Tuesday, January 8, 2013


Judge Susan Braden of the Court of Federal Claims (COFC) reminds us in a recent opinion of the difference between protests in that court based on a regulatory or procedural violation and award decisions challenged on the grounds that an agency acted in an arbitrary or capricious manner.  The protest before her involved a design-build contract for medical facilities for the Army.  After a lengthy opinion, she granted a preliminary injunction against the Army.

In the process of reaching her decision, she noted that the Court of Appeals for the Federal Circuit (CAFC) has emphasized that "best value" solicitations afford the contracting officer a great deal of discretion so that relative merit is primarily a matter of administrative discretion not to be interfered with by the court.  However, that discretion does not allow the procuring agency the liberty to deviate from the requirements of the solicitation and ignore rules in the Federal Acquisition Regulation (FAR).  Moreover, the agency must not ascertain best value in a manner that is arbitrary.  Finally, discretion does not allow the court to overlook the fact that the administrative record does not contain sufficient information on which an agency could even make a rational decision.

When a bid protest is based on a regulation violation or deviation from the solicitation (illegality), the protester must show a clear and prejudicial violation of the regulation or solicitation provision.  The burden is even greater when the procurement is best value.  In deciding whether an agency has complied with the regulation on best value, the court may overturn the agency's decision if it is not grounded in reason.  The inquiry becomes whether the agency provided a coherent and reasonable explanation of its exercise of discretion.

Alternatively, if the award decision is challenged on the grounds that an agency has acted arbitrarily or capriciously, the court intervenes only in very limited circumstances.  An agency must entirely fail to consider an important aspect of the procurement.  Or, it must offer an explanation for its decision that runs counter to the evidence before the agency or render an implausible explanation for its decision.

In the case before her, Judge Braden sided with the protester because the administrative record evidenced violations of the Competition in Contracting Act (CICA) and FAR.  The agency decision contained no documents showing that the Army even considered the protester's "betterments" and omitted any discussion of their merits.  This, she found, was arbitrary. and prejudicial to the protester.  She also was completely put off by the paucity of the administrative record which failed to contain worksheets evidencing whether and how the Army evaluated the offerors.

In granting injunctive relief, Judge Braden was not persuaded by the Army's argument that an injunctive would imperil the Army's mission.  The harm to the Army was self-inflicted.

A word to the wise.  Follow FAR.  Follow the solicitation.  Document, document, document.  Government lawyers:  keep looking over the contracting officer's shoulder and put your foot down.  Promptly redo things before there is protracted litigation which threatens the mission.

bill@spriggslawgroup.com           www.spriggslawgroup.com

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