99 Fed. Cl. 103
Fed. Cl.2011Background
- DTI filed a bid protest challenging the cancellation of the NAVAIR solicitation for 21 Mi-17 helicopters and AMCOM’s proposed sole-source award to Russia’s Rosoboronexport (RDE).
- RDE is a Russian state enterprise with exclusive rights to export military Mi-17s; sanctions history and subsequent sanctions relief affected eligibility.
- NAVAIR issued the July 2010 solicitation; DTI submitted a proposal in August 2010 after obtaining export permission from Russia.
- Moscow Conference and related actions (Aug–Sept 2010) discussed Russian export controls and the role of RDE; notes suggested a shift in strategy away from NAVAIR’s approach.
- In December 2010, USD(AT&L) canceled the NAVAIR solicitation and transferred procurement authority to the Army’s NSRWPO; AMCOM issued a January 2011 notice of intent to award a sole-source contract to RDE, with “all responsible sources may submit an offer” language.
- DTI asserted damages including bid costs and sought injunctive relief; the court denied injunctive relief but allowed bid-preparation and proposal costs to be awarded later in proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction over cancellation of the NAVAIR solicitation. | DTI contends §1491(b)(1) covers cancellations of negotiated procurements; seeks review of statutory/regulatory compliance. | Government argues lack of jurisdiction or limited review. | Court has jurisdiction under §1491(b)(1) to review cancellation under FAR constraints. |
| Whether DTI has standing to challenge AMCOM’s proposed sole-source award to RDE. | DTI argues it would be a qualified bidder if bid process were competitive; thus has standing. | DTI is not a current bidder under the sole-source structure. | DTI has standing; could compete if the process were competitive, so standing exists. |
| Whether the case is non-justiciable as a political question. | DTI asserts judicial review is appropriate for statutory/regulatory compliance in procurement. | Issues implicate defense/foreign policy and are non-justiciable. | Six Baker factors do not render the case non-justiciable; claims are justiciable. |
| Whether the AMCOM process violated FAR 1.102(b)(3), 1.102-2(c)(3), and 3.101-1 and whether DTI is entitled bid costs. | AMCOM violated fairness duties and coerced/failed to fairly consider DTI’s proposal. | AMCOM acted within statutory/ regulatory bounds; any bias was not shown. | Court finds FAR violations in AMCOM process; orders bid-preparation and proposal costs but denies injunctive relief. |
Key Cases Cited
- FFT F Restoration Co., LLC v. United States, 86 Fed.Cl. 226 (2009) (cancellation of negotiated procurements subject to FAR constraints; provide reviewability)
- DCMS-ISA, Inc. v. United States, 84 Fed.Cl. 501 (2008) (cancellation decisions governed by FAR 15.305(b))
- Parcel 49C Ltd. P’ship v. United States, 31 F.3d 1147 (1994) (strong presumption of government good faith in bid protests)
- Am-Pro Protective Agency v. United States, 281 F.3d 1234 (2002) (Gal en standard clarifications on good faith and evidence of pretext)
- L-3 Communications Integrated Sys., L.P. v. United States, 94 Fed.Cl. 394 (2010) (implied contract/bid fairness considerations in bid protests)
- Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366 (2002) (standing—could compete for the contract if the process were competitive)