In a split decision with far-reaching implications for both government contractors and the private bar, the U.S. Court of Appeals for the Federal Circuit, in Inserso Corporation v. U.S., recently addressed timeliness and waiver issues in the bid protest context. The facts of this significant case, the majority and dissenting opinions, as well as key takeaways for federal contractors and their attorneys, are discussed below.
The U.S. Defense Information Systems Agency publicly posted a solicitation, referred to as "Encore III," on March 2, 2016. The solicitation invited companies to bid on the opportunity to enter into indefinite-delivery/indefinite-quantity contracts for information technology services.
The agency divided the competition into two so-called suites. One would award a suite of contracts in a full and open competition, and the other would award a suite of contracts in a competition among small businesses. The solicitation stated that small businesses could compete in both competitions but could only receive one award.
Bidders for both competitions submitted their initial proposals in October 2016. Inserso Corporation, the protester, only competed in the small-business competition. On Nov. 2, 2017, the agency notified offerors in the full-and-open competition of their award status. By Nov. 8, 2017, the agency completed post-award debriefings of the full-and-open-competition offerors.
In June 2018, the small-business-competition offerors, including the protester, submitted their final revised proposals. On Sept. 7, 2018, the agency notified the small-business offerors of their award status. The protester did not receive a small-business award due to its comparatively high price.
On Sept. 12, 2018, the protester filed a bid protest with the U.S. Government Accountability Office, but the GAO dismissed that protest because another company filed a protest at the U.S. Court of Federal Claims involving the same solicitation.
On Oct. 25, 2018, the protester filed its own complaint with the COFC, alleging that the agency's debriefing of the full-and-open-competition offerors provided offerors who had competed in both suites with an advantage in the small-business competition. Specifically, the protester alleged that certain offerors were unfairly provided the total evaluated price for all full-and-open-competition awardees, as well as previously undisclosed information regarding the agency's evaluation methodology.
The COFC ruled against the protester, finding that the agency's actions, even if improper, did not prejudice the protester. The protester then appealed to the Federal Circuit.