bid protests

A long-standing dispute over the approach to country of origin determinations under the Trade Agreements Act (“TAA”) may soon be resolved, as the Federal Circuit recently heard oral argument in one of two cases presently examining key aspects of this statute.  Among other questions presented, the court may decide the standard for determining whether a product may be considered a U.S.-made end product — a question that could have far reaching implications for product manufacturers across all industries.
Continue Reading How Much Is Enough? Federal Circuit Appeal May Decide Level of U.S. Manufacturing Required Under the TAA

Federal contractors usually think of two bid protest forums: the Government Accountability Office and the U.S. Court of Federal Claims.  But another protest forum often flies under the radar: the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition — aka the ODRA.

In a continuation of our blog post earlier this year, we take

Many contractors are familiar with the well-established processes of federal bid protests.  Less known is the dizzying variety of procedures applicable to state and local bid protests.  Each jurisdiction has its own rules — in terms of timing, protestable issues, standard of review, document production, and more.  A fundamental tenet in one jurisdiction may be completely inapplicable in another.

What does that mean for a contractor looking to grow its state and local business?  Be prepared:  Become familiar with the rules and practices for bid protests in the relevant jurisdiction prior to the award decision.  When the award decision is made, you’ll be in a better position to assess whether to protest and, if so, when and how to do it.

Here are a few issues that are often helpful to consider while preparing for a potential state or local protest:Continue Reading The Topsy-Turvy World of State and Local Bid Protests

In a proposed rule issued earlier this month, the Department of Defense (“DoD”) seeks to incorporate into the Defense Federal Acquisition Regulations Supplement (“DFARS”) restrictions on the use of the lowest price technically acceptable (“LPTA”) source selection method from the National Defense Authorization Act (“NDAA”) for Fiscal Years 2017 and 2018.  This proposed rule makes clear that these NDAA-imposed restrictions are not going away any time soon, and that DoD contracting officers need to engage in a thorough and reasoned analysis before conducting an LPTA procurement.
Continue Reading Lowest Price Technically Acceptable Solicitations No Longer Acceptable? Reviewing the Department of Defense’s Proposed Changes to the DFARS

Many government contractors are part of corporate families consisting of multiple corporate entities.  One entity may be named as the official contracting party, but use the resources of affiliates, parents, or subsidiaries during performance.  The distinction between those members of the corporate family may not seem important in terms of day-to-day operations — in fact, the synergy and seamlessness between the corporate entities may be a selling point.  Two recent GAO decisions make clear, however, that when it comes to bidding on government work, it is important to precisely identify which corporate entity is going to do what and which corporate entity has which resources.

In BDO USA, LLP and Intermarkets Global USA, LLC, GAO’s decisions turned on a perceived misidentification of corporate entities at some point in the procurement process.  In BDO, the problem occurred during bid submission.  In Intermarkets, the problem occurred when the protest was filed.Continue Reading Still Just A Rat In A CAGE: Recent GAO Decisions Underscore the Need for Precision in Identifying Corporate Entities During the Procurement Process

Last month, the Government Accountability Office (GAO) issued a bid protest decision regarding the application of Buy American Act (BAA) requirements to a solicitation for construction.  In this decision, GAO rejected the agency’s determination that an offeror’s bid was nonresponsive because the offeror failed to provide certain required information for the evaluation of a potential BAA exception.  A summary of the decision and our takeaways are below.
Continue Reading Pragmatism Wins the Day in GAO Buy American Protest

For the first time in several years, the version of the FY 2019 National Defense Authorization Act (NDAA) that just passed the Senate does not contain any major reforms to limit bid protests.  But the bill the Senate sent to the conference committee process does contain two provisions aimed at bid protests.  Although they are minor, they portend and may lay the groundwork for future attempts to change the protest process.  Both provisions call for further study of issues addressed in the RAND Corporation’s January 2018 bid protest report.
Continue Reading Senate Largely Leaves Bid Protests Alone in Passed Version of FY 2019 NDAA After Threatening Major Revisions

On April 2, 2018, GAO issued a final rule revising its existing regulations to implement a number of changes to its bid protest process.  The new rule becomes effective on May 1, 2018.

Several of these changes implement requirements in Section 1501 of the Consolidated Appropriations Act for FY2014 (“Act”), which directed GAO to institute an electronic filing system and authorized GAO to charge a filing fee to cover the cost of that electronic filing system.  But the revisions are not limited to those two issues.

Here are the highlights:Continue Reading GAO Debuts New Protest Procedures Effective May 1, 2018

Last week, the RAND Corporation published a report entitled “Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, And Drivers.”  In it, RAND analyzed the prevalence and impact of bid protests of U.S. Department of Defense (“DoD”) acquisitions, and concluded that DoD bid protests are both “exceedingly uncommon” and, on the whole, effective in prompting DoD to take remedial actions to address issues identified in the protests.  The report, which was commissioned by Congress in Section 885 of the 2017 National Defense Authorization Act (“NDAA”) Pub. L. No. 114-238, is expected to be a driver of changes to the protest process, and includes several recommendations counseling against significant changes that appear to be favorable to protesters.
Continue Reading RAND Report Concludes That Protests of Department of Defense Procurements Are Rare, Effective

On Monday, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2017.  Most notably, the effectiveness rate hit 47%.  The effectiveness rate looks at all cases filed, and measures the percentage of cases in which a protester obtains some relief, whether through a sustain by GAO or voluntary corrective action by the agency.

That’s right:  Protesters obtained relief in almost half of all protests last year.  And this year’s 47% effectiveness rate is a new all-time high — continuing a steady upward march over the past several years.  When GAO began measuring the sustain rate in 2001, it was just 33%.  By 2008, it had risen to 42%.  It then held pretty steady through 2012, but has been rising since:Continue Reading GAO’s Annual Report: Protests Are Down, But Their Effectiveness Is Up