AKIMA INTRA-DATA, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and ServiceSource, Inc., Defendant-Intervenor.
No. 14-378C
United States Court of Federal Claims.
December 23, 2014
120 Fed. Cl. 520
Firestone, Judge.
* Opinion originally filed under seal on December 19, 2014
As noted by defendant, and as addressed above, the court has jurisdiction over, and reviewed the merits of, counts 1, 2, 3, 5, 6, 7, 9, and 12. The defendant confirmed to this court that “[t]he Government acknowledges that the Court possesses jurisdiction to entertain Mr. McClellan‘s claims under
Alternatively plaintiff requests “[r]emand of case to the Army Board for Correction of Military Records (ABCMR).” Defendant argues that “Mr. McClellan fails to explain or offer any basis for his request for a remand of his claims to the ABCMR, which fully addressed and resolved his claims. Mr. McClellan‘s ‘alternative’ requests for remand and transfer should accordingly be rejected.” The court agrees with defendant. The court has ruled against plaintiff on counts 1, 2, 3, 5, 6, 7, 9, and 12. For the remaining four counts, counts 4, 8, 10, and 11, plaintiff failed to raise those claims before the ABCMR in the first instance. Plaintiff has provided no reason why plaintiff should be entitled to bring the claims before the ABCMR on remand. Plaintiff‘s request for remand is denied. Therefore, the court declines, either to transfer the case to the United States District Court for the District of Columbia or to remand the case to the ABCMR.
CONCLUSION
Defendant‘s Motion for Judgment on the Administrative Record is GRANTED. Plaintiff‘s Cross-Motion for Judgment on the Administrative Record is DENIED. Plaintiff‘s requests to transfer his case to the United States Court for the District of Columbia or to remand his case to the Army Board for Correction of Military Records are DENIED. The Clerk of the Court shall enter JUDGMENT consistent with this opinion dismissing plaintiff‘s complaint.
IT IS SO ORDERED.
Craig A. Holman, Washington, DC, for plaintiff. Dominique L. Casimir, Washington, DC, of counsel.
Douglas G. Edelschick, United States Department of Justice, Civil Division, with whom were Joyce R. Branda, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, for defendant. Dennis Lockard, Committee for Purchase from People Who are Blind or Severely Disabled, Arlington, VA, and Mason C. Alinger, National Geospatial-Intelligence Agency, Arnold, MO, of counsel.
Robert J. Symon, Washington, DC, for defendant-intervenor. William R. Purdy, Jackson, MS, and Aron C. Beezley, Washington, DC, of counsel.
Post-Award Bid Protest; Javits-Wagner-O‘Day Act,
OPINION
Firestone, Judge.
Pending before the court are the motion for judgment on the administrative record filed by plaintiff Akima Intra-Data, LLC (“AID“), ECF No. 32, and the cross-motions for judgment on the administrative record filed by defendant the United States (“the government“) and defendant-intervenor ServiceSource, Inc. (“ServiceSource“), ECF Nos. 41 & 42. This case involves the award of the National Geospatial-Intelligence Agency (“NGA“) West Base Operations Services (“BOS“) contract. After a referral from NGA, the Committee for Purchase from People Who Are Blind or Severely Disabled (“CFP“) awarded the contract to Service-
For the reasons set forth below, the court finds that the award to ServiceSource was lawful. As a result, plaintiff‘s motion for judgment on the administrative record is DENIED and the government‘s and defendant-intervenor‘s cross-motions for judgment on the administrative record are GRANTED.
I. BACKGROUND
A. The AbilityOne Program
Under to the JWOD Act, Congress created CFP as a 15-member committee appointed by the President of the United States to administer the AbilityOne Program.
Once CFP adds a service to the procurement list, only qualified AbilityOne contractors are eligible to perform the work. Id. at
Pursuant to the Act, CFP has designated two central NPAs to “facilitate the distribution, by direct allocation, subcontract, or any other means, of orders of the Federal Government for products and services on the procurement list among qualified [NPAs] for the blind or qualified [NPAs] for other severely disabled.”
B. The Procurement
Since 1999, NGA has contracted out for the performance of various services on its NGA Campus West (“NCW“), located in St. Louis, Missouri and later expanded to Arnold, Missouri. These services, grouped together in the BOS contract Performance Work Statement (“PWS“), include 11 different categories of work:
(1) Classified Waste Disposal, Recycling, Fleet Management, Material Handling, and Warehouse Management; (2) Freight Management and Mail; (3) Property Inventory, Accountability, Management, and Disposition; (4) Janitorial; (5) Physician, Clinical Psychologist, Occupational Health Nurse, Optical, and Optometric; (6) Security; (7) Snow and Ice Removal, Grounds Maintenance, Roads and Grounds, Integrated Pest Management, and Refuse Collection; (8) Facilities Equipment Operations and Maintenance; (9) Project Management and Record Drawing Maintenance; (10) Customer Support, Conference Center, and Management Support; and (11) Safety and Emergency Preparedness.
AR 3151; see also AR 3186. In order to perform these services, many contractor personnel are required to have a Top Secret/Sensitive Compartmented Information security clearance (“TS/SCI“). AR 2393, 3151, 3156.
Beginning in 1999, AID has performed the BOS contract for the St. Louis location; since 2009, AID has performed the BOS for both of NGA‘s NCW locations. AR 4269-70. The original contract was awarded to AID under the Small Business Administration‘s 8(a) program with a ten-year term. Id. That contract included a base year and four option years, followed by five years as unpriced options for later negotiation. Id. In 2002, NGA learned that AID was no longer eligible for the 8(a) program and thus it could not continue to rely on the contract to provide work to AID. Id. Nonetheless, NGA was able to use the one responsible source exception to the full and open competition requirement and AID continued to perform the contract during the 5 unpriced option years. AR 4269-70, 4298-4302.
In December 2008, NGA conducted a full and open competition to select a contractor to perform a five-year BOS contract covering NGA‘s facilities in both NCW locations. AR 4270-71. In May 2009, NGA awarded the contract to AID, which was now required to compete as a large business due to its growth in the interim. Id. The contract contained one base year and four option years running through June 30, 2014. Id. As a result of this case, NGA has extended the contract with AID, the plaintiff, through December 31, 2014. AR 7745-48.
