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4 CFR 21.5 (h): Subcontracts

Comptroller General - Key Excerpts

New  Bombardier argues that the Air Force has effectively directed L3 to select Gulfstream for award of a subcontract to provide the aircraft for the Compass Call re-host. The protester contends that the Air Force's actions are improper because the agency has not complied with CICA's requirement for full and open competition in the selection of the re-host aircraft, and that the agency has not reasonably evaluated the capabilities of the Gulfstream aircraft or the aircraft that Bombardier contends could meet the Compass Call re-host requirements. The protester also contends that the RFI issued by L3 did not provide prospective subcontractors with adequate information to prepare responses. For the reasons discussed below, we conclude that the proposed contract with L3 anticipates selection of the aircraft by L3 and not the government. We therefore find no basis to sustain the protest.

Under CICA, our Office has jurisdiction to resolve bid protests concerning the solicitations and contract awards that are issued "by a Federal agency." 31 U.S.C. § 3551(1)(A). Our rules provide that we do not review procurements where a government prime contractor enters into a subcontract "for" the government. 4 C.F.R. § 21.5(h); Compugen, Ltd., B-261769, Sept. 5, 1995, 95-2 CPD ¶ 103 at 3-4; Yard USA, Inc., B-232326, Sept. 1, 1988, 88-2 CPD ¶ 207. We will take jurisdiction, however, where we find that a subcontract essentially was awarded "by" the government. The Panther Brands, LLC, B-409073, Jan. 17, 2014, 2014 CPD ¶ 54 at 4-6. In this regard, we have considered a subcontract procurement to be "by" the government where the agency handled substantially all of the substantive aspects of the procurement and, in effect, took over the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. Id.; St. Mary's Hosp. & Med. Ctr. of San Francisco, Cal., B-243061, June 24, 1991, 91-1 CPD ¶ 597 at 5-6. For example, in The Panther Brands, our Office concluded it had jurisdiction to review a subcontract award where the solicitation issued to prospective subcontractors advised that the government would make the selection decision, the agency evaluated the proposals of prospective subcontractors, and the agency selected the successful proposal without receiving an award recommendation from the prime contractor. The Panther Brands LLC, supra, at 6.

Here, Bombardier contends that the Air Force has selected the Gulfstream G550 aircraft for the Compass Call re-host effort, and that L3 will therefore perform only the procedural aspects of the subcontract procurement. In support of its argument, the protester points to the Air Force's correspondence with Congress on this matter, and statements in the media. See Protest (B-414380.2) at 12-18. The protester also contends that it was informed by L3 that the decision to award a contract to Gulfstream had been made as of January 2017. Protest (B-414380.2) at 3 ("Indeed, L3 informed Bombardier in January of this year--before the Air Force had even issued the solicitation for the sole source lead system integrator contract--that Gulfstream will supply the aircraft.").

The Air Force contends that this matter concerns a future determination by L3 that will be conducted under a subcontract and that, even if it were ripe for review at this time, it is a matter over which our Office does not have jurisdiction. The agency specifically represents that the decision to select the aircraft for the Compass Call re-host will be made by L3 under the terms of the SOW for the proposed subcontract. COS/MOL (B-414380.2) at 19-20; Agency Request for Dismissal (B-414380.2), June 8, 2017, at 7-8. In this regard, the protester does not cite to any provisions of the SOW or J&A that specifically direct L3 to select the Gulfstream G550 for the Compass Call re-host effort.

On this record, we find that the proposed sole-source award to L3 requires that firm to select the aircraft for the Compass Call re-host, subject to the requirements established by the Air Force. We find that neither the terms of the SOW, nor the classified J&A, demonstrate that the Air Force will handle the substantive aspects of the subcontract procurement, such that L3 would be left with only a procedural role in the selection of the aircraft. See The Panther Brands LLC, supra, at 4-6. Consequently, we conclude that the decision to select an aircraft is a matter that will occur under a proposed subcontract, and therefore the terms of the subcontract competition and the merits of the selection decision are matters that are not within the jurisdiction of our Office.  (The Boeing Company; Bombardier, Inc. B-414706, B-414380.2: Aug 25, 2017)

As an initial matter, the Army argues that GAO does not have jurisdiction over the protest because the protest involves the selection of a second-tier subcontractor. The Army primarily relies on our decision in Yard USA, Inc., B-232326, Sept. 1, 1988, 88-2 CPD ¶ 207, in support of its position that we do not consider protests of the award of a second-tier subcontract. AR at 6-7. We do not agree that this case is applicable here.

Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning the solicitations and contract awards that are issued “by a Federal agency.” 31 U.S.C. § 3551(1)(A) (2006). In the context of subcontractor procurements, we initially interpreted CICA as authorizing our Office to review protests where, as a result of the government’s involvement in the award process or the contractual relationship between the prime contractor and the government, the subcontract in effect is awarded on behalf of the government, that is, where the subcontract is awarded “by or for the government.” See Ocean Enters., Ltd., B-221851, May 22, 1986, 86-1 CPD ¶ 479 at 2; recon. denied, B‑221851.2, June 26, 1986, 86-2 CPD ¶ 10. Pursuant to this interpretation, we traditionally reviewed subcontractor selections that were “for” the government, where the subcontract awards concerned (1) subcontracts awarded by prime contractors operating and managing certain Department of Energy, or other agency, facilities; (2) purchases of equipment for government-owned, contractor-operated plants; and (3) procurements by certain construction management prime contractors. Id.

However, the Court of Appeals for the Federal Circuit in U.S. West Commc’ns Servs., Inc. v. United States, 940 F.2d 622 (Fed. Cir. 1991) held that statutory language basically identical to that applicable to our Office did not provide the General Services Administration’s Board of Contract Appeals with jurisdiction over subcontract procurements conducted “for” a federal agency, in the absence of a showing that the prime contractor was a procurement agent, as defined by the Supreme Court in United States v. New Mexico, 455 U.S. 720 (1982) and the court of appeals in United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983). We subsequently concluded that our jurisdiction generally does not extend to awards made by others “for” the government, and that, accordingly, in the absence of a request by the federal agency concerned, we would not take jurisdiction over such procurements. Compugen, Ltd., B-261769, Sept. 5, 1995, 95‑2 CPD ¶ 103 at 3-4.

