“The fundamental liberties protected by the Fourteenth Amendments Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs…. History and tradition guide and discipline the inquiry but do not set its outer boundaries.”[1]

In 1967 the Supreme Court invalidated laws prohibiting interracial marriage (Loving v. Virginia)[2], and twenty years later the high court held that prisoners could not be denied the right to marry (Turner v. Safley[3]).

In 2015 the Supreme Court’s Obergefell v. Hodges decision identifies four key principles and traditions to support marriage as a fundamental liberty of same-sex couples:

• the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Decisions about marriage are among the most intimate that an individual can make, and this is true for all persons, whatever their sexual orientation.
• the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association.
• protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.
• marriage is a keystone of the Nation’s social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable.

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

The Court looks to the Fourteenth Amendment’s equal protection clause and the due process clause. Some rights are implicit in liberty; others are secured by equal protection of the law.

The right to marry is a fundamental right inherent in the liberty of the person Same-sex couples may exercise the fundamental right to marry. “While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”

Prior to the Obergefell decision, Georgia’s constitution and statutes prohibited same-sex marriage and prohibited recognition of same-sex marriages formed in other states.  Georgia’s courts, legislature, and local governments are now adapting to the new legal landscape.  Stay tuned.

Endnotes:

Read the entire Obergefell v. Hodges decision at 135 S. Ct. 2584 (U.S. 2015)

[1] Quoted passages within this article are from the Obergefell decision as published.

[2] 388 U.S. 1 (U.S. 1967)

[3] 482 U.S. 78, 95, (U.S. 1987)

© Karen S. Hindson, Hindson & Melton LLC

The Court of Federal Claims, interestingly, was not concerned that the protester submitted non-identical electronic and paper copies of the bid.  The electronic copy was submitted timely, but the non-identical paper copy of the proposal (which, according to the RFP, would control in the event of inconsistency) was not in the contracting offices’ hands until after the time set for receipt of proposals.  The contractor’s courier was logged in at the security gate prior to time for receipt of proposals and had spoken to a representative in the contracting office by telephone.  The Court found the proposal to be under the government’s control prior to the deadline under the facts of this government contract bid protest case.

Government control exception calls for a fact-specific inquiry.

In applying the government control exception to late proposal rule, the Court made a fact-specific inquiry looking to the instructions in the solicitation and the nature of the agency’s facilities.    The Court noted that the government contractor did not receive an advantage by late submission, such as access to post-deadline information or having more time to prepare its proposal, and consideration of the proposal would not compromise the competitive process.

In applying the government control exception in this bid protest, the Court stated that the proposal was “under the government’s control” when the offeror relinquished control over the proposal such that the offeror could no longer modify the proposal.   Under this standard, many proposals rejected as untimely would seem to qualify.  However, the Court emphasized the fact that the contractor had timely submitted a complete copy of the proposal electronically.   (The fact that the electronic proposal was not identical to the paper copy did not trouble the Court since the RFP did not require identical proposals).

Possibility of waiver as minor informality.

The Court went even further, finding that even if the late proposal was not under government control, the late delivery of the paper copy could be waived as a minor informality in this bid protest case.  The agency should look to see if the offeror gained a competitive advantage or prejudiced competing offerors, and if not, waive the late paper proposal as a minor informality.

The Court issued a permanent injunction requiring the DIA to consider the contractor’s late proposal.  The court concluded that the contractor, a Native American Indian, service-disabled veteran owned and certified small disadvantaged business, would be irreparably injured without a permanent injunction.  Recoupment of bid preparation costs was not considered a sufficient remedy, since this large dollar value contract represented a significant business-expansion opportunity for the small business.   The bid protest decision to issue an injunction would not work a significant hardship on the agency since the agency had not yet awarded a contract.

Government control exception calls for prompt action.

It was important to the contractor’s success in this bid protest case that it acted quickly to assert its rights.  The Court of Federal Claim’s decision to issue an injunction might have been different had the agency already awarded a contract.  If your company needs assistance with your late bid or proposal issue, contact Hindson & Melton LLC as early as possible for assistance with your case.
Karen S. Hindson – July 23, 2012

GAO has repeatedly sustained protests filed by SDVOSB (small disadvantaged veteran owned small business) or VOSB (veteran owned small business) concerns for the VA’s failure to follow mandatory procedures favoring SDVOSB and VOSB.  The Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. §§ 8127-8128 (2006), requires VA to determine whether two or more SDVOSB or VOSB concerns can meet its requirements at a reasonable price before proceeding with FSS procurements.

In Matter of Aldevra, B-406331, B-406391, 2012 CPD ¶ 144 (April 20, 2012), GAO sustained SDVOSB Aldevra’s protest against a VA solicitation for refrigerators and miscellaneous kitchen equiment for the North Florida/South Georgia Veterans Health System.  The agency had issued the FSS solicitations on an unrestricted basis to vendors holding FSS contracts.

Protester Aldevra is holding the VA’s feet to the fire.  A March 14, 2012, GAO bid protest was decided in favor of protester Aldevra for the same reason.  B-406205, 2012 CPD ¶ 112.

