Seaborn Health Care, Inc. v. United States

55 Fed. Cl. 520, 2003 U.S. Claims LEXIS 45, 2003 WL 1342467
CourtUnited States Court of Federal Claims
DecidedMarch 11, 2003
DocketNo. 03-110C
StatusPublished
Cited by32 cases

This text of 55 Fed. Cl. 520 (Seaborn Health Care, 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
Seaborn Health Care, Inc. v. United States, 55 Fed. Cl. 520, 2003 U.S. Claims LEXIS 45, 2003 WL 1342467 (uscfc 2003).

Opinion

Order

SYPOLT, Judge.

On January 21, 2003, plaintiff filed a complaint for injunctive and declaratory relief, requesting, inter alia, that the court enjoin the Department of Veterans Affairs (VA) from accepting final proposal revisions in response to Amendment No. 3 to RFQ (Request for Quotations) No. 247-008-03, and direct the VA to re-evaluate all offers in the competitive range pursuant to Amendment No. 2 to the RFQ. On January 31, 2003, at the order of the court, plaintiff filed a motion for a preliminary injunction requesting the same relief. For the reasons discussed, plaintiffs motion is denied. See Order of March 5, 2003 (denying motion without reasons).

Facts

The following facts are taken from the administrative record filed by the government in accordance with the bid protest procedures at Appendix C to the Rules of the United States Court of Federal Claims. The material facts are undisputed.

On July 12, 2002, the VA issued RFQ No. 247-0008-03 for the services of three phlebo-tomists at the VA Greenville Outpatient Clinic in Greenville, South Carolina, for a one-year performance period and four option years. AR at 1-38.

Plaintiff submitted a response to the RFQ on August 13, 2002. On the same day, the VA informed plaintiff that it had submitted the apparent low quote and asked for the qualifications of its proposed personnel. Plaintiff provided these. At the same time, two other low quoters, including Supplemental Medical Services, Inc. DBA/StaffLink [522]*522(StaffLink), received identical notices and requests for personnel qualifications.1

By a notice of award dated September 12, 2002, the VA informed plaintiff that award had been made to StaffLink because it submitted “the best terms from a price and technical standpoint.” AR at 150. On September 16, 2002, plaintiff requested a telephone debriefing. AR at 141. The next day, the contracting officer told plaintiff by telephone, reiterating by letter, that plaintiffs personnel candidates were acceptable, that award was based on StaffLink’s lower base-year price, and that only base-year price was considered. AR at 143. She enclosed abstracts of the thirteen quotations received, which revealed that plaintiffs price in fact was lower than StaffLink’s when option prices were factored in. AR at 70—88.

On September 20, 2002, plaintiff filed a protest with the contracting officer, claiming that the award to StaffLink was improper because the RFQ failed to state that award would be based on the lowest base-year price or that option-year prices would not be considered. It also challenged sending “low offer” letters to more than one vendor.

The VA wrote, on September 23, 2002,2 that the acquisition was conducted pursuant to Parts 12 (Commercial Items) and 13 (Simplified Acquisitions) of the Federal Acquisition Regulations (FAR)3 and stated, thus that the debriefing process under FAR § 15.506 was not applicable, pursuant to FAR § 13.106-3(d); that award notices were sent as a courtesy; that the evaluation methodology was not changed at any time; that evaluation criteria were not required under FAR Part 13; and that award was made, in accordance with FAR Parts 12 and 13 procedures, to the offeror providing the best terms from a price and technical standpoint.4 The VA declined to suspend contract performance because the services involved direct patient care and were urgently needed. AR at 151-52.

Nevertheless, on September 25, 2002, the VA ordered StaffLink to suspend contract performance in accordance with FAR § 33.103(f)(3), AR at 153, and the next day issued RFQ Amendment No. 2, which stated:

[The] [solicitation ... is hereby amended to state the basis for contract award in accordance with FAR Part 13.106-1(a)(2). The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors will be used to evaluate offers: 1. Personnel Qualifications; 2. Past Performance; 3. Price (including options).

AR at 154.

Amendment No. 2 also stated that the VA would re-evaluate the basis for its prior award, but that the amendment did not constitute a change to the statement of work and, therefore, to prices, and that the VA would not accept revised pricing. Id.

[523]*523On October 22, 2002, the VA sent Staf-fLink a notice of termination for the convenience of the government. AR at 155. (StaffLink apparently did not receive this notice, however, until November 1, 2002.) The notice stated that the solicitation should have disclosed the basis for award “by listing the evaluation points and also addressing if option years would be evaluated.” Id. It also stated that re-evaluation of offers by total aggregate amount, (base plus four option years) indicated that plaintiff, not StaffLink, submitted the lowest offer, and set out plaintiffs prices for each year, including the option years, in tabular form. Id.

On November 12, 2002, StaffLink filed a protest of its termination with the General Accounting Office (GAO), StaffLink, B-291671 (Dec. 26, 2002), requesting that the GAO direct the VA to award the contract to StaffLink or, alternatively, to communicate the evaluation criteria to all competitors and to allow reopening of the solicitation and submission of revised best and final offers. AR at 158-60.

The VA informed the GAO on December 12, 2002 that the following corrective measures would be taken: review of the solicitation provisions and evaluation criteria to ensure that they were consistent with its needs; amendment of the solicitation as necessary; consideration of proposal revisions from the interested parties; rendering a source selection decision consistent with the terms of the solicitation; and correcting the source selection decision if necessary. AR at 174-75. Based on this corrective action, the GAO dismissed StaffLink’s protest as “academic.” StaffLink, B-291671 (Dec. 26, 2002) (citing Dyna-Air Eng’g Corp., B-278037, Nov. 7, 1997, 97-2 CPD ¶ 132, 1997 WL 692915).

On January 7, 2003, the VA issued RFQ Amendment No. 3, which stated that “[r]e-vised pricing/technical proposals will be accepted for re-evaluation for contract award in accordance with the award basis reflected in Amendment No. 2.” AR at 177-78. It also set a proposal due date of January 22, 2003, and reiterated the evaluation factors set out in Amendment No. 2: personnel qualifications, past performance, and price (including options). Id. Amendment No. 4 postponed until February 24, 2003, the date for submission of revised pricing/technical proposals. AR at 179-80. The contracting officer postponed the due date until March 3, 2003.

Jurisdiction/Standard of Review

This court’s current jurisdiction over preaward bid protests5 is founded on the Administrative Dispute Resolution Act, Pub.L. No. 104-320, 110 Stat. 3870 (1996) (codified at 28 U.S.C. § 1491(b)(1)). Pre-award bid protests are subject to the standard of review prescribed in section 10(e) of the Administrative Procedure Act (APA), 60 Stat. 243 (1946), (codified at 5 U.S.C.

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55 Fed. Cl. 520, 2003 U.S. Claims LEXIS 45, 2003 WL 1342467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seaborn-health-care-inc-v-united-states-uscfc-2003.