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 … Continue Reading
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, … Continue Reading
Last month, the Government Accountability Office (GAO) issued a bid protest decision regarding the application of Buy American Act (BAA) requirements to a solicitation for construction. In this decision, GAO rejected the agency’s determination that an offeror’s bid was nonresponsive because the offeror failed to provide certain required information for the evaluation of a potential BAA exception. A summary … Continue Reading
For the first time in several years, the version of the FY 2019 National Defense Authorization Act (NDAA) that just passed the Senate does not contain any major reforms to limit bid protests. But the bill the Senate sent to the conference committee process does contain two provisions aimed at bid protests. Although they are … Continue Reading
On April 2, 2018, GAO issued a final rule revising its existing regulations to implement a number of changes to its bid protest process. The new rule becomes effective on May 1, 2018. Several of these changes implement requirements in Section 1501 of the Consolidated Appropriations Act for FY2014 (“Act”), which directed GAO to institute … Continue Reading
Last week, the RAND Corporation published a report entitled “Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, And Drivers.” In it, RAND analyzed the prevalence and impact of bid protests of U.S. Department of Defense (“DoD”) acquisitions, and concluded that DoD bid protests are both “exceedingly uncommon” and, on the whole, … Continue Reading
On Monday, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2017. Most notably, the effectiveness rate hit 47%. The effectiveness rate looks at all cases filed, and measures the percentage of cases in which a protester obtains some relief, whether through a sustain by GAO or voluntary corrective action by the … Continue Reading
Last year, we highlighted the Court of Federal Claims’ (“COFC”) decision in Starry Associates, Inc. v. United States, 127 Fed. Cl. 539 (2016), which sharply criticized a Department of Health and Human Services (“HHS”) decision to cancel a solicitation, a rare rebuke in an area where agencies enjoy considerable deference from the courts. The Court’s … Continue Reading
In mid-December, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2016. The report reveals, among other things, that GAO’s protest sustain rate for this past fiscal year (“FY”) was 22.56%, almost double that of FY 2015. While this is perhaps the most notable data point, the report once again provides a … Continue Reading
GAO’s jurisdiction over protests of civilian agency task and delivery orders valued at more than $10 million will sunset today. 41 U.S.C. § 410(f)(3). GAO will continue to have jurisdiction over Department of Defense task and delivery orders over $10 million — Congress made that jurisdiction permanent in 2011. 10 U.S.C. § 2304c(e). Pending protests … Continue Reading
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
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
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
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
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
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
The Government Accountability Office (“GAO”) recently published its decision in a two protester challenge to cost realism adjustments made by the Navy during its evaluation of final proposal revisions (“FPRs”) for a base operations and administrative support services contract. In that decision, the GAO affirmed the Navy’s decision to adjust upward the proposed costs in … Continue Reading
This week, the General Accountability Office (“GAO”) published a decision reaffirming its jurisdiction over protests of “mixed transaction” leases. Generally, GAO’s protest jurisdiction is limited to the procurement of goods and services, which does not include leases of federally-owned property. However, in certain circumstances, a transaction involving a lease includes a procurement of goods and … Continue Reading
On November 18, the Government Accountability Office (GAO) released its annual bid protest report for FY 2014. According to the report, 2,561 cases were filed at GAO in FY 2014, up 5% from last year. The total of 2,561 includes 2,445 protests, 50 cost claims, and 66 requests for reconsideration. GAO ruled on 556 cases … Continue Reading
The Court of Federal Claims recently considered the extent to which its Tucker Act bid protest jurisdiction extends to Government “make-or-buy” decisions. In VFA, Inc. v. United States, No. 14-173 (Fed. Cl. Oct. 21, 2014), VFA protested a Department of Defense (“DOD”) announcement that it would “standardize” the various facility-assessment software tools used by its … Continue Reading
When a bid protester decides to accuse an agency of bias, there usually are two separate, potentially cross-cutting concerns: (1) how the allegation might impact customer relations; and (2) whether the allegation will have traction at the GAO or the Court of Federal Claims (the “Court”). A recent opinion by the Court offers some perspective on the … Continue Reading
