id
stringlengths 36
36
| text
stringlengths 1
400
| source
stringclasses 10
values |
|---|---|---|
d5d6897a-93e5-4da9-869e-12f4184761ef | . Per the Federal Circuit, to establish standing in a bid protest, an “interested party” must demonstrate it has a “direct economic interest” that “would be affected by the award of the contract or failure to award the contract.” Id. at 1359 (quoting Am. Fed’n of Gov’t Emps., 258 F.3d at 1302) | Sh_Synergy,_LLC_2023-04-28.txt |
a1dc587a-3f54-4818-a1e8-8dbea62b9f1e | . To establish a “direct economic interest” 19 the Federal Circuit (Federal Circuit) has expounded on the issue of prejudice in a pre-award protest, noting that courts should apply something akin to the “harmless error” rule that courts generally apply in ordinary civil cases. Am. Relocation Connections, 789 F. App’x at 228 | Sh_Synergy,_LLC_2023-04-28.txt |
f97b38f0-ab03-45ca-845d-1d4dc241425d | . Specifically, the Federal Circuit has noted that a pre-award protestor must demonstrate “a greater-than-insignificant chance” that correcting the agency’s errors could lead to a different result for the protestor. Id. DISCUSSION Plaintiffs’ pre-award bid protest challenges the propriety of the SB, WOSB, and SDVOSB Pool Solicitations on three grounds | Sh_Synergy,_LLC_2023-04-28.txt |
1044a40e-a91c-435a-8bce-86451c310e0f | . Specifically, Plaintiffs’ protest alleges that GSA violated various procurement laws and regulations in both the design and the administration of the Polaris Solicitations | Sh_Synergy,_LLC_2023-04-28.txt |
341e5645-b3b5-4cef-b106-5f6c50e836f6 | . First, Plaintiffs argue GSA’s decision to prohibit mentor-protégé JVs that share a mentor from bidding on the same Solicitation renders the Polaris Solicitations “unduly restrictive” sufficient for standing, the protestor must demonstrate that the agency action injured, or prejudiced, the protestor. See id. at 1359 | Sh_Synergy,_LLC_2023-04-28.txt |
2969b521-c75e-44da-8a68-511df3b5f404 | . Thus, the Federal Circuit has treated the prejudice inquiry for bid protests as inextricably linked with the standing inquiry. See, e.g., Weeks Marine, 575 F.3d at 1359–63; Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369–70 (Fed. Cir | Sh_Synergy,_LLC_2023-04-28.txt |
8cca612a-4b98-4ea3-9a76-c506c0523c2f | . 2002) (“To some extent, the Court of Federal Claims appears to have treated the question of whether [the protestor] was prejudiced by the [agency] as different from the question of whether [the protestor] has standing. In fact, prejudice (or injury) is a necessary element of standing.”) | Sh_Synergy,_LLC_2023-04-28.txt |
61a7a460-d4d6-4e0d-9eaa-b7eed0e8e841 | . In other cases, however, the Federal Circuit has emphasized a distinction between the prejudice inquiry relevant to standing and the merits-based prejudice inquiry required for a successful bid protest. See, e.g., Am. Relocation Connections, 789 F. App’x at 227 (“We acknowledge that many of our bid protest cases discuss the requirement to show prejudice in the context of standing. . . | Sh_Synergy,_LLC_2023-04-28.txt |
23f99cc7-7315-477c-a768-b5276b1a56cc | . But we do not read those cases as holding that satisfying § 1491(b)(1)’s standing requirements necessarily establishes that any procedural error committed by the procuring agency was prejudicial error on the merits.”); Labbatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378–79 (Fed. Cir | Sh_Synergy,_LLC_2023-04-28.txt |
ece8a446-668c-48e9-8cd9-f511873ac9c8 | . 2009) (emphasizing the distinction between the “direct economic interest” inquiry and the “prejudice” inquiry to underscore that an economically interested party may nevertheless suffer a non-prejudicial error insufficient to invalidate a procurement). As no party contests Plaintiffs’ standing here, this Court will assess prejudice from a merits-based perspective | Sh_Synergy,_LLC_2023-04-28.txt |
740c0cc0-cac1-4165-9b55-e386186f46a5 | . 20 of competition and rests on an inappropriate interpretation of SBA regulation 13 C.F.R. § 125.9(b)(3)(i). See SHS MJAR at 16–23; VCH MJAR at 16–23 | Sh_Synergy,_LLC_2023-04-28.txt |
ad1f3452-a8eb-45e9-8f8d-07a4fce9946c | . Second, Plaintiffs assert the Solicitations violate regulations governing how an agency may evaluate mentor-protégé JVs, WOSB JVs, and SDVOSB JVs during a procurement by subjecting these entities to “the same” evaluation criteria as offerors generally. SHS MJAR at 26–34; VCH MJAR at 26–34. Third, Plaintiffs contend the Polaris Solicitations violate federal procurement statute 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
63ca0544-a29c-4c17-a4c3-3d69a4fe63fe | . § 3306(c) by failing to consider price as an evaluation factor at the IDIQ level. SHS MJAR at 34–37; VCH MJAR at 34–37. This Court considers each of Plaintiffs’ claims in turn. I. GSA Properly Excluded Mentor-Protégé JVs with the Same Mentor from Bidding on the Small Business Pool Solicitation Pursuant to 13 C.F.R. § 125.9(b)(3)(i) | Sh_Synergy,_LLC_2023-04-28.txt |
