Archives: Bid Protests

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Recent GAO Decision Highlights Possibility of Limited Evaluations in Best-Value Procurements

Offerors in best-value procurements are generally accustomed to a review of their complete proposals during the evaluation process.  The recent Government Accountability Office (GAO) decision in The COGAR Group, Ltd., B-413004 (July 22, 2016) highlights the ability of agencies to blend lowest-price technically-acceptable (LPTA) procurement principles into best-value procurements and thereby limit the scope of … Continue Reading

HHS Seeing Stars After Recent Loss in COFC Bid Protest

In Starry Associates, Inc. v. United States, No. 16-44C (Fed. Cl. July 27, 2016), the Court of Federal Claims (“COFC”) sharply criticized a Department of Health and Human Services (“HHS”) decision to cancel a solicitation following two bid protests at the Government Accountability Office (“GAO”).  The history and outcome of the case are exceptional among … Continue Reading

Federal Circuit Confirms that Award Term Extension Constitutes New Contract for Purposes of Bid Protest Jurisdiction

On July 12, 2016, in Coast Professional, Inc. et. al v. United States, No. 2015-5077 (Fed. Cir. July 12, 2016), the U.S. Court of Appeals for the Federal Circuit overturned a Court of Federal Claims (“CoFC”) decision, finding that the CoFC erred in ruling that it did not have bid protest jurisdiction over the award … Continue Reading

Post Hoc Proposal Reevaluation Exacerbates Error in Award Decision

Last Friday, the Government Accountability Office (“GAO”) released a public version of Delfasco, LLC, B-409514.3 (March 2, 2015), a decision noteworthy because of how the GAO dealt with an agency’s post hoc reevaluation of proposals.  The protestor, Delfasco, LLC (“Delfasco”), had an incumbent contract to sell dummy practice bombs to the U.S. Army, and it … Continue Reading

Supreme Court Clarifies Broad Scope of the “Rule of Two” in VA Contracting

Veteran-owned small businesses scored a win at the Supreme Court with a unanimous ruling in Kingdomware Technologies, Inc. v. United States.  The case involved a law that requires the Department of Veterans Affairs (the “VA” or the “Department”) to restrict competition to service-disabled or veteran-owned small businesses when a contracting officer determines that “at least … Continue Reading

The CBCA Chews Up Agency’s Erroneous Allegation that Contractor Is Getting a ‘Second Bite at the Apple’

At the intersection of bid protests and claims, in Optimum Services, Inc. v. Department of the Interior, CBCA 4968 (May 2, 2016), the Civilian Board of Contract Appeals (“CBCA” or “Board”) recently encountered the question of whether a decision by the Government Accountability Office (“GAO”) can preclude a contractor from later maintaining an appeal of … Continue Reading

Could Senate NDAA Spell the End of Incumbent Bid Protests?

Defense contractors seeking to protect their incumbent contracts by filing protests with the Government Accountability Office (GAO) may need to think twice if Congress enacts protest reform provisions included in the Senate Armed Services Committee’s recently released version of the National Defense Authorization Act (NDAA) for Fiscal Year 2017 (S. 2943). Under Sec. 821 of … Continue Reading

Hope for Offerors Who Win a Multiple-Award IDIQ Contract and Want to Protest an Improper Award to a Competitor

You just learned your company is one of several winners of a multiple-award IDIQ contract.  You also learned one of your competitors, which should have been ineligible, is also an awardee.  So, as things stand, you’ll have to split the contract — and compete for orders — with that competitor.  Can you file a protest … Continue Reading

GAO Rejects Timeliness Challenge Because “Essential Elements” of Protest Were Timely Filed

In REB ROWE Services, LLC; General Services Administration–Reconsideration, B-410001.6; B-410001.7 (Apr. 4, 2016), the Government Accountability Office (GAO) recently denied a request for reconsideration and clarified that protest grounds are interpreted broadly for timeliness purposes. This decision is a reminder for protestors and intervenors alike that seemingly untimely protest grounds may still be revived if … Continue Reading

Recent COFC Decision Underscores Need for Vigilance in Demonstrating Protest Standing

Many a bid protest has been dismissed for lack of standing.  But often that ostensible lack of standing has more to do with how the protest arguments are crafted than the facts underlying the procurement.  The Court of Federal Claims’s recent decision in Precision Asset Management Corp. v. United States (No. 15-1495) is a good … Continue Reading

GAO Protest Sustain Rate on the Rise

Through the first 5 months of FY 2016, GAO is sustaining protests at a 22% clip — a far higher rate than in recent years. GAO’s sustain rate considers only those protests that go to a decision on the merits, and reflects the percentage of those protests where GAO finds in favor of the protester. … Continue Reading

GAO Sustains Organizational Conflict of Interest Protest Of Veterans Affairs Task Order

