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Decision Not to Reinstate Potential Awardee Was Rational

According to the Court of Federal Claims, a challenge to the government's decision not to reinstate a competitive range offeror whose suspension was terminated prior to award lacked merit because the government's justifications had a rational basis. The protest arose from a solicitation for a contract for base operation and maintenance services with an estimated value of almost $400 million. After the source selection evaluation team recommended the protester for contract award, the Defense Logistics Agency suspended the protester and placed it on the FAR 9.404 Excluded Parties List System based on its affiliation with a contractor that was indicted for conspiracy, major procurement fraud, and wire fraud. As a result of the suspension, the contracting officer excluded the protester's proposal from further consideration. Prior to award, the protester divested itself of ownership interests related to the indicted contractor, and DLA terminated the suspension. However, in a seven-page justification, the CO elected not to reinstate the protester to the competition under FAR 9.405(d)(3), concluding there was insufficient time to seek a revised proposal and the protester did not have a reasonable chance of receiving the award.

Cost and Delay Concerns

The court rejected the protester's argument that the CO's decision lacked a rational basis and was an abuse of discretion. Since time was of the essence to allow a sufficient transition period, delay was a factor and the CO's justification in this regard had a rational basis. In addition, the government did not violate the full and open competition requirement of the Competition in Contracting Act of 1984. There was competition up to the point of the suspension, and both of the competitive range price proposals had been evaluated. The protester did not change its higher price in its final proposal revisions, whereas the awardee's FPR substantially lowered its already lower price. By awarding the contract to the other offeror, the government obtained the lowest possible cost that competition was intended to achieve. In her justification, the CO cited the protester's reliance on the divested entities for performance, resources, and past performance; the protester's higher price; and the protester's challenges in obtaining successful evaluations for a new proposal. These findings provided a rational basis for the CO to conclude the reorganized protester had no reasonable chance of receiving the award. (FAS Support Services, LLC v. U.S., et al., FedCl, 54 CCF 79,393)




(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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