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Bannum, Inc. v. United States

United States Court of Appeals, Federal Circuit

March 12, 2015

BANNUM, INC., Plaintiff-Appellant
v.
UNITED STATES AND DISMAS CHARITIES, INC., Defendants-Appellees; BANNUM, INC., Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

Page 1377

Appeal from the United States Court of Federal Claims in No. 1:14-cv-00140-MCW, Judge Mary Ellen Coster Williams.

Appeal from the United States Court of Federal Claims in No. 1:14-cv-00040-NBF, Judge Nancy B. Fire-stone.

JUSTIN HUFFMAN, Camardo Law Firm, P.C., Auburn, NY, argued for plaintiff-appellant in 2014-5085 and 2014-5086. Also represented by JOSEPH A. CAMARDO, JR.

ANTONIA RAMOS SOARES, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States in 2014-5085 and 2014-5086. Also represented by RUSSELL J. UPTON, JOYCE F. BRANDA, ROBERT E. KIRSCHMAN, JR., DONALD E. KINNER.

ALEXANDER D. TOMASZCZUK, Pillsbury Winthrop Shaw Pittman LLP, McLean, VA, argued for defendant-appellee Dismas Charities, Inc. in 2014-5085. Also represented by ALEXANDER BREWER GINSBERG.

Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.

OPINION

Page 1378

Taranto, Circuit Judge.

Bannum, Inc. protests decisions of the Bureau of Prisons of the United States Department of Justice to award two contracts to other bidders. In two actions brought in the Court of Federal Claims, Bannum complained that the awards were improper, alleging a common defect in the terms of the solicitations and, also, problems in the evaluation of competing bids. In each case, the Court of Federal Claims dismissed Bannum's suit. Finding that Bannum's proposal, by failing to commit Bannum to a fixed price, was materially out of compliance with the terms of the solicitation, the court concluded that Bannum was not an " interested party" entitled to bring its protest under 28 U.S.C. § 1491(b).

We affirm the dismissals of Bannum's suits, but on a different basis. We conclude that, because Bannum did not adequately present its objection to the solicitations before the awards, Bannum waived its ability to challenge the solicitations in the Court of Federal Claims. We also conclude that, on appeal, Bannum failed to preserve its separate challenges to the bid evaluations. We do not reach the " interested party" ground of the Court of Federal Claims' decisions.

Background

In the first of the two separately filed protest actions before us on appeal, Bannum protests the government's award of a fixed-price, indefinite-delivery, requirements-type contract to intervenor Dismas Charities, Inc., for the operation of a residential reentry center for federal offenders in Tupelo, Mississippi. The government published the solicitation, Request for Proposals (RFP) No. 200-1168-SE, in February 2012, inviting interested bidders to submit initial proposals by April 23, 2012. Only Bannum and Dismas submitted offers.

Over the next fifteen months, the government sent notices to the two bidders altering the contract requirements and requesting updated proposals. Amendment No. 5, issued in February 2013, added a requirement that the facility be operated in compliance with the Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. § § 15601--15609. The government asked both bidders to ...


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