The protester was to the “apparent awardee” twice, but the procurement process continued. The protester filed the instant pre-award protest objecting to various aspects of the procurement. The protester maintained that the government improperly included an ineligible offeror in discussions. COFC rejected the argument, finding that the FAR required the government to conduct discussions with and issue the amendment to all the offerors within the competitive range.
Red River Science & Technology, LLC v. United States, COFC No. 24-2035
- Background – The protester submitted a proposal for a solicitation seeking logistics support services at Fort Campbell. During the procurement, the protester lost “apparent awardee status” twice. The protester then filed the instant pre-award protest objecting to various aspects of the government’s management of the procurement.
- Gemini Tech Services, LLC Dispute – The first time the protester was named apparent awardee, Gemini, now a defendant-intervenor, argued before GAO that the government violated DFARS § 215.306 by failing to conduct discussions with offerors. The government agreed and took corrective action. The protester argued that Gemini forfeited its DFARS § 215.306 claim by failing to raise it early enough in the procurement process. This would mean the government erred in taking corrective action. COFC found that even if the protester was correct that Gemini forfeited its DFARS § 215.306 claim, the government’s decision to reopen the discussions was a permissible exercise of discretion.
- Vanquish Worldwide, LLC Dispute – After another offeror, Vanquish, declined to execute its contract, the protester was named the apparent awardee for the second time. The government decided to reopen discussions and amend the solicitation. The protester argued the government erred in including Vanquish in the discussions. The protester reasoned that discussions should be limited to offerors eligible for the award. COFC rejected this argument. FAR § 15.306(d)(1) states that discussions “must be conducted…with each offeror within the competitive range.” Similarly, FAR § 15.206(c) establishes that amendments shall be issued “to all offerors that have not been eliminated from the competition.”
- Inequality of Discussions – The protester complained that the government failed to conduct equal and meaningful discussions. It argued the government held discussions with Gemini and Vanquish about their indirect rates, but did not do the same for the protester. COFC found this was not an issue because the government had already determined there was nothing wrong with the protester’s rates, so it was not brought up during discussions. Nevertheless, the allegedly unequal discussions occurred before Amendment 6. The amendment rendered any discussion errors harmless because the discussions focused on capping indirect rates, and the amendment removed the requirement.
The protester was represented by Jackson W. Moore, Jr., and Amelia L. Serrat of
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. The government was represented by Evan Wisser, Yaakov M. Roth, Patricia M. McCarthy, Cornine A. Niosi, John C. Degnan, Danielle C. Naser of DOJ. Defendant-Intervenor was represented by Matthew T. Schoonover, Ian P. Patterson, Timothy J. Laughlin, and Haley M. Sirokman of Schoonover & Moriarty LLC. Other Defendant-Intervenor was represented by Michael D. Maloney and Anthony H. Anikeeff of Williams Mullen, PC.
— Case summary by Joshua Lim, Assistant Editor.
