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Published on September 11, 2024 • Law

Can an Awardee Challenge the Solicitation for the Contract It Just Received? COFC Says No.

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The protester was one of several awardees of a multiple-award IDIQ contract. After the award to the protester, the government modified the contract's eligibility rules. The protester filed suit, arguing the mofication gave unfair advantages to certain contractors. But the COFC found that as an awardee of the contract, the protester could not show it had been harmed by the change.

Island Creek Associates, LLC v. United States, COFC No. 24-554

Modification of IDIQ Contract - The agency awarded the protester a position on a multiple-award IDIQ contract. After award to the protester, the agency modified the contract regarding joint ventures. The protesters then filed suit with the COFC, arguing the modification gave an unfair advantage to mentor-protege joint ventures.
Pre-Award or Post-Award Protest - The government moved to dismiss the protest, arguing that as an IDIQ awardee, the protester lacked standing. The protester argued it had standing because its protest was akin to a pre-award protest challenging the terms of the solicitation. The protester reasoned it had standing under the pre-award more inclusive definition of economic harm. The court rejected the protester's argument. As an awardee of the contract, the protester could be not an actual or prospective bidder; indeed, the protester could not be awarded future IDIQ contracts even if the agency botched the awards of those contracts. The more inclusive bid protest standard didn;t apply.
The Protester Lacked Standing - Having found this was not a pre-award protest, the court found the protester lacked standing to maintain a post-award protest. Again, the protester was already an awardee. Having already received the contract, it could not be harmed by a change in the procurement process that made additional contractors eligible for the contract. As an awardee, the protester was effectively challenging the administration of the contract. That type of challenge should be brought as a claim under the Contract Disputes Act, not as a bid protest.

The protester was represented by John L. Holtz, Shane J. McCall, Nicole D. Pottroff, Gregory P. Weber, and Stephanie L. Ellis of Koprince McCall Pottroff, LLC. The government was represented by Claire Horrell, William J. Grimaldi, Patricia McCarthy, and Brian M. Boynton of DOJ.

-- Case summary by Joshua Lim, Assistant Editor

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