On the eve of deciding an $82 billion dollar protest dispute, GAO dismissed a string of protests without reaching the merits because another contractor filed a protest of the same procurement at the Court of Federal Claims.  AECOM Management Services, Inc., B-417506.2 et al., Aug. 7, 2019.

GAO did so under its long-standing rule that it will dismiss any protest where “the matter involved” is subject to litigation before a “court of competent jurisdiction” such as the Court of Federal Claims.  4 C.F.R. § 21.11(b).  The recent decision in AECOM shows that GAO interprets that provision broadly and without regard to how far along the GAO litigation is.

In AECOM, GAO dismissed three fully briefed protests of the Army’s award decision in the logistics civil augmentation program (“LOGCAP V”) procurement just two days before GAO’s decision was due because another disappointed offeror had filed a protest of LOGCAP V in the Court of Federal Claims after losing at GAO.  The three protesters will, thus, have to file their own protests at the Court if they wish to continue challenging the LOGCAP V award.

In LOGCAP V, which is valued at $82 billion, the Army sought to award four-to-six Indefinite Delivery/Indefinite Quantity (“IDIQ”) contracts for logistics and sustainment support services at U.S. Military installations throughout the world.  Simultaneous with those IDIQ awards, the Army would award seven initial task orders.

The Army awarded IDIQs and one-or-more task orders to four offerors on April 9, 2019.  Disappointed offeror DynCorp International, LLC (“DynCorp”) filed a GAO protest on April 22, 2019.  Three other disappointed offerors filed timely GAO protests on May 1, 2019.  Pursuant to section 3554(e)(1) of the Competition in Contracting Act, GAO’s deadline to decide the latter three protests was August 9, 2019.  GAO did not consolidate any of the four protests.

GAO denied DynCorp’s protest on July 31, 2019.  DynCorp filed a bid protest in the Court of Federal Claims on August 5, 2019, and notified GAO of its filing that same day.  On August 7, GAO dismissed the three pending protests pursuant to Bid Protest Regulation 21.11(b) even though the statutory deadline for decision was just two days later and the decisions had almost surely been fully drafted by that point.

GAO explained that it will not decide a protest where the matter involved is the subject of litigation before a court of competent jurisdiction “[e]ven where the issues before the court are not the same as those raised in our Office by a protester, or are brought by a party other than the protester” if the court’s disposition of the matter could render a decision by GAO academic.  Because DynCorp was challenging its failure to receive a LOGCAP V IDIQ contract, and the other three protesters were challenging their non-award of LOGCAP V IDIQs or task orders, GAO concluded that resolution of DynCorp’s Court of Federal Claims protest could render a decision by GAO academic.

AECOM is notable for several reasons.  First, GAO’s dismissal on Day 98 of the 100-day protest period makes clear that the stage of the GAO litigation plays no part in the Regulation 21.11(b) analysis.  Second, the decision shows that GAO interprets broadly “the matter involved” language of Regulation 21.11(b).  There is no indication that DynCorp’s Court of Federal Claims protest raised any of the same issues as the pending GAO protests, yet GAO concluded that the Court’s decision could render its resolution of the three protests academic because DynCorp was challenging the LOGCAP V evaluation and award decision as a general matter.

That conclusion highlights another interesting aspect of this case:  DynCorp almost surely would have benefited had any of the other three protesters obtained relief in their GAO protests, which would have been decided by August 9 — just four days after DynCorp filed its Court of Federal Claims protest.  AECOM is, thus, an important reminder that it may behoove those involved in multi-protester litigation at GAO to coordinate with their fellow protesters before heading off to the Court.

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Photo of Hunter Bennett Hunter Bennett

Hunter Bennett regularly represents government contractors in bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also counsels clients in a wide range of formation and disputes issues. Prior to entering private practice, he served as a…

Hunter Bennett regularly represents government contractors in bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also counsels clients in a wide range of formation and disputes issues. Prior to entering private practice, he served as a Trial Attorney with the U.S. Department of Justice, where he was a member of the Department’s Bid Protest Team and frequently defended the United States against bid protests filed in the Court of Federal Claims.

During his tenure at the Department of Justice, Hunter served as lead counsel for the United States in dozens of cases involving complex commercial disputes. He also oversaw the litigation of all habeas corpus cases filed by Guantanamo Bay detainees that were pending before the Honorable Gladys Kessler in the United States District Court for the District of Columbia, and personally tried five detainee habeas cases. Additionally, Hunter briefed and/or argued more than 20 cases in the United States Court of Appeals for the Federal Circuit.

Hunter began his career as a prosecutor in the Philadelphia District Attorney’s Office, where he served as lead counsel in over 200 habeas corpus cases filed in the United States District Court for the Eastern District of Pennsylvania, and successfully briefed and/or argued multiple cases in the United States Court of Appeals for the Third Circuit.

In his spare time, Hunter plays bass guitar in the band Dot Dash, whose song “Shopworn Excuse” was dubbed “a jangly piece of heaven” by USA Today.

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Photo of Evan R. Sherwood Evan R. Sherwood

Evan Sherwood counsels federal contractors on Contract Disputes Act (CDA) claims, the cost accounting standards (CAS), cost allowability, requests for equitable adjustment (REAs), contract terminations for convenience/default, and related audits, litigations, and investigations. He also advises on contract compliance and formation issues, including TINA/defective pricing…

Evan Sherwood counsels federal contractors on Contract Disputes Act (CDA) claims, the cost accounting standards (CAS), cost allowability, requests for equitable adjustment (REAs), contract terminations for convenience/default, and related audits, litigations, and investigations. He also advises on contract compliance and formation issues, including TINA/defective pricing, data rights, mandatory disclosure rules, ethics, conflicts of interest, teaming arrangements, and other transaction agreements (OTAs). He has litigated matters before the Court of Federal Claims, the Armed Services Board of Contract Appeals, the Government Accountability Office, and the Federal District Courts.

In his work for defense and civilian agency contractors, Evan:

  • Prepares CDA claims and REAs;
  • Litigates matters involving CAS compliance, cost accounting practice changes, and cost allowability under the FAR and grant rules;
  • Defends contractors during audits and investigations involving the Defense Contract Audit Agency (DCAA), Defense Contract Management Agency (DCMA), and the Office of the Inspector General (OIG);
  • Advises on constructive changes, work delays, defective specifications, stop-work orders, government-furnished property, CPARS, warranty matters, data rights, and quality controls;
  • Counsels on disputes between primes and subcontractors, including teaming disputes; and
  • Conducts internal investigations and defends clients in federal investigations involving whistleblower allegations and retaliation claims.

Evan is a Vice Chair of the ABA Public Contract Law Section’s Contract Claims & Disputes Resolution Committee. He routinely writes and speaks about legal issues in federal contracting.

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