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COFC decision sustaining a protest is reversed. The COFC found that the protester had shown that the agency erred in evaluating the awardee. The Federal Circuit, however, found that the COFC had lacked jurisdiction over the protest. A protester only has standing to protest if they have substantial chance of winning award. In this case, the protester was fourth in line for award. The protester’s complaint had only made conclusory allegations about the acceptability of two intervening offerors that had submitted lower-priced bids. Without more than conjecture, the protester had failed to show it had a substantial chance of receiving award.

The Defense Logistics Agency awarded a contract for purchase and destruction of surplus government property to Lamb Depollution, Inc. An unsuccessful bidder, HVF West, LLC, protested the award with the Court of Federal Claims. In its protest, HVF challenged the qualifications of Lamb and the proposals of two other better-priced bidders. The government and Lamb argued that the COFC lacked jurisdiction because the contract was effectively a sales contract —that is, bidders were offering to buy property from the government—not a procurement. Thus, the protest did not fall under the COFC’s Tucker Act jurisdiction.

The COFC found that while the solicitation contemplated the sale of government property, it also included procurement of services and thus qualified as a procurement under the Tucker Act, not a sale. The COFC further found that HVF had successfully shown that the agency had erred in selecting Lamb for award. The COFC ordered the agency to cancel the contract to Lamb. The government and Lamb appealed to the Federal Circuit.

The court reversed the COFC, reasoning that the lower court had erroneously found that it had jurisdiction over the protest. A protester has standing when they are an actual bidder whose direct economic interest would be affected by award. To succeed in showing a direct economic interest, a protester must show that they have a substantial chance of winning the contract.

Here, in order for HVF to show that it had a substantial chance of winning the contract, it had to sufficiently challenge the eligibility of Lamb and both intervening bidders. But in its complaint, HVF only offered allegations based on conjecture that were insufficient to show that it had a substantial chance of receiving award.

For instance, in its complaint, HVF only alleged that the intervening bidders failed to meet the standards for a successful pre-award survey. But the court ruled that this allegation was conclusory. HVF argued that the website of one of the intervening bidders did not mention that the company had performed demilitarization work required by the contract. The court reasoned that HVF’s speculative assertion did not account for the fact that solicitation provided that experience could demonstrated through a subcontractor.

Additionally, HVF alleged that the individual representing one of the other bidders had never received a high-value federal contract. Again, the court found that this did not prove that the bidding entity, rather than its associated individual, would be unable to perform the contract.

Without more substantive allegation, HVF fell short of the threshold to establish it had a chance of winning the award. The COFC lacked jurisdiction to hear the protest.

HVF is represented by Edward Sanderson Hoe, Andrew Guy, and Darby Rourick of Covington & Burling LLP. The intervenor, Lamb, is represented by Shar Bahmani and Joe Keene of Sacks Tierney P.A. The government is represented by Stephen Michael Mager, Jeffrey B. Clark, Robert Edward Kirschman, Jr., and Douglas K. Mickle of the Department of Justice.