Centech Group, Inc. v. United States

78 Fed. Cl. 496, 2007 U.S. Claims LEXIS 315, 2007 WL 2840447
CourtUnited States Court of Federal Claims
DecidedSeptember 25, 2007
DocketNo. 07-513C
StatusPublished
Cited by30 cases

This text of 78 Fed. Cl. 496 (Centech Group, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Centech Group, Inc. v. United States, 78 Fed. Cl. 496, 2007 U.S. Claims LEXIS 315, 2007 WL 2840447 (uscfc 2007).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S AND INTERVENOR’S MOTIONS TO DISMISS IN PART

WILLIAMS, Judge.

In this bid protest, Plaintiff, the Centech Group, Inc. (Centech), challenges the Air Force’s de facto rescission of its services contract and its decision to reopen discussions and solicit revised proposals — corrective actions the Air Force took to implement a recommendation by the Government Accountability Office (GAO) in a protest filed by Tybrin Corporation (Tybrin).2 This procurement was a small business set-aside, and Tybrin contended in the GAO protest that Centech failed to comply with the Limitations on Subcontracting (LOS) clause, Federal Acquisition Regulation (FAR) 52.219-14, which requires that a small business perform at least 50 percent of the labor cost using its own personnel. Although the Small Business Administration (SBA) had determined that Centech complied with this clause and found Centech to be a responsible small-business offeror, GAO deemed compliance with the LOS clause to be a matter of proposal acceptability, not responsibility, and found that Centech’s proposal did not meet the 50 percent personnel requirement. In response to the GAO’s recommendation for corrective ac[498]*498tion, the Air Force issued Amendment 3 to the solicitation requesting revised proposals. All four offerors, including Centech, submitted revised proposals on July 31, 2007, and these proposals are currently being evaluated. The Air Force intends to make an award in February, 2008.3 Plaintiff asks this Court to reinstate its original award and declare that the Air Force’s decision to follow GAO’s recommendation and take corrective action was arbitrary and capricious.4

This matter comes before the Court on Defendant’s and Intervenor’s motions to dismiss on standing, justiciability and ripeness grounds. These parties also seek dismissal of any claims challenging GAO’s substantive and procedural rulings. Finally, Defendant and Intervenor contend that Plaintiffs protest of the suspension of its contract is a disguised termination for convenience claim which must be brought under the Contract Disputes Act (CDA).

Because Plaintiff is an actual offeror with a direct economic interest in the challenged procurement actions — the rescission of its contract award and the reopening of discussions and evaluation of revised proposals — it has standing. Further, the case is justiciable in its present posture because Plaintiff is lodging a preaward protest against the implementation of Amendment 3 to the solicitation, which this Court has the authority to review. The controversy is ripe for review as it does not rest upon contingent or speculative future events.5 Contrary to Defendant’s and Intervenor’s assertions Plaintiff has not raised a CDA claim, and has not sought termination for convenience costs in this action. Rather, Plaintiff has challenged the agency’s conduct in an ongoing procurement which has yet to result in an award — an amendment to the solicitation and the de facto rescission of its contract, — and has sought injunctive relief and bid and proposal preparation costs. As such, the Court views the action as a bid protest.

Defendant and Intervenor are correct that this Court does not have jurisdiction to review GAO’s procedural or substantive decisions. Thus, to the extent Plaintiffs allegations seek reversal of the GAO decision, they are dismissed.6

Background 7

The Solicitation

On February 28, 2005, the Air Force issued request for proposals (RFP) number FA9300-04-R-0040 for advisory and assistance services to support the Aerospace Research, Development, Test and Evaluation Activities (ARDTEAS) at the Air Force Flight Test Center at Edwards Air Force Base in California. AR, Tab 4 at 151.

[499]*499The RFP provided for the award of a “hybrid” cost reimbursement and fixed-price contract depending upon the service being provided. Specifically, the RFP sought advisory and assistance services on a cost-plus-award-fee basis, direct costs such as travel and materials on a cost reimbursement basis, and phase-in services on a fixed-priced-award-fee basis. Award was to be made to the proposal offering the best value considering four evaluation factors: (1) Mission Capability, (2) Proposal Risk, (3) Past Performance, and (4) Cost/Priee. The RFP was a 100 percent set aside for small business concerns.

The solicitation’s performance requirements document (PRD) described tasks to be performed by the successful contractor, including the provision of “assistance with business management in support of ground test, flight test and other associated test and support activities,” the support of “all phases of acquisition from identification of needs through contract performance,” as well as the provision of systems engineering and technical assistance “required to support ground and flight test and related activities.” RFP PRD at 4-5, 8.

The RFP incorporated by reference Federal Acquisition Regulation (FAR) Clause 52.219-14, Limitations on Subcontracting. This clause provided:

(b) By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for—
(1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern [submitting the proposal].

The Air Force disclosed to offerors that it would interpret this clause in accordance with its Air Force Policy Memorandum 2004-PK-007. Tr. (Sept. 11, 2007) at 39. This Policy Memorandum stated:

we interpret the clause 52.219-14 to mean that the minimum amounts of work can be performed by the collective efforts of either small business members of a formal joint venture or a small business prime contractor together with the first tier small business subcontractor(s), when the circumstances outlined in attachment 1 are present.

Compl. ¶ 11; AR, Tab 137 at 016983.

The Evaluation and Award

Four small business concerns submitted proposals to the Air Force on or about April 1, 2005. Centech disclosed in its proposal that the “team” of Centech and its small business subcontractors would collectively perform 66.2% of the contract's personnel costs. Compl. ¶ 12. The Ah* Force conducted discussions with offerors from September 6 through December 1, 2005. Offerors submitted final proposal revisions (FPRs) on or about December 15, 2005, and revised Cost/ Price FPRs on or about February 22, 2006. Award was made to Centech in April 2006. Compl. ¶ 19.

Tybrin’s GAO Protest of the Award to Centech

On May 26, 2006, Tybrin protested the Centech award to the GAO. AR, Tab 3 at 000107. Among other things, Tybrin claimed that the Air Force failed to evaluate proposals in accordance with the stated RFP evaluation criteria, failed to conduct meaningful discussions, and failed to conduct a proper best value determination. AR, Tab 3 at 000113-25, 000143-44.

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Cite This Page — Counsel Stack

Bluebook (online)
78 Fed. Cl. 496, 2007 U.S. Claims LEXIS 315, 2007 WL 2840447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/centech-group-inc-v-united-states-uscfc-2007.