AirBoss Defense Group v. United States: COFC Allows Permissive Intervention in Protest

AirBoss Defense Group, LLC, a supplier of personal protective equipment, challenged a procurement conducted by the United States Department of Health and Human Services through its Administration for Strategic Preparedness and Response. The procurement involved a request for proposals seeking Level 2 isolation gowns. After the agency selected New York Embroidery Studio, Inc. for award, AirBoss initiated a pre-award bid protest in the United States Court of Federal Claims.

Before filing in the Court of Federal Claims, AirBoss and several other offerors pursued protests at the Government Accountability Office. During that process, the agency undertook corrective action, reconsidered its technical evaluations, and amended the solicitation. Following those steps, the procurement returned to a pre-award posture with multiple offerors remaining in the competitive range.

Motion to Intervene by a Competing Offeror

After the bid protest was filed in the Court of Federal Claims, New York Embroidery Studio, Inc. sought to intervene. It requested intervention as of right under Rule 24(a) of the Rules of the Court of Federal Claims or, alternatively, permissive intervention under Rule 24(b).

New York Embroidery Studio asserted that it had a substantial interest in the protest because it had previously been selected for award and could be competitively harmed if AirBoss prevailed. It also argued that its interests were not fully aligned with those of the government and that it needed to protect proprietary proposal information.

AirBoss opposed intervention as of right. AirBoss maintained that the procurement was in a pre-award posture and that New York Embroidery Studio was one of several offerors, rather than a current awardee. AirBoss further asserted that any potential competitive harm was speculative and insufficient to support mandatory intervention.

Standards Governing Intervention

The court reviewed the requirements for intervention as of right. To qualify, an applicant must demonstrate a legally protectable interest in the subject matter of the litigation, show that the interest would be impaired if intervention were denied, and establish that existing parties could not adequately represent that interest.

The court also reviewed the standard for permissive intervention. Under that framework, the court may allow intervention when the applicant’s position shares common questions of law or fact with the main action and when intervention would not unduly delay or prejudice the original parties.

Court’s Analysis of Intervention as of Right

The court concluded that intervention as of right was not warranted. It determined that New York Embroidery Studio did not have a sufficiently direct interest in the outcome of the protest. The court emphasized that the procurement had reverted to a pre-award posture and that New York Embroidery Studio was not the current awardee.

The court explained that an interest based solely on the possibility of increased competition or lost opportunity was too attenuated to support mandatory intervention. Prior decisions had rejected intervention where the asserted interest depended on contingent competitive outcomes rather than a direct legal effect of the judgment.

The court also found that the existence of a protective order addressed concerns regarding proprietary or confidential information.

Court’s Analysis of Permissive Intervention

Although intervention as of right was denied, the court granted permissive intervention. The court determined that New York Embroidery Studio’s participation would involve common questions of law and fact arising from the same procurement and administrative record.

The court rejected a narrow interpretation of permissive intervention that would require the intervenor to assert a formal claim or defense. It concluded that New York Embroidery Studio could offer a relevant perspective as an offeror affected by the procurement process and that its participation would not unduly delay or prejudice the proceedings.

The Court’s Ruling

The Court of Federal Claims denied intervention as of right and granted permissive intervention. The court allowed New York Embroidery Studio to participate in the bid protest on a permissive basis.

Assistance With Bid Protest Matters

If you’re involved in a federal procurement dispute or considering a bid protest, Whitcomb Selinsky PC handles matters involving government contracting and bid protests. Reach out to our team to schedule a consultation and learn how our team can assist with your situation.