GAO recently released new procedures for filing and handling bid protests involving classified material. The procedures emphasize that classified material cannot be filed on GAO’s Electronic Protest Docketing System (EPDS) under any circumstances. Instead:
Continue Reading GAO Releases New Procedures for Classified Bid Protests
In legislation passed last week, Congress directed the FAR Council to issue new rules for contractor organizational conflicts of interest. The legislation itself did not create any new OCI standards, but provided factors for the council to consider, focusing on conflicts of interest for companies that act as consultants to the government.
It is unclear at this point what the precise nature and extent of the resulting changes to the OCI rules may be. But the new law makes it likely that there will be some fairly significant revisions. Congress set a deadline of Summer 2024 for the new regulations, so the contracting community should be on the lookout for a notice of proposed rulemaking in the coming months, and should not hesitate to submit comments for the government’s consideration.
On the eve of deciding an $82 billion dollar protest dispute, GAO dismissed a string of protests without reaching the merits because another contractor filed a protest of the same procurement at the Court of Federal Claims. AECOM Management Services, Inc., B-417506.2 et al., Aug. 7, 2019.
Continue Reading Hit the Road, Jack: GAO Dismisses Multiple LOGCAP V Bid Protests Just Two Days Before the Statutory Deadline for Decision, Highlighting the Perils and Breadth of the “Court of Competent Jurisdiction” Rule
As the old adage goes, you can’t unring a bell. But GAO recently concluded that it was rational of an agency to do just that when taking corrective action in a bid protest.
Continue Reading Turns Out You Really Can Unring a Bell — GAO Upholds Agency Decision to Ignore Vendors’ Updated Quotations and Evaluate Their Original Submissions Instead
Organizational conflicts of interest (OCIs) are perpetually thorny issues in federal procurement that contracting officers are required to identify and evaluate “as early in the acquisition process as possible.”[1] Although the Government Accountability Office (GAO) has identified several OCI categories,[2] two recent decisions highlight so-called impaired objectivity OCIs, which arise when a contractor’s ability to provide objective advice or recommendations to the government will be undermined by competing interests. The two decisions serve as an important reminder of what does — and does not — qualify as meaningful consideration by the contracting officer in such situations, and how prospective contractors can assist in identifying and mitigating such OCIs.
Continue Reading A Tale of Two Protests: Recent GAO Decisions Highlight Impaired Objectivity OCIs
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.
In three related bid protest decisions made public last week, the Government Accountability Office (“GAO”) reaffirmed the principle that agencies must meaningfully consider price when making best value tradeoff decisions. GAO sustained the protests, stressing that merely paying lip service to price while selecting a more expensive, higher-rated offeror is not sufficient — agencies must provide a rational explanation for why they have decided to pay a premium for the awardee’s technical superiority.
Continue Reading “Hey Big Spender . . .”: GAO Reiterates That Agencies Must Meaningfully Consider Price In Best Value Tradeoffs
With the General Services Administration’s (“GSA”) recent issuance of a prospectus in connection with its announced plan to acquire new office space for the Securities and Exchange Commission (“SEC”) in lower Manhattan, now is a good time for a quick refresher about the congressional lease approval process under 40 U.S.C. § 3307, which potentially gives rise to a pre-award bid protest claim that is viable at the Government Accountability Office (“GAO”) but likely not at the Court of Federal Claims.
Continue Reading Put It In Prospectus: Reviewing the Congressional Lease Approval Process in Light of the Upcoming Lower Manhattan SEC Lease
Non-incumbent awardees who are defending their awards against a bid protest often view sole-source “bridge” contracts issued to the incumbent as something akin to death and taxes — an unpleasant, yet seemingly inescapable fact of life. But a recent Court of Federal Claims decision offers an important reminder that these types of contracts are not inviolate. They can be successfully protested themselves when the need to sole-source arises from a lack of advance planning on the part of the agency.
Continue Reading A Bridge Too Far — Court of Federal Claims Sustains Protest of Fifth (Yes, Fifth) Sole-Source Bridge Contract Awarded to Incumbent During Protracted Bid Protest Litigation