Opinion

Pricewaterhousecoopers Public Sector, LLP v. United States

126 Fed. Cl. 328
2016 U.S. Claims LEXIS 504
2016 WL 2764330

Court: United States Court of Federal Claims
Filed: May 10, 2016
Status: Published
Author: Horn
On the bench: Marian Blank Horn
Cited by: 7 cases
Authority: More cited than 52.2%

observing that “[generally, an agency’s decision to take corrective action in order to implement a GAO recommendation is proper unless the GAO decision itself is irrational.” (citing Raytheon Co. v. United States, 809 F.3d 590, 595-96 (Fed. Cir. 2015) and Centech Grp., Inc., 554 F.3d at 1039)

How later courts described this case

observing that “[generally, an agency’s decision to take corrective action in order to implement a GAO recommendation is proper unless the GAO decision itself is irrational.” (citing Raytheon Co. v. United States, 809 F.3d 590, 595-96 (Fed. Cir. 2015) and Centech Grp., Inc., 554 F.3d at 1039)
observing that “[a]n agency’s determination of the ‘best method of accommodating its needs’ ... falls within the agency’s discretion” (quoting CHE Consulting, Inc. v. United States, 74 Fed.Cl. 742, 747 (2006))

Written by the judges who cited it.

The opinion

REDACTED OPINION

In the United States Court of Federal Claims

No. 16-98C

Redacted Version Issued for Publication: May 10, 20161

* * * * * * * * * * * * * * * * ** *

PRICEWATERHOUSECOOPERS *

PUBLIC SECTOR, LLP, *

Protestor, *

v. *

UNITED STATES, *

Defendant, *

* Pre-Award Bid Protest; Corrective

* Action; 48 C.F.R. § 8.405; Injunctive

CALIBRE SYSTEMS, INC./ERNST & Relief; Subject Matter Jurisdiction;

YOUNG, *

Federal Acquisition Streamlining

Defendant-Intervenor, * Act, 10 U.S.C. § 2304c(e);

* Organizational Conflicts of Interest;

Unequal Treatment.

BOOZ ALLEN HAMILTON, INC., *

Defendant-Intervenor, *

and *

DELOITTE CONSULTING, LLP, *

Defendant-Intervenor. *

* * * * * * * * * * * * * * * * ** *

Sharon L. Larkin, Steptoe & Johnson, LLP, Washington, DC for protestor

PricewaterhouseCoopers Public Sector, LLP.

Domenique G. Kirchner, Senior Trial Attorney, Commercial Litigation Branch,

Department of Justice, Washington, DC for defendant. With her were Benjamin C. Mizer,

Principal Deputy Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr.,

Director, Commercial Litigation Branch, and Douglas K. Mickle, Assistant Director,

1 This opinion was issued under seal on February 29, 2016. The parties were asked to

propose redactions prior to public release of the opinion. This opinion is issued with some

of the redactions that the parties proposed in response to the court’s request. Words

which are redacted are reflected with the following notation: “[redacted].”

Commercial Litigation Branch, Department of Justice, Washington, D.C. Of counsel was

David Hurt, Assistant General Counsel, Department of Defense Health Agency.

Craig A. Holman, Arnold & Porter, LLP, Washington, DC for defendant-intervenor

CALIBRE Systems, Inc./Ernst & Young LLP. With him were Stuart W. Turner, of

counsel, Arnold & Porter, LLP, Lauren J. Schlanger, of counsel, Arnold & Porter, LLP,

Sonia Tabriz, of counsel, Arnold & Porter, LLP, Nathaniel E. Castellano, of counsel,

Arnold & Porter, LLP, Amanda Johnson, of counsel, Arnold & Porter, LLP for defendant-

intervenor Ernst & Young LLP. Also with him were Brian Darst, Odin, Feldman &

Pittleman, P.C., and Matthew Keller, Odin, Feldman & Pittleman, P.C. for defendant-

intervenor CALIBRE Systems, Inc./ Ernst & Young LLP.

Kevin C. Dwyer, Jenner & Block, LLP, Washington, DC for defendant-intervenor

Booz Allen Hamilton, Inc. With him were Daniel E. Chudd, of counsel, Jenner & Block,

LLP, Kathy C. Weinberg, of counsel, Jenner & Block, LLP, and Rachel K. Plymale, of

counsel, Jenner & Block, LLP.

Keith R. Szeliga, Sheppard Mullin Richter & Hampton, LLP, Washington, DC for

defendant-intervenor Deloitte Consulting, LLP. With him here Jonathan S. Aronie,

Sheppard Mullin Richter & Hampton, LLP, Katie A. Calogero, Sheppard Mullin Richter

& Hampton, LLP, and Matthew W. Turetzky, Sheppard Mullin Richter & Hampton, LLP.

OPINION

HORN, J.

FINDINGS OF FACT

Protestor, PricewaterhouseCoopers Public Sector, LLP (PwC), filed a pre-award

bid protest on January 19, 2016 to challenge the issuance of a revised solicitation by the

Department of Defense, Defense Health Agency (DHA), which came after a decision by

the Government Accountability Office (GAO), on November 16, 2015, to sustain an

earlier, related bid protest challenging the award of a contract to PwC. See Deloitte

Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-411884.6, 2015 WL

9701026, at *2 (Comp. Gen. Nov. 16, 2015). At the same time the pre-award bid protest

was filed, PwC also moved for a temporary restraining order and/or a preliminary

injunction. PwC seeks to enjoin DHA from resoliciting quotes, evaluating those quotes,

and making a new award under the amended Request for Quotations (RFQ) No. HT0011-

15-T-0022, which DHA issued on December 21, 2015. PwC alleges that:

After a proper competition conducted pursuant to Federal Acquisition

Regulation (FAR) Part 8, PwC won the competition fair and square, it

rightfully received the order, and it is entitled to perform the order. That

order is now in jeopardy due to DHA’s irrational and unlawful actions, which

are the subject of this protest.

The protestor asserts three grounds in its bid protest:

(1) DHA’s corrective action is irrational because it is being taken in response

to a GAO decision that, itself, is irrational and contrary to controlling law; (2)

even if the GAO’s decision were correct, which it is not, DHA’s corrective

action is unlawful because it is far broader than is necessary to correct the

GAO’s identified procurement errors, it includes changes to the evaluation

scheme that do not result from any changes in agency needs, it unfairly

favors PwC’s competitors, and it is competitively harmful to PwC whose

quote information has been disclosed to PwC’s competitors; and (3) the

corrective action mandates that certain competitors of PwC be disqualified

due to significant organizational conflicts of interest (OCI[s]).

The procurement in the above-captioned protest began on May 29, 2015, when

DHA issued an RFQ “on behalf of the DHA, Healthcare Operation (HCO) Directorate.”

The acquisition plan for this procurement explained that in 2014 the Secretary of the

Department of Defense ordered a 90-day review of the Military Health System (MHS),

focused on access to care, safety, and the quality of care. The review was conducted by

an “Action Officer (AO) Working Group,” with contractor support, and resulted in a final

report that “included six overarching recommendations; 77 recommendations related to

access to care, quality of care, and patient safety; and 82 associated action items.”

