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!”
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
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
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
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
“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
Offerors understand that missing a submission deadline can sink even the best proposal because “late is late.” But what happens when an offeror timely emails its proposal only to have an agency server reject it without any notification to the offeror? GAO’s recent decision in Guidehouse, Inc., B-422115.2, Jan. 19, 2024, says that the proposal is still late and emphasizes the potentially draconian impact of the “late is late” rule.Continue Reading The Agency’s Email Server Ate My Proposal! – GAO Rejects Challenge to “Late is Late” Rule
Front of mind for many federal contractors is the proposed FAR rule that would make federal contract awards contingent upon meeting mandatory greenhouse gas (GHG) emissions requirements. But a provision in the recently enacted National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024 scales back the reach of that potential rule on Department of Defense (DoD) contracts.Continue Reading FY 2024 NDAA Pumps the Brakes on Mandatory GHG Emissions Disclosure Requirements for DoD Contracts
In its first published bid protest sustain decision of the new year, the Government Accountability Office (GAO) highlights agencies’ obligation to adequately document a substantive analysis of proposals against the solicitation requirements, even in FAR Part 16.5 procurements. In SierTeK-Peerless JV LLC, B-422085, B-422085.2, Jan. 2, 2024, the Transportation Security Administration (TSA) conducted a task order competition for property management support services among OASIS 8(a) pool 1 contract holders. The solicitation required TSA to assess the size and scope of offerors’ prior experience as compared to the solicited task order requirements. SierTeK-Peerless, the unsuccessful offeror, challenged TSA’s award to Strativia, arguing in a supplemental protest that the agency’s evaluation of the awardee’s prior experience was flawed because TSA failed to reasonably assess the similarity of Strativia’s prior experience. Continue Reading GAO’s First Sustain of 2024 Emphasizes the Need for Documented Analysis of Offerors’ Proposals Against Solicitation Requirements