Government’s Responsiveness Determination Was Flawed

The government’s determination two proposals were responsive to a solicitation was arbitrary, capricious, and an abuse of discretion, according to the Court of Federal Claims, because the proposals’ failure to provide required financial information was material. The National Park Service prospectus soliciting proposals for concession contracts to provide guided cross-country ski tours required offerors to provide specified financial information and stated “[f]ailure to provide material information … may result in an offeror being deemed non-responsive.” In challenging the anticipated award of two contracts, the protester contested the government’s determination the offerors’ proposals were responsive despite their failure to include certain financial information.

Materiality

The government determined the offerors’ failure to submit current bank statements demonstrating their ability to obtain funds for start-up costs was immaterial because the offerors indicated that, as incumbent concessioners, they had no start-up costs. However, the evaluation panel ignored the anticipated purchases described in the offerors’ proposals, and the requirement to identify start-up costs was not limited to costs specifically required by the prospectus or above a certain dollar amount. Moreover, the protester’s proposal did not suffer from the same defect. The protester’s anticipated conversion to natural gas did not constitute a start-up cost, because it was based on the arrival of a compressed natural gas filling station, which was outside of the protester’s control. In addition, one offeror’s failure to provide a balance sheet and credit report did not comply with a selection subfactor that required offerors to provide the documents to demonstrate a credible and proven record of meeting their financial obligations. Finally, the government’s failure to address the other offeror’s mathematical errors in its pro forma income statement and its unexplained revenue and expense projections was wholly arbitrary.

No Equitable Relief

The protester submitted responsive proposals that received the highest cumulative scores and therefore was prejudiced by the government’s arbitrary and capricious responsiveness determinations. The court, however, limited the protester’s relief to monetary damages consisting of proposal preparation costs. NPS concessions contracts are not procurement contracts under 28 USC 1491(b)(1), and the court exercised jurisdiction under §1491(a) based on the protester’s claim the government breached an implied contractual obligation to treat offerors fairly. The protester sought injunctive and declaratory relief, but equitable relief is unavailable in implied contract bid protests pursued under §1491(a). ( Eco Tour Adventures, Inc. v. U.S., FedCl, 58 CCF ¶80,221)