*1 findings factual court’s the district cause and because clearly erroneous
are not proper comports
legal analysis conduct inequitable the doctrine
role of law, judgment the district court’s
in patent is unenforceable patent the '551 affirmed.
inequitable conduct should dissent. respectfully
I GROUP, TECHNOLOGY
ALLIED
INC., Plaintiff-Appellant,
v. STATES, Defendant-Appellee,
UNITED Solutions,
Monster Government
LLC, Defendant-Appellee.
No. 2010-5131. Appeals, States Court of
United
Federal Circuit. 9, 2011.
June Sept.
Rehearing En Banc Denied
attorney
clearly
remarks
findings
[to
satisfied
the declaration and the
elsewhere made
requirements of the more restrictive stan-
respect
Sanghera,
With
to Dr.
PTO].”
inequitable
set
above.
dard for
conduct
forth
"consciously
that he
made sworn
court found
Pope
particular,
court found that Mr.
deliberately
that were
[PTO]
statements to the
specific intent to deceive Examin-
"acted with
misleading.”
respect
With
to the issue
PTO,”
Shay
Pope
er
that Mr.
and Dr.
moreover,
judge did
"balancing,”
the district
Sanghera
and deliberate
"made
conscious
against
necessary
to balance intent
find
decision to withhold disclosure to the PTO of
explicitly
materiality,
he
found
because
EPO,
prior
and that
these
statements”
strong
materiality
to both
the evidence was
materials
both of them "knew that the EPO
and intent.
made affirmative statements inconsistent
*2
States,
Group,
Allied Tech.
Inc. v. United
(2010) (“Opinion”).
Frederick W. Crowell & Request Quotations A. DOJ’s for LLP, DC, Washington, argued of Moring, him plaintiff-appellant. for With on the 13, 2008, August On the DOJ issued a Gunjan Lindsay R. Talati brief were and Request Quotations (“RFQ”) draft for P. Denault. recruiting staffing sys- an automated and O’Connell, Trial Attorney, (“the Michael N. System”), performs tem Branch, Litigation Divi- Commercial Civil basic functions associated with the internet sion, Justice, Department States of United listing job of postings DOJ and the sub- DC, Washington, argued for defendant- tracking applications mission and sub- appellee The on United States. With him response mitted in to the vacancies. West, Tony the brief were Assistant Attor- RFQ The draft contained a number of General, Davidson, ney Jeanne E. Di- requirements technical that are discussed rector, Manhardt, and Kirk Assistant Di- below association with the final rector. addition, it provisions partic- contained two Moorhouse, Greenberg Richard L. Trau- ularly protest. relevant to Allied’s LLP, DC, rig, Washington, argued for required that highlight “[t]he offeror shall defendant-appellee Monster Government any provisions that conflict with the Terms Solutions, LLC. With him on the brief and Conditions B outlined Document were, Pankowski, Jacob B. David P. Good- [setting forth the substantive terms of the win and William M. Jack. Conflicting provisions contract]. will be considered as to the Terms and BRYSON, CLEVENGER, Before RFQ.” App’x Conditions of the J. 172. LINN, Judges. Circuit Second, it noted that offeror is ad- “[t]he Opinion by for the court filed Circuit any exceptions vised that taken to the Judge LINN. Dissenting opinion by filed RFQ may terms and conditions of the Judge Circuit BRYSON. adversely impact evaluation rating. right Government reserves the not to LINN, Judge. Circuit accept any exceptions RFQ.” to this Id. post-award protest This is a bid case RFQ provoked The draft comments by filed Allied Technology Group, Inc. offerors, potential including from Monster (“Allied”) against (“gov- the United States objected and Allied. provi- “DOJ”), ernment” contesting gov- conflicting sion that terms will be consid- of a ernment’s award contract for an in- exceptions, noting ered as that “[t]his job ternet listing website to intervenor language does not allow for consideration Solutions, Monster Government LLC of alternative (“Monster”). agen- terms meet the The Court of Federal cy’s suggests] needs and that an (“Claims Court”) offeror Claims granted judg- proposal being runs the risk of a found ment on the administrative record in favor (collec- nonresponsive if any terms an offeror’s government of the and Monster (Master tively, Appellees), affirming Subscription standard MSA [ the determi- (Service Accountability Agreement) nation the Government or SLA Level ] [ (“GAO”) Office that the proper. Agreement) highlighted award was as directed. ] Accessibility Technology with FAR Information Stan- be inconsistent This would (Federal 12, as Acquisition Regulation) ] dards set forth at 36 C.F.R. [ above, be clarified.” and should Moreover, noted RFQ required that a Sec- Compliance tion 508 Certification be final called for an “ef- The DOJ’s Finally, the contractor. signed user-friendly applica- web-based fective RFQ required System that the “shall use 11,000 initially handling about tion” for unique employee identifiers lieu of social expanding employees, capable 115,000 other employees security personally numbers or other iden- up cover system. converted sub-agencies