United States: September 2016 Protest Roundup

In the second installment of our new monthly feature, we identify a few noteworthy bid protest decisions from the month of September and discuss briefly some of the developments or trends observed in those decisions.

Palantir Technologies, Inc. et al. v. United States (Fed. Cl. 2016).

The consequences of the Federal Circuit's 2007 decision in Blue & Gold Fleet, L.P. are still being fleshed out by the Circuit and the Court of Federal Claims (COFC). In Palantir, the Government attempted to broaden the Blue & Gold rules concerning timeliness and waiver of bid protests before the court. In this case, the protester filed a pre-award protest at the GAO prior to the due date for the submission of proposals challenging the terms of the solicitation. Palantir did not submit a proposal. The GAO denied Palantir's protest on its merits. Forty-three days later, but still before award, Palantir filed its complaint at the COFC.

The Government moved to dismiss the complaint on several grounds: (i) by waiting 43 days to file at the court, the plaintiff failed to pursue its claims diligently and thus ceased to be an interested party, (ii) Palantir did not have the requisite economic interest in the protest because it did not submit a proposal or respond to the Government's request for information (RFI), and (iii) that certain of the arguments in the plaintiff's complaint were waived because they were not raised during the GAO protest.

The court, in an opinion by Judge Horn, denied the Government's dismissal request. Despite the 43-day passage of time between the GAO's decision and the initiation of the COFC protest, the court found that Palantir had diligently pursued its protest. The court emphasized that the agency had not yet made an award, and noted that "a pre-award protest is in a different posture than a post-award protest." The court declined the Government's request to adopt the GAO's statutory 10-day filing window. The upshot: waiting 43 days may be too late in some circumstances, but not here. The court, citing precedent from the Circuit, then rejected the notion that the plaintiff's failure to submit a proposal or respond to RFIs waived its ability to protest. Here, the plaintiff had responded to earlier RFIs, and had adequately demonstrated its economic interests in the task order. Lastly, the court rejected the Government's novel "issue waiver" argument, finding that there was neither legal nor factual support for limiting the plaintiff to the precise arguments it presented to GAO.

Aided by the Government's persistent quest to narrow the COFC's bid protest jurisdiction as much as possible, this case presents another example of how Blue & Gold can manifest in unique ways.

Medfinity LLC, B-413450, September 9, 2016

Medfinity challenged the reasonableness of the Agency's decision to cancel a solicitation. The GAO denied the protest. The GAO's decision is unremarkable, but the facts underlying it are noteworthy.

The initial solicitation was for the supply of optometry equipment for the Department of Health and Human Services (HHS). The solicitation identified some equipment using brand names and model numbers. Medfinity proposed different products but asserted in its proposal that they were equivalent to the brand names identified in the solicitation. HHS initially awarded the task order to Medfinity as the lowest-priced offeror, but a disappointed bidder protested the award to the agency and asserted that Medfinity's proposed equipment was not equivalent and would not meet the agency's needs. The agency sustained the protest and required HHS, if it still needed the goods, to amend the solicitation to identify the salient characteristics of the products the agency requires. The agency terminated Medfinity's task order and cancelled the solicitation. Medfinity asserted to the agency and then again in a follow-on protest to GAO that the agency had improperly cancelled the solicitation. As it does in almost all cases involving a challenge to an agency's decision to cancel a solicitation, the GAO denied the protest, citing the significant discretion afforded to agencies when making such threshold decisions.

The facts of this case reinforce two important practice tips. First, in the right scenario, agency level protests (see recent post on such protests) can be an effective and efficient way to resolve plain agency error. In Medfinity, it appeared the agency clearly failed to compare the equivalency of the products Medfinity offered against the agency's needs. In cases of clear error or obvious procedural defects, there is often no need to run off to the GAO or the CFOC; bringing the issue to the agency's attention may suffice. Second, solicitations identifying solutions by brand names can be problematic. Many companies see such requirements as anticompetitive, especially when the company that owns the brand is competing for the same award or if a competitor has an exclusive arrangement with the brand name owner. This case presented a different issue, in which the solicitation's identification of brand names was insufficient to identify potentially equivalent products in accordance with FAR § 11.104. Companies should take a close look at solicitations that include brand names and assess whether they present grounds for a question to the agency or possibly a protest to the agency or GAO concerning the agency's appetite for a full and open competition.

