Judges: Bush
Filed: Sep. 30, 2013
Latest Update: Mar. 28, 2017
Summary: In the United States Court of Federal Claims No. 13-494 C (Filed September 30, 2013) * * * * * * * * * * * * * * * * * JACQUELINE R. SIMS, aka JRS * STAFFING SERVICES, * Pre-Award Bid Protest; * Preliminary Tasks Set Forth in Plaintiff, * the Solicitation As “Special * Contract Conditions” Which v. * Will Occur Before a Task * Order Issues Under the THE UNITED STATES, * Contract Are Not Contract * Performance and Are Not Defendant. * Improper. * * * * * * * * * * * * * * * * * Jacqueline R. Sims
Summary: In the United States Court of Federal Claims No. 13-494 C (Filed September 30, 2013) * * * * * * * * * * * * * * * * * JACQUELINE R. SIMS, aka JRS * STAFFING SERVICES, * Pre-Award Bid Protest; * Preliminary Tasks Set Forth in Plaintiff, * the Solicitation As “Special * Contract Conditions” Which v. * Will Occur Before a Task * Order Issues Under the THE UNITED STATES, * Contract Are Not Contract * Performance and Are Not Defendant. * Improper. * * * * * * * * * * * * * * * * * Jacqueline R. Sims,..
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In the United States Court of Federal Claims
No. 13-494 C
(Filed September 30, 2013)
* * * * * * * * * * * * * * * * *
JACQUELINE R. SIMS, aka JRS *
STAFFING SERVICES, * Pre-Award Bid Protest;
* Preliminary Tasks Set Forth in
Plaintiff, * the Solicitation As “Special
* Contract Conditions” Which
v. * Will Occur Before a Task
* Order Issues Under the
THE UNITED STATES, * Contract Are Not Contract
* Performance and Are Not
Defendant. * Improper.
* * * * * * * * * * * * * * * * *
Jacqueline R. Sims, Lawrenceville, GA, pro se.
Veronica N. Onyema, United States Department of Justice, with whom were
Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director,
Claudia Burke, Assistant Director, Luke A. E. Pazicky, Trial Attorney,
Washington, DC, for defendant.1 Oleta Vassilopoulos and William Robinson,
United States Bureau of Prisons, Washington, DC, of counsel.
________________________
OPINION
________________________
Bush, Judge.
1
/ Until August 27, 2013, counsel of record for the United States was Luke A. E.
Pazicky.
Plaintiff Jacqueline R. Sims, sole proprietor of JRS Staffing Services (JRS),
filed her pro se pre-award bid protest complaint on July 19, 2013. In her amended
complaint filed July 29, 2013, Ms. Sims challenges the terms of Solicitation No.
RFQP05151300011 issued by the United States Bureau of Prisons (BOP or
Bureau). The solicitation requests bids for educational services to be provided at
the Federal Correctional Institution in Texarkana, Texas (FCI Texarkana). In this
protest, plaintiff seeks a permanent injunction and declaratory relief, and alleges
“clear and prejudicial violations of Statute and Regulation in connection with the
Government’s plan to award a requirements contract whereby the Contractor
would be required to commence performance of certain contract obligations prior
to the time that appropriated funds are obligated or a valid order is issued.”
Compl. at 2.
The administrative record (AR) of this procurement was filed on July 29,
2013. Briefing was filed according to an expedited schedule, and plaintiff was
given an electronic filing account to avoid the inefficiencies associated with paper
filings. As discussed below, plaintiff has not shown that the terms of the
solicitation violated procurement laws or regulations or were arbitrary or
capricious. Defendant’s motion for judgment on the administrative record is
therefore granted and plaintiff’s motion for judgment on the administrative record
is denied.
BACKGROUND
I. The Solicitation
Solicitation No. RFQP05151300011, “Education Services at the Federal
Correctional Institution Texarkana, Texas,” was issued by the Bureau on March 18,
2013, AR at 32-76, and was amended on March 26, 2013, id. at 86-87. The
procurement is a 100% set-aside for small business concerns, and is described as
an indefinite delivery/requirements type contract with
firm fixed prices to a responsible entity for the provision
of Spanish GED Instructor, Parenting Services Instructor,
Testing Services Coordinator, Library Technician, and
Lab Monitor for the male offend[e]rs at the Federal
2
Correctional Institution (FCI) and the Federal Prison
Camp (FPC) located in Texarkana, Texas.
Id. at 38. Bidders were to submit their prices for a base year and four option years:
the bidder would first specify a fully-burdened hourly rate for each educator
position; the bidder would then multiply these hourly rates by the estimated
number of annual hours for each position. Id. at 36-37.
In these contracting circumstances, the court notes that the contractor’s
payments under the contract will be determined by the hourly rates set for the
educator positions and the number of hours required by the Bureau for each
position. There is no mandatory minimum number of hours for any of the five
positions identified in the solicitation. See Def.’s Mot. at 3 n.3 (noting that
“requirements contracts do not guarantee a minimum quantity of orders”) (citation
omitted). Contract services would be provided in response to task orders issued
under the contract. AR at 42.
Price appears to be the primary factor which will determine award:
The Government intends to make a single award to a
quoter, pursuant to an affirmative determination of
responsibility, whose quote, conforming to the
solicitation, is determined to be most advantageous to the
Government, considering lowest price.
AR at 57. The bidders were on notice that the government reserved the right to
award without discussions. Id. at 37. The solicitation states that “each initial offer
should contain the offeror’s best terms from a cost or price standpoint.” Id.
