Tikigaq Construction, LLC v. United States
16-708
| Fed. Cl. | Oct 17, 2016Background
- CBP issued an RFP (for 8(a)-setaside cost-plus-fixed-fee contract) for border fence maintenance; proposals required separate, complete Technical (Vol I) and Cost/Price (Vol II) volumes and subcontractor cost data.
- Tikigaq proposed Primus as a subcontractor; Primus submitted cost data with initial proposal but Tikigaq did not resubmit Primus’s cost/price data in its Final Proposal Revision (FPR). Primus did not separately submit cost data at FPR stage.
- CBP initially awarded to SAMES, Tikigaq protested to GAO; CBP took corrective action, obtained new SBA 8(a) determinations, and then awarded to Tikigaq. SAMES protested that award to GAO.
- CBP told GAO on June 1, 2016 it intended to take corrective action and "re-evaluate the proposals," but did not specify which alleged defects it intended to remedy or how.
- Tikigaq sued in the Court of Federal Claims challenging the proposed corrective action as unsupported by the administrative record; parties filed cross-motions for judgment on the administrative record.
- The Court found the administrative record insufficient to show the rational basis for CBP’s corrective action and remanded to CBP for clarification (stay entered); Tikigaq’s motion to supplement the record was denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CBP’s corrective action is supported by the administrative record | Tikigaq: CBP failed to identify specific defects or explain how corrective action would cure alleged errors (e.g., missing subcontractor cost data), so corrective action is arbitrary | Government: agency need not set forth formal reasons; a reasonably discernible path can suffice | Held: Administrative record lacks explanation of the specific defects to be addressed or how corrective action will remedy them; corrective action unsupported |
| Whether remand is appropriate to allow agency to explain/rectify corrective action | Tikigaq: remand appropriate to clarify whether and how CBP will address missing subcontractor cost data and other issues | Government: argued less formal explanation acceptable; did not show record sufficed | Held: Remand ordered under RCFC 52.2 for CBP to identify evaluation criteria it will address and whether/how it will treat missing subcontractor cost data |
| Whether supplementation of the administrative record is required | Tikigaq: sought to add declaration and notes to fill gaps | Government/SAMES: opposed supplementation | Held: Denied as moot because court remanded for agency clarification; supplementation unnecessary at this stage |
| Relief and case management on remand | Tikigaq: sought relief and permanent resolution | Government/SAMES: sought judgment on record | Held: Court granted-in-part Tikigaq’s motion, denied government and SAMES cross-motions, stayed case, set remand reporting schedule and requirements |
Key Cases Cited
- Banknote Corp. of Am. v. United States, 365 F.3d 1345 (Fed. Cir. 2004) (standard for reviewing procurement decisions under APA)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (agency decision must have coherent, reasonable explanation)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (presumption of regularity for agency action)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious standard requires consideration of important aspects of problem)
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (limits on supplementing administrative record)
- Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281 (U.S. 1974) (courts may uphold agency decisions of less than ideal clarity when path reasonably discernible)
- Honeywell, Inc. v. United States, 870 F.2d 644 (Fed. Cir. 1989) (deferential review: court should not substitute its judgment for agency if reasonable basis exists)