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Injunction Did Not Apply to New Contract Award

The Court of Federal Claims denied a protester's motion to enforce its order enjoining an award because the subsequent award was a new contract or procurement to which the injunction did not apply. The protester sought to enforce the CFC's order requiring the government to determine whether a set-aside was required under the Historically Underutilized Business Zone statute and enjoining an 8(a) sole source award of an information technology support services contract ( 54 CCF 79,272). After the CFC issued its decision, the Small Business Jobs Act of 2010 (PL 111-240) amended language in 15 USC 657a(b)(2)(B) on which the court had relied to hold the HUBZone program took priority over the 8(a) program. The parties disagreed whether a contract awarded in 2011 was a new procurement to which the current law would apply. The protester relied on cases analyzing whether a modification exceeded the scope of the original procurement and argued the two procurements were the same because the contracts' performance work statements were nearly identical.

Relevant Facts

However, determining whether a procurement is the same or different requires consideration of factors in addition to the PWS, and the fact the government continues to require the same or very similar services is not dispositive. Here, the relevant facts supported the conclusion the 2011 contract was a new contract: the interval between the two solicitations was more than two years, which was covered by three bridge contracts; one contract was a time and materials contract and the other was a firm fixed-price contract; and there were differences in the award amount, start date and duration, number and type of personnel required, and location of services. In addition, although the PSWs were very similar, there were sufficient differences in the services to be provided to support the conclusion the two contracts were different. Thus, the injunction, which applied to "the contract at issue," did not apply to the 2011 contract. Moreover, even if the 2011 award had violated the injunction, sanctions were not warranted, because the protester failed to establish by clear and convincing evidence that the government's actions were not taken in good faith and based on a reasonable interpretation of the court's order and existing law. ( Mission Critical Solutions v. U.S., FedCl, 56 CCF 79,768)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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