I Fought the Law, and the Law Won? Standing Issues Prevent Claim of Agency’s Rulebreaking

As we discussed in July 2017, Timberline Helicopters, Inc. has been involved in ongoing litigation regarding the Department of the Interior, Bureau of Land Management’s (a.k.a. “BLM”) procurement of helicopter flight services to aid in fire-fighting and fire-suppression missions, services essential now more than ever.

Most recently, in Timberline Helicopters, Inc. v. United States, No. 18-1474C (Fed. Cl. Nov. 14, 2018), the Court of Federal Claims held that Timberline no longer had standing to bring its claims.

To briefly recap, Timberline initially protested the terms of the BLM’s solicitation because the Bureau did not intend to ensure the Department of the Interior issued a public aircraft operation (or “PAO”) permit related to the transportation of firefighters, as required by Federal Aviation Administration regulations. Because it believed the BLM was not complying with the FAA rules, Timberline did not submit a bid, but protested the terms of the solicitation instead. GAO rejected Timberline’s initial protest, and a post award protest, concluding that the BLM reasonably relied on the advice of the Boise, Idaho FAA Flight Standards District Office when it issued its solicitation.

In July 2018, however, long after the contract was awarded and performance started, the FAA’s Office of the Chief Counsel in Washington, D.C. confirmed Timberline’s allegations in a notice to the Department of the Interior: the opinion of the FAA District Office was incorrect. Rather than follow up with Timberline, the BLM ensured that the required PAO permit was granted to the contract’s awardee and sought to continue performance.

Timberline, likely uttering “we told you so!”, then filed a protest at the Court of Federal Claims after the PAO permit was granted, arguing the Bureau should have recompeted the contract, giving Timberline an opportunity to bid, instead of simply granting the permit to the initial awardee.

While Timberline was, in the end, correct in its allegations that the BLM was not complying with FAA regulations, the Court denied Timberline’s claim for lack of standing. First, the Court determined that because Timberline had never actually been a prospective offeror, it could not be an “interested party” as required by 28 U.S.C. § 1491(b)(1).

The Court also pointed out that Timberline was too late to file a claim with the Court because it had been more than a year since GAO rendered its decision. If Timberline had filed immediately after losing at GAO, the Court stated, “the Justice Department would have likely immediately sought the views of the FAA’s Office of the Chief Counsel [and] Timberline potentially could have secured relief before [BLM] awarded the contract.”

Finally, the Court determined that recompetition of the procurement was not necessary because Timberline had never offered a proposal on the underlying contract and was therefore not deprived of any opportunity to compete on the procurement.

What can we learn from this case? First, don’t forget about standing rules. Even if your argument is sound, you still have to meet the threshold requirements to file. Additionally, don’t wait to file in the Court of Federal Claims after losing at GAO if you think you have a valid claim. Waiting may cost you your shot at success, so call us if you need a hand!