Fixed-price contracts allow the government to purchase goods and services for set prices and allocate the cost risk of performance to the contractor—if the contractor offers to perform the work for too low of a price, then it may reap little profit, or even take a loss. Thus, the government’s primary concern in evaluating fixed-price … Continue Reading
In CW Government Travel, Inc. v. United States, COFC No. 12-708-C (April 11, 2013), the United States Court of Federal Claims (“COFC”) sustained CW Government Travel’s (“CWT”) protest challenging the General Services Administration’s (“GSA”) decision to award a multiple award Indefinite-Delivery/Indefinite-Quantity (“IDIQ”) contract valued in excess of $103 million to a single source as inconsistent … Continue Reading
Crowell & Moring is hosting its annual Ounce of Prevention Seminar (OOPS) for government contractors on May 15-16, 2013 in Washington, D.C. For the past 28 years, OOPS has provided a forum for discussion of the latest developments in federal contracting. Thomas Humphrey, Daniel Forman, Derek Mullins, and I will be discussing Trends and Developments … Continue Reading
The Government Accountability Office recently rejected a novel argument regarding how timeliness is to be determined for GAO protests filed after an agency either dismisses or denies an agency-level protest. In finding that the timeliness of such a protest does not depend on the nature of the adverse agency action, GAO has effectively prevented an … Continue Reading
In another example of the Court of Federal Claims ("Court") and the Government Accountability Office (GAO) reaching different conclusions, the Court sustained a $32 million protest in a recent decision brought against the Department of Veterans Affairs ("VA"), whereas GAO had dismissed the protest as untimely on the grounds that LabCorp should have protested what … Continue Reading
In Kingdomware Technologies, B-406507, May 30, 2012, 2012 CPD ¶ —, GAO sustained a protest alleging that the Department of Veterans Affairs (“VA”) improperly used the Federal Supply Schedule (“FSS”), rather than setting aside the procurement for service-disabled veteran-owned small business (“SDVOSB”) concerns. If this scenario seems familiar, that’s because it is. In several decisions over … Continue Reading
CORRECTION (5/15/12): A prior version of this blog post first posted on May 11, 2012, analyzed the proposed amendment to the Tucker Act discussed herein under the mistaken impression that it had been part of the committee mark version of the 2013 National Defense Authorization Act. We have since learned that the proposed amendment to the … Continue Reading
In a recently unsealed decision, Judge Damich of the Court of Federal Claims sustained a pre-award protest by The Electronic On-Ramp, Inc. (“EOR”), finding that the Defense Intelligence Agency (“DIA”) improperly rejected EOR’s bid as late where, although an electronic copy was timely received and the paper copy arrived at the base where DIA is … Continue Reading
In September, I wrote about the Court of Federal Claims’ decision in MED Trends, Inc. v. United States, No. 11-420 (Fed. Cl. Sept. 13, 2011), where the Court concluded that it now enjoys jurisdiction over civilian task and delivery order procurements of any dollar value. Prior to this ruling, pursuant to 41 U.S.C. § 4106(f), protests of … Continue Reading
This week, GAO released a decision in Power Connector, Inc., B-404916.2, Aug. 15, 2011, 2011 WL 5029615 that appears to introduce a significant change to the circumstances in which a procuring agency may limit the scope of proposal revisions during corrective action. Prior GAO precedent indicated that there are certain instances where an agency could … Continue Reading
In June I wrote about GAO’s conclusion that its protest jurisdiction over agency task and delivery order procurements will not only continue after the May 27, 2011 sunset date, but will expand. At that time, I noted that, to the extent the Court of Federal Claims agreed with GAO’s interpretation of the 41 U.S.C. § 4106(f)(3) … Continue Reading
In One Largo Metro LLC et al., B-404896 (June 20, 2011), GAO sustained protests by three disappointed offerors, challenging GSA’s award regarding a lease of office space in suburban Maryland for the Department of Health and Human Services. Crowell & Moring attorneys represented King Farm Associates, LLC (“King Farm”), one of the protesters. In sustaining the protests, … Continue Reading