The solicitation also contains a variety of terms which discuss the
obligations of the awardee. Of most interest, in light of plaintiff’s protest, is the
description of the procedures for obtaining security clearances for the educators,
and, in particular, the timing of these procedures. On the subject of timing, the
court notes that the solicitation distinguished between the date of contract award
and the effective date of award. AR at 51. Before Amendment 0001 was issued,
the solicitation indicated that the effective date of award would occur
approximately one month after the date of contract award:
3
It is anticipated that a contract award resulting from this
solicitation will be made approximately May 17, 2013
with an anticipated effective date of award of June 17,
2013.
Id.
The solicitation provision governing procedures for obtaining security
clearances for the educators, in its original form, stated that:
The Contractor shall submit required documentation to
initiate security clearance, within 5 calendar days from
effective date of award of the contract and commence full
performance of the services under this contract within 30
calendar days from the effective date of award.
AR at 51. Thus, if the original anticipated contract schedule and the provision
regarding security clearances had not been modified, the following anticipated
contract schedule was described in the solicitation:
Contract Award: May 17, 2013
Effective Date of Contract Award: June 17, 2013
Security Clearance Documents Due: June 22, 2013
Full Contract Performance: July 17, 2013.
Id. One potential bidder, Ms. Sims, immediately requested that the timing of
security clearance procedures be changed.
II. Amendment 0001
Here are the most relevant portions of plaintiff’s request that security
clearance procedures be scheduled differently:
a. Please clarify that the Contractor must submit required
documentation to initiate security clearance upon receipt
of a task order.
4
b. Please consider allowing more time (at least 21 days)
from the receipt of a task order and receipt of the security
clearance forms for the Contractor to submit the required
documentation to initiate security clearance. Time must
be allowed for recruitment/pre-screening, for the
Contractor’s staff to actually complete the forms, and for
the Contractor to review the forms for completeness prior
to submission to the BOP.
c. Please consider deleting in its entirety the requirement
that the Contractor commence full performance of the
services under the contract within 30 calendar days from
the effective date of award. No services are to be
provided under the contract, as services are provided in
accordance with task orders. Also, full performance of
the services under any task order cannot commence until
the Government completes the required security
clearances, and this process often takes 6 to 8 weeks, or
longer to accomplish.
AR at 77-78, 84-85. The Bureau responded by amending the solicitation, and by
simultaneously posting the changed language as a response to Ms. Sim’s
question/request on FedBizOpps, on March 26, 2013:
The date of award will be approximately 60 days prior to
the Effective Date of Award. The successor contractor
will have 30 days from the date of award to provide the
required documentation to initiate security clearances. A
Task Order should be issued by the institution on the
Effective Date of Award. The successor contractor will
be required to begin performance within five (5) days of
the issuing of the Task Order or within five (5) days of
notification of the completion of the background checks,
whichever is later.
Id. at 85 (Response to Bidder Question #11), 87 (Amendment 0001).
5
Thus, per Amendment 0001, the timing of security clearance procedures was
now altered, so that bidders could anticipate the following contract schedule (if no
delays were encountered in the procurement):
Contract Award: May 17, 2013
Security Clearance Documents Due: June 17, 2013
Effective Date of Contract Award: July 17, 2013
Full Contract Performance: July 22, 2013, or
five days after
security clearance
procedures have
been completed,
whichever is later.
AR at 51, 87. Whether the amended terms of the solicitation regarding the timing
of security clearance procedures were an improvement, from plaintiff’s
perspective, it is difficult to say. The court now turns to plaintiff’s continued
efforts to remove any requirement that the awardee initiate security clearance
procedures before a task order issues under the contract.
III. Ms. Sims Challenges the Terms of the Amended Solicitation
On March 26, 2013, the day that Amendment 0001 and the response to Ms.
Sim’s question were posted on FedBizOpps, Ms. Sims provided the Bureau with
this commentary on the changes the BOP had made in the timing of security
clearance procedures for the contract:
Based on the above [changes], if a contract is awarded on
May 1, 2013, the effective date of award would likely be
July 1, 2013 (60 days after the date of award) and a task
order would likely be issued on July 1, 2013 (the
effective date of award). However, based on the above,
the Contractor would be required to initiate security
clearances by June 1, 2013 (30 days from the date of
award). This would be prior to the effective date of
award, and prior to the issuance of a task order.
6
There is no guarantee that FCI Texarkana will actually
issue a task order by/on the effective date of award, or
that a task order will be issued at all. Moreover, even if a
task order is issued by/on the effective date of award,
until an order is actually issued, it is unknown which of
the five (5) services (Spanish GED Instructor, Parenting
Instructor, Testing Services Coordinator, Lab Monitor,
and Library Technician) will be ordered, or what quantity
of sessions will be ordered, which would impact the
personnel selected.
Since the Government contemplates award of an
indefinite delivery/requirements type contract, no
services whatsoever are authorized or will actually be
purchased via the contract, and the initiation of the
security clearances should not be tied to the award date or
the effective award date of the requirements contract.
Please consider amending the solicitation to clarify the
issue of when the Contractor must initiate security
clearances so that it is clear that the successor contractor
will have 30 days from the issuance of a task order to
provide the required documentation to initiate security
clearances.
AR at 88. The contracting officer rejected Ms. Sims’s request for further
alterations to the timing of security clearance procedures:
In response to you[r] question, our thinking was that the
estimated time (60 days) between the date the contract is
signed (date of award) and the date that performance is to
begin (effective date of award) would allow the
contractor time to find prospective employees (estimated
30 days) and time for the BOP to have the background
checks cleared (estimated 30 days). This would help
eliminate a lapse on services being provided from the old
contract to the new which could not be avoided if the
7
new contract was awarded and a task order issued. Your
proposal of the successor contractor having 30 days from
the issuance of a task order to provide the required
documentation to initiate security clearances could lead
to a lapse in performance of 60 days or more from the
end of the old contract to the beginning of the new
contract.
