Tetra Tech, Inc. v. United States
131 Fed. Cl. 653
| Fed. Cl. | 2017Background
- EPA issued prime contract EP-C-14-014 (follow-on to EP-C-09-008) to ERG for WaterSense program support and other water-efficiency efforts; contract work assigned via work assignments under a Performance Work Statement (PWS).
- PWS divided scope into 3.1 Market & Technical Research; 3.2 Program Support; 3.3 Marketing/Communications; and 3.4 Support for Water Management and Sustainability Efforts (section 3.4 used the plural “programs” and listed examples: research, planning, tools, metrics, technology/behavior approaches).
- RFP’s technical evaluation expressly referenced sections 3.1–3.3 but did not require offerors to address 3.4; EPA told offerors addressing 3.4 was a business decision.
- EPA issued a Stormwater Work Assignment (Oct. 2016) under section 3.4 to ERG to provide technical assistance to up to five communities developing long-term stormwater/wastewater plans (meetings, technical analyses, outreach reports, toolkit beta-testing, communications).
- Tetra Tech protested, alleging the work materially departed from the prime contract scope such that full and open competition was required under CICA, and that issuing the assignment violated a voluntary stay in a related protest (No. 16-775).
- Court reviewed the administrative record and held the Stormwater Work Assignment fell within section 3.4 and therefore did not violate CICA or the voluntary stay; plaintiff’s requested permanent injunction denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stormwater Work Assignment materially departed from prime contract scope (CICA violation) | PWS centers on WaterSense/water-efficiency; “stormwater” not mentioned; 3.4 was not part of technical evaluation — assignment is an out-of-scope, cardinal change requiring competition | Section 3.4 expressly authorized support for other water management/sustainability efforts (plural) including planning, analysis and tools; assignment fits 3.4; no change to contract price/term/type | Assignment is within scope of section 3.4; no CICA violation — judgment for gov’t/ERG |
| Whether potential offerors reasonably would have anticipated stormwater work under the solicitation | Absence of explicit mention of stormwater and omission of 3.4 from evaluation shows bidders wouldn’t expect stormwater work | PWS language (3.4) and plural “programs/efforts” reasonably put offerors on notice that other water-management tasks could be ordered | Court: objective view supports that offerors could reasonably anticipate such work; assignment permissible |
| Significance of omission of 3.4 from technical evaluation | Omission indicates EPA did not expect to order 3.4 work and bidders could not foresee it | EPA expressly left addressing 3.4 to offerors’ business judgment; omission does not change whether work was within PWS scope | Court: omission not dispositive; primary inquiry is objective foreseeability from solicitation language |
| Whether issuing the assignment violated the voluntary stay in related protest (16-775) | Assignment duplicates work of the contract subject to the stay, so issuance violated the stay | Assignment was issued under a different, valid contract vehicle (prime contract); no funds from the stayed contract used; stay did not bar all possible agency actions | Court: no violation of stay; agency used an appropriate, unrestricted contract vehicle |
Key Cases Cited
- AT&T Communications v. Wiltel, 1 F.3d 1201 (Fed. Cir. 1993) (material change/cardinal change doctrine; compare modified contract to original solicitation scope)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (protester bears burden to show agency decision lacked a rational basis)
- PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir. 2004) (standard for granting injunctive relief in bid protests)
- NVS Technologies, Inc. v. United States, 370 F.3d 1153 (Fed. Cir. 2004) (interpretation preferring construction that gives meaning to all contract provisions)
- CCL, Inc. v. United States, 39 Fed. Cl. 780 (Fed. Cl. 1997) (use of modification to avoid competition violates CICA if modification materially departs from original scope)