Photo of Anuj VohraPhoto of Cherie OwenPhoto of Issac Schabes

Filing a pre-award protest can be an effective tool to protect a contractor’s ability to compete for a contract. But a recent Court of Federal Claims decision counsels that while a pre-award must be filed early—typically prior to the date for submission of proposals—it cannot be filed too early.

In Goodwill Industries of South Florida, Inc. v. U.S., the U.S. Court of Federal Claims considered a pre-award protest filed by Goodwill Industries, a qualified nonprofit agency for disabled workers identified on the AbilityOne Program’s procurement list as a provider of hot-weather trousers and combat pants. Goodwill challenged the Defense Logistics Agency’s (“DLA”) intent to procure both items from sources other than Goodwill. For the hot-weather trousers, though DLA had not yet issued a solicitation, it had drafted an Individual Acquisition Plan (“IAP”) indicating an intent to award two indefinite delivery indefinite quantity (“IDIQ”) contracts based on a best value procurement. For the combat pants, DLA had issued a solicitation for the award of two IDIQ contracts, though DLA had placed the procurement “on hold” to make design changes. Goodwill argued that the AbilityOne Program required DLA to procure both items from Goodwill on a non-competitive basis, and sought an injunction preventing award to any other company.

The Court dismissed the protest as premature. Regarding the hot-weather trousers, the Court held that in the absence of a solicitation, DLA’s draft IAP was not a “final agency action,” and that Goodwill’s “anticipation of a future procurement violation is not sufficient to make a claim ripe in a bid protest before the court.” As to the combat pants, the Court explained that the “on hold” status of that solicitation rendered that aspect of Goodwill’s protest similarly unripe. The Court reasoned that while the procurement was “on hold” only while DLA was “waiting for specification changes to the purchase description and technical data,” indicating DLA’s intent to continue with a competitive best value procurement, the protest was still premature because the Court could not “rule out the possibility that the change in purchase description will match Goodwill’s production of the Army Combat Pants, nor can the Court rule out the chance that the description will be changed, and not match Goodwill’s production.” Accordingly, the Court dismissed both challenges as premature.

Given the complex considerations a company must weigh when determining whether a protest is premature, untimely, or “just right,” potential protesters should engage in close coordination with their protest counsel to identify the appropriate time to file.

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Photo of Anuj Vohra Anuj Vohra

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of…

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of issues related to contract formation (including subcontracts and teaming agreements), regulatory compliance, internal and government-facing investigations, suspension and debarment, organizational conflicts of interest (“OCIs”), intellectual property and data rights, and the Freedom of Information Act (“FOIA”).

Prior to entering private practice, Anuj spent six years as a Trial Attorney in the U.S. Department of Justice’s Commercial Litigation Branch. At DOJ, he was a member of the Bid Protest Team—which handles the department’s largest and most complex protests—and served as lead counsel in dozens of matters representing the United States in commercial disputes before the U.S. Court of Appeals for the Federal Circuit, the Court of Federal Claims, and the U.S. Court of International Trade.

Photo of Cherie Owen Cherie Owen

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court…

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court of Federal Claims. As a former GAO bid protest hearing officer, she resolved some of the most challenging bid protests on procurements ranging from thousands to billions of dollars involving solicitation challenges, proposal evaluation challenges, organizational conflicts of interest, Procurement Integrity Act violations, affirmative responsibility determinations, the conduct of discussions, and competitive range determinations. In this role, Cherie held numerous bid protest hearings. At GAO she handled more than 600 protests and issued more than 500 decisions.

Photo of Issac Schabes Issac Schabes

Issac D. Schabes is an associate in the firm’s Washington, D.C. office, where he is a member of the Government Contracts Group.

Prior to joining the firm, Issac clerked for the Honorable Matthew H. Solomson on the U.S. Court of Federal Claims and…

Issac D. Schabes is an associate in the firm’s Washington, D.C. office, where he is a member of the Government Contracts Group.

Prior to joining the firm, Issac clerked for the Honorable Matthew H. Solomson on the U.S. Court of Federal Claims and the Honorable Robert N. McDonald on the Maryland Court of Appeals. Issac received his J.D., magna cum laude, from the University of Maryland Carey School of Law, where he graduated Order of the Coif and served as an executive editor for the Maryland Law Review. He received numerous awards, including the Judge Simon E. Sobeloff Prize for Excellence in Constitutional Law. During law school, Issac was a member of a low-income taxpayer clinic team that successfully appealed an IRS assessment resulting in a substantial tax liability reduction, and also interned for the Honorable Beryl A. Howell, Chief Judge, on the U.S. District Court for the District of Columbia and the Honorable Marvin J. Garbis on the U.S. District Court for the District of Maryland.