“Corrective action only requires a rational basis for its implementation.”
How later courts described this case
- “Corrective action only requires a rational basis for its implementation.”
- specifying that bid protest proceedings “provide for trial on a paper record, allowing fact-finding by the trial court”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
Nos. 19-792C & 19-1204C (Consolidated)
(Filed Under Seal: October 30, 2019)
(Reissued: November 7, 2019)
)
ALASKA STRUCTURES, INC., Challenge to corrective action via a pre-
) award bid protest; basis for the Air
)
Plaintiff, Force’s decision to take corrective
) action and issue a revised solicitation for
)
v. bids; clarity of the terms of the revised
) solicitation
)
UNITED STATES,
)
)
Defendant,
)
)
and
)
)
CALIFORNIA INDUSTRIAL
)
FACILITIES RESOURCES, INC.,
)
Defendant-Intervenor. )
)
)
Richard J. Conway, Blank Rome LLP, Washington, D.C., for plaintiff. With him on the
briefs and at the hearing was Michael J. Montalbano, Blank Rome LLP, Washington, D.C.
John M. McAdams, III, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,
Director, and Douglas Mickle, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C. Of counsel was Christopher S. Cole and
Lt. Col. Damund E. Williams, Air Force Legal Operations Agency, Department of the Air Force,
Washington, D.C.
Paul F. Khoury, Wiley Rein LLP, Washington, D.C., for defendant-intervenor. With him
on the briefs and at the hearing were Brian G. Walsh and Cara Lasley, Wiley Rein LLP,
Washington, D.C.
OPINION AND ORDER 1
1
Because of the protective order entered in this case, this opinion was initially filed under
seal. The parties were requested to review this decision and provide proposed redactions of any
confidential or proprietary information. No redactions were requested.
1
LETTOW, Senior Judge.
Plaintiff Alaska Structures, Inc. (“Alaska Structures”) protests the decision of the United
States Air Force to undertake corrective action and institute a new solicitation for bids to procure
canvass Quonset-shaped shelters (“shelters”) for winter use by Joint Base Elmendorf-Richardson
in Alaska. The corrective action follows an earlier post-award protest challenging the Air
Force’s award of a contract to California Industrial Facilities Resources, Inc. d/b/a CAMSS
Shelters (“CAMSS”). In that protest, Alaska Structures argued that snow-load test results of the
shelter model proposed by CAMSS should have been part of the record because the solicitation
required CAMSS to provide, and the Air Force to consider, the test results. See Alaska
Structures, Inc. v. United States, 144 Fed. Cl. 80 (2019). Alaska Structures moved to require
completion of the record by having the government or CAMSS provide the results of snow-load
testing of CAMSS’ proffered shelter. Id. at 82. The court granted in part Alaska Structures’
motion, ordering production of the initial test report applicable to CAMSS’ shelter as a
supplement to the record, ruling that providing such a test report was necessary to resolve a
plausible claim of inconsistent representations by CAMSS of its shelter’s snow-load
performance. Id. at 86-87. CAMSS promptly produced the test result, and those results showed
that the tests were performed on a shelter that was significantly shorter than the specification set
out in the Air Force’s solicitation. After reviewing the test report that CAMSS produced, the Air
Force took corrective action by terminating the CAMSS contract for convenience and issuing a
new but substantially similar solicitation that included additional test verification requirements.
AR 37-207. 2
Thereafter, Alaska Structures submitted a motion in the initial litigation for leave to file
an amended complaint to challenge the corrective action, and then also filed a separate pre-award
protest of the new solicitation. The court consolidated the two cases pursuant to Rule 42(a) of
the Rules of the Court of Federal Claims (“RCFC”). See Order to Consolidate, No. 19-792C
ECF No. 53; No. 19-1204C, ECF No. 15. 3
In its protests of the corrective action and the new solicitation, Alaska Structures raises
three alleged errors. 4 First, it contends that the Air Force’s decision to take corrective action and
2
The administrative record of the procurement is consecutively paginated, and citations to
the record are cited by tab and page as “AR __-__.” Tabs 1-34 of the record may be found at
No. 19-792C, ECF No. 26 and tabs 35-48 may be found at No. 19-792C, ECF No. 58.
3
Because the two separate bid protests were consolidated into a single case, there are two
dockets, i.e., Nos. 19-792C and 19-1204C, and the dockets are not identical. Docket citations are
identified accordingly.
