| FAA Order | Matter | Docket | Date Served | Decision |
|---|---|---|---|---|
| ODRA-10-535 | Protest of Sentel Corporation, Pursuant to Solicitation No. DTFAWA-09-R-00028 | 09-ODRA-00512 | 04/22/2010 | Sentel Corporation ("Sentel") filed the above bid protest ("Protest") on December 30, 2009 against an award of a contract to CSSI, Inc. ("CSSI") by the Federal Aviation Administration ("FAA") Headquarters under Solicitation No. DTFAWA-09-R-00028 ("Solicitation"). The Solicitation in question was issued to obtain professional support services for the Air Traffic Organization's Safety Management System Office. The ODRA recommended sustaining the protest on three of four grounds. First, the ODRA found that CSSI's misrepresentations regarding proposed key employee, coupled with reliance by the Agency and a failure to provide the proposed employee after award, constituted an impermissible "bait and switch" under ODRA precedent. Second, the ODRA found that clauses in the Solicitation that rendered CSSI ineligible for award because it failed to submit a small business subcontracting plan. In this regard, the ODRA rejected agency arguments that evaluation of the subcontract plan was a responsibility determination rather than a condition of eligibility for award. Third, the ODRA accepted Sentel's argument that the Agency failed to evaluate CSSI's price proposal in accordance with the Solicitation and the AMS. The ODRA recommended denying Sentel's fourth assertion that the Agency improperly evaluated CSSI's mitigation plan for potential organizational conflicts of interest ("OCI"). The ODRA also denied a request from CSSI to dismiss the Protest. CSSI argued that Sentel lacked standing on the grounds that Sentel's own OCIs rendered it ineligible for award. The ODRA denied the request as unsupported by the factual record. The ODRA further recognized that in light of the AMS policies that grant contracting officers considerable discretion to handle OCI issues on a case-by-case basis even after award, requests to dismiss a protest on OCI grounds will be "weak at best." The ODRA recommended that the Protest be sustained, and that Sentel be awarded a contract under the Solicitation. The ODRA also recommended that CSSI's contract be terminated for the convenience of the Government after a reasonable period to transition the work to Sentel. The Administrator adopted the Findings and Recommendations in the Final Order. (DRO Findings and Recommendation and Administrator's Order). |
| 04/22/2010 | Sentel Corporation ("Sentel") filed the above bid protest ("Protest") on December 30, 2009 against an award of a contract to CSSI, Inc. ("CSSI") by the Federal Aviation Administration ("FAA") Headquarters under Solicitation No. DTFAWA-09-R-00028 ("Solicitation"). The Solicitation in question was issued to obtain professional support services for the Air Traffic Organization's Safety Management System Office. The ODRA recommended sustaining the protest on three of four grounds. First, the ODRA found that CSSI's misrepresentations regarding proposed key employee, coupled with reliance by the Agency and a failure to provide the proposed employee after award, constituted an impermissible "bait and switch" under ODRA precedent. Second, the ODRA found that clauses in the Solicitation that rendered CSSI ineligible for award because it failed to submit a small business subcontracting plan. In this regard, the ODRA rejected agency arguments that evaluation of the subcontract plan was a responsibility determination rather than a condition of eligibility for award. Third, the ODRA accepted Sentel's argument that the Agency failed to evaluate CSSI's price proposal in accordance with the Solicitation and the AMS. The ODRA recommended denying Sentel's fourth assertion that the Agency improperly evaluated CSSI's mitigation plan for potential organizational conflicts of interest ("OCI"). The ODRA also denied a request from CSSI to dismiss the Protest. CSSI argued that Sentel lacked standing on the grounds that Sentel's own OCIs rendered it ineligible for award. The ODRA denied the request as unsupported by the factual record. The ODRA further recognized that in light of the AMS policies that grant contracting officers considerable discretion to handle OCI issues on a case-by-case basis even after award, requests to dismiss a protest on OCI grounds will be "weak at best." The ODRA recommended that the Protest be sustained, and that Sentel be awarded a contract under the Solicitation. The ODRA also recommended that CSSI's contract be terminated for the convenience of the Government after a reasonable period to transition the work to Sentel. The Administrator adopted the Findings and Recommendations in the Final Order. (DRO Findings and Recommendation and Administrator's Order). | |||
| ODRA-10-534 | Protest of Aerospace Safety and Security, Inc. | 10-ODRA-00527 | 04/20/2010 |