Our decision in Yard involved the award of a contract by a subcontractor for a steering control subsystem on the Navy’s AOE–6 Fast Combat Support Ship. We declined to review the award under our authority to review procurements “for” the government, because a subcontractor could not be considered a purchasing agent for the government. Yard USA, Inc., supra, at 2. As explained above, we have not taken jurisdiction over such procurements that are allegedly “for” the government since 1995. See Compugen, Ltd., supra.

We continue to take jurisdiction, however, where we find that a subcontract essentially was awarded “by” the government. See RGB Display Corp., B-284699, May 17, 2000, 2000 CPD ¶ 80 at 3. In this regard, we have considered a subcontract procurement to be “by” the government where the agency handled substantially all the substantive aspects of the procurement and, in effect, took over the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. Baron Servs., Inc., B-402109, Dec. 24, 2009, 2009 CPD ¶ 264 at 3; St. Mary’s Hosp. & Med. Ctr. of San Francisco, Cal., B-243061, June 24, 1991, 91-1 CPD ¶ 597 at 5-6.

Panther Brands argues, and we agree, that our decision in St. Mary’s Hosp. is applicable to the circumstances here. In that case, we agreed to consider the award of a second-tier subcontract where the government identified the need for the services, drafted the solicitation criteria, selected government officials to serve on the evaluation committee, and approved the committee’s recommendation for award. We concluded that the government controlled “every meaningful aspect of the procurement.” St. Mary’s Hosp., supra, at 6.

Here, the record shows that the Army National Guard controlled essentially every meaningful aspect of the procurement. The Army National Guard, using its own evaluation criteria, evaluated Docupak’s summaries of the proposals, assigning adjectival ratings and identifying strengths and weaknesses. See AR, Tab 17, Consensus Evaluation for Panther Brands; Tab 18, Consensus Evaluation for RLL. Moreover, the Guard’s CO selected RLL based upon the agency’s own evaluation. Although Docupak summarized proposals and obtained additional information from offerors, the record shows no evidence that Docupak substantively evaluated proposals or recommended any offeror to the Army National Guard or LM&O, the prime contractor. Indeed, the solicitation itself informed offerors that the government would make the selection decision. See AR, Tab 5, Solicitation, at 1. Accordingly, under the circumstances present here, we conclude that we have jurisdiction here, because the Corps handled substantially all the substantive aspects of the procurement, such that the procurement was “by” the government.  (The Panther Brands, LLC, B-409073: Jan 17, 2014)  (pdf)


DOE requests that we dismiss Baron’s protest because it concerns a subcontract awarded by Battelle as a DOE prime contractor and not a procurement conducted by the government. Dismissal Request.

Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning solicitations and contract awards that are issued “by a Federal agency.” 31 U.S.C. sect. 3551(1)(A) (2006). Pursuant to our authority under CICA, we initially took jurisdiction over subcontract awards by prime contractors to the federal government where, as a result of the government’s involvement in the award process, or the contractual relationship between the prime contractor and the government, the subcontract, in effect, was awarded on behalf of‑-i.e., “by or for”--the government, and federal procurement laws and regulations otherwise would apply. See, e.g., St. Mary’s Hosp. & Med. Ctr. of San Francisco, Cal., B-243061, June 24, 1991, 91-1 CPD para. 597. However, in its decision U.S. West Commc’ns Servs., Inc. v. United States, 940 F.2d 622 (Fed. Cir. 1991), the court of appeals construed statutory language basically identical to that applicable to our Office as not conferring on the General Services Administration’s Board of Contract Appeals jurisdiction over subcontract procurements conducted “for” a federal agency, in the absence of a showing that the prime contractor was a procurement agent, as defined by the Supreme Court in United States v. New Mexico, 455 U.S. 720 (1982) and the court of appeals in United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983). We subsequently concluded that our jurisdiction generally does not extend to awards made by others “for” the government, and that, accordingly, in the absence of a request by the federal agency concerned, we would not take jurisdiction over such procurements. Compugen, Ltd., B-261769, Sept. 5, 1995, 95-2 CPD para. 103 at 3-4.

We continue to take jurisdiction, however, where we find that a subcontract essentially was awarded “by” the government. See RGB Display Corp., B-284699, May 17, 2000, 2000 CPD para. 80 at 3. In considering whether a procurement was conducted “by” the government, we assess the totality of the circumstances, including the question of which party was responsible for the preparation of the solicitation, the receipt and evaluation of proposals, the conduct of discussions, the selection of a prospective awardee and the conduct of responsibility determinations. Alatech Healthcare, LLC, B-400925, B-400925.2, Mar. 9, 2009, 2009 CPD para. 57 at 3. We have found a subcontract procurement to be “by” the government only where the agency handled substantially all substantive aspects--in effect, “took over”--the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary’s Hosp. & Med. Ctr. of San Francisco, Cal., supra, at 5-6; University of Mich.; Indus. Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD para. 643 at 5‑6. In such cases, the prime contractor’s role in the procurement was essentially ministerial such that it was merely acting as a conduit for the government, Alatech Healthcare, LLC, supra, at 3. On the other hand, we have found subcontractor procurements were not “by” the government where the prime contractor handled meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting the awardee. See Kerr-McGee Chem. Corp.--Recon., B‑252979.2, Aug. 25, 1993, 93‑2 CPD para. 120 at 4-6; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5.

