Government’s motion to dismiss protest for lack of standing is granted. The protester challenged the scope of the agency’s corrective action. The entity that filed the protest, however, had a different name than the entity that had bid on the solicitation. The court reasoned that the protester could only maintain the protest if it was a complete successor in interest to the bidder. But questions concerning the transfer of ownership to the protester and the bidder’s continued existence precluded the court from finding that the protester was a complete successor to the bidder. Accordingly, the protester lacked standing to maintain the protest.
The U.S. Transportation Command (USTC) awarded a contract for the transport of fuel by tug and barge to Harley Marine Services Inc. An unsuccessful bidder, Vane Line Bunkering, Inc., filed a protest with GAO challenging the award. In response to the protest, USTC took corrective action to reopen discussions and reevaluate proposals. Harley and Vane both submitted revised proposals. USTC made the second award to Vane.
Harley filed a GAO protest challenging the award to Vane. Again, USTC took corrective action. This time, the agency issued a new solicitation. Following another evaluation, USTC made the third award to Harley.
Vane filed another GAO protest challenging the third award, which was sustained. Following the protest decided to conduct additional discussions and accept revised proposals.
At some point after the third GAO protest, Harley changed its name to Centerline Logistics Corp. USTC had not received a novation or a name change request, so it asked Centerline about the name change during discussions. Centerline did not respond; instead, the company’s CEO sent a letter to the contracting officer objecting to scope of corrective action and asking to meet with the agency to discuss the matter.
USTC declined to discuss the matter with Centerline. The agency sent additional evaluation notices to Centerline stating that Harley’s proposal had received deficiencies. Centerline, however, did not respond to the evaluation notices and did not submit a revised proposal. Centerline wrote the contracting stating that it could not submit a revised proposal until it had face-to-face discussions with the agency. Having not received a revised proposal from Centerline, USTC awarded the contract to Vane.
Centerline filed a protest with the Court of Federal Claims, challenging the scope of the corrective actions taken after the first and third GAO protests. Vane intervened. Vane and the government moved to dismiss Centerline’s protest, alleging that Centerline lacked standing to protest.
The court agreed that Centerline lacked standing to challenge the corrective action taken after the first protest. Citing Blue & Gold Fleet L.P., 492 F.3d 1308 (Fed. Cir. 2007), the court reasoned that a protester cannot respond to a solicitation, lose the award, and then challenge the terms of the solicitation. A challenge to the terms of a solicitation must be made before the proposal deadline. A challenge to a corrective action is effectively a challenge to the terms of a solicitation and thus must be filed before the proposal deadline. Thus, Harley/Centerline had to file a protest challenging the corrective action before the deadline for revised proposals. Harley submission of a revised proposal amounted a waiver of any objection it had to the corrective action.
The court also found that Centerline’s challenge to the scope of the third corrective action was problematic. Harley had submitted the proposal and had received the third award, but Centerline was now protesting the corrective action. The court reasoned that unless Centerline could demonstrate that it was the complete successor in interest to Harley, it could not proceed with the protest.
The court determined that Centerline could not establish it was the successor to Harley. An article submitted by Vane raised questions about the transfer of ownership to Centerline. Centerline submitted an affidavit stating that Harley had changed its name to Centerline as part of a rebranding effort. But this affidavit did not indicate whether Harley still existed, whether Centerline inherited Harley’s assets, or whether the any effort had been made to substitute Centerline as the contracting entity. There was insufficient proof that Centerline was Harley’s legal successor.
But even if Centerline was the complete successor in interest to Harley, it had still had a standing problem. To be an interested party in a protest, the protester must be an actual or prospective. Centerline had not submitted a revised proposal after the third corrective action. It was not actual or prospective bidder and thus not an interested party.
Finally, the court noted that Centerline’s challenge to the third corrective action had the same timeliness problem as the challenge to the first corrective action. A challenge to a corrective action must be before the deadline for revised proposals. By waiting until after the proposal deadline, Centerline had waived its protest.
Centerline is represented by Bryant E. Gardner, Constantine G. Papvizas, Zachary B. Cohen, and Samuel M. Zuidema. The intervenor, Vane, is represented by Jayna Marie Rust, Scott F. Lane, and Katherine S. Nucci. The government is represented David R. Pehlke, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas K. Mickle as well as Todd P. Federici and Adam J. Koudelka of the U.S. Transportation Command.
