Background
The Defense Intelligence Agency awarded an IDIQ prime contract, SITE III, to Invictus International Consulting, LLC. FCN, Inc. was an Invictus subcontractor eligible to compete for task orders. FCN submitted a quote for the Venice RFQ, a task order seeking Palo Alto Networks equipment, and alleged that its quote was the lowest offer.
Invictus told FCN that DIA had instructed it to remove FCN from the RFQ. FCN protested at the Government Accountability Office, alleging that DIA improperly excluded it based on an alleged organizational conflict of interest or a mitigation-plan issue. DIA declined to impose a CICA stay immediately, taking the position that FCN was a subcontractor without privity of contract with the agency. FCN then sought a temporary restraining order and preliminary injunction in the Court of Federal Claims to enforce the stay.
The Court’s Holding
The Court denied FCN’s motion because FCN lacked statutory standing under the Tucker Act. A bid protestor must be an “interested party,” meaning an actual or prospective bidder or offeror whose direct economic interest is affected by the contract award or failure to award.
FCN was a subcontractor under Invictus’s prime contract, rather than a bidder or offeror to DIA for a federal contract. The court held that the Federal Circuit’s en banc decision in Percipient.AI v. United States categorically forecloses subcontractor standing under 28 U.S.C. § 1491(b)(1), including in an action seeking to enforce a CICA stay. FCN’s allegation that DIA controlled the procurement did not alter that result, and its pending GAO protest did not confer standing in the Court of Federal Claims.
Key Takeaways
- A subcontractor lacks Tucker Act standing to pursue a bid protest in the Court of Federal Claims.
- The same interested-party requirement applies to challenges involving a CICA stay.
- A GAO protest does not independently give a subcontractor standing to seek CICA-stay relief in court.
Why It Matters
The decision applies Percipient.AI‘s limitation on subcontractor standing to a request for emergency CICA-stay relief. Even where an agency allegedly directed a prime contractor to exclude a subcontractor, the subcontractor cannot use the Court of Federal Claims’ bid-protest jurisdiction unless it qualifies as an actual or prospective federal bidder or offeror.