Id. at 89. The email from the contracting officer to Ms. Sims was sent on April 4,
2013.
Proposals responding to the solicitation were due on April 12, 2013. AR at
33. On April 11, 2013, Ms. Sims filed a pre-award protest with the Government
Accountability Office (GAO). Id. Tab 1. Many of the legal theories presented by
plaintiff in this suit were also raised by Ms. Sims before the GAO. See id. Six
bids, including one from JRS, were received by the BOP. Id. at 29; Compl. ¶ 6.
On July 16, 2013, the GAO denied plaintiff’s protest. AR Tab 13; see JRS Staffing
Servs., B-408202, 2013 WL 3725152 (Comp. Gen. July 16, 2013) (GAO
Decision). On July 19, 2013, Ms. Sims filed her pro se bid protest complaint in
this court.
DISCUSSION
I. Pro Se Litigants
The court acknowledges that Ms. Sims is proceeding pro se, and is “not
expected to frame issues with the precision of a common law pleading.” Roche v.
United States Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Pro se plaintiffs
are entitled to a liberal construction of their pleadings. See Haines v. Kerner,
404
U.S. 519, 520 (1972) (requiring that allegations contained in a pro se complaint be
held to “less stringent standards than formal pleadings drafted by lawyers”). Here,
despite the fact that plaintiff’s briefs are set forth with a level of legal
sophistication not normally found in most pro se submissions, the court has
nevertheless examined the complaint and briefs thoroughly to be certain it has
discerned all of plaintiff’s legal arguments.
II. Bid Protest Jurisdiction
8
This court “shall have jurisdiction to render judgment on an action by an
interested party objecting to a solicitation by a Federal agency for bids or proposals
for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a
proposed procurement.” 28 U.S.C. § 1491(b)(1) (2006). The jurisdictional grant is
“without regard to whether suit is instituted before or after the contract is
awarded.” Id. As a threshold jurisdictional matter, however, the plaintiff in a bid
protest must show that it has standing to bring the suit. Info. Tech. & Applications
Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (ITAC); Myers
Investigative & Sec. Servs., Inc. v. United States,
275 F.3d 1366, 1369 (Fed. Cir.
2002) (citation omitted).
III. Standard of Review for Judgment on the Administrative Record
Rule 52.1(c) of the Rules of the United States Court of Federal Claims
(RCFC) provides for judgment on the administrative record. To review a motion,
or cross-motions, under RCFC 52.1(c), the court asks whether, given all the
disputed and undisputed facts, a party has met its burden of proof based on the
evidence in the record. Bannum, Inc. v. United States, 404 F.3d 1346, 1356-57
(Fed. Cir. 2005). The court must make factual findings where necessary. Id. The
resolution of RCFC 52.1(c) cross-motions is akin to an expedited trial on the paper
record. Id.
IV. Bid Protest Review
The court first examines whether the plaintiff in a bid protest has standing to
bring the suit. ITAC, 316 F.3d at 1319. An interested party whose direct economic
interest in the procurement has been prejudiced by the government’s actions has
standing. Id. (citing Am. Fed’n of Gov’t Employees v. United States, 258 F.3d
1294, 1302 (Fed. Cir. 2001) (AFGE)). Bid protest standing is limited to those
plaintiffs who are “‘actual or prospective bidders or offerors whose direct
economic interest would be affected by the award of the contract or by the failure
to award the contract.’” Weeks Marine, Inc. v. United States,
575 F.3d 1352, 1359
(Fed. Cir. 2009) (quoting AFGE, 258 F.3d at 1302). In the context of a pre-award
bid protest, a plaintiff must establish that it has suffered or will suffer a “non-trivial
competitive injury which can be addressed by judicial relief” to meet the economic
prejudice requirement. Id. at 1362.
9
As the United States Court of Appeals for the Federal Circuit has stated, “the
proper standard to be applied [to the merits of] bid protest cases is provided by 5
U.S.C. § 706(2)(A) [(2012)]: a reviewing court shall set aside the agency action if
it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed.
Cir. 2004) (citing Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054,
1057-58 (Fed. Cir. 2000)). Under this standard, a procurement decision may be set
aside if it lacked a rational basis or if the agency’s decision-making involved a
clear and prejudicial violation of statute, regulation or procedure. Emery
Worldwide Airlines, Inc. v. United States,
264 F.3d 1071, 1085-86 (Fed. Cir. 2001)
(citing Impresa Construzioni Geom. Domenico Garufi v. United States,
238 F.3d
1324, 1332-33 (Fed. Cir. 2001)). “The arbitrary and capricious standard applicable
[in bid protests] is highly deferential.” Advanced Data Concepts, 216 F.3d at
1058.
De minimis errors in the procurement process do not justify relief.
Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996) (citing
Andersen Consulting v. United States,
959 F.2d 929, 932-33, 935 (Fed. Cir. 1992)).
The bid protest plaintiff bears the burden of proving that a significant error marred
the procurement in question. Id. (citing CACI Field Servs., Inc. v. United States,
854 F.2d 464, 466 (Fed. Cir. 1988)). Examples of arbitrary and capricious agency
action include “when the agency ‘entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or [the decision] is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.’” Ala. Aircraft
Indus., Inc.-Birmingham v. United States,
586 F.3d 1372, 1375 (Fed. Cir. 2009)
(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29,
43 (1983)) (alteration in original). The court will, however, “uphold a decision of
less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974)
(citation omitted).