4
The court treats the complaint filed in No. 19-1204C as superseding the proposed
amended complaint filed in No. 19-792C because the complaint in No. 19-1204C is broader in
scope. See Hr’g Tr. 9:20 to 10:1 (Aug. 16, 2019) (“[T]he first [proposed] complaint [in No. 19-
792C] dealt with the notice of corrective action, but didn’t directly attack the new solicitation.
We filed a second complaint this week to attack also the solicitation to make sure that we
registered our attack prior to the date for submission of offers. Otherwise, we might be
considered untimely.”).
2
solicit new bids was arbitrary and capricious because its needs had not changed and therefore it
lacked any rational basis for the decision. Compl. in No. 19-1204 ¶¶ 58-68. Second, Alaska
Structures avers that the Air Force’s failure to disqualify CAMSS from competing further in the
procurement was arbitrary and capricious, after its initial quote contained material
misrepresentations. Compl. ¶¶ 69-78. Third, it alleges that the new solicitation contains an
ambiguity because it does not identify what type of documentation is acceptable to verify the
testing performed concerning snow-load capabilities. Compl. ¶¶ 79-85. Alaska Structures asks
in its second complaint that the court declare both the Air Force’s decision to take corrective
action and its failure to disqualify CAMSS from competing in the new solicitation to be
arbitrary, capricious, an abuse of discretion, and inconsistent with federal law and regulation.
Compl. at 21. Alaska Structures requests that the court declare the new solicitation ambiguous
and enjoin the Air Force both from carrying out its corrective action and allowing CAMSS to
continue competing. Compl. at 21. It also requests that the court direct the Air Force to re-open
the original solicitation or, in the alternative, enjoin the Air Force from proceeding until
ambiguous terms in the second solicitation are corrected. Compl. at 21. A “corrective action in
the bid protest context” is an “agency action, usually taken after a protest has been initiated, to
correct a perceived error in the procurement process, or in the absence of error, to act to improve
the competitive process.” Dellew Corp. v. United States, 855 F.3d 1375, 1378 n.2 (Fed. Cir.
2017). Corrective actions are reviewed by courts under a rational-basis standard. See Dell Fed.
Sys., L.P. v. United States, 906 F.3d 982, 991 (Fed. Cir. 2018) (“Corrective action only requires a
rational basis for its implementation.”). As noted by the Federal Circuit in Dell Federal Systems,
“[t]he rational basis test asks ‘whether the contracting agency provided a coherent and
reasonable explanation of its exercise of discretion.” Id. at 992 (quoting Banknote Corp. of Am.
Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (internal quotation marks and citation
omitted)).
In the consolidated cases, Alaska Structures filed a motion for judgment on the
administrative record on September 30, 2019. See Pl.’s Mem. of Law in Supp. of its Mot. for
Judgment on the Admin. Record (“Pl.’s Mot.”), No. 19-792C, ECF No. 59. The government and
CAMSS each responded to Alaska Structures’ motion and cross-moved for judgment on the
administrative record on October 7, 2019. See Mem. in Supp. of [CAMSS’] Resp. & Cross-Mot.
for Judgment on the Admin. Record (“CAMSS’ Cross-Mot.”), No. 19-792C, ECF No. 61; Def.’s
Cross-Mot. for Judgment on the Admin. Record & Opp’n to [Pl.’s Mot.] (“Def.’s Cross-Mot.”),
No. 19-792C, ECF No. 62. After further briefing by parties, see Pl.’s Resp. to Def. and Def.-
Intervenor’s Cross-Motions for Judgment on the Admin. Record and Reply in Supp. of its Mot.
for Judgment in the Admin. Record (“Pl.’s Reply”), ECF No. 63; [CAMSS’] Reply in Supp. of
its Cross-Mot. for Judgment on the Admin. Record (“CAMSS’ Reply”), ECF No. 65; Def.’s
Reply in Supp. of its Cross-Mot. on the Admin Record (“Def.’s Reply”), ECF No. 66, the court
held a hearing on October 23, 2019.
The court concludes that the Air Force’s corrective action had a rational basis, that the
newly revised solicitation is not defectively ambiguous, and that CAMSS is not disqualified from
making an offer in response to that solicitation. Accordingly, Alaska Structures’ motion for
judgment on the administrative record is DENIED, and the government’s and CAMSS’ cross-
motions for judgment are GRANTED.