In 2013, NGA began conducting market research in preparation for the competition
In May 2013, NGA personnel met with SourceAmerica representatives “to discuss the AbilityOne Program and how ... [AbilityOne] contractors could fulfill the total NCW [BOS] requirements.” AR 3491. During this meeting, SourceAmerica “representatives provided a detailed overview of how the program was started, what is the AbilityOne program, how [SourceAmerica] fits under the AbilityOne Program[,] and the process for awarding a contract under the” program. Id. Later that month, SourceAmerica representatives met NGA personnel “for a site visit of the St. Louis and Arnold facilities and discussions/questions,” including “a tour of the ... main areas that are part of the BOS services.” Id. at 3491-92. “The following day, discussions were held to address [NGA‘s] questions regarding ... AbilityOne contractor capabilities” in providing “Total Facilities Management” services. Id.
Following these meetings and discussions, NGA‘s contracting officer (“CO“) recommended in June 2013 that NGA “pursue AbilityOne as a potential source of services for the ... [NCW] BOS requirement.” AR 3492. Accordingly, SourceAmerica issued a sources sought notice to its pool of AbilityOne NPAs and solicited technical proposals for the NCW BOS contract. AR 5286-92. SourceAmerica received technical proposals from two interested nonprofit agencies, PRIDE Industries, AR 4864-5036, and ServiceSource, AR 5037-5257.
In June, both NGA and SourceAmerica independently evaluated the submitted proposals. On June 27, 2013, NGA eliminated PRIDE Industries from competition after determining that it did not address the “full scope of NGA‘s requirements.” AR 5401-02. Regarding ServiceSource, NGA found that it (1) “[c]urrently holds a Top Secret (TS) Facility Clearance;” (2) “[e]xhibit[ed] [a] clear understanding of contract requirements and magnitude;” (3) “[d]emonstrated technical expertise and experience in Total Facilities Management (TFM);” (4) “addressed ... how the contractor will specifically satisfy NGA requirements” for “[e]ach PWS Annex ... in detail;” (5) has TFM experience “serving as BOS Prime Contractor at the [Department of Defense] Mark Center [Headquarters Complex, in Alexandria, Virginia,] which is comparable in size and scope [to that] of the NGA requirements;” and (6) presented a “[s]ound plan for recruiting, hiring, and retaining personnel with TS/SCI clearances.” Id. Also on June 27, SourceAmerica evaluated the submitted proposals and recommended ServiceSource as a contractor to NGA. AR 1218-67.
Through July and August 2013, NGA conducted on-site technical discussions with ServiceSource and its proposed subcontractors regarding the PWS for the NCW BOS contract. AR 5261-62, 5363-64. In September 2013, after multiple rounds of internal briefings to NGA officials involved in the procurement decision-making process, the NGA Deputy Director authorized the CO to pursue an acquisition strategy of proposing that CFP add the BOS to the procurement list. AR 4445, 4268-80. In October 2013, NGA posted a notice on FedBizOpps announcing the agency‘s intent to propose that the CFP add the BOS to the AbilityOne procurement list. AR 4317.
On October 16, 2013, NGA issued a formal request for proposal to ServiceSource for the BOS. AR 4746-4863. On November 12, 2013, ServiceSource submitted its technical and price proposals to NGA. AR 5853-6619. During the course of negotiations in November and December, ServiceSource submitted additional price proposals. AR 6814-7533. On December 10, 2013, NGA and ServiceSource reached a tentative agreement on the total, five-year price of the BOS contract: $71 million for the fixed-price service components of the contract. AR 7536-42. After
Under the proposal, ServiceSource would perform eight of the 11 categories of services listed in the PWS. AR 5937. Among these services, ServiceSource identified 56 positions as suitable for performance by PWSD, including accounting clerks, service order dispatchers, and visitor control specialists. AR 983. ServiceSource also described types of severe disabilities that an individual might possess and still be capable of successfully performing a particular job function. AR 983-86. For example, ServiceSource described how a service order dispatcher position could be effectively performed by a PWSD with paralysis of the sciatic nerve in both legs such that the individual was unable to work for extended periods of time during the day. AR 985.
For work at the prime contract level, ServiceSource proposed to perform 60 percent—approximately 34 positions—of the direct labor using PWSD, and proposed to reach that level through an 18-month phase-in period, partly to account for potential delays in the security clearance process. AR 191. By identifying several positions that did not require security clearances and were suitable for performance by PWSD, such as grounds maintenance, ServiceSource committed to begin performance with a 30 percent direct labor ratio. AR 191. ServiceSource also proposed to rely on escorts while a new hire‘s security investigation was ongoing, consistent with NGA‘s historical practice. AR 2568.
For the remaining three categories of services, ServiceSource proposed to subcontract the work to two subcontractors. For the janitorial services, ServiceSource proposed CW Resources (“CWR“), another NPA, as the subcontractor. AR 1382. As with ServiceSource, CWR proposed a 60% direct labor ratio with an 18-month phase-in period. AR 1386, 2252. For the physical and occupational health nurse services, ServiceSource proposed STGi International, a provider of occupational health services, as the subcontractor. AR 5937. For the facilities equipment operations and maintenance services, ServiceSource proposed Exelis, a contractor with expertise in operations and maintenance, as the subcontractor. Id. These two subcontractors did not propose to use PWSD.
Shortly after reaching the tentative agreement on price with NGA, SourceAmerica submitted to CFP the proposal to add the NGA‘s BOS to the AbilityOne procurement list, including ServiceSource‘s proposed phase-in plans for hiring PWSD. AR 171 et seq., 2232-53. SourceAmerica‘s proposal on behalf of ServiceSource attached letters of support from various organizations in the St. Louis area that promote employment opportunities for wounded warriors and other persons with disabilities, including the severely disabled. AR 2613-20. ServiceSource also submitted its own detailed, 248-page technical proposal explaining how it planned to perform the services. AR 730-977.
In February 2014, ServiceSource responded to questions from CFP about the suitability of adding NGA‘s BOS to the procurement list. AR 3260-72, 3274-81. In March 2014, CFP held a hearing to allow interested parties to make presentations regarding the proposed addition of the BOS contract to the procurement list. AR 333784. AID, ServiceSource, and NGA each made presentations to CFP about the proposed addition. AR 3337-84, 7657. Later in March, CFP members and staff toured the Department of Defense Mark Center in Alexandria, Virginia (“Mark Center“), which was identified as a facility where ServiceSource employs PWSD to perform services similar to those performed under the BOS contract. AR 3303. On April 1, 2014, CFP members and staff conducted a site visit at the NCW NGA facility to get a first-hand understanding of those facilities and to see how the work compared to that performed at the Mark Center for purposes of determining whether there were barriers to employing PWSD. AR 3303-09.
