A pair of recent bid protest decisions serve to remind contractors of the strict requirements for filing of protests before the Government Accountability Office (GAO).  While many contractors are generally aware of the rapidly expiring filing periods of post-award bid protests, and jurisdictional limits on task order protests, even the most seasoned contractors can confuse the labyrinthine web of GAO filing requirements, as shown by these recent cases.

In Gorod Shtor, B-411284 (May 22, 2015), Gorod Shtor protested the award of an indefinite-delivery, indefinite-quantity contract to provide the U.S. Embassy in Moscow with draperies.  Gorod Shtor received the notice of award on March 10, requested an agency debriefing, and received a written debriefing on March 17.  Gorod Shtor then filed its protest on March 27.

Gorod Shtor was presumably acting under the belief that a protest could be timely filed within 10 days of the date of the debriefing, pursuant to 4 C.F.R. § 21.2(a)(2).  However, the bid protest regulations state that 10-day post-debriefing filing period applies when only a debriefing is required.  Because this procurement was structured as a commercial item acquisition with simplified procedures under FAR Part 13, Gorod Shtor was not entitled to a “required” debriefing.  See FAR 13.106-3(d) (“If a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award decision shall be provided.”).  Consequently, the 10-day period to file the protest began from the date of the award notice, not the date of the written debriefing, and the protest was dismissed as untimely.

The Gorod Shtor decision reminds disappointed offerors that debriefings are not required for all procurements.  In addition to simplified acquisitions under FAR Part 13, acquisitions under FAR Part 8, the Brooks Act, and Broad Agency Announcements are among those that do not require debriefings.  Disappointed offerors should consult with their counsel before the award decision to ensure that they understand the timing requirements for protests related to a particular procurement.

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In another recent decision, Karthik Consulting, LLC, B-411496 (May 26, 2015), Karthik Consulting protested the Navy’s award of a SeaPort-E task order for administration of two student internship programs.  The SeaPort-E task order report announced that the value of the task order at over $33 million; however, the Navy stated that $30 million of the figure was for cash stipends provided to the interns participating in the program and therefore the actual value of the task order was less than $2 million.  The Navy argued that GAO lacked jurisdiction over this protest as the task order was valued at under $10 million.  See 10 U.S.C. § 2304c(e)(1).

GAO agreed with the Navy and dismissed the protest.  Although the awardee’s proposed price was well over $10 million, GAO held “that there are circumstances in which the successful contractor’s proposed price is not the sole determinant of the value of an order” and instead that “in certain cases, the operative inquiry concerns the value of the goods or services being provided, and for which the contractor is, in fact, being compensated, under the order.”  (citing Qwest Gov’t Servs., Inc., B-404845 (Mar. 25, 2011)).  Without the pass-through stipends provided to the interns, the value of the task order was under $10 million, leaving GAO without jurisdiction over the protest.  Disappointed offerors on task order awards should be mindful of the Karthik Consulting decision in assessing whether protest jurisdiction exists for specific task order awards.

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Photo of Raymond Biagini Raymond Biagini

A distinguished counselor and litigator, Raymond Biagini has risen to national prominence in a number of high-profile tort cases, defending commercial and government contractors in:

  • “Contractor on the Battlefield” tort litigation;
  • the Exxon Valdez litigation;
  • the Cell Phone Radiation Hazards lawsuits;
  • the “Fen-Phen”
…

A distinguished counselor and litigator, Raymond Biagini has risen to national prominence in a number of high-profile tort cases, defending commercial and government contractors in:

  • “Contractor on the Battlefield” tort litigation;
  • the Exxon Valdez litigation;
  • the Cell Phone Radiation Hazards lawsuits;
  • the “Fen-Phen” litigation;
  • the nationwide Repetitive Stress Injury suits;
  • claims arising out of “friendly fire” accidents during Operation Desert Storm; and
  • “war crimes” allegations filed against manufacturers of military weapons systems sold to Israel.

Ray is widely recognized for his expertise in defending “contractors on the battlefield” in tort litigation, and he has established ground-breaking legal principles at the federal appellate level which immunize defense contractors from tort liability arising out of combatant scenarios.

Ray also has an extensive product liability prevention practice, counseling companies on mechanisms for reducing their tort exposure for products and services sold to government and commercial entities. He is significantly involved in counseling companies selling “homeland security” products and services, such as chemical/biological detection devices, perimeter security systems, biometric identity products, and airport security systems. Ray conceptualized and authored key provisions of the SAFETY Act, a new federal statute that is part of the Homeland Security Act of 2002. The SAFETY Act protects companies from tort lawsuits arising out of the sale of homeland security products and services. 

Ray has represented some of the world’s largest aerospace, defense and pharmaceutical companies, including Kellogg Brown & Root, Lockheed Martin, BAE SYSTEMS, Boeing, Textron, SAIC, Teledyne, Eon Labs, Unisys, and Philips Electronics. He is a frequent public speaker on risk mitigation techniques.

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Photo of Nooree Lee Nooree Lee

Nooree advises government contractors and financial investors regarding the regulatory aspects of corporate transactions and restructurings. His experience includes preparing businesses for sale, negotiating deal documents, coordinating large-scale diligence processes, and navigating pre- and post-closing regulatory approvals and integration. He has advised on…

Nooree advises government contractors and financial investors regarding the regulatory aspects of corporate transactions and restructurings. His experience includes preparing businesses for sale, negotiating deal documents, coordinating large-scale diligence processes, and navigating pre- and post-closing regulatory approvals and integration. He has advised on 35+ M&A deals involving government contractors totaling over $30 billion in combined value. This includes Veritas Capital’s acquisition of Cubic Corp. for $2.8 billion; the acquisition of Perspecta Inc. by Veritas Capital portfolio company Peraton for $7.1 billion; and Cameco Corporation’s strategic partnership with Brookfield Renewable Partners to acquire Westinghouse Electric Company for $7.8+ billion.

Nooree also counsels clients navigating the Foreign Military Sales (FMS) program and Foreign Military Financing (FMF) arrangements. Nooree has advised both U.S. and ex-U.S. companies in connection with defense sales to numerous foreign defense ministries, including those of Australia, Israel, Singapore, South Korea, and Taiwan.

Over the past several years, Nooree’s practice has expanded to include advising on the intersection of government procurement and artificial intelligence. Nooree counsels clients on the negotiation of AI-focused procurement and non-procurement agreements with the U.S. government and the rollout of procurement regulations and policy stemming from the Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence.

Nooree maintains an active pro bono practice focusing on appeals of denied industrial security clearance applications and public housing and housing discrimination matters. In addition to his work within the firm, Nooree is an active member of the American Bar Association’s Section of Public Contract Law and has served on the Section Council and the Section’s Diversity Committee. He also served as the firm’s Fellow for the Leadership Council on Legal Diversity program in 2023.

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