Agencies May Evaluate Proposals During GAO Protests, Says Court

A procuring agency was entitled to evaluate proposals during the course of a pre-award GAO bid protest without violating the automatic stay provision of the Competition in Contracting Act.

According to a recent federal court decision, CICA merely prohibits the award of a contract during the course of a GAO protest, but does not prevent an agency from continuing to evaluate proposals.

The decision of the U.S. Court of Federal Claims in Caddell Construction Co., LLC v. United States, Nos. 15-135 C & 15-136 C (2015) involved a State Department solicitation to construct embassy facilities in Mozambique.  Caddell Construction Co., Inc. filed two pre-award GAO protests challenging the pre-qualification of two of its competitors.

While the GAO was in the process of evaluating the protests, Caddell learned that the agency was continuing to evaluate proposals while it awaited the GAO’s decisions.  Caddell filed an action in the Court of Federal Claims, arguing that the agency was violating the CICA automatic stay provision.

With respect to pre-award GAO protests, CICA states that unless the agency overrides the stay in accordance with the law “a contract may not be awarded in any procurement after the Federal agency has received notice of a protest with respect to such procurement from the Comptroller General and while the protest is pending.”  Overrides, which must be authorized by the head of the procuring agency, are infrequent.  The agency did not override the automatic stay in the Caddell GAO protests.

The Court of Federal Claims wrote that it would only have jurisdiction to hear Caddell’s protest if Caddell had sufficiently alleged a CICA violation.  However, CICA only prohibits an “award” during the pendency of a GAO protest, and Caddell “does not allege either that the government has issued an award letter here, or that one has been delivered to any of the bidders.”  The Court continued:

Perhaps an intention to award the contract would be sufficient to establish jurisdiction under some set of circumstances, but plaintiff has not alleged any facts to support its allegation of the government’s intent beyond the agency’s statement that the solicitation would continue. Relying solely on this statement is problematic, because plaintiff has not demonstrated that continuing solicitation activities is the same as issuing an award letter. The court views these as distinct steps in the contracting process, and [CICA] is unambiguous in prohibiting only the final step of awarding a contract. 

The Court dismissed Caddell’s protest.

The CICA automatic stay is an important consideration for many protesters, including pre-award protesters like Caddell.  But while agencies have the option of suspending proposal evaluations during the course of a pre-award protest, they need not do so.  As the Caddell Construction case demonstrates, CICA merely requires that the agency hold off on award until the GAO reaches its decision–nothing more.

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