Here, Baron contends that, although radars were procured under Battelle’s prime contract with DOE, the agency had a pervasive role in the procurement such that the procurement was essentially conducted by DOE. That is, Baron argues that the agency, by virtue of its review and approval of the RFP (including its “associated evaluation criteria”), retained ultimate control over the evaluation of proposals and selection of the subcontractor. Opposition to Dismissal Request at 2‑3. The protester also contends that the fact that the solicitation was posted on the FedBizOpps website, the government-wide port of entry where agency contracting officers are required to synopsize certain contract actions and solicitations under the FAR, demonstrates that the procurement was conducted by DOE. In addition, the protester believes that DOE must have been substantially involved in this procurement because the subcontract will be funded under the American Recovery and Reinvestment Act and argues that Act requires DOE to implement certain competition requirements. See id. at 5, citing Pub. L. No. 111-5, sect. 1554, 123 Stat. 302.[5] Baron also argues that the expenditure of government funds and the determination of which supplies or services are to be procured and at what cost are inherently governmental functions that must be performed by the agency. See id. at 6. In this regard, the protester notes that title to the radars passes directly to the government, that the Battelle agents involved in the procurement use “.gov” email extensions, and that the solicitation bears DOE’s official seal. Id., n.3 at 3.

In response, DOE states that it did not have a substantial role in the procurement and that no federal employees were involved in receipt of proposals and the selection process. Dismissal Request at 2. In this regard, DOE has provided a declaration from its contracting officer and affidavits from two Battelle employees who state that (1) DOE did not receive, review, or evaluate any proposals submitted in response to the RFP, (2) DOE did not participate in the selection of the awardee, and (3) Battelle had the sole responsibility for determining the evaluation criteria and the extent of information that was to be included in the RFP. See DOE’s Response to Opposition to Dismissal Request, Tab 8, Declaration of DOE Contracting Officer; Tab 9, Affidavit of Battelle Evaluation Panel Chairperson; and Tab 10, Affidavit of Battelle Contracts Specialist. DOE states that its only participation in the solicitation involved reviewing the RFP and approving its issuance.

The record shows that Battelle, and not DOE, handled all the meaningful aspects of this procurement, including preparing the subcontract solicitation and evaluation criteria, evaluating the offers, and selecting the awardee. DOE’s approval of the issuance of the RFP does not demonstrate that DOE took over the procurement. See, e.g., Alatech Healthcare, LLC, supra, at 1-3 (agency review, comment, and discussion of RFP with prime contractor did not show that procurement was “by” the government, where the contractor was responsible for significant aspects of the procurement); see also STR, L.L.C., B-297421, Dec. 22, 2005, 2006 CPD para. 11 at 3 (government involvement in evaluation/selection process not enough to make procurement by government). Nor does the fact that Battelle posted the RFI and RFP on the FedBizOpps website and used DOE’s agency seal on the FedBizOpps postings, and that Battelle employees at PNNL use .gov email addresses demonstrate that DOE handled substantially all substantive aspects of the procurements, given that it was Battelle, and not DOE, that prepared the RFP, received and evaluated proposals, and selected Advanced Radar’s proposal for award. See Compugen, Ltd., supra, at 2 (prime contractor’s use of Commerce Business Daily for subcontract solicitation). We also do not find significant here that DOE would obtain title to the radars in accordance with the terms of Battelle’s prime contract. See Merrick Eng’g, Inc.--Recon., B-247334.2, May 14, 1992, 92-1 CPD para. 444 at 2-3 (government acquisition of title to property purchased under a subcontract does not establish that procurement was conducted by or for the government).

We also do not agree with Baron that the subcontract procurement of the radars by Battelle under its prime contract was an inherently governmental function, which meant that DOE had to conduct the procurement. See Opposition to Dismissal Request at 6. The FAR specifically recognizes that prime contractors may award subcontracts to obtain supplies and services for the performance of the prime contract. See, e.g., FAR Part 44, Subcontracting Policies and Procedures. There also is no merit to Baron’s arguments that this subcontract procurement was necessarily by the government because of the requirements of the American Recovery and Reinvestment Act and the use of funds under this Act. As noted by Baron, section 1554 of the Act provides that “[t]o the maximum extent possible, contracts funded under this Act shall be awarded as fixed-price contracts through the use of competitive procedures.” Included in Battelle’s prime contract is a specific clause, “Special Provisions Relating to Work Funded under American Recovery and Reinvestment Act of 2009,” which is required to be flowed-down to first-tier subcontractors and which includes a number of requirements, including the segregation of obligations and expenditures related to funding under the Act, and otherwise complying with all requirements of the Act. See Battelle Contract, sect. H.38, at H-51 -- H-53. Here, Battelle awarded a fixed-price subcontract competitively.

In sum, the record shows that Battelle’s involvement in the procurement is more than that of a mere conduit for the government, and we therefore find that this procurement was not conducted by the government.  (Baron Services, Inc., B-402109, December 24, 2009) (pdf)


The record shows that the agency issued a task order to JSI under its DELIVER contract to, among other things, conduct a procurement for male condoms. AR, exh. 4; exh. 7, para. 21. Consistent with the terms of the task order, JSI prepared the RFP that is the subject of the current protest. AR, exh. 5. AID reviewed the RFP and provided comments to JSI concerning various provisions, informed JSI of AID’s interpretation of the above-quoted statutory language, and discussed revisions to the RFP that it viewed as necessary to reflect AID’s interpretation of that language. AR, exh. 7, paras. 21-22. After the RFP was issued, AID assisted JSI in responding to vendor questions relating to the RFP and, specifically, provided the response to a question relating to implementation of the statutory language. Id. para. 24. Beyond these activities, AID’s involvement with the acquisition was limited. JSI prepared and issued the RFP, received and evaluated proposals, presented AID with the results of its evaluation, and advised the agency of its selection decisions; AID reviewed JSI’s proposed subcontractor selections, requested clarifying information, and approved the selections. AR, exh. 7, paras. 25-29.

The record shows that an AID employee with no management role in connection with JSI’s prime contract observed JSI’s proposal evaluation panel’s deliberations as a non-voting member. According to the agency, her role was to observe JSI’s conduct of the evaluation to ensure that the agency’s requirements received due attention, and that its interpretation of the statutory language noted above was implemented. Id. para. 25.

