Got Prejudice? Establishing Prejudice in Bid Protests When No Offerors Are Eligible for Award

• Published in: The Procurement Lawyer Vol. 59; no. 3; pp. 10 - 14
• Main Authors: Jorgensen, C Bradford, Daley, Thomas E, Lackey, David R
• Format: Trade Publication Article
• Language: English
• Published: Chicago American Bar Association 01.04.2024
• Subjects: Accountability; Bids; Competitive advantage; Government contracts; Prejudice; Proposals; United States > US
• ISSN: 1079-073X; 2163-0267

Lacker are members of DLA Piper's Government Contracts practice, where they assist companies with a range of government contract matters, including bid protests before the US Government Accountability Office and the US Court of Federal Claims. "9 G4S Secure Integration (2022) In G4S Secure Integration LLC v. United States,10 the US Department of State (DOS) was procuring security services for the US embassy in Angola on a lowest-price, technically acceptable (LPTA) basis.11 Although DOS received multiple proposals, it found that only the protestor, G4S, and the awardee, CGS-ORSA, submitted technically acceptable proposals.12 DOS awarded the contract to CGS-ORSA based on CGS-ORSA proposing a lower price than G4S.13 G4S filed a protest with the COFC, asserting that CGS-ORSA was ineligible for award because CGS-ORSA did not have an active profile in the System for Award Management (SAM) at the time of proposal submission, as required under Federal Acquisition Regulation (FAR) 52.204-7.14 The COFC agreed with G4S's argument, finding that CGS-ORSAs registration was "in progress" at the time of proposal submission and, therefore, did not meet the requirements of FAR 52.204-7.15 But the COFC determined that G4S failed to demonstrate that DOS's error of awarding the contract to an ineligible offeror was prejudicial because G4S also did not have an active SAM registration at the time of proposal submission.16 The court stated: "18 G4S subsequently appealed the COFC's judgment and moved for an injunction pending appeal, arguing that the COFC erred in upholding an award to an ineligible offeror.19 G4S explained that, during its evaluation, DOS had found that G4S and CGS-ORSA were the only offerors eligible for award in the procurement.20 Further, G4S argued that, as a result of the COFC's decision finding that CGS-ORSA and G4S were both ineligible for award, there were no offerors eligible for award.21 G4S asserted that, rather than upholding the award to an ineligible offeror (i.e., CGS-ORSA), the COFC should have remanded the procurement to DOS, which would have reopened the procurement because none of the offerors in the procurement were eligible for award.22 The COFC again rejected G4S's arguments, stating that there was "no connection" between the agency's failure to properly apply FAR 52.204-7 and the ultimate award decision.23 The COFC asserted that neither CGS-ORSA nor G4S "gained a competitive advantage in the procurement" from DOS's error.24 The COFC also noted that CGS-ORSA and G4S had a "full and equal opportunity to compete for the contract" and that the agency selected CGS-ORSA as the awardee based on its lower price.25 The COFC, therefore, concluded that any error committed by the agency was a harmless error and that G4S had not established prejudice.26 G4S subsequently voluntarily dismissed its appeal of the COFC's judgment.27 Elevated Technologies (2022) The procurement at issue in Elevated Technologies, Inc. v. United States28 was for elevator maintenance and repair services at a medical center operated by the US Department of Veterans Affairs (VA).29 The VA received six quotations, five of which the VA deemed technically unacceptable, including the quote submitted by the protestor, Elevated Technologies, Inc. Elevated Technologies filed a bid protest with the COFC alleging that the VA erred by selecting GreenEf-ficient, Inc., as the awardee.30 The COFC agreed, finding that GreenEfficient acted contrary to the terms of the solicitation by submitting multiple quotations to the VA.31 The COFC stated that the solicitation "contained an express provision mandating that the VA disqualify contractors who submitted multiple offers" and that the VA was required to disqualify GreenEfficient.32 Accordingly, with GreenEfficient disqualified, there would have been no offerors eligible to receive award.33 Regarding prejudice, the COFC stated: CI. 360, 374 (2017).34 Thus, although Elevated Technologies also was ineligible for award, the COFC found that it had been prejudiced by the VA's award of a contract to another ineligible offeror.35 REIX (2023) In RELX, Inc.,36 the US Department of the Air Force (Air Force) issued a solicitation for a software license that would enable its employees to access law enforcement, legal, and legislative content.37 Award was to be made on an LPTA basis.38 The Air Force received two quotations, one from RELX, Inc., d/b/a LexisNex-is (RELX), and one from West Publishing Company (West).39 The Air Force selected West as the LPTA awardee, and RELX filed a protest with GAO, arguing that (1) West did not offer a single platform, as required by the solicitation, and (2) West's quotation improperly included open market items.40 GAO agreed with both arguments and