“‘If the court finds a reasonable basis for the agency’s action, the court
should stay its hand even though it might, as an original proposition, have reached
a different conclusion as to the proper administration and application of the
procurement regulations.’” Honeywell, Inc. v. United States, 870 F.2d 644, 648
(Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans,
455 F.2d 1289, 1301
10
(D.C. Cir. 1971)). If, on the other hand, the protestor has shown a significant error
in the procurement process, the court must determine whether that error prejudiced
the protestor, because both error and prejudice are required for the protestor to
prevail. Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996)
(citing Data Gen. Corp. v. Johnson,
78 F.3d 1556, 1562 (Fed. Cir. 1996)).
Plaintiff bears the burden of proof to establish prejudice. Bannum, 404 F.3d at
1358. “Prejudice is a question of fact.” Id. at 1353 (citing Advanced Data
Concepts, 216 F.3d at 1057).
V. Standing
Although defendant has not directly challenged Ms. Sims’s standing to bring
this bid protest in either its motion for judgment on the administrative record or its
reply brief, standing is a threshold inquiry that the court must address. ITAC, 316
F.3d at 1319. As stated supra, the protestor must first show that it is an interested
party, i.e., that the protestor is an actual or prospective bidder for the services to be
procured by the government. E.g., Weeks Marine, 575 F.3d at 1359. The court
notes, at the outset, that Ms. Sims is an actual bidder in this procurement and has
won numerous contracts of this type. Ms. Sims has also protested the terms of the
solicitation both at the GAO and in this court. In addition, the court has no reason
to doubt that Ms. Sims would compete for the contract if the terms of the
solicitation were amended to her satisfaction. The court finds that Ms. Sims is both
an actual and prospective bidder, thus satisfying the first element required to
establish standing. See id.
Whether Ms. Sims and JRS have suffered a non-trivial competitive injury,
the second element of pre-award bid protest standing also referred to as prejudice,
id. at 1362, is a closer question. In order to address this inquiry into economic
prejudice, the court must first decide whether plaintiff may introduce a declaration
for the court’s consideration which supports her allegations of prejudice. Although
defendant opposes plaintiff’s attempt to supplement the agency’s record with this
declaration, the government acknowledges that this court has considered such
declarations for the inquiry into prejudice or the weighing of factors relevant to
whether or not injunctive relief should issue in a bid protest. Def.’s Reply at 14-
17. In the circumstances of this case, the court sees no need to prevent plaintiff,
proceeding pro se, from submitting a declaration which will facilitate effective
judicial review of the question of prejudice. See Axiom Res. Mgmt., Inc. v. United
11
States, 564 F.3d 1374, 1380 (Fed. Cir. 2009) (stating that “supplementation of the
record should be limited to cases in which ‘the omission of extra-record evidence
precludes effective judicial review’” (quoting Murakami v. United States, 46 Fed.
Cl. 731, 735 (2000), aff’d,
398 F.3d 1342 (Fed. Cir. 2005))). For this reason, the
court will permit plaintiff to supplement the record in this case with her
declaration.
Defendant’s only stated objective for the prejudice inquiry is to challenge
plaintiff’s showing of “prejudice on the merits.” Def.’s Mot. at 25-26 & n.11.
However, one of the cases relied upon by defendant for its prejudice arguments,
Labatt Food Service, Inc. v. United States, 577 F.3d 1375, 1380 (Fed. Cir. 2009),
addresses prejudice as it affects standing. As this court has often commented, the
inquiry into prejudice has two functions: a first look at prejudice to verify the
protestor’s standing to bring the suit; and, a second look at prejudice to determine
whether or not any errors proved by the plaintiff have been prejudicial to the
protestor so as to justify relief from this court. See, e.g., Linc Gov’t Servs., LLC v.
United States,
96 Fed. Cl. 672, 694-97 (2010) (discussing the two distinct analyses
of prejudice required in bid protest cases). Notwithstanding Labatt’s discussion of
prejudice in the context of standing, both parties agree that the proper inquiry into
prejudice and standing, in the pre-award context, is provided by Weeks Marine.2
Pl.’s Mot. at 7; Def’s Mot. at 25; Def.’s Reply at 11 & n.3.
Several parallels between Weeks Marine and this protest are apparent. In
Weeks Marine, the protestor alleged that the challenged solicitation was irrational
and that the company was not built to compete under such terms. 575 F.3d at
1360. Further, the protestor asserted that the solicitation was an “unauthorized
contract vehicle that violated procurement statutes and regulations and lacked a
2
/ It should be noted that Labatt discusses post-award bid protest standing, not pre-award
bid protest standing. 577 F.3d at 1378, 1380 (applying the “substantial chance” test for
post-award bid protest standing). Defendant has cited one pre-award protest decision issued by
this court which, in determining whether the protestor had been prejudiced and thus had standing
to protest the terms of a solicitation, applied both the Weeks Marine non-trivial competitive
injury standard, 575 F.3d at 1362, and the Labatt “disparate treatment or particularized harm”
standard, 577 F.3d at 1380. See ICP Northwest, LLC v. United States, 98 Fed. Cl. 29, 35-38
(2011). The court believes that Weeks Marine is the Federal Circuit decision most on point for
the standing inquiry here. The court acknowledges, however, that under the Labatt test for
particularized competitive harm, plaintiff would be far from certain to possess standing to bring
her suit.
12
rational basis.” Id. at 1361 (internal quotations omitted). Ms. Sims makes similar
allegations here.
More specifically, the protestor in Weeks Marine established that the
challenged solicitation, were the procurement to go forward, would likely have a
direct monetary impact on the company’s bottom line. Id. at 1362. The Federal
Circuit concluded that the protestor had “a definite economic stake in the
solicitation being carried out in accordance with applicable laws and regulations.”
Id. Here, Ms. Sims, too, has persuasively described the significant economic
impacts of the challenged solicitation’s terms on her business model. See Pl.’s
Mot. at 8; Pl.’s Reply at 19-20; Sims Decl. ¶¶ 10-28.
