Bid protests

Army Lawyer, Jan, 2007 by Mark A. Ries

In this case, the agency contacted ECI Northeast requesting confirmation and evidence that ECI Northeast met the responsibility criteria. (69) ECI Northeast replied with information regarding projects completed by Environmental Contractors of Illinois (ECI), ECI Northeast's parent company. (70) The agency accepted ECI's experience as valid for ECI Northeast. (71) "As a general rule, the experience of a technically qualified subcontractor or third party--such as an affiliate or consultant--may be used to satisfy definitive responsibility criteria relating to experience for a prospective prime contractor." (72) The key determination ordinarily turns on the existence and evidence of a commitment by the third party to the prime contractor. (73)

The administrative record did not show any evidence of a commitment by ECI to ECI Northeast's performance of the contract. (74) ECI and ECI Northeast are separate business entities, and nothing supported the agency determination that ECI Northeast met the affirmative responsibility criteria. (75) The GAO recommended that the agency reconsider the responsibility determination. (76) The GAO also recommended that the agency reimburse the protester the costs of filing and pursuing the protest. (77)

Timeliness

Court of Federal Claims

The COFC, in Transatlantic Lines LLC v. United States, (78) rejected the government's motion to dismiss a protest regarding the terms of a solicitation filed after the due date for receipt of proposals. (79) This post-award bid protest involved a Military Surface Deployment and Distribution Command request for proposals to transport cargo between Florida and Guantanamo Bay. (80) The GAO dismissed the protest as untimely; (81) the COFC declined to follow the GAO protest timelines and considered the protest on the merits. (82)

This case appears to continue a trend that the COFC is moving further away from the GAO timelines in bid protest actions. In 1994, the COFC addressed a protest complaining of solicitation defects filed after proposal due date, stating, "[w]hile this Court declines to accept [the GAO protest regulation] as controlling in all cases, the defendant persuasively demonstrates the utility of the GAO rule in the bid protest arena." (83)

In a 1999 case, the COFC stated that it "generally has endorsed the GAO's jurisprudence which dismisses a bid protest in which the protester failed to seek to clarify ambiguities or inconsistencies in the solicitation prior to the award of the contract." (84) However, in the same case, the COFC recognized that "it appears that this court has followed GAO's timeliness rule when the plaintiff's protest is founded upon alleged defects in the solicitation, but it has eschewed GAO's rule when the plaintiff has asserted a procurement violation." (85)

The COFC effectively distanced itself from the GAO timeliness regulations in a 2003 case. (86) The court stated, "this court, with all due respect, fails to see how a GAO rule that self-limits that agency's advisory role constitutes a limit, either legally or prudentially, on this court's exercise of jurisdiction." (87) Rather, the court determined that protest actions should be addressed under the same rules as other cases: protester delay in bringing the complaint to the court will be considered as part of the "multi-factored analysis of whether injunctive relief is warranted." (88)