On Thursday, GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2023, which provides bid protest statistics and other interesting information regarding GAO’s protest system.
As we have previously covered on this blog, challenges to the terms of a solicitation typically must be raised in a bid protest brought prior to proposal submission. The Government Accountability Office recently sustained such a pre-award protest in Selex ES, Inc., B-420799 (Sept. 6, 2022). …
On March 18, 2022, the Department of Defense published a final rule in the Defense Federal Acquisition Regulation Supplement implementing its “enhanced” debriefing process. That process originated in the National Defense Authorization Act for Fiscal Year 2018 and had previously been implemented via a class deviation.
The DOD enhanced debriefing process — which applies to procurements under FAR Part 15, and to task order competitions under FAR 16.505 — has two hallmarks:…
[This article was originally published in Law360.]
Amidst the whirlwind of M&A activity in the government contracts industry, a recent bid protest decision from the Government Accountability Office (GAO) highlights the importance of proper planning to protect prime contract proposals during M&A and other corporate transactions. Last month, GAO denied a protest from ICI Services Corporation (ICI), which challenged the U.S. Navy’s decision to award a task order to Serco, Inc. (Serco) under the SeaPort Next Generation (SeaPort-NxG) vehicle. Although ICI raised a “multitude of challenges,” GAO focused on what it considered the gravamen of ICI’s protest — that Serco was ineligible for award because it allegedly was not a complete successor-in-interest to the Naval Systems Business Unit (NSBU) of Alion Science and Technology Corporation (Alion). Serco had acquired the NSBU from Alion in July 2019, and has been operating the NSBU in the several months since then.
For years, contractors have faced an amalgamation of protest decisions assessing the impact of transactions on proposals for new prime contracts. The recent ICI decision provides some additional guidance and, more importantly, underscores GAO’s stated intent that its decisions not frustrate pending proposals merely because a corporate transaction has taken place or is expected to take place, but instead ensure that the procuring agency has reasonably considered the impact of the transaction and concluded that the resulting contract will be performed in materially the same way as described in the proposal. In the absence clear guidance in the Federal Acquisition Regulation (FAR) on the treatment of bids in connection with a corporate transaction, GAO’s decision in ICI offers some clarity for contractors and a framework for agencies when assessing the impact of a transaction. Although every transaction and proposal is unique, the ICI decision highlights some key considerations for contractors.
Continue Reading Buying a Business Without Losing the Pipeline: Further Guidance for Protecting Proposals
Federal civilian agencies will now face new restrictions on when and how they can use Lowest Price Technically Acceptable source selection procedures. A new rule in the Federal Acquisition Regulation is the latest in a series of measures aimed at regulating the use of LPTA source selection procedures. The new rule implements an October 2019 proposed rule and takes effect on February 16, 2021.
Continue Reading New FAR Rule Continues Shake-Up of LPTA Procurements
Although it is usually good news for a protester when an agency takes corrective action, the corrective action sometimes fails to adequately address the protest grounds. When this occurs, a protester may wish to file a new protest challenging the agency’s corrective action. The question of when to file a corrective action challenge is often tricky, however — and a misstep can result in dismissal. GAO recently clarified that timing in Computer World Services Corporation.
Continue Reading GAO Clarifies Timing for Corrective Action Protests
It’s a big deal in the government contracts community whenever the Federal Circuit weighs in on a bid protest. And it is a particularly big deal when the Federal Circuit issues a split opinion in a bid protest. That’s what happened last week in Inserso Corporation v. United States (No. 2019-1933), where the Federal Circuit issued a split opinion denying a protest as waived under Blue & Gold.
Continue Reading Federal Circuit Splits on Blue & Gold Question in Inserso
As previously discussed on this blog, the National Defense Authorization Act for Fiscal Year 2017 and the NDAA for Fiscal Year 2018 imposed new limitations on when the Department of Defense can use Lowest Price Technically Acceptable source selection methods. Just last month, the Department of Defense issued a final rule amending the Defense Federal Acquisition Regulation Supplement to implement those provisions. Now, in Inserso Corp., B-417791, B-417791.3, Nov. 4, 2019, GAO has weighed in on what counts as LPTA for purposes of those restrictions. This decision may indicate a potentially significant limitation on the reach of the NDAA provisions, new DFARS rule, and proposed FAR rule.
Continue Reading What Is Lowest Priced Technically Acceptable? GAO Clarifies Reach of New LPTA Restrictions
On October 2, 2019, the Department of Defense, General Services Administration, and NASA issued a proposed rule that would amend the Federal Acquisition Regulation to establish new restrictions on when and under what circumstances civilian agencies may employ Lowest Price Technically Acceptable source selection procedures. The proposed rule would implement Section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, and follows hot on the heels of DoD’s final rule making similar — but not identical — amendments to the Defense Federal Acquisition Regulation Supplement. (See our recent blog post on the new DFARS rule.)
Continue Reading Lowest Priced Technically Acceptable Procurements Are Less and Less Acceptable: Proposed FAR Rule Further Continues Shake-Up of LPTA Procurements
The House of Representatives passed its version of the FY2020 National Defense Authorization Act (“NDAA”) last week. The headline story was the remarkably close, party-line vote: in contrast to past years, the bill received no Republican votes, and eight Democratic Members voted against it.
Those partisan dynamics obscured the inclusion of two important amendments – one Republican and one Democratic – regarding bid protest policy that the House quietly adopted in its bill. The provisions are not yet law, since the House and Senate must still resolve differences in their respective NDAAs through the conference process. In this post, we summarize these provisions and encourage government contractors to watch them closely in the coming months.
Continue Reading House and Senate Will Debate Bid Protest Policy