After this work was completed, the CFP prepared various assessments to assist CFP members regarding their vote to add or not add the BOS contract to the AbilityOne procurement list. These assessments included: (1) a review of NGA‘s work requirements,
Voting by the CFP members began on April 3, 2014, and closed on April 14, 2014. AR 3409; AR 7706. The vote count revealed that the 15 CFP members had unanimously agreed that NGA‘s BOS were suitable for addition to the AbilityOne procurement list and signed memoranda documenting their findings. AR 3413-26, 343346. On April 21, 2014, CFP published a notice in the Federal Register adding the BOS PWS to the AbilityOne procurement list, effective May 20, 2014. AR 7551; Procurement List: Additions, 79 Fed. Reg. 22,103 (April 21, 2014).
To begin the transition to the new contractor, ServiceSource, NGA executed an initial 90-day contract modification to extend AID‘s incumbent contract through September 30, 2014. AR 7692. After this lawsuit was filed in May 2014, NGA rescinded the 90-day modification, see AR 7656, and instead executed a six-month extension of AID‘s current BOS contract through December 31, 2014. AR 7745. CFP also suspended the addition of services to the procurement list until November 20, 2014. Procurement List: Additions and Deletions, 79 Fed. Reg. 28,489 (May 16, 2014) (suspending effective date until Nov. 20, 2014).
On June 9, 2014, the government sought a remand to CFP to consider certain issues identified in the litigation. On June 10, 2014, the court granted the government‘s motion. On remand, CFP sought additional information and responses to questions from ServiceSource with the goal of verifying ServiceSource‘s eligibility within the AbilityOne program. To accomplish this, CFP sent a letter to ServiceSource with 21 separate questions and requests on June 17, 2014. AR 8170.7 On June 20, 2014, ServiceSource responded to the inquiry and provided additional responses on July 3, 2014 and July 9, 2014.8 CWR, one of ServiceSource‘s subcontractors that is also a NPA, provided additional information to ServiceSource on July 2, 2014 and July 3, 2014, which was included in ServiceSource‘s response to CFP. On July 7, 2014, the Executive Director of the CFP submitted the responses to the voting members, AR 8608, who unanimously voted to affirm their prior decision to add the BOS to the AbilityOne procurement list. AR 8635.
Briefing on the cross-motions for judgment on the administrative record, including supplemented materials submitted to the CFP on remand, was completed on October 30, 2014 and was followed by an oral argument on November 13, 2014.
The standard of review in bid protest cases is well-established. The court will uphold an award decision unless it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). To prevail, the protester must demonstrate that either (1) the agency‘s decision was irrational, id. at 1351, or (2) the agency violated a regulation or procedure in a manner that significantly prejudiced the protester, Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009). Where a protester seeks to demonstrate that the award decision was irrational, it must demonstrate that the agency‘s exercise of discretion lacked any “coherent and reasonable explanation.” Banknote, 365 F.3d at 1351. This standard is “highly deferential,” Weeks Marine, 575 F.3d at 1368-69, and a plaintiff “bears a heavy burden of showing that the award decision had no rational basis,” Banknote, 365 F.3d at 1351. Where a rational basis exists, the court shall not substitute its judgment for that of the agency, “even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989).
Where, as here, a question of an agency‘s interpretation of a Federal statute is also at issue, the court will apply a two-step analysis. First, the court will determine “whether Congress has directly spoken to the precise question at issue.” Corus Staal BV v. United States, 395 F.3d 1343, 1346 (Fed. Cir. 2005) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). If the court finds, based on the plain language of the statute, that “the intent of Congress is clear, that is the end of the matter.” Id. However, if the court finds that the statute is silent or ambiguous with respect to the specific issue, the court will proceed to the second step: determining “whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843. In determining whether the agency‘s interpretation is permissible, the court‘s “duty is not to weigh the wisdom of, or to resolve any struggle between, competing views of the public interest, but rather to respect legitimate policy choices made by the agency in interpreting and applying the statute.” Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 665 (Fed. Cir. 1992). The agency‘s “interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is ambiguous.” United States v. Eurodif S.A., 555 U.S. 305, 316 (2009); accord Timken Co. v. United States, 354 F.3d 1334, 1342 (Fed. Cir. 2004) (“[a]ny reasonable construction of the statute is a permissible construction“).
III. DISCUSSION
As discussed above, plaintiff contends that both CFP and NGA erred in deciding to add the BOS for NGA‘s NCW to the AbilityOne procurement list and in selecting ServiceSource to perform the work. In response, the government and intervenor argue that CFP‘s decision was lawful and rational and thus must be affirmed. The court will consider each of plaintiff‘s arguments in turn.
A. The Direct Labor Ratio for Determining the Qualification of an AbilityOne Contractor is Lawfully Calculated at the Agency Level.
The chief legal argument in this case concerns whether CFP erred when it decided that ServiceSource was “qualified” for AbilityOne work according to the definition of a NPA set forth in the JWOD Act, which requires an NPA to maintain a direct labor ratio in which PWSD perform 75% of the direct labor during a given fiscal year. Specifically, plaintiff argues that CFP is required to calculate this 75% requirement using only the specific type of service that is listed on the procurement list.9 Plaintiff argues that
As noted above, under the JWOD Act, a “qualified nonprofit agency” for PWSD is defined, in relevant part, as an agency
that in the production of products and in the provision of services (whether or not the products or services are procured under this chapter) during the fiscal year employs blind or other severely disabled individuals for at least 75 percent of the hours of direct labor required for the production or provision of the products or services.
