NANCY B. FIRESTONE, Senior Judge.
This post-award bid protest comes before the court on the parties' cross motions for judgment on the administrative record pursuant to Rule of the Court of Federal Claims ("RCFC") 52.1. Also pending is the second motion of plaintiff Jacqueline R. Sims d/b/a JRS Staffing Services ("JRS" or "Ms. Sims") to supplement the administrative record. At issue is a Bureau of Prisons ("BOP") small business set-aside contract for a horticulture instructor at the Federal Prison Camp ("FPC") in Alderson, West Virginia. JRS was denied the contract after the contracting officer ("CO") determined JRS was "nonresponsible" because JRS lacked capacity to perform under the terms of the contract. Pursuant to FAR § 19.602-1(a)(2), the CO referred the matter to the Small Business Administration ("SBA").
Both agencies' findings were based primarily on the fact that JRS and its affiliate, JRS Management, also owned and operated by Ms. Sims, had a history of submitting bids on government contracts, but being unable or unwilling to perform once the contracts are awarded. On several occasions, the BOP had offered Ms. Sims a contract for instruction of various classes in federal prisons, but plaintiff chose not to accept the contract in favor of another opportunity or was unable to meet the contract requirements in a timely manner. Of particular concern was the fact that Ms. Sims had several times been awarded a contract to teach classes in BOP facilities, but then was unable to secure a qualified instructor. For example, Ms. Sims accepted a contract on behalf of her other company, JRS Management, to provide culinary arts instruction at a federal prison in Miami, but was unable to furnish a suitable instructor for the base contract period, and the BOP did not exercise its option to renew the contract. On another occasion, JRS informed the agency that it intended to accept another BOP contract, but JRS was unable to secure insurance, as required by the solicitation, in time to perform. The agency was forced to withdraw the offer and seek another bidder after the contract was scheduled to begin, causing a suspension of educational programing.
JRS does not deny these facts but claims that all of these issues can be excused. JRS argues that both the SBA and BOP failed to consider contracts which JRS and its affiliates successfully completed, and thus it challenges both the BOP's determination of nonresponsibility and the SBA's denial of a COC. JRS seeks an injunction compelling the BOP to reinstate JRS in competition for the award and prohibiting the BOP and SBA from considering JRS's history of not accepting offers in making their responsibility determinations.
For the reasons that follow, JRS's motion for judgment on the administrative record is
On September 18, 2014, the BOP issued RFQP01011400015 ("the solicitation") for a single indefinite-delivery requirements contract for the provision of horticulture instructor services at FPC Alderson in West Virginia. BOP Administrative Record ("BOP AR") 48-85. The solicitation was issued as a total small business set aside.
The solicitation required that the horticulture instructor have a "degree in horticulture or agriculture," and stated that "[t]eaching experience in a correctional environment is preferred, although not required." BOP AR 50. Under the terms of the solicitation, the contractor would be required to provide: "six (1) hour sessions per day, 5 days per week. . . . The estimated total number of sessions per year is 1470." BOP AR 49-50. The solicitation further provided that that instructor must be available immediately to "commence full performance of this contract on the effective date of award of this contract." BOP AR 61. The contract would be awarded to the offeree, "pursuant to an affirmative determination of responsibility, whose quotation, conforming to the solicitation, is determined to be most advantageous to the Government, considering technical capability, past performance, and price." BOP AR 65.
On October 17, 2014, JRS submitted a proposal in which JRS acknowledged that it had "not been awarded any contracts that are of a related nature, size, and scope." BOP AR 94. With respect to an eligible instructor, JRS stated that it intended to offer Charles Arbaugh, the incumbent horticulture instructor and one of the two other offerors, a contract to perform the work if JRS was awarded the contract. BOP AR 93. JRS stated that should Mr. Arbaugh decline to work for JRS, JRS had another candidate with a bachelor's degree in horticulture and significant work experience on dairy farms who could serve as the horticulture instructor. BOP AR 91. This candidate was not a current JRS employee.
