[GGD/OGC-00-72] Bid Protests: Characteristics of Cases Filed in Federal Courts , Part 2/2
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who represented the businesses that filed protests and asked them
whether their clients were small businesses and, if so, the basis
for considering the company a small business. If any of these
sources indicated that the firm that filed the Appendix I
Objectives, Scope, and Methodology Page 26 GAO/ GGD/ OGC- 00- 72
Bid Protests protest was a small business, we counted it as a
small business. However, not all attorneys were willing to discuss
their cases. Given the data limitations, the results should be
considered an estimate of the number of small businesses that
filed in either district courts or COFC. To supplement the
information in the case files on the dollar amount and nature of
the procurement in dispute and to obtain information on why the
protester chose to file in district court or COFC, we used a
structured interview schedule to interview the attorneys of record
for the businesses who filed the protest and the agencies who were
the defendants in these cases. However, not all attorneys were
willing to discuss their cases, and our data on procurement
amounts is based on a portion of the cases reviewed. In some
cases, the attorneys interviewed were able to estimate the amount
of the procurement but did not know the exact amount of the
procurement. Because of these limitations in the data, we have
reported only the range of the value of the procurements in
dispute. We interviewed 48 different attorneys in 52 district
court cases. (Some attorneys had more than one case.) Of these, 27
were attorneys for the plaintiff (protester) in 28 cases, and 21
were attorneys for the defendant in 24 cases. We briefly spoke
with four attorneys two for the plaintiffs and two for the
defendants but did not conduct an actual interview. For example,
one attorney explained that he was not at liberty to discuss the
case. We also spoke with a representative of an office that
represented a defendant but were unable to conduct an interview.
In addition, we spoke with 10 attorneys two for the plaintiff and
8 for the defendants in 9 different cases to confirm, in their
opinions, that the cases from our original list of 94 cases were
not bid protest cases. For COFC cases, where the case file
identified the protester as a small business firm or identified
the amount of the disputed procurement, we used the information
from the case file. However, the majority of COFC case files did
not contain this information. For example, we were able to
identify 14 small business protesters from the case files. To
supplement our case file interviews, we conducted telephone
interviews with 70 attorneys for the plaintiff (protester) in 104
of the 118 bid protest cases filed in COFC between January 1,
1997, and August 1, 1999. (Some attorneys had more than one case.)
If the attorney indicated that his or her client was a small
business, we counted it as such. We also used the attorney's
stated value of the procurement in those cases in which the amount
could not be determined from the case file. Appendix I Objectives,
Scope, and Methodology Page 27 GAO/ GGD/ OGC- 00- 72 Bid Protests
We then analyzed and summarized the information from the case
files and interviews to identify the common experiences, if any,
of business that had filed bid protest cases in the district
courts and COFC during the period of our review. This included
categorizing the case outcomes in district courts and COFC. Each
of the cases was reviewed by an evaluator, who completed the DCI,
and an attorney from our Office of General Counsel, who reviewed
the DCIs and case files. Attorneys from our Office of General
Counsel also categorized the legal issues raised in the bid
protest cases filed in district courts and COFC. We did our work
in Washington, D. C., and Los Angeles between March 1999 and
January 2000 in accordance with generally accepted government
auditing standards. We obtained written comments on a draft of
this report from the Department of Defense, the American Bar
Association's Section of Public Contract Law, and the Federal Bar
Association's Government Contracts Section. These comments are
summarized at the end of the letter and are contained in
appendixes VII, VIII, and IX. Appendix II Bid Protest Cases Filed
in U. S. District Courts Between January 1, 1997, and April 30,
1999 Page 28 GAO/ GGD/ OGC- 00- 72 Bid Protests This appendix
lists the 66 district court bid protest cases that we identified
as filed between January 1, 1997, and April 30, 1999. The cases
are arranged by district and within district by year filed. The
table also indicates which cases were filed by small businesses.
We counted a case as a small business case if (1) the protestor
was identified as a small business in the case file documents; (2)
the attorney who represented the protestor said the protestor was
a small business, or (3) the protestor had registered with the
Small Business Administration. District/ case name Year filed
Small business case District of Columbia Correctional Vendors
Association 1997 Dynamic Decisions, Inc. a 1997 Dynamic
Decisions, Inc. a 1997 Information Systems & Networks Corp. 1997
Lake Michigan Contractors, Inc. 1997 Syska & Hennessy, Inc. 1997
TMC Technologies, Inc. 1997 United International Investigative
Services, Inc. 1997 United Valve Co. 1997 Amfac Resorts, LLC 1998
Aramark Sports and Entertainment Services, Inc. 1998 Arthur D.
Little, Inc. 1998 Correctional Vendors Association 1998 Dayton
Granger, Inc. 1998 Dillingham Construction International, Inc.
1998 DSE, Inc. d/ b/ a Dayron 1998 The Iceland Steamship Co.,
Ltd. Eimskip 1998 Information Handling Services, Inc. 1998 Launch
Support Company, LLC 1998 NWT Inc. 1998 Wackenhut Corrections
Corp. 1998 Worcester Brothers Co., Inc. 1998 Anadac, Inc. 1999
Bay Ship Management, Inc. 1999 Kira, Inc. 1999 Nick Chorak
Mowing 1999 Sealed WRD Venture; NWD Venture 1999 Eastern District
of Virginia Groome Transportation, Inc. 1997 Hunt Building
Corporation 1997 Marine Hydraulics International, Inc. 1997
Omniplex World Services Corporation; MSM Security Services, Inc.
