127 Fed. Cl. 576
Fed. Cl.2016Background
- Army issued RFP for Intelligence Technical Support Services (ITSS), using a lowest-priced, technically acceptable methodology; technical volume limited to 50 pages and past performance to 20 pages per a Page Limitation Chart.
- RFP did not specify whether tables of contents, summaries, cover pages, or reference pages count toward the page limits; provision warned excess pages would be removed and not evaluated.
- Seven offerors responded; SOSi’s technical and past-performance volumes complied with the RFP page counts; Six3’s technical volume contained 50 substantive pages plus four reference pages (total 54) and was awarded the contract as lowest-priced technically acceptable.
- During SSA review the Source Selection Authority disregarded excess pages in some proposals; contracting officer later concluded the RFP was ambiguous about counting cover/TOC/reference pages and announced corrective action: amend solicitation, reopen competition, hold discussions, reevaluate.
- SOSi protested (GAO then filed here). The court considered (1) whether SOSi had standing / whether the award challenge was moot, and (2) whether the corrective action was reasonable; motions under RCFC 12(b)(1) and 52.1 were fully briefed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge corrective action | SOSi will suffer non-trivial competitive injury: reopening forces it to re-compete for a contract it believes it had won; disclosure of award price prejudices SOSi (would have to lower price). | SOSi cannot show a non-trivial competitive injury: it was not next in line for award, and disclosure-of-price harms precedent only supports the original awardee, not unsuccessful offerors. | SOSi lacks standing; dismissal under RCFC 12(b)(1). |
| Mootness of challenge to initial award | SOSi contests award to Six3 as flawed. | Army set aside the award and announced corrective action that will address the alleged defects. | Challenge to initial award is moot. |
| Whether RFP page-limit requirement was ambiguous | SOSi: RFP is unambiguous; corrective action is unnecessary and unreasonable. | Army/Six3: RFP is ambiguous because chart punctuation and omission in instructions leave unclear whether TOC/cover/reference pages count; offerors and evaluators interpreted limits inconsistently. | RFP is ambiguous about counting TOC/cover/reference pages; ambiguity supported by record and differing offeror/agency practices. |
| Reasonableness of corrective action | SOSi: corrective action is arbitrary and capricious because no ambiguity exists. | Army/Six3: corrective action is rational, targeted to the ambiguity, and appropriate to ensure fair competition. | Corrective action is reasonable and appropriate; judgment for government and Six3; SOSi’s request for injunction denied. |
Key Cases Cited
- Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed. Cir. 2004) (standards for review in procurement protests and burden on disappointed bidder)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (procurement review principles)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (presumption of regularity in agency actions)
- Sys. Application & Technology, Inc. v. United States, 691 F.3d 1374 (Fed. Cir. 2012) (standing / prejudice in corrective-action context)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (definition of "interested party" and non-trivial competitive injury)
- Honeywell, Inc. v. United States, 870 F.2d 644 (Fed. Cir. 1989) (deferential review of agency decisions)