Losing an award can be quite tough, especially when you are the incumbent on the preceding related contract. Often, a salve for an incumbent contractor’s pain can be a bid protest which may result in a bridge contract to that incumbent for the period of the protest. This actually was a fairly common practice for many years in federal contracting. Consequently, many contractors have interpreted such an incumbent bridge contract as a requirement, not simply a course of dealing. However, the United States Court of Federal Claims has highlighted the harsh reality that the incumbent is absolutely not guaranteed a bridge contract after a bid protest, and the agency may take other actions with the named awardee without violating the stay’s requirements.
As our readers may be aware, the FAR implements the Competition in Contracting Act’s (“CICA”) stay of performance when a bid protest is filed at GAO (we mention it in this blog post in the context of pre-award protests).
Under FAR 33.104(b) and (c) a pre-award protest may prevent an award decision being made and a post-award protest “shall immediately suspend performance or terminate the awarded contract.” Of course, there are rules about when these protests are filed which will trigger this stay, and there are ways for the agency to override such a stay. But in general, overriding a CICA stay is quite complicated and most protests are filed within the specified times. So, agencies will almost always implement the CICA stay of award or performance upon a protest being timely filed within the rules. What an agency will typically do in that situation is issue a quick bridge contract to a contractor to perform the work the contract covers until such time the GAO bid protest is over. Routinely, these short bridge contracts would be awarded to the contractor already doing the work, the incumbent. But, as noted in Tribal Health, LLC v. United States, 179 Fed. Cl. 182 (2025), there is no real requirement to give that bridge contract to the incumbent contractor, nor is it a violation of the CICA stay to award a bridge contract to the named awardee in the bid protest.
In Tribal Health, there was an IDIQ contract “to provide emergency department management and staffing services to rural hospitals in the Great Plains Area” held by both Tribal Health and eventual awardee Prime Physicians. Tribal Health had a task order under that contract which then expired and a new sole-source task order was awarded to Prime Physicians. Tribal Health timely filed a GAO Bid Protest of that task order award, triggering the CICA stay. The agency issued a stop work order to Prime Physicians for that awarded task order. But the Agency also awarded a bridge task order, with defined end dates, to a joint venture involving Prime Physicians called Prime Physicians TRI Providers LLC (“Prime TRI”) under a separate amended IDIQ contract. Tribal Health protested this separate contracting action at COFC arguing it was a de facto override of the CICA stay (Note: You cannot protest CICA stay issues at GAO, so COFC is where a contractor may protest issues surrounding a CICA stay).
The main question was whether performance under that separate bridge task order is the same as performing the stayed task order, thus acting as a a “de facto override of the CICA stay. ” As noted by COFC, “CICA generally prohibits contract ‘performance and related activities’ while a protest is pending at the GAO” and a purpose of the stay provision is to “preserve the status quo during the pendency of the protest so that an agency would not cavalierly disregard the GAO’s recommendation to cancel the challenged award.” Tribal Health argued that this separate task order to Prime TRI, a joint venture involving the awardee, under a separate IDIQ was the agency trying to “circumvent the stay in such a blatant manner” which “render[s] CICA’s stay provisions toothless.”
The COFC disagreed with Tribal Health holding that this type of contracting action is not a violation of the CICA’s stay provisions and incumbents are not guaranteed bridge contracts upon a bid protest.
The COFC explained that Tribal Health “fundamentally misunderstands the purpose of the CICA stay.” The stay is intended to simply hold the status quo of a contract during a bid protest, not the status quo of a contractor (i.e., what happens to a contractor is not as important as whether the specific contract at issue is basically frozen in time). The COFC minces no words, stating “the incumbent has no right to receive a bridge contract” because if this were true, unsuccessful incumbents could guarantee work by simply filing GAO bid protests, which is “plainly not the law.” (emphasis added). The COFC also cited to previous cases in which such “de facto” override of the CICA stay arguments were rejected, even when an agency awards the bridge contract to the same contractor who was named awardee in the protested contract. The final nail in the proverbial coffin for Tribal Health’s arguments, was COFC writing: “Because CICA would permit the agency to award the bridge task order directly to Prime Physicians, CICA surely permits the agency to award it to Prime TRI [awardee’s Joint Venture].” Of note, throughout the discussion it appeared COFC put weight into the fact that there was a set end-date on the separate bridge sole-source task order. The Agency also stated to the COFC that any performance by Prime TRI on the separate bridge sole-source task order would not prevent the Agency from following GAO’s eventual decision, as a transition of the protested contract would be required if eventual award was made to Prime Physicians or Tribal Health.
This case really drives home the dangers of relying on the old adage of “well we have always done it this way.” Just because in the past bridge contracts under a CICA stay would traditionally be given to the incumbent contractor doesn’t mean this was a requirement. The COFC here has made it explicitly clear that incumbents are not obligated to receive a bridge contract when there is a CICA stay due to a bid protest. Also, COFC has affirmed that the agency could award a separate contracting action to the named awardee or the awardee’s joint venture as a bridge contract during a bid protest, so long as it isn’t executed under the contracting action at protest and has explicit end dates.
While it can be quite understandably frustrating to lose an award for work you have been performing for quite some time, and even more frustrating to see a bridge contract go to that named awardee you are protesting, the COFC has confirmed that it is not improper. This is quite disappointing to many incumbents, but the door is not completely closed on protesting such bridge contracts used to get around a CICA stay. As noted, the COFC seemed to put quite a lot of weight into the fact that the bridge task order here had defined end points, and would not effect the possibility of transitioning the protested contract to any party. So, there is the possibility, while quite rare, that such sole-source bridge contracts could still be seen as a de facto violation of a CICA stay. That would be a situation that would need its own case at the COFC (and likely another of our blog posts) to fully determine. Of course, as with any litigation matters, these situations can be very fact specific. So, if you find yourself in the position of any of the contractors in this case, be sure to reach out to a federal contracting lawyer, such as ourselves, for assistance.
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