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If you’ve been dreaming of an exhaustive analysis of the remedies available in a COFC protest, this is the case for you. The court analyzed the three main remedies available in a protest—injunctive relief, declaratory relief, and remand—and when they’re appropriate. The court ultimately found that in this case, remand was the most appropriate remedy because the court did not think the agency had properly exercised its discretion but still recognized that the agency, not the court, should exercise that discretion.

IAP Worldwide Services, Inc. v. United States, COFC No. 21-1570C

Background 

The Army awarded a contract to Vectrus Systems Corporation. An unsuccessful offeror, IAP Worldwide Services filed a protest with the Court of Federal Claims, alleging, among other things, that the Army erred in not holding discussions. The court agreed with IAP, finding that the Army had not sufficiently explained its decision to conduct discussions.

The court asked the parties to submit supplemental briefing on the appropriate remedy. IAP argued that it was entitled to injunctive relief directling the Army to properly apply the DFARS provision governing discussions. IAP also argued that it was entitled to bid and proposal costs. The government argued that IAP was not entitled to any relief. Vectrus sought a middle ground, reasoning that the court should remand to the Army to determine whether discussions should be held.

Analysis

In a lengthy opinion, the court reviewed the types of remedies available in the protest. On one side of the remedy continuum is injunctive relief in which the court mandates or prohibits particular action. On the other side of the continuum is declaratory relief, where the court states the parties’ legal rights in the controversy but does not coerce or enjoin any future action.

Somewhere in between these remedies is remand in which the court sends the matter back to the agency to either (1) further explain its decision, or (2) make a new decision. A remand is proper when the court doubts the agency had properly exercised its discretion but recognizes that it is the agency, not the court, that should exercise its discretion.

The court decided that in this case, a remand was the most appropriate remedy. Again, remand is most useful when the agency retains discretion with regard to the arbitrary action it took. Here, the decision as to whether to establish a competitive range and engage in discussions is a discretionary decision that lies with the agency. This would give the Army a chance to explain its decision or make a new one. There was no reason (yet) to enter a coercive injunction.

The court further determined that an award of bid and proposal were not warranted at this stage. Bid and proposal costs are only appropriate if the protester demonstrates that its proposal was somehow unnecessary or wasted. An award of costs could only be decided after the outcome of the remand.

IAP is represented by Kara L. Daniels, Thomas A. Pettit, and Aime JH Joo of Arnold & Porter Kaye Scholer LLP. The intervenor, Vectrus, is represented by Adam K. Lasky, Edward V. Arnold, Stephanie B. Magnell, and Bret C. Marfut of Seyfarth Shaw LLP. The government is represented byTanya B. Koenig, Brian B. Boynton, Patricia M. McCarthy, and Reginald T. Blades of the Department of Justice as well as Lieutenant Colonel Seth Ritzman of the Army.