United States: COFC Splits With GAO On IDIQ Awardee's Standing To Protest Additional Awards

Last Updated: May 11 2016
Article by Daniel E. Chudd and Locke Bell

The Court of Federal Claims signaled recently, in a split with Government Accountability Office (GAO) case law, that the court would entertain a bid protest brought by an Indefinite Delivery Indefinite Quantity (IDIQ) contract awardee challenging an agency's decision to award additional contracts under the same solicitation.

In Nat'l Air Cargo Grp., Inc. v. United States, No. 16-362C, Judge Lettow held that increased competition for task orders under an IDIQ contract could constitute a "non-trivial competitive injury," creating standing in court to challenge an award to another contractor where the Government allegedly failed to follow the terms of a solicitation or applicable procurement law. This directly contradicts GAO's ruling on the same issue and facts in Nat'l Air Cargo Grp., Inc., B-411830.2, Mar. 9, 2016, 2016 CPD ¶ 85, in which GAO stated that, "where a solicitation contemplates multiple awards, an existing contract awardee is not an interested party to challenge the agency's decision to award another contract." GAO's refusal in this regard, coupled with GAO's jurisdictional limits prohibiting consideration of protests challenging task order awards under $10 million, can often leave parties with no means of recourse to challenge an agency's alleged improper or unlawful inclusion of an IDIQ contractor in the potential task order awardee pool. The court's ruling in Nat'l Air Cargo may change that.

In both the initial GAO protest and the subsequent protest at the court, National Air challenged the United States Transportation Command's ("TRANSCOM's") decision to award a contract for international cargo shipping services to United Air Lines after the agency had already awarded IDIQ contracts to five other providers, including National Air. Specifically, National Air alleged that TRANSCOM violated the terms of the solicitation by awarding more than four IDIQ contracts, as originally anticipated, and by "reopening" competition to award a sixth contract to United without following procedures outlined in the solicitation. National Air additionally argued that TRANSCOM unreasonably evaluated United's past performance.

An initial string of protests at GAO and the court led TRANSCOM to voluntarily take corrective action. After reevaluating proposals, TRANSCOM affirmed its decision to award a contract to all six awardees. National Air again filed a protest at GAO, which GAO dismissed, finding that National Air was not an "interested party," as required by GAO's Bid Protest Regulations, 4 C.F.R. § 21.0(a)(1). According to GAO, National Air "did not explain why it believes that the addition of United's contract will result in National receiving a volume of orders valued less than its minimum guarantee or why a sixth award will prevent National from competing for future task orders."  GAO noted that, although the addition of a sixth awardee had the potential to increase competition at the task order level, it would not necessarily do so because IDIQ contract holders were not required to compete for future orders. Further, GAO noted that the addition of United would not reduce the total volume of orders issued. GAO cited its decision in Recon Optical, Inc.; Lockheed-Martin Corp., Fairchild Sys., B-272239, B-272239.2, July 17, 1996, 96-2-CPD ¶ 21 at 3-4, for the proposition that "to constitute a cognizable protest when a solicitation contemplates multiple awards, an existing contract holder must credibly allege direct economic harm in order to challenge the award of another contract." Because National Air had failed to make such an assertion, according to GAO, National Air was not an interested party to challenge TRANSCOM's award to United.

National Air filed a subsequent protest at the court, in response to which the Government filed a motion to dismiss for lack of standing. National Air filed a cross-motion seeking a preliminary injunction.

Before reaching the issue of National Air's status as an "interested party" with standing, Judge Lettow first addressed the court's jurisdiction under the Tucker Act, 28 U.S.C. § 1491(b)(1), to hear the protest. As GAO recently held in Aegis Defense Servs., LLC, B‑412755, Mar. 25, 2016, 2016 CPD ¶ 98 at 3, the Government argued that National Air, as a contract awardee, was categorically precluded from bringing a bid protest, regardless of any alleged economic interest. Judge Lettow disagreed, pointing to Systems Application & Techs., Inc. v. United States, 691 F.3d 1374 (Fed. Cir. 2012) as a case where a contract awardee was permitted to file a bid protest in the court. As Judge Lettow notes in his decision, the Federal Circuit in Systems Application stated that the protester's status as the contract awardee was not material to the question of jurisdiction. GAO in Aegis, on the other hand, limited the Systems Application holding to cases where a proposed corrective action essentially returned the procurement to a pre-award status.

