In CGI Federal Inc., v. United States, 2014-5143 (decided March 10, 2015), the U.S. Court of Appeals for the Federal Circuit recently held that CGI Federal Inc., was a ‘prospective bidder’ because it diligently and continuously pursued its rights first at the GAO (B-409482.1), and later the U.S. Court of Federal Claims (CGI Federal Inc., v. United States, No. 14-355C (Filed August 22, 2014) This decision is precedential.
In its decision, the Court examined four prior cases. First, the Court looked at MCI Telecommunications Corp v. United States, 878 F.2d 362 (Fed. Cir. 1989) where it found that MCI was not a prospective bidder because it did not file a protest after the contract has been awarded. Next, the Court looked at Federal Data Corp. v United States, 911 F.2d 699 (Fed. Cir. 1990) where it observed that “Federal Data knowingly took itself out of the bidding prior to filing its amended protest…” Next, the Court looked at the meaning of ‘prospective bidder’ in Rex State Corp. v. United States, 448 F.3d 1305 (Fed. Cir. 2006). In this case, Rex did not pursue its protest after the agency denied it. Finally, the Court looked at Digitalis Educ. Solutions, Inc., v United States, 664 F.3d 1380 (Fed. Cir. 2012) where the protestor failed to submit the required documentation to the agency and several months later it filed its U.S. Court of Federal Claims protest.
While CGI never submitted a bid, it filed its protest prior to the close of the bidding and thereby established its ‘prospective bidder’ status. When unsuccessful, CGI immediately filed for relief at the U.S. Court of Federal Claims.
This case demonstrates that timely exercise of legal rights is critical in order to achieve what the Court recognized as ‘prospective bidderhood’ in MCI, 878 F.2d at 365. The U.S. Court of Appeals for the Federal Circuit emphasized the fact that CGI filed its protest prior to the end of the solicitation period, even though CGI did not submit its bid. After the Court held that CGI was a ‘prospective bidder’ with a direct economic interest affected by the award of the contract, the Court turned to examine the merits of its protest.