3
FACTS 5
A. The Air Force’s Initial Solicitation for Quonset-Shaped Canvas Shelters
On December 3, 2018, the Air Force issued a request for quotes for Alaska Small Shelter
Systems, product number AK-V280, or equivalent (the “first solicitation”). See generally AR
10. The Alaska Small Shelter System represented a brand name for the requested shelter as
produced by Alaska Structures. Compare AR 12-73 (Alaska Structures’ bid), with AR 16-93
(amended solicitation).
The Air Force prepared the solicitation in accordance with commercial item acquisition
provisions of Federal Acquisition Regulation (“FAR”) Parts 12 and 13, specifically Subparts
12.3, 12.6, 13.1, and 13.5, see AR 16-89 to 90, which set out streamlined and simplified
procedures for acquiring commercial items. Initially, per that solicitation as amended, questions
were due by December 26, 2018 and quotes were due by December 28, 2018. AR 16-89.
Potential bidders had to provide pricing information for shelters and “product data on the item(s)
being quoted [that were] detailed enough for the [Air Force] to clearly determine that the item(s)
meet the salient [minimum] characteristics.” AR 16-90; see also AR 16-93 (contract line item to
be priced).
The solicitation specified that award would be made to the “responsible contractor with
the lowest priced quote that meets all of the required salient characteristics.” AR 16-90. The
requirements were for “Alaska Small Shelter Systems, Version 2 (P/N: AK[]-V280) OR EQUAL
in accordance with [enumerated] minimum specifications.” AR 16-94 (some emphasis
removed). Among other “minimum specifications,” those relevant to the protest include: (1)
“be[ing] designed to allow one shelter to attach to another shelter,” with “[e]nd base frame
sections [that are] removable so it can be used to connect other shelters;” (2) “withstand[ing] at
least 60 mph wind load per ASCE 7-10;” and (3) “meet[ing] at least 20 [pounds per square foot]
ground snow load per ASCE 7-10.” AR 16-94. 6 The required size of the shelters was 20-feet
wide by 32.5-feet long by 10-feet high. AR 16-94. Further, a question posed by Alaska
Structures asked whether offerors proposing shelters equivalent to the brand name had to provide
“any 3rd party test reports to verify the wind and snow loads.” AR 16-95. The Air Force replied
in an addendum to the solicitation that, “[a] 3rd party test report is not required if there are initial
tests conducted that verify wind loads over 60 MPH and snow loads of 20 PSF.” AR 16-95.
B. Proposals Received & the Air Force’s Award Decision
The Air Force received three offers. See AR 22-110 (abstract of offers). CAMSS
proffered the low bid. AR 18-98 (CAMSS’ proposal). Its six-page proposal consisted of a short
5
The recitations that follow constitute findings of fact by the court from the
administrative record of the procurement filed pursuant to RCFC 52.1(a). See Bannum, Inc. v.
United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (specifying that bid protest proceedings
“provide for trial on a paper record, allowing fact-finding by the trial court”).
6
ASCE 7-10 refers to the American Society of Civil Engineers standard for Minimum
Design Loads for Buildings and Other Structures of October 2013.
4
cover letter, a page of pricing, and four pages of technical characteristics and various photos of
the shelter. See AR 18-97 to 102. CAMSS represented that its equivalent shelter, product
number 20QSA, “[met] all of the salient characteristics,” AR 18-97, and provided details of its
shelter, specifying measurements, capabilities, structural components, and performance
characteristics, AR 18-99 to 102. Relevant to the protest, the details CAMSS provided affirmed
that its shelter would “meet at least 20 psf ground snow load per ASCE 7-10,” AR 18-99, could
“connect to multiple shelters with integrated end-to-end connector flap,” AR 18-99, had “[e]nd
base frame sections [that] are removable . . . to connect other shelters,” AR 18-100, and “met
[Army] Test Operational Procedure (TOP) 10-2-175 . . . 20 psf snow load test (per initial test),”
AR 18-102. CAMSS provided these details in additional pages attached to its price quote but did
not include the publicly available technical specifications sheet for the 20Q shelter system.
Compare AR 18-99 to 102 (technical details provided by the bid), with AR 2-19 (publicly-
available technical specifications for the 20Q system). These technical specifications
represented that CAMSS’ 20Q shelter met “snow load testing [at] 10 psf for 24 hours” and was
“engineer[ed] to 20 psf snow load.” AR 2-19 (capitalization removed). CAMSS’ proposal also
did not include the test it stated that it had performed to confirm its representations. See
generally AR 18-97 to 102 (CAMSS’ bid); see AR 6-42 (Air Force’s responses to Alaska
Structures’ questions during a protest at the Government Accountability Office (“GAO”), stating
“[n]o [snow load] test reports were received”). 7 Neither did it provide engineering calculations
to support the snow-load capability of its proffered shelter. See generally AR 18-97 to 102.
