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Notice Promising Consideration of Other Offers Bound Government

The government violated its duty to consider a protester's bid fairly and honestly, according to the Court of Federal Claims, because it disregarded its published notice promising to consider other bids. The protester challenged the cancellation of a solicitation for helicopters for use by the Afghan air force and the proposed sole-source procurement of the helicopters from a Russian state-owned enterprise. The government published notice of the procurement on the Federal Business Opportunity website even though it was conducted pursuant to the public interest exception allowing noncompetitive procurement procedures (10 USC 2304(c)(7)) and no notice was required. The notice stated "[a]ll responsible sources may submit an offer, which shall be considered by the [a]gency." The protester contended the government violated its implied duty to consider bids fairly and honestly by encouraging the protester to submit a proposal for the sole-source procurement despite its intent not to consider the proposal.

Inaccurate Message

According to the court, the use of the mandatory word "shall" in the notice bound the government to fairly consider offers submitted from responsible sources. In addition, after publishing the notice, the government failed to state unequivocally it did not intend to consider other proposals, and it provided the request for proposals to the protester. The notice and subsequent actions conveyed the inaccurate message the government would consider any proposal submitted by a responsible source, but the government never actually considered the protester's proposal. The court concluded the government's failure to communicate its contrary intent and failure to consider the protester's proposal violated FAR 1.102(b)(3), FAR 1.102-2(c)(3), and FAR 3.101-1, which required the government to treat the protester and its proposal fairly and honestly. The court nevertheless denied the protester's request for injunctive relief because, although the protester satisfied the requirement to show irreparable injury, it was outweighed by the government's showing a reprocurement risked damaging the relationship between the United States and Russia and threatened the timely withdrawal of U.S. troops from Afghanistan. However, the protester was entitled to bid preparation and proposal costs. (Defense Technology, Inc. v. U.S., et al., FedCl, 55 CCF 79,602)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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