Tolliver Grp., Inc. v. United States
| Decision Date | 30 November 2020 |
| Docket Number | No. 20-1290C,No. 20-1108C,20-1108C,20-1290C |
| Parties | THE TOLLIVER GROUP, INC., and PEOPLE, TECHNOLOGY AND PROCESSES, LLC, Plaintiffs, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Solicitation cancellation; Small Business Act; Rule of Two; set-aside; withdrawal; Federal Supply Schedule (FSS); multiple award contract; IDIQ; RAMCOR; SRA Int'l; Federal Acquisition Streamlining Act (FASA); Administrative Dispute Resolution Act of 1996 (ADRA); Competition in Contracting Act (CICA); GAO protest jurisdiction; Tucker Act jurisdiction; FAR Part 8; FAR Part 14; FAR Part 15; FAR Part 19.
Jon D. Levin, Maynard, Cooper & Gale, PC, Huntsville, AL, for Plaintiff, The Tolliver Group, Inc. With him on the briefs were W. Brad English, Emily J. Chancey, and Michael W. Rich.
Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Plaintiff, People, Technology and Processes, LLC. With him on the briefs was Nathaniel E. Castellano.
David R. Pehlke, United States Department of Justice, Civil Division, Washington, DC, for Defendant. With him on the briefs were Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC.
This case presents the question of whether, or under what circumstances, an agency - in this case, the Department of the Army ("Army" or the "agency") - may cancel a Federal Acquisition Regulation ("FAR") Part 8 procurement for the express purpose of moving it from a service disabled veteran-owned small businesses ("SDVOSB") set-aside under a General Service Administration ("GSA") Federal Supply Schedule ("FSS") to a multiple award indefinite quantity indefinite delivery ("MAIDIQ") vehicle, a contract that the Plaintiffs in this case do not hold. Additionally, the Court must address the source, if any, of this Court's jurisdiction to decide complaints challenging an agency's cancellation of a FAR Part 8 procurement.
Plaintiffs, The Tolliver Group, Inc. ("TTGI" or "Tolliver"), and People, Technology and Processes, LLC ("PTP"), claim that the agency's decision to cancel two GSA FSS support staffing solicitations fails the Administrative Procedure Act ("APA") standard of review applicable in actions brought pursuant to 28 U.S.C. § 1491(b)(1), which requires that an agency action must not be arbitrary, capricious, or otherwise contrary to law. Plaintiffs allege the agency's cancellation decisions fail the APA standard of review based on the extreme brevity of the analysis underlying the agency's decision and, in Plaintiff's view, the agency's ipse dixit conclusions. More significantly, Plaintiffs assert that the agency's decision and supporting rationale - namely, to move the solicitations at issue to a recently awarded MAIDIQ - violates FAR 19.502-2(b), commonly known as the "Rule of Two." Plaintiffs seek permanent injunctive relief, including an order preventing the Army from cancelling the set-aside solicitations and resoliciting the work under the MAIDIQ until the agency complies with the Rule of Two and other relevant regulations.
Defendant, the United States, counters that the agency acted reasonably under the APA review standard, or, in the alternative, because the agency's power to cancel a FAR Part 8 solicitation is virtually plenary, the decision should be reviewed only for "bad faith," which, the government claims is unsupported based on the record. The government further contends that Plaintiffs' Rule of Two claim is foreclosed by the Federal Acquisition Streamlining Act ("FASA") task order protest bar and, that on the merits, an agency is not required to perform a Rule of Two analysis before soliciting work under an existing MAIDIQ.
For the reasons explained below, the Court holds: (1) in the context of the facts of this case, this Court has jurisdiction based upon an "alleged violation of statute or regulation in connection with a procurement or a proposed procurement." 28 U.S.C. § 1491(b)(1); (2) the FASA task order bar does not pose a jurisdictional hurdle to Plaintiffs' respective causes of action, including the Rule of Two arguments; and (3) pursuant to the APA review standard, which applies here, the agency's decision is inadequate, both in terms of the dearth of its analysis and because the agency has not complied with the FAR's Rule of Two and other provisions of law. Consequently, the Court holds that Plaintiffs are entitled to the equitable relief that they seek.
