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Resolicitation Following Sustained Protest Was Not Bad Faith

The Court of Federal Claims denied a protester's request to enjoin a request for quotations, despite the fact the protester prevailed in a protest of an earlier request for proposals seeking to procure the same item, because the government did not resolicit the item in bad faith. The dispute arose out of a solicitation for large field refrigeration systems issued pursuant to the General Services Administration's Federal Supply Schedule program. In an earlier decision, the protester succeeded in demonstrating an award for the LFRSs was arbitrary and capricious, because the awardee's proposal did not comply with the certification requirement of the Trade Agreements Act (52 CCF 78,953 ). As a result of that decision, the government could have granted the contract to the protester as the firm next in line to receive the award, but it did not do so. Instead, without formally cancelling the prior RFP, the government issued a separate RFQ seeking to procure the LFRSs under the FSS. At the time of the original RFP, the LFRSs were not offered through the FSS, and thus the government did not have the option of procuring them through that medium. However, the FSS was modified after the first protest was filed and two or more companies, including the awardee, became qualified to furnish the LFRSs under their FSS contracts. The awardee had also solved its TAA problem by moving assembly of the LFRSs from China to New Jersey. In the instant protest, the protester sought to enjoin the RFQ, arguing it was an improper attempt to thwart the prior ruling. According to the protester, the RFQ amounted to a de facto cancellation of the original RFP that was arbitrary and capricious.
Understandable Mistake

The government's actions in issuing the RFQ did not warrant injunctive relief, despite the government's error in finding the protester was ineligible under the original RFP and the prejudicial effect of the error on the protester. After the earlier protest was sustained and the award was cancelled, the government legally could have granted the award to the protester. However, the government made a mistake of law and fact which led it to believe the protester had improperly attempted to modify its proposal. The protester was prejudiced by this mistake because without the error, it would have had a substantial chance of winning the award. Nevertheless, under the circumstances the mistake was "understandable" and did not involve the exercise of bad faith, so "the extraordinary relief of enjoining an otherwise unimpeached procurement" was not warranted. A balancing of the competing harms favored allowing the RFQ to continue. Although the CFC denied injunctive relief, it granted the protester's alternative request for reimbursement of its bid preparation and proposal costs. (Klinge Corp. v. U.S., et al., FedCl, 52 CCF 79,008)


(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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