In similar circumstances, the Federal Circuit found that the protestor had
established a “non-trivial competitive injury which can be redressed by judicial
relief.” Weeks Marine, 575 F.3d at 1362. Here, although defendant contends that
Ms. Sims has “fail[ed] to substantiate any of the various injuries hypothesized in
her motion,” Def.’s Mot. at 25, the court must disagree. Under Weeks Marine,
plaintiff has demonstrated a non-trivial competitive injury and standing to bring
her bid protest.
VI. Analysis of the Merits
A. Overview
Plaintiff presents an informative, if somewhat argumentative, overview of
the parties’ positions in this case:
[I]t is clear that the Agency’s position is that the
requirement for the Contractor to provide the very
personnel listed in the contract line items, as well as the
requirement for the Contractor to perform the [Statement
of Work (SOW)] tasks related to the background checks
simply represents the cost of doing business with the
BOP, as well as start-up costs that are the Contractor’s
responsibility. . . . However, it is Plaintiff’s position that
the requirement for the Contractor to furnish the very
personnel listed in the contract line items, as well as the
13
requirement for the Contractor to perform the SOW tasks
related to the background checks constitutes performance
of [contract] obligations, for which a valid, funded order
is required.
Pl.’s Mot. at 2. In other words, the primary, if not the sole, dispute here is whether
certain start-up activities for the contract at FCI Texarkana are properly viewed as
conditions of contract performance or actual contract performance. Both parties
cite terms of the solicitation as support for their positions in this litigation.3
Compare AR at 52 (describing security clearance requirements as a “condition of
the contract”), and id. at 51 (setting forth the initial schedule for security clearance
procedures under the solicitation section titled “Special Contract Conditions”),
with id. (setting forth the initial schedule for security clearance procedures within a
solicitation sub-section titled “Performance,” which also describes the base year
and option years schedule of contract performance), and id. at 87 (Amendment
0001) (setting forth the revised schedule for security clearance procedures and
noting that the solicitation sub-section thus revised is titled “Performance”).
As explained below, the court must agree with defendant that all obligations
of the awardee to comply with security clearance procedures before a task order
issues under the contract are properly viewed as conditions of contract
performance, not actual contract performance. The court agrees with plaintiff that
these conditions of contract performance have some cost, and that there is some
risk that these costs will not be recouped by the awardee under the requirements
contract vehicle utilized by the Bureau. The court also agrees with plaintiff that
there are alternative ways of structuring a procurement which do not impose as
great a risk of loss on the contractor. Nonetheless, “[i]t is within the discretion of
an agency to offer for competition a solicitation that imposes maximum risks upon
the vendor and minimum burdens on the agency.” GAO Decision, 2013 WL
3725152, at *2 (citing TN-KY Contractors, B-291997.2, 2003 CPD ¶ 91,
2003 WL
21019207, at *2 (Comp. Gen. May 5, 2003)).
B. Special Contract Conditions
3
/ Although plaintiff frequently refers to the security clearance requirements at issue in
this suit as Statement of Work (SOW) requirements, many of the key solicitation terms regarding
these requirements are found in a different section of the solicitation titled “Special Contract
Conditions.” See AR at 51-52, 87.
14
According to plaintiff, the solicitation requires completion of the following
tasks before any task order is issued:
a) provide employees who are reasonably certain to be
able to successfully complete the security scrutiny;
b) ensure that the employees submit the required
information and complete the necessary actions in a
timely manner to complete their investigations as
expeditiously as possible;
c) pre-screen the employees, and,
d) facilitate and coordinate the delivery of the employees
to FCI Texarkana for fingerprinting, drug testing, and for
the required security orientation.
Pl.’s Mot. at 5. Aside from the delivery of employees for the required security
orientation, which appears to be an activity that occurs after a task order issues and
is compensated at contract rates, see AR at 41, the court agrees that the awardee is
obliged to perform many, if not all, of these start-up tasks described by plaintiff as
a condition of the contract. The court does not agree with plaintiff, however, that
these start-up tasks constitute contract performance.
Plaintiff’s first argument regarding these start-up tasks is that because JRS
would necessarily recruit and hire staff before it could submit security clearance
documentation, plaintiff would be required to “perform” under the contract before
the actual issuance of a task order, if JRS is awarded the contract. Pl.’s Mot. at 10-
11; see also Pl.’s Reply at 5-7. Plaintiff attempts to draw a parallel between the
individual line items in the contract (one for each educator position), and the
recruitment and hiring of the educators. See Pl.’s Mot. at 11. However, the line
items in the contract are for hours of sessions provided by each of the educators,
not for the mere availability of the educators for FCI Texarkana. See AR at 39
(specifying the estimated session hours required of each educator position); see
also Def.’s Mot. at 16 (noting that the “Description of Services” section of the
SOW describes the sessions to be provided by the educators, whereas the
requirements for security clearances are described in the “Institution Security”
section of the SOW). There is no specific payment for the recruitment and hiring
of educators mentioned in the solicitation – a bidder must recoup such costs, if
services are ordered under the contract, in its fully-burdened hourly rate for each
15
session provided to the inmates by each educator. AR at 37. Thus, according to
the express terms of the solicitation, none of the start-up tasks identified by
plaintiff constitute compensable performance of the contract.
Plaintiff appears to argue that because its costs for recruitment and hiring
must necessarily be included in its fully-burdened hourly rates of the educators,
recruitment and hiring activities and expenditures must constitute contract
performance. Pl.’s Mot. at 11-13. Plaintiff, however, fails to cite any authority for
the proposition that start-up tasks are converted into contract performance merely
because contractors are assumed to tailor their bids on fixed-price contracts so as to
make a profit. Pursuant to the express terms of the solicitation, the awardee would
not begin performance until a task order has issued – under these terms, start-up
activities which would occur before a task order issues are necessarily merely
conditions of contract performance, not actual contract performance. See GAO
Decision, 2013 WL 3725152, at *1 (stating that “it is not improper for an agency to
expect a vendor to incur start-up costs in advance of a task order being issued
under [a] requirements contract” (citing Special Operations Group, Inc.,
B-256312, 94-1 CPD ¶ 350,
1994 WL 258299, at *1-2 (Comp. Gen. June 6,
1994))).