AID requests that we dismiss the protest as beyond our jurisdiction because the acquisition was conducted by a prime contractor for the award of subcontracts, rather than by a federal agency. The protester asserts that AID essentially directed JSI in its implementation of the statutory requirement, and that this aspect of the acquisition therefore essentially was conducted “by” AID through JSI. Alatech concludes that we have jurisdiction to consider the protest to the extent that it challenges the agency’s implementation of the statutory language.

We agree with the agency that the procurement at issue is not subject to our jurisdiction. Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning solicitations and contract awards that are issued “by a Federal agency.” 31 U.S.C. sect. 3551(1)(A) (2000). Pursuant to our authority under CICA, we initially took jurisdiction over subcontract awards by prime contractors to the federal government where, as a result of the government’s involvement in the award process, or the contractual relationship between the prime contractor and the government, the subcontract, in effect, was awarded on behalf of‑-i.e., “by or for”--the government, and federal procurement laws and regulations otherwise would apply. See, e.g., St. Mary’s Hosp. and Med. Ctr. of San Francisco, Calif., B-243061, June 24, 1991, 91-1 CPD para. 597. However, in its decision U.S. West Communications Servs., Inc. v. United States, 940 F. 2d 622 (Fed. Cir. 1991), the court of appeals construed statutory language basically identical to that applicable to our Office as not conferring on the General Services Administration’s Board of Contract Appeals jurisdiction over subcontract procurements conducted “for” a federal agency, in the absence of a showing that the prime contractor was a procurement agent, as defined by the Supreme Court in United States v. New Mexico, 455 U.S. 720 (1982) and the court of appeals in United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983).[1] We subsequently concluded that our jurisdiction generally does not extend to awards made by others “for” the government, and that, accordingly, in the absence of a request by the federal agency concerned, we would not take jurisdiction over such procurements. Compugen Ltd., B-261769, Sept. 5, 1995, 95-2 CPD para. 103 at 3-4.

We continue to take jurisdiction where we find that a subcontract essentially was awarded “by” the government. RGB Display Corp., B-284699, May 17, 2000, 2000 CPD para. 80 at 3. We have considered a subcontract procurement to be “by” the government where the agency handled substantially all substantive aspects--in effect, “took over”--the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary’s Hosp. and Med. Ctr. of San Francisco, Calif., supra, at 5-6; University of Mich.; Industrial Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD para. 643 at 5-6. In such cases, the prime contractor’s role in the procurement was essentially ministerial, such that it was merely acting as a conduit for the government. On the other hand, we have found subcontractor procurements were not “by” the government where the prime contractor handled other meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting the awardee. See Kerr-McGee Chem. Corp--Recon., B-252979.2, Aug. 25, 1993, 93‑2 CPD para. 120 at 4-6; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5.

Here, as discussed, JSI was responsible for virtually all significant aspects of the procurement. JSI prepared the solicitation, including the evaluation criteria (taking into consideration input from AID); evaluated and scored the proposals; engaged in discussions with the prospective subcontractors; performed responsibility determinations of the prospective awardees; and made award recommendation findings that were approved by AID. AR, exh. 8, at 3-4. AID’s assistance in implementing the statutory appropriations language and approving the award recommendations made by JSI was not sufficient to render this an acquisition conducted “by” AID; a procurement is only “by” the government where the agency controls the procurement process to such an extent that the contractor has no real input into substantive decisions. STR, L.L.C., supra at 5. That clearly was not the case here.

Moreover, we decline to adopt the view advanced by the protester--that the agency effectively conducted that aspect of the procurement relating to implementation of the statutory language--and therefore could be said to have effectively awarded the subcontract, at least in that respect. In considering whether a procurement was conducted “by” the government, we assess the totality of the circumstances, including the question of which party was responsible for the preparation of the solicitation, the receipt and evaluation of proposals, the conduct of discussions, the selection of a prospective awardee and the conduct of responsibility determinations. As reflected in our prior decisions in this area, we do not break the procurement into segments and consider the “by” question on a segment-by-segment basis. The protester has presented no information or argument that leads us to question the correctness of our approach in this regard. We conclude that our Office lacks jurisdiction to consider the propriety of the awards here.

The protest is dismissed.  (Alatech Healthcare, LLC, B-400925; B-400925.2, March 9, 2009) (pdf)


We continue to take jurisdiction where the subcontract is “by” the government. RGB Display Corp., B-284699, May 17, 2000, 2000 CPD para. 80 at 3. We have considered a subcontract procurement to be “by” the government where the agency handled substantially all the substantive aspects of the procurement and, in effect, “took over” the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary’s Hosp. and Med. Ctr. of San Francisco, Calif., supra, at 5-6; University of Mich.; Industrial Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD para.643 at 5-6. In such cases, the prime contractor’s role in the procurement was essentially ministerial, such that it was merely acting as a conduit for the government. On the other hand, we have found subcontractor procurements were not “by” the government where the prime contractor handled other meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting an awardee. See Kerr-McGee Chem. Corp--Recon., B-252979.2, Aug. 25, 1993, 93-2 CPD para. 120 at 4-6; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5. STR contends that SRA is acting merely as a conduit for the government here and that, accordingly, we should take jurisdiction over its protest. We do not agree with the protester that the government’s involvement in and control over the acquisition process here was so pervasive as to render the procurement essentially by the government.

First, contrary to STR’s contention, the RFI issued by SRA is not “nearly identical” to the solicitation issued by AID; as noted above, the two differ significantly in that the AID RFI did not include evaluation criteria, whereas the SRA solicitation did. Both the AID program manager and the SRA project manager report that SRA had primary responsibility for drafting the evaluation criteria.

