Orion Technology, Inc. v. United States , 704 F.3d 1344 ( 2013 )

United States Court of Appeals
for the Federal Circuit
__________________________
ORION TECHNOLOGY, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
and
STRATEGIC RESOURCES, INC.,
Defendant.
__________________________
2012-5062
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 11-CV-573, Judge Margaret M.
Sweeney.
__________________________
Decided: January 14, 2013
__________________________
JAMES Y. BOLAND, Venable LLP, of Tysons Corner,
Virginia, argued for plaintiff-appellant. With him on the
brief was LARS E. ANDERSON.
ELIZABETH A. SPECK, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-
ORION TECHNOLOGY v. US 2
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and CLAUDIA BURKE, Assistant Director.
__________________________
Before LOURIE, CLEVENGER, and WALLACH, Circuit
Judges.
LOURIE, Circuit Judge.
Orion Technology, Inc. (“Orion”) appeals from the de-
cision of the United States Court of Federal Claims
(“Claims Court”) dismissing its pre-award bid protest for
lack of standing and, in the alternative, because the
Army acted reasonably in rejecting Orion’s proposal.
Orion Tech., Inc. v. United States, 102 Fed. Cl. 218 (2011).
Because we agree that the Army acted reasonably in
excluding Orion from competition, we affirm.
BACKGROUND
On December 7, 2010, the Army’s Mission and Instal-
lation Contracting Command issued solicitation number
W9124J-11-R-0001, an indefinite delivery, indefinite
quantity multiple award task order for services at various
Army installations. That solicitation contained a number
of provisions with instructions for offerors concerning how
to prepare proposals (Section L) and indicating the vari-
ous factors the Army would use to evaluate proposals
(Section M).
Section L noted that the Army intended to award con-
tracts without conducting discussions with offerors such
as Orion, but reserved the right to do so at a later date.
Section L also stated that noncompliance with the pro-
posal requirements “may” hamper the ability of the
government to evaluate the proposal and “may result in
elimination of the proposal from further consideration.”
3 ORION TECHNOLOGY v. US
J.A. 110. The solicitation also notified the offerors that
they were required to “meet all solicitation requirements .
. . . Failure to meet a requirement may result in an offeror
being ineligible for an award.” J.A. 114. Part of that
submission was required to include a cost/price proposal
that was “required to determine that the proposed price
[was] fair and reasonable.” J.A. 122. The solicitation also
required that the pricing schedule must be “fully complete
and error free,” and must include supporting information,
including subcontractor cost and pricing information.
J.A. 123–24. The solicitation did not state that incom-
plete pricing data would disqualify a proposal. Instead,
the solicitation stated that proposals with incomplete
pricing data “may not be considered for an award.” J.A.
124.
Section M, reciting the evaluation factors, explained
how the government would evaluate the proposed costs
and prices in each proposal for reasonableness and
warned offerors of possible elimination from competition
for failure to comply. Portions of it stated:
1.1.2 The Government will evaluate proposed
costs and prices for reasonableness using cost and
price analysis techniques. Proposed prices evalu-
ated as unreasonable may be grounds for elimi-
nating a proposal from competition.
1.13 Unrealistically low costs/prices may be
grounds for eliminating a proposal from competi-
tion on the basis that the offeror has demonstrat-
ed a lack of understanding of the requirement.
J.A. 126.
Orion submitted a proposal on February 8, 2011, the
last possible date under the solicitation. However, Orion
omitted the proprietary cost information for five of its
ORION TECHNOLOGY v. US 4
eight subcontractors, contrary to the requirements of
Section L. Eight days later, the Army received two pack-
ages from Orion that allegedly contained the missing
subcontractor cost data. The packages were returned to
Orion unopened because they were untimely.
After reviewing Orion’s original submission, the con-
tracting officer (the “CO”) rejected Orion’s proposal be-
cause of the missing subcontractor data:
Your proposal failed to provide required cost/price
information for your teaming partners in accord-
ance with (IAW) Section L, paragraph 4.4.6.1.1(d).
