Decision released in Protest denial of GSA 2GIT

“BACKGROUND – On March 4, 2019, the United States, acting through the General Services Administration, Federal Acquisition Service, Information Technology Category (“GSA” or the “Government” or the “Agency”) issued RFQ No. 47QTCA-19-Q-0009 (the “RFQ”) for the “2nd Generation Information Technology Blanket Purchase Agreement” program (“2GIT”). Sirius Federal Compl; CDW-G Compl; CounterTrade Compl; Blue Tech Compl.. The RFQ contemplated the award of multiple firm-fixed-price BPAs under FAR 8.405-3(b) with a five-year period of performance. RFQ § 4, D. Appx at 142; RFQ § 6, D. Appx at 152. Under this procurement, GSA sought multiple award BPAs for IT “hardware and software commodities, ancillary supplies and services as a follow on to the First Generation Information Technology (1GIT) BPAs…

The RFQ identifies four non-price factors: (1) breadth of OEMs (“BOEM”); (2) relevant experience; (3) socioeconomic considerations; and (4) supply chain risk management (“SCRM”). RFQ “Non-Price Factors”, D. Appx at 189. Quotes largely consist of self-scoring assessments for each factor. The RFQ cautions that exaggerated self-scoring assessments could result in the quoter’s elimination from further consideration…”

“GSA received 27 quotes in response to the revised solicitation. The 27 quotes were submitted through CTA submissions—that is, numerous contractors entered into agreements whereby the team members combined their capabilities to meet the procurement requirements. See D. Appx155-59 (describing CTAs); see also D. Appx 886-87 (identifying the number of team members participating in each quote). The solicitation did not preclude individual companies from participating in more than one quote, and therefore many companies were members of more than one team. See, e.g., D. Appx 981-84. CTA members, unlike subcontractors, would be considered in privity with the Government for the work they were to perform if their teams were chosen for award. D. Appx 159. CounterTrade submitted a quote as team lead but was also a member of another team that obtained a BPA award, led by [ … ]. See D. Appx 981; see also D. Appx 32-42. Sirius Federal (formerly known as Force 3, LLC) was a member of [ … ] winning teams, D. Appx 982, and Blue Tech was a member of [ … ] winning teams, D. Appx 981. CDW-G submitted a quote as a team lead but was not a member of any winning team…”

“DISCUSSION- The question presented is whether the Plaintiff-Awardees, which are members of teams that won BPA awards in this procurement, have standing to pursue their protest actions challenging the Government’s rejection of their quotes as team leads. According to DefendantIntervenors, the Plaintiff-Awardees status as CTA Team Members defeats their standing here. Because “standing is a threshold jurisdictional question,” the Court is required to decide this issue before proceeding to the merits. Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (2002) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998)). The Tucker Act gives this Court “jurisdiction to render judgment on an action by an interested party objecting to … the award of a contract…” 28 U.S.C. § 1491(b)(1). “The standing issue in this case is framed by 28 U.S.C. § 1491(b)(1), which we have found imposes more stringent standing requirements than Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). Because the Tucker Act does not define “interested party,” the Federal Circuit has determined that the proper definition is found in the Competition in Contracting Act (“CICA”). Am. Fed’n of Gov’t Emps., AFL–CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (“We therefore construe the term ‘interested party’ in § 1491(b)(1) in accordance with the CICA.”); see also Eskridge & Assocs. v. United States, 955 F.3d 1339, 1344 (Fed. Cir. 2020); Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012). Applying the “interested party” definition from the CICA (31 U.S.C. § 3551(2)(A)), the Federal Circuit has limited standing under § 1491(b)(1) to “actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract…”

“DECISION – Pending before the Court in this multi-party consolidated protest are two motions for preliminary injunctive relief and two motions to dismiss three of the Plaintiffs. The motions for preliminary injunctive relief seek to prohibit the Government from issuing any orders against the disputed Blanket Purchase Agreements while this action is pending. The motions to dismiss, filed by the Defendant-Intervenors but not the Government, allege that three of the Plaintiffs lack standing. For the reasons explained below, the pending motions are each denied…”

Read the full 21-page decision here.

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