FCN, Inc. v. United States
| Decision Date | 04 April 2014 |
| Docket Number | No. 13-616C,13-616C |
| Parties | FCN, INC. Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
REDACTED OPINION
Post-Award Bid Protest; Air
National Guard; Mass Notification
System; Price Realism;
Government-Furnished Property;
Injunction.
William T. Welch, Law Offices of McMahon, Welch & Learned, Reston, Virginia, for plaintiff.
J. Bryan Warnock, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Bryant G. Snee, Acting Director, Commercial Litigation Branch, and Stuart F. Delery, Assistant Attorney General. Kyle Chadwick, Trial Attorney, Contract and Fiscal Law Division, United States Army Legal Services Agency, of counsel.
The protestor, FCN, Inc. (FCN), filed a post-award bid protest in this court challenging the Air National Guard's award of a contract for a "Mass Notification System/Net-Centric Alerting System" (Mass Notification System) to Reliable Government Solutions, Inc. (RGS)2 pursuant to Solicitation W9133L-13-R-0015 (theSolicitation). Before filing suit in this court, FCN filed a protest with the Government Accountability Office (the GAO), which was denied. In this court, the protestor states: "The FCN proposal received the highest ranking for all non-price factors outlined in the RFP [Request for Proposal]." Therefore, the protestor alleges that the Air National Guard contracting officer awarded the contract to RGS in violation of the Federal Acquisitions Regulations (FAR) by: (1) "accepting a proposal that relied on RGS's offer to utilize Government Furnished Equipment (GFE)," (2) "accepting RGS's offer to submit a 'no cost' licensing fee and 'no-cost' telephony communications previously provided to the U.S. Air Force under a previous contract," (3) "failing to perform a proper price realism analysis on the proposal of RGS and its subcontractor AtHoc," and (4) "allowing the RGS proposal to violate the stated proposal instructions by including pricing information in its technical proposal." To the extent the current Solicitation violates the applicable procurement regulations, the protestor asks the court to enjoin implementation of contract W9133L-13-P-0034, awarded to RGS under the Solicitation, and order the government to re-evaluate the existing proposals.3 The protestor also seeks any other relief the court deems appropriate, including, but not limited to, attorney's fees and the costs of maintaining the protest. The parties fully briefed cross-motions for judgment on the administrative record and oral argument was held.
On September 22, 2012, the Air National Guard issued solicitation W9133L-12-R-0073 (the subsequently cancelled solicitation), under the work statement "Desktop Alert (DTA) Build-out." (emphasis in original). The subsequently cancelled solicitation's due date was listed as September 26, 2012. The parties stipulated that the subsequently cancelled solicitation was for the procurement of "hardware and software to expand the ANG's [Air National Guard's] Desktop Alert (DTA) environment." The parties have stipulated that "Desktop Alert is a Mass Notification System/Net-Centric Alerting System (MNS/NCAS) created and sold by Desktop Alert, Inc." On September 28, 2012, Ly Tran, Vice President of AtHoc, Inc. (AtHoc), a competitor of Desktop Alert, sent an e-mail to contracting specialist Willie L. Holmes objecting to the subsequentlycancelled solicitation's requirement to use Desktop Alert, and alleging that it was a waste of taxpayer funds and encouraged unfair competition. Mr. Tran stated in his e-mail: "We vehemently protest the Solicitation W9133L-12-R-0073 for the fielding and sustainment of Desktop Alerts across the Air National Guard." Mr. Tran claimed in the e-mail that "the Government needs to open up this sonication [sic] to new competition for new vendors such as AtHoc." He listed some of the purported advantages of using AtHoc's software, including that "AtHoc is already deployed across 120+ US Air Force bases," and that the "US Air Force already purchased licenses for ALL USAF [United States Air Force] INCLUDING ANG (!)." (capitalization and punctuation in original). Mr. Tran also asserted in his e-mail that:
Furthermore the USAF negotiated an UNLIMITED USAGE for its alerting capability including no cost for any phone call or text message or email or desktop alert sent. Last USAF [sic] already purchased a pool of lines to be available for ALL USAF (including ANG) of over [redacted] lines. By not providing AtHoc the ability to complete [sic] for this solicitation, ANG will not benefit from all that the USAF ALREADY PAID FOR!
(capitalization in original).
On October 8, 2012, Clayton S. Marsh, counsel to AtHoc, submitted a supplement to the AtHoc objections to the subsequently cancelled solicitation (W9133L-12-R-0073). Mr. Marsh offered a number of additional arguments as to why the subsequently cancelled solicitation was flawed. Mr. Marsh stated that the synopsis of the announcement was incorrect, claiming that (capitalization in original). Mr. Marsh also stated that the 4 Mr. Marsh continued that "[t]here are no '[f]actors and significant subfactors that will be used to evaluate the proposal and their relative importance' as minimally required by FAR [Federal Acquisition Regulation] 15.203(a)(4)." Mr. Marsh also stated that "the specific materials needed to fully respond are indicated (repeatedly) to be in the 'attached LOM' [list of materials] - which is not attached.'" Additionally, Mr. Marsh claimed that there was a potential conflict of interest due to unequal access to information, and that the National Guard Bureau had already purchased a "DTA [Desktop Alert] software alert system, covering 'all personnel in the Guard at the Air and Army Guard HQs . . . .'" (emphasis in original).5 Mr. Marshfurther commented on the availability of AtHoc's system throughout the United States Air Force and stated, In the Marsh e-mail were copies of e-mails and sections of Air Force - AtHoc contracts in support of AtHoc's position.
On October 11, 2012, Anthony Mara of the National Guard Bureau sent an e-mail asking Air Force Colonel Rigel Hinckley for comments regarding AtHoc's allegations. Colonel Hinckley responded, as follows:
Nonetheless, on November 7, 2012, the Air National Guard sent a letter to AtHoc stating that the Air National Guard will "either list 'Brand Name or Equal' requirements, with salient features or will remove the vendor specific information and/or still add salient features for use in determining 'Best Value Technically/Price Acceptable' tradeoff criteria." According to the parties' joint stipulation, on the same day, November 7, 2012, the Air National Guard "took corrective action by cancelling Solicitation No. W9133L-12-R-0073."6
On February 21, 2013, the Air National Guard issued solicitation, W9133L-13-R-0015, the Solicitation at issue in the above captioned protest. As stipulated by the parties, the Solicitation's "Program Goal" (emphasis in original) was for a Mass Notification System/Net-Centric Alerting System "that would allow the ANG to rapidly and reliably inform personnel about anti-terrorism/force protection conditions (FPCON) (including chemical, biological, radiological, and nuclear threats), hazardous weather conditions, and other critical events." The Solicitation listed as: "Program Objectives:"
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