C. Alleged Statutory and Regulatory Violations
Plaintiff has failed to demonstrate that the solicitation requires contract
performance from the awardee prior to the issuance of a task order. The
solicitation, instead, requires the awardee to incur various start-up costs as a
condition of the contract. This holding undermines each of plaintiff’s allegations
that certain procurement regulations or statutes that address the timing of contract
performance and expenditures have been violated by the BOP in the FCI
Texarkana solicitation.
16
Nonetheless, the court will briefly address plaintiff’s contentions in this
regard.4 First, plaintiff lists certain provisions of the Federal Acquisition
Regulation (FAR),5 and states that
§ 16.503, § 52.216-18, § 52.216-19, and § 52.216-21 . . .
do not authorize the Government to require the
Contractor to perform tasks and obligations that are
delineated in the SOW of the master requirements, so that
the Contractor may get some kind of “head start” in
performing work pursuant to a task order that may never
be issued.
Pl.’s Mot. at 15-16. Plaintiff’s general thesis is that these FAR provisions preclude
contract performance before a task order issues in this type of contract. See
Compl. ¶ 54; Pl.’s Reply at 7-9.
Because the court has found that the solicitation in this case has not required
the awardee to commence performance before the issuance of a task order, nothing
in the above-mentioned regulations cited by plaintiff is relevant to the dispute in
this matter. In addition, the cases cited by plaintiff in her reply brief which
generally describe the duties of the government in requirements contracting are
similarly inapposite. See Pl.’s Reply at 10 (citing Rumsfeld v. Applied Cos., 325
F.3d 1328, 1335 (Fed. Cir. 2003); Technical Assistance Int’l., Inc. v. United States,
150 F.3d 1369, 1371-72 (Fed. Cir. 1998)). Although plaintiff contends that the
start-up tasks are burdensome and impose an impermissible risk to the awardee in
this procurement, id. at 12-13, the court finds nothing in the regulations or caselaw
cited by plaintiff to support this contention. Plaintiff’s allegations of regulatory
violations fail because they are based on a misreading of the solicitation, which
does not require contract performance before a task order issues under the contract,
4
/ Although the court would normally limit its inquiry to the arguments presented in
plaintiff’s motion and reply brief, because plaintiff is proceeding pro se the court has also
considered the arguments made in the complaint. None of plaintiff’s arguments alleging
statutory or regulatory violations is persuasive.
5
/ All citations to the FAR are to the 2012 version of Title 48 of the Code of Federal
Regulations.
17
and because these regulations do not operate to limit the risk that may be allocated
to the contractor for the start-up activities required in this procurement.
Next, plaintiff turns to FAR 52.232-18, the “Availability of Funds” clause
incorporated in the solicitation. Pl.’s Mot. at 16-18. Again, this alleged regulatory
violation is premised on plaintiff’s assertion that the solicitation requires that the
awardee commence performance before a task order has issued or, more
specifically, before certain notifications have been received from the contracting
officer:
the terms of the solicitation violate the regulations at
§ 52.232-18, as well as the regulations at § 32.703-2(c),
which prohibit the Government from accepting any
services under a contract conditioned upon the
availability of funds until the Contracting Officer has
given the Contractor notice, to be confirmed in writing,
that funds are available.
Id. at 17-18. The same argument is elaborated upon in plaintiff’s reply brief:
[T]he BOP has included in the solicitation express terms that
require the Awardee to commence performance before the
Government obtains and obligates funds, and before the
Government provides the Awardee with the required, written
notice of funds availability. This is a clear and prejudicial
violation of FAR § 52.232-18, which requires the Government
to provide the Awardee notice of funds availability, and it also
violates FAR § 32.703-2(c), which bars the Government from
accepting any services unless and until the required notice has
been provided.
Pl.’s Reply at 16.
This argument fails for three principal reasons. First, as plaintiff concedes,
the solicitation does not specify when a funding notice is to be provided to the
awardee. Pl.’s Mot. at 17. Thus, there can be no facial violation of FAR
52.232-18 for the simple reason that the solicitation does not indicate that any
18
contract performance will occur before a notice of funding availability is sent by
the contracting officer to the contractor.
Second, plaintiff’s basic assumption that commencement of contract
performance occurs the moment plaintiff initiates start-up tasks of recruitment and
hiring, see Pl’.s Mot. at 17 (asserting that “the administrative record demonstrates
that the Plaintiff would be required to perform key SOW tasks that are included in
Plaintiff’s unit pricing before appropriated funds are available”), is contrary to the
terms of the solicitation, as noted supra. Plaintiff’s theory that the “Availability of
Funds” clause is violated by the security clearance conditions imposed on the
contractor is premised on that faulty assumption:
[R]eceipt of the Government’s notice of funds
availability is a condition precedent to the Contractor’s
ability to perform. Moreover, in the absence of a valid,
funded order, Plaintiff would have no basis or legal
authority to perform any SOW tasks.
