The U.S. Court of Appeals for the Federal Circuit in a recent case decided the issue of agency corrective action and how it impacts the pre-award decision and post-award decision process. In this case, the appellant appealed the Court of Federal Claim’s decision that the United States Transportation Command decision to take corrective action was reasonable. This set the post-award bid protest up for dismissal. When appealing to the Federal Circuit Court of Appeals, the appellant claimed that the agency’s decision to take corrective action was unnecessary and there prejudiced the contractor.
In order to challenge the agency’s corrective action, a contractor must first show that its initial proposal met all of the solicitation’s requirements at that it should have been awarded the contract as opposed to the awardee.
In making its decision, the U.S. Court of Appeals for the Federal Circuit first decided if the US Court of Federal Claims decision to dismiss the post-award bid protest decision as moot was correct. The Claims Court’s decision ultimately led to a denial on the motion for judgment on the administrative record. The Federal Circuit Court found that the Claims Court was correct.
The record showed that the appellant’s proposal did not satisfy the initial proposal requirements. The agency found that certain aspects of the appellant’s proposals were technically deficient. The legal analysis first sought out whether the proposal could withstand the agency decision.
- If the initial proposal does not meet the solicitation’s requirements, challenging the agency’s corrective action on appeal will more than likely fail.
- The mistake here failed to deal with the preliminary matter.
Can a Government Contracting Agency Reevaluate Proposals?
The U.S. Court of Appeals for the Federal Circuit said yes. The Federal Circuit Courtt of Appeals found that agencies are “allowed the discretion to review their own conclusions if they conclude a mistake has been made, or if further inquiry appears appropriate, provided the re-evaluation conforms with the solicitation, including any modifications to the solicitation and the evaluation process is conducted in a manner fair to all offerors.” Citing Glenn Def. Marine (Asia), PTE Ltd. v. United States, 105 Fed. Cl. 541, 569 (2012); and ManTech Telecomm. & Info. Sys. Corp. v .United States, 49 Fed. Cl. 57, 71 (2002) (“[I]n a negotiated procurement, [if] an offeror’s proposal does not comply with the solicitation’s requirements, an agency is not required to eliminate the awardee from the competition, but may permit it to correct its proposal” (internal quotation marks and citation omitted)). See Standard of Review when appealing a case to the Fed Circuit Court.
Bid Protest Relief When an Agency is Taking Corrective Action
One important piece of information that government contractors should take from the Court’s decision is that “[I]f an event occurs while a case is pending . . . that makes it impossible for the court to grant any effectual relief whatever . . . , the [case] must be dismissed.” Citing Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal quotation marks and citation omitted). The Federal Circuit found that the agency’s corrective action “extinguished the existing controversy.”
- This was the underlying basis for the appellate court’s decision that the Court of Federal Claims’ bid protest decision was correct.
Procedural Pitfalls at the U.S. Federal Circuit Court of Appeals
When appealing a bid protest decision from the US Court of Federal Claims to the U.S. Court of Appeals for the Federal Circuit, attorneys should also consider the procedural aspects of the agency decision. The standard for appeal is to show how the Claims Court erred. Sometimes, it is not only the judge’s decision but the case also turns on what the agency was allowed to do by regulations.
Here, the appellant based its appeal with the assumption that the agency’s corrective action decision was unnecessary but failed to make the argument that its proposal submission met the initial solicitation requirements. Without a thorough analysis, appeal the Claims Court’s decision to the Federal Circuit Court of Appeals can be dangerous.
For help appealing a bid protest decision to the US Court of Appeals for the Federal Circuit from the Court of Federal Claims, call the bid protest attorneys at Watson & Associates, LLC. Free Initial Consultation. 1-866-601-5518.