Recent Court Decision Highlights Effectiveness of “Second Bite” Protests

A recent U.S. Court of Federal Claims (COFC) decision serves as an important reminder that when the Government Accountability Office (GAO) denies a protest, this is not necessarily the end of the road. Often, contractors retain the right to file a new protest at the COFC, which conducts its own de novo review of the procurement record. This so-called “second bite at the apple” protest is a powerful tool as the COFC’s recent decision in Chugach Logistics & Facility Services JV, LLC v. USA makes clear.

In a post-award bid protest involving a nearly $100 million United States Navy Base Operations Support Contract (BOSC), Chugach Logistics and Facility Services JV, LLC (Chugach) filed a protest at GAO contesting the award of the BOSC to CCS King George 2, LLC (CCS KG).  Chugach argued that the agency unreasonably evaluated proposals and made a flawed source selection decision. GAO denied the protest. Chugach then filed an action at the COFC. On August 17, 2026, the COFC reached a materially different outcome — sustaining the protest and ordering the Navy to cancel the award.

The pivotal issue was whether the Navy was required to consider a known negative Past Performance record when evaluating the awardee. Notably absent from the SSEB’s assessment was any mention of the awardee’s performance of a recent predecessor janitorial services contract at Naval Base Coronado for which the awardee received a marginal rating for quality.  The assessing official who signed the Contractor Performance Assessment Reporting System (CPARS) evaluation with that marginal rating was one of three SSEB members charged with assessing proposals for the BOSC procurement at issue.

At GAO, the Navy defended its omission by explaining that the predecessor contract was for custodial work only and had a total annual value of only $6.6 million, which did not meet the RFP’s $10 million threshold for relevancy under the separate Corporate Experience factor. GAO found nothing objectionable about the agency’s decision to limit the evaluation of Past Performance to contracts based on the criteria for relevance listed under the separate Corporate Experience factor — namely, contract value and scope of responsibilities — and deferred to that explanation.  

Beyond the illogic of restricting the Past Performance evaluation based on a limitation from an entirely separate factor, this restriction was arguably illogical for an entirely separate reason: if a contractor struggles to perform a smaller, simpler contract, this could suggest that the contractor might struggle even more on a larger and more demanding one. As such, a low-end relevancy threshold may make sense when evaluating experience, but it could make far less sense when assessing negative Past Performance. 

The COFC reached a completely different conclusion from GAO. The court found that the relevancy standard from the Corporate Experience factor simply did not govern the broader assessment under the separate Past Performance factor, which permitted the government to “review all CPARS evaluations for Offerors, for projects other than those submitted under Factor 1” and reserved “the right to obtain information for use in the evaluation of Past Performance from any and all sources.” Under the well-established “too close at hand” doctrine, the negative Past Performance information was not just close at hand — it was squarely in the Navy’s palm, as the NAVFAC official who assigned CCS KG a marginal quality rating for the predecessor contract also served as one of three SSEB members for the BOSC procurement. The COFC also refused to accept the explanations the Navy offered during the GAO protest, finding them to be impermissible post hoc rationalizations: the evaluation record did not state that the Navy identified the relevant CPARS and found it non-probative, and the COFC declined to defer to the agency’s judgment where there was no evidence the agency exercised that judgment contemporaneously during the evaluation. In doing so, the COFC brought a level of scrutiny to the record that produced a more textually grounded — and arguably more intuitively sound — result.

Because Past Performance was a principal discriminator between CCS KG and Chugach in the Navy’s best-value assessment (CCS KG received the highest past performance rating of Substantial Confidence, while Chugach received only Satisfactory Confidence), the COFC found that Chugach established a substantial chance it would have received the contract award but for the Navy’s error. The COFC therefore set aside the best-value determination, noting that aside from the flawed Past Performance assessment, Chugach’s proposal received identical or better non-price adjectival ratings, and that the solicitation expressly stated the non-price factors were significantly more important than price. The COFC granted permanent injunctive relief, directing the Navy to cancel the BOSC award and reevaluate proposals.

This case offers several important takeaways for government contractors. First, in many instances, GAO’s denial of a protest is not necessarily the end of the road. The COFC applies its own independent analysis and is not bound by GAO’s conclusions. Second, the two forums can, and do, apply different weight to agency explanations offered after the fact: here, GAO accepted the Navy’s post-protest rationale even where it had no support in the contemporaneous record, while the COFC subjected that rationale to closer scrutiny and rejected it as an impermissible litigation-driven justification unsupported by the underlying record. Third, the “too close at hand” doctrine carries real teeth at the COFC, particularly where adverse information was personally known to an evaluator.

For contractors who have received an adverse GAO decision, the second bite at the apple is worth serious consideration. The Chugach case is a timely reminder that what does not succeed at GAO may well succeed at the COFC; therefore, protesters should discuss with their counsel whether to further pursue their challenges at the COFC.