TTGI and PTP are both Florida-based SDVOSBs which provide, among other things, staffing and technical support services. ECF 21 ("TTGI Am. Compl.") at ¶ 5; People, Technology and Processes, LLC, v. United States, Fed. Cl. No. 20-1290, ECF No. 1 ("PTP Compl.") at ¶¶ 15-17. The Army maintains the Fires Center of Excellence ("FCoE"),2 a field artillery school located at Fort Sill, Oklahoma, that "trains soldiers, officers, and marines in tactics, techniques, and procedures for the use of fire support systems in combat." PTP Compl. at ¶ 16. From 2010 until 2016, the Army had utilized a long-term omnibus multiple award IDIQ ("OMNIBUS MAIDIQ") contract to procure training and instructor services at Fort Sill. ECF No. 25 ("Administrative Record" or "AR") at 617-20 (AR 613-16).3 Following the expiration of those contracts, the Army utilized a series of short-term contracts to procure those services. Id. at 617 (AR 613). This case arises out of the Army's issuance of two solicitations in early 2020 — the 13F and Joint Fires Observer Course ("JFOC") Solicitations — for procuring training instructors for fire support specialists at Fort Sill, awarding contracts pursuant to those solicitations, and subsequently cancelling both the contracts and the solicitations, the latter for the purpose of transferring their scopes of work to an existing MAIDIQ. This section summarizes this matter's factual background and procedural history.
On April 3, 2020, the Army's Mission and Installation Contracting Command ("MICC")4 at Fort Sill issued Solicitation No. W9124L-20-R-0016 (the "13F Solicitation") pursuant to the GSA Multiple Award Schedule ("MAS")5 as a 100% SDVOSB set-aside using primarily the procedures outlined in FAR 8.4 and incorporating certain FAR Part 15 provisions. ECF No. 25 at 5-7, 346 (AR 1-3, 342). Specifically, the 13F Solicitation sought to procure "20 fully qualified personnel to instruct 13F [Advanced IndividualTraining] courses" regarding "[p]lanning and coordinating fire support for the maneuver commander, locate and engage targets utilizing calls for indirect fire to mortars, field artillery and naval surface fire support assets and battlefield information reporting." Id. at 40, 44, 83 (AR 36, 40, 79). This solicitation contemplated the award of a contract with a "twelve (12) month base period [of performance] to include a 90 day [sic] phase-in period, followed by one (1), one-year option period." Id. at 40 (AR 36).
On April 6, 2020, the MICC separately issued Solicitation No. W9124L-20-R-0020 (the "JFOC Solicitation"), pursuant to the GSA MAS, also as a 100% SDVOSB set-aside. Id. at 386-88 (AR 382-384). Specifically, the JFOC Solicitation sought to procure "14 qualified personnel" to provide "JFOC instruction to multi-service and coalition students attending Field Artillery Basic Officer Leader Course." Id. at 428-29 (AR 424-25). This solicitation contemplated the award of a contract with a "twelve (12) month base period [of performance] to include a 90 day [sic] phase-in period, followed by one (1), one-year option period." Id. at 428 (AR 424).
In sum, both the 13F and JFOC Solicitations contemplated relatively short-term contracts that the agency designated as 100% SDVOSB set-asides.6 Several eligible small businesses submitted timely proposals under both solicitations, including TTGI and PTP, the latter which was the incumbent provider of these services at Fort Sill. TTGI Am. Compl. at ¶ 14; PTP Compl. at ¶¶ 26, 34. On April 30, 2020, the agency awarded the 13F contract to TTGI. TTGI Am. Compl. at ¶ 16; ECF No. 25 at 244-49 (AR 240-45). On May 18, 2020, the agency awarded the JFOC contract to Navigation Development Group, Inc. ("NDGI"), another SDVOSB. Id. at 565, 576 (AR 561, 572).
On July 17, 2020, PTP filed a post-award bid protest with GAO, challenging theagency's award of the 13F contract to TTGI. ECF No. 25 at 358-81 (AR 354-77). PTP alleged, among other things, that the method the agency employed to evaluate PTP's professional compensation, in comparison to that of TTGI, was improper and that, in awarding the task order to TTGI, the agency had "departed from the Solicitation's required evaluation process, held PTP and Tolliver to unequal standards, and conducted a[] flawed price realism evaluation." Id. at 359 (AR 355).
On July 29, 2020, Contracting Officer ("CO") Pauline K. Abraham issued a Notice of Corrective Action. Id. at 382 (AR 378). CO Abraham acknowledged that "[t]he Army believes that taking corrective action would better serve the procurement process" and identified the measures that the agency would take, as follows:
Id. (emphasis added). While the Notice of Corrective Action did not elaborate on what considerations the agency would weigh as part of its re-evaluation, CO Abraham, in an internal agency memorandum...
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