“Under the Small Business Act, 16 U.S.C. § 631 et seq. and implementing regulations, when a CO finds that an apparently successful small business offeror lacks certain elements of responsibility, including the capacity, competency, or tenacity necessary to perform the contract, the contacting officer must refer the offeror to the SBA.”
How later courts described this case
- “Under the Small Business Act, 16 U.S.C. § 631 et seq. and implementing regulations, when a CO finds that an apparently successful small business offeror lacks certain elements of responsibility, including the capacity, competency, or tenacity necessary to perform the contract, the contacting officer must refer the offeror to the SBA.”
Written by the judges who cited it.
The opinion
3Jn tbe Wniteb
ORIGINAL ~tates
::~~~
([ourt of jfeberal ([laitnil.J.s. couAr OF
FEDERAL CLAIMS
No. 15-367C
(Filed: February 3, 2016)*
*Opinion originally filed under seal on January 14, 2016
)
JACQUELINE R. SIMS, )
d/b/a JRS STAFFING SERVICES, )
) Bid Protest; Pro Se, Nonresponsibility
Pro Se Plaintiff, ) Determination; Denial of Certificate of
) Competency; Capability to Perform
v. )
)
THE UNITED STATES, )
)
Defendant. )
~~~~~~~~~)
Jacqueline R. Sims, Lawrenceville, GA, Pro Se plaintiff.
Michael A. Rodriguez, Civil Division, U.S. Department of Justice, Washington, DC, with
whom were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Robert
E. Kirschman, Jr., Director, and Steven J Gillingham, Assistant Director Commercial
Litigation Branch, for defendant. Pawandeep K. Chatha, Assistant General Counsel,
Federal Bureau of Prisons, Washington, DC and Sabrina C. Daly, U.S. Small Business
Administration, Washington, DC, of counsel.
OPINION
FIRESTONE, Senior Judge
This post-award bid protest comes before the court on the parties' cross motions
for judgment on the administrative record pursuant to Rule of the Court of Federal
Claims ("RCFC") 52.1. Also pending is the second motion of plaintiff Jacqueline R.
Sims d/b/a JRS Staffing Services ("JRS" or "Ms. Sims") to supplement the administrative
record. At issue is a Bureau of Prisons ("BOP") small business set-aside contract for a
horticulture instructor at the Federal Prison Camp ("FPC") in Alderson, West Virginia.
JRS was denied the contract after the contracting officer ("CO") determined JRS was
"nonresponsible" because JRS lacked capacity to perform under the terms of the contract.
Pursuant to FAR§ 19.602-l(a)(2), the CO referred the matter to the Small Business
Administration ("SBA"). 1 The SBA evaluated JRS' s application and also determined
that JRS lacked the capacity to perform the contract. Consequently, the SBA denied
JRS' s application for a certificate of competency ("COC"). 2
Both agencies' findings were based primarily on the fact that JRS and its affiliate,
JRS Management, also owned and operated by Ms. Sims, had a history of submitting bids
on government contracts, but being unable or unwilling to perform once the contracts are
awarded. On several occasions, the BOP had offered Ms. Sims a contract for instruction
of various classes in federal prisons, but plaintiff chose not to accept the contract in favor
of another opportunity or was unable to meet the contract requirements in a timely
manner. Of particular concern was the fact that Ms. Sims had several times been
awarded a contract to teach classes in BOP facilities, but then was unable to secure a
qualified instructor. For example, Ms. Sims accepted a contract on behalf of her other
1
Under the Small Business Act, 15 U.S.C. § 631 et. seq. and implementing regulations, when a
CO finds that an "apparent[ly] successful small business offeror lacks certain elements of
responsibility," including the capacity, competency, or tenacity necessary to perform the
contract, the contacting officer must refer the offeror to the SBA. FAR § 19 .602-1. The offeror
is then given an opportunity to submit an application to the SBA documenting its responsibility
with respect to the contract. FAR§ 125.5(d).
2
When the SBA does issues COC, the "COC is conclusive as to responsibility" and the CO is
"required to award the contract without requiring the firm to meet any other requirement with
respect to responsibility." FAR§ 125.5(m).
2
company, JRS Management, to provide culinary arts instruction at a federal prison in
Miami, but was unable to furnish a suitable instructor for the base contract period, and
the BOP did not exercise its option to renew the contract. On another occasion, JRS
informed the agency that it intended to accept another BOP contract, but JRS was unable
to secure insurance, as required by the solicitation, in time to perform. The agency was
forced to withdraw the offer and seek another bidder after the contract was scheduled to
begin, causing a suspension of educational programing.
JRS does not deny these facts but claims that all of these issues can be excused.
JRS argues that both the SBA and BOP failed to consider contracts which JRS and its
affiliates successfully completed, and thus it challenges both the BOP's determination of
nonresponsibility and the SBA's denial of a COC. JRS seeks an injunction compelling
the BOP to reinstate JRS in competition for the award and prohibiting the BOP and SBA
from considering JRS's history of not accepting offers in making their responsibility
determinations.
For the reasons that follow, JRS's motion for judgment on the administrative
record is DENIED and the government's cross-motion for judgment on the
administrative record is GRANTED. In addition, plaintiff's motion to supplement the
administrative record is DENIED .
I. BACKGROUND
A. Relevant Provisions of the Solicitation
On September 18, 2014, the BOP issued RFQPO 1011400015 ("the solicitation")
for a single indefinite-delivery requirements contract for the provision of horticulture
3
instructor services at FPC Alderson in West Virginia. BOP Administrative Record
("BOP AR") 48-85. The solicitation was issued as a total small business set aside. See
FAR§ 19.502-2(b).
The solicitation required that the horticulture instructor have a "degree in
horticulture or agriculture," and stated that "[t]eaching experience in a correctional
environment is preferred, although not required." BOP AR 50. Under the terms of the
solicitation, the contractor would be required to provide: "six (1) hour sessions per day, 5
days per week .... The estimated total number of sessions per year is 1470." BOP AR
49-50. The solicitation further provided that that instructor must be available
immediately to "commence full performance of this contract on the effective date of
award of this contract." BOP AR 61. The contract would be awarded to the offeree,
"pursuant to an affirmative determination of responsibility, whose quotation, conforming
to the solicitation, is determined to be most advantageous to the Government, considering
technical capability, past performance, and price." BOP AR 65.
B. JRS's Proposal and BOP's Finding of Nonresponsibility
On October 17, 2014, JRS submitted a proposal in which JRS acknowledged that
it had "not been awarded any contracts that are of a related nature, size, and scope." BOP
AR 94. With respect to an eligible instructor, JRS stated that it intended to offer Charles
Arbaugh, the incumbent horticulture instructor and one of the two other offerors, a
contract to perform the work if JRS was awarded the contract. BOP AR 93. JRS stated
that should Mr. Arbaugh decline to work for JRS, JRS had another candidate with a
bachelor's degree in horticulture and significant work experience on dairy farms who
4
could serve as the horticulture instructor. BOP AR 91. This candidate was not a current
JRS employee.