aa2c7fab-29da-44ad-a637-65a51497dbfe | . Plaintiffs first argue they are improperly barred from submitting proposals on the SB Pool Solicitation due to GSA’s purported misinterpretation and misapplication of SBA regulation 13 C.F.R. § 125.9(b)(3)(i). See SHS MJAR at 16–23; VCH MJAR at 16–23 | Sh_Synergy,_LLC_2023-04-28.txt |
492bf097-f19a-43cc-ae11-da4e66d9623e | . Plaintiffs note that because their respective mentor members have already submitted proposals on the SB Pool Solicitation through another mentor-protégé JV, GSA has prohibited Plaintiffs from likewise proposing on the SB Pool Solicitation pursuant to 13 C.F.R. § 125.9(b)(3)(i). SHS Compl. ¶– 38; VCH Compl. ¶–39; SHS MJAR at 20; VCH MJAR 20 | Sh_Synergy,_LLC_2023-04-28.txt |
b3fe538f-61e5-405c-a670-fa37fa4d3f2f | . The terms of the Polaris Solicitations do not expressly reference Section 125.9(b)(3)(i); instead, GSA invoked Section 125.9(b)(3)(i) in answering a question it had received from a member of industry regarding the Solicitations. See Small Business Pool Question and Response Document #4, Question 292 (AR at 890) | Sh_Synergy,_LLC_2023-04-28.txt |
c3a065cc-728d-4e30-91f3-25347631e528 | . Question 292 inquired whether a mentor belonging to multiple mentor-protégé JVs may submit multiple proposals in the same Solicitation pool so long as the JVs do not rely on the same Relevant Experience Projects in their bids. Id. Responding in the negative, GSA specifically referenced 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
68d67480-c307-42c8-aa3d-f6ffc9dd9260 | .9(b)(3)(i) to reiterate that “a mentor that has more than one protégé 21 cannot submit competing offers in response to a solicitation for a specific procurement through separate joint ventures with different proteges.” Id. Said differently, under GSA’s interpretation of Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
abec6d02-7f70-48ad-80c1-998d73e76719 | .9(b)(3)(i) as applied to the Polaris Solicitations, if two mentor-protégé JVs share the same mentor, the JVs cannot submit competing offers to enter the SB pool. Plaintiffs make several arguments in support of their position. First, Plaintiffs contend GSA’s reliance on Section 125.9(b)(3)(i) in imposing such a prohibition is misplaced because 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
7dc4764a-f24e-4b2a-8f67-a89f5f299ca0 | .9 “expressly deals with entering into the SBA Mentor-Protégé Program” and does not govern procurement activity after the mentor-protégé JV has been formed. SHS MJAR at 20; VCH MJAR at 20; Oral Arg. Tr. at 6:13–15 (“First, 13 C.F.R. 125.9 is not a procurement regulation. It is a regulation that deals with entry into the Mentor-Protégé Joint Venture Program.”) | Sh_Synergy,_LLC_2023-04-28.txt |
984e0539-843e-473c-b240-297a493256a4 | . Second, Plaintiffs also argue that even if Section 125.9(b)(3)(i) were to apply beyond the formation of a mentor-protégé relationship, the regulation should still not apply to the Polaris Solicitations because the Solicitations do not involve “competing offers” at the IDIQ level. SHS MJAR at 21; VCH MJAR at 21 | Sh_Synergy,_LLC_2023-04-28.txt |
4f09ca6f-2c84-4558-8204-b1282f85b87f | . Rather than involving “competing offers,” according to Plaintiffs, the self-scoring regime used in the Polaris Solicitations involves no true competition, as it forces each bidder to compete against itself rather than against other offerors. SHS MJAR at 21–22; VCH MJAR at 21–22 (same); see Pl. Reply at 8–9 | Sh_Synergy,_LLC_2023-04-28.txt |
88514a8a-55b7-441d-9ff1-dbceaf8124d0 | . Instead, Plaintiffs contend competition exists only at the task order level because that is the level at which discrete service projects are awarded based on competitive bidding. SHS MJAR at 21–23; VCH MJAR at 21–23; Oral Arg. Tr. at 17:1– 3 (“[T]he trigger for competition is actually at the task order level. It’s not at the upper level.”). Third, applying Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
9c937fbd-8eef-414b-a2a8-9cb51ea69d2f | .9(b)(3)(i)’s prohibition to the Polaris Solicitations is further inappropriate, according to Plaintiffs, because it is the protégé, and not the mentor, that has authority to make operational decisions for the JV under SBA regulation. See SHS MJAR at 22– 22 23; VCH MJAR at 22–23 | Sh_Synergy,_LLC_2023-04-28.txt |
b0bd2b86-c19b-4c7d-89d5-d8f6948f121d | . Thus, according to Plaintiff, the decision to preclude mentor-protégé JVs that share a mentor from bidding on the same Solicitation harms protégés, unduly restricts competition, and violates federal procurement law. See SHS MJAR at 20–23; VCH MJAR at 20– 23. Defendant disagrees, both with Plaintiffs’ interpretation of 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