Five teaming partners, including one that is pro-
posing over 20% of the total cost of the require-
ment, failed to submit cost/price information to
the Government. . . . Without these submissions,
the proposed productive hours, labor mix, and di-
rect labor rates cannot be verified and evaluated.
Consequently your cost/price proposal cannot be
evaluated for price reasonableness and cost real-
ism IAW Section M, paragraph 4.0.
J.A. 318.
Orion filed a protest to the CO, and the CO issued a
decision denying the protest because of Orion’s “failure to
comply with explicit and mandatory requirements in
Section L that resulted in material proposal omissions.”
J.A. 325. Orion then filed a protest at the Government
Accountability Office (“GAO”), challenging that decision,
which was also denied because of the missing “required
supporting information . . . [that] precluded the agency
from evaluating the proposal as contemplated by the
solicitation.” J.A. 399.
The Army subsequently issued Amendment Number 7
to the solicitation (the “Amendment”), notifying offerors
5 ORION TECHNOLOGY v. US
determined to be in the competitive range that, contrary
to the original solicitation, discussions concerning the
solicitation were going to be held. The Amendment
consequently sought new cost/price proposals from the
qualifying offerors. Orion then attempted to resubmit its
cost/price proposal. However, because Orion had already
been eliminated from the competition, the Army once
again rejected that proposal.
Orion filed another protest to the CO, which was dis-
missed on the ground that Orion was not an “interested
party” and thus did not have standing to protest the
procurement. Orion then filed a second GAO protest, in
response to which the GAO held similarly that Orion was
not an interested party. Orion then filed a bid protest in
the Claims Court challenging its dismissal from the
competition. The government moved to dismiss and for
judgment on the administrative record.
The Claims Court granted the government’s motion to
dismiss and held that Orion lacked standing as an “inter-
ested party” to bring a bid protest pursuant to 28 U.S.C.
§ 1491(b)(1) because Orion submitted a noncompliant
proposal. The Claims Court also held that Orion lacked
standing to challenge the second protest after the
Amendment because it was still not an interested party.
The court dismissed the motion for judgment on the
administrative record as moot, but reasoned that it would
have denied Orion’s protest on the merits because it was a
rational decision by the Army to exclude Orion from the
competition due to the missing information. Orion ap-
pealed. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(3).
DISCUSSION
We review determinations of standing de novo.
Labatt Food Serv., Inc. v. United States, 577 F.3d 1375,
ORION TECHNOLOGY v. US 6
1379 (Fed. Cir. 2009). We review the grant or denial of a
judgment on the administrative record without deference.
Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d
1380, 1384 (Fed. Cir. 2012); Bannum, Inc. v. United
States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). Government
procurement decisions in bid protest cases are reviewed
under the arbitrary and capricious standard of section
706 of the Administrative Procedure Act. Centech Grp. v.
United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009); Info.
Tech. & Applications Corp. v. United States, 316 F.3d
1312, 1319 (Fed. Cir. 2003); Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1332
(Fed. Cir. 2001). Any underlying fact findings are re-
viewed for clear error. Labatt Food Serv., 577 F.3d at
1379; Bannum, Inc., 404 F.3d at 1354.
I.
In a bid protest, only an “interested party” has stand-
ing to challenge a contract award. Rex Serv. Corp. v.
United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). An
interested party is an actual or prospective bidder whose
direct economic interest would be affected by the award of
the contract. Id. Thus, a party must show 1) that it is an
actual or prospective bidder and 2) that it has a direct
economic interest. As the Claims Court noted, there is no
dispute that Orion is an actual bidder, thus satisfying the
first prong of the interested party test. Orion Tech., 102
Fed. Cl. at 226. The standing dispute is only whether
Orion has the required direct economic interest.
Generally, to prove the existence of a direct economic
interest, a party must show that it had a “substantial
chance” of winning the contract. Rex Serv., 448 F.3d at
1308. An exception to that standard is when a prospec-
tive bidder challenges the terms of the solicitation itself,
prior to actually submitting a bid. Weeks Marine, Inc. v.