On January 29, 2015, the CO issued a Determination and Findings report of
nonresponsibility with regard to JRS. The CO found that JRS's quotation was
"technically acceptable," and gave JRS a neutral past performance rating "due to the
absence of past performance information provided within related nature, size, and scope
of the solicitation requirement." BOP AR 160. JRS's base year bid of $41,600 was the
lowest price bid received. Id. However, the CO found JRS "to be lacking in an element
of responsibility, specifically the capacity for performance." Id. The CO consequently
made a determination of non-responsibility based on four issues in JRS's contracting
history. BOP AR 160-61.
First, in 2012, JRS had failed to accept an award or commence services for a
contract it was awarded to provide a cosmetology instructor at the FPC Alderson, leading
to a halt in cosmetology instruction in that prison. The BOP offered the award of the
contract to JRS on March 30, 2012, with an effective date of April 9, 2012. BOP AR
217. However, Ms. Sims was unable provide proof of insurance as required by FAR §
52.228-5. On April 2, 2012, Ms. Sims informed the contracting officer that she would
not be able to obtain proof of insurance until the following week. BOP AR 215 . The CO
replied that the cosmetology program could not resume until Ms. Sims provided proof of
insurance and returned a signed SF-1449 form. BOP AR 214-15. On April 13, 2012,
four days after the effective contract date and one day before performance was supposed
to commence, Ms. Sims informed the contracting officer that she was unable to secure
5
private insurance, but would instead be applying for workers' compensation coverage
under a state fund and "it will take about two weeks to secure the policy." BOP AR 213.
In response, the CO reminded Ms. Sims that "the cosmetology program at FPC Anderson
is currently halted," and noted that even aside from the issue with insurance, Ms. Sims
had not identified individuals she would hire to implement the contract. Id. On April 16,
2012, the BOP informed Ms. Sims that it was withdrawing the offer of award because
Ms. Sims had not provided the necessary information and JRS had was not able to begin
performance by the date required under the contract. BOP AR 212.
Second, the CO identified a contract to provide a culinary arts instructor at Federal
Correctional Institution ("FCI") Tallahassee for which the BOP offered an award to JRS
but again was forced to withdraw the offer. BOP AR 219-22. The contract had an
effective date of October 20, 2014. BOP AR 220. On September 29, 2014, sent the CO
on that contract a letter indicating that JRS was unable to guarantee that it could provide
an instructor with the requisite years of experience for the entire duration of the contract.
BOP AR 219. The CO replied that the BOP would not lower the required experience
level for an instructor, and on September 30, 2013, asked that Ms. Sims email him back
by close of business that day if she was still interested in the contract. BOP AR 220. Ms.
Sims did not reply until October 3, 2014, explaining it had been "a very busy time of
year" and she had not had time to read the CO's email. BOP AR 223. The CO informed
Ms. Sims that the BOP had awarded the contract to the next lowest bidder. Id.
Third, the CO noted that another entity operated by Ms. Sims, JRS Management,
accepted a contract to provide culinary arts instruction at FCI Miami in 2011 but failed to
6
provide any instruction. BOP AR 103-04. As the Federal Circuit explained, the contract
JRS Management accepted had an effective date of August 8, 2011 , but Ms. Sims could
not find an instructor to begin at that time. JRS Mgmt. v. Lynch, 621 F. App'x 978, 979
(Fed. Cir. 2015). The agency issued a task order in March of 2012 for services to begin
on April 2, 2012. Id. JRS Management submitted five potential candidates, four of
whom were deemed unqualified and a fifth who, while qualified, never reported to
complete the background check process and never provided any instruction. Id. The
agency did not exercise its option to extend the contract and it expired in 2012. BOP AR
103-04. 3
Finally, the CO found that the BOP had found JRS was nonresponsible once
before following JRS's bid on a BOP contract for radiology technician services. BOP
AR 160-61. In the agency's nonresponsibility determination for the radiology contract,
the BOP found that in addition to JRS Management being unable to find appropriate staff
on the FCI Miami culinary contract, JRS 's contract with FPC Alderson for a ceramics
instructor was terminated because she ceased providing services several months into the
contract. BOP AR 224. 4 The BOP referred the radiology contract to the SBA, but
3
JRS Management filed a complaint with the Civilian Board of Contract Appeals ("Board")
arguing that the agency' s decision not to exercise its option to extend the contract was arbitrary
and capricious. JRS Mgmt., 621 F. App'x at 980. The Board agreed, but the Federal Circuit
remanded on the grounds that the Board had treated the agency's motion to dismiss as a motion
for summary judgment without notice to the parties. Id. at 982-83.
4
This ceramics contract is discussed in Jacqueline R. Sims, LLC v. United States, 600 F. App'x
760 (Fed. Cir. 2015). After JRS Management's contract was terminated after JRS Management
provided services for three months out of the one-year contract period, JRS Management
challenged negative past performance evaluations arising from this and another contract for
which she only provided services for part of the contract period, arguing that JRS Management
7
because JRS Management never submitted an application, the matter was closed without
decision. BOP AR 228. However, in his nonresponsibility determination for the instant
horticulture contract, the CO mistakenly concluded that the SBA denied the issuance of a
COC. BOP AR 104.
After considering all of these factors, the CO concluded that JRS lacks "an
element of responsibility, specifically the capacity for performance, due to an established
history between this office and the prospective contractor of failing to accept offers of
award and failure to comply with the terms of the contracts awarded." BOP AR 105.
The CO stated that he did "not have a reasonable expectation that this prospective
contractor will be able to comply with the required performance schedule." Id.
Consequently, the CO made an official determination of nonresponsibility, and, pursuant
to FAR§ 19.602-l(a)(2), referred the matter to the SBA for a COC review on January 29,
2015.
C. The SBA's Denial of a COC
On February 10, 2015, the SBA informed the CO that JRS had elected to file for a
COC in reference to the BOP's referral. See SBA Administrative Record ("SBA AR")
64. On February 12, 2015, JRS submitted an Application for Certificate of Competency
with a variety of supporting documents including a list of all JRS contracts for the past
three years, financial information, and tax returns. SBA AR 88-234. On February 25,
"could be evaluated only when it physically performed (i.e., taught a ceramics or parenting class)
as agreed, and not when it chose not to perform." Id. at 765. The Federal Circuit rejected this
argument. See id.
8
2015, the Procurement Center Representative ("PCR") sent JRS a letter requesting
additional information based on the application it had submitted. SBA AR 566-67.