1277c0db-d1eb-4820-bbe2-f56f584ab2a4 | .9(b)(3)(i) and with Plaintiffs’ understanding of what constitutes a “competing offer.” Cross-MJAR at 24–37. Defendant argues that 13 C.F.R. § 125.9(b)(3)(i) expressly prohibits mentor-protégé JVs with the same mentor from competing against one another on future procurements. Cross-MJAR at 25–26 | Sh_Synergy,_LLC_2023-04-28.txt |
292bdd29-62b7-4896-bb59-74ebabdf8f2c | . Defendant contends that because the SBA’s rulemaking and regulations have the “force and effect of law,” GSA lacked any discretion to disregard 13 C.F.R. § 125.9(b)(3)(i). Id. (citing Otis Steel Prods. Corp v. United States, 316 F.2d 937, 940 (Ct. Cl. 1963)) | Sh_Synergy,_LLC_2023-04-28.txt |
7cc66bc6-dfca-4492-ba83-8a2d5c3d2fc8 | . According to Defendant, that the offers are self-scored does not eliminate competition, as Plaintiffs suggest, because “scoring is relative to the total group of offerors, and only the top scoring offerors will make it into the top 100 or 80 or 70 offeror tranches and thus be eligible to be awarded contracts.” Cross-MJAR at 30 | Sh_Synergy,_LLC_2023-04-28.txt |
97ab641a-ec32-49be-a9a9-189583f77a6a | . Thus, Defendant asserts that offerors with scores too low to be included within the tranche do not receive an IDIQ contract. Id. The parties’ disagreement comes down to two issues: (1) the scope of Section 125.9(b)(3)(i), and (2) the appropriate interpretation of the term “competing offers” as used in that regulation | Sh_Synergy,_LLC_2023-04-28.txt |
b5d04a31-cda8-4213-a7fd-269b1756528a | . On both issues, this Court agrees with Defendant: GSA reasonably prohibited mentor- protégé JVs with the same mentor from proposing on the same Polaris Solicitation by applying 13 C.F.R. § 125.9(b)(3)(i). In interpreting federal regulations, this Court must “apply the same interpretive rules [courts] use when analyzing the language of a statute.” Boeing Co. v. Sec’y of Air Force, 983 F | Sh_Synergy,_LLC_2023-04-28.txt |
c68e7cba-a307-4609-884f-3ec32bdfe4d0 | .3d 23 1321, 1327 (Fed. Cir. 2020) (citing Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354, 1365 (Fed. Cir. 2015)). Thus, a court must “first consider the ‘plain language [of the regulation] and consider the terms in accordance with their common meaning.’” Mass. Mut. Life Ins. Co., 782 F.3d at 1365 (quoting Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir | Sh_Synergy,_LLC_2023-04-28.txt |
b5677867-ecff-4d9b-8754-8fe340ae7055 | . 1997)) (alteration in original). As part of this process, the court must consider “the text of the regulation as a whole, reconciling the section in question with sections related to it.” Id. (quoting Lengerich v. Dep’t of Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006)). “If the regulatory language is clear and unambiguous, the inquiry ends with the plain meaning.” Hanser v. McDonough, 56 F | Sh_Synergy,_LLC_2023-04-28.txt |
dd131009-750a-4f50-a9d9-b52ad133f4d0 | .4th 967, 970 (Fed. Cir. 2022) (quoting Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017)). Section 125.9(b)(3)(i) states, “A mentor that has more than one protégé cannot submit competing offers in response to a solicitation for a specific procurement through separate joint ventures with different protégés.” 13 C.F.R. § 125.9(b)(3)(i) | Sh_Synergy,_LLC_2023-04-28.txt |
0a1934b3-9d2d-4322-b53d-f5c9cf9e637a | . As detailed below, this Court finds that GSA’s interpretation of Section 125.9(b)(3)(i) and its application to the Polaris Solicitations reflects a reasonable reading of the regulation’s clear and unambiguous language. A. SBA Regulation 13 C.F.R. § 125.9(b)(3)(i) Governs a Mentor-Protégé JV’s Procurement Activity Beyond Entry into the Mentor-Protégé Program. GSA correctly interpreted 13 C.F.R | Sh_Synergy,_LLC_2023-04-28.txt |
fea2ec8d-c901-4982-8021-eb3a7d2e119d | . § 125.9(b)(3)(i) as governing a mentor-protégé JV’s procurement activity beyond the formation of the mentor-protégé relationship. Contrary to Plaintiffs’ assertions, the scope of 13 C.F.R. § 125.9 extends beyond a firm’s mere entry into the SBA Mentor-Protégé Program, as the regulation addresses the general “rules governing SBA’s small business mentor-protégé program.” See 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
3301bb4b-4f22-4015-8535-6f72ca6b5891 | .9 (titled “What are the rules governing SBA’s small business mentor-protégé program?”). Indeed, Section 125.9 provides guidance regarding which firms may serve as mentors and protégés under the program. See §§ 125.9(b)–(c). It also details the written mentor-protégé agreement that parties must execute to 24 enter the program. See § 125.9(e). Additionally, Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
c870f65b-dac4-4d94-b4a2-69c10520f5c8 | .9(a) addresses the overall goals for the Mentor-Protégé Program; Section 125.9(d) outlines the benefits of participating in such a program; Section 125.9(g) establishes an annual evaluation scheme to assess the success of a mentor-protégé relationship; and Section 125.9(h) provides rules governing the termination of a mentor-protégé relationship | Sh_Synergy,_LLC_2023-04-28.txt |