With legislation to extend the GAO’s protest jurisdiction over civilian agency task and delivery order procurements stalled in Congress, GAO has concluded that its protest jurisdiction over those procurements will not only continue after the May 27, 2011 sunset date, but will expand. The Federal Acquisition Streamlining Act (“FASA”) limited GAO’s protest jurisdiction to protests … Continue Reading
In Santa Barbara Applied Research, Inc. (“SBAR”) v. United States, No. 11-86C (May 4, 2011), Judge Firestone of the United States Court of Federal Claims (“COFC”) ultimately upheld the Air Force’s in-sourcing decision on facts that are largely sui generis. However, before ruling in the Air Force’s favor on the merits of the cost comparison, … Continue Reading
On April 13, 2011, the U.S. Senate Committee on Homeland Security and Governmental Affairs approved S. 498, the Independent Task and Delivery Order Review Extension Act of 2011. This bill extends the Government Accountability Office’s (“GAO”) protest jurisdiction over task and delivery orders under civilian agency procurements in excess of $10 million through September 30, 2016, … Continue Reading
For one reason or another, the date on which an agency anticipates granting a contract award often comes and goes with no award decision being made. In these situations, contractors are often asked beforehand to extend the acceptance period of their proposals to accommodate the expected delay in award. But what happens when the contractor … Continue Reading
On March 17, 2011, bid protest litigators Amy O’Sullivan and Puja Satiani will be teaching “Government Contracts Bid Protests: Practice, Procedure and Strategy,” a full-day seminar for Federal Publications Seminars. The course will focus on the practice, procedure, and strategy involved in protests at the agency-level and before the U.S. Government Accountability Office (GAO) and … Continue Reading
On January 7, 2011, President Obama signed the National Defense Authorization Act for Fiscal Year 2011, which, among other things, extends the Government Accountability Office’s (“GAO”) protest jurisdiction over certain Department of Defense (“DoD”) task and delivery orders through September 30, 2016. However, absent congressional action, GAO’s jurisdiction over protests of task and delivery orders … Continue Reading
With billions of dollars at stake in one procurement alone, or the future viability of a company hanging in the balance of a single contract award, federal Government procurements are highly competitive. And, as these procurements have been increasingly the subject of bid protests – which can alter both the terms of the solicitation or the … Continue Reading
A recent GAO report highlights the fact that when a solicitation and procurement strategy prioritize (1) capabilities and the quality or level of service to be procured over (2) the dollars to be paid, government contracting, project, and source selection personnel are forced to earn their paychecks. In these situations, two or more proposals, with … Continue Reading
This week, in UXB-KEMRON Remediation Services, LLC, B-401017 (Oct. 25, 2010), the GAO provided an important reminder about its exacting application of timeliness rules. The United States Army Corps of Engineers (“USACE”) published a delivery order proposal request under a multiple award, ID/IQ contract for landmine removal work in Afghanistan. The ID/IQ schedule contract under which … Continue Reading
In MCR Federal, LLC, B-401954.2 (Aug. 17, 2010), GAO denied protester’s challenge to the agency’s decision, in the context of taking corrective action, to waive organizational conflicts of interest for two offerors. The agency – CIA – concluded that executing a waiver was in the government’s best interest, because the pool of qualified contractors was so … Continue Reading
In its annual report (.pdf) to Congress under the Competition in Contracting Act of 1984, 31 U.S.C. § 3554(e)(2), GAO disclosed the following bid protest statistics for FYs 2005-2009. FY 2009 FY 2008 FY 2007 FY 2006 FY 2005 Cases Filed 1,989 (up 20%) 1,652 (up 17%) 1,411 (up 6%) 1,326 (down 2%) 1,356 (down … Continue Reading
Two recent bid protest decisions from the Government Accountability Office (GAO) provide a helpful reminder that a “price realism” analysis is never considered to be part and parcel with the Government’s standard price evaluation in a federal procurement, nor synonymous with a “price reasonableness” determination. A price realism review is only required when called for in … Continue Reading