7 ORION TECHNOLOGY v. US
United States, 575 F.3d 1352, 1361 (Fed. Cir. 2009). In
that circumstance, the protestor can establish standing by
demonstrating that it suffered a “non-trivial competitive
injury which can be redressed by judicial relief.” Id. at
1361–62.
Orion argues that the “non-trivial competitive injury”
standard should apply to this post-proposal, pre-
evaluation protest because there is an inadequate factual
foundation for performing a “substantial chance” test
because the Army did not evaluate Orion’s proposal prior
to determining the competitive range. Orion contends
that it suffered such a non-trivial competitive injury
because it was likely that its proposal would have been
found reasonable and realistic if the Army had evaluated
it. In addition, Orion argues that it has standing to
challenge the Army’s decision to reject its second pro-
posal, submitted after the Amendment.
The government responds that the “substantial
chance” test should apply here because the “non-trivial
competitive injury” test is only a limited exception for pre-
award, pre-bid challenges based on the solicitation alone.
In this situation, the government argues that there is a
sufficient factual predicate to ascertain whether Orion
was harmed to justify using the substantial chance test.
The government contends that, under that test, Orion did
not have a substantial chance of receiving the contract
because its proposal was late and was missing material
information needed to perform the cost realism analysis.
The government also argues that Orion does not have
standing to challenge the Army’s decision to reject Orion’s
second proposal after the Amendment.
We agree with the government that the appropriate
test for standing in these circumstances is the “substan-
tial chance” test. In Weeks Marine, we set out an excep-
ORION TECHNOLOGY v. US 8
tion to the general standing test in the case of pre-bid,
pre-award protests because at that stage it is difficult, if
not impossible, to establish a substantial chance of win-
ning the contract prior to the submission of any bids:
[W]here a prospective bidder/offeror is challenging
a solicitation in the pre-award context[,] . . . it is
difficult for a prospective bidder/offeror to make
the showing of prejudice that we have required in
post-award bid protest cases. The reason of
course is that, in a case such as this, there have
been neither bids/offers, nor a contract award.
Hence, there is no factual foundation for a “but
for” prejudice analysis. However, Article III con-
siderations require a party such as Weeks to make
a showing of some prejudice.
Id. at 1361 (citations omitted). Here, Orion is not chal-
lenging the terms of the solicitation, as was the case in
Weeks Marine; it is challenging the Army’s application of
those solicitation criteria to Orion. The Army evaluated
Orion’s bid for compliance with the terms of the solicita-
tion and then gave detailed reasons for rejecting Orion’s
proposal. In addition, Orion’s bid was within the competi-
tive range later established by the Army after Orion’s
exclusion but before the Army’s initial response to Orion’s
first GAO protest. Given the circumstances, there is an
adequate factual predicate to ascertain under the tradi-
tional “substantial chance” standard whether Orion was
prejudiced by the Army’s decision to exclude its initial
proposal.
Applying the “substantial chance” standard to Orion’s
original proposal, Orion had standing to challenge the
exclusion of its original submission. The solicitation did
not mandate that Orion’s proposal must be excluded.
Instead, the solicitation stated multiple times that an
9 ORION TECHNOLOGY v. US
incomplete proposal “may” not be considered for an
award. J.A. 110, 114, 124. That language is permissive,
not mandatory, reserving to the Army discretion to decide
whether or not to exclude Orion’s proposal. The Federal
Acquisition Regulations (“FAR”) cited by the parties
similarly do not mandate exclusion of Orion’s proposal;
rather, those provisions mandate the Army’s obligations
to verify and evaluate pricing data. See FAR § 15.404-
1(d)(1), (2). It is beyond question that the Army had the
discretion to keep Orion’s proposal alive for further pro-
cessing. To deny Orion standing would effectively prevent
any challenge to a discretionary decision of the Army.
Moreover, had the Army not excluded Orion’s pro-
posal, Orion could have likely competed for the contract.
