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The Small Business Act affords the Small Business Administration (SBA) authority to determine the responsibility of small business concerns.  The Government Accountability Office (GAO) has held that when a procuring agency finds that a small business is not eligible for award due to being nonresponsible or for a failure to satisfy definitive responsibility criteria, the

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The acquisition and consolidation of government contractors has become increasingly prevalent in recent years. GAO’s recently released decision in Vertex Aerospace, LLC, B‑420073, B-420073.2, Nov. 23, 2021, serves as an important reminder to contractors that failure to properly update a procuring agency about such transactional activity can have adverse impacts on a pending

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This week’s episode covers an update on the Cybersecurity Maturity Model Certification program, a GAO report on DHS’ controls to protect personally identifiable information, a Federal Circuit decision regarding prejudice in the bid protest context, and highlights from the National Defense Authorization Act for FY2022, and is hosted by Peter Eyre and Monica Sterling. Crowell

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Published Federal Circuit decisions in bid protests are rare and, as a result, often consequential. In its most recent such decision, System Studies & Simulation, Inc. v. U.S., the Federal Circuit reminded protesters that even where they successfully demonstrate an agency action was “irrational,” they must also make an affirmative showing of prejudice, which

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In American Mine Services, LLC, B-420138 (Dec. 3, 2021), the Government Accountability Office (“GAO”) denied a protest by American Mine Services (“AMS”), finding that the Army Corps of Engineers (“Corps”) reasonably rejected AMS’ bid because it included a provision stating that COVID-19, as well as other similar pandemics or endemics, would be considered “force

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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, Rob Sneckenberg, and Christian Curran discuss past performance issues and key cases from 2021.

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In Aero Spray, Inc. d/b/a Dauntless Air v. U.S., the U.S. Court of Federal Claims dismissed a protest filed by Aero Spray, an awardee of an indefinite delivery indefinite quantity (“IDIQ”) contract for Department of the Interior plane-based firefighting services.  Aero Spray’s protest challenged the agency’s award of IDIQ contracts to two other companies, alleging that their planes did not comply with the solicitation’s required firefighting configuration.

Aero Spray argued that despite being an awardee itself, it had standing to protest the additional awards because they increased competition for awards of future task orders competed amongst the IDIQ holders, to Aero Spray’s detriment.  The Court disagreed, holding that Aero Spray’s protest related to the award of the IDIQ contracts—not future task orders—and that Aero Spray “already . . . won the only contract award to which it could possibly be entitled.”  In so holding, the Court expressly agreed with the Government Accountability Office, which has held that that “an awardee, by definition, is not an actual or prospective offeror,” and that “[d]ue to the nature of IDIQ contracts, . . . an awardee has no legally cognizable expectation of receiving future task orders” but only a “guaranteed a minimum quantity of orders . . . and a fair opportunity to compete for future task orders.”  Aegis Def. Servs., LLC, B-412755, Mar. 25, 2016, 2016 CPD ¶ 98.  The Court also rejected the reasoning in National Air Cargo Group, Inc. v. U.S., 126 Fed. Cl. 281 (2016), which allowed an awardee to protest additional IDIQ awards due to the potential impact on future task order competitions, and distinguished PAE-Parsons Global Logistics Services., LLC v. U.S., 145 Fed. Cl. 194 (2019), and Sirius Federal, LLC v. U.S., 153 Fed. Cl. 410 (2021), which noted that an awardee can have standing to challenge other awards under the same procurement where those other awards are distinct from (e.g., more valuable than) the awardee’s own.
Continue Reading Court of Federal Claims Refuses to Hear Protest from IDIQ Awardee

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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, host Olivia Lynch is joined by Michael Samuels to discuss a recent decision from the Small Business Administration’s Office of

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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 discuss a recent set of protests addressing “contingent” pricing and the importance of updating