Wildflower Int'l, Ltd. v. United States

• Decision Date: 23 May 2012
• Docket Number: No. 11-734 C,11-734 C
• Parties: WILDFLOWER INTERNATIONAL, LTD., Plaintiff, v. THE UNITED STATES, Defendant, and GOVPLACE, INC., Defendant-Intervenor.
• Court: U.S. Claims Court

WILDFLOWER INTERNATIONAL, LTD., Plaintiff,

v. THE UNITED STATES, Defendant,andGOVPLACE, INC., Defendant-Intervenor.

No. 11-734 C

United States Court of Federal Claims

Filed Under Seal: May 23, 2012

Reissued for Publication: June 5, 2012 ^*

BID PROTEST

TO BE PUBLISHED

Federal Acquisition Streamlining Act, Pub. L. No.

103-355, 108 Stat. 3243 (1994); limitation on

protests of civilian agency task or delivery orders;

41 U.S.C. § 4106(f); expiration of limitation;

National Defense Authorization Act for Fiscal Year

2008, Pub. L. No. 110-181, 122 Stat. 239;

interpretation of sunset provision in 2008 NDAA in

light of later enactments; restoration of limitation on

protests of task or delivery orders after plaintiff filed

bid protest action; National Defense Authorization

Act for Fiscal Year 2012, Pub. L. No. 112-81, 125

Stat. 1298 (2011); retroactivity analysis; restoration

of limitation did not affect plaintiff's pending action;

presumption against retroactivity; Landgraf v. USI

Film Products, 511 U.S. 244 (1994); Princess

Cruises, Inc. v. United States, 397 F.3d 1358 (Fed.

Cir. 2005); court has jurisdiction to hear protests of

corrective action taken during procurement; prior

awardee has standing to protest corrective action;

protest of corrective action ripe for judicial review;

decision to take corrective action was reasonable;

nature and scope of corrective action was reasonable

under circumstances; clarification of ambiguity in

initial solicitation.

Lars E. Anderson, Venable LLP, Vienna, Va., for plaintiff. James Y. Boland, Venable LLP, Vienna, Va., of counsel.

Kenneth S. Kessler, Trial Attorney, Donald E. Kinner, Assistant Director, Jeanne E. Davidson, Director, Commercial Litigation Branch, Tony West, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C., for defendant.

Jonathan S. Aronie, Sheppard, Mullin, Richter & Hampton LLP, Washington, D.C., for defendant-intervenor. Anne B. Perry, Marko W. Kipa, Sheppard, Mullin, Richter & Hampton LLP, Washington D.C., of counsel.

OPINION AND ORDER

GEORGE W. MILLER, Judge

Plaintiff, Wildflower International, Ltd. ("Wildflower"), filed this pre-award bid protest action against defendant, the United States, on November 3, 2011. See Compl. (docket entry 1). Wildflower challenges the Department of Homeland Security ("DHS"), Customs and Border Protection's ("CBP") decision to terminate Wildflower's delivery order for convenience and to repost a revised Request for Quotes ("RFQ") as part of CBP's "corrective action" with respect to perceived problems with the conduct of the initial procurement pursuant to the initial RFQ. For the following reasons, defendant's motion to dismiss based on lack of jurisdiction, standing, and ripeness is DENIED; defendant-intervenor Govplace Inc.'s ("Govplace") motion to dismiss based on lack of jurisdiction is DENIED; Wildflower's motion for judgment on the administrative record is DENIED; and defendant's and Govplace's motions for judgment on the administrative record are GRANTED (docket entry 33, Dec. 6, 2011; docket entry 34, Dec. 6, 2011; docket entry 38, Dec. 9, 2011; docket entry 53, Feb. 7, 2012; docket entry 54, Feb. 7, 2012).

I. Background

The procurement at issue deals with the delivery, installation, and support of Local Area Network ("LAN") switches and related equipment for numerous CBP facilities under DHS's FirstSource contract, a multiple-award, indefinite-delivery/indefinite-quantity contract. See Administrative R. ("AR") Tab A, at 4; AR Tab B, at 56, 258; AR Tab E, at 649. Wildflower and Govplace are prime contractors under the FirstSource contract. See AR Tab F, at 726-27. The purpose of the FirstSource contract is to provide DHS with the ability to purchase information technology "commodity products (hardware and software) and associated services." AR Tab E, at 649.

