New Court of Federal Claims Decision Clarifies Interested Party Status for Post Award Challenges to Multiple Award Contracts

A new Court of Federal Claims (COFC) decision breaks with a prior decision from the same court to hold that an offeror that receives the very contract for which it submitted a proposal in a multiple award procurement lacks standing to challenge other offerors that also received a contract award. Aero Spray, Inc. v. United States, No. 32-2079C, __ Fed. Cl. ___, 2021 WL 5023371 (Fed. Cl. Oct. 28, 2021).¹ This holding aligns with the Government Accountability Office (GAO) case law interpreting “interested party” status and “direct economic interest” in a multiple award procurement and creates an internal split within the COFC.

As part of its mission to protect federal lands against wildfires, the Department of Interior issued a request for proposals to acquire multiple water scooping aircraft through multiple awards. After reviewing several proposals, the agency awarded four indefinite delivery indefinite quantity (IDIQ) contracts to offerors that met or exceeded the requirements listed in the solicitation. One of the awardees, Aero Spray, Inc., subsequently filed a bid protest contending that while it had spent significant funds to comply with the solicitation’s requirements by the time of proposal submission, two other awardees failed to propose available, compliant aircraft (their aircraft allegedly would not be available until some future date after award) and thus argued those offerors were ineligible for award. As an awardee itself, Aero Spray relied on a prior Judge Lettow decision case, National Air Cargo Group, Inc. v. United States, 126 Fed. Cl. 281 (2016), to argue it had standing to protest the other awards because they led to the potential for increased competition for future task orders.

Judge Solomson disagreed in Aero Spray, Inc. finding Aero Spray was not an interested party and therefore had no standing to protest. Judge Solomson reasoned that the US Court of Appeals for the Federal Circuit has held that the term “interested party” in the statutory basis for the COFC’s jurisdiction over bid protests—28 U.S.C. § 1491(b)—has the same meaning as does “interested party” in the Competition in Contracting Act (CICA).² That statute defines “interested party” for the purposes of GAO protest jurisdiction “with respect to a contract or a solicitation . . . an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.”³ Emphasizing CICA’s “with respect to a contract or solicitation” language, Judge Solomson explained that “[t]he [standing] question [for the Court], is not whether Aero Spray is (or, more accurately, was) an ‘actual … offeror’ generally for the procurement at issue, but rather whether Aero Spray was an actual offeror ‘with respect to a contract’ award that is the subject of the objection.”⁴ Finding that Aero Spray received the very contract for which it submitted a proposal, Judge Solomson answered that question in the negative, holding that Aero Spray was not an actual offeror for the contracts awarded to the other companies, and thus lacked standing to challenge their awards:

In this case, because Aero Spray has received everything to which it is entitled given its proposal and pursuant to the Solicitation, Aero Spray is not a “disappointed bidder” in any sense of that phrase. Even if Aero Spray were correct that the awards to Defendant-Intervenors are somehow improper, Aero Spray would not be entitled to any further contract award. Accordingly, the court holds that while Aero Spray may have an “economic interest” in avoiding future competition, it does not have a “direct economic interest . . . affected by the award of the contract.” 31 U.S.C. § 3551(2) (emphasis added).⁵

Judge Solomson disagreed with Judge Lettow’s application of the pre-award standing test—“non-trivial competitive injury”—and Judge Lettow’s holding in National Air Cargo that an awardee may have standing if it “seeks to remedy an alleged violation of law that has affected the task order pool.”⁶ Judge Solomson found that “the Federal Circuit has established only a single standing test applicable in a post-award protest,” and while increased competition may satisfy the traditional Article III standing requirements, that alone would not meet the “interested party” standard. Therefore, because Aero Spray had already received the IDIQ contract award for which it proposed, there was no opportunity for it to receive anything additional. Its economic interest was only in its contract award, not to potential future task order competition. Experienced practitioners will note that this holding aligns with the GAO’s position: “By definition, an IDIQ contract awardee, . . . , cannot be an actual or prospective offeror with respect to another IDIQ contract awarded under the same solicitation,” because “a contractor that has already been awarded an IDIQ contract cannot be awarded additional IDIQ contracts, even if it could show flaws in the agency’s award of those contracts.”⁷

But, the court stressed that it was not holding that “merely labeling a plaintiff an ‘awardee’ provides a per se definitive answer to the ‘interested party’ questions.”⁸ To wit, Judge Solomson distinguished other COFC decisions finding an awardee had standing and noted these decisions did not support standing here. Namely:

• In PAE-Parsons Global Logistics Services., LLC v. United States, 145 Fed. Cl. 194 (2019), the court deemed an awardee a “disappointed bidder” because it received a lower priority award instead of the prerequisite award for the more valuable task order based on the Government’s technical evaluation.
• Likewise, in Sirius Federal, LLC v. United States, 153 Fed. Cl. 410 (2021), the court found that companies who were part of winning teams had standing to protest when their own individual quotes were not selected for award.
• And, in Glenn Defense Marine (Asia) PTE, Ltd. v. United States, 97 Fed. Cl. 311 (2011), an awardee had standing because it “sought a greater scope of work than it was awarded.”⁹

Judge Solomson clarified that these decisions “involve[d] a post-award challenge in which a contract awardee was found to have standing to protest that it had a ‘substantial chance’ of being awarded a more valuable contract; those cases did not involve a challenge based merely on increased competition in future task order competitions.”¹⁰ Conversely, the Federal Circuit’s decision in Systems Application & Technologies, Inc. v. United States, 691 F.3d 1374 (Fed. Cir. 2012), was akin to a pre-award protest and, according to Judge Solomson, “stands . . . for the proposition that an awardee has standing to challenge an agency’s ‘decision to engage in corrective action [that] will arbitrarily require [the awardee] to win the same award twice.’” Aero Spray, by contrast to each of those prior decisions, did not dispute that it had received all that it was entitled to receive per its proposal. Accordingly, Aero Spray failed to allege facts to support prejudice for the purposes of standing. Judge Solomson, quoting from GAO’s decision in AAR Airlift Group, Inc., B-414690, 2017 CPD ¶ 273 (Comp. Gen. Aug. 22, 2017), reasoned that “[e]ven if Aero Spray ‘were to successfully challenge the IDIQ awards to [intervenors,] it would not result in further IDIQ contract awards to’ Aero Spray.”¹¹

In sum, although Aero Spray creates a split within the COFC, the decision will likely limit an awardee’s protest options at the court to mirror the options at GAO – that is, unless the awardee fits one of the exceptions recognized in prior cases such as receiving a less valuable award than its proposal sought or in some way challenging the very award that it sought, its protest will likely be dismissed for lack of standing. It is possible—and Judge Solomson previewed that—contract awardees may find more success presenting their arguments through the Contract Disputes Act claim for a breach of the fair opportunity to compete, a separate basis for Court of Federal Claims jurisdiction.¹² Future cases will further elucidate the boundaries of court jurisdiction over claims by awardees; for now, awardees would be wise to assert as many bases of jurisdiction as possible.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.