In reviewing JRS's contract history, the PCR learned that JRS had been awarded a
number of contracts that it did not perform. The PCR noted that "there have been several
contracts ... that you were awarded, but for some reason, they were closed without any
work being conducted." SBA AR 576. The PCR asked JRS to "provide a complete list
of all the contracts that you were awarded" and to "provide your explanation for each
individual contract, of why it was not successful" for all contracts that were "never
accepted by you, accepted and not started, [or] started not completed .... " Id. The PCR
also asked JRS to "explain what verifiable past performance JRS has performing as a
Horticulture instructor for Level 1 certification in Horticulture," noting that he did "not
see any experience in Horticulture listed in your application other than a resume of
someone who you might be able to hire if you receive the contract." Id. The PCR asked
if JRS if it had a backup instructor ifher proposed instructor was unable to perform. Id.
On March 2, 2015, Ms. Sims supplemented JRS's application in response to the
PCR's questions. SBA AR 242-361. Ms. Sims provided the SBA with a list oftwenty-
five contracts JRS and JRS Management had been awarded in the past three years. Ms.
Sims stated that ten of the twenty-five awards "were not actual contracts" because JRS or
JRS Management "declined acceptance of the offers of awards." SBA AR 345. Ms.
Sims gave several explanations for why her companies submitted a bid and was awarded
a contract but did not perform.
9
Ms. Sims stated that JRS or JRS Management "declined acceptance" of three
contracts in favor of accepting other contracts she had been awarded. SBA AR 246. 5
However, the record shows that there was a contract between the government and JRS for
each of those awards, and that the government had subsequently terminated the
associated purchase orders pursuant to FAR § 13 .302-4 before any work had been done.
SBA AR 246, 250, 255, 585.
Ms. Sims stated that JRS or JRS Management declined five contracts because she
disagreed with the agency about what regulations applied. For four of those contracts,
Ms. Sims claimed that the offer of award required her to comply with Department of
Labor wage requirements, but the solicitations did not include those requirements. SBA
AR 246-4 7. Ms. Sims stated that the increased labor costs would have made the
contracts unprofitable. 6 However, though Ms. Sims again asserted that she "declined
acceptance" of these contracts, she also notes that the government issued modifications
"to cancel the purchase order and de-obligate the funding" for each contract. SBA AR
248-49. Ms. Sims stated that she "never accepted" another award to provide a youth
minister at the Naval Station in Newport, Rhode Island, because of a disagreement over
whether or not JRS was exempt from FAR § 52.222-52 ("Exemption From Application
5
Those contracts were for a Protestant Parish Coordinator at the Air Force Base ("AFB") in
Columbus, Mississippi; a Religious Education Coordinator at the AFB in Columbus, Mississippi;
and a Catholic Religious Education Coordinator at the AFB in Altus, Oklahoma. SBA AR 246.
6
Those contracts were for: Protestant religious education services at Tyndall AFB, Florida;
Youth Outreach Ministry services at the Naval Base in San Diego, California; and Youth
Outreach Ministry services at the Naval Base in Ventura, California; and Youth Outreach
Ministry Services at the Naval Base in Coronado, California. SBA AR 246-48.
10
of the Service Contract Labor Standards to Contracts for Certain Services"). SBA AR
247.
Ms. Sims asserts that she did not perform on the remaining two awards because of
disagreements with the agency over the terms of the contract. Ms. Sims stated that she
"declined acceptance" of another award to provide a "Catholic DRE Coordinator" for the
Navy in Oceana, Virginia. SBA AR 247. Ms. Sims explains that her company submitted
a quoted price based on ten months of service, but the purchase order was only for seven
months, making performance unprofitable. Once again, a modification was issued "to
cancel the purchase order and de-obligate the funding." Id. Finally, with respect to a
contract to provide a Catholic Parish Coordinator for Fort Huachuca, Arizona, Ms. Sims
stated that the delivery date in the award was different in the delivery date in the
solicitation, and that she and the agency could not come to an agreement on an acceptable
delivery date. SBA AR 248. The contract was subsequently terminated for convenience.
Id.
With regard to the PCR's questions about the availability of a qualified
horticulture instructor, JRS indicated its understanding that it was required to offer the
position to the incumbent, Mr. Arbaugh. SBA AR 353. Should Mr. Arbaugh decline
JRS' s offer to continue serving as a horticulture instructor at FPC Alderson, JRS stated
that it had two potential candidates, Richard Miller (listed in its initial bid) and Elizabeth
Ryan, who had "indicated a willingness to work as either the primary or substitute
Horticulture Instructor." Id. Ms. Sims further stated that her other company, JRS
Management, had eleven years of experience offering horticulture instructors under five
11
contracts. SBA AR 354. However, JRS Management's horticulture instruction contracts
were executed in Florida and Texas, SBA AR 414, 446, not West Virginia where this
contract was to be executed, and JRS gave no indication that the instructors on JRS
Management's contacts would be available to perform the FPC Alderson contract. In
order to alleviate concerns that JRS would not have an instructor available on the
effective date of the contract, the SBA suggested that JRS seek letters of intent from the
two potential instructors she listed. SBA AR 759. However, JRS did not provide any
confirmation that either of its proposed candidates would be willing and available to
perform. Id.
The PCR reviewed JRS 's answers and also contacted several contracting officers
who were responsible for overseeing JRS's contracts. SBA AR 648-702. He spoke with
Ms. Catherine Purvis, Supervisory Contract Specialist at the U.S. Navy, where Ms. Sims
had previously been awarded two contracts. SBA AR 651. Ms. Purvis stated as follows:
"I cannot provide any information about the ability of Jacqueline R. Sims to perform on a
contract. All I can tell you is that she has protested on four different solicitations, and
one contract[,] and was offered another contract that she didn't accept .... " SBA AR
651. 7
The PCR also spoke with Charles Hawkins, a Supervisory Contract Specialist at
the Federal Correctional Complex in Terra Haute, Indiana, where Ms. Sims had
7
In the COC Narrative, discussed in detail below, the PCR noted that Ms. Purvis "suggested that
I research JRS on GAO. After reviewing GAO I found that JRS has 56 protests since January of
2011. 44 of the protests were denied or dismissed. All of the others are either undecided or were
withdrawn." SBA AR 74 7.
12
previously been awarded a contract. SBA AR 666-67. According to the PCR, Mr.
Hawkins "said they have not had any problems with her but all of their efforts have been
the same instructor." SBA AR 666.
The PCR also spoke with Simone Curtis and Tamera Butler, two COs in Fort Polk,
Louisiana, where Ms. Sims had been awarded three contracts. The COs on that contract
stated that while "JRS performed satisfactorily," the Army
chose not to exercise the options because they were unable to come up with
a bilateral agreement on terms. JRS was not happy with the terms of the
original contract and was asking for language to be included in a
modification that will remove all of her liability if the instructor/employee
did not meet the requirements of the contract.
