Government Contracts Injunctive Relief Did Not Preclude Award of Protester’s Costs
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Monday, September 17, 2018

Injunctive Relief Did Not Preclude Award of Protester’s Costs

By Government Contracts Editorial Staff

A prevailing protester was entitled to both injunctive relief and bid preparation and proposal costs, according to the Court of Federal Claims, because a latently ambiguous solicitation provision induced the protester to prepare and submit a proposal, and a solicitation amendment prevented the protester from competing for the award. The court previously found the protester’s removal from the competitive range and the award of a task order for pharmacy automation equipment were arbitrary, and it enjoined the government from proceeding with the award and making any award without amending the solicitation to clarify the meaning of two requirements (62 CCF ¶81,328).

Unfairly Induced. Although injunctive relief usually restores to a successful protester a substantial chance of award, thereby precluding an award of bid preparation and proposal costs, an award of costs is warranted when injunctive relief fails to fully restore this opportunity. Here, the solicitation was amended to require automated retrieval of prescription images stored in another offeror’s proprietary database. The offeror rejected the protester’s request for permission or a license to access the database. Since the amended solicitation prohibited the manual copying of images, only the other offeror was able to meet the prescription images requirement. The protester was unfairly induced to enter a competition that could not be won without the aid of a competitor. (ARxIUM, Inc. v. U.S., et al., FedCl, 62 CCF ¶81,454).

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