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Agency’s Continued Evaluation of Bids Does Not Violate Competition in Contracting Act (CICA) Stay

In a decision earlier this month, the Court of Federal Claims (“COFC”) found that an agency’s continued evaluation of bids during the pendency of a stay under the Competition in Contracting Act (“CICA”) neither violates CICA nor constitutes “a de facto override” of the stay.  The case is Caddell Construction Co. v. United States, Nos. 15-135 C, 15-136 C (Fed. Cl. Apr. 14, 2015).

The plaintiff, Caddell Construction Co., LLC (“Caddell”), had filed a pair of pre-award bid protests in the U.S. Government Accountability Office (“GAO”), challenging a State Department procurement to construct embassy facilities in Mozambique.  Caddell then filed separate actions at the COFC, claiming that the State Department violated CICA and carried out “an unlawful override” by “fail[ing] to stay the contracting process” while Caddell’s GAO protests were pending.  The State Department acknowledged that it indeed had been evaluating bids during the pendency of Caddell’s protest, but disagreed that doing so either violated CICA or functioned as an override of the stay.

The COFC was not persuaded by Caddell’s arguments.  For one thing, the relevant portion of CICA states that “a contract may not be awarded . . . after the Federal agency has received notice of a protest with respect to such procurement . . . and while the protest is pending” (emphasis added).  Here, the State Department had not awarded a contract but merely continued evaluating bids, and CICA “is unambiguous in prohibiting only the final step of awarding a contract.”  Moreover, although Caddell repeatedly claimed that the State Departmentintended to award the contract during the stay, it failed to identify any facts in the record to support that barebones allegation.

Of particular note about this otherwise straightforward opinion is that the COFC granted the State Department’s motion to dismiss on the ground of subject-matter jurisdiction, even though the court’s decision turned on the merits of Caddell’s claim.  In the COFC’s words, it had to “decide whether the plaintiff has sufficiently alleged a CICA violation such that [the court] has jurisdiction in this case.”  But there was no question that Caddell alleged a CICA violation—and thus satisfied the jurisdictional requirement of the Tucker Act.  The actual question was whether its allegation was meritorious, and the court answered in the negative.  In short, this decision blurs the lines between the Tucker Act and CICA when it comes to the COFC’s subject-matter jurisdiction.

© 2019 Covington & Burling LLP

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About this Author

Kayleigh Scalzo, Covington, Litigation attorney
Associate

Kayleigh Scalzo represents clients in a broad array of high- stakes litigation matters with the government and other private parties. She litigates bid protests at the Government Accountability Office, Court of Federal Claims, state courts, and before federal and state agencies. Ms. Scalzo also litigates Administrative Procedure Act cases and other civil matters in the U.S. Courts of Appeals and U.S. District Courts.

Kayleigh Scalzo represents clients in a broad array of high- stakes litigation matters with the government and other private parties. She litigates...

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