This week’s episode covers a final rule amending the DFARS to incorporate the expanded capabilities of the Supplier Performance Risk System and requirements on contracting officers, a bid protest decision at the Court of Federal Claims regarding standing, and a GAO protest decision about the Procurement Integrity Act, and is hosted by Peter Eyre and
Court of Federal Claims Holds Non-Bidder Has Standing to Protest Two Years After Contract Award
Last week, on March 9, 2023, in Percipient.ai, Inc. v. United States, the Court of Federal Claims held that Percipient.ai, Inc. (“Percipient”) had standing to protest a National Geospatial-Intelligence Agency (“NGA”) procurement called “SAFFIRE” intended to improve the agency’s production, storage, and integration of geospatial intelligence data. Percipient’s complaint, filed in January of this year, argued that SAFFIRE violates the statutory mandate at 10 U.S.C. § 3453 to procure commercial items “to the maximum extent practicable.” The Court’s conclusion that Percipient had standing to protest is notable because (1) NGA issued the SAFFIRE solicitation in January 2020 (over three years ago); (2) NGA awarded the SAFFIRE contract to CACI, Inc. – Federal (“CACI”) in January 2021 (over two years ago); and (3) Percipient never submitted a proposal in response to the solicitation.
The Government and CACI moved to dismiss Percipient’s complaint, arguing, among other things, that Percipient lacked standing to protest because it had not submitted a proposal and therefore was not an “interested party,” and because the protest—filed two years after contract award—was in fact a challenge to NGA’s administration of the SAFFIRE contract. The Government and CACI also argued that the protest was untimely under the Federal Circuit’s decision in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), which generally requires that protests challenging the terms of a solicitation be filed before the proposal due date.
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February 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 a GAO reconsideration decision involving a prior sustain based on an offeror’s material misrepresentation.
Although GAO kicked off 2023 with 3 sustain decisions, February brought a sustain drought – GAO’s public docket shows that GAO did not sustain any protests in the second month of 2023. At first blush, this could appear to be disheartening to would-be protesters. However, the outlook is not as gloomy as it seems. First, it’s important to remember that GAO’s “effectiveness rate” (which measures the percentage of protests that result in some form of relief for the protester, such as voluntary agency corrective action or a sustained decision) consistently hovers near 50%. Thus, even in the absence of written sustain decisions, there were undoubtedly a number of protests that resulted in corrective action during the month. Second, GAO’s docket reflects that the sustain drought has already ended – GAO sustained a protest on March 1. Although that decision is still under the Protective Order and has not yet been released publicly, potential protesters can rest assured that the drought was short-lived.
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Court of Federal Claims Reveals 2022 Protest Statistics
In a speech released last week, Judge Patricia Campbell-Smith of the U.S. Court of Federal Claims shared information regarding the Court’s bid protest statistics in recent years. Although GAO publishes its bid protest statistics on its website each year in connection with its Bid Protest Annual Report to Congress, the Court’s statistics tend to be less well publicized.
Judge Campbell-Smith revealed that there were 135 protests filed with the Court in calendar year 2022 – two more than were filed in 2021. Of the cases filed in 2022, 38 were pre-award protests and 97 were post-award challenges. With respect to the Court’s decisions issued in 2022, the Court denied 127 protests. Judge Campbell Smith noted that, “for both years [2022 and 2021] the court sustained 27 protests.”…
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Fastest 5 Minutes: Voluntary Disclosures, Disruptive Technology Strike Force
This week’s episode covers DOJ’s Voluntary Self-Disclosure Policy, a new Disruptive Technology Strike Force, and a bid protest involving evaluation of a joint venture’s past performance, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal…
January 2023 Bid Protest Sustain of the Month
Crowell & Moring is pleased to announce its 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 kicks off the series with a discussion of an interesting and controversial decision relating to the evaluation of small business joint venture experience. …
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Fastest 5 Minutes: Bid Protests and VA Acquisition Regulation
This week’s episode covers a bid protest decision relating to discussions, a Federal Circuit decision about jurisdiction under the Federal Acquisition Streamlining Act, and an update to the VA Acquisition Regulation, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary…
GAO’s 2022 Bid Protest Report to Congress for FY 2021 Shows Better than 50% Chance of Obtaining Relief
On November 1, 2022, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2022. While the number of protests GAO received dropped by 12% for the second year in a row, the overall protest “Effectiveness Rate”—meaning the percentage of cases in which the protester received some form of relief, such as voluntary corrective action by the agency or a GAO sustain—increased to 51%, tying Fiscal Year (FY) 2020 for the highest rate in the past five years.
GAO’s Annual Report also provides a helpful summary of the most common grounds for sustained protests in the prior year. In FY2022, those grounds were: (1) unreasonable technical evaluation; (2) flawed selection decision; and (3) flawed solicitation. The inclusion of “flawed solicitation” on the list is notable—it has only made the list of “most successful grounds” one other time since GAO began tracking successful protest grounds. This serves as a reminder that contractors should consider a pre-award protest as a potentially viable method of resolving solicitation flaws and ambiguities if other routes (such as the Q&A process) are unsuccessful or unavailable.
The chart below shows the top sustain grounds by year. As seen below, flawed technical evaluations continue to represent one of the most consistently successful grounds for sustains, meaning would-be protesters should consider whether they have a credible basis to make such arguments when weighing an award challenge. …
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GAO Breathes New Life into the Commonly Denied “Failure to Award a Strength” Protest Ground
Challenging an agency’s failure to award a “strength” for a proposal feature can prove to be an exercise in futility. GAO frequently characterizes this oft-rejected argument as mere disagreement and defers to the agency’s conclusions. But, following GAO’s decision in Tech Marine Business, Inc., B-420872, Oct. 14, 2022, the tide may be turning. Agencies are now required to demonstrate that their decision not to award strength credit was reasonable and consistent with the stated evaluation criteria.
The protester, Tech Marine Business, Inc. (Tech Marine) alleged that the Navy failed to award Tech Marine a strength for its transition plan. The solicitation required the awardee to “begin work immediately and assume responsibility from the incumbent Contractor, if applicable, within 60 days after Task Order award.” Tech Marine, the incumbent contract, explained that its transition plan exceeded the Navy’s schedule for workload turnover and that transition would be completed “well in advance of the 60–day requirement.”…
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Sometimes, the Court of Federal Claims Does Consider OTA Protests
Protesters looking to challenge U.S. Government awards of “Other Transaction Agreements” (“OTAs”) face forum challenges—the Government Accountability Office (“GAO”), Court of Federal Claims (“COFC”), and federal district courts have all dismissed OTA protests for lack of subject matter jurisdiction, with GAO and the COFC concluding that OTAs are not procurement contracts. But last week, in Hydraulics International, Inc. v. United States, the COFC held it could exercise jurisdiction over a challenge to an OTA award made in connection with a potential future procurement.
In Hydraulics, the Court considered a challenge to the Army’s award of an OTA for Aviation Ground Power Unit (“AGPU”) protypes used to service military helicopters. The Army invited offerors to respond to a Request for Enhanced Whitepapers (“RWP”), which contemplated awards to two companies for the “base effort” of one prototype AGPU. The RWP instructed that the base-effort award “may result in the award of a follow-on production contract for over 150 AGPUs without the use of competitive procedures.”…
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