Veterans Evaluation Services, Inc. v. United States
134 Fed. Cl. 1
| Fed. Cl. | 2017Background
- VES filed a post-award bid protest challenging the VA’s awards of indefinite-delivery/indefinite-quantity medical disability examination (MDE) contracts awarded Sept. 16, 2016 and requested re-evaluation of proposals.
- The Court issued a June 23, 2017 decision denying VES’s motion for judgment on the administrative record and granting the government and intervenors’ cross-motions; VES appealed to the Federal Circuit.
- VES moved for an injunction pending appeal under RCFC 62(c) to stay performance of the MDE Contracts while its appeal proceeds.
- The VA and intervenors opposed the injunction, arguing VES’s claims were untimely/waived and that a stay would cause significant hardship and disrupt veteran services.
- The court applied the four-factor injunction/stay test (likelihood of success, irreparable harm, balance of harms, public interest) and found VES had not shown a strong likelihood of success and that the equities and public interest weighed against relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA improperly excluded option-year pricing from total proposed price | VES: RFP did not clearly exclude option-year pricing; VA should have included options in total price | Gov: RFP contained a patent ambiguity and VES waived the issue by not challenging before final proposal revisions | Court: Waived under Blue & Gold; ambiguity was patent and VES failed to timely object |
| Whether VA improperly calculated price benchmarks (inclusion of high-priced offerors) | VES: VA should have excluded outliers; inclusion skewed benchmarks and price reasonableness | Gov: Methodology was announced; VES knew the benchmark method and waived any challenge by not protesting pre-submission | Court: Waived — VES was aware of methodology prior to final revisions and did not timely object |
| Whether VA engaged in misleading discussions regarding price | VES: Discussions suggested improper motives (financial viability or disqualification) and were misleading | Gov: Record shows discussions concerned potential impermissible technical changes accompanying price reductions; no record proof of misleading intent | Court: Waived and unsupported by record; no evidence to substantiate VES’s speculation |
| Whether awards to MSLA and LHI in same district were improper (OCI/affiliation) | VES: VA failed reasonably to consider risks from affiliated entities receiving single-district awards | Gov: VA identified and investigated the merger/OCI, sought counsel, and reasonably concluded awards complied with RFP and mitigations | Court: VA reasonably addressed OCI; awards not prohibited and claim unlikely to succeed |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (failure to object to a patent solicitation error before bid close waives later protest)
- Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375 (Fed. Cir. 2000) (patent ambiguity exists where solicitation contains facially inconsistent provisions that should prompt inquiry)
- Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511 (Fed. Cir. 1990) (injunction pending appeal requires weighing likelihood of success and equities)
- Akima Intra-Data, LLC v. United States, 120 Fed. Cl. 25 (2015) (court may grant stay/injunction pending appeal where movant shows strong likelihood of success or substantial case on the merits combined with favorable equities)