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797501c1-52a5-4d35-b68e-c72f3eacb6eb | .3d at 1349 (acknowledging “the fundamental decision in this fixed-price contract that the contractor, not the government, would bear the risk of any inaccuracy in the pre-contract prices used for bidding . . . and of post-contract changes in market prices for the contractor's inputs”); Cleveland Telecoms., 39 Fed. Cl | Sh_Synergy,_LLC_2023-04-28.txt |
0178b023-37b8-4acb-af5c-ccd4699f510c | . at 653 (“[T]he contractor in a firm fixed-price contract assumes the risk of other unexpected costs . . . .”). This notion, however, does not mean that hourly rates are a “fundamental part” of, or “of central importance” to, fixed-price contracts. Base (n), Merriam-Webster’s Collegiate Dictionary (11th ed. 2003); Fundamental, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) | Sh_Synergy,_LLC_2023-04-28.txt |
06fe9045-ffd5-467a-b089-632b32cbed7f | . While Defendant correctly identifies that labor costs are often contemplated in pricing firm fixed-price contracts, the same is true for a wide variety of other costs. See, e.g., Lakeshore Eng’g Servs., 748 F.3d at 1343 (“[T]he mechanism of pricing such jobs involves identification of costs for those jobs, including labor, equipment, and materials . . . .”) | Sh_Synergy,_LLC_2023-04-28.txt |
33dfe4bb-bccd-4d8c-983e-cc18a47abd43 | . 60 If this were the case, Congress need not have included the modifier “based on hourly rates” in the first instance: the phrase would offer no limiting or clarifying principle to the meaning of the noun it modifies, “task or delivery orders | Sh_Synergy,_LLC_2023-04-28.txt |
c957375c-e0d5-4d22-83d7-95c4529ba5dd | .” In other words, under Defendant’s interpretation, the phrase “based on hourly rates” would no longer perform any function within the statute and would become redundant. This Court declines to adopt an interpretation of Section 3306(c)(3) that would render portions of the statutory text redundant or superfluous. Kungys, 485 U.S | Sh_Synergy,_LLC_2023-04-28.txt |
25443e5c-bd5e-4050-bccc-acfb3fd3dabc | . at 778 (acknowledging the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant”); Shea, 976 F.3d at 1300. Rendering the phrase “based on hourly rates” meaningless, as Defendant’s interpretation seeks to do, would broaden the scope of the exception in Section 3306(c)(3) beyond what Congress had intended | Sh_Synergy,_LLC_2023-04-28.txt |
f9b00d8c-9998-45da-b83b-3e519aef046c | . The statute’s plain language unambiguously demonstrates Congress’s intent to create a narrow exception to the general rule requiring agencies to evaluate price for competitive procurements. Section 3306(c) opens by describing, “[i]n general,” the evaluation factors “to be included in each solicitation for competitive proposals.” 41 U.S.C. § 3306(c)(1) | Sh_Synergy,_LLC_2023-04-28.txt |
1209e062-ba1a-43ce-82c7-f8d050076cdd | . Section 3306(c)(1)(B) establishes that, “except as provided in paragraph (3),” agencies must include cost or price to the government as an evaluation factor in all procurements. 41 U.S.C. § 3306(c)(1)(B) (emphasis added); see 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
3c9aec64-da02-4513-a199-a0173338a123 | . § 3306(c)(1)(C) (noting that “except as provided in paragraph (3),” agencies must disclose the relative importance of all evaluation factors as compared to cost or price to the government) (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
9febe8d0-5cb4-4b57-8393-6a490b0b5b53 | . Section 3306(c)(3)’s plain language clearly demonstrates that the provision provides an “exception[] for certain indefinite delivery, indefinite quantity multiple-award contracts:” those for “services to be acquired on an hourly rate basis.” 41 U.S.C. § 3306(c)(3) (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
874da4e7-d3b3-49cf-8654-a206252fa992 | . By correspondingly requiring task orders featured under 61 the IDIQ to be “based on hourly rates,” Congress underscored the limited subset of IDIQ contracts that would qualify for special treatment under Section 3306(c)(3). Id | Sh_Synergy,_LLC_2023-04-28.txt |
dadfcd56-1736-4a99-8d43-8e689564f5b3 | . Yet, as Plaintiffs emphasize, Defendant’s interpretation ignores these textual cues that signal the narrow scope of Section 3306(c)(3), permitting the exception to swallow the rule. See Oral Arg. Tr. at 40:9–12 (“[T]he actual rule that contains an exception would not have any purpose at that point. So the exception swallows the rule.”). This Court agrees | Sh_Synergy,_LLC_2023-04-28.txt |
6da40d03-52ad-4bbd-aa8e-8ba0fca459bd | . Taking Defendant’s proposed interpretation to its logical conclusion would allow agencies to avoid evaluating price for any IDIQ contract for services, regardless of the manner in which the services are acquired. See Oral Arg. Tr. at 89:17–23 (Plaintiffs’ Counsel: “[I]f we were to accept the Government’s position on the statute, . . | Sh_Synergy,_LLC_2023-04-28.txt |
