Agencies: Department of Veterans Affairs
Keywords: Terms of the solicitation; time for filing
General Counsel, P.C. Highlight: Any challenge to the terms of a solicitation as being overly restrictive must be filed prior to the time for receipt of proposals.
Esterhill Boat Services Corporation provided leased space to the Department of Veterans Affairs in Rumford, Maine for a Community-Based Outpatient Clinic. When the VA entered its final year on the lease it decided to solicit proposals for a new site for the facility. The solicitation included various specifications including a requirement that a certain amount of the required square footage be located on one floor of a building. Esterhill and two other bidders submitted proposals. Esterhill proposed its existing facility, which did not have the required square footage located on a single floor. The VA excluded Esterhill from the competitive range for failing to meet the one-floor requirement and eventually awarded the contract to Federated Realty. Esterhill then sought relief from the U.S. Court of Federal Claims primarily based on a claim that the VA’s one-floor requirement was unduly restrictive.
The Court examined Esterhill’s claim that the one-floor requirement in the solicitation was not justified in light of the agency’s needs – that it was overly restrictive of competition. In defense, the VA argued that Esterhill’s protest was too late and that it should have filed this protest before the time for receipt of proposals, citing Blue &Gold Fleet, L.P. v. United States, and that by not raising the issue at that point Esterhill had waived its right to assert the claim after the award had been granted. In Blue and Gold Fleet the Court stated that the proper time for a protest against the terms of a solicitation is before the bids or proposals are submitted. The Court noted that Esterhill could have sought review by the court pre-award, but instead chose to gamble by submitting a proposal and hoping to win the contract. The Court agreed with the VA that Esterhill’s protest was now too late and that it had waived its right to challenge the terms of the solicitation as being overly restrictive.