On January 29, 2015, the CO issued a Determination and Findings report of nonresponsibility with regard to JRS. The CO found that JRS's quotation was "technically acceptable," and gave JRS a neutral past performance rating "due to the absence of past performance information provided within related nature, size, and scope of the solicitation requirement." BOP AR 160. JRS's base year bid of $41,600 was the lowest price bid received.
First, in 2012, JRS had failed to accept an award or commence services for a contract it was awarded to provide a cosmetology instructor at the FPC Alderson, leading to a halt in cosmetology instruction in that prison. The BOP offered the award of the contract to JRS on March 30, 2012, with an effective date of April 9, 2012. BOP AR 217. However, Ms. Sims was unable provide proof of insurance as required by FAR § 52.228-5. On April 2, 2012, Ms. Sims informed the contracting officer that she would not be able to obtain proof of insurance until the following week. BOP AR 215. The CO replied that the cosmetology program could not resume until Ms. Sims provided proof of insurance and returned a signed SF-1449 form. BOP AR 214-15. On April 13, 2012, four days after the effective contract date and one day before performance was supposed to commence, Ms. Sims informed the contracting officer that she was unable to secure private insurance, but would instead be applying for workers' compensation coverage under a state fund and "it will take about two weeks to secure the policy." BOP AR 213. In response, the CO reminded Ms. Sims that "the cosmetology program at FPC Anderson is currently halted," and noted that even aside from the issue with insurance, Ms. Sims had not identified individuals she would hire to implement the contract.
Second, the CO identified a contract to provide a culinary arts instructor at Federal Correctional Institution ("FCI") Tallahassee for which the BOP offered an award to JRS but again was forced to withdraw the offer. BOP AR 219-22. The contract had an effective date of October 20, 2014. BOP AR 220. On September 29, 2014, sent the CO on that contract a letter indicating that JRS was unable to guarantee that it could provide an instructor with the requisite years of experience for the entire duration of the contract. BOP AR 219. The CO replied that the BOP would not lower the required experience level for an instructor, and on September 30, 2013, asked that Ms. Sims email him back by close of business that day if she was still interested in the contract. BOP AR 220. Ms. Sims did not reply until October 3, 2014, explaining it had been "a very busy time of year" and she had not had time to read the CO's email. BOP AR 223. The CO informed Ms. Sims that the BOP had awarded the contract to the next lowest bidder.
Third, the CO noted that another entity operated by Ms. Sims, JRS Management, accepted a contract to provide culinary arts instruction at FCI Miami in 2011 but failed to provide any instruction. BOP AR 103-04. As the Federal Circuit explained, the contract JRS Management accepted had an effective date of August 8, 2011, but Ms. Sims could not find an instructor to begin at that time.
Finally, the CO found that the BOP had found JRS was nonresponsible once before following JRS's bid on a BOP contract for radiology technician services. BOP AR 160-61. In the agency's nonresponsibility determination for the radiology contract, the BOP found that in addition to JRS Management being unable to find appropriate staff on the FCI Miami culinary contract, JRS's contract with FPC Alderson for a ceramics instructor was terminated because she ceased providing services several months into the contract. BOP AR 224.
After considering all of these factors, the CO concluded that JRS lacks "an element of responsibility, specifically the capacity for performance, due to an established history between this office and the prospective contractor of failing to accept offers of award and failure to comply with the terms of the contracts awarded." BOP AR 105. The CO stated that he did "not have a reasonable expectation that this prospective contractor will be able to comply with the required performance schedule."
On February 10, 2015, the SBA informed the CO that JRS had elected to file for a COC in reference to the BOP's referral.
In reviewing JRS's contract history, the PCR learned that JRS had been awarded a number of contracts that it did not perform. The PCR noted that "there have been several contracts . . . that you were awarded, but for some reason, they were closed without any work being conducted." SBA AR 576. The PCR asked JRS to "provide a complete list of all the contracts that you were awarded" and to "provide your explanation for each individual contract, of why it was not successful" for all contracts that were "never accepted by you, accepted and not started, [or] started not completed. . . ."