Decision Recommending Dismissal for Lack of Jurisdiction Final Order |
| 04/20/2010 |
Decision Recommending Dismissal for Lack of Jurisdiction Final Order |
|||
| ODRA-10-530 | Protest of Perera Construction, Inc. Pursuant to Solicitation No. DTFAWP-09-R-02087 | 09-ODRA-00507 | 03/09/2010 | This bid protest ("Protest"), filed by Perera Construction, Inc. ("Perera") with the Federal Aviation Administration ("FAA") Office of Dispute Resolution for Acquisition ("ODRA"), challenged its a determination by the contracting officer ("CO") to eliminate Perera from a two-phased acquisition process for failure to provide either a plan or proof of a plan for a qualified Earned Value Management System ("EVMS") alleging ambiguity in the Solicitation. Solicitation No. DTFAWP-09-R-02087 ("Solicitation") sought to establish a Qualified Vendor List ("QVL") for a contract to build an Air Traffic Control Tower ("ATCT") and Base Building at the Oakland International Airport and at the Palm Springs International Airport ("Contract"). The ODRA denied the Protest finding that the requirement for an EVMS was clearly established in the Amendments to the Solicitation. (Findings and Recommendation and Order). |
| Protest of Perera Construction, Inc. Pursuant to Solicitation No. DTFAWP-09-R-02087 | 03/09/2010 | This bid protest ("Protest"), filed by Perera Construction, Inc. ("Perera") with the Federal Aviation Administration ("FAA") Office of Dispute Resolution for Acquisition ("ODRA"), challenged its a determination by the contracting officer ("CO") to eliminate Perera from a two-phased acquisition process for failure to provide either a plan or proof of a plan for a qualified Earned Value Management System ("EVMS") alleging ambiguity in the Solicitation. Solicitation No. DTFAWP-09-R-02087 ("Solicitation") sought to establish a Qualified Vendor List ("QVL") for a contract to build an Air Traffic Control Tower ("ATCT") and Base Building at the Oakland International Airport and at the Palm Springs International Airport ("Contract"). The ODRA denied the Protest finding that the requirement for an EVMS was clearly established in the Amendments to the Solicitation. (Findings and Recommendation and Order). | ||
| ODRA-10-522 | Protest of Kodiak Northwest, Inc., Under Solicitation No. DTFANM-09-R-00189 | 09-ODRA-00505 | 01/29/2010 | Protest dismissed. The Protest challenged the Northwest Mountain Region's ("Region") award of a contract ("Contract") to Wausau Equipment Co., Inc. to supply a snow blower attachment for a front end loader. Kodiak primarily protested that the specification improperly included proprietary items that restricted and eliminated competition. Kodiak filed the Protest after award, and the Region argued that the Protest was untimely. Contrary to assertions by Kodiak, the ODRA found that the Solicitation contained the AMS Clause 3.9.1-3, Protest (November 2002), which put Kodiak on notice of the filing deadline. The ODRA also rejected Kodiak's assertion that unsuccessful attempts to raise issues with the Contracting Officer prior to submission of proposals should extend the deadline for filing the Protest. (Findings and Recommendation and Order). |
| Protest of Kodiak Northwest, Inc., Under Solicitation No. DTFANM-09-R-00189 | 01/29/2010 | Protest dismissed. The Protest challenged the Northwest Mountain Region's ("Region") award of a contract ("Contract") to Wausau Equipment Co., Inc. to supply a snow blower attachment for a front end loader. Kodiak primarily protested that the specification improperly included proprietary items that restricted and eliminated competition. Kodiak filed the Protest after award, and the Region argued that the Protest was untimely. Contrary to assertions by Kodiak, the ODRA found that the Solicitation contained the AMS Clause 3.9.1-3, Protest (November 2002), which put Kodiak on notice of the filing deadline. The ODRA also rejected Kodiak's assertion that unsuccessful attempts to raise issues with the Contracting Officer prior to submission of proposals should extend the deadline for filing the Protest. (Findings and Recommendation and Order). | ||
