Safeguard Base Operations, LLC v. United States

• Decision Date: 25 October 2018
• Docket Number: No. 18-1515C,18-1515C
• Parties: SAFEGUARD BASE OPERATIONS, LLC, Protestor, v. UNITED STATES, Defendant, v. B&O JOINT VENTURE, LLC, Defendant-Intervenor.
• Court: Court of Federal Claims

SAFEGUARD BASE OPERATIONS, LLC, Protestor, v. UNITED STATES, Defendant, v. B&O JOINT VENTURE, LLC, Defendant-Intervenor.

No. 18-1515C

United States Court of Federal Claims

Redacted Version Issued for Publication: November 5, 2018¹

October 25, 2018

Post-Award Bid Protest; CICA Stay Override; Motion for Temporary Restraining Order; Motion for Preliminary Injunction.

Alexander B. Ginsberg, Pillsbury Winthrop Shaw Pittman, LLP, McLean, VA, for protestor. Of counsel was Alex D. Tomaszczuk, Pillsbury Winthrop Shaw Pittman, LLP, McLean, VA, Aaron S. Ralph and Kevin R. Massoudi, Pillsbury Winthrop Shaw Pittman, LLP, Los Angeles, CA, and Diana Parks Curran and Hadeel Masseoud, Curran Legal Services, Johns Creek, GA.

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 was Todd R. Overman, Bass, Berry & Sims PLC, Washington, D.C.

OPINION

HORN, J.

Before the court is protestor's second motion for a temporary restraining order and preliminary injunction, in which protestor challenges the decision of the United States Department of Homeland Security (DHS), Federal Law Enforcement Training Centers (the Agency), to override the automatic stay of performance required by the Competition in Contracting Act (CICA), 31 U.S.C. § 3553 (2012), upon protestor's filing of a bid protest at the United States Government Accountability Office (GAO).

In protestor's October 3, 2018 amended complaint, Safeguard Base Operations, LLC (Safeguard), a joint venture which is the protestor in the above-captioned bid protest, states in its amended complaint that the Safeguard joint venture is an "unpopulated joint venture" consisting of Safeguard Security Operations, LLC (SSL) and SRM Group, Inc. (SRM Group). According to an October 9, 2018 declaration signed by Michael D. Randall, who states that he is the CEO of SSL, SSL is the fifty-one percent owner of Safeguard joint venture, and SRM Group is the forty-nine percent owner of the Safeguard joint venture.

On June 28, 2012, the Agency awarded Contract No. HSFLGL-12-C-00006 to SRM Group (the SRM Group Contract). Safeguard indicates in its amended complaint in this court that the 2012 SRM Group Contract required SRM Group to provide "dormitory maintenance" services at the Federal Law Enforcement Training Center in Glynco, Georgia. The SRM Group Contract was set-aside for contractors qualified as part of the Small Business Administration's (SBA's) 8(a) program.² The SRM Group Contract had a phase-in period of July 1 to July 15, 2012, and a base period of performance beginning on July 16, 2012 and ending on September 30, 2012. The SRM Group Contract also contained Federal Acquisition (FAR) § 52.217-9, which stated that "[t]he total duration of this contract, including the exercise of any options under this clause, shall not exceed 60 months or 5 years."³ (emphasis in original). According to protestor's amended complaintand the Agency's October 2, 2018 Determination and Findings,⁴ the SRM Group Contract contained multiple option periods of performance, all of which were exercised by the Agency. The Agency's October 2, 2018 Determination and Findings indicates that the SRM Group Contract, after the exercise of all option periods of performance, originally was set to expire on June 30, 2017.

In the Agency's October 2, 2018 Determination and Findings, Ms. Fowler states that "FAR clause 52.217-8 Option to Extend Services[⁵] was in the contract and FLETC [Federal Law Enforcement Training Center] exercised it." On June 28, 2012, the Agency issued a three-month extension under FAR § 52.217-8 to the SRM Group Contract, which extended the SRM Group Contract to September 30, 2017. On September 7, 2017, the Agency issued a second three-month extension under FAR § 52.217-8 to the SRM Group Contract, which extended SRM Group's performance to December 31, 2017. Defendant and defendant-intervenor assert that the SRM Group Contract with the Agency was completed on December 31, 2017, when the second three-month extension under FAR § 52.217-8 ended.

