Federal Circuit Weighs In on Bid Protest Standing.

• Author: Guy, Andrew

The United States Court of Appeals for the Federal Circuit May 10 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 United States Court of Federal Claims erred in finding the protester to lack standing. The impact of the decision remains to be seen, but the decision merits careful consideration by the defense industry and legal practitioners alike.

An agency's actions during a federal government contract procurement may be challenged in a bid protest. For example, an offeror who is not awarded a contract may file a "post-award protest" challenging the award decision. To take another example, an offeror who intends to submit a proposal--but is concerned about the terms of the solicitation--can file a "pre-award protest" challenging those terms.

With some exceptions, protests involving federal government contract procurements are typically filed at the Court of Federal Claims, the Government Accountability Office or directly with the procuring agency. To file a protest at the Court of Federal Claims, a contractor must show that it has standing, also known as "interested party" status. In the context of post-award protests, this generally means that the contractor must show it would have a "substantial chance" of receiving the award but for the alleged error in the procurement process. Contractors must be vigilant about demonstrating standing, as an adverse ruling on standing can prevent a protest from reaching the merits.

The protester in CACI faced such an adverse ruling. The CACI decision involved the Army's procurement for a Next Generation Load Device Medium that would be used for encryption and decryption on the battlefield. During the procurement, the contracting officer found the protester's proposal to be technically unacceptable and thus ineligible for award. The protester challenged the Army's finding at the Court of Federal Claims.

However, the court determined that the protester was ineligible for a separate reason. According to the court, the protester had an unmitigable organizational conflict of interest. Based on that determination, the court dismissed the protest for lack of standing. The protester then appealed the decision to the Federal Circuit.

The Federal Circuit disagreed with the court's conclusion. We highlight below three of the Federal Circuit's findings: interested party...