ab2c22a4-71ef-4c49-be83-1c561e0b4444 | . Thus, it is incorrect to suggest, as Plaintiffs do here, that Section 125.9 in its entirety just “addresses how a mentor and a protégé can be approved for [the Mentor- Protégé Program].” Oral Arg. Tr. at 6:16–17. Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
34b21f1b-5123-44dc-972f-98b4587d10ff | .9 provides the general framework for how mentor-protégé relationships shall be conducted at every phase of the relationship’s life cycle, including during its procurement activities. Likewise, the plain reading of Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
06c50313-d714-4f8f-a2ce-16b952f63aca | .9(b)(3)(i) prohibits the precise conduct Plaintiffs urge this Court to allow: the regulation prevents mentor-protégé JVs comprised of the same mentor, but different protégés, from submitting competing proposals on a procurement. See 13 C.F.R. § 125.9(b)(3)(i) | Sh_Synergy,_LLC_2023-04-28.txt |
ae782b55-65a5-448a-99df-82dd312c49bb | . Nothing in the regulation’s language obviously suggests its prohibitive scope applies only upon the formation of a mentor-protégé relationship. In positing such an interpretation, Plaintiffs reference 13 C.F.R. § 125.9(b)(3), which provides guidelines for the formation of certain mentor-protégé relationships (i.e., those relationships formed between a mentor and its second and/or third protégé) | Sh_Synergy,_LLC_2023-04-28.txt |
d09c113e-4d16-442e-b147-c6caf408c25c | . See SHS MJAR at 19–20; VCH MJAR at 19–20; 13 C.F.R. § 125.9(b)(3). However, the plain language of Section 125.9(b)(3) likewise underscores the prohibition on competition between mentor-protégé JVs that share the same mentor. See 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
93dcb8f2-f7d6-49e5-b0b9-2063951166af | .9(b)(3) (“In order for SBA to agree to allow a mentor to have more than one protégé at a time, the mentor and proposed additional protégé must demonstrate that the added mentor- protégé relationship will not adversely affect the development of either protégé firm (e.g., the second firm may not be a competitor of the first firm).”) (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
3219ffac-8be8-4417-877f-3c2d60c699c6 | . Plaintiffs acknowledge, 25 as they must, that Section 125.9(b)(3) requires “mentors and additional protégés [to] make a commitment to SBA prior to entering the SBA Mentor-Protégé Program [that] (1) the additional protégé will not have an adverse impact on existing protégés and (2) the new protégé relationship will not compete for the same work | Sh_Synergy,_LLC_2023-04-28.txt |
87f50d5e-e53a-42c0-98ec-09386ef1892c | .” SHS MJAR at 19 (emphasis in original); VCH MJAR at 19 (same). Yet, such a commitment rings hollow if, as Plaintiffs suggest, the restriction in Section 125.9(b)(3)(i) applies only upon entry into the SBA Mentor-Protégé Program and does not apply during a mentor-protégé JV’s participation in a procurement | Sh_Synergy,_LLC_2023-04-28.txt |
f59d0c5a-d380-4a14-bf02-9630079d32bc | . There is no support for the interpretation Plaintiffs suggest; the regulation applies throughout the life of the mentor- protégé JV’s participation in the Program. Even further, adopting Plaintiffs’ interpretations of Sections 125.9(b)(3) and 125.9(b)(3)(i) would render Section 125.9(b)(3)(i) superfluous. By its plain language, Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
39767233-cccb-4ed3-af32-9e916c140bbe | .9(b)(3) already forbids a mentor from forming a second or third mentor-protégé relationship if the additional protégés are “competitor[s] of the first [protégé] firm.” 13 C.F.R. § 125.9(b)(3). Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
4763ac0d-6fd1-4c25-a4da-b130fdc3488f | .9(b)(3)(i), in turn, emphasizes the forward-looking consequences that accompany the commitment not to compete that all mentors make upon forming second and third mentor-protégé relationships: mentor-protégé JVs with the same mentor cannot submit competing offers on future procurements. See 13 C.F.R. § 125.9(b)(3)(i). Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
ec53edb7-8c6f-4bc6-8bc8-691a72ceb283 | .9(b)(3)(i) must govern activity beyond the formation of mentor-protégé relationships for it to perform any work within the larger regulatory scheme of 13 C.F.R. § 125.9. This is the only interpretation that gives meaning to both Sections 125.9(b)(3) and 125 | Sh_Synergy,_LLC_2023-04-28.txt |
a70b504d-939b-4cfd-bae9-64fec43eae85 | .9(b)(3)(i), and “it is a ‘cardinal principle of statutory construction that courts must give effect, if possible, to every clause and word of a statute [or regulation].’” Shea v. United States, 976 F.3d 1292, 1300 (Fed. Cir. 2020) (quoting Williams v. Taylor, 529 U.S. 362, 364 (2000)); see Kungys v. United States, 485 U.S | Sh_Synergy,_LLC_2023-04-28.txt |