On March 2, 2015, Ms. Sims supplemented JRS's application in response to the PCR's questions. SBA AR 242-361. Ms. Sims provided the SBA with a list of twenty-five contracts JRS and JRS Management had been awarded in the past three years. Ms. Sims stated that ten of the twenty-five awards "were
Ms. Sims stated that JRS or JRS Management "declined acceptance" of three contracts in favor of accepting other contracts she had been awarded. SBA AR 246.
Ms. Sims stated that JRS or JRS Management declined five contracts because she disagreed with the agency about what regulations applied. For four of those contracts, Ms. Sims claimed that the offer of award required her to comply with Department of Labor wage requirements, but the solicitations did not include those requirements. SBA AR 246-47. Ms. Sims stated that the increased labor costs would have made the contracts unprofitable.
Ms. Sims asserts that she did not perform on the remaining two awards because of disagreements with the agency over the terms of the contract. Ms. Sims stated that she "declined acceptance" of another award to provide a "Catholic DRE Coordinator" for the Navy in Oceana, Virginia. SBA AR 247. Ms. Sims explains that her company submitted a quoted price based on ten months of service, but the purchase order was only for seven months, making performance unprofitable. Once again, a modification was issued "to cancel the purchase order and de-obligate the funding."
With regard to the PCR's questions about the availability of a qualified horticulture instructor, JRS indicated its understanding that it was required to offer the position to the incumbent, Mr. Arbaugh. SBA AR 353. Should Mr. Arbaugh decline JRS's offer to continue serving as a horticulture instructor at FPC Alderson, JRS stated that it had two potential candidates, Richard Miller (listed in its initial bid) and Elizabeth Ryan, who had "indicated a willingness to work as either the primary or substitute Horticulture Instructor."
The PCR reviewed JRS's answers and also contacted several contracting officers who were responsible for overseeing JRS's contracts. SBA AR 648-702. He spoke with Ms. Catherine Purvis, Supervisory Contract Specialist at the U.S. Navy, where Ms. Sims had previously been awarded two contracts. SBA AR 651. Ms. Purvis stated as follows: "I cannot provide any information about the ability of Jacqueline R. Sims to perform on a contract. All I can tell you is that she has protested on four different solicitations, and one contract[,] and was offered another contract that she didn't accept. . . ." SBA AR 651.
The PCR also spoke with Charles Hawkins, a Supervisory Contract Specialist at the Federal Correctional Complex in Terra Haute, Indiana, where Ms. Sims had previously been awarded a contract. SBA AR 666-67. According to the PCR, Mr. Hawkins "said they have not had any problems with her but all of their efforts have been the same instructor." SBA AR 666.
The PCR also spoke with Simone Curtis and Tamera Butler, two COs in Fort Polk, Louisiana, where Ms. Sims had been awarded three contracts. The COs on that contract stated that while "JRS performed satisfactorily," the Army
SBA AR 697. Ms. Curtis told the PCR that Ms. Sims is "very difficult to deal with," and described her as "aggravating, unreasonable, argumentative and litigious."
On March 5, 2015, the SBA prepared a Summary of Certificate of Competency Review Committee Meeting No. 2891. After reviewing the information submitted by JRS, the committee found that "it appears that JRS has expertise in finding and filling teaching positions related to religious education but has no experience in the last three years completing a contract for any other type of training." SBA AR 760. The committee noted that JRS has completed twelve contracts related to religious education in the past three years, and has five ongoing contracts, all but one for religious instruction.
