The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, Crowell Consultant (and former GAO Bid Protest Hearing Officer) Cherie Owen provides a monthly summary of a notable bid protest sustain decision. However, October 2025 was an unusual month: due to the government shutdown and lapse in appropriations, the Government Accountability Office (GAO) was closed for the entire month. Protesters could not file new protests, and GAO did not issue any decisions. While the Court of Federal Claims (COFC) remained open, the few protest decisions announced did not include any sustained protests. Sustain-less months are not unprecedented—we’ve previously noted similar droughts in May 2025, February 2025, July 2024, October 2023, and February 2023. 

Rather than analyze a sustain, this month we highlight one of the more interesting protest decisions from the COFC: Active Deployment Sys., LLC v. United States, No. 25-968, 2025 WL 3034124 (Fed. Cl. Oct. 7, 2025). This case offers useful insight into the issue of prejudice in bid protests.

Unlike the typical protest, ADS was filed not by a disappointed offeror, but by one of multiple contract awardees. The procurement at issue sought to award “five or more” indefinite-delivery, indefinite-quantity (IDIQ) contracts for detention-related services. In reality, Immigration and Customs Enforcement (ICE) awarded forty-two contracts—far exceeding the minimum anticipated by the solicitation.

ADS raised two principal challenges:

1. Number of Awards: ADS argued that the decision to make forty-two awards went well beyond the “five or more” contemplated by the solicitation.
2. Pricing Structure: ADS contended that the solicitation’s pricing structure and the agency’s price evaluation methodology were arbitrary and confusing.

The Court gave ADS’ first argument little consideration, finding that the solicitation expressly permitted any number of awards above five—the “or more” language provided full flexibility.

With respect to pricing, ADS asserted that certain CLINs (Contract Line Item Numbers) combined multiple objectives. Even though offerors were not required to bid on every objective, the CLIN structure—ADS argued—compelled bidding on CLINs for undesired work. ADS also contended that “Per Detainee/Per Day” rate caps were arbitrary, since they were based on a flawed independent government cost estimate (IGCE).

Curiously, although these arguments targeted flaws in the solicitation itself, the Court did not address whether they were waived under the Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) rule, which generally requires solicitation challenges to be raised before proposals are due. Instead, the Court found both arguments failed for lack of prejudice.

With respect to ADS’ challenge to the CLIN pricing structure, the Court noted that ADS suffered no prejudice because it was awarded a contract for all objectives it proposed against. As a result, ADS was unable prove an injury, let alone a non-trivial injury, that the Court could redress. 

ADS’s price cap challenge was similarly lacking. ADS argued that it had suffered prejudice because the agency’s price ceiling calculations were based on procurements smaller than those anticipated by the Solicitation. The Court rejected this argument, emphasizing:

• The contract is an IDIQ; ADS is not obliged to propose on unprofitable future work.
• ADS had repeatedly expressed willingness to perform under the awarded contract, undermining its claims of unworkable pricing.

The Court summarized: “Plaintiff simultaneously maintains that the contract’s pricing is so arbitrary that it is unworkable, yet not so arbitrary that Plaintiff is willing to forego the contract.” Consequently, the Court would not find prejudice where ADS’s own actions indicated its desire to perform under the current pricing structure.

The ADS decision highlights several important considerations for government contractors. Unlike GAO, which maintains that IDIQ awardees are not “interested parties” eligible to protest an IDIQ award, the Court of Federal Claims has shown a willingness to recognize standing for such awardees under certain circumstances (discussed here). However, as the ADS decision makes clear, establishing standing is only the first step. Protesters must also affirmatively demonstrate that they suffered a non-trivial competitive injury as a result of the agency’s actions. Vague or speculative assertions of prejudice are unlikely to suffice—protesters should be prepared to offer concrete evidence or specific allegations explaining how the challenged conduct has resulted in actual harm. Finally, although not discussed in the Court’s decision, the ADS case highlights the importance of proper protest timing. Although the Court did not dismiss ADS’ protest allegations as waived, its complaints may have gained far more traction if they had been raised in a pre-award protest challenging the terms of the solicitation.  In such a situation, the Court may have been more receptive to assertions that the CLIN structure forced offerors to bid on objectives they did not want to pursue or that the price ceilings were arbitrary.