Protests are meant to be pushy, not polite

Hattip to Federal Circuit Invokes Blue & Gold to Affirm Dismissal of Two Protests re: Government Contracts written by attorneys Lily Rudy and Scott A. Freling of the firm Covington & Burling LLP, published online by The National Law Review, for pointing out the following case from the US Court of Appeals for the Federal Circuit. 

This case decides an appeal from a protest in the Court of Federal Claims trial court, and is interesting for its split of the hairs: it reached the same result but on different grounds. 

As usual, when cases or articles or other sources are cited, do not rely on my version as authoritative or accurate; I cut, paste, rearrange, edit, paraphrase, leave out essential information and otherwise adapt the subject matter to suit myself, and that may not suit you or the original author(s) at all. Read all sources at their link.

Bannum, Inc. v U.S., March 12, 2015, No. 2014-5085

Bannum, Inc. protests decisions of the Bureau of Prisons of the United States Department of Justice to award two contracts to other bidders. In two actions brought in the Court of Federal Claims, Bannum complained that the awards were improper, alleging a common defect in the terms of the solicitations and, also, problems in the evaluation of competing bids. In each case, the Court of Federal Claims dismissed Bannum’s suit.

Finding that Bannum’s proposal, by failing to commit Bannum to a fixed price, was materially out of compliance with the terms of the solicitation, the court concluded that Bannum was not an “interested party” entitled to bring its protest.

We affirm the dismissals of Bannum’s suits, but on a different basis. We conclude that, because Bannum did not adequately present its objection to the solicitations before the awards, Bannum waived its ability to challenge the solicitations in the Court of Federal Claims. We also conclude that, on appeal, Bannum failed to preserve its separate challenges to the bid evaluations.

We do not reach the “interested party” ground of the Court of Federal Claims’ decisions.

After the RFP was issued and attracted two bidders, the government sent notices to the two bidders altering the contract requirements and requesting updated proposals, adding a requirement that the facility be operated in compliance with the Prison Rape Elimination Act of 2003 (PREA). The government asked both bidders to sign the amendment and submit a final proposal revision, including any necessary changes in price.

Bannum responded with a six-page letter labeled “Final Proposal Revision #3 and AGENCY PROTEST,” in which it restated its earlier price proposal and noted that those prices “do not, and cannot, reflect any consideration for the effects of Amendment 5” because of the “enormous amount of information [that] is required prior to pricing this new contract requirement.” Bannum attached a signed copy of Amendment No. 5, placing an asterisk next to the term requiring PREA compliance and stating: “Subject to and limited by Bannum’s response to [Final Proposal] #3 . . . submitted herewith; also, subject to Bannum’s reservation of all rights and protests.”

Bannum did not get the award. After the award, Bannum filed a protest with the Government Accountability Office (GAO), alleging defects in the government’s evaluation of the proposals. When its GAO protest failed, Bannum filed suit in the Court of Federal Claims. When its Court of Federal Claims appeal failed, it filed this appeal.

In the courts, Bannum challenged the bid evaluation as flawed and added a new allegation that the solicitation itself was “materially defective” because of the PREA-compliance requirement and the government’s refusal to provide pricing guidance. The Claims Court dismissed that appeal, concluding that Bannum was not an “interested party” under § 1491(b) because it submitted a bid that was materially out of compliance with the terms of the solicitation, thus depriving the court of jurisdiction to hear the appeal.

Because Bannum’s two distinct grounds for protesting the awards — (a) a defect in the solicitations and (b) defects in the bid-evaluation process — entail different remedies and are subject to different legal standards, we address them separately.

A bidder that challenges the terms of a solicitation in the Court of Federal Claims generally must demonstrate that it objected to those terms “prior to the close of the bidding process.” It is undisputed that the government received notice of Bannum’s dissatisfaction with the PREA-compliance requirement before awards were made. We conclude, however, that mere notice of dissatisfaction or objection is insufficient to preserve Bannum’s defective-solicitation challenge.

The solicitations at issue and the governing regulations put Bannum on notice of the formal requirements for filing a “protest” that would trigger an agency obligation of response and prompt resolution. Bannum did not comply with those requirements; nor did it pursue other available means of formal protest (e.g., to the GAO or the Court of Federal Claims) until after the awards. In these circumstances, it waived its solicitation challenges.

A waiver rule implements this statutory mandate by reducing the need for the “inefficient and costly” process of agency rebidding “after offerors and the agency ha[ve] expended considerable time and effort submitting or evaluating proposals in response to a defective solicitation.”

We have previously suggested that filing a formal, agency- level protest before the award would likely preserve a protestor’s post-award challenge to a solicitation as might a pre-award protest filed with the GAO.

Bidders that file a formal protest are entitled to a scheduling conference within five days of filing, an automatic stay of the award pending disposition of the dispute, and a guarantee of prompt resolution of the protest. The Justice Department’s acquisition regulations, promulgated in 1998 after an executive order directed agency heads to “provide for inexpensive, informal, procedurally simple, and expeditious resolution of protests,” Exec. Order No. 12979, 60 Fed. Reg. 55171 (Oct. 25, 1995). In the GAO, the act of filing a protest generally triggers an automatic stay of any award of the contract and requires the GAO to issue a decision within 100 days.

Bannum does not contend that its objections amounted to a formal protest. Bannum also has not asserted that there was good cause for excusing its failure to comply with them. See COMINT, 700 F.3d at 1382 (failure to mount a pre-award protest may be excusable where doing so “is not practicable”).

We therefore need not address whether, regarding its solicitation challenge, Bannum is an “interested party” under our case law, which itself has taken into account, in certain circumstances, whether a party has timely presented and diligently pressed its protest.

In its complaints, Bannum pleaded grounds for protest that fall into two categories: a defect in the solicitations; and defects in the bid-evaluation processes. As the government agreed at oral argument, at least as a general matter, a bidder cannot be expected to challenge an agency’s evaluation of bids, in contrast to the terms of solicitation, until the evaluation occurs. Nevertheless, we need not address Bannum’s bid-evaluation challenges, because we conclude that Bannum has failed to preserve those challenges on appeal.

