Type: Law Bulletins
Date: 04/27/2015

Ever Wonder What Agencies do While a Pre-Award Protest is Pending?

The Court of Federal Claims recently held that it does not violate the “stay” for agencies to continue to evaluate offers while a pre-award protest is pending. They just can’t make an award. Caddell Construction Co., LLC v. U.S., Nos. 15-135C, 136C (COFC, April 10, 2015).

Plaintiff Caddell Construction Co., LLC filed two pre-award protests at the GAO challenging pre-qualification of two of its competitors, Framaco International, Inc. and Pernix Group, Inc., to compete in a procurement to build an embassy complex in Mozambique. Caddell Construction Company, B-411005.1, B-411005.2. Although the automatic stay had been invoked, the agency continued to evaluate proposals during the stay while the GAO considered these protests.

The plaintiff brought suit before the Court of Federal Claims, arguing the agency’s continued evaluation effort violated the Competition in Contracting Act (“CICA”), particularly the provisions relating to the stays already in place. The court disagreed, relying upon the plain language in the statute:

 (c)(1) Except as provided in paragraph (2) of this subsection, a contract may not be awarded in any procurement after the Federal agency has received notice of a protest with respect to
 such procurement from the Comptroller General and while the protest is pending.

31 U.S.C. 3553(c) (emphasis added).  

In this case, the agency admitted that it had continued its evaluation of offers after filing of the protest but argued it had not violated the stay and, therefore, was not obligated to comply with the CICA override procedures. The Court of Federal Claims agreed with the government, noting that the CICA “is unambiguous in prohibiting only the final step of awarding a contract.”

Offerors who consider filing a pre-award GAO protest should be aware that, although award may not be made during the pendency of the GAO’s decision, the agency is permitted to continue its evaluation of the proposals. While this may raise protesters’ concerns, keep in mind that if the protest is successful, the agency will still be required to take appropriate corrective action. The corrective action may require the agency to disregard any or all of its evaluation efforts during the pendency of the protest. It is for this reason that many agencies do not continue the evaluation process until the protest outcome is known.

Post Script: On April 20, 2015, the GAO sustained both of Caddell’s pre-award protests, finding that the State Department’s evaluation of the proposals (Framaco's and Pernix's) was unreasonable and inconsistent with the Security Act and the RFP; as such, they did not meet the requirements to prequalify for consideration. Guess that agency now wishes it hadn’t wasted its time continuing to evaluate these two offerors’ proposals.

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