Bid protests

Army Lawyer, Jan, 2007 by Mark A. Ries

The COFC determined that agency overrides based on a best interests determination are reviewable by the court. (157) The DISA justified its override of the stay based on both the best interests provision and the urgent and compelling provision of the CICA. (158) The government argued to the COFC that an agency override decision based on the best interests provision is not reviewable by the COFC, except in very limited circumstances. (159) This argument is based on language from a 1988 case in the District Court for the District of Columbia. (160) The COFC noted that, although this argument has not been adopted by the COFC, the government continues to press the issue because the CAFC has not directly answered the question. (161)

The COFC found that the DISA had justified that the override because the record supported the determination that both the best interests and the urgent and compelling provisions were satisfied. (162) The DoD requires ever-increasing dedicated spectrum to support its network-centric warfare. (163) The record established that various international governmental and commercial conferences and working groups were meeting to negotiate spectrum allocation. (164) These meetings, well beyond the control of the DoD or federal government, made the need for the subject contract time sensitive. (165) Finally, the DISA justified that continued contract performance was the only solution; the contract was for new work, so no incumbent contract could be temporarily extended to perform the time sensitive mission, and AES was the only offeror with adequate staffing to fulfill the contract. (166) For these reasons, the COFC upheld the override. (167)

Override Decision Arbitrary and Capricious

CIGNA Government Services, LLC protested to the GAO the award of a Medicare claims administration services contract awarded by the Department of Health and Human Services Centers for Medicare and Medicaid Services (CMS). (168) The CMS overrode the CICA stay based on the best interests provision of the CICA. (169) The COFC reinstated the stay because the CMS override decision contradicted evidence in the record and failed to consider relevant factors. (170)

The CMS justified the override in this case by claiming that the CICA stay would delay the implementation of the new Medicare claims system. (171) The COFC did not find this argument compelling because the CMS reported to Congress that "it had 'flexibility' in its procurement schedule which could accommodate 'any unforeseen changes in the marketplace or legislative environment' and still enable CMS to meet the Congressionally-mandated implementation date of 2011 for the new contracts." (172) The COFC rejected the CMS attempt to assert flexibility when reporting to Congress and claim a "need to maintain its 'tight schedule'" when overriding the CICA stay. (173)

The COFC also rejected the CMS override because the CMS failed to consider relevant factors in making its override determination. (174) First, the CMS failed to consider the risks involved if the GAO were to sustain the protest. (175) No mention was made in the override decision addressing the possible costs involved if the GAO recommended that the CMS re-compete the contract. (176) The CMS also failed to evaluate the harm to CMS if the stay remained in place; rather, the CMS simply asserted that the harm outweighed the CICA stay mandate. (177) Finally, the CMS failed to consider the effect the override would have on competition. (178) For these reasons, the COFC reinstated the stay. (179)