Second, it is clear from the record that SRA personnel played a major role in the evaluation of proposals and selection of an awardee. In this connection, the evaluation team consisted of both government representatives and SRA employees, with the two subgroups providing differing types of substantive input into the evaluation/selection process. As explained by the AID program manager in the following excerpt:

The government team members represented various user stakeholders of the COTS system to include grants officers, program officers, financial analyst, policy analyst, and IT analyst. These representatives focused primarily on the requirements and the ability of the software to meet them from a users’ perspective, e.g., ease of use, intuitiveness, logical flow. Concurrently, SRA conducted in-depth technical and cost assessments and performed customer reference interviews. SRA analysis, from the integration perspective, included requirements, technical feasibility, implementation factors to configure the system, and the complexity of the integration points of the software from a risk and schedule impacts.

Declaration of AID Program Manager, Dec. 6, 2005, at 4-5. It is also clear from the record that the SRA team members were full participants in the deliberations that led to recommendation of the Infoterra product. While we recognize that it is apparent from the foregoing that government personnel, as well as SRA personnel, played major roles in the evaluation, government involvement in the evaluation/selection process is not enough to make the procurement “by” the government, Perkins-Elmer Corp.; Metco Div., B-237076, Dec. 24, 1989, 89-2 CPD para. 604 at 4; we consider a procurement to be “by” the government only where the agency controls the procurement process to such an extent that the contractor has no real input into substantive decisions, which was clearly not the case here.

Third, it is apparent from the record that administration of the contract is to be handled by SRA and that privity of contract will be between the SRA and Infoterra and not between the government and Infoterra. Declaration of AID Program Manager, Dec. 6, 2005, at 5; Declaration of SRA Project Manager, Dec. 6, 2005, at 3.  (STR, L.L.C., B-297421, December 22, 2005) (pdf)


We continue to take jurisdiction where the subcontract is “by” the government. RGB Display Corp., B-284699, May 17, 2000, 2000 CPD ¶ 80 at 3. We have considered a subcontract procurement to be “by” the government where the agency handled substantially all the substantive aspects of the procurement and, in effect, “took over” the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary’s Hosp. and Med. Ctr. of San Francisco, Calif., supra, at 5-6; University of Mich.; Industrial Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD ¶ 643 at 5-6. In such cases, the prime contractor’s role in the procurement was essentially ministerial, such that it was merely acting as a conduit for the government. On the other hand, we have found subcontractor procurements were not “by” the government where the prime contractor handled other meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting an awardee. See Kerr-McGee Chemical Corp.--Recon., B-252979.2, Aug. 25, 1993, 93-2 CPD ¶ 120 at 4-6; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD ¶ 170 at 4-5. (Addison Construction, Inc., B-293805, April 20, 2004) (pdf)


Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning solicitations and contract awards that are issued "by a Federal agency." 31 U.S.C. sect. 3551(1)(A) (1994). Pursuant to our authority under CICA, we initially took jurisdiction over subcontract awards by prime contractors to the federal government where, as a result of the government's involvement in the award process, or the contractual relationship between the prime contractor and the government, the subcontract in effect was awarded on behalf of--i.e., "by or for"--the government, and federal procurement laws and regulations otherwise would apply. See Compugen, Ltd., B-261769, Sept. 5, 1995, 95-2 CPD para. 103 at 3-4. However, consistent with the holding in U.S. West Communications Servs., Inc. v. United States, 940 F.2d 622 (Fed. Cir. 1991), it now is our view that our jurisdiction generally does not extend to awards made by others but "for" the government; we therefore no longer review protests of such subcontract awards where, as here, the agency involved has not requested in writing that we do so. See 4 C.F.R. sect.sect. 21.5(h), 21.13(a) (2000); see also Compugen, Ltd., supra, at 4-5. We continue to take jurisdiction where the subcontract is "by" the government. See Peter Bauwens Bauunternehmung GmbH & Co. KG, B-277734 et al., Oct. 8, 1997, 97-2 CPD para. 98 at 2-3. Generally, we have reviewed subcontract procurements where the government's involvement in the award process was so pervasive that the subcontract in effect was awarded "by" the government. We have considered a subcontract procurement to be "by" the government where the agency handled substantially all the substantive aspects of the procurement and, in effect, "took over" the procurement, leaving to the prime contractor only the procedural or ministerial aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary's Hosp. and Med. Ctr. of San Francisco, California, B-243061, June 24, 1991, 91-1 CPD para. 597 at 5-6; University of Mich.; Industrial Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD para. 643 at 5-6. In such cases, the prime contractor's role in the procurement was essentially ministerial, such that it was merely acting as a conduit for the government. On the other hand, we have found subcontractor procurements were not "by" the government, even where the agency effectively directed the subcontractor selections, where the prime contractor handled other meaningful aspects of the procurement. See Kerr-McGee Chemical Corp.--Recon., B-252979.2, Aug. 25, 1993, 93-2 CPD para. 120 at 4; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5.  (RGB Display Corporation, B-284699, May 17, 2000)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
New  The Boeing Company; Bombardier, Inc. B-414706, B-414380.2: Aug 25, 2017 The Panther Brands, LLC, B-409073: Jan 17, 2014  (pdf)
Baron Services, Inc., B-402109, December 24, 2009 (pdf)  
Alatech Healthcare, LLC, B-400925; B-400925.2, March 9, 2009 (pdf)  
STR, L.L.C., B-297421, December 22, 2005 (pdf)  
Addison Construction, Inc., B-293805, April 20, 2004 (pdf)  
RGB Display Corporation, B-284699, May 17, 2000  (pdf)  

U. S. Court of Federal Claims - Key Excerpts

Defendant contends that John Snow’s efforts on behalf of USAID did not constitute a procurement action. In that event, this court would lack jurisdiction over the issues presented. The only procurement action involved, according to the Government, was between USAID and John Snow, the prime contractor. That is, USAID awarded the prime contract to Snow to procure health-related services. Snow’s awards to subcontractors to fulfill task orders was a private action. Bid discussions between foreign corporations and John Snow as prime contractor were solicited and evaluated by Snow and awarded by Snow. The prime acted as a private party as to Alatech, defendant contends, and not as a government agency. For that reason, the procurement does not fall within the Tucker Act's terms.

