Bass, Berry & Sims PLC

As we previously discussed in a 2019 blog post, since 2018 Bass, Berry & Sims Government Contracts and Litigation attorneys have successfully defended B&O JV in a host of challenges to an 8(a) small business set-aside award by the Federal Law Enforcement Training Center (FLETC).  On May 20, 2021, the Federal Circuit gave our client and team yet another win when it denied a request for a rehearing filed by Safeguard Base Operation, LLC, a disappointed offeror that included in the joint venture the prior incumbent.

Over the past three years, we have successfully defended B&O JV against over half a dozen challenges to the award filed by Safeguard.  Our team’s undefeated record includes:

Safeguard’s primary complaint was that it had been improperly excluded from the competition for failure to include plug numbers provided by FLETC for service work request Contract Line Item Numbers (CLINs).  When multiple potential offerors submitted questions about a potential ambiguity, FLETC included the plug numbers in its answers that were incorporated into the RFP in an amendment and instructed offerors to include those amounts in the applicable CLINs.  Safeguard, however, did not follow this instruction.  Safeguard also alleged that FLETC had breached an implied-in-fact contract to fairly and honestly consider its proposal.

Adopting the position our team advocated on behalf of B&O JV and the Department of Justice advocated on behalf of FLETC, COFC found that Safeguard’s oversight, which resulted in its proposal being more than $6 million too low, was material and could not have been addressed through clarifications.  The Federal Circuit agreed and denied Safeguard’s appeal in its March 4, 2021, precedential decision.  That decision, which was widely reported, also concluded for the first time that after the passage of the Administrative Dispute Resolution Act of 1996 the COFC retained jurisdiction over implied-in-fact contracts in the procurement context under 28 U.S.C. § 1491(b)(1).

In April 2021, Safeguard filed a combined petition for rehearing or rehearing en banc seeking to overturn the Federal Circuit panel’s March decision.  That petition argued that the majority erred by doing the following:

  1. Holding that Safeguard’s failure to include the plug numbers was a material omission that could not be clarified or waived.
  2. Misapplying the standard for supplementation of the administrative record in connection with Safeguard’s allegations of bias.

On May 20, 2021, after consideration by the panel that heard the appeal and then by the Federal Circuit judges who are in regular active service, the Federal Circuit issued a per curium order denying the petition for a rehearing and rehearing en banc, bringing this latest chapter in the saga to a conclusion in B&O JV’s favor.

Bass, Berry & Sims is grateful to B&O JV for the opportunity to support the company in these cases.  Our Government Contracts team, which works closely with members of our Litigation practice, has extensive experience in both defending and challenging government contract awards.  

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