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4 CFR 21.11:  Effect of Judicial Proceedings

Comptroller General - Key Excerpts

New Jay Hymas’ challenges to the agency’s CFA program began in 2013 before the U.S. Court of Federal Claims (COFC) and ultimately reached the Court of Appeals for the Federal Circuit. See Hymas v. United States, 117 Fed. Cl. 466 (2014); Hymas v. United States, 810 F.3d 1312 (2016). On January 14, 2016, the Court of Appeals for the Federal Circuit issued a decision resolving the government’s appeal of the 2014 COFC decision. As relevant to the current protest, the Federal Circuit concluded that the CFAs at issue were not procurements under the Competition in Contracting Act (CICA), but instead were properly issued as cooperative agreements. In concluding that the CFAs were not procurements, the Federal Circuit found that the COFC had improperly taken jurisdiction to hear Jay Hymas’ protest of the agency’s use of CFAs. The Federal Circuit vacated the COFC’s decision--which had found that the CFAs constituted procurements under CICA--and remanded with instructions to dismiss the case.

On remand, the COFC transferred the case to the United States District Court for the Eastern District of Washington. On December 14, 2016, Mr. Hymas filed an amended complaint with the District Court, and on March 3, 2017, filed a motion for a temporary restraining order to enjoin the operation of existing CFAs and enjoin the FWS from entering into new CFAs. On March 20, the District Court dismissed six of the seven counts in the amended complaint, and denied Hymas’ request for a temporary restraining order. See Agency Motion to Dismiss, exh. 2. The District Court concluded that the Federal Circuit’s decision had conclusively established that CICA does not apply to the CFAs, and that the FWS had properly construed the CFAs as cooperative agreements.

After receiving the Court’s decision, Jay Hymas filed a protest with our Office on April 4. The protester alleges that the agency’s actions with regard to the CFAs are improper because the agency is failing to post notice of the CFAs, including posting notifications to www.grants.gov, www.cfda.gov, or www.fbo.gov. The protester explains that [n]o postings occur for these hundreds of CFAs (whether FGCAA grants or merely regular procurements) issued annually for most of the refuges located throughout the 48 states. No competition or public notice or even execution on valid government forms occurs for these undisclosed, completely noncompetitive and hand-picked procurements for farming services.

Protest at 1. The protester argues that the agency should be required to solicit these requirements as procurement contracts due to the agency’s repeated failure to post notification of the cooperative agreements and FWS’ failure to follow the requirements of FGCAA. Jay Hymas requests that our Office require the agency to post notice of the CFAs, and requests that GAO require the agency to permit Jay Hymas “to participate in any CFAs issued within the entire United States for 2017 and future years.” Id.

On April 26, the agency filed a motion to dismiss with our Office. The agency argues that the protester’s challenge to the agency’s use of cooperative agreements should be dismissed because the Federal Circuit has already decided the matter--that the CFAs were properly issued as cooperative agreements, not procurements. Agency’s Motion to Dismiss, at 1. The agency also asserts that GAO has no bid protest jurisdiction to hear Jay Hymas’ protest challenging the FWS’ use of cooperative agreements. Id.

Our regulations provide for the dismissal of any case where the matter involved is the subject of litigation before, or has been decided on the merits by, a court of competent jurisdiction. Bid Protest Regulations 4 C.F.R. § 21.11(b). Here, it is beyond cavil that the Court of Appeals for the Federal Circuit is a court of competent jurisdiction to render a decision on Jay Hymas’ complaints challenging the CFAs. In this regard, our Office has explained that where, as here, the court’s decision constitutes a final adjudication on the merits with respect to the procurement, it is conclusive, and bars further reconsideration of the merits by our Office. See Adams and Assocs., Inc., B‑409680, B‑409681, Apr. 22, 2014, 2014 CPD ¶ 131 at 3 (dismissing issues that were decided by, as well as those that could have been brought before, the Court of Appeals for the Federal Circuit); see also Warvel Prods. Inc., B‑281051.5, July 7, 1999, 99-2 CPD ¶ 13 at 8 (dismissing issues that were, or could have been, decided by the Court of Federal Claims).

As it relates to the protester’s allegation that the CFAs should be issued as procurements, the Court of Appeals for the Federal Circuit concluded that the FWS was permitted by statute to enter into such cooperative agreements and that such agreements did not constitute procurements. Given that the Court of Appeals for the Federal Circuit has already decided the matter, and the protester has failed to provide any explanation as to why the Court of Appeals for the Federal Circuit’s determination should not apply to the facts here, we find that Jay Hymas’ protest provides no basis to challenge the CFAs.  (Jay Hymas B-414546: May 23, 2017)

On May 25, 2016, CCL filed a protest with our Office challenging the agency’s elimination of its proposal as technically unacceptable. On July 8, another unsuccessful offeror, for the same RFP pool number, withdrew its protest before our Office in order to file a protest with COFC. That offeror’s protest challenged the agency’s failure to conduct discussions. After receiving notice of the COFC protest, we dismissed CCL’s protest since the disposition of the COFC case could render a decision by our Office on CCL’s protest academic.

