ANOTHER CICA STAY OVERRIDE OVERRULED

Former Chief Judge, now Senior Judge, Loren Smith of the Court of Federal Claims (COFC) has just overruled another CICA stay override decision this time of the United States Department of Homeland Security, Transportation Security Administration.  See Technica LLC v. United States and Aviation Security Management, LLC, COFC No. 18-2003-C, February 22, 2019.

The CICA stay is an integral part of the procurement system which assures the GAO time to render its decision on a bid protest.  It's tantamount to an automatic preliminary injunction if the protest is timely filed.  The stay is a protection of the integrity of the procurement system and can only be overridden under specific and special circumstances.

Judge Smith recites the court's four part test for review of an agency's decision to override the stay:

1. Whether significant adverse consequences will necessarily occur if the stay is not overridden;
2. Whether reasonable alternatives to the override exist;
3. How the potential cost of proceeding with the override, including the costs associated with the potential that the GAO might sustain the protest, compares to the benefits associated with the approach being considered for addressing the agency's needs; and
4. The impact of the override on competition and the integrity of the procurement system, as reflected in CICA.

In addition, the COFC must consider whether the agency's decision substantively meets the arbitrary and capricious APA review standard.  The agency decision would be arbitrary and capricious if the agency relied on factors which Congress has not intended, entirely failed to consider an important aspect of the problem, offered an explanation running counter to the evidence or is so implausible that it could not be considered a difference in view or the product of agency expertise.

Judge Smith ruled in favor of Technica LLC, declared the override was arbitrary and capricious and he overturned the override decision granting Technica's request for a preliminary injunction.

bill@spriggsconsultingservices.com                       bill@spriggslawgroup.com