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)
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