Claim of 'Politicking' Agency Evaluator Shows Potential for Bias

Jay Carey’s commentary was included in a Bloomberg Law article discussing the MetroIBR JV LLC et al v. US case, where Judge Eric G. Bruggink of the U.S. Court of Federal Claims said depositions were necessary to address “unexplained and unresolved questions” about a U.S. Census Bureau task order evaluation. Certain evidence is “hard to explain absent bad faith,” and sworn affidavits suggested bad faith This court order stands out as a rare instance where a losing bidder was able to overcome the judiciary’s general presumption that government officials properly conduct their jobs. Jay commented on the case’s implications and key takeaways from the decision.

U.S. officials are entitled to the “presumption of regularity,” the court said, but this decision serves as a reminder for government contractors to be on the lookout for contract evaluators taking actions to unduly favor competitors.

Before bringing a bias claim such as seen in the MetroIBR case, a contractor should look for evidence of a “preference that can’t really be explained as being based on a good faith evaluation of proposals,” Jay said. “Companies are pretty conservative about raising bias claims, both because the standard of proof is so high and because a bias claim has a greater potential than most protest claims to disrupt the relationship with the agency.”

Jay also noted that the judge’s opinion in MetroIBR “has several examples of the kind of red flags that might warrant consideration of a bias claim. The most important is the statement by another person at the agency that the government official was exercising improper influence"—as the court noted, the official probably wouldn’t have said that if he thought the official’s actions were “based on a legitimate evaluation of the offerors,” Jay said.