1998 Northern District of Alabama Pemco Aeroplex, Inc. 1998 Table
II. 1: District Court Bid Protest Cases Reviewed Appendix II Bid
Protest Cases Filed in U. S. District Courts Between January 1,
1997, and April 30, 1999 Page 29 GAO/ GGD/ OGC- 00- 72 Bid
Protests District/ case name Year filed Small business case
District of Alaska John MacDonald and Joyce MacDonald 1998
District of Arizona Sun Belt Builders, Inc. 1997 Eastern District
of California Lewis C. Nelson and Sons, Inc. 1998 Northern
District of California Concord Disposal Service, Inc. 1997
National Airmotive Corporation 1998 Southern District of
California San Diego Beverage & Kup 1998 Maxwell Technologies,
Inc. 1998 Middle District of Florida Braswell Services Group, Inc.
1997 Northern District of Florida Hedgecock Electric, Inc. 1997
Middle District of Georgia Spectrum Landscape Services, Inc. 1998
Northern District of Illinois Sabbia Corporation 1997 Neals
Janitorial Service 1997 Southern District of Illinois Russo &
Sons, Inc. 1999 District of Kansas Lawrence Medical Equipment,
Inc. 1998 Eastern District of Kentucky Outdoor Venture Corporation
1998 District of Maryland MilVets Systems Technology, Inc. 1998
District of Massachusetts American Science and Engineering, Inc.
1999 Southern District of Mississippi Madison Services, Inc. 1997
District of New Mexico Peacock, Myers & Adams, P. C. 1998
Southern District of New York Abner Realty, Inc. 1997 Southern
District of Ohio Waste Control Specialists, LLC b 1999 Western
District of Oklahoma David Mitchell Construction, Inc. 1999
Eastern District of Pennsylvania United Ammunition Container, Inc.
1997 Baldt, Incorporated 1998 American Competitiveness Institute
1998 FCA Holdings, Inc. 1997 Western District of Pennsylvania R.
A. Glancy & Sons 1999 Appendix II Bid Protest Cases Filed in U. S.
District Courts Between January 1, 1997, and April 30, 1999 Page
30 GAO/ GGD/ OGC- 00- 72 Bid Protests District/ case name Year
filed Small business case District of South Carolina South
Carolina Military Department 1999 District of South Dakota James
N. Danielson 1998 Eastern District of Texas Walsh Distribution,
Inc. 1999 Northern District of Texas Waste Control Specialists,
LLC b 1997 District of Utah Booth & Associates, Inc. 1997
District of Virgin Islands HAP Construction, Inc. 1998 Western
District of Washington Sterile Surgical Systems, LLC 1998 a Both
of the Dynamic Decisions filings arose from the same solicitation.
b Waste Control filed two suits arising from the same solicitation
one in the Southern District of Ohio and one in the Northern
District of Texas. Sources: District court case files, attorney
interviews, Small Business Administration. Appendix III Bid
Protest Cases Filed in COFC Between January 1, 1997, and August 1,
1999 Page 31 GAO/ GGD/ OGC- 00- 72 Bid Protests This appendix
includes a listing of the118 bid protest cases that COFC's Clerk
of Court provided to us. Table III. 1 lists the cases and
indicates whether the complaint was sealed, the entire case file
was sealed, and the case was filed by a small business protestor.
We counted a case as a small business case if (1) the case was
identified as a small business in the case files, (2) the attorney
for the protestor indicated that the protestor was a small
business, or (3) the protestor was registered as a small business
with the Small Business Administration. Case name Docket number
Sealed complaint Sealed case Small business case a 1997 cases
Cubic Applications, Inc. 97- 29C Surface Technologies Corp., Inc.
97- 30C Cincom Systems, Inc. 97- 72C Day & Zimmerman 97- 90C
Sabreliner Corporation 97- 119C Asilomar Management Co. 97- 134C
Allied Technologies Group, Inc. 97- 143C Greater Richmond
Cleaning, Inc. 97- 164C Mike Hooks, Inc. 97- 181C Minor Metals,
Inc. 97- 194C J. C. N. Construction Co., Inc. 97- 238C Graphic
Data, LLC 97- 256C W & D Ships Deck Works, Inc. 97- 308C
Analytical & Research Technology, Inc. 97- 380C ATA Defense
Industries, Inc. 97- 382C Aero Corporation, S. A. 97- 416C Lyons
Security Services, Inc. 97- 505C CC Distributors, Inc. 97- 517C
Redland Genstar, Inc. 97- 533C Alfa Laval Separation, Inc. 97-
536C The Famous Construction Co. 97- 555C Delbert Wheeler
Construction, Inc. 97- 586C Alliant Techsystems, Inc. 97- 626C
SmithKline Beecham 97- 633C Tecom, Inc. 97- 663C HSQ Technology,
Inc. 97- 667C Table III. 1: Bid Protest Cases Filed in COFC,
January 1, 1997, through August 1, 1999 Appendix III Bid Protest
Cases Filed in COFC Between January 1, 1997, and August 1, 1999
Page 32 GAO/ GGD/ OGC- 00- 72 Bid Protests Case name Docket number
Sealed complaint Sealed case Small business case a Wackenhut
International, Inc. 97- 680C Peirce- Phelps, Inc. 97- 683C CCL,
Inc. 97- 721C Brickwood Contractors, Inc. 97- 844C ECDC
Environmental 97- 723C FORE Systems Federal, Inc. 97- 731C The
Centech Group 97- 740C Clark Construction Group, Inc. 97- 749C
Roxco, Ltd. 97- 768C Scientech, Inc. 97- 824C RSL Electronics,
Ltd. 97- 837C Candle Corp. 97- 851C Consolidated Services, Inc.
