of XX Competition and Bid Protests Panel Richard Rector, Partner, DLA Piper LLP (US) ©2015 PubKLearning. All rights reserved.1 Tinton Falls Lodging Realty, LLC v. United States, __ F.3d __, 2015 WL (Sep. 2, 2015) –A large business has standing to challenge the size determination of a small business for a set-aside contract, where only one eligible small business remained in the competition Palladian Partners, Inc., v. United States, 783 F.3d 1243 (Apr. 22, 2015) –COFC retains jurisdiction over NAICS code protests, but interested parties must exhaust administrative remedies by an appeal to the SBA OHA or by intervention in another NAICS code proceeding in order to preserve the right of judicial review Bannum, Inc. v. United States, 779 F.3d 1376 (Mar. 12, 2015) –In absence of a formal protest, mere notice of dissatisfaction or objection to terms of a solicitation does not preserve the right to a defective-solicitation challenge after contract award –Clarifies Blue & Gold and resolves a split of authority at the Court of Federal Claims

of XX Competition and Bid Protests Panel Richard Rector, Partner, DLA Piper LLP (US) ©2015 PubKLearning. All rights reserved.2 Per Aarsleff A/S v. United States, 121 Fed. Cl. 603 (June 5, 2015) –Post-award challenge to a solicitation defect upheld and not waived where the ambiguity was latent and Air Force knew of the error prior to contract award, but failed to fix it Hyperion, Inc. v. United States, 120 Fed. Cl. 504 (Mar. 18, 2015) –No violation of competition rules when, after sustained protest at Court of Federal Claims, Army made a sole-source award to same awardee as a Foreign Military Sale … consistent with the “international agreement” exception to CICA –Procurement was not a “sham”: Hyperion accepted the risk that Jordan could decide to conduct a sole-source procurement at any time during the solicitation process and irrespective of any injunctive relief awarded to Hyperion in the prior bid protest

of XX Competition and Bid Protests Panel Richard Rector, Partner, DLA Piper LLP (US) ©2015 PubKLearning. All rights reserved.3 Coulson Aviation (USA), Inc., B (Aug. 14, 2015) –Informal letters may constitute an agency-level protest if they express dissatisfaction with an agency’s action and request relief –A contractor’s subjective belief that informal correspondence is not an agency-level protest is not determinative FCi Federal, Inc., B (Aug. 5, 2015) –During post-award corrective action, DHS should have reevaluated proposals when the original proposal no longer reflected the proposed contract performance and the resources, experience and past performance to be relied upon –Following the sale of the awardee to a 3 rd party, subsidiary-awardee’s proposal and contract performance materially differed when the subsidiary ceased to rely upon the former parent’s resources, experience, and past performance as described in the proposal Advanced Communication Cabling, Inc., B (Mar. 25, 2015) –VA may prohibit use of outside consultants to assist with proposal preparation, specifically as to responses to sample task orders, because it may reasonably reduces performance risk –The prohibition permits better evaluation of the technical expertise of personnel that will be actually be used in contract performance rather than relying on the expertise of outside consultants that will not be involved in performance