CCL primarily argues that 4 C.F.R. § 21.11(b) only permits dismissal of a protest before our Office where a case pending before a court involves the “same subject matter.” Request for Reconsideration at 3. CCL asserts that its protest involved a different subject matter than the protest before COFC, and therefore our Office erred in dismissing CCL’s protest.

Under our Bid Protest Regulations, to obtain reconsideration, the requesting party must set out the factual and legal grounds upon which reversal or modification of the decision is deemed warranted, specifying any errors of law made or information not previously considered. 4 C.F.R. §§ 21.14(a), (c). Here, we find that CCL has failed to demonstrate any error of law or fact in our decision.

In this regard, 4 C.F.R. § 21.11(b) provides:

GAO will dismiss any case where the matter involved is the subject of litigation before, or has been decided on the merits by, a court of competent jurisdiction. GAO may, at the request of a court, issue an advisory opinion on a bid protest issue that is before the court.

Our Office’s longstanding case law has consistently held that this regulation necessitates the dismissal of a protest regardless of whether the protest issues are identical, so long as the disposition of the case pending before a court could render the protest before our Office academic. See Schuerman Dev. Co., B-238464.3, Oct. 3, 1991, 91-2 CPD ¶ 286 at 2-3; Geronimo Serv. Co.--Recon., B-242331.3, Mar. 22, 1991, 91-1 CPD ¶ 321 at 2-3; Harrington, Moran, Barksdale, Inc., B-401934.2, B-401934.3, Sept. 10, 2010, 2010 CPD ¶ 231 at 2 n.2.

Our interpretation is entirely consistent with the language of the regulation. The provision at issue does not specify that the two cases involve identical issues, but instead generally provides that the “matter involved is the subject of litigation before . . . a court of competent jurisdiction.” 4 C.F.R. § 21.11. While the word “matter” is not defined, there is nothing in the language of the regulation, or elsewhere, to suggest that it is meant to apply to the exact narrow issue involved in the protest before our Office. Instead, the matter before the court can properly be characterized as a dispute over which companies should have remained in the competition under the GSA solicitation. While that matter remains before the court, GAO will not also decide the question.

The request for reconsideration is denied.  (Colleague Consulting, LLC--Reconsideration B-413156.18: Sep 12, 2016)


On March 11, Dellew filed a protest at the U.S. Court of Federal Claims (COFC) again arguing that the agency failed to perform an adequate cost-realism analysis of TSI’s proposal. The agency took corrective action in response to that protest and, following a reevaluation of proposals, and a new best-value determination, again selected TSI for award. On July 30, Dellew filed a second protest at the COFC, again raising essentially the same grounds it raised in the GAO protest and the first COFC protest. As part of the administrative record in that proceeding the Army provided Dellew with certain documents that it had not provided during the GAO protest. Following oral argument, the Army again decided to take corrective action. In this regard, the protester asserts, and the agency does not deny, that during oral argument, the Court informed the Army that it would likely sustain the second COFC protest. Request at 21. According to the agency it took corrective action as a result of the discussion at oral argument and changes in its requirements. Agency Report (AR) at 4. Following the agency’s decision to take corrective action and the Court’s dismissal of Dellew’s protest as a result, Dellew submitted its request to our Office that we recommend that the Army reimburse Dellew for the costs of filing and pursuing the protest that had been filed with our Office and denied.

Dellew asserts that we should recommend the reimbursement of the cost of pursuing its protest with our Office because the agency took corrective action in response to the same protest argument raised by Dellew at both the Court and our Office.

When a procuring agency takes corrective action in response to a protest, our Office may recommend reimbursement of protest costs, including reasonable attorneys' fees, if, based on the circumstances of the case, we determine that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. 4 C.F.R. § 21.8(e); AAR Aircraft Servs.-‑Costs, B-291670.6, May 12, 2003, 2003 CPD ¶ 100 at 6. Our bid protest jurisdiction, however, is limited by the Competition in Contracting Act to written objections to a solicitation, proposed award, or award of a contract filed with our Office. 31 U.S.C. §§ 3551(1), 3552. The provisions in our Bid Protest Regulations providing for the possibility of a recommendation that protest costs be reimbursed where an agency takes corrective action in response to a protest with our Office are intended to ensure fair treatment of protesters who make substantial investments of time and resources to pursue clearly meritorious protests in this forum. See Innovative Logistics Techniques, Inc.--Costs, B-289031.3, Feb. 4, 2002, 2002 CPD ¶ 34 at 5 (fact that protester earlier raised defect with the agency is of no significance to our determination whether the agency took prompt action after the protester filed its protest with our Office).