97- 855C 1998 cases Informatics Corp. 98- 16C Carter Industries,
Inc. 98- 27C Washington Baltimore Cellular Ltd. Partnership 98-
50C Meir Dubinsky 98- 56C United International Investigative
Services, Inc. 98- 80C Metric Construction, Inc. 98- 91C Son
Broadcasting, Inc. 98- 115C CRC Marine Services, Inc. 98- 128C
Pike's Peak Family Housing, Inc. 98- 147C Ramcor Services Group,
Inc. 98- 152C United International Investigative Services, Inc.
98- 153C Modern Technologies, Inc. 98- 309C John C. Grimberg Co.
98- 338C Hewlett- Packard Company 98- 406C Talton Holdings 98-
409C FN Manufacturing, Inc. 98- 447C Sealed case b Sealed case
Firearms Training Systems, Inc. 98- 476C Winstar Communica- tions
98- 480C Advanced Data 98- 495C MVM Inc. 98- 520C The Trane
Company 98- 559C Miller Holzworth 98- 576C Phoenix Air Group 98-
602C Appendix III Bid Protest Cases Filed in COFC Between January
1, 1997, and August 1, 1999 Page 33 GAO/ GGD/ OGC- 00- 72 Bid
Protests Case name Docket number Sealed complaint Sealed case
Small business case a Torrington Company 98- 613C Metric Systems
98- 616C California Marine Cleaning, Inc. 98- 636C CCL Service
Corporation 98- 664C PCC Federal Systems 98- 692C Adirondack
Construction 98- 698C United International 98- 729C ITT Federal
Services 98- 731C Hewlett- Packard Company 98- 738C Data
Systems 98- 745C Synectics, Inc. 98- 746C Anderson Columbia
Environmental, Inc. 98- 759C Institute for Captive Chimpanzee Care
and Well- Being, Inc. 98- 780C Universal Systems and
Technologies, Inc. 98- 806C Beautify Professional Cleaning
Services, Inc. 98- 829C U. S. Investigations Services, Inc. 98-
869C Input/ Output Technology, Inc. 98- 836C Forestry Surveys
98- 844C Meir Dubinsky 98- 884C DGS Contract Service, Inc. 98-
891C Pemco Aeroplex, Inc. 98- 899C Indiana Chair Frame Company
98- 927C Protec, Inc. 98- 932C 1999 cases 105 West Adams
Building, LLC 99- 3C S. J. Thomas Co., Inc. 99- 70C OMV
Medical, Inc. 99- 74C OMV Medical, Inc. 99- 75C Envirocare
of Utah 99- 76C Science Applications 99- 81C District of Columbia
Parking Associates 99- 86C Marine Hydraulics International, Inc.
99- 107C Ryan Company 99- 113C Chas. H. Tompkins Company 99- 122C
Appendix III Bid Protest Cases Filed in COFC Between January 1,
1997, and August 1, 1999 Page 34 GAO/ GGD/ OGC- 00- 72 Bid
Protests Case name Docket number Sealed complaint Sealed case
Small business case a MVM, Inc. 99- 135C MVM, Inc. 99- 136C
MVM, Inc. 99- 137C Seattle Security Services, Inc. 99- 139C
Cubic Defense System, Inc. 99- 144C Akal Security, Inc. 99- 149C
Kellie W. Tipton Construction Company 99- 183C Bay Ship
Management, Inc. 99- 184C American Renovation & Construction 99-
171C Meir Dubinsky 99- 191C MVM, Inc. 99- 220C Beta Analytics
International, Inc. 99- 222C Acra, Inc. 99- 337C Hewlett-
Packard Company 99- 358C Brickwood Contractors, Inc. 99- 367C
Brickwood Contractors, Inc. 99- 388C Impresa Construzioni 99-
400C Stratos Mobile 99- 402C Cubic Defense Systems 99- 483C J &
D Maintenance and Services 99- 484C Unified Architecture and
Engineering, Inc. 99- 414C ES- KO, Inc. 99- 528C a Where
possible, for sealed cases we attempted through attorney
interviews to determine if the protestor was a small business. In
cases where we have noted that the case files were sealed and the
protestor was a small business, the identification of the
protestor as a small business was based on attorney interviews. b
The name of the protestor was not available for this case in which
the names of the parties were sealed. Sources: COFC Clerk of
Court, case files, and interviews with protestor attorneys.
