Comint Systems Corp. v. United States
2012 U.S. App. LEXIS 25109
| Fed. Cir. | 2012Background
- DoD issued a sole-source/competitive IT services solicitation; Comint bid protest in Claims Court; the Claims Court dismissed for lack of standing; on appeal, the court examines preservation and standing issues; Amendment 5 rewrote Task Orders and precluded revisions; Comint signed Amendment 5 but waited to protest; four Basic Contract awards were issued to other bidders with outstanding ratings; Comint argued Amendment 5 altered the solicitation and challenged the filing window and rating; the court considers pre- and post-award protest standards and Blue & Gold Fleet precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of Amendment 5 challenge before award | Comint objected to Amendment 5’s terms. | Waiver due to failure to protest pre-award under Blue & Gold. | Comint failed to preserve; affirm on preservation grounds. |
| Standing to protest agency failure to award based on marginal rating | Comint had substantial chance of award despite rating. | No substantial chance given others had outstanding ratings. | No standing; cannot show prejudice. |
| Arbitrariness of Comint's marginal Quality/Capability rating | Agency erred in labeling weaknesses; rating arbitrary. | Rating supported by evaluation record and discretionary judgments. | Rating not arbitrary or capricious; no standing. |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (waiver rule for pre-award solicitation challenges; extended to post-award challenges where timely)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (standing requires a substantial chance of award to prove prejudice in bid protests)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (non-trivial competitive injury standard limited to pre-award protests)
- Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir. 2003) (standing requires substantial chance of receiving the award)
- E.W. Bliss Co. v. United States, 77 F.3d 445 (Fed. Cir. 1996) (courts defer to procurement officials on technical ratings; limited judicial second-guessing)
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (Sup. Ct. 2007) (-discussed in notes about threshold grounds for denial of audience to a case)