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
August 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
August 2023 Bid Protest Sustain of the Month
The following is an installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series. All through 2023, 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 Partner Cherie Owen discusses GAO’s decision in Mandex, Inc., involving organizational conflicts of interest (OCIs).Continue Reading August 2023 Bid Protest Sustain of the Month
April 2023 Bid Protest Sustain of the Month
The following is an installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series. All through 2023, 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, Government Contracts Partner Cherie Owen and Summer Associate Olivia Venus discuss a U.S. Government Accountability Office (“GAO”) sustain decision involving the conduct of discussions.
In Life Science Logistics, LLC(“LSL”) GSA sought proposals for services to support disaster relief efforts. Among other things, proposals were to include blueprint drawings for a proposed warehouse. After receiving and evaluating initial proposals, GSA conducted discussions with both offerors. GSA made award to Integrated Quality Solutions LLC (IQS), and LSL protested.
In response to LSL’s initial protest of the award to IQS, the Agency took voluntary corrective action. It amended the solicitation to specify its blueprint requirements and conducted a reevaluation of each technical proposal. In the initial evaluation, LSL received slightly lower ratings than IQS, but achieved “good” ratings overall. Upon reevaluation, however, the Agency assigned several significant weaknesses to LSL’s technical proposal and assigned a rating of “not acceptable.” Continue Reading April 2023 Bid Protest Sustain of the Month
Court of Federal Claims Reveals 2022 Protest Statistics
In a speech released last week, Judge Patricia Campbell-Smith of the U.S. Court of Federal Claims shared information regarding the Court’s bid protest statistics in recent years. Although GAO publishes its bid protest statistics on its website each year in connection with its Bid Protest Annual Report to Congress, the Court’s statistics tend to be less well publicized.
Judge Campbell-Smith revealed that there were 135 protests filed with the Court in calendar year 2022 – two more than were filed in 2021. Of the cases filed in 2022, 38 were pre-award protests and 97 were post-award challenges. With respect to the Court’s decisions issued in 2022, the Court denied 127 protests. Judge Campbell Smith noted that, “for both years [2022 and 2021] the court sustained 27 protests.” Continue Reading Court of Federal Claims Reveals 2022 Protest Statistics
Fastest 5 Minutes: Voluntary Disclosures, Disruptive Technology Strike Force
This week’s episode covers DOJ’s Voluntary Self-Disclosure Policy, a new Disruptive Technology Strike Force, and a bid protest involving evaluation of a joint venture’s past performance, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal
GAO Finds Key Person “Unavailable” Despite Still Being Employed on Date of Award
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
All Things Protest: How to Handle Inadvertent Government Disclosure of Competition-Sensitive Information
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 Rob Sneckenberg, Olivia Lynch, and Christian Curran discuss considerations and best practices when the Government inadvertently releases competition-sensitive information.
Fastest 5 Minutes: Minimum Wage for Contractors and Bid Protests
This week’s episode covers notable bid protest decisions as well as an update from National Institute of Standards and Technology and the Executive Order increasing the hourly minimum wage for federal government contractors, and is hosted by partner Peter Eyre and counsel Monica Sterling. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that
Speak Now Or Forever Hold Your Protest: Intervenor’s Silence Waives Future Protest Grounds
When is the deadline to file a bid protest, and what actions or inactions can cause potential future protest arguments to be waived? These seemingly simple questions can have surprising answers. In a recent bid protest decision, GAO held that a contract awardee can waive potential protest grounds by failing to raise them when intervening