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Meaningfully Altering Substance of Record Bad Practice

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The United States Court of Federal Claims (COFC) decided this case  involving Sonoran Technology and Professional Services, LLC vs United States 2017 WL 3015628.  Established pursuant to Article I of the U.S. Constitution, this court deals mostly with monetary claims made against the U.S. government. This court commonly hears cases concerning government contracts and tax refunds, among other subjects.

Government Contract Background

On February 29, 2016, the United States Air Force (Air Force) issued Request for Proposal (RFP) FA6800–16–R–0001. The RFP requested “courseware development and training for its aircrew flying B–52 and B–51 aircrafts.” To be eligible for a contract award, bidders were required to have facility security clearance (FCL).

Sonoran Technology and Professional Services, LLC (Sonoran) and Spectre Pursuit Group, LLC (SPG) submitted bids for the RFP. But SPG did not have the necessary FCL before bid submission. As a result, the contracting officer determined that SPG was “unawardable” and assigned the contract to Sonoran.

In response to the contract award, SPG requested a “responsibility determination” from the United States Small Business Administration’s (SBA). The SBA initially stated that a responsibility determination was not possible. Sonoran already won the contract award. But after SPG secured the necessary FCL, the SBA issued a Certificate of Competency (COC) to SPG anyway.

On February 2, 2017, the government cancelled the contract award to Sonoran and awarded to SPG instead. The government explained their actions as the  “result of corrective action . . . in response to a protest filed by [SPG].” Sonoran protested and filed the present case with the Court. Specifically, Sonoran challenged the decision to cancel the contract and award to SPG instead. Along the same lines, Sonoran questioned the validity of the decision to grant a COC to SPG. In order to prove its case, Sonoran requested access to Air Force documents related to the SBA decision to grant a COC to SPG.

Government Contract Legal Analysis 

The Court first underlined that the SBA decision to grant a COC to SPG is “irrelevant to this protest.” It was the Air Force, not the SBA, that cancelled the Sonoran contract and awarded to SPG instead. But the SBA decision and rationale could be “indirectly relevant,” if the Air Force relied on such information to take corrective action.

Then the Court highlighted a January 30, 2017 email conversation between the SBA and Air Force, “which meaningfully altered the substance of the record in this case.” This email exchange referenced an agreement between the SBA and the Air Force. The exchange also referenced documentation of SBA reasoning. But several documents mentioned in the January 30, 2017 email exchange are missing from the record.

The Court determined that documents mentioned in the January 30, 2017 email exchange suggested “further information pertinent to understanding the Air Force’s decision-making process.” Such documents are required to understand why the Air Force cancelled the Sonoran contract and awarded to SPG instead.

But the Court was also “hesitant to grant Sonoran’s broad request for all documents relating to the SBA’s COC decision.” Not every such document is relevant to the present case.

As a result, the Court ordered the Air Force to produce all “communications, emails, and documents” referenced in the January 30, 2017 email conversation. If the Air Force claims privilege for any of those documents, then the Court promised to review the documents privately to assess the privilege claim.

Do You Need Legal Advice from an Experienced

Government Contract Attorney?


Navigating the ins and outs of government contracts can be a challenge. There are various legal regulations and considerations at play, which can make it difficult to understand the proper course of action. But a knowledgeable government attorney can make all of the difference, helping you avoid pitfalls and resolve any issues that might arise.

If you are in need of assistance with government contracts or other related matters, please do not hesitate to contact Whitcomb, Selinsky Law, PC immediately. Located in Denver, Colorado, you can reach the attorneys at Whitcomb, Selinsky Law PC by phone at (303) 534-1958 or online by completing a simple form.

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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