52289097-dc4f-4a1d-a4f3-934cbf008fb4 | . what the statute would say is there’s a special rule for IDIQ contracts, and it differs from the primary rule that you have to consider price. . . . And that’s not how the statute reads.”). This interpretation and result are untenable | Sh_Synergy,_LLC_2023-04-28.txt |
10d040e8-a58f-400c-a0ae-a30a625e1eda | . Further, a study of FAR provisions cited in the Solicitations reveals Defendant’s assertion that “the term ‘hourly rate’ does not directly correlate with any specific contract type in the FAR” is simply incorrect. Cross-MJAR at 55; see Oral Arg. Tr. at 81:1–3 (calling “hourly rates” a “general term”) | Sh_Synergy,_LLC_2023-04-28.txt |
e53c55af-ba87-40ce-95eb-b19df50cc764 | . The Solicitations list five allowable contract types for task orders and state the FAR provisions associated with each contract type: fixed-price contracts (FAR Subpart 16.2); cost- reimbursement contracts (FAR Subpart 16.3); incentive contracts (FAR Subpart 16.4); time-and- materials contracts (FAR 16.601); and labor-hour contracts (FAR 16.602). AR at 1025, 2064, 2554 | Sh_Synergy,_LLC_2023-04-28.txt |
827a68e7-88d9-4bdc-a6aa-12d1964f796d | . Of the task order contract types listed in the Solicitations, only the FAR provisions for time- and-materials and labor-hour contracts, housed in FAR Subpart 16.6, reference the term “hourly rate.” See FAR 16 | Sh_Synergy,_LLC_2023-04-28.txt |
606807b0-db74-4b0a-b2d9-33750c30c480 | .601(a) (defining “hourly rate” to mean “the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in 62 the contract”). FAR Subparts 16.2, 16.3, and 16.4, which detail the requirements for fixed-price, cost-reimbursement, and incentive contracts, respectively, never once reference “hourly rates.” See FAR Subpart 16 | Sh_Synergy,_LLC_2023-04-28.txt |
16c3f38f-728d-4a84-91d8-62d5834f99a2 | .2; FAR Subpart 16.3; FAR Subpart 16.4. Defendant’s suggestion, therefore, that Plaintiffs have overemphasized the connection between the term “hourly rate” and labor hours misstates the realities apparent in the FAR, which the GSA itself administers | Sh_Synergy,_LLC_2023-04-28.txt |
a6423130-b347-4259-ba89-83b6079f9e1f | .33 Indeed, Defendant’s arguments regarding the inherent differences between “hourly rates” and labor hours are further belied by GSA’s own statements regarding Class Deviation CD-2020- 14. In Class Deviation CD-2020-14, GSA acknowledged the inherent connection between Section 3306(c)(3)’s requirements and time-and-materials and labor-hour contracts by “amending” the language in FAR Part 16 | Sh_Synergy,_LLC_2023-04-28.txt |
0bb29f03-2340-4cc3-a534-d8eaa44fbabb | .601(c) (which applies to both time-and-materials and labor-hour contracts) to reflect the exception in Section 3306(c)(3). See Class Deviation CD-2020-14 at 8; FAR 16.601(c); FAR 16.602 (confirming FAR 16.601(c) also applies to labor-hour contracts) | Sh_Synergy,_LLC_2023-04-28.txt |
1982355b-afe2-4977-a977-286d88bdecdd | . Yet, the Class Deviation does not incorporate any changes to the FAR provisions for fixed-price, incentive, or cost-reimbursement contracts to accommodate Section 3306(c)(3). See Class Deviation CD-2020-14 at 5–8 | Sh_Synergy,_LLC_2023-04-28.txt |
17a33847-f3cf-492c-ad6e-5520d8e4d057 | . Likewise, in Supplement 2, which approved the application of Class Deviation CD-2020-14 to the Polaris Solicitations, GSA repeatedly referenced a connection between labor hours and the language in Class Deviation CD-2020-14 (which, in turn, addresses the language in Section 3306(c)(3)). Supplement 2, AR at 2904 | Sh_Synergy,_LLC_2023-04-28.txt |
3fc8ea5b-dfe1-4bbb-8126-6f13f005c586 | . GSA stated it was approving the “use of Class Deviation 2020-14 authority for awarding labor rates with no stated price on the line item or sub-line item at the contract level for [the] ‘Polaris Program’ of [IDIQ] multiple-award 33 See supra Background Section I; Federal Acquisition Regulation (FAR), U.S. General Services Administration, https://www.gsa | Sh_Synergy,_LLC_2023-04-28.txt |
db4a6d46-a109-4c65-b7ee-de388b14f4bc | .gov/policy-regulations/regulations/federal-acquisitionregulation -far (last visited Feb. 7, 2023) (“The Department of Defense (DoD), GSA, and the National Aeronautics and Space Administration (NASA) jointly issue the FAR.”). 63 contracts.” Id. (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
645a9397-24f0-437f-8472-6af795942d05 | . Additionally, GSA noted that Class Deviation CD-2020-14 “allowed for the use of ‘unpriced labor’ categories at the contract level for certain IDIQ multiple- award contracts.” Id. (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
