Bid Protest Jurisdiction Does Not Cover Early Termination of Bridge Contract, Even When Follow-On is Under Protest; COFC No. 18-1224C, Facility Services Management Inc. v. United States and Shearwater Mission Support LLC

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Request for a temporary restraining order blocking the agency from phasing out a bridge contract in favor of proceeding with a follow-on award is dismissed for lack of jurisdiction, as the challenge related to a matter of contract administration and therefore the issue could not be appended to the plaintiff’s protest of the award of the underlying contract.

Facility Services Management Inc. filed a motion for a temporary restraining order blocking the Army from proceeding with a contract awarded to Shearwater Mission Support LLC to provide installation support services, pending the outcome of incumbent FSM’s protest challenging the award.

FSM is the incumbent on the original contract and is currently performing on a bridge contract awarded after FMS challenged the agency’s award of the follow-on to Shearwater. The bridge contract is set to expire on December 13, 2018. FSM alleged the agency is attempting to truncate performance of the bridge contract so that it can proceed with performance of Shearwater’s contract, despite the pending protest action.

The court expressed some doubt about its jurisdiction over a complaint about the government’s obligation to allow full performance of the bridge contract, in comparison to its clear jurisdiction over FSM’s protest of the solicitation and evaluation process for the Shearwater contract.

However, even assuming the motion was properly characterized as related to the underlying bid protest, the court found it untimely. The court noted that in September 2018, the Army communicated its intention to phase-in Shearwater before the expiration of the bridge contract. FSM signed a joint-status report to this effect and affirmatively stated that it did not seek to restrain or enjoin the Army from moving forward with its award to Shearwater.

FSM argued that it did not have access to critical documents until the administrative record was filed on September 29, 2018, but the court noted the plaintiff still waited more than three weeks after that date to file its present motion. The court held that the government had done nothing more than execute its stated intention, to which FSM had no objection. The court declined to allow FSM to reverse itself.

The court next considered FSM’s apparent claim of breach of the bridge contract. FSM challenged the Army’s attempt to phase-out the bridge contract in favor of proceeding with performance of Shearwater’s contract, but the court found this to be a matter of contract administration that was not within its bid protest jurisdiction. Therefore, this challenge could not be appended to the existing case. Instead, FSM would need to bring a new suit.

Facility Services Management Inc. is represented by John C. Dulske. The government is represented by Isaac B. Rosenberg, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice; and by LTC Andrew J. Smith, CPT Jeremy D. Burkhardt, Contract and Fiscal Law Division, United States Army Legal Services Agency, of counsel. Shearwater Mission Support LLC is represented by Robert K. Tompkins, with whom where Rodney M. Perry, Leila George-Wheeler, Peter Scully, Vijaya S. Surampudi, of counsel.

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