In 2019, the U.S. Court of Federal Claims and the U.S. Government Accountability Office issued five decisions worthy of particular note:
- NetCentrics Corp. v. U.S.;
- PAE-Parsons Global Logistics Services LLC v. U.S.;
- Space Exploration Technologies Corp. v. U.S.;
- Oracle America Inc. v. U.S.;
- Blue Origin Florida LLC.
This article provides a brief overview of these five cases and discusses how they might shape the bid protest landscape going forward.
In response to allegations made in a GAO bid protest, the U.S. Department of Defense investigated whether the contract awardee had made a material misrepresentation in its proposal about the availability of one of its proposed key personnel. The DOD concluded that the awardee’s proposal did misrepresent the availability of one of the awardee’s proposed key personnel and that this misrepresentation was material because the DOD relied on it during the evaluation. As a result, the DOD rescinded the award and disqualified the contractor from the competition.
The disqualified contractor then filed its own GAO bid protest, challenging, among other things, that the DOD’s determination that its proposal contained a material misrepresentation. The GAO denied the disqualified Lisa Markman contractor’s protest, concluding that the agency reasonably found that the contractor’s proposal contained a material misrepresentation and that the agency acted reasonably in rescinding the award and disqualifying the contractor.
The next day, the disqualified contractor protested at the U.S. Court of Federal Claims, arguing, among other things, that, “to disqualify its proposal on material misrepresentation grounds, the agency was required to find not only that [the contractor] made false statements upon which the agency relied, but also that [the contractor] did so with the intent to deceive the agency.” The contractor argued that “intent to make a false statement is a necessary element of a material misrepresentation.”
The COFC, in turn, stated that an intentional material misstatement reflected egregious behavior that threatens the integrity of a procurement, but an intentional misstatement is not necessary in a case like this because an inadvertent material misrepresentation also “undermines the agency’s ability to make well-reasoned procurement decisions that serve the public interest.” Requiring intentionality, the COFC reasoned, ran the risk of reducing offerors’ incentives to exercise due diligence when preparing their proposals.
For these reasons, the COFC concluded that an agency “may reasonably disqualify a proposal on material misrepresentation grounds where — despite the fact that the misrepresentation was inadvertently included in the proposal — the agency relied upon it when making its award decision.” The COFC then held that, in this case, the agency reasonably concluded that the disqualified contractor’s proposal contained such a misrepresentation and, further, that the misrepresentation was a material one.
The original article was published in Law360 on December 17, 2019.