Appendix IV Summary of Legal Issues Raised in U. S. District Court
and COFC Bid Protest Cases Reviewed Page 35 GAO/ GGD/ OGC- 00- 72
Bid Protests We reviewed the legal issues raised in each of the 65
unsealed bid protest cases filed in U. S. district courts between
January 1, 1997, and April 30, 1999, and each of the 100 unsealed
COFC cases filed between January 1, 1997, and August 1, 1999. The
table below shows the major categories of issues raised. Legal
issue Number of cases in which issue was raised District Court a
COFC a Solicitation issues b 24 25 Evaluation and source selection
c 26 54 Responsibility 2 5 Propriety of discussions 7 19 Bid
Rejection d 5 9 Procurement integrity e 0 5 Override of
Competition in Contracting Act stay of performance 5 1 Postaward
procurement- related actions f 7 8 Small business issues g 6 5
Other h 3 2 a Because some cases raised more than one issue, the
total of the individual entries exceeds the number of cases
reviewed. b Includes specification challenges, bundling of
requirements, failure to solicit, sole- source awards, multiple
awards, use of sealed bidding versus negotiation, and cancellation
of solicitation/ resolicitation. c Includes technical or cost
proposal evaluation, including evaluation of past performance/
experience; waiver of requirements; cost/ technical trade- off or
best value determinations; exclusion from the competitive range;
and favoritism, bias, or unfair treatment in the evaluation of
proposals. d Includes responsiveness and late bids. e Includes
agency release of information and insider information. f Includes
contract modifications, exercise of contract options, and
termination of contract. g Includes Standard Industrial
Classification code and size determinations, nonresponsibility
determinations requiring referral to SBA, and small business
preferences. h District court cases include one case that could
not be categorized due to a lack of information in the file, and
two cases brought against GAO. The two COFC cases involve Equal
Access to Justice Act fees related to a protest action. Source:
GAO analysis of bid protest cases. Table IV. 1: Summary of Legal
Issues Raised in District Court and COFC Bid Protest Cases
Reviewed Appendix V Examples of Bid Protest Cases Filed in U. S.
District Courts Between January 1, 1997, and April 30, 1999 Page
36 GAO/ GGD/ OGC- 00- 72 Bid Protests This appendix includes
examples of bid protest cases filed in U. S. District Courts
between January 1, 1997, and April 30, 1999. The appendix includes
examples of five cases filed by protestors not identified as small
businesses and five cases filed by small businesses. The docket
numbers are shown in parentheses. Launch Support Company, LLC v.
United States (Case No. 1: 98CV02145) Launch Support Company filed
this postaward bid protest case in the U. S. District Court for
the District of Columbia in 1998. Launch Support submitted an
unsuccessful proposal in response to a joint Air Force/ National
Aeronautics and Space Administration (NASA) request for proposals
to provide base operation services at Kennedy Space Center, Cape
Canaveral Air Station, and Patrick Air Force Base. Launch Support
claimed that the government's cost realism analysis of the winning
proposal (submitted by Space Gateway) was unreasonable and that
its selection decision was improper. In an October 16, 1998,
order, the district court granted the defendant's motion for
summary judgment and dismissed the complaint. The court found that
the agency's cost realism analysis and the agency's selection of
Space Gateway was not unreasonable. Wackenhut Corrections
Corporation v. United States (Case No. 98- 1541) Wackenhut
Corrections Corporation filed this postaward bid protest case in
U. S. District Court for the District of Columbia in 1998.
Wackenhut's proposal was eliminated from the competition for a
Bureau of Prisons (BOP) contract to operate a private prison for
inmates that were to be transferred from the District of
Columbia's Lorton Correctional Institution. One of the
requirements in the request for proposal was the demonstration of
legal authority to perform the contract. Wackenhut's proposal was
rejected because, in BOP's view, the firm had not clearly
demonstrated that it had the legal authority to operate a private
prison housing federal inmates at the proposed North Carolina
site. In a July 10, 1998, order, the district court denied
plaintiff's motion for a preliminary injunction. The Court found
that Wackenhut had not made a sufficient threshold showing that
BOP's decision was arbitrary or capricious, because there were
questions about the firm's authority to construct a facility for
out- of- state inmates in North Carolina. On December 18, 1998,
the plaintiff stipulated to a dismissal of the case with
prejudice, which the court granted. Cases Not Filed by Small
Businesses Appendix V Examples of Bid Protest Cases Filed in U. S.
District Courts Between January 1, 1997, and April 30, 1999 Page
37 GAO/ GGD/ OGC- 00- 72 Bid Protests Aramark Sports and
Entertainment Services, Inc. v. United States (Case No. 1:
98CV01990) Aramark Sports and Entertainment Services filed this
preaward bid protest case in the U. S. District Court for the
District of Columbia in 1998. The plaintiff objected to provisions
of a prospectus issued by the National Park Service seeking an
operator for concession services at the Glen Canyon National
Recreation Area for a 15- year period, commencing when the
plaintiff's current concessions contract expired. Aramark claimed
that the terms of the prospectus forced it to forego statutory
rights, including (1) the right of preference in the renewal of
the concession contract; (2) the requirement that upon expiration
or termination of a concession contract, the prior concessioner
must be paid the sound value of its interest in the property used
in the performance of the concession contract; and (3) the
requirement that any concessioner must be granted a reasonable
opportunity to make a profit on its operations as a whole
commensurate with the capital invested and the obligations
assumed. The agency withdrew the prospectus, and agreed to review
the prospectus and resolve various issues raised by the complaint.
