Claims Update
- The Court of Federal Claims issued what appears to be its first opinion involving a performance dispute under a DoD prototype Other Transaction.
- The Air Force engaged CLogic to manage the upgrade and installation of equipment on 142 mine-resistant ambush protected vehicles (MRAPs).
- Although the Air Force was required to provide most of the materials to be installed on the MRAPs, it did not; instead, it directed CLogic to provide the necessary hardware.
- CLogic procured the materials to upgrade 142 MRAPs, even though it was only under contract for a subset of those vehicles under Phase 1, and CLogic provided the upgrade materials to its subcontractor, Navistar.
- The Air Force later cancelled the program, ended CLogic’s involvement, and hired Navistar to perform the remaining upgrade work on the MRAPs.
- CLogic demanded the return of its upgrade equipment that had not yet been installed, but according to the complaint, Navistar responded that the Air Force directed Navistar to retain the hardware as government-owned property.
- CLogic filed suit at the Court of Federal Claims alleging that the Air Force violated the Takings Clause by taking CLogic’s property for public use without paying just compensation.
- The government moved to dismiss the complaint for failure to state a claim.
- Judge Meyers denied the government’s motion to dismiss because CLogic had plausibly alleged the Air Force took its property interests in the upgrade equipment.
As DoD continues to expand its use of prototype Other Transactions Authority (OTA), litigation is bound to follow. We have seen several bid protests relating to DoD’s prototype OTA, but this seems to be the first case arising from a performance dispute under an Other Transaction. We doubt it will be the last.
Bid Protest Updates
- GAO denied a protest challenging the agency’s evaluation of technical and past performance proposals.
- The United States Marine Corps (USMC) conducted a FAR subpart 16.5 procurement for logistics, quality control, and program support services. The solicitation required offerors to supply letters of intent (LOIs) for proposed key personnel containing “salary offered information.” It also specified the contract’s “minimum estimate” of total labor hours.
- Professional Solutions Delivered, LLC (ProSolDel) argued that USMC’s evaluation under the technical factor was unreasonable because the awardee failed to supply LOIs with “salary offered information” and failed to propose adequate staffing to meet the solicitation’s minimum requirements, noting that the awardee’s proposed staffing level was two FTE short of the solicitation’s estimated labor hours.
- GAO denied this protest ground, finding that the awardee’s LOIs contained the required salary information and were not meaningfully different than those submitted by ProSolDel.
- Further, GAO found that the solicitation did not establish a mandatory minimum requirement for labor hours. Instead, the solicitation provided an “estimate” that was disclaimed as “for reference only,” and the pricing workbook expressly provided offerors the discretion to propose a unique level of effort. The agency thus had no basis to reject the awardee for proposing less than the USMC’s estimate.
- ProSolDel also contended that the agency unfairly considered a PPQ for its incumbent work reference instead of relying on CPARS alone. But the solicitation afforded USMC the discretion to seek out and consider additional information about past performance references, so there was nothing improper about considering the PPQs.
MindPoint Group, LLC, B-421869.2; B-421869.3 (February 9, 2024)
- GAO denied a protest that the awardee’s quotation was ineligible for award because it failed to comply with the solicitation’s instructions regarding past performance projects.
- The solicitation provided that vendors could submit “one (1) past performance from a named Teaming Partner (subcontractor).”
- The awardee, ShorePoint, Inc. (ShorePoint) submitted three projects, including one by its CTA member and another by its proposed subcontractor. The protester claimed that submitting both was contrary to the solicitation’s instructions, which limited vendors to only one project from an entity other than the entity submitting the quotation.
- GAO interpreted the solicitation differently and found that it limited projects from subcontractors but did not limit past performance examples from CTA members (i.e., co prime contractors). In so doing, GAO parsed the solicitation’s language and found that the term “subcontractor” appearing in parentheses was reasonably understood to clarify the preceding term, “Teaming Partner.”
GAO’s interpretation of the terms of an admittedly unclear solicitation proved critical in saving the awardee’s quotation from a finding that the agency should have assigned a lower rating or found the quotation ineligible for award.
