Motion to intervene in a protest challenging an agency’s corrective action is denied, where the offeror was suspended at the time the agency accepted offers under the solicitation and did not submit a bid, and therefore it lacked a legally defensible interest in the case. The court held that the contractor’s assertion that the agency’s corrective action would open the solicitation to further competition was merely speculative, and that the contractor merely wanted access to the administrative record without actively participating.
Agility DGS Logistics Services Co. KSC(c) sought to intervene in a bid protest case filed by KGL Food Services WLL against an award by the Defense Logistics Agency to Anham FZCO. Agility also filed a separate bid protest in the court relating to the same solicitation.
KGL was the initial awardee of the contract for food distribution services in the Middle East but this decision was successfully challenged before the Government Accountability Office. In this case, KGL challenges the agency’s corrective action. Agility did not submit an offer in response to the solicitation because it was suspended at the time DLA accepted offers and was therefore not eligible to participate. However, Agility asked to intervene to protect its interest in full and open competition and to ensure that the proceedings in its own protest are as efficient and fair as possible.
In response, all three parties to the case object to the motion, on the basis that Agility has no interest in the bid protest because it was not an offeror under the solicitation.
At the outset, the court noted that Agility did not respond directly to the assertion that it had not legally protected interest in the outcome of the protest because it was not an offeror. Instead, Agility argued that it is a responsible offeror with a legally protectable and asserted right to compete under the solicitation, while at the same time making the contradictory accusation that plaintiff and intervenor-defendant do not want Agility to succeed in introducing fresh competition into this acquisition.
In its motion to intervene, Agility identified its interest in this litigation as the opportunity to be an offeror under the solicitation, much as the plaintiff and intervenor-defendant. Agility alleged that its interest is direct and immediate because a decision to reconsider the scope of DLA’s corrective action would be linked directed to Agility’s claim that any such redefined corrective action must incorporate new competitors (e.g., itself). Conversely, a decision that the corrective action was inappropriate would foreclose Agility’s interest in the procurement.
The parties to the protest argued that Agility’s failure to submit an offer precluded it from establishing its interest. Moreover, the parties argued that even if Agility had an interest in the litigation, that interest would not be directly affected by the outcome.
The court agreed that Agility failed to demonstrate that it had any legally protectable interest in the outcome of the instant litigation, or that it would be legally entitled to become an offeror should the agency press forward with its corrective action.
Even assuming that Agility’s alleged interest was legally protectable, the court found it far too attenuated to meet the requirement that intervention be based on an interest that is direct or immediate in nature. Agility argued its interest on the basis that the agency’s planned corrective action would incorporate new competitors, while a decision in KGL’s favor would foreclose its future opportunity to compete.
However, the court found this argument unavailing, first noting that Agility merely speculated that a correction action would include new offerors, and therefore its alleged interest could not be considered direct or immediate. Further, if the court determined that the corrective action was inappropriate, Agility would lose no rights or opportunities that it currently possesses. Agility’s suspension foreclosed that opportunity to compete under this solicitation.
Alternatively, Agility argued that should the court determine it is not entitled to intervene as of right, the court should, nevertheless, allow it to intervene with permission. As justification, Agility argued it challenged the lawfulness of DLA’s actions under the solicitation. However, the court noted that Agility’s arguments focused more on fairness, explaining that its litigation should be informed by the proceedings in KGL’s protest. Because the other parties in its protest would have information arising from the proceedings in KGL’s protest that Agility would not, it moved the court to approve an “equitable intervention.”
However, the court found no authority to support this request. Instead, the court found Agility provided various reasons to conclude that its interests materially diverge from those at stake in this case. In its opening brief, Agility emphasized that it did not seek to actively participate in the case, but sought to intervene only to access the record. Further, Agility acknowledged that the two cases are substantially different, noting that plaintiff’s case is a post-award protest, while Agility’s protest looked forward to a new competition.
KGL Food Services WLL is represented by John E. McCarthy Jr., and by David C. Hammond, Mark A. Ries, Robert J. Sneckenberg, Sharmistha Das, and Charles Baek, of counsel. The government is represented by Daniel S. Herzfeld, Trial Attorney, with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, with whom were Daniel K. Poling, Associate General Counsel, David Nolte, Associate General Counsel, R. Zen Schaper, Senior Counsel, and Cathleen Choromanski, Assistant Counsel, Defense Logistics Agency, of counsel.
Anham FZCO is represented by Eric J. Marcotte, with whom were Kelly E. Buroker, Tamara Droubi, Jeffrey M. Lowry, Richard P. Rector, C. Bradford Jorgensen, Eric P. Roberson, of counsel. Agility DGS Logistics Services Co. KSC(c) is represented by Christopher R. Yukins, with whom were Steven S. Diamond and Nathaniel Castellano, of counsel.