On February 16, 1999, the parties moved jointly to dismiss the
case without prejudice, and the court granted the motion. ANADAC,
Inc. v. United States (Case No. 1: 99CV00169) ANADAC filed this
postaward bid protest case in the U. S. District Court for the
District of Columbia in 1999. The plaintiff objected to the
Immigration and Naturalization Service's (INS) award of a contract
for live- scan systems designed to capture the fingerprints of
naturalization applicants for electronic submission to the Federal
Bureau of Investigation (FBI). The plaintiff claimed that (1) the
awardee (Digital Biometrics) failed to demonstrate its ability to
comply with the technical requirements of the solicitation, (2)
the awardee did not have the financial capability to perform, and
(3) INS relaxed delivery requirements for the awardee. On February
19, 1999, the district court denied ANADAC's motion for a
preliminary injunction, finding that the plaintiff had not
demonstrated a substantial likelihood of success on the merits.
The court found that ANADAC did not provide any factual basis to
demonstrate that the awardee had failed its technical
demonstration, that a reasonable basis existed for INS' financial
responsibility determination, and that the delivery schedule fell
within the statement of work. On March 4, 1999, the plaintiff
moved to dismiss the case, and the court granted the motion.
Appendix V Examples of Bid Protest Cases Filed in U. S. District
Courts Between January 1, 1997, and April 30, 1999 Page 38 GAO/
GGD/ OGC- 00- 72 Bid Protests Lawrence Medical Equipment, Inc. v.
United States (Case No. 98- CV- 4153) Lawrence Medical Equipment
filed this postaward bid protest case in the U. S. District Court
for the District of Kansas in 1998. Lawrence Medical Equipment
submitted a proposal to provide in- home oxygen and other
respiratory services for veterans or other beneficiaries receiving
benefits through Veterans Administration medical centers in
Missouri, Kansas, and Illinois and was not selected for award.
Lawrence claimed that its proposal offered the lowest price for
the locations covered by its proposal and that its technical and
past performance qualifications matched, if not exceeded, those of
Home Care, the awardee. Lawrence also claimed that Home Care did
not meet certain accreditation requirements contained in the
solicitation. On October 6, 1998, the court denied Lawrence's
motion for preliminary injunction, finding that although the firm
offered the lowest price, its proposal did not receive an
acceptable technical/ past performance score and that the agency
evaluation of the proposals was not unreasonable. The court also
found that the awardee was an accredited offeror as required by
the solicitation. On December 14, 1998, Lawrence filed a motion to
dismiss the case without prejudice, in order to pursue
administrative challenges. Despite government opposition to the
dismissal, the Court granted the motion on March 3, 1999.
Worchester Brothers Co., Inc. v. United States (Case No. 1:
98CV01634) Worchester Brothers Co. filed this postaward bid
protest case in the U. S. District Court for the District of
Columbia in 1998. The National Park Service had issued a request
for proposals for the stabilization and preservation of the
Washington Monument. Worchester Brothers, an expert in monument
restoration and masonry, claimed that the awardee was given a
higher technical rating than it deserved and that the evaluation
was not done in accordance with the solicitation requirements. The
defendants stated that the awardee's proposal had both the highest
overall technical score and the lowest overall total price and,
therefore, offered the best value to the government. On July 30,
1998, in an oral bench opinion, the district court granted the
National Park Service's motion for summary judgment and ordered
the case dismissed. Small Business Cases Appendix V Examples of
Bid Protest Cases Filed in U. S. District Courts Between January
1, 1997, and April 30, 1999 Page 39 GAO/ GGD/ OGC- 00- 72 Bid
Protests Kira, Inc. v. United States (Case No. 1: 99CV00930) Kira,
Inc., filed this postaward bid protest case in the U. S. District
Court for the District of Columbia in 1999. Kira objected to the
award of a contract, under SBA's section 8( a) program, for
military family housing maintenance at Keesler Air Force Base in
Mississippi. Kira had protested the awardee's size status to SBA,
which determined that the awardee was not a small business under
the relevant Standard Industrial Classification (SIC) code. Kira
filed suit when the Air Force refused to terminate the contract.
