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FAR Part 40, Cyber Reporting, Bid Protest

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

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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

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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

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Subject to limited exceptions, GAO’s bid protest jurisdiction over Department of Defense (DoD) awards of task orders under multiple-award contracts is limited to those “valued in excess” of $25 million.  While that seems straightforward enough, GAO’s recent decision in ELS, Inc., B 421989, B 421989.2, Dec. 21, 2023, highlights the complexities that can arise in calculating a task order’s value.Continue Reading When Determining Task Order Value for GAO Protest Jurisdiction, Look to What the Task Order Says, Not What the Agency May Do 

The following is the final installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series.  All through 2023, Crowell’s Government Contracts Practice kept you up to date with a summary of the most notable bid protest sustain decision each month.  Below, we cap off 2023 with an excellent GAO decision that provides guidance about the standards an agency must satisfy when conducting procurements under FAR subpart 8.4 and an in-depth discussion of interested party status for companies that are graduating from small business programs.Continue Reading December 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 RELX Inc., B-421597.2, Nov. 17, 2023, in which GAO considered an agency’s issuance of a brand-name-or-equal task order.Continue Reading November Bid Protest Sustain of the Month

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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 Christian Curran highlights a recent GAO decision with analysis on key personnel and discussions issues.

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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 several protest decisions issued in October that provide helpful insights about the GAO protest process.Continue Reading October Bid Protest Sustain of the Month