Bid Protests

Representative Matters

• Successful Defense of DHS Award. Crowell & Moring successfully intervened in a bid protest and defended its client’s roughly $250 million award for security and transportation services in support of the U.S. Department of Homeland Security’s Customs and Border Protection agency. Following briefing and oral argument, the Court of Federal Claims denied the protester’s wide-ranging price, technical, and past performance allegations, and upheld the award to C&M’s client. See G4S Secure Solutions (USA), Inc. v. United States, No. 19-1329C (Fed. Cl. Dec. 17, 2019).
  
  
• Successful Consecutive COFC Protests.  Filed two successful protests at the COFC on behalf of DZSP 21 challenging consecutive Navy awards of a $500 million contract to Fluor Federal Solutions.  After the second, the Navy canceled the solicitation, allowing DZSP to continue performance under the incumbent contract for the foreseeable future.  DZSP 21, LLC v. United States.
  
  
• COFC intervention successful.  We intervened in a COFC bid protest on behalf of PAE Government Services challenging the State Department’s award of multiple contracts (including one to PAE) for logistical and training support for peacekeeping efforts in Africa.  The COFC dismissed the protest on multiple grounds.
  
  
• Successful defense of protest.  Represented Palantir in successful defense at GAO of award of Army contract for data-collection information-technology system.   General Dynamics Mission Systems, Inc.
  
  
• Reversal of COFC decision.  C&M and DOJ convinced the U.S. Court of Appeals for the Federal Circuit to reverse a U.S. Court of Federal Claims decision striking down the agency’s planned corrective action as overly broad.     
  
  
• Award confirmed.  Successfully defended U.S. Army Corps of Engineers award of a $128M contract to Cashman/Dutra JV for dredging of Boston Harbor. Great Lakes Dredge & Dock Co.
  
  
• FEMA award defended.  GAO denied a protest by the incumbent challenging FEMA’s award to DRS for contingency satellite services. UltiSat.
  
  
• Successful Bid Protest Defense Before Department of the Air Force. Successfully defended protest of award by the Department of the Air Force following corrective action upholding award of a 10-year, $200 million contract for aerospace systems technical research and operations services (ASTROS) at Edwards Air Force Base, California. Jacobs Technology, Inc.
  
  
• Defense of Award by Social Security Administration. Successfully defended an award by the Social Security Administration for support services for the agency’s folder storage operation at the National Records Center against two challenges before GAO. Eagle Eye Electric, LLC; Dextera Corporation. Successfully defended the same award before the Court of Federal Claims. Eagle Eye Electric, LLC v. United States.
  
  
• Defense of Award by Customs and Border Protection. Successfully defended a $300 million award by Customs and Border Protection for data center support services from multiple organizational conflict of interest challenges. IBM Corporation. 
  
  
• Successful Protest Before GAO. Successfully argued for the dismissal of the entirety of a protest before GAO of an award for base operation and support for certain Marine Corps facilities on the basis of lack of interested party status.
  
  
• Defense of Award by NASA. Successfully defended a $185 million award by the National Aeronautics and Space Administration for the provision of various information technology services for the John F. Kennedy Space Center. AbacusSecure, LLC.
  
  
• Defended Sole Source Award by Defense Intelligence Agency. Successfully defended an 8(a) sole source award by the Defense Intelligence Agency for approximately $20 million for facility support services from a challenge that the Small Business Administration improperly accepted the requirement into the 8(a) program. SKC, LLC.
  
  
• Defense of Award by National Nuclear Security Administration. Successfully defended an award by the National Nuclear Security Administration for services in support of the Office of Personnel and Facility Clearances at Kirtland Air Force Base from challenges to the agency’s evaluation under the cost and non-cost factors as well as to the conduct of discussions. Synergy Solutions, Inc..
  
  
• Sole Source Award Upheld. We successfully defended a Navy sole source contract award to UTC for propeller repair and maintenance based on UTC’s intellectual property rights over repair and maintenance manuals and procedures. Despite the protester’s contentions to the contrary, we established that the protester was not an approved source to provide the services and could not become an approved source to meet the Navy’s needs. Defense of the case required expertise and coordinated activities -- on disputes relating to both bid protest and intellectual property issues in this area of continuing and increasing importance for Original Equipment Manufacturers (OEMs).
  
  
• Successful Agency-Level Protest. Crowell & Moring filed an agency–level protest on behalf of Hewlett Packard Enterprise Services (HPES) of the Army’s award a task order to General Dynamics Information Technology, Inc. (GDIT) for Information Technology Support Europe in Rheinland-Pfalz and Wiesbaden, Germany, by the HQ Installation Management Command -EUROPE. The Contract concerned mission critical work and was strategically important to the Army as it involved execution of, among other things, family care, force protection, logistics, and planning and budgeting activities for all Army Garrisons throughout Europe. HPES was the incumbent and stood to lose its existing contract. In a highly-unusual development, the Army cancelled the award to GDIT in response to our protest, and HPES was eventually awarded the follow-on contract.
  
