Bannum, Inc. v. United States
779 F.3d 1376
Fed. Cir.2015Background
- Bannum, Inc. submitted proposals to two DOJ Bureau of Prisons RFPs (Tupelo, MS and Florence, SC) for fixed-price, indefinite-delivery, requirements contracts; the awards went to Dismas Charities and Alston Wilkes, respectively.
- Both solicitations were amended to add a PREA-compliance requirement; the agency asked bidders to sign the amendment and submit final revised proposals.
- Bannum responded by signing with qualifications: it said it could not price PREA compliance, reserved rights (including requests for equitable adjustment and protests), and explicitly labeled one response as an "AGENCY PROTEST" in the Mississippi matter.
- Bannum did not file a formal pre-award agency-level protest or a GAO protest challenging the solicitation terms before awards; it later filed GAO protests and then suits in the Court of Federal Claims after awards.
- The Court of Federal Claims dismissed both suits for lack of jurisdiction, concluding Bannum submitted materially noncompliant proposals and thus was not an "interested party" under 28 U.S.C. § 1491(b).
- The Federal Circuit affirmed the dismissals but on different grounds: Bannum waived its solicitation-based challenges by failing to pursue the formal pre-award protest procedures, and Bannum waived appellate review of its bid-evaluation challenges by not preserving them in its opening briefs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bannum may challenge solicitation terms post-award when it objected informally before award | Bannum argued its pre-award communications (including a letter marked "AGENCY PROTEST") preserved its solicitation challenge | Government argued Bannum waived the solicitation challenge by not using formal protest avenues (GAO or agency-level) prior to award | Bannum waived solicitation objections by failing to file a formal pre-award protest; dismissal affirmed on waiver grounds |
| Whether Bannum is an "interested party" under § 1491(b) despite its pricing qualifications | Bannum contended it would be an interested party if solicitation challenge succeeds because resolicitation would allow it to compete | Government maintained Bannum lacked standing because its bid was materially noncompliant (per CFC) and, separately, Bannum failed to preserve evaluation challenges on appeal | Court did not decide the CFC's "interested party" rationale; instead held Bannum failed to preserve evaluation arguments on appeal and thus cannot rely on them |
| Whether informal notice of dissatisfaction satisfies the requirement to preserve solicitation defects | Bannum asserted informal notice plus reservation language sufficed to preserve the issue | Government argued the solicitation and regulations required formal protest procedures to trigger agency duties | Informal notice without following prescribed protest procedures is insufficient; formal pre-award protest required to avoid waiver |
| Whether Bannum preserved bid-evaluation challenges on appeal | Bannum had raised evaluation issues below and in GAO but focused on solicitation challenge on appeal | Government argued Bannum abandoned evaluation claims by not arguing them in opening brief on appeal | Bannum waived appellate review of evaluation defects by failing to meaningfully raise them in its opening brief; those issues are forfeited |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (pre-award objection requirement; failure to object before bid close waives later § 1491(b) challenge)
- COMINT Sys. Corp. v. United States, 700 F.3d 1377 (Fed. Cir. 2012) (discusses when pre-award protests are required and when excusal may be appropriate)
- Daewoo Eng'g & Const. Co. v. United States, 557 F.3d 1332 (Fed. Cir. 2009) (standards of review: legal conclusions de novo, factual findings for clear error)
- Taylor v. United States, 303 F.3d 1357 (Fed. Cir. 2002) (CFC jurisdictional determinations reviewed without deference where no material facts are disputed)
- Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379 (Fed. Cir. 1999) (issues not raised in opening brief on appeal may be deemed waived)
- Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792 (Fed. Cir. 1990) (appellate waiver principles for unraised issues)