fff94e45-b663-4f4d-810b-323abf72c40c | . Thus, the Government’s insinuations that Plaintiffs pulled the connection between “hourly rates” and labor hours out of thin air is incorrect and conflicts with GSA’s own statements regarding Section 3306(c)(3). After considering the entire text and structure of 41 U.S.C. § 3306(c), relevant provisions from the FAR, and GSA’s own prior interpretations of 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
67b129a7-84d8-4e01-b360-40cf3eb63a21 | . § 3306(c)(3), this Court rejects Defendant’s broad reading of 41 U.S.C. § 3306(c)(3) as unreasonable and contrary to law. Instead, this Court holds that “task or delivery orders based on hourly rates” references the time-and- materials and labor-hour contract types. B. The Polaris Solicitations Violate 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
81ea4e5e-e6f9-4526-bdc0-ebac99f3a9b6 | . § 3306(c)(3) Because They Do Not Adequately “Feature” Time-and-Materials and Labor-Hour Task Orders. Having confirmed the proper meaning of the term “based on hourly rates,” this Court must now address whether the Polaris Solicitations conform to the requirement that procurements using the exception available under 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
8ad531ab-a179-45f8-853f-ca577131d61c | . § 3306(c)(3) must “feature individually competed task or delivery orders based on hourly rates.” 41 U.S.C. § 3306(c)(3) (emphasis added). Section 3306(c)(3) permits procuring agencies to avoid evaluating price at the IDIQ level only if the IDIQ contracts issued under the procurement “feature” task orders “based on hourly rates,” meaning time-and-materials and labor-hour task orders. See 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
a86893d5-da24-4807-acd7-6569f980b10c | . § 3306(c)(3); see also supra Discussion Section III.A. The parties ultimately disagree on the degree to which procuring agencies must rely on time-and-materials and labor-hour task orders to take advantage of Section 3306(c)(3)’s exception | Sh_Synergy,_LLC_2023-04-28.txt |
464c343f-43af-4267-8f06-bc7dcdfde967 | . Defendant argues that even under Section 3306(c)(3), GSA has unfettered discretion to issue task orders using any of the contract types listed in the Polaris Solicitations. Cross-MJAR at 52–53, 58. Plaintiffs, however, assert that if GSA wants to apply Section 64 3306(c)(3) to the Polaris Solicitations, it may only issue time-and-materials and labor-hour task orders | Sh_Synergy,_LLC_2023-04-28.txt |
6e4ca3e5-981d-40bb-aa83-de45bc9760fc | . See SHS MJAR at 36–37; VCH MJAR at 36–37 (same). For the reasons discussed below, this Court concludes that the correct interpretation of “feature” as used in Section 3306(c)(3) lies between Plaintiffs’ and Defendant’s positions | Sh_Synergy,_LLC_2023-04-28.txt |
79074dca-3fd2-4a52-9309-114f84990e41 | . As Defendant argues all task orders contemplated under the Polaris Solicitations qualify as “task or delivery orders based on hourly rates,” Defendant suggests it can exercise unfettered choice in selecting from among the Solicitations’ stated contract types without running afoul of Section 3306(c). See AR at 2907 (emphasis added) | Sh_Synergy,_LLC_2023-04-28.txt |
d6093c75-00f7-491f-a808-5db36df48bac | . Defendant contends that adopting such flexibility in crafting task orders is in the best interest of GSA “given the scope of IT-related services meant to fall under the $60 billion to $100 billion Polaris GWAC | Sh_Synergy,_LLC_2023-04-28.txt |
aa31983f-347f-4f1b-8ce4-6a668bdcf8f0 | .” Cross-MJAR at 52– 53 (“GSA reasonably determined that the IT work falling under the Polaris GWAC should not be limited to contracts whose only payment structure is based upon an hourly-rate assessment of service . . | Sh_Synergy,_LLC_2023-04-28.txt |
045ac042-5a61-4091-a5f6-40ae7da4c657 | . but should instead include the possibility for multiple types of task orders, each of which would have a component in the payment structure that includes, predominantly, the payment of hourly-rate costs.”) (emphasis in original); Oral Arg. Tr. at 79:19–21 (“[F]lexibility to be able to have costs considered at the task order level, I mean, it’s critical for the Government . . . .”) | Sh_Synergy,_LLC_2023-04-28.txt |
5443e80e-dba3-4bec-9bd4-794be58e7790 | . In so doing, Defendant emphasizes the “broad authority” GSA’s acquisition team has “in structuring a procurement solicitation,” citing FAR 1.102(d) for such authority. Cross-MJAR at 58; see FAR 1.102(d). 65 While this Court agrees that agencies have discretion in structuring procurement solicitations, that discretion is not unfettered | Sh_Synergy,_LLC_2023-04-28.txt |