tifiable information.” *4 factors, RFQ four evaluation included The Critically, RFQ the final noted to be their contribution to the listed here with eligible, “accept[ and offeror must each of ] (60 points), technical merit live total score: requirements, provisions, terms and (30 points); past system demonstration conditions, and clauses in all stated sec- (10 (dis- points); price performance RFQ.” RFQ final tions of this The also below). cussed language maintained the from the draft RFQ explicitly not- Regarding price, the RFQ objected by Allied in a section Tech- ed that Government considers “[t]he Documents,” titled “Part J —Additional Merit, System nical Demonstration and requiring that: factors, combined, Past Performance when highlight any provi- The Offeror shall important more than significantly to be sions that conflict with the Terms and Price,” final but that the award would be Conditions outlined Document B. value determi- made on the basis of best These documents will be reviewed nation, price total evaluated “[t]he wherein Any the Government. Terms and Con- determining factor for award will be the unacceptable ditions that are considered quotes are considered where two or more by the and cannot be re- Government If, substantially technically equal.” how- being solved result in the Offeror ever, Department “the determines removed from consideration. Conflict- significant technical differences there are ing provisions will be considered as ex- capabilities of two or more between ceptions to the Terms and Conditions of Offerors, expensive quote may then a more RFQ. award where the DOJ de- be selected for Further, RFQ any excep- “that warned the value of the selected termines tion taken to the terms and conditions of quote price is worth the differential.” RFQ may adversely impact its evalua- The technical merit factor included rating.” RFQ that “[t]he tion The noted “Requirements detailing List” techni- make an award on Government intends to requirements, “High,” cal each rated as quotation the basis of initial without the “Medium,” high “Low” Three priority. However, use of discussions.... the Gov- are relevant here. priority requirements right ernment reserves the to use discus- RFQ required prece- that it take if it receipt quotations sions after any agreement between dence over other considered in the Government’s best inter- Second, and the offeror. government ests to do so.” RFQ required compliance with Section Act of 508 of the Rehabilitation B. Bids Allied’s Monster’s System for guaranteed access to the bids Only Allied and Monster submitted with under the FAR. people disabilities RFQ. response Both offerors RFQ that the contractor “must noted price plans systems intended Electronic and submitted comply” with the Federal (cid:127) 115,000 5,000 users. The Allied would remove the section for between monthly propos- requiring payment evaluated the arrears. Contracting Officer (cid:127) anticipated user count of als at the initial Relatedly, Ini- Allied would have the 15,000. 10,000 proposed Allied’s five- paid up tialization Fee front to take million, year price approximately $7.0 advantage of the re- 30% discount prepayment annual assuming percent a 30 price quote, flected in conflict prepayment dis- discount. Without RFQ requirement pay- (as RFQ), called for count monthly in ments be made arrears. million price approximately totaled $11.7 exceptions, undisput- Aside from it is these Allied’s bid contained a years. over five proposal ed that Allied’s met all the re- Exceptions.” titled “Part Al- section 5— quirements lied stated: certified that of the Avue Platform re- nature [The] requirements would meet all 114 technical MSA, signed that the Avue quires five-year price approximately for a total clients, precedence all takes over all oth- In particular, million. Monster indi- $3.2 *5 agreements/terms er and conditions content, “system, training cated such, client base. across our entire As output” compatible and its with Section Precedence, Order needs Section of Act, of the Rehabilitation and also the (“Blanket BPA [ to be removed from the privacy provision requiring the use of Agreement”) Purchase Terms and ] unique employee identifiers in lieu of So- Conditions, leaving the MSA as the Moreover, Security cial numbers. Mon- overriding document. The remainder of required signed ster submitted the Section exceptions outlined below flows [sic] Certification, Compliance certifying change. from this that its service is in with the Officer, Contracting As described Technology Electronic and Information Allied, disputed and not Standards, Accessibility 36 C.F.R. following: resolve into the In a section titled “PART 5. EXCEP- (cid:127) govern TIONS,” the confi- MSA following Monster included the data,
dentiality government’s overview of compliance: its Section 508 rights produced in data con- under the The information contained within this tract, rights inspection and voluntary Accessibility Product Temp- acceptance. (“VPAT”) late is the result of an inde- (cid:127) require “Any Allied’s MSA would pendent audit ... [that] tested the
