On November 12, 2024, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) will issue an interim rule amending FAR 52.204-7 to clarify that an offeror’s failure to maintain System for Award Management (SAM) registration during the period between proposal submission and contract award does not render the offeror ineligible for award. Providing welcome relief to agencies and contractors alike, the interim rule requires only that an offeror be registered in SAM at the time of offer submission and at the time of contract award.Continue Reading A Common-Sense Change to the Continuous SAM Registration Requirement at FAR 52.204 7
Bid Protest: Unreasonable and Ambiguous Solicitation Terms Sink Procurements
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
“Et ‘two,’ GAO?”:Recent Sustain on the Rule of Two Reminds Agencies of the Importance of Accurate Market Research
For the first time in nearly a decade, GAO in Knudsen Systems, Inc. sustained a protest challenging an agency’s decision to set aside a procurement for small businesses. The decision involves the so-called “Rule of Two”: under FAR 19.502-2(b), agencies must set aside for small businesses a procurement with an anticipated dollar value of more than $150,000 where the agency’s market research demonstrates there is a reasonable expectation at least two responsible small business offerors can meet the agency’s requirements at a fair market price.Continue Reading “Et ‘two,’ GAO?”:Recent Sustain on the Rule of Two Reminds Agencies of the Importance of Accurate Market Research
Bid Protests: GAO Reminds Would-Be Protesters – Timing Is Everything
What You Need to Know
- Key takeaway #1Protests of an agency’s actions during corrective action can raise tricky timeliness issues—if the protest could be construed as challenging the ground rules of the procurement, the protest may be subject to the pre-award timeliness rules. But protests that do not challenge the procurement ground rules, and instead
Agency Said Awardee Fully Mitigated OCI; GAO Says: “Nope!”
Most organizational conflict of interest (OCI) sustains arise where the record shows that an agency failed to analyze the potential for a conflict. But GAO’s decision in A Square Group, LLC, is a rarer type of OCI sustain: the agency considered the purported OCI and documented its conclusion that the OCI had been mitigated. However, GAO found that the agency’s conclusions were unreasonable, and the OCI risk remained.Continue Reading Agency Said Awardee Fully Mitigated OCI; GAO Says: “Nope!”
GSA Incentivizes FSS Contractors to Reduce Single-Use Plastic but Rejects Banning Plastic in Federal Procurement
On June 6, 2024, the General Services Administration (GSA) issued a final rule seeking to minimize the use of single-use plastic (SUP) packaging materials in goods procured through the Federal Supply Schedules (FSS). Rather than instituting an outright ban on SUP packaging, GSA opted to incentivize FSS contractors to offer SUP-free products through providing a special icon in GSA Advantage for FSS contractors self-certifying that their products are SUP-free. The final rule explains that the SUP-free icon is intended to act “as an important discriminator when buyers are making purchasing decisions” so that FSS contractors that adopt this voluntary measure will become more marketable in the federal procurement space. While application of the final rule is limited to purchases from the FSS, GSA believes that the final rule will “also create positive spillovers as non-FSS contracting firms adopt similar policies to compete with FSS contractors in non-FSS markets.” GSA also explained that the final rule is an “initial step” in providing more sustainable packaging and that the goal is to encourage other federal agencies to eventually adopt these practices into other government contracts. Importantly, GSA will rely on self-certification that identified products are SUP-free and will not require any third-party verification, as the increased regulatory burden could discourage participation of small businesses. The final rule is effective starting July 8, 2024.Continue Reading GSA Incentivizes FSS Contractors to Reduce Single-Use Plastic but Rejects Banning Plastic in Federal Procurement
Federal Circuit Narrows FASA Task Order Bar; Expands “Interested Party” Standing
In Percipient.ai, Inc. v. United States, the Federal Circuit considered Percipient.ai Inc.’s (Percipient) protest arising out of the National Geospatial-Intelligence Agency’s (NGA) SAFFIRE procurement, for the improvement of the agency’s production, storage, and integration of geospatial intelligence data. Percipient’s protest was unusual—filed in 2023, it related to a task order NGA awarded to CACI, Inc. (CACI) two years earlier, for which Percipient did not (and could not) bid. But Percipient’s protest did not challenge the award to CACI. Instead, Percipient challenged NGA’s (and CACI’s) alleged failure, during task order performance, to conduct sufficient market research as to the commercial availability of AI software—for which Percipient already had a commercial offering that purportedly met NGA’s needs—before CACI began developing its own software at significantly higher cost. Percipient alleged this failure violated 10 U.S.C. § 3453, which establishes a preference for commercial items/services and instructs agencies to procure them “to the maximum extent practicable.”Continue Reading Federal Circuit Narrows FASA Task Order Bar; Expands “Interested Party” Standing
Sustainable Procurement Update: Spring 2024
During the month of April, the Biden administration has continued to leverage federal procurement in pursuit of ambitious environmental sustainability policy goals. The most recent round of new regulations and initiatives finds the administration seeking to strengthen purchasing mandates of sustainable goods and services, as well as laying the groundwork for significant restrictions on the federal procurement of products containing per- and polyfluoroalkyl substances (PFAS). Continue Reading Sustainable Procurement Update: Spring 2024
New Federal and State PFAS Requirements Pose Unique Challenges to the Government Contracting Community
A wave of recent changes in federal and state law pertaining to PFAS chemicals is likely to present both immediate and long-term challenges to the government contracting community. At the federal level, contractors that import products, parts, packaging, equipment or other articles with components that contain PFAS must confront new and extensive regulatory reporting requirements relating to such imports going back to 2011, and they must do so by May 2025. At the state level, a growing list of states are enacting total bans on the sale and distribution of such products and components. On top of this flurry of environmental regulatory activity, the Biden Administration continues to direct federal agencies to develop procurement strategies that prioritize the purchase of PFAS-free articles as part the Administration’s broader effort to leverage the federal procurement function in pursuit of climate and sustainability policy objectives.Continue Reading New Federal and State PFAS Requirements Pose Unique Challenges to the Government Contracting Community
“Better Late Than Never?” Not Really. Two Recent GAO Sustains Highlight the Importance of Contemporaneous Documentation
“Now or later?” As individuals, we are constantly asked to prioritize our time, identifying the tasks that need to be done NOW versus those that can be put off until later. In the bid protest context, the question arises as well when agencies seek to “fill in the gaps” in the administrative record with additional detail, a practice GAO has permitted so long as those details are consistent with the contemporaneous record. But, as highlighted by two recent GAO sustain decisions, when agencies attempt to perform new analyses “later” in response to a protest, those efforts are often unsuccessful. Continue Reading “Better Late Than Never?” Not Really. Two Recent GAO Sustains Highlight the Importance of Contemporaneous Documentation