Posted on 2/7/2012 10:00 AM

Judge Christine Miller of the Court of Federal Claims (COFC) has issued an injunction stopping performance on a Marine Corps Systems Command (MCSC) best value contract for tactical fuel and water systems.  She agreed with the protester's argument the awardee made a material misrepresentation in its proposal that a certain firm was a subcontractor and that MCSC relied on this mispresentation in its evaluation of past performance.  Under the facts in this case, Judge Miller determined the interests of national defense and national security do not prevail over upholding the integrity of the procurement process to redress a material misrepresentation.

After carefully reviewing the evidence, Judge Miller found that the successful awardee made a material misrepresentation listing a supplier, with which it had teamed, as a subcontractor and listed that supplier as part of its past performance presentation.  The court also found that MCSC's evaluation showed MCSC relied on the misrepresentation in evaluating the successful awardee's past performance.  All of this, said the court, was prejudicial to the protester.  The court relied on precedent establishing the rule that any misstatement which materially influences how a proposal is evaluated should disqualify the proposal.  "The integrity of the system demands no less.  Any further consideration of the proposal in these circumstances would provoke suspicion and mistrust and reduce confidence in the competitive procurement system."

Judge Miller ordered the Marine Corps Systems Command, its officers, agents, employees and all other connected persons not to proceed with the performance of the contract and she ordered the contracting officer to direct the contractor to cease performance under the contract.

There are a number of obvious lessons here.  You can get real relief in bid protest cases.  There are consequences for misrepresenting your intentions in a proposal.  Bait and switch by contractors can be found out and punished.  Courts can order the government to stop performance on an awarded contract and to redo a procurement.

Why go to court versus the GAO?  Or why go to GAO and then to court?  Attend our bid protest seminar and we'll be happy to explain the many ins and outs and pros and cons.  However, each case is different and requires careful analysis before you decide to protest and then select the forum.



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