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Subcontractor’s motion to intervene in a protest is granted. The court found that under the circumstances, the awardee’s subcontractor had a defense that shared common questions of fact and law with the protest. The protester had alleged that the subcontractor had colluded with the awardee in violation of the Procurement Integrity Act. The court ruled that the subcontractor should be permitted to intervene to protect its interests. Moreover, the court reasoned, the contract had been awarded under the Randolph Sheppard Act, so the awardee was a sponsoring state agency that would not be performing the contract. The subcontractor that  would perform the contract would be more impacted by the outcome of the protest.

The Army awarded a contract for food services and dining room operations at Fort Knox, Kentucky to the Kentucky Office of Vocational Rehabilitation (KOVR). The contract was awarded under the Randolph Sheppard Act, which gives priority to blind contractors in federal contracts for vending facilities. KOVR would act as the sponsoring state agency under the contract.

An unsuccessful offeror, Mitchco International, filed a protest with the Court of Federal Claims, alleging that KVOR and its proposed subcontractor, Southern Foodservice Management, had colluded in a fraud in violation of the Procurement Integrity Act. The court allowed KVOR, as the awardee, to intervene in the case as a matter of right. The subcontractor, Southern then moved for permissive intervention.

Under the Court of Federal Claims’ rules, a court must allow intervention when a party claims an interest in to the property or transaction that is part of the action and is so situated that disposing of the action will impact the party’s rights. A court must allow permissive intervention when a party has a claim or defense that shares a common question of law or fact with the main action.

While subcontractors normally do not have a right to intervene in a protest, here, the court found that intervention was proper under the circumstances. The claims made in Mitchco’s complaint made Southern’s actions directly relevant to the award at issue. Mitchco had alleged that Southern violated the Procurement Integrity Act by committing fraud in collusion with KVOR. As the court noted, “who better and with more at stake to deal with these accusations than Southern?

Mitchco argued that the court had to find a separate jurisdictional basis for Southern’s appearance in the case. The court rejected the argument, reasoning that it had jurisdiction over the protest under 28 U.S.C § 1498, and that the rule on permissive intervention gave the court authority to hear claims and defense related to that protest. There was no reason to require a wider scope of review. There was no danger that the court would be called on to adjudicate additional claims outside of the protest that would necessitate an independent basis for jurisdiction.

The court concluded by noting that the award had been made under the Randolph Sheppard Act, which provided an additional grounds for allowing Southern to intervene. While KVOR was the nominal awardee, its role would be that of a sponsoring agency. Southern would be performing the contract and was the party that stood to win or lose economically.

Mictchco is represented by Alan M. Grayson. The government is represented by Richard P. Schroeder, Ethan P. Davis, Robert E. Kirschman, Jr., and Douglas K. Mickle of the Department of Justice.