Establishing prejudice in bid protests when no offerors are eligible for award

A number of bid protest decisions have been issued in recent years by the US Court of Federal Claims (COFC) and the US Government Accountability Office (GAO) in which the protestor, the awardee, and all other offerors were deemed ineligible for award. In this scenario, the COFC and GAO are tasked with deciding whether to sustain the protest and require the agency to resolicit the procurement or uphold the agency’s award decision to an ineligible offeror.

The issue typically arises in the context of evaluating prejudice on the merits and, at least at the COFC, resolution of the issue would appear to turn on whether the protestor committed the same error as the awardee.

Originally published in The Procurement Lawyer, this article analyzes how the COFC and GAO have resolved the issue of prejudice on the merits when, as a result of a successful bid protest, there are no offerors eligible for award.