Following the review, another working group was established to “develop specific plans

to address the recommendations and associated action items contained in the Final

Report.” According to the declaration of Colonel Pehrson, the Government Lead for the

MHS Review Project Management Office, which was submitted to the court following the

filing of this bid protest, the working group submitted a plan to the Secretary of Defense

“outlining 41 action plans and 264 milestones to address the findings in the MHS Review

as well as the Secretary’s guidance to implement changes necessary to become a top-

performing health system.”

The protestor alleges that this working group created a document titled: “MHS 90-

Day Review Follow-On: Integrated Deliverable for 30 December 2014 Products.” Action

plan 1, of the 41 proposed by the follow-on working group, resulted in the establishment

of the High Reliability Organization Task Force (HRO TF) in December 2014, which had

“dual responsibilities to develop a framework for the Military Health System to become a

high reliability organization[2] and for tracking and advancing closure of the action plans

created in response to the MHS Review.” According to the protestor, the HRO Task Force

2 The MHS Review Final Report was attached by the protestor to the complaint filed in

the above-captioned protest. The MHS Review Final Report explains that a high reliability

organization is one in which “harm prevention and quality improvement are second nature

to all in the organization. Such organizations recognize the risk of over simplification in

complex systems: thus, implementation of the proposed recommendations should not be

expected to result in immediate change.”

published “The [HRO] Task Force Report: A Resource Guide for Achieving High

Reliability in the Military Health System.” (brackets in original). Later, in January 2015,

“the MHS Review PMO [Project Management Office] was established to facilitate tracking

of the MHS Review action plans.” Based on the declaration of the Government Lead for

the MHS Review Project Management Office, it appears that, as of the date of this

decision, the MHS Review PMO continues to receive contractor support from Deloitte

LLP, including assistance in tracking milestone progress.

Through the solicitation released on May 29, 2015, DHA intended to award a

contract “to establish a Program Integration Office (PIO)” to “provide services necessary

to transform the Military Health System (MHS) into a High Reliability Organization.” The

RFQ issued on May 29, 2015 explained that the services to be performed under the

contract would include:

[E]stablishing and maintaining a comprehensive Program Integration Office

(PIO), supporting full execution and implementation of action plans resulting

from the MHS review, establishing an Enterprise Performance Management

System, and providing direct support for each of the Services (Army, Air

Force, and Navy) Medical Departments as described in the Performance

Work Statement (PWS).

The contractor would be required to:

[F]urnish the necessary personnel, materials, facilities, and other services

as may be required to assist the Assistant Secretary of Defense (Health

Affairs), the Defense Health Agency’s Healthcare Operations Directorate

and all of its associated Divisions in the support of action plans resulting

from the MHS Review to provide a comprehensive Program Integration

Office which supports robust performance management and continuous

process improvement for the Military Health System to improve patient

safety, access, and healthcare quality throughout the Military Health

System Enterprise and all the various functions identified in the Scope of

Performance Work Statement.

Pursuant to FAR subpart 8.405-3, 48 C.F.R. § 8.405-3 (2016),3 DHA issued the

RFQ to contractors that held the General Services Administration Performance

Management/Continuous Process Improvement Blanket Purchase Agreement (GSA

PM/CPI BPA), which was created under the Mission Oriented Business Integrated

Services (MOBIS) Federal Supply Schedule (also known as Schedule 874).4 PwC and

The court reviewed the version of 48 C.F.R. § 8.405-3 issued in 2015, which was in

effect at the time DHA issued the RFQ, and found no relevant differences between that

version and the current version of the regulation.

4As a result of GSA’s recent streamlining efforts, GSA has consolidated its Professional

Services Multiple Award Schedule offerings, including the former MOBIS Federal Supply

Schedule contract (Schedule 874), into one Professional Services Schedule. See

defendant-intervenors Booz Allen Hamilton, Inc. (Booz Allen), CALIBRE Systems

Inc./Ernst & Young LLP (CALIBRE/EY), and Deloitte Consulting LLP (Deloitte) have each

held a GSA PM/CPI BPA at all times relevant in this case. The RFQ provided that DHA

intended to award a “BPA Call task order with a twelve (12) month Base Period with 4

(four) one (12) [sic] month option periods.” The first page of the RFQ explained that the

“acquisition is being conducted pursuant to Federal Acquisition Regulation (FAR) 8.405-

3(c)(2)(iii).” Similarly, in explaining the selection procedures, DHA expressed its intent to

follow the procedures required under “FAR 8.405-3(c)(2)(iii)(3)” in awarding the contract.

The RFQ was issued to all fifteen GSA PM/CPI BPA holders, including protestor and

defendant-intervenors. The total estimated value of the contract, including the base year

and option periods, was $[redacted].

The RFQ required offerors to submit three volumes to be evaluated: “Technical

Approach, Management Approach, and Price.” In Volume I, “Technical Approach,”

offerors were directed to address, at a minimum, their corporate experience, specifically

their understanding of the current MHS governance construct, their experience supporting

a similarly sized federal healthcare Program Integration Office, and transforming an

enterprise healthcare system into a High Reliability Organization. Also in Volume I,

offerors were directed to address their corporate capability, including their access to

healthcare industry best practice organizations, their change management and

organizational development approach, and their military campaign planning capability. In

Volume II, “Management Approach,” offerors were instructed to “provide the management

approach (including approach to staffing) that will lead to the successful accomplishment

of the requirements.” In Volume III, “Price,” offerors were instructed to submit their firm

fixed price.

According to the RFQ, quotes were to be “rated from highest to lowest based upon

technical approach to include corporate experience and corporate capability, and

management approach to include program management and key personnel and staffing.”

The RFQ “did not ascribe weights to any of the areas to be considered,” instead, the RFQ

was designed to allow DHA “discretion to consider and rate the quotes as a whole.” The

selection procedures in the RFQ explained, in rather general terms, that the contracting

officer would award the BPA call order to the contractor that submitted “the highest rated

quote proposing an appropriate mix of labor for the required level of effort at a fair and

reasonable price.” If the contractor that submitted the highest rated quote did not

“propose an appropriate mix of labor for the required effort at a fair and reasonable price,”

the contracting officer could “obtain additional information from, and negotiate with, that

contractor to improve the terms of the deal reflected in its quote.” The selection

procedures in the RFQ further explained:

If the contracting officer is unable to negotiate a favorable deal with the

contractor, he or she reserves the right to negotiate and reach agreement

with the firm submitting the next highest rated quote. This process will

continue until a contract has been reached or until all those firms submitting

http://www.gsa.gov/portal/content/245439 (last visited Feb. 29, 2016). This change does

not affect this bid protest.

a quote have been considered. If agreement on a deal cannot be reached

with any of the firms, negotiations may be reopened with all firms or the

solicitation may be canceled.

Also, the RFQ contained the clauses and terms that would be incorporated into the

contract award. Specifically, among the clauses included was a data rights term, which

stated:

1.6.16. Data Rights: The Government has unlimited rights to all

documents/material produced under this contract. All documents and

materials, to include the source codes of any software, produced under this

contract shall be Government owned and are the property of the

Government with all rights and privileges of ownership/copyright belonging

exclusively to the Government. These documents and materials may not be

used or sold by the contractor without written permission from the

Contracting Officer. All materials supplied to the Government shall be the

sole property of the Government and may not be used for any other

purpose. This right does not abrogate any other Government rights.

(emphasis in original).

