Bid Protests

As previously noted, although agency organizational conflict of interest (OCI) investigations are highly discretionary, that discretion is not boundless.  GAO’s recent sustain of an impaired objectivity OCI claim in Castro & Company, LLC, B-423689, Nov. 13, 2025, underscores that point, and highlights the need for contracting officers…

Continue Reading “Show Don’t Tell” — GAO Stresses the Importance of Adequately Documenting OCI Investigations

As part of the Trump Administration’s Revolutionary FAR Overhaul[1] (“RFO”), the FAR Council has released a model deviation for FAR Part 33 – Protests, Disputes, and Appeals, which includes changes that seem intended to make agency-level protests more appealing to disappointed offerors.  It remains to be seen whether these proposed changes will have the desired effect, particularly in instances where a protester wishes to subsequently re-file at GAO.Continue Reading Revolutionary FAR Overhaul Seeks to Make Post-Award, Agency-Level Protests More Enticing

This blog previously covered the Federal Circuit’s decision in Percipient.ai, Inc. v. United States, which addressed bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”), and seemed to potentially open the door to a new category of protests.  Now, in an en banc ruling, the Federal Circuit vacated that decision and reached a different conclusion on bid protest standing.  The Federal Circuit left the jurisdictional questions unresolved, but even if future decisions construe COFC’s jurisdiction broadly, the Federal Circuit’s decision on standing will likely limit the universe of new protests that might otherwise result from such a broad construction of jurisdiction.    Continue Reading En Banc Decision in Percipient.ai, Inc. v. United States:  Federal Circuit Holds That Only Actual or Prospective Bidders or Offerors Have Bid Protest Standing Under Tucker Act

On August 6, 2025, the Federal Acquisition Regulation (“FAR”) Council issued a final rule clarifying that contractors do not need to maintain a continuous registration in the System for Award Management (“SAM”) in the time between submitting a bid or proposal and contract award.  The final rule makes no changes to the interim rule issued in November 2024, which was immediately effective at that time.  This important clarification provides some flexibility to contractors to protect their contract awards against protests based on an administrative lapse.Continue Reading FAR Council Clarifies SAM Registration Timing for Bidders

As we have covered on this blog, the rules governing the timing for bid protests at the Government Accountability Office (“GAO”) and Court of Federal Claims (“COFC”) can be both complex and unforgiving.  But a recent COFC decision, Starside Security & Investigation, Inc. v. United States, found the Competition in Contract Act’s (“CICA”) deadline to obtain an automatic stay during a GAO protest to be subject to equitable tolling (i.e., effectively extended) — at least in the circumstances of that case.Continue Reading COFC Decision Allows for Equitable Tolling of CICA Deadline to Obtain an Automatic Stay During a GAO Protest

A pair of recent Government Accountability Office (GAO) bid protest decisions addressing impaired objectivity organizational conflicts of interest (OCIs) highlight the fact-specific and highly discretionary nature of a contracting officer’s OCI investigation, as well as the important role that contractors themselves can play in supporting such an investigation.  We discuss these two protests and the key takeaways for contractors below.Continue Reading A Tale of Two Impaired Objectivity Investigations:  Key Takeaways for Contractors Navigating Potential Organizational Conflicts of Interest

In a recent bid protest decision— Digital Force Technologies, Inc., B-423319 (May 19, 2025), the Government Accountability Office (“GAO”) denied a protest of a Small Business Innovation Research (“SBIR”) program Phase III sole source solicitation issued by the Air Force, concluding that the Air Force had properly procured work from a successor-in-interest entity that derives from, extends, or completes efforts under prior SBIR contracts.  Notably, GAO found that a single SBIR-derived component of the overall system to be procured can be a sufficient link to prior SBIR work for an agency to exercise its authority to issue a sole source SBIR Phase III contract.

This decision builds on previous GAO decisions in ASRC Federal Data Network Technologies, LLC, B-418765, Aug. 28, 2020, 2020 CPD ¶ 339 (“ASRC II”)[1] and Toyon Research Corporation, B-409765, Aug. 5, 2014, 2014 CPD ¶ 235, in which GAO had explained that “it must be evident that the requirements for the second effort incorporated original concepts, findings, ideas, or research results that were generated in the first.”[2] 

This blog post briefly summarizes background on the SBIR program and requirements for Phase III sole source awards, as backdrop to GAO’s findings in Digital Force Technologies.  The post then analyzes particular aspects of GAO’s decision suggesting an expansion of existing case law in this area and concludes with a brief discussion of practical considerations for government contractors.Continue Reading Digital Force Technologies, Inc.:  A “SBIR-Derived Component” Can Be Sufficient For SBIR Phase III

Yesterday, the FAR Council issued a proposed rule that would update the U.S. Government’s approach to organizational conflicts of interest (OCIs).  While the proposed rule is not finalized and may change in response to forthcoming comments from interested parties, the proposed rule contemplates major changes to the FAR’s existing framework in this area.  In this post, we summarize the background leading up to the proposed rule and highlight key areas of proposed change.

Background

Continue Reading The Proposed FAR Rule on OCIs: Big Changes May Be Coming

In what has become an annual tradition, this year’s National Defense Authorization Act (“NDAA”) — just passed by the Senate and sent to the President for signature — contains a provision addressing bid protests at the Government Accountability Office (“GAO”).

Likely of greatest interest to contractors is that Section 885 contains language increasing the dollar threshold for protests of task order awards under a Department of Defense indefinite-delivery, indefinite-quantity (“IDIQ”) contract, from $25,000,000 to $35,000,000.  The increased threshold would further limit the universe of task orders that can be protested under DoD IDIQ contracts. 

Section 885 also requires GAO to prepare a “Proposal for Payment of Costs for Certain Government Accountability Office Bid Protests.”  This provision is likely part of the Department of Defense’s years-long campaign to impose a “loser pays” penalty on protesters in an effort to curb what it says is a problem of frivolous protests — even though GAO’s annual bid protest statistics show that the majority of protests result in relief to the protester, as evidenced by an effectiveness rate of 52%.  DoD’s effort has dated back at least to the Fiscal Year 2018 NDAA, which included an analogous pilot program proposal. More recently, as discussed in our August 21, 2023, post entitled “Should Bid Protest Losers Pay?” Section 804 of the House-enacted NDAA for Fiscal Year 2024 included a pilot proposal for a “loser pays” program.Continue Reading NDAA Increases Threshold for Task Order Protests and Directs Another Study on Whether Losing Protesters Should Pay