GAO decisions

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

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

The Department of Homeland Security’s procurement for border wall prototypes is a complex, controversial procurement by any measure.  But one protest of that procurement has recently been dismissed for a simple reason: the protester failed to timely submit comments on the agency report.

Bid protests at the Government Accountability Office are notorious for their fast and rigid deadlines.  One such deadline requires that protester comments on the agency report be filed within ten calendar days of receiving the agency report — barring an extension from GAO, which must be granted before the deadline passes.  A protester cannot opt to skip comments and rest on its initial protest.  If it fails to timely submit comments, GAO will dismiss its protest.

PennaGroup, LLC protested its exclusion from the second of two phases of the border wall–prototype procurement.  The solicitations required “offerors to acknowledge any issued amendment by signing the accompanying Standard Form 30 (SF-30), and to submit the SF-30 with each offeror’s proposal.”  PennaGroup’s proposals were eliminated from the competition for both the solid concrete prototype and the other-than-solid-concrete prototype because it failed to include SF-30s acknowledging the first six of seven RFP amendments.

Continue Reading Border Wall Protest Dismissed After Protester Fails to Timely Submit Comments

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 services.  GAO characterizes these as “mixed transactions” and has exercised jurisdiction over protests involving such transactions.

Specifically, GAO has outlined two categories of mixed transactions.  The first involves transactions where the government agency receives a direct but intangible benefit that aids the agency in the discharge of its mission.  The second are transactions where the agency receives a concrete and tangible benefit that involves the delivery of goods and/or services of more than de minimus value.

Last year, GAO addressed both categories in a protest by Blue Origin against NASA for use of a launch pad at the Kennedy Space Center.
Continue Reading GAO Reaffirms Protest Jurisdiction Over “Mixed Transaction” Leases, But Questions Remain