In its arguments and briefs before this court, Bannum has not contended that it has standing independent of the resolicitation remedy it seeks or that resolicitation would be the result of a successful challenge to the evaluation processes. It has focused entirely on the solicitation challenge and has not asserted that, even if it cannot press that challenge, it nevertheless is entitled to reversal of the denial of standing to press its evaluation challenges. “An issue that falls within the scope of the judgment appealed from but is not raised by the appellant in its opening brief on appeal” may properly be deemed waived. We see no reason to depart from that practice here.

See also Firstdigital Telecom LLC v. Procurement Policy Board, Court of Appeals of Utah, No. 20130899–CA February 26, 2015, as another illustration of the failure of a putative protestor to step up to the plate with a formal protest. There, by

email, the subject of which was identified as “Proposed meeting to discuss.” McDougal stated, “We configured our proposal based on your current set up and usage. We are not sure you or other competitors fully understood the services you are receiving,” and complained that the Board did not correctly compare certain technical areas in evaluating the proposals. Finally, McDougal proposed to meet with McRae and Jex to discuss the evaluation comparisons. After this meeting, McDougal on August 30 emailed the Board representative Richard Davis to reiterate flaws McDougal perceived in the proposal evaluations. McDougal stated, “[W]e are weighing whether we will file a formal protest to the bid.” He added, “[W]e don't believe, among other things, that our network architecture, service nor pricing were evaluated correctly,”

Although the initial email was timely, this communication did not pass muster as a "protest", and was therefore rejected. The Board

disputed McDougal's characterization of the August 14 email as a protest because the subject line merely stated “[p]roposed meeting to discuss” and “nowhere in the email was there a statement indicating a protest was being made.” McRae pointed out that in a conversation with Davis on August 29, and in McDougal's August 30 email to Davis, McDougal mentioned that FirstDigital was still considering filing a protest, and therefore “your 8/14/13 email did not initiate the protest process.”

The authors of the article first cited above offer this salient take-away: "While contractors often prefer to express their dissatisfaction over a solicitation provision with a softer touch, as Bannum did here with its written objections, a decision not to file a pre-award protest can leave an unsuccessful offeror without an opportunity to be heard at the Court of Federal Claims." 

The culture on Guam, as is also practiced in much of the Pacific and indeed around the world, especially in non-Western societies, is to be non-confrontational, especially to authorities; a more deferential and circuitous approach is deemed respectful and proper.

Thus, when faced with a regulation expressing the requirement that, "Complainants should seek resolution of their complaints initially with the Procurement Officer or the office that issued the solicitation. Such complaints may be made verbally or in writing" (see, ABA MPC § R9-101.02; 2 GAR § 9101(b), persons with objections to a solicitation tend to do as told; that is, complain. They do so at their peril. 

This "softer touch" complaint process, demanded by regulation, is way too polite to constitute a protest, and without proof of diligently pressing the objection, the protest may fail on technical timing rules (see, decision statement above, "Bannum also has not asserted that there was good cause").

It should be first pointed out that the COMINT case cited in the decision above states: "To be sure, where bringing the challenge prior to the award is not practicable, it may be brought thereafter."

Further, if there is "good cause" justifying why a complainant or other objector did not timely formally protest, the doctrines of equitable tolling or estoppel may be relied on.  See, How Draconian are those time limits, really?

The U.S. Supreme Court, in Irwin v. Department of Veterans Affairs, 498 US 89 (1990), a case affording "an opportunity to adopt a more general rule to govern the applicability of equitable tolling in suits against the Government", noted,  "Time requirements in lawsuits between private litigants are customarily subject to "equitable tolling"."

The Court then alluded, unlike private affairs, the government, as a sovereign, is immune from suit, except where it waives sovereign immunity.   But:

"Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver. ... We therefore hold that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States."

On Guam, the Guam Supreme Court has also recognized the application of equitable estoppel (in a private commercial context*, but one very analogous to the timing issues arising from the resolution of procurement disputes).  In GHURA v Dongbu, 2001 Guam 24, ¶ 1,the Court plainly said: “We adopt the doctrine of equitable tolling...."

In explaining the rationale for the doctrine, the Guam Supreme Court said (see, ¶¶ 11-13):

"The purpose of equitable tolling is to protect an insured’s claim during the time an insurer is conducting its investigation, thereby avoiding the premature filing of a suit before an insurer has even denied the claim. ... In order to prevent excess litigation, the time a claimant has to bring a claim is tolled. This practice encourages the settlement of claims by requiring an insurer to investigate claims diligently before denying liability and simultaneously securing an insured’s rights.

"Safeguarding the claim during this interim period also prevents an insurer from stalling the processing of a claim in order to invoke a technical forfeiture of the policy’s benefits. Without equitable tolling, an insurer may wait until the statute of limitations has expired before denying coverage. An insurer may also purposely conduct a lengthy investigation, hoping to lull the policy holder into thinking the claim will be settled, and then deny coverage after the twelve months have expired. The doctrine of equitable tolling protects the reasonable expectations of the insured by demanding good faith and fair dealing on behalf of the insurer.

"Finally, the doctrine of equitable tolling remains consistent with the policies underlying the imposition of a limitations period. A statute of limitations prevents unfair surprise and promotes justice by leaving stale claims in slumber. An insurer must receive prompt notice of a claim in order to properly adjust valid claims and guard against invalid ones. However, an insured is likewise entitled to the time necessary to initially prepare a claim and later pursue legal remedies."

Although the Guam Supreme Court has not expressly applied the doctrine of equitable estoppel to procurement cases, the Guam Superior Court has, on at least two separate occasions.

Furthermore, since the Guam procurement law (5 GCA § 5480), following the ABA Model Code (§ 9-401) expressly provides for waiver of sovereign immunity in procurement disputes, separate from the provision (5 GCA § 5425) dealing with the process, and time limits, for determining such disputes, it might reasonably be expected that the Guam Supreme Court would be guided by the Irwin decision, noted above:

"Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver."

* But note, the Guam Supreme Court has also adopted the doctrine of equitable estoppel against the government, in a civil service administrative remedy context: "we adopt with approval the Appellate Division's use of estoppel against the Government." See, Limtiaco v. Guam Fire Department, 2007 Guam 10, at paragraphs 57 et seq.

There's prejudice, and then there's prejudice

A few posts back, I reported on a Federal Court of Claims case, Universal Marine Co., K.S.C., v U.S, that held a protestor lacked standing if it could not support a claim of economic interest in a solicitation if it did not provide at least some facts alleging injury to itself from the mishandling of a solicitation, or as it is known, "prejudice". 

