Safeguard Base Operations, LLC v. United States
| Decision Date | 02 July 2019 |
| Docket Number | No. 19-61C,19-61C |
| Court | U.S. Claims Court |
| Parties | SAFEGUARD BASE OPERATIONS, LLC, Protestor, v. UNITED STATES, Defendant, v. B&O JOINT VENTURE, LLC, Defendant-Intervenor. |
Post-Award Bid Protest; Motion to Dismiss; Cross-Motions for Judgment on the Administrative Record; Standing; Solicitation Interpretation; Waiver; Clarifications; Best-Value Tradeoff.
Alex D. Tomaszczuk, Pillsbury Winthrop Shaw Pittman, LLP, Los Angeles, CA, for protestor. Of counsel were Alexander B. Ginsberg, Pillsbury Winthrop Shaw Pittman, LLP, McLean, VA, and Aaron S. Ralph and Kevin R. Massoudi, Pillsbury Winthrop Shaw Pittman, LLP, Los Angeles, CA.
P. Davis Oliver, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant Attorney General. Of counsel was James C. Caine, Attorney, Federal Law Enforcement Training Centers, Glynco, GA.
Richard W. Arnholt, Bass, Berry & Sims PLC, Washington, D.C., for defendant-intervenor. Of counsel were Todd R. Overman and Sylvia Yi, Bass, Berry & Sims PLC, Washington, D.C.
In the above-captioned, post-award bid protest, Safeguard Base Operations, LLC (Safeguard) challenges the award of a contract to B&O Joint Venture, LLC (B&O) under Solicitation No. HSFLGL-17-R-00001 (the Solicitation) by the United States Department of Homeland Security, Federal Law Enforcement Training Center (the Agency).
Safeguard is a joint venture consisting of Safeguard Security Solutions, LLC (SSSL) and SRM Group, Inc. (SRM Group). Protestor contends that Safeguard is an 8(a)-eligible joint venture and a "leading provider of dormitory services." SSSL is the fifty-one percent owner of the Safeguard joint venture and is an 8(a)-eligible firm. SRM Group is the forty-nine percent owner of the Safeguard joint venture and currently is not 8(a)-eligible. B&O, the defendant-intervenor in this protest, is an 8(a) joint venture consisting of BPA Facility Services Inc. and Omni Corporation.
The parties have stipulated that, from June 2012 to October 2018, SRM Group provided to the Agency the services that were procured under the Solicitation. SRM Group's prior contract with the Agency, Contract No. HSFLGL-12-C-00006 (the SRM Group Contract), was awarded as an 8(a) contract. According to Agency contracting officer Sheryle Wood's October 29, 2018 statement of facts submitted to the United States Government Accountability Office (GAO) in response to a protest filed at the GAO by Safeguard,2 SRM Group graduated from the 8(a) program on February 23, 2013.
On October 11, 2017, the Agency issued the Solicitation at issue in this Opinion, which was issued as a commercial item acquisition and was set-aside for 8(a)-eligible contractors. The Solicitation indicated that the contract to be awarded under the Solicitation would be a firm-fixed price contract for dormitory maintenance services to be provided at the Agency's training center in Glynco, Georgia, and would have "a base period of nine (9) months and seven (7) 12-month option periods." The Solicitation's performance work statement stated that the Agency's training center in Glynco, Georgia, has a lodging capacity of 2,093, that the Agency was responsible for training federal law enforcement officers, and that the Agency "is responsible for providing certain core instructional law enforcement programs as well as a variety of support services." The performance work statement also stated:
The Contractor shall provide all labor, supplies, materials, equipment, including safety and protective gear, repair parts, tools, equipment, planning, scheduling and coordination, training, licenses, permits,certificates, insurance, pre-employment screening, reports and files, management, and supervision necessary to perform dormitory custodial, desk clerk, locksmith, and maintenance services for nine (9) dormitories, five (5) student centers, one (1) laundry center and other facilities as described throughout the Performance Work Statement (PWS).
The Solicitation provided that award under the Solicitation would be made on a best-value basis based on factors set forth in the Solicitation. As originally issued, the Solicitation stated that Factor A1 was management and technical approach, Factor A2 was hazardous waste management plan, Factor B was past performance, and Factor C was price. Amendment No. 3 to the Solicitation3 added corporate experience of the prime contractor as a factor and changed the numbering of some of the factors to be evaluated under the Solicitation. Amendment No. 3 stated that Factor A2 was to become corporate experience of the prime contractor, and that hazardous waste management plan, which previously had been listed as Factor A2, was to become Factor A3. Factor A1 remained management and technical approach, Factor B remained past performance, and Factor C remained price. The Solicitation, as well as Amendment No. 3 to the Solicitation, indicated that, when combined, all non-price factors were approximately equal to price.
Section A of the Solicitation, titled "SECTION A SOLICITATION GENERAL INFORMATION," stated: "Pricing Schedule and Periods of Performance (POP) Service dates for each CLIN [Contract Item Line Number] are detailed in Section B. Note: Exceptions to line item structure in Section B may result in a bid not considered for award." (capitalization in original). The Solicitation also provided:
SECTION B PRICE SCHEDULE
The Solicitation also contained what protestor refers to as an "'Order of Precedence' Clause," which stated:
(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order: (1) the schedule of supplies/services; (2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause; (3) the [Federal Acquisition Regulation (FAR)] clause at 52.212-5; (4) addenda to this solicitation or contract, including any license agreements for computer software; (5) solicitation provisions if this is a solicitation; (6) other paragraphs of this clause; (7) the Standard Form 1449; (8) other documents, exhibits, and attachments; and (9) the specification.
(capitalization and emphasis in original).
The Solicitation contained FAR clause 52.212-1, titled "Instruction to Offerors - Commercial Items," which stated that offers may be submitted on a government Standard Form (SF) 1449, and that offers "must show" "Price and any discount terms." (capitalization in original). FAR clause 52.212-1 in the Solicitation further stated:
(g) Contract award (not applicable to Invitation for Bids). The Government intends to evaluate offers and award a contract without discussions with offerors. Therefore, the offeror's initial offer should contain the offeror's best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary. The Government may reject any or all offers if such action is in the public interest; accept other than the lowest offer; and waive informalities and minor irregularities in offers received.
(emphasis in original). The Solicitation also contained an addendum to FAR clause 52.212-1, which stated that an offeror's "[p]rice proposal shall include price for the phase-in period, base period and seven option periods." Moreover, the addendum to FAR clause 52.212-1 stated:
The addendum to FAR clause 52.212-1 directed offerors to price proposals as Volume 3 and that:
Volume 3 shall be labeled Factor C-Price (Section B, to include price breakdown), SF 1449, SF30 Amendments, Section B price and price breakdown, required bond, completed HSAR clause at 3052.209-70, Prohibition on Contracts with Corporate Expatriates by checking pertinent block at paragraph (f) Disclosure and sign at end of clause (Section C Contract Clauses), completed FAR Clause 52.212-3 Representations and Certifications of this solicitation (Section E Solicitation Provisions).
(emphasis in original).
The Solicitation contained a modified version of FAR clause 52.212-2, titled "Evaluation - Commercial Items," which stated that the Agency "will...
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