9ace7688-7a50-4ac8-a74d-c97ff6b8a1bf | . As discussed above, Defendant has adopted an unreasonable interpretation of 41 U.S.C. § 3306(c)(3) that contradicts the statute’s plain and unambiguous language. See supra Discussion Section III.A. While Defendant has offered several arguments for why such a reading of Section 3306(c)(3) serves the interests of the agency, “policy arguments do not trump the plain language of the statute | Sh_Synergy,_LLC_2023-04-28.txt |
8f16c8d3-9a99-443c-80ee-d1436318c8d1 | .” Dominion Res., Inc. v. United States, 641 F.3d 1359, 1363 (Fed. Cir. 2011); see Artuz v. Bennett, 531 U.S. 4, 10 (2000) (“Whatever merits these and other policy arguments may have, it is not the province of this Court to rewrite the statute to accommodate them.”) | Sh_Synergy,_LLC_2023-04-28.txt |
bcbfe16c-5976-47e1-aa9c-184ab8735f87 | . Though it may bring added efficiencies or benefits to the agency to consider price at the task order level, rather than the IDIQ level, Defendant does not have free rein to disregard statutory requirements and limitations | Sh_Synergy,_LLC_2023-04-28.txt |
bb8ae2be-2df5-4c35-af89-3ee0338af7fd | . While the FAR grants agencies broad authority to structure solicitations in the best interest of the agency, the FAR cabins such authority, as it must, within the bounds of the law. See FAR 1 | Sh_Synergy,_LLC_2023-04-28.txt |
6da3e0d7-12fc-41d0-9933-a9c880462ef6 | .102(d) (“In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority | Sh_Synergy,_LLC_2023-04-28.txt |
e3541410-d3a9-49e3-9ca3-cf7cc3c36992 | .”) (emphasis added). Thus, Defendant cannot excuse its unreasonable interpretation of Section 3306(c)(3)’s plain language by relying on policy justifications, no matter how significant the procurement. However, Plaintiffs’ argument that the Solicitations may only contemplate time-and- materials and labor-hour contracts likewise conflicts with the plain language of 41 U.S.C. § 3306(c)(3) | Sh_Synergy,_LLC_2023-04-28.txt |
303ff678-2a03-446e-9033-edd9019240ce | . Section 3306(c)(3) states that to refrain from considering price as an evaluation factor, the IDIQ contract must “feature individually competed task or delivery orders based on 66 hourly rates.” 41 U.S.C. § 3306(c)(3) (emphasis added). “Feature” is defined as “to give special prominence to; to have as a characteristic or feature; to play an important part | Sh_Synergy,_LLC_2023-04-28.txt |
795cefd6-b214-49bc-bc36-a266c6c91b3c | .” Feature, Merriam- Webster’s Collegiate Dictionary (11th ed. 2003). Based on these definitions, and as Plaintiffs’ counsel acknowledged during Oral Argument, the term “feature” does not describe a contract’s sole requirements. See Oral Arg. Tr. at 41:19–21 (responding to the Court’s question on the meaning of “feature,” Plaintiffs’ counsel stated, “I don’t believe it is everything”) | Sh_Synergy,_LLC_2023-04-28.txt |
fc8c91d6-304e-4c14-a9d4-d0fed4310551 | . Though neither party addressed the term “feature” in its briefing, during Oral Argument counsel for both parties interpreted the term “feature” to insinuate a concept of “predominance.” See Oral Arg. Tr. at 41:24–42:1 (Plaintiffs’ Counsel: “I would say that [feature] would just have to be the predominant – the predominant requirement . . . .”); id | Sh_Synergy,_LLC_2023-04-28.txt |
3c32ac54-e9af-4b80-90f1-5d53b52eef9d | . at 78:1–2 (Defendant’s Counsel: “‘[P]redominantly’ would be an example of something featuring something.”). At Oral Argument, Defendant’s counsel further suggested that “predominant” means a majority. Oral Arg. Tr. at 78:16–17 (“I would say predominant means at least the majority.”) | Sh_Synergy,_LLC_2023-04-28.txt |
211c18d2-145c-4860-833f-fa528409f036 | . This Court considers the parties’ interpretations of “feature” to be reasonable, given the plain meanings of both “feature” and “predominant.”34 “Predominant” is defined as “being most frequent or common,” and “predominantly” is defined as “for the most part; mainly.” Predominant, Merriam-Webster’s Collegiate Dictionary (11th ed | Sh_Synergy,_LLC_2023-04-28.txt |
42dc5dd6-d2b8-43e6-b508-a03232bbb897 | . 2003); Predominantly, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). Said another way, something is “featured” if it is given “special prominence” or predominantly included among a group | Sh_Synergy,_LLC_2023-04-28.txt |
e891cef0-02b6-48ff-8dec-fb7567cc2cf4 | . By requiring a contract to “feature” task orders “based on hourly rates,” Congress did not intend that 34 This interpretation is also consistent with the way in which the GSA interpreted Section 3306(c)(3) in Class Deviation CD-2020-14. Class Deviation CD-2020-14 (“To be eligible for consideration [for the application of the 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
