Bid Protests

Litigation and Counseling. Crowell & Moring has 42 lawyers dedicated to the full time practice of Government Contracts. The firm's bid protest experience is vigorous and extensive. Our attorneys defend and challenge contract awards and solicitations before the agencies, at the Government Accountability Office, in the Court of Federal Claims, and in appeals before the Federal Circuit. In addition, we frequently counsel clients as they respond to solicitations or make unsolicited proposals.

Industry Coverage including State & Local Procurement. The bid protest cases we have pursued are as varied as the items and services the government buys including including telecommunications services, defense systems, IT products and services, and health care. They include a wide range of procurements for defense and civilian agencies, for supply and service contracts, and for thousand-dollar as well as billion-dollar contracts. Services, GSA Schedule Delivery Orders, Privatization and A-76 issues have been the subject of recent representations. In both our California office and the Washington, DC office, we have significant expertise in protests at the state and local level.

Representative Matters:

In United Concordia Companies, Inc. B-404740 (Apr. 27, 2011) and United Concordia Companies, Inc. v. United States, No. 11-276C (July 20, 2011) Crowell & Moring twice successfully defended a contract award to Metropolitan Life Insurance Co. valued at over $3 billion for a comprehensive worldwide dental healthcare insurance program for eligible family members of military personnel. In denying United Concordia's initial protest, GAO found that the agency reasonably considered proposal risk regarding the parties' technical proposals, reasonably evaluated past performance, and was not required to perform a cost realism assessment where such analysis was not provided for in the solicitation. A post-GAO protest filed with the Court of Federal Claims (COFC) alleging many of the same protest grounds was also denied. There the COFC found that the agency reasonably performed a comparative assessment of the technical proposals, conducted a rational past performance evaluation, and did not commit error when it did not require the awardee to submit past performance information for its subcontractor.
In One Largo Metro LLC et al., B-404896 (June 20, 2011), Crowell & Moring, on behalf of King Farm Associates, LLC, successfully protested GSA's award regarding a lease of office space for the Department of Health and Human Services. Agreeing with Crowell & Moring, GAO determined that GSA evaluated one of the technical subfactors in a manner inconsistent with the solicitation and that the Agency's Head of the Contracting Activity failed to meaningfully consider the evaluated differences in the proposals when she disregarded the recommendations of lower-level evaluators.
In Martin Electronics, Inc.; AMTEC Corp., B-404197, et al. (Jan. 19, 2011), Crowell & Moring successfully turned back multiple protests challenging the Army's award to Crowell & Moring's client of a contract worth nearly $80 million to manufacture hand grenades. In denying the protests, GAO agreed with Crowell & Moring, finding that the Army's conduct of discussions and evaluation of proposals were proper, and that the Army correctly did not apply a price evaluation preference for HUBZone small business concerns to non-HUBZone entities.
In DB Consulting Group, Inc., B-401543.2, B-401543.3 (Apr. 28, 2010), Crowell & Moring successfully defended an award valued up to $229 million for information technology services to its client, ASRC Primus, by NASA. GAO denied all of the wide-ranging challenges to NASA's evaluation of the protestor's and ASRC Primus' proposals on price, technical, and past performance grounds, and to the agency's conduct of discussions.
In Sulzer Pumps (US), Inc., B-402503 (Mar. 18, 2010), Crowell & Moring aggressively defended a Department of Interior award to its client, Moving Water Industries, by obtaining summary dismissal of the protest. In doing so, Crowell & Moring convinced GAO that the protester's challenge could be decided on the face of the solicitation and without the need for the agency record. Based on review of only the solicitation, GAO dismissed the protest, finding that it contained a minimum requirement that the protester indisputably failed to meet, and as a result, the agency reasonably rejected the protester's proposal.
In DME Corporation, B-401924, B-401924.2 (Dec. 22, 2009), Crowell & Moring successfully defended a United States Marine Corps award of a $76 million contract for the latest generation of advanced test equipment. GAO addressed the novel issue of the intersection between the Procurement Integrity Act and allegations of improper access to proprietary information (i.e., alleged industrial espionage) arising out of one competitor hiring another competitor's employee. In dismissing the protester's Procurement Integrity Act protest, GAO held that the protester knew about the alleged breach of its proprietary information, but failed to give prompt notice to the agency, thus rendering its protest untimely. GAO had not previously decided this issue in the context of the mobility of competitors' employees, thus resolving an issue of widespread interest within industry.
Crowell & Moring, on behalf of Health Net Federal Services, LLC, prevailed in the protest of the award of a contract for managed health care services for military dependents and retirees, valued in excess of $16 billion. Health Net Fed. Servs., LLC, B-401652.3, B-401652.5 (Nov. 4, 2009). GAO sustained the protest on multiple grounds, including faulty past performance, price realism, and proposal risk evaluations by the agency as well as the appearance of impropriety based on unfair competitive advantage associated with the employment by the awardee of a former government official.