The Court of Appeals for the Federal Circuit held in Distributed Solutions that a procurement includes “all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services.” See Distributed Solutions, 539 F.3d at 1345 (citing 41 U.S.C. § 403(2)). Though this procurement involved a third party, John Snow, it falls within the Federal Circuit's interpretation of the Tucker Act as explained in Distributed Solutions, plaintiff argues. According to Alatech, USAID began planning this procurement in 2008 and put procurement procedures in place then. Also, USAID produced specifications for the contract and began discussing whether to task John Snow with the procurement. Moreover, a USAID official was a member of the panel that conducted the selection process, plaintiff states, thereby bringing the matter within the holding of Distributed Solutions and within the jurisdiction of this court.

Defendant attempts to distinguish Distributed Solutions by arguing that USAID did not issue its own request for proposal and then decide to use a contractor for its procurement functions, as in Distributed Solutions. See id. In this case, USAID intended to use the prime contractor to handle the procurement from the beginning.

Blue Water is a case in which the Department of Energy contracted for day-to-day management of an energy facility, and the prime contractor subcontracted for cleaning services at the plant. See Blue Water Env. v. United States, 60 Fed.Cl. 48 (2004). This court ruled that a cleaning services contract awarded by a day-to-day management contractor was not a DOE procurement action and therefore was outside this court's jurisdiction. Id. at 54. Defendant contends that Blue Water compares more closely to Alatech than Distributed Solutions.

Blue Water is not helpful in analyzing this case, however. The prime management contractor issued an otherwise unrelated subcontract to a cleaning service. Distributed Solutions is a more recent case that factually is akin to Alatech in that the agency developed plans and specifications for the subcontractor to carry out in a field very similar to the functions allocated by the agency to the prime.

The Tucker Act as interpreted by Distributed Solutions gives this court jurisdiction to consider plaintiff’s request for a permanent injunction.2 See Distributed Solutions, 539 F.3d 1340. USAID’s actions in planning, setting up, and defining the procurement process and procedure for John Snow, and keeping an official on Snow’s selection committee, are indicia of the “stages of the process” found in 41 U.S.C. § 403(2) and cited by the Federal Circuit in Distributed Solutions. Id. at 1345.  (Alatech Healthcare, LLC, v. U. S., No. 09-332C, December 1, 2009) (pdf)  (See Alatech Healthcare, LLC, B-400925; B-400925.2, March 9, 2009 (pdf))


Defendant’s Motion to Dismiss raises the question whether the circumstances detailed above encompass a viable procurement protest, concerning a Federal agency solicitation or contract award, within the jurisdiction afforded to this court under 28 U.S.C. § 1491(b). Analyzing the several steps in the software procurement involved, defendant argues that no such viable protest has been established in that plaintiffs are essentially protesting the award of subcontracts by a contractor with a Federal agency, not a contract award by a Federal agency. Plaintiffs, in response, argue for an expansive interpretation of 28 U.S.C. § 1491(b) to encompass the process which resulted in competition for the award of subcontracts rather than the award of Federal agency contracts.

The GSA Millennia GWAC contract for which USAID issued the PRIME 2.2 task order in November, 2003, encompassed the acquisition of software and its integration. USAID could have initially included the JAAMS program software requirements for procurement by SRA under PRIME 2.2. However, USAID first proceeded to conduct market research by issuing a RFI, noting that a contract award would not result. Information was sought as to possible commercial off-the-shelf software products to develop a common platform for USAID and DoS acquisition and assistance management systems. Plaintiffs responded to the RFI.

Often, after obtaining market research by issuing an RFI, a Federal agency will then issue a Request for Proposals to commence acquisition of the requirements involved. See, e.g., Dalton v. Cessna Aircraft Co., 98 F.3d 1298, 1299-00 (Fed. Cir. 1996). However, after obtaining responses to its RFI, USAID added its JAAMS software requirements to the existing PRIME 2.2 task order held by SRA. Plaintiffs argue that this act raises a viable protest under 28 U.S.C. § 1491(b). However, adding work to an existing contract that is clearly within the scope of the contract, which is the circumstance present here, does not raise a viable procurement protest based on lack of competition. AT&T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed. Cir. 1993); HDM Corp. v. United States, 69 Fed. Cl. 243, 254 (2005); Phoenix Air Group, Inc. v. United States, 46 Fed. Cl. 90, 105 (2000).

SRA proceeded to procure the software by means of executing subcontracts with the selected vendors, Infoterra and Compusearch. Plaintiffs’ subcontract proposals, submitted to SRA, were not chosen. Plaintiffs argue that the award of subcontracts by SRA to Infoterra and Compusearch raise viable procurement protests, within the ambit of 28 U.S.C. § 1491(b), in that it is asserted that SRA was operating as a purchasing agent for USAID in these transactions so that a Federal agency procurement actually occurred. USAID and DoS officials did substantially participate in the evaluation of vendors submitting proposals to SRA and the resulting choice of Infoterra and Compusearch for SRA subcontracts, but the terms of the subcontracts belie purchasing agent status for SRA. There is no direct USAID or DoS liability to the vendors. SRA retained the sole responsibility to direct the vendors in their work under their subcontracts and payments to the subcontractors were to be made by SRA. Pursuant to the test established by US West Communications Services., Inc. v. United States, 940 F.2d 622, 629-30 (Fed. Cir. 1991) and United States v. Johnson Controls, Inc., 713 F.2d 1541, 1551 (Fed. Cir. 1983), SRA cannot be relegated to purchasing agent status in its subcontracting activity under the PRIME 2.2 task order. As a result, the subcontracts at issue were not awarded by, or on behalf of, a Federal Agency.