JRS subsequently filed a pro se complaint in this court seeking to set aside the BOP and SBA nonresponsibility determinations, compel the BOP to reinstate JRS in competition for the award, and prohibit the BOP and the SBA from considering JRS's history of not accepting offers in making their responsibility determinations. Briefing was completed on the parties' cross-motions for judgment on the administrative record and on JRS's second motion to supplement the administrative record on October 29, 2015. The court has determined that oral argument is not necessary.
Before turning to the merits of the case, the court must first resolve JRS's second motion to supplement the administrative record,
The CO's declaration affirms his statements in his Rational for Determination of Nonresponsibility, BOP AR 2011, which JRS had previously moved to strike, regarding the information he reviewed in making his determination. JRS argues that the CO's declaration establishes that the CO did not examine JRS's current contracts when conducting his responsibility determination. JRS further argues that the affidavit is necessary to demonstrate that the BOP is not entitled to the presumption of regularity that ordinarily applies to agency action because, according to JRS, the affidavit shows that the CO did not include in the administrative record documents he claims to have consulted.
The memorandum states, among other things, that procuring agencies should not downgrade a bidder during the source selection process because the bidder has previously filed bid protests or claims. JRS argues that the memorandum should be added to the administrative record because, contrary to the memorandum's instructions, "the record shows that the SBA considered JRS's protest activities before the GAO in its COC determination." Pl.'s 2d Mot. to Supp. AR 8.
The government argues that JRS's motion should be denied on the grounds that "it is improper to supplement the record merely for the purpose of providing evidence in support of JRS's arguments[,]" and that "JRS fails to understand that the Government, like JRS, can only support its arguments with evidence actually in the administrative record." Def.'s Opp. to Pl.'s 2d Mot. to Supp. 4-5. The government further contends that "because JRS has failed to meet the strict standard required for supplementation, judicial notice of the documents is unwarranted."
It is well-settled that the court's review for both the CO and SBA decisions is limited to the administrative record.
Here, the court agrees with the government that JRS has not met the strict standards for supplementing the record. The court has examined the two documents that JRS wishes to add to the administrative record and finds that they are not necessary for effective judicial review. The affidavit only reiterates what the CO stated in his Determination of Nonresponsibility, and does not add any evidence regarding the CO's credibility or the appropriateness of his process or conclusions. Likewise, the memorandum does not give the court any information about what the agency did in this case. The court therefore finds that supplementation of the administrative record is not warranted.
The court has determined, however, that it is appropriate to take judicial notice of the memorandum as a public document.
This court exercises jurisdiction over JRS's post-award bid protest pursuant to 28 U.S.C. § 1491(b). In a bid protest, the court may only set aside an award if the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
This standard is "highly deferential."
JRS is challenging both the BOP's finding of nonresponsibility and subsequent referral to the SBA, and the SBA's decision not to issue a COC. Each portion of the challenge is addressed in turn.
Before awarding a contract, a CO must "make[] and affirmative determination of responsibility." FAR § 9.103(b). Further, "[i]n the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility."
FAR § 9.104-1. The burden is on the contractor to affirmatively demonstrate its responsibility. FAR § 9.103(c).
JRS makes several arguments that the CO's determination of nonresponsibility was unreasonable. First, JRS argues that the solicitation did not include a required or proposed performance schedule and thus the CO could not base his nonresponsibility determination on JRS's inability to meet one. Second, JRS argues that prior instances when JRS refused to accept a contract after submitting a successful bid were irrelevant to JRS's ability to perform under this contract. Third, JRS argues that the CO should not have considered JRS Management's conduct as part of a nonresponsibility determination. Fourth, JRS argues that the CO's reliance upon the mistaken belief that JRS had been denied a COC for another contract makes the nonresponsibility decision in this case arbitrary and capricious.
The government counters that the information the CO considered was relevant and consistent with the FAR. The government further asserts that JRS was not prejudiced by the CO's mistaken belief that JRS had previously been denied a COC because JRS would have received a nonresponsibility determination based on the other factors the CO considered.
For the reasons set forth below, the court finds that none of JRS's arguments are persuasive and that the BOP's nonresponsibility determination was not irrational or contrary to the FAR.
