Limited Remedies For Concession-Contract Protesters

In a pair of recent decisions, the U.S. Court of Federal Claims clarified the source of its jurisdiction over bid protest actions that involve pure concession contracts as well as the scope of potential relief available to concession-contract protesters. See Jordan Pond Company, LLC v. United States, Case No. 13-913 C (Apr. 8, 2014); Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6 (2013).

These cases make clear that the jurisdictional basis for bid protests involving pure concession contracts is Section 1491(a)(1) of the Tucker Act, which permits suits alleging breach of the government's implied duty to fairly and honestly consider proposals, and not Section 1491(b)(1), which is the source of the court's jurisdiction over challenges to traditional procurement contract competitions.

The identity of the statutory source of the court's jurisdiction over concession-contract protests is significant because it dictates the scope of potential remedies available to protesters. Given that the court now has held twice that its jurisdiction over concession-contract protests arises under Section 1491(a)(1), and not Section 1491(b)(1), it would appear to be the case that concession-contract protesters generally are not entitled to declaratory or injunctive relief. Instead, concession-contract protesters generally will be limited to recovering bid preparation and proposal costs.

The contract at issue in Jordan Pond was a 10-year concession contract to provide various concession services at Acadia National Park in Maine, including a restaurant and shop at Jordan Pond House. Jordan Pond had been the concessioner at Acadia since 1932, and its most recent concession contract was due to expire at the end of December of 2012.1 In July 2012, the U.S. Department of the Interior, National Park Service issued a prospectus, seeking offers for the next 10-year concession contract at Acadia. The Park Service received proposals in November 2012. In September 2013, the Park Service advised Jordan Pond that it had selected another company for award.

Thereafter, Jordan Pond filed a bid protest with the U.S. Court of Federal Claims, challenging various aspects of the Park Service's evaluation of the offerors' proposals. Before turning to the merits of Jordan Pond's claims, the court analyzed the source of its jurisdiction in this particular case. The court's jurisdictional analysis relied heavily on its earlier analysis in Eco Tour.2

In Eco Tour, the court...