Members of the Bass, Berry & Sims Government Contracts team successfully represented B&O JV in multiple actions brought by a competitor to challenge the awarding of a contract to our client. B&O JV is an 8(a) small business joint venture based in Dallas, TX.
In October 2017, the Federal Law Enforcement Training Center (FLETC) issued a request for proposal (RFP) for dorm maintenance services at its training facility in Glynco, Georgia, as a competitive 8(a) set-aside. The important services support training of federal law enforcement officers and FLETC has repeatedly determined that the services cannot be interrupted.
The incumbent, SRM Group, Inc., was not eligible to compete for the contract, having graduated from the 8(a) program in 2013, but formed an 8(a) joint venture, Safeguard, which did compete for the work. Bass, Berry & Sims’ client, B&O JV, was ultimately awarded that contract and has been performing the work since October 1, 2018.
Both before and after the award, Bass, Berry & Sims successfully represented B&O JV in multiple actions by Safeguard to halt B&O JV’s performance and wrest the contract award from our client. Safeguard filed multiple pre- and post-award bid protests at the GAO, with the latest protest being denied in part and dismissed in part in December 2018. That decision is available here.
Because the incumbent contract for these vital services ended on September 30, 2018, FLETC decided it was necessary to override the Competition in Contracting Act (CICA) stay of the new contract awarded to B&O JV, which began on October 1, 2018, under both the best interests of the government and urgent and compelling circumstances CICA override provisions. After multiple pre-award and post-award protests, as well as a failed SBA size protest, B&O JV had hoped Safeguard’s efforts to wrest the contract from B&O JV, which had now been selected as the awardee three times, was over. But on September 29, 2018, Safeguard filed notice that it was filing suit at the Court of Federal Claims, and on October 1 Safeguard filed a complaint challenging the CICA stay override along with a motion for a temporary restraining order and preliminary injunction.
Safeguard’s effort to enjoin the stay override failed. On October 24, 2018, the court issued an oral decision denying Safeguard’s requested relief and finding that FLETC’s override was proper under both the best interests and urgent and compelling circumstances justifications. A detailed, 48-page decision was then issued on October 25, 2018, with a redacted public version, available here, issued on November 5, 2018.
On October 29, 2018, Safeguard filed notice that it was appealing the decision to the Court of Appeals for the Federal Circuit. That appeal is still pending despite the fact that the GAO protest that triggered the CICA stay period, which had been overridden, ended when the GAO decision was issued on December 14, 2018.
During the course of Safeguard’s quixotic efforts to reverse the award to B&O JV, Safeguard also filed a size protest with the Small Business Administration (SBA) alleging that B&O JV exceeded the applicable revenue threshold. That also failed, with a decision issued on July 20, 2018, finding that B&O JV was a small business and therefore eligible for award.
In addition, Safeguard filed a collateral attack on the award in Georgia state court, seeking to enforce a covenant not to compete in an SRM employment contract and enjoin its former employee from working for B&O JV. In that matter, in which B&O JV was represented by local counsel with support from Bass, Berry & Sims, Safeguard made the remarkable, and false, argument that but for B&O JV employing SRM’s former employee, B&O JV would not have won the contract. Unsurprisingly, the judge denied Safeguard’s request for an injunction.
Finally, on January 11, 2019, Safeguard filed yet another action in this saga, challenging the September 20, 2018, award to B&O JV in a Court of Federal Claims bid protest raising the same grounds that were denied by the GAO in December 2018. As of the date of this post, that matter is still pending.
On January 16, 2019, Law360 highlighted the impact the government shutdown is having on this specific case. That article, “Gov’t Shutdown Stymies Dormitory Co.’s Fed Contract Case,” is available online.