SBA AR 697. Ms. Curtis told the PCR that Ms. Sims is "very difficult to deal with," and
described her as "aggravating, unreasonable, argumentative and litigious." Id.
On March 5, 2015, the SBA prepared a Summary of Certificate of Competency
Review Committee Meeting No. 2891. After reviewing the information submitted by
JRS, the committee found that "it appears that JRS has expertise in finding and filling
teaching positions related to religious education but has no experience in the last three
years completing a contract for any other type of training." SBA AR 760. The
committee noted that JRS has completed twelve contracts related to religious education in
the past three years, and has five ongoing contracts, all but one for religious instruction. 8
The committee had found that JRS had not made even tentative offers to any instructors,
and has no current employees qualified as horticulture instructors. SBA AR 759.
8
At the time the SBA made its decision, JRS had not begun work on its only current non-
religious contract, which was for HVAC instruction. SBA AR 96, 758.
13
Therefore, the committee found that Ms. Sims "does not currently have any employees
with the credentials required to instruct horticulture." SBA AR 760. The committee
concluded that "JRS has demonstrated that approximately 25% of the time, she does not
perform on contracts that are offered to her. From her own account, official
documentation and the accounts of her previous customers, she does not seem to be able
to come to a successful resolution to administrative issues if they arise." Id. The vote to
decline JRS's COC application was unanimous. SBA AR 761. The BOP subsequently
offered the contract award to the next-lowest bidder, the incumbent horticulture
instructor, Mr. Arbaugh. BOP AR 169-72.
JRS subsequently filed a pro se complaint in this court seeking to set aside the
BOP and SBA nonresponsibility determinations, compel the BOP to reinstate JRS in
competition for the award, and prohibit the BOP and the SBA from considering JRS's
history of not accepting offers in making their responsibility determinations. Briefing
was completed on the parties' cross-motions for judgment on the administrative record
and on JRS's second motion to supplement the administrative record on October 29,
2015. The court has determined that oral argument is not necessary.
II. JRS'S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
IS DENIED
Before turning to the merits of the case, the court must first resolve JRS's second
motion to supplement the administrative record, 9 filed on October 13, 2015, asking the
9
The court denied JRS's first motion to supplement the record with (1) materials related to other
awards that were offered to JRS or Ms. Sims; (2) reports assessing JRS' s performance as a
government contractor; (3) records indicating the outcomes of other protests filed by JRS; and
(4) an SBA record related to a previous certificate of competency referral. ECF No. 16. JRS
14
court to add the following documents to the record: (1) the declaration of the BOP CO
included in the government's opposition to JRS's first motion to supplement the record,
and (2) a memorandum entitled Office of Federal Procurement Policy Memorandum:
Protests, Claims, and Alternative Dispute Resolution (ADR) as Factors in Past
Performance and Source Selection Decisions (April 1, 2002) ("the memorandum"). In
the alternative, JRS requests that the court take judicial notice of the two documents.
The CO's declaration affirms his statements in his Rational for Determination of
Nonresponsibility, BOP AR 2011, which JRS had previously moved to strike, regarding
the information he reviewed in making his determination. JRS argues that the CO's
declaration establishes that the CO did not examine JRS's current contracts when
conducting his responsibility determination. JRS further argues that the affidavit is
necessary to demonstrate that the BOP is not entitled to the presumption of regularity that
ordinarily applies to agency action because, according to JRS, the affidavit shows that the
CO did not include in the administrative record documents he claims to have consulted.
The memorandum states, among other things, that procuring agencies should not
downgrade a bidder during the source selection process because the bidder has previously
filed bid protests or claims. JRS argues that the memorandum should be added to the
also moved to strike from the administrative record the CO's rational for the detennination of
nonresponsibility and the documents the CO stated that he relied on in making that
determination. ECF No. 20. The court denied the motion to supplement in its entirety, denied
the motion to strike with respect to the documents that the CO stated that he had considered in
making his decision. ECF No. 26. The court granted JRS's motion to strike with respect to the
CO's rational, which government agreed was not properly part of the administrative record
because the CO had written the document after he became aware of JRS's bid protest. Id.
15
administrative record because, contrary to the memorandum's instructions, "the record
shows that the SBA considered JRS's protest activities before the GAO in its COC
determination." Pl. 's 2d Mot. to Supp. AR 8.
The government argues that JRS' s motion should be denied on the grounds that "it
is improper to supplement the record merely for the purpose of providing evidence in
support of JRS's arguments[,]" and that "JRS fails to understand that the Government,
like JRS, can only support its arguments with evidence actually in the administrative
record." Def.'s Opp. to Pl.'s 2d Mot. to Supp. 4-5. The government further contends that
"because JRS has failed to meet the strict standard required for supplementation, judicial
notice of the documents is unwarranted." Id. at 5.
It is well-settled that the court's review for both the CO and SBA decisions is
limited to the administrative record. See RCFC 52.1. "Unlike summary judgment
standards, genuine issues of material fact do not preclude a judgment on the
administrative record." Young v. United States, 497 F. App'x 59, 61 n.8 (Fed. Cir. 2012)
(citing Bannum Inc. v. United States, 404 F.3d 1346, 1355-56 (Fed. Cir. 2005)). Instead,
this court is to "resolve[] questions of fact with references to the administrative record ...
. In such instances, the Claims Court may make factual determinations and legal
conclusions based on the administrative record in the first instance." Id. (citing Bannum
404 F .3d at 1346). Under this standard, "the focal point for judicial review should be the
administrative record already in existence, not some new record made initially in the
reviewing court." Home Products Int'l, Inc. v. United States, 633 F.3d 1369, 1379 (Fed.
Cir. 2011) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985)). It is
16
also well-settled that in order to succeed on a motion to supplement the administrative
record a party must show that "omission of extra record evidence precludes effective
judicial review." Axiom Res. Mgmt. v. United States, 564 F.3d 1375, 1380 (Fed. Cir.
2009).
Here, the court agrees with the government that JRS has not met the strict
standards for supplementing the record. The court has examined the two documents that
JRS wishes to add to the administrative record and finds that they are not necessary for
effective judicial review. The affidavit only reiterates what the CO stated in his
Determination of Nonresponsibility, and does not add any evidence regarding the CO's
credibility or the appropriateness of his process or conclusions. Likewise, the
memorandum does not give the court any information about what the agency did in this
case. The court therefore finds that supplementation of the administrative record is not
warranted.
The court has determined, however, that it is appropriate to take judicial notice of
the memorandum as a public document. See Alabama Aircraft Indus., Inc.-Birminghain
v. United States, 82 Fed. Cl. 757, 765 (2008). However, contrary to JRS's contentions,
this document does not support JRS's claims. First, as discussed below, though the SBA
record does include some discussion of Ms. Sims ' s history of filing multiple bid protests
in the past, there is no evidence that the SBA made its decision on that basis. Second, the
memorandum does not apply to the SBA because the memorandum is addressed to
procuring agencies, and the SBA is not a procuring agency. Cf. Centech Grp., Inc. v.
