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The government’s disqualified the the protester form the competition. The protester filed a COFC protest and sought a preliminary enjoin performance of the contract. The court denied the motion for failure to show a likelihood of success on the merits. The court found the protester was unlikely to overcome the government’s finding that the protester had engaged in behavior that created an appearance of impropriety.
Marathon Targets, Inc. v. United States, COFC No. 25-121
- Preliminary Injunction – The protestor requested that COFC preliminarily enjoin the awardee’s performance of a contract for Trackless Mobile Infantry Targets (TMITs). The protester challenged multiple aspects of the government’s post-award decision to disqualify it from competing for the award. The Court ruled that the protester failed to demonstrate a likelihood of success on the merits.
- Procedural Challenges – The protester raised due process challenges regarding the time it had to respond to the contracting officer’s (CO’s) email regarding potential Organization Conflict of Interest (OCI) and the manner in which the government conducted its investigation.
- 4-Hour Deadline: The protester claimed it was only given a four-hour reply deadline. The government responded the protester had ample opportunity to respond to concerns over the preceding weeks. COFC sided with the government. The protester’s counsel directly engaged with the government’s counsel for weeks before the four-hour deadline, and the investigation showed that the government considered these communications within its investigation.
- Investigation: Furthermore, the protester alleged the government did not seek testimony from anyone working for the protester, meaning its investigation lacked impartiality. The government responded that because the investigation was conducted by an independent contracting officer, it was sufficiently impartial. The Court sided with the government. The investigator completed a thorough 31-page report. The protester did not explain how interviewing the protester’s employees would add to the investigation, nor did it show how failure to do so was illegal in any way.
- Appearance of Impropriety – The government based its decision to disqualify the protester on three reasons. The Court honed in on one — that the protester demonstrated the appearance of impropriety in violation of relevant FAR provisions. The Court ruled that the protester was unlikely to show this government finding failed to survive the APA review. The government possessed ample evidence that the protester failed to act in accordance with ethical and legal obligations concerning protected information that the CO inadvertently disclosed.
- Specific Acts: The Court listed three government findings that gave the appearance of impropriety: (1) the protester misrepresented its basis of knowledge of the awardee’s subcontractor, (2) apparently contrived use of an employee’s post-protest communication as a basis for that knowledge, and (3) distributed protected material to non-attorneys. The court believed these findings with the supporting evidence would satisfy the rational basis standard used when evaluating government decisions.
- Irreparable Harm – The protester claimed it would suffer irreparable harm from lost profits not receiving the contract along with harms it will suffer during the immediate transitional phase between the current and forthcoming contract. If all its current contracts end, it will lose employees. While the Court recognized some of this may qualify as harm, it afforded minimal weight to them. They weighed in the protester’s favor but only weakly as harms an incumbent might suffer if they failed to receive the award for a successor contract.
— Case summary by Joshua Lim, Assistant Editor.
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