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.
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, the synergy and seamlessness between the corporate entities may be a selling point. Two recent GAO decisions make clear, however, that when it comes to bidding on government work, it is important to precisely identify which corporate entity is going to do what and which corporate entity has which resources.
In BDO USA, LLP and Intermarkets Global USA, LLC, GAO’s decisions turned on a perceived misidentification of corporate entities at some point in the procurement process. In BDO, the problem occurred during bid submission. In Intermarkets, the problem occurred when the protest was filed.…
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 two of these businesses will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.” That requirement is known as the “Rule of Two.” In Kingdomware, the Court held that the Rule of Two covers orders under the Federal Supply Schedule (“FSS”), and that it continues to apply even after the Department has reached its statutorily mandated annual goal of contracting with service-disabled and veteran-owned small businesses. …
Continue Reading Supreme Court Clarifies Broad Scope of the “Rule of Two” in VA Contracting
The Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) recently issued a decision exemplifying the well-known reality that protest deadlines are short and unforgiving. In Size Appeal of Supplies Now, Inc., SBA No. SIZ-5655 (Apr. 30, 2015), OHA denied, as untimely, an appeal of an SBA Area Office decision. The appellant, Supplies Now, contended it submitted an appeal via email on the 15th day after it received the adverse Area Office decision—the last day to file before the appeal deadline expired. OHA, however, never received the email submission and did not first learn of the protest until Supplies Now called six weeks later inquiring about the status of its appeal.
Continue Reading Lost in Transmission: Email Failure Results in Untimely Size Protest