In General Dynamics-Ordnance & Tactical Systems, B-401658 (Oct. 26, 2009), Crowell & Moring successfully defended the award of an Army contract for mortar cartridge propelling charges to a lower-rated, lower-priced offeror. In doing so, Crowell & Moring successfully demonstrated that the Army's discussions were not unequal, that the Army's price evaluation was proper and that the Army's tradeoff decision was adequately supported by the record.
In Frank A. Bloomer-Agency Tender Official, B-401482.2 (Oct. 19, 2009), Crowell & Moring successfully represented the Designated Employee Agent as an intervenor to assist the Agency Tender Official ("ATO") in his protest contesting the Army's choice to contract public work functions at West Point to a private company after a public-private competition pursuant to OMB Circular A-76. Specifically, Crowell & Moring worked with the ATO to demonstrate that the private offeror's claims of greater efficiency were unsupported by the record, that the agency inappropriately allowed the private offeror to omit certain labor costs, and that the private offeror's revised fringe benefits ratios were unreasonably accepted by the Army.
In Public Communications Services, Inc., B-400058, Jul. 18, 2008, GAO sustained a protest brought by Crowell & Moring that challenged the award of a contract for detainee telephone services by the Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("ICE"). Regarding the agency's price evaluation, GAO found that the agency had deviated from the solicitation in evaluating international calling rates and had further committed two errors in calculating total evaluated prices, the correction of which left PCS with a lower proposed price than the awardee. GAO also determined that the technical evaluation was irrational because ICE had assessed deficiencies against PCS based on unstated evaluation criteria and unequal treatment. In a separate decision, GAO awarded attorney's fees and costs to PCS, a small business, rejecting the agency's arguments that the legal fees incurred were excessive. Public Communications Services, Inc. -- Costs, B-400058.4, June 25, 2009.
In ASRC Research & Technology Solutions, LLC, B-400217, Aug. 21, 2008, 2008 CPD ¶ 202, GAO found in favor of Crowell & Moring's client, ARTS, who had challenged NASA's award of a $200 million contract for support services. After NASA reevaluated the bidders, the agency awarded the contract to ARTS. The disappointed bidder then challenged the award in the Court of Federal Claims, where Crowell & Moring successfully defended the award to ARTS. SP Systems, Inc. v. U.S., 2009 WL 484590 (Fed. Cl. Feb. 11, 2009).
In Raytheon Co. - Integrated Defense Systems, B-400610, B-400618, B-400619 (Dec. 22, 2008), Crowell & Moring successfully defended sole source contract awards for the continued development of a sophisticated weapon system.
Crowell & Moring, on behalf of its client, Nortel Government Solutions (NGS), beat back repeated attempts by DEA to award a $78 million IT contract to SRA. NGS protested at GAO after the first award, and during an outcome-prediction conference, GAO stated that NGS' protest would likely be sustained on several grounds, including the agency's failure to identify, evaluate, and/or mitigate a potential impaired objectivity organizational conflict of interest ("OCI"). Nortel Gov't Solutions,Inc., B-299522.1 (unpublished). As a result, DEA elected to take corrective action, and upon reevaluation, DEA once more awarded the contract to SRA. In Nortel Government Solutions, Inc., B-299522.5, Dec. 30, 2008, 2009 CPD ¶ 10, GAO sustained NGS' second protest, finding that DEA had still failed to determine the extent of SRA's OCI and had unreasonably concluded that SRA's mitigation plan was acceptable. On a related note, within days after NGS filed its second GAO protest, DEA decided to override the statutory stay on the performance of the awarded contract. In Nortel Gov't Solutions, Inc. v. United States, 84 Fed. Cl. 243 (2008), the Court held that the agency failed to establish that (1) "urgent and compelling circumstances" justified the override and (2) the override served the "best interests of the United States."
In an unprecedented action, the FAA announced an auction to lease airport landing and takeoff slots to the highest-bidding airline, thus putting at risk the huge investments that airlines had invested in developing hubs in the Northeast area. After the Air Transport Association (ATA), Continental Air Lines, U.S. Airways and others filed protests, the FAA opposed any stay of the slot lease auction. ATA selected Crowell & Moring to prepare the response on behalf of ATA and all other airlines. With a 48-hour turnaround, the protester's brief supporting the stay prevailed. Protests of Air Transport Association, Inc. et al., Docket Nos. 08-ODRA-00452, -453, -454, -455, -456, and -457 Consolidated (Aug. 28, 2008). The GAO subsequently issued a legal opinion, finding the FAA auction to be unauthorized and contrary to the Anti-Deficiency Act. Federal Aviation Administration - Authority to Auction Airport Arrival and Departure Slots and to Retain and Use Auction Proceeds, B-316796 (Sept. 30, 2008).