c0063eb0-95e4-402a-990b-e1f02a625d63 | . § 3306(c)(3) exception] by the SPE, the predominant amount of the acquisition must be for services that will be acquired on an hourly rate basis.”) (emphasis added). 67 the contract must only rely on task orders “based on hourly rates:” such task orders need only make up a featured, or predominant, portion of the task orders issued under the contract | Sh_Synergy,_LLC_2023-04-28.txt |
24337c89-82db-45b5-8f54-b751d9b6475c | .35 Thus, the statute does not provide agencies unconstrained flexibility to choose among various contract types, as Defendant argues; however, the statute also does not demand complete inflexibility, as Plaintiffs suggest. Going forward, GSA may proceed with its plan to apply 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
8c74617a-4ff7-4278-873d-172d733ef74d | . § 3306(c)(3) to the Polaris Solicitations but must do so in the manner Congress intended: by issuing IDIQ contracts that will feature time-and-materials and labor-hour task orders. Based on what the parties have informed this Court about the goals and requirements of the Polaris Program, it is apparent that the Polaris Solicitations as currently drafted do not comply with Section 3306(c)(3) | Sh_Synergy,_LLC_2023-04-28.txt |
922fd87a-ab5b-47ac-a070-41aa6bb1286f | . In its request to apply Section 3306(c)(3) to the Polaris Solicitations, GSA stated that Supplement 2, AR at 2907–08. Because GSA adopted an overly broad understanding of Section 3306(c)(3)’s scope, GSA stated the Solicitations will include a “full range of order types,” “includ[ing] labor hour, time-and-materials, cost-reimbursement, and fixed-price type task orders.” Id. at 2907 | Sh_Synergy,_LLC_2023-04-28.txt |
a6451ef4-dc59-409a-a8df-5db6b67b805b | . Thus, GSA’s statements provide little clarity on the degree to which the 35 Defendant argues that by including the terms “delivery order” and “cost” in 41 U.S.C. § 3306(c)(3), Congress intended that agencies could use contract types outside of labor-hour and time-and-materials contracts, contrary to Plaintiffs’ position. See Cross-MJAR at 56 | Sh_Synergy,_LLC_2023-04-28.txt |
8bf8fd0c-1460-425c-98c7-2896cf08077f | . The inclusion of these terms in the statute is not inconsistent with Plaintiffs’ interpretation that “based on hourly rates” references time-and-materials and labor-hour contracts. Both “delivery order” and “cost” are used throughout FAR Subpart 16.6 to prescribe the requirements for time-and- materials and labor-hour contracts. See FAR Subpart 16.6 | Sh_Synergy,_LLC_2023-04-28.txt |
c24bae56-3854-4675-a182-63c01dc93935 | . However, to the extent Defendant argues IDIQ contracts under Section 3306(c)(3) need not solely rely on time-and-materials and labor-hour contracts, such an argument is consistent with this Court’s understanding of the statute. See infra Discussion Section III.B | Sh_Synergy,_LLC_2023-04-28.txt |
d2f26dff-0af9-4990-84b4-42694ac38309 | . 68 agency intends to favor time-and-materials or labor-hour task orders over the use of other contract types that are not “based on hourly rates.” Indeed, the limited evidence available to this Court suggests GSA’s intent to do the opposite | Sh_Synergy,_LLC_2023-04-28.txt |
2b7588d6-0a3e-42be-aa65-751bf63b7bc4 | . The terms of the Polaris Solicitations state a preference for “Firm-Fixed Price Performance-Based Task Order[s],” which are not properly conceived as “based on hourly rates.”36 AR at 1025, 2064, 2554 | Sh_Synergy,_LLC_2023-04-28.txt |
a2e4d11b-e515-4c30-9ab3-3bc601537593 | . The Solicitations also allow task orders to combine various contract types into a single order comprising multiple contract line-item numbers (CLINs), but the Solicitations do not state how frequently time-and-materials or labor-hour CLINs will be used, if at all. AR at 1025, 2064, 2554 | Sh_Synergy,_LLC_2023-04-28.txt |
51434ce3-281e-4e84-9166-68837d241743 | . Thus, if GSA wishes to rely on Section 3306(c)(3) to avoid evaluating price at the IDIQ level, GSA must amend the Polaris Solicitations’ terms to clearly feature time-and-materials and labor-hour task orders. Alternatively, if GSA would prefer to maximize its discretion in selecting the type of task or delivery orders issued, GSA may choose to forego application of 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
6bacf581-910b-4067-bcf0-8ddc3be9e3e1 | . § 3306(c)(3) entirely and evaluate price at the IDIQ level. Oral Arg. Tr. at 79:2–5 (Court: “Well, [GSA doesn’t] necessarily have to be locked into [certain contract types] if . . . the solicitation includes cost or price.” Defendant’s Counsel: “[A]t the GWAC level, right.”). In originally drafting the Polaris Solicitations, Defendant rejected this approach | Sh_Synergy,_LLC_2023-04-28.txt |