JRS asserts that the CO could not, consistent with the solicitation, refer her to the SBA for a COC determination on the basis of her inability to timely begin performance because, according to JRS, the solicitation did not include a fixed performance schedule. However, the record does not support this contention.
Under the FAR, "the time for delivery or performance is an essential contract element and shall be clearly stated in solicitations." FAR § 11.401. The time for delivery can be expressed in several ways, including "the date of award or acceptance by the government" "the date shown as the effective date of the contract."
The court therefore finds that the solicitation delineated a performance period, consistent with the FAR, that established a time of performance commencing on the effective date of award.
JRS contends that the CO should not have considered JRS's inability to accept the cosmetology instructor contract at FPC Alderson and the culinary arts instructor contract at FCI Tallahassee, arguing that it is inappropriate to use unaccepted offers in evaluating a prospective contractor's capacity. The government counters that the FAR requires a CO to take a wide variety of information into account in making a nonresponsibility determination, and asserts that JRS's past non-acceptance of contracts offered by BOP is both a proper factor to consider under the FAR and relevant to JRS's ability to perform under this contract.
The FAR states that a CO must base a nonresponsibility determination on a wide variety of sources that bear on a prospective contractor's ability to perform.
JRS argues that, to the extent the FAR requires a CO to consider a prospective contractor's ability to timely perform as a factor in determining responsibility,
JRS further argues that the fact that JRS declined or was unable to perform on BOP's offers in the past is not relevant to its ability to perform under this contract because JRS had not officially entered into those contracts with BOP. However, as the government notes, JRS's eventual refusal or inability to accept and perform previous contracts JRS had been awarded caused delays in the BOP's ability to obtain services and thus is directly relevant to the issue of whether JRS would be able to timely perform this contract. For example, the government notes that the cosmetology program was halted while the government was waiting for JRS to complete the requirements for beginning performance.
JRS's non-acceptance and non-performance of contracts is also relevant to FAR § 9.104-1, which states that a prospective contractor must have at the very least "the ability to obtain" the organizational and technical skills necessary to perform the contract. The undisputed record shows that JRS was not able to obtain qualified personnel on time or for the duration of the contract in several instances when JRS purported to accept a BOP contract.
JRS argues that the CO also erred in considering JRS Management's failure to begin contract performance on the FCI Miami culinary contract in making his nonresponsibility determination. JRS argues that there is nothing in the record showing that JRS Management is affiliated with JRS, and asserts that the two companies are distinct entities for tax purposes and have different government contracts. The government counters that under the FAR, JRS and JRS Management are affiliates and that the FAR allows COs to consider the past performance of affiliates in the context of a responsibility determination.
FAR 9.104-3(c) specifies that "the contracting officer shall consider [a prospective contractor's] affiliate's past performance and integrity when they may adversely affect the prospective contractor's responsibility." Under the relevant provisions in the FAR, two entities are affiliates if "either one controls or has power to control the other." FAR § 19.101. When "determining whether affiliation exists, consideration is given to all appropriate factors including common ownership, common management, and contractual relationships[.]" Though JRS argues that the record before the BOP lacked evidence that JRS and JRS Managements are affiliates, JRS does not deny the truth of the BOP's conclusion. In her response to the SBA's questions, Ms. Sims conceded that she "operates under" both JRS and "Jacqueline R Sims LLC dba JRS Management," and confirmed that both JRS and JRS Management are run from her home office. SBA AR 243.
JRS asserts that to the extent the CO considered JRS Management's failure to perform on an offered contract, he was obligated to also consider JRS Management's history of successfully fulfilling contracts. The court disagrees. The FAR states that an affiliate's past performance and integrity shall be considered to the extent that they "may
Finally, JRS argues that the CO's nonresponsibility determination should be set aside on the grounds that the CO mistakenly believed that the SBA had denied JRS's COC application of another contract. While the CO was mistaken in his belief that JRS was denied a COC,
Therefore, the court finds that the BOP's decision is adequately documented and finds that the nonresponsibility determination and referral to the SBA for COC review was not arbitrary and capricious. In this case, the CO reasonably believed that JRS lacked capacity to perform pursuant to the applicable FAR regulations and properly referred the matter to the SBA.
