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Offerors understand that missing a submission deadline can sink even the best proposal because “late is late.”  But what happens when an offeror timely emails its proposal only to have an agency server reject it without any notification to the offeror?  GAO’s recent decision in Guidehouse, Inc., B-422115.2, Jan. 19, 2024, says that the proposal is still late and emphasizes the potentially draconian impact of the “late is late” rule.Continue Reading The Agency’s Email Server Ate My Proposal! – GAO Rejects Challenge to “Late is Late” Rule

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In its first published bid protest sustain decision of the new year, the Government Accountability Office (GAO) highlights agencies’ obligation to adequately document a substantive analysis of proposals against the solicitation requirements, even in FAR Part 16.5 procurements.  In SierTeK-Peerless JV LLC, B-422085, B-422085.2, Jan. 2, 2024, the Transportation Security Administration (TSA) conducted a task order competition for property management support services among OASIS 8(a) pool 1 contract holders.  The solicitation required TSA to assess the size and scope of offerors’ prior experience as compared to the solicited task order requirements.  SierTeK-Peerless, the unsuccessful offeror, challenged TSA’s award to Strativia, arguing in a supplemental protest that the agency’s evaluation of the awardee’s prior experience was flawed because TSA failed to reasonably assess the similarity of Strativia’s prior experience. Continue Reading GAO’s First Sustain of 2024 Emphasizes the Need for Documented Analysis of Offerors’ Proposals Against Solicitation Requirements

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Subject to limited exceptions, GAO’s bid protest jurisdiction over Department of Defense (DoD) awards of task orders under multiple-award contracts is limited to those “valued in excess” of $25 million.  While that seems straightforward enough, GAO’s recent decision in ELS, Inc., B 421989, B 421989.2, Dec. 21, 2023, highlights the complexities that can arise in calculating a task order’s value.Continue Reading When Determining Task Order Value for GAO Protest Jurisdiction, Look to What the Task Order Says, Not What the Agency May Do 

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On October 26, 2023, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2023.

The total number of protests filed and the number of protests sustained by GAO increased significantly compared to Fiscal Year 2022—and GAO’s “Sustain Rate” jumped to 31%.  GAO downplayed these increases to a degree, highlighting that it received “an unusually high number of protests challenging a single procurement”—the Department of Health and Human Services’ award of Chief Information Officer-Solutions and Partners 4 (CIO-SP4) government-wide acquisition contracts—which resulted in over 100 sustained protests.  Nonetheless, even excluding the CIO-SP4 protests, it appears that GAO’s “Effectiveness Rate” (the percentage of cases in which the protester received relief, such as voluntary corrective action or a GAO sustain) was comparable to prior years—at or near 50%.  Thus, bid protests remain an important oversight mechanism for the federal procurement system.Continue Reading GAO’s Bid Protest Sustain Rate Soars, but Is There a Catch?

The following is an installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series.  All through 2023, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month.  Below, Crowell Partner Cherie Owen discusses GAO’s decision in Mandex, Inc., involving organizational conflicts of interest (OCIs).Continue Reading August 2023 Bid Protest Sustain of the Month

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When faced with a dissatisfying debriefing, a contractor may choose to respond to the agency to question or even rebut its evaluation.  However, the recent Government Accountability Office (GAO) decision in NikSoft Systems Corporation (NikSoft) serves as an important reminder that those communications can be interpreted as agency-level protests, with potential to render subsequent GAO protests untimely. 

Continue Reading Bite Your Tongue or Eat Your Words: GAO Reminds Contractors that Correspondence with the Agency Can Be Construed as an Agency-Level Protest, Doubling Down on a Timeliness Trap

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In a polarized political environment, one area of bipartisan agreement in recent years has been renewed interest in leveraging government purchasing power to promote the domestic manufacturing base by expanding and strengthening federal “Buy America” requirements.  For direct federal procurements subject to the Buy American Act (BAA), this has resulted in revised rules increasing the amount of U.S. content required to qualify a product as domestic, as well as heightened scrutiny of when waivers may be issued exempting a procurement in whole or in part from those requirements (covered here and here).    Continue Reading Float Like a Butterfly (Valve), Sting Like a B(AA Requirement): GAO Issues Rare Decision Sustaining Challenge to Agency’s Application of the Buy American Act

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Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, hosts Christian Curran and Rob Sneckenberg discuss the latest Court of Federal Claims decision disagreeing with a Government Accountability Office…

The following is an installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series.  All through 2023, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month.  Below, Crowell Partner Cherie Owen discusses MPZA, LLC, B-421568, B-421568.2, July 3, 2023, 2023 CPD ¶ 165, in which GAO discussed the amount of documentation needed to support an agency’s price analysis. Continue Reading July 2023 Bid Protest Sustain of the Month

The following is an installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series.  All through 2023, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month.  Below, Crowell Partner Cherie Owen discusses Kupono Gov’t Servs., LLC; Akima Sys. Eng’g, LLC, in which GAO sustained a challenge to an agency’s corrective action.   

June 2023 may go down in history as the month with the highest sustain rate in GAO’s history – if GAO published monthly sustain rate data, that is.  Although GAO issued a handful of sustained decisions, one of those decisions is likely to drive GAO’s “sustain rate” statistic through the roof this year: Systems Plus, Inc. et al., which sustained 98 protests and supplemental protests related to the Chief Information Officer-Solutions and Partners (CIO-SP4) procurement.  (In July, GAO issued another decision sustaining 28 additional protests and supplemental protests relating to the same procurement.)  While GAO’s CIO-SP4 decisions were interesting, they may have allowed an even more impactful sustain decision to slip under the radar. Continue Reading June 2023 Bid Protest Sustain of the Month