Wavelink, Inc v. United States
20-749
| Fed. Cl. | Jul 1, 2021Background
- GSA conducted an "on-ramp" procurement under the OASIS SB vehicle (Pools 1, 3, and 4) to add many contractors; offerors submitted proposals (six volumes) by June 28, 2019 using the Symphony self-scoring system.
- The RFP scored Relevant Experience (4,000), Past Performance (4,000), and Systems/Certifications (2,000); cost/price was reviewed for fairness but not scored.
- The RFP cautioned that direct labor rates outside specified ranges required a “clear and convincing rationale,” warning failure to provide one would render the offeror ineligible for award.
- GSA initially excluded several offerors for failing to provide required rationale for low labor rates; those offerors protested to GAO, and GSA then issued corrective action treating rates below the range as not unfair per se and awarded contracts to multiple offerors with out-of-range low rates.
- WaveLink filed a post-award bid protest claiming (1) GSA should have allowed updates to Relevant Experience/Past Performance during the lengthy evaluation; (2) GSA conducted discussions with some offerors without allowing all to submit FPRs; and (3) GSA violated mandatory solicitation terms by awarding contracts to offerors without the required rate rationales.
- The Court held WaveLink had standing, rejected most challenges, but found GSA violated the solicitation/FAR by awarding contracts to offerors who failed to provide the required rationale for out-of-range low labor rates and that WaveLink was prejudiced in Pool 3 (not Pool 1). The Court enjoined continuing those Pool 3 awards and ordered remedial options.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GSA had to allow offerors to update Relevant Experience/Past Performance after a 10-month evaluation delay | WaveLink: the long delay rendered submitted experience stale and GSA should have sought updates or allowed FPRs | GSA: evaluation schedule and procedure were reasonable; no legal requirement to reopen or update non-past-performance volumes | Court: No error — GSA reasonably declined to seek such updates and was not required to solicit refreshed Relevant Experience absent discussions (claim denied) |
| Whether GSA conducted discussions that triggered FAR's requirement to permit FPRs to all competitive-range offerors | WaveLink: clarification exchanges with some offerors amounted to discussions and required FPRs for all | GSA: exchanges were limited clarifications, responsibility inquiries, or permitted missing-document requests — not discussions | Court: communications were clarifications/responsibility checks; no discussions that required FPRs (claim denied) |
| Whether GSA violated mandatory solicitation terms by awarding contracts to offerors who proposed direct labor rates below RFP ranges without the required ‘‘clear and convincing rationale’’ | WaveLink: RFP language was mandatory; awarding such offers violated FAR 15.305(a) and 15.206(d) and prejudiced WaveLink | GSA: it reasonably reinterpreted/implemented corrective action (and later argued differently in related litigation) to treat low rates as not unfair per se | Court: RFP language was clear and mandatory; GSA violated the solicitation and FAR by accepting noncompliant offers without amending the RFP, holding discussions, or rejecting them |
| Whether WaveLink was prejudiced (entitled to relief) and whether injunction/remedy is warranted | WaveLink: prejudiced because removing ineligible awardees (or otherwise remedying) would have put WaveLink into award range for Pool 3; seeks injunction and reevaluation | GSA: WaveLink is not next in line; any benefit is speculative; remedial options would be burdensome | Court: WaveLink showed prejudice in Pool 3 (but not Pool 1); injunction granted limited to Pool 3 with options for GSA to (a) enforce solicitation and cancel ineligible awards, (b) conduct discussions and permit FPRs, or (c) amend solicitation and proceed consistent with FAR |
Key Cases Cited
- EP Prods., Inc. v. United States, 63 Fed. Cl. 220 (Fed. Cl. 2005) (explains mandatory-solicitation provisions promote fair competition in negotiated procurements)
- Information Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir. 2003) (standing/prejudice analysis where discussions could have improved protester’s chance of award)
- Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999) (agency may not award to a bid that fails mandatory solicitation requirements; prejudice can be shown when the only competing bid was unacceptable)
- DigiFlight, Inc. v. United States, 150 Fed. Cl. 650 (Fed. Cl. 2020) (construing identical OASIS SB solicitation language and holding omission of required rationale could be fatal to eligibility)
- Centech Grp., Inc. v. United States, 554 F.3d 1029 (Fed. Cir. 2009) (proposal failing to meet RFP requests is unacceptable and cannot form basis for award)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (U.S. 2021) (government must comply with clear legal requirements; cited for principle that government must "turn square corners")