On June 22, 2015, DHA received five quotes in response to the RFQ issued on

May 29, 2015, and evaluation began on June 23, 2015. The technical evaluation board

(TEB) was comprised of one individual, Colonel Soo Lee Davis. Price reasonableness

was determined by the contracting officer. The TEB’s findings are in the technical

evaluation report. The TEB rated the five quotes from highest to lowest based on their

technical approach as follows: (1) PwC; (2) CALIBRE/EY; (3) Booz Allen; (4) Deloitte; and

(5) [redacted].

The price analysis report, created for evaluation purposes, included an

examination of the offerors’ price reasonableness and concluded that PwC’s quoted

prices were fair and reasonable. Ultimately, the Source Selection Official, who was the

contracting officer, determined that PwC was able to “perform the work in accordance

with the PWS; based on technical approach, management approach, and price. PWC’s

prices have been determined fair and reasonable.” As a result, PwC was awarded

contract no. GS10FAA069 on September 1, 2015 for $53,507,742.55.

Subsequently, three disappointed offerors, Booz Allen, CALIBRE/EY, and Deloitte

timely filed bid protests at the GAO in August 2015 challenging the BPA task order award

to PwC. See Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-

411884.6, 2015 WL 9701026, at *2. As a result of the bid protest, DHA issued a stop work

modification to PwC on August 7, 2015, “in accordance with FAR 52.242-15 due to a bid

protest,” which remains in effect. PwC intervened in the GAO proceeding. Initially, DHA

moved to dismiss Booz Allen and Deloitte’s protests on the basis that neither offeror was

an interested party, however, in a one sentence e-mail on September 9, 2015, the GAO

denied DHA’s motion. Then, on November 16, 2015, the GAO issued its decision partially

sustaining the protest after finding several defects in the procurement, over the objections

of PwC and DHA. See id.

The GAO partially sustained the protest on four grounds. In its decision, the GAO

explained:

In reviewing a protest challenging an agency’s technical evaluation, our

Office will not reevaluate the quotations; rather, we will examine the record

to determine whether the agency’s evaluation conclusions were reasonable

and consistent with the terms of the solicitation and applicable procurement

laws and regulations.

Id. at *4. The GAO first partially sustained the protest on the ground that DHA

unreasonably evaluated PwC’s quotation with regard to the corporate experience factor,

which was part of PwC’s technical approach, by unjustifiably crediting it with the

experience of its parent company, PricewaterhouseCoopers US (PwC US). See id. at *6.

The RFQ directed offerors to address “Corporate Experience” in their quotes, and to

specifically discuss their understanding of the current MHS Government construct “or a

similar organizational structure in a very large enterprise corporate headquarters”; their

relevant experience “identical, similar, or related to supporting a very large federal

healthcare program integration office”; and their “[r]elevant experience related to

improving the safety, access, and quality of a very large healthcare system, in the public

or private sector, using high reliability principles as described by The Joint Commission.”

In evaluating PwC’s proposal, DHA relied on [redacted] examples included in PwC’s

quote that PwC offered to demonstrate its experience supporting large healthcare

systems improve their quality. DHA concluded that PwC exceeded the requirements of

the PWS and clearly had the experience needed to perform the contract. See id. The

GAO, however, found that “PwC’s quotation did not specifically explain or differentiate

throughout its quotation as to whether particular resources or experiences related to PwC

Public Sector as opposed to PwC US,” and PwC’s “quotation did not specifically explain

how PwC Public Sector would work with PwC US during the performance of the contract

in a way that demonstrated that the experience of the latter should be credited to the

former.” Id. The GAO explained that although “it is appropriate to consider an affiliate’s

performance record where the affiliate will be involved in the contract effort, it is

inappropriate to consider an affiliate’s record where there is no evidence that the affiliate

will meaningfully participate in performance of the contract.” Id. At the GAO, to support

DHA’s contract award decision, PwC argued that references to PwC US in its quote

adequately supported DHA’s evaluation of PwC’s corporate experience, however, the

GAO concluded that “the record does not reasonably explain why DHA credited PwC

Public Sector with the experience of PwC US,” and, therefore, the GAO sustained the

protest on the corporate experience ground. Id.

As a second basis to partially sustain the protest, the GAO found that PwC had

taken exception to the data rights clause included in the RFQ by including the following

language in its quote:

[Redacted.] Unless required by the Act, neither the contract deliverables nor

their content may be distributed to, discussed with, or otherwise disclosed

to any Third Party without PwC’s prior written consent. [Redacted.]

The GAO determined that the data rights term in the RFQ was a clearly stated solicitation

requirement and material to the needs of the government. See id. at *7. The GAO

explained that “[i]n negotiated procurements, clearly stated solicitation requirements are

considered material to the needs of the government, and a quotation that fails to conform

to material terms and conditions of the solicitation is unacceptable and cannot form the

basis for award.” Id. The GAO compared the language in PwC’s quote with the data

rights term in the RFQ and explained that “[w]hereas the solicitation clause gives the

government unlimited and exclusive property rights to all documents produced under the

task order, PwC’s quotation limits the government’s right to distribute contract

deliverables to third parties without the awardee’s ‘prior written consent.’” Id. Accordingly,

because the language in PwC’s quote deviated from the data rights term in the RFQ, the

GAO determined that DHA should have found PwC’s quote unacceptable, and the GAO

sustained the protest on this basis. See id. at *8. Notably, in defending against this protest

ground, DHA asserted that the data rights term in the RFQ was not considered material,

however, the GAO decided that DHA’s argument was “not consistent with the plain

language of the data rights clause that the agency elected to tailor and insert into the

solicitation.” Id. at *7. The language of the clause in the RFQ appears to be quite clear.

In the contracting officer’s declaration submitted to this court in response to the current

protest, she indicated that the agency “always intended to obtain” unlimited data rights,

implying that the term is a material requirement.

As a third basis to partially sustain the protest, the GAO determined that DHA had

failed to properly consider and document PwC’s proposed labor mix. See id. at *9. The

selection procedures included in the RFQ explained, generally, that the contracting officer

would “award a BPA call to the contractor submitting the highest rated quote proposing

an appropriate mix of labor for the required level of effort at a fair and reasonable price.”

DHA’s consideration of the offerors’ proposed labor mixes is reflected in the price analysis

report and the technical evaluation report. The GAO, however, found two issues related

to DHA’s consideration of PwC’s proposed labor mix. First, the GAO found that the

technical evaluator’s “assessment focused solely on the hours and positions proposed by

PwC for its key personnel,” and not PwC’s entire staffing approach. Id. at *9-10. The GAO

stated that “although the TEB evaluator reviewed PwC’s labor mix and hours, she

addressed only the hours that PwC proposed for its key personnel labor categories in the

base year.” Id. at *10. As a result, the GAO concluded that “the agency did not reasonably

evaluate whether PwC’s overall proposed labor mix, which included [redacted] FTEs [full

time equivalents], was appropriate for the level of effort, as required by the RFQ.” Id. The

GAO also agreed with the protestors’ allegation that “the agency’s positive assumptions,

as reflected in the evaluation of PwC’s labor mix in connection with the management

approach factor, are not supported by PwC’s quotation.” Id.

The GAO found further that “certain areas” of DHA’s evaluation of Booz Allen and

Deloitte’s quotes reflected unequal treatment and partially sustained the protest on that

additional basis. See id. at *12. In finding these reasons to partially sustain the protest

against the award to PwC, the GAO briefly discussed the prejudice suffered by the

protestors, but did not discuss if, or how, the prejudice differed between the protestors.

