly deferential rational basis review for set-asides)
- Tyler Construction Group v. United States, 570 F.3d 1329 (Fed. Cir. 2009) (broad discretion in procurement decisions)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (de novo-like review of administrative-record determinations)