What's a Bid Protester to Do?

Elmendorf Support Services (ESS) provided base supply services to the Air Froce at Joint Base Elmendorf-Richardson AFB in Alaska. The contract became effective on October 1, 2005. ESS provided general supply services, inventory control, customer and training services, contingency planning, and other support activities. The contract provided for a base year plus nine option years.

In March 2010, the Air Force conducted a cost comparison between ESS performing those services versus what it would cost to have the work performed by Government civilian employees. This study was performed pursuant to the 2011 National Defense Authorization Act. The Air Force study concluded that performance by Government civilian employees would be more cost-effective, saving the Air Force $5.4 million or 18 percent of the contract value over a five-year period. On February 2, 2011, the Air Force notified ESS of its intent to "in-source"  the contract services at the end of the sixth option year, or September 30, 2012.

The Air Force ran into some hiring issues in bringing on the number of civilians necessary to perform the work. As an interim step, it used a mix of military and civilian personnel to perform the services during a transition period.

ESS filed a complaint with the U.S. Court of Federal Claims stating that the Air Force cost analysis did not contemplate the use of military personnel and that a military workforce is likely to involve costs above and beyond those associated with in-sourcing the services to a Government civilian workforce.

The Air Force filed a motion to dismiss ESS's bid protest. The Judge denied the motion for a variety of reasons but mainly the fact that at the time, June 2012, ESS was still under contract. The Air Force filed another motion to dismiss ESS's bid protest this month, September 2012. This time, the Judge sided with the Air Force since ESS's contract was over and ESS no longer had "standing" to protest a decision by the Air Force to "in-source" the work. The Judge granted the Air Force's motion to dismiss the complaint for lack of jurisdiction. Additionally, ESS was not able to recoup legal costs associated with the bid protest.

The Court never had to rule on the merits of the case. They simply waited three months and threw it out on a technicality.