Alaska Structures submitted the highest of the three bids, see AR 12-73 (Alaska
Structures’ proposal), but the second highest of the qualifying bids. 8
On March 26, 2019 the Contracting Officer contacted CAMSS to confirm whether the
quoted price was still valid. AR 21-109. CAMSS replied the following day confirming its price.
AR 21-109. The Air Force concluded that CAMSS’ price was fair and reasonable based on
results of a competitive process, AR 22-111 (citing FAR §13.106-3(a)(1)), and that an award to
CAMSS represented best value because CAMSS offered the lowest price, AR 22-111. The Air
Force awarded the contract to CAMSS on March 27, 2019, AR 23-112, and publicly announced
its award decision two days later, AR 24-132.
C. Alaska Structure’s First Protest in this Court
Alaska Structure’s first protest focused on a claim that the Air Force’s award to CAMSS
on March 27, 2019 was invalid because CAMSS offered a non-qualifying product. See Alaska
Structures, 144 Fed. Cl. at 82. Specifically, Alaska Structures contended that CAMSS’ shelters
7
Alaska Structures initially filed a protest at GAO and sought production of CAMSS’ test
results. See Alaska Structures, 144 Fed. Cl. at 83 n.6. When that request was denied, it filed its
initial protest in this court, and GAO accordingly dismissed the protest before it. Id.
8
A third offeror (“Offeror 3”) proposed to meet all minimum requirements and did not
provide any test reports. AR 19-104 to 105. Its three-page proposal consisted of two pages of
pricing data and one page of technical characteristics, which repeated verbatim those of the
solicitation, see AR 19-103 to 105, but did not propose the brand name or an equivalent. That
offeror’s bid accordingly was technically deficient.
5
did not comply with the snow-load requirement specified in the solicitation. Id. In addressing a
motion by Alaska Structures to complete the record, the court granted that motion in part and
required the government or CAMSS to produce the test report showing the snow-load
performance of the shelter proposed by CAMSS, but as a supplement to the record and not as a
correction to the record. Id. at 87.
D. Snow Load Performance Test Report and the Air Force’s Corrective Action
On July 17, 2019, CAMSS produced the initial test report showing snow-load
performance of the shelter it proposed. See CAMSS’ Resp. Attach. 1, No. 19-1204C, ECF No.
34. The test report, conducted in October 2018, concluded that the 20QSA “met the
requirements of TOP 10-2-175 for a target snow load of 20 [PSF],” having adequately withstood
that load per the testing procedures for more than 12 hours. Id. at 12. Importantly, however, the
test report also showed that the 20QSA shelter tested was a variation that measured only 13 feet
long, rather than 32.5 feet as required by the solicitation. Id. at 3. After reviewing the initial test
report, the Air Force determined that there was “reason to doubt the representation made in
CAMSS[’] quote that its proposed 32 ½ feet long CAMSS20QSA was tested to verify a snow
load capability of 20 PSF.” AR 37-207. Out of concern that CAMSS “made a material
misrepresentation about its proposed shelter’s initial testing for snow load capabilities,” the Air
Force issued a Notice of Corrective Action (“the Notice”) on July 23, 2019. AR 37-207. The
Notice announced the Air Force’s decision to “(1) terminate CAMSS’ contract for convenience;
(2) amend the Solicitation to clarify that offerors must include test results with their quotes
verifying that the specific shelter they propose was tested to verify a snow load capability of 20
PSF; (3) allow offerors an opportunity to submit new proposals; (4) conduct new evaluations;
and, (5) make a new award decision.” AR 37-207 to 208.
The Air Force terminated CAMSS’ contract for convenience on July 29, 2019, AR 40-
213 to 216, and issued a new solicitation on July 31, 2019, AR 41-217 to 225. While nearly
identical to the original, the new solicitation eliminated the brand name or equal requirement
(instead specifying simply “Small Shelter Systems” that satisfied the listed salient
characteristics). AR 41-223 to 224. Unlike the first solicitation, it explicitly included a
requirement that “[a]ll quotes must include test results or other documentation with their
submission verifying that the specific shelter quoted meets the requirement to be able to
withstand a wind load of 60 MPH and ground snow load of 20 PSF.” AR 41-224.