  
• Successful Bid Protest Defense Before FAA’s Office of Dispute Resolution for Acquisition. Defended the FAA’s award to Northrop Grumman Corporation of an $81 million contract to modernize information systems throughout the National Airspace System. In its decision, the ODRA denied several protester challenges to the qualifications of Northrop Grumman’s Principal Information Engineer and found that FAA’s evaluation of Northrop Grumman’s technical proposal and proposed costs was reasonable.
  
  
• Past Performance Protest Sustained. In protest litigation arising out of competition for a $110 million contract to furnish F-15 fighter jet transportation support services to the Royal Saudi Air Force, Al Raha Group for Technical Services, Inc. (RGTS) protested the Air Force’s source selection decision before the Government Accountability Office (GAO). In sustaining RGTS’ protest against the Air Force’s evaluation of the awardee’s past performance, GAO held that the Air Force improperly disregarded the solicitation’s evaluation criteria governing past performance, overstated the relevance of the awardee’s prior experience, and advanced post hoc litigation positions unsupported by the contemporaneous agency record. The RGTS protest represents a rare instance in which GAO has overturned an agency’s highly discretionary judgment in assessing a contractor’s past performance during a competitive source selection and award decision. Even rarer, RGTS won a second protest against the Air Force’s corrective action and re-evaluation, resulting in a second sustained protest in which GAO held that the agency failed to follow its own evaluation criteria, misevaluated the awardee, and treated the offerors unequally.
  
  
• Service Contract Act Protest Defended. In protest litigation arising out of competition for a $16 million order for services to support testing, training, and range activities for remotely piloted aircraft at various military bases, Booz Allen Hamilton (BAH) protested to the Government Accountability Office (GAO) that the Army improperly amended the order to apply Service Contract Act (SCA) wage rates after award, even though the Army knew about union’s SCA complaint prior to award. In defending the award to DRS Technical Services, Inc. (DRS), both the Army and DRS successfully argued that BAH knew of the union’s SCA demands prior to award, but failed to advance its protest allegations until after award when the Army conducted its SCA fact-finding and subsequently amended the order to DRS. In denying BAH’s protest and supporting the award to DRS, the GAO decision underscores the risk when protesters take pre-dispute positions inconsistent with their subsequent protest allegations. The decision also confirms that agencies have a reasonable period of time to conduct fact-finding and make decisions relating to SCA applicability.
  
  
• Successful Defense of Dual Awards. In protest litigation arising out of competition for dual awards of $366 million and $414 million for enhanced night vision goggles and rifle-mounted thermal sights, Raytheon Company – Missile Systems Division (Raytheon) protested to the Government Accountability Office (GAO) that the Army improperly awarded to DRS RSTA, Inc. (RSTA) and BAE Systems Information and Electronic Systems Integration Inc. (BAE) based upon a variety of allegations. Working closely with the Army to defend its award, DRS vigorously challenged the Raytheon protest allegations, ultimately resulting in Raytheon withdrawing all protest grounds against DRS and the Army proceeding with contract performance with DRS while the rest of the protest proceeded. This result underscores Crowell & Moring’s ability to work closely with agency counsel, litigate against strong adversaries, and win cost-effectively for its clients.
  
  
• GAO and Court of Federal Claims Protest Defended. Represented Community Surgical Supply, Inc. in the defense of a GAO and Court of Federal Claims protest of the award of a $46 million Department of Veterans Affairs contract to run the Agency’s Home Respiratory Care Program and for home oxygen delivery and other associated services to patients in the northeastern portion of the United States. The protester, Rotech Healthcare, Inc., was the long-time incumbent contractor and before GAO, Rotech, raised an array of challenges to the evaluation of CSS’s winning proposal. GAO denied the protest on all counts, finding that the evaluation had complied with the RFP and reached reasonable conclusions. Soon thereafter, Rotech filed a new protest at the COFC. After multiple rounds of briefing and an oral argument, Judge Firestone of the COFC again denied Rotech’s protest on all counts.
  
  
• Award of Customs & Border Protection Contract Upheld. Bart & Associates protested the award of a $200 million contract for U.S. Customs & Border Protection to Northrop Grumman for software application development, operations and maintenance, modernization, and enhancement services to support the agency’s suite of computer and automated software applications and maintenance of specialized equipment. Bart argued that the agency conducted inadequate and unequal discussions, failed to conduct a reasonable and even-handed cost realism evaluation, and performed flawed technical and past performance evaluations. The GAO, however, disagreed with Bart and upheld the contract award to Northrop Grumman.
  
  
• Defense Commissary Agency Award Defended. Successfully defended client’s $40 million award to provide fresh fruits and vegetables to United States commissaries on Guam. We successfully argued before the GAO and then the Court of Federal Claims that the Agency’s evaluation and award determination were rational, and that IDI’s proposal represented the best value to the Government. The win enabled IDI to keep its largest contract award to date with the federal government.