For example, Orion’s total cost/price that was provided in
its original proposal was also within the later established
competitive range. The Army could have evaluated
Orion’s proposal based on its total cost/price and rated
and ranked Orion accordingly when establishing the
competitive range. If the omitted data then prevented a
complete realism analysis, the Army could have found the
proposal unrealistic and included that issue in later
discussions and allowed supplementation of Orion’s
proposal under FAR § 15.306(d). Alternatively, had Orion
not already been excluded from the competition, it would
have had a second opportunity to submit the missing data
along with new cost/price volume data after the Army’s
later Amendment and in related discussions. The fact
that the missing information was critical to the cost
realism analysis and may have prevented the Army from
analyzing the proposal is relevant to the reasonableness
of the Army’s decision-making, not to determining preju-
dice for standing purposes. Orion thus had standing to
challenge its initial exclusion from competition.
ORION TECHNOLOGY v. US 10
In arriving at that conclusion, however, we do not
hold that the mere timely submission of a proposal, no
matter how defective, automatically confers standing
under the substantial chance standard. Instead, we only
conclude that under the facts of this case, where the Army
had discretion to process Orion’s competitive proposal, but
chose not to, and where Orion’s original proposal was
within the later-established competitive range, we con-
clude that Orion had a substantial chance of receiving the
contract and therefore had standing to challenge the
exclusion of its proposal based on the Army’s alleged
arbitrary action in refusing to exercise its discretion in
Orion’s favor. 1 Thus the Claims Court erred in dismissing
Orion’s protest for lack of standing.
In addition, because the exclusion of Orion’s second
proposal was a direct result of the exclusion of the first
proposal, our finding of standing arising from the first
proposal moots the issue concerning whether Orion has
standing to independently challenge the Army’s refusal to
consider Orion’s second proposal. We therefore need not
reach it.
1 Our recent precedent in Comint Systems Corp. v.
United States, 700 F.3d 1377 (Fed. Cir. 2012), is not to the
contrary. In Comint, we held that the contractor lacked
standing because it had received a low technical rating
from the agency, and thus did not have a substantial
chance of winning the contract. Id. at 1383–84. Here,
Orion received no such determination on the merits.
Unlike Comint, this case involves the discretion of a
contracting officer to exclude or consider an incomplete
offer. Where the offeror has a substantial chance of
succeeding if discretion is exercised in its favor, jurisdic-
tion lies to test whether the exercise of discretion against
the offeror is lawful.
11 ORION TECHNOLOGY v. US
II.
The Claims Court denied the government’s motion for
judgment on the administrative record as moot due to
Orion’s lack of standing. However, the court did indicate
that, if Orion had had standing, it would have denied
Orion’s protest on the merits because the decision to
exclude Orion from competition based on the missing
information was rational. An appellate court can affirm a
decision of the trial court upon any ground supported by
the record. See Datascope Corp. v. SMEC, 879 F.2d 820,
822 n.1 (Fed. Cir. 1989) (citing Jaffke v. Dunham, 352
U.S. 280, 281 (1957)). Here, the trial court, after full and
supplemental briefing on the merits and a hearing, gave a
detailed analysis of the reasonability of the Army’s exclu-
sion of Orion’s proposal from competition. While that
motion was dismissed as moot, the parties have once
again fully briefed the issue of the reasonability of the
Army’s actions. We therefore find it proper to consider
the reasonability of the Army’s actions.
Orion contends that the Army lacked a rational basis
for rejecting its proposal because it was based on a misin-
terpretation of the solicitation. Specifically, Orion argues
that the solicitation did not mandate the rejection of
Orion’s proposal because it used the term “may” instead of
“shall.” In addition, Orion adds that the solicitation did
not mandate the evaluation of an “initial” as opposed to a
“final” proposal. Orion also argues that it was arbitrary
and irrational to reject the proposal before determining if
the missing information was material or seeking to obtain
the missing pricing information pursuant to FAR
§ 15.404-1(c). Orion notes that considering Orion’s origi-
nal proposal would not have prejudiced other offerors by
giving Orion “additional time” because the missing data
had no effect on the overall cost numbers.