See id. at *15. Instead, the GAO summarily found prejudice because “certain areas of

the agency’s evaluation were not reasonable, and because the record did not show how

a proper evaluation would have affected the ranking of the vendors’ proposals.” Id.

In deciding the protest, the GAO also considered CALIBRE/EY’s argument that

“the award to PwC was tainted by an impermissible OCI [organizational conflict of interest]

because PwC consulted with, and received non-public, competitively useful, inside

information from a DHA consultant.” Id. at *13. CALIBRE/EY also argued that “PwC had

unequal access to information as a result of its contract with DHA to support MHS

Governance.” Id. Citing FAR subpart 9.504, the GAO explained that “the responsibility

for determining whether an actual or apparent conflict of interest will arise, and to what

extent the firm should be excluded from the competition, rests with the contracting

agency.” See Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Sys. Inc., B-

411884.6, 2015 WL 9701026, at *15. The GAO stated that an unequal access to

information conflict of interest arises “where a firm competing for a government contract

has ‘[p]roprietary information that was obtained from a Government official without proper

authorization’ or ‘source selection information . . . that is relevant to the contract but [was

not made] available to all competitors, and such information would assist that contractor

in obtaining the contract.’” Id. (alterations in original). The GAO explained that, in

response to CALIBRE/EY’s OCI allegation, the contracting officer conducted an OCI

investigation. See id. at *14. The GAO summarized the contracting officer’s findings:

With respect to the consultant, the CO's investigation found the following:

(1) the consultant retired from the Army in 2012 but never worked for DHA

in any capacity; (2) a Power Point presentation cited in CALIBRE's protest,

which involved a project involving the consultant and college students, did

not directly involve PwC or include any DHA non-public competitively useful

information; (3) the consultant's involvement in market research was limited

to introducing an industry representative to an agency official-months in

advance of when the official developed the solicitation-by arranging the

industry representative's attendance at meetings with the agency official;

and that a member of the CALIBRE team was invited to the same meeting.

Id. Furthermore, according to the GAO’s decision, the contracting officer found that:

MHS Governance and HRO transformation were two separate agency

initiatives; that PwC’s Governance contract did not involve defining the

RFQ’s requirements, would not impair PwC’s objectivity, and did not give

PwC access to non-public competitively useful information beyond the

normal experience gained in the performance of the contract.

Id. Ultimately, the contracting officer concluded that PwC did not have an unequal access

to information OCI, and the GAO found the contracting officer’s conclusion to be

reasonable. See id.

In sustaining the protest, the GAO found that “DHA’s evaluation and award

decision were inconsistent with the terms of the solicitation and lacked a reasonable

basis.” Id. at *15. The GAO, therefore, recommended that:

the agency reevaluate quotations consistent with our decision, and conduct

discussions and solicit revised quotations, if appropriate. To the extent DHA

believes that the data rights clause is not material, the agency should

amend the RFQ, and request revised quotations. Following the revised

evaluation, the agency should make a new award decision.

Id.

Following the GAO’s decision to sustain the protest, the DHA contracting officer

issued an amendment to RFQ 1055980-HT0011-15-T-0022 to “re-solicit the subject

requirement to all GSA PM/CPI BPA eligible vendors.” The administrative record does

not contain subsequent memoranda or other contemporaneous documentation

explaining DHA’s decision to amend the RFQ or the changes made by DHA to the RFQ.

The only information provided to the court that pertains to DHA’s decision-making process

in revising the RFQ, besides the amended RFQ itself, are declarations submitted to this

court by the defendant from the contracting officer and the Government Lead for the MHS

Review Project Management Office.

As amended, the RFQ requires offerors to submit two volumes: a non-price volume

and a price volume. Under “Factor 1: Technical Approach” there are four subfactors: (1)

patient safety approach, (2) process improvement approach, (3) plan for quality expert

approach, and (4) PAG (Perinatal Advisory Group) and coding approach. Each subfactor

also has associated numbered action plans, which are derived from the MHS review

discussed previously. Neither these subfactors, nor the specific numbered action plans,

were included in the previous RFQ’s list of factors or evaluation criteria. Corporate

experience, which was the first listed item that offerors were directed to address under

the previous RFQ, has been removed. Similarly, corporate capability, which was the

second listed item that offerors were directed to address under the previous RFQ, is also

no longer included. As a result of the revisions, offerors are no longer instructed to

address their access to healthcare industry best practice organizations or their military

campaign planning capability. In her declaration filed in this court on January 20, 2016,

the contracting officer stated that as part of the

overall review of the evaluation approach, the program team (none of whom

were involved in the previous evaluation of quotes) decided that evaluating

corporate capability/experience and military campaign planning as in the

original procurement would not help the Agency identify the best quote or

differentiate between quotes. Instead, the team decided to focus the

evaluation on the vendors’ specific experience performing prior similar

tasks.

Additionally, in her declaration, the contracting officer stated that “the program office

revised the PWS to also take into account changes in the Agency’s requirements, in part

because quite a bit of time had passed since the Agency originally issued the solicitation.”

Similarly, in her declaration, the Government Lead for the MHS Review Project

Management Office stated that changes also were made to the PWS based on changes

in the agency’s requirements.

Under the revised RFQ, the procurement is still being conducted in accordance

with FAR subpart 8.4. Similar to the previous RFQ, the revised RFQ explains that DHA

intends to follow the procedures prescribed in FAR 8.405-3(c)(2)(iii)(A)(3). The RFQ,

however, has been changed to be a “best value” type procurement. Whereas under the

previous RFQ the factors were of equal importance, the revised RFQ lists the factors and

subfactors in descending order of importance:

Factor 1: technical approach

Subfactor 1a: patient safety approach

Subfactor 1b: process improvement approach

Subfactor 1c: plan for quality expert approach

Subfactor 1d: PAG and coding approach

Factor 2: experience

Subfactor 2a: transforming an enterprise healthcare system in an HRO

Subfactor 2b: Experience supporting a similarly sized federal healthcare

Program Integration Office

Factor 3: program management approach

Factor 4: key personnel and staffing

Factor 5: price

The revised RFQ also states, “[t]he non-price factors, when combined, are more important

than price.”

According to the contracting officer’s January 20, 2016 declaration, DHA

considered “the breadth of the GAO’s decision and recommendation” and decided “to

amend the RFQ to include those evaluation criteria we believe will result in the best

solution for the Agency and to more fully communicate the basis on which quotes will be

evaluated.” The contracting officer explained in her declaration:

[W]e revised the evaluation to indicate that, instead of evaluating the

offerors’ proposed approaches for completing all PWS tasks, the Agency

would evaluate the offerors’ proposed approaches to four specified areas.

This will help ensure that the Agency obtains what it really needs by allowing

us to better distinguish between the merits of the quotes and to make award

to the vendor most likely to not only successfully, but also exceptionally,

meet the requirement.

Additionally, to avoid a pre-award protest for not affording greater weight to price in the

evaluation, the contracting officer indicated that DHA “revised the evaluation to make it a

best value trade-off under which we [DHA] would trade the technical factors against price

with the technical factors being more important than price.”