Id. Here, however, the court has found that the awardee would not be required to
begin contract performance before a task order (and, presumably, a notice of funds
availability) has issued. The violation of the “Availability of Funds” clause alleged
by plaintiff, and the violation of the FAR sections cited by plaintiff, will not occur
because the conditions of the contract that require the awardee to begin certain
start-up tasks will not trigger contract performance before a task order has issued.6
Third, as defendant notes, the “Availability of Funds” clause addresses the
timing of the obligation of funds by the government. Def.’s Mot. at 19-21. As
plaintiff concedes, the government will not obligate funds under the contract until a
task order actually issues. Pl.’s Mot. at 13 (citations omitted). Defendant confirms
that plaintiff’s point of concession is correct as a matter of law. Def.’s Mot. at 19-
21. The start-up tasks related to security clearance procedures, which will occur
6
/ The court need not address plaintiff’s contention, unsupported by any authority, that
the “Availability of Funds” clause operates to the benefit of contractors. Compl. ¶ 69; Pl.’s Mot.
at 17.
19
before a task order issues, will not obligate funds of the BOP; thus, no violation of
the “Availability of Funds” clause is evident in the terms of the solicitation.7
Finally, plaintiff’s opening brief presents a cursory one-sentence comment
implying, perhaps, that the Solicitation violates the Anti-Deficiency Act, 31 U.S.C.
§ 1341 (2006). See Pl.’s Mot. at 18 (“These terms are also tantamount to the BOP
encouraging the Contractor to perform certain key SOW tasks on a voluntary basis,
which would be a violation of [the] Anti-Deficiency Act, 31 U.S.C. [§] 1341.”).
Having reviewed the complaint, plaintiff’s motion, and plaintiff’s reply brief, the
implied alleged violation might concern certain provisions of § 1341, but also
might concern 31 U.S.C. § 1342 (2006), a separate but related provision of the Act.
To fully address plaintiff’s legal theories, however cryptically presented, the court
will consider both statutes.
If plaintiff’s argument focuses on § 1341, the alleged violation would consist
of the inappropriate timing of obligations or contracting in advance of funding
availability or appropriations. If, on the other hand, plaintiff’s argument focuses
on § 1342, the alleged violation would consist of the government’s inappropriate
acceptance of voluntary services. The court considers each statute in turn.
Section 1341 states in relevant part that:
An officer or employee of the United States Government
or of the District of Columbia government may not–
(A) make or authorize an expenditure or obligation
exceeding an amount available in an appropriation or
fund for the expenditure or obligation;
(B) involve either government in a contract or obligation
for the payment of money before an appropriation is
made unless authorized by law . . . .
7
/ Neither has FAR 32.703-2(c), which precludes the acceptance of “services under a
contract” by an agency before a notice of funding availability has been provided to the
contractor, been violated here. As defendant argues and as the court has held, the start-up tasks
related to security clearances which condition contract performance are not contract services.
Def.’s Mot. at 21-22. Thus, the BOP will not accept “services under a contract” at the time these
start-up tasks are accomplished by the awardee.
20
31 U.S.C. § 1341(a)(1)(A)-(B). In her complaint, plaintiff contends that “[w]hen
awarding a contract before funds are available, FAR § 52.232-18 can protect
the Government from violating the Anti-Deficiency Act, provided that the
Government does not encourage Contractor performance, or accept any services
before appropriated funds are obligated.” Compl. ¶ 68. In her reply brief, plaintiff
states that “[t]he terms of the solicitation that require and compel the Awardee to
perform SOW tasks before such time as the BOP obligates funds, and before such
time as the BOP is legally obligated to pay for the services or perform the contract
is a clear and prejudicial violation of 31 U.S.C. § 1342.” Pl.’s Reply at 18 (citing
Cessna Aircraft Co. v. Dalton, 126 F.3d 1442 (Fed. Cir. 1997)). Defendant
explains, however, that no funds have been obligated by the solicitation’s
conditions regarding security clearance start-up tasks which must occur before a
task order issues under the contract. Def.’s Mot. at 22-23. The GAO came to the
same conclusion, and the court must agree. See GAO Decision,
2013 WL
3725152, at *2 (“Since the protester’s allegations do not demonstrate that the
agency is making an award in excess of an available appropriation, they provide no
basis to question the agency’s actions.”). Plaintiff has not shown any violation of
§ 1341(a)(1)(A).
Defendant next turns to the question of whether the BOP has conceivably
violated § 1341(a)(1)(B) by involving the United States in a “contract or obligation
for the payment of money” prior to the availability of appropriated funds. Because
this requirements contract with no minimum does not obligate funds until a task
order issues, defendant argues that the contract cannot violate § 1341(a)(1)(B)
during the start-up period. Def.’s Mot. at 23. The court must agree. As plaintiff
has conceded, “because there is no minimum amount, or any amount of services
that the Government is legally required to order, [this] requirements contract is
essentially a ‘contract to potentially contract.’” Pl.’s Mot. at 14. During the start-
up period, no obligation for the payment of money (before the availability of an
appropriation) occurs, and the timing provisions of § 1341(a)(1)(B) remain
inviolate. Plaintiff has not met her burden to show that the start-up tasks required
by the solicitation violate § 1341(a)(1)(B).
As for § 1342, this provision of the Anti-Deficiency Act states in relevant
part that:
21
An officer or employee of the United States Government
or of the District of Columbia government may not
accept voluntary services for either government . . . .
31 U.S.C. § 1342. Plaintiff complained to the GAO that the start-up tasks required
of the awardee in this procurement constituted voluntary services in violation of
the Anti-Deficiency Act. AR at 138. The GAO soundly rejected this argument:
“Where, as here, however, services are furnished pursuant to a formal contract,
they are not voluntary within the meaning of the Antideficiency Act.” GAO
Decision, 2013 WL 3725152, at *3 (citing 31 U.S.C. § 1342; Gen. Servs. Admin.;
Real Estate Brokers’ Comm’ns, B-291947,
2003 WL 21947188 (Comp. Gen. Aug.
15, 2003); Fed. Trade Comm’n, A-23262, 7 Comp. Gen. 810, 811,
1928 WL 1724
(Comp. Gen. June 26, 1928)).