As the Court in that case concluded, "even though “proving prejudice for purposes of standing merely requires ‘allegational prejudice,’” Universal Marine has not alleged facts that, if true, would create a “substantial chance” that it would be awarded the contract."

Lawyers Alex D. Tomaszczuk and Alexander B. Ginsberg, from the firm Pillsbury Winthrop Shaw Pittman LLP, have expanded on the lessons from Universal Marine, in an article on the Lexology.com website, which I think you will find edifying. 

The lesson added is this: It's one thing to claim prejudice, and another to prove it.

As they put it:

It is important to note that the “allegational prejudice” relevant in Universal Marine is distinct from, but often confused with, a second variety of prejudice necessary for a protester ultimately to prevail on the merits of its protest. This second variety of prejudice—often referred to as “APA [Administrative Procedure Act] prejudice”—requires a protester to demonstrate that, but for any errors it identifies during the protest, it had a “substantial chance” of receiving the award. See Linc Govt. Servs., LLC v. United States, 96 Fed. Cl. 672, 695-96 (2010). (“In order to prevail in a bid protest, however, a plaintiff must satisfy a second type of prejudice requirement, one that has caused a good deal of confusion because it is often mistaken for its standing doctrinal fraternal twin. ...

The need for this second showing of prejudice is captured in section 10(e) of the Administrative Procedure Act. ... In particular, the APA instructs that ‘due account shall be taken of the rule of prejudicial error’ when determining whether to set aside any unlawful agency decision.”) Thus, the first variety of prejudice — that discussed in Universal Marine — relates to the protest as alleged, while the second variety of prejudice examines the effect of errors actually demonstrated on the merits. See USfalcon, Inc. v. United States, 92 Fed Cl. 436, 450 (2010). (“Since the prejudice determination for purposes of standing necessarily occurs before the merits of a protest are reached, the Court must accept the well-pled allegations of agency error to be true. ... Normally, if the protester's case rests on just one allegedly irrational action, or just one purported violation of a law or regulation, the finding of prejudice in the standing context will be replicated on the merits, once the asserted error is confirmed. But a different outcome is possible if more than one ground is raised, as multiple errors might cumulatively establish prejudice, but not a smaller combination of them.”)

Thus, a protester ultimately must show both types of prejudice for its protest to succeed. The Court, however, will never reach consideration of “APA prejudice” if the protester fails to allege—as Universal Marine failed to allege—that it is an interested party.

Prospecting for "interested party" status to sustain a protest

The two most recent posts prior to this one dealt with, in the earlier case, whether an actual bidder was an "interested party" such as to allow a protest, and the more recent post dealt with the question whether changes in contract requirements might require a new solicitation. This case deals both with standing as an "interested party" and changes in a contract requiring a new solicitation, in a twist on both topics: who is a "prospective" bidder or offeror.

The first case presented, deals with the usual situation of a protest of a solicitation in which there is no allegation of a change requiring a new solicitation, by an alleged "prospective" bidder, and concludes with one statement describing, in somewhat categorical language, that the timing of the protest determines whether a protestor is an "interested party" as a "prospective" bidder.

The second case presented deals with the case of a protest by an alleged "prospective" offeror which alleged changes in the contract that require a new solicitation. This protest was brought clearly outside the bounds of who is "prospective" as required by the first case, but the protest was allowed and the protestor was found have "interested party" status. It, in effect, articulates an exception to the usuall rule.

As usual, don't rely on the cases as presented here; read the original at the link.

MCI Telecommunications Corp. v. US, 878 F. 2d 362 - Court of Appeals, Federal Circuit 1989

Believing that AT & T's proposal failed to conform with material, mandatory requirements of the solicitation, and that the GSA, after awarding that contract to AT & T, impermissibly waived mandatory contract requirements rather than resolicit the contract, MCI sought to challenge the award of the contract by bringing a protest before the GSA board. MCI did not participate in the bidding process.

The board is empowered to hear such protests upon request of "an interested party." [T]he term "interested party" means, with respect to a contract or proposed contract described in subparagraph (A), an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.

MCI claimed that, although it was not an "actual offeror or bidder" with respect to the original solicitation, it is a "prospective bidder or offeror" in the event of a resolicitation, and that its economic interest is directly affected by the award to AT & T.

Accordingly, to establish that it is an interested party, MCI must convince us that it is a prospective bidder or offeror, under a correct legal interpretation of that term. This case, then, poses the question whether a would-be protestor wishing to bring about a resolicitation on which it says it intends to bid has the necessary status, even though it failed to either bid in response to the original solicitation or to protest before the close of the proposal period for the original solicitation.

The language of section 759(f)(9)(B) plainly establishes, by use of the word "prospective," that, in order to be eligible to protest, one who has not actually submitted an offer must be expecting to submit an offer prior to the closing date of the solicitation. After the date for submission of proposals has passed, however, the would-be protestor can no longer realistically expect to submit a bid on the proposed contract, and, therefore, cannot achieve prospective bidderhood [yes, bidderhood; a new one on me] with regard to the original solicitation.

Since the opportunity to qualify either as an actual or a prospective bidder ends when the proposal period ends, MCI's stated intention to submit a proposal in response to any resolicitation, and its efforts to secure resolicitation by filing a protest, can do nothing to create the necessary interested party status. Accordingly, no matter how well founded MCI's charges that the GSA waived
mandatory contract requirements and that a resolicitation should occur, MCI's argument that it is an interested party must be rejected.

Matter of: Poly-Pacific Technologies, Inc., B-296029, June 1, 2005

Poly-Pacific Technologies, Inc. protests the modification of contract. Poly-Pacific argues that the agency improperly relaxed the performance requirements in the contract beyond what was reasonably contemplated by the underlying solicitation.

The original solicitation sought proposals that required offerors to both lease plastic media and recycle the resulting SBM in compliance with regulations, and offerors were thus required to propose technical solutions and pricing for both the lease and recycling components of the work. Due to changes in EPA rules regarding the recycling of the plastic media, after work had begun on the awarded contract, the contract was modified to drop that requirement.

Poly-Pacific did not submit a proposal in response to the RFP, as it was not then on the list of qualified providers authorized to lease the plastic media, although it did become an authorized provider subsequently, and before the complained-of contract modifications.