The revised RFQ incorporated Defense Federal Acquisition Regulation

Supplement (DFARS) clause 252.227-7015, “Technical Data—Commercial Items.”5 The

5 This clause states, in relevant part, that:

(b) License. (1) The Government shall have the unrestricted right to use,

modify, reproduce, release, perform, display, or disclose technical data, and

to permit others to do so, that—

(i) Have been provided to the Government or others without

restrictions on use, modification, reproduction, release, or further

disclosure other than a release or disclosure resulting from the sale,

transfer, or other assignment of interest in the technical data to

another party or the sale or transfer of some or all of a business entity

or its assets to another party;

(ii) Are form, fit, and function data;

(iii) Are a correction or change to technical data furnished to the

Contractor by the Government;

(iv) Are necessary for operation, maintenance, installation, or training

(other than detailed manufacturing or process data); or

(v) Have been provided to the Government under a prior contract or

licensing agreement through which the Government has acquired

the rights to use, modify, reproduce, release, perform, display, or

disclose the data without restrictions.

(2) Except as provided in paragraph (b)(1) of this clause, the Government

may use, modify, reproduce, release, perform, display, or disclose technical

data within the Government only. The Government shall not—

(i) Use the technical data to manufacture additional quantities of the

commercial items; or

(ii) Release, perform, display, disclose, or authorize use of the

technical data outside the Government without the Contractor's

written permission unless a release, disclosure, or permitted use is

necessary for emergency repair or overhaul of the commercial items

furnished under this contract, or for performance of work by covered

Government support contractors.

(3) The Contractor acknowledges that—

(i) Technical data covered by paragraph (b)(2) of this clause are

authorized to be released or disclosed to covered Government

support contractors;

(ii) The Contractor will be notified of such release or disclosure. . . .

48 C.F.R. § 252.227-7015(b) (2016).

contracting officer stated in her declaration submitted to this court that DHA also modified

“the data rights language at paragraph 1.6.16 of the PWS. That modification, however,

did not change the Agency’s requirement of unlimited rights, which is what we always

intended to obtain.”

The RFQ subsequently was amended on January 8, 2016 (amendment 4),

January 19, 2016 (amendment 5), January 21, 2016 (amendment 6), and February 8,

2016 (amendment 7).6 Offerors are required to submit their quotes in response to the

revised RFQ on or before February 29, 2016.

On January 19, 2016, PwC filed its protest in this court and moved for a temporary

restraining order and/or preliminary injunction to enjoin DHA from resoliciting quotes,

conducting a new evaluation, and making a new award until the court has the opportunity

to resolve the merits of PwC’s request for a preliminary and permanent injunction and to

provide a meaningful remedy. Defendant and defendant-intervenors CALIBRE/EY, Booz

Allen, and Deloitte each oppose PwC’s request for a temporary restraining order and/or

a preliminary injunction. Defendant-intervenors CALIBRE/EY and Booz Allen also have

asserted that this protest should be dismissed in its entirety pursuant to Rule 12(b)(1) of

the Rules of the United States Court of Federal Claims (RCFC) (2015) for lack of subject

matter jurisdiction because of the prohibition in the Federal Acquisition Streamlining Act

(FASA), 10 U.S.C. § 2304c(e) (2012), against protests of task or delivery orders.

In support of its motion for a temporary restraining order and/or a preliminary

injunction, PwC alleges that all of the defendant-intervenors, CALIBRE/EY, Booz Allen,

and Deloitte, should be disqualified from competing under the revised RFQ for the task

order due to unavoidable and unmitigated organizational conflicts of interest.7 Protestor

alleges that CALIBRE/EY, Booz Allen, and Deloitte provided support to the initial 90-day

MHS Review, the follow-on MHS Review, and/or the subsequent HRO Task Force.

Specifically, with regard to CALIBRE/EY, protestor alleges that one of the key personnel

in its proposal, Dr. Pronovost, was listed in the MHS Review Final Report as “one of six

reviewers of [the] MHS Review document, and his recommendations are prominently

featured in the MHS Review publication.” Similarly, protestor alleges that 23 of the

individuals involved in the MHS Review were listed as [redacted] personnel in Booz

Allen’s proposal submitted in response to the previous RFQ. In addition to the alleged

involvement with the MHS Review, protestor “believe[s]” that Booz Allen and Deloitte

supported the follow-on working group created after the MHS Review. Protestor also

alleges that Booz Allen and Deloitte “played an instrumental role” in the HRO Task Force,

which was created after the follow-on working group to the MHS Review, and that Dr.

6 Protestor in the above-captioned case is challenging amendments 3, 4, and 5 to the

RFQ, which changed the solicitation requirements and evaluation criteria and were issued

after the GAO’s decision. Amendments 6 and 7 were issued after protestor filed this bid

protest and addresses only the deadlines for offerors to submit OCI mitigation plans and

quotations.

7 During the GAO protest, OCI allegations were asserted against only PwC.

Pronovost of CALIBRE/EY “had access to what the HRO Task Force was doing.” As a

result of this involvement, PwC alleges that “[Booz Allen] and Deloitte (and likely also Dr.

Pronovost) have had real time access to and have been involved in creating the

requirements and approach that are now going to be evaluated.” In addition to protestor’s

allegations that Booz Allen, Deloitte, and CALIBRE/EY were previously involved and

supported the MHS Review, the follow-on to the MHS Review, and the HRO Task Force,

protestor also alleges that “none of the action plans identified in the [revised] RFQ, or the

confidential information made available to BAH [Booz Allen], Deloitte, or Dr. Pronovost,

have been made available to PwC except for a limited disclosure of information on

January 7, 2016,” which included the MHS Review Final Report, the MHS Review Follow-

On Report, HRO Task Force deliverables, and other working group items.8 Accordingly,

protestor alleges Booz Allen, CALIBRE/EY, and Deloitte should be disqualified due to

biased ground rules, unequal access to information, and impaired objectivity. In

response, defendant-intervenors Booz Allen, CALIBRE/EY, and Deloitte assert that

protestor’s OCI allegations are baseless, without merit, and premature since the

proposals in response to the revised RFQ have not yet been submitted, the agency has

not yet investigated the alleged OCIs, and, therefore, there is no agency final decision

regarding the OCIs for this court to review. Defendant has moved to dismiss protestor’s

OCI allegations for failure to state a claim because protestor “fails to allege facts

demonstrating a clear and prejudicial violation of procedural regulations,” “[c]ontracting

officers have broad discretion regarding the timeframes in which they execute their

functions,” and protestor’s OCI allegations “are premature and not ripe for adjudication.”

In response, protestor explains that it is “not contending that this Court supplant the

Agency’s obligation to determine” whether defendant-intervenors possess OCIs.

(emphasis in original). Instead, “PwC is asking the Court to declare this [revised] RFQ to

be an unreasonable response to GAO’s decision.”

DISCUSSION

Motion to Dismiss for Lack of Subject Matter Jurisdiction

As a threshold matter, the court addresses defendant-intervenors CALIBRE/EY

and Booz Allen’s allegations that this court does not have subject matter jurisdiction to

decide PwC’s bid protest in the above-captioned case because FASA, 10 U.S.C.

§ 2304c(e), should preclude this court from hearing protests “in connection with the

issuance or proposed issuance of a task or delivery order,” with limited exceptions, which

according to the defendant-intervenors, are not applicable to this case. 10 U.S.C.