GAO recommended the agency conduct market research to determine whether there is a reasonable expectation that two or more SDVOSB or VOSB concerns can meet the agency’s needs at a reasonable price.  If so, the requirements should be solicited as SDVOSB or VOSB set-asides.

For more information about SDVOSB or VOSB, or for help with your government contract bid protest, contact Karen Hindson of Hindson & Melton LLC.

This bid protest jurisdiction of the Court includes reviews of agency corrective action taken in response to GAO protests.  The Court will review the action to determine whether it is reasonable under the circumstances.

Injunctive relief may be available in a bid protest case before the United States Court of Federal Claims, if:

• the plaintiff has succeeded on the merits of the case;
• the plaintiff will suffer irreparable harm if the court withholds injunctive relief,
• the balance of the hardships favors granting injunctive relief, and
• such relief would be in the public interest.   

See Great Lakes Dredge & Dock Co v United States, 60 Fed. Cl. 350 (2004) for a discussion of injunctive relief.

The standard of review the Court utilizes in reviewing agency action is whether it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  5 U.S.C. Section 706(2)(A)  This is known as the Administrative Procedures Act (APA) standard.  This is a very high bar for the plaintiff challenging agency action.  The Court can look to see whether the agency action lacked a rational basis or if the agency’s decision-making involved a violation of regulation or procedure.  Agency decisions are given the benefit of the doubt and a presumption of regularity.  The Court will not simply substitute its judgment for a reasonable agency decision, even if the Court would have reached a different decision.

If the Court finds that an agency acted without a rational basis, then it must decide whether the plaintiff/protestor was prejudiced by the agency’s conduct.  For pre-award bid protests, the Court would look to see whether there is a competitive injury.  For a post-award bid protest, the protester must prove there is a substantial chance it would have received the award absent the violation.

Contact government contract lawyer Karen S. Hindson to discuss your questions about bid protests.

On September 17, 2010, the Department of Defense posted on www.fedbizopps.gov a notice of intent to award a sole source contract – and the notice stated that any party challenging the sole-source contract should file a capability statement by September 22nd detailing its capability to fill the order. On September 25th, DoD awarded the sole-source contract to Science First.

On October 11th, Digitalis contacted its Congressman. On December 6th, it filed a post-award bid protest with the Court of Federal Claims. The government filed a motion to dismiss for lack of standing.

The Court of Claims held that Digitalis did not have standing to protest – because it did not have a substantial chance of winning the contract since Digitalis failed to submit a statement of capability during the prescribed 5 day period as required in the fedbizopps notice.

Only “interested parties” have standing to challenge government contract awards. But who is an interested party? An actual or prospective bidder whose direct economic interest would be affected by the award of the contract.

To prove a direct economic interest, a party must show it had a substantial chance of winning the contract. In order to protest – one who has not actually submitted an offer must be expecting to submit an offer before the closing date. If the date for receipt of proposals passes without submitting a bid, the opportunity to become a prospective bidder ends.

In this case, bids were not invited, but interested parties had a deadline to submit capability statements. Digitalis failed to submit a statement during the prescribed period, so it does not have the required direct economic interest to have standing to pursue a bid protest.

The case also includes a discussion of whether 5 days would be considered a sufficient time to require capability statements — without answering the question. The decision says the standard would be whether it is reasonable to expect contractors to see a notice and respond. However, since Digitalis did not have standing to protest, the Court did not decide this issue.

See more government contracts news. Contract Karen S. Hindson for more information.

Pre-award or post-award bid protests on government contracts are most often filed with the General Accountability Office (GAO).  GAO Bid Protest Procedures are at 4 CFR Part 21.  Also see Federal Acquisition Regulation (FAR) 33.104.   A bid protest concerning the terms of a solicitation must be filed prior to the date that proposals are due (bid opening date) in order to be timely.  Pre-award bid protests may also be filed challenging an adverse agency action, such as an offeror’s exclusion from the competitive range and further participation in an ongoing procurement.  Pre-award bid protests filed with GAO typically stop award of a contract until the protest is decided, absent a high level determination that it is urgent and compelling that a predecision award be made.

Post-award bid protests challenge the agency’s award decision or procedures utilized in making the contract award and are available to disappointed bidders that believe an agency has not acted in accordance with statute or regulation in conducting the procurement.  The GAO gives the benefit of the doubt to agency action, frequently deferring to the agency’s exercise of discretion.  However, contracting activities must conduct proposal evaluations as described in the request for proposals, and in accordance with statute and regulation. GAO generally will not substitute its judgment for the judgment of the agency contracting official, but if a violation of statute or regulation is found, or if proposals are not evaluated as stated in the request for proposals (RFP),  the GAO will recommend corrective action.   GAO recommendations to agencies for successful post-award bid protests may include reopening the procurement, terminating a contract awarded improperly, and payment of the successful protester’s attorneys fees and other costs of pursuing the protest.

Contact the government contract law firm of Karen S. Hindson PC, Hindson & Melton LLC’s woman-owned, veteran-owned small business with over 30 years of government contract law experience.

