Government Contracts Solicitation Protest Timely, but No Standing
Tuesday, July 9, 2019

Solicitation Protest Timely, but No Standing

By Government Contracts Editorial Staff

Although an awardee’s challenge to the terms of a solicitation for maritime husbanding support services was timely, the Court of Federal Claims dismissed the protest because the awardee was not an interested party with standing. The protester, one of nine awardees of fixed-price, indefinite-delivery, indefinite-quantity contracts, filed an agency-level protest identifying discrepancies between the solicitation’s port tariff provisions and port regulations and requesting revisions to the solicitation. After the government denied the protest following the proposal deadline, the protester filed at the Government Accountability Office, which determined the protest was untimely (33 CGEN ¶115,882). The protester filed a complaint in the CFC nearly four months after the GAO protest was dismissed and approximately two-and-a-half months after it received an award. The protester again alleged the solicitation violated port regulations and prevented the protester from offering its best terms, and it requested declaratory and injunctive relief requiring the government to revise the solicitation.

Objection Timely. Moving to dismiss, the government contended the protest was untimely and the protester waived its protest by failing to “diligently pursue its claims.” However, the protester met the requirement of Blue & Gold Fleet v. U.S. (CA-FC, 51 CCF ¶78,774) to object to a patent solicitation error before the close of bidding. In addition, the protester had not waived its challenge, because it was an actual offeror and its good faith discussions with the government, and hope for a resolution, explained the delay between the dismissal of the GAO protest and its filing in the CFC.

Economic Harm. The government also argued the protester was not an interested party because it was awarded a contract and more than 20 task orders and could only bring claims under the court’s Contract Disputes Act jurisdiction. The court disagreed that there was no possibility of economic harm simply because the protester was an awardee. However, for a contractor to have standing to bring a bid protest, it must demonstrate its claims relate not contract performance, but to a challenge to the underlying solicitation. An awardee may suffer economic harm and have standing if the government resolicited the contract or took corrective action.

No Corrective Action. Here, however, the protester’s agency-level protest did not result in corrective action, and the government made clear corrective action was not warranted. Even if the court found for the protester on the merits, the court could not dictate how the government should revise the solicitation. In addition, as an ongoing contract performer, the protester would have difficulty demonstrating prejudice. Although it was possible that the protester suffered harm because of the uncertainty of the solicitation’s port tariff provisions, the government provided clear direction and the protester could price the certainty in offers for future task orders. Also, because the protester sought cancellation of the solicitation, it would not be the only offeror impacted by corrective action. Despite granting the government’s motion to dismiss, the court was “troubled” by the protester’s factual allegations and the apparent “winking and nodding” between other contractors and port authorities concerning the required services. (MLS-Multinational Logistic Services, Ltd. v. U.S., et al., FedCl, 63 CCF ¶81,678)

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