Professional Service Industries, Inc., B-412721.2 et al., July 21, 2016

Professional Service Industries, Inc. (PSI) successfully challenged the agency's evaluation of the awardee's proposed program manager. The solicitation required the offerors to demonstrate that their program managers have, among other things, experience managing certain facilities and "directing a diverse team of researchers and technicians." The awardee's program manager was an engineer on the incumbent task order, but apparently did not possess the requisite management experience. This issue was raised in discussions with the awardee, who, in its final proposal revision, attempted to mitigate the lack of experience by having another individual oversee the program's management. The awardee received a weakness for its program manager's lack of experience and overall technical rating of satisfactory.

Interestingly, the final evaluation included two reports from the technical evaluation team: a majority report that concluded the risk concerning the awardee's program manager had been adequately mitigated and a minority report (written by the chair of the technical evaluation team) that came to the opposite conclusion. The source selection decision noted both reports, but ultimately sided with the majority of the technical team, concurring that the risk was adequately mitigated and in accordance with the solicitation.

The GAO disagreed, concluding that the source selection authority acted unreasonably when it determined that the awardee's approach to the program manager position was consistent with the solicitation. The GAO overruled the agency's conclusion and found that there was "no basis in the record to conclude that [the program manger's] experience equates to 'directing a diverse team of researchers and technicians.'" The GAO recommended that the agency either reevaluate proposals in accordance with the solicitation or, if necessary, amend the solicitation to meet its needs and request revised proposals.

Given the brevity with which GAO opinions are written, the reader cannot know the entirety of the circumstances. Nevertheless, it is unusual for GAO to overrule agency decisions where the record, as was apparently the case here, demonstrated that the agency identified the issue, evaluated the issue thoroughly, and further demonstrated that the source selection authority had grappled with the relevant issues before making the final award decision. In cases where the agency's rationale is well documented, the GAO will typically defer to the agency, even if an alternate outcome seems more appropriate. Here, however, it seems GAO simply could not come to grips with the agency's conclusion and sustained the protest on that basis.

Technica Corporation, B-413339, September 19, 2016

Technica challenged the agency's rejection of its quotation for the award of a task order due to Technica's failure to recertify as a small business. The outcome of the protest is unremarkable, but the facts are noteworthy because they provide another example of what constitutes a request for recertification, which has arisen in numerous protest-based and counseling-based scenarios.

The recertification issue arises when a small business receives an indefinite-delivery, indefinite quantity (IDIQ) contract that is set aside for small businesses and grows to be other than small during the IDIQ contract performance period. After the company outgrows its small business size status, there are questions about whether and when the company can continue to pursue task orders issued under the small business IDIQ contract. The general rule is that the contractor can continue to pursue task orders issued under the IDIQ contract unless an issuing agency, in the context of a task order solicitation, requires offerors to recertify their size status to qualify for the task order.

The question in the Technica protest was whether the agency had actually requested that contractors recertify their size status in the request for quotation (RFQ). Although the initial draft of the RFQ did not require contractors to recertify their size status, the issuing agency received a question during the "Questions and Answers" (Q&A) phase of the procurement asking whether offerors are required to recertify as a small business. The issuing agency answered the question affirmatively.

GAO found that the Q&A constituted a solicitation provision that required offerors to recertify their size status at the time of quotation submission. GAO concluded that the Q&A is incorporated into the solicitation and can require recertification in a manner that is equivalent to a more traditional request for size status recertification.