2c2b0365-a2b3-43a4-a710-87937ca5a1a3 | . Defendant has suggested that such an approach 36 In stating a preference for firm-fixed price performance-based task orders, the Solicitations reference FAR 37.102(a)(2). See AR at 1025, 2064, 2554. This provision states that “[w]hen acquiring services . . . agencies must . . | Sh_Synergy,_LLC_2023-04-28.txt |
a47ed007-ca26-46e0-bc6d-e2b74ba6ca7f | . [u]se performance-based acquisition methods to the maximum extent practicable” and “use the following order of precedence,” listing firm-fixed price performance-based contracts as most preferred. FAR 37.102(a) (citing Public Law 106-398, section 821(a), for its authority). In other words, FAR 37 | Sh_Synergy,_LLC_2023-04-28.txt |
7a8d4ecb-6b4c-49ce-a3cb-1da375b86b71 | .102(a) provides that generally, firm- fixed price performance-based contracts take precedence in acquisitions for services. However, “[i]t is a commonplace of statutory construction that the specific governs the general.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992). Through 41 U.S.C | Sh_Synergy,_LLC_2023-04-28.txt |
90028a82-da83-435f-961a-c5a6e5899bd4 | . § 3306(c)(3), Congress created a narrow exception to the general rules applying to acquisitions for services. 41 U.S.C. § 3306(c)(3). Thus, for the narrow body of procurements covered in Section 3306(c)(3), Section 3306(c)(3), and not the general provisions in FAR 37.102, must govern | Sh_Synergy,_LLC_2023-04-28.txt |
def041c6-370b-4476-a84e-5576846824c0 | . 69 would be unfeasible because it is too difficult for agencies and offerors to predict or ascertain price when preparing and reviewing proposals at the IDIQ level. See, e.g., Oral Arg. Tr. at 79:7–23 (“[T]he problem with [evaluating price] at the GWAC level is . . . [y]ou don’t know what the solicitation is going to be. . . | Sh_Synergy,_LLC_2023-04-28.txt |
ea3ab3eb-76a9-43fb-9f52-a02a6baf17e3 | . [Y]ou’d have people bidding on contracts that they didn’t even know what they were going to be.”). However, as Plaintiffs’ counsel noted during Oral Argument, the government has issued several GWACs over the years which involve an evaluation of price at the government-wide contract level.37 See Oral Arg. Tr | Sh_Synergy,_LLC_2023-04-28.txt |
5fcc9bf7-77ac-4fa7-b1d3-48a1be632060 | . at 89:6–12 (“[T]here have been a number of government-wide acquisition contracts issued over the years . . . . [a]nd in almost all of those, the Government has actually evaluated pricing.”). There is no evidence before this Court as to why it would be necessary to treat the Polaris Solicitations any differently | Sh_Synergy,_LLC_2023-04-28.txt |
d32f13b4-1a6b-4368-8177-75fa2c68853b | . Further, as GSA identified in its request to apply Class Deviation CD-2020-14 to the Polaris Solicitations, AR at 2908. Thus, by choosing to evaluate price at the IDIQ level, GSA could retain flexibility in selecting among contract types for task orders and renegotiate price at the task order level to minimize procurement costs for participating agencies | Sh_Synergy,_LLC_2023-04-28.txt |
ddc8a27e-3cf3-4b7c-b7a0-c67b579c9585 | . This Court declines to prescribe the precise methods GSA must use to restructure its Polaris Solicitations | Sh_Synergy,_LLC_2023-04-28.txt |
2ac9cbcf-71fe-4468-9017-f323d33e261a | . However, for the procurement to go forward, changes to the current Solicitations 37 As just one example, the Alliant II GWAC for IT services required the agency to evaluate offerors’ “maximum allowable labor rates” by labor category at the Master Contract level, which then would serve as rate ceilings for later task orders. See U.S | Sh_Synergy,_LLC_2023-04-28.txt |
cb97d540-9716-438c-853e-988b056031c7 | . General Services Administration, Alliant II Governmentwide Acquisition Contract (GWAC) – Ordering Guide Resource Library: Conformed Contract, 20–22, https://www.gsa.gov/technology/technology-purchasing- programs/governmentwide-acquisition-contracts/alliant-2-governmentwide-acquisition-contract- gwac (last visited March 20, 2023) | Sh_Synergy,_LLC_2023-04-28.txt |
2e087887-8442-47a8-9494-48e623ab18b7 | . 70 must be made to align the Solicitations with federal procurement law. FAR 1.102(d) grants agencies discretion to craft procurements in the best interests of the agency, so long as the selected procurement strategies operate within the bounds of the law. FAR 1.102(d) | Sh_Synergy,_LLC_2023-04-28.txt |
fc52a50f-10b5-4de7-a24b-8cb6c7ce9668 | . GSA must exercise its authority to redraft the Polaris Solicitations and clarify how the procurement intends to remain faithful to all requirements of 41 U.S.C. § 3306(c), as properly interpreted by this Court, and as consistent with this Memorandum and Order. Until then, the Polaris Solicitations violate 41 U.S.C. § 3306(c)(3). IV | Sh_Synergy,_LLC_2023-04-28.txt |
