Often contractors will protest an award, then learn that the contract at issue was cancelled by the government due to corrective action. When that occurs, contractors of course feel as if their concerns were not resolved, or the protested other parties were let off the proverbial hook. The U.S. Court of Federal Claims recently explained that if that happens, there is no procurement left to protest, even if there are related research and development projects or actions continuing within the Government.
In Advanced Simulation Technology Inc. v. The United States, 173 Fed. Cl. 587 (Nov. 4, 2024), the U.S. Court of Federal Claims (COFC) heard a bid protest in which a protested procurement saw its contract and orders cancelled due to corrective action, but the protester wanted to continue protesting.
In this case, there was a Department of Defense procurement for improvements to its Digital Radio Management System (DRMS). Under that procurement, an IDIQ sole-source contract was awarded to a contractor named Bowhead. There were two delivery orders issued to Bowman under that IDIQ contract. In relation to this award, contractor ATSi filed a bid protest. During that process, the government took corrective action, cancelling the contract, initially leaving in place the delivery orders. Later, the Government cancelled these delivery orders as well. The Government subsequently moved (i.e., asked) the COFC to dismiss the remaining claims of ATSi. In response, ATSI asked to amend its complaint or move its protest to another court (essentially trying to keep a protest going).
A key point is that during all this the Government continued to conduct research and development related to DRMS. ATSi argued that this R&D effort “established the requisite connection to a procurement or proposed procurement.” Basically, ATSi argued the R&D efforts show that the procurement need continues or is tantamount to a proposed procurement. Therefore, they have a procurement to protest. The COFC noted that this R&D has been going on for over twenty years, with no RFIs or solicitations issued. Thus, any choice by the Government to continue R&D efforts “does not amount to a procurement that is ripe for a bid protest.” The COFC stated that “there is no concrete evidence that the government has bought any products, intends to solicit any goods or services, or otherwise has undertaken any concrete procurement actions.” R&D is not the same as a protest-able procurement.
COFC also made it clear that believing that the Government will want to buy a product from a protested contractor, is not enough to file a bid protest. Anticipation is not enough, especially when there is no procurement. ATSi argued this, and the COFC held that it is unclear if such a bid protest based on anticipated award (with no procurement) would be a pre-bid or post-award protest. Even if a contractor believes that the Government has “made the decision to develop” or taken the initial steps of preparing a solicitation, that is not enough for a bid protest. In fact, the COFC notes that “even if the government issues a new solicitation, the court cannot assume that the resolicitation will incorporate the same statutory violations” alleged in the previous bid protest(s). Simply put, without a contract or solicitation at issue, there is not much for the COFC to look at or do, even if a contractor feels the wheels are in motion for a subsequent award.
Finally, ATSi tried to argue that the Government’s use of outside contractors to help develop DRMS is enough to be a protest-able procurement. ATSi pointed to an outside contractor posting a job announcement for DRMS engineers, and the Government’s award to an outside contractor (Bowman) which ATSi protested as evidence that a procurement is present. The COFC found this argument as “too vague” to support a complaint and protest. If a contractor feels there is something to be protested about hiring staff outside the protested contract, it would need to file a separate protest related to that hiring. That way the contractors involved could be given the opportunity to intervene. So, there needs to be a procurement, not simply a job posting, to protest, and then it would need to be a protest in which that other contractor may participate.
The COFC’s ruling basically boils down to one thing: without a current procurement or contract, you likely can’t file a bid protest. There could be actions taken by the government related to a procurement contractors expect, outside contractors doing some associated work, and even cancelled contracts, but without that procurement or contract present, there likely is no bid protest to be pursued. Of course, there could be other issues at play that are appropriate for other actions, but those often are handled via different avenues than a bid protest. If you are considering a bid protest, to avoid wasting your time prematurely (or after the fact), be sure to check for a procurement or contract at issue, and reach out to Federal government contract attorneys, such as ourselves. Then these pitfalls can be spotted, and costly litigation, without a satisfactory conclusion potentially avoided.
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