United States, 554 F.3d 1029, 1039-40 (Fed. Cir. 2009) (noting that the SBA is not the
17
procuring agency and the procuring agency may award a contract even if the SBA denies
a COC).
III. LEGAL STANDARDS FOR DECIDING BID PROTESTS
This court exercises jurisdiction over JRS 's post-award bid protest pursuant to 28
U.S.C. § 149 l(b ). In a bid protest, the court may only set aside an award if the agency's
action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law." Palladian Partners, Inc. v. United States, 783 F.3d 1243, 1252 (Fed. Cir.
2015) (quoting Savantage Fin. Servs. v. United States, 595 F.3d 1282, 1285 (Fed. Cir.
2010)).
This standard is "highly deferential." Advanced Data Concepts, Inc. v. United
States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). The Federal Circuit has held that "[t]he
court's task is to determine whether '(l) the procurement official's decision lacked a
rational basis; or (2) the procurement procedure involved a violation of regulation or
procedure.'" Palladian Partners, Inc., 783 F.3d at 1252 (quoting Savantage, 595 F.3d at
1285-86). "[W]hen such decisions have a rational basis and are supported by the record,
they will be upheld." NCL Logistics Co. v. United States, 109 Fed. Cl. 596, 610 (2013)
(quoting Bender Shipbuilding & Repair Co. v. United States, 297 F.3d 1358, 1362 (Fed.
Cir. 2002)). Further, courts have found that the SBA is entitled to "special deference"
when the court is "reviewing the merits of an SBA competency determination" because
of the SB A's special expertise in this area. CSE Const. Co. v. United States, 58 Fed. Cl.
230, 248 (2003) (citing Stapp Towing Inc. v. United States, 34 Fed. Cl. 300, 306 (1995)).
18
IV. DISCUSSION
JRS is challenging both the BO P' s finding of nonresponsibility and subsequent
referral to the SBA, and the SBA's decision not to issue a COC. Each portion of the
challenge is addressed in turn.
A. The BOP's Nonresponsibility Determination was not Arbitrary or
Capricious
Before awarding a contract, a CO must "make[] and affirmative determination of
responsibility." FAR§ 9.103(b). Further, "[i]n the absence of information clearly
indicating that the prospective contractor is responsible, the contracting officer shall
make a determination of nonresponsibility." Id. In order to be deemed responsible, a
prospective contractor must:
(a) Have adequate financial resources to perform the contract, or the ability
to obtain them . . . ;
(b) Be able to comply with the required or proposed delivery or
performance schedule, taking into consideration all existing commercial
and governmental business commitments;
(c) Have a satisfactory performance record .... A prospective contractor
shall not be determined responsible or nonresponsible solely on the basis of
a lack of relevant performance history ... ;
(d) Have a satisfactory record of integrity and business ethics ... ;
(e) Have the necessary organization, experience, accounting and
operational controls, and technical skills, or the ability to obtain them
(including, as appropriate, such elements as production control procedures,
property control systems, quality assurance measures, and safety programs
applicable to materials to be produced or services to be performed by the
prospective contractor and subcontractors) . .. ;
(f) Have the necessary production, construction, and technical equipment
and facilities, or the ability to obtain them; and
(g) Be otherwise qualified and eligible to receive an award under applicable
laws and regulations ... .
FAR § 9 .104-1. The burden is on the contractor to affirmatively demonstrate its
responsibility. FAR§ 9.103(c).
19
JRS makes several arguments that the CO' s determination of nonresponsibility
was unreasonable. First, JRS argues that the solicitation did not include a required or
proposed performance schedule and thus the CO could not base his nonresponsibility
determination on JRS's inability to meet one. Second, JRS argues that prior instances
when JRS refused to accept a contract after submitting a successful bid were irrelevant to
JRS's ability to perform under this contract. Third, JRS argues that the CO should not
have considered JRS Management's conduct as part of a nonresponsibility determination.
Fourth, JRS argues that the CO's reliance upon the mistaken belief that JRS had been
denied a COC for another contract makes the nonresponsibility decision in this case
arbitrary and capricious.
The government counters that the information the CO considered was relevant and
consistent with the FAR. The government further asserts that JRS was not prejudiced by
the CO's mistaken belief that JRS had previously been denied a COC because JRS would
have received a nonresponsibility determination based on the other factors the CO
considered.
For the reasons set forth below, the court finds that none of JRS's arguments are
persuasive and that the BOP's nonresponsibility determination was not irrational or
contrary to the FAR.
1. The Solicitation Required the Contractor to Begin Performance
from the Date of Award and it was Reasonable for the CO to
Consider JRS's Ability to Meet that Schedule.
JRS asserts that the CO could not, consistent with the solicitation, refer her to the
SBA for a COC determination on the basis of her inability to timely begin performance
20
because, according to JRS, the solicitation did not include a fixed performance schedule.
However, the record does not support this contention.
Under the FAR, "the time for delivery or performance is an essential contract
element and shall be clearly stated in solicitations." FAR§ 11.401. The time for
delivery can be expressed in several ways, including "the date of award or acceptance by
the government" "the date shown as the effective date of the contract." Id. at §
l l .403(a)(2). In this case, the solicitation stated that the awardee is expected to
"commence full performance ... on the effective date of the award of this contract."
BOP AR 61. The period of performance would run from twelve months from the
effective date of award. Id. Further, the solicitation provided that task orders "may be
issued from the first day of the current performance period through the last day of the
current performance period." BOP AR 52.
The court therefore finds that the solicitation delineated a performance period,
consistent with the FAR, that established a time of performance commencing on the
effective date of award. See BOP AR 61. Further, the court finds that the BOP' s
concerns that JRS would not be able to timely perform were especially pertinent given
that the horticulture education program was ongoing. Accordingly, it was not arbitrary
and capricious for the CO to judge JRS' s responsibility based on whether JRS would be
in a position to begin performance on the effective date of the award.
21
2. It was Reasonable to Consider Previous Awards that the BOP
Offered to JRS which JRS did not Perform.
JRS contends that the CO should not have considered JRS' s inability to accept the
cosmetology instructor contract at FPC Alderson and the culinary arts instructor contract
at FCI Tallahassee, arguing that it is inappropriate to use unaccepted offers in evaluating
a prospective contractor's capacity. The government counters that the FAR requires a
CO to take a wide variety of information into account in making a nonresponsibility
determination, and asserts that JRS 's past non-acceptance of contracts offered by BOP is
both a proper factor to consider under the FAR and relevant to JRS' s ability to perform
under this contract.
