Not every plaintiff gets invited to the protest party. In this edition of the Bid Protest Beat, Partner Stephanie Wilson analyzes a recent decision from the United States Court of Federal Claims addressing the issue of standing and breaks down why certain protestors find themselves ineligible to challenge a disappointing award decision.
International Business Sales & Services Corp and Fish and Lynker Ocean Alliance Team Partners LLC v. United States, Nos. 26-401, 26-425 (June 2026)
The NOAA: National Oceanic & Atmospheric Administration (NOAA) issued two small business set-aside solicitations, each providing for multiple-award, indefinite delivery indefinite quantity (“IDIQ”) contracts. Referred to as “ProTech 2.0 Oceans” and “ProTech 2.0 Fisheries,” both solicitations used the same evaluation criteria.
Prior to the solicitations, small business @Orchard, LLC (@Orchard) and large business International Business Sales & Services Corporation (IBSS) formed a mentor-protégé joint venture called 1stMission LLC (1stMission). 1stMission submitted proposals in response to both the ProTech 2.0 Oceans and ProTech 2.0 Fisheries solicitations from NOAA.
After submitting the proposals and before contracts were awarded, IBSS and @Orchard terminated their mentor-protégé relationship with the SBA. IBSS informed NOAA that the relationship had been dissolved and that it would not perform any potential contract award to 1stMission. However, 1stMission was still a separate legal entity, and NOAA awarded it both the ProTech 2.0 Oceans and a ProTech 2.0 Fisheries contracts.
After 1stMission was dissolved as an entity, NOAA attempted to novate 1stMission’s task orders to @Orchard, initially inaccurately citing 13 CFR § 125.9(h) as the basis for doing so. After IBSS and FLOAT submitted their bid protest pre-filing notices, NOAA took corrective action to correct its reference for the novation from 13 CFR § 125.9(h) to FAR Subpart 42.12.
IBSS and FLOAT both filed complaints at the U.S. District Court of Federal Claims (COFC) protesting the awards to 1stMission. COFC consolidated the protests and @Orchard filed an unopposed motion to intervene. Both protesters made the same two arguments:
- They argued that “it was arbitrary, capricious, and an abuse of discretion for [NOAA] to proceed with issuing an award to 1st Mission, having been informed by IBSS that the basis of 1stMission’s proposal was no longer true or valid.”
- NOAA’s improper novation of the contract award to @Orchard under 13 CFR § 125.9(h) was inapplicable.
Both @Orchard and the government moved to dismiss the complaints under Rule 12(b)(1) and (b)(6), lack of jurisdiction and lack of statutory standing under 28 U.S.C. § 1491(b)(1), respectively.
COFC dismissed the protests, determining that neither IBSS nor FLOAT had standing because neither was considered an “interested party” under 28 U.S.C. § 1491(b)(1). As both the Fisheries and Oceans solicitations were small business set-asides, IBSS itself was not eligible to submit bids for award consideration since it was a large business, and there was no relief it could have been granted from a protest. The fact it was part of a joint venture that did submit a bid was “immaterial” to the court, because it was 1stMission—not IBSS—that was the actual bidder and IBSS was not an actual or prospective bidder for the contracts.
Although FLOAT did submit a proposal for ProTech 2.0 Fisheries, it was not considered an interested party because it did receive an award for the ProTech 2.0 Fisheries contract. Therefore, FLOAT was not “an actual, but disappointed, offeror” for the specific award in question – i.e., the award to 1stMission – since ProTech 2.0 Fisheries was a multiple-award contract.
COFC also dismissed the second protest ground, challenging the novations, on the basis that a novation is a “matter of contract administration,” that is outside the Court’s bid protest jurisdiction.
What Can Government Contractors Learn From This?
Bid protests are powerful tools, but they cannot resolve every dispute arising from a contract award. IBSS and FLOAT’s arguments that the government acted improperly were never considered by COFC because both protestors lacked standing. Since neither qualified as an “interested party,” the protest was dismissed even before the court considered the merits.
Have questions about how to help your govcon business navigate the bid protest process? Contact Stephanie Wilson at swilson@berenzweiglaw.com.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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