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Space Station Transport Protest Remanded for Clarification

The Court of Federal Claims rejected most of a protester's arguments but withheld judgment on the propriety of a best value trade-off determination, because further government explanation was required. Following an unsuccessful protest before the Government Accountability Office (24 CGEN 112,842), the protester presented numerous challenges to the award of two fixed-price, indefinite-delivery/indefinite-quantity contracts to provide cargo transportation services for the International Space Station. The court found no improprieties in the government's acceptance of an awardee's certificate of compliance with the Space Transportation Policy's United States-made requirements, and with the assignment of a neutral past performance rating and significant weaknesses to the protester because it relied heavily on cost reimbursement subcontracts. The protester also alleged the source selection authority failed to conduct a proper trade-off analysis in selecting a technically superior, but significantly higher-priced, proposal, and the selection involved several unauthorized de facto non-responsibility determinations. At issue was the SSA's statement his trade-off analysis recognized mission suitability was more important than price but a "typical" trade-off analysis was not possible because he "believed there was a low likelihood [the protester] could successfully perform the contract."


The court characterized this statement as "enigmatic" and failed to find clarification in the source selection statement or the SSA's testimony before the GAO. The source selection decision articulated concerns about the nature and degree of risk posed by the protester's proposal and stated serious management risks inherent in the protester's proposal made the higher-priced proposal "superior." The SSA also recognized the high-risk and critical nature of the procurement, which would justify a significant price premium for even marginal differences in risk. The court concluded this could explain the SSA's cursory explanation of his "non-typical" trade-off analysis. However, the SSA's decision arguably questioned the protester's ability to perform the proposed contract, which was a question of contractor responsibility. Authority to make a responsibility determination lies with the contracting officer, or the Small Business Administration if the presumptive awardee is a small business, which the protester represented it was. Although responsibility criteria may be used in a comparative evaluation of proposals, a de facto non-responsibility determination is made if responsibility concerns preclude a comparative or trade-off analysis. The court's inquiry was "whether responsibility concerns so permeated the SSA's decision that it cannot be said the SSA performed a proper trade-off analysis at all." The SSA's GAO testimony only "further muddie[d] the waters," and the court remanded the protest, asking the SSA to provide a sworn statement "making explicit and unambiguous the trade-off analysis that he believed was implicit in his source selection decision." (PlanetSpace Inc. v. U.S., et al., FedCl, 54 CCF 79,319)




(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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