GAO or the Court: Does Where You File Your Protest Make A Big Difference?

An offeror protested an award by the U.S. Forest Service when the agency’s solicitation appeared to favor its competitor, but the protest was denied at GAO. The Simplex Aerospace decision, in comparison to the recent case of PSI, raises the question of whether disappointed contractors are better served by filing protests with GAO or the Court of Federal Claims. Does the decision of where to file really mean the difference between a win and a loss in the world of Government contracts?


The Implications of Simplex’s Aerospace Case at GAO

When Simplex Aerospace challenged the U.S. Forest Service’s solicitation to convert a C130 plane to drop retardant on forest fires, they took their protest to GAO. It appeared to the contractor that the agency had written their solicitation for services around the product of a competitor. The case highlights the tension between prescribing narrow versus broad specifications, and balancing an agency’s needs against legal requirements for a competitive procurement process.

The U.S. Forest Service’s narrow specifications prompted Simplex Aerospace to protest. Among other constraints, the protestor cited the agency’s requirement for crash survivability, which was in excess of the FAA standard. Additionally, they asserted that the agency’s required excessive accuracy in measuring the levels of fire retardant in the aircraft’s tanks.. These requirements appeared to mimic a competitor’s product, and thus the protestor felt the solicitation was unfair.

In response to the protest, the agency argued that their work was inherently dangerous, and that making the plane’s equipment as safe and accurate as possible was critical to the crew’s survival and performance of their mission. While GAO accepted that the specifications were restrictive, they upheld them on the grounds that they were necessary to meet the agency’s needs.

Simplex Aerospace, B-414566.2, Aug. 8, 2017.


How this Differs from Professional Services Industries’ Case at the Court of Federal Claims

As you may recall from a previous article, Professional Services Industries (PSI) protested at the Court of Federal Claims (COFC) when it appeared that the Federal Highway Administration (FHWA) was favoring a competitor in their solicitation. First, PSI protested to GAO that the awardee’s planned project manager did not meet the minimum requirements of the RFP. In response, the FHWA took corrective action by revising the original solicitation. Since PSI felt the corrective action unfairly favored their competitor, they protested again, this time to the COFC.

Unlike the Simplex Aerospace case in which the protestor lost, the COFC agreed with PSI here. The Court was troubled by what appeared to be the agency’s rewriting of requirements around a specific competitor’s program manager. Thus, they concluded that the agency’s corrective action constituted an abuse of discretion.

In both cases it appears that the agency’s requirements had been written around one company’s offering. In Simplex Aerospace,, the agency was able to defend its restrictive requirements as necessary to meet agency needs. In the PSI case, however, the changes to the specifications were unrelated to agency needs, and simply designed to allow a vendor to propose a specific individual, who was otherwise unqualified. It’s easy to see how the Court came to a different conclusion on the facts before it.

Professional Service Industries, Inc. v. United States, et al., 129 Fed. Cl. 190 (2016)


GAO and the Courts: Different Legal Tests or Just Different Results?

Deciding where to file a protest can be complex. There are procedural differences, and court litigation tends to be more costly than a GAO administrative proceeding. Most of the time, both GAO and the Court apply the same tests, but there can be differences here as well.

In the cases of PSI and Simplex Aerospace, the COFC and GAO came to different results. In those cases, the legal tests were the same, so the differing conclusions were the result of dissimilar facts. In the next blog entry, we will explore a situation where the legal tests GAO and COFC apply appear to be different.

As always with protests, consulting with a qualified attorney is strongly advised.


For more on this topic, listen to my interview with Tom Temin from Federal News Radio‘s “Federal Drive.”


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