CBP used a "reverse auction" on a website called FedBid to fill the delivery order at issue. See AR Tab B, at 56. The FirstSource Ordering Guide describes FedBid as "[a]n online reverse auctioning tool where buyers can procure commodity-type commercial items and satisfy competition, publicizing, and reporting requirements." AR Tab F, at 747. A vendor cannot view the price or name of other vendors during the bidding period, but knows whether its price "leads" or "lags." Def.'s Mot. to Dismiss, or in Alternative, for J. upon Administrative R. ("Def.'s Mot.") 6-7 (internal quotation marks omitted). A vendor can reduce its bid and underbid another vendor until the bidding period closes. Id. FedBid allows vendors to ask questions directly to the contracting officer during the bidding period and allows the contracting officer to respond directly to the vendor that submitted the question. AR Tab B, at 56. "Vendors can only viewother vendor's questions and answers if these questions and answers are posted as an attachment to the RFQ." AR Tab B, at 56-57; see also AR Tab B, at 69, 73.

A. Initial RFQ and Award to Wildflower

The initial RFQ—RFQ 20064082—was posted on FedBid on August 24, 2011, with the bidding period ending on August 31, 2011, which was later extended to September 6, 2011. AR Tab B, at 66-70, 219, 508.

The RFQ indicated that the delivery order would be awarded to the offeror whose past performance did not pose a risk and whose offer was the lowest priced and technically acceptable. AR Tab B, at 69. Technical acceptability meant the "technical capabilities conform to the Government's Statement of Work or listed specs whichever is applicable to the buy." Id. Delivery was required approximately eighteen months from the time of award. Id. The RFQ called for "[b]rand [n]ame [Cisco] or [e]qual" equipment. AR Tab B, at 68. Vendors were instructed that they could "submit bids for alternate items, provided those items [met] all of the salient physical, functional, or performance characteristics specified by this solicitation." Id. The FirstSource contract requires hardware and software "that are factory-installed and ready for immediate use," unless otherwise provided in the delivery order. AR Tab E, at 658.

The Statement of Work ("SOW") required some of the equipment to have "functionality" with, inter alia, the so-called "802.1ae" standard. See AR Tab B, at 110. According to defendant, 802.1ae is a standard developed by the Institute of Electrical and Electronic Engineers that specifies protocols to meet security requirements. At issue in this action is whether the solicitation was ambiguous as to whether an offeror was required to be technically compliant with 802.1ae at the time of award or at some later time during the eighteen-month performance period.

By the end of the bidding period, on September 6, 2011, four bids had been submitted by FirstSource contractors. AR Tab B, at 66. Wildflower submitted the lowest bid at approximately $5.1 million, and Govplace submitted the highest bid at approximately [***]. Id.

The technical evaluator at first found Wildflower's offer to be technically unacceptable because, inter alia, he believed that the initial SOW required the awardee's equipment to be technically compliant at the time of award, and three of Wildflower's proposed switches would not become technically compliant until the last quarter of 2012. See AR Tab B, at 180, 548. CBP told Wildflower that some of Wildflower's "devices do not meet the requirement to support 802.1AE. While the support is enabled in hardware, the software required to support this requirement will not be available till 4th quarter 2012." Id.

In response, Wildflower pointed to a question-and-answer exchange in which CBP had suggested that an offeror could propose equipment that would meet CBP's technical requirements by the end of the eighteen-month performance period. See AR Tab B, at 189, 550; see also AR Tab B, at 147, 150. Wildflower's question stated:

802.1AE is an open standard that is not widely enabled in the industry. While most hardware will support 802.1AE when there is further software developmentand released in the next year [sic]. By requiring that this specification be enabled at the time of contract award, the Government is effectively limiting competition to CISCO and creating a sole source procurement.

AR Tab B, at 150. In its answer, CBP identified Juniper as a producer of non-Cisco equipment that "has this capability and will be released in its next scheduled software release." AR Tab B, at 546. In its response to CBP's letter identifying technical issues, Wildflower wrote: "Based on the government response, Wildflower bid a solution that is compliant. Please note that the government specifically called out Juniper products with future releases as being acceptable. In reliance upon the government representation Wildflower bid the Juniper product."¹ AR Tab B, at 189. The parties dispute whether this question-and-answer exchange was shared with other offerors. See infra Part IV.A.

Wildflower also pointed to a public question and answer in which a bidder had asked if CBP expected an "equal amount of work" performed each month over the eighteen-month period. CBP responded: "The Offeror has the responsibility and flexibility to design the schedule in the most cost effective manner it can so long as it is executed in the time allocated. The creation of the schedule is the Offeror's responsibility." AR Tab B, at 189; see AR Tab B, at 135.

After reviewing Wildflower's response, the technical evaluator indicated that CBP could accept Wildflower's bid if Wildflower "were to be contractually liable to retrofit the installation of th[e] equipment within the contract award time at no cost to the Government." AR Tab B, at 204. CBP asked Wildflower, "Are you agreeing to start installation upon time of award and then retrofit the installed equipment at no cost to the Government when the 802.1ae software capability is available in 4th quarter of 2012?" AR Tab B, at 215, 555. Wildflower responded in the affirmative. Id.

In light of the foregoing exchange, the technical evaluator...