early Agreement termination of this compliance of the Monster Government shall not in a result refund or reduc- hiring Management Employ- Solutions — 5.0”) Subscription tion of the Annual Fees (“HM Employer applica- er 5.0 — and the Annual Extranet for that Fees tion with the requirements of Section portion subscription of the Period so 508 of the Rehabilitation Act of 1972 as terminated, (1998). regardless of whether Amended paid such fees are on an annual or Employer generally compli- 5.0 is HM— monthly basis.” ant with to the relevant Sec- (cid:127) If the government performs pen- requirements. Employer tion 508 HM—
etration testing pursuant compliance exceptions to technical 5.0 has minor forms, requirement accessibility require Allied would text elements, indemnity equivalents “extensive financial cover- for non-text age.” keyboard accessibility. year the five term Decision ditional dollars over Contracting Officer’s Award
C. BPA.” fur- Contracting The Officer a technical evalua- established The DOJ price ther noted because Allied’s was Panel”) (“the to evaluate panel tion taking advantage based on the DOJ of a competing proposals. of the technical merit up-front payment arrangement, 30% Panel scored each of the The members between price disparity true Allied and weak- strengths and for technical product than Monster was even more 100%. At criteria of the under the nesses analysis, the end of his the scores received Officer Panel, if asked for further com- Officer concluded “even [Allied’s] from descriptions acceptable, from the members ments and business were then not, Panel. The Panel members of the presents it is Monster still the best demonstration, systems the live attended Department.” value to the scores re- past performance and collected products. The companies’ both garding D. GAO Bid Protest the scores averaged post-award protest Allied filed a bid the Panel for by each member of awarded GAO, challenging Of- merit and the live demonstration technical finding quotation ficer’s that Allied’s was average past per- and added unacceptable, finding his that Monster’s The result was total formance scores. quotation acceptable, and the method- 85.5/100, Mon- for Allied of and for score ology of the contract award. The GAO ster of 79.49/100. (1) protest denied Allied’s because: *6 2, 2009, Contracting Offi- August On put taking on notice of the risks of awarded the contract to Monster. cer exception dispute and does not that it took opinion, the his later-issued memorandum (2) exceptions; phrase “cannot be re- explained his award Contracting Officer in reasonably solved” could not independent on two bases. decision (3) discussions; require be read to and that Allied’s he determined could, even if it this would result in a accept
were “a refusal to Allied/Avue patent ambiguity within the contract be- provisions, terms requirements, material requirement tween the discussion and the RFQ,” and clauses to the and conditions statement that the DOJ intended to make that this made Allied’s and determined discussions, that the award without and stand- “unacceptable offer from business protest patent failure to this Allied’s ambi- The Officer stated point.” prior bidding right waived its guity that “Monster took no Sec- exceptions.” required. assert that discussions were ond, despite exceptions, Allied’s and rejected argument The also Allied’s GAO compared Allied’s and Officer disqualified have on their merits be- that Monster should been proposals only noncompliance two offerors. they alleged cause were on the basis of Act Section 508 of the Rehabilitation and merits, On Security the collection of Social numbers provided the determined that Monster point, to the first through USAJOBS. As project, value for the because Allied’s best that Allied’s state- the GAO determined advantage” justi- “small technical could compliance, and the determina- ments of price: “There is no rea- fy the increased independent tion consultant Allied/Avue, way to assert sonable compliant,” did “generally Monster was higher a technical score of 5.04% receiving unaccepta- a determination of not mandate more than justifies paying than Monster much, bility. in of ad- resulting millions twice
1326 protest arbitrarily capriciously Allied’s ment acted and not rule on did
The GAO
determination and
best value
making
of the
value determination. We
its best
of the rat-
deficiencies
procedural
alleged
and,
light
address the first two issues
that Allied was
it held
ing system, because
decision,
the third.
our
need not address
not raise
party
could
not an interested
issues,
agency had “reason-
since the
those
A. Standard of Review
to be unac-
ably
quotation
found Allied’s
to be
quotation
ceptable
[Monster’s]
This court reviews
Claims
acceptable.”
grant
judgment
Court’s
of a
on the admin
novo, applying
istrative record de
the same
Complaint
E.
the Court
standard over the GAO’s decision as did
of Federal Claims
Bannum, Inc. v.
the Claims Court.
