In Starry Associates, Inc. v. United States, No. 16-44C (Fed. Cl. July 27, 2016), the Court of Federal Claims (“COFC”) sharply criticized a Department of Health and Human Services (“HHS”) decision to cancel a solicitation following two bid protests at the Government Accountability Office (“GAO”).  The history and outcome of the case are exceptional among bid protests — an area of the law characterized by deference to agency decisions and arbitrary-and-capricious review.

HHS’s Program Support Center (“PSC”) issued a lowest-price, technically acceptable solicitation to procure business-operations services in support of HHS’s financial management system.  Protestor Starry Associates, Inc. was the incumbent, but Intellizant, LLC won the award as the lowest-price offeror.  Starry ended up filing three protests at GAO and the instant protest at the COFC, alleging that the procurement process was “tainted” in favor of Intellizant.  Protests accusing the agency of bias rarely prevail, but the COFC’s decision laid out in detail “a series of actions which,” by the court’s description, “reflect a lack of fidelity to the procurement process.”  And while the court declined to formally determine whether the procurement was tainted by bias, it functionally ended up in the same place.

Continue Reading HHS Seeing Stars After Recent Loss in COFC Bid Protest

When a bid protester decides to accuse an agency of bias, there usually are two separate, potentially cross-cutting concerns: (1) how the allegation might impact customer relations; and (2) whether the allegation will have traction at the GAO or the Court of Federal Claims (the “Court”).  A recent opinion by the Court offers some perspective on the latter, while also raising a few significant questions.

The opinion at issue is InfoReliance Corp. v. United States, No. 14-780C, 2014 WL 5464160 (Fed. Cl. Oct. 23, 2014).  The Court granted a motion filed by InfoReliance, the protester, to pursue limited discovery and to supplement the administrative record on allegations that a U.S. Marine Corps (“USMC”) contract award was affected by the bias of an individual evaluator.  As support, InfoReliance had a declaration from a “Mr. Perry”—presumably, an InfoReliance employee.  Perry’s declaration recounted statements “allegedly made to an InfoReliance officer by two procurement officials who were with the USMC at the time of the procurement.”  These officials suggested that the Management Evaluation Review Panel chairperson (the “MERP Chair”)—who the Court publicly names, even in the official redacted opinion—had improperly influenced the award.  The MERP Chair allegedly “went out of her way” to steer the contract to an InfoReliance competitor, leading others in the USMC to conclude that “the process was manipulated,” and that “bias had infected the process.”  Notably, the MERP Chair had been the Contracting Officer Representative (“COR”) on a related contract that was held by the InfoReliance competitor.
Continue Reading Alleging Agency Bias: Bid Protest Considerations and Open Questions