Poly-Pacific argues that the modification of UST’s contract improperly relaxed the performance requirements, thereby changing the scope of work anticipated by the RFP and resulting in an improper sole-source contract of the modified work.

Once a contract is awarded, however, our Office will generally not review modifications to that contract, because such matters are related to contract administration and are beyond the scope of our bid protest function. An exception to this rule arises where a protest alleges that a contract modification changes the work from the scope of the original contract, since the work covered by the modification would otherwise be subject to the statutory requirements for competition absent a valid determination that the work is appropriate for procurement on a sole-source basis. [I usually refer to this exception as the "relation back rule", because it relates back to the essence of the solicitation, allowing a protest of the solicitation, and taking it out of the contract dispute processes (which do not allow a third party to protest).]

Although challenges to the relaxation of contract requirements are less common than challenges to contract modifications that enlarge a contract’s scope of work, our Office recognizes that both fall within this exception, and we will consider whether modifications of performance requirements result in work that should be subject to competition.

In assessing whether a contract modification is outside the scope of the original agreement, we examine whether the original nature or purpose of the contract is so substantially changed by the modification that the original and modified contracts are essentially and materially different. In assessing whether the modified work is essentially the same as the effort for which the competition was held and for which the parties contracted, we consider factors such as the magnitude of the change in relation to the overall effort, including the extent of any changes in the type of work, performance period, and costs between the modification and the underlying contract.

Where an agency has relaxed a contract’s performance requirements, our Office also looks to whether the change in requirements was the type that reasonably would have been anticipated under the solicitation, and whether the modification materially changed the field of competition for the requirement.

We disagree with the agency’s view that the modification does not materially change the requirements of the contract or result in a fundamental change to the nature of the work. The original solicitation sought proposals that required offerors to both lease plastic media and recycle the resulting SBM in compliance with regulations, and offerors were thus required to propose technical solutions and pricing for both the lease and recycling components of the work.

Furthermore, Poly-Pacific contends, and the agency does not dispute, that the costs of leasing plastic media with no recycling requirements is as much as 50 percent less than the costs of leasing plastic media with recycling requirements. An agency may not modify a contract by changing or relaxing requirements where the resulting work is fundamentally different from the work anticipated by the original solicitation. Evidence suggesting that proposals submitted on the basis of a modified contract’s relaxed requirements could result in more competition and lower prices generally weighs in favor of finding that the contract modification was improper.

In our view, the modification resulted in a material and fundamental change to the nature of the work that changed the field of competition and that work, therefore, should have been competed on a full and open basis.

Although the modification of UST’s contract occurred approximately 2 years ago, we find that Poly-Pacific’s protest is timely. Upon learning through news accounts that UST was under investigation for allegedly failing to recycle the SBM according to the contract, Poly-Pacific diligently pursued information regarding UST’s performance. Poly-Pacific made several unsuccessful attempts to obtain information from the agency regarding UST’s contract following the news accounts of the investigation of UST. The agency did not inform Poly-Pacific of the modification until February 25, 2005. We conclude that Poly-Pacific diligently pursued the information that forms the grounds for this protest, and its filing of the protest within 10 days of its notice of the modification is timely.

Finally, we find that the protester was prejudiced by the agency’s improper modification of the contract. As discussed above, Poly-Pacific is a qualified source to provide type V plastic media, and thus could participate in a competition for the work now required under the contract modification.

Under the ABA Model Procurement Code, a prospective bidder or offeror can protest provided it is "aggrieved". It is aggrieved if there was a material defect in the solicitation which wronged (prejudiced) the protestor. Such a protest must be filed within a time period (14 days under Guam law) from the time the aggrieved protestor knows or should have known of the facts by which it became aggrieved.

One protest case before the Guam Public Auditor, as with the Poly-Pacific case, involved a protest made years after the award of a contract. The Public Auditor decided, based on the facts of the case, that the protest was timely filed.

Standing at the end of the line is without prejudice

Well it's all right, even if they say you're wrong

Well it's all right, sometimes you gotta be strong

Well it's all right, As long as you got somewhere to lay

Well it's all right, everyday is Judgment Day

Well it's all right, riding around in the breeze

Well it's all right, if you live the life you please

Well it's all right, even if the sun don't shine

Well it's all right, we're going to the end of the line

--  THE TRAVELING WILBURYS, End of the Line

In this federal US Claims Court case, the protestor thought it was all right being at the end of the line. It wasn't. It was not in sufficient competitive position to win, so was not "interested" in the solicitation.

There are a lot of instructive statements in this case covering a variety of subjects, and I've mentioned many of them, but without much context or elaboration. Read the whole case at the link, for context, accuracy and completeness; and to see where I'm paraphrasing and if correctly.


UNIVERSAL MARINE CO., K.S.C., v U.S., United States Court of Federal Claims No. 14-1115 C, February 10, 2015.

In March 2009, the United States Army (“the Army”) awarded Contract W52P1J-09-D-0025 to Universal Marine Co., K.S.C. (“Universal Marine”) for the operation of a container yard in Kuwait that repairs and refurbishes commercial shipping containers. On April 24, 2014, the Army solicited Request for Proposals No. W52P1J-14-R-0062 (the “RFP”) for the same services as the March 2009 Contract. The incumbent did not get up.

To select an awardee, the Army used a lowest price technically acceptable (“LPTA”) source selection process that evaluated three factors: Technical; Past Performance; and Price. The technical factors were rated on an "pass/fail" or "acceptable/non-acceptable" basis. In the event an Offeror had no recent, relevant past performance, a rating of Acceptable was assigned. Thus, an offeror must clear three successive hurdles to be awarded the contract: First, an offeror must obtain an “Acceptable” rating in Technical Capability and an “Acceptable” rating in Past Performance, and then must propose the lowest price.

In footnote 4, the Court explained that the LPTA procurement method was one form of "best value", but that price/value “[t]radeoffs are not permitted”, thus an LPTA proposal is per se the best value if it meets the selection criteria and proposes the lowest price.

In incumbent, Universal Marine, had the highest price amongst 4 final bidders, all of whom were evaluated to be "acceptable" on technical and past performance factors.

