Wiley Rein has one of the most active and well-respected bid protest practices in the nation, one that is widely regarded as “an excellent choice for bid protest litigation” (Chambers USA 2010). As Chambers regularly notes, the Group’s “forte” in this area is reflected in a long record of notable successes for its clients, including: the representation of Turner Construction regarding an alleged organizational conflict of interest (OCI), ultimately obtaining the reinstating of a $300 million Army contract award; the protest, for Booz Allen Hamilton, of a $30 million task order awarded by the Defense Information Systems Agency; and the “hugely significant” challenge, by The Boeing Company, of the U.S. Air Force’s award of a $35 billion contract for the next generation of aerial refueling tankers, a contract subsequently awarded to Boeing following the new competition.
We regularly represent companies either challenging or defending procurement procedures or contract awards in bid protests before contracting agencies, the U.S. Government Accountability Office (GAO), the U.S. Court of Federal Claims (COFC), and the U.S. Court of Appeals for the Federal Circuit. Wiley Rein is also able draw on a deep pool of attorneys with security clearances in order to handle protests involving classified programs. Through our vast experience on some of the highest-profile protests, we are able to provide insightful counsel regarding various approaches for success, including structuring effective protest timelines, determining where a protest should be filed to maximize the chances for a "win," or formulating strategies for how best to defend against a competitor's protest.
Wiley Rein's Government Contracts Practice regularly handles scores of bid protest matters before agencies, the GAO, and the COFC each year and, as a result, is at the forefront of bid protest litigation involving matters most pressing to the government contracts community. For example, we frequently litigate protests involving OCIs and routinely counsel clients on strategies to identify, avoid, neutralize, or mitigate potential conflicts. We have also been involved in protests challenging agency “in-sourcing” decisions, helping to ensure that federal in-sourcing initiatives are reasonable. Our successes span the range of protest bases and address many issues of first impression, including the following reported protest outcomes:
- Successfully protested on behalf of The Boeing Company the U.S. Air Force award of a $35 billion contract for the next generation of aerial refueling tankers, prevailing on several protest grounds in one of the most prominent GAO protests in recent history. [See Decision] Boeing was subsequently awarded the contract following a new competition.
- Successfully defended the award of a $1.1 billion Air Force operations and maintenance contract in a bid protest filed at the GAO. After the protester obtained injunctive relief at the COFC on a single issue, Wiley Rein secured a reversal on appeal to the U.S. Court of Appeals for the Federal Circuit, dissolving the injunction and affirming the award to our client. [See Second PEMCO GAO Decision, PEMCO COFC Decision, and PEMCO Federal Circuit Decision]
- Successfully protested the award of a $3 billion contract by the U.S. Army Tank-Automotive and Armaments Command for the production of the family of medium tactical vehicles (FMTV). [See Decision]
- Successfully defended a major aerospace contractor in a protest brought by a disappointed bidder that began as a GAO protest, was followed by an injunction action before the COFC, and, when that action was also dismissed, moved to civil proceedings in federal district court and before the Ninth Circuit. Arguments made by Wiley Rein's attorneys in the COFC provided the principal basis upon which the Ninth Circuit dismissed the competitor's antitrust action. [See COFC, CD Cal-First Dismissal and CD Cal-Second Dismissal, and 9th Cir. Decision]
- Successfully defended client's single largest contract award against multi-count protest by losing incumbent at the COFC. [See Decision]
- Successfully protested a multi-billion-dollar Army procurement for warfighter field operations support services. [See Decision]
- Successfully defended the award of one of the four Durable Medical Equipment (DME) Medicare Administrative Contractor (MAC) contracts in the first GAO protest under the Medicare Prescription Drug Improvement and Modernization Act of 2003 that mandated Medicare contracting reform. [See Decision]
In addition to these and other reported decisions, Wiley Rein has represented clients in numerous other matters that yielded successful results for our clients without a written decision, including matters in which the procuring agency has voluntarily adopted early corrective action or a protest has resulted in early outcome prediction.
In the federal market, bid protests are an integral oversight mechanism, ensuring that federal acquisitions are carried out in accordance with applicable procurement statutes and regulations. Whether as a successful awardee or disappointed bidder, all companies must understand the realities of the bid protest process to successfully defend their own contract awards from protest or to vindicate their rights to full and open competition as a protester. With collective participation in thousands of bid protests, there is little—if anything—that our Government Contracts lawyers have not seen before, which is critical in bid protest litigation where there is no "ramp-up" time or room for "on-the-job training."
ISSUE: WINTER 2014