CICA STAY OVERRIDE OVERRULED

The Court of Federal Claims (COFC) recently has overruled a Competition in Contracting Act (CICA) override of the mandatory stay in a bid protest case.  The stay may be overridden by a contracting agency if it demonstrates urgent and compelling reasons or if performance of the contract is in the best interests of the government.

Obviously, the court pointed out, performance of most contracts would be in the best interests of the government or the contract would not have been awarded in the first place.  So, something more must be shown by the agency to justify the override.  The exception to the automatic say rule which permits an override to the stay based on best interests should not be permitted to cancel the rule that the stay be automatic.

The COFC has addressed the best interests exception in only a few cases.  If meeting a performance deadline is critical to the entire purpose of the contract, the court has permitted the override to stand.

The problem is the agency must show that the timing is so crucial that a continuation of the existing contract pending the outcome of the protest or a bridge contract to accomplish the same thing would not suffice.  The government's argument that lapse in services is an unacceptable risk is insufficient.

In this recent case, Intelligent Waves, LLC v. United States, COFC No. 18-465 C, May 9, 2018, the court pointed out that the agency had ample time to consider how to take appropriate measures to avoid any lapse in services pending the conclusion of the protest.  No claim was made by the government that the timing of the new contract performance, as opposed to continuation of the old contract or an interim bridge contract, would be crucial, in this case, to the health or safety of veterans.

The agency had waited to award the new contract until 6 days before the old contract expired.  The court said the government essentially argued that the stay must be overridden to avoid a lapse in services because it waited too late to extent the existing contract or enter into a bridge contract.

The court concluded that it was in the best interest of the United States that the integrity of the competitive nature of the procurement process be upheld.  In this case, the agency would not be allowed to manipulate the congressional mandate. 

The court overruled the agency's override and reinstated the automatic stay.

bill@spriggsconsultingservices.com