On February 11, 2016, the Government Accountability Office publicly released its recommendation sustaining the protest by ASM Research of a task order award by the Department of Veterans Affairs (VA) to Booz Allen Hamilton.  GAO determined that the VA failed to adequately consider a potential organizational conflict of interest (OCI) of the awardee based on … Continue Reading

The Pitfalls of Changing a Pending Proposal

As acquisition timelines become increasingly protracted, contractors face the thorny question of if, when and how to advise a procuring agency of changes affecting an already submitted proposal.  In a series of decisions, the Government Accountability Office has held that contractors must inform the procuring agency of any “material change” to a proposal that occurs … Continue Reading

No Cost Contract Award is No Problem According to GAO

In a procurement that will result in the award of a fixed-price contract, contractors have the choice to price their offers below their expected costs. This approach can provide a substantial competitive advantage when a contractor believes the tangential benefits of a contract award will exceed the excess costs of performance. But how far below … Continue Reading

GAO Holds That Contractor’s Letters Are, In Fact, Agency-Level Protests

By sending a letter to the contracting officer, did I unwittingly file a pre-award, agency-level bid protest? That is a question a contractor might ask after reading Coulson Aviation (USA), Inc., B-411525 (Aug. 14, 2015), which reiterates the U.S. Government Accountability Office’s (“GAO”) view that a contractor’s subjective intent is not determinative as to whether its … Continue Reading

Recent CRS Report Reveals Long-Term Trends in GAO Protests

A recent study from the Congressional Research Service (CRS) identified several notable trends in bid protests before the Government Accountability Office (GAO) from FY 2001 to FY 2014.  Foremost among these trends are (1) a significant increase in bid protests filed over the past fourteen years but relative stability in filing rate over the past … Continue Reading

Supreme Court grants certiorari in VA procurement case

Last week the Supreme Court granted certiorari to hear arguments in Kingdomware Technologies, Inc. v. United States, Docket Number 14-916, an ongoing dispute over whether the Veterans Benefits, Health Care, and Information Technology Act (“the Act”), 38 U.S.C. § 8127, requires the Department of Veterans Affairs’ (“VA”) to set aside all of its procurements for … Continue Reading

Recent GAO Bid Protest Decisions Remind Contractors of Strict Filing Requirements

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 … Continue Reading

Contracting Officers Must Soon Separately Justify Awards to Offerors Proposing High-Percentage or “Pass-Through” Subcontracting

Over the past decade, Congress has focused on eliminating excessive “pass-through” charges—charges defined as overhead costs or profits passed to the Government by contractors adding negligible value over work done by lower-tier contractors.  The efforts began with the Post-Katrina Emergency Management Reform Act of 2006, which introduced limitations on tiered subcontracts after allegations that the … Continue Reading

An Acceptable Proposal: Set Appropriately High, Clear Standards for DoD’s Auditors and LPTA Competitions

On April 30, 2015, the House Armed Services Committee passed H.R. 1735, the National Defense Authorization Act for Fiscal Year (“FY”) 2016, with an amendment (Log #325rl) that could shape how the Department of Defense (“DoD”) acquires audit and audit readiness services for its Financial Improvement and Audit Readiness (“FIAR”) Plan. Under the FIAR Plan, … Continue Reading

Supreme Court’s Denial of Cert Means Questionable Future for Certain Cooperative Agreements

On April 20, 2015, the Supreme Court declined to review a March 2014 Federal Circuit decision holding that the Department of Housing and Urban Development (“HUD”) cannot use cooperative agreements—and instead must use procurement contracts—to administer funds under Section 8 of the United States Housing Act of 1937.  The case is CMS Contract Management Services … Continue Reading

Recent Application of “International Agreement” Exception Raises Questions Regarding Bid Protest Challenges to Foreign Military Sales

A recent opinion by the U.S. Court of Federal Claims (the “Court”)—Hyperion, Inc. v. United States, No. 14-870C, — Fed. Cl. — (Mar. 18, 2015)—is noteworthy for two reasons. First, it illustrates the “international agreement” exception to the Competition in Contracting Act (“CICA”). This exception permits the U.S. Government to award a contract to a … Continue Reading

Agency’s Continued Evaluation of Bids Does Not Violate CICA Stay

In a decision earlier this month, the Court of Federal Claims (“COFC”) found that an agency’s continued evaluation of bids during the pendency of a stay under the Competition in Contracting Act (“CICA”) neither violates CICA nor constitutes “a de facto override” of the stay.  The case is Caddell Construction Co. v. United States, Nos. … Continue Reading

GAO Sustains Protest Based On Improper Actions Of Acquisition Services Contractor

In an unusual case, the Government Accountability Office sustained a protest alleging that an acquisition services contractor had acted unilaterally to prevent an offeror from participating in a Department of State competition.  The decision serves as a reminder that procuring agencies bear responsibility for the actions of acquisition services contractors.… Continue Reading
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