Normally a protest occurs when a contractor loses an award and they want to challenge the award of the contract to someone else. However, winning offerors on a MAC have tried to challenge the government’s award to an offeror on the same MAC. For the most part, these protests are rejected by both the Court of Federal Claims (COFC) and the U.S. Government Accountability Office (GAO) because both courts found that the winning offeror does not have standing to protest such an award.
However, recent decisions by both the GAO and the COFC on this issue show a departure in how the case law is interpreted.
In Aegis Defense Services, the GAO dismissed the protest filed by an awardee against another awardee on the same MAC. GAO held that the awardee was not an interested party under the Competition in Contracting Act of 1984 (CICA), which requires that a protester be both an “actual or prospective offeror” and also possess a “direct economic interest in the contract award.” The GAO said the protestor did not meet either of these standards since it was nether an “actual or prospective offeror” nor was it directly impacted by the second award.
Less than one month later, COFC issued a decision taking the opposite view. In National Air Cargo Group, Inc. v. United States, the Court held that the awardee was an interested party under the CICA to challenge an award made to another contractor on the same MAC. The Court found that the awardee was an “actual” bidder and that the awardee had a direct economic interest because it alleged a “non-trivial competitive injury.” The “injury” was that the competition for task orders issued under the IDIQ contract would be adversely affected. Thus the “size of the task order pool” and the awardee’s opportunity to compete for such task orders would be adversely affected.
The COFC’s decision opens the door to other awardees who want to protest other awardees on a MAC. If the protestors can show that the award caused them “non-trivial competitive injury” they may be able to successfully challenge the award.
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