§ 2304c(e)(1). In its response to PwC’s motion for a temporary restraining order and/or a

8 PwC alleges that these items totaled nearly 1,000 pages and were only provided to it

on January 7, 2016, when the deadline to submit quotations to the revised RFQ was

January 19, 2016. According to protestor, this created an unfair disadvantage to PwC

regarding the revised quotations as compared to the other eligible offerors. Deloitte,

however, indicated in its submission to this court that it did not have access to the MHS

Review Follow-On Report until one additional week after January 7, 2016. In fact, the

submission due date for quotes responding to the revised RFQ ultimately changed to

February 29, 2016, thereby affording PwC more than 30 days to review the documents.

preliminary injunction, defendant only asserts that there “is a question whether the Court

has jurisdiction of the entire complaint given the Federal Acquisition Streamlining Act

(FASA), 10 U.S.C. § 2304c(e), which provides GAO exclusive jurisdiction,” however,

defendant did not directly allege that this court lacks subject matter jurisdiction. It is well

established that “‘subject-matter jurisdiction, because it involves a court’s power to hear

a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514

(2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). “[F]ederal courts

have an independent obligation to ensure that they do not exceed the scope of their

jurisdiction, and therefore they must raise and decide jurisdictional questions that the

parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011); see also Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Courts

have an independent obligation to determine whether subject-matter jurisdiction exists,

even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514));

Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has

a duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v. Pay

Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng'g, Inc. v.

Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look

to their jurisdiction, whether the parties raise the issue or not."). “The objection that a

federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court

on its own initiative, at any stage in the litigation, even after trial and the entry of

judgment.” Arbaugh v. Y & H Corp., 546 U.S. at 506; see also Hymas v. United States,

810 F.3d 1312, 1317 (Fed. Cir. 2016) (explaining that a federal court must satisfy itself of

its jurisdiction over the subject matter before it considers the merits of a case); Cent. Pines

Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection

to a court's subject matter jurisdiction can be raised by any party or the court at any stage

of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp.,

546 U.S. at 506)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346

(Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject

matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden

v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.

Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips & Molnar v. West,

160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. Cl. 71, 76, appeal

dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact, “[s]ubject matter jurisdiction is an

inquiry that this court must raise sua sponte, even where . . . neither party has raised this

issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.

Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh’g

denied and en banc suggestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)),

reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp.

of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975 (2005), cert. dismissed as

improvidently granted, 548 U.S. 124 (2006).

This court has jurisdiction to hear bid protests pursuant to 28 U.S.C. § 1491(b)(1)

(2012) of the Tucker Act, which provides that this court has

jurisdiction to render judgment on an action by an interested party objecting

to a solicitation by a Federal agency for bids or proposals for a proposed

contract or to a proposed award or the award of a contract or any alleged

violation of statute or regulation in connection with a procurement or a

proposed procurement.

28 U.S.C. § 1491(b)(1); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352,

1359 (Fed. Cir. 2009). The Administrative Dispute Resolution Act of 1996 (ADRA),

codified at 28 U.S.C. § 1491(b)(1)–(4), amended the Tucker Act to establish a statutory

basis for bid protests in the United States Court of Federal Claims. See Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed.

Cir. 2001). Furthermore, the United States Court of Appeals for the Federal Circuit has

established that this court has jurisdiction over a bid protest based on an agency’s

decision to take corrective action. See Chapman Law Firm Co. v. Greenleaf Const. Co.,

490 F.3d 934, 937-38 (Fed. Cir. 2007). FASA, however, includes a provision that limits

the court from adjudicating protests “in connection with the issuance or proposed

issuance of a task or delivery order” except under limited exceptions stated in the statute,

10 U.S.C. § 2304c(e), with the general authority to hear protests involving task or delivery

order awards that exceed ten million dollars given to the GAO. See 10 U.S.C. § 2304c(e).

Specifically, FASA provides:

(e) Protests.--(1) A protest is not authorized in connection with the issuance

or proposed issuance of a task or delivery order except for—

(A) a protest on the ground that the order increases the scope,

period, or maximum value of the contract under which the order is

issued; or

(B) a protest of an order valued in excess of $10,000,000.

(2) Notwithstanding section 3556 of title 31, the Comptroller General of the

United States shall have exclusive jurisdiction of a protest authorized under

paragraph (1)(B).

10 U.S.C. § 2304c(e).9 The United States Court of Appeals for the Federal Circuit has

explained that “[t]he statutory language of FASA is clear and gives the court no room to

exercise jurisdiction over claims made ‘in connection with the issuance or proposed

issuance of a task or delivery order.’” SRA Int’l, Inc. v. United States, 766 F.3d 1409, 1413

(Fed. Cir. 2014) (quoting 10 U.S.C. § 2304c(e)) (acknowledging that “this statute is

somewhat unusual in that it effectively eliminates all judicial review for protests made in

connection with a procurement designated as a task order”).

Jurisdiction to adjudicate protests connected to task or delivery orders issued

against General Services Administration (GSA) Federal Supply Schedules (FSSs) has

9 A task order contract is defined as “a contract for services that does not procure or

specify a firm quantity of services (other than a minimum or maximum quantity) and that

provides for the issuance of orders for the performance of tasks during the period of the

contract.” 10 U.S.C. § 2304d(1) (2012). A delivery order contract is defined as “a contract

for property that does not procure or specify a firm quantity of property (other than a

minimum or maximum quantity) and that provides for the issuance of orders for the

delivery of property during the period of the contract.” 10 U.S.C. § 2304d(2).

been found in this court, and the Federal Circuit has upheld the finding. See Distrib. Sols.,

Inc. v. United States, 106 Fed. Cl. 1, 11 (2012) aff’d, 500 F. App’x 955 (Fed. Cir. 2013).

Judges on this court have found that FASA’s “limitation on the protest of task or delivery

orders in the Court of Federal Claims. . . does not extend to task orders issued pursuant

to the GSA FSS” under FAR subpart 8.4, 48 C.F.R. § 8.4. See id.; see also Data Mgmt.

Servs. Joint Venture v. United States, 78 Fed. Cl. 366, 371 (2007) (holding that the court’s

“protest jurisdiction extends to protests of task or delivery orders placed against a GSA

schedule contract”); Idea Int’l, Inc. v. United States, 74 Fed. Cl. 129, 135 (2006)

(explaining that 10 U.S.C. § 2304c(d) “is not intended to apply to protests relating to the

placement of orders under GSA Federal Supply Schedule contracts”). In holding that the

Court of Federal Claims has subject matter jurisdiction to hear a bid protest arising from

the issuance, or proposed issuance, of a task or delivery order under a GSA FSS contract,

Judges of this court have relied on the statutory and regulatory history of FASA and the

implementing regulation at FAR subpart 16.5, 48 C.F.R. § 16.5, which applies to indefinite

delivery/indefinite quantity contracts. See, e.g., Idea Int’l, Inc. v. United States, 74 Fed.

Cl. at 135 (stating that the FSS program “existed long before the passage of FASA in

1994, and the language of section 2304a(g) confirms that congress intended for the FSS

program to remain separate and distinct from the new FASA authority”); Data Mgmt.

