The recent decision, Gemini Tech Services, LLC v. U.S., 2025 WL 2080407 (Fed.Cl. 2025), demonstrates the (difficult) standard in protesting a government’s procurement decision, i.e., a bid protest. In this matter, a protestor pursued a post-award bid protest of a government contract to perform certain support services for a military installation. The government did an RFP (request for proposals) for the services which “employed a best value source selection process using three evaluation factors: technical, past performance, and cost/price.” During the process, the government disqualified the protestor and awarded the contractor to another company as the lowest responsible offeror. The protestor filed its bid protest. The protestor did not prevail. Its reasons for the protest or why those reasons failed are less important for purposes of this article. What is important is the arbitrary and capricious requirement, and what must be demonstrated, for a protestor to prevail. You be the judge of whether the arbitrary and capricious requirement is easy based on the facts and circumstances of your government procurement decision:
When called upon to review a federal agency’s procurement decision, this Court employs the Administrative Procedure Act (APA) standard, and must determine whether the challenged action was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.“The arbitrary and capricious standard is highly deferential and requires this Court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” An agency’s procurement decision is arbitrary and capricious “if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” With respect to challenges brought under the first ground, the Court must “determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” As for the second ground, “the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.”
Gemini Tech Services, supra, at *5.
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