Agency: Department of the Army
Disposition: Protest Dismissed
Decided: October 11, 2018
Keywords: Bid Protest Jurisdiction
General Counsel P.C. Highlight:
The GAO will not consider a protest on the same procurement where there is already a challenge pending before a court of competent jurisdiction.
Summary of Facts
Intuitive Research and Technology Corporation (Intuitive) protests the issuance of a Federal Supply Schedule Task Order to Torch Technologies, Inc. The underlying procurement was a Department of the Army request for quotations for both technical research and related activities to support the Army’s Aviation and Missile Research, Development, and Engineering Center.
Basis of Protest
Intuitive filed a protest of the award, challenging the agency’s technical and price evaluations, as well as the source selection decision. Another firm, Systems Studies & Simulation, Inc., (SSS) also filed a protest. However, SSS filed its protest to the same award at the United States Court of Federal Claims (COFC). The Army indicated the COFC has the jurisdiction to hear SSS’s protest. The Army argues the GAO should not proceed with Intuitive’s protest in light of the pending protest at the COFC. The GAO agrees.
The GAO will not decide a protest in situations where the matter is subject to litigation before a court of competent jurisdiction pursuant to 4 CFR §21.11 (b). Even where the issues presented are not the same as those raised by a protester before the GAO, where the court’s disposition of the matter could render a GAO decision academic, the GAO will not consider the protest.
The two factors the GAO considers when evaluating whether to consider a protest when another challenge is already pending include:
- Whether the challenge is before a court of competent jurisdiction and
- Whether the challenge is for the same procurement.
Given that both factors were present, the GAO concluded it could not entertain the Intuitive’s protest. Further, the GAO concluded that Intuitive was not entitled to reimbursement of protest costs.