COFC Agrees with GAO: Awardee of Multiple-Award IDIQ Contract Lacks Standing to Challenge Other Awards; Aero Spray, Inc. d/b/a Dauntless Air v. United States, COFC No. 21-1079C

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Government’s motion to dismiss protest for lack of standing is granted. The protester was an awardee of a multiple-award IDIQ contract. The protester objected to awards made to other awardees. The court, concurring with GAO precedent, found that the protester was not an interested party to challenge the other awards. As an awardee, the protester was not an actual offeror with respect to the other awards. Moreover, the protester could not get anything more than the award it had already received and thus lacked a direct economic interest in the other awards. The court further found that even if the protester had standing, the protest was an untimely challenge to the terms of the solicitation.

Background

The Department of the Interior (DOI) issued an RFP seeking water scooping aircraft to fight wildfires. The RFP contemplated multiple award IDIQ contracts. DOI awarded four contracts. One of the awardees, Aero Spray, Inc. filed a protest with the Court of Federal Claims challenging awards to two other awardees. Aero Spray alleged the solicitation required that proposed aircraft be configured for water scooping, but these other awardees had proposed aircraft that were not properly configured.

The government moved to dismiss, arguing that as an awardee, Aero Spray was not an interested party and thus lacked standing to protest.

Legal Analysis

  • Awardee of Multiple-Award IDIQ Not an “Actual of Prospective Offeror” — Federal courts apply the “interested party” definition from CICA—i.e., an actual or prospective offeror whose direct economic interest would be affected by the award. In a multiple award procurement, where an offeror receives the very contract it sought, that offeror cannot be an “actual offeror” with respect to awards made to other awardees.
  • Awardee of Multiple-Award IDIQ Lacks “Direct Economic Interest” in Other Awards — An awardee of a multiple-award IDIQ has received everything to which it is entitled under the solicitation. Even if the other awards were improper, the awardee would not be entitled to any future contract award. While the awardee may have an economic interest in avoiding future competition for orders under the IDIQ, it does not have a direct interest that is affected by the award of the IDIQ contract.
  • Aero Spray’s Protest Was Untimely — Under Blue & Gold, a protester must object to defects in a solicitation before the proposal deadline or they waive their protest. The court found that DOI’s answers to offerors’ questions created a patent ambiguity as to whether airfact needed to be properly configured before award. Thus, Aero Spray’s post-award arguments about the type of aircraft required by the solicitation were untimely.

Aero Spray is represented by Lee Dougherty of Effectus, PLLC. Intervenor Henry’s Aerial Service, Inc is represented by Brian Walsh, Craig Smith, and Cara L. Lasley of Wiley Rein LLP. Intervenor Fletcher Flying Services, is represented by Leonard Collins and Allison Goodson of GrayRobinson, P.A. The government is represented by Albert S. Iarossi, Brian M. Boynton, Martin F. Hockey, and Douglas K. Mickle of the Department of Justice as well as Alexander W. Fichtel of the Department of the Interior.

COFC - AeroSpray