8ab98f19-64b3-4343-acf6-df29c06aad09 | . 759, 778 (1988) (plurality opinion) 26 (acknowledging the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant”); Sierra Club v. EPA, 536 F.3d 673, 680 (D.C. Cir. 2008) (“It is [a court's] duty to give effect, if possible, to every clause and word of a statute. . . . The same is true for regulations | Sh_Synergy,_LLC_2023-04-28.txt |
e8d75d2c-5d92-4107-8de0-776e7d021b96 | .”) (alteration in original) (quotations and citations omitted). Thus, this Court agrees with Defendant in concluding Section 125.9(b)(3)(i) operates to prohibit mentor-protégé JVs with the same mentor from submitting competing offers on future procurements, including the Polaris Solicitations. SBA commentary in the Federal Register Notice of Final Rulemaking for Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
4a0cfbdd-523f-4e99-8fe4-a61fe98927b6 | .9 further demonstrates the strength of GSA’s interpretation of 13 C.F.R. § 125.9(b)(3)(i). See Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments, 85 Fed. Reg. 66,146, 66,168 (Oct. 16, 2020). Contrary to Plaintiffs’ insinuations, the SBA made clear that its intent in including the relevant language in Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
69158b0f-70f5-45c6-8909-778805b5de76 | .9(b)(3)(i) was to “clarif[y] that a mentor that has more than one protégé cannot submit competing offers in response to a solicitation for a specific procurement through separate joint ventures with different protégés.” Id. The SBA underscored this purpose by highlighting that in acquiring a second protégé, the mentor “has already assured SBA that the two protégés would not be competitors | Sh_Synergy,_LLC_2023-04-28.txt |
b3298b3d-f9fb-4768-a8b7-bec11ad16c80 | . If the two mentor-protégé relationships were approved in the same [North American Industry Classification System] code, then the mentor must have already made a commitment that the two firms would not compete against each other.” Id. (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
8a6b869a-f4b3-4005-9ca6-f3265bb2fdd8 | . The Supreme Court has acknowledged that regulatory interpretations issued by an agency through the Federal Register carry enough agency authority to merit deference by a reviewing court. See Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019) (acknowledging precedent deferring to interpretations published in the Federal Register by the promulgating agency). Thus, even if the language in Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
c5b39a38-ef8e-4b76-b880-6eb2c5f49117 | .9(b)(3)(i) somehow qualified as 27 ambiguous such that deference to the SBA’s interpretation were required, SBA’s comments in the Federal Register support Defendant’s interpretation of Section 125.9(b)(3)(i). B. The Polaris Solicitations Require the Submission of “Competing Offers” at the IDIQ Level, Making 13 C.F.R. § 125.9(b)(3)(i) Applicable to this Procurement | Sh_Synergy,_LLC_2023-04-28.txt |
4ea77aac-5699-4ce0-acda-160f1c92c529 | . Plaintiffs’ suggestion that the Polaris Solicitations do not require the submission of “competing offers” at the IDIQ level is unavailing. Such a suggestion conflicts with the plain language and meaning of “competing offers” as used in 13 C.F.R. § 125.9(b)(3)(i). See Mass. Mut. Life Ins. Co., 782 F | Sh_Synergy,_LLC_2023-04-28.txt |
70d75adc-0e80-4af2-b224-11aa465d7f7b | .3d at 1365 (acknowledging a court must “first consider the plain language [of the regulation] and consider the terms in accordance with their common meaning”) (alteration in original) (internal quotations omitted). Because SBA regulations do not define “competing offers,” this Court turns to dictionary definitions to discern the term’s plain meaning. See id. at 1367 (quoting Am. Express Co. v | Sh_Synergy,_LLC_2023-04-28.txt |
67a57b01-7e26-4e12-948f-69f839046f80 | . United States, 262 F.3d 1376, 1381 n.5 (2001)) (“It is appropriate to consult dictionaries to discern the ordinary meaning of a term not explicitly defined by statute or regulation.”). “Compete” is defined as “to strive consciously or unconsciously for an objective (as position, profit, or a prize); [or to] be in a state of rivalry.” Compete, Merriam- Webster’s Collegiate Dictionary (11th ed | Sh_Synergy,_LLC_2023-04-28.txt |
6d87ba4b-c659-4932-90f9-bbca452b5446 | . 2003); see Competing, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/competing (last visited Mar. 7, 2023) (defining “competing” as being “in a state of rivalry or competition (as for position, profit, or a prize)”) | Sh_Synergy,_LLC_2023-04-28.txt |
e65b6921-8dc0-4c6a-b600-7c32e977df54 | . “Rivalry” is defined as “the act of rivaling; [or] the state of being a rival,” and a “rival” is “one of two or more striving to reach or obtain something that only one can possess.” Rivalry, Merriam- Webster’s Collegiate Dictionary (11th ed. 2003); Rival, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) | Sh_Synergy,_LLC_2023-04-28.txt |