Servs. Joint Venture v. United States, 78 Fed. Cl. at 371 n.4 (explaining that the contracts

authorized under FASA “are different from GSA schedule contracts. . . even though both

types of contracts utilize task or delivery orders to trigger performance or delivery”). FAR

subpart 16.5 implements the FASA jurisdictional bar:

(10)(i) No protest under subpart 33.1 is authorized in connection with the

issuance or proposed issuance of an order under a task-order contract or

delivery-order contract, except for—

(A) A protest on the grounds that the order increases the scope,

period, or maximum value of the contract; or

(B) A protest of an order valued in excess of $10 million. Protests of

orders in excess of $10 million may only be filed with the Government

Accountability Office, in accordance with the procedures at 33.104.

48 C.F.R. § 16.505(a)(10) (2016). FAR subpart 16.5 “prescribes policies and procedures

for making awards of indefinite-delivery contracts and establishes a preference for making

multiple awards of indefinite-quantity contracts.” 48 C.F.R. § 16.500(a) (2016). The

scope of FAR subpart 16.5, however, specifically and explicitly distinguishes the policies

and procedures set forth therein from FAR subpart 8.4, GSA Federal Supply Schedules.

See 48 C.F.R. § 16.500(c):

Nothing in this subpart restricts the authority of the General Services

Administration (GSA) to enter into schedule, multiple award, or task or

delivery order contacts under any other provision of law. Therefore, GSA

regulations and the coverage for the Federal Supply Schedule program in

subpart 8.4 and part 38 take precedence over this subpart [subpart 16.5].

Id.; see also Labat-Anderson Inc. v. United States, 50 Fed. Cl. at 105 (explaining that the

language at FAR subpart 16.5 supports the interpretation that the FASA task and delivery

order protest restriction was not intended to apply to FSS procurements). Furthermore,

the language and history of FASA indicate that “Congress understood the difference

between GSA Schedule contracts and task or delivery order contracts, but the prohibition

on bid protests in 10 U.S.C. § 2304c(d) makes no mention of orders under ‘schedule

contracts.’” Idea Int’l, Inc. v. United States, 74 Fed. Cl. at 135.

The parties do not dispute that the bid protest in the above-captioned case is in

connection with a task order issued against a GSA BPA established under the GSA FSS

874 contract. Both the former and current versions of the RFQ provide that DHA intended

to award a BPA call task order to one of the holders of the GSA PM/CPI BPA, which was

created under the MOBIS Federal Supply Schedule (also known as Schedule 874).

Moreover, the RFQ explains that the task order acquisition is being conducted pursuant

to FAR subpart 8.4, which provides the procedures for ordering against a GSA FSS BPA.

Defendant-intervenor CALIBRE/EY acknowledges in its motion to dismiss that the task

order at issue is being awarded under an existing BPA that was “awarded under the GSA

FSS (specifically, the MOBIS schedule).” In its motion to dismiss, however, defendant-

intervenor CALIBRE/EY attempts to draw the distinction that the task order involved in

the above-captioned protest is connected to an isolated GSA BPA, not a GSA FSS. This

is an artificial distinction, however, because the task order was issued against a GSA FSS

BPA (the GSA PM/CPI BPA, established under GSA FSS 874). In attempting to isolate

the task order at issue from the GSA FSS 874 contract by arguing that “the BPA here is

a task order contract that operates as a standalone umbrella” contract, defendant-

intervenor CALIBRE/EY assigns illusory importance to the fact that the task order is being

awarded against the GSA PM/CPI BPA instead of directly against the GSA FSS, under

which the BPA was established. In fact, FAR subpart 8.405-3 prescribes that only FSS

contractors are even eligible to enter in to a FSS BPA, thus BPAs established under a

GSA FSS are not “standalone umbrella” contracts as defendant-intervenor CALIBRE/EY

contends. See 48 C.F.R. § 8.405-3(a)(1).

Defendant-intervenor CALIBRE/EY also does not acknowledge the clear language

in the RFQ that the task order was to be awarded pursuant to the ordering procedures in

FAR subpart 8.4, which apply to GSA FSS BPA orders, not FAR subpart 16.5. FAR

subpart 8.4, applicable to “Federal Supply Schedules,” authorizes the GSA to establish a

BPA under any schedule contract “to fill repetitive needs for supplies or services.” 48

C.F.R. § 8.405-3(a). FAR subpart 8.405-3(c)(2)(iii) prescribes the process for ordering

from such BPAs:

(iii) Orders exceeding the simplified acquisition threshold.

(A) The ordering activity shall place an order in accordance with

paragraphs (c)(2)(iii)(A)(1), (2) and (3) of this paragraph, unless the

requirement is waived on the basis of a justification that is prepared

and approved in accordance with 8.405–6. The ordering activity

shall—

(1) Provide an RFQ to all BPA holders offering the required

supplies or services under the multiple-award BPAs, to

include a description of the supplies to be delivered or the

services to be performed and the basis upon which the

selection will be made;

(2) Afford all BPA holders responding to the RFQ an

opportunity to submit a quote; and

(3) Fairly consider all responses received and make award in

accordance with the selection procedures.

(B) The ordering activity shall document evidence of compliance with

these procedures and the basis for the award decision.

48 C.F.R. § 8.405-3(c)(2)(iii). Defendant-intervenor CALIBRE/EY’s reasoning leads to

the illogical conclusion that, although FASA may not bar this court from exercising

jurisdiction over bid protests connected to a task order issued against a GSA FSS using

FAR subpart 8.4 procedures, FASA should bar this court from exercising jurisdiction over

a bid protest connected to a task order awarded against a GSA FSS BPA using FAR

subpart 8.4 procedures. That a task order is issued using FAR subpart 8.4 procedures

against a BPA established under a GSA FSS, instead of directly against a GSA FSS,

however, does not automatically exclude a bid protest connected to that task order from

this court’s jurisdictional purview.

Defendant-intervenor CALIBRE/EY also argues that the “plain language of FASA,

as broadly interpreted by the Federal Circuit in SRA International, Inc. v. United States,

precludes this Court from exercising jurisdiction over protests made ‘in connection with

the issuance or proposed issuance of a task or delivery order.’” In response, protestor

argues that its protest “arises from an RFQ relating to a task order issued under the

General Services Administration (GSA) Federal Supply Schedule (FSS) for mission-

oriented business integrated services (MOBIS),” and this court “has uniformly exercised

jurisdiction over protests relating to such FSS task orders” despite the FASA provision

that bars this court from exercising jurisdiction over protests related to task or delivery

orders. Protestor contends that the case defendant-intervenor CALIBRE/EY relies upon,

SRA International, Inc. v. United States, “did not concern an [sic] FSS order, made no

mention of FSS contracts, and otherwise did not purport to disturb the settled law that

FSS contracts are exempt from the FASA prohibition of protests.”

In SRA International, Inc. v. United States the Federal Circuit reviewed a bid

protest following the award of a task order under a GSA Government-Wide Acquisition

Contract (GWAC) and considered the application of the FASA bid protest bar to the

issuance of the task order at issue. See SRA Int’l, Inc. v. United States, 766 F.3d at 1409.

