In re: Blinderman Construction Co., Inc.
This protest demonstrated that the Army's failure to award the contract to Blinderman Construction (Blinderman) was unreasonable in several respects. Most notably, the process inadvertently unduly restricted competition by requiring definitive selection criteria that went beyond the statutory intent of the Small Business Act, 13 CFR § 121 et seq. Further, because of the undue restriction, the Army failed to properly evaluate Blinderman's bid under the requirements of a Best Value Decision using a Price Performance Trade Off Process utilizing their Source Selection Procedures enunciated in the solicitation at Section 00112, beginning at page 8 of 208. See Exh. 1. Additionally, the most highly rated offeror, The Sheffield-Korte JV, rated slightly higher than Blinderman, triggering the Trade-off procedures. It should be also noted that the published target ceiling for this project was $22,340,000.00 and while Blinderman's bid conformed to this target ceiling, Sheffield-Korte's did not. Finally, because Factor I, past performance, required projects to be submitted that exceeded the requirements under the small business Act's Limitations in Subcontracting provisions, and this factor was listed as most important in order of importance, the requirement had an even greater effect on small business in general. Because the Army failed to properly evaluate the trade-off criteria in the source selection documents, and unduly restricted competition, the Army did not properly evaluate and score Blinderman's proposal.
The Army determined to take corrective action and reevaluate the proposals and as a result Blinderman was awarded the contract.
Practice area(s): Administrative Law, Construction / Development, Contracts / Agreements, Government, Lawsuits / Disputes, Litigation, Administrative Law
David A. Rose, Esq., is a senior member of the firm practicing throughout the United States and internationally based in Duluth (Atlanta) Georgia. In addition to Federal Contracts and Procurement law, he assists companies and corporations with business formation issues (LLCs, Domestic Corporations, Joint Ventures, Teaming Arrangements, 8(a) and Small Disadvantaged Applications to SBA, MentorProtégé, Affiliation and Ostensible Subcontractor Issues, etc.) and with the establishment of subsidiary entities in foreign locations from the Caribbean to the Mid and Far East. With more than 20 years of experience, the former Deputy General Counsel (Deputy Staff Judge Advocate) of the Air Force Center for Engineering and Environmental Excellence, oversaw the legal program for execution of over $4 Billion in Federal contracts each year. Dave has served at senior positions in Korea, Japan, Germany, Great Britain and the Pentagon and now brings that breadth of knowledge and experience to the commercial sector. His background is complemented by degrees in chemistry, mathematics, a jurisdoctorate, and post doctoral degrees in environmental law and procurement law from George Washington University. He was most recently selected as the 2011 SAME National Industry Small Business Advocate. He is active in the State Bar of Georgia, US Court of Federal Claims, US Tax Court, Armed Services Board of Contract Appeals, Fulton County Bar Association, the Society of American Military Engineers, the American Society of Civil Engineers, and the Judge Advocates Association. He currently holds the active rank of Lt Col in the United States Air Force Reserves and the position of Deputy Staff Judge Advocate (Cat A) to the Headquarters, United States Air Force Reserves where he is one of the primary legal advisers to the Commanding Officer of the Air Force Reserves, Lt General Jackson.