In response, the government and defendant-intervenor argue that the plain language of the statute requires CFP to calculate the 75% labor ratio based on all of the NPA‘s work at the agency-level. Specifically, the government and intervenor contend that the parenthetical in
The court agrees with the government and intervenor‘s reading of
Having determined that the statute is unambiguous, the court need proceed no further. Nevertheless, for the sake of completeness, the court shall consider plaintiff‘s additional arguments regarding the 75% ratio. The court finds from its review of the legislative history of the JWOD Act that this history supports the government‘s reading of the Act. Plaintiff argues that the JWOD Act was amended in 1971 and 1974 to correct CFP‘s regulations, which authorized the calculation of direct labor across all of the nonprofit agency‘s work, and to instead require CFP to apply the ratio to each service provided. Plaintiff argues that Congress was specifically responding to the decision in Ballerina Pen Co. v. Kunzig, 433 F.2d 1204 (D.C. Cir. 1970), which dealt with a contract that provided only a small percentage of direct labor by PWSD. Specifically, plaintiff argues that, while Congress adopted much of the language from the CFP‘s 1969 regulations allowing for an agency-wide ratio calculation in the 1971 amendment to the statute, it specifically rejected CFP‘s ratio formulation and purposefully omitted the phrase “all articles” in order to limit the calculation to a per-product or per-service basis. In support, plaintiff relies on testimony by John F. Nagle, an officer for the National Federation of the Blind, who argued that the Act should be amended to require a per-product or per-service calculation, to show that Congress was concerned about the potential misuse of the AbilityOne program to benefit those without disabilities. Regarding the 1974 amendment, plaintiff argues that specific statements in the House and Senate reports reflect Congress‘s intent to impose a per-service requirement in calculating the ratio, although the statutory language at issue in this case was not amended in that year.
In response, the government and intervenor argue that plaintiff has misread the import of the 1971 amendments to the JWOD. According to them, Congress amended the Act in 1971 in order to affirm Congressional support for the 75% agency-wide calculation after questions about statutory authorization for CFP‘s interpretation were raised in Ballerina Pen. They argue that a review of the 1971 amendments demonstrates that the amended language is nearly identical to the 1969 CFP regulations, which, in turn, shows that Congress intended to maintain the agency-level calculation. The government and intervenor also argue that the testimony of one private citizen does not alter this showing of
As stated above, the court agrees with the government and intervenor‘s reading of the legislative history. While the language adopted by Congress in 1971 with regard to the 75% ratio is not identical to CFP‘s 1969 regulations, the changes made to CFP‘s language by Congress in the relevant provision did not change the substantive meaning of CFP‘s regulation and its use of an agency-wide approach. The 1969 regulations stated with regard to qualified nonprofit agencies:
which employs blind persons to an extent constituting not less than 75 percent of the total hours of employment during the fiscal year, of all personnel engaged in the direct labor of manufacturing, assembling, or handling of all commodities by the agency for the blind (hereinafter referred to as “workshop“) whether for this program or otherwise.
which in the production of commodities and in the provision of services (whether or not the commodities or services are procured under this Act) during the fiscal year employs blind individuals for not less than 75 per centum of the man-hours of direct labor required for the production or provision of the commodities or services.
Regarding the specific effect of Ballerina Pen on Congress‘s action, the court is not persuaded by plaintiff‘s argument. First, while the court in that case stated that “[t]he sole question before us today is whether appellants have standing to challenge the actions of the Committee and the General Services Administration,” it did go on to discuss other elements of the case. Ballerina Pen, 433 F.2d at 1206. In these comments, the court did not criticize CFP‘s regulations. The court noted that the direct labor requirement “does not mean, and was not intended to mean, that blind persons must perform 75% [o]f the direct labor on each and every particular product produced by the workshops” and went on to add that “neither the [JWOD] Act nor the regulations specify exactly what percentage of the contract must represent blind labor.” Id. at 1212. While the court noted that it had been alleged that only 14% of the labor for producing the pens at issue was done by blind labor, it did not offer an opinion on whether such a ratio would violate the JWOD Act. See id.
Further, nothing in the 1974 JWOD amendments alters the court‘s conclusion that Congress did not intend to change CFP‘s approach to the 75% requirement. In 1974, Congress made several additional amendments to the JWOD Act. While most of these amendments were minor and unrelated to the issue in this case, Congress
The court has also considered and rejects plaintiff‘s contention that its reading of the Act should be adopted as the reading most consistent with CFP‘s historic application of the 75% ratio. Plaintiff argues that, following the 1971 amendments and until recently, CFP had demanded that the 75% ratio be applied to each individual AbilityOne project. In support, plaintiff contrasts the June 29, 2007 Committee Staff Nonprofit Agency Review Manual (“Manual“) with later statements of Executive Committee member Lou Bartalot (“Mr. Bartalot“). With regard to an agency‘s overall ratio, the CFP Manual states that “[i]t is always important to emphasize the imperative of meeting the 75% direct labor ratio, and that it applies to the total work being done by the nonprofit agency.” AR 8419. With regard to AbilityOne projects themselves, the Manual states the “[CFP] policy directs that at least 75% of the direct labor hours performed on the aggregate of AbilityOne work should be done by people who are blind or severely disabled. However, the ratio on individual AbilityOne projects must be no lower than 60%.... This policy is not as inflexible as the 75% overall direct labor ratio requirement.” Id.14 Plaintiff contrasts this with statements made during a CFP meeting on April 24, 2012. First, plaintiff refers to the following exchange:
Tina Ballard: What I was asking is on the projects are we required to have 75% of the people have significant disabilities and I understood the answer to be no.
Jim Omvig: That‘s right.
Tina Ballard: So, if he does not have to have 75% on the project, then on that project can he do the jobs on the range without hiring any people with significant disabilities and maintain his overall 75% ratio.
Lou Bartalot: Well!
Jim Omvig: So, we understood right.
Lou Bartalot: The answer is technically yes, but we don‘t require and we don‘t allow anybody to have a project added to the Procurement List that isn‘t going to provide jobs to people who are blind or severely disabled.
Tina Ballard: But, technically the answer is yes. We still drive them to accomplish the mission of the Program on every project, is the answer.
Lou Bartalot: Well, I disagree the answer is technically yes....
Tina Ballard: You just said it was.
AR 2581-82.
Lou Bartalot: No, if you simply read the regs, yes. But, we don‘t allow anybody to do that. So technically, they can‘t do it because we wouldn‘t allow them to do it.
AR 2530-31. Second, plaintiff refers to Mr. Bartalot‘s statement that
I think in part yes, I mean we have a history, I did look. At least back as far as 1982, I can find records where [CFP] had a policy that you needed a phase-in plan if you started at less than 50%, and back in 1982 the assumption was that every project would get to 75%. So, even back then we were allowing projects that started below that 50%.
AR 2532. Plaintiff argues that these materials, read together, demonstrate both that CFP has historically required that 75% of direct labor for each AbilityOne project be performed by PWSD and that it has now changed its interpretation to reflect the agency-wide level approach it used in this case.