8900f862-4261-4e50-9927-1d918eee6009 | . Prejudice To prevail in a bid protest, a challenger must also prove it suffered prejudice due to an error in the procurement process. See Glenn Def. Marine, 720 F.3d at 912; Am. Relocation Connections, 789 F. App’x at 226–27 | Sh_Synergy,_LLC_2023-04-28.txt |
2e220a78-0b6c-465a-bd0b-c28c6fb2d3e7 | . Because this is a pre-award protest of the Polaris Solicitations, this Court is required to apply a less stringent prejudice standard than would ordinarily apply in a post-award bid protest. See Weeks Marine, 575 F.3d at 1361–62. Thus, Plaintiffs need only allege a “non- trivial competitive injury which can be addressed by judicial relief” to demonstrate prejudice. Id. at 1359–63 | Sh_Synergy,_LLC_2023-04-28.txt |
58836b24-d8f4-42ce-ae87-49f05e80b6a9 | . Another way of conceiving this standard is to ask whether the protestor has demonstrated “a greater-than insignificant-chance” that correcting the agency’s errors could lead to a different result for the protestor in the procurement. Am. Relocation Connections, 789 F. App’x at 228. Under this less-exacting standard, the burden of demonstrating prejudice has been satisfied in this case | Sh_Synergy,_LLC_2023-04-28.txt |
81c8e6cb-b57a-4830-8eec-923d3d9ca78e | . Plaintiffs have alleged various forms of prejudice they will suffer should the Polaris Solicitations proceed as currently drafted. First, Plaintiffs argue they have been prejudiced by GSA’s decision to exclude Plaintiffs from bidding on the SB Pool Solicitation. SHS MJAR at 20; VCH MJAR at 20 | Sh_Synergy,_LLC_2023-04-28.txt |
2e195cb0-2c1c-405e-82f1-9a3bc8f0606e | . However, because this Court agrees with GSA’s decision to exclude Plaintiffs 71 based on a reasonable interpretation of 13 C.F.R. § 125.9(b)(3)(i), any prejudice Plaintiffs allege regarding their exclusion from bidding on the SB Pool Solicitation does not stem from an error in the procurement process. See supra Discussion Section I | Sh_Synergy,_LLC_2023-04-28.txt |
38b43510-56e3-43ea-9edd-64636031600c | . Plaintiffs next allege they have experienced prejudice due to GSA’s violations of 13 C.F.R. §§ 125.8(e), 127.506(f), and 125.18(b)(5). See supra Discussion Section II. Plaintiffs argue that if the Solicitations were “amended to comply with the regulations, Plaintiffs would be able to submit additional (or better) experience and obtain a higher score | Sh_Synergy,_LLC_2023-04-28.txt |
431f8d07-8333-45d5-bad7-53e16dfda408 | .” SHS MJAR at 30; VCH MAR at 30; see supra Discussion Section II. Finally, Plaintiffs argue they have been prejudiced by Defendant’s misinterpretation of 41 U.S.C. § 3306(c)(3) because Plaintiffs anticipate “their labor rates are going to be substantially lower than other labor rates,” as has “been the case in other contracts [upon which] they have bid.” Oral Arg. Tr. at 42:18–20 | Sh_Synergy,_LLC_2023-04-28.txt |
366408e3-e3f4-4dba-8006-e7f3c652b63a | . Plaintiffs also assert that, should this Court require the Polaris Solicitations to consider price at the IDIQ level, such an adjustment “adds a solicitation requirement that would necessarily change the overall structure of the evaluation” GSA must perform in awarding the IDIQ contracts. Oral Arg. Tr. at 43:3–5; see supra Discussion Section III | Sh_Synergy,_LLC_2023-04-28.txt |
5eb56047-c1bf-4ade-b179-663889906ec8 | . In both instances, Plaintiffs suggest that correcting GSA’s errors in the Solicitations would place Plaintiffs in a better competitive position to secure an award under the Polaris Program, a complaint of prejudice that the Federal Circuit has acknowledged satisfies the “non-trivial competitive injury” test. Am. Relocation Connections, 789 F. App’x at 227–28 | Sh_Synergy,_LLC_2023-04-28.txt |
7995fd57-f1e2-4eda-879b-17add97289ea | . Importantly, Defendant does not meaningfully contest the existence of prejudice for purposes of Plaintiffs’ Motions. Defendant mentions the term “prejudice” only once in both its Cross-MJAR and Reply, noting in conclusory fashion that Plaintiffs “have not been prejudiced; thus no permanent injunction should be issued.” Def. Reply at 24 | Sh_Synergy,_LLC_2023-04-28.txt |
e6c949ee-bec2-49e7-9472-d5b4c1efbda2 | . In its Cross-MJAR, Defendant indicated that due to its belief in the strength of its case, it “do[es] not contest plaintiffs’ argument 72 on any of the other injunction factors – irreparable injury, the balance of hardships, or the public interest.” Cross-MJAR at 59. Defendant appears to contradict that statement almost immediately by alleging “Plaintiffs have not . . | Sh_Synergy,_LLC_2023-04-28.txt |
c8a128c3-facd-481f-8f22-25f8e70d965c | . established that they satisfy all of the elements necessary to obtain a permanent injunction.” Id. at 59. Yet, Defendant does not clarify, substantively or otherwise, the way in which Plaintiffs have failed to demonstrate prejudice or irreparable harm | Sh_Synergy,_LLC_2023-04-28.txt |
