Sonoran Technology and Professional Services, LLC v. United States
17-711
Fed. Cl.Oct 17, 2017Background
- Air Force issued RFP FA6800-16-R-0001 (SDVOSB set-aside) for B-52/B-51 aircrew courseware; FCL requirement language conflicted between PWS (SECRET at proposal; government will seek TOP SECRET) and AFFARS (TOP SECRET required prior to award).
- Nine offerors submitted proposals; Sonoran initially awarded on July 22, 2016; Spectre Pursuit Group (SPG) lacked an FCL at proposal time.
- SPG protested initially at GAO (dismissed), then at the Court of Federal Claims (Nov. 28, 2016); Air Force referred SPG to SBA for responsibility determination as corrective action (Dec. 7, 2016); Court dismissed that protest as moot.
- SBA later issued a Certificate of Competency (COC) for SPG (Jan. 24, 2017). Air Force terminated Sonoran’s contract and awarded to SPG (Feb. 2, 2017). Sonoran did not intervene in SPG’s protests.
- Sonoran filed this bid protest on May 30, 2017 challenging solicitation terms, evaluation, corrective action, and reliance on SBA COC; the Court dismissed Sonoran’s claims as untimely and denied injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of challenges to solicitation terms (FCL requirement ambiguity) | Sonoran contends the Air Force violated solicitation requirements and evaluation; not a "disappointed bidder" because it was initial awardee | Government: patent ambiguity should have been challenged before close of bidding; Sonoran waived claims by waiting | Held: Counts I–III untimely; patent ambiguity existed and Sonoran waived challenges |
| Timeliness of challenge to past performance scoring (50% performance requirement) | Sonoran alleges SPG’s past-performance score irrational and inconsistent with Small Business Act 50% rule | Government: claim attacks solicitation/evaluation under statutes and must be raised pre-close of bidding | Held: Count III untimely and waived |
| Timeliness of challenge to corrective action and award (reconsideration/SBA referral/COC reliance) | Sonoran argues it lacked notice and could not timely protest corrective action | Government: corrective action equates to reopening/reevaluation; must be challenged before final award; Sonoran had notice (public filings, protests, stop-work order) and failed to intervene | Held: Counts IV–V untimely; Sonoran waived challenges to corrective action |
| Entitlement to injunctive relief | Sonoran seeks permanent injunction reinstating its award | Government: threshold timeliness bars relief; merits not reached | Held: Injunctive relief denied because Sonoran failed on timeliness (no success on merits) |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (challenges to solicitation or corrective action must be timely; waiver doctrine prevents waiting until after award)
- Per Aarsleff A/S v. United States, 829 F.3d 1303 (Fed. Cir. 2016) (definition of a patent error in a solicitation)
- Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed. Cir. 2004) (APA standard of review for procurement decisions)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (agency must provide coherent, reasonable explanation of discretionary decisions)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency must articulate rational connection between facts and choice)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (protestor must show prejudice — a substantial chance of award but for the error)
- Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999) (prejudice standard in procurement protests)
- PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir. 2004) (four-factor test for permanent injunctive relief)
- Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531 (U.S. 1987) (injunction factors cited in PGBA)