Unit
protest by filing
its bid
Allied continued
(Fed.Cir.
States,
1346, 1350-51
404
ed
F.3d
Court, making
complaint
in the Claims
2005).
show
plaintiff-appellant
must
essentially
arguments
the same
did
Officer’s award
granted Ap-
The Claims Court
the GAO.
basis,”
Grp.,
a rational
“lacked
Centech
judgment
on the ad-
pellees’ motion
States,
Inc. v. United
554 F.3d
record,
holding
ministrative
(Fed.Cir.2009),
prejudicial
or “violates to
disqualification
non-disqual-
and Monster’s
applicable procurement
regula
effect an
proper. The Claims Court
ification were
tion,”
Servs.,
v.
CACI Field
Inc.
United
agreed with Allied that “there were errors
States,
(Fed.Cir.1988).
F.2d
process,”
in DOJ’s technical evaluation
but
determined that Allied could not show The
ground
test under the first
is “wheth
prejudice
large price gap
because the
be-
contracting agency provided
er the
a co
it impossi-
tween Allied and Monster made
explanation
herent and reasonable
of its
“reasonably
ble for Allied to
show that it
discretion,
disappointed
exercise
would have received the award
the ab-
a heavy
showing
bidder bears
burden of
Relying
sence of DOJ’s errors.”
on Elec-
the award decision had no rational
Systems,
tronic Data
LLC v. United
*7
Centech,
basis.”
takes requiring to Officer en- tract, before gage in discussions in the case of excep- an offeror from properly disqualify such challenge tions—which Allied cannot under primarily on consideration. This based Fleet, L.P. holding Blue & Gold v. RFQ below from an phrase italicized States, (Fed. 492 F.3d United “Part Docu- section titled 4—Additional Cir.2007) (considering disappointed bid- ments argument patent der’s on the basis of that are con- Any Terms and Conditions ambiguity waived for failure to raise it by the Government unacceptable sidered prior bidding). to may result and cannot be resolved removed from consid- being the Offeror arguments Allied makes two in re- eration. First, sponse. argues Ap- Allied that the added). to interprets pellees’ interpretation Allied this fail (emphasis give not be “would mean meaning to the “cannot be resolved” unless the con- grounds disqualification Second, phrase RFQ. Allied argues signifi- thought flicts as a whole were phrase response that that was added in enough disqualification to warrant cant Allied’s comments on the draft through not be resolved (‘may’) and could arguments unpersuasive. These resolved’).” (‘cannot be Br. of discussions provision RFQ The relevant of the Draft at 22. read: provisions Appellees counter two copy any The shall include a offeror give Offi- unambiguously (MSA), Subscription Agreement Master engage cer the discretion over whether to (SLA) Agreement any Service Level general quote in discussions. that the other documentation offeror will instructions, states: sign in request the Government to order offers shall contain the Offeror’s [I]nitial to receive the offeror’s services. The price a technical and best offer from highlight any provisions offeror shall Government, however, standpoint. *8 that conflict with the Terms and Condi- to conduct discussions right reserves the in B. tions outlined Document Conflict- Contracting by if later determined the provisions will be considered as ex- ing necessary. to be to the Terms and Conditions of ceptions added). Second, in a section (emphasis RFQ. the Discussions,” RFQ stated: titled “5.0 In response, Allied stated: to make an The Government intends RFQ requires offerors to The draft quotations of initial award on the basis any provisions in an MSA or highlight Offer- without the use discussions. of Terms and SLA that conflict with the submit their most ors should therefore B, in but states Conditions Document in to the advantageous quote response conflicting provisions will be that such However, the initial solicitation. Gov- exceptions to the Terms and considered right to use dis- ernment reserves language This receipt quotations Conditions cussions after if objected for consideration of alter- The DOJ did not remove the not allow does agency’s that meet provisions; RFQ, native terms the final like the suggest that an offeror runs draft, needs and required highlight any offerors to being found nonre- of a the risk provisions in an MSA or SLA that con- any terms in an offeror’s sponsive if flicted with the terms and conditions of highlighted MSA or SLA standard RFQ, categorized conflicting such as directed. Allied, provisions exceptions. through as comments, following: already