ORION TECHNOLOGY v. US 12
The government responds that it was reasonable for
the Army to exclude Orion because Orion failed to submit
a complete proposal by the deadline, and the solicitation
clearly stated that a failure to submit a complete and
timely proposal was ground for elimination. The govern-
ment also argues that the subcontractor cost and pricing
data were required to conduct the required cost and price
analysis. FAR § 15.404-1(d)(1), (2). The government also
notes that the Army was not required to waive its rule
requiring timely submissions and that it would have been
unfair to the other offerors to waive the requirements for
Orion. Finally, the government argues that once Orion
was excluded, there was no reason to include Orion in the
amended cost proposal discussions, as the only authorized
discussions were with those previously found to be in the
competitive range stage. FAR § 52.215-1(c)(3)(ii).
We agree with the trial court and the government
that the Army reasonably excluded Orion’s proposal from
the competition. Agencies are entitled to a high degree of
deference when faced with challenges to procurement
decisions. See Impresa, 238 F.3d at 1332. A protestor
such as Orion may only prevail when it is clear that the
agency’s determinations are irrational and unreasonable.
R & W Flammann GmbH v. United States, 339 F.3d 1320,
1322 (Fed. Cir. 2003). “[T]he test for reviewing courts is
to determine whether the contracting agency provided a
coherent and reasonable explanation of its exercise of
discretion and the disappointed bidder bears a heavy
burden of showing that the award decision had no ration-
al basis.” Impresa, 238 F.3d at 1332–33 (citations omit-
ted) (internal quotation marks omitted).
The solicitation clearly states that an incomplete pro-
posal “may” be disqualified. J.A. 110, 114, 124. It is
undisputed that Orion’s proposal as of the deadline was
incomplete. The Army’s letter to Orion explained the
13 ORION TECHNOLOGY v. US
reasons for excluding Orion’s proposal, viz., the failure to
provide cost/price data for all of its teaming partners and
various inconsistencies that rendered the cost realism
analysis impossible. That cost realism analysis, as de-
tailed in FAR § 15.404-1(d), requires the government to
independently review and evaluate the proposed cost
estimate to determine whether the estimates are realistic
and the probable cost of performance. See FAR § 15.404-
1(d)(1)–(2). Failing to include subcontractor cost and
pricing forces the Army to make assumptions concerning
the underlying data. The Army concluded that it could
not make those assumptions and thus could not perform
the required analysis without the missing information.
The Army’s conclusion that it could not perform a re-
quired mathematical analysis without the relevant data
was reasonable under the circumstances, and therefore
the decision to exclude Orion’s original petition was
likewise reasonable. The Army, in outlining that reason-
ing in its letter to Orion, provided the necessary coherent
and reasonable explanation of its exercise of discretion.
In addition, the decision to return to Orion the uno-
pened packages was also not unreasonable, as the solici-
tation set a clear deadline for submissions and warned
that late proposals would not be considered. J.A. 124. As
the Claims Court correctly noted, the Army was under no
obligation to accept or open late-submitted proposal
materials or to open discussions to obtain the missing
data. See Orion Tech., 102 Fed. Cl. at 232; FAR
§ 15.306(d). Indeed, no discussions with Orion were
required because a competitive range had not yet been
established, and such contact to cure deficiencies is pro-
hibited under FAR § 52.215-1(c)(3)(ii). In short, Orion
failed to submit a complete proposal by the required
deadline, Orion’s proposal lacked information material to
the Army’s cost realism analysis, and the Army acted
ORION TECHNOLOGY v. US 14
rationally when it excluded Orion’s proposal from consid-
eration and returned unopened the late submission of
subcontractor data.
We have considered the parties’ remaining arguments
and do not find them persuasive. While we disagree with
part of the reasoning of the trial court regarding standing,
we agree with its ultimate conclusion.
CONCLUSION
The judgment of the Claims Court is
AFFIRMED.