Performance of Embassy Construction Contract Enjoined

The Court of Federal Claims enjoined performance of a construction contract because the protester established the contract award was arbitrary, capricious, and not in compliance with applicable regulations. The Phase II solicitation for construction of a Moscow embassy annex provided that one of two evaluation factors, Management/Technical, was significantly more important than the Cost/Price evaluation factor. Although the technical evaluation board determined the awardee and protester were the closest in price and the differences in their technical proposals were “insignificant,” the only document in the administrative record that provided any rationale for the award was a Recommendation for Contract Award written by the government’s “Primary Point of Contact” for the procurement. The recommendation stated “[t]he [g]overnment used the tradeoff process to determine the proposal that represent[ed] the best value” and recommended the awardee because it submitted the highest-rated technical proposal and most reasonable price. The recommendation also contained lines marked “Approve” and “Disapprove.” The “Approve” line was checked and the source selection authority’s initials appeared next to it. In addition to challenging the award, the protester contested the government’s reversal of its initial determinations the awardee’s Phase I submission did not qualify for Phase II and the awardee was not eligible for a 10-percent Percy Amendment price preference.

Lax and Unacceptable

The court found the government’s decision to pre-qualify the awardee appeared to be arbitrary because the administrative record lacked any explanation of why the government reversed its initial determination. Similarly, the record for the government’s reversal on the awardee’s Percy Amendment eligibility “suggest[ed] that arbitrary, capricious, unsupported, and reactive decision-making, without justification, may have occurred.” With regard to the selection decision, the SSA’s mere initialing of the recommendation raised issues of whether there was a sufficient showing the SSA had exercised sufficient independent judgment to satisfy FAR 15.308. In addition, FAR 15.308 requires an SSA to document the rationale for selecting the lowest-priced offeror, but the recommendation was conclusory and fell far below the standard required by FAR 15.308. The recommendation contained errors and information that conflicted with other documents in the record, lacked a narrative summary of the technical strengths and weakness of the three offerors in the competitive range, and lacked a discussion comparing the offerors. Finding the government conducted the entire procurement in a “lax and unacceptable fashion,” the court held the protester prevailed on the merits and all other equitable factors favored injunctive relief. ( Caddell Construction Co. v. U.S., et al., FedCl, 57 CCF ¶80,073)