Here, a recommendation of costs is not warranted where the agency did not take corrective action in response to the protest filed with our Office. The fact that the agency later took corrective action in response to the protest filed before the COFC, which raised the same issues that were raised before our Office, does not change that result. Accordingly, there is no basis for us to recommend that the Army reimburse Dellew for the costs of filing its protest before our Office.  (Dellew Corporation B-410159.4: Feb 26, 2016)  (pdf)


Moreover, the facts surrounding the inaccurate financial information are in flux and, due to the actions pending in other forums, some of those facts are unavailable to our Office during the short time frame under which these protests must be resolved.  We hesitate to judge the degree of relevance or importance of such facts--such as the nature of culpability for acts causing the inaccuracies--before the other forums determine them.  Thus, although the precise matter being protested here (the award of the DREN contract) is not the subject of litigation before a court of competent jurisdiction (which if had been our Office would have promptly dismissed the protest, see 4 C.F.R. § 21.11(b)), we do not believe it is appropriate for our Office to “get ahead” of this process in the context of this protest.  (Sprint Communications Company LP; Global Crossing, B-288413.11; B-288413.12, October 8, 2002)  (pdf)


Protests filed by a state licensing agency for the blind alleging solicitation improprieties in two requests for proposals issued pursuant to the Randolph-Sheppard Act are dismissed because the Act gives authority for review of disputes between federal agencies and state licensing agencies regarding these procurements to the Secretary of Education, not the General Accounting Office.  (Maryland State Department of Education, B-288501; B-288502, August 14, 2001)


It is beyond cavil that the Court of Federal Claims is a court of competent jurisdiction to render a decision on Warvel's and ICF's complaints challenging this procurement. It is also clear that the court issued a decision on the merits, granting a preliminary injunction and dismissing the complaints. AR at 1551-53. Where, as here, the court's decision constitutes a final adjudication on the merits with respect to the procurement, it is conclusive and bars further consideration of the issue by our Office. Affiliated Textiles, Inc., B-242970.2, Aug. 5, 1991, 91-2 CPD para. 127 at 3. The effect of such a judgment extends to matters that might have been decided, as well as to matters that were actually decided. Id. at 4; Techniarts Eng'g--Recon., B-238520.7, June 10, 1992, 92-1 CPD para. 504 at 2.  Accordingly, we will not consider any matter that was, or could have been, decided by the court.  (Warvel Products, Inc., B-281051.5, July 7, 1999)  


We dismiss this allegation because it involves a matter that is the subject of litigation in federal court. 4 C.F.R. sec. 21.11(b) (1999). The matter involved in this protest is whether the contracting agency knew the "marginal" CPAR ratings to be motivated by bias, instead of an impartial assessment of the protester's performance. To answer this question, our Office must first determine whether bias did, in fact, taint the ratings -- the same question posed in Oahu's federal complaint. While Oahu correctly observes that its federal complaint does not mention the instant procurement and seeks different relief (i.e., the correction of the CPAR rather than the termination of the awardee's contract), these differences do not overcome the fact that Oahu has placed the same facts in issue before both our Office and the federal court. Compare Protest at 2-3 with Charles R. Tasker d/b/a Oahu Tree & Stump Removal Experts, supra at 3-5. We therefore dismiss Oahu's protest that the agency knowingly relied on biased CPAR ratings, inasmuch as the ratings have been challenged in federal district court. See 4 C.F.R. sec. 21.11(b); Robinson Enters.--Request for Recon., B-238594.2, Apr. 19, 1990, 90-1 CPD para. 402 at 2.  (Oahu Tree Experts, B-282247, March 31, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Jay Hymas B-414546: May 23, 2017  
Colleague Consulting, LLC--Reconsideration B-413156.18: Sep 12, 2016  
Dellew Corporation B-410159.4: Feb 26, 2016  (pdf)  
Sprint Communications Company LP; Global Crossing, B-288413.11; B-288413.12, October 8, 2002  (pdf)  
Maryland State Department of Education, B-288501; B-288502, August 14, 2001  (PDF Version)  
Warvel Products, Inc., B-281051.5, July 7, 1999)  (PDF Version)  
Oahu Tree Experts, B-282247, March 31, 1999  (PDF Version)  
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