The FAR states that a CO must base a nonresponsibility determination on a wide
variety of sources that bear on a prospective contractor's ability to perform. See FAR§
9.105-l(c). 10 The Federal Circuit has explained that "responsibility determinations are
largely a matter of judgment," and "contracting officers are generally given wide
°FAR§ 9.105-l(c) states:
1
In making the determination of responsibility, the contracting officer shall consider
information in FAPIIS [Federal Awardee Performance and Integrity Information System] .
. . and any other relevant past performance information. In addition, the contracting officer
should also use the following sources of information to support such determinations:
(I) Records and experience data, including verifiable knowledge of personnel with the
contracting office, audit offices, contract administration offices, and other contracting
offices.
(2) The prospective contractor-including bid or proposal information, questionnaire
replies, financial data, information or production equipment, and personnel information.
(3) Commercial sources of supplier information of a type offered to buyers in the
private sector.
(4) Preaward survey reports.
(5) Other sources such as publications; suppliers, subcontractors, and customers of the
prospective contractor; financial institutions; Government agencies; and business trade
associations.
22
discretion to make this decision." John C. Grimberg Co. v. United States, 185 F.3d 1297,
1303 (Fed. Cir. 1999). Therefore, while FAR§ 9.105-l(c) requires a CO to obtain
sufficient information before making determination of responsibility, a CO "is the arbiter
of what, and how much, information he needs." Id. 11
JRS argues that, to the extent the FAR requires a CO to consider a prospective
contractor's ability to timely perform as a factor in determining responsibility, see FAR§
9.104-1 (b ), the CO should have only considered JRS 's ability to timely perform in light
of JRS's present obligations under other contracts, and not consider any previous
contracts. JRS appears to contend FAR § 9 .104-1 (b ), which states that in order to be
deemed responsible, a contractor must be able to comply with the performance schedule
"taking into consideration all existing commercial and governmental business
commitments" means that the CO may only consider existing commitments when
considering whether a prospective contractor may timely perform. However, given the
degree of discretion a CO has in determining what information is relevant, this narrow
reading is implausible. In this regard, JRS's history of timely performance under other
contracts is a relevant consideration. The court therefore rejects JRS's argument that the
FAR does not allow the CO to consider this type of information.
11
JRS argues that the CO failed to consider relevant information in the F APIIS before making
his decision, in violation of FAR § 9 .105-1 (c). However, JRS does not provide any evidence
sufficient to rebut the presumption of regularity afforded to COs, nor does it identify how she
was prejudiced by the alleged failure to consider this information. The issue not is whether JRS
ever successfully completed a contract, but the undisputed fact that it had not performed on other
contracts under similar circumstances
23
JRS further argues that the fact that JRS declined or was unable to perform on
BOP's offers in the past is not relevant to its ability to perform under this contract
because JRS had not officially entered into those contracts with BOP. However, as the
government notes, JRS 's eventual refusal or inability to accept and perform previous
contracts JRS had been awarded caused delays in the BOP's ability to obtain services and
thus is directly relevant to the issue of whether JRS would be able to timely perform this
contract. For example, the government notes that the cosmetology program was halted
while the government was waiting for JRS to complete the requirements for beginning
performance.
JRS 's non-acceptance and non-performance of contracts is also relevant to FAR §
9 .104-1, which states that a prospective contractor must have at the very least "the ability
to obtain" the organizational and technical skills necessary to perform the contract. The
undisputed record shows that JRS was not able to obtain qualified personnel on time or
for the duration of the contract in several instances when JRS purported to accept a BOP
contract.
3. The CO Reasonably Relied on a JRS Management Contract in
Finding JRS N onresponsible.
JRS argues that the CO also erred in considering JRS Management's failure to
begin contract performance on the FCI Miami culinary contract in making his
nonresponsibility determination. JRS argues that there is nothing in the record showing
that JRS Management is affiliated with JRS, and asserts that the two companies are
distinct entities for tax purposes and have different government contracts. The
24
government counters that under the FAR, JRS and JRS Management are affiliates and
that the FAR allows COs to consider the past performance of affiliates in the context of a
responsibility determination.
FAR 9.104-3(c) specifies that "the contracting officer shall consider [a prospective
contractor's] affiliate's past performance and integrity when they may adversely affect
the prospective contractor's responsibility." Under the relevant provisions in the FAR,
two entities are affiliates if "either one controls or has power to control the other." FAR
§ 19 .10 I. When "determining whether affiliation exists, consideration is given to all
appropriate factors including common ownership, common management, and contractual
relationships[.]" Though JRS argues that the record before the BOP lacked evidence that
JRS and JRS Managements are affiliates, JRS does not deny the truth of the BOP's
conclusion. In her response to the SBA's questions, Ms. Sims conceded that she
"operates under" both JRS and "Jacqueline R Sims LLC dba JRS Management," and
confirmed that both JRS and JRS Management are run from her home office. SBA AR
243. 12 The CO's conclusion that the two entities are affiliates was reasonable given his
understanding that Ms. Sims owned and operated both concerns. See BOP AR 224.
JRS asserts that to the extent the CO considered JRS Management's failure to
perfonn on an offered contract, he was obligated to also consider JRS Management's
12
The government also notes that in JRS 's submission to the SBA, JRS took credit for
horticulture instruction contracts that were performed by JRS Management. Def.'s MJAR 23
(citing SBA AR 244, 293-344). JRS also stated in its offer to the BOP that it had "over 10 years
of experience in providing horticultural teaching services" and that "experience was gained via
managing federal contracts that have been awarded to a second company that is also wholly
owned by Jacqueline R. Sims .... " BOP AR 93 .
25
history of successfully fulfilling contracts. The court disagrees. The FAR states that an
affiliate's past performance and integrity shall be considered to the extent that they "may
adversely affect the prospective contractor's responsibility." FAR§ 19.101. Here, the
CO was concerned with JRS' s ability to perform this contract in light of its history of not
performing after receiving an award. It was not irrational for the CO to consider an
instance when JRS Management failed to perform under similar circumstances. The fact
that JRS Management successfully completed other contracts does not mean that the CO
acted irrationally in seeking to determine whether Ms. Sims's other companies also failed
to fulfill contractual obligations in a similar manner as JRS. See Bender Shipbuilding &
Repair Co. v. United States, 297 F.3d 1358, 1362 (Fed. Cir. 2002) ("When such decisions
have a rational basis and are supported by the record, they will be upheld.").
4. The CO's Mistaken Determination that JRS was Previously
Denied a COC Did Not Prejudice JRS.
Finally, JRS argues that the CO's nonresponsibility determination should be set
aside on the grounds that the CO mistakenly believed that the SBA had denied JRS's
COC application of another contract. While the CO was mistaken in his belief that JRS
was denied a COC, 13 the court finds that this error alone is not enough to set aside the
BOP's decision. "[T]he FAR does not require that each of the contracting officer's
conclusions be independently sufficient on its own to support a finding of
nonresponsibility." MG Altus Apache Co. v. United States, 111 Fed. Cl. 425, 451
13
After the BOP made a finding of nomesponsibility and referred the matter to the SBA, Ms.
