Bannum, Inc. v. United States
115 Fed. Cl. 257
Fed. Cl.2014Background
- BOP issued an RFP for Residential Re‑entry Center (RRC) services (firm-fixed unit inmate‑day price) that required the contractor’s facility be operational within 120 days of award and incorporated PREA compliance by Amendment 005.
- Bannum (incumbent) and Dismas submitted proposals; Bannum’s revised price submissions repeatedly stated its prices did not include any costs for PREA compliance and requested discussions; Bannum also submitted a written “agency protest” to the contracting officer pre‑award.
- Dismas proposed to construct a new facility and later obtained a building permit (Aug 27, 2013); the agency awarded the contract to Dismas (Aug 26, 2013) and set a later start date (Feb 1, 2014) under the contracting officer’s discretion; a GAO stay and stop‑work later led to a March 1, 2014 start date.
- Bannum filed a GAO protest (challenging alleged unequal treatment and other evaluation matters) and then this bid protest challenging: (1) incorporation of PREA without guidance (solicitation defect), (2) relaxation/unequal enforcement of the 120‑day start requirement, and (3) Dismas’s alleged material misrepresentation about readiness.
- The court held an expedited evidentiary hearing and denied Bannum’s motion for a TRO/preliminary injunction, finding Bannum failed to show likelihood of success on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Responsiveness of Bannum’s bid | Bannum was an interested party with a substantial chance of award. | Banner’s pricing expressly excluded PREA costs, making the offer nonresponsive and therefore Bannum lacked standing. | Court: Bannum’s explicit reservation that prices did not include PREA made its bid nonresponsive; lack of substantial chance of award undermines standing. |
| PREA incorporation rendered the solicitation defective / waiver | Bannum: inclusion of PREA without guidance made pricing and compliance impossible; agency should have held discussions. | BOP: Bannum objected pre‑award (March 7 letter) so did not waive the claim; agency permissibly left compliance/pricing to offerors. | Court: Bannum did not waive its ability to challenge (pre‑award objection sufficed), but PREA’s incorporation without further detail did not render the solicitation defective; offerors could price compliance. |
| Relaxation of 120‑day performance start date | Bannum: BOP improperly relaxed the mandatory 120‑day requirement for Dismas and advantaged Dismas. | BOP: Solicitation allowed the contracting officer to “otherwise specify” start date; changing start date was within discretion and justified (holidays, incumbent coverage, GAO stay). | Court: The 120‑day clause was not an unalterable deadline; contracting officer lawfully specified a later start date; no illegal relaxation. |
| Material misrepresentation by Dismas about readiness | Bannum: Dismas misrepresented that required approvals/permitting were complete and that facility would be ready within 120 days. | Dismas/BOP: submissions were not shown to contain material false statements relied on by the agency; documentary record does not establish misrepresentation. | Court: Bannum failed to prove a material misrepresentation and agency reliance; allegation unsupported by the record. |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (pre‑award objection rule—failure to object to patent solicitation error before award waives later challenge)
- COMINT Systems Corp. v. United States, 700 F.3d 1377 (Fed. Cir. 2012) (Blue & Gold waiver reasoning applies broadly; challenges must be raised before award)
- PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir. 2004) (four‑factor preliminary injunction framework in bid protest context)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (jurisdiction is threshold issue; court must resolve standing before merits)