134 Fed. Cl. 8
Fed. Cl.2017Background
- The Air Force solicited a small-business set-aside firm‑fixed price contract for full food services at Fort Sam Houston; the solicitation preserved Randolph‑Sheppard Act (RSA) priority for a State Licensing Agency (SLA) if certain criteria were met.
- Texas (the SLA, later Texas Workforce Commission, Business Enterprises of Texas) and blind vendor Roland Marshall submitted a proposal; the Air Force initially excluded Texas from the competitive range and awarded the contract to FSIG.
- Texas filed arbitration under the RSA with the Dept. of Education; an Arbitration Panel found the Air Force improperly excluded Texas and ordered the agency to include Texas in the competitive range and commence negotiations.
- The Air Force took corrective action: it revised the competitive range to include Texas, re‑evaluated proposals, issued evaluation notices, and planned to request final proposal revisions from multiple offerors.
- Texas and Marshall filed this pre‑award bid protest seeking an injunction requiring immediate award to Texas upon inclusion in the competitive range under the RSA, and to bar discussions or final proposal revisions with any other offerors.
- The Court granted the government’s motion to dismiss: it found the challenge not ripe because the Air Force’s evaluation/selection process and required consultation with the Secretary of Education were not yet complete.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness of challenge to corrective action | The Air Force’s continued discussions with other offerors and soliciting final revisions injures Texas now; the dispute over RSA priority is ready for review | No final agency action yet: evaluations, final proposal revisions, contractor selection, and Education Dept. consultation remain; claim is contingent and unripe | Dismissed for lack of ripeness — no final agency decision and no immediate, substantial hardship to Texas |
| Timing/Scope of RSA priority (does inclusion in competitive range trigger automatic award?) | Inclusion in the competitive range automatically entitles SLA to award under RSA and GAO precedent | RSA and its regulations require further evaluation and Secretary of Education consultation before priority is afforded; inclusion alone is insufficient | Court held inclusion in competitive range is not an automatic entitlement; RSA contemplates multi‑step process before priority is conferred |
| Effect of Dept. of Education Arbitration Panel order | Arbitration ordering inclusion in competitive range amounts to the consultation/approval required and thus entitles Texas to priority | The Arbitration Panel’s order addressed only exclusion from competitive range; it does not substitute for the later, statutorily required consultation/determination on cost/quality | Rejected plaintiff’s inference; Arbitration Panel’s order did not satisfy the consultation/selection steps required by 34 C.F.R. § 395.33 |
| Consistency with solicitation and procurement law (agency must follow disclosed criteria) | Air Force’s corrective action improperly allows evaluation/dealings contrary to RSA priority | Solicitation expressly set out how and when RSA priority would preempt award; agency may evaluate and conduct discussions consistent with the solicitation and RSA regs | Court emphasized agency must follow solicitation criteria; here the Air Force is following the disclosed multi‑step evaluation, so no present violation shown |
Key Cases Cited
- Abbott Labs. v. Gardner, 387 U.S. 136 (1967) (ripeness doctrine—courts avoid premature review of administrative actions)
- Commonwealth of Ky., Educ. Cabinet, Dep’t for the Blind v. United States, 62 Fed. Cl. 445 (2004) (interpreting RSA/regulations—no automatic priority merely from competitive‑range inclusion)
- Systems Application & Technologies, Inc. v. United States, 691 F.3d 1374 (Fed. Cir. 2012) (agency corrective action may be final when it creates irretrievable legal consequences)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (ripeness and reviewability principles)
- Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377 (2003) (agencies must evaluate and award based on solicitation criteria; challenge requires showing use of undisclosed criteria and prejudice)