3f1e01b8-d294-456a-a010-e828dbe55ea4 | . Indeed, when given the opportunity during Oral Argument to elaborate on its views regarding lack of prejudice, Defendant’s counsel declined to offer the Court further argument on the subject. Oral Arg. Tr. at 90:21–91:9 (Court: “[I]f I agree with the Plaintiff[s] on at least one of these three arguments, do you agree that Plaintiff[s] ha[ve] sufficiently shown prejudice? . . | Sh_Synergy,_LLC_2023-04-28.txt |
0f552942-c28e-4b03-9c29-cbed195034c3 | . Or would you contest prejudice?” . . . Defendant’s Counsel: “Your Honor, I would have to consult with the agency and look at the particulars of their particular prejudice in the context of whatever your ruling was, so I wouldn’t want to make a blanket representation one way or the other.”) | Sh_Synergy,_LLC_2023-04-28.txt |
6e78c1aa-d6d1-4640-9e83-1b3c09643dbe | . Given the arguments presented by Plaintiffs and Defendant’s failure to meaningfully contest the existence of prejudice in this case, this Court deems Plaintiffs to have satisfied the lesser standard for prejudice applicable to this pre-award bid protest action. See Weeks Marine, 575 F.3d at 1361–62; Am. Relocation Connections, 789 F. App’x at 227–28. V | Sh_Synergy,_LLC_2023-04-28.txt |
70c20072-3050-4b49-8edf-563f144b0574 | . Relief Plaintiffs seek to enjoin GSA from proceeding with the evaluation of proposals and subsequent award of IDIQ contracts under the current versions of the Polaris Solicitations. SHS MJAR at 40; VCH MJAR at 40. Under the Tucker Act, this Court has jurisdiction to award “any relief that the court considers proper, including . . . injunctive relief.” 28 U.S.C. § 1491(b)(2) | Sh_Synergy,_LLC_2023-04-28.txt |
90ac2485-39df-497b-a8ed-111e271e57e9 | . To award injunctive relief, a court must consider whether “(1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief, (3) the 73 balance of hardships to the respective parties favors the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.” Centech Grp., Inc. v | Sh_Synergy,_LLC_2023-04-28.txt |
66b2e17a-3cf0-45af-be4f-53e188a5832c | . United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citing PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004)). Both parties agree that if Plaintiffs were to succeed on the merits, the appropriate remedy would involve injunctive relief designed to address the specific violations identified in the current Solicitations. See, e.g | Sh_Synergy,_LLC_2023-04-28.txt |
68bd4c23-8803-4859-84e0-160d2ee578fc | ., SHS MJAR at 40 (urging the Court to require GSA to either “amend or cancel and reissue the Solicitations consistent with law and regulation”); VCH MJAR at 40 (same); Pl. Reply at 25 (“[T]he Court should direct the Agency to publish Solicitations that comply with applicable law and regulation . . . | Sh_Synergy,_LLC_2023-04-28.txt |
3d0c4011-fe77-4443-989d-a2bc52229aae | .”); Cross-MJAR at 59–60 (acknowledging that “if the Court were to rule against [Defendant] on the merits, an injunction could be an appropriate remedy,” but urging the Court to “narrowly tailor any injunctive relief so that GSA does not have to conduct an entirely new procurement or take steps not necessary to address the Court’s concerns”) | Sh_Synergy,_LLC_2023-04-28.txt |
4667e589-85d9-463d-acba-1c65d123b142 | . This Court agrees with the parties that an injunction is the appropriate remedy here. As noted, Plaintiffs have succeeded in proving the merits of their second and third claims. See supra Discussion Sections II and III | Sh_Synergy,_LLC_2023-04-28.txt |
f2882e40-edf8-4509-881a-40c5d9f4088f | . In addressing injunctive relief within the context of patent infringement, the Federal Circuit has acknowledged that a presumption of irreparable harm can apply to a party who clearly demonstrates a likelihood of success on the merits. See Reebok Int’l Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1556 (Fed. Cir | Sh_Synergy,_LLC_2023-04-28.txt |
aaaf9893-73c2-4ced-809c-9b110af559af | . 1994) (“[A] movant who clearly establishes the first factor receives the benefit of a presumption on the second [factor].”). As noted, Plaintiffs have demonstrated sufficient harm to warrant injunctive relief within the context of a pre-award bid protest. See supra Discussion Section IV | Sh_Synergy,_LLC_2023-04-28.txt |
ecf01d4a-d896-43c4-9294-bab9f019a84d | . In contrast, Defendant has not alleged any harm that would result from this Court imposing injunctive relief and, on the contrary, acknowledges 74 that “an injunction could be an appropriate remedy.” Cross-MJAR at 59. Further, compliance with relevant procurement law would not burden or harm the agency, as compliance with the law is a requirement of agency actors | Sh_Synergy,_LLC_2023-04-28.txt |
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