The Federal Circuit held that the lower court erred in finding that it had subject matter

jurisdiction to hear the bid protest because FASA “gives the court no room to exercise

jurisdiction over claims made ‘in connection with the issuance or proposed issuance of a

task or delivery order.’” Id. at 1413. Notwithstanding defendant-intervenor CALIBRE/EY’s

assertion that “the Federal Circuit confirmed the breadth of the FASA protest bar” in SRA

International, Inc. v. United States, the Federal Circuit’s decision did not address bid

protests arising from task or delivery orders awarded against a GSA Federal Supply

Schedule contract or a GSA FSS BPA, nor did the Federal Circuit discuss the multiple

Court of Federal Claims decisions holding that FASA does not apply to bid protests

associated with GSA FSS contracts. In fact, the Federal Circuit’s decision in SRA

International, Inc. v. United States was in harmony with at least one previous decision

from the Court of Federal Claims finding that FASA barred the court from hearing bid

protests connected to task or delivery orders issued against a GWAC that cited FAR

subpart 16.5 as controlling over any protests of orders issued against it. See Chameleon

Integrated Servs., Inc. v. United States, 111 Fed. Cl. 564, 570 (2013). GWACs are

distinguished in the FAR from GSA FSS contracts. Compare 48 C.F.R. § 8.402(a)

(explaining that the Federal Supply Schedule program is directed and managed by GSA

and provides Federal agencies with a “simplified process for obtaining commercial

supplies and services at prices associated with volume buying”) with, 48 C.F.R. § 16.505

(listing a GWAC as an example of a task or delivery order contract awarded by another

agency and setting forth the procedures for placing orders against a GWAC), and, 48

C.F.R. § 17.501 (2016) (categorizing GWACs as a special contracting method associated

with interagency acquisitions that can be used by agencies other than GSA). While FAR

subpart 8.4 prescribes how orders should be placed against GSA FSS contracts and GSA

FSS BPAs, the procedures for ordering against a GWAC are provided in FAR subpart

16.5. See 48 C.F.R. § 8.405; see also 48 C.F.R. § 16.505(a)(8). A GWAC issued by the

GSA should not be conflated with a GSA FSS contract because the two contracting

vehicles (a GWAC and a GSA FSS) are specifically distinguished in the FAR. Also, the

procedures in FAR subpart 8.4 pertaining to issuing a task or delivery order against a

GSA FSS or a GSA FSS BPA are separate from and inapplicable to issuing a task or

delivery order against a GWAC issued by GSA or any other agency. See 48 C.F.R. §

8.4; see also 48 C.F.R. § 16.505(a)(8). Moreover, before SRA International, Inc. v. United

States, the Federal Circuit had affirmed the decision in Distributed Solutions, Inc. v.

United States, 106 Fed. Cl. 1, 11 (2012), aff’d, 500 F. App’x 955 (Fed. Cir. 2013),

indicating that the Court of Federal Claims has jurisdiction in bid protests of task or

delivery orders issued against GSA FSSs, see id. at 11, and the Federal Circuit did not

address or disturb that decision in SRA International, Inc. v. United States.

As explained above, the RFQ in the above-captioned protest was issued to holders

of the GSA PM/CPI BPA, which was created under the GSA FSS 874 contract (MOBIS

contract). Finding that the Federal Circuit’s decision in SRA International, Inc. v. United

States does not apply to the above-captioned protest, and as found in prior decisions

issued by other Judges on the Court of Federal Claims, see Distrib. Sols., Inc. v. United

States, 106 Fed. Cl. at 11; Data Mgmt. Servs. Joint Venture v. United States, 78 Fed. Cl.

at 371; Idea Int’l, Inc. v. United States, 74 Fed. Cl. at 135, this court finds that it has subject

matter jurisdiction to hear PwC’s bid protest, which is connected to a task order to be

issued against the GSA FSS contract 874 PM/CPI BPA, pursuant to the procedures

prescribed in FAR subpart 8.4.

Request for Injunctive Relief

Protestor has moved for a temporary restraining order and/or preliminary injunction

and declaratory relief “seeking an order from this Court enjoining the [DHA] from

proceeding with the re-solicitation, re-evaluation, and re-award of a new order for support

services” under RFQ No. HT0011-15-T-0022. To obtain a temporary restraining order or

preliminary injunction, the protestor must carry the burden of establishing entitlement to

extraordinary relief based on the following factors: (1) likelihood of success on the merits

of the underlying litigation, (2) whether irreparable harm is likely if the injunction is not

granted, (3) the balance of hardships as between the litigants, and (4) factors of the public

interest. See Trebo Mfg., Inc. v. Firefly Equipment, LLC, 748 F.3d 1159, 1165 (Fed. Cir.

2014); see also Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1344 (Fed. Cir. 2008) (citing

Oakley, Inc. v. Sunglass Hut Int'l, 316 F.3d 1331, 1338-39 (Fed. Cir. 2003)), reh'g and

reh'g en banc denied (Fed. Cir. 2009); see also U.S. Ass’n of Imps. of Textiles and

Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1346 (Fed. Cir. 2005) (citing Zenith

Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983)); Pharm. Research and

Mfrs. of Am. v. Walsh, 538 U.S. 644, 670 (2003) (requiring a movant for preliminary

injunction to prove that the “probability of success on the merits of its claims . . . the risk

of irreparable harm, the balance of the equities, and the public interest” weigh in the

movant's favor); Somerset Pharms., Inc. v. Dudas, 500 F.3d 1344, 1346 (Fed. Cir. 2007)

(“To establish entitlement to a preliminary injunction a movant must establish a

reasonable likelihood of success on the merits.” (citing Nat'l Steel Car, Ltd. v. Canadian

Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.

2004))); Seaborn Health Care, Inc. v. United States, 55 Fed. Cl. 520, 523-24 (2003); OAO

Corp. v. United States, 49 Fed. Cl. 478, 480 (2001) (“When deciding if a TRO [temporary

restraining order] is appropriate in a particular case, a court uses the same four-part test

applied to motions for a preliminary injunction.” (quoting W & D Ships Deck Works, Inc.

v. United States, 39 Fed. Cl. 638, 647 (1997))); Dynacs Eng’g Co. v. United States, 48

Fed. Cl. 614, 616 (2001). The standard of proof required for injunctive relief is a

preponderance of the evidence, Textron, Inc. v. United States, 74 Fed. Cl. at 287,

Bannum, Inc. v. United States, 60 Fed. Cl. 718, 723-24 (2004), or, demonstration of a fact

as “more likely than not.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 329

(2007) (citing Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983)). “No one

factor, taken individually, is necessarily dispositive. . . . [T]he weakness of the showing

regarding one factor may be overborne by the strength of the others. If the injunction is

denied, the absence of an adequate showing with regard to any one factor may be

sufficient, given the weight or lack of it assigned the other factors.” FMC Corp. v. United

States, 3 F.3d 424, 427 (Fed. Cir. 1993); see also Belgium v. United States, 452 F.3d

1289, 1292-93 (Fed. Cir. 2006). A lack of a likelihood of success on the merits precludes

the possibility of an injunction. See CBY Design Builders v. United States, 105 Fed. Cl.

303, 328 (2012).

Regarding protestor’s likelihood of success on the merits of the underlying protest,

in this bid protest, protestor is challenging the agency’s decision to take corrective action

and to amend and resolicit quotes for services to support the transition of the HMS to an

HRO following a GAO decision partially sustaining, on a number of grounds, an earlier,

related bid protest to a BPA call order award to protestor. In its motion for a temporary

restraining order and/or preliminary injunction, protestor alleges