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After a recent Court of Federal Claims (“COFC”) decision limited the circumstances under which a departure of key personnel may doom an offeror’s proposal, an even more recent GAO decision might have swung the pendulum right back. In Sehlke Consulting, LLC, GAO sustained a protest because the agency failed to penalize the awardee when a proposed key person employed under the incumbent contract provided notice that he planned to resign. Even though the key person was still employed on the date of award, GAO held that the agency’s failure to consider his “prospective unavailability” for the follow-on contract undermined the contract award.

The following dates were relevant:

  • Performance of the follow-on contract was scheduled to begin February 1, 2022.
  • On January 11, 2022, one of the awardee’s proposed key personnel (who was then an employee of a subcontractor on the incumbent contract) announced that he planned to resign effective January 28, 2022. The awardee timely notified the Contracting Officer’s Technical Representative (“COTR”) for the incumbent contract.
  • On January 25, 2022, the agency completed its evaluations and awarded the contract.
  • On January 28, 2022—after award but before performance was to begin—the key person’s resignation became effective.


Continue Reading GAO Finds Key Person “Unavailable” Despite Still Being Employed on Date of Award

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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, Crowell attorneys Christian Curran and Zachary Schroeder discuss a recent GAO case (K&K Industries, Inc., B-420422; B-420422.2, March 7,

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While there’s no harm in gathering as much information as possible before filing a protest, would-be protesters must pay careful attention to GAO’s timeliness regulations. In K&K Industries, Inc., B-420422; B-420422.2, March 7, 2022, GAO highlighted the risk of attempting to unilaterally extend a debriefing beyond the Department of Defense (DOD) enhanced debriefing window.

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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, Crowell attorneys discuss their recent “Feature Comment,” published in The Government Contractor, discussing the recent Court of Federal

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In a February 11, 2022 decision, the U.S. Court of Federal Claims (Court) dismissed for lack of interested party status a post-award protest filed by Colsa Corp. (Colsa) in which it challenged the status eligibility of other offerors.

In September 2018, the Missile Defense Agency (MDA) issued a solicitation seeking a single contractor to provide

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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 Olivia Lynch and Rob Sneckenberg interview in-house counsel from LMI, Adele Navarrete, about organizational conflicts of interest.

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This week’s episode covers increased minimum wage for certain federal contract workers, a protest decision involving proposal misrepresentation, cybersecurity and data safeguarding updates from DOD and NIST, and highlights from the Defense Innovation Unit Annual Report, and is hosted by Peter Eyre and Monica Sterling. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast

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Contractors that encounter problematic solicitation provisions have many avenues to address them, such as industry days, questions and answers, and even communications directly with an agency.  However, the recent Government Accountability Office (“GAO”) decision in Science and Technology Corporation serves as an important reminder that contractors must be thoughtful about when and how they communicate directly with an agency.  Depending on the specific content of their communications, contractors can unwittingly create a timeliness trap that will shorten their deadline to file a GAO protest.

On September 13, Science and Technology Corporation (“STC”) sent a “letter of concern” to the National Oceanic and Atmospheric Administration (“NOAA”) expressing dissatisfaction with a key personnel requirement in a particular solicitation, and requesting that the requirement be amended.  NOAA responded the next day, denying the request and noting that the requirement was “an important aspect” of the solicitation.

On October 1—which was 17 days after NOAA’s rejection, but still prior to the due date for receipt of proposals—STC filed a pre-award protest at GAO challenging the solicitation requirement.  Ordinarily, a pre-award protest challenging solicitation requirements is timely so long as it is filed before the deadline for receipt of proposals.  See 4 C.F.R. § 21.2(a)(1) (“Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. . . .”).  However, GAO dismissed STC’s protest as untimely, concluding that STC’s September 13 letter constituted an agency-level protest, and holding that STC was required to protest at GAO no later than 10 days after NOAA’s September 14 rejection.  See 4 C.F.R. § 21.2(a)(3) (“If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action. . . .”).

Continue Reading Letter to Agency About Solicitation Requirement Creates Pre-Award Timeliness Trap

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Arguably the hottest bid protest topic of the past several years just reached its boiling point. On Friday, the Court of Federal Claims (COFC), in Golden IT, LLC v. United States, rejected the Government Accountability Office’s (GAO) rule that an offeror must notify an agency if its proposed key personnel become unavailable after proposal

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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 Olivia Lynch discuss a recent decision from GAO regarding the interplay between price reasonableness and price