After losing a protest and appealing the protester moved for a stay pending appeal. The protester argued a stay was warranted because its appeal raised a substantial issue on the merits. The court was not persuaded, finding that the proteser’s appeal was premised on erroneous interpretation of competitive prejudice. What’s more, the court opined, the protester’s challenges to the agency’s evaluation were relatively quotidian and didn’t really tread new legal ground.
ACI Technologies, Inc. v. United States, COFC, No. 21-2340C
Background
ACI Technologies filed a protest with the Court of Federal Claims challenging the award of a contract for oversight of the Navy’s electronics manufacturing center. The court denied the protest, finding the Navy had reasonably evaluated proposals. ACI appealed to the Federal Circuit. ACI then requested the COFC stay the judgment pending the appeal.
Analysis
Likelihood of Success/Substantial Case on the Merits
To obtain a stay pending appeal, a party must establish that its appeal is likely to succeed on the merits or raises a substantial issue on the merits. Here, ACI argued that it had raised a substantial issue because the COFC had applied a more stringent standard of competitive prejudice than was appropriate.
The court found several problems with this argument. First, the court’s prior decision had not depended on a finding of prejudice. A protester must prove that it has been prejudiced by an evaluation error. But in this case, the court had found that the Navy had not made an evaluation error. If there was no error, then any finding of prejudice was beside the point.
What’s more, the court opined that it had not applied a more stringent standard of prejudice. Rather, it was the protester that was applying the wrong standard. The protester appeared to argue that a protester is prejudiced if an evaluation error might affect the results of the award determination. The court summarized this as “if error, then prejudice.” The proper standard, however, is whether absent the error, the protester would have a substantial chance at award. The court determined it had properly applied the standard for prejudice.
ACI also alleged that its other challenges to the evaluation raised a substantial issue. The court didn’t agree. Indeed, the court noted that the ACI’s challenges were pretty standard and did not really tread new ground.
Irreparable Harm
To obtain a stay a protester must also prove that absent the stay it will suffer irreparable harm. ACI argued that it would suffer irreparable harm because without the stay it would lose profits and have to layoff its workforce.
The court, however, found aCI’s argument conclusory. Moreover, ACI’s entire harm argument was premised on the assumption that if it were granted a stay, the company would continue performing the contract during the stay. But the government had said no work would occur on the contract during the appeal. Thus, even if the court granted a stay, it would not prevent harm to ACI.
ACI is represented by Jonathan D. Shaffer and Todd M. Garland of Smith Pachter McWhorter PLC. The intervenor, Pennsylvania State University, is represented by Robert Charles Rutherford, Jr. of Pennsylvania State University. The government is represented by Steven M. Mager, Eric P. Bruskin, Patricia M. McCarthy, and Brian M. Boynton of the Department of Justice as well as Stephanie J. Quade of the Navy.
–Case summary by Craig LaChance, Senior Editor
