Decision Released: Army Special Operations Forces Requirements, Analysis, Prototyping, Training, Operations and Rehearsal contract

File No. 2022-1556, 2022-1557

Background

This bid protest action originated with the United States Department of the Army (“Army” or “agency”) awarding a contract to F3EA, Inc. (“F3EA”).  Another bidder, Oak Grove Technologies, LLC (“Oak Grove”), protested the award, including by filing suit in the Court of Federal Claims.  The Court of Federal Claims agreed with Oak Grove that the bidding process had gone awry and, therefore, enjoined the Army from proceeding with its award to F3EA.  It further ordered the Army either to begin the procurement process anew or reopen it to conduct discussions with, and accept revised final proposals from, multiple offerors, including Oak Grove.  The trial court also sanctioned the government for repeatedly failing to include material evidence in the administrative record.  Both F3EA and the government appeal the trial court’s judgment and the injunction.  The government additionally appeals the trial court’s sanctions order.  We vacate the judgment and the injunction, affirm the sanctions order, and remand for further proceedings.

Discussion

As discussed above, the government injected into the litigation the issue of whether Lukos’ offer was awardable, and therefore a barrier to Oak Grove winning the contract.  Lukos’ financial responsibility, therefore, became pertinent to whether Lukos could be awarded the contract.  Even though we have ultimately decided that the Court of Federal Claims should not have attempted to determine financial responsibility itself, rather than remand to the Army for SBA to make such a determination, documents related to the issue were relevant to the court’s review of the bid protest, due to the government’s introduction of the Lukos issue.  Thus, it was entirely appropriate for the Court of Federal Claims to find that the DCMA report should have been included by the government in the administrative record.

Likewise, the government knew at the time it prepared the administrative record that Oak Grove was contending that F3EA should not have received the contract due to a conflict grounded in the allegedly improper conduct of the SSEB chairperson, RM.  RM’s termination from the role of SSEB chairperson occurred in April 2020, see J.A. 3950-51, within the period of activity under attack by Oak Grove, which was January through May 2020.  See, e.g., J.A. 1623 (government’s Notice of Corrective Action dated January 31, 2020); J.A. 2907 (contracting officer’s memorandum regarding PIA and OCI allegations dated February 18, 2020); J.A. 3439 (contracting officer’s summary memorandum regarding PIA and OCI allegations dated May 1, 2020).  Given the centrality of Oak Grove’s allegations against RM to the awardability of F3EA’s offer, the RM termination letter – even if, as the government contends, it provides reasons unrelated to those raised by Oak Grove – should have been included in the administrative record …

Decision

Because we find that (1) Oak Grove waived its argument that the Army was required to hold discussions, (2) F3EA was not required to include a teaming agreement in its proposal, and (3) the Army’s investigation into RM’s alleged misconduct did not render its contract award arbitrary and capricious, Oak Grove has failed to prove that the award of the SOF RAPTOR IV contract to F3EA was arbitrary and capricious.  The Court of Federal Claims’ finding that another bidder, Lukos, was financially irresponsible and, hence, ineligible to win the contract, is also clearly erroneous.  Therefore, the judgment and the injunction ordered by the Court of Federal Claims are vacated.  The imposition of discovery sanctions on the government is affirmed.  The case is remanded to the Court of Federal Claims for further proceedings not inconsistent with this Opinion.

Read the decision here.

🔊 Listen to Story