ecc44301-8be7-4e62-938f-da4d301a98ab | . Finally, “competition,” defined generally as “the act or process of competing,” also describes “the effort of two or more parties acting independently to secure the business of a 28 third party by offering the most favorable terms.” Competition, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) | Sh_Synergy,_LLC_2023-04-28.txt |
12a2eea3-ef7d-4951-ae53-a42afe16ce13 | . Based on these terms’ common meanings, the procurement structure employed under the Polaris Solicitations clearly involves the submission of “competing offers” as conceived under 13 C.F.R. § 125.9(b)(3)(i).15 Under the Polaris Solicitations, each offeror is independently vying to secure one of a limited number of positions within the Solicitation’s pool of eligible IT service providers | Sh_Synergy,_LLC_2023-04-28.txt |
3a62b18a-cec0-4903-bf79-aa2addd928d2 | . AR at 1112–14, 2152–54, 2643–45. An offeror secures such a position by preparing a proposal that presents “the most favorable terms,” relative to other offerors’ submissions, by maximizing points earned for Relevant Experience; Past Performance; Systems, Certifications, and Clearances; and Risk Assessment. See Competition, Merriam-Webster’s Collegiate Dictionary (11th ed | Sh_Synergy,_LLC_2023-04-28.txt |
66feea5e-f54b-4ebd-8949-516fae5ee176 | . 2003); AR at 1114–18, 2154–58, 2645–49. By capping the number of firms allowed within each Solicitation pool, GSA has ensured that certain offerors will be excluded 15 Plaintiffs argue the term “competing offers” is subject to multiple interpretations due to statements made by the SBA in the Federal Register Final Rule Notice for 13 C.F.R. § 125.9. See SHS MJAR at 21; VCH MJAR at 21; Oral Arg | Sh_Synergy,_LLC_2023-04-28.txt |
68f51cfd-9935-4889-b004-1e840806a880 | . Tr. at 20:5–23:6; 85 Fed. Reg. at 66168. The SBA made the referenced statement to address a specific hypothetical posed during the Notice & Comment period for Section 125.9. 85 Fed. Reg. 66168. The hypothetical involved a single solicitation for an IDIQ contract that encompassed separate pools for small business, WOSB, and SDVOSB offerors. Id | Sh_Synergy,_LLC_2023-04-28.txt |
7a77ba8f-dae1-42f0-a6b7-990a2f803532 | . The commenter queried whether two mentor-protégé JVs with the same mentor could bid on the single solicitation but compete for different pools under the solicitation. Id | Sh_Synergy,_LLC_2023-04-28.txt |
f19f3c70-29d0-4e3d-8a9d-035b645fb3f6 | . In addressing the hypothetical, the SBA noted the “same mentor could submit an offer as a joint venture with one protégé for one pool and another offer as a joint venture with a second protégé for a different pool on the same solicitation because they would not be deemed competitors with respect to that procurement.” Id | Sh_Synergy,_LLC_2023-04-28.txt |
71b9e79e-7ebc-424b-b7df-bd21f7d4523d | . Thus, proposals submitted on different pools are not competing offers, even if submitted under a single solicitation. However, the natural corollary to this notion is that proposals submitted for the same pool likely would be considered competing offers. The outcome, according to the SBA, depended on an “interpretation of what ‘competing offers’ means” as used in 13 C.F.R. § 125.9(b)(3)(i). Id | Sh_Synergy,_LLC_2023-04-28.txt |
67ad2204-2f6c-40ab-8b9f-e10263bafbd7 | . Far from suggesting unfettered interpretations exist for what may constitute a “competing offer,” SBA’s commentary suggests “competing offers” do exist under the Polaris Solicitations at the IDIQ level, where two mentor- protégé JVs would be forced to compete for positions within the same pool. 29 entirely from receiving IDIQ contract awards.16 AR at 1113–14, 2153–54, 2644–45 | Sh_Synergy,_LLC_2023-04-28.txt |
e6e8cac9-ebf1-4650-8201-db64f2360f3f | . In other words, the Solicitations force GSA to choose winners and losers.17 Yet, Plaintiffs suggest that the self-scoring structure of the Polaris Solicitations eliminates the competitive nature of the procurement. See, e.g | Sh_Synergy,_LLC_2023-04-28.txt |
c610b216-f9f2-4855-a5a9-907c8b5e2d42 | ., SHS MJAR at 21–22 (“[T]o the extent ‘competing offers’ even exist[], [it] is with each bidder itself, and its own business judgment in forming a team and what score it thinks is enough to merit an award.”) (emphasis in original); VCH MJAR at 21–22 (same); Oral Ar. Tr. at 10:5–7 (“[C]ompetition involves . . | Sh_Synergy,_LLC_2023-04-28.txt |
f5819c5b-4511-45d1-a5b3-1179b1e1a1e7 | . some sort of tradeoff between offerors, some sort of evaluation of how offerors are against one another, and that’s not the case here. The case here is how each offeror stacks up on its own.”). This is incorrect. Plaintiffs’ assertion ignores the evaluation process outlined within the Solicitations | Sh_Synergy,_LLC_2023-04-28.txt |
7487ac04-dc47-473f-b6b8-d6c74f3248b2 | . In compliance with each Polaris Solicitation, GSA will evaluate, verify, and rank the proposals 16 Plaintiffs’ counsel ultimately agreed with this understanding of the Solicitations’ structure during Oral Argument. See Oral Arg. Tr | Sh_Synergy,_LLC_2023-04-28.txt |