In response, the government argues that CFP has consistently applied the 75% requirement for determining whether an agency is qualified. The government notes that a review of CFP guidance demonstrates that Congress has set a strict 75% agency-level requirement for determining whether an agency is “qualified,” and CFP has set an aspirational 75% per-service project objective, with a 60% regulatory requirement. The government contends that, as the statute does not set or forbid establishing a labor ratio for services listed on the AbilityOne list, CFP is free to set and enforce its own requirement, presumably by removing a service from the procurement list if the nonprofit agency fails to achieve the desired number of hours for PWSD following a phase-in period.
The court agrees with the government and finds no inconsistency in CFP‘s policies over the relevant period. CFP has always required that agencies meet a 75% ratio at the agency level to be “qualified.” It is clear to the court that the statements by Mr. Bartalot relied on by plaintiff do not address the 75% “qualification” requirement for nonprofit agencies, but rather the suitability requirement of providing employment for PWSD. The second comment addresses the history of CFP‘s phase-in procedures, which at best only indirectly affect a nonprofit‘s eligibility as a qualified nonprofit based on the agency‘s agency-level ratio. The first comment addresses the hypothetical possibility that an agency could be awarded an AbilityOne work while proposing to hire no PWSD, so long as it did not cause the NPA‘s agency-level ratio to fall below 75%. A hypothetical concern does not allow the court to turn the “qualification” requirement for any individual NPA into a substantive requirement for each individual AbilityOne project. Indeed, Mr. Bartalot acknowledged that CFP would not make such an award to a NPA that did not intend to hire any PWSD because the project would fail to provide potential employment to PWSD and therefore would not be “suitable” for addition to the procurement list under other regulatory requirements. This is consistent with the court‘s understanding of the interplay between the various elements of the regulatory suitability requirements, and is in accordance with the court‘s interpretation of the statutory eligibility or qualification requirements for NPAs seeking work under the AbilityOne program.
Next, the court rejects plaintiff‘s contention that its reading of the statutory 75% requirement as applying on an agency-wide basis is inconsistent with all other courts to consider this issue. Plaintiff argues that the United States Court of Appeals for the District of Columbia rejected CFP‘s use of an agency-level approach to meeting the 75% ratio in McGregor Printing Corp. v. Kemp, 20 F.3d 1188 (D.C. Cir. 1994). According to plaintiff, the court in that case was dismissive of the ratio argument, finding that CFP‘s own regulation focused on the generation of employment opportunities for each product added to the procurement list. Plaintiff also cited HLI Lordship Indus., Inc. v. Comm. For Purchase from the Blind & Other Severely Handicapped, 791 F.2d 1136 (4th Cir. 1986), arguing that it demonstrated a similar rejection of CFP‘s approach here. In response, the government argues that neither court actually addressed the ratio calculation, but dealt instead with other suitability issues. As a result, the government argues
The court has reviewed the cases identified by plaintiff and agrees with the government that none have addressed the question of whether CFP may use an agency-level calculation to determine eligibility. In McGregor, it is clear that the court was addressing the related—but distinct—questions of whether the nonprofit agency had the capability to produce the product in question and whether adding the product to the procurement list would create employment opportunities for PWSD. McGregor, 20 F.3d at 1195. The court found that CFP‘s suitability analysis in that case was lacking because “[t]here is nothing in the record to support [CFP‘s] apparent conclusion that blind people could do the work ... described” and that CFP “never analyzed the ... production process or the experience of [the NPA] in producing similar products.” Id. The phrase “focuses on the employment opportunities” in the decision makes it clear that the parties were not disagreeing over whether the subject NPA was eligible or “qualified” to perform the work—instead, the focus of the court was on other prongs of the suitability analysis involved in adding the product to the procurement list. Id. As a result, the court finds plaintiff‘s reliance on McGregor regarding CFP‘s ratio calculation to be misplaced.
Similarly, in HLI Lordship, the court did not reach the question of the direct labor ratio calculation, but rather overturned CFP‘s addition to the procurement list based on CFP‘s failure to provide a sufficient explanation of its reasoning. HLI Lordship, 791 F.2d at 1141. While noting that CFP was not required to provide an exhaustive explanation, the court found that CFP provided virtually no explanation for its decision. Id. (quoting State of S.C. ex rel. Tindal v. Block, 717 F.2d 874, 886 (4th Cir. 1983)). There is no dispute in this case that CFP documented its decision and provided specific reasoning.
Finally, the court also rejects plaintiff‘s policy argument that without imposing a 75% ratio for each AbilityOne service listed, the AbilityOne program can be used as a subterfuge for keeping contracts out of the competitive process and providing work to persons without disabilities. According to plaintiff, because services listed on the AbilityOne procurement list must be performed by a NPA set by CFP and will not be competitively bid, federal agencies may turn to the AbilityOne program knowing that much of the work can be performed by persons without PWSD through manipulation of the direct labor ratio and subcontracting. Plaintiff argues that Congress has identified these policy issues as a problem and that the statute must be interpreted to make sure that the purposes of the AbilityOne program—namely, to benefit the blind and PWSD—are being met.
The court agrees that the plaintiff has identified legitimate policy concerns.15 However, contrary to plaintiff‘s assertions, the court finds that these policy concerns do not compel plaintiff‘s reading of the statute, but rather raise concerns that may be addressed by Congress in the future. Moreover, as the government argues, these policy concerns are effectively addressed in the Act and by CFP in other ways. First, CFP is required to perform periodic compliance checks of the nonprofits to ensure that they are meeting the ratio and other statutory requirements,
In sum, for all of the above-stated reasons, the court finds that CFP‘s reliance on all of ServiceSource‘s agency-wide work to find that they were “qualified” and thus eligible to participate in the AbilityOne program was consistent with the statute and was not in violation of the law or any CFP regulation.16
B. CFP Rationally Determined That the Contract Is Suitable for Addition to the Procurement List.
Plaintiff next challenges CFP‘s suitability determination, which found that the BOS could be added to the procurement list: Under the committee‘s regulations,
For a commodity or service to be suitable for addition to the Procurement List, each of the following criteria must be satisfied:
(1) Employment potential. The proposed addition must demonstrate a potential to generate employment for persons who are blind or have other severe disabilities.
(2) Nonprofit agency qualifications. The nonprofit agency (or agencies) proposing to furnish the item must qualify as a nonprofit agency serving persons who are blind or have other severe disabilities, as set forth in part 51-4 of this chapter.
(3) Capability. The nonprofit agency (or agencies) desiring to furnish a commodity or service under the JWOD Program must satisfy the Committee as to the extent of the labor operations to be performed and that it will have the capability to meet Government quality standards and delivery schedules by the time it assumes responsibility for supplying the Government.