After the complaint was filed in district court, the Air Force
terminated the contract and awarded it to Kira. On May 20, 1999,
the plaintiff moved to dismiss the case without prejudice, and the
court granted the motion. Sun Belt Builders, Inc. v. United States
(Case No. CV 97- 106) Sun Belt Builders, Inc., filed this case in
U. S. District Court for the District of Arizona in 1997. Sun Belt
Builders submitted the low bid on a U. S. Army Corps of Engineers
invitation for bids (IFB) for construction of the Tucson Diversion
Channel Recreational Development in Pima County, Arizona. However,
Sun Belt's bid was rejected as nonresponsive because the
certificate of authority for the power of attorney attached to the
bid bond was not dated, calling into question the enforceability
of the bid bond. The IFB required bidders to furnish a bid
guarantee at the time of bid submission. Sun Belt claimed that (1)
a dated certificate on a power of attorney is not a responsiveness
requirement; and (2) if a dated certificate is required, the Corps
should have waived or allowed it to cure the deficiency. On May 9,
1997, the district court granted the Corp's motion to dismiss,
finding that the bid was nonresponsive and that the Corps' refusal
to waive the defect or permit Sun Belt to cure it was not
arbitrary. Braswell Services Group, Inc. v. United States (Case
No. 97- 1409- Civ- J10C) Braswell Services Group filed this
postaward bid protest case in the U. S. District Court for the
Middle District of Florida in 1997. Braswell stated that it had
submitted low offers in response to Navy requests for proposals
for three ship repair contracts. However, Braswell claimed that
its offers were rejected because of a negative past performance
evaluation on another contract, to which the firm claimed the
agency had not given it the opportunity to respond. Braswell also
claimed that the agency's evaluation was conducted in bad faith
and with the specific intent of harming the firm. On December 9,
1997, the district court denied Braswell's motions for Appendix V
Examples of Bid Protest Cases Filed in U. S. District Courts
Between January 1, 1997, and April 30, 1999 Page 40 GAO/ GGD/ OGC-
00- 72 Bid Protests a temporary restraining order and a
preliminary injunction, finding that the firm had not shown a
likelihood of success on the merits. On December 10, 1997,
Braswell submitted a motion to dismiss the case without prejudice,
which the Court granted. United Valve Co. v. United States (Case
No. 97CV00713) United Valve Company filed this postaward bid
protest case in the U. S. District Court for the District of
Columbia in 1997. United Valve submitted a proposal to provide air
turbine starter kit overhauls for C- 130 aircraft at Tinker Air
Force Base and was not selected for the award. United Valve filed
a complaint in district court, stating that the Air Force had
engaged in an impermissible action. United Valve alleged that the
Air Force, without informing it, had informed another offeror that
the Air Force intended to award the contract to United Valve. The
other offeror then submitted a lower offer and was selected for
the award. On December 23, 1997, the parties filed a stipulation
of settlement in which the Air Force agreed to limit the amount of
work performed under the contract and to not exercise the
contract's options. Appendix VI Examples of U. S. Court of Federal
Claims Bid Protest Cases Filed Between January 1, 1997, and August
1, 1999 Page 41 GAO/ GGD/ OGC- 00- 72 Bid Protests This appendix
includes examples of bid protest cases filed with COFC from
January 1, 1997, through August 1, 1999. The appendix includes
examples of five cases filed by businesses that were not small
businesses and five cases filed by small businesses. The docket
numbers are shown in parentheses. Wackenhut International, Inc. v.
United States (No. 97- 680C) This postaward bid protest case was
filed by Wackenhut International, Inc., and Wackenhut De
Guatemala, S. A., A Joint Venture. The protestor sought injunctive
and declaratory relief setting aside the award of the contract by
the U. S. Department of State to Inter- Con Security Systems,
Inc., for security guard services at the U. S. Embassy in
Guatemala. Wackenhut and Inter- Con submitted proposals in
response to the solicitation. Wackenhut contended that the agency
improperly gave the Inter- Con proposal a 5- point evaluation
preference, available to U. S. contractors in guard contracts
abroad pursuant to 22 U. S. C. 4864. Wackenhut alleged that Inter-
Con was not properly licensed and, thus, its proposal was not
entitled to the preference. Wackenhut also contended that the
Inter- Con proposal failed to meet the solicitation's
subcontracting limitations and that the evaluation of Inter- Con's
technical proposal for past performance/ experience and key
personnel was improper. The government contended that Wackenhut's
claims were without merit. In a January 13, 1998, published
decision, the court granted the government's and Inter- Con
Security's cross- motions for summary judgment. The court found
that licensing was a performance requirement, that the
subcontracting limitation challenge was meritless, and that the
evaluation was proper. Judgment was entered dismissing the
complaint on January 14, 1998. Pike's Peak Family Housing, LLC v.
United States (No. 98- 147C) This postaward bid protest case,
filed by Pike's Peak Family Housing, LLC, involved an Army Corps
of Engineers solicitation for privatization of family housing at
Fort Carson in Colorado Springs, Colorado. The contract was
awarded to Keller/ Catellus Fort Carson, LLC, whose proposal
received the highest evaluated score. Pike's Peak, which received
the sixth highest score, filed suit in COFC protesting the
propriety of the agency's evaluation of proposals and discussions.
Cases Not Filed by Small Businesses Appendix VI Examples of U. S.
Court of Federal Claims Bid Protest Cases Filed Between January 1,
1997, and August 1, 1999 Page 42 GAO/ GGD/ OGC- 00- 72 Bid
Protests On April 27, 1998, the complaint was voluntarily
dismissed with prejudice on the basis of a settlement agreement
entered between the plaintiff and defendant. United International
Investigative Services, Inc. v. United States (No. 98153C) This
postaward bid protest case, filed by United International
Investigative Services, Inc., concerned a procurement for guard
services at federal courthouses in four states and Puerto Rico.
