Standing

This blog previously covered the Federal Circuit’s decision in Percipient.ai, Inc. v. United States, which addressed bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”), and seemed to potentially open the door to a new category of protests.  Now, in an en banc ruling, the Federal Circuit vacated that decision and reached a different conclusion on bid protest standing.  The Federal Circuit left the jurisdictional questions unresolved, but even if future decisions construe COFC’s jurisdiction broadly, the Federal Circuit’s decision on standing will likely limit the universe of new protests that might otherwise result from such a broad construction of jurisdiction.    Continue Reading En Banc Decision in Percipient.ai, Inc. v. United States:  Federal Circuit Holds That Only Actual or Prospective Bidders or Offerors Have Bid Protest Standing Under Tucker Act

On June 7, 2024, the Federal Circuit issued a major decision addressing bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”).  In Percipient.ai, Inc. v. United States, the court found that COFC has jurisdiction to hear a protest challenging a matter of contract administration — even where the matter arose in connection with a task order — and articulated a new test for standing applicable to the facts presented in that case. Continue Reading Percipient.ai, Inc. v. U.S.:  Matters of Contract Administration Can Be Fair Game For COFC Protests, Even When They Involve a Task Order

On May 10, 2023, the United States Court of Appeals for the Federal Circuit issued a decision regarding bid protest standing in CACI, Inc.-Federal v. United States et al.  In that decision, the court declared previous decisions to no longer be good law and held that the Court of Federal Claims erred in finding the protester to lack standing.Continue Reading Federal Circuit Weighs in on Bid Protest Standing and Departs from Prior Cases

Many a bid protest has been dismissed for lack of standing.  But often that ostensible lack of standing has more to do with how the protest arguments are crafted than the facts underlying the procurement.  The Court of Federal Claims’s recent decision in Precision Asset Management Corp. v. United States (No. 15-1495) is a good example.

Precision protested the Department of Housing and Urban Development’s award of an asset management services contract to KM Minemier & Associates, LLC.  In evaluating proposals, HUD first identified technically-acceptable proposals on a pass/fail basis.  Among the technically-acceptable proposals, HUD then evaluated past performance and price to determine which proposal offered the best value to the government.

Precision’s proposal received a “Neutral/Unknown Confidence” rating for past performance.  KM Minemier’s proposal, by contrast, received a “Good/Significant Confidence” rating.  Precision protested the award, arguing that “had HUD evaluated Precision’s proposal in accordance with the Solicitation instead of treating it as a joke and had HUD evaluated Minemier’s proposal in accordance with the facts, Precision would have stood a substantial chance of receiving this award.”  Specifically, Precision alleged that, but for HUD’s evaluation errors, its own past performance rating would have been higher while KM Minemier’s would have been lower.Continue Reading Recent COFC Decision Underscores Need for Vigilance in Demonstrating Protest Standing