Tag Archives: Court of Federal Claims decisions

Court: Past Performance Evaluations of Technically Unacceptable Offerors Not Required

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A procuring agency was not required to consider the past performance of an offeror judged to be technically unacceptable, according to a recent bid protest decision of the U.S. Court of Federal Claims.

In The Alamo Travel Group, LP v. The United States, No. 12-764C (2012), the Court rejected an incumbent contractor’s argument that an agency could not properly exclude the incumbent’s proposal without first considering its past performance–which, the incumbent argued, would demonstrate its ability to successfully perform the contract.

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AbilityOne Program: Court Shoots Down “Arbitrary and Capricious” Contract Award

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The AbilityOne Program cannot be used to award a contract when it is questionable whether the contractor will comply with the requirement that significant portions of the work be performed by the severely disabled, according to a recent decision of the U.S. Court of Federal Claims.

In Systems Application & Technologies, Inc., No. 12-526C (2012), Judge Eric Bruggink, in an opinion brimming with colorful quotes, shot down the Army’s effort to award a contract involving significant degrees of physical labor at a remote location to an erstwhile AbilityOne participant, holding that the prospective awardee had not come close to demonstrating that the work would (or could) be performed by the severely disabled.

For contractors concerned that the AbilityOne program may be subject to misuse, the Systems Application case is confirmation both that questionable practices occur in AbilityOne contracting, and that such practices will not be tolerated by the Court.

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Federal Court: Small Business Set-Asides Are “Competitive”

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A federal judge has denied a large business’s pre-award bid protest, which was based on the large company’s argument that small business set-asides do not constitute a type of competitive procurement.

Although the decision of the U.S. Court of Federal Claims in Res-Care, Inc. v. The United States, No. 12-251C (2012) involved a specific statute applicable to Job Corps Centers, the court’s affirmation of small business set-asides as “competitive” reinforces an important principle underlying FAR Part 19 and other programs benefiting small government contractors.

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SDVOSBs Lose Aldevra Battle With VA, Says Federal Court

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As I briefly reported last night, in a crushing blow to service-disabled veteran-owned small businesses, the U.S. Court of Federal Claims has overturned the GAO’s Aldevra decisions.

Judge Nancy Firestone, ruling in Kingdomware Technologies, Inc. v. The United States, No. 12-173C (Nov. 27, 2012), held that the VA reasonably interpreted the Veterans Benefits, Health Care, and Information Technology Act of 2006 as not requiring consideration of a SDVOSB set-aside before the VA procures goods and services under the Federal Supply Schedule.  For SDVOSBs, the Kingdomware Technologies ruling means that the VA’s much-ballyhooed “Veterans First” acquisition policy means little more than “Veterans First (If We Feel Like It).”

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Breaking: Federal Court Sides With VA, Overturns Aldevra Decisions

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VetLikeMe, a publication advocating for service-disabled veteran-owned small businesses, is reporting tonight that the U.S. Court of Federal Claims has ruled in favor of the VA in a decision essentially overturning the GAO’s Aldevra line of cases.

The court’s decision, issued by Judge Nancy Firestone, has not yet appeared on the Court of Federal Claims’ website, but I have seen a copy of the ruling and can confirm VetLikeMe’s report.

In the decision, Judge Firestone holds that the VA need not consider a set-aside for service-disabled veteran-owned small businesses before procuring supplies or services under the Federal Supply Schedule.  Judge Firestone’s ruling essentially reverses more than a year’s worth of GAO decisions holding that the VA had violated the law by using FSS procedures without first considering SDVOSB set-asides.

More tomorrow on this crushing legal blow to SDVOSBs.

Federal Court Upholds Agency’s 40% Small Business Subcontracting Goal

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The United States Court of Federal Claims has denied a challenge to the Transportation Security Administration’s establishment of a 40% small business subcontracting goal–measured by total contract price, not total subcontracting dollars.

In Firstline Transportation Security v. The United States, No,. 12-601C (2012), Judge Thomas Wheeler  rejected arguments that the TSA’s 40% small business subcontracting goal was unreasonable, contrary to the FAR, and improperly established a partial small business set-aside.

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GSA e-Buy “Purges” May Be Improper, Says Federal Court

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The GSA e-Buy website may have improperly failed to preserve critical solicitation records, according to the U.S. Court of Federal Claims.

In Laboratory Corp. of America v. United States, No. 12-622C (2012), the court has asked the government to explain why it should not face sanctions for so-called “spoliation” of evidence, arising from the inability to access archived e-Buy materials.  The court also suggested that the procuring agency might have used e-Buy to improperly attempt to modify a solicitation without issuing a formal amendment.

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