Sunday, May 25, 2014
On September 21, 2013, Aljucar, Anvil-Incus & Co. (AA-I & Co.) filed a timely protest with U.S. General Accountability Office (GAO), which raised a number of arguments in our protest including that the solicitation did not allow newly-formed joint venture offerors to satisfy the experience requirements through the experience of the individual members of the joint venture; that the RFP improperly provided for an initial pass/fail evaluation of experience; that issuance of two OASIS solicitations would not provide meaningful opportunities for small businesses; and, that using two separate solicitations for set-aside versus unrestricted competitions was improper since the scope of work for the two solicitations was the same. Due to precedent at GAO, the Agency only addressed the argument regarding the RFP not allowing newly-formed joint ventures to satisfy the solicitation’s experience requirements through the experience of individual joint venture members, while the remaining arguments were considering abandoned without address. Thusly, on January 2, 2014, GAO denied the protest. The apparent awardees for GSA OASIS Unrestricted were released to FBO.gov on May 19, 2014 ref: https://www.fbo.gov/notices/9894b0308c12f4ede7ccb259264473e3 . Because this protest filing will be within 10 days of this public release; it will be timely.
AA-I & Co. is a Protestor wishing to bring about a re-solicitation on which it intends to bid and therefore has the necessary status, even though it failed to bid in response to the original solicitation but did protest before the close of the proposal period for the original solicitation. Protester expected to bid prior to the close of the solicitation period, but was prevented from doing so on the basis of improper agency action. AA-I & Co. would be a prospective bidder on a re-solicitation and, therefore, is an interested party. See IHS Global, Inc. v. United States.
The Federal Circuit’s long-standing and well-established interpretation of § 1491(b)(1) that an “interested party” under that provision may be either an “actual or prospective bidder” applies here. Moreover, “when the government’s actions wrongfully prevent a bidder from qualifying for or bidding on a solicitation, the government cannot use the contractor’s failure to qualify or bid on the solicitation as grounds for finding a lack of standing.” Reilly v. United States, 104 Fed. Cl. 69, 76 (Fed. Cl. 2012) (quoting KSD, Inc. v. United States, 72 Fed. Cl. 236, 247 (Fed. Cl. 2006)); see also, e.g., Infrastructure Defense Techs., LLC v. United States, 81 Fed. Cl. 375, 385 (Fed. Cl. 2008); accord Science Applications Int’l Corp. v. United States, 102 Fed. Cl. 644, 650 (Fed. Cl. 2011) (the prejudice component of standing requires only that a bidder “ha[ve] been prevented from bidding or proposing due to some infraction other than the terms of the solicitation itself … or [be an entity that] would be in contention absent the … violation of applicable procurement regulations”) (quoting Textron, Inc. v. United States, 74 Fed. Cl. 277, 285 (Fed. Cl. 2006)). Protester expected to bid prior to the close of the solicitation period, but was prevented from doing so on the basis of improper agency action.
AA-I & Co. would be a prospective bidder on a re-solicitation and, therefore, is an interested party. See IHS Global, Inc. v. United States.
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