Federal Data Corp. v. U.S., 89-1280
Citation | 911 F.2d 699 |
Decision Date | 09 August 1990 |
Docket Number | No. 89-1280,89-1280 |
Parties | , 36 Cont.Cas.Fed. (CCH) 75,913 FEDERAL DATA CORPORATION, Appellant, v. The UNITED STATES, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Daniel S. Koch, Kurz Koch & Doland, Washington, D.C., argued, for appellant. With him on the brief were Marvin S. Haber, Gen. Counsel, and Ann B. Axelrod, Corporate Counsel, Federal Data Corp., Bethesda, Md.
Terrance S. Hartman, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for appellee. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, and Thomas W. Petersen, Asst. Director. Also on the brief were Lloyd M. Weinerman, Rodney L. Benson, and Marion T. Silva, Office of Gen. Counsel, Dept. of Health and Human Services, Baltimore, Md., of counsel.
Before NIES, Chief Judge, * ARCHER and MICHEL, ** Circuit Judges.
Federal Data Corporation appeals from the decision of the General Services Administration Board of Contract Appeals (GSBCA or Board), GSBCA No. 9732-P, 89-1 BCA (CCH) p 21,414 at 107,922 (December 9, 1988), denying its claim for an award of its proposal preparation and protest costs with respect to solicitation number HCFA-RFP-87-031/DA. We affirm.
The facts underlying this appeal are more completely set forth in the board's opinion, id. at 107,923, and a familiarity On about August 10, 1988, Wang protested the award of the contract to IBM on the grounds that HCFA had conveyed inaccurate information regarding its assessment of each vendor's initial proposal. As a result of Wang's protest, HCFA suspended performance of the contract and decided to reopen the negotiations. Prior to doing so, the contracting officer sent a letter dated September 13, 1988, to each vendor, stating, in part, as follows:
with that opinion is presumed. On June 11, 1987, the Health Care Financing Administration (HCFA) of the Department of Health and Human Services (HHS) issued an automatic data processing equipment (ADPE) solicitation or request for proposals (RFP) for its End-User Computing/Office Automation project. Federal Data and nine other vendors, including International Business Machines, Inc. (IBM) and Wang Laboratories, Inc. (Wang), submitted proposals to HCFA in response to the RFP. On July 18, 1988, HCFA notified the unsuccessful vendors that IBM had been awarded the contract at a total price (evaluated cost) of $16,111,686. Certain technical information regarding IBM's proposal was also provided the unsuccessful parties.
In selecting the above course of action, I recognize that certain pricing information regarding the awardee has been publicly disclosed and other information concerning the awardee's technical scoring has been conveyed during the debriefing process. As a result, it is necessary to place all vendors on an equal footing with regard to the disclosed information.
Accordingly, shortly before the negotiations are reopened, HCFA will provide each offeror, who elects to participate in accordance with the procedures set forth below, with the following information: (1) the identity of all offerors in the competitive range; (2) the total evaluated prices of all offerors; (3) the total technical score of all offerors. HCFA will then reopen negotiations with all vendors who have consented to the release of such information.
Federal Data, 89-1 BCA (CCH) at 107,924-925. This approach was chosen because, in the contracting officer's opinion, HCFA's ADPE need was so acute that "it would not be practical to cancel the procurement and begin again." Id. There followed a series of discussions between the vendors and the contracting officer regarding his letter of September 13. The board found that Federal Data "requested debriefings and a revision of the commercial availability date 1 in the solicitation," but that it did not "even preliminarily agree[ ] to the terms of the September 13 letter." Id. at 107,925.
On September 27, 1988, Federal Data filed its initial protest, which was dismissed without prejudice on the joint stipulation of Federal Data and HHS. When the parties failed to reach a settlement satisfactory to both sides, the protest was refiled on October 4, 1988. Both the September 27 and the October 4 protests contained two counts which related to the errors in the original solicitation and sought as relief an award of proposal costs, protest costs and attorney fees, together with a suspension of the delegation of procurement authority.
In a telephonic conference on October 13, 1988, between the board's administrative judge, counsel for Federal Data, and representatives of HHS, Federal Data's counsel was asked by the administrative judge whether Federal Data wished to continue competing for the contract. Counsel stated that Federal Data would not compete further "because it had submitted its first best and final offer (BAFO) on the basis of the information that HHS later determined to be erroneous, and its proposal was not likely to be very highly evaluated under HHS's plan for the recompetition." By letter of the same date, HHS confirmed to Federal Data that its "prices and technical scores" would not be released to other vendors in view of Federal Data's statement that it would not participate in the reopened solicitation.