Alaska Structures submitted questions regarding the new solicitation on August 5, 2019.
AR 42-226. It noted that the term “other documentation” required to verify snow load
capabilities was “ambiguous” and asked “what type(s) of documentation the Air Force will
accept” to satisfy the verification requirement. AR 42-226. The Air Force answered that
“[q]uoters have the discretion to submit test reports and/or any documentation they believe will
demonstrate their product meets the requirements of the [s]olicitation.” AR 43-228.
The Air Force received five offers in response to the new solicitation. CAMSS’ bid was
slightly lower than Alaska Structures’ bid. Compare AR 46-281 (CAMSS’ bid), with AR 44-230
(Alaska Structures’ bid). Unlike the bids of CAMSS and Alaska Structures, the other three
proposals did not provide any test reports or documentation of the wind- and snow-load
6
capabilities of their shelters, see generally AR 45; AR 47; AR 48, and therefore were non-
compliant.
E. Alaska Structures’ Further Bid Protests
After the Air Force took corrective action cancelling the award and issuing the new
solicitation, Alaska Structures sought to amend its first complaint to challenge the corrective
action. Subsequently, Alaska Structures filed a separate pre-award protest of the new
solicitation. See Second Compl. No. 19-792C, ECF No. 1. It challenged the corrective action as
arbitrary and capricious because the Air Force lacked a rational basis for amending the original
solicitation and resoliciting bids and because it declined to disqualify CAMSS from submitting a
bid in response to the new solicitation. See Second Compl. ¶¶ 44-67. Additionally, Alaska
Structures alleged that the new solicitation contained an ambiguous requirement because it did
not identify what documentation was acceptable to verify the testing performed. See Second
Compl. ¶¶ 68-74. CAMSS again moved to intervene, and the court granted its motion. See
Order Granting Motion to Intervene, No. 19-1204C, ECF No. 12. Because both cases involve
the same parties and contain common questions of law and fact, the court consolidated them
pursuant to RCFC 42(a).
JURISDICTION & STANDING
This court has jurisdiction over bid protests pursuant to the Tucker Act, 28 U.S.C. §
1491. The Tucker Act vests this court with jurisdiction to “to render judgment on an action by an
interested party objecting to 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).
A threshold issue is whether Alaska Structures has standing to challenge the Air Force’s
corrective action, a burden it bears as plaintiff. See Myers Investigative & Sec. Servs., Inc. v.
United States, 275 F.3d 1366, 1369-70 (Fed. Cir. 2002) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992)). To demonstrate standing under 28 U.S.C. § 1491(b)(1), Alaska
Structures must be an “interested party” who suffered prejudice from a significant procurement
error. CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed. Cir. 2018). An
interested party is an actual or prospective bidder with a “direct economic interest” in the
procurement. Myers, 275 F.3d at 1370; see also TRAX Int’l Corp. v. United States, 144 Fed. Cl.
417, 428 (2019); Veteran Shredding, LLC v. United States, 140 Fed. Cl. 759, 763 (2018).
Generally, an interested party suffers prejudice from a significant procurement error when “but
for the error, it would have had a substantial chance of securing the contract.” CliniComp, 904
F.3d at 1358 (emphasis in original); see also Eskridge & Assocs. v. United States, 142 Fed. Cl.
410, 422-23 (2019), appeal docketed, No. 19-1862 (Fed. Cir. May 10, 2019). An exception
arises, however, “when a prospective bidder challenges the terms of the solicitation itself, prior
to actually submitting a bid.” Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir.
2013). In a pre-award protest, such as the one now before the court, the question can arise
“whether there is sufficient factual development . . . to apply the primary ‘substantial chance’
standard.” Veteran Shredding, 140 Fed. Cl. at 764 (citing Orion Tech., 704 F.3d at 1348-49
(“Weeks Marine[, Inc. v. United States, 575 F.3d 1352, 1361 (Fed. Cir. 2009),] set out an
exception to the general standing test [of substantial chance] in the case of pre-bid, pre-award
7
protest.”) (emphasis added)). In this instance, the pre-award protest occurs in post-bid but pre-
award circumstances, and there is sufficient factual development to apply the “substantial
chance” test for standing.