The Government argued that Universal Marine lacks standing, because it finished fourth and has not challenged the offerors who finished second and third. Thus, even if the low bidder's (KGL’s) award were disqualified, Universal Marine still “cannot show that it had a substantial chance of being awarded the contract when it proposed the highest price.” Universal Marine has alleged no error that would disqualify the second or third highest proposals, and therefore lacks standing, because it “has no substantial chance of being awarded the contract.”

Moreover, Universal Marine “cannot show that it was prejudiced by a significant error in the procurement process.” To show prejudice, a protestor must establish “that there was a substantial chance it would have received the contract award but for th[e] error.” Universal Marine cannot show a substantial chance of receiving the award and consequently cannot demonstrate prejudice.

Universal Marine contends that “the issue is not whether an [o]fferor is ‘next in line,’ but whether the [o]fferor has a reasonable expectation to receive an award.” It claims, being “in line” for an award means “being able to meet the requirements such that the Plaintiff is an eligible bidder and potential awardee on the contract.”

Finally, Universal Marine argues that the Army and KGL “would like to make the calculus of standing and interest party overly simplified.” Determining standing, it claims, requires examining the merits of the protest, not just a “blind reliance on the stacking and arraying of the ‘acceptable’ proposals.” Universal Marine claims it is not required to “dissect each proposal in the array that is above it, especially if it demonstrates a systemic flaw in the evaluation process[.]”

As a threshold matter, a plaintiff contesting the award of a federal contract must establish that it is an “interested party” to have standing.

A two-part test is applied to determine whether a protestor is an “interested party.” The protestor must show that: “(1) it was an actual or prospective bidder or offeror, and (2) it had a direct economic interest in the procurement or proposed procurement.” A third test has added that a protestor must show the alleged errors in the procurement were prejudicial. (“It is basic that because the question of prejudice goes directly to the question of standing, the prejudice issue must be reached before addressing the merits.”)

A party demonstrates prejudice when “it can show that but for the error, it would have had a substantial chance of securing the contract.” Importantly, a proper standing inquiry must not conflate the requirement of “direct economic interest” with prejudicial error. ([E]xamining economic interest but excluding prejudicial error from the standing inquiry “would create a rule that, to an unsuccessful but economically interested offeror in a bid protest, any error is harmful”).

In this case, Universal Marine submitted a proposal in response to the RFP, and, as an actual bidder, it satisfies the first element of the “interested party” test. But, Universal Marine did not satisfy the second element, i.e., that it “had a direct economic interest in the procurement.” Universal Marine’s proposed price was the highest of the four proposals. Thus, to have standing, it would have to challenge the bona fides of each of the other three offeror’s eligibility or the solicitation as a whole. But it did not. Universal Marine’s challenges concern only the awardee -- KGL. Based on the four challenges, even if the court were to set aside the award to KGL, the award would go to the second-place offeror. Without any challenge to the intervening offerors, Universal Marine cannot prevail.

As for Universal Marine’s reliance on Hyperion, Inc. v. United States, 115 Fed. Cl. 541 (2014), it is misplaced, even though some facts are similar to this case. Hyperion filed a post-award protest as the highest-priced of four “Acceptable” offerors in an LPTA solicitation. However, Hyperion “contend[ed] that all three [other] offerors failed to meet [certain provisions] and failed to include required [provisions].” Hyperion went on to allege particular defects in each of the other three proposals. “In Hyperion’s view, it was the only technically acceptable offeror and should have received the award.” This case, however, is distinguishable. Here, four out of Universal Marine’s five arguments are specific to KGL, and the problem identified with the solicitation was waived as untimely. Thus, even though “proving prejudice for purposes of standing merely requires ‘allegational prejudice,’” Universal Marine has not alleged facts that, if true, would create a “substantial chance” that it would be awarded the contract.

For these reasons, the court has determined that Universal Marine lacks standing to seek an adjudication of this bid protest.

The price of Standing is eternal vigilance

Vigilance and action. You don't get standing by standing around.

The facts of this case just feel so wrong. But the courts do not hear matters simply because they are wrong. They hear matters only when parties are wronged. And when you are a party that is late to the party, you aren't wronged.

The case is DIGITALIS EDUCATION SOLUTIONS, INC. v. US, Court of Appeals, Federal Circuit 2012.

I've provided the description of facts from the lower Court decision because the Court of Appeals, while neatly encapsulating the legal essentials, just does not create the bad taste in the mouth. Indeed, this is an excerpt; the whole recitation is worth the read. There's much more that depicts a rigged and rushed expenditure just to use funds before the end of the fiscal year. In other words, a rort .

For many years, the Department of Defense Educational Activity ("DODEA") schools have used the "Starlab" brand portable planetaria manufactured by one of Digitalis' competitors, Morris & Lee d/b/a Science First ("M&L"). In September of 2009, DODEA conducted an unadvertised, sole-source procurement of 15 Starlab planetaria.

An initial draft of the Justification and Approval ("J&A") for the 2009 sole source procurement noted that Digitalis manufactured a similar but more expensive product. The published J&A, however, made no mention of Digitalis. Rather, it stated that Starlab was the only known product to integrate science with other subject matter and that, because Starlab systems were already used in DODEA schools, lesson plans and curricula for that system were already in place.

A year later, in September of 2010, the agency again began the process of acquiring more Starlab planetaria, a process that eventually culminated in the purchase of approximately 50 digital Starlab systems. The acquisition occurred with astonishing rapidity, with the entire procurement, from conception to contract award, taking place in only 15 days.

The first record of any contemplation of this procurement came on [Friday] September 10, 2010, in an internal DO DEA email suggesting the possibility of ordering Starlab systems should funding become available. A reply email, dated September 13, noted that such purchases must be publicly posted and suggested that, if the purchase was a possibility, a posting could be done "for couple [sic] days, just in case we need to go this route."

In the early afternoon of [Friday] September 17, 2010, DODEA posted on the Federal Business Opportunities website a notice of its intent to award a sole source procurement to M&L. It further stated:

This notice is not a request for competitive proposals. However, any party that believes it is capable of meeting this requirement as stated herein must submit a written capability statement that clearly supports and demonstrates their ability to provide the items by [Wednesday] 22 September 2010, 1200 a.m., Eastern Standard Time.

Two days later, on Sunday, September 19, the notice was modified to delete the estimated price.

