Federal Circuit Weighs in on Prejudice in Bid ProtestsRinging out 2021, the U.S. Court of Appeals for the Federal Circuit, in Systems Studies & Simulation, Inc. v. United States, recently held that there generally is no presumption that a protester has suffered competitive prejudice, even where the protester has successfully demonstrated that an agency’s evaluation was irrational. This article provides a brief overview of this noteworthy case, as well as key takeaways.

The Facts

System Studies & Simulation, Inc. (S3), an unsuccessful bidder for a government contract, filed a bid protest in the U.S. Court of Federal Claims (COFC). The COFC found that the government had acted irrationally in one respect during its evaluation of S3’s proposal, but nevertheless denied S3 relief on the ground that S3 did not suffer competitive prejudice as a result of this irrational evaluation.

On appeal to the Federal Circuit, S3 argued that there is, as a matter of law, a presumption of prejudice to the protester whenever the COFC determines that the procuring agency acted irrationally in evaluating proposals or making an award decision. Specifically, relying on the Federal Circuit’s decision in Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001), S3 argued that there exists an implicit presumption of prejudice where agency irrationality has been established.

The Federal Circuit, however, rejected S3’s argument and held that “there is no presumption of prejudice when a protestor demonstrates irrationality in an agency decision.” Instead, “[t]he protestor must show prejudice under the usual standard.” The Federal Circuit also rejected the protester’s challenge to the COFC’s “particular finding of no demonstrated prejudice in this case,” concluding that there was no clear error in the COFC’s decision.

The Takeaway

Coming on the last federal workday of 2021, the Federal Circuit’s decision affirms the principle that competitive prejudice is an essential element of a viable bid protest. That principle now, without doubt, applies both when a disappointed offeror challenges a contract award before the COFC based on a lack of rationality and when the award violates statutes or regulations. Thus, the Federal Circuit’s decision removes some confusion that had existed in prior COFC cases and provides clarity on bid protest pleading standards to the government contracting bar.

If you have any questions about this noteworthy case or bid protests in general, please do not hesitate to contact Aron Beezley or Patrick Quigley.

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Photo of Aron C. Beezley Aron C. Beezley

Aron Beezley is the co-leader of Bradley’s Government Contracts Practice Group. Ranked nationally in Government Contracts Law by Chambers in 2019-2020, named one of the “Top Attorneys Under 40” nationwide in Government Contracts Law by Law360 in 2016-2017, and listed in Washington, D.C.

Aron Beezley is the co-leader of Bradley’s Government Contracts Practice Group. Ranked nationally in Government Contracts Law by Chambers in 2019-2020, named one of the “Top Attorneys Under 40” nationwide in Government Contracts Law by Law360 in 2016-2017, and listed in Washington, D.C. Super Lawyers as a “Rising Star” in Government Contracts Law in 2014-2020, Aron’s vast experience includes representation of government contractors in a variety of industries and in all aspects of the government-contracting process, including negotiation, award, performance and termination.

Photo of Patrick R. Quigley Patrick R. Quigley

Patrick Quigley’s practice is focused on litigating bid protests, contract claims, prime/subcontractor disputes, and small business size protests/appeals at the Government Accountability Office, U.S. Court of Federal Claims, boards of contract appeals, federal agencies, the Small Business Administration, and state courts. He…

Patrick Quigley’s practice is focused on litigating bid protests, contract claims, prime/subcontractor disputes, and small business size protests/appeals at the Government Accountability Office, U.S. Court of Federal Claims, boards of contract appeals, federal agencies, the Small Business Administration, and state courts. He conducts internal investigations and defends clients in False Claims Act litigation, government investigations, and suspension and debarment actions. Patrick conducts due diligence reviews of and advises on the government-contract aspects of business transactions, and counsels on procurement law compliance, federal employee ethics rules, teaming agreements, and conflict-of-interest mitigation plans. View articles by Patrick.