A District Court recently ruled that a disappointed bidder on two concession contracts was allowed to challenge NPS’s decision to proceed with an illegal award of the contracts to non-responsive offerors. NPS’s had asserted that, because the concessioner was paid the costs of its bid preparation pursuant to a prior lawsuit which confirmed that the two offerors were in fact non-responsive, it was as if the concessioner “never bid in the first instance.” NPS also argued that the concessioner had elected to seek its proposal costs as its only remedy. However, the concessioner asserted that the two lawsuits were legally distinct and that it had a right to oppose NPS’s subsequent decision to illegally award the contracts, which was after the prior court had ruled that the two other proposals were non-responsive. In addition, the concessioner pointed out that bid costs were not intended to be a full recovery for a disappointed bidder but, if needed, it would be willing to return its award of its proposal costs if NPS simply followed the law and awarded the contracts to it.
In denying NPS’s argument, the Court noted that “an APA challenge to a federal contracting decision rests not merely on the lost economic gain the disappointed bidder would have received had it been awarded the contract, but stems instead from an ‘injury to [the bidder’s] right to a legally valid procurement process.’” The Court noted that this right was bestowed on all bidders, including NPS concessioners. The Court further held that NPS was incorrect when it asserted that, by being paid for its bid preparation costs, the concessioner was now in the position of a “non-bidder,” and NPS offered “little support for its suggestion” that the concessioner had not been harmed by NPS’s illegal awards.
The Court also held that NPS’s effort to prevent review of its award decision was “squarely at odds” with the important public interest in ensuring “that the government obtains the most advantageous contracts by complying with the procedures which Congress and applicable regulations have provided.” The Court also recognized that, in appropriate situations, it can direct an award of a contract to a particular concessioner. The Court then held that the facts in the instant case suggested that, “but for the alleged illegality in the consideration of these contractors’ proposals, [the concessioner] would have been awarded each of these contracts.” The parties will now proceed with the case to determine if the contracts awarded to the non-responsive offerors should be invalidated and awarded to the concessioner.