Which Way to Look and For What Relief?
December 7, 2012
By: Lindsay Simmons
In a recent bid protest challenging the Army’s award of an 8(a) contract to an allegedly ineligible small business, Reema Consulting Services, Inc. v. United States, No. 12-402C (Fed. Cl. Nov. 26, 2012), the Court of Federal Claims stated that:
Like the Roman God Janus, plaintiff concurrently looks backward and forward in requesting relief.
Unfortunately for the Protestor, channeling the ancient gods brought neither form of relief.
Retrospectively, the plaintiff, Reema, claimed it was entitled to bid prep and proposal costs relating to the procurement which was being terminating.
Prospectively, Reema sought an injunction requiring the government to reprocure the services in question, while acknowledging that the Army had already agreed to do this.
Reema initially asked the Court to stop contract performance because award had been made to a company the SBA found ineligible for award. It argued that (i) when the SBA’s Office of Hearings and Appeals (OHA) finds a protested concern ineligible, the contracting officer must either terminate the contract (or not exercise the next option); and (ii) because the contract here had only a base period and no options, when OHA sustained the SBA’s size determination, the Army had to terminate the contract.
The Army agreed.
Thus, during the course of the litigation the Army terminated the existing contract and decided to reprocure the services. The Army’s actions changed the posture of the case, turning Reema’s injunctive request into a review of the Army’s proposed corrective action, i.e., termination of the existing contract and reprocurement.
Reema conceded that the timing of the Army’s planned reprocurement was roughly the same as what the Court would have ordered had the Army not agreed to terminate the contract and the Court issued an injunction. Unfortunately for plaintiff, this scenario raised a real question as to whether Reema had standing to challenge the proposed corrective action.
The court said it did not, stating that “Reema will not be competitively injured if [the Army] timely implements its proposed reprocurement schedule, which is essentially the same as what Reema would have this court adopt via an injunction.”
Reema also lost out on its attempt to recover bid prep and proposal costs. It argued entitlement to such costs in part because the Army made the award to an ineligible small business. But the regulations only require an Agency to confirm a small business concern’s eligibility as of the time of initial offer, and then only through self-certification. And the contracting officer must accept this certification unless s/he has reason to question it or another party challenges it. FAR 19.301-1(b).
Here, by the time the Contracting Officer received Reema’s size protest, the contract had already been awarded. As stated by the Court –
The situation in which plaintiff finds itself – unable to receive an award in its earlier proposal and compelled to seek award, if at all, via a new one – stems not from agency misfeasance, but from the way the regulations deal with the timing of the size determination by the SBA. In particular, plaintiff’s plight, such as it is, derives from the fact that the drafters of those regulations decided to allow agencies to proceed with certain contracts pending the ultimate resolution of the size protest.
And that is exactly what happened here.
Lindsay Simmons is the attorney responsible for the content of this article.