By: Lindsay Simmons
What does an automatic stay under the Competition in Contracting Act (CICA) mean in the context of a pre-award protest? In Caddell Construction, the Court of Federal Claims told us: it’s a stay of the award. The government can continue to receive and evaluate bids during ongoing protests – it is only precluded from awarding a contract. Caddell Construction Co. LLC v. U.S., CFC 15-135 & 136-C. ?
After Caddell filed two protests at the General Accountability Office (GAO), the State Department announced that the solicitation would “continue as scheduled without regard to the protests.” Caddell thought this was an improper override of the mandatory CICA stay and sought relief in the Court of Federal Claims. The government denied that it was taking any action that would violate CICA or override the stay.
Senior Judge James F. Merow ruled in favor of the agency, finding that Caddell “conflates the concepts of violating the CICA stay and instituting an override”. Even if the agency continued to evaluate bids, CICA is “unambiguous in prohibiting only the final step of awarding a contract.”
CICA states that “a contract may not be awarded” while a GAO protest is pending. . . Perhaps an intention to award the contract would be sufficient to establish jurisdiction [in the Court of Federal Claims] under some set of circumstances, but plaintiff has not alleged any facts to support its allegation of the government’s intent beyond the agency’s statement that the solicitation would continue.
The continued evaluation of proposals is not the same as awarding a contract. A pre-award stay entitles the protester to a stay of the award, nothing more. Of course given that protests often result in agency corrective action, it may be prudent for the government to stay the entire procurement process – but that’s their decision, not one mandated by CICA.?
Lindsay Simmons is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015