After a technical evaluation board's (TEB) initial evaluation of
proposals, United International's proposal had the highest average
technical score and offered the lowest price. The technical
proposals were subsequently rescored by one member of the TEB,
after which the technical score of United International's proposal
tied for fifth place. After several additional rounds of best and
final offers, United International's proposal still offered the
lowest price and received a slightly higher overall point score
(including technical and price factors) than the proposal
submitted by MVM, Inc., which offered the second lowest price.
Upon further review, the contracting officer ultimately raised the
MVM proposal's score by one point for its technical merit,
resulting in MVM's proposal receiving the highest overall point
score. MVM was awarded the contract. United International filed
suit in COFC. United International challenged the evaluation of
proposals, contending that because its proposal was substantially
technically equal to MVM's, it should have been awarded the
contract on the basis of its lower price. In an October 21, 1998
published decision (reissuance of an order filed under seal on
August 3, 1998), the court granted the government's motion for
summary judgment, ruling that any errors in this procurement were
de minimis, did not prejudice the protestor, and did not warrant
overturning the award. On September 8, 1998, United International
appealed to the U. S. Court of Appeals for the Federal Circuit,
which affirmed COFC's ruling on May 6, 1999, in an unpublished
decision. Appendix VI Examples of U. S. Court of Federal Claims
Bid Protest Cases Filed Between January 1, 1997, and August 1,
1999 Page 43 GAO/ GGD/ OGC- 00- 72 Bid Protests Envirocare of
Utah, Inc. v. United States (No. 99- 76C) This preaward bid
protest case, filed by Envirocare of Utah, Inc., challenged the
terms of a solicitation issued by the Army Corps of Engineers for
the removal of radioactive and other hazardous wastes at various
sites. The Corps contemplated awarding up to 10
indefinitedelivery/ indefinite- quantity contracts for a total
value of about $400 million. Awards were to be based on the best
value offered to the government. Among other challenges, 1
Envirocare contended that the solicitation failed to include the
Federal Acquisition Regulation (FAR) provisions governing the
acquisition of commercial items. The Corps maintained that
disposal of radioactive wastes was not a commercial item
acquisition and that the solicitation was not required to include
the FAR provisions cited by the protestor. In a June 11, 1999,
published decision (reissuance of a decision filed under seal on
May 28, 1999), the court granted the government's motion to
dismiss, in part, and entered judgment for the defendant, ruling
that (1) the disposal of radioactive waste services did not fall
within the FAR definition of commercial items and (2) protestor's
remaining challenges lacked merit. On July 19, 1999, Envirocare
appealed to the U. S. Court of Appeals for the Federal Circuit. A
decision, without published opinion, was issued by that court on
September 21, 1999, dismissing the appeal on the basis of a
voluntary dismissal filed by the plaintiff. Chas. H. Tompkins
Company v. United States (No. 99- 122C) This preaward bid protest
case filed by Chas. H. Tompkins Company involved a solicitation
for construction of three new buildings at the Federal Bureau of
Investigation's (FBI) Quantico, VA facility. The solicitation
required each bidder to supply at least five references regarding
its performance of the same or similar work within the prior 3
years and specified that the projects should be within 10 percent
of the bid price. 1 Envirocare also challenged the solicitation
terms regarding licensing and the evaluation of transportation
costs, and the agency's authority to conduct the procurement.
Appendix VI Examples of U. S. Court of Federal Claims Bid Protest
Cases Filed Between January 1, 1997, and August 1, 1999 Page 44
GAO/ GGD/ OGC- 00- 72 Bid Protests Bell/ BCI, the apparent low
bidder, listed at least five prior similar projects. However, the
prices for those projects were not within 10 percent of its
proposed price for the Quantico work. Tompkins filed suit in COFC
challenging any award to Bell/ BCI on the basis that Bell/ BCI
failed to meet the solicitation's definitive responsibility
criteria. In a May 12, 1999, published decision (reissuance of an
unpublished order entered on March 29, 1999), the court found that
the cited provision constituted definitive responsibility
criteria. The court also found that since the agency did not
intend for the provision to do so, the provision was overly
restrictive of competition, providing a compelling reason to
cancel the solicitation. The court granted, in part, Tompkins'
motion for summary judgment. ATA Defense Industries, Inc. v.
United States (No. 97- 382C) This postaward bid protest case,
filed by ATA Defense Industries, Inc., challenged the Army's
placement of an order for a target range upgrade with a General
Services Administration (GSA) Federal Supply Schedule (FSS)
contractor even though 35 percent of the system and services
sought were not listed on FSS. The Army wanted to upgrade two
target ranges at Fort Stewart, GA. The upgrade was valued at
$673,376. Caswell International, a supplier of target systems, had
listed some of its equipment on its FSS contract. The Army found
that about 65 percent of the products and services required for
the upgrade could be acquired under Caswell's FSS contract; the
remaining 35 percent could not. The contracting officer placed an
order with Caswell for the entire upgrade, including the 35
percent of products and services not available on FSS. ATA
Defense, a competitor of Caswell, filed a protest of the purchase
order. ATA Defense alleged that the Army circumvented the
Competition in Contracting Act's requirement for full and open
competition in placing the full order with Caswell. Before placing
the order, the contracting officer issued a justification and
approval document stating that award should be made to Caswell
because it was the only reliable source for the remaining 35
percent of the upgrade products. After the protest was filed at
COFC, the contracting officer issued a second justification and
approval document based on a Small Business Cases Appendix VI
Examples of U. S. Court of Federal Claims Bid Protest Cases Filed
Between January 1, 1997, and August 1, 1999 Page 45 GAO/ GGD/ OGC-
00- 72 Bid Protests determination that unusual and compelling
urgency warranted exempting 35 percent of the upgrade products and
services from competition. In a June 27, 1997, published decision,
COFC determined that the agency's justifications for the sole-
source award of the 35 percent of products and services not listed
on FSS were insufficient. The first justification was found to be
inadequate because other sources were available. The second
justification was made after the award and was considered to be
untimely. The court also rejected the Army's argument that the
award of the additional non- FSS items should be allowed as
incidental to the FSS items ordered. The court granted ATA's
motion for a permanent injunction and ordered the Army to suspend
performance under, and take necessary steps to terminate, the
purchase order. CRC Marine Services, Inc. v. United States (No.