Sims never submitted a COC application and the SBA closed the matter without decision. BOP
AR 224-28.
26
(2013 ). Instead, the "nonresponsibility determination as a whole must be rational." Id.
The court agrees with the government that the CO relied on multiple factors in
determining JRS' s nonresponsibility and, taken as a whole, these factors were sufficient
to form a rational basis for his decision. 14
Therefore, the court finds that the BOP's decision is adequately documented and
finds that the nonresponsibility determination and referral to the SBA for COC review
was not arbitrary and capricious. In this case, the CO reasonably believed that JRS
lacked capacity to perform pursuant to the applicable FAR regulations and properly
referred the matter to the SBA.
B. The SBA's Decision to Deny the COC was not Arbitrary or Capricious.
After the BOP determined that JRS lacked capacity to perform and was thus
nonresponsible, the BOP was required to refer the matter to the SBA. FAR§ 19.602-1.
When issued, a COC represents the SBA' s detennination that the applicant "is
responsible (with respect to all elements of responsibility, including, but not limited to,
capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations
on subcontracting) for the purpose of receiving and performing a specific Government
contract." FAR§ 19.601. The SBA's determination of responsibility is governed by the
14
Additionally, JRS argues that it has been "de facto debarred" by the BOP from receiving any
future contracts because the CO mistakenly relied upon JRS' s previous COC referral. Pl.' s
MJAR 21. This court has previously held that a plaintiff alleging de facto debarment "must
show evidence demonstrating that the agency will not award the contractor future contracts."
NCL Logistics Co. v. United States, 109 Fed. Cl. 596, 620 (2013); see also TLT Const. Corp. v.
United States, 50 Fed. Cl. 212, 215 (2001) (establishing that a plaintiff must demonstrate a
"systematic effort by the procuring agency to reject all of the bidder's contract bids."). Because
IRS has not offered more than mere argument of de facto debarment, the court finds this
argument meritless.
27
same factors listed in FAR § 9 .104-1 that guide the procuring agency's decision. See
CSE Const. Co. v. United States, 58 Fed. Cl. 230, 250 (2003). Further, the "SBA may
deny a COC for reasons of nonresponsibility not originally cited by the contracting
officer." FAR§ 125.5(£)(1).
JRS argues that the SBA's decision not to issue a COC must be set aside because
it was cursory, conclusory, and based on non-relevant or erroneous factual allegations.
First, JRS argues that the SBA impermissibly imposed a requirement that JRS have a
qualified instructor on staff when there was no such requirement in the solicitation.
Second, JRS argues that it was improper for the SBA to consider other contracts it and
JRS Management were awarded but did not perform. Third, JRS argues that the SBA
improperly contacted references as part of its investigation when the SBA knew that JRS
did not have contracts of a related nature, size, and scope and therefore none of the
references were relevant. Finally, JRS argues that the SBA erred by not giving sufficient
consideration to the horticulture instruction contracts that JRS Management successfully
managed.
For the reasons that follow, the court finds that JRS's arguments are insufficient to
meet the arbitrary and capricious standard applied to this court's review of agency action.
1. The SBA Reasonably Considered that JRS did not have a
Horticulture Instructor Committed to Perform.
JRS argues that the SBA erred in denying the COC on the grounds that JRS did
not have an instructor ready to perform the contract. According to JRS, the solicitation
did not require it to have an instructor on staff. Rather, JRS argues the solicitation only
28
requires bidder to list candidates potentially available. JRS further argues that FAR §
52.222-17, which requires new contractors to offer continued employment to an
incumbent's "service employees" under certain circumstances, required JRS to first offer
the instructor position to the incumbent and thus it could not commit another instructor.
The government counters that FAR § 52.222-17 is not applicable because it exempts
professionals including instructors of this type, and further asserts that the SBA correctly
considered JRS 's failure to identify a specific instructor when it denied the COC.
The court agrees with the government that the SBA' s denial of a COC based in
part on JRS 's failure to identify a committed instructor was rational. As an initial matter,
it appears that JRS's reliance on FAR§ 52.222-17 to suggest that it could rely on the
incumbent serve as the instructor is misplaced. The FAR states that only "service
employees" of the predecessor contractor shall be offered the right of first refusal by the
successor contractor, and exempts individuals employed in a "professional capacity" as
defined in 29 C.F.R. § 541. FAR§ 52.222-17(a). A teacher is a "professional" for the
purpose of the regulations when the teacher's "primary duty" is "teaching, tutoring,
instructing or lecturing in the activity of imparting knowledge and who is employed and
engaged in this activity as a teacher in an educational establishment .... " 29 C.F.R. §
54 l .303(a). Teachers "of skilled and semi-skilled trades and occupations" are classified
as professionals. Id. An "educational establishment" is defined to include "an institution
of higher education or other educational institution" and may include "post-secondary
career programs." 29 C.F.R. § 541.204(b)
29
In this case, the solicitation specified that the instructor was to teach an
"established horticulture program" that was "approved through the New River
Community College." BOP AR 49. The instructor was required to have a degree in
horticulture or agriculture. BOP AR 50. In Wilks v. District of Columbia the court
found that a prison's Office of Educational Services was an educational establishment for
the purposes of the regulations because instructors were certified by D.C. Public Schools
and conducted formal classes. 721 F. Supp. 1383, 1386 (D.D.C. 1989); see Astor v.
United States, 79 Fed. Cl. 303, 316 (2007) (citing Wilks with approval).
Therefore, it appears that this position also meets the standard for teacher under
the regulations. However, even if JRS was required to give Mr. Arbaugh a right of first
refusal under FAR § 52.222-17, nothing in the regulation prohibited JRS from making a
tentative or conditional offer to other instructors in the event that Mr. Arbaugh declined
its offer. 15 Given JRS's extensive history of being unable to perform contracts when it
did not have a committed instructor, the SBA reasonably suggested that JRS obtain letters
of intent from either or both of the two potential other instructors. SBA AR 759. When
JRS elected not to pursue that request and provide the necessary assurance, JRS ran the
risk that the SBA would find that JRS might not be able to provide an instructor on the
effective date of the contract.
15
Here, the incumbent was another offeror whose quoted price was higher than JRS's. BOP AR
100-01. Under those circumstances, it was rational for the SBA to consider whether JRS had a
back-up candidate available even if JRS is correct that the incumbent had a right of first refusal.
30
In this regard, the court agrees with the government that the SBA did not deny the
COC on the grounds that JRS did not have an instructor on the payroll. Rather, given
JRS' s history of failing to secure instructors under similar circumstances, the SBA sought
assurance that JRS would be able to provide an instructor on the effective date of the
contract. Because JRS did not address this issue even after the SBA expressed concerns
and gave JRS instructions that would have alleviated the problem, it was not irrational for
the SBA to conclude that without a commitment from another instructor, JRS might lack
the capacity to perform.
