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CliniComp Int'l, Inc. v. United States - 117 Fed. Cl. 722 (2014)


The United States Court of Appeals for the Federal Circuit has held that a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection afterwards in a 28 U.S.C.S. § 1491(b) action in the Court of Federal Claims. Citing the desire to prevent contractors from taking advantage of the government and other bidders and to avoid costly after-the-fact litigation, the Federal Circuit in Blue & Gold Fleet stated that vendors cannot sit on their rights to challenge what they believe is an unfair solicitation, roll the dice and see if they receive an award. The Federal Circuit grounded this waiver rule in the statutory mandate for reviewing courts to give due regard to the need for expeditious resolution of procurement disputes pursued under 28 U.S.C.S. § 1491(b). The rule in Blue and Gold Fleet thus bars a protester from raising objections to patent errors or ambiguities in the terms of a solicitation after the closing of bidding if such errors or ambiguities were apparent on the face of the solicitation. The Court of Federal Claims has consistently applied this equitable bar as part of the court's bid protest review.


The United States Department of Veterans Affairs (VA) sought to procure a computer information system for the intensive care units of various VA medical centers in Kentucky, Tennessee, and West Virginia by means of a lowest price technically acceptable procurement conducted pursuant to Federal Acquisition Regulation (FAR) 15.1. Plaintiff CliniComp International, Inc. (CliniComp), an unsuccessful bidder for the solicitation, filed a post-award bid protest complaint on March 6, 2014 seeking declaratory and injunctive relief associated with the VA's contract award to Picis. CliniComp waived its right to object to a particular term in the solicitation because the term was unambiguous, and the protester failed to object prior to the date quotations were due.


Should declaratory and injunctive relief be granted to the unsuccessful bidder in a post-award bid protest arising out of a Request for Quotations (RFQ) by which the United States Department of Veterans Affairs (VA) sought, by means of a lowest price technically acceptable procurement conducted pursuant to Federal Acquisition Regulation (FAR), to procure a a computer information system?




The United States Court of Federal Claims granted a permanent injunction to bid protest plaintifff CliniComp. The Court held that defendant VA provided no record support for its conclusion that the awardee's quotation satisfied a particular requirement and, therefore, the VA relaxed the requirement, solely for the benefit of one offeror, which violated the full and open competition mandated by the Competition in Contracting Act, 41 U.S.C.S. § 3301. Moreover, because the VA never conducted discussions, it was neither required nor permitted to make a competitive range determination. CliniComp, who offered the lowest price by a considerable margin, was prejudiced by the VA's unequal treatment error; thus, the injunction on contract performance was warranted. The Court explained that the standard of review for a bid protest brought pursuant to the Administrative Procedure Act standard in 28 U.S.C.S. § 1491(b) is whether the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Under this standard, a procurement decision may be set aside if it lacks a rational basis or if the agency's decision-making involved a clear and prejudicial violation of statute or regulation. A court evaluating a challenge on the first ground must determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion. This standard is highly deferential. Under this standard, de minimis errors in the procurement process do not justify relief. A bid protest plaintiff bears the burden of proving that a significant error marred the procurement in question.

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