• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-571-223-6845

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Matter of Trailboss Enterprises, Inc.

  • By GCPC GovCon Legal Team
  • May 9, 2019
  • Bad Faith in Evaluation
  • 0 Comments

Matter of Trailboss Enterprises, Inc.

Agency: Department of the Air Force

Disposition: Protest Dismissed in Part and Denied in Part

Decided: May 7, 2018

Keywords:  Bad Faith in Evaluation

General Counsel P.C. Highlight:

An allegation of bad faith on behalf of an agency or government employee requires specific facts and evidence.  Simply arguing bad faith based on results or impact to the protester will not be successful. Agencies are presumed to act in good faith, and without evidence to the contrary, a protester will not succeed in a bad faith claim.

Summary of Facts

Trailboss Enterprises, Inc. (Trailboss) challenges the terms of the request for proposals (RFP) issued by the Department of the Air Force for training services in support of the Republic of Singapore Air Force (RSAF).  Additionally, it challenges the award of the sole source contract to PLK Services, Inc. (PLK) to provide training services under a different solicitation during the gap between the expiration of the incumbent contract and the award of the new contract.  

The Air Force provides training in fighter aircraft maintenance and flying operations to the Republic of Singapore Air Force (RSAF) personnel in Idaho.  PLK Services, Inc. (PLK) was awarded sole source contracts for this work in both 2008 and 2012. In November of 2017, the Air Force issued a request for proposals (RFP) for a fixed price contract for training, with a base period of 6 months and four 1-year options.  The RFP called for evaluation based on technical, past performance, and price. The technical factor had four subfactors, all of which would be evaluated on an acceptable/unacceptable basis. Past performance would also be scored on an acceptable/unacceptable basis. Finally, award would be made to the proposal with all acceptable ratings and the lowest price.  

On December 20, prior to the submissions’ due date, Trailboss filed a protest arguing the lowest price technically acceptable basis was improper, the proposal requirements were unduly restrictive of competition, the solicitation was tainted by biased ground rules organizational conflict of interest (OCI) and that the agency acted in bad faith.  

On January 19, the agency responded by suspending the solicitation to investigate the potential OCI, and the protest was subsequently dismissed.  Separately, on January 18, the Air Force posted a proposed sole source award to PKL to ensure continued training after the pending expiration of the current incumbent contract.  On January 29, Trailboss filed a protest challenging the proposed award.

On February 14, the Air Force found no OCIs and advised the solicitation was reinstated, with proposals due by February 20.  On February 20, Trailboss timely filed a protest raising the same challenges.

Protest of LPTA

Trailboss first argues the use of a lowest-Priced, technically-acceptable (LPTA) award is inconsistent with guidelines set forth in a memo issued by a former Undersecretary of Defense from 2015.  However, the GAO declines to examine the issue, explaining, “an agency’s compliance with internal guidance or policies that are not contained in mandatory procurement regulations is not a matter that our Office will review as part of our bid protest function.”  Because the memo is not mandatory, the GAO will not review the issue.

Next, Trailboss argues the LPTA award criteria is in violation of a policy set forth in the National Defense Authorization Act (NDAA) for fiscal year 2017.  The NDAA directed the Secretary of Defense to revise the Defense Federal Acquisition Regulation Supplement to limit the use of LTPA awards. However, these revisions have not yet been adopted, and further, the NDAA does not expressly prohibit the use of LPTA award criteria.  As such, the protest fails on these grounds.

Protest of Solicitation Terms

Trailboss argues the proposal requirements are “unduly restrictive of competition.”  Specifically, Trailboss argues the requirements are unreasonable and points to several requirements.  For example, Trailboss argues rather than requiring qualified contacts at the time of submission, the agency should have allowed for contacts who may become qualified prior to starting the contract, or, in the alternative, permit retention of incumbent employees without identifying them.  In each instance, a careful review of the requirements leads to the conclusion the agency set forth a reasonable basis for the proposal requirements. Thus, there is no basis to sustain the protest on this ground.

Organizational Conflict of Interest

Protester contends the terms of the solicitation favor the incumbent, PKL.  Thus, Trailboss asserts PKL must have been involved in the development of the solicitation, which, of course, would be improper.  However, the Air Force unequivocally stated the incumbent had no role in drafting the solicitation or the development of the source selection factors.  While Trailboss insists on PKL’s influence, it provides no facts to demonstrate this. Based on the failure to provide facts to support its claim, this aspect of the protest is dismissed.

Bad Faith

Trailboss argues the solicitation provides advantages to the incumbent, which is evidence of bad faith.  The GAO finds “no merit to this argument.” Bath faith must be proven by convincing evidence agency officials had the specific and malicious intent to harm a protester.  This is a very high bar. Government officials enjoy the presumption of good faith efforts. The GAO will not infer unfair or prejudicial motives. Trailboss failed to provide any evidence to establish specific and malicious intent, thus there is no basis to sustain the protest.

Inadequate Basis for Sole Source Award

Trailboss argues the sole source award was improper in that it lacked advanced planning and the agency did not solicit offers from others.  A review of the agency’s decision was viewed as adequate given the circumstances. These circumstances include the agency’s willingness to perform a corrective action in response to the original protest filed by Trailboss.  This does not reflect a lack of advanced planning. Further, given the impracticality of locating another firm to provide short term training, the justification for a sole source is sound.

Bad Faith in Sole Source Award

Trailboss separately argues bad faith in the proposed award of the sole source contract.  Again, the GAO points out the protester does not identify a single fact or provide specific evidence to support its claim. Rather, it simply argues the agency acted in bad faith and with bias against the protester.  Without evidence to support the claim, there is no basis to sustain the protest.

Protest Denied and Dismissed

Protest denied in part and dismissed in part.

Tagged

Bad Faith in Evaluation

Share

Leave a Reply Cancel reply

You must be logged in to post a comment.

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-571-223-6845
Email

Keep up to date
on bid protest
decisions and
policies:

© 2022 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-571-223-6845