The J&A was approved on [Monday] September 20, 2010. Citing 10 U.S.C. § 2304(c)(1) (2006) and FAR Part 6.302-2—"Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements"—the agency justified the sole source procurement as follows:

STARLAB is the only known portable planetarium system that meets DoDEA's established educational requirements to integrate sciences with teaching of other curricular [sic] such as, English/Language Arts, Cultures (Native American, Greek, African), Geography, History and Math. DoDEA has standardized curricula developed exclusively for the STARLAB portable planetarium. Curriculum standards and specific lessons for the STARLAB components are already in place and there are teacher trainers for this product in all respective areas of operation. It is also emphasized that STARLAB is the only source that provides a planetarium system with all the resources needed to support the instruction required by current curriculum to teach the DoDEA Kindergarten through Grade 12 curricular standards.

... to cancel the curriculum predicated on the STARLAB product would create the necessity for a new curriculum to be selected, developed, procured and implemented, to include, materials, staff development, creations [sic] of standards and rubrics. Lost classroom instruction hours for teachers attending training for a new curriculum would adversely affect DoDEA's all too critical mission to effectively provide a quality education to its students.

[This is an unwarranted focus on the justification for sole source: it assumes a finding of actual need for the acquisition in the first place. See, for instance, FAR Subparts 7 and 11. Was there a need for 50 new pieces of the equipment? Maybe, maybe not, especially if it had plans to review the curriculum. The government should not be allowed to place itself in a perpetual sole source situation, especially where other competitors are known to exist.]

The J&A also describes the agency's ostensibly fruitless "Effort to Obtain Competition":

Multiple searches via the Internet, General Services Administration (GSA) Multiple Award Schedule (MAS), trade magazines and catalogs for products by technical and contracting personnel to satisfy the Government's requirement have been conducted; this market research, including attendance by technical personnel at relevant curriculum-based conferences have resulted in no known sources that could satisfy the Government's requirement. This requirement was also advertized last fiscal year as a sources sought notice yielding no other sources in response.

The J&A also states that at the next five-year curriculum review, DODEA would "conduct further market research using the Internet, catalogs, [and] trade magazines, including direct contact with potential sources at both regional and national education conferences in effort to increase competition for this requirement."

Also on that day, Sky-Skan, Inc., another planetaria maker, contacted DODEA in response to the published notice to express interest in bidding on the contract and requested DODEA's specifications and requirements. [This is critical on the issue of the reasonableness of the timing, an issue the Court refrained to decide. It is critical because the Court of Appeal decision characterized this act, not as a expression of interest, but of an actual filing of a statement of capability.]

DODEA promptly contacted M&L, requesting "immediate assistance in providing additional specification to add to the requirement." M&L replied with a lengthy email detailing its hardware, software, accessories, and warranty, highlighting several aspects it claimed to be superior to its competitors' systems.

The next day, September 21, DODEA modified the posted notice, adding the following language:

DoDEA has standardized curricula developed exclusively for the STARLAB portable planetarium. Curriculum standards and specific lessions [sic] for the STARLAB components are alredy [sic] in place and there are teacher trainers for this product in all respective areas of operation.

DODEA's contract specialist noted in this email that "this [procurement] does not fit into my standard sole source template."

On September 23, 2010, DODEA requested M&L to complete a Request For Quotations ("RFQ") and return it by 6:00 a.m. the next morning. M&L responded with a quote later that day. On Saturday, September 25, DODEA awarded a sole source contract for 50 digital planetaria to M&L in the amount of $2,292,498.21. The contract originally called for delivery of the planetaria on November 30, 2010. About a week later, a modification changed the delivery date to February 28, 2011.

On October 11, 2010, after becoming aware of the award to M&L, Digitalis sent a letter to Congressman Norm Dicks objecting to the manner in which the contract was awarded and expressing its interest in the contract. [Bad idea: procurement officials and the Courts bristle at bringing politicians into the game. Use the political process to try to correct future errors; not to try to influence a pending decision-making review process.]

On December 2, 2010, Digitalis submitted a letter directly to the DODEA contracting officer expressing concern over the sole source procurement and describing Digitalis' portable planetaria.

The trial court held,

Although the procurement was subject to multiple errors, ultimately none prevented Digitalis from submitting a capability statement or protesting the procurement in a timely manner. Accordingly, we cannot sustain Digitalis' protest.

The Court of Appeals affirmed:

Digitalis argues that the Court of Federal Claims should have first determined whether the Department was required to conduct a full competition for the contract rather than a sole-source notice. Then, if we find that the Department should have conducted a full competition, Digitalis argues that it is clear that it would have had a substantial chance of prevailing.

Digitalis also argues that its failure to submit a statement of capability is "irrelevant" to the analysis. It contends that the filing of a capability statement would have been futile based on the Department's response to Sky Skan that basically required it to emulate Science First. Further, Digitalis argues that the period for submitting statements of capability was unreasonably short.

The government argues that Digitalis was not an "actual or prospective bidder" because it failed to submit a capability statement. It analogizes to Rex Service where we held that if a party does not bid during the bid period, it does not have standing regardless of any illegalities by the government in the bid process. (citing Rex Serv., 448 F.3d at 1308).

The Court of Federal Claims held that Digitalis could not demonstrate prejudice, a prerequisite for standing, because it did not have a substantial chance of winning the contract. Id. at 93. Because Digitalis failed to review fedbizopps and submit a statement of capability during the prescribed period, the court explained that "[e]ven if the procurement had proceeded flawlessly, Digitalis's chances to get the contract would not have been any different." Id. The court reasoned that a longer response time would have led to the same result because Digitalis did not check fedbizopps for weeks.

In a sole-source award such as this one, the notice of intent issued by the government is analogous to a request for a proposal. Interested parties are invited to submit statements of capability in order to convince the government that it should hold a full competition for the contract rather than sole-source the contract to the proposed contractor. We therefore hold that in order to be an actual or prospective bidder, a party must submit a statement of capability during the prescribed period. Failure to do so also means that a party does not have the requisite direct economic interest because it cannot have a "substantial chance" of convincing the government to hold a formal competition and subsequently bid on the contract. Rex Serv., 448 F.3d at 1308.

It has to be emphasized that this is a POST-AWARD case. In critical contrast, in a PRE-AWARD context, a bidder should protest defects in the solicitation before bid opening and probably not bid. But if it has no notice of the defects, it should bid, because the standing test, in US Federal cases, require participation in the bid process absent some very compelling evidence that, as a potential bidder, it was deceived or misled into not bidding.