InfoReliance Corporation, B-413298, September 19, 2016

In InfoReliance, the protester unsuccessfully challenged an agency's decision to set aside procurement for small businesses. The solicitation (RFQ) was issued to contractors that hold General Services Administration (GSA) IT70 Federal Supply Schedule (FSS) under FAR subpart 8.4. The agency conducted market research and determined that there were at least two small businesses capable of performing the contractual requirements at a fair and reasonable price, thereby satisfying the "rule of two" requirement to set aside an order. The GAO concluded that the agency's research and documentation reasonably supported the decision to set aside the procurement for small businesses, which is within the agency's discretion.

Although the outcome of InfoReliance is not extraordinary, the decision provides the first discussion of the interplay between the preference programs described in FAR Part 19 and FAR subpart 8.4 since the Supreme Court decided Kingdomware Techs. Inc. v. United States, 136 S. Ct. 1969 (June 16, 2016). In Kingdomware, the Supreme Court ruled that set-aside requirements apply to both contracts and FSS orders, challenging GAO's and GSA's long-standing position that FSS orders are exempt from set-aside requirements. GSA has argued that the requirement to set aside contracts under the "rule of two," which is a requirement found in 15 U.S.C.A. § 644(j), does not apply to FSS orders for two reasons: (i) FAR Part 19 expressly exempts FSS procurements from small business regulations, and (ii) 15 U.S.C.A. § 644(r) permits agencies to utilize discretion when deciding to set aside FSS orders. Despite GSA's interpretation, however, 15 U.S.C.A. § 644(r) takes exception to the requirement, as section 644(j) states that all procurements between $2,500 and $100,000 must be set aside if the rule of two is satisfied.

In Inforeliance, the GAO cited FAR Part 19 and the Aldevra decision for the proposition that the preference programs contained therein are "generally not applicable to procurements under the FSS procedures or FAR subpart 8.4." Nevertheless, the Aldevra decision relies, in part, on GAO's distinction between "contracts" and "orders" (finding that the set-aside requirements in § 644(j), and FAR Part 19 apply to "contracts" but not "FSS orders"). The Supreme Court shredded that distinction in Kingdomware, ruling that there is no distinction between a "contract" and an FSS "order" in the context of the rule of two analysis.

The GAO's reliance on FAR Part 19 was best reflected in a footnote in the Inforeliance decision stating "[i]nsofar as the socio-economic programs set forth under FAR part 19 are not mandatory when placing orders under the FSS program . . . InfoReliance's assertion that the [agency] failed to comply with the requirements of FAR § 19.502-2(b) when making its set-aside decision fails to state a valid basis for protest." The citation to Aldevra and the footnote quoted above create uncertainty about whether GAO will continue to rule that agencies are not required to set aside any FSS orders (including those with a value of less than $100,000), even when the rule of two is (or can be) satisfied. To confirm the GAO's position and understand its rationale, however, we need to wait for a protest challenging an agency's failure to set aside an FSS order despite having knowledge that the rule of two can be satisfied.

You can find more information about the Kingdomware decision and the interplay between the statutes and regulations in a more detailed article about those topics. You can also find more information about GSA's interpretation of the statutory and regulatory requirements on FSS orders here.

Mercury Data Systems, Inc., B-413217, September 9, 2016

We offer a quick note on Mercury Data Systems Inc. (MDS)'s recent protest, in which it challenged the Department of Homeland Security's determination not to fund MDS's proposal for certain research projects. Among a number of other arguments, MDS argued that a weakness assessed against its proposal for failure to sufficiently explain its proposed innovations was unreasonable because the weakness directly contradicted a strength assigned for its proposed use of the same innovative technology.

Protesters often challenge technical evaluations by arguing that a weakness is unreasonable because the agency assigned a strength for the same similar aspect of the proposal. GAO took the opportunity to once again clarify the issue in Mercury Data by concluding that "aspects of a proposal may provide both benefits and weaknesses, and evaluators may identify both without being inconsistent." Although this decision does not and should not preclude protesters from identifying contradictions and inconsistencies in the agency's technical evaluation, it does reinforce the well-established deference agencies receive on matters stemming from the exercise of technical or programmatic judgment.

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.

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.