Accordingly, in accord with the decision reached by the GAO on plaintiffs’ protests, it is also concluded that a Federal agency procurement is not at issue in this matter. Since 28 U.S.C. § 1491(b) provides procurement protest jurisdiction to this court over procurements by Federal agencies, disappointed subcontractors are not afforded protest rights. Blue Water Envtl., Inc. v. United States, 60 Fed. Cl. 48 (2004). Plaintiffs seek additional documents and propose issues, such as possible conflict of interest considerations in the award by SRA of the subcontracts concerned. These issues could merit inquiry if jurisdiction were present, but judicial action must remain within the boundaries established by statute. Enlarging these boundaries is the province of Congress, not this court.  (Distributed Solutions, Inc, and STR, L.L.C, v U. S., No. 06-466C,  May 21, 2007) (pdf)


Eagle Design admits that it was not an actual offeror in its own right and does not claim that it would have, itself, become a prospective offeror were the Court to correct SBA’s alleged erroneous size determination with respect to Z-Tech. Rather, Eagle would have participated in this 8 procurement only as a subcontractor to Z-Tech. Nonetheless, Eagle urges the Court to ignore its designation as a subcontractor and focus instead on the substance of Eagle’s proffered performance, noting it would incur 49 percent of the labor costs, thereby making it an actual offeror coextensive with its prime contractor, Z-Tech. Our appellate authority has squarely rejected the notion that a subcontractor qualifies as an “interested party” under the CICA definition, leaving no room for the type of scrutiny Plaintiff urges into what lies beneath this subcontractor’s nomenclature. In MCI Telecommunications Corp. v. United States, 878 F.2d 362, 365 (Fed. Cir. 1989), the Federal Circuit construed the nearly identical definition of “interested party” under the now repealed Brooks Act, 40 U.S.C. § 759(f)(9)(B) (1994) , and concluded that an offeror who “deliberately chose to be only a subcontractor and not 9 to submit its own proposal” could not achieve “prospective bidderhood.” The Federal Circuit explained that “in order to be eligible to protest, one who has not actually submitted an offer must be expecting to submit an offer prior to the closing date of the solicitation, MCI, 878 F.2d at 365 (emphasis in original). See also, U.S. West Communications Servs. v. United States, 940 F.2d 622, 10 627-28 (Fed. Cir. 1991) (recognizing that the legislative history of the Brooks Act indicates that the right to bring a bid protest under that statute did not extend to subcontractors); Information Sys. & Networks Corp. v. United States Dept. of HHS, 970 F. Supp. 1, 22 (D.D.C. 1997) (recognizing that “subcontractors are not intended for protection under CICA. . . . Though [subcontractor’s] economic interest was directly affected by the recompetition, that is not enough. It must be at least an ‘offeror.’”). Here, Eagle Design’s admission that it had not submitted and does not intend to submit a proposal is fatal to its claim to be an interested party. As this Court recognized in Gentex Corp. v. United States, 61 Fed. Cl. 49, 52 (2004), the standing doctrine embraces the general prohibition against a litigant’s raising another entity’s legal rights. In short, Eagle Design as a subcontractor to an offeror in this procurement is not itself an actual or prospective offeror, and thus not an interested party. Eagle Design lacks standing to bring this post-award bid protest.  (Eagle Design & Management, Inc. v. U. S. and Circle Solutions, Inc., No. 04-1200C, September 16, 2004) (pdf)


Given the uncontradicted evidence that DOE was removed from day-to-day supervision of the sub-contracting process at issue here, the court has no basis for concluding that BSA was acting as a federal entity for the purposes of the subject procurement. The plaintiff’s reliance on language in various documents to show that DOE was and will be deeply involved in the Peconic River project does not alter this conclusion. The government’s role in ensuring that the contractors meet government standards does not convert the subject contract from a private subcontract to a federal contract. See Globex, 54 Fed. Cl. at 350 (“The fact that DOE has concurrent inspection and access rights to ensure . . . that regulations and standards are followed by contractors and subcontractors, does not serve as a basis for the plaintiff to bring a contract claim against it.”). DOE’s role in the cleanup decision making process does not make the subject procurement a federal contract. Furthermore, the subcontracting process was not 12 controlled by DOE. Thus, assuming arguendo that plaintiff’s day-to-day supervision theory is sufficient to establish “agency” for purposes for the Tucker Act, the plaintiff has failed to establish that DOE supervised or directed the subcontracting process in this case. Here, the plaintiff cannot meet the purchasing agent test adopted in US West. The plaintiff has failed to establish any of the factors necessary to establish a purchasing agent relationship under US West. In this case, as in US West, the M&O contract with BSA clearly states that “[s]ubcontracts shall be in the name of the contractor, and shall not bind or purport to bind the Government.” I.114(j). The contract awarded to Envirocon also states that “[t]his Contract does not bind nor purport to bind the Government of the United States.” In addition, the affidavit of Ms. Healey expressly states that “[t]he prime 15 contract between the Government and BSA does not grant BSA the authority to act as a purchasing agent for the Government and BSA was not acting as a purchasing agent when [BSA] awarded the contract to Envirocon.” ¶ 8. Thus, just as the subcontractor in US West failed to establish agency, there is no evidence here to support a finding that BSA was DOE’s purchasing agent. In such circumstances, the subcontract awarded to Envirocon is not subject to this court’s bid protest jurisdiction.  (Blue Water Environmental, Inc., v. U. S., No. 04-424C, March 31, 2004) (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Distributed Solutions, Inc, and STR, L.L.C, v U. S., No. 06-466C,  May 21, 2007 (pdf) Alatech Healthcare, LLC, v. U. S., No. 09-332C, December 1, 2009 (pdf)  (See Alatech Healthcare, LLC, B-400925; B-400925.2, March 9, 2009 (pdf))
Eagle Design & Management, Inc. v. U. S. and Circle Solutions, Inc., No. 04-1200C, September 16, 2004 (pdf)  
Blue Water Environmental, Inc., v. U. S., No. 04-424C, March 31, 2004 (pdf)  

Court of Appeals for the Federal Circuit

We now turn to whether the substance of the contractors’ complaint, as correctly construed, has met the jurisdictional requirements of the Tucker Act, 28 U.S.C. § 1491, added by the Administrative Dispute Resolution Act, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996). Specifically, § 1491(b) confers exclusive jurisdiction upon the Court of Federal Claims over bid protests against the government. Paragraph (1) of that subsection provides:

the United States Court of Federal Claims . . . shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1) (emphasis added).

