Government Contracts Government Ordered to Amend Five-Year-Old Solicitation
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Tuesday, September 11, 2018

Government Ordered to Amend Five-Year-Old Solicitation

By Government Contracts Editorial Staff

The Court of Federal Claims issued an injunction ordering the government to amend a 2013 solicitation for base operations services because the government’s requirements to support military installations on Guam had markedly changed, triggering the obligation under FAR 15.206(a) to amend. In the most recent of a series of protests before the Government Accountability Office and the court, the CFC ordered the government to perform a new evaluation of the protester’s and awardee’s proposals or issue a new solicitation (62 CCF ¶81,356). Despite explicitly acknowledging “the lengthy period that ha[d] passed since th[e] solicitation was originally issued as well as changes that ha[d] occurred in the requirements that were originally identified,” the source selection authority decided to reevaluate the proposals and again selected the awardee. The protester contended the reevaluation was unreasonable for failing to consider the current circumstances in Guam and not taking into account the significant increase in operations requirements since 2013 and the bridge contracts, which the protester performed.

Bridge Contracts Relevant. The court agreed. Rather than correcting its focus on the bridge contracts’ cost elements without addressing the effects of increased requirements in evaluating the realism of the protester’s cost proposal, the government chose to disregard the bridge contracts completely. Under the circumstances, the experience under the bridge contracts was relevant and the government was required to take it into account. Moreover, FAR 15.206(a) requires the contracting officer to amend a solicitation “[w]hen … the [g]overnment changes its requirements ….” The government argued its choice of a cost-reimbursement contract provided flexibility for indeterminate requirements, but FAR 15.206(a) makes no exception for cost-reimbursement contracts. Finally, even though the court previously deferred to the government’s determination its requirements had not changed, the government acknowledged the circumstances at military installations on Guam had continued to change. The government’s failure to consider the protester’s experience under the bridge contracts also contributed to flaws in the reevaluation of past performance and technical factors. (DZSP 21, LLC v. U.S., et al., FedCl, 62 CCF ¶81,451).

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