A further showing that a plaintiff must make to establish its standing is “that it was
prejudiced by a significant error in the procurement process.” CliniComp, 904 F.3d at 1358
(citing Diaz v. United States, 853 F.3d 1355, 1358 (Fed. Cir. 2017)) (additional citations
omitted); see also TRAX Int’l, 144 Fed. Cl. at 428. Determining whether prejudice has been
shown for purposes of establishing a plaintiff’s standing requires the court to engage in a factual
analysis. Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1379 (Fed. Cir. 2009)); see
also CliniComp, 904 F.3d at 1359. Although the inquiries may be similar, prejudice must be
shown either as part of, or in addition to, showing a direct economic interest. CliniComp, 904
F.3d at 1358. Courts should not “conflat[e] the standing requirements of prejudicial error and
economic interest,” because doing so would mean that “there would be no such thing as an error
non-prejudicial to an economically interested offeror in a bid contest.” Labatt, 577 F.3d at 1380.
Consequently, prejudice “must be reached before addressing the merits.” Id. at 1378-79 (quoting
Information Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003));
see also TRAX Int’l, 144 Fed. Cl. at 428.
The government contests Alaska Structures’ standing to pursue its first protest but not the
second. Hr’g Tr. 25:15 to 26:23 (Oct. 23, 2019). 9 That partial objection to standing is not well
taken because Alaska Structures has pending in the first protest a motion to amend its complaint
to challenge the Air Force’s corrective action. Although Alaska Structures’ second complaint in
effect supersedes the proposed amendment of the first complaint, see supra, at 2 n. 4, both
remain pending before the court. And, because only Alaska Structures and CAMSS submitted
qualifying bids in response to the revised solicitation, see supra, at 6-7, the court finds that
Alaska Structures has standing to pursue its protest.
STANDARD OF REVIEW
Motion for Judgment on the Administrative Record
The standards of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, govern the
court’s review of a protest of the government’s decisions regarding award of a contract. See 28
U.S.C. § 1491(b)(4) (“In any action under this subsection, the courts shall review the agency’s
decision pursuant to the standards set forth in section 706 of title 5.”). Under the APA, the court
may set aside a government procurement decision that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), subject to the
traditional balancing test applicable to a grant of equitable relief. See PGBA, LLC v. United
States, 389 F.3d 1219, 1224-28 (Fed. Cir. 2004); Hyperion Inc. v. United States, 115 Fed. Cl.
541, 550 (2014).
“The court may not ‘substitute its judgment for that of the agency,’” Hyperion, 115 Fed.
Cl. at 550 (quoting Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753, 755 (2004) (in turn
9
Further citations to the transcript of the hearing conducted on October 23, 2019 will omit
the date.
8
quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated
on other grounds as recognized in Califano v. Sanders, 430 U.S. 99, 105 (1977))), but “must
uphold an agency’s decision against a challenge if the ‘contracting agency provided a coherent
and reasonable explanation of its exercise of discretion,’” Id. (citing Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009)); see also Tinton Falls Lodging Realty, LLC
v. United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015). The court may overturn the
government’s procurement decision only “if ‘(1) the procurement official’s decision lacked a
rational basis; or (2) the procurement procedure involved a violation of regulation or
procedure.’” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir.
2001)). In conducting the rational-basis analysis, the court looks to whether the “the contracting
agency provided a coherent and reasonable explanation of its exercise of discretion,” Axiom, 564
F.3d at 1381 (quoting Impresa Construzioni, 238 F.3d at 1333), and it affords “contracting
officers . . . discretion upon a broad range of issues,” AgustaWestland N. Am., Inc. v. United
States, 880 F.3d 1326, 1332 (Fed. Cir. 2018) (quoting Impresa Construzioni, 238 F.3d at 1332-
33). Accordingly, “the disappointed bidder bears a heavy burden of showing that the award
decision had no rational basis.” Centech, 554 F.3d at 1037 (quoting Impresa Construzioni, 238
F.3d at 1332-33). The Federal Circuit has specifically emphasized that “corrective action only
requires a rational basis for its implementation.” Dell Fed. Sys., 906 F.3d at 991.
ANALYSIS
A. Propriety of the Air Force’s Corrective Action
Alaska Structures contests the Air Force’s decision to take corrective action on two
grounds: that the Air Force’s needs had not changed and that the Air Force already had the
information it needed to reevaluate the bids submitted in response to the original solicitation.
Pl.’s Mot. at 13-14. 10 It argues that the Air Force’s decision based on a supposed need to assure
that offerors proffered shelters meeting performance requirements was “pretextual” and designed
to avoid ruling on the merits of the first protest. Id. In this connection, Alaska Structures also
contends that the Air Force’s failure to disqualify CAMSS from the procurement competition
was arbitrary and capricious because CAMSS had materially misrepresented the characteristics
of its proffered shelter in its initial quote. Id. at 16.
