Posted

No Discussion Needed: Court of Federal Claims Dismisses Bid Protest in Helicopter Training Case

by

In System Studies & Simulation, Inc. v. United States, U.S. Court of Federal Claims, Nos. 24-1429, et al. (March 4, 2025)​, three disappointed offerors, including System Studies & Simulation (S3), protested the U.S. Army’s decision not to conduct discussions before awarding a contract for Advanced Helicopter Flight Training Support (AHFTS) services. The protesters argued that the Army violated Defense Federal Acquisition Regulation Supplement (DFARS) § 215.306(c), which states that discussions “should” be held for procurements over $100 million​.

The Decision
The U.S. Court of Federal Claims dismissed the protest, ruling that:

  1. Waiver Rule Applies: Under Blue & Gold Fleet, L.P. v. United States, protesters must challenge solicitation defects before bid submission. Because the solicitation warned that the Army reserved the right to award without discussions, the court held that the plaintiffs waived their right to protest this issue later​.
  2. Discussions Were Not Required: While DFARS § 215.306(c) states that discussions “should” be conducted, the court emphasized that the regulation does not create a mandatory requirement, especially when the solicitation explicitly stated that the Army might not hold discussions​.

Key Takeaways for Contractors

  1. Protest Early: If a solicitation suggests discussions may not happen, or if there is conflicting language about whether discussions may happen, contractors must challenge this ambiguity before the proposal deadline—or risk waiving their right to protest later.
  2. Discussions Are Not Guaranteed: Even for contracts over $100M, agencies retain discretion over whether to hold discussions, particularly if the solicitation incorporates FAR 52.215-1, which allows for awards without discussions.
  3. Regulatory Language Matters: The difference between “shall” and “should” in the DFARS and FAR can make or break a protest—contractors should consult legal counsel to determine whether an agency is required to take, or not take, a particular action during the evaluation process.

RELATED ARTICLES

Bid Protest Deadlines and Pitfalls: What You Need to Know