acknowledged The then added the has DOJ provisions may reasonably these be by will be reviewed These documents disqualification read to allow Any Terms where “alter- the Government. and Con- unacceptable proposed ditions that are considered native terms” are in the offer. cannot be re- by the Government and in nothing language There is the added being result the Offeror solved necessarily changes the effect of from consideration. removed provisions. those The added language discussions, does not mention nor define argues only reasonable required government what is before the reading the amendment DOJ may properly prevent being wanted to offerors from determine that terms so, nonresponsive, required Instead, dis- unacceptable. found offer are the DOJ disagrees. cussions. This court objection, warning answered Allied’s offer- proposing ors that a bid alternative terms RFQ unambiguously gives may well result in its removal from con- Contracting Officer the discretion over sideration. discussions, engage whether to as seen provisions emphasized from the above. this, In light reading a reasonable reading, Under Allied’s such discretion is phrase may “cannot be resolved” be to eliminated the offeror’s initiative to require discussions where additional terms take or propose additional are proposed, but maintain as government terms that the would find un (and disqualification) conflicting thus allow words, acceptable. other Allied would terms between the and the submitted allow the Officer discretion to interpretation additional documents. This engage only in discussions when the offer is consistent RFQ, with the rest of the exactly RFQ, conformed to the a situation requires offerors “submit their unlikely which would to be “unaccepta advantageous most quotes,” and their However, ble the Government.” [to] “best offer from a price technical and provision “cannot be resolved” is activated standpoint” and retains the only when the additional terms are consid Officer’s engage discretion over whether to unacceptable ered government. go discussions. We need not far so Thus, interpretation give fails to definitively opine meaning on the of that above, meaning provisions reserving to the phrase; enough it is to note that it does Officer the discretion to require Officer to en- discussions, engage in and is therefore an gage in disqualifying discussions before an *9 See, improper reading RFQ. e.g., of the offer from consideration. Aviation Training Burnside-Ott Ctr. v. level, a Dalton, (Fed.Cir.1997) practical On more the ex- 854, 107 F.3d 860 (“A plicitly states that offerors should submit contract interpreted must be as a “complete acceptable quote[s],” whole in a manner that and i.e. gives reasonable meaning parts “accept[ to all its those which the require- and avoids conflicts each of ] in, of, ments, conditions, or surplusage provision.”). provisions, its terms and
1329 Contracting that the ground of this the same Offi- stated in all sections and clauses to reward disqualified It makes little sense cer Allied: because it took a RFQ.” propos- choose to submit in exception requiring prece- contractors who material the RFQ by the fail to conform to RFQ, als that dence of the MSA over the that the engage government the requiring Contracting “unaccepta- Officer considered with them. discussions Second, a standpoint.” ble from business not,
the Officer did as Allied 2. contends, finding unacceptability make a required discussions were Because only aggregate excep- on the of the six disqualification on the by RFQ prior to opinion tions. The Officer’s exceptions, only unacceptable basis states: the Con- remaining question is whether opinion It of the Offi- rationally disqual- tracting Officer acted a exceptions cer that these are refusal exceptions. Allied on the basis of its ifying accept material re- Allied/Avue exceptions argues that two of its six
