Protesters argued the agency improperly took unilateral corrective action without seeking a voluntary remand from the COFC. The court, however, found the unilateral corrective action did not violate U.S. Supreme Court precedent or the COFC rules of procedure.
Syneren Technologies Corp, et al. v. United States, COFC No. 23-1112 et al.
- Corrective Actions – The agency awarded multiple IDIQ contracts for IT services. Disappointed offerors filed COFC protests. The court sustained the protests. The agency re-evaluated but re-awarded contracts to the same offerors. Disappointed offerors filed another round of protests. The agency decided to take corrective action on its own, without seeking a voluntary dismissal from the court. The protesters amended their complaints, objecting to the unilateral corrective action.
- Unilateral Corrective Action – Citing U.S. Supreme Court precedent, the protesters argued an agency could not render a new decision in the heat of litigation. In a bid protest context, this means an agency cannot take unilateral corrective action—i.e., without court permission—while a protest is pending. But the court thought the protester misinterpreted Supreme Court precedent. The Supreme Court decisions hold that an agency may consider a decision “afresh” by taking a new agency action. Here, the record established the agency had considered the decision afresh. Indeed, it had canceled the awards and reconstituted the evaluation team before taking unilateral corrective action. The agency had complied with Supreme Court precedent.
- Voluntary Dismissal – The protesters argued the agency violated the COFC’s rules of procedure by not seeking a voluntary remand before taking corrective action. The court, however, noted the rules only state the court can order a voluntary remand for corrective action; the rules do not require the court to order a voluntary remand. What’s more, the protesters had not shown how they were prejudiced by the lack of a remand.
- Prejudice – Moving on to the merits of the protest, the court found several protesters could not establish competitive prejudice. Even if there had been an error in the re-evaluation of proposals following the initial corrective action, these protesters still had significant weaknesses that gave them little chance of receiving award.
- Reasonable Evaluation – Two protesters could establish prejudice if they prevailed on their protest arguments. But the court did not find these protesters’ arguments compelling. The protesters challenged various significant weaknesses. The court found the weaknesses were warranted —for things like lack of detail—or that the protesters’ arguments amounted to disagreement with the agency.
Protester Syneren is represented by Alexander B. Ginsburg of Fried, Frank, Harris, Shriver & Jacobson LLP. Protester CAJN Softech is represented by Roger V. Abbott of Miles & Stockbridge P.C. Protester Ekagra Partners is represented by Jon D. Levin of Maynard Nexsen PC. Protester JCS Solutions is represented by Brandon Graves of Centre Law & Consulting, LLC. Protester The Prospective Group is represented by Thomas K. David of Reston Law Group. Intervenor RIVA Solutions is represented by Elizabeth N. Jochum of Blank Rome LLP. Intervenor BrightPoint is represented by William A. Shook of The Law Offices of William J. Shook. Intervenor ProGov Partners is represented by Craig A. Holman of Arnold & Porter Kaye Scholer LLP. Intervenor ITC-DE is represented by Eric Scott Crusius of Holland & Knight LLP. Intervenor Koniag Management Solutions is represented by David Francis Dowd of Potomac Law Group, PLLC. Intervenor Havlik Corp. Is represented by Alexander J. Brittan of Brittan Law Group, PLLC. Intervenor T and T Consulting is represented by E. Sanderson Hoe of Covington & Burling LLP. The government is represented by Brittney M. Welch, Brian M. Boynton, Patricia M. McCarthy, Franklin E. White Jr., and Yariv S. Pierce of the Department of Justice as well as by Ryan Lambrecht of the Department of Commerce.
–Case summary by Craig LaChance, Senior Editor
