COFC Refuses to Reconsider Protest, Finds Protester’s Argument Was Based on a False Premise

The COFC dismissed a protest. The protester moved for reconsideration. The protester argued the dismissal rested on a “bundling proposition”—namely, that the agency could forego statutorily required market research and preferential requirements so long as it bundled non-developmental solutions with developmental solutions. The protester complained it never had a chance to respond to this “bundling proposition.” COFC rejected the argument, concluding that its previous decision was not based on the bundling proposition.

IntelliBridge, LLC, et al. v. United States, COFC No. 24-1204

• Context – The protester argued the agency violated 41 U.S.C. § 3307 with its RFQ for Hybrid Cloud Product Engineering & Operations procurement. The statute requires agencies to conduct market research and give a preference to commercial products and services rather than seek developmental solutions. The court concluded the RFQ sought cloud computing and IT-management services, not a developmental solution. The protester moved for reconsideration.
• Bundling Proposition – The protester argued the court’s previous ruling implicitly rested on a “bundling proposition.” This proposition allegedly permitted the agency to circumvent section 3307 requirements by bundling a developmental solution in the same procurement as nondevelopmental, commercial services so long as it was a majority nondevelopmental. The protester argued it did not have an opportunity to respond to this proposition because the defendant never argued the point.
• Decision – The Court ruled that the alleged “bundling proposition” was a strawman argument, and the previous decision did not rely upon it. Instead, the decision rested on a factual determination that the agency was not seeking to replicate the protester’s batCAVE platform’s functionality in its solicitation. Because it was not, the agency did not trigger the requirements of section 3307.

Hamish Hume, Samuel C. Kaplan, and Gina A. Rossman of Boies Schiller & Flexner LLP represented the protester, while William Porter Rayel of the DOJ represented the agency.

— Case summary by Joshua Lim, Assistant Editor.