The government responds that “Air Force rationally took corrective action at a time when
there was no documented, verified explanation for why CAMSS’s first snow load test on a 13.5
[sic]-foot variation of its proposed shelter could reasonably be extrapolated to make assertions
about the snow load capabilities of CAMSS’s 32.5-ft. long shelter for which the Air Force had
contracted.” Def.’s Reply at 1. The government also contends that it “did not err into excluding
CAMSS from further competition because there never has been a finding that CAMSS made a
material misrepresentation.” Id. at 2; see also Def.’s Cross-Mot. at 2.
10
Alaska Structures bolsters its contentions by emphasizing that the Air Force’s
corrective action in effect cancelled the first solicitation and initiated a new one when its needs
had not changed. Hr’g Tr. 9:18 to 14:8.
9
CAMSS similarly argues that the Air Force’s corrective action was appropriate because
“it became apparent that the prior [s]olicitation did not accurately reflect its needs. CAMSS’
Cross-Mot. at 16 (heading). CAMSS also avers that the Air Force never found that CAMSS had
misrepresented the snow-load capabilities of its shelter, but rather that the Air Force only
expressed “concern[]” about CAMSS’ reliance on test results for a shorter shelter. Id. at 13.
1. The basis for the Air Force’s decision to take corrective action.
As noted earlier, after CAMSS produced the test report underpinning its original offer,
the Air Force decided to take corrective action by terminating the contractual award to CAMSS,
revising the solicitation, calling for new proposals, conducting a new evaluation, and making a
new award. See Notice, AR 38. The contracting officer explained her reasoning, as follows:
After reviewing CAMSS[’] initial test results for its CAMSS20QSA shelter,
however, the Air Force has reason to doubt the representation made in
CAMSS[’] quote that its proposed 32 ½ feet long CAMSS20QSA was tested
to verify a snow load capability of 20 PSF. The Air Force is concerned
CAMSS made a material misrepresentation about its proposed shelter’s initial
testing for snow load capabilities. The 20 PSF capability is essential for the
weather conditions in Alaska in which the shelters will be used[.] . . . The Air
Force wants to ensure the shelters it is procuring have the 20 PSF capability
the Air Force requires. In light of the potential misrepresentation made in
CAMSS’s initial test results, and considering the record suggests the specific
32 ½ feet long variation of the CAMSS20QSA that CAMSS proposed was
never tested to verify a snow load capability of 20 PSF, I have determined that
corrective action is appropriate.
AR 37-207.
Rather than amending its prior solicitation, the Air Force issued a new solicitation setting
out the same requirements as the original solicitation, except that a testing requirement was
specified. The new solicitation required that “[a]ll quotes must include test results or other
documentation with their submission verifying that the specific shelter quoted meets the
requirement to be able to withstand a wind load of 60 MPH and ground snow load of 20 PSF.”
AR 41-224. The new solicitation further stated that “[t]est results or other documentation
verifying this capability can have been prepared either by the quoter or a third-party.” AR 41-
224.
In the circumstances, Alaska Structures argues that the Air Force’s corrective action is
overbroad because “there was no need to take corrective action by resoliciting bids and test
reports.” Pl.’s Mot. at 16. It argues that the Air Force in effect cancelled the original solicitation
and did so improperly because it had all the information it needed to make a new award under
the original solicitation. Id. It invokes Parcel 49C Ltd. P’ship v. United States, 31 F.3d 1147,
1151 (Fed. Cir. 1994), for the proposition that ‘“pretextual’ justifications for cancellation of a
procurement violate the agency’s duty to conduct a fair procurement.” See Pl.’s Mot. at 13.
10
Alaska Structures’ argument based on cancellation puts form over substance in
characterizing the Air Force’s action. Alaska Structures points out that the number of the
solicitation was changed, and the Air Force issued the new, revised solicitation on a new,
separate page of the FedBizOpps website. Hr’g Tr. 8:10 to 9:12. Even so, the substance of the
revised solicitation matched that of the original, excepting only the requirement to provide
verifying test results or other documentation. That additional requirement was at the heart of the
corrective action. In effect, with this change, the original solicitation was reissued in revised
form, albeit not as formally amended. The distinction is not material to an analysis of the change
and this court will treat the new solicitation as a revision of the original solicitation, carrying
forward and not cancelling the original solicitation.