Must have a valid “claim” within the meaning of the CDA and a contracting officer final decision for the United States Court of Federal Claims to have subject matter jurisdiction.  The FAR defines claim as: “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.” 48 C.F.R. § 33.201; FAR 33.201.

United States Court of Federal Claims has jurisdiction to hear breach of government contract claims under the Tucker Act, 28 U.S.C. §1491. Contracts may be express or implied.  COFC will also entertain bid protest cases based on breach of implied contract of fair dealing.

United States Court of Federal Claims also has bid protests jurisdiction under the Tucker Act.  28 U.S.C. §1491(b).  This includes both pre-award and post-award bid protests.  Generally only actual bidders are interested parties with standing to bring post-award bid protests.  Pre-award bid protests can object to a solicitation or proposed contract or any alleged violation of statute or regulation in connection with a procurement or proposed procurement (including preprocurement decisions).  Certain corporations in which the United States has a proprietary interest -such as FDIC and USPS – are “federal agencies” for purposes of COFC bid protest jurisdiction.

There was a time when federal district courts had jurisdiction under the Administrative Procedures Act to hear contract award challenges and violations of government contract law. The Administrative Dispute Resolution Act (“ADRA”) ended this shared jurisdictional arrangement, often called Scanwell jurisdiction, in 1996. The Tucker Act, 28 U.S.C. §1491(b)(1), as amended by the ADRA, consolidated the Court of Federal Claim’s (COFC) jurisdiction, allowing it:

• to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract (bid protest jurisdiction).
• to hear the full range of procurement disputes, including any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

The statute initially had allowed the Court of Federal Claims and the federal district courts to share jurisdiction over government contract and procurement disputes. However, by virtue of a sunset provision, the statute now vests exclusive jurisdiction with the COFC.

United States Court of Appeals, Federal Circuit - hears appeals from the United States Court of Federal Claims.  Reviews questions of law de novo.  Also hears appeals from the Boards of Contract Appeals.

Claims submitted to the Contracting Officer -  governed by the Contract Disputes Act of 1978, 41 U.S.C.A. § 601 et seq.  For a claim to be valid under CDA, it must give the contracting officer adequate notice of the basis and the amount of the claim, and request a contracting officer decision.

General Accountability Office (GAO) - hears pre-award and post-award bid protests pursuant to the regulations at Title 4 CFR Part 21.

Federal District Courts - hear a variety of government contract cases such as reverse-FOIA, qui tam suits under the False Claims Act,contractor liability under statutes such as Alien Tort Statute or Federal Tort Claims Act

Boards of Contract Appeals (BCA)- jurisdiction to hear appeals filed from contracting officer final decisions under CDA within 90 days.  There are a number of BCA for the various agencies – such as the Armed Services Board of Contract Appeals (ASBCA).  Under the Election Doctrine, once a contractor makes a binding decision to appeal a contracting officer final decision to a BCA or to the Court of Federal Claims, the contractor cannot pursue the same claim in the other forum.

To discuss your government contract claim or dispute, contact government contracts attorney Karen S. Hindson.

The agency characterized it’s communications with the awardee as clarifications rather than discussions, but the GAO was not persuaded. As a result of the “clarifications”, the awardee’s proposal went from being rated technically unacceptable to technically acceptable – thus GAO inferred that material changes in the awardee’s quote had been allowed. GAO said discussions occur where a firm is allowed to make material revisions to its quote or proposal.

The agency did not afford protester an opportunity to revise its quote. Therefore, GAO sustained the protest and recommended the agency reopen the procurement and afford all competitors an opportunity to revise their quotations.

Contact Karen S. Hindson for more information.

Non-price factors were more important than price in the RFP. It was not sufficient for the government to simply state that the proposal’s technical superiority is not worth the payment of the price premium; instead, the government must explain specifically why it does not warrant the premium.

The Court concluded that the best-value analysis performed by the SSEB was both irrational and inconsistent with the evaluation scheme set forth in the RFP – and thus contrary to law. The errors had the effect of converting the best-value procurement contemplated under the RFP into one based on low price and mere technical acceptability.

“In a best-value procurement, the relevant question is not whether the lowest-priced proposal will meet the minimum technical requirements set forth in the RFP; rather, the government must determine which proposal represents the best value to the government.”

Contact Karen S. Hindson of Hindson & Melton LLC for your post-award bid protest questions.

The construction contract award was made to DQSI, Corporation, which was the 8(a) entity approved by SBA. However, the proposal had been submitted by DQSI, LLC. It is undisputed that the award was made to a legal entity other than the entity that submitted the proposal.

The protester alleges that DQSI, Corporation no longer exists because it converted to a LLC in 2009. Further, the protester alleged that DQSI, Corporation did not receive advance SBA approval of the change in business structure or ownership. SBA confirmed that DQSI, Corporation was the 8(a) eligible participant.

The protest against the 8(a) award to DQSI, LLC was sustained by GAO, and the Army instructed to terminate the contract for convenience if DQSI, LLC is not eligible for the 8(a) award.