Allied quirements, provisions, and terms condi- exceptions not “true” because were tions, RFQ, and clauses of the and result during clarification told the DOJ quote being unaccepta- in Allied/Avue’s for a 30 agree payment arrears standpoint. ble from a business Allied then bump price. percent Officer’s reference to Contracting Officer dis- argues that naturally exceptions” “these is most read on the cumulative basis of qualified Allied referring exception. By to each analo- that a determination exceptions, all six gy, say, were this court to affirm “we are not any of the six decision of the Claims Court for three remand, on exceptions requires “true” reasons,” that sentence alone does not nec- in S.E.C. v. the basis of restriction essarily indicate that the affirmance is 194, 1575, Chenery Corp., 332 U.S. 67 S.Ct. aggregate on the of the three rea- based (1947) appeals that an court L.Ed. 1995 stated, Finally, sons. as this court has “a by the judgment “solely make its must proposal that fails to conform to the mate- if agency[, and] invoked grounds rial terms and conditions of the solicitation improper, or grounds inadequate those unacceptable should be considered and a to affirm the admin- powerless the court is unaccept- contract award based on such an by substituting what it con- istrative action procurement able violates the proper adequate to be a more siders regulations.” statutes and E.W. Bliss Co. basis.” Id. at 67 S.Ct. (Fed. States, v. United F.3d hollow for three argument rings Cir.1996). above, As this is ex- discussed all its Allied admits that reasons. plicitly RFQ, requires out in laid from an insistence that its exceptions stem a com- Offeror shall submit “[e]aeh J. precedence take over MSA plete acceptable quote accordance (“The excep- at 900 remainder of the App’x the instructions contained herein. with from this outlined below flows [sic] tions quote accepts ... each of a re- Such excep- that all six change.”). Allied admits quirements, provisions, terms and condi- at 26. “material.” Br. of Allied tions were tions, and clauses stated in all sections of Allied that two of agreed Even if we RFQ.” There is thus no “substantial this exceptions, not “true” were doubt whether the administrative of the other four affirming on basis ultimate find- would have made same not constitute a new exceptions would findings [by the erroneous as- ing with an affirmance. It would be ground for *10 inferences removed from the sumption] on disqualification affirmance of Allied’s 1330 if Airways, Contracting Inc. v. the Officer had made
picture.” See Braniff
(D.C.Cir.1967).
CAB,
453,
offeror,
466
non-complaint
F.2d
an award to a
379
subject
decision would be
to reversal.
holding
RFQ
that the
did
of our
Because
prior
disqualify-
require
discussions
However,
improperly
Allied
frames the
Allied,
whether
ing
we need not determine
explicitly
issue. Monster
that it
certified
the failure to conduct such discussions was
508,
compliant
with Section
both
prejudicial to Allied. For each of the rea-
listing
requirements,
by submitting
of
and
above, this court affirms
sons discussed
signed
Compliance
a
“Section 508
Certifi-
decision to dis-
Contracting
Officer’s
cation,”
stated,
quote
which
for
“[t]he
qualify Allied.
products or services in response to this
Request
Quotation
IS
NOT in
[x]
[ ] IS
Acceptability
C.
compliance with the Electronic and Infor-
Proposal
Monster’s
mation Technology Accessibility Standards
argues that
Allied next
the award to
(36
1194),
below,
specified
CFR
as a mini-
a
Monster lacked
rational basis because mum.” The certification also included the
alleged exceptions
RFQ
to the
following
signature
note after the
block:
necessarily required
disqualification by
Exceptions
previ-
“See
[Monster’s]
Officer.
ous section.”
argues
Allied
that the
an
Where
offeror has certified that
not award the contract
an
requirements
meets the technical
of a
require-
offeror who fails to meet all the
proposal,
Officer is enti
RFQ,
ments of
and
Monster did
rely
tled to
on such
certification
deter
requirements
not meet the
of Section 508
bid,
mining
accept
whether to
and the
Act,
of the Rehabilitation
providing for
potential
offeror’s
comply
failure to
with
accessibility
system
to the
for disabled in-
proposal requirements
ordinarily
is
“a
Next,
argues
dividuals.
Allied also
administration,”
matter of contract
RFQ
Monster failed to meet
technical re-
go
does not
to the propriety
accepting
quirement 107 that the offeror must use
Centech,
the bid. See
1332
added).
easily
that
This
argument presumes
distinguishable.
This
case is
sis
that
exceptions”
“minor
indicate
unambiguously
Monster’s
Monster
twice
certified
satisfy
fail
to
service would
508,
Monster’s
only
with
compliance
Section
508, but,
of Section
as
provisions
some
contrary
allegedly
compli-
evidence to its
above,
immediately
Monster
discussed
ance, a
that it
excep-
statement
had “minor
if
508 even it considers
may satisfy Section
tions,” was within the context of a state-
minor
because of
itself to have
“generally compliant.”
ment
it was
in the statute.