Thereafter, on October 18, 1988, Federal Data filed an amended protest which added new counts III, IV, and V. New count IV, on which this appeal is solely grounded The board either dismissed or denied each of Federal Data's five counts. 2 As noted, Federal Data appeals only the board's denial of count IV to this court. Count IV asserts, in pertinent part, "that HHS's proposed remedy ... violates FAR 15.610(d), in that the disclosure of the prices and scores of all offerors would constitute ... an auction." Federal Data, 89-1 BCA (CCH) at 107,927. FAR 15.610(d) states, in part:
related to HHS' proposed plan for remedying the errors in the first solicitation. Federal Data's amended protest only sought its proposal preparation costs and the costs of the protest, including attorney fees, and did not request the other relief sought in the original protest. On October 28, 1988, Federal Data filed a stipulation "confirming that it would not compete further for the contract at issue in this protest." Federal Data, 89-1 BCA (CCH) at 107,926
(d) The Contracting Officer and other Government personnel involved [in written or oral discussions in connection with negotiated procurements] shall not engage in--
. . . . .
(3) Auction techniques, such as--
(i) Indicating to an offeror a cost or price that it must meet to obtain further consideration;
(ii) Advising an offeror of its price standing relative to another offeror (however, it is permissible to inform an offeror that its cost or price is considered by the Government to be too high or unrealistic); and
(iii) Otherwise furnishing information about other offeror's prices.
48 C.F.R. Sec. 15.610(d) (1987).
Count IV was denied by the board notwithstanding HHS's "violation of the letter of the FAR," Federal Data, 89-1 BCA (CCH) at 107,930, because, in the board's view, "HHS has endeavored to correct its admitted error in a way that affords equal treatment to all offerors on the reopened procurement, and allows for the most competition available under the circumstances," and is thus covered by a "practical exception to the FAR." Id. at 107,932.
Our review of decisions emanating from the boards of contract appeals is governed by 41 U.S.C. Sec. 609(b) (1988). On any question of fact, a board's findings are final and conclusive, unless it is established, on the basis of the record, that the decision is fraudulent, arbitrary or capricious, so grossly erroneous as to necessarily imply bad faith, or not supported by substantial evidence. Id. We may engage in de novo review of a board's conclusions of law, but the legal interpretation of a tribunal having expertise is helpful to us, even if not compelling. See Erickson Air Crane Co. v. United States, 731 F.2d 810, 814 (Fed.Cir.1984).
Following oral argument in this case, this court ordered the parties to submit supplemental briefs regarding the board's jurisdiction over Federal Data's protest. After review of the facts, the law and applicable authorities, we conclude that Federal Data lacked the requisite interest to challenge the agency's action on the ground set forth in count IV. Prior to amending its protest to include count IV, Federal Data had withdrawn from participating in the procurement and was no longer an interested party as required by the statute. 3
Under 40 U.S.C. Sec. 759 (1988), a protest may be filed only by an "interested party," which is defined at 40 U.S.C. Sec. 759(f)(9)(B) as "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." The statute imposes two requirements on any party who would protest an agency's procurement before the board. The first is that the party must be an "actual or prospective bidder." See MCI Telecommunications Corp. v. United States, 878 F.2d 362 (Fed.Cir.1989). The second is that such a bidder must have a "direct economic interest [that] would be affected by the award of a contract or failure to award the contract." See United States v. IBM, 892 F.2d 1006, 1010 (Fed.Cir.1989).
In holding that Federal Data was an interested party, the board stated:
because of [Federal Data's] status as a former offeror whose withdrawal from the competition is based on the very actions of the Government that it contests, and because [Federal Data] has not relinquished its right and indeed manifests a desire to compete for the contract at issue should we find the Government's conduct unlawful, we conclude that [Federal Data] is, in the circumstances of this case, an interested party to pursue Counts IV and V of its...
To continue reading
Request your trial-
Garufi v. U.S.
...(Fed. Cir. 1989), (2) a bidder who withdrew from the procurement did not have an economic interest, see, e.g., Fed. Data Corp. v. United States, 911 F.2d 699 (Fed. Cir. 1990), or (3) a bidder rated below second lacked the required "direct economic interest in the award of the contract," see......
-
Superior Optical Labs v. The United States
... ... No. 21-cv-01580 United States Court of Federal Claims February 1, 2022 ... Superior's sales under VISN contracts and other data to ... ensure compliance with these purchase ... contract." Rex Serv. Corp. v. United States , ... 448 F.3d 1305, 1307 (Fed ... ...
-
Cgi Fed. Inc. v. United States
...[the] deficiencies it perceived in the procurement process.'" Id. at 1308 (alterations in original) (quoting Fed. Data Corp. v. United States, 911 F.2d 699, 705 (Fed. Cir. 1990)). In Rex the Federal Circuit expressly declined to reach a similar scenario to that presented here, explaining th......
-
Cecile Industries, Inc. v. Cheney
...is not supported by substantial evidence. This court thus reviews the Board's legal conclusions de novo. Federal Data Corp. v. United States, 911 F.2d 699, 702 (Fed.Cir.1990). The Board's interpretation of the scope of the DCA presents such a legal question reviewable under the de novo The ......