After the BOP determined that JRS lacked capacity to perform and was thus nonresponsible, the BOP was required to refer the matter to the SBA. FAR § 19.602-1. When issued, a COC represents the SBA's determination that the applicant "is responsible (with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting) for the purpose of receiving and performing a specific Government contract." FAR § 19.601. The SBA's determination of responsibility is governed by the same factors listed in FAR § 9.104-1 that guide the procuring agency's decision.
JRS argues that the SBA's decision not to issue a COC must be set aside because it was cursory, conclusory, and based on non-relevant or erroneous factual allegations. First, JRS argues that the SBA impermissibly imposed a requirement that JRS have a qualified instructor on staff when there was no such requirement in the solicitation. Second, JRS argues that it was improper for the SBA to consider other contracts it and JRS Management were awarded but did not perform. Third, JRS argues that the SBA improperly contacted references as part of its investigation when the SBA knew that JRS did not have contracts of a related nature, size, and scope and therefore none of the references were relevant. Finally, JRS argues that the SBA erred by not giving sufficient consideration to the horticulture instruction contracts that JRS Management successfully managed.
For the reasons that follow, the court finds that JRS's arguments are insufficient to meet the arbitrary and capricious standard applied to this court's review of agency action.
JRS argues that the SBA erred in denying the COC on the grounds that JRS did not have an instructor ready to perform the contract. According to JRS, the solicitation did not require it to have an instructor on staff. Rather, JRS argues the solicitation only requires bidder to list candidates potentially available. JRS further argues that FAR § 52.222-17, which requires new contractors to offer continued employment to an incumbent's "service employees" under certain circumstances, required JRS to first offer the instructor position to the incumbent and thus it could not commit another instructor. The government counters that FAR § 52.222-17 is not applicable because it exempts professionals including instructors of this type, and further asserts that the SBA correctly considered JRS's failure to identify a specific instructor when it denied the COC.
The court agrees with the government that the SBA's denial of a COC based in part on JRS's failure to identify a committed instructor was rational. As an initial matter, it appears that JRS's reliance on FAR § 52.222-17 to suggest that it could rely on the incumbent serve as the instructor is misplaced. The FAR states that only "service employees" of the predecessor contractor shall be offered the right of first refusal by the successor contractor, and exempts individuals employed in a "professional capacity" as defined in 29 C.F.R. § 541. FAR § 52.222-17(a). A teacher is a "professional" for the purpose of the regulations when the teacher's "primary duty" is "teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment. . . ." 29 C.F.R. § 541.303(a). Teachers "of skilled and semi-skilled trades and occupations" are classified as professionals.
In this case, the solicitation specified that the instructor was to teach an "established horticulture program" that was "approved through the New River Community College." BOP AR 49. The instructor was required to have a degree in horticulture or agriculture. BOP AR 50. In
Therefore, it appears that this position also meets the standard for teacher under the regulations. However, even if JRS was required to give Mr. Arbaugh a right of first refusal under FAR § 52.222-17, nothing in the regulation prohibited JRS from making a tentative or conditional offer to other instructors in the event that Mr. Arbaugh declined its offer.
In this regard, the court agrees with the government that the SBA did not deny the COC on the grounds that JRS did not have an instructor on the payroll. Rather, given JRS's history of failing to secure instructors under similar circumstances, the SBA sought assurance that JRS would be able to provide an instructor on the effective date of the contract. Because JRS did not address this issue even after the SBA expressed concerns and gave JRS instructions that would have alleviated the problem, it was not irrational for the SBA to conclude that without a commitment from another instructor, JRS might lack the capacity to perform.