flexibility inherent
This is not the kind of evidence that shows
Centech,
Second,
is not the
noncompliance
Monster’s statement
“on its face.” See
countervailing evi-
“significant
kind of
MMI-Federal
Service
compliant with Section 508 at the time of
(GAO
B-297537,
Although majority ing terms, characterizes the to contract comparable requirement access the contracting flatly section officer stated “Mon- “flexible,” 508 as regulations, to which ster took exceptions.” no He made that yet can fill out the entire form be person though portion a of Mon- even statement unable to submit it because a screen-read- “Part 5. clearly labeled proposal ster’s ing program pronounce cannot the “Sub- though portion even Exceptions” and meaningful lack mit” button due to the that Mon- clearly indicated proposal Similarly, key- without 5.0, fully equivalent. text was not Employer system, ster’s accessibility, a will person board blind with section 508. compliant unable to use software websites importance minimizes the majority require a mouse. by not- proposal of Monster’s part of that majority accepts Although certified separately that Monster ing “minor,” that its were section assertion compliant with proposal was effect, legal that characterization has no with a Although Monster indicated product “generally that is com- complied because entry that its checkbox Standards, pliant exceptions” non-compli- is still Accessibility the com- regulations. See 36 C.F.R. ant under contains a note certification pliance 1194.2(a) (requiring products “comply exceptions in the [Monster’s] reads “See *15 the Ac- applicable provisions” That with all section,” referring to Part 5. previous Standards). states, cessibility Regardless of how turn, following repre- “The part, the degree Monster chose to describe of its to the Section exceptions sents [Monster’s] Standards, Accessibility from the excep- Two deviation requirement.” compliance states, Employer fully it is clear that 5.0 does not “Employer The first tions follow. comply with those Standards. compliant with generally 5.0 is requirements.” relevant Section 508 to the fully was not product Because Monster’s with a citation exception is delineated That applicable with the section 508 compliant requirements section design requirements fully compli- and because a performance functional 1194.22 (such product product) as Allied’s was ant The second criteria in section 1194.31. marketplace,” “available in the commercial the deficiencies exception recognizes 1194.2(b), applica- straightforward id. a submission, that “Em- noting require that regulations tion of the would compliance exceptions 5.0 has minor ployer contracting officer not award the con- forms, accessibility equiva- text further making tract to Monster without elements, keyboard non-text lents for an award to Mon- findings. particular, accessibility.” justified contracting if the ster could be an “undue burden” determi- officer made involve features Those explana- provided required nation and making to software important by explaining tion for that determination to individuals with dis- accessible websites compliant product a more selecting visual disabili- Individuals with abilities. or “significant difficulty ex- impose or would with screen readers ties access websites 1194.2(a)(2), §§ Yet Id. 1194.4. pense.” visual devices that convert displays, Braille clear statement despite Monster’s auditory or tactile information. text taking exceptions to the section 508 was for non-text ele- equivalents text Without contracting requirement, ments, compliance person a be unable blind acknowledge that Monster’s did not website, contains officer a even if the website use fully compliant not “minor characterizes as only what Monster 508. For that rea- requirements of section if an otherwise example, For exceptions.” son, not conduct contracting officer did job applica- provides a compliant website “significant requisite analysis of an the form, button is but the “Submit” tion im- be difficulty expense” would a blind equivalent, a text image lacking file fully compliant by selecting prod- posed
uct, contracting provide officer nor did the explanation why and to requisite insisting fully compliant on a
what extent impose an undue burden on
product would agency. violation, I remedy regulatory
To give agency this case to
would remand to conduct an “undue bur- opportunity
an and, analysis if it found the “undue
den” satisfied, explain why,
burden” standard extent, im-
and to what
pose an undue burden on the Accessibility term is defined would,
Standards. That determination See,
course, subject to further review.
e.g., Space Lockheed Missiles & Co. v. (Fed.Cir.1993)
Bentsen, 4 F.3d 959-60
(evaluating price/technical tradeoff anal-
ysis developed on remand from a decision
granting protests). bid Because that man-
datory process was followed this
case, I uphold would not the award to present
Monster on the record.
SPECTRALYTICS, INC.,
Plaintiff-Appellant,
v. CORPORATION,
CORDIS Defendant- Appellant,
Cross Noble, Inc.,
Norman Defendant- Appellant.
Cross 2009-1564,
Nos. 2010-1004.
United States of Appeals, Court
Federal Circuit.
June 2011.
Rehearing Rehearing En Banc
Denied Aug.