Protester Challenged Corrective Action. Why Did the Court Think the Protester’s Position Was “Absurd”?

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An unsuccessful offeror filed a protest challenging an award. The awardee intervened. The protester, the awardee, and the government all stipulated that the government would take corrective action to hold discussions. They explicitly agreed the corrective action would moot the protest. But when the government actually held discussions, the awardee filed a new protest, arguing the government shouldn’t hold discussions with the protester because the protester was ineligible for award. The court found the awardee’s argument absurd. The awardee could not, on the one hand, agree that the corrective action mooted the protest, but then, on the other, argue the corrective action should not include the protester. If the corrective action excluded the protester, then the corrective action could not have mooted the previous protest.

Vanquish Worldwide, LLC. v. United States, COFC No. 22-887C

Background

The Army issued an RFP seeking logistics support services. After reviewing nine proposals, the Army awarded the contract to Vanquish Worldwide, LLC. An unsuccessful offeror, Amentum Services, filed a protest with the Court of Federal Claims. Amentum alleged the Army unreasonably failed to conduct discussions. Vanquish intervened.

The parties to the protest agreed the Army would take corrective action by rescinding the award, establishing a new competitive range, and holding discussions. The parties all signed a joint status report memorializing the agreed-upon corrective action and stipulating that the corrective action would render Amentum’s protest moot. The court dismissed Amentum’s protest without prejudice.

In accordance with the agreed-upon corrective action, the Army establishing a new competitive range, which included Amentum. The Army then held discussions with the offerors in the competitive range and set a date a for revised proposals. Vanquish filed a protest, objecting to the corrective action.

Analysis

Vanquish argued the corrective action was unreasonable because the Army had engaged in discussions with offerors—particularly Amentum—whose proposals were technically unacceptable. Vanquish contended it should not now be forced to compete with Amentum when Amentum’s proposal had been found technically unacceptable.

The court, however, rejected Vanquish’s argument. Vanquish had explicitly agreed in the joint status report that the corrective action would render Amentum’s position moot. This agreement must have meant that the Army would include Amentum in the competitive range and hold discussions with the company. If the parties had not intended Amentum be included in the competitive range, then the stipulated corrective action would have cured nothing and still left Amentum ineligible for award. Indeed, the court noted, if Vanquish were right, then it would result in an absurdity. If the parties had intended that Amentum not be in the competitive range, then the court would be right back where it started—having to resolve Amentum’s protest.

The court concluded that Vanquish’s argument was barred by the doctrine of judicial estoppel. Having successfully urged a particular position in the proceeding —i.e., that the dismissal mooted Amentum’s protest and allowed Amentum into the competitive range—Vanquish was estopped from claiming that Amentum could not be included in the competitive range.

Vanquish is represented by Michael D. Maloney of Williams Mullen and Todd W. Miller of Miller & Miller. The intervenor, Amentum, is represented by Kevin P. Connelly, Kelly E. Buroker, Tamara Droubi, and Jeffrey M. Lowry of Vedder Price P.C. The government is represented by Andrew Hunter, Brian M. Boynton, Patricia M. McCarthy, and Franklin E. White, Jr. of the Department of Justice as well as Captain Natalie W. McKiernan of the Army.

–Case summary by Craig LaChance, Senior Editor

COFC - Vanquish Worldwide