10 U.S.C. 2870 - 2885 - Military Housing Privatization Initiative

U. S. Court of Federal Claims - Key Excerpts

Defendant and Intervenor argue that the Competition In Contracting Act (CICA) and the Federal Acquisition Regulation (FAR) do not apply to this transaction, and therefore the Air Force cannot be found to have violated statute or regulation. The legal issue of whether CICA and the FAR apply is a thorny one, not necessary to the resolution of this expedited case. The Court’s authority to overturn agency action in the bid protest context is not limited to violations of statute or regulation. Rather, this Court may set aside a procurement which lacks a rational basis or results from a prejudicial violation of procurement procedure. Banknote, 365 F.3d at 1351. The agency’s failure to follow the terms of its own Solicitation and selection of an offeror based upon different requirements than those imposed upon the only other offeror are quintessential examples of conduct which lacks a rational basis. See, e.g., LaBarge Prod., Inc. v. West, 46 F.3d 1547, 1555 (Fed. Cir. 1995) (recognizing “the bastion of federal procurement policy that all offerors must possess equal knowledge of the same information in order to have a valid procurement.”). The agency’s failure to follow its own selection process embodied in the Solicitation is also a prejudicial violation of a procurement procedure established for the benefit of offerors. Banknote, 365 F.3d at 1351. This Court’s bid protest jurisdiction is no longer premised on the theory of the breach of an implied-in-fact contract. Nonetheless, it has long been held and is still recognized that the issuanceof a competitive solicitation which generates responsive offers gives rise to an implied contract of fair dealing. Heyer Prods. Co. v. United States, 140 F. Supp. 409, 412 (Ct. Cl. 1956) (“It was an implied condition of the request for offers that each of them would be honestly considered, and that that offer which in the honest opinion of the contracting officer was most advantageous to the Government would be accepted. No person would have bid at all if he had known that ‘the cards were stacked against him.’”). As the Federal Circuit recognized, “[t]he government is said to breach the implied contract if its consideration of offers is found to be arbitrary and capricious toward the bidder-claimant.” Southfork Sys., Inc. v. United States, 141 F.3d 1124, 1132 (Fed. Cir. 1998), (citation omitted). Thus, the Government’s issuance of a Solicitation and offerors’ submission of responsive offers created an implied-in-fact contract requiring fair dealing on the part of the Government. Moreover, the Solicitation expressly provided that the Air Force would use “fair” procedures for the evaluation and selection. AR 6. As such, the Court has a legal basis to sustain this protest independent of any statutory or regulatory violations, so the applicability of CICA and the FAR is immaterial.

The onerous six-month limitation term, which Actus termed a “deal breaker,” was eliminated for Actus by the settlement of Actus’ agency protest, but Hunt continued to be saddled with it. The relaxation of this provision would have decreased the risk to the lender. As a result, Plaintiff and Actus submitted FPRs based on fundamentally different assessments of the risk inherent in the Project. As Hunt’s lender testified, increasing a lender’s risk exposure had a direct consequence to a borrower - the risk is passed on to the borrower in the form of an increase in the financing costs, either through a higher interest rate or because of the requirement that credit enhancement, such as a guarantee, be obtained. Ray Decl. ¶ 12. Risk was an evaluation consideration. The Solicitation stated that the standard required for financial proposals would be met when “[t]he Offeror’s proposal shows that the financial risk (e.g., default, interest rate, etc.) to the Project is reasonable. The lower the risk the more favorable this factor will be evaluated.” AR 86. The pre-selection change to Condition 23 of the Lease meant that the risk for Plaintiff was greater than that for Intervenor, making it impossible for the SSET to apply that evaluation factor fairly. (Hunt Building Company Ltd., v. U. S. and Actus Lend Lease, LLC, No. 04-505C, July 21, 2004) (pdf)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
Forest City Military Communities, LLC, v. U.S. and GMH/Centex Military Communities, No. 07-546C, e-filed for publication:  November 19, 2007.  (pdf) Hunt Building Company Ltd., v. U. S. and Actus Lend Lease, LLC, No. 04-505C, July 21, 2004 (pdf)

U. S. Court of Appeals for the Federal Circuit - Key Excerpts


U. S. Court of Appeals for the Federal Circuit - Listing of Decisions

For the Government For the Protester


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