First bid decision by Federal Circuit Court is a promising start
"In most bid protests," the court acknowledged frankly, "the
administrative record is something of a fiction, and certainly cannot be viewed as rigidly
as if the agency had made an adjudicative decision on a formal record." Thus, the
court adopted a flexible approach that it can tailor to the needs of each case.
The major issue of the case involved a fairly arcane question of whether the
contract was one for "advisory and assistance services." If so, an agency
ordinarily would have to make multiple awards and compete individual task orders. Because
there were only two bidders, Cubic would be assured of a contract in a multiple-award
The threshold question here was whether Cubic could raise this issue at all. The
company didn't pursue it at GAO. Under GAO's rules, it would have been untimely:
Solicitation defects must be raised before proposal submission.
The Army argued that Cubic had waived this issue and could not raise it before the
Court of Federal Claims. The court disagreed, for three reasons: