The GAO will not reconsider a bid protest that has been litigated in the Court of Federal Claims and affirmed by the U.S. Court of Appeals for the Federal Circuit.

In a recent bid protest decision, the GAO dismissed a protest challenging the Department of Labor’s decision to set aside two solicitations for small businesses, because the federal courts had already ruled that the set-asides were appropriate.

The GAO’s decision in Adams and Associates, Inc., B-409680, B-409681 (Apr. 22, 2014) involved DOL solicitations for the operation of Job Corps Centers in Massachusetts and Alabama.  The DOL issued both solicitations as small business set-asides.

Adams and Associates, a large business, was the incumbent contractor at both Job Corps Centers.  In 2012, Adams filed two bid protests with the Court of Federal Claims challenging the set-aside determination.  In May 2013, the Court denied Adams’ protests and held that the small business set-aside was appropriate.

Adams appealed the COFC’s decisions to the Court of Appeals for the Federal Circuit.  In January 2014, the CAFC affirmed both COFC decisions.

In March 2014, the DOL issued a notice that it intended to award the Job Corps Center contracts to small businesses.  Adams subsequently filed a protest with the GAO, again complaining that the set-asides were improper.

The GAO held that the protests were untimely solicitation challenges under the GAO’s bid protest regulations.  The GAO also held that “[w]here, as here, a decision by the COFC (including an appeal before the CAFC) constitutes a final adjudication on the merits with respect to the procurement, such a decision bars further reconsideration of those issues by our office.”  In Adams’ case, “because the COFC and CAFC decisions were adjudicated by the COFC and CAFC in the agency’s favor, we will not reconsider Adams’ claims . . ..”  The GAO dismissed the protest.

If the GAO were to decide cases that had already been adjudicated to completion by federal courts, the GAO’s recommendations could essentially overturn the rulings of federal judges–even federal appellate judges like those at the CAFC.  Wisely, the GAO refuses to open that can of worms.  If, like Adams, a protester loses at the COFC and CAFC, it cannot turn to the GAO for relief.