Getting back to the unsavory "vibe"* of the case above, the Court of Appeals said

As the Court of Federal Claims noted, "the administrative record lends credence to a number of Digitalis's allegations of hasty and shoddy contracting."

This holding should not be read, however, as foreclosing challenges to the reasonableness of the procurement time period. Digitalis attempts to do this by challenging the five-day period. Digitalis argues that the selected time period is unreasonably short and that therefore Digitalis should be permitted to challenge the procurement despite not having filed a statement of capability within the time period.

The government seemed to argue that a party who fails to submit a statement of capability during the prescribed period may only object to the reasonableness of the time period if it is so short that it was impossible for the contractor to bid. We do not agree.

Determining whether the time period is reasonable is necessarily a fact intensive analysis. In the context of commercial item procurement, regulations require that the government "establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond . . . ." 48 C.F.R. § 5.203(b). Because commercial items are often readily available to the public, a brief time period for soliciting responses may be reasonable. See, e.g., Cal. Indus. Facilities Res., Inc. v. United States, 80 Fed. Cl. 633, 635-36 (2008) (holding that a period of six days was reasonable in a solicitation for commercial items).

Contrary to the government's argument, the proper inquiry is not whether it is possible for a party to submit a statement of capability during the time period, but whether it is reasonable to expect contractors to see a notice and respond.

Yet at least one potential offeror, Sky Skan, saw the notice and filed a statement of capability, which suggests that the time period was not unreasonably short.

We do not need to decide whether the posting time was unreasonable, however, because Digitalis did not check fedbizopps or otherwise notice the sole-source award to Science First for more than twenty days.

As the Court of Federal Claims held, a twenty-day period would have http://www.blogger.com/img/blank.gifcertainly been reasonable and Digitalis would still hhttp://www.blogger.com/img/blank.gifave failed to file a statement of capability. Because Digitalis did not even discover the procurement posting for more than twenty days, we conclude it was not an interested party.

This comes across as somewhat harsh on the protester, and it must have felt that way to Digitalis. After the all, after chronicling the many misfeasances of the Government, the Court penalized Digitalis for not pulling its Digitalis out.

It has to be remembered, that the Courts' role in procurement review is not to clean up procurement. Its standard of review very clearly is limited to "clearly erroneous" matters, to malfeasances, not misfeasances. Use politicians to help clean up the misfeasances that Courts cannot address.

* See this quote from a classic Australian movie, The Castle:

Dennis Denuto: It's the vibe of the thing, your Honour.

Not interested enough

A recent GAO decision highlights the need to pay careful consideration to who it is that brings a protest in a complex organizational group. This could be even more important to remember when entities are involved in acquisitions, mergers and dispositions.

The case is the Matter of: Integral Systems, Inc., B-405303.1, August 16, 2011:

Integral Systems, Inc. (ISI), of Columbia, Maryland, protests the exclusion from the competitive range of a proposal submitted by its wholly-owned subsidiary, CVG, Inc. (CVG. We dismiss the protest because ISI is not an interested party.

CVG submitted a proposal in response to the solicitation. In various places, the proposal referred to CVG as a “wholly owned subsidiary of Integral Systems, Inc.”

Regarding CVG’s relationship to ISI, the proposal explained as follows: “In early 2010, Integral Systems purchased CVG, which will eventually be renamed Integral Systems SATCOM Solutions Division.”

The proposal further explained that “[i]n the future, CVG will be doing business as Integral Systems SATCOM Solutions.”

Notwithstanding the references to ISI, the proposal reflected that CVG was the offering entity. For instance, the title pages of both the technical/management and corporate experience volumes listed the commercial and government entity (CAGE) code and data universal numbering system (DUNS) number of CVG, rather than the CAGE code and DUNS number of ISI.

Further, the cover letter that accompanied the proposal was signed by a director of CVG, Inc. Finally, throughout the technical/management an corporate experience volumes of the proposal, the entity presenting the proposal was referred to as “CVG.”

The proposal communicated, however, that ISI would have a role in performing the
contemplated contract.

Under the Competition in Contracting Act of 1984 (CICA) and our Bid Protest Regulations, our Office only may decide a protest filed by an “interested party,” which the statute defines as an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract.” 31 U.S.C. § 3551(2) (2010); 4 C.F.R. § 21.0 (2011).

Determining whether a party is interested involves consideration of a variety of factors, including the nature of the issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement.

ISI argues that it is an interested party because the proposal indicated that the Integral organization as a whole would provide the proposed solution. However, regardless of the affiliation of the individuals--or the owner of the resources--that would be used perform the contract, ISI has not demonstrated that the entity with which the government would contract would be ISI, and not CVG. To the contrary, ISI states that if the agency awarded a contract pursuant to the proposal, the agency “would be in privity with CVG, Inc.”

ISI also argues that it is an interested party because the proposal indicated that a single, post-acquisition entity--the Integral Systems SATCOM division--would perform the contract. Although ISI asserts that CVG currently is doing business as Integral Systems SATCOM Solutions Division, ISI has not shown that ISI--as opposed to CVG or CVG doing business as Integral Systems SATCOM Solutions Division--is the entity with which the government would enter into a contract pursuant to the proposal.

ISI’s argument relies on Security Assist. Forces & Equip. Int’l, Inc., B-199366, Feb. 6, 1981, 81-1 CPD ¶ 71, a decision in which our Office concluded that the parent of a wholly-owned subsidiary qualified as an interested party. We decline to apply the conclusion reached in Security Assist. here because that decision was rendered before both the enactment of CICA, which defines an “interested party” as an “actual or prospective bidder or offeror,” and before our Bid Protest Regulations expressly defined an interested party. See 4 C.F.R. Pt. 21 (1981).

We note also that the circumstances here are different than those in Bulloch Int’l, B-265982, Dec. 26, 1995, 96-1 CPD ¶ 5, and E & R, Inc., B-255868, Mar. 29, 1994, 94-1 CPD ¶ 218, wherein our Office recognized that an agent may represent an interested party in a protest where the agent specifies the interested party in the protest and has been expressly authorized to act for that party.

