Xpo Logistics Worldwide Government Services, LLC v. United States
133 Fed. Cl. 162
| Fed. Cl. | 2017Background
- USTRANSCOM issued an IDIQ solicitation (DFTS program) for transportation coordination services; proposals were evaluated on Technical, Past Performance, and Price (TEP = Total Evaluated Price across CLIN X001). Two offerors remained in the competitive range after corrective action: Crowley (awardee) and XPO (formerly Menlo).
- After an initial award to GENCO, GAO sustained Crowley’s protest, agency reopened discussions, GENCO withdrew, then Crowley won the re-evaluation and award based on lower TEP despite an inferior past-performance rating.
- XPO protested to GAO alleging multiple errors (technical, past performance, unbalanced pricing); GAO sustained XPO’s challenge to the agency’s past-performance evaluation of Crowley (finding the record did not justify ‘‘Somewhat Relevant’’ ratings, and that the agency used an unreasonable benchmark comparing only the two-year base period), and recommended reevaluation of Crowley’s past performance.
- USTRANSCOM announced corrective action limited to reevaluating past performance in line with GAO’s recommendation. Crowley and XPO filed consolidated protests in the Court of Federal Claims challenging aspects of the corrective action and evaluation.
- The court considered cross-motions on the administrative record and the government’s motion to dismiss Crowley; it denied dismissal, found GAO’s decision rational, upheld agency corrective action, rejected XPO’s unbalanced-pricing and ‘‘TEP vs. actual cost’’ claims, and denied XPO’s other challenges on the merits or as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crowley’s challenge to agency’s corrective action is ripe/moot and whether GAO’s recommendation was irrational | Crowley: GAO irrationally reweighed contemporaneous record and imposed an unwritten dollar-value benchmark, so corrective action was unreasonable | Gov: corrective action appropriate to GAO’s sustained finding; claim not moot | Court: Crowley has standing; GAO’s decision was rational (record lacked explanation for relevance ratings and use of only base period was unreasonable); corrective action upheld |
| Whether XPO’s unbalanced-pricing claim was waived for not challenging solicitation quantity estimates pre-award | XPO: agency failed to detect material unbalanced pricing favoring Crowley; challenge timely | Gov/Crowley: XPO waived by not challenging estimates under Blue & Gold Fleet | Court: waiver rejected (plaintiff may still raise unbalanced pricing), but claim fails on merits because CO performed FAR 15.404‑1(b)(2) price comparisons, found prices fair/reasonable and no indication of unbalanced pricing |
| Whether agency unlawfully relied on TEP (rather than ‘‘likely actual cost’’) in best-value tradeoff | XPO: TEP ($7+b) bore no relation to IGCE/expected cost (~$2.2–2.7b); agency should have used actual cost | Gov: Solicitation specified TEP as the basis; agencies may use reasonable comparative price methodology for IDIQs | Court: Agency followed solicitation; using TEP was reasonable and not arbitrary; XPO waived any solicitation-content challenge |
| Whether SSA’s best-value decision relied solely on adjectival ratings and failed to meaningfully compare technical proposals | XPO: SSA used only top-level adjectivals, failed to analyze substantive merits | Gov: SSA and SSEB considered specific strengths/weaknesses beyond adjectivals | Court: Record shows detailed subfactor analyses and comparative assessments; challenge lacks merit (and past-performance claim is moot due to corrective action) |
Key Cases Cited
- Honeywell, Inc. v. United States, 870 F.2d 644 (D.C. Cir. 1989) (agency may follow Comptroller General recommendation unless GAO’s decision is irrational)
- Centech Grp. v. United States, 554 F.3d 1029 (Fed. Cir. 2009) (review of agency’s implementation of GAO corrective action focuses on rationality of GAO decision)
- Turner Constr. Co. v. United States, 645 F.3d 1377 (Fed. Cir. 2011) (court evaluates rationality of GAO’s recommendation when agency follows it)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (RCFC 52.1 review of agency procurement decisions on administrative record)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (standing in bid protests requires showing competitive prejudice/substantial chance)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (challenge to solicitation terms must be raised before proposal submission or is waived)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (review limited to whether agency provided coherent, reasonable explanation of its discretion)