There is no question that the contractors here are interested parties and not mere “disappointed subcontractors” without standing. To qualify as an “interested" party,” a protestor must establish that: (1) it was an actual or prospective bidder or offeror, and (2) it had a direct economic interest in the procurement or proposed procurement. See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). Assuming that the June RFI was part of the challenged procurement process, the contractors have established themselves as prospective bidders in that they submitted qualifying proposals in response and, according to their complaint, were prepared to submit bids pursuant to the anticipated Request for Quotation (RFQ) or Request for Proposal (RFP) that typically ensues after an RFI is issued. See Compl. ¶¶ 7, 9, 10, 19. The contractors also possess a direct economic interest in the government action at issue in that they were both deprived of the opportunity to compete for the provision of acquisition and assistance solutions for JAAMS. The contractors allege that, as a result of the government’s decision to forego the direct competitive process of procurement, they have collectively lost significant business opportunities amounting to approximately ten million dollars. Id. ¶ 6.

There is also no question that the contractors have alleged a number of statutory and regulatory violations by the government in choosing to forego the direct competitive procurement process and tasking SRA with the responsibility of selecting software vendors indirectly. These allegations include violations of the Competition in Contracting Act (CICA), 31 U.S.C. § 3551, et seq., the Small Business Act, 15 U.S.C. § 631(j)(3), and various Federal Acquisition Regulations (FAR). Though the government contests the merits of these allegations, it does not contend that any of these allegations are frivolous.

The only issue is whether the contractors’ protest is “in connection with a procurement or a proposed procurement” under the scope of § 1491(b). In RAMCOR Services Group, Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999), we held that “the operative phrase ‘in connection with’ is very sweeping in scope.” The Tucker Act does not define the terms “procurement” or “proposed procurement.” Congress did, however, expressly define “procurement” in 41 U.S.C. § 403(2), a subsection of the statutory provisions related to the establishment of the Office of Federal Procurement Policy in the Office of Management and Budget. These provisions give overall direction for federal procurement policies, regulations, procedures, and forms. See 41 U.S.C. §§ 401-20; Pub. Warehousing Co. K.S.C. v. Def. Supply Ctr. Phila., 489 F. Supp. 2d 30, 38-39, 39 n.7 (D.D.C. 2007). Specifically, § 403(2) states “‘procurement’ includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” 41 U.S.C. § 403(2) (emphasis added). We conclude that it is appropriate to adopt this definition to determine whether a “procurement” has occurred pursuant to § 1491(b). Cf. 10 U.S.C. § 2302(3) (Armed Services Procurement Act also defining “procurement” by reference to the definition employed in 41 U.S.C. § 403). We note that § 1491(b)(1) includes both actual procurements and proposed procurements.

Therefore, the phrase, “in connection with a procurement or proposed procurement,” by definition involves a connection with any stage of the federal contracting acquisition process, including “the process for determining a need for property or services.” To establish jurisdiction pursuant to this definition, the contractors must demonstrate that the government at least initiated a procurement, or initiated “the process for determining a need” for acquisition and assistance solutions for JAAMS.

The trial court was certainly correct that adding work to an existing contract that is clearly within the scope of the contract does not raise a viable protest under § 1491(b)(1). See AT&T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed. Cir. 1993). The government did not merely add work to an existing contract in this case. The government issued the June RFI which stated that, “The primary objective of this effort is to select and implement acquisition and assistance solutions that meet the unique functional requirements of both organizations . . . to research possible commercial off-the-shelf (COTS) Acquisition and Assistance (A&A) solutions for JAAMS . . . to determine if existing COTS A&A systems or combinations thereof can satisfy their requirements.” The government contends that, because the June RFI specified on its face that it was “for market research purposes only” and would “not result in a contract award,” it was not part of any procurement process. The contractors contend, on the other hand, that the June RFI represented “the beginning of the process for determining the type of software to be acquired” for JAAMS. In support, the contractors have identified statements in the government’s own declarations that the June RFI was used to determine the parameters of the eventual procurement of the software at issue. Opp’n Mot. to Dismiss at 15 (citing AR170). The government itself conceded during oral argument that it had considered the possibility of procuring the JAAMS software directly from vendors and therefore collected information from the vendors via the June RFI. Oral Arg. at 16:52-17:18, available at http://oralarguments.cafc.uscourts.gov/mp3/2007-5145.mp3. The government additionally conceded that the government determined that procurement responsibilities were within the scope of the PRIME 2.2 task order after reviewing the responses from the vendors or potential contractors for the June RFI. Id. at 17:36-48.

Here, unlike AT&T, the government used an RFI to solicit information from outside vendors, and then used this information to determine the scope of services required by the government. While the government ultimately decided not to procure software itself from the vendors, but rather to add that work to its existing contract with SRA, the statute does not require an actual procurement. The statute explicitly contemplates the ability to protest these kinds of pre-procurement decisions by vesting jurisdiction in the Court of Federal Claims over “proposed procurements.” A proposed procurement, like a procurement, begins with the process for determining a need for property or services. We conclude that the government had done as much in this case.  (Distributed Solutions, Inc., and STR, L.L.C., v. U. S., 2007-5145, August 28, 2008) (pdf)

Court of Appeals for the Federal Circuit - Listing of Decisions

For the Government For the Protester
  Distributed Solutions, Inc., and STR, L.L.C., v. U. S., 2007-5145, August 28, 2008 (pdf)
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