On November 14, 2024, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2024, containing the full statistics shown below:Continue Reading 2024 GAO Bid Protest Report Shows Notable Decrease in Merit Decisions
The term “bid protest” typically calls to mind challenges to an agency’s award of a contract. But two recent GAO sustain decisions—Wilson 5 Service Company, Inc., B-422670, Sept. 25, 2024, 2024 CPD ¶ 230 and MAXIMUS Federal Services, Inc., B-422676, Sept. 16, 2024, 2024 CPD ¶ 222—highlight another impactful tool for protecting a contractor’s ability to compete fairly: pre-award challenges to ambiguous or unreasonably restrictive solicitation terms.Continue Reading Bid Protest: Unreasonable and Ambiguous Solicitation Terms Sink Procurements
The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series. In this series, 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 Consultant Cherie Owen discusses Wilson 5 Service Company, Inc., B-422670, September 25, 2024, 2024 CPD ¶ 230, which provides helpful insights regarding protests challenging the terms of a solicitation.Continue Reading September 2024 Bid Protest Sustain of the Month
As Summer Comes to a Close, So Does GAO’s Sustain Drought
In last month’s Bid Protest Sustain of the Month installment, we noted that GAO was suffering from a sustain drought, having failed to issue a single sustained protest decision in the month of July. But it appears that drought is over! The final tally for August shows that GAO issued a whopping six separate sustained protest decisions in August 2024. Four of these decisions—issued at the end of the month—are still under Protective Orders, so we do not yet know the grounds for the sustains. The remaining two involved less-common sustain issues: an offeror’s compliance with the Trade Agreements Act (TAA) and an agency’s compliance with the “Rule of Two.” In HPI Federal, LLC, B-422583, the protester argued that some of an awardee’s offered products were not TAA compliant. GAO sustained the protest, finding that the contractor had certified only that its products were “assembled” in Mexico, not that they were “an end product of Mexico.” Continue Reading August 2024 Bid Protest Sustain of the Month
GAO issued three sustain decisions in June, but the Sparksoft Corporation decision stands out for its discussion of prejudice. In Sparksoft, the Centers for Medicare and Medicaid Services (CMS) sought to procure supplemental security testing for the agency’s Center for Clinical Standards and Quality (CCSQ). CMS evaluated Sparksoft and the eventual awardee, TSG, as follows:Continue Reading June 2024 Bid Protest Sustain of the Month
This week’s episode covers a final rule updating the FAR to add Part 40 on information security and supply chain security, a notice of proposed rulemaking detailing how companies will have to comply with the Cyber Incident Reporting for Critical Infrastructure Act of 2022, and a bid protest
In February 2024, GAO continued its streak of taking a hard look at procurements conducted under Federal Acquisition Regulation (FAR) subpart 8.4. Subpart 8.4 allows the government to use “simplified” ordering procedures to obtain commercial supplies and services. However, some agencies have apparently adopted the position that “anything goes” in these simplified procurements. Not so! Over the past year, GAO has issued a series of decisions emphasizing that, although this process is supposed to be simplified, it is not intended to be lawless. (Check out our discussion of the Washington Business Dynamics, LLC, decision in December’s Sustain of the Month post.) This welcome trend has continued into 2024, with GAO’s issuance of a sustain decision in LOGMET LLC, B-422200, Feb. 21, 2024. Continue Reading February 2024 Bid Protest Sustain of the Month
Following a January 29, 2024 White House announcement and Fact Sheet, on January 30, 2024, the Federal Acquisition Regulation (FAR) Council issued a Notice of Proposed Rulemaking (Proposed Rule) on salary-history bans and pay transparency for applicants and employees of federal contractors and subcontractors. On the same day, the Office of Federal Contract Compliance Programs (OFCCP) issued some FAQs on the compensation history issue. These actions by the federal government to ban prior salary information and require compensation information in job postings echo the efforts of multiple states and municipal governments that have enacted similar salary history bans and/or compensation disclosure requirements:Continue Reading Show Me the Money: Contractors and Subcontractors May Soon Be Subject to Pay Transparency Requirements, Which May Also Trigger New Bid Protest Issues
Though not the first sustain of 2024 (click here for our writeup of 2024’s first sustain), GAO’s decision in American Material Handling, Inc. provides an informative discussion of the level of scrutiny agencies face when conducting “brand name or equal” procurements. In American Material, the International Boundary and Water Commission sought a contractor to provide a brand name or equal “Caterpillar 980 wheel loader.” The requirement was competed among Federal Supply Schedule holders under FAR subpart 8.4. The request for quotations (RFQ) included a two-page specification sheet identifying the salient characteristics of the wheel loader equipment and stated that award would be made on a lowest price, techncally acceptable basis. Two vendors responded to the RFQ – Caterpillar offered its own brand name equipment and American Material offered a Volvo L220H wheel loader. After receiving quotations, the agency added several additional salient characteristics to the technical evaluation form, then concluded that American Material’s equipment did not meet these new characteristics. Thus, although American Material offered the lower price, the agency awarded to Caterpillar because American Material’s equipment was evaluated as technically unacceptable for failing to meet the newly added requirements. Continue Reading January 2024 Bid Protest Sustain of the Month