JRS argues that SBA should not have considered the approximately twenty-five percent rate of unaccepted awards in making its decision because JRS had well-founded reasons for declining those awards. According to JRS, "JRS heeded the SBA's advice with regard to being cautious before entering into contracts with the federal government" and points to the SBA's website to show that the SBA ignored its own advice in using the unaccepted offers of award as a basis for denying the COC. Pl.'s Reply 27. The government responds by pointing out that "[r]egardless of JRS's reasons for refusing awards, the fact remains that the SBA's decision to consider this information was both rational and reasonable[.]" Def.'s Reply 15.
The court finds, given the extensive number of contracts that JRS has acknowledged being awarded but not performing, that the SBA's consideration of this history was not arbitrary or capricious. This is not a case where the SBA ignored JRS's reasons for declining those contracts. To the contrary, JRS's reasons are clearly reflected in the record. However, the SBA could reasonably conclude that JRS engaged in a pattern of bidding and receiving contract awards even where JRS was aware that it might not have the capacity to begin or complete them.
JRS's reliance on the SBA website is also misguided. The website states that "a prospective contractor's response to an RFQ is not an offer that can be accepted to form a binding contract" and the SBA "cautions small businesses to carefully and completely read solicitations, to use a pricing strategy that considers all costs allowing for sufficient overhead/profit, and to read a proposed contract carefully before signing." Pl.'s Reply 27. However, the fact that the SBA recommends that contractors carefully review the terms of a contract before signing it does not imply that the SBA encourages prospective offerors to submit bids for contracts that they do not think they will be able to perform. As discussed above, JRS's failure to accept approximately a quarter of the bids accepted by the government is a significant number. In addition, its failure to take on the work it was offered has caused delays in programing. Therefore, it was rational for the SBA to consider JRS's history.
JRS argues that the SBA's decision should also be set aside because the SBA improperly relied on comments from three of JRS's references when the references worked with JRS on contracts other than horticulture instruction, and are therefore not relevant. The government responds that it was rational for the SBA to consider information received from JRS's references when determining whether to issue a COC.
The SBA was required to conduct a comprehensive investigation as to whether JRS was responsible, and the investigation properly included contacting third parties with knowledge of JRS's performance on other contracts.
JRS also argues that the SBA improperly denied the COC because of JRS's history of filing bid protests. However, the SBA decision document does not rely on this history. To the contrary, the decision document focused on JRS's history of not performing on awarded contracts, JRS's failure to identify a committed instructor, and JRS's difficulty with resolving issues with contracting officers. SBA AR 760.
Although JRS acknowledges that it did not have prior horticulture instruction contracts, it argues that the SBA "erred when it concluded that JRS's expertise was limited to finding and filling teaching positions related to religious education." Pl.'s Rep. 20. According to JRS, the record shows that one of JRS's active contracts is for an HVAC instructor at FCI LaTuna, Texas, and therefore "the record shows that JRS's experience is not limited to religious education."
The government responds that "the SBA procurement analyst did refer to the FCI La Tuna contract as being a non-religious contract, but noted that the work has not started yet on that contract." Def.'s Reply 12. The government also argues that, regardless of whether JRS Management had horticulture instruction experience, it is undisputed that JRS did not have experience with horticultural instruction and thus the SBA analyst was not incorrect.
JRS's COC application indicates that JRS Management did have experience fulfilling horticulture contracts within the three years prior to JRS's bid in this case. SBA AR 413-64. However, assuming that the SBA was required to consider these contracts, the court finds that the error was harmless. The record shows that JRS Management's horticulture instruction contracts were in a different geographic area and involved different instructors who were not available to perform the contract in this case.
Ultimately, it is the court's duty to consider whether the evidence in the record supported the SBA's decision to deny the COC, not to hold the agency to a standard of perfection.
For the reasons stated above, JRS's motion to supplement the administrative record is
