Tag: Court of Federal Claims

Relief Requested: What the Federal Circuit’s CACI-Federal Decision Means for Your Bid Protest beyond Standing

Stephanie M. Harden ●

The primary holding of the Federal Circuit’s May 2023 decision in CACI, Inc.-Federal v. United States (Case No. 2022-1488), is that “statutory standing” is no longer a jurisdictional issue. This means that when considering whether a protester is an “interested party” under the Tucker Act, the Court of Federal Claims (“COFC”) is not required to address statutory standing before the merits.

Although much has been written about this holding, our view is that there will be little or no impact on most bid protests stemming from this particular aspect of the decision, other than perhaps an uptick in denying protests on the merits without first addressing statutory standing.

We think the more interesting part of the decision is its reaffirmance of the Chenery doctrine, and specifically, the Federal Circuit’s direction about which issues must be remanded back to the agency, rather than decided by the COFC in the first instance. Although the Chenery doctrine is not new, the Federal Circuit has now made it clear that the doctrine greatly limits the COFC’s ability to order specific relief where an issue was not previously considered by the agency. On this issue, our takeaway is that CACI-Federal will actually lead to a reduction in the COFC weighing in on certain merits-based issues.

Confused about how Chenery relates to statutory standing? Read on for our analysis.

Continue reading “Relief Requested: What the Federal Circuit’s CACI-Federal Decision Means for Your Bid Protest beyond Standing”

Court of Federal Claims Declines to Adopt GAO’s Rule for Post-Proposal Key Personnel Changes

Elizabeth N. Jochum and Robyn N. Burrows

For years, the Government Accountability Office (“GAO”) has been moving towards an increasingly draconian position on offerors’ obligations to notify agencies when the availability of proposed personnel changes after proposal submission. A recent decision by the Court of Federal Claims (“COFC”) in Golden IT, LLC v. United States expressly addressing and departing from the GAO precedent may give hope to offerors struggling with GAO’s requirement.

Golden IT, LLC (“Golden”) protested the Department of Commerce’s award of a single blanket purchase agreement to Spatial Front, Inc. (“SFI”). Among its many protest grounds, Golden claimed that SFI’s quote contained a material misrepresentation regarding key personnel because it proposed an employee who had allegedly left SFI after it submitted its bid and before receiving award. Golden claimed that SFI was obligated to notify the agency of the individual’s unavailability after submitting its proposal.

Continue reading “Court of Federal Claims Declines to Adopt GAO’s Rule for Post-Proposal Key Personnel Changes”

Is There No Balm in Gilead? The Federal Circuit’s Decision in Dell Federal Systems L.P. v. United States Reinforces Contractors’ Dwindling Options to Effectively Challenge Agency Corrective Action

Michael J. Slattery

Any company that has participated in a federal procurement, and has been involved in subsequent bid protest litigation, is likely familiar with the procuring agency’s ability to take “corrective action.” In a nutshell, “corrective action” refers to a procuring agency’s recognition that it may have committed an error during a procurement, and the agency’s determination that it will take steps to correct this error. Procuring agencies take corrective action in a number of different circumstances.

Perhaps most commonly, procuring agencies take corrective action after the U.S. Government Accountability Office (“GAO”) sustains a protest and recommends that the agency remedy the flaws that GAO has identified in the procurement. Agencies also take corrective action in the context of “outcome prediction” Alternative Dispute Resolution (“ADR”). Pursuant to 4 C.F.R. § 21.10(e), GAO, on its own initiative or upon a request filed by the parties, may use flexible alternative procedures to promptly and fairly resolve a protest, including ADR. Often, when GAO informs a procuring Agency during an ADR conference that GAO is likely to sustain a protest, the procuring Agency will announce that it will take corrective action in order to remedy the procurement errors identified by GAO. See, e.g., Deloitte Consulting, LLC, B-412125.6, Nov. 28, 2016, 2016 U.S. Comp. Gen. LEXIS 348 at *1, *5 (wherein agency took corrective action after GAO sustained a protest). Continue reading “Is There No Balm in Gilead? The Federal Circuit’s Decision in Dell Federal Systems L.P. v. United States Reinforces Contractors’ Dwindling Options to Effectively Challenge Agency Corrective Action”

Critical GAO Bid Protest Deadlines and Timeline

Merle M. DeLancey Jr.

Almost daily, clients call our office seeking to protest the award of a federal government contract. Unfortunately, sometimes these calls are too late. While contracts can be protested at the agency level, the Court of Federal Claims, and the Government Accountability Office (“GAO”), GAO protests are the most common. The deadlines by which a protester must take certain actions to file a timely protest are confusing. Below we address some of the trickier and/or mandatory deadlines a potential protester must meet to file a timely protest, and we provide a useful sample timeline for protesters to follow during this critical process. Continue reading “Critical GAO Bid Protest Deadlines and Timeline”

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