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File Your Pre-Award Protest Early. Just Not Too Early.

Client Alert | 2 min read | 11.23.21

Filing a pre-award protest can be an effective tool to protect a contractor’s ability to compete for a contract. But a recent Court of Federal Claims decision counsels that while a pre-award must be filed early—typically prior to the date for submission of proposals—it cannot be filed too early.

In Goodwill Industries of South Florida, Inc. v. U.S., the U.S. Court of Federal Claims considered a pre-award protest filed by Goodwill Industries, a qualified nonprofit agency for disabled workers identified on the AbilityOne Program’s procurement list as a provider of hot-weather trousers and combat pants. Goodwill challenged the Defense Logistics Agency’s (“DLA”) intent to procure both items from sources other than Goodwill. For the hot-weather trousers, though DLA had not yet issued a solicitation, it had drafted an Individual Acquisition Plan (“IAP”) indicating an intent to award two indefinite delivery indefinite quantity (“IDIQ”) contracts based on a best value procurement. For the combat pants, DLA had issued a solicitation for the award of two IDIQ contracts, though DLA had placed the procurement “on hold” to make design changes. Goodwill argued that the AbilityOne Program required DLA to procure both items from Goodwill on a non-competitive basis, and sought an injunction preventing award to any other company.

The Court dismissed the protest as premature. Regarding the hot-weather trousers, the Court held that in the absence of a solicitation, DLA’s draft IAP was not a “final agency action,” and that Goodwill’s “anticipation of a future procurement violation is not sufficient to make a claim ripe in a bid protest before the court.” As to the combat pants, the Court explained that the “on hold” status of that solicitation rendered that aspect of Goodwill’s protest similarly unripe. The Court reasoned that while the procurement was “on hold” only while DLA was “waiting for specification changes to the purchase description and technical data,” indicating DLA’s intent to continue with a competitive best value procurement, the protest was still premature because the Court could not “rule out the possibility that the change in purchase description will match Goodwill’s production of the Army Combat Pants, nor can the Court rule out the chance that the description will be changed, and not match Goodwill’s production.” Accordingly, the Court dismissed both challenges as premature. 

Given the complex considerations a company must weigh when determining whether a protest is premature, untimely, or “just right,” potential protesters should engage in close coordination with their protest counsel to identify the appropriate time to file.

Insights

Client Alert | 6 min read | 03.26.24

California Office of Health Care Affordability Notice Requirement for Material Change Transactions Closing on or After April 1, 2024

Starting next week, on April 1st, health care entities in California closing “material change transactions” will be required to notify California’s new Office of Health Care Affordability (“OHCA”) and potentially undergo an extensive review process prior to closing. The new review process will impact a broad range of providers, payers, delivery systems, and pharmacy benefit managers with either a current California footprint or a plan to expand into the California market. While health care service plans in California are already subject to an extensive transaction approval process by the Department of Managed Health Care, other health care entities in California have not been required to file notices of transactions historically, and so the notice requirement will have a significant impact on how health care entities need to structure and close deals in California, and the timing on which closing is permitted to occur....