Widnall v. B3H Corp.

75 F.3d 1577
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 8, 1996
DocketNos. 95-1042 through 95-1044
StatusPublished
Cited by23 cases

This text of 75 F.3d 1577 (Widnall v. B3H Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Widnall v. B3H Corp., 75 F.3d 1577 (Fed. Cir. 1996).

Opinion

CLEVENGER, Circuit Judge.

The Secretary of the Air Force (Air Force) and Logistics Techniques, Inc. (LOGTEC) appeal the July 8,1994 decision of the General Services Administration Board of Contract Appeals (GSBCA or Board), B3H Corp. v. Department of Air Force, GSBCA No. 12813-P, 94-3 B.C.A. (CCH) ¶ 27,068, 1994 WL 372020 (1994), granting the protest of B3H Corporation (B3H) in a best value procurement.1 B3H cross-appeals the GSBCA’s dismissal of B3H’s protest based on alleged improprieties involving Air Force personnel and LOGTEC. We reverse the Board’s granting of B3H’s protest on the best value issue and affirm the Board’s denial of B3H’s protest on the procurement impropriety issue.

I

On June 8, 1992 the Air Force solicited a contract on an indefinite delivery/indefinite [1579]*1579quantity basis -to provide technical support for the Air Force Material Command at Wright-Patterson Air Force Base. The solicitation stated that evaluation of the offerors would be based on technical, managerial, and cost factors in descending order of importance. At issue in this case are the portions of that solicitation reserved for small businesses. Section M-991 of the solicitation provided, in pertinent part, that “[t]he Government will award a contract resulting from this solicitation to the responsible offeror whose offer, conforming to the solicitation, will provide the best value to the Government____ The Government reserves the right to award to other than the lowest offer- or.”

The Source Selection Evaluation Board (SSEB) evaluated, among other companies, the proposals of LOGTEC, Aries Systems International, Inc. (Aries), and B3H. The SSEB determined that while the estimated cost of the LOGTEC offer was higher than B3H and Aries, LOGTEC and Aries were higher rated in the technical area. LOGTEC was also higher rated than Aries and B3H in the management area. After a working group performed a price/technical tradeoff analysis, on February 18, 1994 the Source Selection Authority (SSA) awarded the contracts at issue to LOGTEC and Aries determining that these offerors provided the best value to the Government.

B3H filed a protest in response to the SSA’s findings on April 15,1994. In relevant part, B3H alleged that the awards were improper because: (1) the Air Force failed to select the company offering the best value; and (2) the procurement was improperly tainted by frequent pre-award golf matches between Jerry George, the Air Force Program Manager, and LOGTEC personnel. The GSBCA dismissed the impropriety issue on May 18, 1994 as untimely filed. On May 19, 1994, B3H moved for reconsideration of the impropriety issue.

On July 28, 1994, the GSBCA denied B3H’s motion to reconsider the impropriety issue because B3H failed to plead necessary information as to why its protest was timely. Nonetheless, the GSBCA granted B3H’s protest on the best value issue. The GSBCA held that the SSA did not adequately justify the higher cost of LOGTEC and Aries, even after the price/technical tradeoff analysis had been considered. Nor, in the- Board’s opinion, did the record as a whole demonstrate that the added value of the LOGTEC and Aries proposals were worth their higher price. Having granted B3H’s best value protest, the GSBCA allowed the Air Force to continue its contracts with LOGTEC and Aries, but prohibited the Air Force from renewing the options on the contracts unless the awards were affirmed in a new source selection.

II

The scope of our review of a decision by an agency board of contract appeals is set forth in 41 U.S.C. § 609(b) (1988):

[T]he decision of the agency board on any question of law shall not be final or conclusive, but the decision on any question of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence.

This case involves determining the Board’s proper method of review when examining a best value agency procurement decision, a question of law that we address de novo. Cecile Indus., Inc. v. Cheney, 995 F.2d 1052, 1054 (Fed.Cir.1993).

III

At issue in this case is a best value procurement authorized by 48 C.F.R. § 15.605(c) (1994) (“[I]n certain acquisitions the Government may select the source whose proposal offers the greatest value to the Government in terms of performance and other factors.”). Because this contract involves the procurement of automatic data processing equipment, GSBCA review of the agency’s decision is governed by the Competition in Contracting Act of 1984 (CICA), as amended, 40 U.S.C. § 759(f)(5)(B) (1988):

If the board determines that a challenged agency action violates a statute or regulation or the conditions of any delegation of [1580]*1580procurement authority issued pursuant to this section, the board may suspend, revoke, or revise the procurement authority of the Administrator or the Administrator’s delegation of procurement authority applicable to the challenged procurement.

This case must be viewed in light of the many previous eases under CICA in which the Board has reviewed an agency’s best value choice. Precedent dictates that the Board’s task on review is to determine if an agency’s procurement decision is grounded in reason. Once the Board determines that the agency’s selection is so grounded, it then defers to the agency’s decision even if the Board itself might have chosen a different proposal. See Oakcreek Funding Corp., GSBCA No. 11244-P, 91-3 B.C.A. (CCH) ¶ 24,200, at 121,041, 1991 WL 133389 (1991).

In an early post-CICA decision, DALFI, Inc., GSBCA No. 8755-P, 87-1 B.C.A. (CCH) ¶ 19,552, 1986 WL 20777 (1986) (DALFI I), the Board upheld a protest of DALFI for a contract selection by the Naval Aviation Logistics Center (NALC). The NALC had chosen the lower rated $17 million proposal of SDI over the higher rated $20 million DAL-FI proposal. The GSBCA held that the NALC erred in part by taking SDI’s assertion of a lower cost to the Government at face value and not conducting a price realism analysis that would assess the proposal’s true cost. The Board stated that the procurement had been “converted ... from one for the highest technically rated proposal representing the best buy to the Government into one for the lowest price for a technically acceptable proposal.” DALFI I, at 98,809. Nevertheless, the Board later accepted the agency’s choice after the agency quantified the proposal’s technical differences and determined that the technical superiority of DALFI was not worth its higher cost. DAL-FI, Inc., GSBCA No. 8975-P-R, 87-3 B.C.A. (CCH) ¶ 20,070, at 101,628, 1987 WL 41150 (1987) (DALFI II); cf. Pyramid Technology Corp., GSBCA No. 8743-P, 87-1 B.C.A. (CCH) ¶ 19,580, at 99,022-23,1987 WL 46607 (1987) (contracting officer properly relied on lower price when the technical merits of the offerors were similar).

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75 F.3d 1577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/widnall-v-b3h-corp-cafc-1996.