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