(4) Level of impact on the current contractor for the commodity or service.
i. In deciding whether or not a proposed addition to the Procurement List is likely to have a severe adverse impact on the current contractor for the specific commodity or service, the Committee gives particular attention to:
A. The possible impact on the contractor‘s total sales, including the sales of affiliated companies and parent corporations. In addition, the Committee considers the effects of previous Committee actions.
B. Whether that contractor has been a continuous supplier to the Government of the specific commodity or service proposed for addition and is, therefore, more dependent on the income from such sales to the Government.
ii. If there is not a current contract for the commodity or service being proposed for addition to the Procurement List, the Committee may consider the most recent contractor to furnish the item to the Government as the current contractor for the purpose of determining the level of impact.
i. CFP Rationally Found that the BOS Contract Had the Potential to Generate Employment for PWSD.
First, plaintiff argues that the record does not support a determination that adding the BOS to the procurement list will generate additional employment for PWSD. According to plaintiff, the record does not identify any qualified and unemployed PWSD with a TS/SCI clearance or the ability to obtain one living in the vicinity of the NCW. Further, plaintiff argues that the extended phase-in period is contrary to law. Plaintiff relies on Systems Application & Technology, Inc. v. United States, 107 Fed. Cl. 795 (2012), for the proposition that the burden is on the NPA to demonstrate that there are sufficient jobs that may be performed by PWSD, and that a promise to reach 60% PWSD labor within three years is not sufficient to satisfy the regulatory standard. Relying on the total numbers of contract positions, AID argues that ServiceSource will only be able to fill one-third of the contract positions with PWSD. Of those positions, plaintiff argues that the potential workers discussed in the proposal do not all fit the statutory definition of a PWSD. Additionally, plaintiff argues that CFP lacked sufficient information to determine that there were sufficient PWSD in the St. Louis area, that PWSD could perform the work at issue, and that PWSD could obtain the TS/SCI clearance required to perform some of the positions.
In response, the government argues that CFP was not required to find that employment was guaranteed for PWSD, but rather merely must find that there was a demonstrated potential to generate employment. According to the government, CFP rationally determined that such a potential existed and supported this finding with record evidence. The government notes that CFP found that the proposed contract would provide employment for between 47 and 51 PWSD, that ServiceSource has relevant experience in hiring PWSD, and that ServiceSource has a hiring plan well-suited to this project. The government argues that CFP found that ServiceSource has created a team of human resources specialists to assist in staffing its contract locations, and that ServiceSource‘s track record demonstrates that ServiceSource has had success using this approach in the past under previous contracts. The government further contends that CFP found that ServiceSource‘s hiring plan identified a variety of state and local vocational rehabilitation agencies, other NPAs, and veteran organizations with which to create a referral network. Regarding the allegation that only one-third of the positions will be filled with PWSD, the government argues that plaintiff‘s argument conflates the total number of contract positions—which is not part of any calculation—with the total number of direct labor hours that will be performed—which is used to determine the ratio discussed above. Regarding the phase-in plan, the government argues that CFP policy authorizes phase-in plans, as well as the subcontracting of work to other NPAs, and that CFP found that the phase-in plan would not cause ServiceSource to fall below the 75% direct labor requirement for the fiscal year. Regarding security clearances, the government argues that CFP found that physical disabilities are not considered when obtaining TS/SCI clearance and that mental disabilities are not a bar to obtaining such a clearance. Additionally, the government argues that services similar to the BOS have been performed under the AbilityOne program before, including multiple ServiceSource contracts. Finally, the government argues that plaintiff‘s reliance on Systems Application is misplaced, because Systems Application is factually distinguishable from the present case.
The court finds that CFP‘s determination regarding the potential to generate employment for PWSD was rational and therefore must be upheld. The regulations governing the addition of services to the procurement list state that “[t]he proposed addition must demonstrate a potential to generate employment for persons who are blind or have other severe disabilities.”
Further, it is clear that CFP appropriately differentiated between the total positions created for PWSD and the direct labor hours that would be performed by PWSD. The contract identifies a total staff of 153.66, of which ServiceSource has identified 56 positions that may be performed by PWSD. Plaintiff argues that, using these figures, it is impossible for ServiceSource to reach the 75% statutory requirement even under the CFP‘s reading of the Act.17
The government argues that plaintiff is conflating the total staff with the total hours of direct labor. According to the government, direct labor hours are taken into account for the eligibility calculation, while the number of positions is considered as part of the employment potential determination and the latter does not involve the 75% statutory threshold. The court agrees with the government that the potential employment determination does not involve the 75% statutory requirement. CFP has wide discretion under the regulations to determine whether the work will provide potential employment for PWSD. See
Regarding the availability of PWSD in the St. Louis area specifically, CFP rationally found that “information submitted by ServiceSource ... demonstrates the demographic data and sufficient numbers of potentially qualifying individuals in the St. Louis and Arnold, MO areas.” AR 2611-12, 2654-67, 3213. This, coupled with ServiceSource‘s plan to work with organizations now supporting PWSD in the St. Louis area was sufficient to support the CFP‘s finding that the BOS contract had the potential to generate employment for PWSD. Further, the court finds that CFP rationally found that it was possible for PWSD to obtain the required clearances for work on the BOS contract. ServiceSource‘s demonstrated record of obtaining clearances for PWSD and staffing contracts requiring such clearances was well-supported. The record showed that ServiceSource had successfully processed 147 out of 150 security clearances for work on previous contracts, including 21 top secret clearances. AR 2610-11. The CFP therefore reasonably concluded that the need for security clearances to work at the St. Louis facility would not be a barrier to finding potential employment for PWSD.
In this case, in contrast, the services will be performed during regular business hours19 and the location is accessible by public transportation. Further, CFP found that ServiceSource has performed and is currently performing similar work at other locations, AR 3303-09, and has described in detail how the particular direct labor positions could be performed by PWSD, AR 983-86. Finally, NGA has not expressed reservations about the ability of ServiceSource to perform the work, as the agency did in Systems Applications. Therefore, the court finds that Systems Application is distinguishable from the present case. For all of these reasons, the court finds that the CFP‘s conclusion that there is the “potential” to generate work for PWSD is rationally supported.
ii. CFP Rationally Determined that ServiceSource Is Capable of Performing the BOS Contract.