2. The Air Force’s failure to disqualify CAMSS from the competition.
Alaska Structures contends that the Air Force acted arbitrarily when it failed to disqualify
CAMSS from the competition, arguing that CAMSS’ initial test results showed that CAMSS had
not actually tested its proposed shelter as required, and that its representations in its original offer
were material misrepresentations. Pl.’s Mot. at 16. 11 Both the government and CAMSS respond
that the Air Force’s decision to take corrective action was based on a concern about a potential
misrepresentation, and that the Air Force never made a finding of an actual misrepresentation by
CAMSS. See Def.’s Cross-Mot. at 2; CAMSS’ Cross-Mot. at 13-14.
This challenge by Alaska Structures is unavailing. The Air Force only expressed
“concern[]” that CAMSS had made a “potential misrepresentation” when it relied for its first bid
on a test of a structure significantly shorter than that which it was offering. AR 37-207. Its
corrective action responded to that concern, and it understandably called for new offers in
connection with a revised solicitation that mandated submission of test results on the actual
shelter being offered. 12 That the Air Force allowed CAMSS to respond with a new, qualifying
offer was rational. In accord with Dell Federal Systems, the Air Force supplied “a coherent and
reasonable explanation of the exercise of discretion.” 906 F.3d at 992. The Air Force’s action
was justified and not a pretext. 13
11
Acceptance of this contention would mean that only Alaska Structures had submitted a
qualifying bid in response to the revised solicitation, cf. Def.’s Cross-Mot. at 2, and would win
the contract.
12
In its prior decision, the court had similarly recognized that “CAMSS’ [initial] bid may
be fully compliant with the solicitation’s requirements, or not. The court cannot tell which is
correct based on the current record.” Alaska Structures, 144 Fed. Cl. at 87. The court did not
know upon what testing CAMSS had relied, and there was also the possibility that CAMSS had
extrapolated (whether reasonably, or not) the results of a test on a different shelter to the one it
was offering.
13
The government and CAMSS seek to turn the table on Alaska Structures by contending
that the shelter Alaska Structures proposed in response to the Air Force’s solicitations was not
the same size as that tested to verify snow-load and wind-load capabilities. See Def.’s Cross-
Mot. at 23; CAMSS’ Cross-Mot. at 2-3. This contention is spurious and not credible. The
11
B. Whether the Revised Solicitation is Ambiguous
Alaska Structures contends that the revised solicitation contains a patent ambiguity
because it allows offerors to submit “other documentation” verifying the offered shelter have the
requisite snow- and wind-load capabilities without identifying what documentation is acceptable.
Pl.’s Mot. at 24. “As a general rule, offerors must be given sufficient detail [in a solicitation] to
allow them to compete intelligently and on a relatively equal basis.” Glenn Def. Marine (Asia),
PTE Ltd. v. United States, 97 Fed. Cl. 568, 578 (2011) (citation omitted).
This ground for Alaska Structures’ protest is academic and not significant. The three
bidders on the revised solicitation other than Alaska Structures and CAMSS supplied neither test
reports nor other documentation to support their offers, while both Alaska Structures and
CAMSS submitted verifying test reports. Both of the qualified offers thus submitted verification
that moots this claim of error.
CONCLUSION
For the foregoing reasons, Alaska Structures’ motion for judgment on the administrative
record is DENIED and the government’s and CAMSS’ cross-motions for judgment on the
administrative record are GRANTED. 14 The clerk shall enter judgment accordingly.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
verifying test report that Alaska Structures submitted stated that the shelter that was tested was
32 feet long, see Pl.’s Reply at 7, reflecting an immaterial rounding or typographical error, see
Pl.’s Submission of Decl. of Michael Vesper (Oct. 16, 2019), ECF No. 67, when the shelter
tested was actually 32.5 feet long, id.
The pertinent shelters are constructed in segments of 6.5 feet each, Hr’g Tr. 42:22 to
43:5, and that is why CAMSS’ initial test was conducted on a shelter 13 feet long (2 x 6.5), Hr’g
Tr. 8:12-13, and Alaska Structures’ test was conducted on a shelter 32.5 feet long (5 x 6.5), Hr’g
Tr. 21:16-25. The court accordingly grants leave for the submission of the Vesper Declaration.
14
The court DENIES as moot Alaska Structures’ motion to file an amended complaint in
No. 19-792C, ECF No. 41. The court also DENIES as moot the previously filed, now
superseded, cross-motions for judgment in No. 19-792C, ECF Nos. 29, 32, 33, and 45.
12