In fact, in Aegis, GAO cited for support many of the same Court of Federal Claims cases Judge Lettow distinguished in Nat'l Air Cargo, though in many instances the distinction is less than clear.  For instance, GAO in Aegis quoted Outdoor Venture Corp. v. United States, 100 Fed. Cl. 146, 152 (2011) (Hewitt, C.J.), which states:

Once a bidder has received a contract, it is no longer an actual or prospective bidder or offeror with regard to the particular procurement. Instead, the bidder has become an awardee, who is not an interested party for purposes of 28 U.S.C. § 1491(b)(1) and therefore lacks standing to bring a bid protest to protect its award.

In Nat'l Air Cargo, Judge Lettow does not address this language specifically, but rather lumps the court's decision in Outdoor Venture into a group of cases "holding that claims by an existing contractor on its contract or 'contract administration' claims, which are within the exclusive remedial scheme of the Contract Disputes Act ('CDA')." In those cases, according to Judge Lettow, the contractors alleged violations of rights arising out of existing contracts with the Government. By contrast, National Air alleged a violation of procurement law arising out of TRANSCOM's selection of awardees, and therefore its protest was not covered by the CDA.

Having determined that a parties status as a contract awardee does not, by itself, deprive the court of the court's protest jurisdiction, Judge Lettow moved on to the issue of standing. Like the GAO, the court requires a protester to be an "interested party" to have standing to bring a bid protest. Indeed, the court and GAO both define an interested party to be "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract."  The court in Nat'l Air Cargo split with GAO, however, in its definition of "direct economic interest." In contrast to GAO, which in Nat'l Air Cargo stated that "[a] protester is not an interested party where it would not be in line for contract award were its protest to be sustained," the court held that "not all protesters seek the award of a contract" and recognized that the nature of a protest will dictate what factors may show a direct economic interest.

Judge Lettow, in Nat'l Air Cargo, identified two standards the court will apply depending on the nature of the protest at hand. In the more common type of bid protest, where a disappointed offeror seeks award, the protester must show that, but for the Government's actions, it would have had a "substantial chance" of winning the award. However, in cases where the "substantial chance" test is inapplicable – for instance, where the protester has already received award – the protester must instead demonstrate "a non-trivial competitive injury which can be redressed by judicial relief." As the court was ruling on the Government's Rule 12(b) motion to dismiss, it viewed the facts as they were most favorable to National Air to determine whether such a non-trivial competitive injury existed for the purposes of standing. Thus, whereas GAO required National Air to show as a preliminary matter that National Air would be prevented from competing for future task orders or would receive less than the stated $2,500 minimum value on the contract, the court found that, if National Air's alleged facts were correct, the competition for a total of nearly $296 million of task orders available to the IDIQ pool would be affected to National Air's detriment. Directly calling out GAO's decision, the court noted that the standard $2,500 minimum "satisfies the law of consideration, but it does not mean that IDIQ contractors lack a 'direct economic interest' in the competition for task orders." Instead, because the Government's alleged misconduct would significantly increase competition, National Air would be prejudiced by a non-trivial competitive injury and therefore had standing to protest.

Although the court denied the Government's motion to dismiss, National Air was similarly unsuccessful in its cross-motion for preliminary injunction, as the court held that National Air had failed to prove a substantial likelihood of prevailing on the merits of its protest. Nevertheless, the court's holding with regard to standing could have a significant effect on the court's bid protest jurisprudence, and may affect future GAO decisions. Although GAO and the court derive their standards for standing from different sources – GAO from 4 C.F.R. § 21.0(a)(1) and the court from the Tucker Act, 28 U.S.C. § 1491(b)(1) – the definitional language is identical, and Judge Lettow's decision clearly presents his disagreement with GAO's interpretation of that language.

When it all boils down, though, the GAO's and the court's decisions differ primarily in the angle from which they approach National Air's assertion that it will be competitively harmed by the introduction of United into the IDIQ pool. The court's willingness to take National Air at its word that it will face a non-trivial competitive injury was generated in large part by the fact that the court was viewing the standing issue through the lens of the Government's Rule 12(b) motion to dismiss, in addition to the Government's apparent admission that United will be a significant source of competition at the task order level. Perhaps if the court were considering the standing question while ruling on motions for judgment on the administrative record, the court would require National Air to more affirmatively prove this injury, as GAO did. Regardless, Nat'l Air Cargo signals the court's recognition that increased competition for task orders under a multiple-award IDIQ contract may create a competitive injury that provides contract awardees standing to challenge additional IDIQ contract awards.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Daniel E. Chudd
Locke Bell
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.