Second, plaintiff argues that the record does not support CFP‘s determination that ServiceSource was capable of performing the work required by the contract. Plaintiff argues that ServiceSource lacks this capability for three reasons: (1) that it does not have a ready workforce and plans to hire the incumbent‘s workforce, (2) that it plans to subcontract work for which it lacks expertise, and (3) that it cannot be ready to perform at the end of the three-month transition period provided for under the contract. Additionally, plaintiff challenges CFP‘s determination CFP has had prior experience that is similar to the contract at issue here. Relying on these factors, plaintiff contends that CFP should have found that ServiceSource lacked the capability to perform the contract and thus it should not have been added to the AbilityOne list.
In response, the government argues that (1) CFP rationally found that ServiceSource could properly staff the project, (2) ServiceSource is permitted to subcontract work under the applicable regulations and thus ServiceSource‘s reliance on subcontractors for some work was not improper, and finally (3) there are sufficient safeguards in the proposed contract to avoid potential issues with regard to the transition. NGA may extend the plaintiff‘s incumbent contract for six months and provide additional time if necessary to allow for a smooth transition.
The court finds that CFP‘s determination regarding ServiceSource‘s capability to perform the BOS required by the contract was rational. While plaintiff disagrees with CFP‘s conclusions, it has not demonstrated that the determination was arbitrary, capricious, or contrary to law. Regarding a ready workforce, CFP properly considered the hiring plan submitted by ServiceSource, including both the proposed strategy and the personnel expertise used by ServiceSource and rationally determined that it was acceptable. AR 3212-13; see also AR 2610. This included specific demographic information about the region showing that potential employees existed, AR 2611-12, 2651-65, 3213, and letters submitted by five local and state rehabilitation agencies stating that they would assist ServiceSource in identifying potential em-
Regarding the permissibility of subcontracting, the plaintiff‘s objections are also unsupported. The regulations provide, in relevant part, that
[NPAs] may subcontract a portion of the process for producing a commodity or providing a service on the Procurement List provided that the portion of the process retained by the prime nonprofit agency generates employment for persons who are blind or have other severe disabilities. Subcontracting intended to be a routine part of the production of a commodity or provision of a service shall be identified to the Committee at the time the commodity or service is proposed for addition to the Procurement List and any significant changes in the extent of subcontracting must be approved in advance by the Committee.
Regarding plaintiff‘s objections to the transition period, the court finds that plaintiff‘s arguments are without merit. First, to the extent the plaintiff argues that the use of a transition period is, in and of itself, contrary to law as it permits the NPA to operate at a lower direct labor ratio than required by the JWOD Act, the court rejects the argument. As discussed above, plaintiff‘s argument is based on its misreading of the 75% requirement. In fact, CFP policy explicitly permits the use of phase-in plans and only requires that contractors achieve and maintain a 60% direct labor ratio on a particular project by the end of the phase-in period.21 AR 3173-80, 3221. In this case, CFP rationally relied on ServiceSource‘s history of meeting phase-in deadlines in other situations to find that using a phase-in plan for this contract would
Next, the court also rejects plaintiff‘s challenge to CFP‘s conclusion that ServiceSource can perform even though it may need assistance from NGA to provide for a smooth transition, including providing escorts for uncleared personnel. According to plaintiff, such a reliance assumes that NGA will be willing to assist ServiceSource and, if it does not, will result in the inability for the NPA to perform. In this connection, plaintiff‘s arguments regarding CFP‘s findings on ServiceSource‘s ability to obtain security clearances is not supported by the record. CFP noted that clearances for all personnel will not be required on the first day of the contract, and further that it had no reason to doubt ServiceSource‘s ability to obtain clearances in that ServiceSource had, as discussed above, successfully obtained 147 out of 150 previous clearances, including 21 top secret clearances.22 AR 3156, 3301-02.
Finally, the court must reject plaintiff‘s challenge to the CFP‘s conclusion that the ability of PWSD to perform work at the Mark Center supported a finding that ServiceSource could also perform the NGA contract with PWSD. Regardless of whether the work for NGA will require more personnel to obtain security clearances, CFP rationally concluded that the actual work itself at both facilities appears to be quite similar in several categories and can be performed by PWSD. The record indicates that “[m]embers of the Commission and Commission staff knowledgeable with the capabilities of people with significant disabilities ... toured both the Mark Center and the [NCW] BOS campuses,” before reaching these conclusions. AR 3222; see also AR 3303. The record reflects that among those who toured the facilities was a CFP member who “uses a white cane for mobility and has over 40 years’ experience in rehabilitation services for [PWSD].” AR 3304. Another CFP member who toured both facilities uses a walking cane and motorized scooter and served on the board which determined the minimum standards for public space ability under the
Importantly, in upholding the CFP‘s conclusion that ServiceSource can perform the work, the court is not suggesting that ServiceSource will not suffer serious repercussions if it later fails to be able to perform the work, either by failing to meet the employment goals and estimates for PWSD relied on by CFP, by failing to properly perform the services contracted, or for any other reason. Instead, the statute and regulations permit CFP to maintain the procurement list to ensure that services are properly provided. Under the regulations, CFP is required to monitor NPAs as they perform the contracts on the procurement list,
Third, plaintiff argues that ServiceSource is not eligible for AbilityOne work because: (1) ServiceSource is not operated in the interest of PWSD, as required by the JWOD Act, and (2) ServiceSource violates the 75% statutory requirement (even under CFP‘s reading of the JWOD). According to plaintiff, ServiceSource‘s financial information for Fiscal Year 2013 shows that 15% of the total sales revenue it received was paid as wages to PWSD, which plaintiff argues demonstrates that the NPA is not actually operated in the interest of PWSD. Plaintiff further argues that ServiceSource‘s high PWSD employment ratios for direct labor agency-wide are created through the manipulation of position labelling. According to plaintiff, ServiceSource is able to achieve these ratios by only characterizing positions suitable for PWSD as “direct labor” positions and categorizing all other positions as “indirect” regardless of whether the labor is direct or not in order to skew the ratios in its favor. Plaintiff particularly refers to a truck driver position performed at the Mark Center, which was categorized as “indirect,” as an example of such selective labeling.
In response, the government and intervenor argue that there is no evidence to support plaintiff‘s contentions. They argue that the percentage of wages paid does not reflect other benefits provided and costs incurred as part of running a NPA. Additionally, they argue that the rate of payment for PWSD and the number of employees on each contract is irrelevant to the eligibility determination and thus regardless of whether only 15% of revenues goes to PWSD, if they make up 75% of the direct labor hours, agency-wide, ServiceSource is eligible. The government further argues that the most recent compliance reviews of ServiceSource was positive and did not raise any concerns about ServiceSource‘s position-labelling practices.
