Even Offerors Eliminated Before the Competitive Range May Have Protest Standing

by Pillsbury Winthrop Shaw Pittman LLP

On January 14, 2013, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) held that an offeror had standing to challenge the exclusion of its proposal from a competition even prior to a competitive range, despite the offeror’s submission of an incomplete proposal. In Orion Technology, Inc. v. United States, the Federal Circuit clarified that a disappointed offeror that has been eliminated from a competition can show that it has standing as an “interested party.”

The Army issued a solicitation for a multiple-award services contract. The solicitation notified offerors that the Army “may” decline to evaluate incomplete proposals. Orion’s proposal failed to include required cost information for several of Orion’s proposed subcontractors. Orion tried to submit the missing information late, but the Army rejected it. The Army ultimately rejected Orion’s incomplete proposal because the Army could not conduct the required price reasonableness and cost realism analyses.

Orion unsuccessfully pursued protests at the agency level and at the Government Accountability Office (“GAO”). Notably, GAO issued a decision on the merits denying Orion’s protest, but did not dismiss Orion’s protest for lack of standing.

The Army subsequently amended the solicitation, opened discussions, and requested revised proposals from offerors in the competitive range. Orion attempted to submit a new proposal. The Army, however, rejected the proposal because Orion had previously been eliminated from the competition.

Orion again filed an agency protest and a GAO protest, both of which were dismissed because Orion was no longer an “interested party.” Orion then protested to the U.S. Court of Federal Claims (“CFC”).

The CFC dismissed the protest because Orion, by submitting a non-compliant proposal, was not an interested party. (The CFC alternatively concluded that, even if Orion had standing, it would lose on the merits.) Orion appealed to the Federal Circuit.

The Federal Circuit reiterated that only an “interested party” – defined as “an actual or prospective bidder whose direct economic interest would be affected by the award of the contract” – has standing to protest. The Federal Circuit considered whether to apply the court’s more permissive “non-trivial competitive injury” standard (used in some pre-award protests) or its more stringent “substantial chance” standard (used in post-award protests).

The Federal Circuit concluded the “substantial chance” standard should apply because (1) the Army evaluated whether Orion’s bid complied with the solicitation’s requirements, and (2) Orion’s cost/price would have placed it in the subsequently established competitive range. Thus, the CFC could properly evaluate whether Orion would have a “substantial chance” of winning the contract if the protest was sustained.

The Federal Circuit concluded that Orion had standing to challenge the exclusion of its proposal from the competition. First, the Federal Circuit found that neither the solicitation nor applicable regulations required exclusion of Orion’s incomplete proposal. Second, the Federal Circuit found that Orion could have addressed the proposal deficiencies during discussions and final proposal revisions.

In determining that Orion had standing, however, the Federal Circuit limited the reach of its decision:

In arriving at that conclusion, however, we do not hold that the mere timely submission of a proposal, no matter how defective, automatically confers standing under the substantial chance standard. Instead, we only conclude that under the facts of this case, where the Army had discretion to process Orion’s competitive proposal, but chose not to, and where Orion’s original proposal was within the later-established competitive range, we conclude that Orion had a substantial chance of receiving the contract and therefore had standing to challenge the exclusion of its proposal based on the Army’s alleged arbitrary action in refusing to exercise its discretion in Orion’s favor.

After concluding Orion had standing, however, the Federal Circuit affirmed the CFC’s alternative conclusion that the Army acted rationally in rejecting Orion’s proposal on the merits.

Orion Technology establishes that a disappointed offeror excluded from a competition for submitting an incomplete proposal may still be able to protest its exclusion and get back into the competition. While Orion lost on the merits, the Federal Circuit’s decision finding Orion to be an “interested party” will allow similarly situated disappointed offerors to pursue their bid protests.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pillsbury Winthrop Shaw Pittman LLP | Attorney Advertising

Written by:

Pillsbury Winthrop Shaw Pittman LLP

Pillsbury Winthrop Shaw Pittman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.