Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Thursday, June 27, 2013, 1:27pm EST
Trailboss Enterprises, Inc. v. United States, 13-296C, June 18, 2013
It is not an uncommon occurrence for a disappointed bidder on a government procurement to file a protest of an agency’s award decision. If the protester meets certain filing requirements in a protest before GAO, an automatic stay of performance may be triggered, i.e. the agency cannot allow the winning contractor to begin performance until the protest is resolved. The excitement over winning a contract award quickly turns to frustration, as the awardee must sit and wait.
But what about the terms of the awardee’s winning offer? A solicitation will often require offerors to hold the prices offered in their proposals for a certain period of time after the deadline for receipt of proposals. This allows the agency time to make its evaluation and award decision without any changes in the offered prices. But an interesting situation can occur if the agency makes an award within that hold window, but due to a protest, cannot allow the awardee to perform for an extended period of time.
This was the situation in Trailboss Enterprises v. U.S., a recent case before the Court of Federal Claims. Trailboss was the awardee under a solicitation issued by the Air Force. The solicitation contained a requirement that offerors hold their prices firm for 90 calendar days following the date set for final receipt of proposals. In its proposal, Trailboss agreed to this 90 day hold period. The deadline for receipt of proposals was September 21, 2012, and the Air Force made its award to Trailboss on November 14, 2012—well within the 90 day hold period. However, the award to Trailboss was protested, and a stop work order was issued. After corrective action taken by the Air Force, another protest was filed, and another stop work order was issued by the Air Force. Trailboss was not due to begin performance on the contract until May 9, 2013, over 20 weeks after the end of the 90 day hold period on Trailboss’ prices.
In January 2013, Trailboss informed the Air Force that because of the expiration of the 90 day hold period, its initial offered prices were no longer valid and it was no longer willing to perform at those prices. The Air Force objected to this position, and informed Trailboss that despite the protests, it had not terminated Trailboss’ contract awarded in November 2012, and thus intended to hold Trailboss to the prices in its offer.
Trailboss filed a bid protest with the Court of Federal Claims, seeking relief from having to perform on the contract at the initial offered pricing. The Court denied the protest for lack of jurisdiction, holding that once it receives the award, an awardee does not have standing to challenge the terms of that award and thus cannot file a bid protest. The Court stated that any claim for increased pricing due to the expiration of the 90 day hold period is a matter of contract administration, and would need to be conducted pursuant to the Contract Disputes Act. The CDA requires the contractor to file a claim with the contracting officer, and obtain a contracting officer’s final decision. Because Trailboss did not follow the procedures required by the CDA, the Court did not have jurisdiction over Trailboss’ claim.
In a footnote, the Court noted that if Trailboss had a concern over the negative impact any delay in performance would have on its offered pricing, it could have challenged the 90 hold period in a pre-award protest. However, such a protest would have needed to be filed prior to the deadline for receipt of proposals.