On October 11, 2017, the Agency issued Request for Proposal No. HSFLGL-17-R-00001 (the Solicitation) as a "competitive 8(a) Set-Aside." The Solicitation stated that award would be made on a "best value" basis, and that the "period of performance of this contract will be a base period of three (3) months and seven (7) 12-month option periods." Under a section titled "Solicitation General Information," the Solicitation stated: "Pricing Schedule and Periods of Performance (POP) Service dates for each CLIN [Contract Line Item 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's performance work statement stated that the Federal Law Enforcement Center in Glynco, Georgia, is located on approximately 2,000 acres in southeast Georgia and "is responsible for providing law enforcement officer training toover 95 Partner Organizations and is responsible for providing certain core instructional law enforcement programs as well as a variety of support services." The performance work statement stated that the Glynco, Georgia, Federal Law Enforcement Training Center "has lodging for approximately 2,093 occupants." The performance work statement also stated that:

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).

On November 2, 2017, the Agency completed a Justification and Approval pursuant to FAR § 6.302-2 (2017), which "extend[ed]" SRM Group's performance to June 30, 2018. Under FAR § 6.302-2, "[w]hen the agency's need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals, full and open competition need not be provided for." See FAR § 6.302-2(a)(2). FAR § 6.302-2 applies when "(1) an unusual and compelling urgency precludes full and open competition, and (2) delay in award of a contract would result in serious injury, financial or other, to the Government." See FAR § 6.302-2(b). The November 2, 2017 Justification and Approval indicated that the Agency was entering "into a six month contract extension on a basis of other than full and open competition beyond the current contract period" of SRM Group's performance. The November 2, 2017 Justification and Approval asserted that "Dorm Management Services are critical to sustain FLETC's ability to train the Federal Law Enforcement Officers. This contract extension will maintain contract support until a new contract can be awarded." The November 2, 2017 Justification and Approval also asserted that "[a] lapse in contract support would present an unacceptable risk to FLETC. Should these critical services become unavailable, it would have a major, negative impact on the ability of the FLETC to provide critical training to approximately 95 federal agencies partnered with FLETC." Defendant asserts that, on December 31, 2017, "SRM's contract was over" following the expiration of the two three-month extensions pursuant to FAR § 52.217-8, and that the November 2, 2017 Justification and Approval, as well as the subsequent Justifications and Approvals discussed below, did not extend the SRM Group Contract as awarded in 2012. Defendant asserts:

Solely for the sake of administrative convenience, FLETC effectuated the sole-source contract actions through "modifications" to SRM's contract, even though SRM's contract had run its course and could not be extended further after the exercise of the FAR 52.217-8 option. This "modifications" approach avoided delays that would have been caused by certain pre-award reviews, generation of new clauses (which could cause pricingimpacts), and the need to obtain a temporary waiver from the SBA for a new award of an 8(a) approved program project to a non-8(a) firm.[⁶]

(internal references omitted).

According to Safeguard's second motion for a temporary restraining order and a preliminary injunction, on March 16, 2018, Safeguard submitted a timely proposal in response to the Solicitation. On June 12, 2018, the DHS Office of Legislative Affairs approved of an award under the Solicitation to B&O Joint Venture, LLC (B&O). On June 14, 2018, the Agency notified Safeguard that B&O was the apparent awardee under the Solicitation.⁷ In the Agency's Determination and Findings, Ms. Fowler states that, on June 18, 2018, Safeguard filed a size protest with the Small Business Administration (SBA). Ms. Fowler also states that, on June 22, 2018, Safeguard filed a pre-award bid protest with the GAO alleging that the Agency had "conducted an arbitrary and capricious evaluation." According to Ms. Fowler, "[a]s a result of these protest actions, FLETC issued a one-month contract extension to the incumbent contractor, SRM Group, Inc., to continue services through July 31, 2018." Indeed, on June 22, 2018, the Agency had issued a second Justification and Approval pursuant to ...