PlanetSpace, Inc. v. U.S., 92 Fed.Cl. 520 (April 26, 2010) is a post-award bid protest in the Court of Federal Claims by an unsuccessful bidder on the contract awarded by National Aeronautics and Space Administration (NASA) to provide cargo transportation to and from International Space Station (ISS).

The Source Selection Authority (SSA) evaluated the protester’s bid as being very high risk – essentially questioning whether the bidder could successfully perform – in its proposal which relied heavily on much larger subcontractors for key portions of the project.

The complaint includes an allegation of undisclosed evaluation criteria (the SSA commented that the protester did not have a “backup plan” – even though one not required by the RFP). The Court states the Plaintiff must show that the federal procuring agency used a significantly different basis in evaluating the proposals than was disclosed in the solicitation. Here, the comment on the back-up plan was simply a part of the risk assessment of the overall proposal.

The Court reiterated the deference to be given to agency discretion, particularly in negotiated procurements: “The Court of Federal Claims cannot displace a reasonable conclusion of the source selection authority (SSA) in evaluating proposals for a federal government contract merely because the court has identified an alternate conclusion that might have been likewise reasonable, or even preferable.”

NASA’s Source Selection Authority (SSA) selected a technically superior but significantly higher priced offeror. “Although I recognized the evaluation criteria provided that Mission Suitability was more important than price, I could not conduct a ‘typical’ trade-off analysis since I believed there was a low likelihood PlanetSpace could successfully perform the contract.”

This statement in the SSA’s decision gave rise to an allegation that the SSA made a de facto nonresponsibility determination, and made a flawed tradeoff analysis. It is the Contracting Officer who is to make responsibility determinations, not the SSA. The Court remanded the case to the agency on this issue and the legal sufficiency of the trade-off for further development.

To discuss your government contract law issues or questions, contact Karen S. Hindson.