In a case of first impression, the U.S. Court of Appeals for the Federal Circuit recently ruled in SEKRI, Inc. v. U.S., No. 21-1936 (May 13, 2022), that a non-profit agency that was the sole mandatory source for a specific piece of military kit had standing to file a bid protest over a solicitation
In Seventh Dimension, LLC v. United States, No. 21-2275C (May 11, 2022), the Court of Federal Claims provided detailed guidance concerning the question of “whether, and under what circumstances, the government may cancel a Federal Acquisition Regulation (“FAR”) part 15 procurement and start over from scratch.” Seventh Dimension, LLC was, as the court put it, “the last offeror standing in this contractor edition of Survivor” after filing multiple successful protests of an Army procurement. However, Seventh Dimension was unable to reap the benefits of its hard-fought success because the agency ultimately “decided to pull the plug on the show, cancelling the procurement following a two-year process.” Seventh Dimension challenged the agency’s cancellation decision as arbitrary and capricious, and the Court of Federal Claims agreed.
Continue Reading When can the government cancel a solicitation? 5 things contractors need to know.
Contractors are well aware that they cannot rely on the apparent authority of government officials. Under Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947), only an authorized contracting officer may bind the government. But what about the apparent authority of contractor representatives? That was the question presented for consideration in Aspen Consulting,
The Court of Federal Claims (CoFC) recently held that an offeror was not obligated to inform the agency of staffing changes, affecting its key personnel, that occurred following its proposal submission. This new CoFC decision conflicts with longstanding GAO precedent.
Key personnel are often a significant part of proposals and can greatly increase or diminish
In June 2007, the U.S. Court of Appeals for the Federal Circuit held that a party who fails to object to patent errors in a solicitation before the conclusion of the bidding process waives those objections. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007). Commonly, referred to as Blue & Gold, this decision warned contractors that challenges to the terms of a solicitation must be brought early or risk being lost forever. Blue & Gold was further solidified in 2015 in Bannum. Bannum held that “mere notice of dissatisfaction or objection is insufficient to preserve [a] defective-solicitation challenge.” Bannum, Inc. v. United States, 779 F.3d 1376 (Fed. Cir. 2015). In Bannum the protester’s failure to formally protest the solicitation resulted in a waiver of those challenges. Id. The court indicated that a formal challenge would have likely preserved the protester’s post-award challenges, Id., but this was not solidified until now.
Continue Reading Escaping Blue & Gold: Court holds filing a pre-award agency-level protest preserved protester’s arguments
Bias is a frequent bid protest argument, but it is often unsuccessful because government officials are presumed to act in good faith. To overcome that presumption, a protester must provide “convincing proof” of the alleged bias. A protester cannot rely on inference or supposition alone as evidence of a government official’s unfair or prejudicial motives.
Continue Reading Proving Bias in a Bid Protest
Contractors interested in contracts with the Federal Aviation Administration (FAA) should be aware that FAA bid protests are different from protests involving other federal agencies. The FAA’s Office of Dispute Resolution for Acquisition has exclusive jurisdiction to resolve protests involving FAA procurements. Protest proceedings at ODRA are different from those at the Government Accountability Office and the Court of Federal Claims.
Continue Reading The Seven Unique Features of a Protest Challenging an FAA Procurement
Last week the Army awarded Microsoft the Integrated Visual Augmentation System (IVAS) contract, a potentially $21 billion undertaking by the Army to develop next-generation night vision and “situational awareness capabilities” in a Heads Up Display. Unlike Microsoft’s last multi-billion dollar contract award, the Joint Enterprise Defense Infrastructure (JEDI), which is still pending before the Court of Federal Claims more than a year after Amazon filed its bid protest challenging the award in November 2019, IVAS is unlikely to experience the same fate. Why? Because IVAS was awarded under the Army’s Other Transaction authority (OTA) and is not subject to the same FAR rules as the JEDI contract.
Continue Reading The Army’s Newest $21 Billion Contract Is Not Your Typical Government Contract
The automatic stay of award is one of the key elements of a bid protest under the Competition in Contracting Act. The CICA stay is only available when a protest is filed no later than ten days after contract award or no later than five days after a debriefing. In the 2018 NDAA (Section 818), Congress introduced the enhanced debriefing process for DoD procurements. It allows disappointed offerors to submit follow-up questions within two business days after a debriefing. It also extends the protest deadline until those questions are answered. But what if the contractor does not have any additional questions? Does the two-day period to submit questions extend the protest deadline for purposes of the CICA stay?
The Federal Circuit answered this question in NIKA Technologies, Inc. v. United States, Case No. 2020-1924 (Feb. 4, 2021). If a contractor does not submit follow-up questions after a debriefing, it does not get the benefit of the two-day question period for purposes of the CICA stay.
Continue Reading When must you protest to get an automatic stay after an enhanced debriefing?
In order to bring a bid protest in the Court of Federal Claims, you must have standing. To win the protest, you have to show prejudice. Although distinct, these two requirements are related and often confused. The Federal Circuit’s decision in American Relocation Connections, L.L.C. v. United States, No. 2019-1245 (Fed. Cir. Oct 2019), explains the difference between the “standing” needed to bring a bid protest and the “prejudice” needed to win.
Standing involves the threshold legal question of whether the protester has alleged a sufficiently direct economic interest to bring the case. It operates as a limit on the universe of plaintiffs eligible to file a protest. A protester has standing to challenge the award of a federal contract in the Court of Federal Claims only if it was an actual bidder or offeror that had a “substantial chance” of winning the contract. For pre-award protests, only a prospective offeror that would suffer a “nontrivial competitive injury” has standing to protest.
Unlike standing, “prejudice” is the ultimate factual question of whether the protester was actually harmed by a procurement error. Establishing prejudice is an element of the protester’s burden of proof. Without it, the protest will fail.
Continue Reading The difference between standing and prejudice in a federal bid protest