Government Contracts Legal Forum

Category Archives: Bid Protest

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GAO Declines to Apply the Interested Party Rule in a Protest Filed under the Name of the Wrong Company

Posted in Bid Protest
(contributed to by Derek R. Mullins) When protesting to the Government Accountability Office, contractors must satisfy GAO’s “interested party” rule. In other words, a protester must be an actual or prospective bidder or offeror with a direct economic interest in the procurement. In post-award protests, it is expected that the entity that files a protest … Continue Reading

GAO Releases Protest Statistics for FY 2013

Posted in Bid Protest
In its annual report 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 2009-2013: For the first time since FY 2006, the number of cases filed in FY 2013 decreased from the previous year (the FY 2005 – FY 2009 statistics, … Continue Reading

C&M Litigators Conduct Seminar on Bid Protest Procedure and Strategy

Posted in Bid Protest
On September 19, 2013, bid protest attorneys Amy O’Sullivan, Jonathan Baker, and Olivia Lynch will once again be teaching the “Bid Protests: Practice, Procedure and Strategy” course for Federal Publications Seminars. This full-day, CLE-eligible, seminar focuses on practice, procedure, and strategy for protests litigated at the agency-level and before the U.S. Government Accountability Office and … Continue Reading

In Case of First Impression, COFC Concludes Single-Source Award in Multiple Award IDIQ Contract Fails to Satisfy FAR 16.504

Posted in Bid Protest
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

Trends and Developments in Bid Protests — Ounce of Prevention Seminar, May 15-16

Posted in Bid Protest
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

Application of GAO’s Timeliness Rules for GAO Protests Filed after Agency-Level Protest Is the Same Regardless of the Nature of the Adverse Agency Action

Posted in Bid Protest
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

COFC AND GAO DISAGREE, COURT SUSTAINS $32M PROTEST

Posted in Bid Protest
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

Veterans Affairs Continues to Defy GAO on Set-Asides

Posted in Bid Protest, Small Business
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

Proposed Revisions to the Tucker Act Would Dramatically Change the Bid Protest Landscape

Posted in Bid Protest
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

Physical Possession Not Required to Demonstrate a Paper Proposal Is “Under the Government’s Control” Prior to Submission Deadline

Posted in Bid Protest
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

The Court of Federal Claim’s Task and Delivery Order Jurisdiction May Be Back in Play

Posted in Bid Protest
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

Chance to Change Pricing Generally Required After Corrective Action

Posted in Bid Protest
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

The Court of Federal Claims Opens Its Doors to Protests of Civilian Task and Delivery Order Procurements

Posted in Bid Protest
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

GAO Invalidates Award for Lease of Health & Human Services’ Office Space

Posted in Bid Protest
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

GAO Expands Its Jurisdiction Over Protests of Civilian Task and Delivery Order Procurements

Posted in Bid Protest
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

The COFC Rejects the Government’s Doublespeak on Standing to Challenge In-Sourcing Decisions

Posted in Bid Protest, In-Sourcing
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

Senate Committee Approves Bill Extending GAO’s Protest Jurisdiction Over Certain Civilian Agency Task and Delivery Orders

Posted in Bid Protest
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

Offeror’s Expired Proposal Brought Back to Life

Posted in Bid Protest
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

Experienced Bid Protest Litigators Explain Procedure and Offer Strategy and Practice Pointers in Full-Day Seminar

Posted in Bid Protest
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

Congress Extends GAO’s Bid Protest Jurisdiction Over Certain DoD Task And Delivery Orders

Posted in Bid Protest
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

Fighting for Your Contract: A New Guide Explains the Ins and Outs of Bid Protests and What Contractors Really Need to Know

Posted in Bid Protest
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

GAO Concerned Over DOD’s Ability To Demonstrate Business Judgment In Performing Best Value Tradeoffs

Posted in Bid Protest
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