Plaintiff does not challenge the GAO’s determination that services furnished
in the context of a formal contractual relationship are not voluntary. Indeed,
plaintiff concedes that “the Awardee will be performing the SOW tasks of
recruiting, hiring, and prescreening employees, as well as submitting completed
applications for the background checks not of its own free will, but as a direct
result of the BOP’s express demands.” Pl.’s Reply at 17. Plaintiff argues,
nonetheless, that the start-up tasks are indeed voluntary in nature because they will
“be provided 60 days before [the BOP] hopes to obtain and obligate appropriated
funds.” Id. at 18. Plaintiff cites to no authority holding that the start-up conditions
of a contract are tantamount to voluntary services which would violate § 1342. To
the extent that plaintiff argues that the solicitation’s security clearance procedures
that condition contract performance before a task order issues are “voluntary,” so
as to violate § 1342, see Compl. ¶ 70; Pl.’s Mot. at 18; Pl.’s Reply at 17-18, the
court agrees with the reasoning of the GAO and rejects this argument.8 In sum, the
court finds no violation of statute or regulation in the arguments presented by
plaintiff in this suit.
8
/ Defendant also argues that the start-up tasks at issue in this suit cannot be considered
to be “voluntary services,” because they are not contract services under the solicitation. Def.’s
Mot. at 24 n.10. The court need not decide whether defendant’s contention has merit, because it
is clear that these start-up tasks do not constitute “voluntary services” that might violate § 1342.
See Def.’s Reply at 10 (noting that the GAO has “found that formal contracts by their nature
contain mutually binding rights and obligations, which render any services that are provided
under them required, not voluntary”).
22
D. Allegation of Arbitrariness
Plaintiff has also alleged that the solicitation terms are arbitrary and
capricious, but did not present specific arguments in this regard until she filed her
reply brief. To the extent that plaintiff has attempted to show that the start-up tasks
of the contract lack a rational basis, Pl.’s Reply at 2-3, the court must disagree.
Continuity of educational services in a correctional facility provides a rational
basis for requiring the awardee to prepare its personnel for performance before a
task order issues under the contract. See AR at 29 (explaining why a “lapse in
service would be detrimental to the BOP”). Although some bidders may be
discouraged by the conditions set forth in the solicitation, and other scheduling
alternatives might have been available to the BOP, the court does not find the
special contract conditions set forth in the solicitation to be irrational. As the
Federal Circuit has held,
the minutiae of the procurement process in such matters
as . . . the timing of various steps in the procurement . . .
involve discretionary determinations of procurement
officials that a court will not second guess.
E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (citing Widnall
v. B3H,
75 F.3d 1577, 1582 (Fed. Cir. 1996); Grumman Data Sys. Corp. v.
Widnall,
15 F.3d 1044, 1048 (Fed. Cir. 1994); Lockheed Missiles & Space Co., Inc.
v. Bentsen,
4 F.3d 955, 958 (Fed. Cir. 1993)).
CONCLUSION
Ms. Sims contends that the allocation of risk in the solicitation regarding
start-up tasks is improper, but has failed to muster legal argument which meets her
burden to show that the solicitation is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.”9 5 U.S.C. § 706(2)(A).
9
/ In her reply brief, plaintiff argues that the requirements contract set forth in the
solicitation contains an illusory promise from the BOP, so that no enforceable contract will have
been formed at the time the start-up tasks must be accomplished by the awardee. Pl.’s Reply at
14-15. Defendant persuasively rejects this general attack on the validity of requirements
contracts, and notes that mutuality of obligation exists because the government promises the
continue...
23
This court has noted, adopting principles stated in GAO decisions, that such
allocations of risk in solicitations are unobjectionable:
In other words, the “mere presence” of risk in a
solicitation does not render it inappropriate or improper.
Katmai Info. Techs., LLC, B-406885, 2012 CPD ¶ 277, at
*4 (Comp. Gen. Sept. 20, 2012). To the contrary, “[r]isk
is inherent in most type[s] of contracts, particularly
fixed-price contracts,” Supreme Foodservice GmbH, B-
405400.1, 2011 CPD ¶ 244, at *7 (Comp. Gen. Oct. 31,
2011), and an agency retains the discretion “to offer for
competition a proposed contract that imposes maximum
risks on the contractor and minimum burdens on the
agency[.]” Katmai Info. Techs., LLC, B-406885, 2012
CPD ¶ 277, at *4. It is the offeror’s responsibility to
“account for [such risk] in formulating its proposal.” Id.
FirstLine Transp. Sec., Inc. v. United States, 107 Fed. Cl. 189, 208 (2012)
(alterations in original). Under the standard of review required here, the court must
deny this pre-award bid protest. Because plaintiff’s bid protest has not succeeded
on the merits, the court need not consider whether plaintiff has proved prejudicial
error on the part of the government and need not inquire further into the factors
that might justify injunctive relief.
Accordingly, it is hereby ORDERED that
(1) Plaintiff’s Motion for Judgment on the Administrative Record, filed
August 12, 2013, is DENIED;
(2) Defendant’s Motion for Judgment on the Administrative Record, filed
August 26, 2013, is GRANTED;
9
/ ...continue
awardee the “exclusive right to fill orders under the resulting contract.” Def.’s Reply at 9
(citations omitted).
24
(3) Plaintiff’s Motion to Supplement the Administrative Record, and to
Add to the Court’s Record, filed September 3, 2013, is GRANTED;
(4) The Clerk’s Office is directed to ENTER final judgment in favor of
defendant, DISMISSING the complaint with prejudice; and
(5) Each party shall bear its own costs.
/s/Lynn J. Bush
LYNN J. BUSH
Judge
25
