Law School Case Brief
Google, Inc. v. United States - 95 Fed. Cl. 661 (2011)
In a bid protest, the court's primary responsibility is to determine whether the agency violated a federal statute or regulation in the procurement process and whether any such violation was prejudicial. If no prejudicial violation of law or regulation is found, the court next is required to determine whether the agency decision evidences a rational basis. To meet the burden of showing that a sole-source award lacks rational basis, a party can show: (1) the agency's decision to conduct a sole-source procurement process lack a rational basis; (2) the agency's sole-source requirements lacked a rational basis; or (3) based on the sole-source requirements, the selection of the sole-source awardee lacked a rational basis. Last, the court is required to ascertain whether the agency otherwise acted in an arbitrary and capricious manner with respect to the procurement at issue.
Google, Inc. and Onix Networking Corporation, a licensed vendor of Google products and solutions (Google), filed a pre-award bid protest in the United States Court of Federal Claims, alleging that defendant government, acting through the Department of Interior, had authorized an exclusive procurement for an electronic messaging solution that violated the Competition in Contracting Act (CICA), 41 U.S.C.S. § 253(a), various regulations, and the Administrative Procedure Act, 5 U.S.C.S. § 706(2)(A). Google argued that they were not provided an opportunity to compete for requirements they could meet and that the non-competitive request for quotations (RFQ) violated federal laws and regulations. Google sought a preliminary injunction.
Should a preliminary injunction be granted to plaintiff protesters, who brought a pre-award bid protest alleging that defendant federal government had authorized an exclusive procurement for an electronic messaging solution that violated the Competition in Contracting Act (CICA)?
The United States Court of Federal Claims determined that a preliminary injunction and remand was warranted. The Court issued a preliminary injunction because it concluded, among other things, that the protesters had made out a prima facie case that the agency had violated CICA and relevant regulatory provisions. The agency had issued determinations and findings that only one responsible source could satisfy its requirements. Such findings were quintessential non-competitive procedures and, pursuant to 41 U.S.C.S. § 253(f)(1)(A), had to be justified by the contracting officer. In addition, since the findings concerned an amount exceeding $50 million, pursuant to 41 U.S.C.S. § 253(f)(1)(B)(iii), they required the additional approval of the senior procurement executive of the agency. The findings were not accompanied by proper justifications or appropriate approvals. Moreover, they contained numerous deficiencies in terms of requirements under the Federal Acquisition Regulations. On the motion for preliminary injunctive relief, the Court weighed four factors: (1) immediate and irreparable injury to the movant; (2) the movant's likelihood of success on the merits; (3) the public interest; and (4) the balance of hardship on all the parties. The Court orderd that defendants were preliminarily enjoined from proceeding with or awarding a contract to implement a Microsoft Business Productivity Online Suite-Federal Messaging solution.
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