Cf. Trandes Corp., B-271662, Aug. 2, 1996, 96-2 CPD ¶ 57 at 4 (no substitution of offerors where unincorporated division of offeror corporation submitted final proposal revision and record reflected that unincorporated division did not exist apart from offeror corporation and only could enter contracts as offeror corporation); Alabama Aircraft Indus., Inc.– Birmingham v. United States, 83 Fed. Cl. 666, 681-682 (2008) (offeror qualified as interested party because offeror was same legal entity following change in name).

Finally, ISI argues that it is an interested party because it would benefit from award of the contract, or, conversely, suffer without award of the contract. We have no doubt that ISI has an economic interest in the award of a contract to its subsidiary, CVG. Such interest, however, is not the direct economic interest of an actual or prospective offeror contemplated by CICA.

Note that the definition of "interested party" is not universally strict. The federal CICA definition hinges on a "direct economic interest" of "an actual or prospective bidder or offeror", as the decision above illustrates.

The ABA Model Procurement Regulation is somewhat broader. Model Regulation R9-101.01.1 defines an “interested party” to mean “an actual or prospective bidder,
offeror, or contractor that may be aggrieved by the solicitation or award of a contract, or by the protest.” Cases have tended to view "economic interest", direct or otherwise, as an element of the "interest" which must be aggrieved, in line, perhaps, with the broader but entirely related question of standing.

This multidimensional test is also used in the CICA context, but with more emphasis, perhaps, on the directness of the economic interest. As the decision above recognized, "determining whether a party is interested involves consideration of a variety of factors, including the nature of the issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement."

Interested party determination not based on responsibility

Other cases have made the point that bid responsiveness and bidder responsibility are entirely separate and independent issues, judged by separate criteria and standards and at separate times in the solicitation process.

This US Federal GAO case reiterates that "interested party" status is similar to responsiveness, and that it is inappropriate to test it by reference to matters of bidder responsibility.

Here, the protester sought to turn a requirement in the solicitation that the bidder provide information about bidder responsibility with the proposal into a test of "interested party" status. Based on the principle that issues of bidder responsibility cannot be transformed into issues of bid responsiveness by the dictates of a solicitation requirement, the protester failed.

There is also some interesting sidelights about the way GAO integrates ADR processes in its review processes.

Curiously, though, the protester was awarded costs and legal fees: "Request for reimbursement of costs for filing and pursuing an earlier protest is granted where the protester raised a clearly meritorious protest ground, and the agency did not take prompt corrective action."

There were other issues in this case, including what it takes to overturn an evaluation, but those will not be discussed here.

Matter of: Waterfront Technologies, Inc., B-401948.16, June 24, 2011

DOL argues that Waterfront is not an interested party to challenge the award to 21st Century because the protester did not meet a mandatory solicitation requirement to have an interim secret facility clearance.

As relevant here, the RFP stated that offerors would be required to hold “at a minimum, an interim secret facility clearance prior to the RFP closing date.”

The RFP did not expressly state that offerors were required to provide documentation concerning this requirement in their proposals.

However, in an email to the protester on August 28, 2009, after receipt of proposals, the agency asked Waterfront to address the following question: “Does your company hold at a minimum an ‘INTERIM SECRET FACILITY CLEARANCE’ prior to the RFP closing date as referenced in the subject SOW?”

The protester responded that it did not have an interim secret facility clearance.

Based on the foregoing, DOL has argued throughout the various protests that Waterfront’s proposal did not meet a mandatory solicitation requirement and therefore should not have been considered eligible for award.

Our Office has held that the ability to obtain a security clearance is generally a matter of responsibility, absent an express requirement in the solicitation to demonstrate the ability prior to award.

SBA has conclusive authority to determine the responsibility of small business concerns. Thus, when a procuring agency finds that a small business is not eligible for award based on a nonresponsibility determination or a failure to satisfy definitive responsibility criteria, the agency is required to refer the matter to the SBA for a final determination under its certificate of competency (COC) procedures.

On October 15, 2009, prior to the submission of an agency report on that protest, the GAO attorney assigned to the protest conducted an outcome prediction ADR, in which she advised that Waterfront’s asserted failure to provide an interim facility security clearance was a matter of “responsibility,” rather than “responsiveness” or technical acceptability, and predicted that our Office would likely sustain Waterfront’s protest. She also advised the parties that since Waterfront was a small business concern, a finding of non-responsibility would require the DOL to submit the matter to the SBA for a COC review.

DOL took corrective action in response to the ADR and advised our Office that it would refer the matter of Waterfront’s responsibility to the SBA for a COC determination. In its referral to the SBA, however, DOL stated that Waterfront was not the apparent successful offeror for the procurement, and for this reason, the SBA declined to consider whether to issue a COC to the protester.

In connection with Waterfront’s subsequent protest DOL again argued that Waterfront was not eligible for award based on the protester’s lack of an interim secret facility clearance. Our Office asked the SBA to address this issue. SBA again concluded that it need not evaluate Waterfront for a COC, but would consider a COC referral in the event that Waterfront was rejected as nonresponsible or unacceptable on the basis of a definitive responsibility criterion. Waterfront asserts that it is compliant with the RFP’s interim secret facility clearance requirement.

On this record, we think that Waterfront is therefore an interested party eligible to challenge the award to 21st Century.

This case is consistent with a long line of federal authority for the proposition that it is responsiveness, not responsibility, that lies at the heart of the inquiry into interested party status, e.g.:

U.S. v. International Business Machines Corp., 892 F.2d 1006 (C.A.Fed., 1989)

The Brooks Act empowers the board to hear protests of disappointed bidders who are "interested parties." An "interested party" is in turn defined as "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." In contrast to statutes like the Administrative Procedure Act, under which Congress has extended the traditional basis for standing beyond direct economic injury, in the Brooks Act Congress has deliberately and substantially narrowed the class of persons entitled to invoke the authority of the board.

We have suggested above that Congress intended the phrase "interested party" to be a meaningful limitation on the authority of the board to entertain, and this court to review, protests of an agency's conduct of a Brooks Act procurement. We see responsiveness as another facet of the interested party inquiry. When responsiveness is an issue, it must be resolved before the board can proceed. If a bid is not responsive, the protester has no more right to invoke the office of the board than the proverbial man on the street. A nonresponsive bidder is the epitome of one who lacks a direct economic interest.