2. The SBA Reasonably Considered JRS's History of not
Performing after being Awarded a Contract
JRS argues that SBA should not have considered the approximately twenty-five
percent rate of unaccepted awards in making its decision because JRS had well-founded
reasons for declining those awards. According to JRS, "JRS heeded the SBA's advice
with regard to being cautious before entering into contracts with the federal government"
and points to the SBA's website to show that the SBA ignored its own advice in using the
unaccepted offers of award as a basis for denying the COC. Pl.'s Reply 27. The
government responds by pointing out that "[r]egardless of JRS's reasons for refusing
awards, the fact remains that the SBA's decision to consider this information was both
rational and reasonable[.]" Def. 's Reply 15.
The court finds, given the extensive number of contracts that JRS has
acknowledged being awarded but not performing, that the SBA's consideration of this
history was not arbitrary or capricious. This is not a case where the SBA ignored JRS's
31
reasons for declining those contracts. To the contrary, JRS's reasons are clearly reflected
in the record. However, the SBA could reasonably conclude that JRS engaged in a
pattern of bidding and receiving contract awards even where JRS was aware that it might
16
not have the capacity to begin or complete them. In addition, the record shows that in a
number of instances, the contracts were not declined but were accepted by JRS but then
closed without any work being performed, or the agency was forced to rescind the offer
after JRS's delays in meeting the contract's requirements.
JRS's reliance on the SBA website is also misguided. The website states that "a
prospective contractor's response to an RFQ is not an offer that can be accepted to form a
binding contract" and the SBA "cautions small businesses to carefully and completely
read solicitations, to use a pricing strategy that considers all costs allowing for sufficient
overhead/profit, and to read a proposed contract carefully before signing." Pl.' s Reply
27. However, the fact that the SBA recommends that contractors carefully review the
terms of a contract before signing it does not imply that the SBA encourages prospective
offerors to submit bids for contracts that they do not think they will be able to perform.
As discussed above, JRS' s failure to accept approximately a quarter of the bids accepted
by the government is a significant number. In addition, its failure to take on the work it
16
In that connection, this case differs from CSE, which held that the SBA's investigation did not
comply with the FAR because the SBA failed to consider the plaintiffs three unfavorable
references within the context of plaintiffs overall record of good performance. 58 Fed. Cl. at
253. In this case, the SBA's concerns with JSR were not based on the quality of JSR's
performance in the instances when JRS actually performed the, but were focused on JSR's
history of not performing at all after being offered and even accepting an award.
32
was offered has caused delays in programing. Therefore, it was rational for the SBA to
consider JRS 's history.
3. The SBA Reasonably Considered JRS's References.
JRS argues that the SBA's decision should also be set aside because the SBA
improperly relied on comments from three of JRS ' s references when the references
worked with JRS on contracts other than horticulture instruction, and are therefore not
relevant. The government responds that it was rational for the SBA to consider
information received from JRS 's references when determining whether to issue a COC.
The SBA was required to conduct a comprehensive investigation as to whether
JRS was responsible, and the investigation properly included contacting third parties with
knowledge of JRS's performance on other contracts. See FAR§ 125.5(d)(3) ("SBA
personnel may obtain clarification or confirmation of information provided by the
applicant by directly contacting suppliers ... and other third parties upon whom the
applicant's responsibility depends."). Regardless of whether the references offered
insights into JRS' s performance on a horticulture contract, the references offered insights
into how JRS approaches its commitments under its other instructional contracts.
Accordingly, the court finds that the SBA decision denying the COC need not be set
aside on this basis.
JRS also argues that the SBA improperly denied the COC because of JRS's
history of filing bid protests. However, the SBA decision document does not rely on this
history. To the contrary, the decision document focused on JRS's history of not
33
performing on awarded contracts, JRS's failure to identify a committed instructor, and
JRS's difficulty with resolving issues with contracting officers. SBA AR 760.
4. The SBA's Decision not to Credit JRS Management's
Experience does not make its Decision Unreasonable.
Although JRS acknowledges that it did not have prior horticulture instruction
contracts, it argues that the SBA "erred when it concluded that JRS' s expertise was
limited to finding and filling teaching positions related to religious education." Pl.' s Rep.
20. According to JRS, the record shows that one of JRS's active contracts is for an
HV AC instructor at FCI LaTuna, Texas, and therefore "the record shows that JRS' s
experience is not limited to religious education." Id. JRS further argues that the SBA
failed to take into account that Ms. Sims has over 11 years of experience in managing
five horticulture instruction contracts through JRS Management, and that she had
experience within the last three years in managing a horticulture contract.
The government responds that "the SBA procurement analyst did refer to the FCI
La Tuna contract as being a non-religious contract, but noted that the work has not started
yet on that contract." Def.' s Reply 12. The government also argues that, regardless of
whether JRS Management had horticulture instruction experience, it is undisputed that
JRS did not have experience with horticultural instruction and thus the SBA analyst was
not incorrect.
JRS' s COC application indicates that JRS Management did have experience
fulfilling horticulture contracts within the three years prior to JRS' s bid in this case. SBA
AR 413-64. However, assuming that the SBA was required to consider these contracts,
34
the court finds that the error was harmless. The record shows that JRS Management's
horticulture instruction contracts were in a different geographic area and involved
different instructors who were not available to perform the contract in this case.
Ultimately, it is the court's duty to consider whether the evidence in the record
supported the SBA's decision to deny the COC, not to hold the agency to a standard of
perfection. Am. Auto Logistics, LP v. United States, 117 Fed. Cl. 137, 205 (2014),
aff d, 599 F. App'x 958 (Fed. Cir. 2015) ("It is not the court's role to determine whether
the evaluations were perfect or even as good as they could be . ... "). Here, the evidence
supports the SBA's conclusion. It is undisputed that JRS had a repeated history of failing
to provide a qualified instructor for contracts it was awarded when JRS did not have that
personnel available. The record shows that JRS did not have a committed instructor for
the subject contract, and the record also showed that JRS had a history of strained
relations with contracting officers. In light of JRS's track record, the court finds that the
SBA' s conclusion regarding JRS's lack of capacity with regard to the subject contract
was reasonable.
V. CONCLUSION
For the reasons stated above, JRS's motion to supplement the administrative
record is DENIED. JRS 's motion for judgment on the administrative record is
DENIED. The government's cross-motion for judgment on the administrative Record is
GRANTED. The clerk is instructed to enter judgment accordingly. No costs.17
17
Because JRS has not succeeded on the merits of this case, JRS is not entitled to injunctive
relief.
35
IT IS SO ORDERED.
Senior Judge
36