1e21d56e-6e67-48e2-92c7-94876998c37d | . at 9:14–19 (“[I]f an offeror does not have the same number of points, if it’s the 130th offeror and it doesn’t have the same number of points as the 90th offeror, then the solicitation says the 90th offeror gets in and the 130th doesn’t.”) | Sh_Synergy,_LLC_2023-04-28.txt |
d06dce29-67de-4cd7-868b-71c907c9cec9 | . 17 Plaintiffs suggest that the Solicitation provision permitting ties in the final position in each pool eliminates competition from the procurement because it purportedly renders the size of each pool limitless. SHS MJAR at 21–22; VCH MJAR at 21–22; see Pl. Reply at 8. This argument is a red herring | Sh_Synergy,_LLC_2023-04-28.txt |
31f2f60a-b7ef-40c2-96f2-fd170febca0a | . Under the Solicitations’ scoring scheme, an offeror’s proposal can earn a maximum of 95,000 points. AR at 1118, 2158, 2649. Those points are allocated between the four primary evaluation factors: (1) Relevant Experience; (2) Past Performance; (3) Systems, Certifications, and Clearances; and (4) Risk Assessment. See AR at 1114–18, 2154–58, 2645–49 | Sh_Synergy,_LLC_2023-04-28.txt |
6a22d989-8ef4-4b19-b35b-8ea8df0c63f0 | . These four primary factors, in turn, are further segregated into several layers of sub-criteria, each with independently assigned points totals. See AR at 1114–18, 2154–58, 2645–49 | Sh_Synergy,_LLC_2023-04-28.txt |
8790f135-36be-42bc-b8cc-620967f71745 | . For example, offerors can earn varying amounts of points for Relevant Experience based on the contract value of the projects submitted, the degree of demonstrated experience with multiple federal government customers, and the breadth of relevant experience demonstrated, among other sub-criteria. See AR at 1114– 18, 2154–58, 2645–49 | Sh_Synergy,_LLC_2023-04-28.txt |
1fd596b6-b1c8-4808-80c3-1fb6f3a72310 | . Given the wide variety of points-generating criteria, it defies reason to suggest that a problematic number of offerors will prepare proposals with identical scores in the pool’s final position. Furthermore, Plaintiffs failed to offer convincing evidence to demonstrate that there is a high likelihood ties will occur at any position, let alone at precisely the final position in a pool. See, e.g | Sh_Synergy,_LLC_2023-04-28.txt |
b7bab345-dd5b-4ff8-95d0-845a8ee7059b | ., SHS MJAR at 22 (citing, without further elaboration, “common industry knowledge” to assert that successful offerors will prepare proposals with “a perfect or near-perfect score”); VCH MJAR at 22 (same). 30 against one another to ensure only the highest-rated, technically qualified offerors receive an award | Sh_Synergy,_LLC_2023-04-28.txt |
cf8c158c-dc05-4f89-bd63-769266e26b71 | . AR at 2856 (“For Polaris, the best value basis for awards will be determined by the Highest Technically Rated Qualifying Offerors.”); AR at 1113–14, 2153–54, 2644–45 (acknowledging the agency will “rank[] the proposals in order from highest total claimed score to lowest total claimed score”) | Sh_Synergy,_LLC_2023-04-28.txt |
58aafb55-f353-4820-a0d0-8241e7b907a5 | . The Solicitations’ self-scoring points system merely offers a numerical method to evaluate an offeror’s ability to meet the agency’s needs, as expressed through the Solicitations’ stated evaluation criteria | Sh_Synergy,_LLC_2023-04-28.txt |
c66ed84b-263c-4f6f-a756-f80ef3b6af21 | . Correspondingly, the ranking and verification process inherently compares the relative strength of each proposal against proposals submitted by competing offerors, thereby eliminating from consideration those offerors that fail to prepare the highest-scoring proposals. Contractors in every government procurement must make strategic decisions about how to best design a proposal to achieve award | Sh_Synergy,_LLC_2023-04-28.txt |
851733d0-278c-413d-8a9c-36d70a591a34 | . See Defendant’s Reply in Support of its Cross- MJAR (Def. Reply) at 8 (“Competition in a business context always involves choices and decisions by contractors about how to structure a proposal in order to try to receive an award.”). Such an exercise is a hallmark of competition rather than evidence that competition is lacking | Sh_Synergy,_LLC_2023-04-28.txt |
973cdea0-a13d-4145-8ccd-ad65a19f4bf2 | . Thus, this Court must conclude the offers submitted on the Polaris Solicitations are indeed “competing offers” under Section 125.9(b)(3)(i).18 C. Plaintiffs’ Arguments Alleging Harms to Protégés Merely Reflect Plaintiffs’ Disagreement with SBA’s Regulations. Plaintiffs argue GSA’s decision to apply 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
8252b2de-50fe-4561-b867-1ba4e9e370ee | .9(b)(3)(i) to the Polaris Solicitations lacks a rational basis because it conflicts with SBA regulations defining the structure 18 At Oral Argument, Defendant’s counsel suggested that under the Solicitations’ terms, a mentor- protégé JV could act as a subcontractor on a proposal for a position in a pool in which another mentor-protégé joint venture with the same mentor is already competing | Sh_Synergy,_LLC_2023-04-28.txt |