In AT&T Government Solutions, Inc., B-400216, Aug. 28, 2008, 2008 CPD 170, Crowell & Moring won a protest for its client that established new precedent, recognizing due process rights of contractors to receive notice and an opportunity to respond prior to being excluded for OCIs and mandating that agencies consider OCI mitigation plans prior to excluding offerors from a competition.
In DRS C3 Systems, LLC, B-310825, Feb. 26, 2008, 2008 CPD ¶ 103, GAO sustained a challenge to the Navy's award of a $65 million contract for shipboard displays on past performance grounds in favor of Crowell & Moring's client, DRS. After a two-day hearing, GAO found that the Navy disregarded "extremely adverse" past performance data for the awardee, included "various inaccuracies" in the evaluation findings, failed to consider relevant past performance information, and departed from the evaluation criteria.
After learning of the Army's new $159 million sole-source order to SRCTec, Inc., Pegasus protested that the order should have been subject to competition. GAO held an outcome-prediction conference, during which it stated that it intended to sustain Pegasus' protest against this sole-source order to SRCTec. Pegasus Global Strategic Solutions, LLC, B-400422 (unpublished). As a result, the Army agreed to take corrective action and terminate the noncompetitive order.
In Heritage of America, LLC; Indtai, Inc., B-298432.3, et seq. ( 2007 CPD ¶ 13 ), GAO denied two protests challenging the award of a contract to aXseum Solutions, LLC for the provision of educational support services to the Department of the Army. GAO rejected the protesters' allegations that the agency improperly considered the past performance of proposed subcontractors during its past performance evaluation of aXseum. In addition, the protesters argued that agency should have performed a price realism analysis to ascertain whether there were performance risks associated with aXseum's pricing structure.
In Grunley Walsh Int 'l v. United States, 78 Fed. Cl. 35 (2007), the Court of Federal Claims granted Grunley Walsh's summary judgment motion, holding that the Department of State acted arbitrarily when it adopted a GAO recommendation to reverse its own, longstanding interpretation of the total business volume requirement in the Diplomatic Construction Program statute. The government argued that the Court must defer to State's revised interpretation, but the Court refused to do so, because that would "effectively strip this court of any real review in any case where the agency followed a recommendation of the GAO on an interpretation of a statute or regulation."
In BAE Technical Services Inc.(Oct. 5, 2005), GAO sustained BAE's protest of the Air Force's award of an over $720 million contract for the operation and maintenance of Eglin Test and Training Complex to InDyne, Inc. based in large part on a finding that the Air Force engaged in unequal treatment of the two offerors.
The GAO in BAE Systems Tech. Servs., Inc. (2004 CPD 24, Jan. 28, 2004), directed the Navy to award a contract to the private offeror in an A-76 competition in which the in-house entity failed to comply with, or include costs for, various solicitation requirements. GAO determined that the agency's post-protest attempts to cure the in-house offer's deficiencies were "inappropriate" and damaging to "the integrity of the A-76 process."
After GAO's denial of a protest against a $400 million award for aircrew masks for chemical/biological protection, the Court of Federal Claims took a fresh look and sustained the protest (Gentex v. U.S., 58 Fed. Cl. 634, Dec. 10, 2003) because the Air Force treated the offerors unequally during discussions by allowing one offeror to deviate from mandatory requirements without giving the same opportunity to the protester.
In Southwestern Bell Telephone (2003 CPD 177, Oct. 1, 2003), GAO for the first time exercised its recently expanded jurisdiction and set aside an agency's affirmative determination of responsibility when the agency failed to adequately consider the awardee's record of integrity and business ethics, and in particular, the facts that the awardee's majority shareholders and former officers and directors had been indicted on multiple counts of fraud and that the company falsely certified that none of its principals had been indicted. The record showed that the contracting officer had relied exclusively on a DCMA pre-award survey in making the responsibility determination, but DCMA had only examined financial capability, not ethics and integrity.
In Lockheed Martin Systems Integration-Owego (2001 CPD 110, May 25, 2001), GAO sustained a protest challenging a sole source award for design of the next generation cockpit management software system for the Special Operations helicopter fleet because the agency had misled Crowell & Moring's client about the agency's requirements, and therefore had not provided a fair opportunity to demonstrate its capability to meet those requirements, which had never been committed to writing.
In The Catholic University of America v. U.S., 49 Fed. Cl. 795 (2001), the Court of Federal Claims, in a question of first impression, held it had bid protest jurisdiction over a solicitation to sell real property, and enjoined the Government from proceeding with certain respects of the solicitation that infringed on statutory rights of The Catholic University, Crowell & Moring's client.