PCI’s Nov. 12 Case of the Month Club will cover a recent CDA case and a recent GAO protest decision.  In the CDA case, Sage Acquisitions LLC v. Secretary of Housing and Urban Development, No. 2023-1907, 2024 WL 4522253 (Fed. Cir. Oct. 18, 2024), the U.S. Court of Appeals for the Federal Circuit dives deep into the key difference between IDIQ contracts and requirements contracts, and the result for the contractor is a denial of all its claims.  Despite clear contract language providing that the contracts in question were IDIQ contracts, the contractor attempted to argue that they were requirements contracts and that the Government’s convenience termination of the contracts should lead to significant financial recovery.  Both the Civilian Board of Contract Appeals and the Federal Circuit made short shrift of that argument, and it was all downhill for the contractor after that.  This case provides an important lesson to contractors regarding how a contract type can affect their right to recover costs under a termination for convenience clause.

The protest decision, KBR Services, LLC; Vectrus Systems Corporation, B-422697.5, Oct. 4, 2024, 2024 CPD ¶ _, presents a very unusual situation.  In the course of evaluating task order final proposal revisions from four offerors, the Army noticed that one offeror had promised to comply with the solicitation’s small business subcontracting requirement but its technical proposal said it would self-perform all the requirements and it did not include any subcontractor costs in its cost proposal. The Army engaged in clarifications, asking the offeror if it intended to use small business subcontractors—to which the offeror responded that it did. The Army then found the proposal technically acceptable, even though the offeror’s technical approach still said it would self-perform the work. The Army also adjusted the offeror’s price to reflect subcontractor costs that had not been included in the proposal. The Army then awarded to that offeror, at a cost of nearly half the other proposed prices. Even though cost was the lowest weighted evaluation factor, and was significantly less important than all technical factors combined, it clearly was attractive to the Army. Two disappointed offerors protested, and the GAO makes it clear that the Army’s actions were unacceptable. The GAO’s recommendation, however, makes it clear that the Army might well be doing business with that contractor in the near future.

Join us on November 12 for a fascinating discussion of these two unusual cases!

Case of the Month 2024
Second Tuesday of the Month, 12:00-1:00pm ET
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• January 9
• February 13
• March 12
• April 9
• May 14
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• November 12
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