Agency Faces Sanctions For Backdating Market Research

An agency backdated a market research memorandum to justify its set-aside decision–and when the backdating came to light, the Court of Federal Claims was none too pleased.

In a recent decision, the Court held that the backdated memorandum resulted in a “corrupted record,” which undermined a “fair and equitable procurement process,” and agreed that the agency’s self-imposed sanctions were appropriate.

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Agency’s Conduct “An Egregious Example Of Intransigence And Deception,” Court Says

A procuring agency’s conduct in the course of evaluating proposals–and defending itself in four subsequent bid protests–was an “egregious example of intransigence and deception,” according to the Court of Federal Claims.

In a recent decision, Judge Eric Bruggink didn’t hold mince words, using terms like “agency misconduct,” “untruthful,” and “lack of commitment to the integrity of the process,” among other none-too-subtle phrases, to describe the actions of the Department of Health and Human Services.  But Judge Bruggink’s decision is striking not only for its wording, but because it demonstrates the importance of good faith bid protests to the fairness of the procurement process, in a case where HHS unfairly sought to “pad the record” in support of a favored bidder–and would have gotten away with it were it not for the diligent efforts of the protester.

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Federal Court Again Says Agency Erred By Not Clarifying Proposal Errors

A procuring agency erred by failing to seek clarification of obvious errors in an offeror’s proposal, according to a recent ruling by the U.S. Court of Federal Claims.

In Level 3 Communications, LLC v. United States, No. 16-829 (2016), the Court held that although a Contracting Officer has discretion over whether to seek clarification of a proposal, this discretion is not unlimited. By failing to clarify obvious errors, the Contracting Officer’s decision was arbitrary, capricious, and an abuse of discretion.

The decision builds on a 2013 case, BCPeabody Construction Services, Inc., No. 13-378C (2013), in which the Court reached a similar conclusion. But so far, the GAO has drawn a hard line, essentially holding that an agency’s discretion in this area is unlimited.

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Contractor Ineligible For Reimbursement of Contract Tainted By Kickbacks

The ongoing federal movement to prevent fraud waste, and abuse in the contracting process continues. And as demonstrated in a recent federal court decision, the government retains its ability to refuse to pay a procurement contract tainted by fraud.

In the recent decision of Laguna Construction Company, Inc. v. Ashton Carter, Appeal Number 15-1291, the U.S. Court of Appeals for the Federal Circuit affirmed that a procurement contract tainted by violations of the Anti-Kickback Act is voidable under the doctrine of prior material breach.

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Agency Need Not Put Dollar Value On “Relevant” Past Performance

An agency’s solicitation was not unreasonably vague where the solicitation defined “relevant” past performance to include projects of “a similar dollar value and contract type.”

In a recent bid protest decision, the U.S. Court of Federal Claims rejected a protester’s assertion that the solicitation was required to identify a specific dollar value associated with relevant past performance, finding that the solicitation’s phrasing was sufficient to allow offerors to compete intelligently.

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Small Business Wins Contract Despite “Unacceptable” Key Personnel Score

A small business received an “unacceptable” score for its key personnel, but nevertheless was awarded the contract after the matter was referred to the SBA under the Certificate of Competency procedures.

A recent decision by the U.S. Court of Federal Claims demonstrates the breadth and power of the so-called “COC” process, which can allow an otherwise “unacceptable” business to wind up in the winner’s circle.

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CPAR Challenge Wasn’t A Viable “Protest,” Says Federal Court

A contractor’s attempt to challenge an adverse Contractor Performance Assessment Report was not a bid protest subject to the bid protest jurisdiction of the U.S. Court of Federal Claims.

In a recent decision, the Court rejected a protester’s creative attempt to challenge a CPAR as part of a bid protest.  Instead, the Court held, a CPAR ordinarily must be challenged through the FAR’s claims and appeals processes–although the Court appeared to leave the door open to bid protest challenges in limited circumstances.

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