The court finds that the record supports CFP‘s conclusion that ServiceSource is a qualified NPA under the terms of the JWOD Act. In making its determination, CFP relied on a recent “comprehensive compliance review of ServiceSource” that had “found them to have an outstanding rating.” AR 3214. While this review was conducted in 2011, there does not appear to be any requirement that an NPA be reviewed during every procurement process. Indeed, as plaintiff notes in its motion, CFP sets an annual goal of conducting on-site reviews for 20% of NPAs. AR 3665, 3669-70. Additionally, a NPA also submits an annual report, known as Form 404, which details its eligibility statistics. ServiceSource filed four such forms in 2013, one for each of its businesses. AR 8206-13. The court has been given no basis for questioning the accuracy of those forms. After this case was filed, the court granted the government‘s motion to remand the matter to CFP to confirm whether or not ServiceSource was eligible under the JWOD Act. Following the remand, CFP sent ServiceSource a letter with 21 questions seeking additional information and clarifications. AR 8170-74. Chief among these were requests to verify the information contained in the submitted Form 404. Id. CFP asked questions regarding the categorization of services as direct or indirect, questions regarding verification of disability status, questions regarding the percentage of wages paid by ServiceSource to severely disabled employees, and a request for clarification regarding the specific entity within ServiceSource that would be performing the services. Id. ServiceSource provided comments and documents in response, after which CFP reaffirmed its original findings. AR 8176-8204, 8608. In its response, ServiceSource affirmed that the forms it had submitted were accurate and that it applied the statutory definition of “severely disabled” when determining whether employees qualified for such a designation.23 AR 8176. SourceAmerica had also
iv. CFP Rationally Determined That AID, the Incumbent, Would Not Be Seriously Impacted.
Fourth, plaintiff argues that CFP failed to properly evaluate the severe adverse impact that adding the BOS to the procurement list would have on AID, the incumbent. Plaintiff raises two objections: (1) CFP failed to consider AID‘s status as a continuous supplier dependent on the revenue, and (2) CFP failed to consider AID‘s status as an ANC-owned entity when evaluating the impact. According to plaintiff, CFP was required by its regulations to consider AID to be a continuous supplier dependent on the revenue it received from the contract and that the impact determination should have been made based on AID alone without regard to the resources of its corporate parent. Next, plaintiff argues that CFP erred in finding that the preferences afforded to ANCs under Federal law did not bar the addition of the BOS to the AbilityOne procurement list. According to plaintiff, Congress has specified ANCs like AID as economically-disadvantaged for all purposes under Federal law and that, under
In response, the government and intervenor argue that CFP correctly considered the impact on AID by looking at data from both AID and its parent corporation. According to the government, CFP‘s regulations expressly allow CFP to determine impact on an incumbent by looking at corporate parent data and that a review of AID‘s corporate parent‘s income demonstrates that AID will not be severely impacted. In this connection, they note that AID refused to submit to CFP AID-specific financial information, thus requiring it to obtain information from pub-
The court agrees with the government that CFP rationally and lawfully determined that AID would not be severely impacted by placing the BOS on the procurement list. First, contrary to AID‘s contentions, CFP was authorized and required by its regulations to consider the revenues of both AID and its parent company in making its impact determination. Under CFP‘s regulations, CFP is to give “particular attention” to “[t]he possible impact on the contractor‘s total sales, including the sales of affiliated companies and parent corporations.”
Second, the court finds that CFP was not required by law to give a preference to AID as an ANC in making its impact determination under the JWOD Act. Where preferences are granted to qualifying businesses, such preferences are identified and given effect in the relevant statute. See, e.g.,
C. NGA Did Not Err in Referring the BOS Contract to CFP.
Plaintiff argues that the NGA erred in awarding the BOS contract through the AbilityOne Program to ServiceSource for three primary reasons: (1) NGA improperly relied on CFP‘s determination, (2) NGA‘s evaluation of ServiceSource‘s proposal was flawed, and (3) NGA failed to identify organizational conflicts of interest (“OCI“). Plaintiff‘s first argument is related to its suitability argument: if CFP‘s evaluation of ServiceSource was flawed, then NGA‘s award pursuant to that evaluation was similarly flawed. Next,
In response, the government and intervenor argue that NGA was correct to rely on CFP‘s evaluation of ServiceSource and that plaintiff has not identified any actual or potential OCI under the definition set forth in the FAR. They argue that NGA‘s actions are not a required step of the AbilityOne contracting process, thus making them legally irrelevant here. According to the government, because CFP has exclusive statutory authority to manage the procurement list, NGA had to contract through the NPA using CFP‘s choice once the CFP added the BOS to the procurement list. Further, the government contends that NGA could not have relied on SourceAmerica‘s evaluation in a way that creates an OCI because NGA completed its evaluation before it received SourceAmerica‘s evaluation, and even then only received a brief email from SourceAmerica indicating that it had selected ServiceSource as the best option for the BOS contract. The government argues that CFP also completed an independent analysis of the proposal, thus removing any bias on the part of SourceAmerica from the process.
The court finds that plaintiff‘s arguments regarding NGA are meritless. It is undisputed that NGA acted properly in determining that the BOS was a potential candidate for addition to the procurement list. Plaintiff instead disputes NGA‘s actions following this identification. Because CFP is the only authority which oversees the procurement list,
IV. CONCLUSION
Based on the foregoing, plaintiff‘s motion for judgment on the administrative record is DENIED and the government‘s and defendant-intervenor‘s cross-motions for judgment on the administrative record are GRANTED. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
Notes
that in the production of products and in the provision of services (whether or not the products or services are procured under this chapter) during the fiscal year employs blind or other severely disabled individuals for at least 75 percent of the hours of direct labor required for the production or provision of the products or services.
AbilityOne Program—About Us: FAQs (last visited December 4, 2014). In this case, as noted above, the plaintiff had graduated from the 8(a) Program prior to the award of the current contract, which was awarded through full and open competition.requirements currently set aside under the 8(a) Program can be added to the Procurement List. However, in recognition and support of other socioeconomic initiatives, the Committee‘s voluntary practice is to refrain from adding projects to the Procurement List that are currently in the 8(a) Program when the incumbent contractor has not yet graduated from the 8(a) Program and/or there is more than one option year remaining on the contract.