A protester must have a genuine stake in the government decision it hopes to challenge. Protesters do not have standing to challenge procurements they cannot hope to perform. There is friction, however, between the need for courts to consider the standing of protesters (e.g., their ability to perform a challenged contract) and the exclusive authority of the procuring agency to perform evaluations. The Federal Circuit’s Sept. 19, 2018 decision in CliniComp provides an illustration of this friction.

In CliniComp International Inc. v. U.S., the protester challenged a proposed sole-source award of a national electronic health records contract by the U.S. Veterans Administration to a much larger competitor. The Federal Circuit affirmed the underlying quasi-evaluation by the U.S. Court of Federal Claims decision, which compared CliniComp’s current operations with the details of the proposed sole-source contract. The Federal Circuit upheld the COFC’s finding that CliniComp did not have standing, as it had not shown itself to be capable of performing a national contract much larger than any of its current efforts.

While the decision is technically limited to protests challenging sole-source awards, the opinion could be read to suggest that even protesters challenging the terms of a solicitation may need to submit significant evidence at the outset of a protest to demonstrate that they could credibly propose to perform the full scope of work contemplated by the agency. Practitioners should take heed of the potentially critical importance of this threshold showing.

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