Sheridan Corp. v. United States

95 Fed. Cl. 141, 2010 U.S. Claims LEXIS 847, 2010 WL 4371372
United States Court of Federal Claims·Decided November 1, 2010·No. No. 10-547C·Published·Cited by 46 cases

Opinion

OPINION AND ORDER

WHEELER, Judge.

In this bid protest, Plaintiff Sheridan Corporation (“Sheridan”) challenges the reasonableness and legality of a procuring agency’s corrective action to resolicit proposals where no apparent defect in the initial proposals exists. Following a competitive solicitation, the United States Property and Fiscal Office of Maine, National Guard Bureau (the “agency”) awarded a contract to Sheridan on May 12, 2010 for the construction of a KC-135 aircraft maintenance hangar in Bangor, Maine. The agency based its award decision solely on the initial proposals received, without conducting any discussions with offerors.

On May 28, 2010, following a debriefing, Intervenor JCN Construction Company (“JCN”) filed a bid protest with the Government Accountability Office (“GAO”) alleging that Sheridan unfairly benefitted from the agency’s disparate treatment of proposals. Due to JCN’s timely bid protest, the contracting officer suspended performance of Sheridan’s contract. A short time later, the [145]*145agency announced that, rather than opposing JCN’s protest, it would take corrective action. The GAO then dismissed JCN’s bid protest as academic. Under the proposed corrective action, the agency planned to enlarge the “competitive range” by including the top three proposals from the initial submission, and inviting Sheridan, JCN, and a third offeror, Nauset Construction Company (“Nauset”), to submit revised proposals, which were due on August 13, 2010.

Sheridan filed suit in this Court on August 12, 2010, requesting declaratory and injunc-tive relief, alleging that the agency’s corrective action is unlawful and lacks a rational basis. As Sheridan asserts, Defendant’s administrative record does not explain why the agency invited revised proposals where none of the agency’s requirements had changed from the original solicitation and no deficiencies existed in the initial proposals. Further, the agency’s corrective action reflects a lack of understanding of the term “competitive range.” The concept of a “competitive range” under Federal Acquisition Regulation (“FAR”) 15.306(c) does not apply where an agency awards a contract on the basis of initial proposals without conducting any of-feror discussions. The agency also disclosed Sheridan’s winning price as part of the award and debriefing process. By requesting revised proposals, the agency impermissibly harmed Sheridan by allowing two unsuccessful offerors a second chance to win the award with knowledge of the winning price they had to beat. Although requesting revised proposals may be appropriate where an agency has modified the solicitation, or where the agency has engaged in discussions or negotiations before inviting offerors to submit final proposal revisions, the Court does not see any lawful or rational reason for inviting revised proposals as part of the corrective action here.2

On September 1, 2010, the Court issued a preliminary injunction enjoining the agency’s proposed corrective action.3 Currently before the Court are Plaintiffs and Defendant’s motions for judgment on the administrative record, and Defendant’s motion to dismiss for lack of standing.4 For the reasons explained below, the Court finds that Sheridan has standing to pursue its protest. The Court further finds that the agency’s chosen corrective action plan is unlawful and not rationally related to any identifiable defect in the procurement. The resolieiting of proposals for no apparent reason would be highly prejudicial to Sheridan, who had been selected and received the award on the basis of initial proposals. Therefore, the Court permanently enjoins the agency’s corrective action.

BACKGROUND

On December 4, 2009, the agency issued Solicitation No. W912JD-10-R-0001 (the “RFP”) seeking proposals to construct a new 78,000 square foot aircraft maintenance hangar at the Bangor International Airport in Bangor, Maine. (AR 60-120.) The RFP provided that the agency would evaluate proposals based upon two factors of approximately equal importance — past performance and price. (AR 79.) In evaluating past performance, the agency would consider such items as an offeror’s business practices, customer relationships, and ability to perform successfully as proposed. Upon review of the proposals, the agency assigned each of-feror one of five performance risk ratings (very low risk, low risk, average risk, above [146]*146average risk, and high risk). (AR 82.) If an offeror lacked current or relevant performance information, the agency assigned such offeror a rating of neutral. (AR 79.) In pertinent part, the RFP described the performance ratings of very low risk, low risk, and average risk as follows:

Very Low Risk: Performance met all contract requirements and exceeded many to the Government’s benefit. Problems, if any, were negligible and were resolved in a timely and highly effective manner. Performance was current and generally very relevant to relevant. Excellent probability of success with overall very low degree of risk in meeting Government’s requirements.
Low risk: Performance met contract requirements. Good quality. Minor problems were identified; however, contractor took satisfactory corrective action to resolve where appropriate. Performance was current and generally very relevant to relevant. Good probability of success with overall low degree of risk in meeting the Government’s requirements.
Average Risk: Performance met most contract requirements. Adequate quality. Problems were identified; however, contractor usually took adequate corrective action. OR Although performance exceeds expectations and was rated excellent to very good the projects submitted were generally semi-relevant to the efforts required by this solicitation. Fair probability of success with an average degree of risk in meeting the Government’s requirements.

(AR 82.) The agency also determined whether each offeror’s proposed price was reasonable. (AR 82-83.) The agency did not, however, assign a rating based upon price. (AR 82.) The RFP provided in bold print that the agency intended to evaluate proposals and award a contract without discussions with offerors. (AR 78.)

Proposals were due not later than January 28, 2010. (AR 60.) By that date, the agency had received eight proposals in response to the RFP. (AR 489.) The Source Selection Board evaluated all of the proposals and issued a summary evaluation report on March 9, 2010. (AR 489-509.) The Source Selection Board assigned a performance rating of “low risk” to Sheridan. (AR 515.) Four of the proposals received a rating of “average” risk, one proposal received a rating of “above average risk,” and two proposals received a rating of “neutral.” Id. The three lowest prices were submitted by Nau-set ($14,495,625), Sheridan ($14,764,996), and JCN ($15,112,974). Id. On March 12, 2010, the contracting officer sent notices to all offerors except Sheridan informing them that their proposals had “been excluded from the competitive range and thereby eliminated from the competition.” See, e.g., AR 510.

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Sheridan Corp. v. United States, 95 Fed. Cl. 141, 2010 U.S. Claims LEXIS 847, 2010 WL 4371372 (uscfc 2010).

95 Fed. Cl. 141 (Sheridan Corp. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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