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Eskridge & Assocs. v. United States

United States Court of Appeals for the Federal Circuit

April 15, 2020, Decided

2019-1862

Opinion

Wallach, Circuit Judge.

Appellant Eskridge & Associates ("Eskridge") filed a bid protest in the U.S. Court of Federal Claims, protesting the award of a U.S. Department of the Army ("Army") contract to a competitor. Following Eskridge's motion for judgment on the administrative record, the Court of Federal Claims concluded that Eskridge lacked standing, as it was not an interested party pursuant to 28 U.S.C. § 1491, and dismissed the protest. See Eskridge & Assocs. v. United States, 142 Fed. Cl. 410, 425 (2019) (Opinion and Order); Judgment, Eskridge & Assocs. v. United States, 142 Fed. Cl. 410 (Fed. Cl. 2019), ECF No. 26.

Eskridge appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). We affirm.

Background1

In 2016, the Army sought to procure the services of certified registered [*2]  nurse anesthetists ("CRNAs") for the Womack Army Medical Center, located in Fort Bragg, North Carolina, by issuing a solicitation ("the 2016 Solicitation"). See Eskridge, 142 Fed. Cl. at 412-13. Relevant here, the Army performed a price realism analysis of the proposals made in response to the 2016 Solicitation. Id. at 412. Eskridge bid on the 2016 Solicitation, but the solicitation was cancelled in 2017 in connection with a corrective action ("the 2017 Protest"). Id. Later in 2017, the Army released a preview for a new solicitation for the CRNAs at Fort Bragg. Id. at 413. The preview outlined the award of a contract on a fixed-price basis for a base period of six months, with the addition of four option years to follow, and estimated a cost of $21,034,111.20. Id. The preview also stated that performance was expected to commence on April 1, 2018 and to end by September 30, 2022. Id.

In early January 2018, the Army filed a solicitation with bids due three weeks later ("the 2018 Solicitation"). Id. In addition to listing various requirements and expectations, the 2018 Solicitation provided the method by which the Army intended to evaluate the bids—the "lowest price technically acceptable . . . approach." Id. (capitalization altered). Specifically, the 2018 [*3]  Solicitation stated that the Army would "initially list proposals from lowest to highest price," and then "evaluate the technical acceptability of the five lowest-priced bids." Id. (internal quotation marks and citation omitted). If any of those five bids were rated technically acceptable, the Army would "not evaluate any other proposals," and instead "award the contract to the lowest-priced, technically acceptable bidder." Id. (internal quotation marks and citation omitted). The price "would act as a filter," allowing the Army to review only the five lowest-priced bids for the detailed technical evaluation. Id. The Army provided three categories to determine if a bid was technically acceptable: (1) "[g]eneral compliance with solicitation requirements"; (2) technical merit, scored on six subfactors; and (3) past performance. Id. (citation omitted). In the 2018 Solicitation, the Army set the minimum compensation rate for a CRNA at $113.89 per hour, inclusive of fringe benefits. Id. at 414. The addition of the minimum compensation rate—which had not been included in the 2016 Solicitation—was provided in lieu of the 2016 Solicitation's price realism analysis, as "the Army believed the minimum acceptable [*4]  wage rate acted as a price realism regulator[.]" Id.2

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2020 U.S. App. LEXIS 11862 *

ESKRIDGE & ASSOCIATES, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee ANSIBLE GOVERNMENT SOLUTIONS, LLC, Defendant

Prior History:  [*1] Appeal from the United States Court of Federal Claims in No. 1:18-cv-02001-CFL, Senior Judge Charles F. Lettow.

Eskridge & Assocs. v. United States, 142 Fed. Cl. 410, 2019 U.S. Claims LEXIS 256 (Mar. 19, 2019)

Disposition: AFFIRMED.

CORE TERMS

bid, Solicitation, bidders, protest, economic interest, proposals, realism, quotation, marks, interested party, substantial chance, procurement, prices, lowest-priced, lowest, compensation rate, rate of wages, lower-priced, evaluations

Civil Procedure, Appeals, Standards of Review, De Novo Review, Public Contracts Law, Dispute Resolution, Bid Protests, Preliminary Considerations, Justiciability, Standing, Costs & Prices, Cost Analysis