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.