Government Contracts Monitor

Where’s the Controversy?

October 18, 2013

The Court of Federal Claims recently reminded us that courts do not answer abstract legal questions. They only adjudicate concrete disputes involving at least two opposing parties – parties that are adverse. “Something real must be at stake, and the parties’ interests with respect to that real thing must be antagonistic.” Brookfield Relocation, Inc. v. United States, No. 13-592 (Fed. Cl. Oct. 4, 2013). Brookfield also reminds us that the same party appearing in multiple protests may end up in a knot.

The Brookfield story began when the FBI awarded three Blanket Purchase Agreements (“BPAs”) to Brookfield’s competitors. Brookfield protested these awards and the FBI then awarded Brookfield a fourth BPA. The other offerors then protested the award to Brookfield. At this point the FBI decided to cancel all four BPAs and conduct a new procurement under a revised solicitation. But the story did not end there.

Next, two of the original awardees filed protests challenging the FBI’s “corrective action” – the cancellation of their awards and the decision to conduct a new procurement. Brookfield intervened in that protest to support the FBI’s decision to take corrective action. At the same time, however, Brookfield also filed the instant bid protest challenging the award of BPAs to the initial three awardees and seeking to have those awards set aside. As the Court saw it, Brookfield “seeks injunctive relief requiring the FBI to take corrective action it has already decided to take.” What Brookfield was really trying to do was to make certain that if the initial protest by its competitors (challenging the FBI’s corrective action) was successful – if the awards were not cancelled – those three awards would nevertheless be subject to challenge in the instant protest, on the merits. The strategy did not work.

Because Brookfield and the FBI agree that the three initial awards should be set aside, the Court found there was no justiciable case or controversy between them. Indeed, the Court found that the government, through its corrective action, sought to do the very thing plaintiff requested: cancel the initial three awards and conduct a new procurement under a revised solicitation. Thus, according to the Court, Brookfield and the government were not truly adverse parties and there was no justiciable case or controversy. Although the strategy was clever, this case serves as an important reminder that you cannot bring a case to the Court of Federal Claims – or any court for that matter – if the two parties agree on the ultimate issue.

Lindsay Simmons is the attorney responsible for the content of this article.