| 08-TSA-040 | Contract Dispute of Siemens Government Services, Inc. Under Contract No. HSTS04-05-DEP156 | 08-TSA-040 | 01/13/2010 | Siemens Government Services, Inc.'s ("SGS") Motion for Summary Judgment denied. SGS filed a Contract Dispute ("Dispute") with the ODRA pursuant to its Contract with the Transportation Security Administration ("TSA"), which requires SGS to perform both preventive and corrective maintenance on TSA-owned security equipment ("Equipment") deployed at airports throughout the United States and its territories. In the Dispute, SGS seeks to recover $7,640,103.85, including interest plus $405,348.16, excluding interest ("Disputed Amount"), that SGS alleges it is entitled to under the Contract. For its part, TSA did not deny that the Disputed Amount was withheld, but contended that it was justified in doing so under the terms of the Contract. SGS filed a motion for summary judgment ("Motion") with the ODRA asserting that the Contract's plain language establishes it, as a matter of law, as a firm fixed price contract, and not a unit price contract. Consequently, according to SGS, it is entitled to summary judgment on the entire Disputed Amount, inasmuch as the sole justification for the TSA's withholding rests on its allegedly incorrect interpretation that the Contract is unit price in nature. For its part, the TSA asserted that SGS erroneously invoiced and was paid for Equipment that was not "deployed and utilized" pursuant to the Contract's Statement of Work and that the Disputed Amount was properly withheld from other payments made to SGS under the Contract. Alternatively, SGS sought partial summary judgment on a portion of the Disputed Amount on timeliness grounds asserting that: (1) an August 15, 2008 Letter ("August 15 Letter") to SGS from the Contracting Officer ("CO"), which first asserts the Government's right to withhold the Disputed Amount, constitutes a Government claim; (2) pursuant to Disputes Clause 3.9.1.1 of the Contract, TSA was required to file a claim with the ODRA within two years of the accrual of the contract claim; and (3) the portions of the alleged claim accruing more than two years prior to the date of the August 15 Letter are not timely before the ODRA. The ODRA concluded that: (1) the nature of the Contract as fixed price or unit price involves a mixed question of fact and law and that there are material facts in dispute related to the interpretation of the Contract that preclude summary judgment at this stage in the proceedings; and (2) the TSA's action in withholding payments and reducing invoice amounts constituted an exercise of the Government's common law right to recoupment and setoff. As such, the action is not time barred by the ODRA's Procedural Rules governing the filing of contract disputes. The ODRA therefore denied the Motion. |
| 01/13/2010 | Siemens Government Services, Inc.'s ("SGS") Motion for Summary Judgment denied. SGS filed a Contract Dispute ("Dispute") with the ODRA pursuant to its Contract with the Transportation Security Administration ("TSA"), which requires SGS to perform both preventive and corrective maintenance on TSA-owned security equipment ("Equipment") deployed at airports throughout the United States and its territories. In the Dispute, SGS seeks to recover $7,640,103.85, including interest plus $405,348.16, excluding interest ("Disputed Amount"), that SGS alleges it is entitled to under the Contract. For its part, TSA did not deny that the Disputed Amount was withheld, but contended that it was justified in doing so under the terms of the Contract. SGS filed a motion for summary judgment ("Motion") with the ODRA asserting that the Contract's plain language establishes it, as a matter of law, as a firm fixed price contract, and not a unit price contract. Consequently, according to SGS, it is entitled to summary judgment on the entire Disputed Amount, inasmuch as the sole justification for the TSA's withholding rests on its allegedly incorrect interpretation that the Contract is unit price in nature. For its part, the TSA asserted that SGS erroneously invoiced and was paid for Equipment that was not "deployed and utilized" pursuant to the Contract's Statement of Work and that the Disputed Amount was properly withheld from other payments made to SGS under the Contract. Alternatively, SGS sought partial summary judgment on a portion of the Disputed Amount on timeliness grounds asserting that: (1) an August 15, 2008 Letter ("August 15 Letter") to SGS from the Contracting Officer ("CO"), which first asserts the Government's right to withhold the Disputed Amount, constitutes a Government claim; (2) pursuant to Disputes Clause 3.9.1.1 of the Contract, TSA was required to file a claim with the ODRA within two years of the accrual of the contract claim; and (3) the portions of the alleged claim accruing more than two years prior to the date of the August 15 Letter are not timely before the ODRA. The ODRA concluded that: (1) the nature of the Contract as fixed price or unit price involves a mixed question of fact and law and that there are material facts in dispute related to the interpretation of the Contract that preclude summary judgment at this stage in the proceedings; and (2) the TSA's action in withholding payments and reducing invoice amounts constituted an exercise of the Government's common law right to recoupment and setoff. As such, the action is not time barred by the ODRA's Procedural Rules governing the filing of contract disputes. The ODRA therefore denied the Motion. | |||
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