Strange, But True: Contractor Protests Its Own Award

Here’s one you don’t see every day: a contractor, complaining that the government was unfairly holding it to outdated pricing, attempted to protest its own award.

No dice, according to the U.S. Court of Federal Claims, which dismissed the protest on jurisdictional grounds.

The Court’s decision in Trailboss Enterprises, Inc. v. United States,No. 13-296C (2013) involved an Air Force solicitation for aircraft servicing.  The Air Force issued the solicitation on June 30, 2012, and specified that September 21, 2012 was the deadline for receipt of proposals.  The solicitation required offerors to hold their pricing firm for 90 calendar days after the September 21 deadline.

On November 14, the Air Force awarded the contract to Trailboss.  However, a competitor filed a bid protest, leading to a stop work order.  On January 14, 2013, the Air Force agreed to take corrective action in response to the protest.  Shortly thereafter, Trailboss informed the Air Force that the pricing contained in its initial offer was no longer valid because 90 days had passed.

The Air Force responded by informing Trailboss that it intended to retain the award and hold Trailboss to its September 2012 pricing.  Before Trailboss could begin performance, another GAO protest was filed and the Air Force again issued a stop work order.  Trailboss then filed a bid protest in the Court against its own award, seeking to enjoin the Air Force from compelling Trailboss to perform at the September 2012 prices.

The Court wrote that “as the contract awardee, Trailboss cannot establish subject matter jurisdiction . . . because it does not have standing as an ‘interested party’ under the court’s bid protest jurisdiction.”  Citing federal statute, the Court continued, “[t]o meet the ‘interested party’ standard for standing . . . the plaintiff must be an ‘actual or prospective bidder’ and demonstrate that it possess a direct economic interest in the contract award.”

The Court explained, “[w]here the plaintiff is the awardee of the contract, however, it no longer has standing . . . for the purposes of challenging the terms of the award.  Rather, once awarded a contract, objections to the price terms of the contract are matters of contract administration which are properly brought as claims pursuant to this court’s [Contract Disputes Act] jurisdiction . . ..”

Unfortunately for Trailboss, after the Court decided that it lacked jurisdiction to hear the matter as a bid protest, it also held that it could not decide the matter under the Contract Disputes Act because Trailboss had not yet complied with the mandatory provision that a CDA claimant first obtain a Contracting Officer’s written decision on the claim.  The Court dismissed Trailboss’s protest for lack of jurisdiction.

One can understand Trailboss’s belief that the Air Force’s action was unfair, and as the Court pointed out, Trailboss was not without legal avenues to pursue its claim.  However, the Court was quite clear: as the contract awardee, you can’t protest yourself.

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