File your pre-award protest early. Not too soon.
Filing a pre-award claim can be an effective tool to protect a contractor’s ability to compete for a contract. But a recent Federal Claims Court ruling indicates that even though a pre-award must be filed early, usually before the proposal submission date, it cannot be filed. too much early.
In Goodwill Industries of South Florida, Inc. v. United States, the United States Federal Claims Court considered a pre-award protest filed by Goodwill Industries, a qualified nonprofit agency for workers with disabilities identified on the AbilityOne program supply list as a supplier of hot weather pants and combat pants. Goodwill disputed the Defense Logistics Agency’s (“DLA”) intention to procure the two items from sources other than Goodwill. For the hot-weather pants, although the DLA had not yet issued a tender, it had drafted an Individual Procurement Plan (“IAP”) indicating its intention to award two indefinite delivery contracts in indefinite quantity (“IDIQ”) on the basis of a purchase at the best value for money. . For combat pants, the DLA had issued a solicitation for the award of two IDIQ contracts, although the DLA placed procurement “on hold” to make design changes. Goodwill argued that the AbilityOne program required DLA to procure the two items from Goodwill on a non-competitive basis and sought an injunction prohibiting attribution to any other company.
The court dismissed the protest as premature. With respect to the hot-weather pants, the court held that in the absence of a solicitation, the DLA’s draft PAI was not a “final agency action” and that “the Goodwill’s anticipation of a future breach of government procurement is not sufficient to make a mature claim in a protest of the offer in court. Regarding the combat pants, the court explained that the “pending” status of this solicitation made this aspect of Goodwill’s protest just as immature. The Court ruled that although the procurement was “on hold” only while DLA “waited for changes to the specifications of the purchase description and technical data”, indicating the intention of DLA to continue with a procurement competitive at the best value for money, the protest was still premature because the Court could not “rule out the possibility that the modification of the purchase description corresponded to Goodwill’s production of the army combat pants, and the Court also cannot exclude the possibility that the description is modified and does not correspond to the production of Goodwill ”. Therefore, the Court dismissed both challenges as premature.
Given the complex considerations a business must take into account in determining whether a protest is premature, untimely, or “fair,” potential protesters should engage in close coordination with their protest attorney to identify the appropriate time to file.