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Injunction Against Award for Tanker Maintenance Vacated

The Court of Appeals for the Federal Circuit reversed the judgment in a successful protest before the Court of Federal Claims because the government's price-realism analysis was not arbitrary and capricious, and the CFC's contrary determination was not within its scope of review under the Administrative Procedure Act standard. The protest concerned the award of a contract to perform maintenance on the aging fleet of KC-135 Stratotanker aircraft. The government affirmed the award after taking corrective action consisting of price-realism and risk analyses in response to a successful Government Accountability Office protest. The GAO denied a second protest, but the CFC concluded the price-realism analysis was "fatally flawed" because the request for proposals did not explicitly address the problem of aging aircraft.

Impermissible Substitution


The Federal Circuit found the government did consider the aging aircraft issue. Because the impact of aging aircraft on future requirements was unknown, the government decided the best approach was to require proposals based on a three-tier work package that included basic maintenance, additional discrete items, and unexpected work. This determination was well within the government's discretion, and the CFC's duty was to determine whether the price-realism analysis was consistent with the RFP's evaluation criteria. Instead, the CFC's "attempt to rewrite the RFP to account for the impact of aging aircraft in the manner the court preferred went beyond the scope of the court's review, and amounted to an impermissible substitution of the court's judgment for the agency's with regard to how the contract work should be designed." The government did not "entirely fail[] to consider an important aspect of the problem" (Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 US 29), and its price-realism analysis based on the work package was not arbitrary and capricious. The Federal Circuit vacated the CFC's injunction against proceeding with the award and the protester's award of bid preparation and proposal costs. (Alabama Aircraft Industries, Inc. v. U.S., et al., CA-FC, 53 CCF 79,212)










 






 

 

(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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