aee41bd1-af56-4ba0-9c81-f1c650ef585b | . See Oral Arg. Tr. at 53:1–57:17. This Court disagrees with such an interpretation of the Solicitations and would consider this circumstance as constituting “competing offers” under 13 C.F.R. § 125.9(b)(3)(i). 31 of mentor-protégé relationships and ultimately harms protégés. See SHS MJAR at 21–23; VCH MJAR at 21–23. These arguments, however, are unpersuasive | Sh_Synergy,_LLC_2023-04-28.txt |
8278f220-8136-43f9-a7f0-bd593c73ab5c | . Certain SBA regulations require that the protégé member of the JV control the JV’s operations. See SHS MJAR at 22; VCH MJAR at 22; see, e.g., 13 C.F.R. § 125.8(b)(2)(ii) (making the protégé member the JV’s managing venturer charged with making day-to-day decisions for the JV); 13 C.F.R. § 125.8(b)(2)(iii) (requiring the protégé member to own at least 51% of the joint venture) | Sh_Synergy,_LLC_2023-04-28.txt |
71115c0a-469e-4dad-a184-041f8e4605b3 | . According to Plaintiffs, these regulations indicate that mentors could never submit competing offers through two mentor-protégé JVs because the authority to make decisions for the JV rests squarely with the protégé. SHS MJAR at 22; VCH MJAR at 22 | Sh_Synergy,_LLC_2023-04-28.txt |
f59f859d-b09b-4f59-825b-796ed12c93fa | . It is the protégé who decides whether to submit proposals on future procurements, and excluding mentor-protégé JVs from proposing on a solicitation due to Section 125.9(b)(3)(i) unnecessarily prevents protégés from accessing opportunities to grow as a business. SHS MJAR at 22–23; VCH MJAR at 22–23 | Sh_Synergy,_LLC_2023-04-28.txt |
57bb5587-03d2-45c3-b918-190040e0ce4e | . Such a critique, however, merely highlights Plaintiffs’ disagreement with the SBA’s regulations and does not suggest arbitrary and capricious conduct by GSA. Section 125.9(b)(3)(i) states that a “mentor . . . cannot submit competing offers in response to a solicitation for a specific procurement through separate joint ventures with different protégés.” 13 C.F.R. § 125.9(b)(3)(i) | Sh_Synergy,_LLC_2023-04-28.txt |
06662717-a6b5-4f82-9fbd-b52b8db3ce0f | . Adopting an interpretation that mentors can never actually submit competing offers under the SBA’s regulations would presume the SBA passed a regulation (Section 125.9(b)(3)(i)) that has no practical application or purpose. This Court will not fault GSA for interpreting Section 125 | Sh_Synergy,_LLC_2023-04-28.txt |
323fe561-8d02-4f89-9f2b-fd057aa5e91b | .9(b)(3)(i) in a manner that gives the provision meaning, despite any apparent incongruities which exist across the various SBA regulations. Sullivan v. McDonald, 815 F.3d 786, 790 (Fed. Cir. 2016) (“[W]e attempt to give full effect to all words contained within that statute or regulation, thereby rendering superfluous as little of the statutory or regulatory language as possible | Sh_Synergy,_LLC_2023-04-28.txt |
3cda0d6e-1985-4d0b-aaa9-d6ec231a9654 | .”) 32 (quoting Glover v. West, 185 F.3d 1328, 1332 (Fed. Cir. 1999)). Further, Plaintiffs’ argument that GSA’s interpretation of 13 C.F.R. § 125.9(b)(3)(i) harms protégés has broad implications | Sh_Synergy,_LLC_2023-04-28.txt |
72a1dd97-7412-4de9-8c43-070086f2a074 | . If exclusion from bidding on the SB Solicitation indeed harms either protégé member of SHS or VCH, perhaps this suggests the mentor-protégé relationships should not have been approved in the first instance. See 13 C.F.R. § 125 | Sh_Synergy,_LLC_2023-04-28.txt |
eb7f1730-52ee-41a6-95f9-61807e07481e | .9(b)(3) (“In order for SBA to agree to allow a mentor to have more than one protégé at [a] time, the mentor and proposed additional protégé must demonstrate that the added mentor-protégé relationship will not adversely affect the development of either protégé firm (e.g., the second firm may not be a competitor of the first firm).”) (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
d1d167a3-fa78-4a7c-afd2-8355430c57e8 | . It does not suggest, however, that GSA should simply ignore 13 C.F.R. § 125.9(b)(3)(i). For the foregoing reasons, this Court holds GSA correctly excluded Plaintiffs from submitting proposals on the SB Pool Solicitation pursuant to 13 C.F.R. § 125.9(b)(3)(i). II | Sh_Synergy,_LLC_2023-04-28.txt |
08ad44d3-f332-4220-aa66-884a19b95328 | . The Polaris Solicitations Violate SBA Regulations Governing How an Agency May Evaluate Mentor-Protégé, WOSB, and SDVOSB JV Offerors During a Procurement. In their second claim, Plaintiffs argue that the Polaris Solicitations violate SBA regulation 13 C.F.R. § 125.8(e),19 which governs joint venture offerors on government procurements and 19 Plaintiffs allege that in addition to violating 13 C.F | Sh_Synergy,_LLC_2023-04-28.txt |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.