Orion Technology, Inc. v. United States

102 Fed. Cl. 218, 2011 U.S. Claims LEXIS 2372, 2011 WL 6370029
United States Court of Federal Claims·Decided December 1, 2011·No. No. 11-573C·Published·Cited by 17 cases

Opinion

OPINION AND ORDER

SWEENEY, Judge.

In this preaward bid protest, plaintiff Orion Technology, Inc. claims that it was improperly excluded from a competition for contracts to perform support services at various United States A’my (“Amy”) installations. Plaintiff further contends that its proposal should have been reinstated to the competition after the Amy amended the solicitation to announce its plan to hold discussions. Defendant moves to dismiss plaintiffs protest on standing grounds, and both plaintiff and defendant move for judgment on the administrative record. For the reasons set forth below, the court finds that plaintiff lacks standing to protest. Thus, the court grants defendant’s motion to dismiss, finds as moot defendant’s motion for judgment on the administrative record, and denies plaintiffs motion for judgment on the administrative record.

I. BACKGROUND

A. The Solicitation

On December 7, 2010, the Army’s Mission and Installation Contracting Command issued solicitation number W9124J-11-R-0001, a negotiated procurement of support services for various Amy installations.1 AR 131-33. The services to be acquired were described in a Performance Work Statement (“PWS”).2 [220] Id. at 132. The competition, which remains ongoing, is set aside for small businesses, id., and will result in the award of multiple indefinite-delivery, indefinite-quantity task order contracts, id. at 207, 225. The Army anticipates awarding six to eight contracts to those offerors representing the best value to the government. Id. at 225.

1. Section L

In section L of the solicitation, the Army set forth its proposal preparation instructions. See generally id. at 208-24. In these instructions, the Army advised offerors of its intent to award contracts without conducting discussions, but reserved the right to hold discussions if necessary. Id. at 209. It accordingly encouraged offerors to include their best offer in their initial proposals. Id.

The Army’s instructions also included multiple warnings regarding the importance of compliance with the solicitation’s requirements. For example, the Army cautioned: “Noncompliance with the Request for Proposal (RFP) requirements may hamper the Government’s ability to properly evaluate the proposal and may result in elimination of the proposal from further consideration for contract award.” Id. It also advised: “Offerors are required to meet all solicitation requirements, such as terms and conditions, representations and certifications, and technical requirements, in addition to those identified as evaluation factors or subfactors (Sections A through M). Failure to meet a requirement may result in an offer being ineligible for award.” Id. at 213; cf. id. at 131 (noting, on the solicitation’s cover page, i.e., Standard Form (“SF”) 33, that “[a]ll offers are subject to all terms and conditions contained in this solicitation”).

With respect to the proposals’ contents, the Army instructed offerors to submit their proposals in four separate volumes: General, Mission Capability, Past Performance, and CosVPrice. Id. at 210. The Cost/Price volume was to be organized in several sections. Id. at 221. One section was to include “evidence of an adequate accounting system as determined by the [Defense Contract Audit Agency].” Id. at 222. The Army noted that an adequate accounting system was “a regulatory requirement with a pass/fail determination” and that failure to have such a system might make an offeror ineligible “to receive a cost type award.” Id.

In other sections of the Cost/Price volume, the Army required the submission of a proposal for a supplied task order scenario. Id. at 221. The Army directed offerors to submit a “fully completed and error free” task order pricing schedule containing their “prices for the established Contract Line Item Numbers (CLINS) ... for the Phase-In, base year, all options years and PhaseOut.” Id. at 222. Offerors were to then provide a eost/price proposal to support the pricing schedule. Id. In the narrative portion of their eost/price proposal, offerors were to explain how they derived all of their costs, including labor, other direct costs (“ODCs”), and indirect costs, as well as how any teaming partners derived their costs. Id. In the second portion of their cost/price proposal, offerors were to provide the data used in their priee/cost calculations. Id. at 223. For example, their ODCs were to be “submitted in total and as separate proposed amounts, and annotated as to the PWS paragraph the cost element supported].” Id. In addition, offerors were to submit a direct labor table containing detailed information about the labor rates for each proposed labor category, including the labor hours, wage rate, fringe benefits amount, general and administrative costs, and fee. Id. The Army warned:

The prime contractor is responsible to enter its teaming partner(s) pricing. If a teaming partner does not want to reveal proprietary information to the prime offer- or, the Government will accept a direct submission of the pricing spreadsheets from the teaming partner(s) in order to protect its proprietary information. Teaming partner(s) pricing information is required to facilitate future adjustments based on changes to the Department of Labor (DOL) Wage Determination____ [221] Prime contractors are responsible for conducting price analyses to establish reasonableness of proposed teaming partner(s) prices, and to include the results of these analyses in the pricing narrative. It is also the responsibility of prime contractors to ensure their teaming partner’s pricing proposal is submitted by the closing date/ time. Proposals received that do not contain complete pricing for both the prime and all teaming partner(s) may not be considered for award.

Id. All of the cost/price data submitted by offerors was “required to determine [whether] the proposed price [was] fair and reasonable.” Id. at 221.

2. Section M

In section M of the solicitation, the Army described how it intended to evaluate the offerors’ proposals. See generally id. at 225-31. It identified three evaluation factors: Mission Capability, Past Performance, and Cost/Priee. Id. at 226. The Mission Capability factor had five subfactors: Response to Scenario, Management Approach, Staffing and Training Approach, Quality Approach, and Technical Expertise. Id. The Response to Scenario subfaetor was “significantly more important than the other subfaetors,” which were “of equal importance.” Id. The Mission Capability factor was “significantly more important” than the Past Performance factor, and these two factors combined were “approximately equal to” the Cost/Price factor. Id. The Army noted, however, that “the degree of importance of cost/price as a factor in determining award could become greater depending upon the equality of the proposals evaluated in the non-cost/price factors.” Id. at 225.

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Orion Technology, Inc. v. United States, 102 Fed. Cl. 218, 2011 U.S. Claims LEXIS 2372, 2011 WL 6370029 (uscfc 2011).

102 Fed. Cl. 218 (Orion Technology, Inc. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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