HWI Gear, Inc. v. United States

HWI Gear, Inc. v. United States

Opinion

 [*670]  OPINION AND ORDER¹

LETTOW, Senior Judge.

This bid protest concerns the Defense Logistics Agency's ("DLA" or "the agency") [**2]  decision to award a contract for the production of capacitive gloves to defendant-intervenor Mechanix Wear, LLC ("Mechanix"). Plaintiff HWI Gear, Inc. ("HWI") challenges DLA's award as unreasonable and arbitrary, specifically arguing that the agency did not properly apply the best value tradeoff analysis and failed to follow its own solicitation criteria. The court agrees with HWI that, by failing to inquire as to Mechanix's status as a small business after Mechanix gave pre-award notice of its change in corporate structure, when Mechanix in fact became other than small, DLA failed to follow the terms of the solicitation. Therefore, HWI's motion for judgment on the administrative record is GRANTED.

 [*671]  BACKGROUND²

A. Solicitation

DLA published solicitation number SPE1C1-18-0093, seeking offers for the manufacture and delivery of Army capacitive combat gloves. AR 2-9.³ An advantage of the gloves is that they can be used with touchscreens. See Matter of Mechanix Wear, Inc. B-416704.3, 2019 U.S. Comp. Gen. LEXIS 135, 2019 WL 2052703, at *1 (Comp. Gen. May 6, 2019). The contract was for a one-year base period and three, one-year option periods. AR 1-5. The agency's acquisition plan estimated production requirements to be 200,000 gloves for the first year of the contract and 210,000 [**3]  gloves each year for the three option years. AR 1-5.⁴ The agency estimated the cost per unit to be $42.15 for the base year with an average inflation rate of 2.26 percent for the subsequent option years, resulting in an estimated cost of $36,200,400 over the course of the contract. AR 1-5.

The solicitation was issued as a 100 percent small business set-aside. AR 1-5. Offerors needed to certify that they qualified as a small business pursuant to 13 C.F.R. part 121. AR 4-66. The solicitation incorporated several related provisions from the Federal Acquisition Regulation ("FAR"), and it included the language of FAR 52.219-28 rather than merely citing that provision or incorporating it by reference. AR 4-65 to 66. The relevant text stated that a contractor who represents itself as small prior to contract award "shall rerepresent its size status . . . [w]ithin 30 days after a merger or acquisition that does not require a novation." FAR 52.219-28(b). The solicitation incorporated the language of FAR 52.219-28(b) within "Section I — Contract Clauses." AR 4-66.

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