98- 128C) This postaward bid protest case, filed by CRC Marine
Services Inc., challenged the rejection of its lowest priced bids
under three Army Military Traffic Management Command
transportation solicitations. CRC maintained that it was the
subject of an unlawful de facto debarment by the Army based on
CRC's prior suspension and disbarment and bad faith on the part of
the agency. CRC also protested that one of the awardee's bids was
nonresponsive and that the awardee's performance did not comply
with the requirements. In a May 27, 1998, published decision, the
court found that the rejections were reasonably based and there
was no merit to (1) plaintiff's claim that it was de facto
debarred from performance of the requirements or (2) the
plaintiff's challenges to the award. The court rejected CRC's
claims, denied its motion for a permanent injunction, and
dismissed the complaint. Modern Technologies Corporation v. United
States (No. 98- 309C) This postaward bid protest, filed by Modern
Technologies Corporation, challenged the Air Force's award of a
series of task order contracts for technical services. The
plaintiff protested the agency's evaluation of the technical and
cost proposals. The court denied plaintiff's request for
declaratory and injunctive relief; entered judgment for defendant;
and, in a July 2, 1998, unpublished decision filed under seal,
dismissed Modern Technologies' complaint. Appendix VI Examples of
U. S. Court of Federal Claims Bid Protest Cases Filed Between
January 1, 1997, and August 1, 1999 Page 46 GAO/ GGD/ OGC- 00- 72
Bid Protests In a December 21, 1998, order, the court reconsidered
the terms of a protective order issued in the case and ordered the
release of previously protected information it considered to have
only minimal current value. Adirondack Construction Corporation v.
United States (No. 98- 698) This preaward bid protest case, filed
by Adirondack Construction Corporation, concerned the U. S. Army
Corps of Engineers' issuance of an invitation for bid to renovate
a federal building in Rome, NY. Adirondack's representative
submitted the firm's bid late. Adirondack contended that actions
by the Corps were the main cause for the late receipt of
Adirondack's bid. In an October 30, 1998, order, the court granted
judgment for plaintiff and ordered that Adirondack's bid be
treated as received on time. The contract was subsequently awarded
to the plaintiff. The court dismissed the action as moot on
December 22, 1998. American Renovation & Construction Co. v.
United States (No. 99- 171C) This preaward bid protest case filed
by the American Renovation & Construction Company challenged the
Air Force's rejection of its bid to improve military family
housing units as late. American Renovation contended that because
its bid was in the possession of the U. S. Postal Service in time
for timely delivery, the Air Force's rejection of the bid was
improper and contrary to law. On April 1, 1999, American
Renovation & Construction Company moved for voluntarily dismissal
of the case. The court dismissed the complaint on the same day.
Appendix VII Comments From the General Counsel, Department of
Defense Page 47 GAO/ GGD/ OGC- 00- 72 Bid Protests Appendix VII
Comments From the General Counsel, Department of Defense Page 48
GAO/ GGD/ OGC- 00- 72 Bid Protests Appendix VII Comments From the
General Counsel, Department of Defense Page 49 GAO/ GGD/ OGC- 00-
72 Bid Protests Appendix VII Comments From the General Counsel,
Department of Defense Page 50 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 51 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 52 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 53 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 54 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 55 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 56 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 57 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 58 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 59 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 60 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 61 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 62 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 63 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 64 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 65 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 66 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 67 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 68 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 69 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 70 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 71 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 72 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 73 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 74 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 75 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 76 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 77 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 78 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 79 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 80 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 81 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 82 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 83 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 84 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 85 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 86 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 87 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 88 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 89 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 90 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 91 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 92 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 93 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 94 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 95 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix X GAO Contacts and Staff Acknowledgments Page 96 GAO/
GGD/ OGC- 00- 72 Bid Protests Richard Stana or William Jenkins,
(202) 512- 8777 In addition to those named above, R. Rochelle
Burns, Richard Griswold, James Russell, and Jan Montgomery made
key contributions to this report. GAO Contacts Acknowledgments
Page 97 GAO/ GGD/ OGC- 00- 72 Bid Protests Page 98 GAO/ GGD/ OGC-
00- 72 Bid Protests Page 99 GAO/ GGD/ OGC- 00- 72 Bid Protests
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